[Federal Register Volume 88, Number 45 (Wednesday, March 8, 2023)]
[Notices]
[Pages 14395-14399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04750]
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NUCLEAR REGULATORY COMMISSION
[Docket Nos. 50-275 and 50-323; NRC-2023-0043]
Pacific Gas and Electric Company; Diablo Canyon Power Plant,
Units 1 and 2
AGENCY: Nuclear Regulatory Commission.
ACTION: Exemption; issuance.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) has issued an
exemption in response to an October 31, 2022, request from Pacific Gas
and Electric Company regarding the submittal of a license renewal
application for Diablo Canyon Power Plant, Units 1 and 2. Pursuant to
this exemption, if the licensee submits a license renewal application
less than 5 years prior to expiration of the existing operating
licenses but no later than December 31, 2023, and if the NRC staff
finds it acceptable for docketing, the existing operating licenses will
be in timely renewal under NRC regulations until the NRC has made a
final determination on whether to approve the license renewal
application.
DATES: The exemption was issued on March 2, 2023.
ADDRESSES: Please refer to Docket ID NRC-2023-0043 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-2023-0043. 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, 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: You may examine and purchase copies of public
documents, by appointment, at the NRC's PDR, Room P1 B35, One White
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. 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 K. 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: March 3, 2023.
For the Nuclear Regulatory Commission.
Lauren K. Gibson,
Chief, License Renewal Projects Branch, Division of New and Renewed
Licenses, Office of Nuclear Reactor Regulation.
Nuclear Regulatory Commission
Docket Nos. 50-275 and 50-323; Pacific Gas and Electric Company; Diablo
Canyon Power Plant, Units 1 and 2; Exemption
I. Background
Pacific Gas and Electric Company (the licensee, PG&E) is the holder
of Facility Operating License Nos. DPR-80 and DPR-82, which authorize
operation of Diablo Canyon Power Plant (DCPP), Units 1 and 2,
respectively. These units are pressurized water reactors located in San
Luis Obispo, California. The operating licenses provide, among other
things, that the facility is subject to all rules, regulations, and
orders of the U.S.
[[Page 14396]]
Nuclear Regulatory Commission (NRC, the Commission) now or hereafter in
effect. The current operating licenses for DCPP Units 1 and 2, expire
on November 2, 2024, and August 26, 2025, respectively.
In November 2009, PG&E submitted a license renewal application for
DCPP, Units 1 and 2 (ADAMS Accession No. ML093340086). The NRC
conducted a docketing acceptance review of the application, accepted it
for docketing, and began the necessary safety and environmental reviews
(75 FR 3493; January 21, 2010). This license renewal application had
timely renewal protection under 10 CFR 2.109(b) because it was
submitted more than 5 years before the expiration dates of the
operating licenses for the units. In April 2011, PG&E requested that
the NRC delay its decision on the DCPP Units 1 and 2 license renewal
application (ML111010592). On June 2, 2011, the NRC staff published a
safety evaluation documenting its safety review of the application to
that point (ML11153A103). In 2016, PG&E requested that the NRC suspend
its review of the DCPP Units 1 and 2 license renewal application
(ML16173A454). By letter dated March 7, 2018 (ML18066A937), PG&E
requested to withdraw the license renewal application based on
projected energy demands and other economic factors in the State of
California. The California Public Utilities Commission approved PG&E's
resource planning decision to terminate the license renewal application
review in Decision 18-01-022, dated January 11, 2018.\1\ On April 16,
2018 (ML18093A115), the NRC granted the withdrawal (83 FR 17688; April
23, 2018), terminated its review, and closed the docket. PG&E states
that subsequent to the withdrawal of its license renewal application in
2018, it ``has been working on decommissioning planning efforts to
support the transition to active decommissioning upon shutdown of DCPP
Units 1 and 2 at the expiration of the operating licenses.''
(ML22304A691).
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\1\ Decision Approving Retirement of Diablo Canyon Nuclear Power
Plant, Application 16-8-006, https://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M205/K423/205423920.PDF.
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On September 2, 2022, the State of California enacted Senate Bill
No. 846, which invalidated and reversed the 2018 California Public
Utilities Commission decision to approve termination of PG&E's license
renewal application and retirement of DCPP Units 1 and 2.\2\ As a
result, by letter dated October 31, 2022, PG&E requested that the NRC
resume its review of the previously submitted and subsequently
withdrawn DCPP Units 1 and 2 license renewal application; PG&E also
requested that the NRC confirm that PG&E was (and is again) in timely
renewal under 10 CFR 2.109(b) (ML22304A691). In support of its request,
PG&E stated that its previous decision to withdraw the license renewal
application was based on ``the determination that continued baseload
operation of the two DCPP units beyond their licensed operating periods
was not necessary to meet California's projected energy demand
requirements and the potential costs to bundled customers in light of
changes in electricity supply in the State.'' In the alternative, PG&E
requested an exemption from 10 CFR 2.109(b) and timely renewal
protection that would allow PG&E to submit a license renewal
application for DCPP Units 1 and 2 by December 31, 2023.
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\2\ California Senate Bill No. 846, Diablo Canyon powerplant:
extension of operations (Sept. 2, 2022) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB846 (SB846).
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The NRC staff responded to this request on January 24, 2023
(ML22343A179). In its response, the NRC staff explained it would not
resume the review of PG&E's withdrawn application and stated that its
response to PG&E's exemption request would be provided separately. As
described more fully below, the staff has completed its evaluation of
PG&E's exemption request and 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. The staff has also
determined that special circumstances, as defined in 10 CFR
50.12(a)(2), are present.
II. Request/Action
As an alternative to its request that the NRC staff resume its
review of the withdrawn DCPP Units 1 and 2 license renewal application,
PG&E 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, PG&E
requested timely renewal protection under 10 CFR 2.109(b) if it submits
a license renewal application for DCPP Units 1 and 2 by December 31,
2023.
In its October 31, 2022, letter, the licensee stated that two
special circumstances apply to its exemption request. The special
circumstances that the licensee identified are:
(1) 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.
(2) 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), 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), ``Effect of timely renewal application.'' Section
2.109(b) states that ``[i]f the licensee of a nuclear power plant
licensed under 10 CFR 50.21(b) or 50.22 files a sufficient application
for renewal of either an operating license or a combined license at
least 5 years before the expiration of the existing license, the
existing license will not be deemed to have expired until the
application has been finally determined.''
As provided in 10 CFR 54.15, exemptions from the requirements of
Part 54 are governed by 10 CFR 50.12. Pursuant to 10 CFR 50.12, the
Commission may, upon application by any interested person or upon its
own initiative, grant exemptions from the requirements of 10 CFR part
50 when (1) the exemptions are authorized by law, will not present an
undue risk to public health or safety, and are consistent with the
common defense and security; and (2) special circumstances are present,
as defined in 10 CFR 50.12(a)(2).
A. The Exemption Is Authorized by Law
This exemption would allow the licensee to update its previous
license renewal application and submit a sufficient license renewal
application for DCPP Units 1 and 2, by December 31, 2023, and, if it
does so, receive timely renewal protection under 10 CFR 2.109(b). This
means that if the licensee submits an updated license renewal
application by December 31, 2023, and the staff finds it acceptable for
docketing, the existing licenses for DCPP Units 1 and 2 will not be
deemed to have expired until the NRC has made a final determination on
whether to approve the license renewal application.
The staff has determined that even though less than 5 years remain
in the terms of each of the licenses for DCPP
[[Page 14397]]
Units 1 and 2, granting this limited, one-time exemption is authorized
by law. 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
Administrative Procedure Act. 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. Section 103c. of
the Atomic Energy Act of 1954, as amended, permits the Commission to
issue operating licenses, including renewed licenses. Section 2.109
implements Section 9(b) of the Administrative Procedure Act, 5 U.S.C.
558(c), which states, in part:
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 time period in 10 CFR 2.109(b) is designed to provide a
reasonable amount of time for the NRC to review a license renewal
application and reach a decision on 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 64943; 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 29043; 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 29043; 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 ``any necessary hearing could likely
add an additional year or more'' (56 FR 64943; 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 licenses. 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 application for license renewal 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
one-time exemption will not result in a violation of the Atomic Energy
Act of 1954, as amended, the Administrative Procedure Act, 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 does not change the manner in which the
plants operate and maintains public health and safety because the
exemption from 10 CFR 2.109 does not result in a change to the facility
or the current operating license, but allows DCPP Units 1 and 2 to
continue operating under its existing licenses in the event the NRC has
not reached a final determination of the license renewal application
prior the expiration of the current operating licenses. 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 continue to 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.
If the licensee submits a license renewal application by December
31, 2023, there would be approximately 11 months prior to the
expiration of the current license for Unit 1, and approximately 20
months prior to the expiration of the current license for Unit 2, for
the staff to conduct a docketing acceptance review and, if the
application is accepted for docketing, provide a hearing opportunity
and conduct the required safety and environmental reviews. Although 11
months is less than the 18-month generic milestone schedule for the
staff's review of a license renewal application,\3\ it is sufficient
time for the NRC staff to determine if any immediate actions need to be
taken prior to the licensee entering the period of timely renewal.
Additionally, unlike a situation where an application for license
renewal is being filed for the first time, here, the licensee
previously submitted an application that the NRC staff docketed and
reviewed, issuing a safety evaluation in June 2011 documenting its
findings to that point. If PG&E submits an updated, sufficient license
renewal application by December 31, 2023, the NRC staff will be able to
leverage insights from its partial review of the previously submitted
and subsequently withdrawn DCPP Units 1 and 2 application to conduct a
focused, efficient review of the application. Based on the discussion
in this section, the NRC finds that the action does not cause undue
risk to public health and safety.
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\3\ Generic Milestone Schedules of Requested Activities of the
Commission, https://www.nrc.gov/about-nrc/generic-schedules.html
(last updated Sept. 10, 2021).
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C. The Exemption Is Consistent With the Common Defense and Security
The requested exemption does not alter the design, function, or
operation of any structures or plant equipment that is 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. 10 CFR 50.12(a)(2). ``Special circumstances are present
whenever . . . there is
[[Page 14398]]
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.'' \4\ 10 CFR 50.12(a)(2)(vi). The NRC finds that
PG&E has provided several factors in support of its exemption request
that demonstrate that special circumstances not considered when the
Commission promulgated 10 CFR 50.12(a)(2)(vi) are present and that it
would be in the public interest to grant this limited, one-time
exemption.
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\4\ Consistent with 50.12(a)(2)(vi), the Executive Director for
Operations consulted with the Commission.
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PG&E submitted an application for license renewal for DCPP Units 1
and 2 in 2009. PG&E subsequently requested to withdraw this application
in 2018 based on the determination by the State of California and the
California Public Utilities Commission that continued baseload
operation of the two DCPP units beyond their currently approved
operating periods would not be necessary to meet California's projected
energy demand requirements (ML18066A937). Since that time, however,
California's projected energy demands have changed. To respond to those
changes, the State of California enacted Senate Bill No. 846 (SB 846),
which invalidated and reversed the 2018 California Public Utilities
Commission decision to approve termination of PG&E's license renewal
application and retirement of Diablo Canyon Power Plant, Units 1 and 2.
SB 846 was signed by the Governor of California on September 2, 2022.
In its October 31, 2022, letter, PG&E stated that it submitted its
request to reinstate its previously withdrawn license renewal
application or obtain an exemption from the 5-year time period
specified in 10 CFR 2.109(b) so that it could file an updated
application, ``pursuant to the direction in [California] Senate Bill
No. (SB) 846.'' The recent efforts by the State of California to keep
DCPP Units 1 and 2 operating based, in part, on climate change impacts
and serious electricity reliability challenges, constitute material
circumstances that were not specifically considered when the NRC
revised 10 CFR 2.109(b) in 1991.\5\ The NRC finds that the factors PG&E
have provided in support of its request are compelling and demonstrate
that the special circumstances required by 10 CFR 50.12(a)(2)(vi) are
present and that it would be in the public interest to grant this
exemption.
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\5\ See SB 846 Sec. 9 (stating ``the purpose of the extension
of the Diablo Canyon powerplant operations is to protect the state
against significant uncertainty in future demand resulting from the
state's greenhouse-gas-reduction efforts involving electrification
of transportation and building energy end uses and regional climate-
related weather phenomenon, and to address the risk that currently
ordered procurement will be insufficient to meet this supply or that
there may be delays in bringing the ordered resources online on
schedule.''); Senate Bill 846 Signing Message (Sept. 2, 2022)
https://www.gov.ca.gov/wp-content/uploads/2022/09/SB-846-Signing-Message.pdf?emrc=9e526b (stating ``[c]limate change is causing
unprecedented stress on California's energy system'').
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E. Environmental Considerations
The NRC has determined that the issuance of the requested exemption
meets the provisions of the categorical exclusion 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 chapter 10 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
involves one of several matters, including scheduling requirements
(Sec. 51.22(c)(25)(iv)(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
license renewal application less than 5 years before the expiration of
the existing license and deeming the license in timely renewal under 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 the
licensee must submit its application for license renewal and still
place the licenses 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.
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 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 the
licensee must submit its license renewal application and still place
the licenses 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 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 the licensee to submit an application for license renewal
for DCPP Units 1 and 2, less than 5 years prior to the expiration of
the existing licenses, rather than the 5 years specified in 10 CFR
2.109(b), and still place the licenses 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 impact
[[Page 14399]]
statement or environmental assessment need be prepared in connection
with the granting of this exemption request.
IV. Conclusion
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), are present.
Therefore, the NRC hereby grants the licensee a one-time exemption for
Diablo Canyon Power Plant, Units 1 and 2, from 10 CFR 2.109(b) to allow
PG&E to submit a license renewal application for the Diablo Canyon
Power Plant, Units 1 and 2, less than 5 years prior to expiration of
the operating licenses, but no later than December 31, 2023.
The decision to issue PG&E an exemption from 10 CFR 2.109(b) does
not constitute approval of the license renewal application PG&E intends
to submit by December 31, 2023. Rather, this exemption provides that if
PG&E submits an application by December 31, 2023, and the application
is sufficient for docketing, the licensee will receive timely renewal
protection under 10 CFR 2.109(b) while the NRC evaluates that
application. Should the application be docketed, the NRC will provide
an opportunity for the public to seek a hearing and review the
application using its normal license renewal review processes and
standards to determine whether the application meets all applicable
regulatory requirements.
This exemption is effective upon issuance.
Dated at Rockville, Maryland, this 2nd day of March 2023.
For the Nuclear Regulatory Commission.
Brian W. Smith,
Director, Division of New and Renewed Licenses, Office of Nuclear
Reactor Regulation.
[FR Doc. 2023-04750 Filed 3-7-23; 8:45 am]
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