ML24029A279
| ML24029A279 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 01/29/2024 |
| From: | Bassette P, Blair W, Clausen S, Lighty R Dominion Energy Services, Morgan, Morgan, Lewis & Bockius, LLP, Virginia Electric & Power Co (VEPCO) |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| RAS 56918, 50-339-SLR-2, 50-338-SLR-2 | |
| Download: ML24029A279 (0) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
VIRGINIA ELECTRIC AND POWER COMPANY and OLD DOMINION ELECTRIC COOPERATIVE (North Anna Power Station, Units 1 and 2)
Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 January 29, 2024 APPLICANTS ANSWER OPPOSING BEYOND NUCLEARS AND SIERRA CLUBS MOTION FOR WITHDRAWAL OF HEARING NOTICE Pursuant to 10 C.F.R. § 2.323(c), Virginia Electric Power Company, on behalf of itself and Old Dominion Electric Cooperative (collectively, Applicants), submits this Answer opposing the Motion for Withdrawal of Premature Hearing Notice (Motion) filed by Beyond Nuclear and the Sierra Club (collectively, Movants).1 The Motion asks the Commission to order the Secretary of Commission to withdraw the prematurely issued hearing notice issued in this proceeding.2 But there is no legal basis in the NRCs Rules of Practice and Procedure for such a request, and the Commission disfavors such motions as procedurally improper.3 Moreover, the Motion is untimely by more than a year and should be denied for that additional reason. Procedural defects aside, the Motion fails to identify good cause for withdrawing the hearing notice. Much more is required for the Commission to grant this extraordinary relief. For these reasons, and as discussed below, the Commission should deny the Motion.
1 Motion by Beyond Nuclear and Sierra Club for Withdrawal of Premature Hearing Notice (Jan. 18, 2024)
(ML24018A150) (Motion).
2 Id. at 1.
3 See, e.g., NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-19-7, 90 NRC 1, 10 (2019).
2 PROCEDURAL HISTORY In CLI-22-2, the Commission held that 10 C.F.R. § 51.53(c) and the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (LR GEIS) applied only to initial license renewal and not subsequent license renewal.4 Accordingly, the Commission provided direction to the NRC staff for conducting the necessary additional environmental reviews and allowed Applicants to submit a revised environmental report to address environmental impacts during the subsequent license renewal period.5 The Commission then stated that [a]fter each site specific review is complete, a new notice of opportunity for hearing - limited to contentions based on new information in the site-specific environmental impact statement - will be issued.6 Applicants submitted their revised environmental report on September 28, 2022.7 Following its procedures, the NRC then completed the scoping process for its supplemental environmental review,8 and issued requests for additional information and requests for confirmation to Applicants on the information in the revised environmental report to which the Applicants responded.9 The supplemental environmental review process culminated in the NRCs publication of a draft supplemental environmental impact statement (DSEIS) on 4
See generally Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-2, 95 NRC 26 (2022).
5 Va. Elec. & Power Co. (N. Anna Power Station), CLI-22-3, 95 NRC 40, 41 (2022).
6 Id. at 42.
7 See North Anna Power Station (NAPS) Units 1 & 2 - Subsequent License Renewal Application, Appendix E Environmental Report, Supplement 1 (Sept. 28, 2022) (ML22272A041).
8 See 10 C.F.R. § 51.29(a); see also Notice of Intent to Conduct Scoping Process and Prepare Supplement to Draft Environmental Impact Statement Virginia Electric and Power Company North Anna Power, Units 1 and 2, 87 Fed. Reg. 68,522 (Nov. 15, 2022).
9 See generally Nuclear Regulatory Commission, Status of Subsequent License Renewal Applications, North Anna, Units 1 and 2 - Subsequent License Renewal Application, Subsequent License Renewal Review Schedule https://www.nrc.gov/reactors/operating/licensing/renewal/applications/north-anna-1 subsequent.html (last visited Jan. 29, 2024).
3 December 28, 2023.10 Following the issuance of the DSEIS, the NRC published a notice in the Federal Register on January 8, 2024, to request comments on the DSEIS and to provide a new notice of opportunity to request a hearing and petition for leave to intervene according to the Commissions decision in CLI-22-3.11 I.
THE MOTION SHOULD BE DENIED ON PROCEDURAL GROUNDS A.
The Motion Is Procedurally Improper Movants ask the Commission to exercise its inherent supervisory authority to order the Secretary of the Commission to withdraw what they believe is a prematurely issued hearing notice.12 But there is no procedural basis in the NRCs Rules of Practice and Procedure that authorizes filing a motion to invoke supervisory authority. And the Motion itself does not claim otherwise. In fact, as counsel for Movants knows, the Commission has long held that such requests are procedurally improper.13 The Commission should therefore deny the Motion for this obvious procedural defect.
B.
The Motion is Untimely Importantly, the NRCs determination regarding the timing of the hearing opportunity notice for this proceeding was announced at a public meeting on August 17, 2022.14 The 10 See NUREG-1437, Supp. 7a, Second Renewal, Regarding Subsequent License Renewal for North Anna Power Station Units 1 and 2 (Dec. 28, 2023) (ML23339A047).
11 See Request for Comment; Public Comment Meetings; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 89 Fed. Reg. 960 (Jan. 8, 2024).
12 Motion at 1 (seeking to withdraw just the portion of the Federal Register notice that provided a hearing opportunity).
13 Seabrook, CLI-19-7, 90 NRC at 10. Counsel for Movants filed the subject motion in the Seabrook proceeding and should be well aware of the Commissions holding that such motions are procedurally improper.
14 Public Meeting Announcement, 8/17/23 Public Meeting on Path Forward for Site-Specific Environmental Reviews of Subsequent License Renewal (Aug. 10, 2022) (ML22222A129). During the meeting, the NRC staff announced, among other things, the timing of hearing opportunities following the supplemental environmental reviews contemplated in CLI-22-2, CLI-22-3, and CLI-22-4, which included the North Anna Subsequent License Renewal proceeding. See Summary of August 17, 2022 Public Meeting on the Path Forward for Site-Specific Environmental Reviews of Subsequent License Renewal at 1-2 (Sept. 6, 2022)
(ML22238A305).
4 meeting was open to the public and was attended by nearly 100 participants including representatives of licensees and environmental organizations, as well as members of the public.15 At that meeting, the NRC openly and transparently communicated that it would issue a 60-day notice of opportunity for hearing upon publication of a draft SEIS or draft SEIS supplement, on a site-specific basis.16 Thus, if Movants disagreed with the NRC staffs publicly announced determination that the hearing opportunity mandated by CLI-22-3 for this proceeding would be published following issuance of the DSEIS, they had 10 days from that occurrence to file a motion challenging it. Under 10 C.F.R. § 2.323, all motions must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises.
Movants did not do so. Movants should not be permitted to sleep on their rights for more than a year and then wait until the NRC completes the previously disclosed action before submitting their challenge thereto. Allowing such a belated challenge would be inconsistent with promoting timely resolution of issues. Simply put, the Motion is 17 months late and should be denied.
II.
MOVANTS FAIL TO IDENTIFY GOOD CAUSE FOR WITHDRAWING THE HEARING OPPORTUNITY NOTICE Movants offer nothing beyond their flawed and unreasonably restrictive reading of the Commissions decision in CLI-22-3 as a basis for granting the Motion. As explained below, that reading is untenable and fails to identify good cause for withdrawing the notice.
A.
Contrary to Movants Suggestion, the Commission Did Not Expressly Prescribe the Final SEIS as the Trigger for the Hearing Opportunity Notice In CLI-22-3, the Commission wrote that the NRC would provide a new notice of opportunity for hearing after each site-specific review is complete.17 Movants misinterpret 15 Id.
16 Id. at 2 (emphasis added). See also NRC Slides, Path Forward for Site-Specific Environmental Reviews for Subsequent License Renewal at 15 (Aug. 17, 2023) (ML22228A253).
17 North Anna, CLI-22-3, 95 NRC at 42.
5 complete as requiring issuance of a final environmental impact statement (EIS).18 But that is not what the Commission said. The Commissions statement is ambiguous because the Commission did not further define the word complete. Notably, the Commissions NEPA regulations clearly distinguish between draft EISs19 and final EISs.20 Thus, the Commission obviously knows how to impose requirements related to one or the other when it intends to do so.21 If the Commission wanted the NRC staff to wait until after it published the final EIS, the Commission would have unambiguously said so. Here, the Commissions choice not to specify issuance of the final EIS as the hearing opportunity trigger in CLI-22-3 reasonably indicates that the Commission instead left the precise timing determination up to Staffs discretion.22 B.
The Staffs Exercise of Discretion Is Reasonable The NRC staff exercised that discretion in August 2022 when it announced its plan to issue a 60-day notice of opportunity for hearing upon publication of a draft SEIS or draft SEIS supplement on a site-specific basis.23 And that choice is certainly reasonable. First, when the NRC staff issues a draft EIS, it has substantially completed its environmental review; in contrast, the final EIS generally responds to public comments.24 Second, this timing is consistent with 18 Motion at 3-4.
19 See 10 C.F.R. §§ 51.70 to 51.86 (pertaining to draft environmental impact statements).
20 See 10 C.F.R. §§ 51.90 to 51.97 (pertaining to final environmental impact statements).
21 See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-02-29, 56 NRC 390, 397 (2002)
(Congress knows how to draft legislation that clearly states its intent.). The same is true for the Commission when it drafts regulations and orders. See also, e.g., Cent. Bank of Denver v. First Interstate Bank, 511 U.S.
164, 176-77 (1994) (although Congress knew how to impose aiding and abetting liability when it chose to do so, it did not use the words aid and abet in the statute at issue, and hence did not impose aiding and abetting liability).
22 See, e.g., Catawba Cnty., N.C. v. E.P.A., 571 F.3d 20, 36 (D.C. Cir. 2009) (stating that Congressional silence often suggests a decision not to mandate any solution.) (citations omitted).
23 See Summary of August 17, 2022 Public Meeting on the Path Forward for Site-Specific Environmental Reviews of Subsequent License Renewal at 1-2 (Sept. 6, 2022) (ML22238A305).
24 See 10 C.F.R. § 51.91(a)(1) (The final environmental impact statement will include responses to any comments on the draft environmental impact statement or on any supplement to the draft environmental impact
6 decades of Commission practice, requiring contentions be submitted at the earliest possible opportunity.25 The NRC staff thus reasonably interpreted CLI-22-3 and issued the hearing opportunity notice at the earliest possible opportunity after substantially completing its site-specific environmental reviewi.e., upon issuance of the DSEIS.
Moreover, there is a strong policy reason for issuing a hearing opportunity notice after issuance of the draft EIS. Environmental contentions generally allege either (1) required information was omitted from the environmental review, or (2) the analysis in the environmental review is lacking and does not comply with legal requirements. Requiring such contentions to be filed on the draft EIS gives the NRC staff the opportunity to address the alleged omission or inadequacy in the final EIS.26 This ability to proactively cure alleged defects before issuance of a final EIS ultimately leads to greater efficiencies in NRC reviews and earlier resolution of issues in contested adjudicatory proceedings, which is a reasonable goal.
In addition to being objectively reasonable, the Staffs decision is fully consistent with the NRCs Principles of Good Regulation. The efficiency principle states that the [t]he American taxpayer, the rate-paying consumer, and licensees are all entitled to the best possible management and administration of regulatory activities.27 This efficiency principle also states that when several effective alternatives are available, the option which minimizes the use of resources should be adopted.28 Ultimately, the NRC staff reasonably exercised its discretion.
statement.). These responses may include supplemental or modified analysis if necessary to address or respond to comments. See id.
25 See, e.g., DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC 1, 7 (2015) (citations omitted).
26 See, e.g., USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 444-45 (2006) (discussing the NRC staffs ability to moot a contention in a later environmental document).
27 Principles of Good Regulation, https://www.nrc.gov/about-nrc/values.html.
28 Id.
7 C.
Granting the Motion Would Produce Different Results in Similarly Situated Proceedings Applicants note that a request similar to this Motion was made in the Turkey Point proceeding.29 That request was denied.30 The NRCs Principles of Good Regulation state that regulatory actions should be administered so as to lend stability to the nuclear operational and planning processes.31 As Applicants are similarly situated to the applicants in Turkey Point, the instant Motion should be denied to avoid disparate outcomes and promote regulatory reliability.
Ultimately, if the Commission had intended the irrational result advocated by Movants, whereby SLR proceedings (which have already been delayed for nearly two years) would be further delayed (an issue Congress has been closely watching) because the Commission ordered Staff to pursue the more inefficient option among two regulatory pathwaysa pathway that would be inconsistent with decades of NRC precedentsurely it would have expressed that intention with a straightforward statement that the final SEIS supplement was the appropriate hearing opportunity trigger. It did not.
CONCLUSION For all of these reasons, the Commission should deny the Motion.
29 See Miami Waterkeeper Emails to NRC Regarding Extension Request for Turkey Point (Oct. 30, 2023)
(ML23305A127) (asking the Commission to withdraw the Hearing Notice).
30 Order (Granting a 20-Day Extension Deadline to Request for Hearing) at 3 (Nov. 6, 2023) (ML23310A269)
(unpublished) (denying request to withdraw the hearing notice).
31 Principles of Good Regulation, https://www.nrc.gov/about-nrc/values.html.
8 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
WILLIAM S. BLAIR, Esq.
Dominion Energy Services, Inc.
120 Tredegar Street, RS-2 Richmond, VA 23219 (561) 267-7459 William.S.Blair@dominionenergy.com Executed in Accord with 10 C.F.R. § 2.304(d)
PAUL M. BESSETTE, Esq.
RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5796 (202) 739-5274 Paul.Bessette@morganlewis.com Ryan.Lighty@morganlewis.com Signed (electronically) by Scott D. Clausen SCOTT D. CLAUSEN, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5402 Scott.Clausen@morganlewis.com Counsel for Virginia Electric and Power Company Dated in Washington, DC this 29th day of January 2024
DB1/ 143781995 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
VIRGINIA ELECTRIC AND POWER COMPANY and OLD DOMINION ELECTRIC COOPERATIVE (North Anna Power Station, Units 1 and 2)
Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 January 29, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the Applicants Answer Opposing Beyond Nuclears and Sierra Clubs Motion for Withdrawal of Hearing Notice was served on the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Scott D. Clausen SCOTT D. CLAUSEN, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5402 Scott.Clausen@morganlewis.com Counsel for Virginia Electric and Power Company