ML23088A151

Memorandum and Order (Initial Prehearing Order)

ML23088A151
Person / Time
Site:	Diablo Canyon
Issue date:	03/29/2023
From:	Hawkens E Atomic Safety and Licensing Board Panel
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 56684, 72-26-ISFSI-MLR
Download: ML23088A151 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before the Licensing Board:

E. Roy Hawkens, Chair Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Independent Spent Fuel Storage Installation)

Docket No. 72-26-ISFSI-MLR ASLBP No. 23-979-01-ISFSI-MLR-BD01 March 29, 2023 MEMORANDUM AND ORDER (Initial Prehearing Order)

This proceeding concerns a hearing request on behalf of San Luis Obispo Mothers for Peace (SLOMFP) challenging an application from Pacific Gas and Electric Company (PG&E) to renew its license to store spent fuel in the Diablo Canyon Independent Spent Fuel Storage Installation (ISFSI) for an additional 40 years beyond the current license expiration date of March 22, 2024. On January 10, 2023, a notice was published in the Federal Register announcing the opportunity to request a hearing.1 SLOMFP submitted a hearing request by e-mail on March 13, 2023, and again through the agencys E-Filing system on March 14, 2023.2

1 See 88 Fed. Reg. 1431 (Jan. 10, 2023).

2 See [SLOMFP] Hearing Request and Petition to Intervene in License Renewal Proceeding for Diablo Canyon [Independent] Spent Fuel Storage Installation (Mar. 13, 2023). The petition was timely filed on March 13 via e-mail but was filed a day late in the Electronic Hearing Docket (EHD) on March 14. The petition was not timely filed in the EHD because SLOMFP failed to inform the Office of the Secretary (SECY) at least 10 days prior to the filing deadline that it intended to file a petition, as suggested in the Federal Register Notice. See 88 Fed. Reg. at 1432. SECY therefore did not have the necessary information to create an electronic docket for this proceeding on March 13. See E-mail from SECY to Diane Curran (Mar. 14, 2023).

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On March 20, 2023, this Licensing Board was established to rule on standing and contention admissibility matters and to preside at any hearing.3 We accept the petitioners March 13 e-mail filing as timely; however, we remind the petitioner that, to ensure future timely EHD filings, it should endeavor to inform SECY in advance of its intent to petition to intervene. See supra note 2.

Regarding the conduct of this proceeding, the following directives shall apply.

I. BRIEFING SCHEDULE Pursuant to 10 C.F.R. § 2.309(i), the answers of PG&E and the Nuclear Regulatory Commission (NRC) Staff to the petition are due by Friday, April 7, 2023. Any reply to those answers is due by Friday, April 14, 2023.4 II. ADMINISTRATIVE MATTERS A.

Notice of Appearance If they have not already done so, on or before Monday, April 3, 2023, each counsel shall file a notice of appearance complying with the requirements of 10 C.F.R. § 2.314(b) via the agencys E-Filing system.5 Each notice of appearance should include a business address, a telephone number, and an e-mail address for the counsel or representative.

B.

Administrative Prescriptions for Pleadings

1.

All pleadings shall be double spaced.

2.

Absent preapproval by this Board, any motion filed after the date of this memorandum and order and any related responsive pleading shall not exceed ten pages in

3 See Establishment of Atomic Safety and Licensing Board (Mar. 20, 2023).

4 If answers to the petition are filed on different days, the petitioner may nevertheless file a single reply on or before April 14, 2023.

5 For assistance with the NRCs E-Filing system, a participant can contact the Electronic Filing Helpdesk by visiting its webpage (https://www.nrc.gov/site-help/e-submittals/contact-us-eie.html); calling (866) 672-7640 between the hours of 9:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday (excluding federal government holidays), or send an e-mail to https://www.nrc.gov/site-help/e-submittals/contact-us-eie.html.

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length (including the signature page, but excluding the certificate of service and any attachments/enclosures). Any request for preapproval to exceed this page limitation requirement shall be submitted in writing no less than three business days prior to the time the motion or responsive pleading is due to be filed. The request must (1) indicate whether the request is opposed or supported by the other participants to the proceeding;6 (2) provide a good faith estimate of the number of additional pages that will be filed; and (3) demonstrate good cause for being permitted to exceed the page limitation.

C.

Replies to an Answer to a Motion Except in instances involving a motion to file a new/amended contention, a participant to this proceeding must request permission to file a reply to an answer to a motion.7 A request for Board approval to file a reply shall be submitted in writing no less than three business days prior to the time the reply will be filed.8 A request to file a reply must (1) indicate whether the request is opposed or supported by the other participants to the proceeding; and (2) demonstrate that compelling circumstances exist for permitting the reply to be filed.9

6 See 10 C.F.R. § 2.323(b). Pursuant to section 2.323(b), all motions require a certification by the moving participant, or the attorney or representative for the moving participant, that a sincere effort has been made to contact the other participants in the proceeding and resolve the matters raised by the motion. If the consultation mandated by section 2.323(b) is initiated within a reasonable time and the participants believe that all or part of the matter may be resolved amicably if additional time is provided for filing the motion, the participants are encouraged to file a joint motion requesting such a time extension.

7 See 10 C.F.R. § 2.323(c).

8 Although the agencys rules do not provide for replies, the Board will presume that for a reply to be timely, it would have to be filed within seven days of the date of service of the answer it is intended to address. Cf. 10 C.F.R. § 2.309(i)(2).

9 Section 2.323(c) indicates that compelling circumstances might be shown in an instance when the moving participant demonstrates that it could not reasonably have anticipated the arguments to which it seeks to reply.

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D.

Motions for Extension of Time A motion for an extension of time shall be submitted in writing at least three business days before the due date for the pleading or other submission for which an extension is sought.10 A motion for extension of time must (1) indicate whether the request is opposed or supported by the other participants to this proceeding; and (2) demonstrate appropriate cause that supports permitting the extension.

E.

Opposing a Request to Exceed the Page Limitation, to File a Reply, or to Extend the Time for Filing a Pleading Any opposition to a request to exceed the page limit, to file a reply, or to extend the time for filing a pleading shall be filed no later than the next business day after the filing of the request.

F.

Attachments/Enclosures to Pleadings For future filings, if a participant proffers a pleading that has additional documents appended to it, these items should be referred to as attachments or enclosures (not exhibits),11 with a separate alpha or numeric designation given to each appended document (e.g.,

Attachment A, or Enclosure 1), either on the first page of the appended document or on a cover/divider sheet in front of the appended document. Attachments or enclosures to a motion

10 Unless some other time is specified in the agencys rules or by the Board, motions (other than summary disposition motions) generally are due within ten days after the occurrence or circumstance from which the motion arises, with any answer to that motion due within ten days of service of the motion. See 10 C.F.R. § 2.323(a)(2), (c). An exception to this ten-day filing period is a motion seeking the admission of new/amended contentions. See 10 C.F.R.

§ 2.309(f)(2); see also id. § 2.323(a)(1) (motions for new/amended contentions not subject to section 2.323 requirements). For such a motion to be considered timely under 10 C.F.R.

§ 2.309(c)(1)(iii), the motion (and the accompanying new/amended contention) should be filed within 30 days of the date upon which the information that is the basis of the motion becomes available.

11 The label exhibit should be reserved for use as a designation for those items that are submitted, whether by prefiling or at the time of an evidentiary hearing, as potential materials a party will seek to have identified for inclusion in the evidentiary record of the proceeding. See 10 C.F.R. § 2.304(g).

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and any related responsive pleadings are not subject to the page limitation set forth in section II.B.2 above but should be submitted via the agencys E-Filing system as part of a single electronic file consisting of the pleading, the certificate of service, and all the associated attachments or enclosures.12 G.

Filing Date on Pleadings The Board requests that the first page of each pleading submitted by a participant include the pleadings filing date in the upper right-hand corner or as part of the caption.

III. INITIAL PREHEARING CONFERENCE The Board has not determined whether it will hold an initial prehearing conference to hear oral argument regarding standing and contention admissibility. The Board will make that determination after the case is fully briefed. If the Board determines that an oral argument is warranted, the Boards law clerk, Noel Johnson (noel.johnson@nrc.gov), will coordinate scheduling with the parties/participants.

12 In accordance with the agencys electronic submission guidance, multiple electronic files should be used for pleadings or submissions with attachments or enclosures only if the filing exceeds 500 megabytes in size. See Guidance for Electronic Submissions to the NRC (Rev. 9),

at 6 (Aug. 6, 2021), https://www.nrc.gov/docs/ML13031A056.pdf.

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It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD E. Roy Hawkens, Chair ADMINISTRATIVE JUDGE Rockville, Maryland March 29, 2023

/RA/

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

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PACIFIC GAS AND ELECTRIC COMPANY

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Docket No. 72-26-ISFSI-MLR

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(Diablo Canyon Independent Spent Fuel

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Storage Installation)

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Initial Prehearing Order) 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 E. Roy Hawkens, Chairman Nicholas G. Trikouros, 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: Roy.Hawkens@nrc.gov Nicholas.Trikouros@nrc.gov Gary.Arnold@nrc.gov Noel.Johnson@nrc.gov Emily.Newman@nrc.gov Allison.Wood@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 Washington, DC 20555-0001 Adam S. Gendelman Catherine E. Kanatas Mauri T. Lemoncelli E-mail: Adam.Gendelman@nrc.gov Catherine.Kanatas@nrc.gov Mauri.Lemoncelli@nrc.gov Counsel for Pacific Gas and Electric Company 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

Pacific Gas and Electric Company (Diablo Canyon Independent Spent Fuel Storage Installation)

MEMORANDUM AND ORDER (Initial Prehearing Order) 2 Counsel for San Luis Obispo Mothers for Peace Hamon, Curran, Spielberg, & Eisenberg, LLP 1725 DeSales Street, N.W.

Suite 500 Washington, DC 20036 Diane Curran E-mail: dcurran@harmoncurran.com Office of the Secretary of the Commission Dated at Rockville, Maryland, This 29th day of March 2023.

Clara I.

Sola Digitally signed by Clara I. Sola Date: 2023.03.29 12:06:14 -04'00'