[Federal Register Volume 70, Number 74 (Tuesday, April 19, 2005)]
[Notices]
[Pages 20404-20405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7844]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-407]


University of Utah; University of Utah TRIGA Nuclear Reactor 
Facility; Exemption

1.0 Background

    University of Utah (the licensee), is the holder of Facility 
Operating License No. R-126, which authorizes operation of the 
University of Utah Nuclear Reactor Facility, an open pool TRIGA fueled 
research reactor facility, licensed to operate at power levels up to 
100 kilowatts, located in Salt Lake City, Utah. 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 expires at midnight on April 17, 2005.
    By letter dated April 13, 2005, the licensee requested an exemption 
from the regulation, 10 CFR 2.109(a). Specifically, the requested 
exemption allows the University of Utah to have submitted a license 
renewal application for the research reactor less than 30 days prior to 
the expiration of the operating license, while maintaining the 
protection of the timely renewal doctrine contained in 10 CFR 2.109(a). 
By letter dated March 25, 2005, the licensee applied for renewal of the 
research reactor license. In the April 13, 2005 letter, the licensee 
stated it was unable to submit a renewal application 30 days prior to 
license expiration because: (1) Compliance with 10 CFR 2.109 created an 
undue hardship not intended by this regulation due to the limited staff 
(currently only two licensed senior reactor operators) and a change in 
the Reactor Administrator (administrative change) within the previous 
calendar year, and (2) misinterpretation of the requirements of 10 CFR 
2.109(a). The licensee also in the April 13, 2005 letter, indicated 
that the exemption from the 30 day rule will not present: (1) an undue 
risk to the public health and safety and is consistent with the common 
defense and security, and that the reactor and material would be 
protected under the current license provisions; (2) the licensee made a 
good faith effort to comply with the regulation; and (3) there is no 
good alternatives for divesting the licensee of material held under the 
license. The licensee indicated that, in light of these and other 
factors, it could not prepare and file a sufficient license renewal 
application 30 days prior to the license expiration specified in Title 
10 of the Code of Federal Regulations (10 CFR) Part 2, Section 109(a), 
``Effect of timely renewal application.''

2.0 Request/Action

    Section 109(a) of 10 CFR Part 2 states: ``Except for the renewal of 
an operating license for a nuclear power plant under 10 CFR 50.21(b) or 
50.22, if, at least 30 days prior to the expiration of an existing 
license authorizing any activity of a continuing nature, the licensee 
files an application for a renewal or for a new

[[Page 20405]]

license for the activity so authorized, the existing license will not 
be deemed to have expired until the application has been finally 
determined.''
    The licensee's application requested an exemption from the timing 
requirements of 10 CFR 2.109(a), for submittal of the research reactor 
license renewal application. The exemption would allow the submittal of 
the renewal application with less than 30 days prior to expiration of 
the operating license while maintaining the protection of the timely 
renewal provision in 10 CFR 2.109(a).

3.0 Discussion

    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). The operation of the University of Utah research 
reactor since initial licensing in 1975 and license renewal in 1985 has 
been acceptable to ensure protection of the public health and safety 
and consistent with the common defense and security. Further, the 
requested exemption meets 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(a), as it is applied to NRC licensees, 
is to implement the ``timely renewal'' doctrine of section 9(b) of the 
Administrative Procedure Act (APA), 5 U.S.C. 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 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.
    Submittal of the license renewal application approximately 24 days, 
instead of 30 days, prior to expiration of the operating license 
provides reasonable time prior to expiration to allow the staff to 
ensure that the application is essentially complete and sufficient and 
the licensee intends to continue to operate the facility. The NRC's 
current schedule for review of research reactor license renewal 
applications is to complete its review and make a decision on issuing 
the renewed license within 48 months of receipt. Meeting this schedule 
is based on a complete and sufficient application, and on the review 
being completed in accordance with the NRC's established license 
renewal review schedule. Also, completing the research reactor 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.
    The second special circumstance involves 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 research reactor is operated 
solely for educational and research purposes. The reactor is a part of 
the Nuclear Engineering Program, but it also supports the curriculum of 
the other engineering disciplines in the University of Utah College of 
Engineering. The loss of this resource for an extended period of time 
during a license renewal process is an undue hardship.
    In summary, the licensee has demonstrated that application of the 
subject regulation is not necessary to achieve the underlying purpose 
of the rule and is an undue hardship, thus meeting the criterion 
specified in 10 CFR 50.12(a)(2)(ii) and (iii). Accordingly, the NRC 
staff agrees that special circumstances are present to justify the 
requested exemption.
    Therefore, the exemption is contingent upon the following condition 
being met: To ensure timely completion of the review process, the 
licensee 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.
    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(a) for the 
University of Utah research reactor. Specifically, this exemption will 
allow the University of Utah to have submitted a license renewal 
application for the research reactor less than 30 days prior to the 
expiration of the operating license, while maintaining the protection 
of the timely renewal doctrine contained in 10 CFR 2.109(a), subject to 
the condition imposed by this exemption.
    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. This exemption is effective upon 
issuance.

    Dated at Rockville, Maryland, this 15th day of April, 2005.

    For the Nuclear Regulatory Commission.
David B. Matthews,
Director, Division of Regulatory Improvement Programs, Office of 
Nuclear Reactor Regulation.
[FR Doc. 05-7844 Filed 4-18-05; 8:45 am]
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