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

Federal Register / Vol. 69, No. 249 / Wednesday, December 29, 2004 / Notices 78055

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 § 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 § 2.109 now reflect the decision 

that a 5-year time limit is more appropriate.

AmerGen’s application stated that the 

OCGNS license renewal application 

would be submitted in July 2005, and 

that application of the 5-year term in 10 

CFR 2.109(b) for filing a license renewal 

application is not necessary in this 

situation to achieve the purpose of the 

regulation. The July 2005 filing date, 

which is approximately 44 months 

before expiration of the existing license 

in April 2009, according to AmerGen 

will provide the NRC staff with ample 

time in which to perform a full and 

adequate review. 

Submittal of the OCNGS license 

renewal application approximately 44 

months prior to expiration of the 

operating license would provide a 

review period exceeding the 3 years the 

NRC originally estimated was needed to 

review a renewal application and 

complete any hearing that might be held 

on the application. The NRC’s current 

schedule for review of license renewal 

applications, which has been met for all 

renewal applications to date, is to 

complete its review and make a decision 

on issuing the renewed license within 

22 months of receipt without a hearing. 

If a hearing is held, the NRC’s model 

schedule anticipates completion of the 

staff’s review, the hearing process, and 

issuance of a decision on issuing the 

license 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 44 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 in July 2005, and on the 

review being completed in accordance 

with the NRC’s established license 

renewal review schedule. 

In summary, the licensee has 

demonstrated that application of the 

subject regulation is not necessary to 

achieve the underlying purpose of the 

rule, thus meeting the criterion 

specified in 10 CFR 50.12(a)(2)(ii). 

Accordingly, the NRC staff agrees that 

special circumstances are present to 

justify the requested exemption. 

It should be noted, though, that 

AmerGen requested that the exemption 

be issued now, to become effective only 

if circumstances were such that the NRC 

staff has not issued the renewed license 

for OCNGS 6 months prior to expiration 

of its existing operating license. 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. 

Therefore, the exemption is 

contingent upon the following 

conditions being met: (1) On or before 

July 29, 2005, AmerGen must submit a 

sufficient license renewal application 

for OCNGS which the NRC staff finds 

acceptable for docketing in accordance 

with 10 CFR 2.101 and the requirements 

of 10 CFR Part 54; (2) to ensure timely 

completion of the review process, 

AmerGen 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. 

The NRC does not specifically 

condition the exemption subject to 

issuance of a draft license renewal SE 

and associated draft SEIS, despite the 

licensee’s proposal to do so inasmuch as 

‘‘timely renewal’’ requires only that the 

licensee submit a sufficient license 

renewal application in accordance with 

the agency’s rules, in order for the 

existing license not to expire until there 

is a final agency determination. Of 

course, 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(b) for 

OCNGS. Specifically, this exemption 

will allow the submittal of the OCNGS 

license 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), 

subject to the two conditions set forth 

above. 

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 (69 FR 76795). 

This exemption is effective upon 

issuance.

Dated at Rockville, Maryland, this 22nd 

day of December 2004.

For the Nuclear Regulatory Commission. 

Ledyard B. Marsh, 

Director, Division of Licensing Project 

Management, Office of Nuclear Reactor 

Regulation.

[FR Doc. 04–28456 Filed 12–28–04; 8:45 am] 

BILLING CODE 7590–01–P