ML052690301
| ML052690301 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 09/26/2005 |
| From: | Uttal S NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| Uttal S 301-415-1797 | |
| References | |
| 50-255-LR, ASLBP 05-842-03-LR, RAS 10518 | |
| Download: ML052690301 (8) | |
Text
1 See Letter from Daniel J. Malone, Site Vice President, Palisades Nuclear Plant,
[NMC], to U.S. NRC (Mar. 2, 2005) (Agencywide Documents and Access Management System (ADAMS) Accession No. ML050940434).
2 See Request for Hearing and Petition to Intervene, August 8, 2005.
September 26, 2005 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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NUCLEAR MANAGEMENT
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Docket No. 50-255-LR COMPANY, LLC
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ASLBP No. 05-842-03-LR (Palisades Nuclear Plant)
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NRC STAFF MOTION TO STRIKE PETITIONERS COMBINED REPLY TO NRC STAFF AND NMC ANSWERS TO PETITION TO INTERVENE AND REQUEST FOR HEARING INTRODUCTION On September 16, 2005, the Petitioners in this matter filed Petitioners Combined Reply to NRC Staff and Nuclear Management Company Answers (Petitioners Reply). Pursuant to 10 C.F.R. § 2.323, the Nuclear Regulatory Commission Staff (Staff) herein files a motion to strike the Petitioners reply, in whole or in part, because it purports to raise issues that were not encompassed in its original petition.
BACKGROUND By letter dated March 22, 2005, Nuclear Management Company, LLC (NMC) submitted an application for renewal of Operating License No. DPR-20 for the Palisades Nuclear Plant for an additional 20 years.1 The current operating license for the Palisades plant expires March 24, 2011. On August 8, 2005, Petitioners jointly filed a Request for Hearing and Petition to Intervene (Petition) on NMCs license renewal application.2 On September 2, 2005, the Staff 3 See NRC Staff Answer Opposing Petition to Intervene and Request for Hearing, September 2, 2005; Nuclear Management Companys Answer to the August 8, 2005 Request for Hearing and Petition to Intervene, September 2, 2005.
4 In the reply, Petitioners withdrew Contentions 5, 6, and 8-11.
and NMC filed separate responses to the Petition.3 On September 16, 2005, pursuant to the Boards September 6, 2005 Order (Regarding Requests to Reschedule),
the Petitioners filed the Petitioners Reply.4 For the reasons discussed below, the Staff hereby moves to strike Petitioners Reply, except to the extent that it withdraws Contentions 5, 6 and 8-11.
DISCUSSION A.
The Reply is Improper Under 10 C.F.R. § 2.309(h)(2).
The Petitioners reply is improper on its face because it improperly attempts to expand the scope of the arguments set forth in the original petition. It also improperly provides bases and documents that could have been submitted in its original petition and are, therefore, impermissibly late without good cause. To the extent that the Petitioners Reply introduces new arguments and new support, it should be stricken from the record in this proceeding.
The permissible scope of a reply such as the one filed by the Petitioners was explicitly set forth by the Commission in promulgating the recent revisions to the NRCs rules of practice when it stated:
Any reply should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or the NRC staff answer....
Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,203 (January 14, 2004).
Contrary to the Commissions clear direction, the Petitioners have attempted to use the opportunity to reply as a vehicle to introduce new arguments and new support that should originally have been raised in its Petition. In fact, other than some general statements that the original petition was sufficient, the entire reply consists of new arguments and new support, and should be disregarded by the Board. See Louisiana Energy Services, L.P. (National Enrichment Facility), LBP-04-14, 60 NRC 40 (2004), affd CLI-04-25, 60 NRC 223, reconsideration dend CLI-04-35, 60 NRC 619.
In LES, the Licensing Board refused to consider information in support of contentions that was first submitted in a reply pleading, finding that the reply filings essentially constituted untimely attempts to amend their original petitions that, not having been accompanied by any attempt to address the late-filing factors in [10 C.F.R.] section 2.309(c), (f)(2), cannot be considered in determining the admissibility of their contentions. LES, LBP-04-14, 60 NRC at
- 58. The Board referred its ruling to the Commission, which affirmed, stating:
[W]e concur with the Board that the reply briefs constituted a late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments in the reply briefs.... As the Commission has stressed, our contention admissibility and timeliness requirements demand a level of discipline and preparedness on the part of petitioners, who must examine the publicly available material and set forth their claims and the support for their claims at the outset.... As we face an increasing adjudicatory docket, the need for parties to adhere to our pleading standards and for the Board to enforce those standards are paramount.
LES, CLI-04-25, 60 NRC at 224-25 (internal footnotes omitted). When asked by the petitioners to reconsider its decision on the grounds that the reply findings merely provided additional bases for the contentions, the Commission declined, stating:
Allowing contentions to be added, amended, or supplemented at any time would defeat the purpose of the specific contention requirements, as the NRC Staff explains, by permitting the intervenor to initially file vague, unsupported, and generalized allegations and simply recast, support, or cure them later. The Commission has made numerous efforts over the years to avoid unnecessary delays and increase the efficiency of NRC adjudication and our contention standards are a cornerstone of that effort. We believe that the 60-day period provided under 10 C.F.R. § 309(b)(3) for filing hearing requests, petitions, and contentions is more than ample time for a potential requestor/intervenor to review the application, prepare a filing on standing, and develop proposed contentions and references to materials in support of the contentions.
LES, CLI-04-35, 60 NRC at 622-23 (footnotes omitted).
Evaluated against this background, it is clear that the Petitioners attempt to render the contentions admissible by supplementing them in the reply must be rejected. Although the Petitioners Reply states that NMC and the Staffs objections to the original petition are not well taken (see e.g., Petitioners Reply at 24-25), it does not address the objections made by the Staff and NMC, but instead cites information that could have been addressed in the original petition, but was not. The information was readily available when the original petition was filed, but the petitioners offer no explanation why it was not included in the original petition.
It is not until the reply that the Petitioners attempt to supply support for the contentions, in violation of the Commissions clear direction in the LES case. See CLI-04-25, 60 NRC at 224-25; CLI-04-35, 60 NRC at 622-23. The deficiencies in the original petition simply cannot be cured by the reply. Petitioners Reply does not address responders arguments, but rather adds new arguments and support for the inadequate contentions. Therefore, the Petitioners Reply should be stricken.
B.
The Petitioners Rely on an Outdated, Superceded Standard for Admission of Contentions The Petitioners rely on a standard for admission of contentions that has been superceded by case law and by at least two revisions of the regulations. See Petitioners Reply at 9, 23, 42-43. The relevant standard for admission of contentions is contained in 10 C.F.R. § 2.309(f), which was codified in 2004 and supercedes prior regulations and inconsistent case law.
That regulation requires that a contention:
i.
Provide a specific statement of law or fact to be raised or controverted; ii.
Provide a brief explanation of the basis for the contention; iii.
Demonstrate that the issue raised in the contention is within the scope of the proceeding; iv.
Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; v.
Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and vi.
Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.
10 C.F.R. § 2.309(f)(1). The provisions of § 2.309 incorporate the longstanding contention support requirements of former § 2.714-no contention will be admitted for litigation in any NRC adjudicatory proceeding unless these requirements are met. Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004). Thus, statements by Petitioners to the contrary and reliance on cases superceded by the rule change are incorrect.
Application of the regulation has been further developed in case law. See LES, LBP 14, 60 NRC at 54-57. See also Entergy Nuclear Vermont Yankee (Vermont Yankee Nuclear Power Station) LBP-04-28, 60 NRC 548, 554-558 (2004). So, for example, a contention that challenges a Commission rule or regulation, or that seeks to impose stricter requirements than the regulations, is inadmissible. LES, LBP-04-14, 60 NRC at 54-55. Contentions that are outside the scope of the proceeding are inadmissible. Id. at 55. Contentions that do not present the factual information and expert opinions needed for support are inadmissible. Id. [N]either mere speculation nor bare assertions alleging that a matter should be considered will suffice to allow the admission of a proffered contention. Id. (Citations omitted). Contentions must assert an issue of law or fact that is material to the proceeding. Id. at 56. Finally, a contention must directly controvert the application. Id. As explained in the Staffs September 2, 2005 response in opposition to the original Petition, the contentions as set forth in the Petition fail to meet any of the criteria cited above.
The deficiencies in the Petition cannot be cured in the reply. Therefore, the Petitioners Reply is improper on its face and should be stricken.
CERTIFICATION OF COUNSEL On September 26, 2005, pursuant to 10 C.F.R. § 2.323(b), I spoke to Terry Lodge, counsel for Petitioners, in an effort to resolve the issues raised in this motion. The effort to resolve the issues was unsuccessful.
CONCLUSION For the foregoing reasons, Petitioners Reply should be stricken, except to the extent that it withdraws contentions 5, 6 and 8-11.
Respectfully submitted,
/RA/
Susan Uttal Counsel for NRC Staff Dated at Rockville, Maryland this 26th day of September, 2005
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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NUCLEAR MANAGEMENT
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Docket No.
50-255-LR COMPANY, LLC
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(Palisades Nuclear Plant)
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ASLBP No.
05-842-03-LR CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF MOTION TO STRIKE PETITIONERS COMBINED REPLY TO NRC STAFF AND NMC ANSWERS TO PETITION TO INTERVENE AND REQUEST FOR HEARING, in the above-captioned proceeding have been served on the following through deposit in the NRCs internal mail system, with copies by electronic mail, by U.S. mail, first class, as indicated by an asterisk, with copies by electronic mail, or by U.S. mail, first class, as indicated by double asterisk, this 26th day of September, 2005:
Office of the Secretary ATTN: Docketing and Service Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: HEARINGDOCKET@nrc.gov)
Office of Commission Appellate Adjudication Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Dr. Anthony Baratta Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: ajb5@nrc.gov)
Dr. Nicholas G. Trikouros Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: n.trikouros@att.net)
Ann Marshall Young Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: amy@nrc.gov)
Terry J. Lodge, Esq.*
316 N. Michigan Street, Suite 520 Toledo, OH (E-mail: tjlodge50@yahoo.com)
Kary Love, Esq.*
Executive Business Center 348 Waverly Road, Suite 2 Holland, MI 49423 (E-mail: kary_love@yahoo.com)
Paul Gunter*
Director Nuclear Information & Resource Service 1424 16th Street, NW Suite 404 Washington, DC 20036 (E-mail: pgunter@nirs.org)
Alice Hirt*
Western Michigan Environmental Action Co.
1415 Wealthy Street, SE Suite 280 Grand Rapids, MI 49506 (E-mail: alicehirt@charter.net)
Chuck Jordan*
Chairman Green Party of Van Buren County 50521 34th Avenue Bangor, MI 49013 (E-mail: jordanc@btc-bci.com)
Michael Keegan*
Co-Chair Dont Waste Michigan 2213 Riverside Drive, NE Grand Rapids, MI 49505 (E-mail: mkeeganj@comcast.net)
Maynard Kaufman**
Michigan Land Trustees 25485 County Road 681 Bangor, MI 49013 Paul A. Gaukler, Esq.*
Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street, N.W.
Washington, DC 20037-1128 (E-mail: paul.gaukler@pillsburylaw.com)
David R. Lewis, Esq.*
Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street, N.W.
Washington, DC 20037-1128 (E-mail: david.lewis@pillsburylaw.com)
Jonathan Rogoff, Esq.*
Vice President, Counsel, & Secretary Nuclear Management Company, LLC 700 First Street Hudson, WI 54016 (E-mail: jonathan.rogoff@nmcco.com)
/RA/
Susan Uttal Counsel for NRC Staff