Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Notices 78051

White Flint North, 11555 Rockville 

Pike, Room O–1 F21, Rockville, MD 

20852. OMB clearance requests are 

available at the NRC worldwide Web 

site: http://www.nrc.gov/public-involve/

doc-comment/omb/index.html. The 

document will be available on the NRC 

home page site for 60 days after the 

signature date of this notice. 

Comments and questions about the 

information collection requirements 

may be directed to the NRC Clearance 

Officer, Brenda Jo. Shelton (T–5-F52), 

U.S. Nuclear Regulatory Commission, 

Washington, DC 20555–0001, by 

telephone at 301–415–7233, or by 

Internet electronic mail to 

INFOCOLLECTS@NRC.GOV.

Dated at Rockville, Maryland, this 22nd 

day of December, 2004.

For the Nuclear Regulatory Commission. 

Brenda Jo. Shelton, 

NRC Clearance Officer, Office of the Chief 

Information Officer.

[FR Doc. 04–28453 Filed 12–28–04; 8:45 am] 

BILLING CODE 7590–01–P

NUCLEAR REGULATORY 

COMMISSION 

[Docket No. 50–461] 

Amergen Energy Company, LLC.; 

Notice of Consideration of Issuance of 

Amendment to Facility Operating 

License, Proposed No Significant 

Hazards Consideration Determination, 

and Opportunity for a Hearing 

The U.S. Nuclear Regulatory 

Commission (the Commission) is 

considering issuance of an amendment 

to Facility Operating License No. NPF–

62, issued to AmerGen Energy 

Company, LLC, for operation of the 

Clinton Power Station, Unit 1 (CPS) 

located in DeWitt County, Illinois. 

The proposed amendment would 

change Technical Specification (TS) 4.3, 

‘‘Fuel Storage,’’ to reflect the addition of 

fuel storage capacity in the fuel cask 

storage pool and increased fuel storage 

capacity in the spent fuel pool. 

Before issuance of the proposed 

license amendment, the Commission 

will have made findings required by the 

Atomic Energy Act of 1954, as amended 

(the Act), and the Commission’s 

regulations. 

The Commission has made a 

proposed determination that the 

amendment request involves no 

significant hazards consideration. Under 

the Commission’s regulations in Title 10 

of the Code of Federal Regulations (10 

CFR), Section 50.92, this means that 

operation of the facility in accordance 

with the proposed amendment 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. As required by 10 CFR 

50.91(a), the licensee has provided its 

analysis of the issue of no significant 

hazards consideration, which is 

presented below:

1. Does the proposed amendment involve 

a significant increase in the probability or 

consequences of an accident previously 

evaluated? 

Response: No. 

The proposed change involves revising 

CPS TS 4.3, ‘‘Fuel Storage,’’ to reflect the 

increased storage capacity of the spent fuel 

pool due to the installation of higher density 

storage racks and the addition of fuel storage 

capacity in the fuel cask storage pool. 

The method of handling fuel is not 

significantly changed since the same 

equipment and procedures will be used. 

During spent fuel rack removal and 

installation, all work in the spent fuel pool 

and cask storage pool area will be controlled 

and performed in strict accordance with 

specific written guidance. Any movement of 

fuel assemblies required to be performed to 

support the modification (e.g., removal and 

installation of racks) will be performed in the 

same manner as during normal refueling 

operations. Shipping cask movements will 

not be performed during the modification 

period. There is no change to the methods or 

equipment to be used in moving fuel casks. 

Expanding the spent fuel storage capacity 

does not have a significant impact on the 

frequency of occurrence for any accident 

previously evaluated. Therefore, this change 

will not significantly increase the probability 

of occurrence of any event previously 

analyzed. 

The consequences of the dropped spent 

fuel assembly in the spent fuel pool have 

been evaluated for the proposed change. The 

results show that the postulated drop of a 

spent fuel assembly striking the top of the 

spent fuel storage racks will not distort the 

racks sufficiently to impair their 

functionality. The minimum subcriticality 

margin (i.e., neutron multiplication factor 

(Keff) less than or equal to 0.95) will be 

maintained. The structural damage to the 

Fuel Building, spent fuel pool liner, and any 

fuel assembly resulting from a dropped fuel 

assembly striking the pool floor or another 

assembly located in the racks is primarily 

dependent on the mass of the falling object 

and drop height. Since these two parameters 

are not changed by the proposed 

modification, the postulated structural 

damage to these items remains unchanged. 

The radiological dose at the exclusion area 

boundary will not be increased since no 

changes are being made to in-core hold time 

or burn-up as a result of the proposed 

amendment. 

The consequences of a loss of spent fuel 

pool cooling were evaluated and found to not 

involve a significant increase as a result of 

the proposed changes. The concern with this 

event is a reduction of spent fuel pool water 

inventory from bulk boiling resulting in 

uncovering fuel assemblies. This situation 

could lead to fuel failure and subsequent 

significant increase in offsite dose. Loss of 

spent fuel pool cooling at CPS is mitigated 

by ensuring that a sufficient time lapse exists 

between the loss of forced cooling and 

uncovering fuel. This period of time is 

compared against a reasonable period to 

reestablish cooling or supply an alternative 

water source. Evaluation of this event 

includes determination of the time to boil. 

This time period is much less than the onset 

of any significant increase in offsite dose, 

since once boiling begins it would have to 

continue unchecked until the pool surface 

was lowered to the point of exposing active 

fuel. The time to boil represents the onset of 

loss of pool water inventory and is 

commonly used as a gage for establishing the 

comparison of consequences before and after 

a reracking project. The heatup rate in the 

spent fuel pool is a nearly linear function of 

the fuel decay heat load. The fuel decay heat 

load will increase subsequent to the 

proposed changes because of the increase in 

the number of assemblies. The thermalhydraulic analysis determined that the 

minimum time to boil is more than three 

hours subsequent to complete loss of forced 

cooling and a minimum of 24 hours between 

loss of forced cooling and a drop of water 

level to within 10 feet of the top of the racks. 

In the unlikely event that all pool cooling is 

lost, sufficient time will still be available 

subsequent to the proposed changes for the 

operators to provide alternate means of 

cooling before the water shielding above the 

top of the racks falls below 10 feet. The 

supporting analyses have been confirmed to 

be bounding for all spent fuel pool loading 

configurations. 

The consequences of a design basis seismic 

event are not increased. The consequences of 

this event were evaluated on the basis of 

subsequent fuel damage or compromise of 

the fuel storage or building configurations 

leading to radiological or criticality concerns. 

The new racks have been analyzed in their 

new configuration and were found to be safe 

during seismic motion. Fuel has been 

determined to remain intact and the storage 

racks maintain the fuel and fixed poison 

configurations subsequent to a seismic event. 

The structural capability of the pool and liner 

will not be exceeded under the appropriate 

combinations of dead weight, thermal, and 

seismic loads. The Fuel Building structure 

will remain intact during a seismic event and 

will continue to adequately support and 

protect the spent fuel storage racks, storage 

array, and pool moderator/coolant. 

A fuel cask drop accident was previously 

evaluated as described in the CPS Updated 

Safety Analysis Report (USAR) Section 

15.7.5. Administrative controls will be 

implemented to ensure that fuel will be 

removed from storage racks located within 

the cask storage pool prior to any fuel cask 

being moved in this area. The presence of 

any empty racks in this area will not 

adversely affect the previously evaluated 

cask drop scenarios, since any impacted 

empty racks will tend to absorb the kinetic 

78052 Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Notices 

energy of the dropped cask and thus reduce 

the impact load and corresponding damage. 

The thin walled rack cell material poses 

significantly less threat to puncturing the 

cask than impact to the floor of the pool area. 

Thus, the results of the previously evaluated 

cask drop accident remain unchanged. 

Therefore, the proposed change does not 

result in a significant increase in the 

probability or consequences of a previously 

evaluated accident. 

In summary, the proposed change does not 

result in a significant increase in the 

consequences of a previously evaluated 

accident. 

2. Does the proposed amendment create 

the possibility of a new or different kind of 

accident from any accident previously 

evaluated? 

Response: No. 

The proposed change involves revising 

CPS TS 4.3, ‘‘Fuel Storage,’’ to reflect the 

increased storage capacity of the spent fuel 

pool as a result of the installation of higher 

density storage racks and addition of fuel 

storage capacity in the fuel cask storage pool. 

Due to the proposed changes, an accidental 

drop of a rack module during construction 

activity in the pool was considered as the 

only event that might represent a new or 

different kind of accident.

A construction accident of a rack dropping 

onto stored spent fuel or the pool floor liner 

is not a postulated event due to the defensein-depth approach to be taken. A new 

temporary crane, hoist, and rack lifting rig 

will be introduced to remove the existing 

racks and install the new racks. These 

temporary lift items have been designed to 

meet the requirements of NUREG–0612, 

‘‘Control of Heavy Loads at Nuclear Power 

Plants, Resolution of Generic Technical 

Activity A–6,’’ and ANSI [American National 

Standards Institute] N14.6, ‘‘Standard for 

Special Lifting Devices for Shipping 

Containers Weighing 10000 Pounds or More 

for Nuclear Materials.’’ A rack drop event is 

considered to be a ‘‘heavy load drop’’ over 

the pools. Racks will not be allowed to be 

lifted or to travel over any racks containing 

new or spent fuel assemblies, thus a rack 

drop onto fuel is precluded. A rack drop to 

the pool liner is also precluded since all of 

the lifting components, except for the 

temporary crane, either provide redundancy 

in load path or are designed with safety 

margins greater than a factor of ten (10). The 

Fuel Building Crane will be used to lower 

racks into the pool and place racks within the 

range of accessibility and to remove racks 

from the spent fuel pool. The temporary 

crane will be used to lift racks from the pool 

floor and move the racks horizontally with a 

limited lift height above the pool floor. All 

movements of heavy loads over the pool will 

comply with the applicable administrative 

controls and guidelines (i.e. plant 

procedures, NUREG–0612, etc.). A rack drop 

would not alter the storage configuration or 

moderator/coolant presence. Therefore, the 

rack drop does not represent a new or 

different kind of accident. 

The proposed change does not alter the 

operating requirements of the plant or of the 

equipment credited with mitigation of the 

design basis accidents. The proposed change 

does not affect any of the important 

parameters required to ensure safe fuel 

storage. Therefore, the proposed change does 

not create the possibility of a new or different 

kind of accident from any previously 

evaluated. 

3. Does the proposed amendment involve 

a significant reduction in a margin of safety? 

Response: No. 

The function of the spent fuel pool and 

fuel cask storage pool is to store the fuel 

assemblies in a subcritical and coolable 

configuration through all environmental and 

abnormal loadings, such as an earthquake or 

fuel assembly drop. The new rack design 

must meet all applicable requirements for 

safe storage and be functionally compatible 

with the spent fuel pool and fuel cask storage 

pool. 

The mechanical, material, and structural 

designs of the new racks have been reviewed 

in accordance with the applicable provisions 

of the NRC [Nuclear Regulatory Commission] 

Guidance entitled, ‘‘OT Positions of Review 

and Acceptance of Spent Fuel Storage and 

Handling Applications,’’ provided as an 

enclosure to Generic Letter 78–11. The rack 

materials used are compatible with the spent 

fuel assemblies and the spent fuel pool 

environment. The fixed neutron absorber (i.e.

Metamic) has been demonstrated to be 

acceptable for dry and wet storage 

applications on a generic basis. In addition, 

the NRC has approved Metamic for use in 

both wet storage and dry storage 

applications. The design of the new racks 

preserves the proper margin of safety during 

abnormal loads such as a dropped assembly 

and tensile loads from a stuck assembly. It 

has been shown that such loads will not 

invalidate the mechanical design and 

material selection to safely store fuel in a 

coolable and subcritical configuration. 

The methodology used in the criticality 

analysis of the expanded spent fuel pool 

meets the appropriate NRC guidelines and 

the ANSI standards. The margin of safety for 

subcriticality is maintained by having keff

equal to or less than 0.95 under all normal 

storage, fuel handling, and accident 

conditions, including uncertainties. 

The criterion of having keff equal to or less 

than 0.95 during storage or fuel movement is 

the same as that used previously to establish 

criticality safety evaluation acceptance. 

Therefore, the accepted margin of safety 

remains the same. 

The thermal-hydraulic and cooling 

evaluation of the spent fuel pool 

demonstrated that the pool could be 

maintained below the specified thermal 

limits under the conditions of the maximum 

heat load and during all credible accident 

sequences and seismic events. The spent fuel 

pool temperature will not exceed 150 °F 

during the worst single failure of a cooling 

pump. The maximum local water 

temperature in the hot channel will remain 

below the boiling point. The fuel will not 

undergo any significant heat up after an 

accidental drop of a fuel assembly on top of 

the rack blocking the flow path. A loss of 

cooling to the pool will allow sufficient time 

(i.e. 24 hours) for the operators to intervene 

and line up alternate cooling paths and the 

means of inventory make-up before the water 

shielding above the top of the racks falls 

below 10 feet. The thermal limits specified 

for the evaluations performed to support the 

proposed change are the same as those that 

were used in the previous evaluations. 

Therefore, the proposed change does not 

involve a significant reduction in a margin of 

safety.

The NRC staff has reviewed the 

licensee’s analysis and, based on this 

review, it appears that the three 

standards of 10 CFR 50.92(c) are 

satisfied. Therefore, the NRC staff 

proposes to determine that the 

amendment request involves no 

significant hazards consideration. 

The Commission is seeking public 

comments on this proposed 

determination. Any comments received 

within 30 days after the date of 

publication of this notice will be 

considered in making any final 

determination. 

Normally, the Commission will not 

issue the amendment until the 

expiration of 60 days after the date of 

publication of this notice. The 

Commission may issue the license 

amendment before expiration of the 60-

day period provided that its final 

determination is that the amendment 

involves no significant hazards 

consideration. In addition, the 

Commission may issue the amendment 

prior to the expiration of the 30-day 

comment period should circumstances 

change during the 30-day comment 

period such that failure to act in a 

timely way would result, for example in 

derating or shutdown of the facility. 

Should the Commission take action 

prior to the expiration of either the 

comment period or the notice period, it 

will publish in the Federal Register a 

notice of issuance. Should the 

Commission make a final No Significant 

Hazards Consideration Determination, 

any hearing will take place after 

issuance. The Commission expects that 

the need to take this action will occur 

very infrequently. 

Written comments may be submitted 

by mail to the Chief, Rules and 

Directives Branch, Division of 

Administrative Services, Office of 

Administration, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555–

0001, and should cite the publication 

date and page number of this Federal 

Register notice. Written comments may 

also be delivered to Room 6D59, Two 

White Flint North, 11545 Rockville 

Pike, Rockville, Maryland, from 7:30 

a.m. to 4:15 p.m. Federal workdays. 

Documents may be examined, and/or 

copied for a fee, at the NRC’s Public 

Document Room, located at One White 

Flint North, Public File Area O–1 F21, 

Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Notices 78053

11555 Rockville Pike (first floor), 

Rockville, Maryland. 

The filing of requests for hearing and 

petitions for leave to intervene is 

discussed below. 

Within 60 days after the date of 

publication of this notice, the licensee 

may file a request for a hearing with 

respect to issuance of the amendment to 

the subject facility operating license and 

any person whose interest may be 

affected by this proceeding and who 

wishes to participate as a party in the 

proceeding must file a written request 

for a hearing and a petition for leave to 

intervene. Requests for a hearing and a 

petition for leave to intervene shall be 

filed in accordance with the 

Commission’s ‘‘Rules of Practice for 

Domestic Licensing Proceedings’’ in 10 

CFR Part 2. Interested persons should 

consult a current copy of 10 CFR 2.309, 

which is available at the Commission’s 

PDR, located at One White Flint North, 

Public File Area 0–1F21, 11555 

Rockville Pike (first floor), Rockville, 

Maryland. Publicly available records 

will be accessible from the Agencywide 

Documents Access and Management 

System’s (ADAMS) Public Electronic 

Reading Room on the Internet at the 

NRC Web site, http://www.nrc.gov/

reading-rm/doc-collections/cfr/. If a 

request for a hearing or petition for 

leave to intervene is filed by the above 

date, the Commission or a presiding 

officer designated by the Commission or 

by the Chief Administrative Judge of the 

Atomic Safety and Licensing Board 

Panel, will rule on the request and/or 

petition; and the Secretary or the Chief 

Administrative Judge of the Atomic 

Safety and Licensing Board will issue a 

notice of a hearing or an appropriate 

order.

As required by 10 CFR 2.309, a 

petition for leave to intervene shall set 

forth with particularity the interest of 

the petitioner in the proceeding, and 

how that interest may be affected by the 

results of the proceeding. The petition 

should specifically explain the reasons 

why intervention should be permitted 

with particular reference to the 

following general requirements: (1) The 

name, address and telephone number of 

the requestor or petitioner; (2) the 

nature of the requestor’s/petitioner’s 

right under the Act to be made a party 

to the proceeding; (3) the nature and 

extent of the requestor’s/petitioner’s 

property, financial, or other interest in 

the proceeding; and (4) the possible 

effect of any decision or order which 

may be entered in the proceeding on the 

requestors/petitioner’s interest. The 

petition must also identify the specific 

contentions which the petitioner/

requestor seeks to have litigated at the 

proceeding. 

Each contention must consist of a 

specific statement of the issue of law or 

fact to be raised or controverted. In 

addition, the petitioner/requestor shall 

provide a brief explanation of the bases 

for the contention and a concise 

statement of the alleged facts or expert 

opinion which support the contention 

and on which the petitioner intends to 

rely in proving the contention at the 

hearing. The petitioner/requestor must 

also provide references to those specific 

sources and documents of which the 

petitioner is aware and on which the 

petitioner intends to rely to establish 

those facts or expert opinion. The 

petition must include sufficient 

information to show that a genuine 

dispute exists with the applicant on a 

material issue of law or fact. 

Contentions shall be limited to matters 

within the scope of the amendment 

under consideration. The contention 

must be one which, if proven, would 

entitle the petitioner to relief. A 

petitioner/requestor who fails to satisfy 

these requirements with respect to at 

least one contention will not be 

permitted to participate as a party. 

Those permitted to intervene become 

parties to the proceeding, subject to any 

limitations in the order granting leave to 

intervene, and have the opportunity to 

participate fully in the conduct of the 

hearing. 

If a hearing is requested, the 

Commission will make a final 

determination on the issue of no 

significant hazards consideration. The 

final determination will serve to decide 

when the hearing is held. If the final 

determination is that the amendment 

request involves no significant hazards 

consideration, the Commission may 

issue the amendment and make it 

immediately effective, notwithstanding 

the request for a hearing. Any hearing 

held would take place after issuance of 

the amendment. If the final 

determination is that the amendment 

request involves a significant hazards 

consideration, any hearing held would 

take place before the issuance of any 

amendment. 

Nontimely requests and/or petitions 

and contentions will not be entertained 

absent a determination by the 

Commission or the presiding officer of 

the Atomic Safety and Licensing Board 

that the petition, request and/or the 

contentions should be granted based on 

a balancing of the factors specified in 10 

CFR 2.309(a)(1)(i)–(viii). 

A request for a hearing or a petition 

for leave to intervene must be filed by: 

(1) First class mail addressed to the 

Office of the Secretary of the 

Commission, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555–

0001, Attention: Rulemaking and 

Adjudications Staff; (2) courier, express 

mail, and expedited delivery services: 

Office of the Secretary, Sixteenth Floor, 

One White Flint North, 11555 Rockville 

Pike, Rockville, Maryland, 20852, 

Attention: Rulemaking and 

Adjudications Staff; (3) E-mail 

addressed to the Office of the Secretary, 

U.S. Nuclear Regulatory Commission, 

hearingdocket@nrc.gov; or (4) facsimile 

transmission addressed to the Office of 

the Secretary, U.S. Nuclear Regulatory 

Commission, Washington, DC, 

Attention: Rulemakings and 

Adjudications Staff at (301) 415–1101, 

verification number is (301) 415–1966. 

A copy of the request for hearing and 

petition for leave to intervene should 

also be sent to the Office of the General 

Counsel, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555–

0001, and it is requested that copies be 

transmitted either by means of facsimile 

transmission to 301–415–3725 or by email to OGCMailCenter@nrc.gov. A copy 

of the request for hearing and petition 

for leave to intervene should also be 

sent to Mr. Thomas S. O’Neill, Associate 

General Counsel, Exelon Generation 

Company, LLC, 4300 Winfield Road, 

Warrenville, IL 60666, the attorney for 

the licensee. 

The Commission hereby provides 

notice that this is a proceeding on an 

application for a license amendment 

falling within the scope of section 134 

of the Nuclear Waste Policy Act of 1982 

(NWPA), 42 U.S.C. 10154. Under 

section 134 of the NWPA, the 

Commission, at the request of any party 

to the proceeding, must use hybrid 

hearing procedures with respect to ‘‘any 

matter which the Commission 

determines to be in controversy among 

the parties.’’

The hybrid procedures in section 134 

provide for oral argument on matters in 

controversy, preceded by discovery 

under the Commission’s rules and the 

designation, following argument of only 

those factual issues that involve a 

genuine and substantial dispute, 

together with any remaining questions 

of law, to be resolved in an adjudicatory 

hearing. Actual adjudicatory hearings 

are to be held on only those issues 

found to meet the criteria of section 134 

and set for hearing after oral argument. 

The Commission’s rules 

implementing section 134 of the NWPA 

are found in 10 CFR Part 2, Subpart K, 

‘‘Hybrid Hearing Procedures for 

Expansion of Spent Fuel Storage 

Capacity at Civilian Nuclear Power 

Reactors.’’ Under those rules, any party 

to the proceeding may invoke the hybrid 

78054 Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Notices 

hearing procedures by filing with the 

presiding officer a written request for 

oral argument under 10 CFR 2.1109. To 

be timely, the request must be filed 

together with a request for hearing/

petition to intervene, filed in 

accordance with 10 CFR 2.309. If it is 

determined a hearing will be held, the 

presiding officer must grant a timely 

request for oral argument. The presiding 

officer may grant an untimely request 

for oral argument only upon a showing 

of good cause by the requesting party for 

the failure to file on time and after 

providing the other parties an 

opportunity to respond to the untimely 

request. If the presiding officer grants a 

request for oral argument, any hearing 

held on the application must be 

conducted in accordance with the 

hybrid hearing procedures. In essence, 

those procedures limit the time 

available for discovery and require that 

an oral argument be held to determine 

whether any contentions must be 

resolved in an adjudicatory hearing. If 

no party to the proceeding timely 

requests oral argument, and if all 

untimely requests for oral argument are 

denied, then the usual procedures in 10 

CFR Part 2, Subpart L apply. 

For further details with respect to this 

action, see the application for 

amendment dated August 18, 2004, 

which is available for public inspection 

at the Commission’s PDR, located at 

One White Flint North, File Public Area 

O1 F21, 11555 Rockville Pike (first 

floor), Rockville, Maryland. Publicly 

available records will be accessible from 

the Agencywide Documents Access and 

Management System’s (ADAMS) Public 

Electronic Reading Room on the Internet 

at the NRC Web site, http://

www.nrc.gov/reading-rm/adams.html. 

Persons who do not have access to 

ADAMS or who encounter problems in 

accessing the documents located in 

ADAMS, should contact the NRC PDR 

Reference staff by telephone at 1–800–

397–4209, 301–415–4737, or by e-mail 

to pdr@nrc.gov.

Dated at Rockville, Maryland, this 21st day 

of December 2004.

For the Nuclear Regulatory Commission. 

George F. Dick, 

Senior Project Manager, Section 2, Project 

Directorate III, Division of Licensing Project 

Management, Office of Nuclear Reactor 

Regulation.

[FR Doc. 04–28454 Filed 12–28–04; 8:45 am] 

BILLING CODE 7590–01–P

NUCLEAR REGULATORY 

COMMISSION 

[Docket No. 50–219] 

Amergen Energy Company, LLC; 

Oyster Creek Nuclear Generating 

Station; Exemption 

1.0 Background 

AmerGen Energy Company, LLC (the 

licensee), is the holder of Facility 

Operating License No. DPR–16, which 

authorizes operation of the Oyster Creek 

Nuclear Generating Station (OCNGS), a 

boiling-water reactor facility, located in 

Ocean County, New Jersey. 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 for 

OCNGS expires on April 9, 2009. 

By letter dated August 10, 2004, 

AmerGen informed the Commission that 

it had determined that it would seek 

renewal of its operating license for 

OCNGS, but that it was unable until 

recently to decide to seek license 

renewal for OCNGS because of events 

beyond its control. AmerGen was jointly 

owned by Exelon and British Energy plc 

(BE), until December 2003. The 

application stated that for several years, 

BE had faced financial difficulties, and 

in December 2003, BE sold its share of 

AmerGen to Exelon, thereby making 

AmerGen a wholly owned subsidiary of 

Exelon Generation Company, LLC. The 

application stated that AmerGen was 

not in a position to make a reasonable 

and sound business decision to pursue 

license renewal at OCNGS due to 

facility ownership issues, and BE’s 

financial restraints. AmerGen stated 

that, in light of these and other factors, 

it could not prepare and file a sufficient 

license renewal application by April 9, 

2004, in order to meet the 5-year time 

period specified in Title 10 of the Code 

of Federal Regulations (10 CFR) Part 2, 

Section 109(b), ‘‘Effect of timely renewal 

application.’’

2.0 Request/Action 

Section 109(b) of 10 CFR Part 2 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 an operating license at least 5 years 

prior to the expiration of the existing 

license, the existing license will not be 

deemed to have expired until the 

application has been finally 

determined.’’ This requirement for 

license renewal applications was 

established in December 1991 in 

conjunction with the publication of the 

final license renewal rule, 10 CFR Part 

54, ‘‘Requirements for Renewal of 

Operating Licenses for Nuclear Power 

Plants’’ (56 FR 64943). 

AmerGen’s application requested an 

exemption from the timing requirements 

of 10 CFR 2.109(b), for submittal of the 

OCNGS license renewal application. 

The exemption would allow the 

submittal of the renewal application 

with less than 5 years remaining prior 

to expiration of the operating license 

while maintaining the protection of the 

timely renewal provision in 10 CFR 

2.109(b). AmerGen further requested 

that the exemption be issued at this 

time, subject to the condition that it 

becomes effective only if, 6 months 

prior to expiration of the existing 

facility operating license, the license 

renewal proceeding is ongoing and a 

renewed operating license for OCNGS 

has not been issued by the NRC and, 

only if by that time, the NRC staff has 

issued both an OCNGS draft 

supplemental environmental impact 

statement (SEIS) and an OCNGS safety 

evaluation report (SER) with open 

items. 

3.0 Discussion 

Pursuant to 10 CFR 54.15, exemptions 

from the requirements of Part 54 are 

governed by Section 50.12. 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). In its application, 

AmerGen stated that OCNGS met 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(b), as it 

is applied to nuclear power reactors 

licensed by the NRC, 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