[Federal Register Volume 69, Number 249 (Wednesday, December 29, 2004)]
[Notices]
[Pages 78054-78055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28456]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 50-219]
Amergen Energy Company, LLC; Oyster Creek Nuclear Generating
Station; Exemption
1.0 Background
AmerGen Energy Company, LLC (the licensee), is the holder of
Facility Operating License No. DPR-16, which authorizes operation of
the Oyster Creek Nuclear Generating Station (OCNGS), a boiling-water
reactor facility, located in Ocean County, New Jersey. The license
provides, among other things, that the facility is subject to all
rules, regulations, and orders of the U.S. Nuclear Regulatory
Commission (NRC, the Commission) now or hereafter in effect. The
current operating license for OCNGS expires on April 9, 2009.
By letter dated August 10, 2004, AmerGen informed the Commission
that it had determined that it would seek renewal of its operating
license for OCNGS, but that it was unable until recently to decide to
seek license renewal for OCNGS because of events beyond its control.
AmerGen was jointly owned by Exelon and British Energy plc (BE), until
December 2003. The application stated that for several years, BE had
faced financial difficulties, and in December 2003, BE sold its share
of AmerGen to Exelon, thereby making AmerGen a wholly owned subsidiary
of Exelon Generation Company, LLC. The application stated that AmerGen
was not in a position to make a reasonable and sound business decision
to pursue license renewal at OCNGS due to facility ownership issues,
and BE's financial restraints. AmerGen stated that, in light of these
and other factors, it could not prepare and file a sufficient license
renewal application by April 9, 2004, in order to meet the 5-year time
period specified in Title 10 of the Code of Federal Regulations (10
CFR) Part 2, Section 109(b), ``Effect of timely renewal application.''
2.0 Request/Action
Section 109(b) of 10 CFR Part 2 states: ``If the licensee of a
nuclear power plant licensed under 10 CFR 50.21(b) or 50.22 files a
sufficient application for renewal of an operating license at least 5
years prior to the expiration of the existing license, the existing
license will not be deemed to have expired until the application has
been finally determined.'' This requirement for license renewal
applications was established in December 1991 in conjunction with the
publication of the final license renewal rule, 10 CFR Part 54,
``Requirements for Renewal of Operating Licenses for Nuclear Power
Plants'' (56 FR 64943).
AmerGen's application requested an exemption from the timing
requirements of 10 CFR 2.109(b), for submittal of the OCNGS license
renewal application. The exemption would allow the submittal of the
renewal application with less than 5 years remaining prior to
expiration of the operating license while maintaining the protection of
the timely renewal provision in 10 CFR 2.109(b). AmerGen further
requested that the exemption be issued at this time, subject to the
condition that it becomes effective only if, 6 months prior to
expiration of the existing facility operating license, the license
renewal proceeding is ongoing and a renewed operating license for OCNGS
has not been issued by the NRC and, only if by that time, the NRC staff
has issued both an OCNGS draft supplemental environmental impact
statement (SEIS) and an OCNGS safety evaluation report (SER) with open
items.
3.0 Discussion
Pursuant to 10 CFR 54.15, exemptions from the requirements of Part
54 are governed by Section 50.12. Pursuant to the requirements of 10
CFR 50.12, the Commission may grant an exemption from the requirements
of Part 50 when the exemption is (1) authorized by law, will not
present an undue risk to the public health and safety, and is
consistent with the common defense and security, and (2) special
circumstances are present as defined in 10 CFR 50.12(a)(2). In its
application, AmerGen stated that OCNGS met two special circumstances:
10 CFR 50.12(a)(2)(ii), ``[a]pplication of the regulation in the
particular circumstances would not serve the underlying purpose of the
rule or is not necessary to achieve the underlying purpose of the
rule;'' and 10 CFR 50.12(a)(2)(iii), ``[c]ompliance would result in
undue hardship or other costs that are significantly in excess of those
contemplated when the regulation was adopted, or that are significantly
in excess of those incurred by others similarly situated.''
The purpose of 10 CFR 2.109(b), as it is applied to nuclear power
reactors licensed by the NRC, is to implement the ``timely renewal''
doctrine of Section 9(b) of the Administrative Procedure Act (APA), 5
U.S.C. Sec. 558(c), which states:
When the licensee has made timely and sufficient application for
a renewal or a new license in accordance with agency rules, a
[[Page 78055]]
license with reference to an activity of a continuing nature does
not expire until the application has been finally determined by the
agency.
The underlying purpose of this ``timely renewal'' provision in the
APA is to protect a licensee who is engaged in an ongoing licensed
activity and who has complied with agency rules in applying for a
renewed or new license from facing license expiration as the result of
delays in the administrative process.
On December 13, 1991, the NRC published the final license renewal
rule, 10 CFR Part 54, with associated changes to 10 CFR Parts 2, 50,
and 140 in the Federal Register (56 FR 64943). The statement of
considerations (SOC) discussed the basis for establishing the latest
date for filing license renewal applications and the timely renewal
doctrine (56 FR 64962). The SOC stated that:
Because the review of a renewal application will involve a
review of many complex technical issues, the NRC estimates that the
technical review would take approximately 2 years. Any necessary
hearing could likely add an additional year or more. Therefore, in
the proposed rule, the Commission modified Sec. 2.109 to require
that nuclear power plant operating license renewal applications be
submitted at least 3 years prior to their expiration in order to
take advantage of the timely renewal doctrine.
No specific comment was received concerning the proposal to add
a 3-year provision for the timely renewal provision for license
renewal. The current regulations require licensees to submit
decommissioning plans and related financial assurance information on
or about 5 years prior to the expiration of their operating
licenses. The Commission has concluded that, for consistency, the
deadline for submittal of a license renewal application should be 5
years prior to the expiration of the current operating license. The
timely renewal provisions of Sec. 2.109 now reflect the decision
that a 5-year time limit is more appropriate.
AmerGen's application stated that the OCGNS license renewal
application would be submitted in July 2005, and that application of
the 5-year term in 10 CFR 2.109(b) for filing a license renewal
application is not necessary in this situation to achieve the purpose
of the regulation. The July 2005 filing date, which is approximately 44
months before expiration of the existing license in April 2009,
according to AmerGen will provide the NRC staff with ample time in
which to perform a full and adequate review.
Submittal of the OCNGS license renewal application approximately 44
months prior to expiration of the operating license would provide a
review period exceeding the 3 years the NRC originally estimated was
needed to review a renewal application and complete any hearing that
might be held on the application. The NRC's current schedule for review
of license renewal applications, which has been met for all renewal
applications to date, is to complete its review and make a decision on
issuing the renewed license within 22 months of receipt without a
hearing. If a hearing is held, the NRC's model schedule anticipates
completion of the staff's review, the hearing process, and issuance of
a decision on issuing the license within 30 months of receipt. However,
it is recognized that the estimate of 30 months for completion of a
contested hearing is subject to variation in any given proceeding. A
period of 44 months, nevertheless, is expected to provide sufficient
time for performance of a full and adequate safety and environmental
review, and completion of the hearing process. Meeting this schedule is
based on a complete and sufficient application being submitted in July
2005, and on the review being completed in accordance with the NRC's
established license renewal review schedule.
In summary, the licensee has demonstrated that application of the
subject regulation is not necessary to achieve the underlying purpose
of the rule, thus meeting the criterion specified in 10 CFR
50.12(a)(2)(ii). Accordingly, the NRC staff agrees that special
circumstances are present to justify the requested exemption.
It should be noted, though, that AmerGen requested that the
exemption be issued now, to become effective only if circumstances were
such that the NRC staff has not issued the renewed license for OCNGS 6
months prior to expiration of its existing operating license. Among the
key matters central to resolution of issues associated with renewal of
the operating license and also to the application of the ``timely
renewal'' doctrine is the submission of a sufficient application.
Completing the license renewal review process on schedule is, of
course, dependent on licensee cooperation in meeting established
schedules for submittal of any additional information required by the
NRC, and the resolution of all issues demonstrating that issuance of a
renewed license is warranted.
Therefore, the exemption is contingent upon the following
conditions being met: (1) On or before July 29, 2005, AmerGen must
submit a sufficient license renewal application for OCNGS which the NRC
staff finds acceptable for docketing in accordance with 10 CFR 2.101
and the requirements of 10 CFR Part 54; (2) to ensure timely completion
of the review process, AmerGen must provide any requested information
as necessary to support the completion of the NRC staff's safety and
environmental reviews in accordance with the review schedule issued by
the NRC.
The NRC does not specifically condition the exemption subject to
issuance of a draft license renewal SE and associated draft SEIS,
despite the licensee's proposal to do so inasmuch as ``timely renewal''
requires only that the licensee submit a sufficient license renewal
application in accordance with the agency's rules, in order for the
existing license not to expire until there is a final agency
determination. Of course, pending final action on the license renewal
application, the NRC will continue to conduct all regulatory activities
associated with licensing, inspection, and oversight, and will take
whatever action may be necessary to ensure adequate protection of the
public health and safety. The existence of this exemption does not
affect NRC's authority, applicable to all licenses, to modify, suspend,
or revoke a license for cause, such as a serious safety concern.
4.0 Conclusion
Accordingly, the Commission has determined that, pursuant to 10 CFR
50.12(a), the exemption is authorized by law, will not endanger life or
property or common defense and security, and is, otherwise, in the
public interest. In addition, special circumstances exist to justify
the proposed exemption. Therefore, the Commission hereby grants the
licensee an exemption from the requirement of 10 CFR 2.109(b) for
OCNGS. Specifically, this exemption will allow the submittal of the
OCNGS license renewal application with less than 5 years remaining
prior to expiration of the operating license while maintaining the
protection of the timely renewal provision in 10 CFR 2.109(b), subject
to the two conditions set forth above.
Pursuant to 10 CFR 51.32, the Commission has determined that the
granting of this exemption will not have a significant effect on the
quality of the human environment (69 FR 76795).
This exemption is effective upon issuance.
Dated at Rockville, Maryland, this 22nd day of December 2004.
For the Nuclear Regulatory Commission.
Ledyard B. Marsh,
Director, Division of Licensing Project Management, Office of Nuclear
Reactor Regulation.
[FR Doc. 04-28456 Filed 12-28-04; 8:45 am]
BILLING CODE 7590-01-P