ML24039A080

GE-Hitachi Nuclear Energy Americas LLC - Exemption from Select Requirements of 10 CFR Part 73

ML24039A080
Person / Time
Site:	07000754, Vallecitos Nuclear Center
Issue date:	04/25/2024
From:	Mohamed Shams NRC/NRR/DANU/UNPL
To:	Martinez C GE Hitachi Nuclear Energy
Andrew Miller, NRR/DANU
Shared Package
ML24101A284	List: ML24039A080 ML24101A290
References
EPID L-2024-LLE-0003
Download: ML24039A080 (1)

Text

OFFICIAL USE ONLYSECURITY-RELATED INFORMATION OFFICIAL USE ONLYSECURITY-RELATED INFORMATION Mr. Carlos Martinez, Site Manager GE-Hitachi Nuclear Energy Vallecitos Nuclear Center 6705 Vallecitos Road Sunol, CA 94586

SUBJECT:

GE-HITACHI NUCLEAR ENERGY AMERICAS, LLC - EXEMPTION FROM SELECT REQUIREMENTS OF TITLE 10 OF THE CODE OF FEDERAL REGULATIONS PART 73 [SECURITY NOTIFICATIONS, REPORTS, AND RECORDKEEPING AND SUSPICIOUS ACTIVITY REPORTING] (ENTERPRISE IDENTIFICATION NUMBER L-2024-LLE-0003)

Dear Mr. Martinez:

The U.S. Nuclear Regulatory Commission (NRC, the Commission) has approved the requested exemption from specific requirements of Title 10 of the Code of Federal Regulations (10 CFR), Part 73, Physical Protection of Plants and Materials, Subpart T, Security Notifications, Reports, and Recordkeeping, for the GE-Hitachi Nuclear Energy Americas, LLC (GEH, the licensee) Nuclear Test Reactor (License No. R-33) and Hillside storage facility (special nuclear material license number 960 [SNM-960]) at the Vallecitos Nuclear Center (VNC). Both facilities are covered by the same physical security plan (PSP),

GEH Revised Vallecitos Nuclear Center (VNC) Site Physical Security Plan (PSP), dated April 4, 2022 (Agencywide Documents Access and Management System [ADAMS] Accession No. ML22132A272) (cover letter only). Pursuant to 10 CFR Part 70, Domestic Licensing of Special Nuclear Material, the NRC is also amending the SNM-960 license to incorporate new safeguards conditions documenting the exemptions.

This action is in response to the application submitted by GEH dated December 11, 2023 (ML23345A081), as supplemented by letter dated January 4, 2024 (ML24004A163). The application requested exemption from the requirements of 10 CFR 73.1200, Notification of physical security events, paragraphs (c) through (h), 10 CFR 73.1205, Written follow-up reports of physical security events, paragraphs (a) through (e), 10 CFR 73.1210, Recordkeeping of physical security events, paragraphs (a) through (h), and 10 CFR 73.1215, Suspicious activity reports, paragraphs (a) through (f). The application also requested an exemption from the current definition for the term Contraband in 10 CFR 73.2, Definitions. GEH provided examples of ambiguities with the final rule and conflicts created by supporting guidance to support its exemption request.

Documents transmitted hereby contain Security-Related Information. When separated from Enclosure 2, this letter,, and Enclosure 3 are decontrolled.

April 25, 2024

C. Martinez OFFICIAL USE ONLYSECURITY-RELATED INFORMATION OFFICIAL USE ONLYSECURITY-RELATED INFORMATION On March 14, 2023 (88 FR 15864), the NRC published a final rule Enhanced Weapons, Firearms Background Checks, and Security Event Notifications (EWR). This final rule became effective April 13, 2023, with a compliance date of January 8, 2024. The final rule amended portions of 10 CFR Part 73, including the following:

The requirements for physical security event notifications, and the categories of physical security events and the timeframes by which the licensee must notify the NRC of these events, are set forth in 10 CFR 73.1200(c) through (h).

The requirements for how licensees submit written follow-up reports following a licensees telephonic notification of a physical security event under 10 CFR 73.1200 are set forth in 10 CFR 73.1205(a) through (e).

The requirements for recordkeeping of less significant physical security events and conditions adverse to security are set forth in 10 CFR 73.1210(a) through (h).

The requirements for how licensees report suspicious activity to the NRC and other federal agencies within a specified time are set forth in 10 CFR 73.1215(a) through (f).

As part of the EWR final rule, the NRC added the definition for Contraband to 10 CFR 73.2, Definitions, to help clarify the physical event notification requirements.

Summary of GEHs Basis for the Requested Exemption GEH requested an exemption for the VNC from the requirements in Subpart T of the EWR final rule, as described above, that would defer GEHs compliance with those provisions until December 31, 2024, or 180 days after publication of final regulatory guides (RGs), whichever is later. GEH also requested exemption for the VNC from using the new definition for the term Contraband until the later of December 31, 2024, or 180 days after the NRCs publication of the final RGs. GEH also provided examples of where additional clarification is needed to resolve inconsistencies and ambiguities in the final rule and supporting guidance to support.

GEH requested exemption from these requirements for the VNC because of what it asserts are ambiguities and conflict created by the final rule language and the existing guidance. In support of the exemption request, GEH identified the following issues, among others, as ones that challenge its implementation for the VNC of the new Subpart T, and certain new definitions in 10 CFR 73.2:

GEH stated that the final rule at 10 CFR 73.1200(c)(1)(i)(B) requires a report of significant damage to a facility storing or disposing of spent nuclear fuel and/or high-level waste.

However, RG 5.62, Physical Security Event Notifications, Reports, and Records, Revision 2, applicability section on pages 10 and 11 lists only hot cell facilities, independent spent fuel storage installations, monitored retrievable storage installations, and geological repository operations areas.

GEH stated that the term procedure important to safety found in 10 CFR 73.1205(c)(3)(viii) and RG 5.62, Revision 2, Section B, Discussion, page 17 is undefined and ambiguous.

C. Martinez OFFICIAL USE ONLYSECURITY-RELATED INFORMATION OFFICIAL USE ONLYSECURITY-RELATED INFORMATION GEH stated that the final rule at 10 CFR 73.1215(c)(3)(iv) and (c)(5)(ii) both require licensees to report suspicious aircraft activity to the local Federal Aviation Administration (FAA) control tower. However, RG 5.87. Revision 0, Suspicious Activity Reports Under 10 CFR Part 73, Appendix A, Section A-2.1 recommends different FAA contacts which are not the local FAA control tower. GEH stated that there needs to be clarification from the NRC in order for VNC to successfully implement the requirements.

GEH stated that the final rule at 10 CFR 73.2(a) defines contraband as unauthorized firearms, explosives, incendiaries, or other dangerous materials (e.g., disease causing agents). It goes on to state contraband items are banned from a licensee's protected area, vital area, materials access area and controlled access area. However, RG 5.62, Revision 2, section C, Staff Regulatory Guidance, item 6, Considerations for Contraband and Prohibited Items, only lists a licensee's protected area, vital area, or material access area, but not controlled access area.

GEH stated that the new definition of Contraband in 10 CFR 73.2(a) is ambiguous and RG 5.62, Revision 2 does not include a discussion or clarification on what constitutes "other dangerous materials" or "disease causing agents." The application of the expanded definition may require changes to its methods of compliance with the requirements for identifying Contraband.

GEH further asserted that due to these concerns it is not clear what it must do to implement certain rule requirements and bring the VNC into full compliance with the rule. GEH stated that requiring it to come into compliance without full clarity on key parts of the rule would require it to make changes to its PSP and processes for the VNC twice - once to come into compliance with its own interpretation of the final rule (without the benefit of the revised guidance currently in development by NRC staff), and again when the revised NRC guidance addressing the identified ambiguities and inconsistencies is issued.

GEH stated the ambiguities in the final rule and inconsistencies created by supporting guidance unnecessarily create the potential for confusion and human performance error during the final rule implementation.

GEH discussed that if the exemption is granted, it will continue to comply with the security event reporting requirements for the VNC as they existed prior to March 2023, consistent with its current NRC-approved PSP and its site security procedures. Additionally, it will continue to use the definitions for the terms Contraband embodied in the VNC site PSP. Consistent with the current VNC site PSP, GEH will also implement the requirements for reporting the suspension of security measures that were in the (now reserved) 10 CFR 73.71 prior to March 2023. GEH will continue to implement the requirements in its VNC site PSP as currently reviewed and approved by the NRC. Finally, GEH has stated as part of its basis for justifying the exemption that it agrees to continue making voluntary reports of suspicious activities pending clarification of the EWR final rule.

NRC Staff Evaluation of the Exemption Request Pursuant to 10 CFR 73.5, Specific exemptions, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR Part 73, when the exemptions are authorized by law, will not endanger life or property or the common defense and security, and are otherwise in the public interest.

C. Martinez OFFICIAL USE ONLYSECURITY-RELATED INFORMATION OFFICIAL USE ONLYSECURITY-RELATED INFORMATION GEH has advanced several bases in support of the exemption request. For example, GEH, in its request, has identified certain examples in 10 CFR 73.1200(c) through (h), 10 CFR 73.1210(a) through (h), and 10 CFR 73.2(a) to support the technical basis for an exemption from the provisions of these requirements. GEH has not identified any specific ambiguities and inconsistencies with respect to 10 CFR 73.1205(a) through (e) and 10 CFR 73.1215(a) through (f). The various reporting and event notification requirements in Subpart T and the definition in 10 CFR 73.2(a) for which GEH seeks an exemption constitute an integrated framework for reporting and documenting security events, an approach which is both risk-informed and graded. Although GEH has identified only a small number of ambiguities or inconsistencies in 10 CFR 73.1200(c) through (h), 10 CFR 73.1210(a) through (h), and 10 CFR 73.2(a), it asserts that without clarification on how these ambiguities and inconsistencies will be resolved by the NRC, GEH will have to update its security program, including procedures, processes, and training, to incorporate its understanding of what is required to come into compliance with the rule. GEH further asserts that once the NRC has implemented revisions to the rule and guidance to address these ambiguities and inconsistencies, GEH will again have to revise its security program to incorporate those clarifications to ensure continued compliance with the rule. This would entail an unduly resource-intensive bifurcation of GEHs otherwise integrated process for coming into compliance with the rule. The updated 10 CFR 73.2(a) definition of Contraband is a foundational and cross-cutting concept for implementing the updated notifications, reports, and recordkeeping requirements of revised 10 CFR 73.1200(c) through (h), 10 CFR 73.1205(a) through (e), 10 CFR 73.1210(a) through (h), 10 CFR 73.1215(a) through (f). Accordingly, the exemption would enable GEH to efficiently consolidate into a single, systematic, process what would otherwise involve partial duplication of efforts to come into compliance with the rule. While not relying on all of GEHs claims in support of the exemption request, and considering that the issuance of the targeted clarifications to the identified regulatory guidance is well underway, the NRC staff agrees with GEH that the requested exemption would avoid unnecessary resource burden and facilitate the effective and efficient implementation of the rule.

The NRC staff agrees that the requested duration for the exemption is appropriate for the licensee to review the revised NRC staff guidance, revise procedures, and to provide training to site personnel that implement the new graded approach for reporting and documenting security events and activities to the NRC and other federal agencies.

During the requested duration for the exemption, GEH will instead continue to implement its existing NRC-approved security plan for the VNC, which implements the NRCs security event reporting requirements that existed prior to the publication of the EWR final rule, and GEH will also continue making voluntary suspicious activity reports. Because of these actions by the licensee, the NRC staff agrees that GEHs measures, implemented until the later of December 31, 2024, or 180 days after the NRCs publication of the final RGs, will continue to provide adequate protection of the site. The NRC staff notes that the proposed Revision 3 to RG 5.62 was published for public comment as Draft Regulatory Guide (DG)-5080, Physical Security Event Notifications, Reports and Records, on October 27, 2023 (88 FR 73767), and proposed Revision 1 to RG 5.87 was published for public comment as DG-5082, Suspicious Activity Reports, on October 27, 2023 (88 FR 73769). For these reasons, and as documented in the findings below, the NRC staff has determined that granting the exemption is appropriate.

The NRC staff has reviewed the exemption request and finds that granting the proposed exemption will not result in a violation of the Atomic Energy Act of 1954, as amended, or other laws. Therefore, in accordance with 10 CFR 73.5, the NRC staff finds that the exemption is authorized by law.

C. Martinez OFFICIAL USE ONLYSECURITY-RELATED INFORMATION OFFICIAL USE ONLYSECURITY-RELATED INFORMATION As stated in its request, GEH will maintain a security posture that continues to ensure safety and security at the VNC through the implementation of its current NRC-approved physical protection program using the reporting and recordkeeping requirements that existed prior to the publication of the EWR final rule and its continued voluntary reporting of suspicious activity. The NRC staff agree that these actions temporarily meet the intent of the specified subset of 10 CFR Part 73. Therefore, in accordance with 10 CFR 73.5, the NRC staff finds that granting the proposed exemption will not endanger life or property or the common defense and security.

Finally, based on the identified inconsistencies and ambiguities in the rule text and regulatory guidance discussed above, the NRC staff has determined that temporarily delaying compliance with the specified subset of Part 73 requirements will reduce unnecessary burden on site personnel and resources, while still facilitating the effective implementation of the EWR final rule. Therefore, the NRC staff finds that granting the proposed exemption is in the public interest.

Environmental Considerations The NRCs approval of the exemption to security requirements belongs to a category of actions that the Commission, by rule or regulation, has declared to be a categorical exclusion, after first finding that the category of actions does not individually or cumulatively have a significant effect on the human environment. Specifically, the exemption is categorically excluded from further analysis under 10 CFR 51.22, Criterion for categorical exclusion; identification of licensing and regulatory actions eligible for categorical exclusion or otherwise not requiring environmental review, paragraph (c)(25).

Under 10 CFR 51.22(c)(25), the granting of an exemption from the requirements of any regulation of 10 CFR Part 1, Statement of Organization and General Information, is a categorical exclusion provided that (i) there is no significant hazards consideration; (ii) there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite; (iii) there is no significant increase in individual or cumulative public or occupational radiation exposure; (iv) there is no significant construction impact; (v) there is no significant increase in the potential for or consequences from radiological accidents; and (vi) the requirements from which an exemption is sought involve: recordkeeping requirements; reporting requirements; inspection or surveillance requirements; equipment servicing or maintenance scheduling requirements; education, training, experience, qualification, requalification or other employment suitability requirements; safeguard plans, and materials control and accounting inventory scheduling requirements; scheduling requirements; surety, insurance or indemnity requirements; or other requirements of an administrative, managerial, or organizational nature.

The NRC staff has determined that the granting of the exemption request involves no significant hazards consideration because deferred compliance for the specific requirements described in the licensees submittal, as supplemented, does not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The exempted security regulations are unrelated to any operational restriction. Accordingly, there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite, and no significant increase in individual or cumulative public or occupational radiation exposure. The exempted regulations are not associated with construction, so there is no significant construction impact.

The exempted regulations do not concern the source term (i.e., potential amount of radiation in an accident) nor mitigation. Thus, there is no significant increase in the potential for, or

C. Martinez OFFICIAL USE ONLYSECURITY-RELATED INFORMATION OFFICIAL USE ONLYSECURITY-RELATED INFORMATION consequences of, a radiological accident. The requirements of 10 CFR 73.2, 10 CFR 73.1200(c) through (h), 10 CFR 73.1205(a) through (e), 10 CFR 73.1210(a) through (h),

10 CFR 73.1215(a) through (f), involve recordkeeping requirements, reporting requirements, safeguard plans, and other requirements of an administrative, managerial, or organizational nature.

Therefore, pursuant to 10 CFR 51.22(b) and (c)(25), no environmental impact statement or environmental assessment need be prepared in connection with the approval of this exemption request.

Conclusion Accordingly, the NRC staff has determined that pursuant to 10 CFR 73.5, the exemption is authorized by law, will not endanger life or property or the common defense and security, and is otherwise in the public interest. Therefore, the NRC hereby grants the licensees request for exemption from the requirements of 10 CFR 73.1200(c) through (h), 10 CFR 73.1205(a) through (e), 10 CFR 73.1210(a) through (h), 10 CFR 73.1215(a) through (f), and the definition of Contraband in 10 CFR 73.2.

This exemption will apply to both the Nuclear Test Reactor and to the Hillside storage facility subject to SNM-960 at VNC. The exemption is effective from the date of this letter, through December 31, 2024, or 180 days after publication of the final RGs (specifically, RG 5.62, Revision 3 and RG 5.87, Revision 1), whichever is later. With respect to the Hillside storage facility, the exemption will be implemented through a license amendment to the 10 CFR Part 70 SNM-960 license by incorporating the following safeguards conditions documenting the exemptions:

SG-1.2: Notwithstanding the definitions in 10 CFR 73.2, the licensee is exempt from the definition of Contraband until December 31, 2024, or 180 days after publication of final supporting guidance in Regulatory Guide 5.62, Physical Security Event Notifications, Reports, and Records, Revision 3, and Regulatory Guide 5.87, Suspicious Activity Reports Under 10 CFR Part 73, Revision 1, whichever is later.

SG-1.3: Notwithstanding the requirements in 10 CFR 73.1200, Notification of physical security events, paragraphs (c) through (h), the licensee is exempt from compliance with these requirements until December 31, 2024, or 180 days after publication of final supporting guidance in Regulatory Guide 5.62, Physical Security Event Notifications, Reports, and Records, Revision 3, and Regulatory Guide 5.87, Suspicious Activity Reports Under 10 CFR Part 73, Revision 1, whichever is later.

SG-1.4: Notwithstanding the requirements in 10 CFR 73.1205, Written follow-up reports of physical security events, paragraphs (a) through (e), the licensee is exempt from compliance with these requirements until December 31, 2024, or 180 days after publication of final supporting guidance in Regulatory Guide 5.62, Physical Security Event Notifications, Reports, and Records, Revision 3, and Regulatory Guide 5.87, Suspicious Activity Reports Under 10 CFR Part 73, Revision 1, whichever is later.

C. Martinez OFFICIAL USE ONLYSECURITY-RELATED INFORMATION OFFICIAL USE ONLYSECURITY-RELATED INFORMATION SG-1.5: Notwithstanding the requirements in 10 CFR 73.1210, Recordkeeping of physical security events, paragraphs (a) through (h), the licensee is exempt from compliance with these requirements until December 31, 2024, or 180 days after publication of final supporting guidance in Regulatory Guide 5.62, Physical Security Event Notifications, Reports, and Records, Revision 3, and Regulatory Guide 5.87, Suspicious Activity Reports Under 10 CFR Part 73, Revision 1, whichever is later.

SG-1.6: Notwithstanding the requirements in 10 CFR 73.1215, Suspicious activity reports, paragraphs (a) through (f), the licensee is exempt from compliance with these requirements until December 31, 2024, or 180 days after publication of final supporting guidance in Regulatory Guide 5.62, Physical Security Event Notifications, Reports, and Records, Revision 3, and Regulatory Guide 5.87, Suspicious Activity Reports Under 10 CFR Part 73, Revision 1, whichever is later.

All other conditions of the SNM-960 license shall remain the same. Enclosed are copies of the public and non-public versions of the SNM-960 license.

This action closes all efforts under Enterprise Identification No. L-2024-LLE-0003.

In accordance with 10 CFR Part 2, Agency Rules of Practice and Procedure, a copy of this letter will be available electronically for public inspection in the NRC Public Document Room (PDR) or from the Publicly Available Records component of the NRCs ADAMS. ADAMS is accessible from the NRCs website at http://www.nrc.gov/reading-rm/adams.html. The PDR is open by appointment. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8 a.m. and 4 p.m.

eastern time, Monday through Friday, except Federal holidays. Non-public documents will be withheld from the public.

C. Martinez OFFICIAL USE ONLYSECURITY-RELATED INFORMATION OFFICIAL USE ONLYSECURITY-RELATED INFORMATION If you have any questions regarding this matter, please contact Andrew Miller at (301) 415-1080, or via email to Andrew.Miller@nrc.gov.

Sincerely, Mohamed K. Shams, Director Division of Advanced Reactors and Non-Power Production and Utilization Facilities Office of Nuclear Reactor Regulation Docket Nos. 50-73 and 70-754 License Nos. R-33 and SNM-960

Enclosures:

1. Amendment 4 of Special Nuclear Materials License SNM-960 (Public Version)

2. Amendment 4 of Special Nuclear Materials License SNM-960 (Non-Public Version)

3. Guidelines for Decontamination of Facilities and Equipment Prior to Release for Unrestricted Use or Termination of Licenses for Byproduct, Source, or Special Nuclear Material cc: w/o Enclosure 2 via GovDelivery Subscribers Signed by Shams, Mohamed on 04/25/24

C. Martinez OFFICIAL USE ONLYSECURITY-RELATED INFORMATION OFFICIAL USE ONLYSECURITY-RELATED INFORMATION

SUBJECT:

GE-HITACHI NUCLEAR ENERGY AMERICAS, LLC - EXEMPTION FROM SELECT REQUIREMENTS OF TITLE 10 OF THE CODE OF FEDERAL REGULATIONS PART 73 [SECURITY NOTIFICATIONS, REPORTS, AND RECORDKEEPING AND SUSPICIOUS ACTIVITY REPORTING] (ENTERPRISE IDENTIFICATION NUMBER L-2024-LLE-0003 DATED: APRIL 25, 2024 DISTRIBUTION:

PUBLIC MShams, NRR JBorromeo, NRR HCruz, NRR DHardesty, NRR LTran, NRR GWertz, NRR AMiller, NRR TTate, NRR EReed, NRR JCuadrado, NSIR VWilliams, NSIR SAnderson, NMSS JParrott, NMSS SLay, NMSS OSiurano, NMSS RSun, NMSS Accession Nos.: Package ML24101A284 Exemption: ML24039A080 : ML24101A290 : ML24101A318 : ML24102A186 NRR-048 OFFICE NRR/DANU/UNPL/PM NRR/DANU/UNPL/PM NRR/DANU/UNPL/LA NAME AMiller DHardesty NParker DATE 02/15/2024 03/19/2024 04/03/2024 OFFICE NRR/DANU/UARP/SS NRR/DANU/UNPL/ABC NRR/DANU/UNPO/BC NAME EReed HCruz TTate DATE 04/04/2024 04/08/2024 04/09/2024 OFFICE NMSS/DFM/FFLB/BC NMSS/DUWP/RDB/BC NSIR/DPCP/MSB/BC NAME SLav SAnderson JCuadrado DATE 04/12/2024 04/08/2024 04/04/2024 OFFICE NMSS/REFS/EPMB2/BC OGC NMSS/DFM/FFLB/BC NAME RSun NStAmour SLav DATE 04/12/2024 04/22/2024 04/24/2024 OFFICE NRR/DANU/D NAME MShams DATE 04/25/2024 OFFICIAL RECORD COPY