ML24046A138
| ML24046A138 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 02/15/2024 |
| From: | Bessette 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 56930, 50-338-SLR-2, 50-339-SLR-2 | |
| Download: ML24046A138 (0) | |
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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)
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Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 February 15, 2024 APPLICANTS ANSWER OPPOSING BEYOND NUCLEARS AND SIERRA CLUBS MOTION TO SUSPEND HEARING REQUEST DEADLINE I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.323, Virginia Electric and Power Company, on behalf of itself and Old Dominion Electric Cooperative (collectively, Applicants), submit this Answer in opposition to the Request to Immediately Suspend Hearing Request Deadline (Third Motion) filed by Beyond Nuclear and the Sierra Club (together, Movants).1 The Third Motion is the latest installment in a series of requests to modify or delay the published deadline for hearing requests and petitions to intervene in this proceeding.2 In the prior motions, Movants asked the Commission to withdraw the hearing opportunity notice and, alternatively, to extend the hearing request deadline by 60 days to accommodate Movants counsels involvement in multiple proceedings. In the Third Motion, Movants ask the Commission to (1) suspend this adjudicatory proceeding indefinitely, 1
Notification of Relevance of LBP-24-01 to This Proceeding and Request to Immediately Suspend Hearing Request Deadline Pending Resolution of Certified Question Raised in LBP-24-01 (Feb. 12, 2024) (ML24043A036) (Third Motion).
2 Motion by Beyond Nuclear and Sierra Club for Withdrawal of Premature Hearing Notice (Jan. 18, 2024)
(ML24018A150) (First Motion); Conditional Motion by Beyond Nuclear and Sierra Club for Extension of Time to Submit Hearing Request (Feb. 1, 2024) (ML24032A004) (Second Motion).
2 pending the Commissions resolution of a certified question presented in another proceeding;3 and (2) publish a new notice of hearing opportunity regardless of the outcome thereof.4 Movants primary basis for the Third Motion is their unsupported suggestion that suspending this proceeding would be efficient. However, the Commission has expressly held that suspension of an ongoing proceeding is not warranted in the absence of immediate threats to public health and safety.5 As explained below, the Commission should DENY the Third Motion because there are no such circumstances here.
II.
ARGUMENT A.
LEGAL STANDARD As a general matter, the Commissions regulations do not provide for a motion to suspend a proceeding.6 Nevertheless, the Commission has occasionally entertained such requests as a matter of discretion.7 In doing so, the Commission has long considered suspension of licensing proceedings a drastic action that is not warranted absent immediate threats to public health and safety.8 B.
THE THIRD MOTION FAILS TO IDENTIFY ANY IMMEDIATE THREATS TO PUBLIC HEALTH AND SAFETY Movants allege that their request to suspend this proceeding is warranted because the instant circumstances allegedly satisfy the criteria for a stay in 10 C.F.R. § 2.342.9 However, that 3
Third Motion at 2 (citing Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-24-01, 99 NRC __, __ (Jan. 31, 2024) (slip op.) (ML24031A624) (LBP-24-01)).
4 Id. at 4-5.
5 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 484 (2008).
6 Id. at 484-85.
7 See, e.g., id. at 484-85 & n.105.
8 Id. at 484. See also Oklo Power, LLC (Aurora Reactor), CLI-20-17, 92 NRC 521, 524 & n.18 (2020); Tenn.
Valley Auth. (Watts Bar Nuclear Plant, Unit 2), CLI-15-19, 82 NRC 151, 158 & n.40 (citing same).
9 Third Motion at 2-4.
3 regulation is inapplicable here. It applies to applications for a stay of the effectiveness of an adjudicatory decision pending filing of and a decision on a petition for review.10 Because Movants are not seeking to stay any adjudicatory decision pending appeal, their argument is directed at the wrong legal standard. As noted above, the standard used by the Commission in evaluating requests to suspend adjudicatory proceedings is whether the circumstances present immediate threats to public health and safety.11 Under the correct legal standard, the Third Motion should be summarily rejected because Movants fail to allege the existence of any immediate threats to public health and safety. And no such circumstances are presented by allowing this proceeding to continue in due course. That is the end of the inquiry; and the Third Motion should be denied as a matter of settled law.
C.
EVEN IF THE STAY FACTORS WERE RELEVANT, THEY DO NOT WEIGH IN MOVANTS FAVOR HERE In addressing the incorrect legal standard in 10 C.F.R. § 2.342, Movants allege that the factors for an adjudicatory stay-pending-appeal weigh in favor of suspending the instant proceeding.
However, that conclusion is unjustified and insufficiently supported.
First, Movants allege they have demonstrated a strong likelihood of prevailing on their First Motion, which seeks withdrawal of the hearing opportunity notice in this proceeding.12 As alleged support, Movants point to a Memorandum, LBP-24-01, issued in the Turkey Point proceeding.13 More specifically, they cite language advocating the Commission to withdraw the 10 10 C.F.R. § 2.342(a).
11 Oyster Creek, CLI-08-23, 68 NRC at 484.
12 Third Motion at 2-3.
13 Id. LBP-24-01 essentially seeks reconsideration of the Commissions prior order (issued by the Secretary) denying the petitioners request to withdraw the hearing opportunity notice. See, e.g., Turkey Point, LBP-24-01, 99 NRC at __, n.35 (slip op. at 7-8, n.35) (discussing Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), Order at 3 (Nov. 6, 2023) (unpublished) (ML23310A269)).
4 hearing notice in that proceeding.14 In effect, Movants appear to argue that there is a strong likelihood that the Commission will agree with the views expressed in LBP-24-01. But, contrary to Movants speculation, that result is far from a foregone conclusion. As noted in Applicants and NRC Staffs Answers to Movants First Motion, there are multiple reasons that outcome is questionable, if not outright unlikely.15 Neither the Third Motion nor LBP-24-01 meaningfully engage with those reasons. Movants cannot affirmatively demonstrate a strong likelihood of prevailing by simply disregarding the opposing arguments.
Second, Movants allege they will incur irreparable harm if they are required to invest significant time and resources to prepare a hearing request.16 However, as Movants implicitly acknowledge, the effort required to voluntarily participate in an NRC adjudicatory proceeding is not generally recognized as irreparable harm.17 Indeed, the Commission has expressly held that
[t]he cost and inconvenience of litigating challenges to the [] application are not the kind of injury that warrants postponing the licensing proceeding.18 Thus, Movants basis for asserting irreparable harm is insufficient as a matter of settled law.
Third, Movants baselessly assert that [n]o party will be harmed by a suspension of the deadline for submitting hearing requests.19 According to Movants speculative logic, the NRCs 14 Third Motion at 2-3 & n.6-7. Notably, the analysis of that issue in LBP-24-01 was presented sua sponte and without the benefit of written briefing from the parties. The absence of written briefing is not surprising, given that the issue was neither placed into controversy in the hearing request nor delegated to the panel in the referral memorandum. Indeed, the petitioner confirmed at oral argument that this issue does not need to be raised here before the Board. Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), Transcript at 10 (Jan.
24, 2024) (ML24026A239).
15 See generally Applicants Answer Opposing [Movants First Motion] (Jan. 29, 2024) (ML24024A279) (App.
Ans. to First Motion); NRC Staffs Answer to [Movants First Motion] (Jan. 29, 2024) (ML24029A259).
16 Third Motion at 3.
17 Id.
18 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 400 (2001) (citations omitted).
19 Third Motion at 4.
5 timely renewal rule (which provides conditions under which a license will not expire during the pendency of a license renewal review) somehow precludes any-and-all harm to license renewal applicants. But that conclusion contradicts (without basis) information provided to the Commission approximately two years ago on the detrimental impacts of delayed license renewal proceedings on applicants notwithstanding the protections of the timely renewal rule.20 Because Movants provide no basis for their contrary and conclusory assertion, which overlooks tangible harms that can flow from continued delays in subsequent license renewal proceedings, they have not shown that granting the Third Motion would not harm other parties.21 Fourth, Movants assert that the public interest in a fair and meaningful adjudicatory proceeding weighs in favor of granting the Third Motion.22 However, Movants identify no legitimate reason why that goal would be impaired by moving forward with this proceeding as planned. As noted above, the effort required to voluntarily participate in an NRC adjudicatory proceeding is not an irreparable harm, and it certainly does not impede fair proceedings.
Moreover, Congress has expressed the publics interest in timely and efficient NRC license renewal proceedingsand its growing frustration that those interests are not being served by compounding inefficiencies and delays that have no corresponding safety, security, or environmental benefit.23 Movants do not acknowledge, much less address, these legitimate public interest considerations.
20 See, e.g., Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), Fla. Power & Light Co.s Views on License Status as Requested in Commission Order CLI-22-02 at 6-7, 11 (Mar. 21, 2022) (ML22080A233)
(citing various complications associated with accounting, cost recovery, and debt service obligations; potential disruptions to long-range business decisions; and uncertainty for regional energy planners).
21 LBP-24-01 advances a similar claim. See Turkey Point, LBP-24-01, 99 NRC at __ n.25 (slip op. at 5-6 n.25).
That claim also fails to acknowledge or address the detrimental effects of delayed proceedings that are not assuaged by the timely renewal rule.
22 Third Motion at 4.
23 See generally Letter from C. Hanson, NRC, to Hon. S. Moore Capito et al. (Dec. 21, 2023) (Package ML23306A109). Withdrawing the notice now would exacerbate these concerns. The Commission took no supervisory action when the Staff announced the notice timing; and no party timely challenged it. Waiting 1.5 years to reverse course would contravene the Commissions goals of regulatory efficiency and predictability and create new inefficiencies and delays that could have been avoided by acting sooner.
6 Ultimately, even if the stay factors in 10 C.F.R. § 2.342 were relevant to adjudication of the Third Motion (they are not), Movants have not demonstrated that those factors weigh in favor of granting the Motion. In fact, as noted above, they weigh against that outcome.24 III.
CONCLUSION Because suspending a proceeding is a drastic action that requires identification of an immediate threat to public health and safety, whereas Movants have identified no such threat here, the Commission should DENY the Third Motion.
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)
RYAN K. LIGHTY, Esq.
PAUL M. BESSETTE, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 (202) 739-5796 Ryan.Lighty@morganlewis.com Paul.Bessette@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 15th day of February 2024 24 Movants alternatively suggest that, even if they do not prevail on their various motions, and even if the Commission affirms the Staffs issuance of the hearing opportunity notices at the Draft SEIS stage, then fairness still necessitates a new hearing opportunity and further delays to this proceeding. Third Motion at 4-5. That assertion is unpersuasive. Movants have long been aware of the timing of the hearing opportunity and cannot claim prejudicial surprise after the NRC did exactly what it said it would do nearly a year and a half ago. See App.
Ans. to First Motion at 3-4.
DB1/ 144537205 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)
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Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 February 15, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Applicants Answer Opposing Beyond Nuclears and Sierra Clubs Motion to Suspend Hearing Request Deadline was served upon 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