[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Notices]
[Pages 63671-63672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26466]



[[Page 63671]]

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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-285; NRC-2010-0087]


Omaha Public Power District, Fort Calhoun Station, Unit 1; 
Exemption

1.0 Background

    Omaha Public Power District (OPPD or the licensee) is the holder of 
Facility Operating License No. DPR-40 which authorizes operation of the 
Fort Calhoun Station, Unit 1 (FCS). 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 or the 
Commission) now or hereafter in effect.
    The facility consists of one pressurized-water reactor located in 
Washington County, Nebraska.

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 on 
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 in the Federal Register 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 three of these new requirements that OPPD 
originally sought an exemption from the March 31, 2010, implementation 
date. All other physical security requirements established by this 
recent rulemaking have been implemented by the licensee.
    By letter dated December 31, 2009, as supplemented by letter dated 
January 21, 2010, the licensee requested an exemption in accordance 
with 10 CFR 73.5, ``Specific exemptions.'' Portions of the licensee's 
letters dated December 31, 2009, and January 21, 2010, contain 
sensitive unclassified non-safeguards information (SUNSI) (security-
related) and, accordingly, those portions are being withheld from 
public disclosure. Publicly available versions of the licensee's 
letters dated December 31, 2009, and January 21, 2010 are available in 
the Agencywide Documents Management and Access System (ADAMS) at 
Accession Nos. ML100050032 and ML100810124, respectively. By letter 
dated March 23, 2010 (ADAMS Accession No. ML100630447), the NRC granted 
a previous exemption to OPPD for specific items subject to the revised 
rule in 10 CFR 73.55, allowing the implementation to be deferred until 
October 5, 2011.
    Subsequent to issuance of the scheduler exemption and prior to 
completion of the planned physical protection program upgrades, FCS 
experienced sustained flooding conditions beginning in the spring and 
continuing through the summer of 2011. These abnormal flooding 
conditions required the cessation of all work needed to complete the 
planned physical protection program upgrades at FCS and necessitated 
the diversion of all available resources to perform essential emergency 
operations and other compensatory measures. These actions are deemed 
necessary 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.
    By letter dated September 2, 2011, the licensee submitted a request 
for a schedular exemption to the compliance date identified in 10 CFR 
73.55(a)(1) to implement two of the original three requirements stated 
in 10 CFR part 73 for FCS. Portions of the September 2, 2011, letter 
contain SUNSI (security-related) and, accordingly, those portions are 
withheld from public disclosure. A redacted version of the licensee's 
letter dated September 2, 2011, is available in ADAMS Accession No. 
ML11250A059. In its letter dated September 2, 2011, the licensee stated 
that FCS will complete one of the projects by October 5, 2011, and the 
new requested compliance date for the remaining two requirements is 
November 5, 2013.
    By e-mail dated September 28, 2011, the NRC staff requested 
additional information from the licensee. The NRC request contained 
SUNSI (security-related) and, accordingly, is withheld from public 
disclosure. By letter dated September 30, 2011, the licensee responded 
to the NRC request for additional information. Portions of the 
licensee's letter dated September 30, 2011, contain SUNSI (security-
related) and, accordingly, those portions are withheld from public 
disclosure. A redacted version of the licensee's letter dated September 
30, 2011, is available in ADAMS Accession No. ML112760629. In its 
letter dated September 30, 2011, FCS stated that interim security 
measures can be, and will be taken to achieve compliance with one of 
the remaining two requirements that were addressed in its letter dated 
September 2, 2011, leaving only one requirement for which compliance 
cannot be met. Therefore, the licensee requested a schedular exemption 
for one requirement until November 5, 2013. Granting this exemption for 
extending the implementation date for the one remaining item would 
allow the licensee to complete the modifications for a more 
conservative approach for achieving full compliance.

3.0 Discussion of Part 73 Schedule Exemptions From the October 5, 2011, 
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 73.55(b)(1), ``the 
licensee shall establish and maintain a physical protection program, 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.'' 
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 this exemption, as noted above, would allow an 
extension from October 5, 2011, until November 5, 2013, of the 
implementation date for one specific requirement 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 will 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.

[[Page 63672]]

    In the draft final rule sent 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 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 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 as documented in the letter from R. W. Borchardt (NRC) to M. S. 
Fertel (Nuclear Energy Institute) dated June 4, 2009. The licensee's 
request for an exemption is, therefore, consistent with the approach 
set forth by the Commission and discussed in the NRC letter dated June 
4, 2009.

FCS Schedule Exemption Request

    The licensee provided detailed information in the enclosure/
attachment to its letters dated September 2 and 30, 2011, requesting an 
exemption. The licensee is requesting additional time to implement one 
specific requirement of the new rule due to sustained abnormal flooding 
conditions throughout the spring and summer of 2011. The flooding 
conditions required the cessation of all work needed to complete the 
planned enhancements to FCS's physical protection program and 
necessitated diversion of all available resources to perform essential 
emergency operations and other compensatory measures. The length of the 
extension is due to flood damage and the amount of engineering and 
design, material procurement, and construction and installation 
activities involved, while allowing for inclement weather. The 
licensee's submittals describe a comprehensive plan to upgrade the 
security capabilities of the FCS site and provide a timeline for 
achieving full compliance with the new regulation. The enclosure/
attachment to the licensee's letters contain SUNSI (security-related) 
regarding the site security plan, details of the specific requirement 
of the regulation that the site cannot be in compliance with by the 
October 5, 2011 deadline, and a timeline with critical path activities 
that will bring the licensee into full compliance by November 5, 2013. 
The timeline provides milestone dates for engineering, planning and 
procurement, implementation, startup and testing, engineering closeout, 
and project closeout. Redacted versions of the licensee's letters dated 
September 2 and 30, 2011, including the enclosure/attachment, are 
publicly available at ADAMS Accession Nos. ML11250A059 and ML112760629, 
respectively.
    Notwithstanding the schedular exemptions for this limited 
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 November 5, 2013, FCS 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 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 with regard to one specified 
requirement of 10 CFR 73.55 until November 5, 2013.
    Accordingly, the Commission has determined that pursuant to 10 CFR 
73.5, ``Specific exemptions,'' exemption from the October 5, 2011, 
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 
exemption.
    The NRC staff has determined that the long-term benefits that will 
be realized when the FCS security modifications are complete justifies 
exceeding the full compliance date with regard to the specified 
requirements of 10 CFR 73.55. 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 October 5, 2011, deadline for the one item 
specified in the enclosure/attachment to FCS's letters dated September 
2 and 30, 2011, the licensee is required to be in full compliance with 
10 CFR 73.55 by November 5, 2013. 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 (January 3, 2011; 76 FR 187).
    This exemption is effective upon issuance.

    Dated at Rockville, Maryland, this 5th day of October 2011.

    For the Nuclear Regulatory Commission.
Michele G. Evans,
Director, Division of Operating Reactor Licensing, Office of Nuclear 
Reactor Regulation.
[FR Doc. 2011-26466 Filed 10-12-11; 8:45 am]
BILLING CODE 7590-01-P