ML033450132
| ML033450132 | |
| Person / Time | |
|---|---|
| Site: | Browns Ferry, Watts Bar, Sequoyah  |
| Issue date: | 12/10/2003 |
| From: | Cole S, Dambly D NRC/OGC |
| 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-CICP, ASLBP 01-791-01-CIVP, RAS 7130 | |
| Download: ML033450132 (6) | |
Text
RAS 7130 UNITED STATES OF AMERICA DOCKETED 12/10/03 NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
) Docket Nos. 50-390-CivP; 50-327-CivP TENNESSEE VALLEY AUTHORITY ) 50-328-CivP; 50-259-CivP (Watts Bar Nuclear Plant, Unit 1 ) 50-260-CivP; 50-296-CivP Sequoyah Nuclear Plant, Units 1 & 2 )
Browns Ferry Nuclear Plant, Units 1, 2 & 3) )
) ASLBP No. 01-791-01-CivP
)
) EA 99-234 NRC STAFF RESPONSE TO TENNESSEE VALLEY AUTHORITYS MOTION TO STRIKE Dennis C. Dambly Counsel for NRC Staff Shelly D. Cole Counsel for NRC Staff December 10, 2003
December 10, 2003 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
) Docket Nos. 50-390-CivP; 50-327-CivP TENNESSEE VALLEY AUTHORITY ) 50-328-CivP; 50-259-CivP (Watts Bar Nuclear Plant, Unit 1 ) 50-260-CivP; 50-296-CivP Sequoyah Nuclear Plant, Units 1 & 2 ) 50-260-CivP; 50-296-CivP Browns Ferry Nuclear Plant, Units 1, 2 & 3) )
) ASLBP No. 01-791-01-CivP
)
) EA 99-234 NRC STAFF RESPONSE TO TENNESSEE VALLEY AUTHORITYS MOTION TO STRIKE INTRODUCTION Pursuant to 10 C.F.R. § 2.730(c) of the Commissions regulations, the NRC Staff (hereinafter Staff) now responds to Tennessee Valley Authoritys Motion to Strike" (Motion to Strike) dated December 4, 2003. As more fully explained below, the Staff opposes this motion.
BACKGROUND On October 2, 2003, pursuant to a Commission Memorandum and Order,1 the Staff filed a brief on the issue of civil penalty mitigation (Staff Mitigation Brief). Tennessee Valley Authority (TVA) filed a response to the Staff Mitigation Brief on November 3, 2003 (TVA Response), and the Nuclear Energy Institute (NEI) filed a response on November 4, 2003 (NEI Response). As permitted by the Commission Order, at 7, the Staff filed a reply to the Responses of TVA and NEI on November 21, 2003 (Staff Reply). Portions of this reply are challenged in the Motion to Strike.
1 Tennessee Valley Authority (Watts Bar Nuclear Power Plant, Unit 1, Sequoyah Nuclear Plant, Units 1 & 2, Browns Ferry Nuclear Plant, Units 1, 2 & 3), CLI-03-09, 58 NRC __ (June 26, 2003) (Commission Order).
DISCUSSION The Motion to Strike requests that the Commission strike Parts I and II of the Staff Reply.
TVA bases this request on its perception that Parts 1 and 2 contain arguments not raised initially in the Staff Mitigation Brief. In support of its motion, TVA correctly points out that federal courts generally will not consider an issue raised for the first time in a reply brief. Motion to Strike at 2.
However, [w]here an appellee raises a[n] argument not addressed by the appellant in its opening brief, the appellant may reply. Pachla v. Saunders System, Inc., 899 F.2d 496, 502 (6th Cir. 1990) citing Bennett v. Tucker, 827 F.2d 63, 70 n.2 (7th Cir. 1987). Thus, federal case law does not support TVAs Motion to Strike.
TVA seems to ignore that the Commission specifically authorized the Staff to file a reply addressing the arguments presented in TVAs response brief (and, if filed, NEIs amicus brief) on the mitigation issue. Commission Order at 7. Thus, the question is not whether the arguments in the Staff Reply were the same as those in the Staff Mitigation Brief, but whether they reasonably respond to arguments raised in the TVA and NEI Responses. Part I of the Staff Reply argues that Section III of the Enforcement Policy implicitly limits the Boards discretion to mitigate a civil penalty. This responds to TVAs arguments that [n]either the Enforcement Policy nor the regulation limits the authority and discretion of the Board to mitigate civil penalties, and that [t]he fact that the Staff initially applies the Enforcement Policy does not mean that the policy confers any exclusive discretion to the Staff with respect to determining civil penalty amount. TVA Response at 3-4. Part II of the Staff Response argues that the Boards mitigation of the penalty in this case was not consistent with the Enforcement Policy. This responds to TVAs argument that the Boards mitigation of the civil penalty was consistent with the Commissions Enforcement Policy, (TVA Response, at 5) and NEIs argument that the Licensing Boards actions comport with the dictates of the Enforcement Policy . . . . (NEI Response at 4). Parts I and II of the Staff Reply do
not raise new arguments, but instead respond to arguments raised by TVA and NEI. Accordingly, these portions are appropriately included in the Staff Reply.
CONCLUSION Because Parts I and II of the Staff Reply address arguments raised in the TVA and NEI Responses, the Staff respectfully submits that these portions of its Reply were appropriately included and that the Commission should deny TVAs Motion to Strike.
Respectfully submitted,
/RA/
Dennis C. Dambly Counsel for NRC Staff
/RA/
Shelly D. Cole Counsel for NRC Staff Dated at Rockville, Maryland this 10th day of December, 2003
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
) Docket Nos. 50-390-CivP; 50-327-CivP; TENNESSEE VALLEY AUTHORITY ) 50-328-CivP; 50-259-CivP;
) 50-260-CivP; 50-296-CivP (Watts Bar Nuclear Plant, Unit 1; )
Sequoyah Nuclear Plant, Units 1 & 2 ) ASLBP No. 01-791-01-CivP Browns Ferry Nuclear Plant, Units 1, 2, 3) )
) EA 99-234 CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO TENNESSEE VALLEY AUTHORITYS MOTION TO STRIKE in the above-captioned proceeding have been served on the following by deposit in the United States mail; through deposit in the Nuclear Regulatory Commissions internal system as indicated by an asterisk (*), or by electronic mail as indicated by a double asterisk (**) on this 10th day of December, 2003.
Administrative Judge * ** Administrative Judge * **
Charles Bechhoefer, Chairman Richard F. Cole U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 Washington, D.C. 20555 Washington, D.C. 20555 E-mail: cxb2@nrc.gov E-mail: rfc1@nrc.gov Administrative Judge * ** Office of the Secretary * **
Ann Marshall Young ATTN: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Mail Stop: T-3F23 Washington, D.C. 20555 Washington, D.C. 20555 HEARINGDOCKET@nrc.gov E-mail: amy@nrc.gov Office of Commission Appellate Adjudication Thomas F. Fine ** U.S. Nuclear Regulatory Commission Brent R. Marquand ** Mail Stop: O-16C1 John E. Slater ** Washington, D.C. 20555 Barbara S. Maxwell **
Tennessee Valley Authority Mark J. Burzynski, Manager 400 West Summit Hill Drive Nuclear Licensing Knoxville, Tennessee 37901-1401 Tennessee Valley Authority E-mail: tffine@tva.gov; 1101 Market Street brmarquand@tva.gov; Chattanooga, TN 37402-2801 jeslater@tva.gov; bsmaxwell@tva.gov;
Ellen C. Ginsberg David Repka Counsel for the Nuclear Energy Institute Winston & Strawn 1776 I Street, N.W., Suite 400 1400 L Street, N.W.
Washington, D.C. 20006-3708 Washington, D.C. 20005 Email: ecg@nei.org Email: drepka@winston.com
/RA/
Shelly D. Cole Counsel for NRC Staff