Detroit Edison Company, Fermi 2; Exemption, 32238-32240 [2011-13808]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 76, Number 107 (Friday, June 3, 2011)]
[Notices]
[Pages 32238-32240]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13808]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-341; NRC-2010-0099]


Detroit Edison Company, Fermi 2; Exemption

1.0 Background

    Detroit Edison Company (the licensee) is the holder of Facility 
Operating License No. NPF-43, which authorizes operation of Fermi 2. 
The license provides, among other things, that the facility is subject 
to all rules, regulations, and orders of the U.S. Nuclear Regulatory 
Commission (NRC, the Commission) now or hereafter in effect.
    The facility consists of one boiling-water reactor located in 
Monroe County, Michigan.

2.0 Request/Action

    Title 10 of the Code of Federal Regulations (10 CFR) part 73, 
``Physical protection of plants and materials,'' Section 73.55, 
``Requirements for physical protection of licensed activities in 
nuclear power reactors against radiological sabotage,'' published March 
27, 2009, effective May 26, 2009, with a full implementation date of 
March 31, 2010, requires licensees to protect, with high assurance, 
against radiological sabotage by designing and implementing 
comprehensive site security programs. The amendments to 10 CFR 73.55 
published on March 27, 2009 (74 FR 13926), establish and update 
generically applicable security requirements similar to those 
previously imposed by Commission orders issued after the terrorist 
attacks of September 11, 2001, and implemented by licensees. In 
addition, the amendments to 10 CFR 73.55 include additional 
requirements to further enhance site security based upon insights 
gained from implementation of the post-September 11, 2001, security 
orders. It is from two of these additional requirements that Fermi 2 
now seeks an exemption from the implementation date. All other physical 
security requirements established by this recent rulemaking have 
already been or will be implemented by the licensee by May 31, 2011.
    By letter dated November 19, 2009 (Agencywide Documents Access and

[[Page 32239]]

Management System (ADAMS) Accession No. ML093270067), as supplemented 
by letter dated December 23, 2009 (ADAMS Accession No. ML100040010), 
the licensee requested an exemption in accordance with 10 CFR 73.5, 
``Specific exemptions.'' The licensee's November 19, 2009, and December 
23, 2009, letters, have certain portions which contain proprietary and 
safeguards information and, accordingly, are not available to the 
public. The licensee requested an exemption from the March 31, 2010, 
compliance date stating that it must complete a number of significant 
modifications to the current site security configuration before all 
requirements can be met. By letter dated March 19, 2010 (ADAMS 
Accession No. ML100350225), the NRC granted an exemption request to 
extend the compliance date for five requirements to May 31, 2011, 
versus the March 31, 2010, deadline. Being granted this exemption for 
the five requirements allowed the licensee to complete the 
modifications designed to update aging equipment and incorporate state-
of-the-art technology to meet or exceed the noted regulatory 
requirements. By letter dated March 23, 2011 (ADAMS Accession No. 
ML111290414), the licensee has now requested an additional exemption 
from the current implementation date of May 31, 2011 to August 31, 2011 
for two of these requirements, due to site-specific weather conditions, 
causing unanticipated delays in construction schedule.

3.0 Discussion of Part 73 Schedule Exemptions From the March 31, 2010, 
Full Implementation Date

    Pursuant to 10 CFR 73.55(a)(1), ``By March 31, 2010, each nuclear 
power reactor licensee, licensed under 10 CFR part 50, shall implement 
the requirements of this section through its Commission-approved 
Physical Security Plan, Training and Qualification Plan, Safeguards 
Contingency Plan, and Cyber Security Plan referred to collectively 
hereafter as ``security plans.'' Pursuant to 10 CFR 73.5, 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, and will not endanger 
life or property or the common defense and security, and are otherwise 
in the public interest.
    NRC approval of exemption, as noted above, would allow an extension 
from May 31, 2011, to August 31, 2011, for the implementation date for 
two specified areas of the new rule. As stated above, 10 CFR 73.5 
allows the NRC to grant exemptions from the requirements of 10 CFR part 
73. The NRC staff has determined that granting of the licensee's 
proposed exemption would not result in a violation of the Atomic Energy 
Act of 1954, as amended, or the Commission's regulations. Therefore, 
the exemption is authorized by law.
    In the draft final power reactor security rule provided to the 
Commission, the NRC staff proposed that the requirements of the new 
regulation be met within 180 days. The Commission directed a change 
from 180 days to approximately 1 year for licensees to fully implement 
the new requirements. This change was incorporated into the final rule. 
From this, it is clear that the Commission wanted to provide a 
reasonable timeframe for licensees to achieve full compliance.
    As noted in the final rule, the Commission also anticipated that 
licensees would have to conduct site-specific analyses to determine 
what changes were necessary to implement the rule's requirements, and 
that any such changes could be accomplished through a variety of 
licensing mechanisms, including exemptions. Since issuance of the final 
rule, the Commission has rejected a generic industry request to extend 
the rule's compliance date for all operating nuclear power plants, but 
noted that the Commission's regulations provide mechanisms for 
individual licensees, with good cause, to apply for relief from the 
compliance date (Reference: June 4, 2009, letter, from R. W. Borchardt, 
NRC, to M. S. Fertel, Nuclear Energy Institute (ADAMS Accession No. 
ML091410309)). The licensee's request for an exemption is therefore 
consistent with the approach set forth by the Commission and discussed 
in the June 4, 2009, letter.

Fermi 2 Schedule Exemption Request

    The licensee provided detailed information in its letter dated 
March 23, 2011 (ADAMS Accession No. ML110840250), requesting an 
exemption. It describes a comprehensive plan which provides a timeline 
for achieving full compliance with the new regulation. Enclosure 1 
contains security related information regarding the site security plan, 
status of security modifications, details of the specific requirements 
of the regulation for which the site cannot be in compliance by the May 
31, 2011, deadline and why, the required changes to the site's security 
configuration, and a timeline with ``critical path'' activities that 
will enable the licensee to achieve full compliance by August 31, 2011. 
The timeline provides dates indicating when (1) Construction began or 
will begin on various phases of the project (i.e., new equipment, 
buildings and fences), and (2) critical equipment will be installed, 
tested and become operational.
    Notwithstanding the schedule exemptions of these limited 
requirements, the licensee indicated that it will continue to be in 
compliance with all other applicable physical security requirements as 
described in 10 CFR 73.55 and reflected in its current NRC-approved 
physical security program. By August 31, 2011, the licensee also stated 
that Fermi 2 will be in full compliance with the regulatory 
requirements of 10 CFR 73.55, as published on March 27, 2009 (76 FR 
13926).

4.0 Environmental Consideration

    This exemption authorizes a scheduler exemption to the compliance 
date identified in 10 CFR 73.55(a)(1) for Fermi 2. The NRC staff 
previously prepared a Programmatic Environmental Assessment and Finding 
of No Significant Impact (76 FR 187) for the treatment of licensee 
exemption requests from the implementation date requirement of 10 CFR 
73.55. Consistent with the referenced analysis, the NRC staff has 
determined that the licensee's request constitutes an administrative 
(timing) change that would not have a significant effect on the quality 
of the human environment.

5.0 Conclusion for Part 73 Schedule Exemption Request

    The NRC staff has reviewed the licensee's submittals and concludes 
that the licensee has provided adequate justification for its request 
for an extension of the compliance date to August 31, 2011, with regard 
to two specified remaining requirements of 10 CFR 73.55. This 
conclusion is based on the staff's determination that Fermi 2 has made 
a good faith effort to meet the requirements in a timely manner, has 
sufficiently described the reasons for the unanticipated delays, and 
has provided an updated detailed schedule with adequate justification 
for the additional time requested for the extension, based on those 
delays and the original scope of work, that staff agrees is needed to 
ensure that the required system capabilities are met.
    Accordingly, the Commission has determined that pursuant to 10 CFR 
73.5, ``Specific exemptions,'' an exemption from the March 31, 2010, 
compliance date is authorized by law and will not endanger life or 
property or

[[Page 32240]]

the common defense and security, and is otherwise in the public 
interest. Therefore, the Commission hereby grants the requested 
exemption. The NRC staff has determined that the long-term benefits 
that will be realized when the Fermi 2 modifications are completed 
justifies exceeding the full compliance date in the case of this 
particular licensee. The security measures Fermi 2 needs additional 
time to implement are new requirements imposed by March 27, 2009, 
amendments to 10 CFR 73.55, and are in addition to those currently 
required by the security orders issued in response to the events of 
September 11, 2001. Therefore, the NRC concludes that the licensee's 
actions are in the best interest of protecting the public health and 
safety through the security changes that will result from granting this 
exemption.
    As per the licensee's request and the NRC's regulatory authority to 
grant an exemption from the May 31, 2011, deadline for the two 
remaining requirements specified in Enclosure 1 of the Detroit Edison 
letter dated March 23, 2011, the licensee is required to be in full 
compliance by August 31, 2011. In achieving compliance, the licensee is 
reminded that it is responsible for determining the appropriate 
licensing mechanism (i.e., 10 CFR 50.54(p) or 10 CFR 50.90) for 
incorporation of all necessary changes to its security plans.
    This exemption is effective upon issuance.

    Dated at Rockville, Maryland, this 23rd day of May, 2011.
    For the Nuclear Regulatory Commission.
Joseph G. Giitter,
Director, Division of Operating Reactor Licensing, Office of Nuclear 
Reactor Regulation.
[FR Doc. 2011-13808 Filed 6-2-11; 8:45 am]
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