ML19304C595

NRC Staff Answer to Beyond Nuclear, Inc.'S Motion for Leave to Reply

ML19304C595
Person / Time
Site:	Peach Bottom
Issue date:	10/31/2019
From:	Kayla Gamin, Matt Young NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-277-SLR, 50-278-SLR, ASLBP 19-960-01-SLR-BD01, RAS 55395
Download: ML19304C595 (4)

Text

October 31, 2019 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of EXELON GENERATION COMPANY, LLC Docket No. 50-277-SLR 50-278-SLR (Peach Bottom Atomic Power Station, Units 2 and 3)

NRC STAFF ANSWER TO BEYOND NUCLEAR INC.S MOTION FOR LEAVE TO REPLY Pursuant to 10 C.F.R. § 2.323(c), the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) hereby files its answer to Beyond Nuclear, Inc.s motion for leave to reply 1 to the Staffs opposition to Beyond Nuclears motion to reopen. 2 Beyond Nuclear filed its motions to support its proposed Contention 3 concerning the subsequent license renewal application submitted by Exelon Generation Company, LLC (Exelon) for Peach Bottom Atomic Power Station, Units 2 and 3 (Peach Bottom).

The Commission should deny Beyond Nuclears motion because it does not meet the requirements of 10 C.F.R. § 2.323(c). Replies to answers to motions to reopen are allowed only if there are compelling circumstances, such as where the moving party demonstrates that it 1 Beyond Nuclear, Incs Motion for Leave to File Reply to Oppositions to Motion to Reopen the Record of Proceeding for Subsequent License Renewal of Peach Bottom Operating License (Oct. 21, 2019) (Motion for Leave to Reply).

2 Beyond Nuclear Incs Motion to Reopen the Record for Purposes of Considering and Admitting a New Contention Based on Draft Supplement 10 to Generic Environmental Impact Statement for Subsequent License Renewal of Peach Bottom Operating License and Request for Consideration of Some Elements of the Motion Out of Time, 10-11 (Sept. 23, 2019) (Motion to Reopen).

could not reasonably have anticipated the arguments to which it seeks leave to reply. 3 While Beyond Nuclear claims that it could not have anticipated NRC Staff interpretations that, in Beyond Nuclears view, are inapplicable to this proceeding or inconsistent with the language in two court decisions, 4 Beyond Nuclear does not state a basis for this cursory assertion or otherwise identify compelling circumstances.

Moreover, with regard to the Union of Concerned Scientists case, 5 Beyond Nuclear already articulated its interpretation of this case in its previous filing. 6 As an experienced litigant in NRC proceedings, Beyond Nuclear could reasonably have anticipated that the Staff might disagree with Beyond Nuclears interpretation of caselaw. 7 Beyond Nuclear also requests permission to address Staffs argument that Beyond Nuclears failure to file a motion to reopen on the same day as its motion to admit Contention 3 was fatal and inexcusable. In its motion for leave to reply, Beyond Nuclear seeks to point out that the error of its counsel was excusable and to explain that only part of the information in its motion was submitted out of time. 8 But Beyond Nuclear merely seeks to repeat its previous 3 10 C.F.R. § 2.326(c); see also Virginia Elec. and Power Co. (North Anna Power Station, Unit 3),

CLI-12-14, 75 NRC 692, 700-01 (2012) (noting that the heightened motion to reopen standard for contentions filed after a proceeding has closed does not violate Atomic Energy Act hearing rights).

4 See Motion for Leave to Reply at 1-2 (referring to Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990) (UCS II); New Jersey Environmental Federation v. NRC, 645 F.3d 220 (3d. Cir. 2011).

Beyond Nuclear similarly claims that it could not have anticipated Exelons interpretation of UCS II or CLI-12-14. See Motion for Leave to Reply at 2.

5 UCS II.

6 See Motion to Reopen at 9-11.

7 See Tennessee Valley Authority, (Sequoyah Nuclear Plant, Units 1 and 2), CLI-14-03, 79 NRC 31, 35 (denying motion to reply because [a]s an experienced litigant in our proceedings, TVA should reasonably have anticipated that the Staff might challenge its interpretation of section 2.311); Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),

LBP-15-28, 82 NRC 233, 244 (denying motion to reply because an experienced litigator such as Entergy would surely expect the State to provide legal arguments in favor of those conditions [it favored] and to challenge Entergys interpretation of the case law).

8 Motion for Leave to Reply at 2.

argument, which acknowledges that two elements of its motion were not timely filed. 9 Beyond Nuclear further repeats its claim that its untimeliness is excusable because of lack of clarity in NRC regulations. 10 This request to repeat previous arguments does not identify compelling circumstances.

Because Beyond Nuclear has not shown the existence of compelling circumstances required by 10 C.F.R. § 2.323(c), the Commission should not grant Beyond Nuclears motion to reply.

Respectfully submitted,

/Signed (electronically) by/

Kayla Gamin Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop: O-14-A44 Washington, DC 20555 Telephone: (301) 287-9234 E-mail: Kayla.Gamin@nrc.gov Executed in Accord with 10 C.F.R. § 2.304(d):

Mitzi A. Young Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop: O-14-A44 Washington, DC 20555 Telephone: (301) 287-9178 E-mail: Mitzi.Young@nrc.gov Dated at Rockville, Maryland this 31st day of October 2019 9 Motion to Reopen at 11. As Beyond Nuclear admitted in the Motion to Reopen, both its standing declarations and the affidavit required by 10 C.F.R. § 2.326(b) were not timely filedcontrary to its assertion in the Motion for Leave to Reply that only the standing declarations were untimely. Compare Motion to Reopen at 11 with Motion for Leave to Reply at 2.

10 Motion for Leave to Reply at 11-12.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of EXELON GENERATION COMPANY, LLC Docket No. 50-277-SLR 50-278-SLR (Peach Bottom Atomic Power Station, Units 2 and 3)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305, I hereby certify that copies of the foregoing NRC STAFF ANSWER TO BEYOND NUCLEAR INC.S MOTION FOR LEAVE TO REPLY, dated October 31, 2019, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 31st day of October 2019.

/Signed (electronically) by/

Kayla Gamin Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop: O-14-A44 Washington, DC 20555 Telephone: (301) 287-9234 E-mail: Kayla.Gamin@nrc.gov Dated at Rockville, Maryland this 31st day of October 2019