ML23216A182
| ML23216A182 | |
| Person / Time | |
|---|---|
| Site: | South Texas, 07201041  |
| Issue date: | 08/04/2023 |
| From: | Doris Lewis Law Office of David R. Lewis, NRG South Texas, LP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 56739, 50-498-LT, 50-499-LT, 72-1041-LT | |
| Download: ML23216A182 (0) | |
Text
August 4, 2023 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
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South Texas Nuclear Operating Company
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Docket Nos. 50-498-LT NRG South Texas LP and its parent companies, )
50-499-LT and Constellation Energy Generation, LLC
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72-1041-LT
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(South Texas Project, Units 1 and 2)
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NRCs Answer Opposing the Motion by the City of San Antonio and the City of Austin to Dismiss or Suspend License Transfer Proceeding I.
INTRODUCTION Consistent with its general policy... to expedite... adjudicatory proceedings, particularly in the time-sensitive license transfer area,1 the Commission should deny the meritless, and at times misleading, motions2 of the City of San Antonio and the City of Austin (Cities) seeking to dismiss or suspend the license transfer application relating to the acquisition by Constellation Energy Generation, LLC (Constellation) of NRG South Texas,3 which owns a 44 percent interest in the South Texas Project (STP).
1 See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-02-16, 55 N.R.C. 317, 334 (2002); see also note 6 infra.
2 Motion to Dismiss License Transfer Application, Immediately Stay NRC Proceedings, and Petition to Intervene City of San Antonio, Texas Acting By and Through The City Public Service Board of San Antonio and the City of Austin, Texas (July 31, 2023) (Motion). This Answer responds only to the motions in the Cities filing. NRG South Texas LP (NRG South Texas) and its parent companies (collectively, NRG), who are among the applicants for NRC consent in this license transfer proceeding, will respond to the petition to intervene and request for hearing within the time allotted under 10 C.F.R. § 2.309(i).
3 South Texas Units 1 and 2, Application for Order Approving the Indirect Transfer of Control of Licenses (June 12, 2023) (ADAMS Accession No. ML23163A176). NRG South Texas is a licensed owner, holding a 44-percent undivided ownership interest in the South Texas Project, as well as interests in nuclear decommissioning trust funds and various contracts related to investment and management of such trust funds. The Cities are licensed co-owners of the South Texas Project. STP Nuclear Operating Company (STPNOC) is the licensed operator of the facility.
2 The transaction between Constellation and NRG must close by the end of the year to avoid considerable adverse tax consequences. Through the Motion, the Cities seek to prevent NRC review from proceeding on a schedule that would allow a 2023 closing and thereby pressure NRG to accede to a right of first refusal that is inapplicable to this transaction. To acquire undue leverage and extract commercial concessions, the Cities are attempting to use the NRC to obtain a de facto stay of the transaction - a stay they have chosen not to seek in the court where their contractual dispute currently and appropriately resides.4 The NRC should not allow its process to be used in such a manner. The Cities have adequate means to protect their interests in state court, and there is simply no reason for the NRC to embroil itself in the commercial dispute.
The Commission considers the suspension of a proceeding to be a drastic action that is not warranted absent immediate threats to public health and safety, or other compelling reason.5 Thus, in Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 N.R.C. 151, 173-74 (2000), the Commission denied a request to suspend license transfer proceedings, explaining [w]e see no immediate threats to public health and safety requiring such a drastic course of action.
There is no compelling reason to grant the Cities request to suspend this license transfer proceeding to avoid expending agency resources pending a contractual dispute. It flies in the face of the Commissions policy to expedite... adjudicatory proceedings, particularly in the time-sensitive license transfer area.6 It further contravenes the Commissions usual practice of 4 See Motion, Exhibits J and M.
5 Union Electric Co. (Callaway Plant, Unit 2), CLI-11-5, 74 N.R.C. 141, 158 (2011), quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 N.R.C. 461, 484 (2008).
6 See Diablo Canyon, CLI-02-16, 55 N.R.C. at 334 (emphasis added); see also Final Rule:
3 completing our license transfer reviews promptly despite the pendency of related matters elsewhere.7 Indeed, the NRCs rules require the NRC Staff to complete its review of a license transfer application notwithstanding any pending hearing request,8 and it would be anomalous to interrupt that review on the basis of litigation elsewhere.
II.
THE CITIES MOTION TO DISMISS THE APPLICATION IS BASELESS AND MISREPRESENTS THE AGREEMENTS GOVERNING THE AUTHORITY OF STPNOC AND THE OWNERS COMMITTEE Misrepresenting the authority of STPNOC and the STP Owners Committee, the Cities seek dismissal of the Application because they allege it was submitted without approval of the STP Owners Committee.9 In fact, no approval by the Owners Committee was required.
The Cities assert:
Pursuant to the Participation Agreement, [t]he Owners Committee shall...
[a]pprove and join, where necessary, any application or amended application to the Nuclear Regulatory Commission or other regulatory authority.10 In fact, this Section of the Participation Agreement states:
[The Owners Committee shall] [a]pprove and join, where necessary, any application or amended application to the Nuclear Regulatory Commission or other regulatory authority as appropriate to provide for the reliable, safe and efficient operation of the South Texas Project by OPCO pursuant to the Operating Agreement.11 Read in its entirety, Section 9.3.6 does not require Owners Committee approval before any application may be filed at the NRC. Rather, it prohibits the Owners Committee from Streamlined Hearing Process for NRC Approval of License Transfers, 63 Fed. Reg. 66,721, 66,721-22 (Dec. 3, 1998); Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 24 (1998).
7 Diablo Canyon, CLI-02-16, 55 N.R.C. at 334 (emphasis added).
8 10 C.F.R. § 2.1316(a).
9 Motion at 6-7.
10 Motion at 5, citing Participation Agreement (Exhibit A to the Motion), Section 9.3.6.
11 Participation Agreement, Sections 9.3 and 9.3.6 (emphasis added).
4 withholding its approval of any application that provides for Opcos (STPNOC) reliable, safe and efficient operation of the nuclear plant.12 Similarly, the Cities further mischaracterize STPNOCs authority. Citing the Operating Agreement, the Cities assert:
The Operating Agreement authorizes STPNOC to act on behalf of Participants in all matters related to NRC licensing of the South Texas Project... in accordance with... Participants Direction, which is expressed in the form of Owners Committee Approval.13 Once again, reading the entirety of the quoted Operating Agreement provision reveals a very different meaning:
Opco shall act on behalf of Participants in all matters related to NRC licensing of the South Texas Project and, on behalf of the Participants, shall Operate, and make Capital Improvements at, the South Texas Project in accordance with the Operating Licenses and applicable laws and regulatory requirements and Participants Direction from time to time; provided that Opco shall have sole authority, as the Operator of the South Texas Project pursuant to the Operating Licenses, to make all decisions to protect the public health and safety as required by the Operating Licenses and applicable laws and regulations and as are necessary to comply with applicable laws and regulations.14 As edited by Cities, the language suggests that STPNOC may only act upon Participants Direction. However, as the text omitted by the Cities shows, STPNOC is given broad authority to act on behalf of the Participants subject to the modest requirement that when, from time to time, the Participants provide direction, STPNOC is to act consistent with that direction.
Further, when the entire provision is presented, the reference to Participants Direction pertains only to STPNOCs operation of the facility and making of capital improvements, not to matters 12 In any event, the Participants rights in the Participation Agreement cannot override STPNOCs unequivocal authority over compliance with applicable law and regulations pursuant to the Operating Agreement, as explained in greater detail below.
13 Motion at 4-5, citing Operating Agreement (Exhibit B to the Motion), Sections 1.5 and 2.1.
14 Operating Agreement, Section 2.1.
5 of NRC licensing. In fact, the provision provides STPNOC with the sole authority to make decisions necessary to comply with applicable laws and regulations, such as those requiring NRC consent to an indirect transfer of control.
In addition, the Cities err in asserting that Participants Direction is expressed in the form of Owners Committee approval.15 Under Section 1.5 of the Operating Agreement, direction and approval are distinct actions.
Moreover, the Cities ignore Section 9.3 of the Operating Agreement, which provides:
Assistance to Individual
Participants:
At the request of any Participant from time to time, Opco shall provide such Participant with data and assistance as may be requested by such Participant to enable such Participant to satisfactorily discharge, as co-owner of the South Texas Project, such Participants responsibilities with regard to the South Texas Project, including such Participants responsibilities to its security holders, to regulatory authorities and others.16 This provision obligates STPNOC to assist NRG South Texas, as a Participant, to discharge its obligation to the NRC to obtain prior written consent to the indirect license transfer associated with its transaction with Constellation. This requirement for STPNOCs assistance is invoked by a request of an individual Participant and does not require any involvement of or approval by the Owners Committee.
Indeed, correspondence between the Cities and STPNOC prior to submittal of the license transfer application shows that the Cities novel interpretations of the Participation and Operating Agreements are fictions created for this Motion. In that correspondence, the Cities objected to STPNOC communicating with Constellation, but made no assertion that the license transfer 15 Motion at 4-5.
16 Operating Agreement, Section 9.3.
6 application required Owners Committee approval.17 Interpreting these Agreements to require Owners Committee approval would give the Cities veto authority over any license transfer. Such an interpretation would be inconsistent with the Participation Agreement, which allows certain transfers of a Participants ownership share without the need for prior written consent of any other Participant.18 In sum, there was no requirement for Owners Committee approval before the license transfer application was submitted, and STPNOC had all the requisite authority it needed to join in the license transfer application. Indeed, the Participation Agreement obligated STPNOC to assist NRG South Texas in submitting its application and ensure that the NRC license transfer requirements were met.
Further, nothing would be accomplished by requiring the application to be resubmitted without STPNOCs participation, as the Cities suggest.19 Both NRG and Constellation are identified as applicants in the license transfer application, and the application includes an affirmation from Constellation attesting to its accuracy. Requiring a resubmission would accomplish only undue delay and poor practice.20 17 Letter from CPS Energy and Austin to STPNOC, Re: Announced Sale of NRG Energy Inc.s Ownership Stake in the South Texas Project (June 2, 2023), attached as Exhibit G to the Motion.
18 Participation Agreement, Section 16.3.
19 Motion at 3.
20 Having the licensed operator submit a license transfer application on behalf of a licensed owner involves experienced and expert licensing staff in its preparation and submission and applies reviews by the operating organization to ensure completeness, accuracy, and regulatory compliance. The Commission should not deter such involvement.
7 III.
THE CITIES MOTION TO SUSPEND IS UNJUSTIFIED AND UNSUPPORTED BY NRC PRECEDENT, AND WOULD SIGNIFICANTLY DELAY THE TRANSACTION CAUSING SIGNIFICANT COMMERCIAL HARM The Cities characterize their Motion in places as seeking a stay,21 but the NRC rules do not provide for the stay of the NRCs review of an application. Nor have the Cities addressed the factors that the Commission considers in determining whether a stay of a decision is warranted.22 For example, they make no showing that they would be irreparably injured by allowing NRC Staff review to continue. Instead, the Cities rely solely on the Commissions decision in Nine Mile Point23 and the argument that agency resources should not be expended because the proceeding might become moot in the future. The Cities reliance on Nine Mile Point is misplaced. Nine Mile Point is readily distinguishable and does not support suspension under the circumstances presented here.
Nine Mile Point is inapplicable because (a) it involved the imminent exercise of co-owners rights of first refusal24 and (b) those rights of first refusal were undisputed.25 Under 21 Motion at 1 (caption), 7, 10, 12, 15.
22 See, e.g., 10 C.F.R. § 2.342(e).
23 Niagara Mohawk Power Corp. (Nine Mile Point, Unites 1 & 2), CLI-99-30, 50 N.R.C. 333 (1999).
24 Indeed, the Commission noted in Nine Mile Point that one of the co-owners had earlier that day issued a press release indicating that it was exercising its right of first refusal. Nine Mile Point, CLI-99-30, 50 N.R.C. at 343, n.8.
25 The Cities refer to arguments by the applicants in the Nine Mile Point proceeding that certain issues including the right of first refusal were contractual matters beyond the NRCs jurisdiction. See Motion at 12-13 & n.42. The arguments did not signal any dispute or litigation over the validity of the co-owners right of first refusal in that proceeding, and there is nothing in the Nine Mile Point decision suggesting that the Commission understood such rights to be in dispute. Rather, the Commission understood that [i]f any or all of the co-owners exercise their asserted right of first refusal under the Basic Agreement to buy Niagara Mohawks and New York Electric interest in Unit 2, some or all issues would be rendered moot. Nine Mile Point, CLI-99-30, 50 N.R.C. at 342 (emphasis added).
Nor is it apparent that the Commission in its Nine Mile Point decision suspended more than the adjudicatory proceeding. The request before the Commission in that case was for a deferral of the hearing. Nine Mile Point, CLI-99-30, 50 N.R.C. at 339 (Co-owners initially suggest that the instant hearing be deferred pending completion of an ongoing hearing in which the New York State Public Service Commission is currently considering whether the proposed transfer is in the public interest.).
8 those circumstances, the Commission found it sensible to suspend the proceeding part or all of which may well be rendered moot in the immediate future.26 In Diablo Canyon, however, the Commission declined to suspend the proceeding where [u]nlike Nine Mile Point, we do not here face imminent mootness.27 Here, there is no imminent mootness, because the Cities have no right of first refusal applicable to CEGs acquisition of the equity in NRG South Texas. The existing Participation Agreement28 among the co-owners of STP does not provide a right of first refusal in connection with the acquisition of the equity in a participant (a direct owner) under the agreement,29 and NRG South Texass parent companies are not party to, and therefore not bound by, that agreement. Further, even setting aside this fatal flaw, no right of first refusal would apply where, as here, Constellation is acquiring all the business of NRG South Texas.30 Further, subsequent pleadings indicate that parties did not believe there was any suspension of the Staffs review. See AmerGens Reply to the Response of Rochester Gas and Electric Corporation to AmerGens Request to Lift the Temporary Suspension (Jan. 24, 2000) at 9, n.4 (ADAMS Accession No. ML003677819); Motion of Rochester Gas and Electric Corporation to Strike the Unauthorized Reply of AmerGen Energy Company, LLC (Jan. 28, 2000) at 6, n.4 (ADAMS Accession No. ML14321A461).
26 Nine Mile Point, CLI-99-30, 50 N.R.C. at 343. See also Diablo Canyon, CLI-02-16, 55 N.R.C. at 334
([I]n Nine Mile Point, we did suspend a license transfer proceeding in view of contractual arrangements likely to render the proposed transfer moot in the near future. (emphasis added)).
27 Diablo Canyon, CLI-02-16, 55 N.R.C. at 334.
28 Exhibit A to the Motion.
29 Section 17.1 of the existing Participation Agreement provides:
Except as provided in Section 16 hereof, should any Participant, prior to the expiration of the period described in Section 17.12 hereof, desire to transfer its ownership, or any part thereof, in the [STP] to any person, entity or another Participant, ready, able and willing to acquire same, the Participant desiring to make such transfer shall obtain a written offer from the prospective transferee, setting forth the consideration and other terms of the offer, and each of the other Participants shall have the right of first refusal to acquire such interest on the basis of the following consideration NRG South Texas is the Participant under this Agreement, and it is not transferring any part of its ownership in the South Texas Project to another person.
30 Section 17.1 of the Participation Agreement applies [e]xcept as provided in Section 16; and Section 16.3 of the existing Participation Agreement provides that Each Participant shall have the right to
9 The Cities do not have any broader rights under a 2007 STP Supplemental Agreement between NRG South Texas and San Antonio in connection with the proposed (now canceled) development of additional nuclear generation (Units 3 and 4). The City of Austin was not even a party to the 2007 Supplemental Agreement and therefore can have no rights under it. Section 9.4 of the Supplemental Agreement stated that a Party desiring to dispose of its ownership interest shall have the obligations of a Participant under Section 17 of the Participation Agreement.31 As already discussed, Section 17 of the Participation Agreement does not apply to the acquisition of the equity in a participant and in any event does not apply where an entity is acquiring all the business of a participant. Nor does the last sentence of Section 9.4 referring [f]or avoidance of doubt to upstream transfer of corporate assets, stock, or by other means, modify any rights under the Participation Agreements. Section 29 of the Participation provides that it may not be amended except in a written agreement executed by all Participants, and the City of Austina Participant in STPwas not a party to and did not execute the 2007 Supplemental Agreement.
Similarly, Section 9.4 could not apply to this transaction involving NRG South Texass parent transfer or assign its ownership share without the need for prior written consent of any other Participant [t]o any entity acquiring all or substantially all of the electric utility properties and business, or of the electric generating facilities, of such Participant.
31 Section 9.4 of the Supplemental Agreement provides:
Except as provided in Sections 9.1, 9.2 or 9.3 hereof, should either Party hereto desire to Dispose of all or any part of its Ownership Interest, together with its related rights under the Participation Agreement, the Operating Agreement, and its related rights as an owner of the [STP] under any agreement of which all Participants are parties (as any of those may be amended), to any Person (including another Participant), ready, able and willing to acquire same, the Party desiring to make such Disposition shall have the obligations, and the other Party shall have the rights, of a Participant under Section 17 of the Participation Agreement with respect to the Ownership Interest sought to be transferred. For avoidance of doubt, the Party not disposing of its interest in the Existing Units or in the Project shall have a right of first refusal with respect to a Disposition of an interest in the [STP], whether that interest is transferred directly or as an upstream transfer of corporate assets, stock, or by other means, except as provided herein.
10 companies, because they also are not parties to the 2007 Supplemental Agreement and therefore cannot be bound by that agreement.
In any event, the Supplemental Agreement is no longer in force. It was terminated by an STP 3 & 4 Owners Agreement and by a Project Settlement Agreement in 2010; and while those 2010 Agreements stated that the rights and obligations of San Antonio and NRG South Texas under Section 9 of the Supplemental Agreement (which included the right of first refusal language) would survive,32 a subsequent agreement in 201833 provided that the rights of the Participants in connection with the South Texas Project shall be as they existed prior to the execution of the Supplemental Agreement, Project [Settlement] Agreement and [STP 3 & 4]
Owners Agreement...34 Thus, no surviving right under the 2007 Supplemental Agreement existed thereafter.
Because there is no applicable right of first refusal, the Cities assertion that they will make a final exercise decision by September 1, 202335 is irrelevant, because such an election will not moot the proceeding. Moreover, should such a highly contested election be made, its validity would still be subject to the ongoing litigation in Texas state court. The Cities make no claim that resolution of this litigation is imminent.
Further, even a suspension of the NRC Staffs review until September 1 would seriously jeopardize the applicants ability to close by the end of the year. Failing to close the transaction by the end of the year would have significant adverse tax consequences. In contrast, there is no apparent harm to the Cities if NRC Staff continues its review. The Cities have adequate 32 STP 3 & 4 Owners Agreement (Mar. 1, 2010), Section 5.11.
33 Assignment and Assumption Agreement and Mutual Release (Oct. 1, 2018). This agreement was entered into by NRG South Texas, the City of San Antonio, the City of Austin and the NINA Entities.
34 Id. at Recital F; see also id. at Sections 3 and 4.
35 Motion at 11.
11 remedies to protect their interests, including the ability to seek a stay of the closing, if warranted, in the ongoing state court litigation. For the reasons set forth above, that request for stay should be denied by the state court on the merits, but it is the state court that should make that merits decision. And, in any event, deferring NRC action is not necessary to afford Austin and CPS Energy time to evaluate their [claimed] ROFR,36 as NRC Staff review is not scheduled for completion until November, well after the September 1 date by which the Cities say they will make their election decisions. In short, suspending this proceeding would accomplish nothing other than to provide the Cities with undue commercial leverage.
Under these circumstances, NRC precedent demands denial of the Cities Motion. As the Commission stated in Diablo Canyon, [t]he Commission repeatedly has refused to suspend license transfer proceedings merely because related proceedings at the NRC, in state court, or in state or other federal agencies are pending.37 Our general policy is to expedite our adjudicatory proceedings, particularly in the time-sensitive license transfer area.38 36 Motion at 13, 15. Contrary to the Cities assertion (Motion at 13), affording time for co-owners to review rights of first refusal was not the underlying institutional logic for the Commissions decision in Nine Mile Point. The decision was based on the imminent elections that would moot the application.
37 Diablo Canyon, CLI-02-16, 55 N.R.C. at 334, citing Power Authority of the State of New York (James A. Fitzpatrick Nuclear Power Plant; Indian Point, Unit 3), CLI-00-22, 52 N.R.C. 266, 288-90 (2000)
(denying motions for stay pending decisions by New York courts, Internal Revenue Service, FERC, and New York State Department of Environmental Conservation); Consolidated Edison Co. of New York (Indian Point, Units 1 and 2), CLI-01-8, 53 N.R.C. 225, 228-30 (2001) (denying request to suspend proceeding until completion of Indian Point 3 license transfer and decision on 10 C.F.R. § 2.206 enforcement petition); Nine Mile Point, CLI-99-30, 50 N.R.C. at 343-44 (granting short suspension pending decisions on rights of first refusal, but denying further suspension until conclusion of New York Public Service Commission proceeding).
38 Diablo Canyon, CLI-02-16, 55 N.R.C. at 334 (emphasis added); see also note 6 supra.
12 The Cities incorrectly assert that in Nine Mile Point, the Commission disagreed that contractual disputes between co-owners in nuclear facilities ordinarily should be resolved by the appropriate state, local, or federal court.39 There is no such statement in Nine Mile Point.40 The Cities alternative argument that the Commission should suspend the proceeding until Applicants have provided a certification contemplated by 10 C.F.R. § 50.80(b)(2)41 is equally baseless. 10 C.F.R. § 50.80(b)(2) provides that [t]he Commission may require any person who submits an application for license pursuant to the provisions of this section to file a written consent from the existing licensee or a certified copy of an order or judgment of a court of competent jurisdiction attesting to the person's right (subject to the licensing requirements of the Act and these regulations) to possession of the facility or site involved. Here, NRG South Texas, the licensee authorized to possess its ownership interest in the facility, is one of the applicants for NRC consent to the indirect transfer of control associated with its acquisition by Constellation. Further, its parent companies who control and are selling their equity interests in NRG South Texas are parties to the Equity Purchase Agreement, a link to which was included in the Application. There is, therefore, no question concerning its consent to the license transfer application or Constellations acquisition of the equity in this licensee.
39 Motion at 13.
40 To the contrary Commission in Nine Mile Point iterated:
[T]the potential for an action by a state or local regulatory authority that will affect a facility seeking an NRC license normally is not sufficient reason for this agency to stay its licensing action pending the outcome of any proceeding to impose additional requirements.... Rather, it is the prerogative of the other governmental entity asserting jurisdiction to take whatever action it deems appropriate to enforce its regulatory authority.
Nine Mile Point, CLI-99-30, 50 N.R.C. at 344 (quoting Kerr-McGee Corp. (West Chicago Rare Earths Facility), CLI-82-2, 15 N.R.C. 232, 269 (1982), affd, City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983)).
41 Motion at 15-19.
13 The Cities claim that their consent is also contemplated by 10 C.F.R. § 50.80(b)(2).42 That reading of the provision is entirely unsupported and makes no sense. This section is obviously not intended to give co-owners the right to veto the transfer of another owners licensed interest. Rather, it is intended to provide assurance, when necessary, that the licensee whose interest is the subject of a license transfer application is on board with that transfer.
The Cities reference to the Staffs review of the license transfer application submitted by Nuclear Development Company to acquire and become the licensee of the Bellefonte site provides no support for the Cities position or requested suspension. In that proceeding, the Tennessee Valley Authority (TVA), which was the sole owner of the Bellefonte site and licensee (holder of a construction permit), had not joined in the license transfer application43 and was disputing the transfer of possession of the Bellefonte site.44 The Staff, in requesting information under 10 C.F.R. § 50.80(b)(2), distinguished the Nuclear Development Companys license transfer application from typical applications submitted under oath and affirmation jointly by the current licensee and the transferee.45 In sum, there is no basis to suspend this license transfer proceeding. The Cities request is unsupported by any applicable precedent, is inconsistent with Commission practice and policy, and would serve no useful purpose.
42 Motion at 15.
43 See Nuclear Development, LLC, Application for Order Approving Construction Permit Transfers and Conforming Administrative Construction Permit Amendments (Nov. 13, 2018) (ADAMS Accession No. ML18318A428).
44 See NRC Staff Response to Nuclear Development Letter Dated Sept. 11, 2020 (Nov. 3, 2020)
(ADAMS Accession No. ML20286A172) 45 Id.
14 IV.
THE CITIES MOTIONS ARE UNTIMELY The Cities Motion is untimely under the NRCs Rules of Practice. 10 C.F.R. § 2.323(a)(2) requires that motions must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises. Here, the license transfer application was filed eight weeks ago, and the NRC Staff found it sufficient for review a month ago.46 As co-owners, the Cities were aware of both the filing of the application47 and its acceptance.48 If their concern was to avoid expenditure of NRC Staff resources on review of the application, the Cities Motion should have been filed weeks ago.
V.
THE CITIES HAVE FAILED TO SATISFY THE REQUIREMENT IN 10 C.F.R.
§ 2.323(A)(2)
The Cites Motion should be denied because it fails to comply with 10 C.F.R. § 2.323(a)(2). That rule provides, [a] motion must be rejected if it does not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movants efforts to resolve the issue(s) have been unsuccessful. (Emphasis added). The Cities Motion contains no such certification. Nor does the absence of the required certification appear to be an oversight. There have been no communications from the City of Austin to NRG or Constellation consulting on and attempting to resolve the issues raised by the Motion. And while there have been communications between representatives of NRG, Constellation and the City of 46 Email from D. Galvin, NRC, to W. Brost, STPNOC, Re: South Texas Project - Acceptance of Request for Indirect Transfer of Licenses and Conforming Amendments (July 7, 2023) (ADAMS Accession No. ML23191A010).
47 See Letter from G.T. Powell, STPNOC, to D. Kumar-Nambiar, City of San Antonio, and A. Arth, City of Austin, (July 30, 2023) (Exhibit O to the Motion) (STPNOC leadership has been in regular communication with all owners representatives leading to the preparation and filing of the License Transfer Application (LTA) of June 12, 2023.).
48 On July 14, 2023, the NRC Staff provided an advance copy of the Federal Register notice to STPNOC (ADAMS Accession No. ML23188A161), which STPNOC provided to the Cities that same day.
15 San Antonio attempting to establish a commercial dialog, which San Antonio insisted without compromise had to be conditioned on suspension of the NRC Staffs review of the application, none of those communications identified or attempted to resolve the claim that the license transfer application was submitted without Owners Committee approval or necessitated certifications from the Cities under 10 C.F.R. § 50.80(b)(2).
VI.
CONCLUSION For the reasons discussed above, the Cities Motion should be denied.
Respectfully submitted,
/signed electronically by David R. Lewis/
David R. Lewis Law Office of David R. Lewis 1524 Brookhaven Drive McLean, VA 22101 Tel. 703-501-7708 Email: davidralewis@outlook.com Counsel for NRG South Texas LP and its parent companies Dated: August 4, 2023
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of
)
)
South Texas Nuclear Operating Company
)
Docket Nos. 50-498-LT NRG South Texas LP and its parent companies, )
50-499-LT and Constellation Energy Generation, LLC
)
72-1041-LT
)
(South Texas Project, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRCs Answer Opposing the Motion by the City of San Antonio and the City of Austin to Dismiss or Suspend License Transfer Proceeding has been served through the E-Filing system on the participants in the above-captioned proceeding this 4th day of August, 2023.
/signed electronically by /
David R. Lewis