ML033421082
| ML033421082 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 12/04/2003 |
| From: | Marquand B, Slater J Tennessee Valley Authority |
| To: | NRC/OCM |
| Byrdsong A T | |
| References | |
| +adjud/rulemjr200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA-99-234, RAS 7122 | |
| Download: ML033421082 (4) | |
Text
- -R45 I /aQa DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION December 8,2003 (8:00AM)
BEFORE THE COMMISSION OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF IN THE MATTER OF
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Docket Nos. 50-390-CivP;
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50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY )
50-259-CivP; 50-260-CivP;
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50-296-CivP (Watts Bar Nuclear Plant, Unit 1;
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Sequoyah Nuclear Plant, Units 1 &
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2; Browns Ferry Nuclear Plant,
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EA 99-234 Units 1, 2 & 3)
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TENNESSEE VALLEY AUTHORITY'S MOTION TO STRIKE Pursuant to 10 C.F.R. § 2.730 (2003), the Tennessee Valley Authority (TVA) moves for the entry of an order striking Parts I and II of the Staff's November 21, 2003, Reply brief on the issue of mitigation. As grounds for its motion TVA would show that in the August 28, 2003, Memorandum and Order, CLI-03-09, the Commission authorized the Staff to file an initial brief followed by a reply brief on the mitigation issue which it had raised - "the standards by which a Licensing Board should mitigate a civil penalty in a discrimination case" (CLI-03-09 at 4). Because the Staffs arguments in Parts I and II as to the limitation of the Board's authority to exercise discretion in mitigating a civil penalty were not raised in the Staff's main brief, the Staff should be foreclosed from raising such arguments now.
In Part I of its Reply brief the Staff argues that Section III of the Commission's Enforcement Policy implicitly denies the Board the authority to exercise the discretion that it exercised pursuant to Sections IV, VI, and VII of the Enforcement Policy and 10 C.F.R. § 2.205(f) (2003). That argument which purports to limit the Board's authority to exercise discretion to mitigate the civil penalty is advanced by the Staff for the first time in its Reply brief. In Part II of its Reply brief the Staff argues that 1
lem p /aI t e-Z 6- 04/
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Section VII.B.5. of the Enforcement Policy precludes the Board's exercise of discretion under Section VI.B.2 and VII.B.6. That argument is also advanced by the Staff for the first time in its Reply brief.
In TVA's view, the Staff's initial brief should have raised any arguments it wished to make regarding limitations on the Board's authority. Instead, the Staff has once again taken a new position in the home stretch of this proceeding. Since neither argument was raised in the Staff's main brief, it should be precluded from raising such arguments in its Reply brief. Knighten v. Comm 'r, 702 F.2d 59, 60 n. 1 (5th Cir.), cert.
denied, 464 U.S. 897 (1983) ("It is impermissible to mention an issue for the first time in a reply brief, because the appellee then has no opportunity to respond."); United States v. Perkins, 994 F.2d 1184, 1191 (6th Cir. 1993), cert denied, 510 U.S. 903 (1993) ("Issues raised for the first time in a reply brief are not properly before this court."). The Commission has already noted that the Staff's practice of "not responding to [the) arguments raised" by TVA, but instead "waiting to present" a different issue, "effectively deprive[s] TVA of its right under our regulations to respond" (CL1-03-09 at 5-6). The Commission should not condone such practice by the Staff.
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For the foregoing reasons the Commission should grant TVA's motion and strike Parts I and II of the Staff's Reply brief on the issue of mitigation.
Respectfully submitted, Maureen H. Dunn December 4, 2003 General Counsel Office of the General Counsel Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37902-1401 Telephone 865-632-4251 Facsimile 865-632-6718 Of Counsel:
David A. Repka, Esq.
Winston & Strawn 1400 L Street, NW Washington, D.C. 20005 Thomas F. Fine Assistant General Counsel Brent R. Marquand Senior Litigation Attorney 0 John E. Slater Senior Litigation Attorney Attorneys for TVA 003707766 3
CERTIFICATE OF SERVICE I hereby certify that the foregoing document has been served by overnight messenger on the persons listed below. Copies of the document have also been sent by e-mail to those persons listed below with e-mail addresses.
Administrative Judge Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Two White Flint North 11545 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: cxb2@nrc.gov Administrative Judge Ann Marshall Young U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Two White Flint North 11545 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: amyvnrc.gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 Office of the Secretary Attn: Rulemakings and Adjudications Staff Nuclear Regulatory Commission Rockville, Maryland 20852-2738 e-mail: hearingdocketinrc.gov This 4th day of December, 2003.
Administrative Judge Richard F. Cole U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Two White Flint North 11545 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: rfcl~nrc.gov Dennis C. Dambly, Esq.
Angela B. Coggins, Esq.
U.S. Nuclear Regulatory Commission Office of the General Counsel One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: dcd~nrc.gov Mr. William D. Travers Executive Director of Operations U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 Robert W. Bishop, Esq.
Michael A. Bauser, Esq.
Ellen C. Ginsberg, Esq.
Office of the General Counsel Nuclear Energy Institute 1776 I Street, NW Washington, D.C. 20006 e-mail address: ecganei.org Attorney for TVA