ML12030A106
| ML12030A106 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 01/30/2012 |
| From: | William Froehlich, Kastenberg W, Nicholas Trikouros Atomic Safety and Licensing Board Panel |
| To: | FirstEnergy Nuclear Operating Co |
| SECY RAS | |
| References | |
| RAS 21809, 50-346-LR, ASLBP 11-907-01-LR-BD01 | |
| Download: ML12030A106 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
William J. Froehlich, Chairman Nicholas G. Trikouros Dr. William E. Kastenberg In the Matter of: Docket No. 50-346-LR FirstEnergy NUCLEAR OPERATING ASLBP No. 11-907-01-LR-BD01 COMPANY (Davis-Besse Nuclear Power Station, Unit 1) January 30, 2012 ORDER (Denying Motion for Leave to File a Motion for Reconsideration)
Before this Board is a motion filed on January 13, 2012 by FirstEnergy Nuclear Operating Company (FENOC) seeking leave to file a motion for reconsideration.1 Accompanying the motion for leave is FENOCs motion for reconsideration2 requesting that the Board reconsider its January 10, 2012 denial3 of FENOCs earlier motion to dismiss Intervenors Contention 1.4 The Board denied FENOCs motion to dismiss finding that it was untimely,5 but noting that FENOC could file essentially the same motion when the NRC Staff publishes its Draft Supplemental Environmental Impact Statement (DSEIS), which at that time was scheduled to 1
FENOCs Motion for Leave to File a Motion for Reconsideration of the Boards January 10 Order (Jan. 13, 2012) [hereinafter Motion for Leave].
2 FENOCs Motion for Reconsideration of the Boards January 10 Order (Jan. 13, 2012).
3 Memorandum and Order (Denying Motion to Dismiss Contention 1) (Jan. 10, 2012) at 4 (unpublished) [hereinafter Order].
4 FirstEnergy Nuclear Operating Companys Motion to Dismiss Contention 1 (Dec. 19, 2011).
5 Order at 1.
be filed by the end of January 2012.6 The Joint Intervenors oppose FENOCs motions.7 The NRC Staff does not oppose FENOCs motions.8 Because FENOC has not met the requirements set forth in § 2.323(e) for motions for reconsideration, its motion for leave to file a motion for reconsideration is denied. Its reconsideration motion does not show compelling circumstances, does not identify a clear and material error which could not have been reasonably anticipated, and does not indicate how the order materially prejudices the rights of all parties going forward.9 FENOCs Reconsideration Motion The Commissions regulations require that motions for reconsideration may not be filed except upon leave of the presiding officer.10 Such leave may be granted only upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid.11 The compelling circumstances alleged by FENOC are that the Boards Order 6
The NRC Staff has since announced that at this time, the Staff is unable to project when the DSEIS or the FSEIS will be issued. Depending on the timing of the applicants supplement of its SAMA analysis, the Staff anticipates being able to project a date for issuing the DSEIS and FSEIS in April 2012. Letter from Brian G. Harris, Counsel for the NRC Staff to Administrative Judges (Jan. 25, 2012) (ADAMS Accession No. ML12025A007) [hereinafter NRC Staff Letter].
7 Intervenors Memorandum in Opposition to FENOCs Motion for Reconsideration of the Boards January 10 Order (Jan.16, 2012) and Refiled Intervenors Memorandum in Opposition to FENOCs Motion for Reconsideration of the Boards January 10 Order (Jan.16, 2012).
8 NRC Staffs Response in Support of First Energys Motion for Reconsideration of the Boards Order Denying Motion to Dismiss Contention 1 (Jan. 23, 2012).
9 The standards for reconsideration are strictly applied, and such motions should not be granted lightly. Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC 399, 400-01 (2006); see also Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,207 (Jan. 14, 2004) (standards are intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration).
10 10 C.F.R. § 2.323(e).
11 Id.
Denying FENOCs Motion to Dismiss is somehow inconsistent with Sections B.1 and C of the Initial Scheduling Order (ISO).12 FENOC further argues that the Boards Order is inconsistent with the treatment of similar dispositive motions by other Atomic Safety and Licensing Boards and the federal courts and . . . materially prejudice[s] the rights of all parties going forward.13 In support of its claim that the Board has made a clear and material error, FENOC argues that 10 C.F.R. § 2.323(a), which states, All motions must be made no later than ten (10) days after the occurrence or circumstances from which the motion arises does not apply to its motion to dismiss because paragraphs B.1 and C of the Boards ISO set a different time period for motions to dismiss.14 This was not our intent. Any reasonable reading of our ISO shows that the Board left standing the time limit of Section 2.323(a). Section 2.323(a) is remarkably clear for a Commission regulation. It states all motions must be made no later than ten (10) days after the occurrence or circumstances from which the motion arises.15 It does not provide for a 90-day exception for FENOC or for its motion to dismiss. It sets a short, but clear deadline for the filing of all motions.
Contrary to FENOCs assertions, there is no ambiguity in the Boards ISO and no clear and material error in the Boards January 10 Order. Section B.1 of the ISO says nothing about expanding the 10-day rule of Section 2.323(a) to 90 days for FENOC to file dispositive motions. Section B.1 refers solely to the limits for new or amended contentions. It states that new or amended contentions must be filed within 60 days of the availability of new 12 Initial Scheduling Order (June 15, 2011) at 11 (unpublished) [hereinafter ISO].
13 Motion for Leave at 2.
14 See ISO at 12-13.
15 The Commission has decided that expeditious management of a hearing requires that motions be filed reasonably promptly after the underlying circumstances occur which engender a motion. Accordingly a ten (10) day limit for filing motions is included in the final version of § 2.323(a). 69 Fed. Reg. 2,207 (Jan. 14, 2004).
information.16 Section C of the ISO also does nothing to advance FENOCs argument. While it does speak to dispositive motions, it states that motions for summary disposition can be filed no later than 45 days before a hearing. It also requires that no dispositive motion shall be filed later than thirty days after the Trigger Date as defined in section F.1 of the ISO. 17 These references to dispositive motions in the ISO set forth the last date when the Board will consider a motion for summary disposition or other dispositive motion. This ultimate deadline was never intended to expand the promptness deadline contained in Section 2.323(a).18 As noted above, a party seeking reconsideration must demonstrate that a manifest injustice would occur in the absence of reconsideration. FENOC has not met this burden. In this case, it was FENOC, who on September 19, 2011 submitted to the NRC revisions to its ER19 that it claims significantly expand the discussion of renewable energy alternatives.20 This is the type of event contemplated by Section 2.323(a). The timing of this submission is entirely within FENOCs control, so filing a motion to dismiss within 10 days based on an action which the moving party has set in motion, is both reasonable and contemplated by the ISO. Having the other parties to the case respond within 10 days for any motion (or 20 days 16 ISO at 12. The 60-day limit was selected by the Board after a teleconference with the parties whereat the NRC Staff and FENOC requested a 30-day time limit for new or amended contentions and the Joint Intervenors requested a 90-day limit. Tr. at 250-52.
17 The Trigger Dates specified in Section F of the ISO refer to the issuance of the Final SEIS and the Final Safety Evaluation Report.
18 This dual deadline structure is not unique to this Board. See, e.g., Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP 09-22, 70 NRC 640, 652-53 (2009)
(The Board provided two deadlines for dispositive motions - one based on time elapsed from the event giving rise to the motion, and one based on time elapsed after the filing of the FEIS.).
19 See Letter from Kendall Byrd, Director, Site Performance Improvement, FENOC, to NRC, License Renewal Application Amendment 16 for the Review of the Davis-Besse Nuclear Power Station, Unit No. 1, License Renewal Application Environmental Report, Enclosure A (Sept. 19, 2011) (ADAMS Accession No. ML11266A062).
20 Motion to Dismiss at 4.
for a motion for summary disposition) is fair and reasonable. This is the timetable which is mandated by the Commissions rules and is practiced routinely -- especially when a party who controls the timing of the filing of new information makes such a filing and then moves to dismiss a contention based on that new information.21 Therefore, there is no manifest injustice in requiring an applicant to file a motion to dismiss a contention as moot within ten days of the filing of its own document which allegedly renders that contention moot.
Nor does the Boards January 10 Order materially prejudice the rights of all parties going forward, as FENOC alleges. Indeed, FENOC has not pointed to any right that is irretrievably lost by any party as a result of our January 10 Order. In particular, FENOC cannot allege that it itself has been materially prejudiced. As stated in the January 10 Order, FENOC will be able to refile its motion to dismiss within 10 days of the release of the DSEIS.22 Accordingly, there is no manifest injustice in our denial of FENOCs motion to dismiss.
To summarize and clarify: All motions in this proceeding, including motions for summary disposition and motions to dismiss, are subject to the promptness deadline specified in 10 C.F.R. § 2.323(a) and must be filed no later than ten (10) days after the occurrence or circumstance from which the motion arises. An answer to a motion for summary disposition must be filed within 20 days.23 Answers to all other motions must be filed within 10 days.24 21 See, e.g., Luminant Generation Company, LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), LBP-10-10, 71 NRC 529, 538 n.4 (2010) (Applicant filed revisions to its Environmental Report on December 7, 2009 and January 19, 2010, and subsequently filed motions to dismiss the related contentions as moot on December 14, 2009, and January 25, 2009, respectively.);
PaIna Hawaii, LLC (Material License Application) (Jan. 25, 2007) at 1 (unpublished) (Applicant filed a report on December 31, 2006 and a motion to dismiss as moot the related contention on January 8, 2007.).
22 See NRC Staff Letter.
23 10 C.F.R. § 2.1205(b); ISO at 13.
24 10 C.F.R. § 2.323(c).
For the reasons stated above, FENOCs motion for leave to file a motion for reconsideration of the Boards January 10 Order and the relief requested in FENOCs motion for reconsideration are denied.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD25
/RA/
William J. Froehlich, Chairman ADMINISTRATIVE JUDGE
/RA/
Nicholas G. Trikouros ADMINISTRATIVE JUDGE
/RA/
Dr. William E. Kastenberg ADMINISTRATIVE JUDGE Rockville, Maryland January 30, 2012 25 The Board has compiled a chart, attached to this Order, which may help the parties better understand the Boards intentions regarding the timing and deadlines of upcoming events in this docket.
Attachment A26 This chart clarifies the promptness deadlines for upcoming filings in this proceeding.
Action Promptness Deadline Any motion seeking to dispose of a contention 10 days after the DSEIS becomes available.27 based on the contents of the DSEIS.
10 days after the filing of the motion28 Answer to any motion. (20 days if motion is filed pursuant to 10 C.F.R. § 2.1205).29 Motion to admit new contention(s) or amend existing contention(s) based on the contents of 60 days after the DSEIS becomes available.30 the DSEIS.
Answer to motion to admit new contention(s). 25 days after filing of the motion to admit new contention(s).31 Reply to answer to motion to admit new 7 days after filing of answer.32 contention(s).
26 This chart was prepared by the Board to assist the parties to this case to prepare for a fair and impartial hearing according to law, to take appropriate action to control the prehearing and hearing process, to avoid delay, and the maintain order. The Board has set a reasonable schedule for the conduct of this proceeding consistent with its responsibilities under 10 C.F.R. § 2.319.
27 10 C.F.R. § 2.323(a).
28 10 C.F.R. § 2.323(c).
29 10 C.F.R. § 2.1205(b); ISO at 13.
30 ISO at 12; see also 10 C.F.R. § 2.309(f)(2).
31 10 C.F.R. § 2.309(h)(1); ISO at 13.
32 10 C.F.R. § 2.309(h)(2); ISO at 13.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
FIRST ENERGY NUCLEAR OPERATING )
COMPANY ) Docket No. 50-346-LR
)
(Davis-Besse Nuclear Power Station, Unit 1) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying Motion for Leave to File a Motion for Reconsideration) have been served upon the following persons by Electronic Information Exchange.
Office of Commission Appellate Office of the Secretary of the Commission Adjudication U.S. Nuclear Regulatory Commission Mail Stop O-7H4M Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov Office of the General Counsel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission. Mail Stop O-15D21 Mail Stop T-3F23 Washington, DC 20555-0001 Washington, DC 20555-0001 Edward L. Williamson, Esq.
E-mail: edward.williamson@nrc.gov William J. Froehlich, Chair Lloyd B. Subin, Esq.
Administrative Judge E-mail: lloyd.subin@nrc.gov E-mail: william.froehlich@nrc.gov Brian Harris, Esq.
E-mail: brian.harris@nrc.gov Nicholas G. Trikouros Richard S. Harper, Esq.
Administrative Judge E-mail: richard.harper@nrc.gov E-mail: nicholas.trikouros@nrc.gov Catherine Kanatas, Esq.
E-mail: catherine.kanatas@nrc.gov William E. Kastenberg Brian P. Newell, Paralegal Administrative Judge E-mail: brian.newell@nrc.gov E-mail: wek1@nrc.gov OGC Mail Center : OGCMailCenter@nrc.gov Hillary Cain, Law Clerk E-mail: hillary.cain@nrc.gov FirstEnergy Service Company.
Matthew Flyntz, Law Clerk Mailstop: A-GO-15 E-mail: matthew.flyntz@nrc.gov 76 South Main Street Akron, OH 44308 David W. Jenkins, Esq.
E-mail : djenkins@firstenergycorp.com
Docket No. 50-346-LR ORDER (Denying Motion for Leave to File a Motion for Reconsideration)
Morgan, Lewis & Bockius Citizens Environmental Alliance (CEA) 1111 Pennsylvania Avenue, NW of Southwestern Ontario Washington, D.C. 20004 1950 Ottawa Street Stephen Burdick, Esq. Windsor, Ontario Canada N8Y 197 E-mail: sburdick@morganlewis.com Alex Polonsky, Esq. Green Party of Ohio E-mail: apolonsky@morganlewis.com 2626 Robinwood Avenue Kathryn M. Sutton, Esq. Toledo, Ohio 43610 E-mail: ksutton@morganlewis.com Martin ONeill, Esq. Dont Waste Michigan E-mail: martin.oneill@morganlewis.com 811 Harrison Street Timothy Matthews, Esq. Monroe, Michigan 48161 E-mail: tmatthews@morganlewis.com Michael Keegan Brooke Leach, Esq. E-mail: mkeeganj@comcast.net E-mail: bleach@morganlewis.com Jane Diecker, Esq. Terry J. Lodge, Counsel for CEA, Dont E-mail: jdiecker@morganlewis.com Waste Michigan, and Green Party of Ohio Mary Freeze, Legal Secretary 316 N. Michigan Street, Suite 520 E-mail: mfreeze@morganlewis.com Toledo, OH 43604-5627 Lesa Williams-Richardson, Legal Secretary E-mail: tjlodge50@yahoo.com E-mail: lrichardson@morganlewis.com Beyond Nuclear 6930 Carroll Avenue Suite 400 Takoma Park, Md. 20912 Kevin Kamps E-mail : kevin@beyondnuclear.org Paul Gunter E-mail : paul@beyondnuclear.org
[Original signed by Christine M. Pierpoint ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 30th day of January 2012 2