[Federal Register Volume 85, Number 138 (Friday, July 17, 2020)]
[Notices]
[Pages 43609-43612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15482]
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NUCLEAR REGULATORY COMMISSION
[Docket No. 50-440; NRC-2020-0156]
Energy Harbor Nuclear Corp; Energy Harbor Nuclear Generation LLC;
Perry Nuclear Power Plant Unit No. 1
AGENCY: Nuclear Regulatory Commission.
ACTION: Exemption; issuance.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an
exemption in response to a May 15, 2020, request from the Energy Harbor
Nuclear Corp. (EHNC) to allow EHNC to submit a sufficient license
renewal application for Perry Nuclear Power Plant, Unit No. 1, at least
three years prior to the expiration of the existing license and still
receive timely renewal protection.
DATES: The exemption was issued on July 13, 2020.
ADDRESSES: Please refer to Docket ID NRC-2020-0156 when contacting the
NRC about the availability of information regarding this document. You
may obtain publicly-available information related to this document
using any of the following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov/ and search for Docket ID NRC-2020-0156. Address
questions about NRC docket IDs in Regulations.gov to Jennifer Borges;
telephone: 301-287-9127; email: [email protected]. For technical
questions, contact the individual listed in the FOR FURTHER INFORMATION
CONTACT section of this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly available documents online in the
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS
Search.'' For problems with ADAMS, please contact the NRC's Public
Document Room reference staff at 1-800-397-4209, 301-415-4737, or by
email to [email protected]. The ADAMS accession number for each
document referenced (if it is available in ADAMS) is provided the first
time that it is mentioned in this document.
FOR FURTHER INFORMATION CONTACT: Scott P. Wall, Office of Nuclear
Reactor Regulation; U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001; telephone: 301-415-2855; email: [email protected].
SUPPLEMENTARY INFORMATION: The text of the exemption is attached.
Dated: July 14, 2020.
For the Nuclear Regulatory Commission.
Bhalchandra K. Vaidya,
Project Manager, Plant Licensing Branch III, Division of Operating
Reactor Licensing, Office of Nuclear Reactor Regulation.
Attachment--Exemption
NUCLEAR REGULATORY COMMISSION
Docket No. 50-440
Energy Harbor Nuclear Corp., Energy Harbor Nuclear Generation LLC,
Perry Nuclear Power Plant, Unit No. 1
Exemption
I. Background
Energy Harbor Nuclear Corp. (EHNC) and Energy Harbor Nuclear
Generation
[[Page 43610]]
LLC (collectively, the licensees) are the holders of the Facility
Operating License No. NPF-58 for Perry Nuclear Power Plant, Unit No. 1
(PNPP), which consists of a boiling-water reactor located near Lake
Erie in Lake County, Ohio. 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, Commission) now or
hereafter in effect. The current operating license for PNPP expires on
March 18, 2026.
By letter dated May 15, 2020 (Agencywide Documents Access and
Management System (ADAMS) Accession No. ML20136A353), EHNC requested an
exemption to allow EHNC to submit a license renewal application (LRA)
for PNPP at least 3 years prior to the expiration of the existing
license and, if the NRC finds the application sufficient, to still
receive timely renewal protection under Title 10 of the Code of Federal
Regulations (10 CFR) Part 2, Section 2.109(b). Pursuant to 10 CFR
2.109(b), the NRC provides timely renewal protection to licensees that
submit a sufficient license renewal application at least 5 years before
the expiration of the existing license.
On May 25, 2017, FirstEnergy Nuclear Operating Company (FENOC),
notified the NRC of its plans to submit an LRA for PNPP in the fourth
quarter of 2020 (ADAMS Accession No. ML17145A171). On November 27,
2018, FENOC indicated that, with the planned shutdown of PNPP, it no
longer planned to submit an LRA (ADAMS Accession No. ML18331A155) due
to severe economic challenges.
On July 23, 2019, the Ohio General Assembly passed the Ohio Clean
Air Program, which contains provisions that are intended to preserve
Ohio's nuclear generation capacity. The Ohio Governor signed the bill
into law on July 23, 2019. Based on the Ohio Clean Air Program, FENOC
reversed its decision to permanently cease operations at PNPP. As a
result, on July 26, 2019 (ADAMS Accession No. ML19207A097), FENOC
withdrew the ``Certification of Permanent Cessation of Power
Operations'' for PNPP.
By letter dated February 27, 2020 (ADAMS Accession No.
ML20030A440), the NRC staff authorized the transfer of the PNPP
facility operating license from FENOC and FirstEnergy Nuclear
Generation, LLC, to EHNC and Energy Harbor Nuclear Generation, LLC,
which are subsidiaries of a new privately-held holding company, the
Energy Harbor Corp. Subsequently, on May 8, 2020 the Energy Harbor
Corp. Board of Directors met and approved the plan to submit an
application for renewal of the PNPP operating license.
In its application, EHNC informed the NRC that the information
previously gathered to support development of an LRA must be updated
and incorporated into an application that meets current NRC staff
expectations. Under 10 CFR 2.109(b), EHNC would need to file a
sufficient LRA for PNPP by March 18, 2021 (at least 5 years prior to
the current license expiration date). Given the effort involved, EHNC
indicated that it will not have adequate time to prepare and submit a
sufficient LRA by March 18, 2021.
II. Request/Action
Under 10 CFR 54.17(a), the NRC requires that an application for a
renewed license be in accordance with Subpart A of 10 CFR part 2, which
includes 10 CFR 2.109(b). In turn, 10 CFR 2.109(b) 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 either an operating
license or a combined license at least 5 years before the expiration of
the existing license, the existing license will not be deemed to have
expired until the application has been finally determined.'' In its
letter dated May 15, 2020, EHNC requested an exemption from 10 CFR
54.17(a) to allow EHNC to submit its LRA for PNPP at least 3 years
prior to the expiration of the existing license and still receive
timely renewal protection under 2.109(b).
III. Discussion
Under 10 CFR 54.15, exemptions from the requirements of Part 54 are
governed by 10 CFR 50.12. 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 when (1) the
exemptions 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 defined in 10
CFR 50.12(a)(2). In its application, EHNC stated that two special
circumstances apply to its request: 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.''
A. The Exemption Is Authorized By Law
This exemption would allow EHNC to submit a sufficient LRA license
renewal application for PNPP at least 3 years prior to the expiration
of its existing license and still receive timely renewal protection
under 10 CFR 2.109(b). Section 2.109 implements 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 5-year time period specified in 10 CFR 2.109 is the result of a
discretionary agency rulemaking and not required by the APA. As stated
above, 10 CFR 54.15 allows the NRC to grant exemptions from the
requirements of 10 CFR part 54. The NRC has determined that granting
this exemption will not result in a violation of the Atomic Energy Act
of 1954, as amended, the APA, or the NRC's regulations. Therefore, the
exemption is authorized by law.
B. The Exemption Presents No Undue Risk to Public Health and Safety
The requested exemption to allow a 3-year time period, rather than
the 5 years specified in 10 CFR 2.109(b), for EHNC to submit a
sufficient license renewal application and receive timely renewal
protection is a scheduling change. The action does not change the
manner in which the plant operates and maintains public health and
safety because no additional changes are made as a result of the
action. The NRC expects that a period of 3 years provides sufficient
time for the NRC to perform a full and adequate safety and
environmental review, and for the completion of the hearing process.
Pending final action on the LRA, 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. Based on the above, the NRC finds that the
action does not cause undue risk to public health and safety.
[[Page 43611]]
C. The Exemption Is Consistent With the Common Defense and Security
The requested exemption to allow for a timely renewal protection
deadline of at least 3 years instead of 5 years is a scheduling change.
The exemption does not change any site security matters. Therefore, the
NRC finds that the action is consistent with the common defense and
security.
D. Special Circumstances
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''
provision of Section 9(b) of the 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.
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.
Thus, the NRC originally estimated that 3 years was needed to
review a renewal application and to complete any hearing that might be
held on the application. The NRC changed its original deadline from 3
years to 5 years to have consistent deadlines for when licensees must
submit their decommissioning plans and related financial assurance
information and when they must submit their LRA to receive timely
renewal protection.
Application of the five-year period in 10 CFR 2.109(b) is not
necessary to achieve the underlying purpose of the timely renewal
provision in the regulation if EHNC files a sufficient PNPP license
renewal application at least three years prior to expiration of the
license. The NRC's current schedule for review of LRAs is to complete
its review and make a decision on issuing the renewed license within 18
months of receipt without a hearing. If a hearing is held, the NRC's
model schedule anticipates completion of the NRC's review and of the
hearing process, and issuance of a decision on the license renewal
application 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 3 years (36 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 and on the review being completed in accordance with
the NRC's established license renewal review schedule.
Based on the above, the NRC finds that the special circumstance of
10 CFR 50.12(a)(2)(ii) is present in the particular circumstances of
PNPP.
It should be noted 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.
In addition, the NRC finds that the special circumstance of 10 CFR
50.12(a)(2)(iii) also is present in the circumstances of PNPP.
Compliance with Sec. 2.109(b) would result in undue hardship or other
costs that are significantly in excess of those contemplated when the
regulation was adopted. In its application, EHNC stated that the
decision to continue power operation at PNPP depended on economic and
legislative factors that evolved in a way that did not permit the
preparation and submission of a license renewal application five years
prior to the license expiration date. EHNC further stated that if the
exemption is not granted, and it submits its license renewal
application less than five years before license expiration, then EHNC
would face the risk of being forced to shut down if the application is
not approved before the current license expires. The impact of changes
in economic and legislative conditions on licensees' decisions to
pursue license renewal was not a factor considered at the time the
timely renewal rule was issued. The NRC therefore finds that the
special circumstance of 10 CFR 50.12(a)(2)(iii) also is present.
E. Environmental Considerations
The NRC's approval of the exemption to scheduling requirements
belongs to a category of actions that the NRC, by rule or regulation,
has declared to be a categorical exclusion, after first finding that
the category of actions does not individually or cumulatively have a
significant effect on the human environment. Specifically, the
exemption is categorically excluded from further analysis under 10 CFR
51.22(c)(25)(vi)(G).
Under 10 CFR 51.22(c)(25), the granting of an exemption from the
requirements of any regulation of chapter 10 is a categorical exclusion
provided that (i) there is no significant hazards consideration; (ii)
there is no significant change in the types or significant increase in
the amounts of any effluents that may be released offsite; (iii) there
is no significant increase in individual or cumulative public or
occupational radiation exposure; (iv) there is no significant
construction impact; (v) there is no significant increase in the
potential for or consequences from radiological accidents; and (vi) the
requirements from which an exemption is sought involve certain
categories of requirements, including scheduling requirements.
The NRC has determined that the granting of the exemption request
involves no significant hazards consideration because allowing the
submittal of the LRA at least 3 years before the expiration of the
existing
[[Page 43612]]
license while maintaining the protection of the timely renewal
provision in 10 CFR 2.109(b) does 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. The exemption constitutes
a change to the schedule by which EHNC must submit its LRA and still
receive timely renewal protection and, therefore, is unrelated to any
operational restriction. Accordingly, there is no significant change in
the types or significant increase in the amounts of any effluents that
may be released offsite, and no significant increase in individual or
cumulative public or occupational radiation exposure. The exempted
regulation is not associated with construction, so there is no
significant construction impact. The exempted regulation does not
concern the source term (i.e., potential amount of radiation in an
accident) nor mitigation. Thus, there is no significant increase in the
potential for, or consequences of, a radiological accident.
Therefore, pursuant to 10 CFR 51.22(b) and (c)(25), no
environmental impact statement or environmental assessment need be
prepared in connection with the approval of this exemption request.
IV. Conclusions
Accordingly, the NRC has determined that, pursuant to 10 CFR 54.15
and 10 CFR 50.12, 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 NRC hereby grants the licensee a one-time
exemption for PNPP, from 10 CFR 54.17(a) to allow the submittal of the
PNPP LRA at least 3 years remaining prior to expiration of the
operating license while maintaining the protection of the timely
renewal provision in 10 CFR 2.109(b).
This exemption is effective upon issuance.
Dated July 13, 2020.
For the Nuclear Regulatory Commission.
Craig G. Erlanger,
Director, Division of Operating Reactor Licensing, Office of Nuclear
Reactor Regulation.
[FR Doc. 2020-15482 Filed 7-16-20; 8:45 am]
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