ML24033A314
| ML24033A314 | |
| Person / Time | |
|---|---|
| Site: | North Anna  |
| Issue date: | 02/02/2024 |
| 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 56926, 50-338-SLR-2, 50-339-SLR-2 | |
| Download: ML24033A314 (0) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
VIRGINIA ELECTRIC AND POWER COMPANY and OLD DOMINION ELECTRIC COOPERATIVE (North Anna Power Station, Units 1 and 2)
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Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 February 2, 2024 APPLICANTS ANSWER OPPOSING BEYOND NUCLEARS AND SIERRA CLUBS CONDITIONAL MOTION FOR EXTENSION OF TIME TO SUBMIT HEARING REQUEST I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.323 and 2.307, Virginia Electric and Power Company, on behalf of itself and Old Dominion Electric Cooperative (collectively, Applicants), submit this Answer in opposition to the Conditional Motion for Extension of Time to Submit Hearing Request (Second Motion) filed by Beyond Nuclear and the Sierra Club (together, Movants).1 The Second Motion is a corollary to Movants January 18, 2024 Motion for Withdrawal of Premature Hearing Notice (First Motion).2 In the Second Motion, Movants ask for a six-week extension of time to submit a hearing request in this proceeding if the Commission denies the First Motion. Movants allege that good cause for such an extension exists primarily due to the litigation burden placed on Movants counsel as a result of undertaking multiple simultaneous proceedings. As explained below, the 1
Conditional Motion by Beyond Nuclear and Sierra Club for Extension of Time to Submit Hearing Request (Feb. 1, 2024) (ML24032A004).
2 Motion by Beyond Nuclear and Sierra Club for Withdrawal of Premature Hearing Notice (Jan. 18, 2024)
(ML24018A150).
2 Commission should DENY the Second Motion because the Commission has expressly held that litigation burden is insufficient to demonstrate good cause.
II.
ARGUMENT A.
LEGAL STANDARD Good cause is the basic legal standard for motions in NRC adjudicatory proceedings. The Commission has further explained that good cause in the context of a motion seeking extension of an adjudicatory deadline under 10 C.F.R. § 2.307, as invoked by Movants, requires demonstration of unavoidable and extreme circumstances.3 Indeed, the Commission expressly adopted that standard for all filing deadlines in a formal Statement of Policy published more than 25 years ago.4 Since then, the Commission has repeatedly held that the claimed inconvenience and time commitment required to voluntarily challenge a licensing application is not an unavoidable or extreme circumstance that warrants an extension of time.5 And as directly relevant here, the Commission has stated in no uncertain terms that, although multiple simultaneous proceedings place burdens on the parties... [w]e cannot postpone cases for many weeks or months simply because going forward will prove difficult for litigants or their lawyers.6 3
See Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342 (1998)
(holding that construction of good cause to require a showing of unavoidable and extreme circumstances constitutes a reasonable means of avoiding undue delay); see also Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87210), CLI-99-1, 49 NRC 1, 3 n.2 (1999) (We caution all parties in this case, however, to pay heed to the guidance in our policy statement that ordinarily only unavoidable and extreme circumstances provide sufficient cause to extend filing deadlines.).
4 Statement of Policy on Conduct of Adjudicatory Proceedings, 63 Fed. Reg. 41,872, 41,874 (Aug. 5, 1998).
5 See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 400 (2001) (noting that the cost and inconvenience of litigation is not relevant to consideration of a motion to suspend a proceeding).
6 Consol. Edison Co. of N.Y. (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225, 229-30 (2001).
3 B.
THE SECOND MOTION FAILS TO DEMONSTRATE GOOD CAUSE Movants allege that good cause exists for a six-week extension of the hearing request deadline due to multiple deadlines and obligations in other cases that Movants counsel has voluntarily undertaken.7 But, as noted above, controlling Commission precedent expressly states thatas a matter of settled lawparticipation in multiple simultaneous proceedings is an insufficient basis for an adjudicatory extension.8 Because the Second Motion relies on that exact basis as its purported demonstration of good cause, it must be denied.
Furthermore, even if the Commission had not outright declared litigation burden to be an insufficient basis for extending a filing deadline, the circumstances identified in the Second Motion are not extreme by any objective measure. Between now and the March 8, 2024 hearing request deadline in this proceeding, the only other deadlines identified by Movants counsel are (1) a hearing request deadline in another NRC proceeding, and (2) an oral argument before a federal court of appeals.9 All of the other events mentioned in the Second Motion either already occurred or involve deadlines that come after March 8, 2024.10 Two intervening obligations in a five-week period cannot reasonably be described as creating an extreme circumstance.
Revealingly, none of the identified circumstances prevented Movants counsel from drafting dozens of pages of motions, declarations, and errata seeking to foist delays on the other parties to this proceeding.11 Movants could have devoted that time to preparing a hearing request. But they 7
Second Motion at 1.
8 Indian Point, CLI-01-8, 53 NRC at 229-30.
9 See Second Motion at 3-7.
10 See id.
11 See First Motion; Second Motion; see also Errata to Motion by Beyond Nuclear and Sierra Club for Withdrawal of Premature Hearing Notice (Jan. 22, 2024) (ML24022A066).
4 chose not to. And that unilateral choice does not conjure an unavoidable and extreme circumstance warranting a multi-week delay in this proceeding.
Lastly, acceding to yet another delay in the resolution of this proceedingwhich already has been delayed for multiple yearswould be inconsistent with recent Commission policy. As noted in a Staff Requirements Memorandum issued just a few weeks ago, the Commission has tasked the NRC Staff with developing a plan to restore the license renewal program to a path of timely and predictable reviews and achieve the goal of 18-month reviews.12 And Chair Hanson subsequently represented to Congress that the agency would prioritize efforts to find further enhancements to the timeliness and efficiency of those reviews.13 Granting the Second Motion, further delaying this proceeding yet again, would do the exact opposite.
III.
CONCLUSION Because litigation burden cannot justify an adjudicatory extension, and because Petitioners otherwise have not demonstrated good cause, the Commission should DENY the Second Motion.
12 Staff Requirements, SRM-M231102, Strategic Programmatic Overview of the Operating Reactors and New Reactors Business Lines at 1 (Dec. 11, 2023) (ML23345A214).
13 Letter from C. Hanson, NRC, to Hon. S. Moore Capito et al. at 1 (Dec. 21, 2023) (Package ML23306A109).
5 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
WILLIAM S. BLAIR, Esq.
DOMINION ENERGY SERVICES, INC.
120 Tredegar Street, RS-2 Richmond, VA 23219 (561) 267-7459 William.S.Blair@dominionenergy.com Executed in Accord with 10 C.F.R. § 2.304(d)
RYAN K. LIGHTY, Esq.
PAUL M. BESSETTE, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (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 2nd day of February 2024
DB1/ 144248139.3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of:
VIRGINIA ELECTRIC AND POWER COMPANY and OLD DOMINION ELECTRIC COOPERATIVE (North Anna Power Station, Units 1 and 2)
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Docket Nos. 50-338-SLR-2 and 50-339-SLR-2 February 2, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Answer Opposing Beyond Nuclears and Sierra Clubs Motion For Extension of Time to Submit Hearing Request 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