ML12332A259
| ML12332A259 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 11/27/2012 |
| From: | William Froehlich Atomic Safety and Licensing Board Panel |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23797, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01 | |
| Download: ML12332A259 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
William J. Froehlich, Chairman Dr. Michael F. Kennedy Dr. William E. Kastenberg In the Matter of Docket Nos. 50-352-LR, 50-353-LR EXELON GENERATION COMPANY, LLC ASLBP No. 12-916-04-LR-BD01 (Limerick Generating Station, Units 1 and 2) November 27, 2012 ORDER (Establishing Deadlines for Responses to NRDC Waiver Petition)
On November 21, 2012, the Natural Resources Defense Council (NRDC) filed a petition for waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L)1 pursuant to CLI-12-192 and 10 C.F.R. § 2.335(b).
Anticipating this filing, Exelon Generation Company, LLC (Exelon), filed a motion on November 16, 2012 seeking the establishment of deadlines for responses to the Waiver Petition.3 NRDC filed an answer to this motion on November 26, 2012.4 Exelon explained that the parties consulted in an attempt to establish an agreeable schedule for responding to the Waiver Petition, but that those efforts were to no avail. Exelon is 1
Natural Resources Defense Councils Petition, by Way of Motion for Waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) as Applied to Application for Renewal of Licenses for Limerick Units 1 and 2 (Nov. 21, 2012) [hereinafter Waiver Petition].
2 CLI-12-19, 76 NRC __, __ (slip op. at 17) (Oct. 23, 2012).
3 Exelon Motion for Order Establishing Deadline to File Responses to NRDCs Anticipated November 27, 2012 Waiver Petition (Nov. 16, 2012) [hereinafter Exelon Motion].
4 NRDCs Response to Exelons Motion for Order Establishing Deadline for Response to NRDCs Request for Waiver Pursuant to 10 C.F.R. § 51.53(c)(3)(ii)(L) (Nov. 26, 2012)
[hereinafter NRDC Response].
seeking a 30-day deadline for responding to the Waiver Petition.5 NRDC would agree to a 15-day deadline, but would only agree to the proposed 30-day deadline if NRDC were permitted to file a reply.6 Exelon contends that this request for a reply is premature and that the Board should therefore deny it.7 NRDC states that the NRC Staff has no objection to a fifteen-day response period for answering any waiver petition NRDC elects to file.8 Exelon represents that the NRC Staff would accept a response time of either 15 or 30 days.9 NRDC argues that its petition for waiver is more akin to a petition to intervene than a motion, and thus the rules regarding filing of replies found in 10 C.F.R. § 2.309(h) should apply, rather than those found in 10 C.F.R. § 2.323(c).10 NRDC makes a number of arguments in support of this claim. First, NRDC notes that the Commission, in CLI-12-19, gave NRDC more than 30 days to file its Waiver Petition,11 when motions under 10 C.F.R. § 2.323(a) are due within ten days of the occurrence giving rise to it.12 Second, NRDC points out that the Commission, again in CLI-12-19, noted that the waiver process is available to petitioners, not just parties to a proceeding, as 10 C.F.R. § 2.335(b) would imply.13 Because of this, NRDC 5
Id. at 2.
6 Id. at 2-3.
7 Id. at 4.
8 NRDC Response at 4.
9 Exelon Motion at 4.
10 NRDC Response at 6.
11 Id.
12 10 C.F.R. § 2.323(a).
13 NRDC Response at 6.
contends that the Commission appears to view the Waiver Request as akin to an initial hearing request, filed by any petitioner, rather than a motion, filed by a party.14 Third, NRDC argues that while Section 2.335(b) is indeed silent regarding the right to reply, it is also silent regarding deadlines for filing answers, and thus the Board plainly has the flexibility to tailor any particular waiver proceeding in the manner it deems most appropriate and fair.15 Finally, NRDC contends that Exelons own request for a 30-day deadline to file a response demonstrates that the Waiver Petition is more akin to a petition to intervene than a motion,16 for answers to standard motions are subject to a 10-day deadline,17 while answers to intervention petitions are subject to a 25-day deadline.18 We agree with NRDC that its Waiver Petition is more akin to a petition to intervene than to a standard motion. Indeed, had NRDC included this waiver request in its initial petition to intervene, as it should have (and would have, had it not committed the understandable mistake of taking 10 C.F.R. § 2.335(b) seriously when it says it applies to parties)19, it would have been permitted a reply pursuant to 10 C.F.R. § 2.309(h)(2). In addition, the fact that Exelon has requested 30 days to respond, rather than the 10 days found in 10 C.F.R. § 2.323(c) or the 25 days found in 10 C.F.R. § 2.309(h)(1) suggests to us that Exelon intends to devote significant resources to its response. For these reasons, we believe that fairness dictates that NRDC be 14 Id.
15 Id.
16 Id.
17 10 C.F.R. § 2.323(c).
18 10 C.F.R. § 2.309(h).
19 See [NRDC] Petition to Intervene and Notice of Intention to Participate (Nov. 22, 2011) at 25, n.7.
permitted a reply in line with 10 C.F.R. § 2.309(h)(2).
We hereby order that Exelon and the NRC Staff shall file their responses to the Waiver Petition no later than December 16, 2012, or 25 days after NRDC filed its petition.20 NRDC shall file its reply no later than 14 days21 after Exelon and the NRC Staff have filed their responses. If Exelon and the NRC Staff file their responses on different dates, NRDC should file its reply 14 days after the latter of these filings.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
William J. Froehlich, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland November 27, 2012 20 This deadline is consistent with 10 C.F.R. § 2.309(h)(1) and approximates the deadlines for responses to waiver petitions imposed by other Boards. See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Licensing Board Order (Authorizing FUSE to Submit a Section 2.335 Petition) at 3 (Nov. 21, 2007) (unpublished).
21 We note that 10 C.F.R. § 2.309(h)(2) contemplates a seven-day deadline for this filing, but we extended it to 14 days because of the intervening holidays.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
Exelon Generation Company, LLC ) Docket Nos. 50-352-LR and 50-353-LR (Limerick Generating Station, Units 1 and 2) )
) ASLBP No. 12-916-04-LR-BD01 (License Renewal) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Establishing Deadlines for Responses to NRDC Waiver Petition) have been served upon the following persons by Electronic Information Exchange and by electronic mail as indicated by an asterisk*.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of the Secretary of the Commission Mail Stop T-3F23 Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 Hearing Docket: hearingdocket@nrc.gov William J. Froehlich, Chair Administrative Judge E-mail: william.froehlich@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Michael F. Kennedy Washington, DC 20555-0001 Administrative Judge Catherine Kanatas, Esq.
E-mail: michael.kennedy@nrc.gov Maxwell Smith, Esq.
Mary Spencer, Esq.
William E. Kastenberg Joseph Lindell, Esq.
Administrative Judge Edward Williamson, Esq.
E-mail: William.kastenberg@nrc.gov catherine.kanatas@nrc.gov maxwell.smith@nrc.gov Matthew Flyntz mary.spencer@nrc.gov Law Clerk joseph.lindell@nrc.gov E-mail: matthew.flyntz@nrc.gov edward.williamson@nrc.gov U.S. Nuclear Regulatory Commission OGC Mail Center: OGCMailCenter@nrc.gov Office of Commission Appellate Adjudication Mail Stop O-16C1 Washington, DC 20555-0001 OCAA Mail Center: ocaamail@nrc.gov
Limerick Generating Station, Units 1 and 2, Docket Nos. 50-362-LR and 50-363-LR ORDER (Establishing Deadlines for Responses to NRDC Waiver Petition)
Exelon Generation Company, LLC Morgan, Lewis & Bockius, LLP Exelon Business Services Company 1111 Pennsylvania Avenue, N.W.
200 Exelon Way, Suite 305 Washington, DC 20004 Kennett Square, PA 19348 Alex Polonsky, Esq.
Donald Ferraro, Asst. General Counsel Kathryn Sutton, Esq.
donald.ferraro@exeloncorp.com Anna Jones, Esq.
Laura Swett, Esq.
Angela Tieperman, Paralegal Exelon Generation Company, LLC Mary Freeze, Legal Secretary 4300 Warrenville Road apolonsky@morganlewis.com Warrenville, IL 60555 ksutton@morganlewis.com J. Bradley Fewell, Dep. General Counsel anna.jones@morganlewis.com bradley.fewell@exeloncorp.com lswett@morganlewis.com atieperman@morganlewis.com mfreeze@morganlewis.com Natural Resources Defense Counsel Meyer Glitzenstein & Crystal Morgan, Lewis & Bockius, LLP 1601 Connecticut Ave., N.W. Suite 700 1701 Market Street Washington, D.C. 20009 Philadelphia, PA 19103-2921 Howard M. Crystal, Esq.* Brooke Leach, Esq.
hcrystal@meyerglitz.com bleach@morganlewis.com Natural Resources Defense Council (NRDC) 1152 - 15th Street, N.W., #300 Washington, DC 20005 Geoffrey H. Fettus, Sr. Project Attorney gfettus@nrdc.org National Legal Scholars Law Firm, P.C.
241 Poverty Lane, Unit 1 Lebanon, New Hampshire 03766 Anthony Roisman, Managing Partner aroisman@nationallegalscholars.com
[Original signed by Herald Speiser ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 27th day of November, 2012 2