ML20223A390

Oklo Power Llc'S Answer Opposing July 31 2020 Unauthorized Filing by Beyond Nuclear Et Al

ML20223A390
Person / Time
Site:	05200049
Issue date:	08/10/2020
From:	Lighty R, Polonsky A Morgan, Morgan, Lewis & Bockius, LLP, Oklo Power LLC
To:	NRC/OCM
SECY RAS
References
52-049-COL, Combined license application, RAS 55761
Download: ML20223A390 (26)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket No. 52-049-COL OKLO POWER LLC )

) August 10, 2020 (Aurora Advanced Nuclear Micro-Reactor at )

Idaho National Laboratory) )

)

OKLO POWER LLCS ANSWER OPPOSING JULY 31, 2020 UNAUTHORIZED FILING BY BEYOND NUCLEAR ET AL.

Alex S. Polonsky, Esq.

Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP Counsel for Oklo Power LLC

TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. THE COMMISSION MUST REJECT THE UNAUTHORIZED FILING ON NUMEROUS, INDEPENDENT PROCEDURAL GROUNDS ........................................ 6 A. The Unauthorized Filing Is Untimely Under 10 C.F.R. § 2.323 ............................ 6 B. The NRCs Docketing Decision Is Not Subject to Challenge ................................ 8 C. Requests for Commission Exercise of Supervisory Authority are Improper ............................................................................................................ 11 III. THE COMMISSION CAN REJECT THE UNAUTHORIZED FILING FOR THE ADDITIONAL REASON THAT THE REQUESTED RELIEF IS UNNECESSARY AND UNWARRANTED ................................................................... 12 A. The Unauthorized Filing Fails to Satisfyor Even Addressthe Applicable Standard for a Stay of the Licensing Proceeding ............................ 13 B. Filers Are Neither Likely to Prevail on the Merits or Nor Will They Suffer Any Irreparable Injury If the Stay Is Not Granted ................................. 13

1. Filers Lack Standing to Participate in an Adjudicatory Hearing .............. 14

2. A Procedurally-Appropriate Pathway for Challenging the Completeness and Sufficiency of the COLA Already Exists ................... 16

3. The Staffs Review of an Application Is Not Subject to Challenge ......... 18

4. The Delay Sought by Filers Would Harm the Other Parties and Would Not Serve the Public Interest ........................................................ 19 C. Filers Alleged Administrative Defects Do Not Warrant the Requested Reliefor Any Other Relief, Such as an Extension of the Filing Deadline ........ 20

1. Filers Do Not Identify Any Administrative Deficiency in the Redacted COLA ........................................................................................ 20

2. Filers Do Not Identify Any Material Circumstance Related to the Public Availability of Application Documents ..................................... 21 IV. CONCLUSION ................................................................................................................. 23

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket No. 52-049-COL OKLO POWER LLC )

) August 10, 2020 (Aurora Advanced Nuclear Micro-Reactor at )

Idaho National Laboratory) )

)

OKLO POWER LLCS ANSWER OPPOSING JULY 31, 2020 UNAUTHORIZED FILING BY BEYOND NUCLEAR ET AL.

I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), Oklo Power LLC (Oklo) timely submits this Answer opposing the document filed with the U.S. Nuclear Regulatory Commission (NRC)1 on July 31, 2020, by Beyond Nuclear and other anti-nuclear advocacy groups (collectively, Filers), styled as an Emergency Petition (hereinafter referred to as the Unauthorized Filing).2 As explained below, the Commission should reject the Unauthorized Filing because it is procedurally forbidden and substantively deficient on multiple independent grounds, and because it fails to justify the Filers requests.3 By way of background, this proceeding involves Oklos combined operating license (COL) Application (COLA), submitted under 10 C.F.R. Part 52, to construct and operate a 1

The NRC is comprised of the five-member Commission and the agency Staff.

2 Emergency Petition by [Filers] to Immediately Revoke or Suspend Docketing Notice and Hearing Notice for Combined License Application by Oklo Power, LLC and Request for Clarification That Nuclear Energy Innovation and Modernization Act Does Not Mandate or Authorize Disregard of NRC Procedural Requirements for New Reactor License Applicants (July 31, 2020) (ML20213C692) (Unauthorized Filing).

3 Filers invoked 10 C.F.R. § 2.323(b) when they consulted with Counsel for Oklo, demonstrating that the Unauthorized Filing is a motion. Therefore, Filers have no right to reply to this Answer. Id.,

§ 2.323(c).

single reactor at a single location: a compact fast micro-reactor known as part of the Aurora powerhouse at the Idaho National Laboratory (INL).4 The aims of this small powerhouse are to provide emission-free power without water use, as well as to demonstrate an advanced fission clean energy plant developed to power communities with affordable, reliable, clean power. After a robust acceptance review process, in which the NRC Staff assessed the various criteria and considerations specified in agency procedures associated with accepting an application, the Staff concluded that the COLA was acceptable for docketing and began its review.5 The NRC published corresponding notices in the Federal Register on June 16, 2020, announcing the docketing decision,6 and June 30, 2020, announcing an opportunity for the public to (1) request a hearing and petition for leave to intervene in the proceeding, by August 31, 2020, and (2) request access to safeguards information (SGI) or sensitive unclassified non-safeguards information (SUNSI)in other words, an unredacted version of the COLAby July 10, 2020.7 In sum, Filers seek to undo the good work that the Staff has done to date on the Aurora COLA, and to obtain an infinite extension of time to file a Hearing Request. More specifically, the Unauthorized Filing demands that the Commission exercise its supervisory jurisdiction and order the Staff to cease (i.e., stay) its review, revoke or suspend the Staffs docketing decision 4

Letter from J. DeWitte et al. to NRC Document Control Desk, Oklo Power Combined Operating License Application for the Aurora at INL (Mar. 11, 2020) (Package ML20075A000) (collectively with its 15 enclosures, the COLA).

5 Letter from J. Mazza, NRC, to J. DeWitte, Oklo, Oklo Power LLC - Acceptance of the Application for a Combined License Application for the Aurora at Idaho National Laboratory (June 5, 2020)

(ML20149K616) (Acceptance Letter).

6 Oklo Power LLC; Combined license application; acceptance for docketing, 85 Fed. Reg. 36,427 (June 16, 2020) (Docketing Notice).

7 Oklo, Inc.; Oklo Power LLC; Combined license application; notice of hearing and opportunity to petition for leave to intervene; order imposing procedures, 85 Fed. Reg. 39,214 (June 30, 2020) (Hearing Opportunity Notice). No SGI or SUNSI access requests were filed by the July 10, 2020 deadline. As of the date of this Answer, no hearing requests or petitions for leave to intervene have been filed either.

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and corresponding hearing opportunity, and return (i.e., dismiss) the COLA to Oklo.8 Filers argue these steps are necessary because the COLA allegedly is incomplete,9 and because the NRC allegedly must establish an entirely new regulatory framework before commencing its review.10 As a general matter, the Unauthorized Filing is replete with incendiary and pejorative language and outlandish factual inaccuracies. For example, Filers claim that the COLA does not even include a general description of the Oklo design.11 The COLA plainly and unambiguously contains a general description,12 along with a robust technical description,13 of the Aurora. Furthermore, Filers repeatedly accuse the Staff of unlawful conduct, and deride the instant proceeding as a sham.14 As further explained below, these alarmist and grossly-exaggerated claims are unsupported by fact or logic.

The thrust of Filers claim is that the COLA does not supply certain allegedly-required information. However, the precise hearing opportunity that they seek to revoke or suspend is, in fact, the proper procedural mechanism through which they could seek to raise these challenges. Thus, Filers demand is counterintuitive. Furthermore, the gaps Filers purport to identify in the COLA pertain, almost exclusively, to NRC regulations that simply do not apply to 8

Unauthorized Filing at 1, 3.

9 E.g., id. at 8, 15.

10 Unauthorized Filing at 3. Filers also demand that certain administrative defects be corrected; all reference documents used by Oklo to prepare the COLA be docketed; the Commission [c]larify the scope of the Nuclear Energy Innovation and Modernization Act, Pub. L. No. 115-439, 132 Stat. 5565 (2019) (NEIMA). Id.

11 Unauthorized Filing at 6.

12 See, e.g., COLA, Encl. 3 (Aurora Environmental Report - Combined License Stage) § 1.1 (generally describing the Aurora as a 4 megawatt thermal (MWth) fission battery.).

13 See generally, COLA, Encl. 2 (Final safety analysis report).

14 Unauthorized Filing at 4.

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the Aurora advanced micro-reactor design. Generally speaking, NRC regulations contain many requirements that are applicable to the existing fleet of 1,000+ MWt large light-water reactors.

Not surprisingly, as common sense would suggest, many of those regulations are inapt for a 4 MWt non-light water reactorin simple terms, a fission batterythat is orders of magnitude smaller than the existing fleet. At bottom, the Unauthorized Filing misapprehends the basic contours of the licensing action at issue here.

More fundamentally, the Unauthorized Filing is an abusive ploy that disregards clear Commission precedent holding that:

the Staffs docketing decisions are not subject to challenge;15 threshold motions to dismiss applications are impermissible;16 and requests for exercise of supervisory authority are improper.17 In fact, the NRC has previously dispatched a personal letter to Filers counsel explaining that this type of filing is inappropriate,18 and has rejected previous threshold motions that were impermissibly filed by Filers counsel seeking to dismiss applications.19 Filers fail to mentionmuch less, distinguishthis controlling precedent, of which they clearly were aware.

The Unauthorized Filing also must be rejected as untimely because it was not filed within the time prescribed in 10 C.F.R. § 2.323. Stated bluntly, Filers fail to identify a single procedural provision, or a single precedential ruling, that does not compel summary rejection of 15 See infra Part II.B.

16 See infra Part II.B.3.

17 See infra Part II.C.

18 See Letter from A. Bates, NRC, to D. Curran and J. Blackburn, TSEP, Exelon Nuclear Texas Holdings, LLC (Victoria County Station, Units 1 and 2), Docket Nos. 52-031-COL and 52-032-COL at 2 (Dec. 30, 2008) (ML083650299) (citing U.S. Dept of Energy (High Level Waste Repository), CLI-08-20, 68 NRC 272, 274 (2008) (Bates Letter)).

19 Holtec Intl (HI-STORE Consol. Interim Storage Facility), CLI-20-4, 91 NRC __, __ (Apr. 23, 2020) (slip op. at 4 n.15) (citing Order of the Secretary (Oct. 29, 2018) (ML18302A328) (holding the same)).

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the Unauthorized Filing. Thus, as explained in further detail in Section II, below, these multiple and overlapping procedural defects provide plentiful grounds to reject the Unauthorized Filing.

In addition to these gross procedural deficiencies, the Commission also should reject the Unauthorized Filing for the many additional reasons explained in Section III, below, because it fails to establish any legitimate basis for granting Filers demands. As a general matter, the Commission views the suspension of licensing proceedings to be a drastic measure that is only warranted if there are immediate threats to public health and safety.20 Filers have not identified any such circumstances here.

Moreover, Filers effectively seek a stay of the licensing proceeding, which is governed by specific criteria in 10 C.F.R. § 2.342. The Unauthorized Filing fails to even address these criteria. Nevertheless, viewing the Unauthorized Filing in a light most favorable to Filers, it fails to present information showing that a stay is warranted or necessary. For example, Filers lack standing to challenge the COLA in an adjudicatory hearingwhich is a likely reason that they submitted the Unauthorized Filing in the first place, against the massive weight of legal authority compelling its rejection, and why they seek to disband the normal adjudicatory process.

Notwithstanding, because they would not have standing to participate regardless of the issuance of a stay, they cannot demonstrate any irreparable injury if the stay is not granted.

Additionally, Filers suggest that a stay is necessary because the COLA may be amended during the course of the Staffs review, and thus they will be deprived of a fair opportunity to challenge it. However, this rash and unsupported argument fails to identify any novel circumstances here. Reactor license applications are frequently amended during the course of the 20 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 484 (2008) (citing Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 173-74 (2000)).

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Staffs review. More importantly, the NRCs adjudicatory regulations explicitly contemplate this reality and prescribe corresponding procedures.21 Filers demonstrate no irreparable injury that would flow from following these routine adjudicatory processes.

Finally, the Unauthorized Filing purports to identify significant administrative deficiencies in the COLA and the Hearing Opportunity Notice. As explained in Section III.C, below, these embellished claims also fail to identify any material circumstances warranting any action by the Commission. The Unauthorized Filing should be summarily rejected for all of these many reasons.

II. THE COMMISSION MUST REJECT THE UNAUTHORIZED FILING ON NUMEROUS, INDEPENDENT PROCEDURAL GROUNDS As detailed below, the Unauthorized Filing must be summarily denied on multiple, overlapping procedural grounds. First, it must be denied because it is unquestionably untimely.

Second, the action it purports to challengethe Staffs docketing decisionis a discretionary action that is not subject to challenge. Finally, Filers request that the Commission exercise its supervisory authority is procedurally improper.

A. The Unauthorized Filing Is Untimely Under 10 C.F.R. § 2.323 The Unauthorized Filing is subject to the NRCs procedural rule for general motions at 10 C.F.R. § 2.323.22 This regulation specifies that [a]ll motions must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises.23 The Unauthorized Filing fails to satisfy this requirement and should be rejected accordingly.

21 See, e.g., 10 C.F.R. § 2.309(c).

22 Although not captioned as a motion, the Certificate of Counsel at the end of the Unauthorized Filing indicates that it was filed pursuant to 10 C.F.R. § 2.323. See Unauthorized Filing at 33. See also Motion, BLACKS LAW DICTIONARY (11th ed. 2019) (A written or oral application requesting a court to make a specified ruling or order.).

23 10 C.F.R. § 2.323(a)(2).

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As noted in the Unauthorized Filing, the occurrences and circumstances from which it arises are (1) the NRCs June 5, 2020 Acceptance Letter; (2) the NRCs June 16, 2020 Docketing Notice; and (3) the NRCs June 30, 2020 Hearing Opportunity Notice. Accordingly, pursuant to the 10-day timeliness requirement in 10 C.F.R. § 2.323(a)(2), motions purporting to challenge these occurrences and circumstances were due no later than June 15, 2020, June 26, 2020, and July 10, 2020, respectively. The Unauthorized Filing was submitted on July 31, 2020. Thus, it is untimely by at least three full weeks.

This procedural default alone suffices to justify rejection of [the filing] in its entirety.24 The Commissions general policy has been to enforce [filing deadlines] strictly.25 Even pro se petitioners are not excused from strict compliance with filing deadlines because they are basic procedural requirements that are simple to understand.26 Here, Filers are represented by experienced counsel and, by their own account, have collectively participated in numerous licensing proceedings.27 Filers identify no reason they could not have complied with this simple to understand deadline. More broadly, the Commission historically [has] excused a failure to meet [filing] deadlines only in extraordinary and unanticipated circumstances.28 Filers identify no such circumstances here. Accordingly, the Unauthorized Filing should be summarily rejected as untimely pursuant to 10 C.F.R. § 2.323(a)(2).

24 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 201 (1998).

25 Id. at 202 (internal citations omitted) (emphasis added).

26 Id. at 201, 202.

27 Unauthorized Filing at 5 n.13.

28 Yankee, CLI-98-21, 48 NRC at 202 (citing Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-684, 16 NRC 162, 165 n.3 (1982)).

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B. The NRCs Docketing Decision Is Not Subject to Challenge Aside from its clear tardiness, the Unauthorized Filing also should be rejected because it purports to challenge the NRCs decision to docket and review the COLA. However, docketing decisions are discretionary under the Atomic Energy Act of 1954, as amended (AEA). As explained below, the Commission has squarely held that challenges to the Staffs docketing decisions are inappropriate and impermissible. Moreover, there can be no claim that Filers were unaware of this controlling precedent because the NRC Secretary sent a personal letter to Filers counsel explaining this prohibition.29 Likewise, the Commission has rejected other frivolous motions advanced by Filers counsel (in other proceedings) seeking to dismiss an applicationwhich the Unauthorized Filing effectively seeks here. Inexplicably, Filers and their counsel ignore this binding precedentand counsels personal admonishmentand instead file yet another extra-procedural motion that wastes the resources of the applicant, the Staff, and the Commission. As required by the overwhelming weight of precedent, the Commission should likewise reject the Unauthorized Filing here.

As a general matter, Filers assert that the NRCs decision to docket and begin reviewing the COLA is unlawful.30 However, this claim is entirely unsupported and legally incorrect.

Moreover, it amounts to an impermissible challenge to the AEA itself. As explained in Section 161.h of the AEA,31 the Commission is authorized to consider in a single application one or more of the activities for which a license is required by this [Act]. The COLA seeks approvals to construct and operate a utilization facility, which are activities that require a license under 29 Bates Letter at 2.

30 E.g., Unauthorized Filing at 22.

31 AEA § 161.h (codified at 42 U.S.C. § 2201(h)).

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the AEA.32 The AEA provides no other limitations on the Commissions ability to consider an application. Thus, pursuant to the plain text of the AEA, the NRC most assuredly has a lawful basis to consider the COLA.33 More specifically, the Unauthorized Filing seeks to challenge the NRCs decision to review the COLA in the first placei.e., its docketing decision. But Filers fail to identify any legal right to challenge the agencys docketing decision. Nor is there one. Section 189(a) of the AEA does not confer the automatic right of intervention upon anyone.34 Rather, the AEA specifies the limited subset of proceedings that allow for a hearing opportunity.35 Specifically, the AEA requires a hearing opportunity in any proceeding for:

the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control; the issuance or modification of rules and regulations dealing with the activities of licensees; or the payment of compensation, an award, or royalties under certain sections of the AEA.36 Hearings are not required for any other proceeding, or where there is no proceeding at all, because, as should be obvious, there is no general right to a hearing for a hearings sake.37 As 32 See generally AEA § 101 (codified at 42 U.S.C. § 2131); 10 C.F.R. Part 50.

33 Furthermore, to the extent Filers assert that the NRC should be prohibited from considering applications with which they have policy objections, their remedy lies with the legislative process to amend the AEA.

Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421, 431 (2008) (citing Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, 21 n.33 (1974)) (explaining that the adjudicatory process is not the proper venue for a challenge that merely addresses petitioners own view regarding the direction regulatory policy should take.)

34 Union of Concerned Scientists v. NRC, 920 F.2d 50, 55 (D.C. Cir. 1990) (quoting Business and Professional People for the Public Interest v. AEC, 502 F.2d 424, 428 (D.C. Cir. 1974)).

35 AEA § 189(a)(1)(A).

36 Id.

37 Ne. Nuclear Energy Co. (Millstone Nuclear Power Station, Units 2 & 3), LBP-01-10, 53 NRC 273, 282 (2001), affd sub nom. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001), reconsid. denied, CLI-02-1, 55 NRC 1 (2002).

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the Commission has repeatedly held, [a]gency actions that are not among those listed [in section 189a] do not give rise to a hearing right.38 Because the Staffs docketing decision is an agency action not among those listed in section 189a, the agency is under no obligation to even entertain the Unauthorized Filing.

More directly, as the Commission has explained, a docketing decision is not challengeable in an adjudicatory proceeding.39 Notably, the NRC has previously advised Filers counsel on this very issue, explaining that, the Staffs docketing decision is outside the scope of our adjudicatory proceedings.40 Because Filers seek to challenge the NRC Staffs decision to docket and review the COLAa discretionary act not subject to challengeand because the Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing,41 the Unauthorized Filing should be summarily rejected.

On a final note, Filers counsel has unsuccessfully submitted extra-procedural motions to dismiss applications in other proceedings. Rebranding aside, these requests still present impermissible challenges to the Staffs docketing decision. As Filers counsel is well aware,

[NRC] regulations do not provide for a motion to dismiss an application.42 The instant pleadingfreshly styled as an Emergency Petition asking the Commission to revoke or suspend the docketing and hearing notices and return the applicationfares no better and 38 Entergy Nuclear Vt. Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-16-17, 84 NRC 99, 116 (2016) (citing Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-01-12, 53 NRC 459, 466 (2001) (in turn, citing Mass. v. NRC, 878 F.2d 1516)).

39 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), CLI-08-15, 68 NRC 1, 3 n.2 (2008) (quoting Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI 25, 48 NRC 325, 350 (1998)).

40 See Bates Letter at 2.

41 Changes to Adjudicatory Process; Final rule, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).

42 Holtec, CLI-20-4, 91 NRC at__ (slip op. at 4 n.15).

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must be denied for the same reasons repeatedly identified by the Commission and the NRC Secretary.

C. Requests for Commission Exercise of Supervisory Authority are Improper Recognizing the lack of any established legal authority or procedural basis for their Unauthorized Filing, Filers argue that the Commission should exercise its general supervisory authority to conduct an interlocutory review of the Staffs docketing decision.43 As a general matter, interlocutory reviews are rarely entertained due to the Commissions general unwillingness to engage in piecemeal interference in ongoing proceedings.44 More importantly, it is decidedly improper for a participant to affirmatively request a discretionary exercise of supervisory authority.45 As the Commission has explained:

[T]he Commission itself may exercise its discretion . . . if the Commission wants to address a novel or important issue . . . . However, the Commissions decision to do so in any particular proceeding stems from its inherent supervisory authority over adjudications and in no way implies that parties have a right to seek interlocutory review on that same ground.46 The Commission explained that this kind of request is improper because, if such requests were permitted, there would be no limit to the arguments parties could present, which is a result fundamentally at odds with the limited nature of interlocutory review.47 The Unauthorized Filing, here, is improper and should be rejected for these same reasons.

43 E.g., Unauthorized Filing at 5.

44 Entergy Nuclear Vt. Yankee LLC & Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station),

CLI-07-1, 65 NRC 1, 3 (2007).

45 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-09-6, 69 NRC 128, 138 (2009).

46 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-00-11, 51 NRC 297, 299 (2000)

(internal citation omitted) (emphasis in original).

47 Indian Point, CLI-09-6, 69 NRC at 138.

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Ultimately, the Commission should reject the Unauthorized Filing on each and all of these numerous independent procedural grounds.

III. THE COMMISSION CAN REJECT THE UNAUTHORIZED FILING FOR THE ADDITIONAL REASON THAT THE REQUESTED RELIEF IS UNNECESSARY AND UNWARRANTED As noted above, Filers request various forms of relief in their Unauthorized Filing. For example, they ask that the Commission stop the Staffs review, revoke or suspend the docketing and hearing notices, and return Oklos COLA. However, as the Commission has explained, suspension of licensing proceedings [is] a drastic action that is not warranted absent immediate threats to public health and safety.48 Filers certainly have not identified any immediate threats that could arise from the NRCs continued dutiful administrative review of a license application. Moreover, Filers demand amounts to a request for a stay of the licensing proceeding, which is governed by specific criteria in 10 C.F.R. § 2.342. As explained below, the Unauthorized Filing neither addresses nor satisfies these criteria. Thus, the stay requested by Filers is entirely unwarranted.

Additionally, Filers allege the existence of significant administrative defects in the COLA and the Hearing Opportunity Notice.49 However, as explained below, the circumstances cited by Filers are not appropriately characterized as a defects, much less significant ones.

More importantly, these circumstances in no way prejudice Filers ability to request a hearing.

Thus, no relief is necessary.

48 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 484 (2008) (citing Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 173-74 (2000)).

49 Unauthorized Filing at 3, 31. See also id. at 9-10, 18.

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A. The Unauthorized Filing Fails to Satisfyor Even Addressthe Applicable Standard for a Stay of the Licensing Proceeding Filers ask that the NRC revoke or suspend its docketing decision and cease (i.e., stay) its review of the COLA pending resolution of the issues raised in the Unauthorized Filing.

However, Filers have not addressed the threshold requirements for the stay they request. As the Commission has explained:

In determining whether to grant a stay of a licensing proceeding, the Commission looks at four factors: (1) whether the petitioner has made a strong showing that it is likely to prevail upon the merits; (2) whether the petitioner faces irreparable injury if a stay is not granted; (3) whether the issuance of a stay would harm other interested parties; and (4) where the public interest lies. The proponent of the stay has the burden of demonstrating that these factors are met.50 As a general matter, the first two factors are the most important considerations for a stay.51 However, the Unauthorized Filing does not even acknowledge the applicable criteria, much less does it affirmatively demonstrate satisfaction thereof. Thus, Filers requests that the Commission stop the Staffs review, revoke or suspend the docketing and hearing notices, and return Oklos COLA must be denied.

B. Filers Are Neither Likely to Prevail on the Merits or Nor Will They Suffer Any Irreparable Injury If the Stay Is Not Granted The burden is on Filers to demonstrate satisfaction of the stay criteria. Because they have not even attempted to do so, no further inquiry is required. Neither the parties nor the Commissioners are under any obligation to scour the Unauthorized Pleading to identify potential 50 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-02-11, 55 NRC 260, 262-263 (2002) (citing Sequoyah Fuels Corp. & Gen. Atomics (Gore, Oklahoma Site), CLI-94-9, 40 NRC 1, 6 (1994); Allied-Gen. Nuclear Servs. (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671, 677-78 (1975)). See also 10 C.F.R. § 2.342 (articulating the same criteria).

51 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-810, 21 NRC 1616, 1620 (1985) (citing Duke Power Co. (Catawba Nuclear Station, Units 1& 2), ALAB-794, 20 NRC 1630,1635 (1984)); Hydro Res., Inc. (Albuquerque, NM), LBP-98-5, 47 NRC 119, 120 (1998).

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support not otherwise advanced by Filers and match it to the applicable criteria.52 The Commission cannot be faulted for not having searched for a needle that may be in a haystack.53 Even if the parties or the Commission were obligated to undertake such a review, the result would be the same because nothing in the Unauthorized Filing, in fact, satisfies the applicable criteria.

1. Filers Lack Standing to Participate in an Adjudicatory Hearing Filers make various vague and conclusory assertions that the NRCs continued review of the COLA somehow would be unfair to them and may affect, in some unexplained way, their ability to participate in the adjudicatory hearing process. As explained below, the notion that the NRCs continued review of the COLA stifles anyones ability to participate in the adjudicatory proceeding is meritless. More specifically, however, the Unauthorized Filing fails to discuss how any of the Filers would have standing to participate in the proceeding under any circumstances.54 Simply put, Filers are not likely to prevail on the merits of a proceeding in which they are not even entitled to participate. Moreover, a stay would not redress this jurisdictional obstacle; thus, the lack of a stay would cause no irreparable injury to Filers.

Pursuant to Section 189.a of the AEA, the Commissions regulations in 10 C.F.R.

§ 2.309(d)(1) require a petitioner to demonstrate standing before a hearing request may be granted. To do so, a petitioner must show: (1) an actual or threatened, concrete and 52 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 404 n.67 (2012) (The Commission should not be expected to sift unaided through earlier briefs or other documents to piece together and discern a partys argument and the grounds for its claims.)

(quoting Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 534 (2009)).

53 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-89-3, 29 NRC 234, 240-41 (1989) (citations omitted).

54 Filers inability to participate in the actual adjudicatory proceeding (due to their lack of standing) may explain why Filers elected to submit this Hail Mary extra-procedural motion (in lieu of a petition to intervene) notwithstanding the overwhelming precedent that requires its rejection. See supra Part III.

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particularized injury that is (2) fairly traceable to the challenged action and (3) likely to be redressed by a favorable decision.55 As particularly relevant here, an asserted injury must be associated with the challenged action, not simply a general objection to the facility.56 Filers are self-described regional and national organizations, located throughout the U.S. with generalized interests in the integrity and fairness of the proceeding and the precedents it may set.57 However, these types of academic concerns are far too generalized and attenuated to demonstrate standing.58 Furthermore, none of the Filers appear to have any meaningful contacts with INLthe site of the facility proposed in the COLA. Rather, Filers seek to establish a connection to this proceeding due to the speculative possibility that other applications, by other applicants, for other reactors, at some unknown point in time, at other unknown sites around the U.S., makes each of these organizations potential neighbors of new non-LWRs and SMR[s].59 However, the instant proceeding clearly does not involve a generic license application seeking to site nuclear reactors around the country. Rather, the COLA seeks authorization to construct and operate a single, specific micro-reactorthe Auroraat a single, specified locationINL. The 55 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-96-1, 43 NRC 1, 6 (1996). Under some limited circumstances, such as a proceeding under the AEA to evaluate the radiological safety aspects of an application for a large light-water power reactor operating license, a petitioner may be presumed to have fulfilled the standing requirement based on his or her geographic proximity to the proposed action. See Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-05-26, 62 NRC 577, 579-83 (2005).

56 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 & 2), CLI-99-4, 49 NRC 185, 188 (1999).

57 Unauthorized Filing at 5-6.

58 See Ohio Edison Co. (Perry Nuclear Power Plant, Unit 1), LBP-91-38, 34 NRC 229, 248-49 (1991), affd on other ground, CLI-92-11, 36 NRC 47 (1992), petition for review dismissed, City of Cleveland v. NRC, 68 F.3d 1361 (D.C. Cir. 1995) (concern that bad precedent may be set in a proceeding that could impact the petitioners ability to contest similar matters in another proceeding is a generalized grievance that is too academic to provide the requisite injury-in-fact needed for standing.)

59 Unauthorized Filing at 5.

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generalized and highly-attenuated interests articulated by Filers here are wholly insufficient to satisfy the standing requirements in Section 189.a. of the AEA and 10 C.F.R. § 2.309(d)(1).60 Ultimately, because Filers have not demonstrated that they would even have standing to participate in the adjudicatory hearing, they also fail to demonstrate that they are likely to prevail or would suffer any irreparable injury.

2. A Procedurally-Appropriate Pathway for Challenging the Completeness and Sufficiency of the COLA Already Exists The sine qua non of the Unauthorized Filing is its claim that the COLA is incompletein other words, that required information has been improperly omitted.

However, there already exists a procedurally-appropriate pathway through which Filers may raise such challenges. More specifically, as noted in the Hearing Opportunity Notice, Filers have until August 31, 2020, to submit a petition to intervene in the instant proceeding and to submit proposed contentions challenging the COLA. In fact, the NRCs contention admissibility criteria explicitly contemplate contentions alleging that the application fails to contain information on a relevant matter as required by law.61 In other words, because a stay is not necessary to preserve the publics ability to challenge the COLA, there is no demonstration of a potential irreparable injury.

For example, Filers assert that Oklo has declined to demonstrate compliance with certain regulatory requirements.62 The Unauthorized Filing contains many other vague and unsubstantiated claims of alleged gaps in the environmental report and various aspects of the 60 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 333 (1983), citing Transnuclear Inc., CLI-77-24, 6 NRC 525, 531 (1977) (a generalized grievance shared in substantially equal measure by all or a large class of citizens will not result in a distinct and palpable harm sufficient to support standing).

61 10 C.F.R. § 2.309(f)(1)(vi).

62 Unauthorized Filing at 15.

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safety analysis.63 In other words, consistent with the types of claims that may be raised as proposed contentions, Filers allege that the application fails to contain information on a relevant matter as required by law.64 Filers make no showing as to why they could not raise such challenges via the appropriate procedural pathwayi.e., the pending hearing opportunity which is specifically designed to adjudicate such claims. In other words, they identify no irreparable injury.

Filers also complain about the Staffs review of Oklo documents during a recent regulatory audit,65 which was conducted pursuant to NRR Office Instruction LIC-111.66 As explained in that instruction, the Staff may review certain non-docketed materials maintained by an applicant (e.g., by physically visiting the applicants facilities or via electronic portals).67 LIC-111 specifies that all information necessary for a required regulatory finding must be docketed; thus, if the Staff identifies non-docketed information that it wishes to rely on for a required finding, it may request such information via a formal Request for Additional Information (RAI).68 Here, Filers demand that all documents reviewed during a regulatory audit be submitted to [the] NRC, regardless of whether such documents contain information necessary for a required regulatory finding.69 However, Filers identify no requirement (or even a logical basis) for Oklo to do sonor is there one.70 63 E.g., id. at 8, 14-15, 21.

64 10 C.F.R. § 2.309(f)(1)(vi).

65 See, e.g., Unauthorized Filing at 13-14.

66 NRR Office Instruction LIC-111, Rev. 1, Regulatory Audits (Oct. 31, 2019) (ML19226A274).

67 Id. § 4.4.

68 Id.

69 Unauthorized Filing at 3.

70 Furthermore, Filers request for every morsel of information seems disingenuous since they did not seek access to any SUNSI that might be contained in the COLA, which the Hearing Opportunity Notice allowed them to do.

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At bottom, Filers have not demonstrated any irreparable injury. They simply raise their arguments via an improper procedural vehiclethe Unauthorized Filingrather than the correct onea petition to intervene under 10 C.F.R. § 2.309. Filers misreading of, or dissatisfaction with, the NRCs procedural regulations does not give rise to an irreparable injury.

3. The Staffs Review of an Application Is Not Subject to Challenge The Unauthorized Filing also contains various challenges to the NRC Staffs plan for reviewing the COLA. For example, Filers purport to challenge the Staffs phased approach to the reviewi.e., Step 1 and Step 2.71 However, the NRC has long held that the adequacy or manner of Staffs review is outside the scope of Commission adjudicatory proceedings. Rather, it is the license application, not the NRC staff review, that is at issue.72 Thus, Filers complaints in this regard, purporting to challenge the Staffs novel two-step review approach, are wholly irrelevant and immaterial to the proceeding. Accordingly, they do not support any claim regarding the likelihood of success on the merits.

Furthermore, to the extent Filers are dissatisfied with the possibility that the COLA may be revised or updated during the Staffs two-step review, they fail to identify any irreparable injury. Application revisionsincluding those submitted sua sponte by the applicant or resulting from applicant responses to Staff RAIsare commonplace in NRC licensing reviews.

There is nothing novel about the iterative process of significant licensing actions. Filers cite the Acceptance Letter as support for their dubious claim that the Staff told Oklo it can submit the information later.73 However, this exaggerated claim is sheer hyperbolethe Acceptance 71 E.g., Unauthorized Filing at 15-16.

72 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), CLI-08-15, 68 NRC 1, 3 n.2 (2008) (quoting Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI 25, 48 NRC 325, 350 (1998)).

73 Unauthorized Filing at 2 & n.5.

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Letter contains no such statement. Moreover, the NRCs existing adjudicatory process explicitly provides a mechanism for challenging new and materially different information that may arise during the course of the Staffs review.74 Again, the Unauthorized Filing contains no showing as to why this codified and longstanding process somehow would be inapplicable or inadequate here.

To the extent Filers observe that the iterative process would require the expenditure of resources to litigate claims,75 they have not identified a cognizable injury. It is well established in Commission case law . . . that we do not consider the incurrence of litigation expenses to constitute irreparable injury in the context of a stay decision.76 Accordingly, this also provides no basis to grant the requested relief.

4. The Delay Sought by Filers Would Harm the Other Parties and Would Not Serve the Public Interest The Commissions rejection of a similar stay request in the Private Fuel Storage (PFS) proceeding is instructive, here, regarding the balancing of the third and fourth criteria for a stay (i.e., whether a stay would harm other parties and where the public interest lies).77 In 2002, a party to the PFS proceeding requested a stay of the Staffs application review, arguing that the NRCs review of the subject application was unlawful.78 As to the first factor, the Commission found that, because the movant failed to identify a statute that directly, on its 74 10 C.F.R. § 2.309(c) (procedure for filing new or amended challenges after the initial deadline for petitions to intervene).

75 Unauthorized Filing at 27 (suggesting that members of the public may be unfairly required to formulate hearing requests.).

76 PFS, CLI-02-11, 55 NRC at 263 (citing Sequoyah, CLI-94-9, 40 NRC at 6; Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-84-17, 20 NRC 801, 804 (1984)). See also Conn. Yankee Atomic Power Co. (Haddam Neck Plant), CLI-01-25, 54 NRC 368, 374 (2001) (a mere increase in the burden of litigation does not constitute serious and irreparable harm).

77 See Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-02-11, 55 NRC 260 (2002).

78 Id. at 261.

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face, prohibited the licensing action, it had not made a strong showing of probable success on the merits.79 So too here. As to the second factor, the Commission found that the movant had not demonstrated irreparable injury where its only asserted harm was litigation expense.80 This, also, is similar to the claims presented in the Unauthorized Filing. In light of its findings on the first two factors, the Commission in PFS concluded that delaying the proceeding would inconvenience the other parties, and would be contrary to the public interest.81 Given the strong parallels between the PFS case and the instant Unauthorized Filingas to both the facts at issue and the conclusions regarding factors 1 and 2the Commission should similarly conclude that factors 3 and 4 weigh against granting a stay.

C. Filers Alleged Administrative Defects Do Not Warrant the Requested Reliefor Any Other Relief, Such as an Extension of the Filing Deadline Filers also raise various minor administrative nits with the COLA and the Hearing Opportunity Notice. However, as explained below, Filers have not identified any material circumstances warranting any form relief whatsoever. Accordingly, the Commission should disregard these complaints.

1. Filers Do Not Identify Any Administrative Deficiency in the Redacted COLA First, Filers correctly note that the publicly-available (i.e., redacted) version of the COLA omits certain information that can be protected by law from public disclosure, such as export-controlled information and trade secrets and confidential commercial or financial information (i.e., proprietary information).82 Filers then complain that the publicly-available version of the COLA contains no brackets or other markings to indicate the location of and justification for 79 Id. at 263.

80 Id.

81 Id.

82 Unauthorized Filing at 9-10.

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[such] redactions.83 What Filers do not identify, however, is any regulation requiring that such brackets or justifications be provided in the publicly-available version of the COLA. Nor do any such requirements exist. Oklo has fully complied with all regulations in this regard, such as providing required justifications in affidavits submitted with the COLA, as explicitly mandated in 10 C.F.R. § 2.390. At bottom, Filers have not identified any unmet regulatory requirement.

Accordingly, no relief is necessary or warranted.84

2. Filers Do Not Identify Any Material Circumstance Related to the Public Availability of Application Documents Lastly, Filers note that the Hearing Opportunity Notice referred members of the public to (1) a specific page on the NRCs website containing the COLA and the Acceptance Letter, and (2) the ADAMS 52-0049 docket folder containing a few more documents.85 However, they allege that the referenced locations did not contain certain other documents, such as the Audit Memo. Based on this observation, Filers argue that the NRC failed to ensure public availability of relevant licensing documents.86 As explained below, Filers have not identified a material circumstance that warrants any action by the Commission.

By way of background, the Oklo matter was originally assigned a project number (99902046), consistent with agency practice. Upon docketing, on June 5, 2020, the matter was assigned a formal docket number (52-049). The Audit Memo identified by Filers is dated 83 Id. at 10.

84 Filers had an opportunity to request access to the non-public version of the COLA. See Hearing Opportunity Notice. They did not do so. Moreover, nothing in the Unauthorized Filing identifies any unavoidable and extreme circumstances that would warrant a post-hoc extension of the deadline for doing so. See Policy on Conduct of Adjudicatory Proceedings; Policy Statement, 63 Fed. Reg. 41,872, 41,874 (Aug. 5, 1998) (noting that extensions of time should be granted only when warranted by unavoidable and extreme circumstances.).

85 Unauthorized Filing at 18.

86 Id.

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April 1, 2020, i.e., before the COLA was docketed. Thus, its metadata profile in the NRCs Agencywide Documents Access and Management System (ADAMS) appropriately references the project number. That document has been, and continues to be, publicly available. More generally, knowledge of the project number is not a prerequisite to locating the document in ADAMS. A simple ADAMS search for the term Oklo returns the Audit Memo mentioned by Filersand likely every other public document related to Oklo. Thus, there is no issue related to public availability, as Filers claim.

Furthermore, the Hearing Opportunity Notice clearly provided a link to the COLA.

Filers explicitly acknowledge as much in the Unauthorized Filing. The COLA is the only document at issue in this proceeding.87 Indeed, it has been publicly available on the NRCs website for nearly six monthslong before the NRC even published the Hearing Opportunity Notice. Given that there is no dispute that the COLA is, and long has been, available to the public, no Commission action is warranted here. And Filers observation that other pre-docketing correspondencewhich is not at issue in this proceedingis profiled in ADAMS under the project number rather than the docket number certainly does not identify an unavoidable and extreme circumstance that would warrant any extensioneven a brief oneof the existing adjudicatory deadline for submission of hearing requests.

In sum, the Unauthorized Filing should be denied for the additional reason that the requested relief is unnecessary and unwarranted.

87 Shearon Harris, CLI-08-15, 68 NRC at 3 n.2.

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IV. CONCLUSION For all of the many reasons discussed above, the Unauthorized Filing should be summarily rejected.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Alex S. Polonsky, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5830 alex.polonsky@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Oklo Power LLC Dated in Washington, D.C.

this 10th day of August 2020 23

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket No. 52-049-COL OKLO POWER LLC )

) August 10, 2020 (Aurora Advanced Nuclear Micro-Reactor at )

Idaho National Laboratory) )

)

CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Oklo Power LLCs Answer Opposing July 31, 2020 Unauthorized Filing by Beyond Nuclear et al. was filed through the E-Filing system.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for Oklo Power LLC DB1/ 115361203