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###### Nuclear Regulatory Commission

          - [Docket Nos. STN 50-454 and STN 50-455; NRC-2021-0156]

# AGENCY:

Nuclear Regulatory Commission.

# ACTION:

Exemption; issuance.

# SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption in response to a September 28, 2020, request from Exelon Generation Company, LLC. The exemption allows either a licensed senior operator or a certified fuel handler to approve the emergency suspension of security measures for Byron Station, Unit Nos. 1 and 2 during certain emergency conditions or during severe weather after both the certification of permanent cessation of operations and the certification of permanent fuel removal have been docketed for the facility.

# DATES:

The exemption was issued on August 23, 2021.

# ADDRESSES:

Please refer to Docket ID NRC-2021-0156 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-2021-0156. Address questions about Docket IDs in  Regulations.gov  to Stacy Schumann; telephone: 301-415-0624; email  Stacy.Schumann@nrc.gov.  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, contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to  pdr.resource@nrc.gov.  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.
      -  Attention:  The PDR, where you may examine and order copies of public documents, is currently closed. You may submit your request to the PDR via email at  pdr.resource@nrc.gov  or call 1-800-397-4209 or 301-415-4737, between 8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal holidays.

# FOR FURTHER INFORMATION CONTACT:

Joel S. Wiebe, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6606; email: *Joel.Wiebe@nrc.gov.*

# SUPPLEMENTARY INFORMATION:

The text of the exemption is attached.

Dated: August 25, 2021.

For the Nuclear Regulatory Commission.

Joel S. Wiebe,

Senior Project Manager, Plant Licensing Branch III, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation.

## Attachment: Exemption

## NUCLEAR REGULATORY COMMISSION

## Docket Nos. STN 50-454 and STN 50-455

## Exelon Generation Company, LLC; Byron Station, Unit Nos. 1 and 2

## Exemption Related to the Approval Authority for Suspension of Security Measures in an Emergency or During Severe Weather

## I. Background

Exelon Generation Company, LLC (Exelon) is the holder of Renewed Facility Operating License Nos. NPF-37 and NPF-66 for the Byron Station, Unit Nos. 1 and 2 (Byron). The licenses provide, among other things, that the facility is subject to all applicable rules, regulations, and orders of the U.S. Nuclear Regulatory Commission (NRC, the Commission), now or hereafter in effect. The Byron facility consists of two pressurized-water reactors located in Ogle County, Illinois.

By letter dated September 2, 2020 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML20246G613), Exelon provided formal notification to the NRC pursuant to Title 10 of the *Code of Federal Regulations* (10 CFR) Sections 50.82(a)(1)(i) and 50.4(b)(8) of the intention to permanently cease power operations at Byron on or before September 30, 2021.

In accordance with 10 CFR 50.82(a)(1)(i)-(ii) and 50.82(a)(2), the 10 CFR part 50 licenses for the facility will no longer authorize reactor operation or emplacement or retention of fuel in the reactor vessel after certifications of permanent cessation of operations and permanent removal of fuel from the reactor vessel are docketed for Byron. As a result, licensed senior operators (*i.e.,* individuals licensed under 10 CFR part 55 to manipulate the controls of a facility and to direct the licensed activities of licensed operators) will no longer be required to support plant operating activities. Instead, certified fuel handlers (CFHs) (*i.e.,* non-licensed operators who have qualified in accordance with a fuel handler training program approved by the Commission) will perform activities associated with decommissioning, irradiated fuel handling, and management. Commission approval of a fuel handler training program is needed to facilitate these activities.

By letter dated September 24, 2020 (ADAMS Accession No. ML20269A233), Exelon submitted a request for Commission approval of the CFH Training and Retraining Program for Byron. By letter dated August 17, 2021 (ADAMS Accession No. ML21076A371), the Commission approved the CFH Training and Retraining Program for Byron. The CFH Training and Retraining Program is to be used to satisfy training requirements for the plant personnel responsible for supervising and directing the monitoring, storage, handling, and cooling of irradiated fuel in a manner consistent with ensuring the health and safety of the public. As stated in 10 CFR 50.2, “Definitions,” CFHs are qualified in accordance with a Commission-approved training program.

## II. Request/Action

The Commission's regulation at 10 CFR 73.55(p)(1) addresses the suspension of security measures in an emergency (10 CFR 73.55(p)(1)(i)) or during severe weather (10 CFR 73.55(p)(1)(ii)) by stating:

The licensee may suspend implementation of affected requirements of this section under the following conditions:

(i) In accordance with §§ 50.54(x) and 50.54(y) of this chapter, the licensee may suspend any security measures under this section in an emergency when this action is immediately needed to protect the public health and safety and no action consistent with license conditions and technical specifications that can provide adequate or equivalent protection is immediately apparent. This suspension of security measures must be approved as a minimum by a licensed senior operator before taking this action.      ( print page 48452)    

(ii) During severe weather when the suspension of affected security measures is immediately needed to protect the personal health and safety of security force personnel and no other immediately apparent action consistent with the license conditions and technical specifications can provide adequate or equivalent protection. This suspension of security measures must be approved, as a minimum, by a licensed senior operator, with input from the security supervisor or manager, before taking this action.

By letter dated September 28, 2020 (ADAMS Accession No. ML20272A212), Exelon requested an exemption from 10 CFR 73.55(p)(1)(i) and (ii), pursuant to 10 CFR 73.5, “Specific exemptions.” Consistent with 10 CFR 50.54(y), the proposed exemption would authorize a CFH, in addition to a licensed senior operator, to approve the suspension of security measures in an emergency or during severe weather at Byron.

## III. Discussion

The NRC's security rules have long recognized the potential need to suspend security or safeguards measures under certain conditions. Accordingly, 10 CFR 50.54(x) and (y), first published in 1983, allow a licensee to take reasonable actions in an emergency that depart from license conditions or technical specifications when those actions are immediately “needed to protect the public health and safety” and no actions consistent with license conditions and technical specifications that can provide adequate or equivalent protection are immediately apparent (48 FR 13970; April 1, 1983). This departure from license conditions or technical specifications must be approved, as a minimum, by a licensed senior operator. In 1986, in its final rule, “Miscellaneous Amendments Concerning the Physical Protection of Nuclear Power Plants” (51 FR 27817; August 4, 1986), the Commission issued 10 CFR 73.55(a), stating, in part:

In accordance with § 50.54 (x) and (y) of Part 50, the licensee may suspend any safeguards measures pursuant to § 73.55 in an emergency when this action is immediately needed to protect the public health and safety and no action consistent with license conditions and technical specification that can provide adequate or equivalent protection is immediately apparent. This suspension must be approved as a minimum by a licensed senior operator prior to taking the action.

In 1996, the NRC made a number of regulatory changes to address decommissioning. One of the changes was to amend 10 CFR 50.54(x) and (y) to authorize a non-licensed operator called a “certified fuel handler,” in addition to a licensed senior operator, to approve such protective actions in an emergency situation at a permanently shutdown facility. Specifically, in addressing the role of the CFH during emergencies, the Commission stated in the proposed rule, “Decommissioning of Nuclear Power Reactors” (60 FR 37379; July 20, 1995):

The Commission is proposing to amend 10 CFR 50.54(y) to permit a certified fuel handler at nuclear power reactors that have permanently ceased operations and permanently removed fuel from the reactor vessel, subject to the requirements of § 50.82(a) and consistent with the proposed definition of “Certified Fuel Handler” specified in § 50.2, to make these evaluations and judgments. A nuclear power reactor that has permanently ceased operations and no longer has fuel in the reactor vessel does not require a licensed individual to monitor core conditions. A certified fuel handler at a permanently shutdown and defueled nuclear power reactor undergoing decommissioning is an individual who has the requisite knowledge and experience to evaluate plant conditions and make these judgments.

In the final rule (61 FR 39298; July 29, 1996), the NRC added the following definition to 10 CFR 50.2: “Certified fuel handler means, for a nuclear power reactor facility, a non-licensed operator who has qualified in accordance with a fuel handler training program approved by the Commission.” However, the decommissioning rule did not propose or make parallel changes to 10 CFR 73.55(a), and did not discuss the role of a non-licensed CFH at a permanently shutdown facility.

In the final rule, “Power Reactor Security Requirements” (74 FR 13926; March 27, 2009), the NRC relocated the security suspension requirements from 10 CFR 73.55(a) to 10 CFR 73.55(p)(1)(i) and (ii). The role of a CFH was not discussed in the rulemaking; therefore, the suspension of security measures in accordance with 10 CFR 73.55(p) continues to require approval, as a minimum, by a licensed senior operator, even for a permanently shutdown facility.

Under 10 CFR 73.5, the Commission may, upon application of any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 73, as it determines are authorized by law, will not endanger life or property or the common defense and security, and are otherwise in the public interest. As explained below, the proposed exemption is authorized by law, will not endanger life or property or the common defense and security, and is otherwise in the public interest.

### A. The Exemption Is Authorized by Law

The proposed exemption from 10 CFR 73.55(p)(1)(i) and (ii) would permit, as a minimum, a CFH, in addition to a licensed senior operator, to approve the suspension of security measures in an emergency or during severe weather at Byron when it is permanently shutdown. Although the exemption is effective upon receipt, the actions permitted by the proposed exemption may not be implemented at Byron until the 10 CFR part 50 licenses no longer authorize operation of the reactors or emplacement or retention of fuel in the reactor vessels in accordance with 10 CFR 50.82(a)(2). The intent of the proposed exemption is to align these regulations with 10 CFR 50.54(y) by using the authority of either a licensed senior operator or a CFH to approve the suspension of security measures during an emergency or during severe weather.

Per 10 CFR 73.5, the NRC is authorized to grant specific exemptions from the regulations in 10 CFR part 73, as are authorized by law. The NRC staff has determined that granting the proposed exemption is consistent with the Atomic Energy Act of 1954, as amended, and not otherwise inconsistent with NRC regulations or other applicable laws. Therefore, the exemption is authorized by law.

### B. The Exemption Will Not Endanger Life or Property or the Common Defense and Security

Permitting, as a minimum, a CFH, in addition to a licensed senior operator, to approve the suspension of security measures in an emergency or during severe weather at Byron when it is permanently shutdown will not endanger life or property or the common defense and security for the reasons discussed below.

First, 10 CFR 73.55(p)(2) will continue to require that “[s]uspended security measures must be reinstated as soon as conditions permit.”

Second, the suspension of security measures for non-weather emergencies under 10 CFR 73.55(p)(1)(i) will continue to be invoked only “when this action is immediately needed to protect the public health and safety and no action consistent with license conditions and technical specifications that can provide adequate or equivalent protection is immediately apparent.” Thus, the exemption would not prevent the licensee from meeting the underlying purpose of 10 CFR 73.55(p)(1)(i) to protect the public health and safety.

Third, the suspension of security measures for severe weather under 10 CFR 73.55(p)(1)(ii) will continue to be used only when “the suspension of affected security measures is immediately needed to protect the personal health and safety of security       ( print page 48453)    force personnel and no other immediately apparent action consistent with the license conditions and technical specifications can provide adequate or equivalent protection.” The requirement in 10 CFR 73.55(p)(1)(ii) to receive input from the security supervisor or manager will remain. Therefore, the exemption would not prevent the licensee from meeting the underlying purpose of 10 CFR 73.55(p)(1)(ii) to protect the health and safety of the security force.

Additionally, by letter dated August 17, 2021, the NRC approved the Byron CFH Training and Retraining Program. The NRC staff found that, among other things, the program addresses the safe conduct of decommissioning activities, the safe handling and storage of spent fuel, and the appropriate response to plant emergencies. Because a CFH at Byron will be sufficiently trained and qualified under an NRC-approved program, the NRC staff considers the CFH to have sufficient knowledge of operational and safety concerns, such that allowing the CFH to suspend security measures in an emergency or during severe weather will not result in undue risk to the public health and safety.

In addition, since the exemption allows a CFH the same authority currently given to the licensed senior operator under 10 CFR 73.55(p)(1)(i) and (ii), no change is required to physical security. Since no change is required to physical security, the exemption would not reduce the overall effectiveness of the Byron physical security plan and would not adversely impact the licensee's ability to physically secure the site or protect special nuclear material at Byron, and thus, would not have an effect on the common defense and security. The NRC staff has determined that the exemption would not reduce security measures currently in place to protect against radiological sabotage. Instead, the exemption would align the requirements of 10 CFR 73.55(p)(1)(i) and (ii) with the existing requirements of 10 CFR 50.54(y).

For these reasons, granting the exemption from the requirements in 10 CFR 73.55(p)(1)(i) and (ii) to permit, as a minimum, a CFH, in addition to a licensed senior operator, to approve the suspension of security measures in an emergency or during severe weather at Byron when it is permanently shutdown will not endanger life or property or the common defense and security.

### C. The Exemption Is Otherwise in the Public Interest

The proposed exemption would allow a CFH, in addition to a licensed senior operator, to approve the suspension of security measures in an emergency when “immediately needed to protect the public health and safety” or during severe weather when “immediately needed to protect the personal health and safety of security force personnel” at Byron when it is permanently shutdown. If the exemption is not granted, Byron will be required to have a licensed senior operator available to approve the suspension of security measures in an emergency or during severe weather for a permanently shutdown plant, even though there would no longer be an NRC requirement for Exelon to maintain a licensed senior operator at Byron after the certifications required by 10 CFR 50.82(a)(1)(i) and (ii) are submitted.

This proposed exemption is in the public interest for the following reasons. Without the exemption, there would be uncertainty regarding how the licensee would invoke the temporary suspension of security measures that may be needed for protecting the public health and safety or the personal health and safety of the security force personnel in emergencies or during severe weather, given the differences between the requirements in 10 CFR 73.55(p)(1)(i) and (ii) and 10 CFR 50.54(y). The exemption would allow the licensee to make decisions pursuant to 10 CFR 73.55(p)(1)(i) and (ii) without having to maintain a staff of licensed senior operators at a nuclear power reactor that has permanently ceased operations and permanently removed fuel from the reactor vessel. The exemption would also allow the licensee to have an established procedure in place to allow either a licensed senior operator or a CFH to suspend security measures in an emergency or during severe weather after the certifications required by 10 CFR 50.82(a)(1)(i) and (ii) have been submitted. Finally, the consistent and efficient regulation of nuclear power plants serves the public interest and this exemption would assure consistency between the regulations in 10 CFR part 73 and 10 CFR 50.54(y) and the requirements concerning licensed operators in 10 CFR part 55.

The NRC staff has determined that granting the proposed exemption would allow the licensee to designate a CFH with qualifications appropriate for a permanently shutdown and defueled reactor to approve the suspension of security measures in an emergency to protect the public health and safety and during severe weather to protect the personal health and safety of the security force personnel. The actions permitted by this exemption may be implemented at Byron when both the certification of permanent cessation of operations and the certification of permanent fuel removal are submitted in accordance with 10 CFR 50.82(a)(1)(i) and (ii), which is consistent with the similar authority provided by 10 CFR 50.54(y). Therefore, the exemption is in the public interest.

### D. Environmental Consideration

The NRC's approval of the proposed exemption belongs to a category of actions that the Commission, 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 NRC's approval of the exemption is categorically excluded from further environmental analysis under 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 Chapter I to 10 CFR 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 the exemption is sought involve, among others: safeguard plans, and materials control and accounting inventory scheduling requirements or other requirements of an administrative, managerial, or organizational nature. The basis for the 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 staff has determined that granting the proposed exemption involves no significant hazards consideration because allowing a CFH, in addition to a licensed senior       ( print page 48454)    operator, to approve the security suspension at a permanently shutdown and defueled power plant 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 proposed exemption is unrelated to any operational restriction. 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 proposed exemption would not change radioactive effluents or emissions that affect radiation exposures to plant workers and members of the public. 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. 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 proposed exemption is not associated with construction or major renovations of any buildings or structures. 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 proposed exemption does not concern the source term (*i.e.,* potential amount of radiation in an accident) or mitigation. Thus, there is no significant increase in the potential for or consequences from radiological accidents. Therefore, the requirements of 10 CFR 51.22(c)(25)(v) are met.

#### Requirements in 10 CFR 51.22(c)(25)(vi)

The proposed exemption is from the requirement to have a licensed senior operator approve suspensions of security measures in an emergency or during severe weather. Therefore, the requirement from which the exemption is sought involves safeguard plans, materials control, and managerial and organizational matters and, thus, the requirements of 10 CFR 51.22(c)(25)(vi) are met.

#### Determination Regarding 10 CFR 51.22(c)(25) Requirements

Based on the above, the NRC staff determines 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 impact statement or environmental assessment need be prepared in connection with the approval of the proposed exemption.

## IV. Conclusion

Accordingly, the Commission has determined that, pursuant to 10 CFR 73.5, the proposed exemption is authorized by law, will not endanger life or property or the common defense and security, and is otherwise in the public interest. Therefore, the Commission hereby grants the licensee's request for an exemption from the requirements of 10 CFR 73.55(p)(1)(i) and (ii) to allow either a licensed senior operator or a CFH to approve the suspension of security measures in an emergency or during severe weather at Byron once the certifications required under 10 CFR 50.82(a)(1) have been submitted.

The exemption is effective upon receipt.

Dated: August 23, 2021.

For the Nuclear Regulatory Commission.

Caroline L. Carusone,

Deputy Director, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation.

[FR Doc. 2021-18601 Filed 8-27-21; 8:45 am]

BILLING CODE 7590-01-P