ML24106A299
| ML24106A299 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/15/2024 |
| From: | Bessette P, Lighty R, Matthew T Morgan, Morgan, Lewis & Bockius, LLP, Pacific Gas & Electric Co |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 56993, 50-275-LR-2, 50-323-LR-2 | |
| Download: ML24106A299 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the matter of:
Docket Nos. 50-275-LR-2 and PACIFIC GAS AND ELECTRIC COMPANY 50-323-LR-2
(Diablo Canyon Nuclear Power Plant, Units 1 and 2) April 15, 2024
PACIFIC GAS AND ELECTRIC COMPANYS MOTION TO STRIKE PORTIONS OF THE REPLY FILED BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH, AND ENVIRONMENTAL WORKING GROUP
I. INTRODUCTION
In accordance with 10 C.F.R. § 2.323(a), and the Atomic Safety and Licensing Boards
(Board) Initial Prehearing Order,1 Pacific Gas and Electric Company (PG&E) moves to
strike two specific portions of the reply pleading (Reply) filed on April 5, 2024, by San Luis
Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group
(Petitioners),2 related to their March 29, 2024, Request for Hearing and Petition to Intervene in
1 Licensing Board Memorandum and Order (Initial Prehearing Order) (Mar. 13, 2024)
(ML24073A326). Pursuant to 10 C.F.R. § 2.323(b), and the Boards March 13, 2024 Initial Prehearing Order, counsel for PG&E certifies that a sincere effort was made to contact the other participants in the proceeding and resolve the issu es raised in this motion, which was unsuccessful.
Counsel for PG&E emailed all parties to consult regarding two narrow portions of Petitioners Reply that PG&E viewed as exceeding the permissible scope of a reply pleading. The email listed the specific grounds for PG&Es position and the specifi c language in the Reply that PG&E viewed as impermissible. Counsel for PG&E asked counsel for Petitioners whether they would agree to voluntarily withdraw those portions of their Reply and, if not, for Petitioners and NRC Staff to provide their views regarding a potential motion by PG&E to strike said portions of the Reply.
Counsel for PG&E offered to arrange a telephone or video call to discuss the issue further, and offered to respond to any questions from the par ties. None of the parties requested a further discussion or proffered any questions. Petitioners c ounsel advised that Petitioners disagreed that the arguments were new, declined to withdraw the portions of the Reply identified by PG&E, and stated that Petitioners oppose the proposed motion. Counsel for the NRC staff advised that the NRC Staff does not oppose the motion and reserves the right to respond.
2 Reply by San Luis Obispo Mothers for Peace, Fr iends of the Earth, and Environmental Working Group to Oppositions to Request for Hearing on Pacific Gas and Electric Companys License 2
this proceeding (Petition)3 and the Answers thereto filed by PG&E and the U.S. Nuclear
Regulatory Commission (NRC) Staff.4 As explained below, those two portions exceed the
permissible scope of a reply and should be stricken.
II. LEGAL STANDARDS GOVERNING THE SCOPE OF A REPLY
Reply pleadings in NRC adjudicatory proceedings do not provide an opportunity to
present wholly new arguments. Commission rules demand a level of discipline and
preparedness on the part of petitioners, who must fully set forth their claims in the original
hearing request.5 That is because answering parties ar e entitled to be told at the outset, with
clarity and precision, what arguments are being advanced.6 It is well established that a reply
cannot expand the scope of the arguments set forth in the original hearing request.7 Instead,
[r]eplies must focus narrowly on the legal or factual arguments first presented in the original
petition or raised in the answers to it.8 Simply put, [t]he Commission will not permit, in a
reply, the filing of new arguments or new legal theories that opposing parties have not had an
Renewal Application for the Diablo Canyon Nuclear Plant (Apr. 5, 2024) (ML24096B784)
(Reply).
3 Request by San Luis Obispo Mothers for Peace, Fr iends of the Earth, and Environmental Working Group for Hearing on Pacific Gas & Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (Mar. 4, 2024) (ML24067A079) (Petition).
4 Pacific Gas and Electric Companys Answer Opposing the Hearing Request Filed by San Luis Obispo Mothers for Peace, Friends of the Eart h and Environmental Working Group (Mar. 29, 2024)
(ML24089A241) (PG&E Answer); NRC Staff Answ er Opposing the San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group Hearing Request (Mar. 29, 2024)
(ML24089A110) (NRC Staff Answer).
5 La. Energy Servs. L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004),
reconsideration denied CLI-04-35, 60 NRC 619 (2004) (citation omitted).
6 Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 576 (1975)
(emphasis added).
7 Nuclear Mgmt. Co. LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (citing LES, CLI-04-25, 60 NRC 223; USEC Inc. (Am. Centrifuge Plant), CLI-06-09, 63 NRC 433, 439 (2006)).
8 Palisades, CLI-06-17, 63 NRC at 732.
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opportunity to address.9 Although a reply may legitimately amplif[y] arguments from the
original petition,10 or focus narrowly on responding to the answer pleadings,11 it may not be
used as a vehicle to cure deficient contenti ons merely because those deficiencies were
identified in the answers.12 As the Commission has explained, there would be no end to NRC
licensing proceedings if petitioners were permitted to add new bases or new issues at will.13
III. PORTIONS OF PETITIONERS REPLY EXCEED THE PERMISSIBLE SCOPE OF A REPLY PLEADING AND SHOULD BE STRICKEN
As detailed below, the Reply presents at least two new arguments that exceed the
permissible scope of a reply pleading and therefore should be stricken from the record.
A. New Specific Challenge to the ERs Discussion of the No Action Alternative
In its Reply, Petitioner presents for the first time an impermissible new argument and
theory of Contention 1 regarding the no action alternative. The Petition contained a statement
that PG&Es environmental report (ER) should weigh the costs and benefits of shutting
down the reactors.14 Petitioners supplied no further explanation of, or support for, their vague
suggestion that the ER omitted this analysis. PG&E and the NRC Staff both noted, in their
respective Answers, that the allegedly omitte d analysis was in fact provided in the ER.15 In its
Reply, Petitioners now offer a specific criticism of that previously unacknowledged analysis.
9 USEC, CLI-06-09, 63 NRC at 439.
10 See LES, CLI-04-25, 60 NRC at 224.
11 Palisades, CLI-06-17, 63 NRC at 732.
12 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 262 n.32 (2008) (citing LES, CLI-04-25, 60 NRC at 224-225) (emphasis added).
13 Id. at 225 (citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 428-29 (2003)).
14 Petition at 7.
15 PG&E Answer at 35-36; NRC Staff Answer at 36.
4
Namely, Petitioners claim the analysis is defective because it does not discuss the
environmental or socioeconomic benefits of avoiding the potentially catastrophic effects of a
seismically induced core damage accident.16 This argument seeks to transform Petitioners
original claim from one of omission (i.e., that the no-action alternative analysis is missing
altogether) into a claim of sufficiency (i.e., that the no-action alternative analysis is insufficient
because it omits a specific discussion). However, that exceeds the permissible scope of a reply.
A petitioner is confined to its contentions as initially filed and may not rectify deficiencies (such
as a failure to dispute the relevant portions of the document being challenged) through a reply
brief.17 The Commission has long held that a reply cannot be used as a vehicle to present new
arguments or new legal theories that opposing parties have not had an opportunity to address.18
For that reason, the last sentence on page 11 (beginning But neither) continuing
onto page 12 (ending core damage accident.) of the Reply should be stricken.
B. New Request for a Placeholder Contention on CZMA Compliance
In its Reply, Petitioners also present a new line of argument and theory of Contention 3.
In the Petition, Petitioners originally argued that the LRA could not be approved due to the
[California Coastal Commissions (CCCs)] unequivocal rejection of PG&Es Coastal
Certification.19 Petitioners also argued that the LRA was defective because it did not contain a
final concurrence from the CCC.20 In response, PG&E and the NRC Staff both explained that
16 Reply at 11-12.
17 U.S. Dept of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC 580, 588 (2009).
18 USEC, CLI-06-09, 63 NRC at 439.
19 Petition at 20 (given the CCCs unequivocal re jection of PG&Es Coastal Certification as incomplete and inadequate,... the NRC may not approve PG&Es license renewal application.).
20 Id. (PG&Es license renewal application is incomplete because it does not address this issue.).
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these claims fail to raise a genuine dispute with the LRA because a final CZMA concurrence is
not among the required contents of a license renewal application.21
Now, in their Reply, Petitioners appear to acknowledge that the Certification was not
rejected, as they originally claimed, but instead is still pending. 22 And they appear to have
abandoned their earlier argument that final concurrence was required to be presented in the LRA.
Instead, Petitioners now seem to acknowledge that there is no deficiency in the LRA content, but
nevertheless ask the Board to admit a placeholder contention until such future time as the CCC
acts on the Certification.23 But that is an entirely different legal theory from what was presented
in the Petition. And because petitioners did not present this argument at the outset, PG&E and
the NRC Staff were deprived of an opportunity to brief that issue or to explain why placeholder
contentions are impermissible.24
Again, new arguments or new legal theories that opposing parties have not had an
opportunity to address,25 such as Petitioners new request for a placeholder contention here,
cannot be presented for the first time in a reply pleading. As such, this new argument also
exceeds the permissible scope of a reply. Accordingly, the last sentence on page 16 (beginning,
Moreover, because) through the end of the first full sentence on page 17 (ending, lack of
timeliness.) and corresponding footnote 11 of the Reply should be stricken.
21 PG&E Answer at 50-52; NRC Staff Answer at 46-49.
22 Reply at 15-16 (stating the CCC is withholding approval... pending receipt of additional information).
23 Reply at 16-17.
24 As another licensing board recently observed, t he Commission disfavors contentions that serve as placeholders for future events. Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3
& 4), LBP-24-03, 99 NRC __, __ (slip op. at 30) (Mar. 7, 2024) (ML24067A280) (citing Union Elec. Co. (Callaway Plant, Unit 1), CLI-15-11, 81 NRC 546, 548-50 (2015); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009)).
25 USEC, CLI-06-09, 63 NRC at 439.
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IV. CONCLUSION
The Commission has explained that the need for licensing boards to enforce the
appropriate limits of reply pleadings is paramount.26 Here, the portions of Petitioners Reply
discussed above exceed the permissible scope of a reply pleading. Accordingly, the Board
should strike those portions of the Reply.
Respectfully submitted,
Signed (electronically) by Ryan K. Lighty Executed in Accord with 10 C.F.R. § 2.304(d)
RYAN K. LIGHTY, ESQ. TIMOTHY P. MATTHEWS, ESQ.
MORGAN, LEWIS & BOCKIUS LLP PAUL M. BESSETTE, ESQ.
1111 Pennsylvania Avenue, N.W. MORGAN, LEWIS & BOCKIUS LLP Washington, D.C. 20004 1111 Pennsylvania Avenue, N.W.
(202) 739-5274 Washington, D.C. 20004 Ryan.Lighty@morganlewis.com (202) 739-5527 (202) 739-5796 Timothy.Matthews@morganlewis.com Paul.Bessette@morganlewis.com
Counsel for Pacific Gas and Electric Company
Dated in Washington, D.C.
This 15th day of April 2024
26 LES, CLI-04-25, 60 NRC at 225.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the matter of:
Docket Nos. 50-275-LR-2 and PACIFIC GAS AND ELECTRIC COMPANY 50-323-LR-2
(Diablo Canyon Nuclear Power Plant, Units 1 and 2) April __, 2024
PROPOSED ORDER (Granting Motion to Strike Portions of Petitioners Reply)
Applicant Pacific Gas and Electric Company (PG&E) moved to strike narrow portions
of the Reply filed by San Luis Obispo Mothers for Peace, Friends of the Earth, and
Environmental Working Group (together, Petitioners). PG&E argued that portions of
Petitioners reply exceeded the permissible scope of a reply by introducing new arguments not
made in the Petition. After reviewing PG&Es motion and answers filed thereto, PG&Es
motion is GRANTED, and the following portions of Petitioners Reply are STRICKEN:
- 1. The last sentence on page 11 of the Reply (beginning But neither) continuing
onto page 12 (ending core damage accident.).
- 2. The last sentence on page 16 of the Reply (beginning, Moreover, because)
through the end of the first full sentence on page 17 of the Reply (ending, lack of timeliness.)
and corresponding footnote 11.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the matter of:
Docket Nos. 50-275-LR-2 and PACIFIC GAS AND ELECTRIC COMPANY 50-323-LR-2
(Diablo Canyon Nuclear Power Plant, Units 1 and 2) April 15, 2024
CERTIFICATE OF SERVICE
Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Pacific
Gas and Electric Companys Motion to Strike Portions of the Reply Filed by San Luis Obispo
Mothers for Peace, Friends of the Earth, and Environmental Working Group and corresponding
proposed order were served on the Electronic Information Exchange (the NRCs E-Filing
System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, ESQ.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 Ryan.Lighty@morganlewis.com
Counsel for Pacific Gas and Electric Company
DB1/ 146355040.4