ML23041A024
| ML23041A024 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 02/10/2023 |
| From: | Bessette P, Griggs W, Lighty R, Matthews T Citizens for Fair Utility Regulation (CFUR), Morgan, Morgan, Lewis & Bockius, LLP, Vistra Operations Company |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 56634, 50-445-LR, 50-446-LR | |
| Download: ML23041A024 (0) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of:
VISTRA OPERATIONS COMPANY LLC (Comanche Peak Nuclear Power Plant, Units 1 and 2)
Docket Nos. 50-445-LR and 50-446-LR February 10, 2023 JOINT UNOPPOSED MOTION OF VISTRA OPERATIONS COMPANY LLC AND CITIZENS FOR FAIR UTILITY REGULATION TO ADJUST BRIEFING SCHEDULE Pursuant to 10 C.F.R. §§ 2.323 and 2.307, and the Atomic Safety and Licensing Boards (Board) Order of February 8, 2023 (Initial Prehearing Order),1 Vistra Operations Company LLC (Vistra OpCo) and Citizens for Fair Utility Regulation (CFUR) (collectively, Movants) hereby jointly move to adjust the briefing schedule for the above-captioned proceeding by establishing March 27, 2023, as the deadline for answers to CFURs hearing request and petition to intervene (CFUR Petition).2 This adjustment is necessary to avoid a disordered pleading sequence in which answers to the CFUR Petition otherwise would be due prior to expiration of the recently-extended hearing request deadline for other possible participants.3 1
Licensing Board Memorandum and Order (Initial Prehearing Order) (Feb. 8, 2023) (ML23039A158).
2 Petition for Leave to Intervene and Request for Hearing of Citizens for Fair Utility Regulation (Jan. 30, 2023) (ML23030B927) (CFUR Petition).
3 Pursuant to 10 C.F.R. § 2.323(b) and the Initial Prehearing Order, Movants counsel certify that they conferred and agreed to the proposed schedule set forth in this motion. Counsel for the U.S. Nuclear Regulatory Commission (NRC) Staff advised that the NRC Staff does not oppose this motion, but declined to join it.
2 By way of background, Vistra OpCo filed its License Renewal Application (LRA) for Comanche Peak Nuclear Power Plant, Units 1 and 2, with the NRC on October 3, 2022.4 The LRA has been publicly available on the NRCs Agencywide Documents Access and Management System (ADAMS) since October 25, 2022.5 The NRC published a notice in the Federal Register on December 1, 2022, offering an opportunity to file hearing requests and petitions to intervene in the above-captioned proceeding by January 30, 2023.6 On January 30, 2023, the NRC Secretary issued an order (First Extension Order) that (1) disclosed receipt of five filings that were emailed7 to the Secretary between January 17, 2023, and January 25, 2023, by individuals (Named Individuals) seeking extensions of the hearing request deadline, and (2) pursuant to the Secretarys authority under 10 C.F.R. § 2.346(b) to rule on motions for extensions of time, granted an extension of the hearing request deadline as to the Named Individuals until March 1, 2023.8 That same day, January 30, 2023, CFUR filed its Petition.9 On February 6, 2023, the NRC Secretary issued another order (Second Extension Order) that disclosed receipt of another request emailed10 to the Secretary by a different 4
Letter from S. Sewell, Vistra OpCo, to NRC Document Control Desk, Comanche Peak Nuclear Power Plant, Units 1 and 2... License Renewal Application (Oct. 3, 2022) (ML22276A082).
5 See Web-based ADAMS, https://adams.nrc.gov/wba/ (Date Added property for Accession Number ML22276A082).
6 Vistra Operations Company LLC; Comanche Peak Nuclear Power Plant, Units 1 and 2, 87 Fed. Reg.
73,798 (Dec. 1, 2022) (Hearing Opportunity Notice).
7 Contra 10 C.F.R. § 2.302(a).
8 NRC Secretary Order at 1-2 (Jan. 30, 2023) (unpublished) (ML23030B901).
9 On February 6, 2023, the NRC Secretary referred the CFUR Petition to the Chief Judge of the Atomic Safety and Licensing Board Panel. Memorandum from B. Clark to E.R. Hawkens, Petition to Intervene and request for Hearing Regarding the License Renewal Application of Vistra Operations Companuy [sic],
LLC for Comanche Peak Nuclear Power Plant, Units 1 and 2 (Docket Nos. 50-445 and 50-446-LR)
(Feb. 6, 2023) (ML23037A877). And on February 7, 2023, the Chief Judge established the Board for this proceeding. Establishment of Atomic Safety and Licensing Board (Feb. 7, 2023) (ML23038A210).
10 Contra 10 C.F.R. § 2.302(a).
3 individual (together with the Named Individuals, the Requestors) effectively seeking reconsideration11 of the First Extension Order and requesting an extension of the hearing request deadline for all members of the public, and granted an extension of the hearing request deadline for all persons until March 1, 2023.12 On February 8, 2023, the Board issued the Initial Prehearing Order for this proceeding.
Pursuant to 10 C.F.R. § 2.309(i)(1) and the Initial Prehearing Order, the current deadline for answers to the CFUR Petition is February 24, 2023. Meanwhile, the new deadline for all
[other] persons to file hearing requests is March 1, 2023.
The Initial Prehearing Order invited the Movants and the NRC Staff, on or before February 16, 2023, to move for an adjustment to that briefing schedule. Accordingly, Movants respectfully request that the deadline for answers to the CFUR Petition be moved to March 27, 2023, which is 25 days after the new, March 1, 2023 hearing request deadline (accounting for the weekend). This alignment would allow answers to the CFUR Petition, and any other hearing requests and petitions to intervene filed on March 1, 2023, to be due on the same date. Reply pleadings from CFUR and any other petitioners then would be due 7 days after service of any answers (i.e., April 3, 2023, for answers served on March 27, 2023).13 The NRC Staff does not oppose Movants joint request.
Good cause exists for this adjustment because the current deadline would require that answers to the CFUR Petition be filed before the expiration of the new hearing request deadline.
In effect, answering parties would be compelled to disclose (via publicly available pleadings) key arguments and legal strategy that could be leveraged in developing additional hearing 11 The request did not address the criteria in 10 C.F.R. § 2.345 applicable to petitions for reconsideration.
12 NRC Secretary Order at 1-2 (Feb. 6, 2023) (unpublished) (ML23037A791).
13 10 C.F.R. § 2.309(i)(3).
4 requests, thereby providing an unfair advantage not provided to other participants and prejudicing the answering parties. This also would be contrary to the spirit of the Commissions codified procedural rules, which purposefully contemplate logically-ordered adjudicatory proceedings in which petitions are filed before answers are due.14 Furthermore, this circumstance was unavoidable15 because it arose from the First and Second Extension Orders granting extension requests as to which Movants were not afforded prior consultation, service, or opportunity to respond.16 Finally, the NRC Secretary has granted such extensions in analogous circumstances in other proceedings,17 and Movants respectfully suggest the Board should do the same here. And, as a practical matter, this adjustment should not impact the overall timing of the adjudicatory proceeding, given that answers to hearing requests filed on March 1, 2023, would be due on March 27, 2023, regardless.
For all of these reasons, Movants jointly request that the Board grant this unopposed motion and issue an order establishing March 27, 2023, as the deadline for answers to the CFUR Petition.
14 See generally 10 C.F.R. § 2.309.
15 See Hydro Res., Inc. (Albuquerque, NM), CLI-99-1, 49 NRC 1, 3 n.2 (1999) (observing that unavoidable circumstances provide a basis for extending filing deadlines).
16 The Requestors neither consulted prior to submitting their respective filings nor served them on the Movants. Contra 10 C.F.R. § 2.323(a)(2), (b). Nor did the NRC Secretary serve those filings on Movants prior to granting the extensions. But see Email from R. Lighty, Counsel for Vistra OpCo, to NRC Secretary (Jan. 18, 2023, 10:29 AM EST) (identifying Vistra OpCos counsel and requesting that any requests for extension of deadlines received outside of the electronic docket be served thereon).
17 See, e.g., Exelon Generation Company, LLC (Fleet License Transfer), Combined Motion (June 30, 2021)
(ML21181A376) (requesting an extension to avoid an answer-before-petition pleading sequence); Exelon Generation Company, LLC (Fleet License Transfer), NRC Secretary Order at 2 (July 7, 2021)
(ML21187A285) (granting same).
5 Respectfully submitted, Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 Ryan.Lighty@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)
TIMOTHY P. MATTHEWS, Esq.
PAUL M. BESSETTE, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5527 (202) 739-5796 Timothy.Matthews@morganlewis.com Paul.Bessette@morganlewis.com Counsel for Vistra Operations Company LLC Dated in Washington, D.C.
This 10th day of February 2023 Executed in Accord with 10 C.F.R. § 2.304(d)
WILLIAM DAVID GRIGGS, Esq.
1925 Belt Line Rd., Suite 552 Carrollton, Texas 75006 (214) 244-5979 David@dgriggs.com Counsel for Citizens for Fair Utility Regulation Dated in Dallas, TX This 10th day of February 2023
DB1/ 135919072 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the matter of:
VISTRA OPERATIONS COMPANY LLC (Comanche Peak Nuclear Power Plant, Units 1 and 2)
Docket Nos. 50-445-LR and 50-446-LR February 10, 2023 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing JOINT UNOPPOSED MOTION OF VISTRA OPERATIONS COMPANY LLC AND CITIZENS FOR FAIR UTILITY REGULATION TO ADJUST BRIEFING SCHEDULE was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 Ryan.Lighty@morganlewis.com Counsel for Vistra Operations Company LLC