ML23044A481
| ML23044A481 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 02/13/2023 |
| From: | Bollwerk G Atomic Safety and Licensing Board Panel |
| To: | Sue Abreu, Gary Arnold, Bollwerk G Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| Download: ML23044A481 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before the Licensing Board:
G. Paul Bollwerk, III, Chair Dr. Gary S. Arnold Dr. Sue H. Abreu In the Matter of VISTRA OPERATIONS COMPANY, LLC (Comanche Peak Nuclear Power Plant, Units 1 and 2)
Docket Nos. 50-445-LR 50-446-LR ASLBP No. 23-978-01-LR-BD01 February 13, 2023 MEMORANDUM AND ORDER (Granting in Part and Denying in Part Joint Motion to Adjust Briefing Schedule)
In this proceeding concerning the October 2022 Vistra Operations Company, LLC (Vistra) application for a twenty-year extension of its 10 C.F.R. Part 50 operating licenses for its Comanche Peak Nuclear Power Plant, Units 1 and 2, before the Licensing Board is a February 10, 2023 joint motion filed by Vistra and petitioner Citizens for Fair Utility Regulation (CFUR) to adjust the initial briefing schedule for this proceeding.1 For the reasons set forth below, the motion is granted in part, in that the proposed initial briefing schedule will be adopted if there are additional intervention filings on or before the currently-applicable March 1, 2023 deadline for submitting hearing petitions contesting Vistras license renewal application. If, 1 See Joint Unopposed Motion of [Vistra] and [CFUR] to Adjust Briefing Schedule (Feb. 10, 2023) [hereinafter Joint Motion].
however, there are no additional intervention filings by that deadline, the motion is denied in part, in that an initial briefing schedule, as set forth below, that requires responsive filings by the current participants on a more expedited basis than was requested in the motion will be applicable.
As we outlined in our February 8, 2023 initial prehearing order,2 the Nuclear Regulatory Commission (NRC) published a December 1, 2022 Federal Register hearing opportunity notice regarding Vistras license extension request that established January 30, 2023, as the deadline for hearing requests.3 On January 30, however, in response to several requests, the Secretary of the Commission issued an order extending the hearing petition deadline until March 1, 2023, for five individuals.4 A February 6, 2023 order from the NRC Secretary then expanded that extension to encompass all potential intervention petition filers.5 Also on January 30, CFUR submitted its pending intervention petition,6 which was referred first to the Chief Administrative Judge and then to this Licensing Board.7 On February 8, we issued the above-referenced initial prehearing order that, in accordance with 10 C.F.R. § 2.309(i), established an initial briefing schedule for the CFUR hearing request under 2 See Licensing Board Memorandum and Order (Initial Prehearing Order) (Feb. 8, 2023) at 1-3 (unpublished) [hereinafter Initial Prehearing Order].
3 See [Vistra]; Comanche Peak Nuclear Power Plant, Units 1 and 2, 87 Fed. Reg. 73,798 (Dec. 1, 2022).
4 See Commission Order (Jan. 30, 2023) at 2 (unpublished).
5 See Commission Order (Feb. 6, 2023) at 2 (unpublished); see also In the Matter of
[Vistra] (Comanche Peak Nuclear Power Plant, Units 1 and 2; Order, 88 Fed. Reg 8481 (Feb. 9, 2023).
6 See Petition for Leave to Intervene and Request for Hearing of [CFUR] (Jan. 30, 2023).
7 See Memorandum from Brooke P. Clark, NRC Secretary, to E. Roy Hawkens, Chief Administrative Judge (Feb. 6, 2023); Establishment of Atomic Safety and Licensing Board;
[Vistra], 88 Fed. Reg __ (Feb. 14, 2023) (https://public-inspection.federalregister.gov/2023-03082.pdf).
which all participant submissions would be due by March 3, 2023. See Initial Prehearing Order at 2. At the same time, recognizing the Commissions hearing petition deadline extension, we provided a schedule for Vistra, CFUR, and the NRC staff to seek an adjustment of the initial briefing schedule. See id. at 3.
Availing themselves of this opportunity, on February 10 Vistra and CFUR submitted the joint motion currently before the Board, which the NRC Staff does not join but also does not oppose. See Joint Motion at 1 n.3. To avoid a disordered pleading sequence, the motion requests that the time for filing Vistra and NRC Staff answers to the CFUR petition and CFURs reply to those answers begin to run as of the extended March 1 hearing petition deadline. Joint Motion at 1, 3. Further, the motion sets forth a number of supporting grounds. These include (1) requiring answering participants Vistra and the NRC Staff to file their responses before the new hearing petition deadline would compel them to disclose (via publicly available pleadings) key arguments and legal strategy that could be leveraged in developing additional hearing requests, thereby providing an unfair advantage not provided to other participants and prejudicing the answering parties; (2) imposing the initial prehearing order schedule would be contrary to the spirit of the Commissions codified procedural rules, which purposefully contemplate logically-ordered adjudicatory proceedings in which petitions are filed before answers are due; (3) the current circumstance supports a filing extension in that it was unavoidable because it arose from the [two Commission orders] granting extension requests as to which Movants were not afforded prior consultation, service, or opportunity to respond; and (4) in analogous circumstances, the NRC Secretary has granted extensions. Id. at 3-4.
Under the circumstances, and particularly given petitioner CFURs agreement to the motion, if there are further intervention filings by the March 1, 2023 extended filing deadline, we adopt the requested extension for answering participants Vistra and the NRC Staff to submit
their responses to the CFUR petition, as set forth in Schedule A outlined below. Under Schedule A, the responsive briefing schedule would be the same for the CFUR petition and any other intervention submissions filed by March 1, 2023.
If, however, no additional hearing petitions are submitted by the March 1, 2023 extended filing deadline, the asserted premature disclosure prejudice to the answering participants under the existing schedule and the concern about maintaining a single, sequential responsive filing process for multiple filings seemingly will not accrue. Because the answering participants need not address any intervention request other than the CFUR petition, which they will have possessed since January 30, 2023, in that circumstance we decline to adopt the joint motions proposed schedule and instead establish an alternative Schedule B that provides a shortened time for the answering participants responsive filings.
The applicable schedules thus are as follows:
Schedule A If by March 1, 2023, additional hearing petitions contesting the Vistra operating license extension application are submitted, the following schedule for responsive filings shall apply regarding all hearing petitions:
Vistra and NRC Staff Answers On or before Monday, March 27, 2023 Petitioner Replies to Vistra/NRC Answers On or before Monday, April 3, 2023.
Schedule B If by March 1, 2023, no additional hearing petitions contesting the Vistra operating license extension application are submitted,8 the following schedule for responsive filings shall apply regarding the CFUR hearing request:
Vistra and NRC Staff Answers On or before Wednesday, March 8, 2023 CFUR Reply to Vistra/NRC Answers On or before Wednesday, March 15, 2023.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk, III, Chair ADMINISTRATIVE JUDGE Rockville, Maryland February 13, 2023 8 In this regard, if on or before March 1, 2023, CFUR amends or otherwise revises its January 30, 2023 hearing petition, Schedule A will apply to the submission of responsive filings by the answering participants and CFUR.
/RA/
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
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VISTRA OPERATIONS COMPANY, LLC
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Docket Nos. 50-445-LR
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50-446-LR (Comanche Peak Nuclear Power Plant,
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Units 1 and 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Grating in Part and Denying in Part Joint Motion to Adjust Briefing Schedule) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 G. Paul Bollwerk, Chairman Dr. Sue H. Abreu, Administrative Judge Dr. Gary S. Arnold, Administrative Judge Noel M. Johnson, Law Clerk Emily G. Newman, Law Clerk Allison R. Wood, Law Clerk E-mail: Paul.Bollwerk@nrc.gov Sue.Abreu@nrc.gov Gary.Arnold@nrc.gov Noel.Johnson@nrc.gov Emily.Newman@nrc.gov Allison.Wood@nrc.goc U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Marcia Carpentier Ethan P. Licon David E. Roth Susan H. Vrahoretis E-mail: Marcia.Carpentier@nrc.gov Ethan.Licon@nrc.gov David.Roth@nrc.gov Susan.Vrahoretis@nrc.gov Counsel for Vistra Operations Company, LLC Morgan, Lewis & Bockius, LLC 1111 Pennsylvania Ave NW Washington, DC 20004 Ryan K. Lighty Paul Bessette Timothy Matthews E-mail: ryan.lighty@morganlewis.com paul.bessette@morganlewis.com timothy.matthews@morganlewis.com
Vistra Operations Company, LLC (Comanche Peak Nuclear Power Plant, Units 1 and 2)
MEMORANDUM AND ORDER (Grating in Part and Denying in Part Joint Motion to Adjust Briefing Schedule) 2 Counsel for Citizens for Fair Utility Regulation W. David Griggs 1925 Belt Line Road Suite 552 Carrollton, TX 75006 E-mail: david@dgriggs.com Office of the Secretary of the Commission Dated at Rockville, Maryland, this 13th day of February 2023.
Clara I. Sola Digitally signed by Clara I. Sola Date: 2023.02.13 15:27:03 -05'00'