[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