ML12339A124
| ML12339A124 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 12/04/2012 |
| From: | Burdick S, Frantz S, Porter D Morgan, Morgan, Lewis & Bockius, LLP, Southern California Edison Co |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23836, 50-361-LA, 50-362-LA, ASLBP 12-923-01-LA-BD01 | |
| Download: ML12339A124 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket Nos. 50-361-LA & 50-362-LA SOUTHERN CALIFORNIA EDISON COMPANY )
)
(San Onofre Nuclear Generating Station, ) December 4, 2012 Units 2 and 3) )
)
SOUTHERN CALIFORNIA EDISON COMPANYS MOTION TO STRIKE CITIZENS OVERSIGHTS ADDENDUM TO ITS REPLY I. INTRODUCTION On October 17, 2012, Citizens Oversight, Inc. (COPS) submitted a Petition to Intervene and Request for Hearing (Hearing Request) to the U.S. Nuclear Regulatory Commission (NRC or Commission). COPS submitted the Hearing Request to challenge Southern California Edison Companys (SCE) July 29, 2011 License Amendment Request (LAR) that would convert the Current Technical Specifications for San Onofre Nuclear Generating Station Units 2 and 3 to Improved Technical Specifications. SCE and the NRC Staff submitted Answers opposing the Hearing Request on November 13, 2012 and November 9, 2012, respectively.1 COPS filed its Reply on November 16, 2012.2 Over two weeks later, on December 2, 2012, COPS filed an Addendum to its November 16, 2012 Reply.3 Pursuant to 10 C.F.R. § 2.323, SCE moves to strike the Addendum 1
Southern California Edison Companys Answer Opposing Petition to Intervene and Request for Hearing by Citizens Oversight (Nov. 13, 2012); NRC Staffs Answer to Petition to Intervene and Request for Hearing by Citizens Oversight (Nov. 9, 2012).
2 Citizens Oversights Answer to Submissions by NRC Staff and Southern California Edison Opposing the Petition to Intervene and Request for a Hearing by Citizens Oversight (Nov. 16, 2012).
3 Addendum to Citizens Oversights Answer to Submissions by NRC Staff and Southern California Edison Opposing the Petition to Intervene and Request for a Hearing by Citizens Oversight (Dec. 2, 2012).
because it is an unauthorized filing, was filed late without good cause, and impermissibly attempts to expand COPS earlier arguments.4 II. THE ADDENDUM SHOULD BE STRICKEN A. The Addendum Is Unauthorized by the Regulations Petitions to intervene and associated filings are governed by 10 C.F.R. § 2.309. That regulation does not authorize addendums filed separately from a petition or reply.
Accordingly, the Addendum is an unauthorized filing and should be stricken.5 B. The Addendum Is Late Without Good Cause If treated as part of COPS Reply, the Addendum should be stricken because it is late.
SCE filed its Answer to COPS Hearing Request on November 13, 2012. The NRC regulations, 10 C.F.R. § 2.309(i)(2), require a reply to be filed within seven days of an answer. Therefore, COPS Reply was due on November 20, 2012. Because COPS filed its Addendum on December 2, 2012, the Addendum was 12 days late.
COPS did not justify the late filing. The late filing must satisfy 10 C.F.R. § 2.307, which requires the party in question to demonstrate that it has good cause for the late filing.6 COPS has 4
SCE certifies that it contacted representatives for COPS and the NRC Staff pursuant to 10 C.F.R. § 2.323(b) and has made a sincere effort to resolve the issues raised in this motion, and that SCEs efforts to resolve the issues have been unsuccessful. COPS opposes the motion. The NRC Staff stated that it does not object to SCE filing the motion.
5 The Addendum should also be stricken if it is treated as a motion under Section 2.323. First, COPS failed to file the Addendum within ten days after the occurrence or circumstance from which the motion arises, as required by Section 2.323(a)(2). Indeed, COPS has not identified any occurrence or circumstance that triggered the Addendum. Additionally, contrary to 10 C.F.R. § 2.323(b), COPS did not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movants efforts to resolve the issue(s) have been unsuccessful. In fact, COPS did not contact SCE in any manner to discuss the Addendum. Therefore, the Addendum must be rejected. 10 C.F.R. § 2.323(b). The Commission and licensing boards have supported this outcome in the past. See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-08-29, 68 NRC 899, 902 n.12 (2008) (rejecting a motion for failing to comply with consultation requirements of Section 2.323(b)); see also FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-34, 74 NRC __, slip op. at 2, 18 (Nov. 23, 2011) (rejecting a motion for a new contention as hopelessly flawed and concluding that it must be denied for failure to consult with the applicant according to Section 2.323(b)).
6 See 10 C.F.R. §§ 2.307(a), 2.309(c).
2
not attempted to provide any good cause for its late filing. Moreover, no good cause exists because COPS could have filed the information in the Addendum with either its Hearing Request or its initial Reply. Because COPS has not demonstrated good cause for its late filing, the Addendum should be stricken.
C. The Addendum Impermissibly Attempts to Expand Earlier Arguments Even assuming the Addendum should be treated as part of the Reply and was timely filed, it impermissibly attempts to expand COPS support for its proposed contentions in the Hearing Request. 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 for the first time new arguments or support, may not expand the scope of arguments set forth in the original petition, and may not attempt to cure an otherwise deficient contention.7 As the Commission has stated:
It 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. New bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2).8 The Commissions prohibition on new arguments and support in replies is rooted in the Commissions interest in conducting adjudicatory hearings efficiently and consistent with basic 7
See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-11-14, 74 NRC __, slip op. at 10 (Dec. 22, 2011) (stating that the Commission has long held that a reply may not contain new information that was not raised in either the petition or answers); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 182, 198-99 (2006) (granting in part a motion to strike and finding that petitioners impermissibly expand[ed] their arguments by filing a second declaration from their expert in a reply brief that provided additional detail regarding the proposed contention); Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 351-63 (refusing to consider references to various documents identified in a petitioners reply that were not included in the original petition), affd, CLI-06-17, 63 NRC 727 (2006).
8 Palisades, CLI-06-17, 63 NRC at 732 (citation omitted).
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.9 It has further stated:
Allowing contentions to be added, amended, or supplemented at any time would defeat the purpose of the specific contention requirements . . . by permitting the intervenor to initially file vague, unsupported, and generalized allegations and simply recast, support, or cure them later. The Commission has made numerous efforts over the years to avoid unnecessary delays and increase the efficiency of NRC adjudication and our contention standards are a cornerstone of that effort.10 Moreover, because NRC regulations do not allow the applicant to respond to a petitioners reply,11 principles of fairness mandate that a reply be restricted to addressing issues raised in the applicants or NRC Staffs answers. Allowing new claims in a reply not only would defeat the contention-filing deadline, but would unfairly deprive other participants of an opportunity to rebut the new claims.12 Thus, [i]n Commission practice, and in litigation practice generally, new arguments may not be raised for the first time in a reply brief.13 Any improper arguments should be stricken.14 The Addendum runs afoul of these long-standing requirements. The Addendum includes an Exhibit A, which consists of a new six-page table, titled Table of Changes to the RCS Technical Specifications. The table provides COPS compilation of certain surveillance frequencies that are affected by the LAR that is the subject of this proceeding, including a 9
La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004).
10 La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-04-35, 60 NRC 619, 622-23 (2004) (internal quotation marks and citation omitted).
11 See 10 C.F.R. § 2.309(i)(3).
12 Palisades, CLI-06-17, 63 NRC at 732.
13 Natl Enrichment Facility, CLI-04-25, 60 NRC at 225; see also Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004).
14 A licensing board has the authority to strike pleadings. See, e.g., 10 C.F.R. § 2.319 (stating that the presiding officer has all the powers necessary to take appropriate action to control the prehearing . . .
process).
4
column with COPS comments. This is new information from COPS. COPS could have provided this table as part of its Hearing Request. The table does not purport to respond to any arguments made by SCE or the NRC Staff in their Answers to the Hearing Request. Therefore, the Addendum is an inappropriate attempt to expand the scope of the bases for the Hearing Request.
COPS states that [t]here are no arguments or statements by Citizens Oversight in this addendum.15 This claim does not cure the deficiencies with the Addendum. First, the Addendum includes a new six-page table that was not part of COPS earlier filings. Second, a petitioner is not allowed to file new information just because it claims that it is not providing any new arguments. As discussed above, a reply cannot include new bases for a contention.16 In summary, the Addendum inappropriately provides new information to support the Hearing Request, and therefore should be stricken.
III. CONCLUSIONS As demonstrated above, the Addendum is an unauthorized filing, is late without good cause, and impermissibly attempts to expand COPS earlier arguments. Therefore, the Addendum should be stricken.
15 Addendum at 1.
16 See Palisades, CLI-06-17, 63 NRC at 732.
5
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Steven P. Frantz Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5460 E-mail: sfrantz@morganlewis.com Douglas Porter Director and Managing Attorney Generation Policy and Resources Law Department Southern California Edison Company 2244 Walnut Grove Avenue GO1, Q3B, 335C Rosemead, CA 91770 Phone: 626-302-3964 E-mail: Douglas.Porter@sce.com Counsel for Southern California Edison Company Dated in Washington, DC this 4th day of December 2012 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket Nos. 50-361-LA & 50-362-LA SOUTHERN CALIFORNIA EDISON COMPANY )
)
(San Onofre Nuclear Generating Station, ) December 4, 2012 Units 2 and 3) )
)
CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Southern California Edison Companys Motion to Strike Citizens Oversights Addendum to Its Reply was filed through the E-Filing system.
Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5059 E-mail: sburdick@morganlewis.com Counsel for Southern California Edison Company DB1/ 72209699.4