ML12242A416

NRC Staff'S Unopposed Response to the Board'S Notice

ML12242A416
Person / Time
Site:	Limerick
Issue date:	08/29/2012
From:	Matthew Smith NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23372, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML12242A416 (9)

Text

August 29, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

EXELON GENERATING COMPANY, LLC ) Docket Nos. 50-352-LR/ 50-353-LR

)

(Limerick Generating Station, Units 1 and 2 )

NRC STAFFS UNOPPOSED RESPONSE TO THE BOARDS NOTICE INTRODUCTION On August 22, 2012, the Atomic Safety and Licensing Board (Board) notified the parties that the NRC amended its Part 2 regulations related to adjudicatory proceedings.1 The Notice described some of the Part 2 amendments and stated that the parties should inform the Board by August 29, 2012 if they believe the amendments require any changes to the Initial Scheduling Order (ISO).2 The NRC staff (Staff) believes that the Part 2 amendments warrant the following changes to the ISO.

1 Notice (Advising Parties of Amendments to 10 C.F.R. Part 2), at 1 (Aug. 22, 2012) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML12235A265) (Notice).

2 Id. at 2; Initial Scheduling Order (May 7, 2012) (ADAMS Accession No. ML12128A295) (ISO).

DISCUSSION A. Additional Contentions The amendments made several changes to Part 2 which impact the ISOs section on additional contentions. Prior to the amendments, NRC regulations contained two provisions potentially applicable to contentions filed after the initial filing period: 10 C.F.R. § 2.309(c)(1),

governing nontimely filings, and 10 C.F.R. §2.309(f)(2), governing new or amended contentions.

The Part 2 amendments eliminate the provisions on nontimely filings, currently in 10 C.F.R. § 2.309(c)(1), and move the provisions on new or amended contentions currently in § 2.309(f)(2) to §2.309(c)(1).3 Additionally, the Part 2 amendments clarify that 10 C.F.R. § 2.323, the provision normally governing motions in NRC practice, does not apply to motions for new or amended contentions under the new § 2.309(c).4 Moreover, the Part 2 amendments provide that the time periods for answers and replies concerning initial contentions in new 10 C.F.R. §2.309(i) also apply to answers and replies on new or amended contentions.5 As a result, the new rules eliminate the need for parts of sections 5 and 6 of the ISO, which govern new and amended contentions. Those sections currently read:

5. Timeliness of New and Amended Contentions NRC regulations state that new or amended contentions may be filed after new information becomes available provided that, among other requirements, the contentions are submitted in a timely fashion based on the 3

Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46562, 46566-67, 46571-72, 46582-83, 46,591(Aug. 3, 2012).

4 Id. at 46,567, 46,574, 46,583, 46,593.

5 Id. at 46,592.

availability of the subsequent information. The regulations do not define the phrase timely fashion.

For purposes of this proceeding, as the parties have proposed, any contention filed within 30 days of the availability of the information upon which it is based shall be deemed timely under 10 C.F.R. § 2.309(f)(2). Any contention filed later than that will be deemed nontimely under 10 C.F.R. § 2.309(c), and any motion to admit such a nontimely contention will be expected to address the eight factors found in that regulation.

6. Procedures Governing New and Amended Contentions We adopt the proposal of the parties, as follows:

[A] party seeking to file a motion or request for leave to file a new or amended contention shall file such motion and the substance of the proposed contention simultaneously. The pleading shall include a motion for leave to file a timely new or amended contention under 10 C.F.R. § 2.309(f)(2) or a motion for leave to file a nontimely new or amended contention under 10 C.F.R. § 2.309(c) (or both), and the support for the proposed new or amended contention showing that it satisfies 10 C.F.R. § 2.309(f)(1). Exelon and the NRC Staff may file an answer within twenty-five (25) days after service of the motion and proposed contention.

The parties disagree on the length of time that NRDC shall be provided to reply the Exelons and NRC Staffs answers. Exelon proposes a seven-day deadline, in accordance with 10 C.F.R. § 2.309(h)(2). NRDC proposed a 14-day deadline, because intervenors are often faced with the task of replying to lengthy answers filed by both applicants and the NRC Staff, and that the standard seven-day deadline does not account for weekends or holidays. In short, NRDC contends that a seven-day deadline is unreasonably short. In the interest of ensuring adequate time to respond to potentially two separate answers, we agree. NRDC shall have 14 days to file a reply to any answers to a motion to admit new or amended contentions.6 Given the recent Part 2 amendments, it is no longer necessary to discuss consolidated briefing for new or amended contentions and provide which deadlines apply to responses to those 6

ISO at 7-8 (footnotes omitted).

contentions. Therefore, the Staff proposes that the first paragraph of section 6 of the ISO be eliminated.

In addition, the new § 2.309(i) specifies that a new or amended contentions sponsor will have seven days to file a reply to an answer to the new or amended contention. As stated above, the ISO provides a 14 day period for such replies. Because this language in the ISO reflects a case-specific ruling by the Board, the Staff proposes retaining the second paragraph of section 6, with modifications to address new citations.

Under the new rules, all contentions filed after the initial deadline will need to meet the timeliness criteria currently in § 2.309(f)(2). Thus, the ISOs discussion of nontimely contentions under current § 2.309(c) in section 5 of the ISO is superfluous. Consequently, the Staff proposes the following revision to sections 5 and 6 of the ISO (deletions are crossed out, additions are underlined).

5. Timeliness of New and Amended Contentions NRC regulations state that new or amended contentions may be filed after new information becomes available provided that, among other requirements, the contentions are submitted in a timely fashion based on the availability of the subsequent information. The regulations do not define the phrase timely fashion.

For purposes of this proceeding, as the parties have proposed, any contention filed within 30 days of the availability of the information upon which it is based shall be deemed timely under 10 C.F.R. § 2.309(fc)(21)(iii). Any contention filed later than that will be deemed nontimely. under 10 C.F.R. § 2.309(c), and any motion to admit such a nontimely contention will be expected to address the eight factors found in that regulation.

6. Procedures Governing New and Amended Contentions We adopt the proposal of the parties, as follows:

[A] party seeking to file a motion or request for leave to file a new or amended contention shall file such motion and the substance of the proposed contention simultaneously. The pleading shall include a motion for leave to file a timely new or amended contention under 10 C.F.R. § 2.309(f)(2) or a motion for leave to file a nontimely new or amended contention under 10 C.F.R. §

2.309(c) (or both), and the support for the proposed new or amended contention showing that it satisfies 10 C.F.R. § 2.309(f)(1). Exelon and the NRC Staff may file an answer within twenty-five (25) days after service of the motion and proposed contention.

The parties disagree on the length of time that NRDC shall be provided to reply the to Exelons and NRC Staffs answers to contentions filed after the initial deadline. Exelon proposes a seven-day deadline, in accordance with 10 C.F.R. § 2.309(hi)(2). NRDC proposed a 14-day deadline, because intervenors are often faced with the task of replying to lengthy answers filed by both applicants and the NRC Staff, and that the standard seven-day deadline does not account for weekends or holidays. In short, NRDC contends that a seven-day deadline is unreasonably short. In the interest of ensuring adequate time to respond to potentially two separate answers, we agree. NRDC shall have 14 days to file a reply to any answers to a motion to admit new or amended contentions.

The above revisions would bring sections 5 and 6 of the ISO into conformity with the Part 2 amendments.

B. Mandatory Disclosures and Production of Hearing File Additionally, the Part 2 amendments limit the scope of the Staffs hearing file disclosure obligations under 10 C.F.R. § 2.336(b) to documents that are relevant to the admitted contentions.7 The ISO does not specifically discuss the scope of the Staffs disclosure obligations, so no revisions are necessary to conform the ISO to the amendments to § 2.336(b).

Nonetheless, the Staff takes this opportunity to inform the parties and the Board that in light of this amendment, future hearing file updates will only reflect those documents that are relevant to admitted contentions or otherwise subject to disclosure under 10 C.F.R. § 2.1203.8 7

77 Fed. Reg. 46,563-65, 46,574-75, 46, 583, 46,593.

8 The ISO provides, Documents disclosed [shall] be those generated through the 1st day of the previous month, allowing parties 30 days to gather, review and disclose documents. ISO at 3 (alterations in original, footnote omitted). The Part 2 amendments provide that the mandatory disclosure updates need not include documents that are developed, obtained, or discovered during the two weeks before the due date for the disclosure. 77 Fed. Reg. at 46,575, 46,593. Thus, the ISO provides for an earlier cut-off date for including documents in an update than the new regulations provide. Nonetheless, because the ISO reflects the parties agreement, sanctioned by the Board, the parties understand the ISO (continued. . .)

C. Dispositive Motions The Part 2 Amendments also clarify the standards for summary disposition in a subpart L proceeding under 10 C.F.R. § 2.1210.9 The Boards Notice stated that the Part 2 Amendments suggest that the normal 10-day filing deadline for motions should apply to dispositive motions but that the ISO provided for a 30-day deadline.10 The Notice clarified that the 30-day deadline in the ISO will continue to apply to this case, so the Staff finds no reason to modify the ISOs section on dispositive motions.

D. Other Changes In addition, the Part 2 Amendments moved several existing regulations in Part 2 and changed the citations for other regulations. As a result, the Staff recommends revising the following citations in the ISO that have been outdated by the amendments.

Page/Line Delete Insert 9 /7 10 C.F.R. § 2.323(c) 10 C.F.R. § 2.323(a)(2) 9 n. 43/ 2 10 C.F.R. § 2.323(c) 10 C.F.R. § 2.323(a)(2) 10/ 7 10 C.F.R. § 2.323(a) 10 C.F.R. § 2.323(a)(2) 11/ 16 10 C.F.R. § 2.323(a) 10 C.F.R. § 2.323(a)(2)

Moreover, the amendments to Part 2 change many citations in sections 5 and 6 of the ISO, but if the Board accepts the proposed modification to those sections, those citations will be deleted or fixed.

(. . .continued) to still control on this issue.

9 77 Fed. Reg. at 46,569, 46,579-80, 46,585, 46,598.

10 Notice at 2.

CONSULTATION CERTIFICATION Pursuant to 10 C.F.R. § 2.323(b), counsel for the Staff consulted on this filing with the counsel for the other parties to this case, the Exelon Generation Company, LLC and the Natural Resources Defense Council. Neither party opposes the Staffs position.

CONCLUSION For the reasons set forth above, the Staff respectfully believes that the Part 2 amendments warrant the aforementioned changes to the ISO.

/Signed (electronically) by/

Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Phone: (301) 415-1246 E-mail: Maxwell.Smith@nrc.gov

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

EXELON GENERATION COMPANY, LLC ) Docket Nos. 50-352-LR/ 50-353-LR

)

(Limerick Generation Station, Units 1 and 2 )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS UNOPPOSED RESPONSE TO THE BOARDS NOTICE dated August 29, 2012, have been served upon the following by the Electronic Information Exchange, this 29th day of August, 2012:

William J. Froehlich, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of the Secretary of the Commission Mail Stop: T-3F23 Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc.gov William.Froehlich@nrc.gov Dr. Michael F. Kennedy U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of Commission Appellate Adjudication Mail Stop: T-3F23 Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 ocaamail@nrc.gov Michael.Kennedy@nrc.gov Dr. William E. Kastenberg Exelon Generation Company, LLC Atomic Safety and Licensing Board 4300 Warrenville Road Mail Stop: T-3F23 Warrenville, IL 60555 U.S. Nuclear Regulatory Commission J. Bradley Fewell, Deputy General Counsel Washington, DC 20555-0001 Bradley.Fewell@exeloncorp.com William.Kastenberg@nrc.gov Morgan, Lewis & Bockius LLP Geoffrey H. Fettus 1111 Pennsylvania Avenue, N.W. Natural Resources Defense Counsel Washington, DC 20004 1152 15th Street NW Alex S. Polonsky, Esq. Washington, DC 20005 apolonsky@morganlewis.com gfettus@nrdc.org Kathryn M. Sutton, Esq.

ksutton@morganlewis.com

Anthony Z. Roisman National Legal Scholars Law Firm, P.C.

241 Poverty Lane, Unit 1 Lebanon, NH 03766 aroisman@nationallegalscholars.com Signed (electronically) by Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1246 E-mail: Maxwell.Smith@nrc.gov Date of signature: August 29, 2012