ML20050E118
| ML20050E118 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 02/19/2020 |
| From: | Bollwerk G Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 50-289-LA, 50-320-LA, ASLBP 20-962-01-LA-BD01, RAS 55574 | |
| Download: ML20050E118 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before the Licensing Board:
G. Paul Bollwerk, III, Chairman Dr. Sue H. Abreu Dr. Gary S. Arnold In the Matter of Docket Nos. 50-289 and 50-320 EXELON GENERATION COMPANY, LLC ASLBP No. 20-962-01-LA-BD01 (Three Mile Island Nuclear Station, Units 1 and February 19, 2020 2)
MEMORANDUM AND ORDER (Denying Motion for Stay and to Reply to Licensing Board Decision and Referring Pleading to the Commission)
In a January 23, 2020 memorandum and order, this Licensing Board denied the request of pro se petitioners Eric J. Epstein and Three Mile Island Alert, Inc., (Petitioners) seeking a hearing to challenge a July 1, 2019 license amendment request by Exelon Generation Company, LLC, (Exelon) to amend the 10 C.F.R. Part 50 operating license for Three Mile Island Nuclear Station, Unit 1. See LBP-20-02, 91 NRC __, __ (slip op. at 29) (Jan. 23, 2020). In that ruling, we indicated that pursuant to 10 C.F.R. § 2.311 any appeal from that decision could be taken within 25 days after that issuance was served, see id., which under the provisions of 10 C.F.R. § 2.306(a) would have required that any appeal be lodged with the Commission on or before February 18, 2020. On February 16, 2020, however, Petitioners filed a pleading directed to this Board entitled Motion To Stay Memorandum and Reply to Proposed Order Denying
Intervention and Petition. See Motion To Stay Memorandum and Reply to Proposed Order Denying Intervention and Petition (Feb. 16, 2020) at 1 [hereinafter Petitioners Motion].1 Like the heading on this filing, the content of Petitioners submission creates some uncertainty about that pleadings procedural posture. Nonetheless, when considered in the context of the Boards January 23, 2020 determination denying their hearing petition, Petitioners pleading appears to encompass one or more of three possible requests for relief.2 First, as the initial portion of the pleadings heading suggests, the filing may be a request for a stay of the Boards ruling dismissing the hearing petition. See id. While the agencys rules of practice indicate that a request for a stay of a licensing board decision can be filed with either the board or the Commission, they also declare that such a request must be submitted within 10 days of service of the contested issuance, which in this case would have been by February 3, 2020. See 10 C.F.R. § 2.342(a). Being almost two weeks out of time without any showing of good cause for its lateness, see id. § 2.307(a), Petitioners stay motion must be denied.3 1 Although the date in the caption of Petitioners pleading indicates the filing was made on February 18, 2020, the date at the bottom of the pleadings first and last pages is February 16, 2020, Petitioners Motion at 1, 23, which also corresponds with the date the filing was submitted using the agencys E-Filing system.
2 Applicant Exelon and the Nuclear Regulatory Commission Staff generally would be entitled to an opportunity to answer Petitioners pleading and provide their views on the nature of that filing. See 10 C.F.R. § 2.323(c). In light of the clear legal basis for our rulings on the pleadings efficacy before the Board, as outlined below, and the lack of any prejudice to Exelon and/or the Staff from those rulings, in this instance no useful purpose would be served by awaiting additional filings from these participants.
3 Petitioners motion also warrants dismissal as lacking a statement reflecting the outcome of consultation with the other participants to the proceeding and, as their filing may constitute a stay request, for failing to address the standards governing the issuance of a stay.
See id. §§ 2.323(b), 2.342(b), (e).
A second possibility arises from the indication in the pleadings heading that it is a reply to the Licensing Boards January 23, 2020 determination.4 Petitioners Motion at 1. While the agencys rules of practice do not sanction such a reply pleading per se, they do permit a motion seeking reconsideration of a licensing board decision.5 See 10 C.F.R. § 2.323(e). As the rule governing such a motion makes clear, however, a reconsideration request likewise must be submitted within 10 days. See id. But once again having failed to meet the applicable deadline without a showing of good cause, see id. § 2.307(a), Petitioners reply/reconsideration request must be denied.6 Finally, the Petitioners pleading contains an extensive discussion about why they have standing to intervene and why the two contentions they proffered are admissible. See Petitioners Motion at 1122. Standing and contention admissibility deficiencies were the bases for the Boards determination that their hearing petition could not be granted. See LBP-20-02, 91 NRC at __ __ (slip op. at 1429). It thus is possible that this filing constitutes their appeal from the Licensing Boards January 23, 2020 ruling denying their hearing petition. If that is the case, however, that appeal has been directed to the wrong presiding officer. Accordingly, to 4 Although the pleadings heading refers to the Boards January 23, 2020 decision as a Proposed Order Denying Intervention and Petition, Petitioners Motion at 1, it is apparent that our ruling denying their hearing request and terminating the proceeding before the Board was, in fact, a final, fully effective order, see LBP-20-02, 91 NRC at __, __ (slip op. at 2, 29).
5 The agencys rules of practice also provide for a motion to reopen the closed record of a proceeding to consider additional evidence, see 10 C.F.R. § 2.326(a), which is clearly inapplicable here since no evidentiary record was created in this proceeding.
6 Denial of this request also is appropriate because Petitioners have failed to provide the showing of "compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid that is necessary to support a reconsideration motion. Id. § 2.323(e).
avoid any confusion in that regard, we refer Petitioners February 16, 2020 pleading to the Commission for whatever further action it may deem appropriate.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
G. Paul Bollwerk, III, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland February 19, 2020
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
EXELON GENERATION COMPANY LLC ) Docket Nos. 50-289 and 50-320-LA
)
Three Mile Island Nuclear Station )
(Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Denying Motion for Stay and to Reply to Licensing Board Decision and Referring Pleading to the Commission) have been served upon the following persons by Electronic Information Exchange.
Molly R. Mattison, Law Clerk U.S. Nuclear Regulatory Commission Molly.Mattison@nrc.gov Office of Commission Appellate Adjudication Mail Stop: O-16B33 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the Secretary of the Commission ocaamail@nrc.gov Mail Stop: O-16B33 Washington, DC 20555-0001 hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the General Counsel Mail Stop: O-14A44 G. Paul Bollwerk, III, Chairman Washington, DC 20555-0001 Administrative Judge paul.bollwerk@nrc.gov Reginald Augustus, Esq.
Tyson Campbell, Esq.
Dr. Sue H. Abreu Kayla Gamin, Esq.
Administrative Judge David E. Roth, Esq.
sue.abreu@nrc.gov Brian Newell, Paralegal reginal.augustus@nrc.gov Dr. Gary S. Arnold tyson.campbell@nrc.gov Administrative Judge kayla.gamin@nrc.gov gary.arnold@nrc.gov david.roth@nrc.gov brian.newell@nrc.gov Ian Curry, Law Clerk ian.curry@nrc.gov Exelon Generation Company, LLC Taylor Mayhall, Law Clerk 4300 Winfield Road taylor.mayhall@nrc.gov Warrenville, IL 60555 Tamra Domeyer, Esq.
Stephanie B. Fishman, Law Clerk tamra.domeyer@exeloncorp.com Stephanie.Fishman@nrc.gov
THREE MILE ISLAND (Units 1 and 2) - Docket No. 50-289 and 50-320-LA MEMORANDUM AND ORDER (Denying Motion for Stay and to Reply to Licensing Board Decision and Referring Pleading to the Commission)
Counsel for Exelon Generation Company, LLC Morgan Lewis Bockius 1000 Louisiana Street Suite 4000 Houston, TX 77002 Ryan K Lighty, Esq.
Katheryn Sutton, Esq.
ryan.lighty@morganlewis.com kathryn.sutton@morganlewis.com Three Mile Island Alert, Inc.
4100 Hillsdale Road Harrisburg, PA 17112 Eric Epstein lechambon@comcast.net
[Original signed by Krupskaya T. Castellon]
Dated at Rockville, Maryland, Office of the Secretary of the Commission this 19th day of February 2020.
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