ML12285A376

Order (Granting Motion to Strike)

ML12285A376
Person / Time
Site:	Davis Besse
Issue date:	10/11/2012
From:	Froehlich W J Atomic Safety and Licensing Board Panel
To:	FirstEnergy Nuclear Operating Co
SECY RAS
References
RAS 23608, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML12285A376 (9)

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:

FirstEnergy NUCLEAR OPERATING COMPANY (Davis-Besse Nuclear Power Station, Unit 1)

Docket No. 50-346-LR ASLBP No. 11-907-01-LR-BD01

October 11, 2012 ORDER (Granting Motion to Strike)

On July 26, 2012 FirstEnergy Nuclear Operating Company ("FENOC") filed a Motion for Summary Disposition of Contention 4.

1 On September 14, 2012 the Nuclear Regulatory Commission Staff ("NRC Staff") filed an answer and Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Party of Ohio (collectively, "Intervenors") filed a reply to the FENOC Motion for Summary Disposition.

2 On September 24, 2012 FENOC filed the instant motion to strike Intervenors' Reply.

3 Intervenors 1 FENOC Motion for Summary Disposition of Contention 4 (SAMA Analysis Source Term) (July 26, 2012) [hereinafter "FENOC Motion for Summary Disposition"].

2 NRC Staff's Answer to FirstEnergy's Motion for Summary Disposition of Contention 4 (SAMA Analysis Source Terms) (Sept. 14, 2012) [hereinafter "NRC Staff Answer"]; Intervenors' Reply in Opposition to 'FirstEnergy's Motion for Summary Disposition of Contention 4 (SAMA Analysis - Source Terms)' (Sept. 14, 2012) [hereinafter "Intervenors' Reply"].

3 FENOC's Motion to Strike Intervenors' Reply in Opposition to FENOC's Motion for Summary Disposition of Contention 4 (SAMA Analysis - Source Terms) (Sept. 24, 2012) [hereinafter "FENOC's Motion to Strike"]. filed an answer in opposition to the FENOC Motion to Strike on October 4, 2012.

4 This Order addresses FENOC's Motion to Strike. I. PROCEDURAL BACKGROUND This underlying proceeding in this docket concerns FENOC's application to renew its operating license for the Davis-Besse Nuclear Power Station, Unit 1 for an additional twenty years.5 On December 27, 2010, Intervenors petitioned to intervene in this proceeding, setting forth a number of contentions including, Contention 4, challenging FENOC's analysis of severe accident mitigation alternatives or "SAMAs."

6 SAMA analyses identify and assess possible plant changes - such as hardware modifications and improved training - that could cost-effectively reduce the radiological risk of a severe accident.

7 On April 26, 2011, the Board rejected several of the Intervenors' arguments raised in Contention 4 based on the grounds that the arguments (1) fell outside of the scope of the licensing proceeding; (2) failed to raise a material issue; (3) lacked support by alleged facts or expert opinion; or (4) failed to show a genuine dispute.

8 The Board narrowed Contention 4, finding Intervenors' challenges to the SAMA analysis source terms, decontamination costs, and plume dispersion modeling to be admissible elements of the Contention.

9 4 Intervenors' Response in Opposition to FENOC's Motion to Strike Intervenors' Reply in Opposition to FENOC's Motion for Summary Disposition of Contention 4 (SAMA Analysis - Source Terms) (Oct. 4, 2012) [hereinafter "Answer to FENOC's Motion to Strike"].

5 FENOC's License Renewal Application is available on the NRC's public website at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/davis-besse/davis-besse-lra.pdf. 6 See Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Party of Ohio Request for Public Hearing and Petition for Leave to Intervene (Dec. 27, 2010) at 100.

7 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1, 5 (2002).

8 LBP-11-13, 73 NRC 534, 565-77 (2011).

9 Id. at 577-86. On May 6, 2011, FENOC appealed the admission of Contention 4.

10 In an Order issued on March 27, 2012, the Commission reversed the Board's admissibility ruling as to Contention 4, in part, and dismissed two of three parts of the admitted Contention.

11 On July 26, 2012, FENOC filed a motion for summary disposition as to the sole remnant of Contention 4 - Intervenors' source term claims.

12 On September 14, 2012, the NRC Staff filed in support of FENOC's motion for summary disposition and the Intervenors filed a reply in opposition to FENOC's motion for summary disposition.

13 FENOC timely filed the instant Motion to Strike on September 24, 2012, arguing that the Intervenors' "reply in opposition" raised arguments outside the scope of Contention 4.

14 The Intervenors filed an answer opposing the motion to strike on October 4, 2012.

15 II. LEGAL STANDARD A motion to strike may be granted where a pleading or other submission contains information that is "irrelevant," or, in the context of summary disposition, portions of a filing or affidavit contain technical arguments based on questionable competence.

16 A motion to strike is of limited value when it is lodged against a response to a motion for summary disposition. This is because a proponent of a motion for summary disposition bears 10 FENOC's Notice of Appeal of LBP-11-13 (May 6, 2011).

11 CLI-12-08, 75 NRC __, __-__ (slip op. at 17-34) (Mar. 27, 2012).

12 FENOC Motion for Summary Disposition at 20-21.

13 See NRC Staff Answer and Intervenors' Reply.

14 FENOC's Motion to Strike at 1.

15 See Answer to FENOC's Motion to Strike.

16 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-05-20, 62 NRC 187, 228 (2003).

the burden of proof even if the motion for summary disposition is unopposed and no reply is filed.17 III. ANALYSIS AND RULING FENOC argues that Intervenors' Reply and Statement of Material Facts in Opposition to FENOC's Motion for Summary Judgment impermissibly consists of new arguments related to shield building cracking and containment vessel corrosion.

18 FENOC contends that the new arguments presented in Intervenors' Reply and Statement of Material Facts are not within the scope of admitted Contention 4 19 and improperly raise two new arguments: (1) FENOC's SAMA analysis does not take into account the Davis-Besse shield building cracking issue; and (2) FENOC's SAMA analysis does not reference apparent corrosion of the Davis-Besse inner steel containment vessel.

20 FENOC asserts that Intervenors' new arguments improperly attempt to expand the scope of Contention 4 without first seeking leave from the Board to admit a new, or amend an existing, contention; thus, Intervenors' Reply and Statement of Material Facts should be stricken.

21 17 The Appeals Board quoting from Moore's Federal Practice, "Yet the party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden then he is not entitled to judgment. No defense to an insufficient showing is required." Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 754 (1977). The Appeals Board also quoted from the Supreme Court, who in turn was quoting from the Federal Rules Advisory Committee: "the Committee stated that '[w]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented

.'" Id. (emphasis in original).

18 FENOC's Motion to Strike at 3-4.

19 Id. at 4. 20 Id. at 5 (citing Reply to FENOC's Motion for Summary Disposition at 1-2).

21 FENOC's Motion to Strike at 7. Intervenors contend in their Answer to FENOC's Motion to Strike that the arguments raised in their Reply to FENOC's Motion for Summary Disposition are within the scope of Contention 4 because Intervenors' opposition arguments pertain to "scenarios involving a fatally-cracked and compromised shield building and corroded containment shell" - elements not addressed in FENOC's SAMA analysis.

22 Thus, Intervenors assert that their opposition arguments are relevant to the source terms used in FENOC's SAMA analysis because the source terms do not account for a cracked shield building or a corroded steel containment.

23 In addition, Intervenors acknowledge that they did not formally file a motion to amend Contention 4 to include their cracking and steel containment objections, but contend that FENOC should not have been surprised by Intervenors' Reply to FENOC's Motion for Summary Disposition because Intervenors commented that the structural problems in the shield building and steel containment shell would affect FENOC's SAMA analysis in their initial and supplemental filings related to Contention 5 (the proposed shield building cracking Contention currently pending before this Board).

24 The Board finds that Intervenors' Reply and Statement of Material Facts are outside the scope of Contention 4 and should be stricken in their entirety. Intervenors' Reply and Statement of Material Facts are not only irrelevant to FENOC's Motion for Summary Disposition of Contention 4, but are entirely unrelated to and beyond the scope of Contention 4 as admitted by the Board and limited by the Commission. NRC regulations "do not allow distinctly new complaints to be added at will as litigation progresses, stretching the scope of admitted 22 Answer to FENOC's Motion to Strike at 5.

23 See id. at 6. 24 Id. at 7 (citing Intervenors' Motion for Admission of Contention No. 5 on Shield Building Cracking (January 10, 2012) at 26). contentions beyond their reasonably inferred bounds."

25 Intervenors contend that their cracking and steel containment objections fall within the "reasonably inferred bounds" of Contention 4.

26 We disagree. Contention 4, as limited by this Board and the Commission, challenges only the MAAP code generated source terms used by FENOC in performing its SAMA analysis. While Intervenors' concerns regarding the Davis-Besse containment may well have some relation to FENOC's SAMA analysis, the scope of Contention 4 does not encompass any and all arguments Intervenors have relating to SAMAs. Cont ention 4 is a very narrow contention, and it is beyond reason to suggest that Intervenors' arguments regarding the Davis-Besse shield building and containment are within its scope.

Intervenors could have presented these ar guments in a motion to amend Contention 4 or a motion to admit a new contention, but they did not.

27 Thus, the Board grants FENOC's Motion and strikes Intervenors' Reply to FENOC's Motion for Summary Disposition. IV. CONCLUSION For the foregoing reasons, FENOC's September 24, 2012 Motion to Strike Intervenors' Reply in Opposition to FENOC's Motion for Summary Disposition of Contention 4 is GRANTED; Intervenors' September 14, 2012 Reply in Opposition to FENOC's Motion for Summary Disposition of Contention 4 is stricken in its entirety. We note, however, that FENOC continues to bear the burden of demonstrating that summary disposition should be granted, 28 and we will 25 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 (2010).

26 Answer to FENOC's Motion to Strike at 4.

27 See 10 C.F.R. § 2.309(f)(2).

28 See Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 754 (1977) ("[T]he party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden then he is not entitled to judgment. No defense to an insufficient showing is required.") (quoting 6 James Moore, Moore's Federal Practice ¶ 56.22 (2d ed. 1966)). proceed with oral argument on the motion for summary disposition on November 5 and November 6 as planned. It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

________________________

William J. Froehlich, Chairman ADMINISTRATIVE JUDGE

Rockville, Maryland October 11, 2012

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 Motion to Strike) have been served upon the following persons by Electronic Information Exchange.

Office of Commission Appellate Adjudication Mail Stop O-7H4M U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

E-mail: ocaamail@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission.

Mail Stop T-3F23 Washington, DC 20555-0001 William J. Froehlich, Chair

Administrative Judge

E-mail: william.froehlich@nrc.gov

Nicholas G. Trikouros Administrative Judge E-mail: nicholas.trikouros@nrc.gov

William E. Kastenberg

Administrative Judge E-mail: wek1@nrc.gov

Matthew Flyntz, Law Clerk

E-mail: matthew.flyntz@nrc.gov Onika Williams, Law Clerk

Email: onika.williams@nrc.gov Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001

Hearing Docket

E-mail: hearingdocket@nrc.gov Office of the General Counsel U.S. Nuclear Regulatory Commission

Mail Stop O-15D21 Washington, DC 20555-0001 Edward L. Williamson, Esq.

E-mail: edward.williamson@nrc.gov Lloyd B. Subin, Esq.

E-mail: lloyd.subin@nrc.gov Brian Harris, Esq.

E-mail: brian.harris@nrc.gov Catherine Kanatas, Esq.

E-mail: catherine.kanatas@nrc.gov Brian P. Newell, Paralegal

E-mail: brian.newell@nrc.gov

OGC Mail Center :

OGCMailCenter@nrc.gov FirstEnergy Service Company.

Mailstop: A-GO-15

76 South Main Street Akron, OH 44308 David W. Jenkins, Esq.

E-mail : djenkins@firstenergycorp.com

Davis-Besse Nuclear Power Station, Docket No. 50-346-LR ORDER (Granting Motion to Strike) 2 Morgan, Lewis & Bockius 1111 Pennsylvania Avenue, NW Washington, D.C. 20004 Stephen Burdick, Esq.

E-mail: sburdick@morganlewis.com Kathryn M. Sutton, Esq.

E-mail: ksutton@morganlewis.com Martin O'Neill, Esq.

E-mail: martin.oneill@morganlewis.com Timothy Matthews, Esq.

E-mail: tmatthews@morganlewis.com Jane Diecker, Esq.

E-mail: jdiecker@morganlewis.com Mary Freeze, Legal Secretary

E-mail: mfreeze@morganlewis.com Citizens Environmental Alliance (CEA) of Southwestern Ontario

1950 Ottawa Street

Windsor, Ontario Canada N8Y 197

Green Party of Ohio 2626 Robinwood Avenue Toledo, Ohio 43610

Don't Waste Michigan 811 Harrison Street Monroe, Michigan 48161

Michael Keegan

E-mail: mkeeganj@comcast.net Terry J. Lodge, Counsel for CEA, Don't Waste Michigan, and Green Party of Ohio

316 N. Michigan Street, Suite 520

Toledo, OH 43604-5627

E-mail: tjlodge50@yahoo.com Beyond Nuclear 6930 Carroll Avenue Suite 400

Takoma Park, Md. 20912 Kevin Kamps E-mail : kevin@beyondnuclear.org Paul Gunter

E-mail : paul@beyondnuclear.org

[Original signed by Herald M. Speiser ] Office of the Secretary of the Commission

Dated at Rockville, Maryland

this 11 th day of October 2012