[Federal Register Volume 77, Number 215 (Tuesday, November 6, 2012)]
[Notices]
[Pages 66641-66647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27046]


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NUCLEAR REGULATORY COMMISSION

[NRC-2012-0265; Dockets No. 50-003, 50-247, and 50-286; License Nos. 
DPR-5, DPR-26, and DPR-64]


In the Matter of Entergy Nuclear Operations, Inc.; Entergy 
Nuclear Indian Point 2, LLC; Entergy Nuclear Indian Point 3, LLC; 
Indian Point Nuclear Generating, Units 1, 2, and 3; Director's Decision

I. Introduction

    By electronic transmission dated March 28, 2011 (Agencywide 
Documents Access and Management System (ADAMS) Accession No. 
ML110890871), Eric T. Schneiderman, Attorney General for the State of 
New York, the Petitioner, submitted a petition under section 2.206 of 
Title 10 of the Code of Federal Regulations (10 CFR), ``Requests for 
Action under This Subpart,'' to Mr. R. W. Borchardt, Executive Director 
for Operations, U.S. Nuclear Regulatory Commission (NRC, or the 
Commission). The Petitioner requested that the NRC take enforcement 
action to correct alleged noncompliance with fire protection 
regulations at Indian Point Nuclear Generating, Units 1, 2, and 3.

Actions Requested

    The Petitioner asked the NRC to take immediate action and issue an 
Order requiring the following actions regarding Indian Point Nuclear 
Generating, Units 1, 2, and 3:
     Identify the violations of paragraphs F and G of Section 
III of Appendix R, ``Fire Protection Program for Nuclear Power 
Facilities Operating Prior to January 1, 1979,'' to 10 CFR Part 50, 
``Domestic Licensing of Production and Utilization Facilities,'' which 
exist as of the date of the petition (March 28, 2011) at Indian Point 
Units 1, 2, and 3.
     Compel Entergy Nuclear Operations, Inc. (Entergy, or the 
licensee), and its affiliates to comply on or before September 20, 
2011, with the requirements in paragraphs F and G for all fire zones in 
Indian Point Units 2 and 3, and any Indian Point Unit 1 fire zone or 
system, structure, or component that Indian Point Units 2 and 3 rely 
upon.
     Convene an evidentiary hearing before the Commission to 
adjudicate the violation of paragraphs F and G at Indian Point Units 1, 
2, and 3, by Entergy and its affiliates.
    As the basis for the request, the Petitioner stated, in part, the 
following:
     The Petitioner noted that the NRC's fire safety 
regulations found in 10 CFR 50.48(b) and Appendix R to 10 CFR Part 50 
have been in effect since 1980 and the Indian Point reactors still do 
not comply with the prescriptive requirements.
     The Petitioner cited the population centers adjacent to 
the Indian Point facility and the associated consequences of a major 
fire and radiological release at Indian Point. According to the 
Petitioner, more than 17 million people live within 50 miles of the 
Indian Point site, which has the highest surrounding population of any 
operating reactor site in the country. The Petitioner also notes that 
Indian Point is located within 5 miles of the New Croton Reservoir in 
Westchester County, which provides drinking water for New York City.
     The Petitioner noted that Indian Point was built before 
the NRC or its predecessor, the Atomic Energy Commission, developed 
siting criteria. The Petitioner questioned if the

[[Page 66642]]

Commission would approve a reactor facility at this site today.
     The Petitioner opined that approximately half of the core 
damage risk at operating reactors results from accident sequences 
initiating from fires.
     The Petitioner described past investigations on fire 
barriers, specifically Thermo-Lag and Hemyc, by both the NRC's Office 
of the Inspector General and the Government Accountability Office. The 
Petitioner observed that both products failed to meet their endurance 
ratings during extended testing. The Petitioner stated that the NRC 
staff has not been aggressive in resolving fire barrier issues or in 
taking meaningful enforcement action against the Indian Point facility.
     The Petitioner focused on the proposed exemptions to 
Appendix R to 10 CFR Part 50 submitted by the licensee on March 6, 
2009. These exemption requests would require NRC approval of operator 
manual actions (OMAs) in many fire areas at Indian Point. The 
Petitioner stated that NRC regulations do not authorize OMAs as a way 
to protect a redundant system from fire, and it recommended that the 
NRC deny the OMAs.
     The Petitioner referred to the accident at the Fukushima 
Dai-ichi Nuclear Power Plant that resulted from the March 11, 2011, 
Great T[omacr]hoku Earthquake and subsequent tsunami. The Petitioner 
questioned whether plant operators at Indian Point would be capable of 
performing the necessary manual actions during a similar disaster.
     In conclusion, the Petitioner stated that (1) the NRC 
should reserve exemptions for extraordinary circumstances, (2) the NRC 
should not approve the licensee's proposed exemptions, and (3) Entergy 
had not made a serious effort to comply with Federal regulations.
    Representatives of the Petitioner met with the Office of Nuclear 
Reactor Regulation's (NRR's) Petition Review Board (PRB) on May 9, 
2011, to clarify the bases for the petition. The transcript of this 
meeting, included in the meeting summary dated June 8, 2011 (ADAMS 
Accession Nos. ML111520459 and ML111520469), has been added as a 
supplement to the petition and is available for inspection at the NRC's 
Public Document Room (PDR), located at One White Flint North, Room O1-
F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. 
Publicly available documents created or received at the NRC are 
accessible electronically through ADAMS in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. Persons who do not have access to 
ADAMS or who encounter problems in accessing the documents located in 
ADAMS should contact the NRC's PDR reference staff by telephone at 1-
800-397-4209 or 301-415-4737, or by sending an email to 
[email protected].
    In a letter dated June 30, 2011 (ADAMS Accession No. ML111520393), 
the NRC informed the Petitioner that the agency denied the request for 
immediate action. The NRC informed the Petitioner that the agency 
identified no safety concerns when considering compensatory measures in 
place. Therefore, the NRC had no basis for taking immediate actions. 
Finally, the NRC informed the Petitioner that the agency was referring 
the issues in the petition to NRR for appropriate action.
    On July 2, 2012, the NRC issued the proposed Director's Decision 
(ADAMS Accession No. ML120880203) and requested comments from the 
Petitioner (ADAMS Accession No. ML120880169) and Entergy (ADAMS 
Accession No. ML120880186). On August 1, 2012, the NRC received 
comments from both the Petitioner (ADAMS Accession No. ML12222A134) and 
Entergy (ADAMS Accession No. ML12219A307). Additional comments were 
received from the Petitioner by letter dated September 19, 2012 (ADAMS 
Accession No. ML12272A287). The attachment to this final Director's 
Decision addresses these comments. Finally, the NRC modified its 
proposed Director's Decision based on the points raised in the 
comments.

II. Discussion

    Plants licensed to operate before January 1, 1979, must meet the 
fire safety regulations in Section III.G of Appendix R to 10 CFR Part 
50. Indian Point Nuclear Generating Unit 1 was permanently shut down on 
October 31, 1974, and it has remained in safe storage (SAFSTOR) status. 
The NRC does not review Unit 1 for compliance with Appendix R because 
fuel has been permanently removed from the reactor vessel. The NRC's 
program for overseeing the safe operation of a nuclear power reactor 
that has been permanently shut down is described in Inspection Manual 
Chapter 2561, ``Decommissioning Power Reactor Inspection Program.'' On 
January 31, 1996, Amendment No. 45 revised the Indian Point Unit 1 
license to possession-only status and revised the technical 
specifications. Technical Specification 2.11, ``Fire Protection,'' 
states that Units 1 and 2 share a common fire protection program, which 
is addressed in Appendix A to the Indian Point Unit 2 Facility 
Operating License No. DPR-26. Therefore, any system, structure, or 
component located at Unit 1 that supports the fire protection program 
at Unit 2, will be documented in Unit 2 inspection activities.
    The Unit 2 station blackout diesel generator, which also supports 
alternative shutdown capability for Appendix R requirements, is located 
in a Unit 1 structure. However, neither the diesel generator fire zone 
nor any OMAs related to the Unit 2 station blackout diesel generator 
were included in the licensee's request for exemptions. As a result, 
the agency does not consider systems, structures, and components at 
Unit 1 applicable to this petition.
    Indian Point Nuclear Generating, Units 2 and 3, were licensed 
before January 1, 1979, and must meet the established level of 
protection as intended by Section III.G of Appendix R to 10 CFR Part 
50. The NRC reviewed inspection reports issued from January 1, 2010, to 
the present and found that there were no violations of fire protection 
requirements at Indian Point Units 2 and 3, effective on March 28, 
2011, the date of the petition. The Triennial Fire Protection 
Inspection Report at Unit 2 issued on May 7, 2010 (ADAMS Accession No. 
ML101270240), identified two Green (very low safety significance) non-
cited violations (NCVs). The Triennial Fire Protection Inspection for 
Unit 3, issued on July 11, 2011 (ADAMS Accession No. ML111920339), 
identified a Green NCV. Most recently, the inspection report dated 
August 16, 2012 (ADAMS Accession No. ML12229A128), which the Director's 
Decision will discuss further, identified violations at both operating 
units for reliance on unapproved OMAs.
    The underlying purpose of Section III.G of Appendix R to 10 CFR 
part 50 is to ensure that the ability to achieve and maintain safe 
shutdown is preserved following a fire event. Section II of Appendix R 
to 10 CFR part 50 states that a licensee's fire protection program 
shall extend the concept of defense-in-depth to fire protection with 
the following objectives:
     To prevent fires from starting;
     To rapidly detect, control, and promptly extinguish fires 
that do occur; and
     To provide protection for structures, systems, and 
components important-to-safety so that a fire not promptly extinguished 
by the fire suppression activities will not prevent the safe shutdown 
of the plant.
    Paragraph III.G.2 of Appendix R to 10 CFR part 50 requires one of 
the following means to ensure that a

[[Page 66643]]

redundant train of safe-shutdown cables and equipment is free of fire 
damage in instances in which redundant trains are located in the same 
fire area outside of primary containment:
    a. Separation of cables and equipment by a fire barrier having a 3-
hour rating;
    b. Separation of cables and equipment by a horizontal distance of 
more than 20 feet with no intervening combustibles or fire hazards and 
with fire detectors and an automatic fire suppression system installed 
in the fire area; and
    c. Enclosure of cables and equipment of one redundant train in a 
fire barrier having a 1-hour rating and with fire detectors and an 
automatic fire suppression system installed in the fire area.
    However, as a result of safe-shutdown-focused inspections conducted 
in 2000, the NRC identified that, in lieu of the methods specified in 
Paragraph III.G.2, some licensees, including Indian Point, were 
crediting OMAs to achieve and maintain safe shutdown in the event of a 
fire affecting areas in which both trains of a safe-shutdown system or 
component are co-located. On June 30, 2006, the NRC issued Regulatory 
Issue Summary (RIS) 2006-10, ``Regulatory Expectations with Appendix R 
Paragraph III.G.2 Operator Manual Actions,'' (ADAMS Accession No. 
ML061650389), which stated that the use of OMAs in lieu of the 
protection methods specified in Paragraph III.G.2 of Appendix R to 10 
CFR part 50, is not consistent with the regulations and that plants 
need regulatory approval for each specific OMA proposed.
    On June 30, 2007, the NRC issued Enforcement Guidance Memorandum 
(EGM) 07-004, ``Enforcement Discretion for Post-Fire Manual Actions 
Used as Compensatory Measures for Fire Induced Circuit Failures'' 
(ADAMS Accession No. ML071830345). EGM 07-004 established March 6, 
2009, as the date by which licensees must complete corrective actions 
for OMA noncompliances to qualify for enforcement discretion for those 
violations. As per EGM 07-004, available licensee corrective actions 
included submission of exemption requests. In accordance with EGM 07-
004, enforcement discretion continues for the duration of the NRC staff 
review of licensing actions, including exemption requests.
    On March 6, 2009, Entergy submitted requests for exemptions from 
the requirements of Section III.G of Appendix R to 10 CFR Part 50, 
consistent with information provided in Regulatory Issue Summary (RIS) 
2006-10 and EGM 07-004, for Indian Point Nuclear Generating Units 2 and 
3 (ADAMS Accession Nos. ML090770151 and ML090760993). The exemptions 
proposed OMAs as a permanent resolution for credited safe-shutdown 
components that could be rendered incapable of performing their safety 
function if either the component or supporting electrical cables were 
damaged by fire in a fire area. Since EGM 07-004 provided enforcement 
discretion, NRC inspectors did not cite violations for these potential 
noncompliances during the staff's review.
    As previously discussed, the Petitioner focused on the NRC staff 
review of the licensee's proposed exemptions that would rely on OMAs. 
In addition, the Petitioner requested that the NRC identify all 
violations from Sections III.F and III.G of Appendix R to 10 CFR Part 
50. However, the licensee did not request any exemptions from Section 
III.F of Appendix R to 10 CFR part 50. Section III.F requires that fire 
detection systems shall be automatic and capable of operating with or 
without offsite power. The licensee requested exemptions from the safe 
shutdown requirements of Section III.G of Appendix R to 10 CFR Part 50. 
Furthermore, the staff guidance documents (i.e., RIS 2006-10 and EGM 
07-004) only address Section III.G and not III.F. There were no 
violations associated with Section III.F and, as a result, this 
Director's Decision does not address violations with respect to Section 
III.F of Appendix R to 10 CFR part 50.
    In May 2011, NRC regional inspection staff performed an inspection 
at Indian Point in accordance with Inspection Procedure 71111.05T, 
``Fire Protection (Triennial).'' In the ensuing inspection report dated 
July 11, 2011 (ADAMS Accession No. ML111920339), NRC inspectors 
reviewed the licensee's proposed OMAs in accordance with the inspection 
procedure.
    By letters dated February 1, 2012 (ADAMS Accession Nos. ML112140509 
and ML112200442), the NRC completed its review, approving some 
exemption requests but denying others at Indian Point Nuclear 
Generating, Units 2 and 3. By separate letter, also dated February 1, 
2012 (ADAMS Accession No. ML12031A176), the NRC informed the licensee 
that the period of enforcement discretion for noncompliance with NRC 
fire protection requirements ended with the issuance of these letters. 
It also notified the licensee that the OMAs not approved represented 
potential noncompliances with 10 CFR 50.48(b) and Section III.G of 
Appendix R to 10 CFR Part 50, pending completion of inspections by NRC 
Region I inspectors. The NRC directed that, within 30 days, the 
licensee provide its schedule and plans to achieve and verify 
compliance with the requirements of Section III.G of Appendix R to 10 
CFR Part 50, for those areas in which the NRC denied the licensee's 
request for an exemption. The NRC informed the licensee that, following 
receipt and review of the licensee's response, the NRC would complete 
appropriate inspection activities relating to this issue and then 
inform the licensee of its enforcement decisions.
    By letter dated March 1, 2012 (ADAMS Accession No. ML12074A028), 
the licensee provided its schedule and planned actions for completing 
corrective actions that will resolve each issue related to protection 
of redundant safe shutdown trains and thereby comply with the 
applicable requirements of Paragraph III.G.2 of Appendix R to 10 CFR 
part 50, for both Indian Point operating units. Compliance with Section 
III.G of Appendix R to 10 CFR part 50, would be without the use of 
exemptions to justify reliance upon OMAs. The licensee informed the NRC 
that it will accomplish its planned resolution through a combination of 
engineering analysis and plant modifications. The engineering analysis 
will consist of revisions to the respective post-fire safe-shutdown 
analysis and methodology. Plant modifications will involve installation 
of appropriately rated fire barriers, potential rerouting of circuits, 
and potential modification of circuit protection or control schemes. 
The licensee informed the NRC that, with few exceptions, it expects to 
complete all engineering analyses and plant modifications by the end of 
calendar year 2012. Exceptions to projected completion involve plant 
modifications for Indian Point Units 3 and 2, which will not be 
completed until the spring 2013 and 2014 refueling outages, 
respectively, because those modifications involve activities that 
require plant outages to install.
    In a letter dated March 22, 2012 (ADAMS Accession No. ML120820384), 
the NRC responded to the licensee's letter of March 1, 2012. The NRC 
informed the licensee that a near-term inspection would verify that 
plans for achieving full compliance with fire protection regulations 
have been entered into the licensee's corrective action program, 
compensatory measures are appropriate and remain in place, and that the 
schedule for achieving full compliance will adequately assure public 
health and safety. The NRC also advised the licensee that the agency

[[Page 66644]]

would perform additional inspections to monitor progress in completing 
corrective actions.
    In April 2012, NRC inspectors reviewed the ongoing implementation 
of the licensee's corrective actions to restore full compliance with 
Paragraph III.G.2 of Appendix R to 10 CFR part 50 regarding denied 
exemptions to implement OMAs. The inspection report the NRC issued on 
August 16, 2012 (ADAMS Accession No. ML12229A128), cited violations at 
both operating units for use of unapproved OMAs to mitigate safe 
shutdown equipment malfunctions caused by a fire-induced single 
spurious actuation in lieu of protecting the equipment in accordance 
with applicable regulations. The inspection report also included a non-
cited violation of Unit 2 for the inappropriate storage of combustible 
materials. The licensee's letter dated September 17, 2012 (ADAMS 
Accession No. ML12268A057), provided its response to the violations and 
their proposed corrective actions.

III. Conclusion

    The Petitioner sought enforcement action to achieve compliance with 
NRC regulations governing fire protection at Indian Point Nuclear 
Generating, Units 1, 2, and 3. The Petitioner recommended that the NRC 
deny exemptions requested by the licensee that relied on OMAs, and that 
the NRC issue an Order taking enforcement action.
    The Petitioner requested that the NRC identify violations of 
Section III.F and G of Appendix R to 10 CFR Part 50 that exist at 
Indian Point as of the date of the petition. As previously discussed, 
there were no violations of fire protection requirements at Indian 
Point effective on March 28, 2011. Following staff review of the 
licensee's proposed exemptions, the NRC identified potential areas of 
noncompliance for which the licensee has provided a schedule for 
achieving full compliance. The NRC's inspectors have monitored the 
licensee's corrective actions and recently issued violations consistent 
with the NRC's ongoing reactor oversight process. Therefore, as 
specified above, the NRC is granting the Petitioner's request to 
identify violations of fire protection regulations at Indian Point and 
to take appropriate enforcement actions as part of planned inspection 
activities.
    The Petitioner further requested the NRC to compel the licensee and 
its affiliates to comply on or before September 20, 2011, with the 
requirements in Section III.F and G of Appendix R to 10 CFR Part 50 for 
all fire zones in Indian Point Units Nos. 2 and 3, and any Indian Point 
Unit No. 1 fire zone or system, structure, or component relied on by 
Indian Point Unit Nos. 2 and 3. The NRC's letter of June 30, 2011, 
which denied the Petitioner's request for immediate action, had already 
denied the Petitioner's request to order compliance by September 20, 
2011. The licensee has provided its plans and schedules to resolve the 
denied exemptions. The licensee's schedule currently anticipates full 
compliance with the Commission's fire protection regulations at both 
operating units following the spring 2014 refueling outage at Indian 
Point Unit No. 2. Therefore, as specified above, the NRC is granting 
the Petitioner's request that the licensee be brought into compliance 
inasmuch as the licensee's earlier reliance on denied exemptions will 
be resolved through this schedule for achieving compliance.
    The Petitioner requested that the NRC convene an evidentiary 
hearing to adjudicate the violations by the licensee and its affiliates 
of Section III.F and G of Appendix R to 10 CFR Part 50 at Indian Point 
Units 1, 2, and 3. The NRC staff will disposition violations as part of 
its ongoing reactor oversight process. Evidentiary hearings before the 
NRC at the request of third parties are not a part of this process. 
Therefore, the Petitioner's request to convene a hearing before the 
Commission is denied.
    As provided in 10 CFR 2.206(c), the NRC will file a copy of this 
Director's Decision with the Secretary of the Commission for the 
Commission to review. As provided for by this regulation, the decision 
will constitute the final action of the Commission 25 days after the 
date of the decision unless the Commission, on its own motion, 
institutes a review of the decision within that time.

    Dated at Rockville, Maryland, this 24th day of October 2012.

    For the Nuclear Regulatory Commission.

Eric J. Leeds,
Director, Office of Nuclear Reactor Regulation.

Comments Received From the Petitioner

State of New York

Office of The Attorney General Letter of August 1, 2012

Comment 1

    The Proposed Director's Decision is not responsive to the Attorney 
General's request that NRC identify all fire safety violations at 
Indian Point. The final Director's Decision should identify all Indian 
Point fire safety violations.

Response

    The U.S. Nuclear Regulatory Commission (NRC) has been responsive to 
the issues and has handled both the exemption request and your petition 
in accordance with our processes and with a focus on public health and 
safety. The petition focused on the NRC staff review of the licensee's 
proposed exemptions that relied upon operator manual actions (OMAs). 
The proposed exemptions reflected non-compliance with the Commission's 
regulations for fire protection; non-compliance is not synonymous with 
violations. As stated in the proposed Director's Decision, the licensee 
acted within the enforcement discretion granted to all licensees by EGM 
07-004 during the staff's review of the proposed exemptions. Therefore, 
NRC inspectors did not cite the licensee for violations of fire 
protection regulations during the staff review.
    In response to the request to identify violations of fire 
protection requirements, a review of NRC inspection reports indicates 
that the licensee did not violate fire protection requirements at 
Indian Point Unit Nos. 1, 2, and 3, effective on March 28, 2011, the 
date of the petition. The only violations of fire protection 
regulations the NRC identified during the past two years were two non-
cited violations (NCVs) of very low safety significance (Green) at Unit 
No. 2 discussed in the May 7, 2010, Unit No. 2 Triennial Fire 
Protection Inspection Report (ADAMS Accession No. ML101270240), one NCV 
of very low safety significance (Green) at Unit No. 3 discussed in the 
July 11, 2011, Unit No. 3 Triennial Fire Protection Inspection Report 
(ADAMS Accession No. ML111920339), and three violations discussed in 
the most recent August 16, 2012, inspection report (ADAMS Accession No. 
ML12229A128). The NRC modified the final Director's Decision 
accordingly.

Comment 1.a

    The Proposed Director's Decision provides no rational basis for not 
addressing fire safety violations at Indian Point Unit 1.
    The Proposed Director's Decision refusal to identify Indian Point 
Unit No. 1 fire safety violations is also arbitrary and capricious 
because Entergy's schedule for correcting Indian Point Unit No. 2 fire 
safety violations includes two violations in an Indian Point Unit No. 1 
structure. Entergy proposes to correct fire safety violations in the 
Indian Point Unit 1 Superheater Building at Fire Area J, Zones 25-23 
(so in the original) and 270.

[[Page 66645]]

Response

    On January 31, 1996, Amendment No. 45 revised the Indian Point Unit 
No. 1 license to possession-only status and revised the technical 
specifications. Technical Specification 2.11, ``Fire Protection,'' 
states that Unit Nos. 1 and 2 share a common fire protection program, 
which is addressed in Appendix A to the Indian Point Unit No. 2 
Facility Operating License No. DPR-26. Therefore, any system, 
structure, or component located at Unit No. 1 that supports the fire 
protection program at Unit No. 2, will be documented in Unit No. 2 
inspection activities.
    The NRC conducted a fire inspection at Indian Point in April 2012. 
The NRC issued the inspection report on August 16, 2012 (ML12229A128). 
Part of the inspection scope was to review all OMAs and walk down all 
circuits that were not protected in accordance with Paragraph III.G.2 
of Appendix R to 10 CFR Part 50 requirements. Specifically, for 
circuits that traversed Unit No. 1 (i.e., Fire Area J, Zone 25, 23 
Battery Room), the staff reviewed the circuits associated with OMA No. 
12. OMA No. 12 was a manual action to transfer instrument busses 23 and 
23A to their emergency power sources.
    Although these circuits were in Unit No. 1, if these circuits 
caused a malfunction of Unit No. 2 safe shutdown systems, structures, 
or components, this would be a violation of Unit 2's fire protection 
program license condition, not a violation of Unit No. 1. Upon further 
review, the staff concluded that the circuits in Unit No. 1 fire zones 
J/25 and J/270 would not actually cause a maloperation of equipment 
and, therefore, the instrument busses would automatically swap to their 
emergency power sources. As a result, the NRC determined this OMA was 
unnecessary because the automatic operation is not in the fire zones of 
interest and could be credited to maintain power to the instrument 
busses. In conclusion, our inspectors did not identify a violation of 
the Unit No. 2 fire protection program with respect to Paragraph 
III.G.2 of Appendix R to 10 CFR Part 50 for fire zones J/25 and J/270. 
A violation of Unit No. 1 was not applicable.

Comment 1.b

    The Proposed Director's Decision implies that the fire safety 
violations Entergy identified in its 2009 exemption requests are the 
only such violations at Indian Point, but does not make an explicit 
finding that these are the only such violations.

Response

    The exemption requests submitted by Entergy on March 6, 2009, were 
within the enforcement discretion granted to all licensees by EGM 07-
004 and were handled as non-compliances with Appendix R as opposed to 
violations. The period of enforcement discretion ended with the 
issuance of the staff's safety evaluation on February 1, 2012. As 
stated in item 1 above, there were no violations of 10 CFR Part 50, 
Appendix R, at Indian Point effective on March 28, 2011. The NRC 
modified the final Director's Decision accordingly.

Comment 2

    The Proposed Director's Decision is unenforceable, but the final 
Director's Decision should be enforceable.

Response

    This comment misconceives the purpose of requests for enforcement 
actions under 10 CFR 2.206. Section 2.206 serves as ``an effective, 
equitable, and credible mechanism for the public to prompt Commission 
investigation and resolution of potential health and safety problems.'' 
Sec. 2.206 Petitions Requesting Institution of a Proceeding to Modify, 
Suspend or Revoke a License, or for Such Other Action as May Be Proper; 
Workshop, 1993 WL 270694, *2 (June 23, 1993) 58 FR 34726-01. Therefore, 
not every safety concern identified by a petitioner in the 2.206 
process necessarily results in a show cause proceeding and issuance of 
a proposed enforcement order.
    Often, as here, measures short of an enforcement order are 
sufficient. As the comment itself notes, enforcement orders stand atop 
the hierarchy of NRC's enforcement tools. Inasmuch as a formal 
enforcement order requires issuance of a show cause order that triggers 
the right of the licensee to demand a formal hearing (see generally 10 
C.F.R. Sec.  2.202), it would be inefficient and inequitable for NRC to 
conclude every enforcement investigation--including responses to 
Section 2.206 petitions--with a formal order.
    Here, the public health and safety is adequately assured for the 
reasons explained in the Director's Decision without issuance of a show 
cause order and conduct of a proceeding. The comment offers no basis 
for NRC to conclude that the licensee's commitment will not adequately 
protect public health and safety, or that licensee will not honor its 
commitments. In short, the Director's Decision describes the issues 
raised by the Petitioner, discusses the safety significance of the 
issues, and explains the staff's disposition of and future oversight of 
those issues. Violations identified during NRC inspections will be 
handled through the reactor oversight process (ROP).
    In NUREG-1649, Revision 4, ``Reactor Oversight Process,'' the NRC 
describes its established oversight process to inspect, measure, and 
assess the safety performance of commercial nuclear power plants and to 
respond to any decline in plant performance. The ROP focuses 
inspections on areas of greatest risks, applies greater regulatory 
attention where there are plant performance problems, uses objective 
measurements of performance, gives the public timely and understandable 
assessments of plant performance, and provides responses to violations 
in a predictable and consistent manner that corresponds to the safety 
significance of the problem.

Comment 3

    The Proposed Director's Decision does not contain a target date for 
full fire safety compliance at Indian Point, but the final Director's 
Decision should.

Response

    The NRC requested the licensee to describe its plans to restore 
compliance as part of our inspection planning process. By letter dated 
March 1, 2012, and later modified by letter dated July 11, 2012, the 
licensee provided its schedule and planned actions for completing 
corrective actions that will resolve each issue related to protection 
of redundant safe shutdown trains and thereby comply with the 
applicable requirements of Paragraph III.G.2 of Appendix R to 10 CFR 
Part 50, for both Indian Point operating units. As described in the 
licensee's letters, a combination of engineering analysis and plant 
modifications will result with Unit No. 2 being in compliance by the 
end of the 2014 refueling outage and Unit No. 3 being in compliance by 
the end of the 2013 refueling outage.
    The NRC performed inspections and issued two Notices of Violations 
(NOVs). Upon receiving the licensee's NOV responses, we will make 
conclusions regarding the adequacy of the licensee's corrective actions 
to restore compliance. In determining whether the licensee is making 
reasonable efforts to complete corrective actions promptly, the NRC 
will consider safety significance, the effects on operability, the 
significance of the degradation, and what is necessary to implement the 
corrective action.
    The licensee's commitment management process will track actions to 
restore compliance to a schedule we

[[Page 66646]]

conclude is acceptable. The NRC will schedule and complete further 
inspections using inspection procedure 92702, ``Followup on Corrective 
Actions for Violations and Deviations.'' We will document our 
inspection findings in future inspection reports. This process will 
assure that full fire safety compliance is achieved within a time frame 
necessary for protection of public health and safety. Accordingly, a 
specific date beyond that described above is not considered necessary.

Comment 4

    The Proposed Director's Decision endorses permanent fire safety 
exemptions that forego regulatory compliance that would make Indian 
Point safer.

Response

    Safety evaluations issued on February 1, 2012, provided 
justification for approving the exemptions as permanent. The criteria 
for granting exemptions in 10 CFR 50.12(a) ensures adequate protection 
of public health and safety and protection of the environment. The NRC 
determined that the licensee met the regulatory standard and that the 
authority of the NRC to grant exemptions was upheld in Brodsky v. NRC, 
783 F.Supp.2d 448, 455-58 (S.D.N.Y. 2011) (appeal pending). The final 
Director's Decision will not reopen the staff's review of the 
exemptions. Just as the Section 2.206 process may not be used to 
challenge licensing decisions collaterally. In re Envirocare of Utah, 
Inc., 45 NRC 63, 68-69 (1997) (``section 2.206 is not a venue for 
presenting licensing contentions''), Section 2.206 likewise may not be 
used to challenge grant or denial of an exemption.

Comment 5

    Despite 30 years of noncompliance with fire safety regulations at 
Indian Point, the Proposed Director's Decision does not propose any 
financial penalty.

Response

    The NRC enforcement actions for the fire protection violations at 
Indian Point are in accordance with the NRC Enforcement Policy and the 
ROP. Typically, violations assessed under the ROP are not considered 
for civil penalties. However, civil penalties are considered for 
violations associated with inspection findings evaluated through the 
ROP's Significance Determination Process (SDP) that involve actual 
consequences.
    As evaluated under the ROP, the NRC determined the violations at 
Indian Point Units 2 and 3, regarding OMAs did not involve actual 
consequences and are of very low safety significance. Therefore, civil 
penalties were not warranted. If the NRC determines the licensee's 
actions to restore compliance are not adequate, further enforcement 
action may be considered in accordance with the NRC Enforcement Policy.

Comments Received From the Petitioner

State of New York

Office of the Attorney General Letter of September 19, 2012

Comment 1 Entergy Effort To Recharacterize NRC Enforcement

    The proposed Director's Decision concluded that the Petitioner's 
requests to identify violations of fire protection requirements and 
bring the licensee into compliance were granted. The licensee's letter 
of August 1, 2012, objected to concluding that the Petitioner's request 
was being granted and indicated that the NRC would make similar 
findings via the reactor oversight process without the impetus of a 
petition.
    The Petitioner's letter of September 19, 2012, is supportive of the 
original wording and states that Entergy improperly seeks to 
recharacterize the final Director's Decision.

Response

    As discussed in responding to the licensee's comments, the staff's 
practice has been to grant the request in a Section 2.206 petition 
whenever the Petitioner's requests are consistent with the staff's 
final actions. Therefore, the NRC staff did not revise the original 
wording of the proposed Director's Decision and concludes that the 
Petitioner's requests were granted insofar as consistent with the 
staff's actions.

Comment 2 New York Requested Identification and Correction of All Fire 
Safety Violations at Indian Point

    The Petitioner objected to an email sent by the NRC staff (ADAMS 
Accession No. ML122650249) seeking clarification to the original 
petition regarding violations with respect to Sections III.F and III.G 
of Appendix R to 10 CFR Part 50. The Petitioner believed the staff was 
limiting consideration of violations to the proposed exemptions of 
March 6, 2009, and was mistakenly omitting violations with respect to 
Section III.F.

Response

    The NRC staff did not limit its consideration of violations to the 
proposed exemptions. The staff simply informed the Petitioner by email 
in advance that the final Director's Decision would not address 
violations with respect to Section III.F. NRC so informed the 
Petitioner because (1) Section III.F only requires that fire detection 
systems shall be automatic and capable of operating with or without 
offsite power, (2) the licensee did not request any exemptions from 
Section III.F, and (3) all of the requested exemptions were from the 
safe shutdown requirements of Section III.G.
    The final Director's Decision was modified to clarify the 
differences between Sections III.F and III.G.

Comment 3 Identification and Correction of All Fire Safety Violations 
at Indian Point Is Needed

    The licensee's letter dated July 11, 2012 (ADAMS Accession No. 
ML12220A006), states that OMAs 20 and 21 were inadvertently omitted 
from the March 6, 2009, request for exemptions. The Petitioner cites 
this letter as further justification for a comprehensive identification 
and correction of Indian Point fire safety violations.

Response

    The NRC staff agrees that the licensee's letter dated July 11, 
2012, states that two OMAs that were being relied upon to achieve and 
maintain safe shutdown were inadvertently omitted from the licensee's 
request for exemptions dated March 6, 2009. The licensee further stated 
that the omitted OMAs would be treated as unapproved or denied OMAs and 
that additional plant modifications during the Unit No. 2 refueling 
outage during the Spring of 2014 would be necessary. The licensee's 
letter did not provide any explanation for the omission nor did it 
provide an extent of condition for this omission.
    As discussed in the NRC inspection report dated August 16, 2012 
(ADAMS Accession No. ML12229A128), NRC inspectors identified that the 
licensee failed to identify OMAs 20 and 21 in their March 6, 2009, 
request for exemptions (see page 5 of Enclosure 2). As further stated, 
similar to the OMAs for which exemptions were denied, the licensee 
committed to resolve the omitted OMAs and establish compliance with 
Section III.G to Appendix R of 10 CFR part 50.
    By letter dated September 17, 2012 (ADAMS Accession No. 
ML12268A057), the licensee provided its explanation for the omission of 
OMAs 20 and 21 in their March 6, 2009, request for exemptions (see page 
4 of Attachment 1). The licensee stated that the use of non-standard 
nomenclature and presentation resulted in the error of

[[Page 66647]]

omission. The licensee further indicated that it performed an extent of 
condition review and concluded that the use of non-standard 
nomenclature did not result in the omission of any additional OMAs. The 
NRC staff will review the licensee's letter as part of the overall 
reactor oversight process.

Comment 4 New Indian Point Fire Safety Violations Identified

    The Petitioner again cites the licensee's letter of July 11, 2012, 
as a further example of the need to perform a comprehensive 
identification and correction of Indian Point fire safety violations. 
The Petitioner also notes that the NRC apparently discovered the 
omission of OMAs 20 and 21 and that the licensee's letter did not 
provide any explanation for the occurrence.

Response

    See the staff's previous response to comment 3 above. As previously 
stated, NRC inspectors made this discovery and the licensee has 
committed to resolve the omitted OMAs and establish compliance with 
Section III.G to Appendix R of 10 CFR part 50.

Comment 5 Confirmation of Indian Point Unit 1 Involvement in Fire 
Safety Violations

    The licensee's letter dated August 1, 2012, offered clarification 
for the use of ``fire areas'' versus ``fire zones'' in the proposed 
Director's Decision. The Petitioner cited the licensee's explanation as 
a further example that fire violations exist at Indian Point Unit No. 
1. This is similar to the Petitioner's Comment 1.a in the Petitioner's 
letter dated August 1, 2012.

Response

    See the staff's response to Comment 1.a from the Petitioner's 
letter dated August 1, 2012. As previously stated, any system, 
structure, or component located at Unit No. 1 that supports the fire 
protection program at Unit No. 2, will be documented in Unit No. 2 
inspection activities.

Comment 6 Unjustified Delay in Eliminating Indian Point Fire Safety 
Violations

    The licensee's letter dated August 1, 2012, offered clarification 
to the proposed Director's Decision for their schedule to restore full 
compliance with fire safety regulations at Indian Point. The Petitioner 
objected to the licensee's schedule and explanation that full 
compliance will not be achieved before the Unit No. 2 refueling outage 
in the spring of 2014.

Response

    See the staff's response to Comment 3 from the Petitioner's letter 
dated August 1, 2012. As previously stated, in determining whether the 
licensee is making reasonable efforts to complete corrective actions 
promptly, the NRC has considered safety significance, the effects on 
operability, the significance of the degradation, and what is necessary 
to implement the corrective action. As a result, the NRC has determined 
that the public health and safety will be adequately assured in the 
interim while full compliance is being achieved. These same 
considerations will continue to guide NRC enforcement discretion during 
its oversight as the licensee proceeds with its scheduled compliance.

Comments Received From the Licensee

Entergy Nuclear Operations, Inc.

A. General Comments

Section III, Conclusion, Pages 9 and 10

    The letter indicates the NRC is granting the Petitioner's request 
for identifying violations and taking enforcement actions as well as 
bringing IPEC [Indian Point Energy Center] into compliance. It is 
Entergy's belief that the NRC is following the requirements and 
protocols established in the regulatory oversight process (ROP) as 
relates to these actions, and is not granting the Petitioner's request. 
The letter should indicate that the ROP is a mature process that 
provides guidance to the NRC and licensees. The items identified by NY 
State were items the NRC staff was well aware of and the actions taken 
by the NRC would have been taken regardless of the NY State petition.

Response

    The NRC does not disagree with the premise of the licensee's 
comment. The petition did not present facts previously unknown to the 
NRC staff, and the staff would likely have reached the same conclusions 
through the ROP without the impetus of the petition. Regardless, the 
staff's practice has been that whenever the Petitioner's requests are 
consistent with the staff's final actions, whether in whole or in part, 
they are considered to be granted.

B. Specific Comments--Suggested Changes

    [Suggested changes are shown as strikethroughs for [DELETED 
(deletions)] and underlines for additions.]

1. Section II, Discussion, Page 5

    ``However, neither the diesel generator fire [DELETED (area)] zone 
* * *''

Response

     Fire zones are subsets of larger fire areas. The suggested 
change provides a more definitive description of the concern. The NRC 
modified the final Director's Decision accordingly.

2. Section II, Discussion, Page 8

    ``Exceptions to projected completion involve plant modifications 
for Indian Point Units No. 3 and No.2, which will not be completed 
until the spring 2013 and 2014 refueling outages respectively because 
those modifications involve [DELETED (access to plant areas accessible 
only during a plant shutdown)] activities that require plant outages to 
install said modifications.''

Response

     The suggested changes provide a more complete description 
of the planned modifications. The NRC modified the final Director's 
Decision accordingly.

[FR Doc. 2012-27046 Filed 11-5-12; 8:45 am]
BILLING CODE 7590-01-P