[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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