[Federal Register Volume 75, Number 62 (Thursday, April 1, 2010)]
[Notices]
[Pages 16523-16524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7378]


-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION

[Docket No. 50-346; NRC-2010-0125]


FirstEnergy Nuclear Operating Company; Davis-Besse Nuclear Power 
Station; Exemption

1.0 Background

    FirstEnergy Nuclear Operating Company (FENOC, the licensee) is the 
holder of Facility Operating License No. NFP-3, which authorizes 
operation of the Davis-Besse Nuclear Power Station, Unit 1 (DBNPS). 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 pressurized-water reactor located in 
Ottawa County, Ohio.

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, 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 one of these new 
requirements that DBNPS now seeks an exemption from the March 31, 2010, 
implementation date. All other physical security requirements 
established by this recent rulemaking have already been or will be 
implemented by the licensee by March 31, 2010.
    By letter dated November 30, 2009, as supplemented by letter dated 
December 23, 2009, the licensee requested an exemption in accordance 
with 10 CFR 73.5, ``Specific exemptions.'' The licensee's November 30, 
2009, letter contains proprietary and safeguards information and, 
accordingly, is not available to the public. The licensee has requested 
an exemption from the March 31, 2010, compliance date stating that it 
must complete a significant modification to the current site security 
configuration before all requirements can be met. Specifically, the 
request is for one specific requirement from the current March 31, 
2010, deadline, to February 3, 2011. Being granted this exemption for 
the one item would allow the licensee to complete the modification and 
incorporate state-of-the-art technology to meet or exceed regulatory 
requirements.

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.
    The approval of this exemption, as noted above, would allow an 
extension from March 31, 2010, until February 03, 2011, for one 
specified area 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 rule Power Reactor Security 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 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). 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.

Davis-Besse Nuclear Power Station Schedule Exemption Request

    The licensee provided detailed information in the enclosure of its 
November 30, 2009, letter requesting an exemption. Enclosure 1 contains 
proprietary information (not publically available, contains security-
related information) regarding the site security plan, details of 
specific portions of the regulation for which the site cannot be in 
compliance by the March 31, 2010, deadline and why, the required 
changes to the site's security configuration, and a timeline with 
critical path activities that would ensure the licensee to achieve full 
compliance by February 3, 2011. The timeline provides dates indicating 
when (1) Construction will begin on various phases of the project, (2) 
outages are scheduled for the unit, and (3) critical equipment will be 
ordered, installed, tested and become operational.
    Notwithstanding the schedule exemption for this specific 
requirement, the licensee 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 February 3, 2011 DBNPS will be in full compliance with all 
the regulatory requirements of 10 CFR 73.55, as issued on March 27, 
2009.

4.0 Conclusion for Part 73 Schedule Exemption Request

    The staff has reviewed the licensee's submittals and concludes that 
the

[[Page 16524]]

licensee has provided adequate justification for its request for an 
extension of the compliance date with regard to the one specified 
requirement of 10 CFR 73.55 to February 3, 2011.
    Accordingly, the Commission has determined that pursuant to10 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 the common defense and security, and is otherwise in the 
public interest.
    The NRC staff has determined that the long-term benefits that will 
be realized when the DBNPS equipment installation is complete, 
justifies extending the full compliance date with regard to the 
specified requirement of 10 CFR 73.55. The security measures DBNPS 
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 required by the security orders issued in response to the events 
of September 11, 2001. Therefore, the NRC concluded 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 March 31, 2010, deadline for the one item 
specified in the enclosure of FENOC letter dated November 30, 2009, the 
licensee is required to be in full compliance by February 3, 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.
    Pursuant to 10 CFR 51.32, ``Finding of no significant impact,'' the 
Commission has previously determined that the granting of this 
exemption will not have a significant effect on the quality of the 
human environment (75 FR 14635).
    This exemption is effective upon issuance.

    Dated at Rockville, Maryland, this 26th day of March 2010.

    For the Nuclear Regulatory Commission.
Joseph G. Giitter,
Director, Division of Operating Reactor Licensing, Office of Nuclear 
Reactor Regulation.
[FR Doc. 2010-7378 Filed 3-31-10; 8:45 am]
BILLING CODE 7590-01-P