ML12132A468

Motion to Strike

ML12132A468
Person / Time
Site:	Mcguire, Palisades, Catawba, Pilgrim, McGuire, 07003103, EA-12050, EA-12051
Issue date:	05/11/2012
From:	Sullivan M Hogan Lovells, US, LLP, Entergy Nuclear Operations
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22436, ASLBP 12-918-01-EA-BD01, EA-12-050, EA-12-051
Download: ML12132A468 (10)

Text

May 11, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) EA-12-050 and EA-12-051 All Operating Boiling Water Licensees )

With Mark I and Mark II Containments and ) ASLBP No. 12-918-01-EA-BD01 In the Matter of )

All Power Reactor Licensees and Holders )

of Construction Permits in Active or )

Deferred Status )

MOTION TO STRIKE Pursuant to 10 C.F.R. § 2.323, Entergy Nuclear Operating Company and Entergy Nuclear Operations, Inc. (collectively Entergy) move to strike portions of Pilgrim Watch Reply to Answers to Pilgrim Watch Requests for Hearing, (the Reply) filed by Pilgrim Watch (Petitioner) on May 4, 2012. Petitioners Reply makes new arguments for the first time on reply, which exceed the permissible scope of a reply. Accordingly, the portions of the Reply discussed herein should be stricken from the record.

I. Background On April 2, 2012, Petitioner submitted to the U.S. Nuclear Regulatory Commission (NRC) Pilgrim Watch Request for Hearing Regarding Insufficiency of Order Modifying Licenses with Regard to Reliable Hardened Containment Vents, requesting a hearing on an order issued by the NRC to several power reactor licensees, including Entergy. Order to Modify Licenses with Regard to Reliable Hardened Containment Vents (Effective Immediately), EA-12-050 (Mar. 12, 2012). That same day, Petitioner also submitted to the NRC Pilgrim Watch Request for Hearing Regarding Insufficiency of Order Modifying Licenses with Regard to Spent [sic] Reliable 1

Spent Fuel Pool Instrumentation, requesting a hearing on another order issued by the NRC to power reactor licensees, including Entergy. Order Modifying Licenses with Regard to Reliable Spent Fuel Pool Instrumentation (Effective Immediately), EA 051 (Mar. 12, 2012). 1 Collectively, the two petitions are referred to herein as the Hearing Requests, and the two orders, EA-12-050 and EA-12-051, are referred to as the Orders. On April 27, 2012, pursuant to 10 C.F.R. § 2.309(h)(1), Entergy and the NRC staff submitted answers opposing the Hearing Requests (collectively, Answers).2 On May 4, 2012, Petitioner filed its Reply.

In its Reply, Petitioner presents two new arguments, calling them common adverse effects - one pertaining to Backfitting and one pertaining to what Petitioner characterizes as Socio-psychological factors. In its Backfitting argument, Petitioner seems to claim that, unless the Orders are changed to include the additional measures it proposes in its contentions, i.e., filtered vents, rupture discs and low-density, open-frame pool storage, such measures would only be addressed by the Commission as backfits that would have to pass a cost-benefit analysis rooted in a pre-Fukushima way of thinking and assumptions. Reply at 6. For that reason, Petitioner argues that there is little chance that any regulatory action [including apparently the measures it proposes] . . .

would pass the [cost-benefit] test. Id.

1 On April 3, 2012, Beyond Nuclear also submitted a request to be added as a co-petitioner to the Petitioners Hearing Requests, which Entergy also opposed. On May 9, 2012, Beyond Nuclear withdrew from the proceeding.

2 See, e.g., Entergys Answer to Pilgrim Watch Request for Hearing Regarding Insufficiency of Order Modifying Licenses With Regard to Reliable Hardened Containment Vents; Entergys Answer to Pilgrim Watch Request for Hearing Regarding Insufficiency of Order Modifying Licenses With Regard to Spent Reliable Spent Fuel Pool Instrumentation. A number of other power reactor licensees also submitted answers. On May 9, 2012, the Licensing Board issued a scheduling order explaining that the other licensees answers would be treated as amicus curiae briefs. Id. at 3 n. 5.

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In the Socio-psychological factors argument, Petitioner claims that, because the Orders recognize that measures are required to ensure adequate protection to the health and safety of the public, the public and regulators will presume that the Orders are all that needs to be done to incorporate the lessons-learned from Fukushima and that this presumption is likely to act as a sedative and foster a hubristic viewpoint that the plants are now safe (fixed) so that there is no real need to do more, thus putting the public at greater risk. Reply at 7.

II. Legal Standard A reply is intended to give a petitioner an opportunity to address arguments raised in the opposing parties answers. A reply may not be used as a vehicle to introduce new arguments or support, to expand the scope of arguments set forth in the original petition, or to cure an otherwise deficient contention. See, e.g., USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006) (The Commission will not permit, in a reply, the filing of new arguments or new legal theories that opposing parties have not had the opportunity to address.) (citing Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (LES)). As the Commission has stated:

[i]t is well established in NRC proceedings that a reply cannot expand the scope of the arguments set forth in the original hearing request. Replies must focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it. Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (Palisades) (citation omitted).

The Commissions prohibition on new arguments in replies is based on the Commissions interest in conducting adjudicatory hearings efficiently and basic 3

principles of fairness. The Commission has recognized that, [a]s 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 225. It has further stated that there would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements every time they realize[d] . . . that maybe there was something after all to a challenge it either originally opted not to make or which simply did not occur to it at the outset. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 428-29 (2003) (internal quotation marks omitted). Accordingly, a petitioner must include all of its arguments and claims in its initial filing.

Moreover, because NRC regulations do not allow the other parties to respond to a petitioners reply (see 10 C.F.R. § 2.309(h)(3)), principles of fairness mandate that a petitioner restrict its reply brief to addressing issues raised in the licensees or NRC Staffs answer. Allowing new claims in a reply . . . would unfairly deprive other participants of an opportunity to rebut the new claims. Palisades, CLI-06-17, 63 NRC at 732; see also Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004) (Any reply should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC staff answer.). In short, the Commission has been clear that any new arguments raised in a reply must be stricken.

III. Basis for Motion to Strike Both Entergy and the NRC Staff argued in their answers that the Petitioner did not allege an injury from the Orders being sustained. See Entergys Hardened Vents Answer at 9, 10-11; Entergys Spent Fuel Pool Instrumentation Answer at 9 (noting that 4

Petitioner was asking for a supplemental order, not a rescission of the order at issue),

11; NRC Staff Answer at 7. Although Petitioner does not clearly articulate how the arguments it presents as Common Adverse Effects relate to its Hearing Requests, it appears that Petitioner is seeking to provide the required allegations of injury to establish standing. For the reasons set forth herein, the entirety of the Backfitting discussion on pages 6-7 of the Reply and the entirety of the Socio-psychological factors discussion on page 7 of the Reply should be stricken from the record. These are new arguments that were not presented in Petitioners Hearing Requests and that do not respond to matters raised in the Answers.

As explained above, a reply may not be used as a vehicle to introduce new arguments or support, to expand the scope of arguments set forth in the original petition, or to cure an otherwise deficient petition. See, e.g., LES, CLI-04-25, 60 NRC at 225.

Moreover, allowing a reply to include new arguments is unfair to the other parties because they do not get an opportunity to respond (see 10 C.F.R. § 2.309(h)(3)), and, as the Commission has pointed out, it would provide a petitioner with a means to circumvent the NRCs filing deadlines. Duke, CLI-03-17, 58 NRC at 428-29 ([t]here would be no end to NRC licensing proceedings if petitioners could continue to add new 3

arguments). Because the backfitting harm and socio-psychological harm 3

Even if Petitioner had raised it in the Hearing Requests, the backfitting argument does not give rise to the requisite allegation of injury because, among other reasons, Petitioner assumes, incorrectly, that the Commission found the actions required by the Orders are sufficient to ensure the plants provide adequate protection to the health and safety of the public, i.e., that the Order in question represents the end of the discussion about vents. However, the Commission found only that the actions in the Hardened Vents Order were necessary to ensure the minimum level of adequate protection required; it made no finding about sufficiency. Id. at 6-7 (the NRC has concluded that these measures are necessary to ensure adequate protection of public health and safety under the provisions of the backfit rule.). With respect to the Spent Fuel Pool Instrument Order, the Commission administratively exempted that Order from the Commissions backfit rule. Id. at 7. It is possible that additional actions could be found to be necessary for adequate protection, and no cost-benefit analysis would be required under 10 C.F.R. § 50.109. Petitioner 5

arguments4 were not raised in the Hearing Requests, nor were they raised in the Answers, they constitute new arguments that, under well-settled NRC case law, must be stricken from the record.

IV. Conclusion For the reasons set forth above, the Backfitting section on pages 6-7 of the Reply and the Socio-psychological factors section on pages 7 of the Reply should be stricken from the record.

seems to assume, without any explanation or basis, that the Commission is precluded from finding that the Petitioners recommended additional actions (e.g., filtered vents) are necessary to ensure adequate protection. Moreover, such a conjectural or hypothetical injury is insufficient to establish standing to intervene. See International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-98-6, 47 NRC 116, 117 (1998), citing Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003, 1016 (1998) (stating that a petitioner must demonstrate that it will likely suffer an injury that is distinct and palpable, particular and concrete, as opposed to being conjectural or hypothetical.).

4 Even if the Petitioner had raised the socio-psychological factors argument in its Hearing Requests, it would not constitute an adequate allegation of injury for the reasons similar to those identified in n.3 above, i.e., it presumes, incorrectly, that the actions required by the Orders are sufficient to ensure adequate protection and also presumes that others will believe so as well, and that this would negatively impact their behavior. There is no reason to assume, as the Petitioner alleges, that the public and regulators will be lulled into complacency simply because these Orders have been issued. Indeed, the sheer number of ongoing Fukushima-related meetings at the NRC, in which Petitioner acknowledges in its Reply that it participates, demonstrates that far from lulling the Commission or others into a false sense of security, the Orders are just part of the ongoing post-Fukushima actions. Moreover, the Petitioners argument sets forth a conjectural or hypothetical injury, and it ignores other ongoing post-Fukushima activities that the NRC has identified for further regulatory action. See, e.g., Hardened Vents Answer at 23; Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights From the Fukushima Dai-ichi Accident (Mar. 12, 2012) at 5 and Enclosure 5 (discussing ongoing emergency preparedness issues).

6

CERTIFICATION As required by 10 C.F.R. § 2.323(b), counsel for Entergy certifies that we have consulted with the NRC Staff and Pilgrim Watch and made a sincere effort to resolve the issues raised in this Motion. The NRC Staff has advised Entergy that it takes no position on the Motion. Pilgrim Watch stands by its Reply and is unwilling to support Entergys suggestion that the two new arguments presented in its Reply are beyond the proper scope of a reply.

Respectfully submitted,

/Signed electronically by Mary Anne Sullivan/

Mary Anne Sullivan Daniel F. Stenger Amy C. Roma Ruth M. Porter HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W.

Washington, D.C. 20004 (202) 637-5600 ATTORNEYS FOR ENTERGY NUCLEAR OPERATING COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C. this 11th Day of May 2012 7

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) EA-12-050 and EA-12-051 All Operating Boiling Water Licensees )

With Mark I and Mark II Containments and ) ASLBP No. 12-918-01-EA-BD01 In the Matter of )

All Power Reactor Licensees and Holders )

of Construction Permits in Active or )

Deferred Status )

CERTIFICATE OF SERVICE I hereby certify that copies of Motion to Strike, dated May 11, 2012, have been served upon the following persons by Electronic Information Exchange (EIE) on this 11th day of May 2012.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop - T-3 F23 Mail Stop: O-15 D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Carrie Safford, Esq.

Administrative Judge E-mail: carrie.safford@nrc.gov Alan S. Rosenthal, Chair Christopher Hair, Esq.

E-mail: alan.rosenthal@nrc.gov E-mail: Christopher.hair@nrc.gov Mauri Lemoncelli, Esq.

Administrative Judge E-mail: Mauri.lemoncelli@nrc.gov E. Roy Hawkens Catherine Scott, Esq.

E-mail: roy.hawkens@nrc.gov E-mail: clm@nrc.gov E-mail: OGCMailCenter.Resource@nrc.gov Administrative Judge Dr. Anthony J. Baratta E-mail: Anthony.baratta@nrc.gov Jonathan Eser, Law Clerk E-mail: jonathan.eser@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of Secretary of the Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMail.Resource@nrc.gov E-mail: hearingdocket@nrc.gov

Pilgrim Watch Morgan, Lewis & Bockius, LLP 148 Washington Street 1111 Pennsylvania, Ave. N.W.

Duxbury, MA 02332 Washington, D.C. 20004 Mary E. Lampert, Director Paul M. Bessette, Esq.

E-mail: mary.lampert@comcast.net E-mail: pbessette@morganlewis.com Stephen J. Burdick, Esq.

E-mail: sburdick@morganlewis.com Beyond Nuclear Pillsbury Winthrop Shaw Pittman 6930 Carroll Avenue Suite 400 2300 N Street, NW Takoma Park, MD 20912 Washington, DC 20037 Tel. 301 270 2209 x3 David Lewis, Esq.

Paul Gunter, Director Counsel for Dominion Reactor Oversight Project E-mail: David.lewis@pillsburylaw.com E-mail: paul@beyondnuclear.org Jay Silberg, Esq.

E-mail: jay.silberg@pillsburylaw.com Stephen L. Markus, Esq.

E-mail: Stephen.markus@pillsburylaw.com Balch & Bingham LLP Winston & Strawn LLP 1710 Sixth Avenue North 101 California Street Birmingham, AL 35203-2015 San Francisco, CA 94111 M. Stanford Blanton, Esq. Tyson Smith, Esq.

E-mail: SBlanton@balch.com E-mail: trsmith@winston.com Derek J. Brice, Esq.

E-mail: dbrice@balch.com April Leemon, Paralegal E-mail: aleemon@balch.com Hunton & Williams LLP Winston & Strawn LLP Riverfront Plaza, East Tower 1700 K Street, NW 951 East Byrd Street Washington, DC 20006 Richmond, VA 23219 David A. Repka, Esq.

Donald P. Irwin, Esq. Counsel for Pacific Gas & Electric Co.

Counsel for Detroit Edison E-mail: drepka@winston.com E-mail: dirwin@hunton.com Carlos L. Sisco, Paralegal Stephanie Meharg, Esq. E-mail: csisco@winston.com E-mail: smeharg@hunton.com Detroit Edison Company Winston & Strawn LLP One Energy Plaza 1700 K Street, NW Detroit, MI 48226-1279 Washington, DC 20006 Jon P. Christinidis, Esq. William A. Horin, Esq.

Office of the General Counsel Counsel for Energy Northwest E-mail: christinidisj@dteenergy.com E-mail: whorin@winston.com Rachael Miras-Wilson, Esq.

E-mail: rwilson@winston.com

Dominion Resources Services, Inc. Florida Power & Light Company 120 Tredegar Street, RS-2 801 Pennsylvania Avenue, NW Richmond, VA 23219 Suite 220 Lillian M. Cuoco, Esq. Washington, DC 20004 Senior Counsel Mitchell Ross, Esq.

E-mail: Lillian.cuoco@dom.com E-mail: mitch.ross@fpl.com Steven Hamrick, Esq.

E-Mail: Steven.hamrick@fpl.com Respectfully submitted,

/Signed electronically by Mary Anne Sullivan/

Mary Anne Sullivan ATTORNEY FOR ENTERGY NUCLEAR OPERATING COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC.