ML23060A205
| ML23060A205 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 03/01/2023 |
| From: | Fishman S, Roma A, Stenger D, Workman R Hogan Lovells, US, LLP, TMI-2 Solutions |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 23-977-02-LA-BD01, RAS 56660, 50-320-LA-2 | |
| Download: ML23060A205 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY & LICENSING BOARD In the Matter of )
)
Docket No. 50-320-LA-2 TMI-2 Solutions, LLC )
)
(License Amendment for Three Mile Island Nuclear )
Station, Unit 2) ) March 1, 2023 TMI-2 SOLUTIONS MOTION TO STRIKE PETITIONERS REPLY BRIEF IN SUPPORT OF MOTION FOR LEAVE TO FILE NEW CONTENTIONS I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(a), TMI-2 Solutions, LLC (TMI-2 Solutions) hereby moves to strike in its entirety the Reply Brief in Support of Motion for Leave to File New Contentions (Reply Brief) filed by Mr. Eric Epstein (Petitioner) on February 21, 2023. The Reply Brief impermissibly seeks to supplement the failed late-filed contentions currently pending before this Licensing Board by providing new documents and declarations, and raising additional claims that grossly exceed the scope of the Petitioners Motion to File New Contentions filed on January 18, 2023 (Petitioners January 18 Motion)1, the eve of the oral arguments on the original Petition to Intervene in this proceeding.2 It also exceeds the scope of both TMI-2 Solutions and the NRC staffs answers opposing the Petitioners January 18 Motion.3 The Reply Brief serves 1
Eric Epsteins Motion for Leave to File New Contentions (Jan. 18, 2023) (ADAMS Accession No. ML23018A297) (Petitioners January 18 Motion).
2 Eric Joseph Epsteins, Pro se, Petition for Leave to Intervene and Hearing Request (dated November 4, 2022)
(filed November 3, 2022) (ML22307A225) (Petition). The Petitioner is no longer pro se, as he has retained counsel that has prepared the Reply Brief and represented the Petitioners interests during oral arguments on the Petition.
3 TMI-2 Solutions Answer Opposing Petitioners Motion to File New Contentions (February 13, 2023) (ADAMS Accession No. ML23044A199) (TMI-2 Solutions Answer); NRC Staff Answer to Petitioner Eric Epsteins
as yet another attempt by the Petitioner to overcome the fatal flaws across his numerous filings, which continue to demonstrate that he lacks standing and an admissible contention under 10 C.F.R.
§ 2.309(c) and (f). It also continues to demonstrate the Petitioners disregard for following the regulations applicable to intervention petitionssuch as by raising new issues a year after the license amendment request was filed, six months after the Federal Register notice giving rise to the present hearing opportunity, and four months after his initial Petition to Intervene was filed.4 Accordingly, we ask this Licensing Board to strike the Reply Brief from the record and issue a final decision on the initial Petition.
II. BACKGROUND The Petitioners repeated failure to satisfy the NRCs regulatory requirements and standards in his multiple filingsnow totaling over 158 pages across four filings, of which about 100 pages of filingsor about 60%occurred at or after the Licensing Boards oral argument last month in this proceedingcreates a convoluted record in this proceeding.
We provide a brief background herein to ensure that the recent procedural history is clear:
On January 18, 2023, on the night prior to the oral argument conducted on January 19, 2023, the Petitioner filed the 61-page Petitioners January 18 Motion to assert late-filed contentions. No affidavits or declarations were included in support of the Petitioners January 18 Motion.
On February 13, 2023, TMI-2 Solutions and the NRC staff each filed timely answers opposing the Petitioners January 18 Motion, on the grounds that the Petitioner (1) failed to meet the good cause standard for filing late-filed contentions pursuant to 10 C.F.R. § 2.326, and (2) failed to meet the strict contention admissibility and standing requirements pursuant to 10 C.F.R. §§ 2.309(c) and (f).5 Motion for Leave to File New Contentions (February 13, 2023) (ADAMS Accession No. ML23044A202) (NRC Staffs Answer).
4 TMI-2 Solutions, LLC, License Amendment Request - Three Mile Island, Unit 2, Decommissioning Technical Specifications, Attach. 1 (February 19, 2021) (ML21057A046) (LAR); TMl-2 Solutions, LLC, Three Mile Island Station, Unit No, 2, 87 Fed. Reg. 51,454, 51,454-63 (Aug. 22, 2022) (Hearing Notice).
5 See TMI-2 Solutions Answer at 3-10; NRC Staffs Answer at 4-11.
2
While the Petitioners January 18 Motion and the answers opposing the Petitioners January 18 Motion are still pending, on February 21, 2023, the Petitioner filed the 36-page Reply Brief in support of the Petitioners January 18 Motion to substantively supplement the late-filed contentions. In the Reply Brief, the Petitioner does not limit himself to defending the adequacy of, or amplifying, its late-filed contentions. Rather, the Petitioner seeks to supplement his proposed contentions with a new declaration and new claims presented for the first time.
As discussed below, the Petitioners attempt to provide new support and bases for its late-filed contentions in its Reply Brief is not permissible under the Commissions rules of practice, policy, and controlling NRC case law.
III. LEGAL STANDARD FOR REPLY CONTENT Pursuant to 10 C.F.R. § 2.309(i)(2), a petitioner may file a reply to any answer within seven days after service of that answer. While the rules do not specify the content of such a reply, other provisions of Part 2, the Statement of Considerations published with the 2004 final rule, and Commission precedent make clear that this reply is to be narrowly focused on the legal or logical arguments presented in the answers of TMI-2 Solutions and NRC staff.6 In this case, the Petitioner has gone beyond an allowable reply by seeking to provide a new declaration and raising new claims.
The Commission has squarely ruled that a reply may not raise new arguments, new contention bases or new issues in an attempt to cure a defective petition or amend a deficient contention.7 For example, in CLI-04-25, the Commission noted that the reply briefs filed by petitioners constituted a late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments in the reply briefs.8 The Commission went on to state that such a course 6
Louisiana Energy Services, L.P. (National Enrichment Facility) (LES), CLI-04-25, 60 NRC 223, 224-25 (2004)
(citing Final Rule: Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,203 (Jan. 14, 2004)).
7 Id. at 225, reconsideration denied, Louisiana Energy Services, L.P. (National Enrichment Facility) (LES II),
CLI-04-35, 60 NRC 619, 623 (2004); Nuclear Management Company (Palisades Nuclear Plant) (Palisades), CLI-06-17, 63 NRC 727, 732 (2006).
8 Id.
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of action was impermissible.9 In denying reconsideration of CLI-04-25, the Commission reiterated its holding that a reply to an answer may not be used as a vehicle to provide missing support to cure an otherwise deficient contention.10 The Licensing Board has aligned with the Commission in limiting the content of a reply. In ruling on the admissibility of contentions in the Palisades license renewal proceeding, the Licensing Board held that it would not consider anything in the
[Petitioners] Reply that did not focus on the matters raised in the [applicants and Staffs]
Answers.11 Based on this precedent and in the interest of preserving the fairness of NRC proceedings, we request that the Petitioners Reply Brief be struck in its entirety.
The Commission requires strict adherence to contention admissibility standards, demanding discipline and preparedness on the part of petitioners.12 A practice that would allow petitioners to use reply briefs to provide, for the first time, the necessary threshold support for contentions . . . would effectively bypass and eviscerate [the Commissions] rules governing timely filing, contention amendment, and submission of late-filed contentions.13 Ultimately, the purpose of this restriction is to ensure the fundamental fairness of the Commissions proceedings for all participants because [a]llowing new claims in a reply would unfairly deprive other participants 9
LES at 224-25 (concluding that the NRCs contention admissibility and timeliness requirements demand a level of discipline and preparedness on part of petitioners, who must examine the publicly available material and set forth their claims and the support for their claims at the outset, and that the Petitioners reply brief should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC staff answer, a point the Board itself emphasized in this proceeding. The Commission further stated [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. There simply could be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new bases or new issues that simply did not occur to [them] at the outset..)
(footnotes omitted) (emphasis added).
10 LES II, CLI-04-35, 60 NRC at 623 (stating what our rules do not allow is using reply briefs to provide, for the first time, the necessary threshold support for contentions; such a practice would effectively bypass and eviscerate our rules governing timely filing, contention amendment, and submission of late-filed contentions.).
11 Nuclear Management Company (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 329 (2006).
12 10 CFR § 2.309(f). See also LES at 224-225.
13 LES II, CLI-04-35, 60 NRC at 623; Palisades at 732.
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of an opportunity to rebut the new claims,14 and in applying these standards, Licensing Boards have struck, or declined to consider, new information and arguments offered in a reply.15 IV. ARGUMENT FOR THE MOTION TO STRIKE Here, the Petitioners Reply Brief violates the Commissions rules of practice, precedent, and policies, which are intended to ensure that only material issues are litigated by persons with concrete, particularized harms, and that the applicant and NRC staff have received adequate notice and an opportunity to rebut such claims in line with the timelines and processes set out by the Commission. Instead, rather than responding to legal or logical arguments raised in TMI-2 Solutions or the NRC staffs Answers, the Reply Brief seeks to supplement Petitioners late-filed contentions and provide additional, substantive information in a failed attempt to remediate and expand the Petitioners January 18 Motion. As the Commission has held, permitting a reply to provide, for the first time, the necessary threshold support for contentions would completely bypass and eviscerate the NRCs hearing rules,16 and unfairly deprive other participants of an opportunity to rebut the new claims.17 Accordingly, the entire Reply Brief must be struck for raising additional arguments and relying on new, substantive documents, including the Petitioners new declaration and additional Susquehanna River Basin Commission (SRBC) correspondence. For example, some of the new arguments in the Petitioners Reply Brief include, but are not limited to, the following:
On pages 3-5, the Petitioner cited his new declaration to raise original arguments that TMI-2 has no water infrastructure and would have to construct it.18 14 Id.
15 See, e.g., Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 198-199 (2006); PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 and 2), LPB-07-04, 65 NRC 281, 301-302 (2007).
16 LES II at 623.
17 Palisades at 732.
18 See Reply Brief at 3-4 (citing Petitioners Declaration, at ¶¶ 2-8 (Exhibit 1)).
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On page 4, the Petitioner newly stated that water use at TMI-2 is complicated by the fact that ownership of the station is split between two separate licensees, and that the Petitioner raised such concerns throughout the entire SRBC proceeding.19 On pages 5-8, the Petitioner asserted for the first time that TMI-2 Solutions has refused to participate in the SRBC proceedings, or engage with either the Petitioner or the SRBC about water use.20 On page 7-8, the Petitioner argued that TMI-2 Solutions has no plan to dispose of any water that it uses, and is precluded from dumping radioactive water into the Susquehanna River.21 The Petitioner includes an entirely new Declaration, which attempts to provide support for the Petitioners claims in the body of the brief. This Declaration is not proper for a Reply Brief and could have been included in his previous filings.22 When these statements and the new declaration are removed, there is basically nothing left of the Reply Brief, hence TMI-2 Solutions request to strike the brief in its entirety. As these arguments were not properly submitted to this Licensing Board, and TMI-2 Solutions does not have a reply right to the Petitioners present filing, TMI-2 Solutions will respect the NRCs regulations and also not go into the merits of the argument, explaining why these additional claims are baseless, outside the scope of this proceeding and incorrect, as has been the case with all the Petitioners previous filings.
As stated, the Commission will not consider evidence presented for the first time in a reply brief because consideration of new evidence in or appended to a reply brief would deprive other parties of an opportunity to challenge the new evidence.23 To preserve fundamental fairness during an NRC proceeding, the reply brief should be focused on the arguments set forth in the original 19 See id. at 4 (citing Petitioners Declaration, at ¶¶ 2-8 (Exhibit 1)).
20 See id. at 6 (citing Petitioners Declaration, at ¶¶ 2-8 (Exhibit 1)).
21 See id. at 7 (citing Petitioners Declaration (Ex. 1), ¶ 17)).
22 See id. at Exhibit 1.
23 Entergy Nuclear Operations, Inc. and Entergy Nuclear Fitzpatrick, LLC (James L. FitzPatrick Nuclear Power Plant), CLI-08-19, 68 NRC 251, 261-62 (2008) (refusing to consider an individuals affidavit authorizing an organization to represent him submitted with a reply brief).
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hearing request, in this case the Petitioners January 18 Motion, or be narrowly focused on the legal or logical arguments presented in the applicants or NRC Staff preceding answers.24 Moreover, it is unclear why the Petitioner did not raise the additional claims or present the new documents and declaration contained in the Reply Brief in the Petitioners January 18 Motion, which this Reply Brief seeks to supplement. There is no procedural forum for TMI-2 Solutions or the NRC staff to respond to the Petitioners added arguments or the new declaration, and therefore, permitting the Reply Brief to stand in the record of this proceeding defies the regulatory requirements for contention admissibility and the Commissions commitment to fairness.
Even if the Petitioner had explained the inclusion of new documents and the new declaration in the reply rather than the Petitioners January 18 Motion, support for a contention must be provided when the contention is filed, not at some later date.25 While the Licensing Board has stated that 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 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.26 The Petitioner included a significant amount of new information, including an official declaration, and this new information is an impermissible attempt to supplement the record with information that should have been provided in either the original petition to intervene or Petitioners January 18 Motion. These consistent procedural irregularities are burdensome on both 24 LES at 224-25.
25 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), LBP-15-5, 81 NRC 249 (Feb. 6, 2015).
26 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131. 182.
198-99 (2006); Nuclear Management Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 351-63, aff'd, CLI-06-17, 63 NRC 727 (2006)); LES II at 622-23 (2004); Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 428-29 (2003); Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 and 4), LBP-08-16, 68 NRC 361. 399-400, 404, 407. 429 (2008).
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TMI-2 Solutions and the NRC staff. The Commission expects adherence to its rules of procedure and recognizes that applicants are entitled to prompt resolution of disputes concerning their applications.27 The Reply Brief not only fails to satisfy the regulatory requirements, it runs afoul of the Commissions policy to protect the fundamental fairness of proceedings, and seeks to establish a convoluted record. Therefore, this Licensing Board should strike the Reply Brief from the record in this proceeding.
V. CONCLUSION As demonstrated above, the Reply Brief raises new claims with new declarations and documents that are not permissible under Commission regulations and controlling precedent.
Therefore, the Reply Brief must be struck.
VI. CERTIFICATION Pursuant to 10 C.F.R. § 2.323(b), TMI-2 Solutions certifies that it made a sincere effort to contact counsel for the Petitioner and the NRC staff to resolve the issues presented in this Motion.
The NRC Staff took no position on this motion, but the Petitioner opposes it.
27 Policy Statement, Update, Statement of Policy on Conduct of Adjudicatory Proceedings, 63 Fed. Reg. 41,872, 41,873 (Aug. 5, 1998).
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Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Daniel F. Stenger Amy C. Roma Stephanie Fishman HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637-5691 daniel.stenger@hoganlovells.com amy.roma@hoganlovells.com stephanie.fishman@hoganlovells.com Executed in Accord with 10 C.F.R. § 2.304(d)
Russell G. Workman TMI-2 SOLUTIONS, LLC 423 West 300 South, Suite 200 Salt Lake City, UT 84101 (801) 303-0195 rgworkman@energysolutions.com Signed (electronically) by Stephanie Fishman Stephanie Fishman HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637-5691 stephanie.fishman@hoganlovells.com Counsel for TMI-2 Solutions, LLC Dated in Washington, DC this 1st day of March 2023 9
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) Docket No. 50-320-LA-2
)
TMI-2 Solutions, LLC )
)
(License Amendment for Three Mile Island Nuclear )
Station, Unit 2) ) March 1, 2023
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing TMI-2 Solutions Motion to Strike Petitioners Reply Brief in Support of Motion For Leave to File New Contentions was served through the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Stephanie Fishman Stephanie Fishman HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 stephanie.fishman@hoganlovells.com Counsel for TMI-2 Solutions, LLC 10