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[Federal Register Volume 89, Number 223 (Tuesday, November 19, 2024)]
[Notices]
[Pages 91433-91436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26921]

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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-333; NRC-2024-0178]

Constellation Energy Generation, LLC; James A. FitzPatrick 
Nuclear Power Plant; Exemption

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice; issuance.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) has issued an 
exemption in response to a December 7, 2023, request from Constellation 
Energy Generation, LLC (Constellation), regarding the submittal of a 
subsequent license renewal application for James A. FitzPatrick Nuclear 
Power Plant. Pursuant to this exemption, if the licensee submits a 
subsequent license renewal application at least 3 years prior to the 
expiration of the existing operating license, and if the NRC staff 
finds it acceptable for docketing, the existing operating license will 
be in timely renewal under NRC regulations until the NRC has made a 
final determination on whether to approve the subsequent license 
renewal application.

DATES: The exemption was issued on November 12, 2024.

ADDRESSES: Please refer to Docket ID NRC-2024-0178 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-2024-0178. Address 
questions about Docket IDs in Regulations.gov to Stacy Schumann; 
telephone: 301-415-0624; 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 (PDR) reference staff at 1-800-397-4209, at 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.
     NRC's PDR: The PDR, where you may examine and order copies 
of publicly available documents, is open by appointment. To make an 
appointment to visit the PDR, please send an email to 
[email protected] or call 1-800-397-4209 or 301-415-4737, between 8 
a.m. and 4 p.m. eastern time (ET), Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Brian Harris, Office of Nuclear 
Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001; telephone: 301-415-2277; email: [email protected].

SUPPLEMENTARY INFORMATION: The text of the exemption is attached.

    Dated: November 14, 2024.

    For the Nuclear Regulatory Commission.
Brian Harris,
Senior Project Manager, License Renewal Projects Branch, Division of 
New and Renewed Licenses, Office of Nuclear Reactor Regulation.

Attachment--Nuclear Regulatory Commission

Docket No. 50-333

Constellation Energy Generation, LLC

James A. FitzPatrick Nuclear Power Plant

Exemption

I. Background

    Constellation Energy Generation, LLC (Constellation, the licensee), 
is the holder of Renewed Facility Operating License No. DPR-59 which 
authorizes operation of the James A. FitzPatrick Nuclear Power Plant 
(FitzPatrick). This unit is a boiling-water reactor located in Oswego 
County, New York. The operating 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 FitzPatrick 
expires on October 17, 2034.

II. Request/Action

    By letter dated December 7, 2023 (Agencywide Documents Access and 
Management System (ADAMS) Accession No. ML23341A189), Constellation 
requested an exemption from 10 CFR 2.109(b), which provides that if a 
nuclear power plant licensee files a sufficient license renewal 
application ``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.'' Specifically, 
Constellation requested timely renewal protection under 10 CFR 2.109(b) 
if it

[[Page 91434]]

submits a subsequent license renewal application (SLRA) for FitzPatrick 
at least 3 years prior to the expiration of the existing license.
    In its December 7, 2023, letter, the licensee stated that three 
special circumstances apply to its exemption request. The three special 
circumstances that Constellation included in its request are:
    (1) Application 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;
    (2) Compliance 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; and
    (3) There is present any other material circumstance not considered 
when the regulation was adopted for which it would be in the public 
interest to grant an exemption.

III. Discussion

    Under 10 CFR 54.17(a), the NRC requires that the filing of an 
application for a renewed license be in accordance with, among other 
regulations, 10 CFR 2.109(b). As provided in 10 CFR 54.15, exemptions 
from the requirements of 10 CFR part 54 may be granted by the 
Commission in accordance with 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).

A. The Exemption Is Authorized by Law

    This exemption would allow Constellation to receive timely renewal 
protection under 10 CFR 2.109(b) if it submits a sufficient SLRA for 
FitzPatrick at least 3 years prior to the expiration of its existing 
license. This means that if the licensee submits an SLRA by October 17, 
2031, and the staff finds it acceptable for docketing, the existing 
license for FitzPatrick will not be deemed to have expired until the 
NRC has made a final determination on whether to approve the SLRA. The 
staff has determined that granting this exemption is authorized by law.
    Section 103(c) of the Atomic Energy Act of 1954, as amended, 
permits the Commission to issue operating licenses, including renewed 
licenses. 10 CFR 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(b) is not required 
by the Atomic Energy Act of 1954, as amended, or the APA. It is the 
result of a discretionary agency rulemaking under sections 161 and 181 
of the Atomic Energy Act of 1954, as amended (56 FR 64943; December 13, 
1991) that was designed to provide the NRC with a reasonable amount of 
time to review a license renewal application and decide whether to 
approve it. Prior to 1992, the rules provided that licensees would have 
received timely renewal protection when they submitted their license 
renewal applications 30 days before the expiration of the current 
license (56 FR 64962; December 13, 1991). In 1990, the NRC proposed 
modifying 10 CFR 2.109 to provide that applications must be submitted 3 
years before expiration of the current license to be afforded timely 
renewal protection (55 FR 29058; July 17, 1990). There is nothing in 
the preamble supporting the proposed rule or final rule revising 10 CFR 
2.109(b) that suggests that applying the timely renewal doctrine to 
license renewal applications submitted 30 days before the expiration of 
the license was not authorized by law. Instead, it appears the 
Commission proposed to revise 10 CFR 2.109(b) from 30 days to 3 years 
before the expiration of the license so that the final determination on 
a license renewal application would typically be made before the 
current operating license expired. In the proposed rule, the Commission 
explained that it did not believe 30 days would provide ``a reasonable 
time to review an application for a renewed operating license'' and 
estimated that the technical review of a license renewal application 
would take approximately 2 years (55 FR 29051; July 17, 1990). In the 
final rule, the Commission stated that the technical review of the 
application would take approximately 2 years due to the review of 
``many complex technical issues'' and that ``[a]ny necessary hearing 
could likely add an additional year or more'' (56 FR 64962; December 
13, 1991). Ultimately, the Commission concluded in the final rule that 
timely renewal protection would be provided for license renewal 
applications filed 5 years before the operating license expired to 
promote consistency with the requirement that licensees submit 
decommissioning plans and related financial assurance information on or 
about 5 years prior to the expiration of their current operating 
license. Thus, in promulgating 10 CFR 2.109(b), the Commission 
considered that the time period needed to reach a final determination 
may be less than 5 years in some cases, but the rule also provides 
timely renewal protection for timely-filed applications to account for 
situations where the resolution of complex technical issues may take 
more time.
    The exemption constitutes a change to the schedule by which the 
licensee must submit its SLRA and is administrative in nature; it does 
not involve any change to the current operating license. Under 10 CFR 
54.17(a), an application for a renewed license must be filed in 
accordance with subpart A of 10 CFR part 2, which includes 10 CFR 
2.109(b). However, the NRC may grant exemptions from the requirements 
of 10 CFR part 54 pursuant to 10 CFR 54.15. For the reasons stated 
above, 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 Constellation to submit a 
sufficient SLRA and receive timely renewal protection is a scheduling 
change. The action does not change the manner in which FitzPatrick 
operates and maintains public health and safety because the exemption 
from 10 CFR 2.109(b) does not result in a change to the facility or the 
current operating license. 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 SLRA, 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 exemption does not

[[Page 91435]]

cause undue risk to public health and safety.

C. The Exemption Is Consistent With the Common Defense and Security

    The requested exemption is a scheduling change that does not alter 
the design, function, or operation of any structures or plant equipment 
that are necessary to maintain safe and secure status of any site 
security matters. Therefore, the NRC finds that the action is 
consistent with the common defense and security.

D. Special Circumstances

    The Commission will not consider granting a specific exemption from 
the requirements in 10 CFR part 50 unless special circumstances are 
present. For the following reasons, the NRC finds that the special 
circumstances of 10 CFR 50.12(a)(2)(ii) are present for FitzPatrick. 
That is, application 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.
    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). 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; December 13, 1991). The 
preamble discussed the basis for establishing the latest date for 
filing license renewal applications for the purposes of the timely 
renewal doctrine (56 FR 64962; December 13, 1991). As discussed in 
Section III.A of this issuance, the NRC originally estimated that 
approximately 3 years would be a reasonable amount of time to review a 
license 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 license renewal application 
to receive timely renewal protection.
    Accordingly, application of the 5-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 Constellation files a sufficient SLRA at 
least 3 years prior to expiration of the FitzPatrick license. The NRC's 
current schedule for review of SLRAs is to complete its review and make 
a decision on issuing the renewed license within 18 months of 
acceptance if there is no hearing. If a hearing is held, the NRC's 
model schedule anticipates completion of the NRC's review, 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 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 circumstance of 
FitzPatrick. Because the NRC staff finds that special circumstances 
exist under 10 CFR 50.12(a)(2)(ii), the NRC staff did not consider 
whether special circumstances also exist under 10 CFR 50.12(a)(2)(iii) 
or 10 CFR 50.12(a)(2)(vi), as presented by the licensee in its 
exemption request.

E. Environmental Considerations

    The NRC has determined that the issuance of the requested exemption 
meets the provisions of categorical exclusion specified in 10 CFR 
51.22(c)(25). Under 10 CFR 51.22(c)(25), the granting of an exemption 
from the requirements of any regulation of Title 10, Chapter 1 of the 
Code of Federal Regulations qualifies as a categorical exclusion if (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 one of several matters, which 
includes scheduling requirements under 10 CFR 51.22(c)(25)(vi)(G). The 
basis for NRC's determination is provided in the following evaluation 
of the requirements in 10 CFR 51.22(c)(25)(i)-(vi).
Requirements in 10 CFR 51.22(c)(25)(i)
    To qualify for a categorical exclusion under 10 CFR 
51.22(c)(25)(i), the exemption must involve a no significant hazards 
consideration. The criteria for making a no significant hazards 
consideration determination are found in 10 CFR 50.92(c). The NRC has 
determined that the granting of the exemption request involves no 
significant hazards consideration because allowing the submittal of the 
SLRA at least 3 years before the expiration of the existing 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. Therefore, the requirements of 10 CFR 
51.22(c)(25)(i) are met.
Requirements in 10 CFR 51.22(c)(25)(ii) and (iii)
    The exemption constitutes a change to the schedule by which 
Constellation must submit its SLRA and still place the license in 
timely renewal, which is administrative in nature, and does not involve 
any change in the types or significant increase in the amounts of 
effluents that may be released offsite and does not contribute to any 
significant increase in occupational or public radiation exposure. 
Therefore, the requirements of 10 CFR 51.22(c)(25)(ii) and (iii) are 
met.
Requirements in 10 CFR 51.22(c)(25)(iv)
    The exempted regulation is not associated with construction, and 
the exemption does not propose any changes to the site, alter the site, 
or change the operation of the site. Therefore, the requirements of 10 
CFR 51.22(c)(25)(iv) are met because there is no significant 
construction impact.
Requirements in 10 CFR 51.22(c)(25)(v)
    The exemption constitutes a change to the schedule by which 
Constellation must submit its SLRA and still place the license in 
timely renewal, which is administrative in nature, and does not impact 
the probability or consequences of accidents. Thus, there is no 
significant increase in the potential for, or consequences of, a 
radiological

[[Page 91436]]

accident. Therefore, the requirements of 10 CFR 51.22(c)(25)(v) are 
met.
Requirements in 10 CFR 51.22(c)(25)(vi)
    To qualify for a categorical exclusion under 10 CFR 
51.22(c)(25)(vi)(G), the exemption must involve scheduling 
requirements. The exemption involves scheduling requirements because it 
would allow Constellation to submit an SLRA for FitzPatrick at least 3 
years prior to the expiration of the existing license, rather than the 
5 years specified in 10 CFR 2.109(b), and still place the license in 
timely renewal under 10 CFR 2.109(b). Therefore, the requirements of 10 
CFR 51.22(c)(25)(vi) are met.
    Based on the above, the NRC concludes that the proposed exemption 
meets the eligibility criteria for a categorical exclusion set forth in 
10 CFR 51.22(c)(25). Therefore, pursuant to 10 CFR 51.22(b), no 
environmental assessment or environmental impact statement 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 requested 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, as defined in 10 CFR 50.12(a)(2)(ii), are present. 
Therefore, the NRC hereby grants the licensee a one-time exemption such 
that if the licensee submits an SLRA for FitzPatrick at least 3 years 
prior to the expiration of the existing operating license, and if the 
NRC staff finds it acceptable for docketing, the existing operating 
license will be in timely renewal under NRC regulations until the NRC 
has made a final determination on whether to approve the SLRA.
    This exemption is effective upon issuance.

    Dated: November 12, 2024.

    For the Nuclear Regulatory Commission.

/RA/

Michelle Sampson,

Director, Division of New and Renewed Licenses, Office of Nuclear 
Reactor Regulation.

[FR Doc. 2024-26921 Filed 11-18-24; 8:45 am]
BILLING CODE 7590-01-P
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