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VR-SECY-23-0033: Interim Enforcement Policy for Dispositioning 10 CFR Part 37 Violations with Respect to Large Components or Robust Structures Containing Category 1 or Category 2 Quantities of Radioactive Material at Power Reactor Facilitie
	ML24170A398
Person / Time
Issue date:	06/11/2024
From:	David Wright; NRC/OCM
To:	Carrie Safford; NRC/SECY
Shared Package
ML24170A355	List: ML24170A395; ML24170A396; ML24170A397; ML24170A398; ML24170A923;
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	SECY-23-0033 VR-SECY23-0033
	Download: ML24170A398 (17)
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POLICY ISSUE NOTATION VOTE

RESPONSE SHEET

TO: Carrie M. Safford, Secretary

FROM: Commissioner Wright

SUBJECT:

SECY-23-0033 Interim Enforcement Policy for Dispositioning 10 CFR Part 37 Violations with Respect to Large Components or Robust Structures Containing Category 1 or Category 2 Quantities of Radioactive Material at Power Reactor Facilities

Approved X Disapproved Abstain Not Participating

COMMENTS: Below x Attached None

Since 2014, the staff has been using an Enforcement Guidance Memorandum (EGM) to provide enforcement discretion for certain violations of regulations involving large components containing Category 1 or Category 2 quantities of radioactive material, and Category 1 and Category 2 quantities of radioactive material stored in robust structures (EGM-14-001). While the staff continues to work on a rulemaking that could resolve this issue in the long term, I agree with the staffs proposed approach to publish an updated, Commission-approved policy, consistent with the Principles of Good R egulationspecifically Openness, Clarity, and Reliability. Therefore, I approve the staffs proposed interim enforcement policy, subject to the attached edits.

Entered in STAR Signature Yes X No DAW

[7590-01-P]

NUCLEAR REGULATORY COMMISSION

10 CFR Part 37

[NRC-2023-0030]

Interim Enforcement Policy for Dispositioning Violations with Respect to Large

Components or Robust Structures Containing Category 1 or Category 2 Quantities

of Radioactive Material

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statement; issuance.

SUMMARY

The U.S. Nuclear Regulatory Commission (NRC) is issuing an Interim

Enforcement Policy that allows staff to exercise enforcement discretion for certain

violations of regulations involving robust structures containing category 1 or category 2

quantities of radioactive material, or to large components containing category 1 or 2

quantities of radioactive material, provided the licensee meets certain conditions.

DATES: The policy statement is effective on [INSERT DATE OF PUBLICATION IN

THE FEDERAL REGISTER].

ADDRESSES: Please refer to Docket ID NRC-2023-0030 when contacting the NRC

about the availability of information for this action. You may obtain publicly available

information related to this action by any of the following methods:

Enclosure 1 Federal Rulemaking Website: Go to https://www.regulations.gov and

search for Docket ID NRC-2023-0030. Address questions about NRC dockets to Dawn

Forder; telephone: 301-415-3407; email: Dawn.Forder@nrc.gov. For technical

questions, contact the individual listed in the FOR FURTHER INFORMATION

CONTACT section of this document.

NRCs Agencywide Documents Access and Management System

(ADAMS): You may obtain publicly available documents online in the ADAMS Public

Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the

search, select Begin Web-based ADAMS Search. For problems with ADAMS, please

contact the NRCs Public Document Room (PDR) reference staff at 1-800-397-4209, at

301-415-4737, or by email to PDR.Resource@nrc.gov. The Enforcement Policy is

available in the Agencywide Document Access and Management System (ADAMS)

under Accession No. ML22336A179

NRCs PDR: You may examine and purchase copies of public documen ts,

by appointment, at the NRCs PDR, Room P1 B35, One White Flint North, 11555

Rockville Pike, Rockville, Maryland 20852. 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 8:00 a.m. and 4:00 p.m. eastern time, Monday through Friday, except

Federal holidays.

The NRC maintains the Enforcement Policy on its website at

http://www.nrc.gov; select Public Meetings and Involvement, then Enforcement, and

then Enforcement Policy.

FOR FURTHER INFORMATION CONTACT: David Furst, Office of Enforcement; U.S.

Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-287-

9087; email: David.Furst@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On June 15, 2010 (75 FR 33901), the NRC issued the proposed rule P hysical

Protection of Byproduct Material, for an initial public comment period. The agency

subsequently published an extension notice on October 8, 2010 (75 FR 62330), which

extended the public comment period until January 18, 2011.

Several commenters expressed concern about extending applicability for the

proposed rule beyond byproduct material licensees to power reactor licensees.

Specifically, the commenters stated that extending the requirements to large

components or radioactive storage facilities located at power reactor plant sites

appeared unwarranted. Accordingly, they recommended limiting the applicability of the

rule to exclude large components and radioactive storage facilities and developing an

appropriate threshold to exempt single items or items of aggregated quantities of large

volume or weight, such that exemption requests would not be necessary and the

security provisions of part 37 of title 10 of the Code of Federal Regulations (10 CFR)

would not apply.

The NRC agreed, in part, with the commenters and determined that it is

appropriate to include a partial exemption in the regulation instead of treating exemption

requests on a case-by-case basis. The staff added paragraph (c) to § 37.11, Specific

exemptions, to address radioactive waste materials. The provision does require the application of some security measures to waste exempted under § 37.11, but the

majority of 10 CFR part 37 requirements would not apply. Security measures include

the use of continuous physical barriers, alar med locked gates or doors, and assessment

of and response to unauthorized entry. However, as described further below, the

exemption does not cover large components or robust structures containing category 1

or category 2 quantities of radioactive material.

On March 19, 2013 (78 FR 16921), the NRC issued a final rule establishing

10 CFR part 37. The rule establishes physical protection requirements for

licensees in possession of aggregated quantities of category 1 or category 2

radioactive material listed in Appendix A, Category 1 and Category 2 Radioactive

Materials, to 10 CFR part 37. These requirements are similar to those previously

imposed by orders from the NRC and Agreement States after September 11, 2001.

The NRC licensees were required to be in compliance with the rule by March

19, 2014.

On March 13, 2014, before the compliance date for 10 CFR part 37, the NRC

issued Enforcement Guidance Memorandum (EGM)-14-001, Interim Guidance for

Dispositioning 10 CFR Part 37 Violations with Respect to Large Components or Robust

Structures Containing Category 1 or Category 2 Quantities of Material at Power Reactor

Facilities Licensed Under 10 CFR Parts 50 and 52 (RIN 3150-AI12), dated

March 13, 2014 (ML14056A151). This EGM allows the staff to exercise enforcement

discretion with respect to large component s (i.e., steam generators, steam dryers,

turbine rotors, reactor vessels, reactor vessel heads, reactor coolant pumps, and

shielding blocks) containing category 1 or category 2 quantities of radioactive material,

and category 1 and category 2 quantities of radioactive material stored in robust

structures such as a mausoleum (i.e., closed concrete bunker or modular vault, for which

the radioactive materials within can only be accessed using heavy equipment to remove structural components or large access blocks that weigh 2,000 kilograms or more) at

power reactor facilities licensed under 10 CFR part 50 or 10 CFR part 52. The NRC

staff developed and issued EGM-14-001 with input from staff subject matter experts and

licensees, indicating that even with the addition of § 37.11(c), these licensees cannot

reasonably meet the reduced security requirements of § 37.11(c) due to the locations of

these storage facilities and the infrastructure needed.

On June 12, 2014, the Nuclear Energy Institute (NEI) submitted a Petition for

Rulemaking (PRM)-37-1, identifying three issues and requesting that the NRC amend

10 CFR part 37 to clarify and expand current exemptions in § 37.11 for when the

physical protection measures for category 1 and category 2 quantities of radioactive

material do not apply to a power reactor licensee. NEI stated that both licensees and

the NRC have encountered significant problems with § 37.11 that can only practically be

remedied with a rulemaking. Specifically, NEI requested that the NRC revise the

exemptions in § 37.11(b) and (c) and add a new paragraph (d) to address the issues

identified in EGM-14-001. NEI indicated that the exemption in § 37.11(c) only addresses

waste material, and therefore large components and non-waste material stored in robust

structures that present a similar or lower risk for theft or diversion are not exempt from

the 10 CFR part 37 requirements. NEI noted that, as part of the 10 CFR part 37

implementation process, the NRC recogniz ed the low risk associated with large

components and the storage of material in robust structures and issued EGM-14-001 to

provide the appropriate oversight guidance. NEI stated that a rulemaking to codify

EGM-14-001s rationale would recognize the practicalities mitigating the actual risk of

theft or diversion and would avoid the long-term use of enforcement discretion and

case-by-case exemption in this area.

On June 12, 2015 (80 FR 33450), the NRC issued a Federal Register notice

stating that it had reviewed the petition and related public comments and agreed to consider the issue raised in the rulemaking process. In the interim, EGM-14-001 would

address large components and storage of radioactive material in robust structures.

On August 19, 2021, the Commission issued Staff Requirements

COMSECY-21-0010Revision of the Reactor Oversight Process Public Radiation

Safety Significance Determination Process (ML21231A250), in which it approved the

recommendation to update the significance determination process for the Public

Radiation Safety cornerstone of the Reactor Oversight Process to incorporate the

disposition of inspection findings related to 10 CFR part 37. On September 24, 2021,

the NRC issued the updated Inspection Manual Chapter 0609 Appendix D, Public

Radiation Safety Significance Determination Process, to reflect the

Commission-approved changes.

In January 2022, regional management requested that the Office of Enforcement

revise EGM-14-001 to incorporate a few minor editorial changes and to remove the

requirement to bring these enforcement actions to an enforcement panel before allowing

the staff to exercise enforcement discretion under the EGM. Additionally, the staff

considered the potential risks presented by extended reliance on an EGM absent a

clearly defined plan to restore compliance through the regulatory process.

EGM-14-001 has been executed approximately 20 times since its inception and

has been in place longer than originally envisioned, primarily because of the lower

priority of this rulemaking compared to other work and rulemaking activities, including

the Radioactive Source Security and Accountability accelerated rulemaking. The staff is

currently developing a rulemaking plan that would request Commission approval to

initiate a rulemaking that would amend 10 CFR part 37 to address requirements for

unescorted access, notification of legal actions, and coordination with law enforcement

at temporary sites; specify time periods for advance license verifications; and require the

development of implementing procedures asso ciated with the shipment of radioactive materials. This rulemaking would also address the issues raised by NEI in PRM-37-1.

In accordance with the Common Prioritization of Rulemaking, this rulemaking is currently

a medium priority with a score of 16 points because it is a moderate contributor (7 points

out of 20 possible) toward the agencys safety and security goals (Safety Strategies 1, 4,

and 5; Security Strategies 2 and 3), a moderate contributor (3 points out of 5 possible) to

multiple Principles of Good Regulation, a minor contributor (2 points out of 10 possible)

to governmental policy, and a minor contributor (4 points out of 10 possible) to

stakeholder confidence.

II. Discussion

EGMs are intended to provide temporary guidance and are typically put in

place for relatively short periods of time. Pending the active pursuit of the Part 37

rulemaking, it would be appropriate and advantageous to issue an Interim

Enforcement Policy (IEP) to allow continued enforcement discretion until the

underlying technical issue is dispositioned through rulemaking or other regulatory

action. IEPs provide an avenue to establish policy, allowing them to be in place for

longer periods of time than EGMs and providing for increased regulatory clarity

because they are approved by the Commission as a policy matter. IEPs also offer

enhanced openness because they are published in the Federal Register to provide

broad awareness among stakeholders and incorporated in the Enforcement Policy.

This IEP addresses the need and would allow the staff to continue to exercise

enforcement discretion and not issue a notice of violation pending rulemaking or other

appropriate regulatory action.

After a review of how 10 CFR part 37 requirements apply to large components

and category 1 or category 2 quantities of radioactive material stored in robust structures, and after interactions with stakeholders in public meetings, the staff has

determined that enforcement discretion, under certain conditions, is appropriate for

some violations of part 37 at power reactor facilities while rulemaking or appropriate

regulatory action is considered.

For this Interim Enforcement Policy (IEP), a large component is defined as an

item weighing 2,000 kilograms or more but not containing either discrete sources or

ion-exchange resins. In this context, large components typically include steam

generators, steam dryers, turbine rotors, reactor vessels, reactor vessel heads, reactor

coolant pumps, and shielding blocks. Due to their size and weight, these large

components are not easily moved without cranes, rigging, and heavy equipment. In

addition, these large components are not easily concealed during loading or when they

are in motion, and stealing or diverting them would the amount of time required to steal

or divert these large componentsthem would beis such enough time that the NRC can

reasonably it is reasonable to expect that the licensee would detect these activitiessuch

an attempt.

For this IEP, a robust structure is defined as a closed concrete bunker or

modular vault, for which the radioactive materials contained within the structure can

only be accessed using heavy equipment to remove structural components or large

access blocks that weigh 2,000 kilograms or more. Access to these robust structures

requires significant execution time. Typically, routine work activities, observation by

licensees authorized individuals located within or close to these robust structures, or

observation by licensees authorized individuals conducted in accordance with

§ 73.55(i)(5)(ii) requirements, make it likely that licensees would detect actual or

attempted theft and diversion considering the time needed to accomplish these

activities. The definitions of large component and robust structure used in this IEP

are identical to those successfully used for several years under EGM-14-001 and to date are sufficient to address past or future violations until the underlying technical

issue is dispositioned through a rulemaking or other regulatory action.

Under this IEP, the staff will typically exercise enforcement discretion and not

issue a notice of violation pursuant to § 37.11(c)(1) and (2), Specific exemptions, or 10

CFR Part 37 Subpart B, Background Investigations and Access Authorization Program,

Subpart C, Physical Protection Requirements During Use, and Subpart D, Physical

Protection in Transit, except for violations of 10 CFR 37.43(c), General security

program requirements - Training; 10 CFR 37.45, LLEA coordination; 10 CFR

37.49(b), Monitoring, detection, and assessment; 10 CFR 37.49(d), Response;

10 CFR 37.57, Reporting of events; and 10 CFR 37.81, Reporting of events, involving

robust structures containing category 1 or category 2 quantities of radioactive material,

or to large components containing category 1 or 2 quantities of radioactive material.

Discretion will be typically exercised if the licensee meets these conditions: (1)

has identified in writing those large components and robust structures that contain

category 1 or category 2 quantities of radioactive material, for which it is not in

compliance with 10 CFR part 37, (2) has an approved 10 CFR part 73 security plan or a

written 10 CFR part 37 security plan that provides security measures adequate to detect,

assess, and respond to actual or attempted theft or diversion, as well as a written

analysis that considers the time needed to accomplish these activities given the

proximity and mobility of the equipment available for those large components and robust

structures identified above, and (3) has a written analysis documenting that the

measures above do not decrease the effectiveness of the 10 CFR part 73 security plan.

An enforcement panel (i.e., a meeting to align on an enforcement approach for

characterizing and issuing enforcement actions) is not required to disposition a violation

using this discretion; however, each time discretion is granted, an enforcement action

number will be assigned to document the use of discretion under this IEP. This discretion is not limited to the initial inspection identifying the noncompliance and can be

applied to subsequent inspections, provided that all the criteria continue to be met.

Licensees shall comply with all other requirements, as applicable, unless

explicitly replaced or amended through this interim policy.

Licensees are allowed to submit a request for a specific exemption, as described

in § 37.11(a), for material that may not be included in the definitions above. If the

licensee submits such a request for a component weighing 2,000 kilograms or more that

does not contain either discrete sources or ion-exchange resins, or for a structure

sufficiently robust that it would take significant time to access the material inside, and the

request is submitted before the NRC inspec ts the licensees facility, the NRC will

postpone an enforcement decision until the NRC staff completes its review of the

exemption request. If the NRC grants the exem ption request, it will also consider

enforcement discretion for any prior violation remedied by the exemption. If the NRC

denies, or the licensee withdraws, the ex emption request, the NRC will disposition the

violation through the enforcement process.

The NRC will intends to keep this interim policy in place until the underlying

technical issue is dispositioned through rulemaking or other regulatory action.

Accordingly, the NRC has revised its Enforcement Policy to read as follows:

III. Interim NRC Enforcement Policy

9.3 Enforcement Discretion for Physical Protection of Category 1 and Category 2 Quantities

of Radioactive Material (10 CFR Part 37)

This section sets forth the IEP that the NRC will use to exercise enforcement

discretion for certain noncompliances with the requirements of 10 CFR part 37, Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material, involving

large components containing category 1 or category 2 quantities of radioactive material,

or category 1 or category 2 quantities of radioactive material stored in robust structures

at power reactor facilities licensed under 10 CFR part 50, Domestic Licensing of

Production and Utilization Facilities, or 10 CFR part 52, Licenses, Certifications, and

Approvals for Nuclear Power Plants.

For this IEP, a large component is defined as an item weighing 2,000

kilograms or more that does not contain either discrete sources or ion-exchange

resins. In this context, large components typically include steam generators, steam

dryers, turbine rotors, reactor vessels, reactor vessel heads, reactor coolant pumps,

and shielding blocks. Due to their size and weight, these large components are not

easily moved without cranes, rigging, and heavy equipment. In addition, these large

components are not easily concealed during loading or when they are in motion, and

the amount of time required to steal or divert these large components is such that it is

reasonable to expect that the licensee would detect these activities.

For this IEP, a robust structure is defined as a closed concrete bunker or

modular vault for which the radioactive materials contained within the structure can

only be accessed using heavy equipment to remove structural components or large

access blocks weighing 2,000 kilograms or more. Access to these robust structures

requires significant execution time. Typically, routine work activities, observation by

licensees authorized individuals located within or close to these robust structures, or

observation by licensees authorized individuals conducted in accordance with

10 CFR 73.55(i)(5)(ii) requirements make it likely that any actual or attempted theft

and diversion would be detected, considering the time needed to accomplish these

activities. This IEPs definitions of large component and robust structure are

identical to those used successfully for several years under Enforcement Guidance Memorandum (EGM)-14-001, Interim Guidance for Dispositioning 10 CFR Part 37

Violations with Respect to Large Components or Robust Structures Containing

Category 1 or Category 2 Quantities of Material at Power Reactor Facilities Licensed

Under 10 CFR Parts 50 and 52 (RIN 3150-AI12), dated March 13, 2014

(Agencywide Document Access and M anagement System (ADAMS) Accession

No. ML14056A151), and to date have proven sufficient to address past or future

violations until the underlying technical issue is dispositioned through rulemaking or

other regulatory action.

Under this IEP, the NRC will typically exercise enforcement discretion and not

issue a notice of violation pursuant to 10 CFR 37.11(c)(1) and (2), Specific

exemptions, or 10 CFR part 37 Subpart B, Background Investigations and Access

Authorization Program, Subpart C, Physical Protection Requirements During Use,

and Subpart D, Physical Protection in Transit, except for violations of

10 CFR 37.43(c), General security program requirements - Training; 10 CFR 37.45,

LLEA coordination; 10 CFR 37.49(b), Monitoring, detection, and assessment; 10 CFR

37.49(d), Response; 10 CFR 37.57, Reporting of events; and 10 CFR 37.81,

Reporting of events, involving robust structures containing category 1 or category 2

quantities of radioactive material, or to large components containing category 1 or 2

quantities of radioactive material, if the licensee meets the following conditions:

The licensee has identified in writing those large components and robust

structures that contain category 1 or category 2 quantities of radioactive material

for which it is not in compliance with 10 CFR part 37.

The licensee has an approved 10 CFR part 73 security plan or a written

10 CFR part 37 security plan that provides security measures adequate to detect,

assess, and respond to actual or attempted theft or diversion, as well as a written

analysis that considers the time needed to accomplish these activities given the proximity and mobility of the equipment available for those large components and

robust structures identified above.

The licensee has a written analysis documenting that the measures abo ve do not

decrease the effectiveness of the 10 CFR part 73 security plan.

An enforcement panel is not require d to disposition a violation noncompliance

using this discretion; however, each time discretion is granted, an enforcement action

number will be assigned to document the use of discretion under this IEP. This

discretion is not limited to the initial inspection identifying a noncompliance and can be

applied to subsequent inspections, provided that all the criteria continue to be met.

Licensees shall comply with all other requirements, as applicable, unless

explicitly replaced or amended through this interim policy.

Licensees are allowed to submit a request for a specific exemption, as described

in 10 CFR 37.11(a), for material that may not be included in the definitions above. If the