ML11263A289
| ML11263A289 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 09/20/2011 |
| From: | Jenkins D, Polonsky A, Sutton K FirstEnergy Nuclear Operating Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21069, 50-346-LR, ASLBP 11-907-01-LR-BD01 | |
| Download: ML11263A289 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )
)
(Davis-Besse Nuclear Power Station, Unit 1) ) September 20, 2011
)
FIRSTENERGYS UNOPPOSED MOTION FOR LEAVE TO FILE A SURREPLY TO INTERVENORS REPLY TO APPLICANT AND NRC STAFF ANSWERS In accordance with 10 C.F.R. § 2.319, FirstEnergy Nuclear Operating Company (FirstEnergy) respectfully seeks leave from the Atomic Safety and Licensing Board to file the attached surreply to the Intervenors Reply to Staff and Applicant Oppositions to Admission of New Contention (Reply) and associated Reply Memorandum filed on September 13, 2011.1 Intervenors do not object to this Motion.2 In support of this request, FirstEnergy respectfully states as follows:
- 1. On August 11 and 12, 2011, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (Intervenors) filed 1
See Reply Memorandum Regarding Timeliness and Admissibility of New Contentions Seeking Consideration of Environmental Implications of Fukushima Task Force Report in Individual Reactor Licensing Proceedings (Sept. 13, 2011) (Reply Memorandum).
2 In their Reply (at 2 n.2), Intervenors explicitly stated that they would not object: Because the applicant and the NRC Staff have not had an opportunity to address the effect of CLI-11-05 on the timeliness and admissibility of Intervenors . . . contention, Intervenors . . . would not object to a response by the applicant and the Staff to their arguments regarding the relevance of CLI-11-05 to their contention.
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a Motion to admit a proposed New Contention3 in this proceeding purportedly based on new and significant information presented by the NRC in its Fukushima Task Force Report.4
- 2. On September 6, 2011, FirstEnergy and the NRC Staff each filed Answers opposing the admission of the New Contention on the grounds that it does not meet the NRCs contention timeliness and admissibility criteria in 10 C.F.R. § 2.309.5
- 3. Three days later, on September 9, 2011, the Commission issued a Memorandum and Order (CLI-11-05), in which it ruled on a series of petitions filed in numerous proceedings to suspend adjudicatory, licensing, and rulemaking activities, and requesting additional related relief, in light of the March 2011 accident at Fukishima.6 CLI-11-05 indicates that Intervenors Emergency Petition to suspend this proceeding was among the many filings underlying the Commissions ruling.7
- 4. Shortly thereafter, on September 13, 2011, the Intervenors filed their Reply and Reply Memorandum in response to the Answers of FirstEnergy and the NRC Staff. In the Combined Reply and Reply Memorandum, Intervenors discuss the relevance and effect of 3
Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-Ichi Accident (Aug. 11, 2011) (Motion);
Contention in Support of Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-Ichi Accident (Aug. 12, 2011) (New Contention).
4 Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-term Task Force Review of Insights from the Fukushima Dai-ichi Accident (July 12, 2011) (Task Force Report), available at ADAMS Accession No. ML112510271.
5 See FirstEnergys Answer Opposing Joint Petitioners Motion to Admit and Proposed Contention Regarding Fukushima Task Force Report (Sept. 6, 2011); NRC Staffs Answer in Opposition to Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-ichi Accident (Sept. 6, 2011) (NRC Staffs Answer).
6 See Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, slip op. (Sept. 9, 2011).
7 See id., Appendix at 2, 18 (citing Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Apr. 14, 2011); Rulemaking Petition to Rescind Prohibition Against Consideration of Environmental Impacts of Severe Reactor and Spent Fuel Pool Accidents And Request to Suspend Licensing Decision (Aug. 11, 2011)).
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CLI-11-05 with respect to their New Contention, suggesting that it supports admission of the contention.8
- 5. Due to the timing of the issuance of CLI-11-05 , FirstEnergy did not have an opportunity to address the implications of this decision on the admissibility of the proposed New Contention. A portion of the Commissions decision addresses Intervenors claims that the Task Force Report evaluation of the Fukushima accident constitutes new and significant information under NEPA that must be analyzed as part of the environmental review for new reactor and license renewal decisions.9 FirstEnergys inability to address the significance of CLI-11-05 in its Answer is due solely to the timing of that decision, which constitutes good cause for the filing of a brief surreply to address the relevance of CLI-11-05 to the proposed new contention.10 Indeed, the Reply recognizes as much, stating that the Intervenors would not object to a response by the applicant and the Staff to their arguments regarding the relevance of CLI-11-05 to their contention.11
- 6. In accordance with 10 C.F.R. § 2.323(b), Counsel for FirstEnergy has contacted Counsel for the NRC Staff, who stated that they do not oppose FirstEnergys Motion for Leave to file a surreply. As stated above, Intervenors noted their lack of objection in their Reply.
8 Reply at 2; Reply Memorandum at 1-4.
9 See CLI-11-05, slip op. at 30-31.
10 Notably, two other Licensing Boards today issued Orders granting similar motions for leave to file surreplies filed by applicants in two other proceedings involving proposed Fukushima-related contentions. See Tenn.
Valley Auth. (Watts Bar Nuclear Plant Unit 2), Licensing Board Order (Granting TVAs Request to File a Surreply) at 1-2 (Sept. 20, 2011) (unpublished) (finding compelling circumstances because TVA has not had an opportunity to address CLI-11-05s relevance here because it was issued after TVA filed its opposition on September 6); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Licensing Board Order at 1 (Granting Entergys Motion to File Surreply) (Sept. 20, 2011) (unpublished) (Given that Entergys Motion is unopposed and that Entergy has not yet had an opportunity to comment on the implications of CLI-11-05 upon Intervenors new contentions, we grant Entergys Motion.).
11 Reply at 2 n.2.
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WHEREFORE, FirstEnergy respectfully requests that the Board grant its Motion for Leave to file the attached surreply to Intervenors Reply and Reply Memorandum.
Respectfully submitted, Signed (electronically) by Alex S. Polonsky Kathryn M. Sutton Alex S. Polonsky Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: 202-739-5830 E-mail: apolonsky@morganlewis.com David W. Jenkins Senior Corporate Counsel FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FIRSTENERGY Dated in Washington, D.C.
this 20th day of September 2011 DB1/ 68152055
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )
)
(Davis-Besse Nuclear Power Station, Unit 1) ) September 20, 2011
)
CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of FirstEnergys Motion for Leave to File a Surreply to Intervenors Reply to Applicant and NRC Staff Answers was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.
Administrative Judge Administrative Judge William J. Froehlich, Chair Dr. Nicholas G. Trikouros 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 E-mail: wjf1@nrc.gov E-mail: nicholas.trikouros@nrc.gov Administrative Judge Office of the General Counsel Dr. William E. Kastenberg U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Brian G. Harris E-mail: wek1@nrc.gov Megan Wright Emily L. Monteith E-mail: Brian.Harris@nrc.gov; Office of the Secretary Megan.Wright@nrc.gov; U.S. Nuclear Regulatory Commission Emily.Monteith@nrc.gov Rulemakings and Adjudications Staff Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov DB1/ 68152055
Office of Commission Appellate Adjudication Michael Keegan U.S. Nuclear Regulatory Commission Dont Waste Michigan Mail Stop: O-16C1 811 Harrison Street Washington, DC 20555-0001 Monroe, MI 48161 E-mail: ocaamail@nrc.gov E-mail: mkeeganj@comcast.net Kevin Kamps Terry J. Lodge Paul Gunter 316 N. Michigan St., Ste. 520 Beyond Nuclear Toledo, OH 43604 6930 Carroll Avenue, Suite 400 E-mail: tjlodge50@yahoo.com Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org; paul@beyondnuclear.org Signed (electronically) by Alex S. Polonsky Alex S. Polonsky Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: 202-739-5830 E-mail: apolonsky@morganlewis.com COUNSEL FOR FIRSTENERGY 2
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