[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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