ML12206A608

Amerens Response to Request to Show Cause and Amerens Unopposed Motion for Extension

ML12206A608
Person / Time
Site:	Callaway
Issue date:	07/24/2012
From:	Doris Lewis Pillsbury, Winthrop, Shaw, Pittman, LLP, Ameren Corp, Union Electric Co
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23031, 50-483-LR, ASLBP 12-919-06-LR-BD01
Download: ML12206A608 (5)

Text

July 24, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of

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Docket Nos. 50-483-LR UNION ELECTRIC CO.

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ASLBP No. 12-919-06-LR-BD01 (Callaway Plant, Unit 1)

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AMERENS RESPONSE TO REQUEST TO SHOW CAUSE AND AMERENS UNOPPOSED MOTION FOR EXTENSION Union Electric Company, dba Ameren Missouri (Ameren) hereby responds to the Atomic Safety and Licensing Boards Memorandum and Order of July 24, 2012, which requested that Ameren and the NRC Staff show cause why the admissibility of the waste confidence contention filed by Missouri Coalition for the Environment (MCE) on July 9, 20121 should not be deemed conceded or unopposed. Counsel for Ameren was operating under the assumption that answers to this proffered contention were due 25 days after its filing (i.e., by August 3, 2012) as specified in 10 C.F.R. § 2.309(h). Upon receipt of MCEs new contention, Counsel for Ameren checked the Boards May 4, 2012 Initial Prehearing Order but, seeing no heading related to the filing of new contentions, did not recognize that footnote 3 of this Order was intended to reduce the time for filing an answer to a new contention.2 Counsel for Ameren respectfully requests the Boards pardon for failing to recognize the import of this footnote.

1 Intervenors Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Nuclear Waste at Callaway Nuclear Power Plant (July 9, 2012) (Motion).

2 Footnote 3 pertains to the section of the Initial Prehearing Order governing motions for extension of time and appears to be expanding the time for filing certain motions and answers under 10 C.F.R. § 2.323(a), rather than reducing the time that 10 C.F.R. § 2.309(h) provides for addressing the admissibility of a new contention.

Further, even now upon closer scrutiny, footnote 3 appears worded in an advisory manner unlike the directives in the body of the Initial Prehearing Order,. Compare Initial Prehearing Order at 2 (A motion for extension...

shall...) with id. at 3 n.3 (The Board notes... such motions [seeking the admission of new/amended

2 In addition, Ameren respectfully moves the Board to set August 3, 2012 as the deadline for responding to the admissibility of MCEs new contention. As the NRC Staff is doing, counsel for Ameren is also preparing answers to the same contention filed in numerous other proceedings in which answers are due on August 3, so a single deadline would promote efficiency and consistency. Further, Counsel for Ameren has consulted with Counsel for MCE and with Counsel for the NRC Staff, and neither MCE nor the NRC Staff objects to this request.

In light of Amerens counsel failure to recognize the import of footnote 3 to the Initial Prehearing Order (which appears to have also confused the NRC Staff), and in light of the absence of any objection to an August 3 deadline, Ameren respectfully submits that the admissibility of MCEs waste confidence contention should not be deemed conceded or unopposed. Further, Amerens opposition to the contention was reflected in MCEs Motion.

See Motion at 7.3 Counsel for Ameren certifies that he has consulted with both MCE and the NRC Staff in a sincere effort to resolve the issues raised in the motion to establish an August 3, 2012 deadline.

As discussed above, no party objects to this deadline.

contentions] should... ) (emphasis added). While Counsel for Ameren now understands the Boards intent, this footnote does not stand out as a clear directive.

3 It should be noted that pursuant to 10 C.F.R. § 2.309(h), answers to contentions are permitted but are not mandatory. Thus, there has been no default. In addition, regardless of whether answers are filed, the Board has an independent obligation to determine that the admissibility standards are met. Cf Arizona Public Service Co.

(Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 N.R.C. 149, 155 (1991) (If any one

[of the admissibility standards]... is not met, a contention must be rejected.). Further, pursuant to 10 C.F.R. § 2.335, the Board may not admit any contention that challenges an NRC rule. Here, the U.S. Court of Appeals for the District of Columbia Circuit has not yet issued its mandate in New York v. Nuclear Regulatory Commn, No.

11-1045, 2012 WL 2053581 (D.C. Cir. June 8, 2012). As a result, the NRCs Waste Confidence Rule, at 10 C.F.R. § 51.23(b), currently remains in effect, and the new contention challenging it may not be admitted..

3 Respectfully Submitted,

/Signed electronically by David R. Lewis/

David R. Lewis PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8474 Counsel for Ameren Dated: July 24, 2012

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

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Docket Nos. 50-483-LR UNION ELECTRIC CO.

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ASLBP No. 12-919-06-LR-BD01 (Callaway Plant, Unit 1)

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CERTIFICATE OF SERVICE I hereby certify that Amerens Answer to Request to Show Cause and Amerens Unopposed Motion for Extension, dated July 24, 2012, was provided to the Electronic Information Exchange for service to those individuals on the service list in this proceeding, this 24th day of July, 2012.

Administrative Judge G. Paul Bollwerk, III, Esq.

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: paul.bollwerk@nrc.gov Administrative Judge William J. Froehlich, Esq.

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: william.froehlich@nrc.gov Administrative Judge Dr. Nicholas G. Trikouros Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: nicholas.trikouros@nrc.gov Secretary Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 hearingdocket@nrc.gov

2 Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMAIL@nrc.gov Mary B. Spencer, Esq.

Beth N. Mizuno, Esq.

Catherine E. Kanatas, Esq.

Anita Ghosh, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mary.spencer@nrc.gov; beth.mizuno@nrc.gov; Catherine.Kanatas@nrc.gov; Anita.Ghosh@nrc.gov Diane Curran, Esq.

Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street N.W., Suite 600 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Henry B. Robertson, Esq.

Great Rivers Environmental Law Center 705 Olive Street, Suite 614 St. Louis, Missouri 63101 E-mail: hrobertson@greatriverslaw.org

/Signed electronically by David R. Lewis/

David R. Lewis