[Federal Register Volume 78, Number 238 (Wednesday, December 11, 2013)]
[Notices]
[Pages 75388-75390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29584]


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NUCLEAR REGULATORY COMMISSION

[Docket Nos. 52-022 and 52-023; NRC-2013-0261]


Duke Energy Progress; Shearon Harris Units 2 and 3; Exemption 
From the Requirement To Submit an Annual Update to the Final Safety 
Analysis Report Included in a Combined License Application

AGENCY: Nuclear Regulatory Commission.

ACTION: Exemption.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an 
exemption in response to an August 7, 2013, request from Duke Energy 
Progress (DEP). On May 2, 2013, DEP requested that the NRC suspend 
review of its combined license (COL) application until further notice. 
On August 7, 2013, DEP requested an exemption from certain regulatory 
requirements that require them to submit updates to the Final Safety 
Analysis Report (FSAR) included in their COL application until six 
months after requesting the NRC to resume its review of their COL 
application. The NRC staff reviewed this request and determined that it 
is appropriate to grant the exemption, but stipulated that the updates 
to the FSAR must be submitted prior to requesting the NRC resume its 
review of the COL application, or by December 31, 2014, whichever comes 
first.

ADDRESSES: Please refer to Docket ID NRC-2013-0261 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-2013-0261. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-287-
3422; email: [email protected]. For technical questions, contact 
the individuals 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 document (if that document is 
available in ADAMS) is provided the first time that the 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: Anthony Minarik, Office of New 
Reactors, U.S. Nuclear Regulatory Commission, Washington, DC, 20555-
0001; telephone: 301-415-6185; email: [email protected].

SUPPLEMENTARY INFORMATION: The following sections include the text of 
the exemption in its entirety as issued to DEP.

1.0 Background

    On February 18, 2008 (Agencywide Documents Access and Management 
System (ADAMS) Accession No. ML080580078) Duke Energy Progress, Inc. 
(DEP), submitted to the U.S. Nuclear Regulatory Commission (NRC) a 
Combined License (COL) application for two units of Westinghouse 
Electric Company's AP1000 advanced pressurized water reactors to be 
constructed and operated at the existing Shearon Harris Nuclear Plant 
(Harris) site. (Docket Numbers 052000-22 and 052000-23). The NRC 
docketed the Shearon Harris Units 2 and 3 COL APPLICATION on April 23, 
2008. On April 15, 2013, DEP submitted Revision 5 to the COL 
application (ADAMS Accession No. ML13112A761), including updates to the 
Final Safety Analysis Report (FSAR), per subsection 50.71(e)(3)(iii) of 
Title 10 of the Code of Federal Regulations (10 CFR). On May 2, 2013 
(ADAMS Accession No. ML13123A344), DEP requested that the NRC suspend 
review of the Shearon Harris Nuclear Plant Units 2 and 3 COL 
application. On August 7, 2013 (ADAMS Accession No. ML13220B004), DEP 
requested an exemption from the 10 CFR 50.71(e)(3)(iii) requirements to 
submit COL application Final Safety Analysis Report (FSAR) updates.

2.0 Request/Action

    10 CFR 50.71(e)(3)(iii) requires that an applicant for a COL under 
Subpart C of 10 CFR part 52, submit updates to their FSAR annually 
during the period from docketing the application to the Commission 
making its 52.103(g) finding.
    Pursuant to 10 CFR 50.71(e)(3)(iii) the next annual update of the 
FSAR included in the Harris Units 2 and 3 COL application would be due 
in April of 2014 as DEP had submitted Revision 5 to the COL application 
which included an update to the FSAR, in a letter dated April 15, 2013 
(ADAMS Accession No. ML13112A761). By letter dated May 2, 2013, (ADAMS 
Accession No. ML13123A344) DEP requested that the NRC suspend review of 
the Harris Units 2 and 3 COL application. The NRC granted DEP's request 
for suspension and all review activities related to the Harris Units 2 
and 3 COL application were suspended while the application remained 
docketed. In a letter dated August 7, 2013 (ADAMS Accession No. 
ML13220B004), DEP requested that the Harris Units 2 and 3 COL 
application be exempt from the 10 CFR 50.71(e)(3)(iii) requirements 
until the time that DEP requests the NRC to resume the review of the 
Harris Units 2 and 3 COL application.
    DEP's requested exemption is interpreted as a one-time schedule 
change from the requirements of 10 CFR 50.71(e)(3)(iii). In its 
request, DEP asked

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the NRC to grant the exemption from 10 CFR 50.71(e)(3)(iii), until six 
months after restarting the Harris Units 2 and 3 COL application 
review. Because such a request is seen as open-ended, the NRC included 
an imposed December 31, 2014, deadline as part of its review of the 
exemption request. The exemption would allow DEP to submit the next 
FSAR update at a later date, but still in advance of NRC's reinstating 
its review of the application and in any event, by December 31, 2014. 
The current requirement to submit an FSAR update could not be changed, 
absent the exemption.

3.0 Discussion

    Pursuant to 10 CFR 50.12 the Commission may, upon application by 
any interested person or upon its own initiative, grant exemptions from 
the requirements of 10 CFR Part 50, including Section 50.71(e)(3)(iii) 
when: (1) The exemption(s) are authorized by law, will not present an 
undue risk to public health or safety, and are consistent with the 
common defense and security; and (2) special circumstances are present. 
As relevant to the requested exemption, special circumstances exist if: 
``[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'' (10 CFR 50.12(a)(2)(ii)) 
and if ``[t]he exemption would provide only temporary relief from the 
applicable regulation and the licensee or applicant has made good faith 
efforts to comply with the regulation'' (10 CFR 50.12(a)(2)(v)).
    The purpose of 10 CFR 50.71(e)(3)(iii) is to ensure that the NRC 
has the most up to date information regarding the COL application, in 
order to perform an efficient and effective review. The rule targeted 
those applications that are being actively reviewed by the NRC. Because 
DEP requested the NRC suspend its review of the Harris Units 2 and 3 
COL application, compelling DEP to submit its FSAR on an annual basis 
is not necessary as the FSAR will not be changed or updated until the 
review is restarted. Requiring the updates would result in undue 
hardship on DEP, and the purpose of 50.71(e)(3)(iii) would still be 
achieved if the update is submitted prior to restarting the review and 
in any event by December 31, 2014.
    The requested exemption to defer submittal of the next update to 
the FSAR included in the Harris Units 2 and 3 COL application would 
provide only temporary relief from the regulations of 10 CFR 
50.71(e)(3)(iii). As evidenced by the proper submittal of annual 
updates on June 23, 2009 (ADAMS Accession No. ML091810540), April 12, 
2010 (ADAMS Accession No. ML101120592), April 14, 2011 (ADAMS Accession 
No. ML11117A708), April 12, 2012 (ADAMS Accession No. ML12122A656) and 
April 15, 2013 (ADAMS Accession No. ML13112A761), DEP has made good 
faith efforts to comply with 10 CFR 50.71(e)(3)(iii) prior to 
requesting suspension of the review. In its request DEP asked the NRC 
to grant exemption from 10 CFR 50.71(e)(3)(iii) until 6 months after 
reactivating the Harris Units 2 and 3 COL application review. With no 
specific end date, the NRC could not consider this exemption temporary, 
so the NRC included a December 31, 2014 deadline as part of its review 
of the exemption request.
    For the reasons stated above, the application of Sec.  
50.71(e)(3)(iii) in this particular circumstance can be deemed 
unnecessary and the granting of the exemption would allow only 
temporary relief from a rule that the applicant had made good faith 
efforts to comply with, therefore special circumstances are present.

Authorized by Law

    The exemption is a one-time schedule exemption from the 
requirements of 10 CFR 50.71(e)(3)(iii). The exemption would allow DEP 
to submit the next Harris Units 2 and 3 COL application FSAR update on 
or before December 31, 2014, in lieu of the required scheduled 
submittal in April 2014. As stated above, 10 CFR 50.12 allows the NRC 
to grant exemptions from the requirements of 10 CFR Part 50. The NRC 
staff has determined that granting DEP the requested one-time exemption 
from the requirements of 10 CFR 50.71(e)(3)(iii) will provide only 
temporary relief from this regulation and will not result in a 
violation of the Atomic Energy Act of 1954, as amended, or the NRC's 
regulations. Therefore, the exemption is authorized by law.

No Undue Risk to Public Health and Safety

    The underlying purpose of 10 CFR 50.71(e)(3)(iii) is to provide for 
a timely and comprehensive update of the FSAR associated with a COL 
application in order to support an effective and efficient review by 
the NRC staff and issuance of the NRC staff's safety evaluation report. 
The requested exemption is solely administrative in nature, in that it 
pertains to the schedule for submittal to the NRC of revisions to an 
application under 10 CFR part 52, for which a license has not been 
granted. In addition, since the review of the application has been 
suspended, any update to the application submitted by DEP will not be 
reviewed by the NRC at this time. Plant construction cannot proceed 
until the NRC review of the application is completed, a mandatory 
hearing is completed, and a license is issued. Additionally, based on 
the nature of the requested exemption as described above, no new 
accident precursors are created by the exemption; thus neither the 
probability, nor the consequences of postulated accidents are 
increased. Therefore, there is no undue risk to public health and 
safety.

Consistent With Common Defense and Security

    The requested exemption would allow DEP to submit the next FSAR 
update prior to requesting the NRC to resume the review and, in any 
event, on or before December 31, 2014. This schedule change has no 
relation to security issues. Therefore, the common defense and security 
is not impacted.

Special Circumstances

    Special circumstances, in accordance with 10 CFR 50.12(a)(2)(ii) 
are present ``[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'' (10 CFR 
50.12(a)(2)(ii)). The underlying purpose of 10 CFR 50.71(e)(3)(iii) is 
to ensure that the NRC has the most up-to date information in order to 
perform its review of a COL application efficiently and effectively. 
Because the requirement to annually update the FSAR was intended for 
active reviews and the Harris Units 2 and 3 COL application review is 
now suspended, the application of this regulation in this particular 
circumstance is unnecessary in order to achieve its underlying purpose. 
If the NRC were to grant this exemption, and DEP were then required to 
update its FSAR by December 31, 2014, or prior to any request to 
restart of their review, the purpose of the rule would still be 
achieved.
    Special circumstances in accordance with 10 CFR 50.12(a)(2)(v) are 
present whenever the exemption would provide only temporary relief from 
the regulation and the applicant has made good faith efforts to comply 
with this regulation. Because of the assumed and imposed new deadline 
of December 31, 2014, DEP's exemption request seeks only temporary 
relief from the requirement that it file an update to the FSAR included 
in the Harris Units 2 and 3 COL application. Additionally

[[Page 75390]]

DEP submitted the required annual updates to its FSAR throughout the 
application process until asking for suspension of its review.
    Therefore, since the relief from the requirements of 10 CFR 
50.71(e)(3)(iii) would be temporary and the applicant has made good 
faith efforts to comply with the rule, and the underlying purpose of 
the rule is not served by application of the rule in this circumstance, 
the special circumstances required by 10 CFR 50.12(a)(2)(ii) and 
50.12(a)(2)(v) for the granting of an exemption from 10 CFR 
50.71(e)(3)(iii) exist.

Eligibility for Categorical Exclusion From Environmental Review

    With respect to the exemption's impact on the quality of the human 
environment, the NRC has determined that this specific exemption 
request is eligible for categorical exclusion as identified in 10 CFR 
51.22(c)(25) and justified by the NRC staff as follows:
    (c) The following categories of actions are categorical exclusions:
    (25) Granting of an exemption from the requirements of any 
regulation of this chapter, provided that--
    (i) There is no significant hazards consideration;
    The criteria for determining whether there is no significant 
hazards consideration are found in 10 CFR 50.92. The proposed action 
involves only a schedule change regarding the submission of an update 
to the application for which the licensing review has been suspended. 
Therefore, there is no significant hazards consideration because 
granting the proposed exemption would not:
    (1) Involve a significant increase in the probability or 
consequences of an accident previously evaluated; or
    (2) Create the possibility of a new or different kind of accident 
from any accident previously evaluated; or
    (3) Involve a significant reduction in a margin of safety.
    (ii) There is no significant change in the types or significant 
increase in the amounts of any effluents that may be released offsite;
    The proposed action involves only a schedule change which is 
administrative in nature, and does not involve any changes to be made 
in the types or significant increase in the amounts of effluents that 
may be released offsite.
    (iii) There is no significant increase in individual or cumulative 
public or occupational radiation exposure;
    Since the proposed action involves only a schedule change which is 
administrative in nature, it does not contribute to any significant 
increase in occupational or public radiation exposure.
    (iv) There is no significant construction impact;
    The proposed action involves only a schedule change which is 
administrative in nature; the application review is suspended until 
further notice, and there is no consideration of any construction at 
this time, and hence the proposed action does not involve any 
construction impact.
    (v) There is no significant increase in the potential for or 
consequences from radiological accidents; and
    The proposed action involves only a schedule change which is 
administrative in nature, and does not impact the probability or 
consequences of accidents.
    (vi) The requirements from which an exemption is sought involve:
    (B) Reporting requirements;
    The exemption request involves submitting an updated FSAR by DEP 
and
    (G) Scheduling requirements;
    The proposed exemption relates to the schedule for submitting FSAR 
updates to the NRC.

4.0 Conclusion

    Accordingly, the Commission has determined that, pursuant to 10 CFR 
50.12(a), the exemption is authorized by law, will not present an undue 
risk to the public health and safety, and is consistent with the common 
defense and security. Also special circumstances are present. 
Therefore, the Commission hereby grants DEP a one-time exemption from 
the requirements of 10 CFR 50.71(e)(3)(iii) pertaining to the Shearon 
Harris Nuclear Power Plant Units 2 and 3 COL application to allow 
submittal of the next FSAR update prior to any request to the NRC to 
resume the review, and in any event no later than December 31, 2014.
    Pursuant to 10 CFR 51.22, the Commission has determined that the 
exemption request meets the applicable categorical exclusion criteria 
set forth in 10 CFR 51.22(c)(25), and 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 21st day of November 2013.

    For the Nuclear Regulatory Commission.
Lawrence Burkhart,
Chief, Licensing Branch 4, Division of New Reactor Licensing, Office of 
New Reactors.
[FR Doc. 2013-29584 Filed 12-10-13; 8:45 am]
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