[Federal Register Volume 78, Number 166 (Tuesday, August 27, 2013)]
[Notices]
[Pages 52987-52990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20703]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-286; NRC-2013-0063]


Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating 
Unit 3

AGENCY: Nuclear Regulatory Commission.

ACTION: Environmental assessment and finding of no significant impact; 
issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) has concluded 
that existing exemptions from its regulations, ``Fire Protection 
Program for Nuclear Power Facilities Operating Prior to January 1, 
1979,'' for Fire Areas ETN-4 and PAB-2, issued to Entergy Nuclear 
Operations, Inc. (the licensee), for operation of Indian Point Nuclear 
Generating Unit 3 (Indian Point 3), located in Westchester County, NY, 
will remain as originally granted and will not be modified.

ADDRESSES: Please refer to Docket ID NRC-2013-0063 when contacting the 
NRC about the availability of information regarding this document. You 
may access publicly-available information related to this action by the 
following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0063. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-287-
3422; email: [email protected]. For technical questions, contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may access publicly available documents online in the NRC 
Library at http://www.nrc.gov/reading-rm/adams.html. To begin the 
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's 
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by email to [email protected]. The ADAMS accession number 
for each document referenced in this notice (if that document is 
available in ADAMS) is provided the first time that a document is 
referenced.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Douglas V. Pickett, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; telephone: 301-415-1364; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On July 24, 2006, Indian Point 3 submitted exemption requests from 
part 50 to Title 10 of the Code of Federal Regulations (10 CFR), 
appendix R, section III.G.2, for a one-hour rating fire barrier. On 
September 28, 2007 (72 FR 55254), the NRC issued the exemptions. As 
required by 10 CFR 51.21, the NRC prepared an Environmental Assessment 
(EA) and a finding of no significant impact (FONSI). The EA on the 
impacts of the exemptions and FONSI were published in the Federal 
Register (FR) on the same day the exemptions were issued. The 
exemptions were then implemented at Indian Point Unit 3. A draft EA/
FONSI for public comment was not issued for this licensing action.
    In 2007, Mr. Richard Brodsky, then a New York State Assemblyman, 
and others (the petitioners) petitioned the NRC to hold a public 
hearing before granting the exemptions. The NRC denied Mr. Brodsky's 
petition. In 2008, the petitioners filed suit in the U.S. Court of 
Appeals for the Second Circuit, challenging the NRC's denial of a 
hearing. On August 27, 2009, the Court of Appeals denied the suit for 
lack of jurisdiction, but afforded the petitioners an opportunity to 
refile their claims in the U.S. District Court (ADAMS Accession No. 
ML092610050). In 2011, the U.S. District Court for the Southern 
District of New York granted the NRC summary judgment on the refiled 
claims, finding no violation of the Administrative Procedure Act (APA), 
the Atomic Energy Act (AEA), or the National Environmental Policy Act 
(NEPA) in the denial of a hearing on the exemption (ADAMS Accession No. 
ML110660214). The petitioners then sought review of that decision in 
the U.S. Court of Appeals for the Second Circuit.
    On January 7, 2013, the Second Circuit reversed and vacated the 
U.S. District Court decision with respect to public participation on 
the EA and FONSI issued in support of the exemptions (ADAMS Accession 
No. ML13199A023). All other aspects of the U.S. District Court decision 
were upheld as described in the Second Circuit's Summary Order (ADAMS 
Accession No. ML13164A362). The Circuit Court remanded the case to the 
District Court ``with instructions for it in turn to remand to the NRC 
so that the agency may: (1) Supplement the administrative record to 
explain why allowing public input into the exemption request was 
inappropriate or impracticable, or (2) take other such action as it may 
deem appropriate to resolve this issue.'' The Court directed that 
proceedings were to be concluded within 120 days of the Mandate, which 
was issued on March 1, 2013.
    In response to the Mandate of the U.S. Court of Appeals, on April 
3, 2013 (78 FR 20144), a Federal Register notice was published seeking 
public comment, pursuant to 10 CFR 51.33, for a draft EA and FONSI. Due 
to requests from the public to extend the comment period, on May 7, 
2013 (78 FR 26662), a Federal Register notice was published that 
extended the public comment period to June 3, 2013. In light of this 
extension, the NRC sought and the Court of Appeals granted an extension 
until August 30, 2013, to complete its actions.

II. Environmental Assessment

Identification of the Proposed Action

    The proposed action would revise the January 7, 1987, safety 
evaluation to reflect that the installed Hemyc electrical raceway fire 
barrier system (ERFBS) configurations provide either a 30-minute fire 
resistance rating, or in one case a 24-minute fire resistance rating, 
in lieu of the previously stated one-hour fire resistance rating. The 
licensee states that a Hemyc ERFBS fire resistance rating will provide 
sufficient protection for the affected raceways, with adequate margin, 
to continue to meet the intent of the original requests for exemption 
and conclusions presented in the NRC's January 7, 1987, safety 
evaluation. The licensee concludes that the revised fire resistance 
rating of the Hemyc ERFBS does not reflect a reduction in overall fire 
safety, and presents no added challenge to the credited post-fire safe-
shutdown capability which remains materially unchanged from the 
configuration originally described in

[[Page 52988]]

previous letters and as credited in the January 7, 1987, safety 
evaluation.
    The proposed action is in accordance with the licensee's 
application dated July 24, 2006, as supplemented by letters dated April 
30 (ADAMS Accession No. ML071280504), May 23 (ADAMS Accession No. 
ML071520177), and August 16, 2007 (ADAMS Accession No. ML072400369).

The Need for the Proposed Action

    The proposed revision of existing exemptions from 10 CFR part 50, 
appendix R, is needed in response to NRC Information Notice 2005-07, 
Results of Hemyc Electrical Raceway Fire Barrier System Full Scale Fire 
Testing, dated April 1, 2005 (ADAMS Accession No. ML050890089). The 
information notice provided to licensees the details of Hemyc ERFBS 
full-scale fire tests conducted by the NRC's Office of Nuclear 
Regulatory Research. The test results concluded that the Hemyc ERFBS 
does not provide the level of protection expected for an one-hour rated 
fire barrier, as originally designed. The proposed revision to existing 
exemptions would revise the fire resistance rating of Hemyc ERFBS 
configurations.

Environmental Impacts of the Proposed Action

    The NRC has completed its safety evaluation of the proposed action 
and concludes that the configuration of the fire zones under review 
provides reasonable assurance that a severe fire is not plausible and 
the existing fire protection features are adequate. Based on the 
presence of redundant safe-shutdown trains, minimal fire hazards and 
combustibles, automatic cable tray fire suppression system, manual fire 
suppression features, fire barrier protection, existing Hemyc 
configuration, and the installed smoke detection system, the NRC staff 
finds that the use of this Hemyc fire barrier in these zones will not 
significantly increase the consequences from a fire in these fire 
zones.
    The proposed action will not significantly increase the probability 
or consequences of accidents. No changes are being made in the types of 
effluents that may be released offsite. There is no significant 
increase in the amount of any effluent released offsite. There is no 
significant increase in occupational or public radiation exposure. 
Therefore, there are no significant radiological environmental impacts 
associated with the proposed action.
    With regard to potential non-radiological impacts, the proposed 
action does not have a potential to affect any historic sites. It does 
not affect non-radiological plant effluents and has no other 
environmental impact. Therefore, there are no significant non-
radiological environmental impacts associated with the proposed action.
    Accordingly, the NRC staff concludes that there are no significant 
environmental impacts associated with the proposed action.

Environmental Impacts of the Alternatives to the Proposed Action

    As an alternative to the proposed action, the NRC staff considered 
denial of the proposed action (i.e., the ``no-action'' alternative). 
Denial of the application would result in no change in current 
environmental impacts. The environmental impacts of the proposed action 
and the alternative action are similar.

Alternative Use of Resources

    The action does not involve the use of any different resources than 
those previously considered in the Final Environmental Statement for 
Indian Point 3, dated February 1975.

Agencies and Persons Consulted

    Development of this EA/FONSI did not result in consultation.

Comments

    The NRC received 135 submissions containing comments from 
interested members of the public, organizations, and the State of New 
York. The majority of these comments expressed opposition to the 
granting of the requested exemptions, and many commenters suggested 
that the NRC prepare an environmental impact statement (EIS) and 
convene a formal evidentiary hearing or other form of public hearing to 
consider the matter. Many of the commenters were concerned that 
granting the exemptions could result in a degradation of fire 
protection levels afforded by current regulatory requirements that 
would leave the licensee unable to respond to a serious fire and result 
in catastrophic offsite consequences.
    Each comment was carefully reviewed by the NRC staff. In this 
document, the NRC has responded to the various comments received by 
category. However, many comments received did not fall into the broader 
categories discussed in this document and were outside the scope of the 
draft EA, which deals strictly with the environmental impacts of 
granting the exemption. These comments are not addressed in this 
document, but the NRC has responded to all comments received in a 
separate comment resolution document (ADAMS Accession No. ML13203A145).

Legal Objections and Request for Hearing

    Some commenters questioned whether the NRC has the authority to 
grant exemptions from its regulations, whether the NRC has complied 
with each applicable statute, and whether the NRC may grant permanent 
exemptions. These questions have recently been addressed by the U.S. 
District Court for the Southern District of New York and, on appeal by 
the U.S. Court of Appeals for the Second Circuit. These courts upheld 
the agency's authority and statutory compliance in these respects, 
except in the case of NEPA's requirement for an opportunity for public 
participation on the proposed exemptions. (Brodsky v. NRC, 783 F. Supp. 
2d 448, 457 n.7 (S.D.N.Y. 2011), vacated in part on other grounds, 704 
F.3d 113 (2d Cir. 2013); Brodsky v. NRC, No. 11-2016-cv, ``Summary 
Order'' (2d Cir. Jan. 7, 2013)). That noncompliance was corrected by 
the Federal Register issuance of the draft EA and FONSI for public 
comments.
    The NRC is denying the commenters' request for a hearing. Neither 
the AEA nor the NRC's regulations grant the right to a hearing on an 
application for an exemption. (42 U.S.C. 2239(a); Kelley v. Selin, 42 
F.3d 1501, 1514-17 (6th Cir. 1995); Massachusetts v. NRC, 878 F.2d 
1516, 1521 (1st Cir. 1989)). Moreover, in the Summary Order for Brodsky 
v. NRC, the U.S. Court of Appeals for the Second Circuit recently 
rejected the argument that the AEA or the APA requires the NRC to hold 
a hearing on granting an exemption.

Safety Objections

    A number of commenters questioned the NRC's technical judgment that 
the exemptions to the fire protection requirements of 10 CFR 50.48 and 
appendix R, section III.G.2, would afford equivalent protection of 
public health and safety in the event of a fire in the two affected 
areas of the plant for which exemptions had been proposed. One 
commenter stated that a fire lasting beyond the 24-minute fire rating 
of the Hemyc fire barrier would result in a reactor meltdown. Other 
commenters expressed concern whether the exemptions present an undue 
risk to the public health and safety, would compromise the AEC standard 
of ``reasonable assurance'' for the safety of plant operations, or 
would degrade the plant's margin of safety.
    However worded, these concerns are beyond the scope of the NRC's 
notice of opportunity to comment on the draft EA

[[Page 52989]]

and FONSI, which deal strictly with the environmental impacts of 
granting the exemptions. Safety issues, on the other hand, pertain to 
the NRC's responsibilities under the AEA. As noted, the AEA does not 
require a hearing on the agency's consideration of an exemption. 
Moreover, to the extent that the NRC's technical judgment on these 
safety concerns is judicially reviewable, the U.S. Court of Appeals for 
the Second Circuit has concluded: ``After reviewing the administrative 
record, it is apparent that the Commission conducted a detailed 
evaluation, considered the factors listed in the specific regulations 
and in the end acted reasonably. . . . This is a case where deference 
to the substantive decision of the Commission, as it relates to nuclear 
safety, is warranted.'' The remand by the Second Circuit to allow 
public participation on environmental concerns did not envision a 
second round of safety analysis. Nonetheless, to the extent 
practicable, the NRC has responded to safety concerns expressed by 
commenters in the comment resolution document.

Risk of Terrorism and Other Low-Probability, High-Consequence Events

    Many comments raised the specter of a terrorist attack or other 
event that would defeat the Indian Point 3 defense-in-depth fire 
protection measures in place at the two affected fire areas for which 
exemptions have been granted. These commenters were concerned that a 
severe fire caused by these events could result in a loss of reactor 
safe shutdown capability and serious offsite consequences. As explained 
in this document, however, issues relating to terrorism and other low-
probability, high-consequence events are beyond the scope of the EA and 
FONSI.
    Acts of terrorism are inherently unpredictable and stochastic and, 
therefore, are not separately considered in preparing the NRC's 
environmental analyses. The NRC has, therefore, determined that NEPA 
``imposes no legal duty on the NRC to consider intentional malevolent 
acts'' because those acts are ``too far removed from the natural or 
expected consequences of agency action.'' (Amergen Energy Co. LLC 
(Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 128 
(2007), aff'd, New Jersey Dep't of Envtl. Prot. v. NRC, 561 F.3d 132 
(3d Cir. 2009)).\1\
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    \1\ The NRC acknowledges that a split in the circuit courts 
exist on this point, see San Luis Obispo Mothers for Peace v. NRC, 
449 F.3d 1016 (9th Cir. 2006), but adheres to its position, outside 
of the Ninth Circuit, that NEPA does not require consideration of 
terrorists attacks.
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    Although the inherent uncertainty of terrorism precludes reliably 
quantifying the likelihood of a terrorist attack, under credible threat 
conditions assumed by the NRC, the probability of such an attack is 
believed to be low. To provide high assurance that a terrorist act will 
not lead to significant radiological consequences, the NRC has analyzed 
plausible threat scenarios and has defined, by regulation, a Design 
Basis Threat of radiological sabotage in 10 CFR 73.1 that licensees 
must protect against. Aside from the Design Basis Threat of 
radiological sabotage, the NRC has also established new physical 
protection requirements in 10 CFR 73.55 to protect against radiological 
sabotage as well as requirements for safety/security interface in 10 
CFR 73.58, potential aircraft threats in 10 CFR 50.54(hh)(1), and the 
loss of large areas of the plant due to explosions and/or fire to 
mitigate potential consequences for these threat scenarios as well as 
accident scenarios with similar radiological consequences in 10 CFR 
50.54(hh)(2). Each of these protective and mitigation measures has been 
taken without regard to the probability of an attack. The NRC's 
approach is consistent with NEPA. As the Third Circuit has held, 
``precautionary actions to guard against a particular risk do not 
trigger a duty to perform a NEPA analysis.''
    Whether resulting from a terrorist attack or some internally-
initiated event, the NRC staff determined from its independent safety 
evaluation of the licensee's proposal that the configuration of the 
fire zones under review provide reasonable assurance that a severe fire 
is not plausible and the existing fire protection features are 
adequate. From this and related findings, the NRC concluded that the 
proposed action would not significantly increase the probability or 
consequences of accidents. This finding renders a severe fire in the 
affected areas resulting from granting the exemptions, however 
initiated or whatever its consequences, so unlikely as not to require 
further environmental analysis. (New York v. NRC, 589 F.3d 551, 554 n.1 
(D.C. Cir. 2009)).

Alternatives to the Proposed Action

    Some commenters claimed that the NRC did not consider denying the 
exemptions and requiring compliance with 10 CFR part 50, appendix R, 
section III.G.2, or some other alternative. In fact, the NRC did 
consider the alternative of denying the exemption requests. The Federal 
Register notice for the EA and FONSI stated clearly that the ``no 
action'' alternative would involve the ``denial of the proposed 
action'' (i.e., the denial of this exemption request). A necessary and 
implicit aspect of the ``no action'' alternative would be requiring the 
licensee to comply with 10 CFR part 50, appendix R.
    The NRC determined, however, that denial of the exemption requests 
would result in no change in current environmental impacts, and that 
the environmental impacts of denying the exemption requests or 
approving the requested exemptions are similar. Thus, the NRC has 
considered imposing a requirement that the fire insulation be upgraded 
to meet the one-hour requirement in 10 CFR part 50, appendix R. 
Moreover, consideration of requiring the licensee to comply with the 
one-hour barrier requirement necessarily bounds any period less than 
one-hour, i.e, a fixed period not tied to Hemyc test results. In any 
event, ``the range of alternatives an agency must consider is narrower 
when, as here, the agency has found that a project will not have a 
significant environmental impact.'' (Friends of the Ompompanoosuc v. 
FERC, 968 F.2d 1549, 1558 (2d Cir. 1992); City of New York v. DOT, 715 
F.2d 732, 744 (2d Cir. 1983)).

Compilation of the Record for Granting the Exemptions

    Several commenters suggested that the NRC had not considered 
categories of relevant documents or specific documents relating to 
Indian Point 3 or fire protection issues. The NRC staff reviewed all 
information supplied by the licensee and commenters in accordance with 
10 CFR 50.12 and appropriate guidance and engineering judgment in 
granting the exemptions. The commenters, however, have either failed to 
identify specific documents not considered by the NRC or have failed to 
demonstrate the relevance or probative value of specific documents they 
have cited. On this point, the Second Circuit recently found that one 
commenter's failure to demonstrate that specific ``documents are in 
fact relevant or probative'' was fatal to the individual's claim that 
the NRC improperly failed to consider specific documents.

NRC's Adoption of a New Categorical Exclusion for Exemptions

    Some commenters questioned whether the NRC has applied or relied 
upon the recently revised provisions of 10 CFR 51.22(c)(9) in granting 
the exemptions. These provisions categorically exclude certain 
qualifying exemptions from environmental review, such as the review 
given the exemptions in this instance. These new provisions,

[[Page 52990]]

however, were adopted after 2007, when the exemptions at issue were 
initially granted. Consequently, the new provisions played no part in 
the NRC's decision-making on the current decision to grant the 
exemptions.
    Publication of the draft EA and FONSI for the requested exemptions 
included a brief discussion of this regulatory amendment to inform the 
public of a topically-relevant change in the NRC's regulations 
occurring since the NRC approved the requested exemptions in 2007 (78 
FR 20144: April 3, 2013). The NRC included this information because 
these changes will be relevant to future exemption requests, but did 
not suggest that 10 CFR 51.22(c)(9) applies to the requested 
exemptions. Moreover, the NRC observed in the discussion that 
``[a]lthough NRC approval of exemptions that meet the criteria of this 
section no longer require preparation of an EA/FONSI, the NRC retains 
discretion to prepare an EA and FONSI, including an opportunity for 
public comment, where special circumstances exist.'' Finally, we note 
that the NRC recently published an editorial correction to 10 CFR 
51.22(c)(9) (78 FR 34245: June 7, 2013) to clarify that this provision 
categorically excludes certain kinds of stand-alone exemptions from 
environmental review, not just exemptions issued as a license 
amendment.

III. Finding of No Significant Impact

    On the basis of the environmental assessment, the NRC concludes 
that the proposed action will not have a significant effect on the 
quality of the human environment. Accordingly, the NRC has determined 
not to prepare an environmental impact statement for the proposed 
action.
    For further details with respect to the proposed action, see the 
licensee's letters dated July 24, 2006, April 30, 2007, May 23, 2007, 
and August 16, 2007 (ADAMS Accession Nos. ML062140057, ML071280504, 
ML071520177, ML072400369, respectively); the EA and FONSI, dated 
September 24, 2007 (ADAMS Accession No. ML072110018); the NRC letter 
dated September 28, 2007, approving the exemption (ADAMS Accession No. 
ML072410254); and the draft EA and FONSI, dated March 26, 2013 (ADAMS 
Accession No. ML13066A275).

    Dated at Rockville, Maryland, this 19th day of August 2013.

    For the Nuclear Regulatory Commission.
Michele G. Evans,
Director, Division of Operating Reactor Licensing, Office of Nuclear 
Reactor Regulation.
[FR Doc. 2013-20703 Filed 8-26-13; 8:45 am]
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