ML23039A158
| ML23039A158 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 02/08/2023 |
| From: | Bollwerk G Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 56631, 50-445-LR, 50-446-LR, ASLBP 23-978-01-LR-BD01 | |
| Download: ML23039A158 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before the Licensing Board:
G. Paul Bollwerk, III, Chair Dr. Gary S. Arnold Dr. Sue H. Abreu In the Matter of Docket Nos. 50-445-LR 50-446-LR VISTRA OPERATIONS COMPANY, LLC ASLBP No. 23-978-01-LR-BD01 (Comanche Peak Nuclear Power Plant, Units 1 and 2) February 8, 2023 MEMORANDUM AND ORDER (Initial Prehearing Order)
This proceeding concerns an October 3, 2022 request by Vistra Operations Company, LLC (Vistra) to extend its operating authority under the existing 10 C.F.R. Part 50 operating licenses for its Comanche Peak Nuclear Power Plant, Units 1 and 2, for an additional twenty years.1 The NRC published a hearing opportunity notice regarding this initial license extension request in a December 1, 2022 Federal Register notice that established a January 30, 2023 deadline for any hearing requests challenging the Vistra initial license renewal application.2 On January 30, 2023, Citizens for Fair Utility Regulation (CFUR) submitted an intervention petition.3 1 See Letter from Steven K. Sewell, Senior Director, Vistra, to Document Control Desk, Nuclear Regulatory Commission (NRC) at 1-2 (Oct. 3, 2022) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML22276A082).
2 See [Vistra]; Comanche Peak Nuclear Power Plant, Units 1 and 2, 87 Fed. Reg. 73,798 (Dec. 1, 2022).
3 See Petition for Leave to Intervene and Request for hearing of [CFUR] (Jan. 30, 2023).
By memorandum dated February 6, 2023, the Secretary of the Commission referred the CFUR petition to the Chief Administrative Judge for further action.4 In turn, the Chief Administrative Judge on February 8, 2023, assigned the petition to this Licensing Board to rule on standing and contention admissibility matters and to preside at any hearing.5 Regarding the conduct of this proceeding, the following directives shall apply to the hearing petition currently pending before the Board as well as any future hearing petitions or other filings submitted by any participant to this proceeding.
I. BRIEFING SCHEDULE In accordance with 10 C.F.R. § 2.309(i), the answers of Vistra and the NRC Staff to the pending January 30, 2023 CFUR hearing request are due on or before Friday, February 24, 2023, while any reply by petitioner CFUR to those answers is due on or before Friday, March 3, 2023, subject to any Board changes to these dates as explained below.
In establishing this schedule, we note that on the same day the CFUR hearing petition was filed with the agency, the Secretary of the Commission issued an order in response to several requests to extend the time for submitting a hearing petition in this proceeding. That order extended the deadline to file a hearing request in this proceeding until Wednesday, March 1, 2023, for five individuals.6 A February 6, 2023 order then expanded that extension to encompass all potential intervention petition filers.7 4 See Memorandum from Brooke P. Clark, NRC Secretary, to E. Roy Hawkens, Chief Administrative Judge (Feb. 6, 2023).
5 See Establishment of Atomic Safety and Licensing Board (Feb. 7, 2023).
6 See Commission Order (Jan. 30, 2023) at 2 (unpublished).
7 See Commission Order (Feb. 6, 2023) at 2 (unpublished); see also In the Matter of
[Vistra] (Comanche Peak Nuclear Power Plant, Units 1 and 2; Order, 88 Fed. Reg __ (Feb. 9, 2023) (https://www.federalregister.gov/public-inspection/2023-02784/order-vistra-operations-co-
Because of the new petition filing deadline, if any of the three current participants to this proceeding (i.e., Vistra, the NRC Staff, and CFUR) believes there is any reason the briefing schedule above should be changed, they should submit a motion with that request no later than Monday, February 13, 2023.8 In that filing, they should explain the justification for that request and indicate what alternative schedule they propose be implemented. That filing will be subject to the requirements governing motions set forth in section II.B.1 below, including the participant consultation requirement in 10 C.F.R. § 2.323(b). Any answer to such a filing must be submitted on or before Thursday, February 16, 2023.
II. ADMINISTRATIVE MATTERS A. Notice of Appearance If they have not already done so, on or before Monday, February 13, 2023, each counsel or representative for the current participants shall file a notice of appearance complying with the requirements of 10 C.F.R. § 2.314(b) via the agencys E-Filing system.9 In each notice of appearance, in addition to providing a business address and telephone number, an attorney or representative should provide a facsimile number and an email address (if any).
llc-comanche-peak-nuclear-power-plant-units-1-and-2).
8 The Board does not contemplate extending this filing deadline absent a joint motion from the participants submitted on or before Friday, February 10, 2023, that (1) indicates they are negotiating regarding a joint proposal to revise the briefing schedule set forth above; and (2) provides a date certain by which they anticipate such a joint proposal will be submitted to the Board.
9 For assistance with the NRCs E-Filing system, a participant should contact the Electronic Filing Helpdesk by visiting its webpage (https://www.nrc.gov/site-help/e-submittals/contact-us-eie.html); calling (866) 672-7640 between the hours of 9:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday (excluding federal government holidays), or send an e-mail from https://www.nrc.gov/site-help/e-submittals/contact-us-eie.html.
B. Limitations on Pleading Length and Reply Pleadings
- 1. Page Limitation Absent preapproval by the Board or some other Board directive, any motion filed after the date of this memorandum and order and any related responsive pleadings shall not exceed ten pages in length (including the signature page, but excluding the certificate of service and any attachments/enclosures).10 Any request for preapproval to exceed this page limitation shall be submitted in writing no less than three business days prior to the time the motion or responsive pleading is filed or due to be filed. The request must (1) indicate (as is the case with any motion) whether the request is opposed or supported by the other participants to the proceeding;11 (2) provide a good faith estimate of the number of additional pages that will be filed; and (3) demonstrate good cause for being permitted to exceed the page limitation.
10 Any answers/replies associated with the January 30, 2023 CFUR hearing request (or any subsequent hearing request) are not subject to this page limitation. This is not the case, however, for (1) any motion for admission of a section 2.309(f)(2) new or amended contention submitted after the proceedings intervention petition deadline has passed; and (2) any answers/replies to such a motion, all of which are subject to this page limitation.
And because the page limit applies regardless of the number of contentions involved, when more than one new/amended contention is being submitted, in lieu of multiple separate motions of ten pages seeking the admission of each individual contention, it would be preferable to seek leave of the Board to exceed the page limit. If granted, this would permit the participant to file one timely motion that deals with all the new/amended contentions being proffered that are associated with the information that it is asserted triggers the motion.
11 See 10 C.F.R. § 2.323(b). Pursuant to section 2.323(b), a motion requires a certification by the moving participant, or the attorney or representative for the moving participant, that a sincere effort has been made to contact the other participants in the proceeding and resolve the matters raised by the motion, but that the movants efforts in this regard have been unsuccessful. The Board notes that it is inconsistent with the dispute avoidance/resolution purposes of section 2.323(b) for a non-moving participant, or for counsel or the representative for the non-moving participant, to fail to make a sincere effort to be available to consult regarding, or to fail to attempt in good faith to resolve, the factual and legal issues raised in the motion. Also, if 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, the participants are encouraged to file a joint motion requesting such a time extension.
- 2. Reply Pleadings Except in instances involving a section 2.309(f)(2) motion to file a new/amended contention, a participant to this proceeding must request permission to file a reply to a response/answer to a motion.12 A request for Board preapproval to file a reply shall be submitted in writing no less than three business days prior to the time the reply will be filed.13 A request to file a reply must (1) indicate whether the request is opposed or supported by the other participants to the proceeding; and (2) demonstrate compelling circumstances exist for permitting the reply to be filed.14 C. Motions for Extension of Time A motion for extension of time in this proceeding shall be submitted in writing at least three business days before the due date for the pleading or other submission for which an extension is sought.15 A motion for extension of time must (1) indicate whether the request is 12 Compare id. § 2.323(c), with id. § 2.309(i)(2).
13 Although the agencys rules regarding motions practice do not provide for reply pleadings, the Board will presume that for a reply to be timely, it would have to be filed within seven days of the date of service of the answer it is intended to address. See id. § 2.309(i)(2).
14 Section 2.323(c) indicates that compelling circumstances might be shown in an instance when the moving participant demonstrates that it could not reasonably have anticipated the arguments to which it seeks to reply. Id. § 2.323(c). Another compelling circumstance may be if a participant files an answer supporting a motion that includes new facts or arguments.
15 Unless some other time is specified in the agencys rules of practice or by the Board, in accordance with section 2.323(a)(2), (c), a motion (other than summary disposition motions) generally is due within ten days after the occurrence or circumstance from which the motion arises. Any answer to that motion is due within ten days of service of the motion. An exception to this ten-day filing period is a motion seeking the admission of new/amended contentions.
See id. § 2.309(f)(2); see also id. § 2.323(a)(1) (motions for new/amended contentions not subject to section 2.323 requirements). For such a motion to be considered timely under section 2.309(c)(1)(iii), the motion (and the accompanying new/amended contention) should be filed within thirty days of the date upon which the information that is the basis of the motion becomes available to the petitioner/intervenor. Moreover, notwithstanding the provisions of section 2.309(i)(1), any answer to a motion seeking the admission of a new/amended contention
opposed or supported by the other participants to this proceeding; and (2) demonstrate appropriate cause that supports permitting the extension.
D. Opposing a Request to Exceed the Page Limitation, to File a Reply, or to Extend the Time for Filing a Pleading Any opposition to a request to exceed the page limit, to file a reply, or to extend the time for filing a pleading shall be filed and served on the Board, the Office of the Secretary, and the other participants in this proceeding no later than the next business day after the filing of the request.
E. Attachments/Enclosures to Filings and Evidentiary Exhibits For all future filings, if a participant proffers a pleading or other submission that has additional documents appended to it, these items should be referred to as attachments or enclosures (not exhibits), with a separate alpha or numeric designation given to each appended document (e.g., Attachment A, Enclosure 1), either on the first page of the appended document or on a cover/divider sheet in front of the appended document. Attachments or enclosures to a motion and any related responsive pleadings are not subject to the page limitation set forth in section II.B.1 above, but should be submitted via the agencys E-Filing system as part of a single electronic file consisting of the pleading or other submission, the certificate of service, and all the attachments or enclosures associated with the pleading or submission. In accordance with the agencys electronic submission guidance (at page 6), multiple electronic files should be used for pleadings or submissions with attachments or enclosures only if the filing exceeds 500 megabytes in size.16 shall be due within fourteen days of service of the motion, and any reply to an answer is due within seven days of service of the response.
16 See https://www.nrc.gov/docs/ML13031A056.pdf (access link for Guidance for Electronic Submissions to the NRC (rev. 9 Aug. 6, 2021)).
The label exhibit should be reserved for use as a designation for those items that are submitted, whether by prefiling or at the time of an evidentiary hearing, as potential materials a participant will seek to have identified for inclusion in the evidentiary record of the proceeding.
Each evidentiary hearing exhibit (including prefiled written testimony) must be submitted via the agencys E-Filing system as a separate electronic file. See 10 C.F.R. § 2.304(g).
F. Filing Date on Pleadings The first page of each pleading submitted by a participant should include the pleadings filing date in the upper right-hand corner or as part of the caption.
III. Initial Prehearing Conference and Limited Appearance Statements The Board has not yet determined whether it will hold an initial prehearing conference to hear argument regarding any disputes over standing or the admissibility of petitioner CFURs proffered contentions. The Board would note, however, that if it decides to conduct an initial prehearing conference, that prehearing conference is likely to be conducted from the Atomic Safety and Licensing Board Panels Rockville, Maryland hearing room, with the opportunity for (1) counsel to participate either in person or via teleconferencing or web conferencing; and (2) public access to the conference in person or via a listen-only telephone number and passcode.
Finally, at some point later in this proceeding, the Board will determine whether it intends to conduct an oral limited appearance statements session. At present, however, in accord with 10 C.F.R. § 2.315(a), any person not a participant to this proceeding that wishes to make a statement regarding the issues in the proceeding can do so in writing. Limited appearance statements, which are placed in the docket for the proceeding, provide members of the public with an opportunity to make the Board and the participants aware of their concerns about matters at issue in the proceeding.
A written limited appearance statement can be submitted at any time and should be sent to the Office of the Secretary using one of the methods prescribed below:
Mail to: Office of the Secretary Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Fax to: (301) 415-1101 (verification (301) 415-1677)
Email to: hearing.docket@nrc.gov In addition, a copy of the limited appearance statement should be sent to the Licensing Board Chair using the same method at the address/fax number/e-mail address below:
Mail to: Administrative Judge G. Paul Bollwerk, III Atomic Safety and Licensing Board Panel Mail Stop T-3A02 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Fax to: (301) 415-5206 (verification (301) 415-7550)
E-mail to: paul.bollwerk@nrc.gov It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
G. Paul Bollwerk, III, Chair ADMINISTRATIVE JUDGE Rockville, Maryland February 8, 2023
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
VISTRA OPERATIONS COMPANY, LLC ) Docket Nos. 50-445-LR
) 50-446-LR (Comanche Peak Nuclear Power Plant, )
Units 1 and 2) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Initial Prehearing Order) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16B33 Office of the General Counsel Washington, DC 20555-0001 Mail Stop - O-14A44 E-mail: ocaamail.resource@nrc.gov Washington, DC 20555-0001 Marcia Carpentier Ethan P. Licon U.S. Nuclear Regulatory Commission David E. Roth Office of the Secretary of the Commission Susan H. Vrahoretis Mail Stop: O-16B33 E-mail: Marcia.Carpentier@nrc.gov Washington, DC 20555-0001 Ethan.Licon@nrc.gov E-mail: hearingdocket@nrc.gov David.Roth@nrc.gov Susan.Vrahoretis@nrc.gov U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Counsel for Vistra Operations Mail Stop: T-3F23 Company, LLC Washington, DC 20555-0001 Morgan, Lewis & Bockius, LLC G. Paul Bollwerk, Chairman 1111 Pennsylvania Ave NW Dr. Sue H. Abreu, Administrative Judge Washington, DC 20004 Dr. Gary S. Arnold, Administrative Judge Ryan K. Lighty Emily G. Newman, Law Clerk Paul Bessette E-mail: Paul.Bollwerk@nrc.gov Timothy Matthews Sue.Abreu@nrc.gov E-mail: ryan.lighty@morganlewis.com Gary.Arnold@nrc.gov paul.bessette@morganlewis.com Emily.Newman@nrc.gov timothy.matthews@morganlewis.com
Vistra Operations Company, LLC (Comanche Peak Nuclear Power Plant, Units 1 and 2)
MEMORANDUM AND ORDER (Initial Prehearing Order)
Counsel for Citizens for Fair Utility Regulation W. David Griggs 1925 Belt Line Road Suite 552 Carrollton, TX 75006 E-mail: david@dgriggs.com Digitally signed by Clara I. Sola Clara I. Sola Date: 2023.02.08 14:18:27 -05'00' Office of the Secretary of the Commission Dated at Rockville, Maryland, this 8th day of February 2023.
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