[Federal Register Volume 75, Number 63 (Friday, April 2, 2010)]
[Pages 16872-16874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7466]



[Docket Nos. 50-003, 50-247 and 50-286; NRC-2010-0137]

Indian Point Nuclear Generating Unit Nos. 1, 2, and 3; Exemption

1.0 Background

    Entergy Nuclear Operations, Inc. (the licensee) is the holder of 
Facility Operating License Nos. DPR-5, DPR-26, and DPR-64, which 
authorize operation of the Indian Point Nuclear Generating Unit Nos. 1, 
2, and 3 (IP1, IP2, and IP3). The licenses provide, among other things, 
that the facilities are subject to all rules, regulations, and orders 
of the Nuclear Regulatory Commission (NRC, the Commission) now or 
hereafter in effect.
    The facilities consist of one permanently shut down reactor and two 
operating pressurized-water reactors located in Westchester County in 
New York State.

2.0 Request/Action

    Title 10 of the Code of Federal Regulations (10 CFR) Part 73, 
``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,

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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 four of these new requirements that IP1, IP2, and IP3 now seek 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, 
    By letter dated January 28, 2010, as supplemented by letter dated 
March 8, 2010, the licensee requested an exemption in accordance with 
10 CFR 73.5, ``Specific exemptions.'' Portions of the licensee's letter 
dated January 28, 2010, contain security-related information and, 
accordingly, are withheld from public disclosure in accordance with 10 
CFR 2.390(d)(1). The licensee's supplemental letter dated March 8, 
2010, is withheld in its entirety as security-related information in 
accordance with 10 CFR 2.390(d)(1). The licensee has requested an 
exemption from the March 31, 2010, compliance date stating that due to 
design, procurement, and installation activities, and in consideration 
of impediments to construction such as winter weather conditions and 
equipment delivery schedules, completion of some of the activities to 
facilitate compliance with 10 CFR 73.55 will require additional time 
beyond March 31, 2010, before all requirements can be met. 
Specifically, the request is to extend the compliance date for four 
specific requirements from the current March 31, 2010, deadline to 
February 17, 2011. Being granted this exemption for the four items 
would allow the licensee to complete the modifications designed to meet 
the new 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.
    This exemption would, as noted above, allow an extension of 
compliance with the new rule from March 31, 2010, until February 17, 
2011, in four specific areas. 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 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 reach 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 requirements of the rule, 
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 request to generically 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.

IP1, IP2, and IP3 Schedule Exemption Request

    The licensee provided detailed information in a letter dated 
January 28, 2010, requesting an exemption, as supplemented by letter 
dated March 8, 2010. It describes a comprehensive plan to improve 
certain physical security measures, and provides a timeline for 
achieving full compliance with the new regulation. The licensee's 
letter dated January 28, 2010, as supplemented by letter dated March 8, 
2010, contains (1) security-related information regarding the site 
security plan, (2) details of specific portions of the regulation for 
which the site cannot be in compliance by the March 31, 2010, deadline 
and the reasons therefore, (3) the required changes to the site's 
security configuration, and (4) a timeline with critical path 
activities that would enable the licensee to achieve full compliance by 
February 17, 2011. The timeline provides dates indicating when 
construction will begin on various phases of the project and when 
critical equipment will be ordered, installed, tested and become 
    Notwithstanding the scheduler exemptions for these limited 
requirements, 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 17, 2011, IP1, IP2, and IP3 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 NRC staff reviewed the licensee's submittals and concludes that 
the licensee has justified its request for an extension of the 
compliance date with regard to four specific requirements of 10 CFR 
73.55 until February 17, 2011.
    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 the common defense and security, and is otherwise in the 
public interest. Therefore, the Commission hereby grants the requested 
    The NRC staff has determined that the long-term benefits that will 
be realized when the design, procurement, and installation activities 
are complete, justifies extending the full compliance date in the case 
of this particular licensee. The security measures IP1, IP2, and IP3 
need 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 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 
    As per the licensee's request and the NRC's regulatory authority to 
grant an exemption to the March 31, 2010,

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deadline for the four items specified in the licensee's letter dated 
January 28, 2010, as supplemented by letter dated March 8, 2010, the 
licensee is required to be in full compliance by February 17, 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 14639; dated March 26, 2010).
    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. 2010-7466 Filed 4-1-10; 8:45 am]