ML24032A004

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Conditional Motion by Beyond Nuclear and Sierra Club for Extension of Time to Submit Hearing Request
ML24032A004
Person / Time
Site: North Anna  Dominion icon.png
Issue date: 02/01/2024
From: Curran D
Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Sierra Club
To:
NRC/OCM, NRC/SECY
SECY RAS
References
RAS 56921, 50-339-SLR-2, 50-338-SLR-2
Download: ML24032A004 (0)
v • d • e


Text

UNITED STATES OF AMERICA U.S. NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY AND THE COMMISSION

)

In the Matter of )

Virginia Electric Power Co. ) Docket Nos. 50-338/339 SLR North Anna Power Station Units 1 & 2 ) February 1, 2024

___________________________________ )

CONDITIONAL MOTION BY BEYOND NUCLEAR AND SIERRA CLUB FOR EXTENSION OF TIME TO SUBMIT HEARING REQUEST INTRODUCTION Pursuant to 10 C.F.R. §§ 2.307(a) and 2.323, Petitioners Beyond Nuclear and the Sierra Club hereby conditionally request the Commissioners and/or the Secretary of the U.S. Nuclear Regulatory Commission (NRC) to grant them a six-week extension of the deadline for submitting a hearing request in this proceeding for subsequent license renewal (SLR) of Virginia Electric and Power Cos (VEPCOs) operating licenses for North Anna Power Station Units 1 and 2.1 Petitioners request the Commissioners and/or the Secretary to consider this motion in the event the Commissioners deny Petitioners motion to withdraw the hearing notice published at 89 Fed. Reg. 960 (Jan. 8, 2024). 2 As required by 10 C.F.R. §§ 2.307(a), Petitioners respectfully submit that they have good cause for a six-week extension from March 8, 2024 to April 19, 2024 due to the near-impossibility for Petitioners undersigned counsel of complying with the March 8 deadline in this proceeding along with multiple deadlines and obligations in other cases before the NRC and 1 Petitioners address this motion to the Commissioners because it seeks relief that depends on the Commissions decision regarding the Motion to Withdraw Hearing Notice. In the alternative, Petitioners address the motion to the Secretary as the official with authority to rule on extension requests pursuant to 10 C.F.R. § 2.346(b).

2 See Motion by Beyond Nuclear and Sierra Club for Withdrawal of Premature Hearing Notice (filed Jan. 18, 2024 and corrected Jan. 22, 2024) (Motion to Withdraw Hearing Notice).

federal courts, in addition to a recent illness. The confluence of these deadlines and obligations arises from the progression through the NRC and/or federal court of three administrative NRC cases that began between 2010 and 2020, and in which Petitioners undersigned counsel served as sole counsel or lead counsel to one or more petitioners. Initially, the legal obligations were staggered by years. By no fault of Petitioners or their counsel, however, major deadlines or other obligations in these cases are now converging to fall between March 4 and March 20, 2024.

Petitioners are bringing this motion with ten days of January 26, 2024, when they received notice of the latest of those major events: an oral argument in the U.S. Court of Appeals for the D.C.

Circuit in Beyond Nuclear v. NRC, No. 20-1187. As lead counsel for petitioner Beyond Nuclear in that case, Petitioners undersigned attorney will deliver that oral argument.

Withdrawal of the January 8 hearing notice would provide Petitioners with relief from the near-impossibility for their undersigned counsel of meeting the March 8 deadline while also bringing this proceeding into compliance with CLI-22-03. But if the Commission does not grant that motion, Petitioners respectfully submit that an extension of time is essential in order to allow their counsel an adequate amount of time to meaningfully prepare their hearing request in this proceeding.

DISCUSSION In support of this extension request, Petitioners state the following:

1. Petitioners have established their long-term interest in participating this SLR proceeding, as demonstrated by the Atomic Safety and Licensing Boards (ASLBs) decision in Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), LBP-21-04, 93 N.R.C. 179, 196-97 (2021). Petitioners also filed supplemental standing declarations with their Motion to Withdraw Hearing Notice.

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2. During the 60-day period between publication of the hearing notice in this proceeding (January 8, 2024) and the deadline for submitting a hearing request (March 8, 2024),

Petitioners undersigned counsel has had or will have conflicting obligations in the following NRC licensing proceedings or related proceedings for which she has been either sole counsel or lead counsel for three to thirteen years:

License renewal proceeding for Diablo Canyon nuclear power plant In 2010, the NRC issued a hearing notice for Pacific Gas & Electric Co.s (PG&Es) application to renew the operating licenses for the Diablo Canyon Units 1 and 2 nuclear power plant. 3 As sole counsel for San Luis Obispo Mothers for Peace (SLOMFP), Petitioners undersigned counsel submitted (and subsequently amended) a hearing request. The NRC Commissioners affirmed the ASLBs denial of the hearing request in Pacific Gas and Electric Co. (Diablo Canyon Units 1 and 2), CLI-16-11, 83 N.R.C. 524 (2016).

In 2018, PG&E obtained NRC approval to withdraw its license renewal application so that it could close the reactors on their operating license expiration dates of 2024 (Unit 1) and 2025 (Unit 2). 4 But in 2023, after passage of California Senate Bill 846, PG&E asked the NRC to reinstate its license renewal application or exempt a new application from the timely renewal rule for nuclear reactors, 10 C.F.R. § 2.109(b).5 With undersigned counsel serving as lead counsel, SLOMFP, 3 75 Fed. Reg. 3,493 (Jan. 21, 2010).

4 83 Fed. Reg. 17,688 (Apr. 23, 2018).

5 Letter from Paula Gerfen, Senior Vice President and Chief Nuclear Officer, PG&E, to NRC, re:

Request to Resume Review of the Diablo Canyon Power Plant License Renewal Application or, Alternatively, for an Exemption from 10 CFR 2.109(b), Concerning a Timely Renewal Application (Oct. 31, 2022) (NRC ADAMS Accession No. ML22304A691).

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FoE and EWG opposed both requests.6 The NRC refused to reinstate PG&Es original license renewal application but issued an exemption from the timely renewal rule.7 Together with Friends of the Earth (FoE) and Environmental Working Group (EWG), SLOMFP appealed the NRCs decision to the U.S.

Court of Appeals for the Ninth Circuit in San Luis Obispo Mothers for Peace et al. v. NRC (No.23-852, filed April 28, 2023). Subsequently, in San Luis Obispo Mothers for Peace and Friends of the Earth v. NRC (No. 23-3884, filed Nov. 30, 2023), SLOMFP and FoE appealed to the Ninth Circuit an NRC decision extending the deadline for an inspection of the Unit 1 pressure vessel from the current operating license term to the year 2025, after the Unit 1 operating license expiration date. They contend that the NRC is erroneously treating the inspection schedule as a matter related to license renewal when the record shows that the inspection schedule was established in an amendment to the current operating license. In both cases, undersigned counsel for Petitioners serves as lead counsel.

6 See, e.g., Petition by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group to Deny Pacific Gas & Electric Companys Request to Review Undocketed License Renewal Application for the Diablo Canyon Unit 1 and Unit 2 Reactors and Petition to Deny Pacific Gas & Electric Companys Request to Extend the Diablo Canyon Reactors License Terms Without Renewing the Licenses (Jan. 10, 2023) (NRC ADAMS Accession No. ML23052S192); Letter from Diane Curran, et al. to Lauren K. Gibson re:

Opposition to Pacific Gas & Electric Co.s Request for an Exemption from the NRCs Timely Renewal Regulation, 10 C.F.R. § 2.109(b), Docket Nos. 50-275, 50-323 (Feb. 13, 2023) (NRC ADAMS Accession No. ML23046A103); Letter from Diane Curran, et al. to NRC Commissioners re: Request for Reversal of Exemption from Timely Renewal Regulation 10 C.F.R. § 2.109(b) to Allow Indefinite Extended Operation of Diablo Canyon Reactors Units 1 and 2, Docket Nos. 50-275, 50-323 (March 28, 2023) (Not listed on NRC ADAMS).

7 88 Fed. Reg. 14,395 (Mar. 8, 2023) 4

As sole counsel to SLOMFP in the NRCs license renewal proceeding and lead counsel in the two Ninth Circuit appeals, undersigned counsel for Petitioners has either completed or anticipates the following legal obligations that relate to the Diablo Canyon license renewal proceeding and conflict with her obligations in this proceeding:

  • January 8-10, 2024: On behalf of SLOMFP, FoE, and EWG, in San Luis Obispo Mothers for Peace, et al. v. NRC (No.23-852), Petitioners counsel prepared for and delivered a January 10 oral argument in the U.S. Court of Appeals for the Ninth Circuit in Pasadena, California.
  • March 4, 2024: Deadline for hearing requests in the Diablo Canyon license renewal proceeding.8 As with the original license renewal proceeding, Petitioners undersigned counsel will serve as sole counsel to SLOMFP. Preparation of SLOMFPs hearing request is underway. In order to satisfy the NRCs rigorous standards for hearing requests (and potentially a petition for a waiver of 10 C.F.R.

§ 51.53(c)(3)), Petitioners undersigned counsel must spend a significant amount of time on legal and technical research and work with experts on a range of safety and environmental issues.

SLOMFP has not requested an extension of this deadline because the hearing notice already provided more time than usual (about three months not including the holidays) and because relatively little time remains between the deadline for hearing requests and the expiration dates of the Diablo Canyon operating licenses (November 2024 for Unit 1 and August 2025 for Unit 2).

8 See 88 Fed. Reg. 87,817 (Dec. 19, 2023) (hearing notice).

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  • March 20, 2024: Deadline for SLOMFPs and FoEs opening brief in the U.S.

Court of Appeals for the Ninth Circuit in San Luis Obispo Mothers for Peace and Friends of the Earth v. NRC (No. 23-3884). Petitioners counsel estimates that preparation of the opening brief will take at least three weeks of full-time work.

All parties to the case already have received 30-day extensions of the deadlines for filing their briefs and the court strongly discourage furthers requests for extensions.

Licensing proceeding for Holtec Internationals application to build and operate a centralized facility for storage of spent fuel In 2018, the NRC published a hearing notice for Holtec Internationals (Holtecs) application to build and operate a centralized interim storage facility for spent reactor fuel in Hobbs, New Mexico.9 With Petitioners undersigned counsel serving as lead counsel, Beyond Nuclear opposed the application on the ground that it violated the Nuclear Waste Policy Act by providing for private storage of federally-owned spent fuel; but the NRC rejected Petitioners claims in Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-20-04, 91 N.R.C. 167, 173-76 (2020).

Again with Petitioners undersigned counsel serving as lead counsel, Beyond Nuclear appealed the Commissions decision to the U.S. Court of Appeals for the D.C. Circuit in Beyond Nuclear v. NRC, No. 20-1187 (filed June 4, 2020). While Beyond Nuclear was prepared to brief the case immediately, the Court postponed the 9 83 Fed. Reg. 32,919 (July 16, 2018).

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briefing for three years to await the issuance of a license to Holtec. Thus, the briefing took place in 2023 and early 2024.

Due to the delayed briefing, Petitioners undersigned counsel has had or will have the following conflicting obligations that fall during the 60-day period for preparing a hearing request in this SLR proceeding:

  • January 21-22, 2024: As lead counsel for Beyond Nuclear, Petitioners undersigned counsel prepared and filed final briefs and statutory addenda in the U.S. Court of Appeals for the D.C. Circuit.

Court of Appeals for the D.C. Circuit. The oral argument was scheduled only recently, by an order dated January 26, 2024. In the experience of Petitioners counsel, preparation for an oral argument in the U.S. Court of Appeals takes at least two weeks.

The instant SLR proceeding for North Anna Power Station Units 1 and 2 In 2020, the NRC published a hearing notice regarding VEPCOs SLR application for the North Anna reactors.10 With undersigned Petitioners counsel as their sole attorney, Petitioners submitted a hearing request and petition for a waiver of 10 C.F.R. § 51.53(c)(3); but both were denied by the ASLB in LBP-21-04, 93 N.R.C. 179. In Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), et al., CLI-22-3, 95 N.R.C. 40 (2022) (CLI-22-03), the Commission held that the waiver standard had been unlawfully applied in North Anna and other proceedings, dismissed Petitioners appeal of 10 85 Fed. Reg. 65,438 (Oct. 15, 2020).

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LBP-21-4, and ordered the commencement of new environmental reviews to support SLR decisions. The January 8, 2024 hearing notice in this proceeding arises from CLI-22-03. Neither Petitioners nor their counsel had any control over the timing of CLI-22-03 or the timing of the environmental review for the North Anna reactors.

Undersigned counsel continues to serve as the sole attorney for Beyond Nuclear and is now in the time-consuming process of reviewing the draft environmental impact statement and working with Beyond Nuclears experts on the preparation of a hearing request; but it is extremely difficult to set aside sufficient time for those tasks due to her other concurrent obligations.

3. Petitioners counsel was unable to work from January 15-19 due to a severe case of respiratory influenza.
4. It is almost certain that an extension of six weeks for submission of Petitioners hearing request will not delay the completion of a hearing to the point that the hearing has not been finished before North Anna Units 1 and 2 reach their operating license expiration dates of 2038 and 2040, respectively.11 In any event, because VEPCO submitted its SLR application more than five years before those expiration dates, operation of the reactors may continue past those dates for an indefinite period until the NRC makes a decision on VEPCOs application.12 Thus, VEPCO will not be harmed by the granting of an extension.

Under these circumstances, Petitioners respectfully submit that due to the imposition of other legal obligations and deadlines beyond their control, as well as a week-long illness, Petitioners 11 These expiration dates are provided in the hearing notice for the initial adjudicatory proceeding, 85 Fed. Reg. 65,438.

12 See 10 C.F.R. § 2.109(b)).

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undersigned counsel will not have an adequate amount of time to prepare a hearing request in this proceeding by March 8, 2023. A six-week extension would give Petitioners four weeks after the last major conflicting deadline or obligation (the March 20 deadline for the opening brief in San Luis Obispo Mothers for Peace and Friends of the Earth v. NRC (No. 23-3884)) to complete a hearing request. This is about half the time provided by the 60-day hearing notice, and would provide a reasonable amount of time to complete the work for which Petitioners counsel has virtually no time during the current 60-day period. Given the fact that fourteen to sixteen years remain on the North Anna operating licenses before they expire, the requested extension will not harm VEPCO.

CONCLUSION For the foregoing reasons, Petitioners have demonstrated good cause for a six-week extension of the time to submit a hearing request in this proceeding, in the event the Commission denies their Motion to Withdraw Hearing Notice.

Respectfully submitted,

___/signed electronically by/__

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com February 1, 2024 9

CERTIFICATE OF COUNSEL PURSUANT TO 10 C.F.R. § 2.323(b)

I certify that on January 31, 2024, I contacted counsel for VEPCO and the NRC Staff in a sincere effort to resolve the issues raised in this conditional motion. Counsel for VEPCO stated that VEPCO opposes the motion. Counsel for the Staff stated that the Staff opposes a 6-week extension of time, but would not oppose a two-week extension.

___/signed electronically by/__

Diane Curran CERTIFICATE OF SERVICE I certify that on February 1, 2024, I posted CONDITIONAL MOTION BY BEYOND NUCLEAR AND SIERRA CLUB FOR EXTENSION OF TIME TO SUBMIT HEARING REQUEST on the NRCs Electronic Information Exchange.

___/Executed in Accord with 10 C.F.R. § 2.304(d) by/__

Paul Gunter, Director, Research Oversight Project for Beyond Nuclear 10

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