ML21299A340
| ML21299A340 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 10/26/2021 |
| From: | Bessette P, Leroy T, Lighty R Duke Energy Carolinas, Duke Energy Corp, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-267-SLR, 50-270-SLR, 50-287-SLR, ASLBP 22-973-01-SLR-BD01, RAS 56286 | |
| Download: ML21299A340 (8) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: ) Docket Nos. 50-269-SLR
) 50-270-SLR and DUKE ENERGY CAROLINAS, LLC ) 50-287-SLR
)
(Oconee Nuclear Station, Units 1, 2, and 3) ) October 26, 2021
)
APPLICANTS ANSWER OPPOSING PETITIONERS MOTION FOR EXTENSION OF TIME TO REPLY I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the U.S. Nuclear Regulatory Commission (NRC)
Atomic Safety and Licensing Boards (Board) order of October 13, 2021 (Initial Prehearing Order),1 Duke Energy Carolinas, LLC (Duke or Applicant) submits this Answer in opposition to Beyond Nuclears and the Sierra Clubs (collectively, Petitioners) motion (Motion)2 to extend the deadline for filing a reply to Applicants and the NRC Staffs answers opposing (Oppositions)3 their Hearing Request and Petition for Waiver (Petition)4 in the above-captioned proceeding. Pursuant to 10 C.F.R. § 2.309(i)(2) and the Initial Prehearing Order, Petitioners are required to file any reply pleading no later than 7 days after the 1
Licensing Board Memorandum and Order (Initial Prehearing Order) at 5 (Oct. 13, 2021) (ML21286A586).
2 Petitioners Partially Unopposed Motion for Extension of Time to Reply to Oppositions to Hearing Request and Waiver Petition (Oct. 26, 2021) (Motion).
3 Applicants Answer Opposing Request for Hearing, Petition to Intervene, and Petition for Waiver Submitted by Beyond Nuclear and Sierra Club (Oct. 22, 2021) (ML21295A718) (Applicants Opposition); NRC Staffs Answer Opposing Beyond Nuclear and the Sierra Clubs Hearing Request (Oct. 22, 2021) (ML21295A755).
4 Hearing Request and Petition to Intervene by Beyond Nuclear and Sierra Club and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.53(c)(3)(ii)(L), 51.71(d), 51.95(c)(1), and 10 C.F.R. Part 51 Subpart A, Appendix B, Table B-1 to Allow Consideration of Category 1 NEPA Issues (Sept. 27, 2021) (Package ML21270A249)
(Petition).
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Oppositions were filedi.e., by October 29, 2021.5 The Motion asks the Board to double the time provided in NRC regulations and the Initial Prehearing Order, permitting Petitioners 14 days to file their replyi.e., by November 5, 2021.6 Petitioners claim good cause exists for this extension for four reasons, including their desire to re-check the accuracy of their experts assertions and to re-consider the legal arguments applicable to this proceeding.
As discussed below, none of these reasons remotely satisfy the good cause threshold applicable to adjudicatory extension requests. Accordingly, the Board should deny the Motion, just as the Commission did with a similar request from Petitioners and their counsel in another recent proceeding.7 II. PETITIONERS FAIL TO ESTABLISH GOOD CAUSE 10 C.F.R. § 2.307(a) allows extensions upon a demonstration of good cause. The Commission has explained that, in the context of adjudicatory filings, good cause requires a showing of unavoidable and extreme circumstances.8 As demonstrated below, no such circumstances are present here.
5 Initial Prehearing Order at 2 (establishing October 29, 2021 as the deadline); 10 C.F.R. § 2.309(i)(2) (The reply must be filed within 7 days after service of th[e] answer) (the Oppositions were served on October 22, 2021, see supra note 3; and 7 days later is October 29, 2021).
6 Motion at 2.
7 Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), Order (Denying Extension Request) (Dec. 9, 2020) (unpublished) (ML20344A438).
8 See, e.g., Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998);
Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342 (1998),
petition for review denied sub nom., Natl Whistleblower Ctr. v. NRC, 208 F.3d 256, 264 (D.C. Cir. 2000)
(holding that the Commission did not abuse its discretion in adopting the unavoidable and extreme circumstances test to give content to the good cause standard in ruling on extension requests). See also Tenn. Valley Auth. (Bellefonte Nuclear Plant, Units 1 & 2), CLI-10-26, 72 NRC 474, 476 (2010) (applying the unavoidable and extreme circumstances standard to a petitioners appeal of a Licensing Board decision denying intervention); In re Bjella, 806 F.2d 211, 216 (10th Cir. 1986) (en banc) (There is no significant distinction between a showing of good cause and a showing of unusual or extreme circumstances.).
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A. The Need to Address More Than One Legal Standard In a Reply Pleading Is Not an Unavoidable and Extreme Circumstance Petitioners note that their Petition includes both a hearing request and a petition for a waiver, each of which are governed by different legal standards, each with multiple sub-criteria.9 For this reason, Petitioners claim that drafting a reply will be a time-consuming process for which the standard seven-day period is insufficient.10 However, there is nothing uniquemuch less extremeabout the routine process of addressing multiple legal standards in a single pleading. Indeed, Petitioners and their counsel filed a similar combined petition (i.e., including both a hearing request and a petition for waiver) in a different NRC proceeding less than a year ago, and yet were able to complete the unremarkable task of filing a timely reply addressing the multiple criteria applicable thereto.11 Clearly, the need to address multiple legal standards in an adjudicatory pleading does not constitute an unavoidable and extreme circumstance warranting an extension.12 B. Petitioners Failure to Fact-Check Their Petition Before Filing It Does Not Constitute an Unavoidable and Extreme Circumstance Warranting a Belated Opportunity to Do So Now Petitioners also claim that they need additional time to review and respond to certain factual assertions regarding the history of safety regulation at Oconee[.]13 More specifically, Petitioners reference the portions of Applicants Opposition titled Brief History of CLB 9
Motion at 2.
10 Id.
11 See Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), Reply by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia to Oppositions to Hearing Request and Waiver Petition (Jan. 15, 2021)
(ML21015A605).
12 Additionally, to the extent Petitioners assert that the standard seven-day period for reply pleadings is per se insufficient, this argument impermissibly challenges the NRCs codified conclusion in 10 C.F.R. § 2.309(i)(2) that seven days is sufficient. See 10 C.F.R. § 2.335 (prohibiting generic challenges to NRC regulations in individual adjudicatory proceedings absent a waiver).
13 Motion at 2.
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Flooding Matters Governed by 10 C.F.R. Part 50 at Oconee from 2008 to Present and Significant Factual Errors, Omissions, and Mischaracterizations in the Mitman Declaration and the Petition.14 However, Petitioners fail to explain why this presents a circumstance that is somehow unavoidable and extreme. Petitioners had an opportunityand indeed an iron-clad obligationto examine the relevant regulatory history and to check the veracity of their own claims before filing their Petition.15 Their failure to do so at the outset does not justify an untimely opportunity to do so nowparticularly as part of a reply. Ultimately, Petitioners belated effort to carefully review the relevant public regulatory record cannot reasonably be viewed as an unavoidable and extreme circumstance warranting an extension.
C. Petitioners Failure to Address the Relationship Between NRC Safety Matters and NEPA In Their Petition Does Not Constitute an Unavoidable and Extreme Circumstance Warranting a Belated Opportunity to Do So Now Petitioners argue that Applicants and the NRC Staffs Oppositions raise significant legal issues about the relationship between NRC safety regulation and the National Environmental Policy Act (NEPA).16 Petitioners allege that an adequate discussion of these issues requires more thorough research, analysis and briefing than can be accomplished in seven days.17 Perhaps so. But Petitioners had a full and fair opportunityand the legal obligationto put forth an adequate discussion of this issue in their Petition, which clearly attempted to put this issue into controversy. Again, Petitioners offer no explanation as to how their failure to 14 Motion at 2 (citing Applicants Opposition at 10-19).
15 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481, 496 (2010) (petitioner has an iron-clad obligation to examine the publicly available documentary material . . . with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention.).
16 Motion at 3.
17 Id.
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address this obviously-relevant topic at the outset somehow constitutes an unavoidable and extreme circumstance warranting an extension of the reply deadline.
First, the relationship between NRC safety matters and NEPA lies at the heart of the Petition. Petitioners extensively discuss current licensing basis safety matters governed by Part 50 throughout their Petition and purport to raise NEPA-related contentions based on this information.18 Petitioners surely cannot claim surprise that the Oppositions squarely addressed this key topic. Second, Petitioners and their counsel were involved in another recent proceeding in which they similarly attempted to bootstrap a safety issue into an environmental contention.
In that proceeding, the relationship between NRC safety issues and NEPA requirements was extensively briefed, considered by the Board, and briefed again on appeal.19 Clearly, Petitioners and their counsel were aware of this information and had ample opportunity to consider such issues before filing their Petition. Their failure to do so at the outset does not warrant an untimely opportunity to do so now as part of a replyand certainly is not an unavoidable and extreme circumstance.
D. Counsels Workload Fails to Constitute an Unavoidable and Extreme Circumstance Finally, Petitioners argue that competing workload priorities of their counsel justify their extension request.20 More specifically, Petitioners cite (1) counsels need to file one pleading in 18 See generally Petition.
19 See generally Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), LBP-21-04, 93 NRC __ (Mar.
29, 2021) (slip op.) (ML21088A364) as modified by the Licensing Boards Memorandum and Order (Correcting Text of Decision) (Mar. 31, 2021) (ML21090A099); Va. Elec. & Power Co., Brief on Appeal of LBP-21-04 by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (Apr. 23, 2021)
(ML21113A317); Va. Elec. & Power Co., Applicants Brief in Opposition to Appeal of LBP-21-4 by Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginia (May 18, 2021) (ML21138A894); Va. Elec. &
Power Co., NRC Staffs Brief in Response to Beyond Nuclear, Sierra Club, and Alliance for Progressive Virginias Appeal of LBP-21-4 (May 18, 2021) (ML21138A942).
20 Motion at 3-4.
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another proceeding that is due the week after the instant reply is due,21 and (2) counsels voluntary decision to submit comments to the NRC on a matter for which the comment opportunity period opened nearly four months ago.22 As with Petitioners three failed arguments above, these circumstances likewise are insufficient to demonstrate unavoidable and extreme circumstances.
First and foremost, the Commission has long recognized that multiple simultaneous proceedings can place burdens on parties and their counsel, but it has explicitly declined to grant extensions simply because going forward will prove difficult for litigants or their lawyers.23 The routine burdens associated with voluntary participation in adjudicatory proceedings are an unavoidable reality for all involved participants andas a matter of settled precedentdo not establish good cause for adjudicatory extension requests.24 More directly, Petitioners should be well aware that competing workload obligations of counsel are insufficient grounds for adjudicatory extensions, given that the Commission recently denied their request to extend a filing deadline on those very grounds.25 21 Motion at 3 (referencing a filing deadline of November 1).
22 Id. at 3-4 (citing Systematic Assessment for How the NRC Addresses Environmental Justice in Its Programs, Policies, and Activities, 86 Fed. Reg. 36,2307 [sic] (July 9, 2021)).
23 Consolidated Edison Co. of NY (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225, 229-30 (2001).
24 See also Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 400 (2001).
25 Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), Order (Denying Extension Request) (Dec. 9, 2020) (unpublished) (ML20344A438); see also Partially Unopposed Motion by Beyond Nuclear, Sierra Club, and Alliance for a Progressive Virginia for Extension of Deadline for Filing Hearing Requests (Nov. 23, 2020)
(ML20328A278) as modified by Corrected Partially Unopposed Motion by Beyond Nuclear, Sierra Club, and Alliance for a Progressive Virginia for Extension of Deadline for Filing Hearing Requests (Nov. 23, 2020)
(ML20344A291).
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The Commission has long demonstrated its commitment to efficiency in license renewal proceedings without the need for deadline extensions.26 More fundamentally, Petitioners failure to fulfill their iron-clad obligation to review relevant documents at the outset does not give rise to an opportunity to supplement their Petition, or to cure the multitude of defects identified by the Applicants and the NRC Staffs Oppositions, via reply pleadingmuch less, an extension of time for that purpose. Petitioners failures are textbook examples of avoidable circumstances.
III. CONCLUSION Petitioners have not demonstrated good cause for an extension of the deadline to file their reply pleading. Therefore, the Board should deny the Motion.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) Executed in Accord with 10 C.F.R. § 2.304(d)
Tracey M. LeRoy, Esq. Paul M. Bessette, Esq.
DUKE ENERGY CORPORATION MORGAN, LEWIS & BOCKIUS LLP 4720 Piedmont Row Drive 1111 Pennsylvania Avenue, N.W.
Charlotte, NC 28210 Washington, D.C. 20004 (704) 382-8317 (202) 739-5796 tracey.leroy@duke-energy.com paul.bessette@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 Duke Energy Carolinas, LLC Dated in Washington, DC this 26th day of October 2021 26 Natl Whistleblower Ctr., 208 F.3d at 264 (The NRC has expressed a clear and reasonable goal of expediting nuclear power plant license renewal proceedings, both to accommodate the large number of cases to be heard and to ensure fair processes for applicants and would-be intervenors alike.). See also Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-277, 1 NRC 539, 550-52 (1975) (early resolution of contested issues, not the convenience of the litigants, is in the public interest).
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: ) Docket Nos. 50-269-SLR
) 50-270-SLR and DUKE ENERGY CAROLINAS, LLC ) 50-287-SLR
)
(Oconee Nuclear Station, Units 1, 2, and 3) ) October 26, 2021
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Applicants Answer Opposing Petitioners Motion for Extension of Time to Reply was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
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 Duke Energy Carolinas, LLC DB1/ 125169682