ML24355A121

ESP Site - Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29

ML24355A121
Person / Time
Site:	05200007
Issue date:	12/20/2024
From:	Gullott D Constellation Energy Generation
To:	Office of Nuclear Reactor Regulation, Document Control Desk
References
RS--24-134
Download: ML24355A121 (1)

Text

4300 Winfield Road Warrenville, IL 60555 630 657 2000 Office RS-24-134 10 CFR 50.12 10 CFR 52.7 December 20, 2024 U.S. Nuclear Regulatory Commission ATTN: Document Control Desk Washington, DC 20555-0001 Clinton ESP Site Early Site Permit No. ESP-001 NRC Docket No.52-007

Subject:

Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29

References:

Letter from D. B. Matthews (U.S. NRC) to M. C. Kray (Exelon Nuclear), "Issuance of Early Site Permit for Exelon Generation Company, LLC (ESP-001)," dated March 15, 2007 In the referenced letter, the NRC issued early site permit (ESP) ESP-001 to Exelon Generation Company, LLC (EGC) for additional nuclear power plants, which may be modular, designed to operate at no more than 6800 megawatts thermal, collectively. ESP-001 is for a site located approximately six miles east of the city of Clinton in central Illinois, and adjacent to the existing Clinton Power Station. The ESP became effective on March 15, 2007, and expires on March 15, 2027.

In accordance with 10 CFR 52.7 and 10 CFR 50.12, "Specific exemptions," Constellation Energy Generation, LLC (CEG) requests an exemption from 10 CFR 2.109, "Effect of timely renewal application," paragraph (c) and 10 CFR 52.29, "Application for renewal." Paragraph (c) of 10 CFR 2.109 provides that if the holder of an ESP files a sufficient application for renewal "at least 12 months before the expiration of the existing early site permit, the existing permit will not be deemed to have expired until the application has been finally determined." Section 52.29(a) requires that "Not less than 12, nor more than 36 months before the expiration date stated in the early site permit, or any later renewal period, the permit holder may apply for a renewal of the permit." Specifically, CEG requests that it be permitted to submit the ESP-001 renewal application no later than 45 days prior to the expiration of the existing ESP and still receive timely renewal protection under 10 CFR 2.109(c) and 10 CFR 52.29.

The attachment to this letter provides the rationale and justification for the exemption request.

The requested exemption from 10 CFR 2.109(c) and 10 CFR 52.29 is permissible under 10 CFR 52.7 and 10 CFR 50.12 because it 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. In

December 20, 2024 U.S. Nuclear Regulatory Commission Page 2 addition, special circumstances are present such that: (1) the application of 10 CFR 2.109(c) and 10 CFR 52.29(a) in this instance would not serve the underlying purpose of the rules, and (2) other material circumstances that were not considered when the regulations were adopted are present such that granting the exemption is in the public interest.

CEG requests approval of the proposed exemption by April 30, 2025. There are no regulatory commitments contained in this letter.

Should you have any questions concerning this letter, please contact Mr. Kenneth M. Nicely at (779) 231-6119.

Respectfully, David M. Gullott Vice President, Licensing & Regulated Programs

Attachment:

Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a) cc:

NRC Regional Administrator, Region III Gullott, David M.

Digitally signed by Gullott, David M.

Date: 2024.12.20 09:05:59

-06'00'

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 1 1.0 SPECIFIC EXEMPTION REQUEST In accordance with 10 CFR 52.7 and 50.12, Specific exemptions," Constellation Energy Generation, LLC (CEG) requests an exemption from the 12-month time limit specified in the NRC's timely renewal regulation in 10 CFR 2.109(c) and 10 CFR 52.29 for early site permits (ESPs). Specifically, CEG requests that it be permitted to submit the ESP-001 renewal application no later than 45 days prior to the expiration of the existing ESP and still receive timely renewal protection under 10 CFR 2.109(c) and 10 CFR 52.29. Thus, if the NRC approves this exemption request, CEG would be authorized to submit the ESP-001 renewal application by January 29, 2027 (i.e., 45 days before the ESP-001 expiration date of March 15, 2027), and still be granted the protections afforded by the timely renewal provision in 10 CFR 2.109(c) and 10 CFR 52.29.

2.0 BACKGROUND

The ESP process, offered under 10 CFR 52, Subpart A, was promulgated by the NRC in 1989 to address industry concerns with the former licensing process under 10 CFR 50. Previously, the licensing process required large expenditures of time and money by utilities well before key environmental, site safety, and emergency planning issues could be resolved. As envisioned, the ESP process is meant to resolve the key environmental, site safety, and emergency planning issues well in advance of when a decision is made to build a nuclear power facility and before substantial capital is invested in the construction of a new nuclear facility.

ESPs are valid for no more than 20 years from the date of issuance, but Part 52 also provides for renewal of ESPs. Sections 52.29 through 52.33 outline the basic requirements.

Section 52.29(a) for example, states that "Not less than 12, nor more than 36 months before the expiration date stated in the early site permit, or any later renewal period, the permit holder may apply for a renewal of the permit. An application for renewal must contain all information necessary to bring up to date the information and data contained in the previous application."

Section 52.29(c) goes on to state "An early site permit, either original or renewed, for which a timely application for renewal has been filed, remains in effect until the Commission has determined whether to renew the permit." This is further reflected in the timely renewal regulations at 10 CFR 2.109(c), which states "If the holder of an early site permit licensed under subpart A of part 52 of this chapter files a sufficient application for renewal under § 52.29 of this chapter at least 12 months before the expiration of the existing early site permit, the existing permit will not be deemed to have expired until the application has been finally determined."

The 12-month application requirement was added to the Commission's regulations as part of the original 1989 rulemaking establishing the Part 52 licensing process and opportunity for an ESP.1 The rulemaking record does not discuss, however, what the Commission's rationale was for the 12-month time frame for timely renewal. Later, in 2007, the Commission added the 1 Final Rule, Early Site Permits; Standard Design Certifications; and Combined Licenses for Nuclear Power Reactors, 54 Fed. Reg. 15372 (Apr. 18, 1989).

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 2 timely renewal provision for ESPs to 10 CFR 2.109(c), but also did not discuss the regulatory basis for this time frame.2 When the decision is made to proceed, having a preapproved site can dramatically shorten the time to bring a new plant to market. When the ESP is used with the NRC's combined construction and operating license, the time required to build and start up a new plant can be shortened further. The NRC introduced ESPs and the combined construction and operating license (COL) as part of a more effective licensing process (i.e., 10 CFR 52) for new nuclear power plants. Congress affirmed and strengthened the new licensing process in the 1992 Energy Policy Act.

Historically, the NRC has reviewed proposed sites and designs in combination and approved the site/design combination simultaneously. Part 52 provides for the option to secure separate early approvals for proposed sites, designs, or both. In particular, the Part 52 ESP process reflects the longstanding Commission objective to decouple siting from design and is central to the early resolution of safety and environmental issues, a principal policy objective of Part 52.

Moreover, Part 52 recognizes that it is possible to obtain approval of a site for future nuclear power plants as a separate matter from, and well in advance of, decisions on what and when to build. In those instances where the ESP applicant has not selected a particular technology, ESP applications may nonetheless use the Plant Parameter Envelope (PPE) approach as a surrogate for actual facility information to support required safety and environmental reviews.

Under the PPE approach, applications would not reference any specific reactor technology with the intent that the resulting ESP would be applicable for a range of reactor designs, including NRC certified designs, designs for which NRC certification is currently in progress or contemplated, and future designs.

Strong policy bases exist for the PPE approach. First, it provides COL applicants with essential flexibility to select the best technology available at the time the decision to build is made. An ESP that would limit this flexibility would not be in the public interest and would be of severely diminished value to prospective applicants. Second, it provides the NRC with the information necessary for its review and issuance of ESPs. Third, the PPE approach facilitates the combined license process by clearly identifying the set of parameters on which the acceptability of a specific design for a particular site will be based.

In Reference 1, Exelon Generation Company, LLC (EGC) submitted an ESP application based on the PPE approach.3 The purpose of the ESP application was to set aside the proposed site for future energy generation and sale on the wholesale energy market. The ESP site was reserved for a nuclear facility to be operated as a merchant generator plant. In addition, a component of the site redress plan supports (limited work) authorization for approval of construction activities in accordance with 10 CFR 50.10(e)(1) and 10 CFR 52.17(c). The NRC 2 Final Rule, Licenses, Certifications, and Approvals for Nuclear Power Plants, 72 Fed. Reg. 49352 (Aug. 28, 2007).

3 Although EGC was the applicant for the ESP, as discussed in Reference 4, EGC was renamed CEG following the spinoff of Constellation Energy Corporation from Exelon Corporation. It remains the same Pennsylvania limited liability company as before the spinoff, with a name change.

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 3 issued ESP-001 in Reference 2 for additional nuclear power plants, which may be modular, designed to operate at no more than 6800 megawatts thermal, collectively. ESP-001 is for a site located approximately six miles east of the city of Clinton in central Illinois, and adjacent to the existing Clinton Power Station. The ESP became effective on March 15, 2007, and currently expires on March 15, 2027.

On August 16, 2022, Congress passed, and President Biden signed into law, the Inflation Reduction Act of 2022 (IRA), which, among other things, includes federal tax credits, certain of which are transferable or fully refundable, for clean energy technologies including existing nuclear plants and hydrogen production facilities. The Nuclear Production Tax Credit (PTC) recognizes the contributions of carbon-free nuclear power by providing a federal tax credit of up to $15/MWh, subject to phase-out, beginning in 2024 and continuing through 2032. The federal PTC contains provisions to ensure that the federal and state support are not duplicated.

The IRA also creates a new technology-neutral tax credit for all clean electricity technologies, including advanced nuclear and power uprates, that are placed into service in 2025 or after.

The value of the credit is currently measured at $30/MWh for the first ten years of plant operation and is subject to phase-out at the earlier of 2032 or when carbon emissions from electricity production are 25 percent below the 2022 level.

Both credit rates may increase subject to an annual inflation adjustment factor.

As the nation's largest producer of clean, carbon-free energy, the continued operation of the CEG nuclear fleet would assist in achieving zero emissions goals. To that end, CEG intends to seek license renewal and subsequent license renewal for existing nuclear units within the CEG fleet provided sustained favorable economic viability. Similarly, any decision to pursue construction of one or more new nuclear facilities at the ESP site would consider, in part, the economic viability of such a project. Given the uncertainties resulting from the changing economic and energy policy environments at both the state and federal levels, CEG cannot plan for those revenues to continue into the period of a renewal of ESP-001.

3.0 BASIS FOR EXEMPTION REQUEST Under Section 9(b) of the Administrative Procedure Act of 1946 (APA), 5 USC 558(c), "[w]hen 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." This is known as the "timely renewal doctrine." For ESPs, the timely renewal doctrine is embodied in the NRC's regulations in 10 CFR 2.109(c) and 10 CFR 52.29. Section 2.109(c) states that "[i]f the holder of an early site permit licensed under subpart A of part 52 of this chapter files a sufficient application for renewal under § 52.29 of this chapter at least 12 months before the expiration of the existing early site permit, the existing permit will not be deemed to have expired until the application has been finally determined." Section 52.29(a) states that "Not less than 12, nor more than 36 months before the expiration date stated in the early site permit, or any later renewal period, the permit holder may apply for a renewal of the permit. An application for renewal must contain all information necessary to bring up to date the information and data contained in the previous application." Section 52.29(c) further states that "An early site permit,

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 4 either original or renewed, for which a timely application for renewal has been filed, remains in effect until the Commission has determined whether to renew the permit."

At this time, the economic viability of constructing new nuclear power plants at the ESP site is uncertain. Under 10 CFR 2.109(c) and 10 CFR 52.29, CEG would need to file an ESP renewal application by March 15, 2026, in order for the timely renewal doctrine to apply to the application. To meet that deadline, CEG estimates that it would need to expend significant resources preparing the ESP renewal application starting in March 2025. However, as explained further below, due to continuing and significant changes in the economic and energy policy environments that materially affect the viability of constructing new nuclear power plants, CEG will not be in a position to make a reasonable and sound business decision by March 2025 as to whether to pursue ESP renewal. Allowing CEG to make that decision at a later date, when the economic viability of constructing new nuclear power plants at the ESP site can be more readily assessed, will result in more efficient use of both CEG and NRC financial and other resources.

As explained below, allowing CEG to receive timely renewal protection if the ESP renewal application is filed no later than 45 days in advance of the current permit expiration date would enable CEG to make the most well-informed decision regarding the prudency of seeking an ESP renewal, and still provide adequate time for the NRC to complete its review of the renewal application and to issue a final decision on the application.

Furthermore, the proposed exemption is consistent with the intent of the "Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy Act of 2024" (ADVANCE Act) to modernize the regulatory framework, facilitate export of U.S. nuclear technology, and spur the deployment of advanced reactors. As an example, Subsection 501(a) of the ADVANCE Act, requires the NRC to update its mission statement to include that the licensing and regulation of radioactive materials and nuclear energy for civilian purposes be "conducted in a manner that is efficient and does not unnecessarily limit (1) the civilian use of radioactive materials and deployment of nuclear energy; or (2) the benefits of civilian use of radioactive materials and nuclear energy technology to society. In SECY-24-0083, "Mission Statement Update Options Pursuant to Subsection 501(a) of the ADVANCE Act of 2024" (i.e., Reference 3), the NRC staff provided recommendations to the Commission for fulfilling the requirement under subsection 501(a) of the ADVANCE Act of 2024 to update the NRC's mission statement. Each of the four options presented to the Commission for their consideration added wording about not unnecessarily limiting the civilian use or deployment of radioactive materials and nuclear energy or their benefits to society. The proposed enhanced mission statements directly align with the purpose of the ESP process, as discussed above in Section 2.0, in that the process was promulgated by the NRC in 1989 to address concerns with, and to improve the efficiency of, the licensing process for building and starting up a new nuclear facility.

4.0 JUSTIFICATION FOR EXEMPTION AND SPECIAL CIRCUMSTANCES 10 CFR 52.21, "Administrative review of applications; hearings," states that "[a]n early site permit is subject to all procedural requirements in 10 CFR part 2," which includes the timely renewal provision in 10 CFR 2.109(c) and 10 CFR 52.29. In addition, 10 CFR 52.7 provides that "[t]he Commission maygrant exemptions from the requirements of the regulations of this

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 5 part. The Commission's consideration will be governed by § 50.12 of this chapter, unless other criteria are provided for in this part, in which case the Commission's consideration will be governed by the criteria in this part. Only if those criteria are not met will the Commission's consideration be governed by § 50.12 of this chapter. The Commission's consideration of requests for exemptions from requirements of the regulations of other parts in this chapter, which are applicable by virtue of this part, shall be governed by the exemption requirements of those parts." Therefore, for the reasons discussed below, CEG requests that this proposed exemption be granted because it meets the exemption criteria in 10 CFR 50.12.

4.1 Exemption Justification A.

The exemption is authorized by law 10 CFR 50.12(a)(1) requires a demonstration that an exemption from NRC regulations is authorized by law. The NRC's timely renewal regulations for ESPs (10 CFR 2.109(c) and 10 CFR 52.29) implement APA Section 9(b), which states that "[w]hen a 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."4 As discussed further in Section 4.2.A of this exemption request, the 12-month limit (i.e., latest permitted date) for obtaining timely renewal protection for an ESP renewal application as specified in 10 CFR 2.109(c) and 10 CFR 52.29 is the result of a discretionary agency rulemaking under Sections 161 and 181 of the Atomic Energy Act of 1954, as amended (AEA),

and not mandated by statute. No statute requires the NRC to specifically adopt a 12-month timely renewal limit for ESP renewal applications.

In fact, the timely renewal provisions in the Commission's regulations at Section 2.109 originally contained a 30-day renewal application-filing requirement for all licenses issued for activities "of a continuing nature." In 1989, the Commission originally included timely renewal provisions associated with the new Part 52 licensing process, specifically found at 10 CFR 52.29, and included the 12-month time frame. Later, in 2007, the Commission added timely renewal provisions specific to ESP renewals at 10 CFR 2.109, bringing forward the same 12-month time frame originally adopted in 1989.

Thus, neither the AEA nor the APA mandates a 12-month period for filing an ESP renewal application to comply with the timely renewal doctrine. As noted above, the Commission did not articulate a specific basis for the 12-month period in any of the associated rulemakings.

Therefore, given that there is no special legal or regulatory significance to that period, the NRC may shorten the period at its discretion and in accordance with agency rules through a change to, or exemption from, the existing regulation. Accordingly, this exemption request is authorized by law.

4 Administrative Procedure Act of 1964 (APA), 5 USC 558(c).

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 6 B.

The exemption will not present an undue risk to public health and safety 10 CFR 50.12(a)(1) requires a demonstration that the granting of an exemption from the requirement in question "will not present an undue risk to the public health and safety." As shown below, this exemption request fully satisfies that criterion.

There is no existing, operating nuclear facility associated with ESP-001. ESP-001 has never been referenced in an application for a construction permit (CP) under 10 CFR Part 50, or an application for a combined license (COL) under 10 CFR Part 52, and the site has been undeveloped since the original ESP was issued by the NRC in 2007. Therefore, unlike license renewal timely renewal, which necessarily concerns the ability of an existing, operating nuclear plant to continue to operate beyond the plant's license expiration date if the NRC does not complete its review, there is no risk to the public health and safety as a result of shortening the timely renewal period for the ESP.

Furthermore, CEG will need to satisfy applicable regulatory requirements in connection with the preparation and submittal of a sufficient ESP renewal application for the ESP site if CEG decides to seek permit renewal. If the proposed exemption is approved, CEG would be able to submit the renewal application no later than 45 days prior to the ESP-001 expiration and conduct any necessary technical reviews and evaluations for the requested renewal period. As stated in the Final Rule for the 2007 Part 52 rulemaking5, "[t]he NRC believes that timely renewal protection should only be provided to those applications which are of sufficient quality to be docketed." While NRR Office Instruction LIC-117, "Acceptance Review Process for New Nuclear Facility Licensing Applications," suggests that 60 days is an appropriate timeframe for all "new reactor" applications, it does not mandate that it must take that long. In fact, LIC-117 is clear that other timeframes can be considered and applied (i.e., on the order of 30 days or less).

An ESP renewal application, based on the criteria in 10 CFR 52.29(a) that an application for renewal "must contain all information necessary to bring up to date the information and data contained in the previous application," would be much shorter than an initial ESP application.

Therefore, the 45-day period described in the proposed exemption will afford the NRC a reasonable period of time to determine if the renewal application is sufficient for docketing in accordance with LIC-117.

In accordance with 10 CFR 52.31, "Criteria for renewal," a renewed ESP can only be granted if the NRC determines that:

(1) The site complies with the Act, the Commissions regulations, and orders applicable and in effect at the time the site permit was originally issued; and (2) Any new requirements the Commission may wish to impose are:

(i) Necessary for adequate protection to public health and safety or common defense and security; 5 Licenses, Certifications, and Approvals for Nuclear Power Plants; Final Rule, 72 Fed. Reg.

49,377 (Aug. 28, 2007).

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 7 (ii) Necessary for compliance with the Commissions regulations, and orders applicable and in effect at the time the site permit was originally issued; or (iii) A substantial increase in overall protection of the public health and safety or the common defense and security to be derived from the new requirements, and the direct and indirect costs of implementation of those requirements are justified in view of this increased protection.

Nothing in the proposed exemption would obviate the NRC's required findings under Section 52.31 or limit public participation in the ESP renewal process. Furthermore, pending final action on any future renewal application, the NRC would retain its authority to conduct all regulatory activities associated with licensing, inspection, and oversight, and to take whatever action(s) may be necessary to ensure adequate protection of the public health and safety.

C.

The exemption is consistent with the common defense and security Modification of the timely renewal application-filing deadline from 12-months to 45 days before ESP expiration would not affect continued protection of the common defense and security at the ESP site since there is no existing nuclear facility located there associated with the ESP.

ESP-001 does not allow construction of a new nuclear facility. Rather, it is intended to be referenced in a future application for a CP under 10 CFR Part 50, or an application for a COL under 10 CFR Part 52.

4.2 Special Circumstances Supporting the Issuance of an Exemption Under 10 CFR 50.12(a)(2), the NRC will not consider granting an exemption unless at least one of six "special circumstances" enumerated in the regulation is present. Two special circumstances apply to this request. First, under 10 CFR 50.12(a)(2)(ii), the underlying purpose of the rule can be achieved if CEG files an ESP renewal application 45 days before the current expiration date. Thus, application of the 12-month time limit in 10 CFR 2.109(c) and 10 CFR 52.29 is not necessary in this circumstance. Second, other material circumstances not considered when the regulation was adopted are present, such that granting the exemption is in the public interest (10 CFR 50.12(a)(2)(vi)).

A. Application of the regulation 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(c) and 10 CFR 52.29 is to implement the "timely renewal" doctrine of APA Section 9(b), 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 underlying purpose of the APA's timely renewal provision is to "prevent[] the unfairness that would result if agency delay caused a licensee to lose a license despite having filed a timely

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 8 renewal application."6 The NRC's regulation in Section 2.109 is therefore intended 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 due to delays in the administrative process.

While the rulemaking record for timely renewal for ESPs does not expressly explain the purpose for allowing a 12-month timeframe, the Commission's discussion of timely renewal in the context of license renewal is instructive. As stated in the 1991 Final Rule for License Renewal, the purpose of the filing deadline is to "provide the NRC a reasonable time to review an application for a renewed operating license for a nuclear power plant."7 Unfortunately, the rulemaking record for the ESP rule and the timely renewal provision is silent with respect to the rationale for the 12-month timeframe and whether there is any regulatory basis that ties that to the time NRC anticipated was necessary for an ESP renewal application review.

If the underlying purpose of the timely renewal deadline for ESP is to provide a reasonable time to review an application, strict application of the 12-month application time frame is not necessary to achieve the underlying purpose of the rule. NRC can still complete its review of the ESP renewal application in an appropriate timeframe without risk to the public health and safety even if the ESP were to have passed the expiration date. As explained above, in the case such as ESP-001 in which there is no associated application for a CP or COL proceeding or an operating facility, there is no safety or security issue that could arise from allowing continued operation so therefore no true urgency for the staff to complete its review prior to expiration of the ESP.

Application of the 12-month timeframe in 10 CFR 2.109(c) and 10 CFR 52.29 is not necessary to achieve the underlying purpose of the rule, as required by 10 CFR 50.12(a)(2)(ii).

Accordingly, special circumstances are present to justify the requested exemption.

B. 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 from 10 CFR 2.109(c) and 10 CFR 52.29.

As noted above, the rulemaking record associated with the ESP timely renewal provisions is silent with respect to why the NRC chose 12 months as the appropriate timeframe and why such a timeframe is necessary for NRC review of a renewal application. Nor did the Commission seem to consider what risks, if any, might be present by allowing an ESP to continue to remain active beyond its expiration date pending the NRC's review. But unlike the concerns associated with allowing a facility to continue to operate even with an expired license, here there is no facility or active application referencing the ESP. The lack of safety or security risk associated with allowing an ESP to remain active beyond the expiration date pending NRC 6 Kay v. FCC, 525 F. 3d 1277, 1279 (D.C. Cir. 2008) (citing Miami MDS Co. v. FCC, 14 F.3d 658, 659-60 (D.C. Cir. 1994)).

7 Nuclear Power Plant License Renewal; Final Rule, 56 Fed. Reg. at 64,962. The Attorney Generals Manual on the Administrative Procedure Act (noted above) also points out that, under the APA, Agencies, of course, may make reasonable rules requiring sufficient advance application.

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 9 review does not appear to be a material circumstance that was considered when the Commission issue the timely renewal requirements for ESPs.

Additionally, it would be in the public interest to grant this exemption. As described above, the economic and energy policy environments continue to evolve rapidly and that will factor heavily into any future decision by CEG to pursue ESP renewal. These dynamic market and political conditions constitute material circumstances that were not specifically considered when 10 CFR 2.109(c) and 10 CFR 52.29 became effective. It is in the public interest to grant the exemption based on these new and material circumstances, because it would allow for more prudent use of CEG and NRC resources while having no impact on public health and safety.

In addition, the proposed exemption is consistent with the intent of the ADVANCE Act of 2024 to modernize the regulatory framework, facilitate export of U.S. nuclear technology, and spur the deployment of advanced reactors. The proposed exemption ensures efficient use of CEG and NRC resources in a manner that does not unnecessarily limit the civilian use or deployment of radioactive materials and nuclear energy or their benefits to society.

5.0 ENVIRONMENTAL ASSESSMENT CEG has determined that the proposed exemption request meets the categorical exclusion provision in 10 CFR 51.22(c)(25). Specifically, the requested licensing action is an exemption from the requirements of the Commission's regulations and (1) there is no significant hazards consideration; (2) there is no significant change in the types or significant increases in the amounts of any effluents that may be released offsite; (3) there is no significant increase in individual or cumulative occupational radiation exposure; (4) there is no significant construction impact; (5) there is no significant increase in the potential for or consequences from radiological accidents; and (6) the requirements from which an exemption is sought involve scheduling requirements and other requirements of an administrative nature.

Therefore, in accordance with 10 CFR 51.22(b), no environmental assessment or environmental impact statement needs to be prepared in connection with the proposed exemption request.

5.1 No Significant Hazards Consideration CEG has evaluated the proposed exemption using the criteria in 10 CFR 50.92, "Issuance of amendment," and has determined that the proposed exemption does not involve a significant hazards consideration. The following information is provided to support a finding of no significant hazards consideration.

1.

Does the proposed exemption involve a significant increase in the probability or consequences of an accident previously evaluated?

Response: No The proposed exemption would allow CEG to submit the ESP-001 renewal application less than 12-months before expiration of the existing permit, while still maintaining timely

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 10 renewal protection under 10 CFR 2.109(c) and 10 CFR 52.29. The early site permit does not allow construction of a new nuclear facility. Rather, the early site permit is intended to be referenced in a future application for a CP under 10 CFR Part 50, or an application for a COL under 10 CFR Part 52. The accident analyses associated with the early site permit was based on source term parameters using surrogate reactor characteristics, in conjunction with specific site characteristics, for the purpose of assessing the suitability of the proposed ESP site. The conclusions of the accident analyses are subject to confirmation at the COL or CP stage. The proposed exemption only affects the timeframe for submitting the ESP-001 renewal application.

Therefore, the proposed exemption does not involve a significant increase in the probability or consequences of an accident previously evaluated.

2.

Does the proposed exemption create the possibility of a new or different kind of accident from any accident previously evaluated?

Response: No The proposed exemption would allow CEG to submit the ESP 001 renewal application less than 12 months before expiration of the existing permit, while still maintaining timely renewal protection under 10 CFR 2.109(c) and 10 CFR 52.29. The proposed exemption only affects the timeframe for submitting the ESP-001 renewal application.

Therefore, the proposed exemption does not create the possibility of a new or different kind of accident from any accident previously analyzed.

3.

Does the proposed exemption involve a significant reduction in a margin of safety?

Response: No The proposed exemption would allow CEG to submit the ESP 001 renewal application less than 12 months before expiration of the existing permit, while still maintaining timely renewal protection under 10 CFR 2.109(c) and 10 CFR 52.29. Margin of safety is associated with confidence in the ability of the fission produce barriers (i.e., fuel cladding, reactor coolant system pressure boundary, and containment structure) to limit the radiological dose to the public and control room operators in the event of an accident. The proposed exemption has no impact on a margin of safety because the early site permit does not allow construction of a new nuclear facility. The proposed exemption only affects the timeframe for submitting the ESP 001 renewal application.

Therefore, the proposed exemption does not involve a significant reduction in a margin of safety.

Based on the above evaluation, CEG concludes that the proposed exemption presents no significant hazards consideration under the standards set forth in 10 CFR 50.92, paragraph (c),

and accordingly, a finding of no significant hazards consideration is justified.

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

Page 11 5.2 There is no significant change in the types or significant increases in the amounts of any effluents that may be released offsite The proposed exemption only affects the timeframe for submitting the ESP-001 renewal application. The early site permit does not allow construction of a new nuclear facility. Rather, the early site permit is intended to be referenced in a future application for a CP under 10 CFR Part 50, or an application for a COL under 10 CFR Part 52. The proposed exemption will not cause any materials or chemicals to be introduced that could cause effluent release offsite. Therefore, the proposed exemption will result in no significant change to the types or significant increase in the amounts of any effluents that may be released offsite.

5.3 There is no significant increase in individual or cumulative public or occupational radiation exposure The proposed exemption only affects the timeframe for submitting the ESP-001 renewal application. There are no changes that could lead to a significant increase in individual or cumulative occupational radiation exposure.

5.4 There is no significant construction impact No construction activities are associated with the proposed exemption. The proposed exemption only affects the timeframe for submitting the ESP-001 renewal application.

5.5 There is no significant increase in the potential for or consequences from radiological accidents See the no significant hazards considerations discussion in Section 5.1 above.

5.6 The requirements from which the exemption is sought involve § 51.22(c)(25)(vi)(G)

(Scheduling requirements), and § 51.22(c)(25)(vi)(I) (Other requirements of an administrative, managerial, or organizational nature)

The underlying purpose of the timely renewal requirement in 10 CFR 2.109(c) and 10 CFR 52.29 from which this exemption is sought 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. The requested exemption, if granted, would allow CEG to submit the early site permit renewal application with less than 12-months remaining before expiration of the permit while maintaining the protections of the timely renewal provision in 10 CFR 2.109(c) and 10 CFR 52.29, and allowing sufficient time for NRC review of the renewal application.

ATTACHMENT Request for Exemption from 10 CFR 2.109(c) and 10 CFR 52.29(a)

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6.0 CONCLUSION

As demonstrated above, this request for an exemption from the requirements of 10 CFR 2.109(c) and 10 CFR 52.29 meets the criteria of 10 CFR 52.7 and 10 CFR 50.12 for specific exemptions. Specifically, 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. In addition, the special circumstances described in 10 CFR 50.12(a)(2)(ii), (iii), and (vi) are present and warrant issuance of the exemption.

7.0 REFERENCES

1.

Letter from M. C. Kray (Exelon Generation Company, LLC) to U.S. NRC, "Early Site Permit Application," dated September 25, 2003

2.

Letter from D. B. Matthews (U.S. NRC) to M. C. Kray (Exelon Nuclear), "Issuance of Early Site Permit for Exelon Generation Company, LLC (ESP 001)," dated March 15, 2007

3.

SECY-24-0083, "Mission Statement Update Options Pursuant to Subsection 501(a) of the ADVANCE Act of 2024," dated October 8, 2024

4.

Letter from B. A. Purnell (U.S. NRC) to D. P. Rhoades (Constellation Energy Generation, LLC) and E. Carr (PSEG Nuclear LLC), "Issuance of Amendments Related to Order Approving Transfer of Licenses (EPID L-2022-LLM-0000)," dated February 1, 2022