ML24366A143
| ML24366A143 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 12/31/2024 |
| From: | Mary Spencer NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 57248, ASLBP 24-986-01-LA-BD01, 50-255-LA-3 | |
| Download: ML24366A143 (0) | |
Text
December 31, 2024 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC DECOMMISSIONING INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC (Palisades Nuclear Plant)
Docket No. 50-255-LA-3 NRC STAFF ANSWER TO JOINT PETITIONERS MOTION FOR EXTENSION OF TIME Pursuant to 10 C.F.R. § 2.323(c) and the licensing boards (Boards) order dated September 19, 2024 (Initial Prehearing Order), the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) herein answers the December 30, 2024, motion for extension of time (Motion for Extension of Time) filed by Alan Blind, Jody Flynn, Tom Flynn, Bruce Davis, Karen Davis, Christian Moevs, Mary Huffman, Chuck Huffman, and Diane Ebert (collectively, Joint Petitioners). As explained below, the Staff opposes the Motion for Extension of Time because (1) it does not include a certification of consultation with the other participants that complies with
§ 2.323(b), and the Joint Petitioners failed to consult with the Staff on an extension of time before filing the motion; (2) the Motion for Extension of Time does not satisfy the requirements for such motions in the Boards Initial Prehearing Order; and (3) there is no good cause for an extension of time.
BACKGROUND The Staff has described the procedural background of this proceeding in other filings, most recently in the Staffs December 18, 2024, answer to the Joint Petitioners motions to supplement their replies to the Staff and Applicants answers to the hearing request (Staff Answer to Reply Supplement Requests).1 Regarding the instant Motion for Extension of Time:
On December 25, 2024, the Joint Petitioners initiated consultation by email on a draft motion (Draft RAI Motion) based on a Staff request for additional information (RAI) that was sent to the Applicant on November 22, 2024, but made available to the public in ADAMS on December 23, 2024. The Joint Petitioners emailed a second draft of the Draft RAI Motion on December 27, 2024, and a third draft of the Draft RAI Motion on December 29, 2024. The December 29, 2024, email stated that this third draft entirely superseded the previous ones. The requests for consultation sought a response from the other participants by January 3, 2025.2 On December 30, 2024, the Staff replied by email that it hoped to respond to the request for consultation by December 31, 2024. Regarding the requested January 3, 2025, response date, the Staff informed the Joint Petitioners that the RAI became available to the public on December 23, 2024, so the ten-day deadline in 10 C.F.R. § 2.323(a) for filing a motion based on that RAI fell on January 2, 2025, not January 3. In the Joint Petitioners email response on December 30, 2024, their representative stated the following regarding the timing of consultation and filing the draft motion:
Also, thanks for the heads up on the ten days. I had not totally considered that, but I thought of the holidays for everyone, in proposing the January 3 consultation date.
If the other participants can move up the date to meet ten days, I will turn around the motion to the docket the next day.3 1 NRC Staff Answer to Joint Petitioners Requests to Supplement Their Replies to the Answers to Joint Petitioners Hearing Request, at 2-7 (Dec. 18, 2024) (Staff Answer to Reply Supplement Requests).
2 The December 29, 2024, email requested the participants views on Friday, 12/3/2025, but the Staff understands the 12 to be a typographical error. The previous emails from Joint Petitioners requested participants views by January 3, 2025, and the Joint Petitioners December 30, 2024, email (discussed below) again references a January 3 date for consultation.
3 See Attachment 1, Email Correspondence Regarding Timing of Consultation (Dec. 29 & 30, 2024). The Staff has not included all correspondence related to consultation on the Draft RAI Motion, just those emails that are particularly relevant to this Motion for Extension of Time.
Later on December 30, 2024, the Joint Petitioners filed the motion for extension of time based on documents that the Joint Petitioners state became available in ADAMS on December 23 and 30, 2024.4 The Staff received no request for consultation on a motion for extension of time or even prior notice that the Joint Petitioners intended to file such a motion. Also, the Joint Petitioners have not initiated consultation on a motion regarding a document that became available in ADAMS on December 30, 2024.
On December 31, 2024, the Staff sent the Joint Petitioners an email explaining why the Staff opposed the Draft RAI Motion based on the Staff RAI that became available to the public on December 23, 2024.
DISCUSSION As discussed below, the Motion for Extension of Time does not comply with the consultation requirements of 10 C.F.R. § 2.323(b) or the Boards Initial Prehearing Order and otherwise does not demonstrate good cause for an extension of time. Therefore, the Board should deny the Motion for Extension of Time.
The Motion for Extension of Time does not satisfy the consultation requirements of 10 C.F.R. § 2.323(b) because 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 movant's efforts to resolve the issue(s) have been unsuccessful.5 Instead, the Joint Petitioners state, There was no direct consultation on this motion[.]6 While the Joint Petitioners also state that we have exchanged emails to bring the ten day deadline to the attention of all, and asking for assistance 4 Joint Petitioners Motion for Extension of Time (Dec. 30, 2024) (Motion for Extension of Time).
5 10 C.F.R. § 2.323(b).
6 Motion for Extension of Time, at 4.
in moving up the consultations,7 the Joint Petitioners did not consult on a motion for extension of time, as explained above. Therefore, in accordance with 10 C.F.R. § 2.323(b), the Motion for Extension of Time must be rejected.8 The Motion for Extension of Time also does not comply with the consultation requirements for such motions in the Boards Initial Prehearing Order, which states in pertinent part, A motion for extension of time must (1) indicate whether the request is opposed or supported by the other participants to this proceeding[.]9 The Motion for Extension of Time does not do this, nor could it have done this given the lack of consultation on a requested extension of time. This is an independent reason why the Motion for Extension of Time should be denied.
Finally, the Joint Petitioners do not demonstrate good cause for an extension. Under 10 C.F.R. § 2.307(a), a Board may extend a deadline for good cause, or by stipulation approved by the Commission or the presiding officer. Similarly, the Boards Initial Prehearing Order requires a motion for extension of time to demonstrate appropriate cause that supports the extension.10 However, the participants have not collectively stipulated to an extension, nor (as discussed below) does the Motion for Extension of Time demonstrate good cause or appropriate cause for an extension.
The Joint Petitioners argument that an extension is needed to continue consultation on a planned motion does not demonstrate good cause. As explained in the Staff Answer to Reply Supplement Requests, the good-cause standard in § 2.307(a) is not defined, but the 7 Id.
8 10 C.F.R. § 2.323(b).
9 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP Memorandum and Order (Initial Prehearing Order), at 4 (Sept. 19, 2024) (unpublished) (ADAMS Accession No. ML24263A018)
(Initial Prehearing Order).
10 Initial Prehearing Order at 4.
Commission has stated that timeliness requirements in NRC adjudications are generally strictly enforced [i]n the interest of efficient case management and prompt resolution of adjudications[.]11 Therefore, the Commission generally grants motions for extension of time only in narrow circumstances.12 Regarding extensions of time to support consultation on motions, the Boards Initial Prehearing Order contemplates that an extension would be appropriate for a joint motion for extension of time where the consultation mandated by section 2.323(b) is initiated within a reasonable time and the participants believe that all or part of the matter may be resolved amicably if additional time is provided for filing the motion[.]13 However, the Staff opposes the Draft RAI Motion, so the matter will not be resolved amicably as it relates to a motion on the Staff RAI. And while the Applicant has not yet provided a substantive response to the consultation request on the Draft RAI Motion, that is no basis for extending the filing deadline, because the Joint Petitioners can still file on the deadline date if they wish to continue with a motion based on the Staff RAI. Further, there is sufficient time for the Joint Petitioners to initiate, and for the other participants to respond to, consultation on a separate motion for a document that became available in ADAMS on December 30, 2024.
Finally, the Joint Petitioners state that their planned motion is intended to provide a complete and accurate motion addressing both pieces of newly provided information but is not a new contention.14 The Staff understands that the Joint Petitioners plan to file a motion providing further support for their existing contentions. But the Board has recently informed the Joint Petitioners that it will not entertain further written briefs that provide variations on 11 Staff Answer to Reply Supplement Requests at 12-13 (quoting Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 & 2), CLI-10-26, 72 NRC 474, 476 (2010)).
12 Staff Answer to Reply Supplement Requests at 13 (citing as examples, Bellefonte, CLI-10-26, 72 NRC at 476; Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 & 4), LBP-10-21, 72 NRC 616, 636 (2010)).
13 Initial Prehearing Order at 3.
14 Motion for Extension of Time at 4.
arguments in support of Joint Petitioners standing or the admissibility of their currently pending contentions.15 The Joint Petitioners are aware of this admonition and informed the Board, We also fully understand that such leniency is limited, as expressly stated by the Board, and that no further filings seeking to expand upon or supplement our current standing or contentions will be entertained.16 This is yet more reason why an extension of time is not warranted. And if the Joint Petitioners wish to file a new or amended contention, that would be subject to 10 C.F.R
§ 2.309(c), (f) and the Boards Initial Prehearing Order, not 10 C.F.R. § 2.323.17 CONCLUSION As explained above, the Board should deny the Motion for Extension of Time because it does not comply with the consultation requirements of 10 C.F.R. § 2.323(b) or the Boards Initial Prehearing Order and otherwise does not demonstrate good cause for an extension of time.
Respectfully submitted,
/Signed (electronically) by/
Michael A. Spencer Counsel for NRC Staff Mail Stop: O14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9115 Email: Michael.Spencer@nrc.gov Dated December 31, 2024 15 Holtec Decommissioning International, LLC (Palisades Nuclear Plant), LBP Memorandum and Order (Addressing Joint Petitioners Representation and Requesting Information on Availability for Oral Argument), at 6 (Dec. 17, 2024) (unpublished) (ML24352A266).
16 Joint Petitioners Response to Memorandum and Order (Addressing Joint Petitioners Representation and Requesting Information on Availability for Oral Argument), at 1-2 (Dec. 17, 2024) (emphasis added).
17 See 10 C.F.R. §§ 2.309(c)(2)(ii), 2.323(a)(1) (providing that § 2.323 does not apply to motions for new or amended contentions).
From:
Alan Blind To:
Michael Spencer Cc:
Anita Ghosh Naber; Lovett, Alan; Blanton, Stan; Julie Ezell; Terry Lodge; Eskelsen, Grant; David Roth OGC; Caitlin Byrd; Wally Taylor; Susan Vrahoretis; Peter Lom
Subject:
[External_Sender] Re: Third Version of Motion to Include NRC Staff LAR Reviewer RAI - Consultation Request Date:
Monday, December 30, 2024 10:02:16 AM Michael Thank you for the reply.
Yes, please use the third, December 29 email and motion R2 for the consultation.
Also, thanks for the heads up on the ten days. I had not totallyconsidered that, but I thought of the holidays for everyone, in proposing the January 3 consultation date.
If the other participants can move up the date to meet ten days, I will turn around the motion to the docket the next day.
Alan Blind On Mon, Dec 30, 2024 at 9:53AM Michael Spencer <Michael.Spencer@nrc.gov> wrote:
Mr. Blind, We are considering your request for consultation and intend to respond soon, hopefully by tomorrow. Consistent with your email below, our response will be based solely on the third version of the draft motion included in your December 29, 2024, email.
Based on your requests for consultation, it appears that you are asking us provide our views by January 3, 2025, to support a timely filing. To the extent you may be considering the 10-day deadline in 10 CFR 2.323(a), I note that the ADAMS properties information in publicly available web-based ADAMS (you can verify this yourself) indicates that the final RAI became available to the public on December 23, 2024, and 10 days from December 23 is January 2.
Finally, your emails include a typo for Peter Loms email address. In the future, please use Peter.Lom@nrc.gov.
- Thanks, Michael A. Spencer Counsel for NRC Staff - Email Correspondence Regarding Timing of Consultation
From: Alan Blind <a.alan.blind@gmail.com>
Sent: Sunday, December 29, 2024 9:58 AM To: Anita Ghosh Naber <anita.ghoshnaber@nrc.gov>; Lovett, Alan <alovett@balch.com>; Michael Spencer <Michael.Spencer@nrc.gov>; Peter.Lon@nrc.gov; Blanton, Stan <sblanton@balch.com>;
Julie Ezell <Julie.Ezell@nrc.gov>; Terry Lodge <tjlodge50@yahoo.com>; Eskelsen, Grant
<geskelsen@balch.com>; David Roth OGC <David.Roth@nrc.gov>; Caitlin Byrd
<Caitlin.Byrd@nrc.gov>; Wally Taylor <wtaylor784@aol.com>; Susan Vrahoretis
<Susan.Vrahoretis@nrc.gov>
Subject:
[External_Sender] Third Version of Motion to Include NRC Staff LAR Reviewer RAI -
Consultation Request
Subject:
Third Version of Motion to Include NRC Staff LAR Reviewer RAI -
Consultation Request
Dear Counsel and Interested Parties,
Please disregard the first two requests for consultation, December 25, and December 27.
Pursuant to 10 C.F.R. § 2.323(b), I am writing to request your consultation on athird versionof the Motion to Include NRC Staff LAR Reviewer Request for Additional Information Concerning Updated Operations FSAR and Holtecs Use of 10 C.F.R. § 50.59 Into the Adjudication Docket. A copy of the updated motion is attached for your review(RAI Motion R2.pdf).
I respectfully apologize for the multiple requests for consultation. This new draft represents agreatly simplifiedversion of the prior motions, focusing on the arguments regarding the Joint Petitioner's bases to include the November 22, 2024, NRC Staff RAI (ML24358A148) in the adjudicatory docket.
All APA (Administrative Procedure Act) references have been removedto streamline the text and to better address the core procedural and substantive issues.
We would appreciate your comments, concurrence, or non-concurrence on Friday, 12/3/2025,so that we can finalize and submit it to the Board. If you have any questions or would like to discuss further, please feel free to contact me at your convenience.
Best regards, Alan Blind Joint Petitioners Representative
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOLTEC DECOMMISSIONING INTERNATIONAL, LLC, AND HOLTEC PALISADES, LLC (Palisades Nuclear Plant)
Docket No. 50-255-LA-3 Certificate of Service Pursuant to 10 C.F.R. § 2.305, I hereby certify that the NRC Staff Answer to Joint Petitioners Motion for Extension of Time, has been filed through the NRCs E-Filing System this 31st day of December 2024.
/Signed (electronically) by/
Michael A. Spencer Counsel for NRC Staff Mail Stop: O14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9115 Email: Michael.Spencer@nrc.gov Dated December 31, 2024