[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]
BILLING CODE 7590-01-P