ML14079A346
| ML14079A346 | |
| Person / Time | |
|---|---|
| Site: | Dresden  |
| Issue date: | 03/20/2014 |
| From: | Skolnick R International Brotherhood of Electrical Workers (IBEW), Local Union No 15, Schuchat, Cook & Werner |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-237-EA, 50-249-EA, ASLBP 14-930-01-EA-BD01, Enforcement Action, RAS 25702 | |
| Download: ML14079A346 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket Nos. 50-237-EA EXELON GENERATION COMPANY, LLC
)
50-249-EA
)
(Dresden Nuclear Power Station
)
ASLBP No.
14-930-01-EA-BD01 Confirmatory Order Modifying License)
)
LOCAL 15, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIOS RESPONSE IN OPPOSITION TO EXELONS MOTION TO STRIKE Pursuant to 10 CFR §2.323(c) and the Boards direction at the March 6, 2014 oral argument in this matter, Local 15, International Brotherhood of Electrical Workers, AFL-CIO (Local 15 or Union) hereby provides its answer in opposition to Exelons Motion to Strike a portion of Local 15s February 14, 2014 Reply to NRC Staff and Exelon Answers.
Local 15s Reply does not raise either a new contention or a new claim in support of a contention. The passage Exelon seeks to strike merely describes a natural consequence of deficiencies in the Confirmatory Order (CO or Order) that are fully described in Local 15s Petition. It also responds to arguments raised by Staff and Exelon in their answers. Accordingly, this passage and the remainder of Local 15s Reply are well within the scope of what may be included in such a pleading. To the extent the disputed passage responds to alleged deficiencies in pleadings concerning Local 15s standing, Local 15 should be permitted to supplement the record to cure such defects.1 No new material or assertions were contained in Local 15s Reply. Exelon acknowledges that Local 15s Petition, as supported by the affidavit of Dennis Specha, contained numerous For these reasons, Exelons motion should be denied.
1 See, e.g., S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-01, 71 NRC 1, 7 (2010); PPL Bell Bend (Bell Bend Nuclear Plant), LBP-09-18, 70 NRC 385, 396 (2009).
2 references to the Orders connection with health and safety concerns.2 It is also undisputed that Local 15s Petition contended that the Order imposed vague and overbroad reporting obligations on Exelon employees (Petition at 2, 5, 18) that rendered employee compliance far more uncertain (Petition at 5). This uncertainty clearly implicates safety concerns and, as argued, makes the plant less safe. The disputed passage in the Reply merely connected the dots among all of the Unions clearly stated concerns, laying out the natural effect employee uncertainty due to the Orders overbreadth and vagueness is likely to have on the safety of Exelons operations.
All of the elements of the disputed passage were present in Local 15s petition allowing any reader (including Exelon and Staff) to draw the same conclusion from the Petition that was explicitly articulated in Local 15s Reply. At most, the disputed passage was an amplification of statements made in the Petition and thus, pursuant to Commission jurisprudence, legitimate and permissible.3 While a reply may not assert new contentions or new bases for contentions, it is well-settled that a petitioner may respond to and focus on any legal, logical or factual arguments presented in the answers.
4 2 See Exelons Motion to Strike at 3 and notes 10-12.
Here, even if the Board were to conclude that the disputed passage was not simply a restatement of assertions first raised in Local 15s Petition, that passage was responsive to arguments presented in Exelons and Staffs Answers. For example, Exelon, at page 16 of its Answer, argued that Local 15 did not have standing because the injury it alleged 3 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 359 (2006)
(citing Louisiana Energy Serv., L.P. (National Enrichment Facility), LBP-04-14, 60 NRC 40, 58, aff'd, CLI-04-25, 60 NRC 223 (2004)). In Entergy, the Licensing Board noted the critical importance of contention admissibility standards to determining whether petitioners were granted evidentiary hearings in NRC adjudicatory proceedings and therefore included with its decision and relied upon an Appendix containing a more detailed and in-depth discussion highlighting the contention admissibility standards as they have been interpreted in various NRC adjudication proceedings. Entergy Nuclear Generation Co.,
LBP-06-23, 64 NRC 257, 273-274 (2006). It is that appendix to which Local 15 cites.
4 Id.
3 did not fall within the zone of interests protected by the AEA, specifically public health and safety. Staff, at page 7 of its Answer, alleged that Local 15 does not have standing because its concerns arise from labor law issues as distinct from the NRCs health and safety or common defense and security obligations. In its Reply, and in response to these assertions, Local 15 attempted (among other things) to demonstrate how the Orders deficiencies, which are the subject of all three of Local 15s contentions, do, in fact, relate to public health and safety.
Further, to the extent these arguments in Exelons and Staffs Answers claimed Local 15 lacked standing (as they clearly did), the Commission and Licensing Boards allow petitioners to cure such procedural defects in petitions to intervene regarding standing in reply pleadings.5 In both the Bell Bend Licensing Board decision and the South Carolina/Virgil C. Summer Commission decision, petitioners were allowed in reply pleadings and supplemental declarations to clarify the basis for their standing and the Bell Bend Licensing Board noted that [t]he benefit of the doubt should be given to the potential intervenor in order to prevent the dismissal of a petition due to inarticulate draftsmanship or procedural or pleading defects.6 Exelon cites a number of cases in support of its Motion, all of which are distinguishable from this one. In Nuclear Management Company, LLC (Palisades Nuclear Plant), which was a license application case and not one concerning an enforcement order, the Commission observed that the original petition consisted of only general allegations and obvious truisms such that the Board considering the petition questioned whether the petitioners had even read the license Here, likewise, Local 15 and its counsel, new to practice before the Commission, should be given the benefit of the doubt and permitted to clarify the basis for standing as Local 15 did in its Reply.
5 PPL Bell Bend (Bell Bend Nuclear Plant), LBP-09-18, 70 NRC 385, 396 (2009).
6 Id.
4 application.7 Petitioners sought to remedy these deficiencies by submitting a reply that included 22 pages in support of a contention (including citations to documents and portions of the application) that was apparently supported by a single paragraph in the original petition.8 Similarly, in Duke Energy, Here, Local 15s contentions were closely tied to the terms of the CO and specific with regard to the Orders defects. In contrast to the 22 pages of new material offered in Palisades, the disputed portion of Local 15s reply consists of a single sentence which is comprised of elements all articulated in the Petition.
9 which concerned an operating license renewal and not an enforcement order, the Commission affirmed a Licensing Boards rejection as untimely an argument concerning the licensees failure to perform an adequate uncertainty analysis that was not raised with the petitioners original contentions. In doing so, the Commission noted that it was inconsistent with NRC contention standards for the petitioner to expect that merely pointing to an entire lengthy study was enough to adequately place the Board and other litigants on notice that the petitioner intended to litigate any and all of the studys recommendations or underlying assumptions.10 In Louisiana Energy Services a petitioner acknowledged its petition did not satisfy contention requirements and claimed inadequate time and resources.11 7 Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 730 (2006).
The Commission found that beyond constituting a late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments in the reply briefs the replies further 8 Id.
9 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2),
10 Id. at 428-29.
11 La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004).
5 presented what amount to entirely new contentions.12 However, while it rejected this entirely new support, the Board did take into account information from the reply briefs that "legitimately amplified" issues presented in thepetitions and the Commission affirmed.13 The Entergy/Indian Point case Exelon cites did not concern a reply to answers to a petition for hearing on an enforcement order but rather a reply to answers to a petition for review of a licensing board decision.
14 However, to the extent it applies in this context, Entergy actually supports Local 15s position. The Commission in that case distinguished between a reply offering new information that was not raised in either the petition or answers (impermissible and stricken) and one making arguments that respond to the petition or answers (permissible and not stricken).15 For all of the foregoing reasons and those articulated at the March 6, 2014 oral argument in this matter, Local 15 respectfully requests that the Board deny Exelons Motion to Strike and for such other relief as is warranted.
Here, Local 15 has not submitted any new information that was not raised in its petition. The disputed passage, at most, is an amplification of statements contained in its petition or constitutes an argument responsive to the answers of Exelon and Staff.
12 Id. at 224 (emphasis original).
13 La. Energy Servs., L.P. (Natl Enrichment Facility), LBP-04-14, 60 NRC 40, 58 (2004), affd in pertinent part, CLI-04-25, 60 NRC 223 (2004), and recons. denied, 60 NRC 619, 621 (2004).
14 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-11-14, 74 NRC 801 (2011).
15 Id. at 809.
6 Respectfully submitted, Signed (electronically) by Rochelle G. Skolnick Rochelle G. Skolnick Marilyn S. Teitelbaum Schuchat, Cook & Werner 1221 Locust Street, Second Floor St. Louis, Missouri 63103 (314) 621-2626 Fax: (314) 621-2378 Email: rgs@schuchatcw.com Email: mst@schuchatcw.com Counsel for Local Union No. 15, IBEW
7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket Nos. 50-237-EA EXELON GENERATION COMPANY, LLC
)
50-249-EA
)
(Dresden Nuclear Power Station
)
ASLBP No.
14-930-01-EA-BD01 Confirmatory Order Modifying License)
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that on this date, March 20, 2014, copies of Local 15, International Brotherhood of Electrical Workers, AFL-CIOs Response in Opposition to Exelons Motion to Strike were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Rochelle G. Skolnick Rochelle G. Skolnick Marilyn S. Teitelbaum Schuchat, Cook & Werner 1221 Locust Street, Second Floor St. Louis, Missouri 63103 (314) 621-2626 Fax: (314) 621-2378 Email: rgs@schuchatcw.com Email: mst@schuchatcw.com Counsel for Local Union No. 15, IBEW Dated in St. Louis, Missouri this 20th day of March, 2014