[Federal Register Volume 75, Number 200 (Monday, October 18, 2010)]
[Notices]
[Pages 63867-63868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-26155]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 50-16; NRC-2010-0328
DTE Energy; Enrico Fermi Atomic Power Plant Unit 1, Exemption
From Certain Security Requirements
1.0 Background
DTE Energy (DTE) is the licensee and holder of Facility Operating
License No. DPR-9 issued for Enrico Fermi Atomic Power Plant, Unit 1
(Fermi 1), located in Monroe County, Michigan. Fermi 1 is a permanently
shutdown nuclear reactor facility. The license provides, among other
things, that the licensee is subject to the rules, regulations, and
orders of the U.S. Nuclear Regulatory Commission (NRC or the
Commission) now or hereafter in effect.
Fermi 1 was a fast breeder reactor power plant cooled by sodium and
operated at essentially atmospheric pressure. In November 1972, the
Power Reactor Development Company (PRDC), the licensee at that time,
made the decision to decommission Fermi 1. The fuel and blanket
subassemblies were shipped offsite in 1973. Most of the decommissioning
of the Fermi 1 plant was completed in December 1975. The facility is
permanently shut down and defueled and the licensee is no longer
authorized to operate or place fuel in the reactor. The license for
Fermi 1 expires in 2025.
Fuel for the Fermi 1 reactor was assigned to the project under an
Atomic Energy Commission (AEC) lease agreement. At the time of
decommissioning, consistent with the lease agreement, the AEC agreed to
accept the fuel from Fermi 1 at its Savannah River Project (SRP)
facility. The first shipment of fuel from the site was made on February
6, 1973. On May 15, 1973, the last shipment of fuel arrived at the SRP.
Disposal of all the blanket subassemblies, which contained special
nuclear material (SNM), was accomplished by shipment to the Idaho
Chemical Processing Plant. A letter dated November 6, 1975, from the
PRDC, documented the completed removal from the site of the fuel and
blanket material containing SNM.
By letter dated November 26, 1996, the licensee requested that the
NRC clarify the applicability of certain recently revised NRC
regulations to Fermi 1, including 10 CFR 50.54(p), which addresses the
safeguards contingency plan. In the NRC's response, dated June 25,
1997, the staff determined that the physical protection for Fermi 1 was
adequate without the safeguards contingency plan based on the prior
removal of the SNM from the Fermi 1 site and the non-operational status
of the facility, but the NRC did not specifically grant an exemption
from 10 CFR 50.54(p).
Fermi 1 is currently licensed to possess not more than 15 grams of
uranium-235, uranium-233 or plutonium, or any combination thereof, with
plutonium activity totaling no more than 2 curies. The licensee is
permitted to possess this nominal quantity of SNM due to material that
may remain in plant systems or be associated with radioactive apparatus
or equipment. The 15 gram and 2 curie limit was considered a minimal
quantity and was below the criteria requiring emergency planning,
criticality monitoring, or material status reports per 10 CFR Part 70
and 10 CFR Part 74.
2.0 Action
Section 50.54(p)(1) of Title 10 of the Code of Federal Regulations
states, ``The licensee shall prepare and maintain safeguards
contingency plan procedures in accordance with Appendix C of Part 73 of
this chapter for affecting the actions and decisions contained in the
Responsibility Matrix of the safeguards contingency plan.''
Part 73 of Title 10 of the Code of Federal Regulations, ``Physical
Protection of Plant and Materials,'' provides, ``This part prescribes
requirements for the establishment and maintenance of a physical
protection system which will have capabilities for the protection of
special nuclear material at fixed sites and in transit and of plants in
which special nuclear material is used.'' In Section 73.55, entitled
``Requirements for physical protection of licensed activities in
nuclear power reactors against radiological sabotage,'' paragraph
(b)(1) states, ``The licensee shall establish and maintain a physical
protection program,
[[Page 63868]]
to include a security organization, which will have as its objective to
provide high assurance that activities involving special nuclear
material are not inimical to the common defense and security and do not
constitute an unreasonable risk to the public health and safety.''
The NRC revised 10 CFR 73.55, in part to include the preceding
language, through the issuance of a final rule on March 27, 2009. The
revised regulation stated that it was applicable to all Part 50
licensees. The NRC became aware that many Part 50 licensee's with
facilities in decommissioning status did not recognize the
applicability of this regulation to their facility. Accordingly, the
NRC informed licensees with facilities in decommissioning status and
other stakeholders that the requirements of 10 CFR 73.55 were
applicable to all Part 50 licensees. By letter dated August 4, 2010,
the NRC informed DTE of the applicability of the revised rule and that
it would have to comply with the revised rule or request an exemption.
Subsequent discussions with the licensee indicated that it believed
that the June 25, 1997, letter from the NRC had relieved DTE of the
requirement to implement the security requirements of 10 CFR Parts 50
and 73 due to the removal of SNM from the site. Because the licensee
reasonably and in good faith believed that the staff had relieved DTE
from the SNM security requirements through the June 25, 1997, letter;
the logic and conclusions of the June 25, 1997, letter still apply
today; and the licensee's security programs meet the baseline
requirements of the previous version of Section 73.55 and the
requirements in subsequent security orders; the NRC staff is
considering, upon its own initiative, the issuance of an exemption from
the security requirements of 10 CFR 50.54(p) and 10 CFR Part 73 for
Fermi 1 to clarify the record and avoid further confusion.
3.0 Discussion
Pursuant to 10 CFR 50.12, the Commission may, upon application by
any interested person or upon its own initiative, grant exemptions from
the requirements of 10 CFR Part 50, when (1) the exemptions are
authorized by law, will not present an undue risk to public health or
safety, and are consistent with the common defense and security; and
(2) when special circumstances are present. Special circumstances are
present when application of the regulation in the particular
circumstances would not serve the underlying purpose of the rule and
when compliance would result in costs significantly in excess of those
incurred by others similarly situated. Also, pursuant to 10 CFR 73.5,
``Specific exemptions,'' the Commission may grant exemptions from the
regulations in this part as it determines 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 security requirements of 10 CFR Part 73, as applicable to a 10
CFR Part 50 licensed facility, presume that the purpose of the facility
is to possess and utilize SNM. With the completion of the spent fuel
transfer to the AEC in 1973, there is no longer any SNM located within
the Fermi-1, 10 CFR Part 50 licensed site other than that contained in
plant systems as residual contamination. With the removal of the fuel
and blanket material containing SNM, the potential for radiological
sabotage or diversion of SNM at the 10 CFR Part 50 licensed site was
eliminated. Therefore, the continued application of the 10 CFR Part 73
requirements to the Fermi 1 facility would no longer be necessary to
achieve the underlying purpose of the rule. Additionally, as has been
noted at other decommissioning nuclear power facilities, with the
removal of the spent nuclear fuel and blanket material from the site,
the 10 CFR Part 50 licensed site would be comparable to a source and
byproduct licensee that uses general industrial security (i.e. locks
and barriers) to protect the public health and safety. The continued
application of 10 CFR Part 73 security requirements would cause the
licensee to expend significantly more funds for security requirements
than other source and byproduct facilities. Therefore, compliance with
10 CFR Part 73 would result in costs significantly in excess of those
incurred by others similarly situated. Based on the above, the NRC has
determined that the lack of the fuel and blanket material containing
SNM at the 10 CFR Part 50 licensed site constitutes special
circumstances. The possession and responsibility for the security of
the SNM was transferred to the AEC and is no longer the responsibility
of the licensee. Therefore, protection of the SNM is no longer a
requirement of the licensee's 10 CFR Part 50 license. With no SNM to
protect, there is no need for a safeguards contingency plan or
procedures, physical security plan, guard training and qualification
plan, or cyber security plan for the Fermi-1, 10 CFR Part 50 licensed
site.
4.0 Conclusion
Accordingly, the Commission has determined that, pursuant to 10 CFR
50.12(a), an exemption is authorized by law, will not present an undue
risk to the public health and safety, and is consistent with the common
defense and security based on the continued maintenance of appropriate
security requirements for the SNM. Additionally, special circumstances
are present based on the removal of the spent nuclear fuel and blanket
material from the 10 CFR Part 50 licensed site. Therefore, the
Commission hereby grants DTE an exemption from the requirements of 10
CFR 50.54(p) at Fermi 1.
Accordingly, the Commission has determined that, pursuant to 10 CFR
73.5, an exemption is authorized by law, will not endanger life or
property or the common defense and security, and is otherwise in the
public interest based on the security requirements for the spent fuel
and blanket material containing SNM no longer being the responsibility
of the licensee. Therefore, the Commission hereby grants DTE an
exemption from the physical protection requirements of 10 CFR Part 73
at Fermi 1.
The Commission has determined that this licensing action meets the
categorical exclusion provision in 10 CFR 51.22(c)(25), as this action
is an exemption from the requirements of the commission's regulations
and (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;
(iv) there is no significant increase in the potential for or
consequences from radiological accidents; and (v) the requirements from
which an exemption is sought involve safeguard plans. Therefore, this
action does not require either an environmental assessment or an
environmental impact statement.
These exemptions are effective immediately.
Dated at Rockville, Maryland, October 8, 2010.
For The Nuclear Regulatory Commission.
Keith I. McConnell,
Deputy Director, Decommissioning and Uranium Recovery Licensing
Directorate, Division of Waste Management and Environmental Protection,
Office of Federal and State Materials and Environmental Management
Programs.
[FR Doc. 2010-26155 Filed 10-15-10; 8:45 am]
BILLING CODE 7590-01-P