ML081260342

Brodsky V. USNRC, 08-1454-AG; Dismissal and Denial of the Petition for Review

ML081260342
Person / Time
Site:	Indian Point
Issue date:	05/02/2008
From:	Rader R NRC/OGC
To:	Brodsky R Westchester County, NY
Rader, Robert
References
08-1454-AG
Download: ML081260342 (20)

Text

Robert Rader From: Robert Rader Sent: Thursday, May 01, 2008 3:41 PM To: richardbrodsky@msn.com; mbw@wisecarter.com

Subject:

Second Circuit Motion to Dismiss Attachments: Brodksy Motion to Dismiss Filed.doc Gentlemen, Attached is the Motion to Dismiss mailed to the Second Circuit this afternoon for filing. While I cannot include the exhibits, I think you have them. Mike, if you don't, I can fax them.

I anticipate filing a short procedural motion, after we receive Mr. Bass's Order, asking the Court to delay briefing until a ruling on this motion.

Bob Rader U.S. Nuclear Regulatory Commission Office of the General Counsel Division of Legal Counsel Mailstop 0-15 D21 Rockville, MD 20852 Office: 301-415-1955 Fax: 301-415-3200 1

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 OFFICE OF THE May 2, 2008 GENERAL COUNSEL Catherine O'Hagan Wolfe, Clerk United States Court of Appeals for the Second Circuit United States Court House 40 Foley Square New York, New York 10007 Attn: Maria Rodriguez

Dear Ms. Wolfe,

Enclosed for filing please find an original and four copies of Federal Respondents' Motion to Dismiss, with attachments, and Form 1080.

Also enclosed is an additional copy of page one of the Motion. At your convenience, please date stamp and return this page in the stamped, self-addressed envelope I've included.

Thank you for your kind assistance.

Yours truly, Robert M. Rader Senior Attorney Office of the General Counsel Nuclear Regulatory Commission (301) 415-1955 (voice)

(301) 415-3200 (fax)

Robert. RaderCanrc.gov (e-mail) cc: Counsel of Record

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse at Foley Square 40 Centre Street, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Caotion fuse short titlel Docket Number(s): 08-1454oag Brodsky v. U.S. Nuclear Regulatory Commission Motion for: Dismissal and denial of the Petition for Review Set forth below precise, complete statement of relief sought:

Dismissal of the Petition for Review; Summary denial of any portion not dismissed M OV ING PARTY: U.S. Nuclear Regulatory CommissioniFederal Respondents OPPOSING PARTY: Brodsky/Petititioner 1- Plaintiff 0 Defendant U Appellant/Petitioner 0 Appellee/Respondent MOVING ATTORNEY: Robert M.Rader OPPOSING ATTORNEY [Name]: Richard L.Brodsky

[name of attorney, with ,firm, address, phone number and e-mail] [name of attorney, with firm, address, phone number and e-mail]

U.S. Nuclear Regulatory Commission, Mail Stop 0-15D21, Washington DC 20555 Assemblyman, 92nd District, Westchester County, State of New York 301-415-1955 Legislative Office Building, Room 422, Albany, NY 12228 Robert.Rader@nrc.gov 518-455-5753 richardbrodsky@msn.com Court-Judge/Agency appealed from: U.S. Nuclear Regulatory Commission Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL:

Has consent of opposing counsel: Has request for relief been made below? El Yes El No A. been sought? E] Yes 0 No B. been obtained? O] Yes El No Has this relief been previously sought in this Court? Ml Yes [I No Is oral argument requested? El Yes 23 No (requests for oral argument will not necessarily be granted) ' Requested return date and explanation of emergency:

Has argument date of appeal been set? E Yes 0] No If yes, enter date Sig at* 7goM

re of M o v ginpttor~e k v.- -y.-,,--l- Date: L , Has service been effected?

(--) [Attach proof of service] 0 Yes [D No ORDER IT IS HEREBY ORDERED THAT the motion is GRANTED DENIED.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, Clerk of Court Date: By:

Form T-1080 (Revised 10/31/02),

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

)

RICHARD L. BRODSKY, et al., )

)

Petitioners, )

) Motion to Dismiss V. )

)

U.S. NUCLEAR REGULATORY COMMISSION ) Docket No. 08-1454-AG

)

and )

)

)

UNITED STATES OF AMERICA, )

)

Respondents. )

Federal Respondents' Motion to Dismiss Preliminary Statement Petitioners, a New York State Assemblyman and various organizations, seek review of an order of respondent Nuclear Regulatory Commission' issued January 30, 2008, denying petitioners a hearing on the NRC's grant of an exemption to the 1 We refer to the Commission as the collegial body of Commissioners who direct the activities of the NRC, and to the NRC as the entire agency.

licensee of Indian Point Nuclear Generating Unit No. 3. The petition for review asks that this Court review the exemption on its merits, vacate the exemption and remand to the Commission for further action.

The sixty days provided by statute (28 U.S.C. § 2344) for petitioners to seek judicial review of the exemption - issued in October 2007 - long since expired when petitioners filed suit on March 26, 2008. Petitioners' hearing request to the Commission on December 3, 2008 did not toll the running of the sixty days.

Therefore, this Court lacks jurisdiction over petitioners' merits-related challenge to the exemption.

As for the petitioners' hearing request, the Commission correctly denied it.

Under established law, "the grant of an exemption from a generic requirement does not constitute an amendment to the reactor's license that would trigger hearing rights." See Secretary of the Commission letter, Jan. 30, 2008 (Exh. 1)

(quoting Kelley v. Selin, 42 F.3d 1501, 1517 (6th Cir. 1995)).

This petition for review should therefore be rejected summarily.

2

Procedural History On September 28, 2007, the NRC noticed its issuance of an exemption, which revised certain exemptions it had already granted years ago to the licensee of Indian Point 3. The new exemption allows an alternative, equivalent means of compliance with NRC regulations for ensuring the reactor's capability to shut down safely in the event of a fire. See 72 Fed. Reg. 56798 (Oct. 4, 2007)(Exh. 2).

On December 3, 2007, petitioners filed with the Commission an objection to the grant of the exemption, a petition to reconsider, and a request for a hearing with a petition for leave to intervene and proposed contentions for the putative hearing.

The Commission denied this relief on January 30, 2008 (Exh. 1).

Argument I. The petition's challenge to the exemption is untimely.

This Court need not determine whether or how it would review the challenged exemption on its merits. Insofar as it seeks merits review, the petition for review should be dismissed as untimely. Under the Hobbs Act, a petition to review an NRC order must be filed within 60 days of the entry of the NRC order sought to be reviewed. 28 U.S.C. § 2344. This timeliness requirement is mandatory and jurisdictional, and may not be judicially altered or expanded.

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Stone v. INS, 514 U.S. 386, 405 (1995)("strict fidelity" to Hobbs Act required). 2 It is not subject to equitable tolling. Stone, 514 U.S. at 405. Strict enforcement of this filing deadline in NRC cases is shown in such cases as City of Benton v. NRC, 136 F.3d 824 (D.C. Cir. 1998), which dismissed a petition that cited an interlocutory order rather than the final order intended for review. See also NRDC

v. NRC, 666 F.2d 595, 602 (D.C. Cir. 1981).

Petitioners challenge the exemption published in the Federal Register on October 4, 2007. 72 Fed. Reg. 56798. For non-hearing orders like an exemption, assuming the orders are reviewable at all, public notice in the Federal Register commences the 60-day filing period. See, e.g., North American Catholic Education ProgrammingFoundationv. FCC,437 F.3d 1206, 1208 (D.C. Cir.

2006); Arctic Express, Inc. v. DOT, 194 F.3d 767, 770 (6th Cir. 1999); Friendsof SierraRailroad,Inc. v. ICC, 881 F.2d 663, 667-78 (9t" Cir. 1989). Therefore, 2See also New York v. United States, 568 F.2d 887, 892 (2d Cir. 1977). Accord, Brazoria County v. EEOC, 391 F.3d 685, 688 (5 th Cir. 2004); CaliforniaAss'n of the Physically Handicapped,Inc. v. FCC,833 F.2d 1333, 1334 (9th Cir. 1987);

NRDC v. NRC, 666 F.2d 595, 602 (D.C. Cir. 1981). The 60-day limit embodies the intent of Congress to "impart finality into the administrative process, thereby conserving judicial resources and protecting the reliance interest of those who might confirm their conduct to the administrative regulations." NRDC, 666 F.2d at 602.

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insofar as petitioners challenge the exemption merits (as distinct from denial of their hearing request), their petition is untimely.

The pleading filed by petitioners with the Commission 3 on December 3, 2007, seeking reopening and an NRC hearing, did not toll the running of the 60 days. First, the Commission explicitly made the exemption "effective upon issuance." Exh. 1 at 56801. Publication of an immediately effective order starts the calendar, and underscores the availability of judicial review. See Massachusettsv. NRC, 924 F.2d 311, 322 (D.C. Cir. 1991).

Second, petitioners' request that the Commission "reopen for consideration" the grant of the revised exemption is nowhere authorized by statute or regulation.

While the Commission entertains motions to reopen and to reconsider in its adjudicatory hearing cases, 4 no such mechanism exists in non-hearing cases such

'We append the first page of petitioners' filing with the Commission, entitled "Objection to Grant of Exemption and License Amendment, Petition to Reopen for Consideration, Petition for Leave to Intervene and Request for Hearing, and Contentions (Exh. 3). Another version of this filing accompanied the Petition for Review here. Although petitioners labeled their filing with the Commission "security related," none of those pleadings or attachments was, in fact, security related. The entire pleading with attachments is a publicly available record.

4 In those cases, the Commission requires that any motion to reconsider be filed within 10 days of the decision. 10 C.F.R., § 2.345. Motions to reopen a closed (continued...)

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as an exemption. In ICC v. Brotherhoodof Locomotive Engineers, 482 U.S. 270, 284 (1987),the Supreme Court held that a timely petition for reconsideration under establishedagency procedures for hearings tolls the 60-day filing period under 28 U.S.C. § 2344. That case has no play here. Petitioners cannot, by bootstrap, extend the time for filing by invoking agency procedures that do not exist.

The Locomotive Engineers tolling principle applies to "timely" petitions for reconsideration only. See Williston Basin Interstate Pipeline Co. v. FERC, 475 F.3d 330, 334 (D.C. Cir. 2006). The requirement of a "timely" petition shows that there must be some rule-based or statute-based procedure in place from which timeliness can be measured. Because no NRC procedure exists for reconsideration of an exemption, however, the "timeliness" of a petition would be impossible to determine. By contrast, the Commission does have a procedure for seeking timely reconsideration of its adjudicatory hearing decisions. 10 C.F.R § 2.345 (ten days)

(...continued) record in a hearing "must be timely" and satisfy strict criteria. 10 C.F.R. § 2.326(a)(1). These rules apply to hearing cases; no such opportunity to seek reopening or reconsideration exists for agency actions noticed in the Federal Register for which an opportunity for hearing is not offered, especially, as here, an order made immediately effective.

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Accordingly, petitioners here cannot resuscitate a late challenge to the exemption simply by asking the Commission to reopen or reconsider its "inmniediately effective" action noticed in the Federal Register, especially when the Commission's regulations provide no such relief. They cannot "do indirectly what

... is forbidden by statute from doing directly," that is, "seek review.., even though [they] could have but did not seek direct review" of the underlying agency action. NRDC v. NRC, 666 F.2d at 601. To hold otherwise would "permit back door procedural challenges by those who had the opportunity to seek direct review of [agency actions] but failed to do so in a timely fashion." Id. at 602.

II. An exemption is not a licensing action or rulemaldng.

As shown, petitioners are too late to ask for a substantive review of the exemption. Insofar as their petition for judicial review challenges the Commission's rejection of their hearing request, this Court does have jurisdiction (see FloridaPower & Light Co. v. Lorion, 470 U.S. 729 (1985)), but the petition should be summarily denied. The grant of an exemption is not a licensing or rulemaking action under Section 189 of the Atomic Energy Act, 42 U.S.C. § 2239, that triggers a right to a hearing. Section 189(a) grants hearing rights to persons whose interest "may be affected by the proceeding" where the proceeding is "for 7

the granting, suspending, revoking, or amending of any license" or "for the issuance or modification of rules and regulations dealing with the activities of licensees."

In this case, the NRC's grant of an exemption for Indian Point 3 did not grant or amend the plant's operating license, or issue or modify any rule. An exemption is not one of the NRC actions Section 189 lists as triggering a hearing.

Accordingly, no right to a hearing existed here.

Every court to consider this issue has rejected the attempt to cloak the NRC's exemptions with the mantle of a license amendment. As the Sixth Circuit made clear in Kelley v. Selin, 42 F.3d 1501 (6th Cir. 1995), "the mere grant of an exemption... does not trigger a right to an adjudicatory hearing on the part of petitioners." Id. at 1514. Or, putting it in terms of Section 189, "the grant of an exemption from a generic requirement does not constitute an amendment to the reactor's license that would trigger hearing rights."Id. at 1517. As the Court explained:

[N]ot every proposed action falls under this provision; the right to automatic participation applies only when the agency acts in a matter provided for in § 189(a), which includes matters generally concerned with the licensing process.... If the Commission did not have such authority, and public participation were automatically required for any agency action, the public would be entitled to an-unrestrained platform that would disable the Commission and effectively prevent it 8

from taking any action."

42 F.2d at 1514 (citing Bellotti v. NRC, 725 F.2d 1380, 1382 (D.C. Cir. 1983).

See also Massachusetts v. NRC, 878 F.2d 1516, 1521 (1st Cir. 1989)(exemption from emergency drill regulation did not trigger hearing rights). Inasmuch as the license for Indian Point 3 was not amended, no basis exists for petitioners to demand a hearing.

As it has consistently done in the past, however, the Commission would, if requested by petitioners, consider and respond to their substantive safety concerns about the exemption under its citizens' petition process in 10 C.F.R. § 2.206. See, e.g., FloridaPower & Light Co. v. Lorion, 470 U.S. 729 (1985); Riverkeeper v.

Collins, 359 F.3d 156, 158 (2d Cir. 2004). The courts have noted, in fact, that persons like petitioners are "not without recourse" inasmuch as they may file a Section 2.206 petition. Kelley v. Selin, 42 F.3d at 1515.

Conclusion The petition is untimely insofar as it seeks a merits review of the exemption granted to Indian Point 3. The 60-day period for filing was far exceeded and was not tolled by petitioners' request for a hearing. As for petitioners' hearing request, Section 189 of the Act does not provide for hearings on exemptions such as the 9

fire protection exemption at issue here. So, the NRC lawfully refused to grant a hearing here. The NRC has never offered an opportunity for hearing in such as case, nor is it required to do so under Section 189. Accordingly, this case petition for review should be dismissed for lack of jurisdiction insofar as it seeks merits review, and denied summarily insofar as it challenges the Commission's denial of a hearing.

Respectfully submitted, KAREN D. CYR ELLEN DURKEEB General Counsel Attorney Appellate Section Environmental and Natural JOHK F. CORDES, JR.

Resources Division Solicitor U.S. Department of Justice P.O. Box 23795 Washington, D.C. 20026-3795 E. LEO SLAGGIE Deputy Solicitor ROBERT M. RADER Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission (301) 415-1955 (voice)

Dated: May 2, 2008 (301) 415-3200 (fax) 10

UNITED STATES Exk. 1 NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 1-January.30, 2008 SECRETARY Susan Shapiro, Esquire 12 Perlman Drive Spring Valley, NY 10977 RE: Objection to NRC's grant of an exemption to Indian Point Unit 3

Dear Ms. Shapiro:

We received your petition on behalf of several organizations expressing your objection to the U.S. Nuclear Regulatory Commission's, (NRC) September 28, 2007 grant of an exemption concerning Indian Point Unit 3 fire protection standards. The action you are challenging is an exemption from NRC regulations; it is not a license amendment as asserted in your petition. In Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-00-5, 51 NRC 90 (2000), the Commission examined the text and legislative history of §189a. of the Atomic Energy Act and concluded that the Atomic Energy Act does not provide for hearings on exemptions from NRC regulations. See also Kelley v. Selin, 42 F.3d 1501, 1517 (6 th Cir. 1995), ("ITihe grant of an exemption from a generic requirement does not constitute an amendment to the' reactor's license that would trigger hearing rights.") Accordingly, your request for a hearing is denied.

Sincerely, Annette Vietti-Cook Martin J. O'Neill, Esquire

56798 Federal Register/Vol. 72, No. 192/Thursday, Qctober 4, 2007/Notices Lxh. Z Federal Register of a permit The facility consists of a pressurized- provided. The basis for this exemption applications received. Permits were water reactor located in Westchester included the partial spatial separation issued on October 1, 2007 to: Andrea County, New York. between the redundant safe-shutdown Polli, Permit No. 2008-001. Robert A. trains, the low fire loading in the area, 2.0 Request/Action Garrott, Pennit No. 2008-016. and the existing fire protection features Title 10 of the Code of Federal including an automatic fire detection Nadene G. Kennedy, Regulations (10 CFR), Part 50, § 50.48, system, manual hose stations and Penrmit Officer. requires that nuclear power plants that portable extinguishers, a partial-height lFR Doc. E7-19611 Filed 10-3-07; 8:45 am] were licensed before January 1, 1979, of non-combustible barrier designed to BILLING CODE 7555-01-P which IP3 is one, must satisfy the protect redundant equipment against requirements of 10 CFR Part 50, radiant heat from a fire, and a 1-hour Appendix R,Section III.G. Subsection rated Hemyc cable wrap around the NATIONAL SCIENCE FOUNDATION III.G.2 addresses fire protection features normal power feed to the redundant for ensuring that one of the redundant Component Cooling Water (CCW) Pump Notice of Permits Issued Under the trains necessary to achieve and maintain 33.

Antarctic Conservation Act of 1978 hot shutdown conditions remains free of Testing by the NRC in 2005 identified AGENCY: National Science Foundation. fire damage in the event of a fire. Hemyc electrical raceway fire barrier ACTION: Notice of permits issued under Subsection III.G.2.c provides use of a 1- system (ERFBS) as a potential hour fire barrier, in addition to installed nonconforming barrier, potentially not the Antarctic Conservation of 1978, fire detection and automatic fire Public Law 95-541.

capable of providing a 1-hour fire rating, suppression in the area, as one means and Information Notice (IN) 2005-07,

SUMMARY

The National Science for complying with this fire protection "Results of HEMYC Electrical Raceway Foundation (NSF) is required to publish requirement. Fire Barrier System Full Scale Fire In an NRC letter and safety evaluation Testing," and Generic Letter (GL) 2006-notice of permits issued under the Antarctic Conservation Act of 1978. (SE) dated February 2, 1984, the NRC 03, "Potentially Nonconforming Hemnyc granted the licensee exemptions from and MT Fire Barrier Configurations,"

This is the required notice.

the requirements of Appendix R, were issued to licensees to inform them FOR FURTHER INFORMATION CONTACT: Section III.G.2, for Fire Area ETN-4 Nadene G. Kennedy, Permit Office, of the issue and to collect information (Fire Zones 7A, 60A and 73A) to the regarding Hemyc fire.barrier Office of Polar Programs, Rm. 755, extent that redundant safe-shutdowni installations. In response to GL 2006-National Science Foundation, 4201 trains are not separated by more than 20 Wilson Boulevard, Arlington, VA 22230. feet without intervening combustibles or 03, ENO informed the NRC that they had declared the Hemyc ERFBS at IP3 SUPPLEMENTARY INFORMATION: On August fire hazards, and that redhmdant safe- inoperable and implemented temporary 27, 2007, the National Science shutdown trains are not separated by 1- compensatory measures including an Foundation published a notice in the hour rated fire barrier in anarea hourly fire watch and verification that Federal Register of a permit application protected by automatic fire detection fire detection systems are operable in received. A pernmit was issued on and suppression systems. The the affected fire areas umtil compliance September 28, 2007 to: Mahlon C. exemption was based on the minimum is restored for the Hemyc ERFBS. In a Kennicutt, Permit No. 2008-014. of 12' spatial separation between the letter dated July 24, 2006, ENO stated redundant trains, minimal fire hazards they would modify the installed Hemyc Nadene G. Kennedy, in the area, the use of asbestos-jacketed ERFBS based on the test results. This Permit Officer. flame-retardant cables, and the installed would provide at least a 24-minute rated

[FR Doc. E7-19622 Filed 10-3-07; 8:45 am] automatic fire detection and cable tray fire barrier for cable tray configurations, BILLING CODE 7555-01-P suppression systems. and a 30-minute rating for conduit and Following a comprehensive box configurations, between redundant reassessment of the IP3 Appendix R trains of safe-shutdown equipment and NUCLEAR REGULATORY compliance basis, the licensee identified cables, which is less than the previously the need for additional separation approved 1-hour fire barrier. ENO COMMISSION measures and installed 1-hour rated fire asserted that in light of the minimal fire

[Docket No. 50-286] wraps on several redundant safe- hazards and the existing fire protection shutdown raceways in Fire Area ETN- features in the affected fire areas, this Entergy Nuclear Operations, Inc., 4 (Fire Zones 7A, 60A and 73A). By SE configuration continues to satisfy the Entergy Nuclear Indian Point 3, LLC, dated January 7, 1987, the NRC accepted basis for an exemption in accordance Indian Point Nuclear Generating Unit the use of 1-hour rated fire barriers in with 10 CFR 50.12.

No. 3.; Revision to Existing the above fire area and confirmed In summary, by letter dated July 24, Exemptions continued validity of the exemption 2006, and supplemental letters dated granted by the February 2, 1984 SE. IP3 April 30, May 23, and August 16, 2007, 1.0 Background used the Hemyc fire barrier system to responding to the NRC staff's request for Entergy Nuclear Operations, Inc. provide the 1-hour rated fire barriers. In additional information, ENO submitted (ENO or the licensee) is the holder of the January 7, 1987 SE, the NRC also a request for revision of existing Facility Operating License No. DPR-64, approved an exemption from Appendix exemptions for the Upper and Lower which authorizes operation of the R,Section III.G.2, separation Electrical Tunnels (Fire Area ETN-4, Indian Point Nuclear Generating Unit requirements for Fire Area PAB-2 (Fire Fire Zones 7A and 60A, respectively),

No. 3 (IP3). The license provides, among Zone 1) to the extent that redundant and the Upper Penetration Area (Fire other things, that the facility is subject safe-shutdown trains are not separated Area ETN-4, Fire Zone 73A), to the to all rules, regulations, and orders of by more than 20 feet without extent that 24-minute rated fire barriers the Nuclear Regulatory Commission intervening combustibles or fire are used to protect redundant safe-(NRC or the Commission) now or hazards, and that an automatic shutdown trains located in the above hereafter in effect. suppression system has not been fire areas in lieu of the previously

Federal Register/Vol. 72, No. 192/Thursday, October 4, 2007/Notices 56799 approved 1-hour rated fire barriers per minutes, with asbestos-jacketed flame- Box-Type Configuration the January 7, 1987 SE. For the 41' retardant cable insulation being the The Hemyc-wrapped Box-Type Elevation CCW Pump Area (Fire Area predominant combustible. The licensee Configuration installed in Fire Area PAB-2, Fire Zone 1) ENO is requesting states that the asbestos-jacketed cable ETN-4 (Fire Zone 73A) is comparable to a revision of the existing exemptions to would not constitute a significant Configuration 2G in NRC Test 2, except the extent that a 30-minute rated fire component of the fuel source due to the for the lack of the stainless steel over-barrier is provided to protect redundant flame-retardant nature of the cable. banding. These enclosures are protected safe shutdown trains located in the Based on a November 22, 1982, letter by a direct-attached 2"-thick Hemyc same fire area. that included results of testing of blanket wrap. Both NRC and industry-3.0 Discussion asbestos-jacked cable, NRC staff sponsored tests indicated that box-type concludes that the ignition sources in configurations provided at least 30 Pursuant to 10 CFR 50.12, the the area are unlikely to cause fire minutes of thermal protection when Commission may, upon application by propagation along the cables to a any interested person or upon its own tested in accordance with ASTM E-119.

significant degree, and therefore, it is However, to more closely reflect initiative, grant exemptions from the reasonable to exclude the asbestos- Configuration 2G, the licensee is requirements of 10 CFR Part 50 when (1) jacketed cable from being considered a the exemptions are authorized by law, committed to install over-banding on hazard within the area. the Box-Type Configuration at IP3.

will not present an undue risk to public health or safety, and are consistent with For the 41' Elevation CCW Pump Area (PAB-2, Fire Zone 1), the current IP3 Cable Tray Configuration the common defense and security; and (2) when special circumstances are Fire Hazard Analysis indicated a fire The Hemyc-wrapped Cable Tray present. One of these special severity of less than 10 minutes. Configuration installed in Fire Area circumstances, described in 10 CFR Combustibles are predominantly ETN-4 (Fire Zones 7A and 73A) is 50.12(a)(2)(ii), is that the application of attributed to the CCW pump bearing comparable to Configuration 2B and 2D the regulation is not necessary to lubricating oil and transient materials. of NRC Test 2. These cable trays are achieve the underlying purpose of the 3.2 Rated Fire Wraps protected by a 1-1/2"-thick Hemyc rule. blanket wrap with a nominal 2" air gap The underlying purpose of Subsection The licensee has performed an between the protected cable tray and the III.G.2 of 10 CFR 50, Appendix R, is to engineering evaluation to compare the blanket. Fire tests conducted by both ensure that one of the redundant trains details of the NRC-sponsored Hemyc NRC and industry indicated that these necessary to achieve and maintain hot fire test configurations as reported in Hemyc-wrapped cable tray shutdown conditions remains free of NRC IN 2005-07, "Results of Hemyc configurations will provide at least 24 fire damage in the event of a fire. The Electrical Raceway Fire Barrier System minutes of thermal protection in provisions of III.G.2.c through the use of Full Scale Fire Testing," with the details accordance with the ASTM E-119 time-a 1-hour fire barrier with fire detectors of the installed Hemyc ERFBS at IP3. temperature profile. -

and an automatic fire suppression The evaluation established that the Based on the above, the NRC staff system is one acceptable way to comply configurations are comparable in most concludes that the licensee has with this fire protection requirement. cases. Where differences were noted, adequately demonstrated a 30-minute The NRC staff reviewed the licensee s minor enhancements to the ERFBS rated fire wrap for the 4-Inch Conduit evaluation in support of the subject supports and installation of additional Configuration and Box-Type exemption revision request for a 24- over-banding on certain enclosures will Configuration. The Cable Tray minute rated fire barrier for ETN-4, and be performed to upgrade the Configuration has been adequately 30-minute rated fire barrier for PAB-2, configurations. Based on these demonstrated to provide a 24-minute in lieu of a 1-hour rated barrier, and upgrades, the licensee expected the rated fire wrap.

concluded that given the existing fire Hemyc ERFBS at IP3 to provide at least 24 minutes of protection for cable tray 3.3 Existing Fire Protection Features protection features in the affected fire zones, ENO continues to meet the configuration, and 30 minutes for Fire Area ETN-4 contains the Upper underlying purpose of 10 CFR Part 50, conduit and box-type configurations, as and Lower Electrical Tunnels (Fire Appendix R, Subsection III.G.2 for the demonstrated by comparison to relevant Zones 7A and 60A, respectively) and cable tray, conduit and junction box NRC-tested configurations. The the Upper Penetration Area (Fire Zone configurations. The following technical following are comparisons between the 73A). This area is separated from other evaluation provides the basis for this IP3 Hemyc installations and NRC- plant areas by 3-hour rated fire barriers.

conclusion. sponsored test configurations: Automatic fire detection systems and automatic cable tray fire suppression 3.1 Fire Hazards 4-Inch Conduit Configuration systems are installed in the area.

The licensee stated that the fire The Hemyc-wrapped 4-Inch Conduit Manual fire suppression features hazards and ignition sources in both Configuration installed in Fire Area including accessible fire hose stations Fire Areas ETN-4 and PAB-2 remain ETN-4 (Fire Zones 60A and 73A) and and portable fire extinguishers are also materially unchanged from those Fire Area PAB-2 (Fire Zone 1) is provided.

described in the SEs dated February 2, comparable to Configuration 1A in NRC Fire Area PAB-2 contains the 41' 1984, and January 7, 1987. For Fire Area Test 1. These are 4" conduits protected Elevation CCW Pump Area (Fire Zone ETN-4, the ignition sources consist of by a direct-attached 2"-thick Hemyc 1). This fire area is separated from other limited transient combustibles (in all blanket wrap. Tests performed by both fire areas by 3-hour rated fire barriers.

fire zones), and several instrument NRC and industry indicated that this There is a portion of open grating from cabinets and a 3kVA 480V/120V configuration provides at least 30 this area to the 55' elevation above.

instrument power transformer in Fire minutes of protection from an exposed However, the open grating is located Zone 73A. The current IP3 Fire Hazard fire using the American Society for approximately 9 feet to the east of the Analysis calculated the fire severity in Testing and Materials (ASTM) standard CCW pumps; therefore, there is no Fire Area ETN-4 to be less than 60 E-119 time-temperature profile. potential for combustible liquids to drip

56800 Federal Register/Vol. 72, No. 192/Thursday, October 4, 2007/Notices directly onto the CCW pumps area. suppression activities will not prevent With the proposed additional Furthermore, the area on the 55' the safe shutdown of the plant. protection of electrical raceway elevation only houses components such The NRC staff has evaluated the supports and installation of over-as the CCW heat exchangers, boric acid elements of DID used for fire protection banding on Hemyc box configurations, transfer pump, air receivers, and various at IP3, applicable to the fire zones under the modified fire barrier configurations compressed air and gas tanks that review. The staff was concerned about are expected to afford at least 24 normally contain minimal combustible the introduction of additional ignition minutes for cable tray configurations liquids. Automatic fire detection sources and transient combustibles into and 30 minutes of protection for conduit systems and manual fire suppression the affected areas. However, the concern and box configurations. Since the features in the form of accessible fire is addressed by existing administrative Hemyc ERFBS is expected to provide hose stations and portable fire controls at IP3 which effectively limit only 24 or 30 minutes of protection for extinguishers are provided in this fire transient combustibles to a level that redundant components and cables in zone. In addition, a 7' partial height, would not significantly challenge the the event of a fire, the NRC staff was noncombustible barrier is installed existing fire protection features in the concerned about the fire loading in Fire around the redundant 33 CCW Pump to affected areas. The administrative Area ETN-4 (Fire Zone 60A). However, shield this pump from radiant heat in control procedures at IP3 ensure that in light of the properties of the asbestos-the event of a fire in the other CCW transient combustibles, which may jacketed cables and the installed fire pumps area. exceed the allowable limit, will not be detection and automatic and manual suppression systems in the area, the 3.4 EnhancedAdministrative Controls introduced into the affected fire zones staff determined that a credible fire in of Hot Work and Transient without prior evaluation by a qualified Fire Protection Engineer, and without Fire Zone 60A will be limited in Combustibles severity and would not challenge the appropriate additional compensatory The licensee stated that measures. The three CCW pumps make 24- or 30-minute barriers. For Fire Area administrative controls of hot work and up the ignition sources in the 41' PAB-2 (Fire Zone 1), the NRC staff also transient combustibles have improved Elevation CCW Pump Area (Fire Zone concluded that the 30-minute fire since the previous exemptions. IP3 1). Each of these pumps contain a small barrier rating is adequate in protecting administrative procedures now amount of lubricating oil, with a the redundant safe shutdown equipment designated Fire Areas ETN-4 and PAB- combined fire severity of less than 10 due to the lack of significant 2 as "Level 2" combustible control minutes. As such, a significant fire is combustible loading in the area, the areas, which constrain transient not expected to develop in this fire partial fire wall which localizes a combustibles to "moderate" quantities zone. The Upper Electrical Tunnel, Fire postulated fire from affecting redundant as follows: Zone 60A, contains no fixed ignition equipment, and the available fire El 100 pounds of fire retardant treated sources, and the combustible load detection and manual suppression lumber, or -consists of primarily asbestos-jacketed systems.

Based on the limited ignition sources El 25 pounds of loose ordinary cables. Therefore, based upon combustibles .or plastics, or and administrative controls satisfying consideration of the limited fire ignition DID objective 1, in conjunction with El 5 gallons of combustible liquids sources and fire hazards in the affected stored in approved containers, or installed fire detection and suppression areas, and the existing administrative E] One pint of flammable liquids features which adequately satisfy DID controls of hot works and transient stored in approved containers, or objective 2, the NRC staff concluded combustibles at IP3, the staff concludes that the minimal combustibles in the El One 20 ounce flammable aerosol that objective one of DID is adequately can. areas and existing active/passive fire met.

protection features can compensate for Any planned introduction of transient Based on the evaluation of fire the reduction in DID of objectives 3 and combustibles that is more than the detection and suppression systems would not impact IP3 post-fire safe-allowable amount will require prior provided in the affected fire zones, the shutdown capability.

review and approval by a Fire NRC staff determined that any Protection Engineer. In addition, any postulated fire is expected to be 3.6 Authorized byLaw planned hot work in Fire Areas ETN-4 promptly detected by the available This exemption would allow use of a and PAB-2 will also require prior automatic fire detection systems in Fire fire barrier expected to provide less than review and approval by a Fire Area ETN-4 (Fire Zone 60A) and Fire 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> of fire protection. As stated in Protection Engineer. The review will Area PAB-2 (Fire Zone 1). Fire Zone Section 3.0 above, 10 CFR 50.12 allows determine if additional protective or 60A is provided with an automatic cable the NRC to grant exemptions from the

,compensatory measures is required. tray fire suppression system, as well as requirements of 10 CFR Part 50. The manual suppression equipment. Fire NRC staff has determined that granting 3.5 Evaluation Zone 1 is provided with manual fire of the licensee's proposed exemption 10 CFR Part 50, Appendix R, Section suppression only. The available fire will not result in a violation of the II states that a licensee's fire protection detection and suppression equipment in Atomic Energy Act of 1954, as amended, program shall extend the concept of these fire zones ensure that a postulated or the Commission's regulations.

defense-in-depth (DID) to fire protection fire will not be left unchallenged. In Therefore, the exemption is authorized with the following objectives: addition: since Fire Zone 1 and 60A by law.

1. To prevent fires from starting, contain low combustible loading, the

2. To detect rapidly, control, and NRC staff concluded that the reduction 3.7 No Undue Risk to Public Health extinguish promptly those fires that do in the level of DID due to the lack of an and Safety occur, and areawide automatic fire 'suppression The underlying purpose of Subsection

3. To provide protection for system in these fire zones does not III.G.2 of 10 CFR Part 50, Appendix R, structures, systems, and components affect the prompt detection and is to ensure that one of the redundant important to safety so that a fire. that is suppression capability of DID objective trains necessary to achieve and maintain not promptly extinguished by the fire 2. hot shutdown conditions remains free of

Federal Register/Vol. 72, No. 192/Thursday, October 4, 2007/Notices 56801 fire damage in the event of a fire. Based staff concludes that this exemption This exemption is effective upon on the existing fire barriers, fire meets the underlying purpose of the issuance.

detectors, automatic and manual fire rule. Dated at Rockville, Maryland, this 28th day suppression equipment, administrative of September 2007.

controls, the fire hazard analysis, the 4.0 Conclusion For the Nuclear Regulatory Commission.

Hemyc configuration, and the absence Accordingly, the Commission has determined that, pursuant to 10 CFR Catherine Haney, of significant combustible loads and 50.12(a), the exemption is authorized by Director,Division of OperatingReactor ignition sources, the NRC staff judges Licensing, Office of NuclearReactor that application of Subsection III.G.2 of law, will not present an undue risk to Regulation.

10 CFR Part 50, Appendix R, for these the public health and safety, and is

[FR Doc. E7-19663 Filed 10-3-07; 8:45 am]

Fire Areas is not necessary to achieve consistent with the common defense BILLING CODE 7590-01-P the underlying purpose of this and security. In addition, a special regulation. No new accident precursors circumstance is present such that the are created by allowing use of a fire application of the regulation in these NUCLEAR REGULATORY barrier expected to provide less than 1 particular circumstances is not COMMISSION hour of fire protection and the necessary to achieve the underlying probability of postulated accidents is purpose of the rule. Therefore, the [Docket No. STN 50-456]

not increased. Similarly, the Commission hereby grants ENO an consequences of postulated accidents exemption from the requirement of Exelon Generation Company, LLC; are not increased. Therefore, there is no Section III.G.2 of 10 CFR Part 50, Braidwood Station, Unit 1; Exemption undue risk (since risk is probability Appendix R, for Fire Area ETN-4 (Fire 1.0 Background multiplied by consequences) to public Zones 7A, 60A, and 73A) and Fire Area health and safety. PAB-2 (Fire Zone 1) at IP3, provided Exelon Generation Company, LLC that the existing Hemyc ERFBS in these (Exelon, the licensee) is the holder of 3.8 Consistent With Common Defense Facility Operating License No. NPF-72, and Security areas are modified to achieve at least a 24-minute fire resistance rating for cable which authorizes operation of The proposed exemption would allow tray configuration and 30-minute fire Braidwood Station, Unit 1. The license use of a fire barrier expected to provide resistance rating for conduits and box provides, among other things, that the less than 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> of fire protection based configurations, consistent with the facility is subject to all rules, on the existing fire barriers, fire licensees comparison to the NRC's regulations, and orders of the Nuclear detectors, automatic and manual fire tested configurations as documented in Regulatory Commission (NRC, the suppression equipment, administrative Entergy Engineering Report IP-RPT Commission) now or hereafter in effect.

controls, the fire hazard analysis, the The facility consists of two 00062, Revision 0, "Comparison of IP3 Hemyc configuration, and the absence pressurized-water reactors located in Hemyc Electrical Raceway Fire Barrier of significant combustible loads and Will County in Illinois.

System to NRC Hemyc Fire Test ignition sources. This change to the Results," which meet ASTM-E-119 2.0 Request/Action plant requirements for the specific temperature rise acceptance criteria.

configuration in this fire zone has no Title 10 of the Code of Federal The modifications, as committed in Regulations (10 CFR), Part 50, section relation to security issues. Therefore, Entergy Letter NL-07-061, dated May the common defense and security is not 50.46, 23, 2007, will include:

impacted by this exemption. "Acceptance criteria for emergency core Complete modification (including cooling systems for light-water nuclear power 3.9 Special Circumstances supporting engineering evaluation) to install reactors," requires, in part, "that each boiling One of the special circumstances, stainless steel over-banding (as described), or pressurized light-water nuclear power described in 10 CFR 50.12(a)(2)(ii), is additional protection of the electrical reactor fueled with uranium oxide pellets raceway supports, and protection of certain within cylindrical Zircaloy or ZIRLO that the application of the regulation is metallic penetration items, associated with not necessary to achieve the underlying cladding must be provided with an the existing Homyc ERFBS located outside emergency core cooling system (ECCS) that purpose of the rule. The underlying containment at Indian Point 3. [This is a must be designed so that its calculated purpose of Subsection III.G.2 of 10 CFR clarification of commitment 3 (licensee cooling performance following postulated Part 50, Appendix R, is to ensure that reference number COM-07-00034) made in loss-of-coolant accidents conforms to the one of the redundant trains necessary to Entergy Letter NL-06-060 dated June 8, criteria set forth in paragraph (b)of this achieve and maintain hot shutdown 2006.1 section." 10 CFR Part 50, Appendix K, conditions remains free of fire damage The licensee is also committed to "ECCS Evaluation Models," requires, among in the event of a fire. For Fire Area keep fire protection compensatory other items, that the rate of energy release, ETN-4 (Fire Zones 7A, 60A, and 73A) measures in place at IP3 until the hydrogen generation, and cladding oxidation and Fire Area PAB-2 (Fire Zone 1), the from the metal/water reaction shall be aforementioned modifications are calculated using the Baker-Just equation. 10 NRC staff finds that the existing completed. The scheduled completion CFR 50.46 and 10 CFR Part 50, Appendix K configuration described herein will date of these modifications is December make no provisions for use of fuel rods clad ensure that a redundant train necessary 1, 2008. The acceptance of this in a material other than Zircaloy or ZIRLO.

to achieve and maintain safe shutdown exemption is also based on the The Braidwood, Unit 1 core consists of a of the plant will remain free of fire licensee's stated availability of combination of Westinghouse-designed damage in the event of a fire in these administrative control procedures that VANTAGE 5 and VANTAGE+ fuel fire zones. Based upon consideration of control hot work and limit transient assemblies. Each fuel assembly has 264 fuel the information in the licensee's Fire combustibles in the affected areas. rods arranged in a 17 by 17 array. The Hazards Analysis, administrative licensee intends to insert up to eight fuel Pursuant to 10 CFR 51.32, the assemblies containing AREVA NP Inc.

controls for transient combustibles and Commission has determined that the (AREVAI modified Advanced Mark-BW(A) ignition sources, previously-granted granting of this exemption will not have (Advanced Mark-BW(A)) fuel. These exemptions for this fire zone, and the a significant effect on the quality of the assemblies will be placed in nonlimiting considerations noted above, the NRC human environment (72 FR 55254). locations of the core during Cycles 15, 16,

Securit, related in-ormation. Withhold Un-er iu.r.L..u Exh. 5 UNITED STATES NUCLEAR REGULATORY COMMISSION In the matter of ENTERGY NUCLEAR INDIAN POINT 2, L.L.C, ENTERGY )

NUCLEAR INDIAN POINT 3, L.L.C, And Entergy Nuclear ) License No. DPR 26 an Operations, Inc. and Entergy North East, Inc., regarding the ) License No. DPR 6 Indian Point Energy Center Unit 2 and Unit 3 ) Docket No. 50-247 an License Amendment Regarding Fire Protection Program ) Docket No. 50-28 OBJECTION TO GRANT OF EXEMPTION AND LICENSE AMENDMENT PETITION TO REOPOEN FOR CONSIDERATION, PETITION FOR LEAVE TO INTERVENE and REOUEST FOR HEARING, AND CONTENTIONS Westchester Citizen's Awareness Network (referred to hereinafter as "WestCAN"), Rockland County Conservation Association (referred to hereinafter as "RCCA"), and Public Health and Sustainable Energy (referred to hereinafter as "PHASE"), Sierra Club -Atlantic Chapter ("Sierra Club"),

Beyond Nuclear, and New York State Assemblyman Richard Brodsky

("Brodsky"), are individually and jointly referred to herein after as "Stakeholders", pursuant to 10 CFR § 2.309 (d) and (e), object to the Nuclear Security related information. Withhold under 10 C.F.R. 2.390 Page 1

CERTIFICATE OF SERVICE I hereby certify that I have on this 2nd day of May 2008 served upon the following, by deposit in the United States Mail, first class, postage prepaid, a copy of Federal Respondents' Motion to Dismiss and form T- 1080:

Richard L. Brodsky Assemblyman, 92 ndDistrict Westchester County, State of New York Legislative Office Building Room 422 Albany, NY 12228 Ellen J.Durkee Attorney Appellate Section Environmental and Natural Resources Division U.S. Department of Justice P.O. Box 23795 Washington, D.C. 20026-3795 Michael B. Wallace Wise Carter Child & Caraway P.O. Box 651 Jackson, MS 39205 Robert M. Rader Counsel for Federal Respondents