ML25038A143
| ML25038A143 | |
| Person / Time | |
|---|---|
| Site: | Oconee  |
| Issue date: | 02/07/2025 |
| From: | Leatherman A NRC/OGC |
| To: | |
| SECY RAS | |
| References | |
| RAS 57283, 50-287-SLR-2, 50-269-SLR-2, 50-270-SLR-2 | |
| Download: ML25038A143 (0) | |
Text
February 7, 2025 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)
Docket No. 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 NRC STAFFS ANSWER OPPOSING MOTION BY BEYOND NUCLEAR AND SIERRA CLUB FOR EXTENSION OF TIME AND PAGE LIMIT FOR THEIR APPEAL OF LBP-25-01 Pursuant to 10 C.F.R. § 2.323(c), the U.S. Nuclear Regulatory Commission (NRC Staff) hereby submits its answer opposing the February 3, 2025, Motion by Beyond Nuclear and Sierra Club for Extension of Time and Page Limit for Their Appeal of LBP-25-01 (Motion).
Beyond Nuclear, Inc. and Sierra Club, Inc. (Petitioners) request a two-part extension in their Motion, namely: (1) an extension of time to submit their notice of appeal and brief on appeal of LBP-25-1 until March 3, 2025, and (2) an extension of the page limit in their appellate brief from the regulatory limit of 30 pages to 50 pages.1 The burden for justifying an extension of time and an extension of page limit lies solely on the Petitioners.2 For the reasons presented, the Petitioners have failed to meet their burden to provide good cause for an extension of time, or sufficient justification for an extension of page limit.
1 Motion by Beyond Nuclear and Sierra Club for Extension of Time and Page Limit for Their Appeal of LBP-25-01 (Feb. 3, 2025) (ML25034A273) (Motion).
2 10 C.F.R. § 2.325.
2 I.
DISCUSSION The Petitioners Motion fails to meet the good cause standard set forth by the regulations for an extension of time in filing an appeal, and it further fails to provide sufficient justification for an extension of the preset page limit for their appellate brief.
A. The Petitioners have failed to demonstrate good cause for an extension of time.
The regulation at 10 C.F.R. § 2.311(b) makes clear that appeals must be made within 25 days after the appealing party is served with the order.3 Deviations from the regulatory time limits are limited. The period of time prescribed for an action may only be extended by either the Commission or the presiding officer, and only upon a finding of good cause or an approved stipulation.4 The Commission has also made clear that good cause requires a showing of both unavoidable and extreme circumstances to ensure that the proceeding is adjudicated promptly and to avoid undue delay.5 As discussed herein, the Petitioners have not identified unavoidable and extreme circumstances that would warrant good cause for an extension of time to submit their notice of appeal and brief on appeal of LBP-25-1.
In their Motion, the Petitioners argue that LBP-22-1, served directly on Petitioners counsel three years ago, impacts their ability to timely file an appeal of LBP-25-1; they further argue that they need more time to review and respond to a significant volume of material generated by the ASLB, including LBP-22-1.6 The Petitioners indicate that they intend, in their appeal of LBP-25-1, to go beyond the scope of the appeal of LBP-25-1 and rehash arguments they raised three years ago in their first petition for hearing in this case, which was also completely denied. But the scope of the Petitioners appeal is limited to whether the petition for hearing should have been granted in LBP-25-1, and nothing more. Accordingly, the Petitioners 3 10 C.F.R. § 2.311(b) (emphasis added).
4 10 C.F.R. § 2.307(a).
5 See Statement of Policy on Conduct of Adjudicatory Proceedings, 63 Fed. Reg. 41,872, 41,874 (Aug. 5, 1998); Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342 (1998).
6 Motion at 5.
3 appeal does not, and should not, require an in-depth briefing of any 2022 Atomic Safety and Licensing Board (ASLB) Orders because the time to appeal those decisions has long passed.
Assuming arguendo that LBP-22-1 is at all involved in the instant proceeding and is not beyond the scope of allowable arguments, Petitioners argument that LBP-22-1 was temporarily not available on the agencys Agencywide Documents and Management System (ADAMS) does not constitute good cause for an extension because the Petitioners have had ample notice of LBP-22-1 and time to review it, and because the ASLBs decision in 2022 was served directly on Petitioners counsel.7 Petitioners counsel has had access to said decision for approximately three years. None of the arguments set forth by the Petitioners in their Motion as it relates to the temporary unavailability of LBP-22-1 in ADAMS provide any basis that these circumstances were both unavoidable and extreme and would therefore warrant an extension of time. Thus, the Petitioners argument lacks good cause for an extension of time.
The Petitioners also attempt to justify an extension of time to file an appeal of LBP-25-1 due to the coincidence of major briefing obligations.8 However, the Commission has previously found that conflicting litigation obligations or litigation burden does not constitute good cause for an extension.9 Any conflicting commitments should have been reasonably anticipated and planned for well in advance. The circumstances the Petitioners find themselves were certainly avoidable, and do not create an extreme burden. Accordingly, conflicting legal objections do not constitute good cause in this instance.
Finally, to make the record clear, the NRC Staff completed its review of the Boards decision in LBP-25-1 on January 17, 2025, within hours of receiving the Boards request that the 7 Motion at 5. LBP-22-1 was not publicly available from January 17, 2025, to January 22, 2025. See Certificate of Service, Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), LBP 1, 95 NRC 49 (2022), (ML25017A396).
8 Motion at 7.
9 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), Order of the Secretary (Granting Motion to Extend Time to File a Hearing Request), Mar. 28, 2024 (ML24088A303)
(unpublished) (citing Consolidated Edison Co. of New York (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225, 229-30 (2001) (quoting Niagara Mohawk Power Corp. (Nine Mile Point, Units 1 & 2), 50 NRC 333, 343 (1999))).
4 NRC Staff review the decision before it was released to ensure that it did not contain any sensitive, non-public information. The NRC Staff notified the Board and all parties that it had completed its review and found no sensitive, non-public information on January 17, 2025, without delay.10 The NRC Staff did not, as the Petitioners allege, delay the release of LBP 1.11 Petitioners deadline to file an appeal is based upon the date it became available, on January 22, 2025. Therefore, the Petitioners cannot rely upon these assertions as a basis for good cause and their request for an extension of time.
Thus, the Petitioners have failed to meet their burden of proof to demonstrate unavoidable and extreme circumstances to support a good cause finding that would warrant an extension of time to submit their notice of appeal and brief on appeal of LBP-25-1.
B. The Petitioners have failed to provide justification for an extension of page limits.
The regulation at 10 C.F.R. § 2.341(c)(3) makes clear that any petition for review may not exceed 30 pages in length.12 Although the length of briefs is at the discretion of the Commission, there must be a justification to go beyond the regulatory limit, otherwise the regulation would bear no weight and page limits would become moot. The Petitioners grounds for this extension lack justification for the Commission to go well beyond the regulatory limit of 30 pages to 50 pages.
The only justification provided by the Petitioners for an extension of the page limit was their assertion of the extensive history of this case and the multiple issues raised.13 This argument fails to pass muster. The Petitioners have known the scope of the issues in this proceeding and have had ample time to plan for their appeal brief within the limitations prescribed by long-standing regulations. In addition, the Petitioners request to go well beyond 10 NRC Staff Notification Regarding Review of the Licensing Board's January 17, 2025, Nonpublic Decision (Jan. 17, 2025). [The NRC Staff e-mailed Petitioners counsel, among others, on Friday, Jan. 17, 2025 at 6:56 p.m. that the NRC Staffs review was complete. See Attachment A.].
11 See Motion at 1 n. 1.
12 10 C.F.R. § 2.341(c)(3) (emphasis added).
13 See Motion at 7.
5 the page limit required by the regulations appears to be driven by Petitioners desire to reiterate arguments they raised in 2021 and 2022, which are irrelevant and out of scope here. Moreover, every case appealed to the Commission will always contain its own unique procedural history and its own set of unique issues that an appellants counsel must present in a clear and concise way. Furthermore, to the extent Petitioners seek to add 20 pages to revisit issues resolved in LBP-22-1, such arguments are out of scope. A limit of 30 pages is more than adequate for the Petitioners to challenge the Boards decision in LBP-25-1. Thus, the Petitioners have failed to demonstrate any justification that would warrant the Commission to find a basis to deviate from the regulations regarding page limits.
II.
CONCLUSION For the aforementioned reasons, the Commission should DENY the relief requested in the Petitioners Motion because the Petitioners fail to meet the good cause standard set forth in the regulations for an extension of time in filing an appeal, and the Petitioners fail to provide sufficient justification for an extension of the page limits for an appellate brief.
Respectfully submitted,
/Signed (electronically) by/
Amanda Leatherman Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-0544 E-mail: Amanda.Leatherman@nrc.gov Dated this 7th day of February 2025
From:
Mary Frances Woods To:
Docket, Hearing; Alana Bell; Arielle Miller (She/Her/Hers); Paul Bollwerk; Sue Abreu; Kevin Bernstein; paul.bessette@morganlewis.com; Russell Chazell; scott.clausen@morganlewis.com; dcurran@harmoncurran.com; Whitlee Dean; Docket, Hearing; Anne Fream; paul@beyondnuclear.org; Kristen Haloj; Georgia Hampton; tracey.leroy@duke-energy.com; ryan.lighty@morganlewis.com; Molly.Mattison@Morganlewis.com; Joelysa McLeod; OCAAMAIL Resource; Georgia Rock; David Roth OGC; Stacy Schumann; David Smith (He/Him/His); Clara Sola; stefen@nealrgross.com; Susan Vrahoretis; Megan Wright
Subject:
NRC Proceeding "Oconee 50-269, 50-270 & 50-287-SLR-2" Date:
Friday, January 17, 2025 6:56:35 PM Attachments:
NRC Staff January 17 Notification.pdf The attached NRC Staff Notice was filed on the Electronic Information Exchange (EIE) today; however, we received an error indicating that the service list email notification was not sent.
We contacted SECY and understand that the EIE is experiencing a technical issue that should be resolved on Tuesday, January 21. Accordingly, to ensure timely notification to the Licensing Board and parties to this proceeding, we are serving this notification via email as well.
- Regards,
Mary Frances
Mary Frances Woods Attorney, Division of Reactor Programs Office of the General Counsel U.S. Nuclear Regulatory Commission
Attachment A
6 February 7, 2025 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of DUKE ENERGY CAROLINAS, LLC (Oconee Nuclear Station, Units 1, 2, and 3)
Docket Nos. 50-269-SLR-2, 50-270-SLR-2, 50-287-SLR-2 Certificate of Service Pursuant to 10 C.F.R §2.305, I hereby certify that copies of the foregoing, NRC STAFFS ANSWER OPPOSING MOTION BY BEYOND NUCLEAR AND SIERRA CLUB FOR EXTENSION OF TIME AND PAGE LIMIT FOR THEIR APPEAL OF LBP-25-01, dated February 7, 2025, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 7th day of February 2025.
/Signed (electronically) by/
Amanda Leatherman Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-0544 E-mail: Amanda.Leatherman@nrc.gov Dated this 7th day of February 2025