ML12285A373

Order (Granting in Part and Denying in Part Motion to Strike)

ML12285A373
Person / Time
Site:	Davis Besse
Issue date:	10/11/2012
From:	William Froehlich Atomic Safety and Licensing Board Panel
To:	FirstEnergy Nuclear Operating Co
SECY RAS
References
RAS 23607, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML12285A373 (7)

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 October 11, 2012 (Davis-Besse Nuclear Power Station, Unit 1)

ORDER (Granting in Part and Denying in Part Motion to Strike)

On January 10, 2012, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (collectively, Intervenors) filed a proposed Contention 5 in this proceeding.1 FirstEnergy Nuclear Operating Company (FENOC) and the Nuclear Regulatory Commission Staff (NRC Staff) filed answers on February 6, 2012.2 Intervenors filed a combined reply on February 13, 2012.3 FENOC then filed a motion to strike portions of Intervenors reply on February 23, 2012,4 to which Intervenors and the NRC Staff 1

Motion for Admission of Contention No. 5 on Shield Building Cracking (Jan. 10, 2012).

2 See FENOCs Answer Opposing Intervenors Motion for Admission of Contention No. 5 on Shield Building Cracking (Feb. 6, 2012); NRC Staffs Answer to Motion to Admit New Contention Regarding the Safety Implications of Newly Discovered Shield Building Cracking (Feb. 6, 2012).

3 Intervenors Combined Reply in Support of Motion for Admission of Contention No. 5 (Feb. 13, 2012).

4 FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking (Feb. 23, 2012) [hereinafter Motion to Strike].

responded on February 27, 2012, and March 5, 2012, respectively.5 For the reasons discussed below, FENOCs motion to strike is granted in part and denied in part.

I. LEGAL STANDARD A reply brief may not raise new arguments beyond the scope of a proposed contention in an effort to rectify inadequacies that existed in the motion to admit the new contention.6 However, a reply may legitimately amplif [y] arguments found within the motion to admit.7 A reply may also respond to any legal or logical arguments put forward by other parties in their answers.8 II. ANALYSIS AND RULING FENOC contends that Intervenors have put forward in their reply a number of arguments that are outside the scope of the proposed new contention, and that Intervenors have made unsupported allegations against FENOC that are contrary to the standards of practice for NRC adjudicatory proceedings.9 We grant the motion to strike in part and deny it in part.

First, FENOC argues that the Board should strike Section E of Intervenors reply, which addresses postulated accidents.10 FENOC contends that while Intervenors raised cursory arguments regarding postulated accidents in their original contention, Intervenors Reply impermissibly provides new information and arguments in a blatant attempt to cure their earlier 5

Intervenors Answer to FENOC Motion to Strike (Feb. 27, 2012) [hereinafter Intervenors Answer]; NRC Staffs Answer to FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention on Shield Building Cracking (Mar. 5, 2012) [hereinafter NRC Staff Answer].

6 See Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 152 (2006), revd in part on other grounds, CLI-07-16, 65 NRC 371 (2007).

7 See, e.g., Nuclear Management Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 329 (2006).

8 See Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004).

9 Motion to Strike at 1.

10 Id. at 4-6.

deficiencies.11 Intervenors claim that their reply statements focus squarely on the issues and arguments raised by FENOC in FENOCs answer.12 While the NRC Staff has indicated its support for the motion,13 it does not seem to have put forward any arguments on this particular subject.

While FENOC is correct that Intervenors cite new legal authority and raise certain new arguments in their reply, we believe that these citations and arguments are fairly responsive to arguments proffered by FENOC in its answer. While a party may not raise new arguments in a reply that are outside the scope of the initial contention, it may legitimately amplify arguments presented in its initial contention in order to fairly respond to arguments raised in the answers.14 The arguments presented by Intervenors in Section E of its reply do not strike us as attempts to belatedly broaden the scope of the contention, but rather as efforts to fairly respond to FENOCs answer. As such, FENOCs February 23 Motion to Strike is denied insofar as it seeks to strike Section E of Intervenors reply.

Second, FENOC seeks to strike Section F of Intervenors reply regarding cumulative effects.15 FENOC argues that Intervenors had not included any arguments whatsoever about the cumulative effects of changes to the Shield Building in the proposed Contention, and that neither FENOC nor the NRC Staff raised cumulative effects issues in their respective answers.16 The NRC Staff agrees, arguing that Intervenors have not identified any portion of their original pleading as raising the issue of cumulative effects.17 Intervenors again argue that their discussion of 11 Id. at 4, 5.

12 Intervenors Answer at 2.

13 See NRC Staff Answer at 1.

14 See, e.g., Nuclear Management Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 329 (2006).

15 Motion to Strike at 6-7.

16 Id. at 6.

17 NRC Staff Answer at 6.

cumulative effects in their reply directly responded to FENOCs argument and should therefore not be stricken.18 We disagree.

Intervenors motion to admit proposed Contention 5 did not contain the phrase cumulative effects. The issue of cumulative effects, as FENOC asserts, is simply outside the scope of the proposed contention. Intervenors argument that its discussion of cumulative effects is a fair response to arguments put forward by FENOC is not convincing. The discussion of cumulative effects is not a legitimate amplification, but rather an attempt to expand the scope of proposed Contention 5. As such, FENOCs motion is granted insofar as it seeks to strike Section F of Intervenors reply.

Finally, FENOC contends that the Board should strike portions of the Intervenors reply raising accusations of fraudulent conduct against FENOC and the NRC Staff.19 FENOC argues that such allegations are outside the bounds of appropriate conduct in an NRC adjudicatory proceeding.20 The NRC Staff agrees, arguing that Intervenors claims of fraud are unsupported and meant to inflame rather than address any legitimate argument for contention admissibility.21 We agree.

NRC Regulations provide that parties and their representatives . . . are expected to conduct themselves with honor, dignity, and decorum as they should before a court of law.22 Intervenors actions in putting forward baseless and irrelevant allegations of fraud on the part of FENOC and the NRC Staff did not conform with this standard. As such, FENOCs motion is granted insofar as it seeks to strike all allegations of fraudulent activity within Intervenors reply.

18 Intervenors Answer at 5.

19 See Motion to Strike at 7-10.

20 Id. at 7.

21 NRC Staff Answer at 4.

22 10 C.F.R. § 2.314(a).

We fully expect that the parties will conform their actions to this standard in all future activities before this Board, including the upcoming oral argument. At that argument, the Board will not entertain arguments beyond the scope of Contention 4 as it has been admitted and Contention 5 as it has been proposed and amended. The Board will not hesitate to exercise its powers to maintain decorum as necessary.23 Unsupported allegations of fraudulent conduct will not be tolerated.

III. CONCLUSION For the foregoing reasons, the FENOC February 23, 2012 motion to strike portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking is granted in part and denied in part as follows:

1. The motion is granted such that the entirety of Section F on pages 13 through 14 of Intervenors reply is stricken from the record of this proceeding;

2. The motion is granted such that those portions of Section A that allege fraud, active concealment or mendacity took place are stricken from the record of this proceeding; and

3. The motion is denied insofar as it seeks to strike Section E of Intervenors reply.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

William J. Froehlich, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland October 11, 2012 23 See id. § 2.314(c).

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 (Granting in Part and Denying in Part Motion to Strike) 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 Catherine Kanatas, Esq.

Administrative Judge E-mail: catherine.kanatas@nrc.gov E-mail: nicholas.trikouros@nrc.gov Brian P. Newell, Paralegal E-mail: brian.newell@nrc.gov William E. Kastenberg Administrative Judge OGC Mail Center : OGCMailCenter@nrc.gov E-mail: wek1@nrc.gov FirstEnergy Service Company.

Matthew Flyntz, Law Clerk Mailstop: A-GO-15 E-mail: matthew.flyntz@nrc.gov 76 South Main Street Onika Williams, Law Clerk Akron, OH 44308 Email: onika.williams@nrc.gov David W. Jenkins, Esq.

E-mail : djenkins@firstenergycorp.com

Davis-Besse Nuclear Power Station, Docket No. 50-346-LR ORDER (Granting in Part and Denying in Part Motion to Strike)

Morgan, Lewis & Bockius Dont Waste Michigan 1111 Pennsylvania Avenue, NW 811 Harrison Street Washington, D.C. 20004 Monroe, Michigan 48161 Stephen Burdick, Esq. Michael Keegan E-mail: sburdick@morganlewis.com E-mail: mkeeganj@comcast.net Kathryn M. Sutton, Esq.

E-mail: ksutton@morganlewis.com Terry J. Lodge, Counsel for CEA, Dont Martin ONeill, Esq. Waste Michigan, and Green Party of Ohio E-mail: martin.oneill@morganlewis.com 316 N. Michigan Street, Suite 520 Timothy Matthews, Esq. Toledo, OH 43604-5627 E-mail: tmatthews@morganlewis.com E-mail: tjlodge50@yahoo.com Jane Diecker, Esq.

E-mail: jdiecker@morganlewis.com Beyond Nuclear Mary Freeze, Legal Secretary 6930 Carroll Avenue Suite 400 E-mail: mfreeze@morganlewis.com Takoma Park, Md. 20912 Kevin Kamps Citizens Environmental Alliance (CEA) E-mail : kevin@beyondnuclear.org of Southwestern Ontario Paul Gunter 1950 Ottawa Street E-mail : paul@beyondnuclear.org Windsor, Ontario Canada N8Y 197 Green Party of Ohio 2626 Robinwood Avenue Toledo, Ohio 43610

[Original signed by Herald M. Speiser ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 11th day of October 2012 2