ML20233A698
| ML20233A698 | |
| Person / Time | |
|---|---|
| Site: | 05200049 |
| Issue date: | 08/20/2020 |
| 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 55770 | |
| Download: ML20233A698 (8) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
OKLO POWER LLC (Aurora Powerhouse at Idaho National Laboratory)
)
)
)
)
)
)
)
Docket No. 52-049-COL August 20, 2020 OKLO POWER LLCS ANSWER OPPOSING BEYOND NUCLEAR ET AL.
AUGUST 17, 2020 MOTION FOR LEAVE TO FILE A REPLY I.
INTRODUCTION On July 31, 2020, Beyond Nuclear and other anti-nuclear groups (collectively, Filers) filed what they styled as an Emergency Petition on the above-captioned docket (Unauthorized Filing).1 Filers cited no procedural basis for the Unauthorized Filing. On August 10, 2020, Oklo Power LLC (Oklo) and the U.S. Nuclear Regulatory Commission (NRC) Staff each submitted Answers highlighting the multiple procedural and substantive deficiencies in the Unauthorized Filing (Response Pleadings) that necessitate its rejection.2 Now, Filers have 1
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).
2 Oklo Power LLCs Answer Opposing July 31, 2020 Unauthorized Filing by Beyond Nuclear et al. (Aug.
10, 2020) (ML20223A390) (Oklo Answer); NRC Staff Answer Opposing Emergency Petition to Suspend Docketing Decision and Hearing Notice (Aug. 10, 2020) (ML20223A406) (Staff Answer).
2 submitted a Motion for Leave to Reply (Motion),3 along with their proposed reply (Reply),4 seeking to rebut the Response Pleadings.
In accordance with 10 C.F.R. § 2.323(c), Oklo submits this Answer opposing the Motion.
As explained below, the Motion should be summarily rejected, and the proposed Reply should be ignored, because Filers have not satisfied the requisite standard. More broadly, the Commission should reject this obvious procedural maneuvering to get the last word, which has become all-too-commonplace in recent NRC adjudicatory proceedings.
II.
ARGUMENT NRC regulations at 10 C.F.R. § 2.323(c) provide that Filers have no right to file a Reply. Instead, the regulations state that permission to file a reply may be granted only in compelling circumstances, which requires a demonstration by the moving party that it could not reasonably have anticipated the arguments to which it seeks leave to reply.5 As explained below, Filers do not come close to satisfying this textbook legal standard.
As a preliminary matter, Filers argue that 10 C.F.R. § 2.323 (the NRCs procedural rule for general motions) does not apply to the Emergency Petition.6 However, they offer no alternative view as to what specific procedural provision allegedly does authorize their 3
Petitioners Motion for Leave to Reply to NRC Staff and Oklo Oppositions to Emergency Petition to Revoke or Suspend Docketing Notice and Hearing Notice for COL Application (Aug. 17, 2020)
(ML20230A570) (Motion).
4 Petitioners Reply to Oppositions to Emergency Petition by Beyond Nuclear, et al. 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 (Aug. 17, 2020) (ML20230A571) (Reply). See also Corrected [Reply] (Aug. 18, 2020) (ML20231A323).
5 10 C.F.R. § 2.323(c) (emphasis added).
6 Motion at 1-2.
3 Unauthorized Filing. That is because no such provision exists.7 Likewise, Filers do not explain why they could not reasonably have anticipated that Oklo and the NRC Staff would argue that the Unauthorized Filing is governed by this rule. Indeed, the Certificate of Counsel at the end of the Unauthorized Filing indicates that it was filed pursuant to 10 C.F.R. § 2.323.8 Furthermore, the Commission has previously explainedin rejecting another extra-procedural Emergency Petition filed by Filers counsel in a different proceedingthat such submissions are (1) filed pursuant to 10 C.F.R. § 2.323, and (2) procedurally improper.9 Any claim that Filers could not reasonably have anticipated these precise arguments is simply disingenuous.
In substantive terms, Filers argue that they should be granted leave to file their Reply because they could not reasonably have anticipated Oklo and NRC Staff arguments regarding:
(1) the discretionary nature of Staff docketing decisions, (2) the multiple legal arguments as to why the Unauthorized Filing must be rejected on procedural grounds, (3) Staffs suggestion of an extension of the hearing request deadline, and (4) alleged mischaracterizations of the Unauthorized Filing.10 As explained below, each of these claims is baseless.
First, Filers argue that the Motion should be granted principally because they could not reasonably have anticipated arguments that the Staffs docketing decision is a discretionary act not subject to challenge in adjudicatory proceedings.11 As explained below, this claim rings hollow. The Unauthorized Filing, itself, notes that [t]he NRC Staffs docketing decisions 7
The Unauthorized Filing requests a specific action, and therefore clearly is a motion under fundamental tenets of legal procedure. See Motion, BLACKS LAW DICTIONARY (11th ed. 2019) (A written or oral application requesting a court to make a specified ruling or order.).
8 See Unauthorized Filing at 33.
9 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-19-7, 90 NRC __, __ (2019) (slip op. at 9).
10 Motion at 2-3.
11 Id. at 2.
4 normally are committed to the discretion of the Staff.12 Filers even cited case law for this proposition.13 Moreover, the NRC has personally admonished Filers counsel that the Staffs docketing decision is outside the scope of our adjudicatory proceedings.14 By any objective measure, Filers decision not to rebut these fundamental precepts in their initial filing is not the result of an inability to anticipate such arguments, and does not give rise to a compelling circumstance warranting a belated opportunity to do so now.
Second, the Unauthorized Filing unquestionably challenges the Staffs docketing decision and asks the Commission to exercise its supervisory authority to return (i.e., dismiss) the pending application.15 As detailed in Oklos Answer, the Commission squarely and consistently has rejected previous filings requesting these same things in other proceedings.16 Filers represented by an attorney with decades of experience in NRC adjudicatory proceedings cannot legitimately argue that it was unreasonable or impossible to anticipate that the Response Pleadings would discuss the legal precedent, standards, and regulations pertaining to the essence of their Unauthorized Filingnamely, challenges to docketing decisions, motions to dismiss applications, and requests for exercise of supervisory authority. This is particularly so, given Filers counsels personal awareness of many of these rulings.17 Filers failure to anticipate and respond to these foreseeable arguments does not now give rise to compelling circumstances.
12 Unauthorized Filing at 4.
13 Id. (citing U.S. Dept of Energy (High Level Waste Repository), CLI-08-20, 67 NRC 402, 406 (2008)).
14 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 DOE, CLI-08-20, 68 NRC at 274).
15 E.g., Unauthorized Filing at 4, 31.
16 See generally Oklo Answer §§ II, III.A.
17 See, e.g., id. at 4, 8, 10. Furthermore, Filers not only could have anticipated such arguments, they also were obligated to call attention to, and candidly disclose, unfavorable precedent to the tribunal. Pub. Serv. Co.
of Okla. (Black Fox Station, Units 1 & 2), ALAB-505, 8 NRC 527, 532 (1978).
5 Third, Filers claim they were unable to anticipate Staffs statement that it would not oppose a request to extend the deadline for intervention petitions until after the Staffs completion of Step 1.18 As a general matter, Filers acknowledge that Staff made a similar statement during Filers consultation on the Unauthorized Filing.19 Thus, they reasonably could have anticipated that a similar statement would appear in Staffs Answer. Indeed, Oklo did anticipate this possibility and pre-emptively explained, in its Answer pleading, the multiple and overlapping reasons that an extension is entirely unjustified in these circumstances.
For example, Oklo noted that the NRCs codified adjudicatory process already provides a mechanism for challenging new and materially different information that may arise during the course of the Staffs review, and that the iterative nature of significant licensing actions is a normal part of the process that is fully contemplated by existing regulations.20 Oklo also explained that neither the Staffs two-step review process, nor Filers identification of immaterial administrative nits, constitute extreme and unavoidable circumstances21 warranting a departure from this codified and longstanding practice or an extension of any duration.22 Indeed, the thrust of Oklos Answer was that infinite23 (i.e., lacking a finite end date) extensions of the hearing request deadline, such as the one proposed by Filersand the one effectively proposed by Staff24are unwarranted, unnecessary, and likely unprecedented. At bottom, Filers fail to 18 Staff Answer at 4.
19 Motion at 3 (improperly characterizing its consultation as a confidential settlement negotiation).
20 Oklo Answer at 18-19; 10 C.F.R. § 2.309(c).
21 See Policy on Conduct of Adjudicatory Proceedings; Policy Statement, 63 Fed. Reg. 41,872, 41,874 (Aug.
5, 1998) (extensions should be granted only when such circumstances are present).
22 Oklo Answer at 18-22.
23 Id. at 2.
24 Staffs Answer does not disclose to the Commission any estimated Step 1 completion timeline. Such an open-ended extension realistically could result in a delay of the adjudicatory proceeding for many months, and potentially could be longer than any such extension ever granted by the Commission.
6 explain why they could not have anticipatedas Oklo didthat a discussion of extending the hearing request deadline might appear in Staffs Answer.25 Fourth, Filers allege they could not have anticipated Oklos general characterizations of the Unauthorized Filing as seeking to undo work performed by the Staff, and as seeking an infinite extension of time to file a hearing request. But Filers offer no explanation for these dubious assertions. The Unauthorized Filing asks the Commission to revoke or suspend the docketing and hearing notices for this proceeding. The Merriam-Webster dictionary defines undo as meaning to make of no effect or as if not done; make null; reverse.26 By any reasonable measure, this description captures the essence of Filers demand. Further, Filers ask that the hearing notice be withheld, but do not propose or specify a finite due date for hearing requests. Thus, their demand for an extension is fairly characterized as infinite.27 Filers fail to explain why they could not have anticipated that the Unauthorized Filing would be characterized using these simple terms and their widely-accepted definitions.
Finally, a brief review of the proposed Reply confirms that the information therein amounts to nothing more than: (1) a reiteration of Filers earlier baseless and procedurally-defective arguments; (2) the addition of new, untimely arguments that Filers could have but did not raise in the Unauthorized Filing; and (3) ordinary rebuttal to the Response Pleadings. These 25 However, Oklo agrees with Filers that such relief clearly was not requested in the Unauthorized Filing. See Motion at 3. Thus, to the extent Staffs statement presents a new de facto Motion, it must be rejected, as a matter of law, because it is not accompanied by a statement that Staff consulted the other parties on their plan to file such a motion. 10 C.F.R. § 2.323(b).
26 Undo, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/undo (last visited Aug. 18, 2020).
27 See Infinite, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/infinite (last visited Aug.
18, 2020) (defining the infinite as extending indefinitely); see also Indefinite, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/indefinite (last visited Aug. 18, 2020) (defining indefinite as not precise and having no exact limits).
7 simply do not present the compelling circumstances required by 10 C.F.R. § 2.323(c), and the Motion does not satisfy Filers affirmative burden to demonstrate otherwise.
III.
CONCLUSION The Commission should reject Filers continued efforts to give credence to their Unauthorized Filing, and disallow further attempts to delay the standard course of NRC action in this proceeding. The interests of necessity and fairness would be best served by issuing a swift rejection of the Unauthorized Filing for all of the reasons stated in the Response Pleadings, and by summarily rejecting the Motion and proposed Reply for the reasons stated above, so as to avoid disruption of the proceeding schedule.
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 20th day of August 2020
DB1/ 115596860 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
OKLO POWER LLC (Aurora Powerhouse at Idaho National Laboratory)
)
)
)
)
)
)
)
Docket No. 52-049-COL August 20, 2020 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, the foregoing Oklo Power LLCs Answer Opposing Beyond Nuclear et al. August 17, 2020 Motion for Leave to File a Reply was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
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