ML081220741

Dominion Nuclear Connecticut'S Motion to Strike Portions of Connecticut Coalition Against Millstone and Nancy Burton'S Reply to Responses to Petition to Intervene

ML081220741
Person / Time
Site:	Millstone
Issue date:	05/01/2008
From:	Travieso-Diaz M Dominion Nuclear Connecticut, Dominion Resources Services, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-423-OLA, ASLBP 08-862-01-OLA-BD01, RAS 713
Download: ML081220741 (12)

Text

May 1, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

Dominion Nuclear Connecticut, Inc. ) Docket No. 50-426-OLA

)

(Millstone Power Station, Unit 3) ) ASLB No. 08-862-01-OLA-BD01

)

DOMINION NUCLEAR CONNECTICUTS MOTION TO STRIKE PORTIONS OF CONNECTICUT COALITION AGAINST MILLSTONE AND NANCY BURTONS REPLY TO RESPONSES TO PETITION TO INTERVENE I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(a), Dominion Nuclear Connecticut, Inc. (Dominion) hereby moves to strike certain portions of Connecticut Coalition Against Millstone and Nancy Burton Reply to Responses of NRC Staff and Dominion Nuclear Connecticut, Inc. to Petition to Intervene and Request for Hearing (Reply) dated April 22, 2008. The Reply raises entirely new issues, claims and arguments not found in the original Petition to Intervene and Request for Hearing (Petition). These new issues, claims and arguments are asserted without any attempt to satisfy the standards for late-filed amendments to contentions set forth in 10 C.F.R. §§ 2.309(c) and (f)(2). Accordingly, the portions of the Reply containing new, late-filed claims must be stricken, together with the new exhibits offered in their support.

II. BACKGROUND On July 13, 2007, Dominion submitted its License Amendment Request (LAR) to amend Facility Operating License NPF-49 for the Millstone Nuclear Power Station, Unit 3 (MPS3) to increase the units maximum authorized core power from 3411 megawatts thermal

(MWt) to 3650 MWt. In response to a notice of opportunity for hearing, 1 Connecticut Coalition Against Millstone and Nancy Burton (Petitioners) submitted their Petition on March 17, 2008, raising nine proposed contentions and requesting that the LAR be rejected. On April 11, 2008, Dominion and the NRC Staff (Staff) filed answers to the Petition opposing the intervention on the grounds that Petitioners had failed meet the contention admissibility standards in NRCs rules. 2 On April 22, 2008, Petitioners filed their Reply. In it, Petitioners do not limit themselves to defending the adequacy of their contentions as pled in the Petition. Rather, the Reply makes new allegations to bolster the contentions and attaches five new documents raising issues and claims nowhere to be found in the Petition. As discussed below, Petitioners attempt to provide new claims and arguments in their Reply is clearly impermissible under the Commissions well-established rules of practice and controlling NRC case law, and seeks to gain an unfair advantage over Dominion and the NRC Staff, who have not had an opportunity to address these new claims. For these reasons, Dominion requests that the Board strike the offending portions of the Reply. 3 III. STATEMENT OF LAW Under 10 C.F.R. § 2.309(h)(2), a petitioner may file a reply to any answer within seven days after service of that answer. While the Commissions rules do not specify the content of such a reply, other provisions of 10 C.F.R. Part 2, the Statement of Considerations explaining the current rules, and Commission case law precedent make it clear that a reply to an answer is to 1

Biweekly Notice: Applications and Amendments to Facility Operating Licenses Involving No Significant Hazards Considerations, 73 Fed. Reg. 2,546, 2,549 (Jan. 15, 2008).

2 Dominion Nuclear Connecticuts Response to Connecticut Coalition Against Millstone and Nancy Burtons Petition to Intervene and Request for Hearing (Apr. 11, 2008) (Dominion Response); NRC Staff Answer to Request to Intervene and for Hearing of Connecticut Coalition Against Millstone and Nancy Burton (Apr. 11, 2008). Dominion also challenged Ms. Burtons standing to participate in her individual capacity.

3 Attachment 1 hereto identifies the portions of the Reply that should be stricken.

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be narrowly focused on the legal or logical arguments presented in the answers of the applicant/licensee and NRC Staff. Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg.

2,182, 2,203 (Jan. 14, 2004) (emphasis added). In this case, Petitioners have gone beyond any reasonable interpretation of an allowable reply by raising entirely new claims. If the hearing procedures established in 10 C.F.R. Part 2 are to have meaning, these portions of the Reply must be stricken.

The Commission has held that a reply to an answer may not be used as a vehicle to raise new arguments or claims not found in the original contention or be used to cure an otherwise deficient contention. Louisiana Energy Services, L.P. (National Enrichment Facility), CLI 25, 60 N.R.C. 223, 225 (2004), reconsideration denied, Louisiana Energy Services, L.P.

(National Enrichment Facility), CLI-04-35, 60 N.R.C. 619 (2004) (LES); Nuclear Management Company (Palisades Nuclear Plant), CLI-06-17, 63 N.R.C. 727, 732 (2006). In the LES proceeding, the licensing board declined to consider new purportedly material information in support of the contentions that was first submitted as part of a reply pleading.

LES, CLI-04-25, 60 N.R.C. at 224 (footnote omitted). On appeal of the boards decision, the Commission agreed that the reply briefs constituted a late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments in the reply briefs. Id. The Commission went on to state that such a course of action was clearly impermissible under its rules of practice:

[O]ur 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. The Petitioners reply brief should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC staff answer, a point the Board itself emphasized in this proceeding. 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. There simply could be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new bases or new issues that simply did not occur to [them] at the outset.

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CLI-04-25, 60 N.R.C. at 224-25 (footnotes omitted) (emphasis added).

In CLI-04-35, the Commission reaffirmed its holding in CLI-04-25. The Commission reiterated that allowing a reply to raise new arguments or claims not found in the original contention would eviscerate its requirements for the pleading of contentions:

Allowing contentions to be added, amended, or supplemented at any time would defeat the purpose of the specific contention requirements . . . 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. § 2.309(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. Under our contention rule, Intervenors are not being asked to prove their case, or to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factual or legal bases to support the contention, and to do so at the outset.

CLI-04-35, 60 N.R.C. at 622-23 (footnotes omitted).

The Commission went on to strongly reaffirm that a reply to an answer could not, under its rules of practice, be used as a vehicle to raise new arguments or claims not found in the original contention or be used to cure an otherwise deficient contention:

What our rules do not allow is using reply briefs to provide, for the first time, the necessary threshold support for contentions; such a practice would effectively bypass and eviscerate our rules governing timely filing, contention amendment, and submission of late-filed contentions.

Id. at 623 (emphasis added).

Thus, the Commission has squarely ruled that a reply to an answer may not be used to cure an otherwise deficient contention. As the Commission has made clear, a contrary ruling would eviscerate the rules of practice governing timely filing of properly pled contentions, contention amendments, and submission of late-filed contentions.

The NRC rules provide that amended or new contentions filed after the initial filing may be done only with leave of the presiding officer upon a showing that -

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(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

10 C.F.R. § 2.309(f)(2) (emphasis added). As the Commission held in LES, allowing a reply to introduce new or amended contentions would clearly render these provisions governing late filed contentions meaningless.

In the instant proceeding, the Board has drawn Petitioners attention to the limitations in the matters that can be raised in a reply, stating: Petitioners are reminded that [a]ny reply should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC staff answer. Order (Granting CCAM and Nancy Burton Request for Extension of Time to File Consolidated Reply) (Apr. 17, 2008), slip op. at 2, citing 69 Fed. Reg. at 2,203.

Thus, Petitioners were forewarned not to raise new issues in their Reply. Unfortunately, they have chosen to disregard the Boards admonition.

IV. ARGUMENT Petitioners begin their Reply by requesting Subpart G hearing procedures. Reply at 1.

Under the NRC rules of practice, a request for Subpart G procedures must be made in the peti-tion, not raised for the first time in a reply. 10 C.F.R. § 2.309(g) states: A request for hearing and/or petition for leave to intervene may also address the section of hearing procedures. The Petition made no mention of hearing procedures, and no new information has become available since that time that could justify a belated request for Subpart G procedures. Moreover, the re-quest made in Petitioners Reply is itself based on new allegations not previously included in Pe-titioners contentions, including allegedly Dominions failure to detect the evolution of tin whiskers in its circuit boards and historical failures of Dominion and its predecessor . . . re-lated to recurring valve and other equipment malfunctions and engineering failure. Reply at 1-5

2. These claims are found nowhere in the original Petition. Similarly, to bolster their new claim that the credibility of an eyewitness may reasonably be expected to be at issue and/or issues of motive or intent of the party or eyewitness material to the resolution of the contested matters (id. at 2), Petitioners attach new exhibits relating to these allegations, none of which were pro-vided or identified as a basis for the previous contentions. Id. at 2 nn.1-3. For these reasons, the entire section of Petitioners Reply entitled Selection of Hearing Procedures is improper and should be stricken.

Throughout their Reply, Petitioners point to the problematical operational and manage-rial history of the Millstone Nuclear Power Station, perhaps in an attempt to bolster their new and belated argument that Subpart G hearing procedures be applied. Id. at 13, 21; see also Id. at

14. Again, the original Petition does not raise any claims relating to the operational and mana-gerial history of MPS3. Petitioners also cite for the first time in their Reply [h]istorical recur-ring failures of mechanical components such as pipes and valves at Millstone Unit 3 and poor engineering in the late 1990s. Id. at 18. 4 All of these new claims should be stricken.

The Reply improperly attempts to inject other new claims into the contentions. Thus, in support of their fourth contention, Petitioners cite the results of the NRC Office of the Inspector Generals September 2007 audit (OIG audit). Id. at 15. The original Petition, however, made no reference to the OIG audit, either in support of Contention 4 or anywhere else. Further, the adequacy of the NRC Staffs performance (the subject of the OIG audit) is not an appropriate issue in NRC hearings, see Dominion Response at 14 n.23, and Petitioners attack on the NRC Staff is particularly egregious because it does not even relate to this proceeding.

Petitioners Reply expounds upon and resubmits the qualifications of Mr. Gundersen.

Id. at 16-17. Those qualifications are not responsive to any of the arguments made by Dominion or the Staff in their responses to the Petition.

4 In support of these alleged historical problems, Petitioners include Exhibits A and B, two documents that were not relied upon in the original Petition, or attached to it, and which should for that reason be stricken.

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In support of their seventh contention, Petitioners discuss a March 28, 2008 letter from the NRC Staff to Dominion. Id. at 22-25. Although this letter was not available when Petitioners filed the original Petition, Petitioners fail to follow NRC procedures for amending their contentions and instead have attempted to include it in the Reply as a new basis for Contention 7. This is an impermissible enlargement of the bases relied upon in the original Petition. 5 Petitioners also quote statements made by Dominions CEO concerning the benefits of the uprate, as well as an October 19, 2007 NRC Weekly Information Report discussing the sufficiency of the LAR and schedule for review, which Petitioners characterize as indicating a rush and pressure to gain NRC approval. Id. at 25-27. Not only are these statements not mentioned in the original Petition, but the entire argument bears no relevance to Contention 7, which alleges that the LAR was incomplete. Petitioners also improperly seek to attack the NRC Staffs performance as acceding to pressure.

The Petitioners further seek to bolster their Contentions 7 and 8 by critically citing for the first time sections of Attachment 1 to the LAR: Descriptions, Technical Analysis and Regulatory Analysis for the Proposed Operating License and Technical Specifications Changes.

Id. at 27, 30. Presumably, the Petitioners would have read the LAR in full before intervening, and cannot supplement the bases of their contentions by citing new sections of it in their Reply.

Further, the argument in Dominions Response that these contentions failed to controvert the LAR, see Dominion Response at 39, does not give Petitioners license to raise new challenges to the LAR for the first time in their Reply. Clearly, the NRC pleading requirements would have little meaning if new issues or bases can be asserted in a Reply simply by virtue of an applicants objection to the original contention.

5 In addition to discussing and attaching this letter impermissibly, Petitioners fail to mention that Dominion responded to the Staffs letter on April 4, 2008, eighteen days before Petitioners filed their Reply, and provided the Staff with the requested information.

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Petitioners also seek to impermissibly expand the bases of Contention 8 by relying on a new document: Comments of Michael Steinberg regarding Connecticut Tumor Registry Statistics. Id. at 32 n.25. Neither this document nor the topic of tumor registry statistics was raised in the original Petition. Similarly, the allegation of tragedies in families living near Millstone (id. at 34 n.30) is raised for the first time in the Reply.

In support of Contention 9, Petitioners claim for the first time that there is no valid NPDES permit for Millstone and that the Connecticut Department of Environmental Protection (CTDEP) has repeatedly violated the Clean Water Act. Id. at 35-36. In addition to impermissibly seeking to expand the factual bases of Contention 9, these allegations have been dismissed by the Connecticut Supreme Court, Fish Unlimited v. Northeast Utils. Serv. Co., 755 A.2d 860, 864, 866-67 (Conn. 2000), 6 and determined to be beyond the NRCs jurisdiction. See Dominion Nuclear Connecticut (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-15, 60 N.R.C. 81, 93 (2004). Petitioners also impermissibly raise for the first time that the previous operator of Millstone, Northeast Nuclear Energy Company, entered into a plea to environmental charges in 1997. 7 Reply at 36 n.32. Such new allegations are improper in a reply, and in any event do not relate either to Dominion or to the uprate.

In a further attempt to expand the bases for Contention 9, Petitioners attach the so-called Blanch critique to their Replya new document pertaining to the CTDEPs assessment of Millstones environmental monitoring data. Reply at 37-38. Petitioners discussion and attachment of the Blanch critique is both impermissible because it was not relied upon in the original Petition and irrelevant because Petitioners do not contest the validity of the environmental impact assessments contained in the Supplemental Environmental Report, to the LAR.

6 See also Dominions Answer to Connecticut Coalition Against Millstones Petition to Intervene and Request for Rehearing, Docket Nos. 50-336-LR and 50-423-LR at 21-24 (June 7, 2007), available at ADAMS Accession No. ML041600187.

7 This brand new claim does not even pertain to Dominion but to its predecessor in ownership of Millstone.

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CONCLUSION Petitioners Reply ignores the Commissions well-established rules of practice, put in place specifically to ensure judicious, efficient administration of the Commission licensing proceedings. Both the Commissions rules and precedents mandate striking these portions of the Reply. Accordingly, the Board should strike all portions of the Reply that attempt to raise new facts, claims, and arguments.

CERTIFICATION In accordance with 10 C.F.R. §2.323(b), counsel for Dominion has sought to discuss this motion with Petitioners and the NRC Staff. The NRC Staff does not oppose this motion. Do-minion attempted to contact Petitioners by telephone and e-mail regarding this motion and re-ceived no response.

Respectfully Submitted,

/Original signed by Matias F. Travieso-Diaz/

David R. Lewis Matias F. Travieso-Diaz Stefanie M. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W.

Washington, DC 20037-1128 (202) 663-8000 Lillian M. Cuoco Senior Counsel Dominion Resources Services, Inc.

120 Tredegar Street, RS-2 Richmond, VA 23219 (804) 819-2684 Dated: May 1, 2008 Counsel for Dominion Nuclear Connecticut, Inc.

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ATTACHMENT 1 Location of the impermissible new facts, claims, and arguments to be stricken from the Petitioners Reply:

Selection of Hearing Procedures

• To be stricken in its entirety, including footnotes 1-3 Contention 1

• Page 13, second full paragraph, from after the comma in the first line through Station in the second line Contention 3

• Page 14, first full paragraph of Contention 3, history of operational deficiencies in the fourth through fifth lines Contention 4

• Page 15, first paragraph, from the fourth to last line

• Page 16, first paragraph, from the sentence that begins NRCs unwillingness . . .

through the end of that page

• Page 17 in its entirety, including footnote 14 Contention 5

• Page 18, second full paragraph in its entirety Contention 6

• Page 21, last paragraph, from after the comma in the first line through Station in the second line Contention 7

• Page 22, from last paragraph, beginning The NRCs letter, through the end of that page

• Page 24 in its entirety

• Page 25, from the beginning of the page through the end of the paragraph ending with See Exhibit C, and from the paragraph beginning Dominions rush through the end of that page

• Page 26 in its entirety

• Page 27, from the top of the page through the end of the quote ending with August 15, 2008, and from the sentence in the last paragraph that begins For example, Attachment 1 . . . through the end of that page

• Page 28, from the top of the page through [Emphasis added.]

Contention 8

• Page 30, the second full paragraph in its entirety, including the quote

• Page 32, footnote 25

• Page 34, footnote 30 Contention 9

• Page 35, last three lines

• Page 36, first six lines and footnote 32

• Page 37, last five lines and footnote 37

• Page 38, first two lines Exhibits

• Exhibits A, B, C, D, and E to be stricken in their entirety 10

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

Dominion Nuclear Connecticut, Inc. ) Docket No. 50-426-OLA

)

(Millstone Nuclear Power Station, Unit 3) ) ASLB No. 08-862-01-OLA-BD01

)

CERTIFICATE OF SERVICE I hereby certify that copies of Dominion Nuclear Connecticuts Motion to Strike Por-tions of Connecticut Coalition Against Millstone and Nancy Burtons Reply to Responses to Pe-tition to Intervene were served on the persons listed below in accordance with the Commission E-Filing rule, which the NRC promulgated in August 2007 (72 Fed. Reg. 49,139), and, where indicated by an asterisk, by e-mail, this 1st day of May, 2008.

• Secretary *Office of Commission Appellate Adjudica-Attn: Rulemakings and Adjudications Staff tion Mail Stop O-16 C1 Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 secy@nrc.gov, hearingdocket@nrc.gov OCAAMAIL@NRC.GOV

• Administrative Judge *Administrative Judge William J. Froehlich, Chair Dr. Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 wjf1@nrc.gov pba@nrc.gov

• Administrative Judge *Nancy Burton Dr. Michael F. Kennedy 147 Cross Highway Atomic Safety and Licensing Board Panel Redding Ridge, CT 06876 U.S. Nuclear Regulatory Commission NancyBurtonCT@aol.com Washington, DC 20555-0001 mfk2@nrc.gov

• David Roth, Esq. *Lloyd Subin, Esq.

Office of the General Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: david.roth@nrc.gov lbs3@nrc.gov

/Original signed by Matias F. Travieso-Diaz/

Matias F. Travieso-Diaz 2