ML24046A138

Applicants Answer Opposing Beyond Nuclears and Sierra Clubs Motion to Suspend Hearing Request Deadline

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)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

)

In the Matter of: )

) Docket Nos. 50-338-SLR-2 and VIRGINIA ELECTRIC AND POWER COMPANY ) 50-339-SLR-2 and OLD DOMINION ELECTRIC COOPERATIVE )

) February 15, 2024 (North Anna Power Station, Units 1 and 2) )

)

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), subm it 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) suspe nd 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).

1 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.

2 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 pro ceeding 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)).

3 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.

4 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 (wit hout 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 thos e 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, an d 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.

5 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) Executed in Accord with 10 C.F.R. § 2.304(d)

WILLIAM S. BLAIR, Esq. RYAN K. LIGHTY, Esq.

DOMINION ENERGY SERVICES, INC. PAUL M. BESSETTE, Esq.

120 Tredegar Street, RS-2 MORGAN, LEWIS & BOCKIUS LLP Richmond, VA 23219 1111 Pennsylvania Avenue, N.W.

(561) 267-7459 Washington, D.C. 20004 William.S.Blair@dominionenergy.com (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.

6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

)

In the Matter of: )

) Docket Nos. 50-338-SLR-2 and VIRGINIA ELECTRIC AND POWER COMPANY ) 50-339-SLR-2 and OLD DOMINION ELECTRIC )

COOPERATIVE ) February 15, 2024

)

(North Anna Power Station, Units 1 and 2) )

)

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

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