ML12268A376

Fenoc'S Motion to Strike Intervenors' Reply in Opposition to Firstenergy'S Motion for Summary Disposition of Contention 4 (SAMA Analysis - Source Terms).

ML12268A376
Person / Time
Site:	Davis Besse
Issue date:	09/24/2012
From:	Jenkins D, Matthews T, O'Neill M, Sutton K First Energy Services, FirstEnergy Nuclear Operating Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23503, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML12268A376 (10)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) September 24, 2012

)

FENOCS MOTION TO STRIKE INTERVENORS REPLY IN OPPOSITION TO FIRSTENERGYS MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION 4 (SAMA ANALYSIS - SOURCE TERMS)

I. INTRODUCTION In accordance with 10 C.F.R. §§ 2.323(a) and 2.319, FirstEnergy Nuclear Operating Company (FENOC) files this Motion to Strike Intervenors Reply in Opposition to FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis - Source Terms) (Answer) and the accompanying Intervenors Statement of Material Facts in Opposition to FirstEnergys Motion for Summary Disposition of Contention 4 (Statement of Material Facts), both dated September 14, 2012.1 As discussed below, the Answer and the Statement of Material Facts impermissibly include only new arguments and information far afield from the scope of Contention 4. The Commission has stated that it does not allow distinctly new complaints to be added at will as litigation progresses, stretching the scope of 1

Counsel for FENOC certifies under 10 C.F.R. § 2.323(b) and Section G.1 of the Boards June 15, 2011 Initial Scheduling Order that it has made a sincere effort to contact other parties in the proceeding and resolve the issues raised in this Motion, and that these efforts to resolve the issues have been unsuccessful. Counsel for Intervenors stated that Intervenors oppose the Motion. Counsel for the NRC Staff stated that the Staff would not oppose the Motion for those issues that are outside the scope of the admitted Contention 4 and/or the bases of the Motion for Summary Disposition.

admitted contentions beyond their reasonably inferred bounds.2 Accordingly, FENOC requests that the Board strike Intervenors Answer and Statement of Material Facts in their entirety.3 II. BACKGROUND On December 27, 2010, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (Intervenors) jointly filed a petition to intervene in this proceeding, submitting four environmental contentions related to the National Environmental Policy Act (NEPA) analysis in the Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse) Environmental Report (ER).4 The first three contentions concerned the adequacy of FENOCs analysis of energy alternatives while the fourth contention challenged various aspects of FENOCs severe accident mitigation alternatives (SAMA) analysis.5 On April 26, 2011, the Board issued a Memorandum and Order (LBP 13), finding that all four petitioners had demonstrated standing, and admitting an energy 2

Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 (2010).

3 A motion to strike is the appropriate vehicle for this request that the Board decline to consider Intervenors Answer because the information is irrelevant to the admitted contention. See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-05-20, 62 NRC 187, 228 (2005) (concluding that a motion to strike is an appropriate mechanism for seeking the removal of information from a pleading or other submission that is irrelevant) (citing Power Authority of the State of New York (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3), CLI-01-14, 53 NRC 488, 514 (2001)); AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), Memorandum and Order (Denying AmerGens Motion for Summary Disposition), slip op. at 5-6 (June 19, 2007) (unpublished) (granting in part a motion to strike portions of intervenors answer opposing summary disposition). But see Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-08-3, 67 NRC 85, 97 (2008) (stating that in the context of a summary disposition motion, arguments that portions of an answer are outside the scope of an admitted contention should be framed in reply pleadings). If the Board disagrees with FENOCs approach, FENOC requests that the Board treat this motion as a motion for leave to reply to Intervenors Answer and a reply to the Answer for the narrow purpose of explaining that Intervenors Answer raises issues beyond the scope of admitted Contention 4. 10 C.F.R. § 2.323(c) allows the presiding officer to grant leave to reply in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply. Here, FENOC could not reasonably have anticipated the arguments in Intervenors Answer because, as further discussed below, they do not address the arguments in FENOCs Motion for Summary Disposition and are outside the scope of Contention 4 as admitted. Accordingly, there are compelling circumstances justifying a narrow reply under 10 C.F.R. § 2.323(c).

4 Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio Request for Public Hearing and Petition for Leave to Intervene (Dec. 27, 2010)

(Petition or Pet.) (Errata filed Jan. 5, 2011).

5 See id. at 99-151.

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alternatives contention and the SAMA contention (as limited to three specific issues pled by Intervenors and designated as Contention 4).6 FENOC appealed LBP-11-13 pursuant to 10 C.F.R. § 2.311(d)(1), contending that the contentions did not meet the admissibility requirements of 10 C.F.R. § 2.309(f)(1).7 In a Memorandum and Order (CLI-12-08) issued on March 27, 2012, the Commission reversed the Boards admissibility rulings in part, dismissing Intervenors consolidated energy alternatives contention in its entirety, and dismissing two of three parts of Contention 4.8 The remaining portion of Contention 4 relates solely to FENOCs use of the Modular Accident Analysis Program (MAAP) computer code to determine plant-specific source terms and release fractions for use in its SAMA analysis.9 On July 16, 2012, FENOC submitted an amendment to its ER incorporating revisions to the Davis-Besse SAMA analysis that FENOC identified as necessary earlier this year.10 On the basis of the revised SAMA analysis, FENOC timely filed a Motion for Summary Disposition of Contention 4.11 On September 14, 2012, the Staff filed an Answer in support of FENOCs 6

FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station), LBP-11-13, 73 NRC __, slip op. at 64-65 (Apr. 26, 2011).

7 See FirstEnergys Notice of Appeal of LBP-11-13 (May 6, 2011); FirstEnergys Brief in Support of the Appeal of LBP-11-13 (May 6, 2011).

8 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station), CLI-12-08, 75 NRC __, slip op. at 5-34 (Mar. 27, 2012).

9 Id. at 20-21.

10 See Letter from John C. Dominy, Director, Site Maintenance, FirstEnergy, to Document Control Desk, NRC, Correction of Errors in the Davis-Besse Nuclear Power Station, Unit No. 1, License Renewal Application (TAC No. ME4613) Environmental Report Severe Accident Mitigation Alternatives Analysis, and License Renewal Application Amendment No. 29 (July 16, 2012) (submitted as Attachment 5 to FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis Source Terms) (July 26, 2012)

(FENOCs Motion for Summary Disposition)).

11 See FENOCs Motion for Summary Disposition at 1-2.

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Motion for Summary Disposition,12 and Intervenors filed their Answer and Statement of Material Facts in opposition to FENOCs Motion for Summary Disposition.

III. THE BOARD SHOULD STRIKE INTERVENORS ANSWER AND STATEMENT OF MATERIAL FACTS BECAUSE THEY IMPERMISSIBLY RAISE ARGUMENTS OUTSIDE THE SCOPE OF THE ADMITTED CONTENTION Intervenors Answer and Statement of Material Facts consist solely of new arguments related to Shield Building cracking and containment vessel corrosion. As such, the arguments and supporting information in the Answer and Statement of Material Facts on those topics fall well outside the scope of Contention 4 as admitted by the Board. Therefore, Intervenors Answer and Statement of Material Facts should be stricken in their entirety.13 Cracking and corrosion were not within the scope of the original contention. At the time Contention 4 was pled and admitted, the Shield Building laminar cracking phenomenon had not yet been discovered. Intervenors became aware of the Shield Building cracking many months ago. Intervenors have proposed Contention 5and now five supplements to the proposed contentionall related to this phenomena. In no instance have Intervenors sought to modify or supplement Contention 4. Specifically, Contention 4 asserts that FENOCs analysis has minimized the potential amount of radioactive material released in a severe accident by using MAAP-generated source terms that are smaller for key radionuclides than the release fractions specified in NRC guidance.14 Intervenors pled three principal bases in support of the currently admitted portion of Contention 4:

12 NRC Staffs Answer to FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis Source Terms) (Sept. 14, 2012).

13 A licensing board has the authority to strike improper arguments. 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). The Board already has stricken information and arguments provided by Intervenors in this proceeding. See Memorandum and Order (Granting Motion to Strike and Requiring Re-filing of Reply)

(Feb. 18, 2011) (unpublished).

14 Pet. at 108.

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1. The MAAP code has not been validated by the NRC.15

2. The radionuclide release fractions generated by MAAP are consistently smaller for key radionuclides than the release fractions specified in NUREG-146516 and result in anomalously low accident consequences.17

3. The MAAP code generates lower release fractions than those derived and used by NRC in other severe accident studies.18 These three bases define the scope of admitted Contention 4.19 FENOCs Motion for Summary Disposition addresses each of these bases and demonstrates that no genuine issue of material fact exists regarding FENOCs use of the MAAP code to develop source term information for use in the Davis-Besse SAMA analysis.20 Instead of responding to the arguments in FENOCs Motion for Summary Disposition, Intervenors Answer and Statement of Material Facts improperly raise two new arguments and supporting information outside the scope of admitted Contention 4. Specifically, Intervenors for the first time challenge:

(1) FENOCs SAMA analysis does not take into account the Davis-Besse Shield Building cracking phenomena; and (2) FENOCs SAMA analysis does not reference apparent corrosion of the Davis-Besse inner steel containment vessel.21 15 Id.; Davis-Besse, CLI-12-08, slip op. at 20.

16 Pet. at 108, 112, 114; Davis-Besse, CLI-12-08, slip op. at 20.

17 Pet. at 112, 114; Davis-Besse, CLI-12-08, slip op. at 20.

18 Pet. at 113; Davis-Besse, CLI-12-08, slip op. at 20.

19 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-15, 71 NRC 479, 482 (2010)

([U]nder longstanding NRC practice, if a question arises over the scope of an admitted contention, the Board or Commission will refer back to the bases set forth in support of the contention.); Pilgrim, CLI-10-11, 71 NRC at 309 (2010) (The reach of a contention necessarily hinges upon its terms coupled with its stated bases.) (emphasis in original) (citing Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-899, 28 NRC 93, 97 (1988), affd sub nom. Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir.), cert denied, 502 U.S. 899 (1991)).

20 See FENOCs Motion for Summary Disposition at 15-35.

21 See Answer at 1-2.

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Not only do Intervenors fail to contradict the arguments in FENOCs Motion for Summary Disposition, Intervenors appear to agree with FENOCs arguments.22 In their Answer and Statement of Material Facts, Intervenors completely abandon their prior arguments related to Contention 4 in lieu of new arguments related to Shield Building cracking and containment vessel corrosion, concluding that they have presented the following genuine issue of material fact:

[T]he SAMA for Davis-Besse may not be considered complete or must be supplemented and recalculated to recognize the fact of proven, and suspected, degradation of the shield building concrete, and corrosion of the containment vessel which shelters the reactor.23 Indeed, Intervenors entire Answer and Statement of Material Facts either directly address the two new arguments regarding Shield Building cracking and steel containment vessel corrosion, or attempt to support these two new arguments.

Consistent with NRC case law, information provided in support of an intervenors response to a dispositive motion may not be considered if the information is outside the scope of the admitted contention.24 The Commission has stated that it does not allow distinctly new complaints to be added at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds.25 22 See id. at 14 (The Motion for Summary Disposition consists largely of hollow platitudes about SAMA contents and source term usages with which Intervenors dont much necessarily disagree . . . .).

23 Id. at 24.

24 See, e.g., Pilgrim, CLI-10-11, 71 NRC at 309; see also Vogtle, LBP-08-3, 67 NRC at 97.

25 Pilgrim, CLI-10-11, 71 NRC at 309. Additionally, raising new arguments in Intervenors Answer and Statement of Material Facts is akin to including information in a reply brief that was not raised in an initial pleading, which the Commission has ruled is impermissible. Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (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.); La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (upholding the Boards refusal to consider arguments presented for the first time in reply briefs, because the reply briefs constituted a late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments).

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Recently, in the Pilgrim license renewal proceeding, for example, the applicant moved to strike part of the intervenors answer to the applicants motion for summary disposition of an admitted SAMA contention, because it raised new issues related to off-site economic costs due to health effects that were beyond the scope of the admitted contention.26 The licensing board agreed, concluding that this information fell outside the scope of the admitted contention and was simply not reasonably inferrable as part of earlier arguments.27 On appeal, the Commission concluded that the Board properly rejected these new arguments because they are not fairly encompassed by the admitted contention.28 The Commission explained that it has long stressed that NRC adjudicatory proceedings would prove endless if parties were free . . .

to introduce entirely new claims which they either originally opted not to make or which simply did not occur to them at the outset.29 Intervenors attempt here to raise new arguments regarding Shield Building cracking and steel containment vessel corrosion lands far outside of the scope of admitted Contention 4, and similarly should be rejected. Intervenors 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, and to circumvent entirely the applicable timeliness and contention admissibility requirements.30 Thus, Intervenors Answer and Statement of Material Facts should be stricken.31 26 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC 131, 145-48 (2007), remanded on other grounds, Pilgrim, CLI-10-11, 71 NRC at 298, 301-08.

27 See Pilgrim, LBP-07-13, 66 NRC at 148.

28 Pilgrim, CLI-10-11, 71 NRC at 310; see Pilgrim, CLI-10-15, 71 NRC at 481, 483.

29 Pilgrim, CLI-10-11, 71 NRC at 311.

30 If Intervenors wanted to file a new contention or amend Contention 4, then they should have done so timely and separate from their Answer to FENOCs Motion for Summary Disposition of Contention 4. In fact, Intervenors already have raised issues related to the Shield Building cracking and FENOCs SAMA analysis as part of the ongoing litigation of proposed Contention 5, entirely separate from Contention 4. See, e.g.,

Intervenors Fifth Motion to Amend and/or Supplement Proposed Contention No. 5 (Shield Building Cracking), at 27, 32 (Aug. 16, 2012). Additionally, a new contention or an amendment to another contention based on the information raised in Intervenors Answer would be untimely at this point, because the 7

IV. CONCLUSION For the foregoing reasons, the Board should strike Intervenors Answer and Statement of Material Facts in their entirety.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Signed (electronically) by Timothy P. Matthews Timothy P. Matthews Kathryn M. Sutton Martin J. ONeill Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5527 E-mail: tmatthews@morganlewis.com David W. Jenkins Senior Corporate Counsel FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FENOC Dated in Washington, D.C.

this 24th day of September 2012 underlying information has been available more than 60 days. See Initial Scheduling Order, at 12 (June 15, 2011).

31 The new arguments and information should be stricken, as discussed in this Motion. However, if the Board disagrees, then FENOC requests that the Board grant leave for FENOC to respond to the new arguments and information raised by Intervenors for the first time in their Answer.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) September 24, 2012

)

CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of FENOCs Motion to Strike Intervenors Reply in Opposition to FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis - Source Terms) was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.

Administrative Judge Administrative Judge William J. Froehlich, Chair Nicholas G. Trikouros Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: wjf1@nrc.gov E-mail: nicholas.trikouros@nrc.gov Administrative Judge Office of the General Counsel Dr. William E. Kastenberg U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Brian G. Harris E-mail: wek1@nrc.gov Megan Wright Catherine E. Kanatas E-mail: Brian.Harris@nrc.gov; Office of the Secretary Megan.Wright@nrc.gov; U.S. Nuclear Regulatory Commission Catherine.Kanatas@nrc.gov Rulemakings and Adjudications Staff Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov

Office of Commission Appellate Adjudication Michael Keegan U.S. Nuclear Regulatory Commission Dont Waste Michigan Mail Stop: O-16C1 811 Harrison Street Washington, DC 20555-0001 Monroe, MI 48161 E-mail: ocaamail@nrc.gov E-mail: mkeeganj@comcast.net Kevin Kamps Terry J. Lodge Paul Gunter 316 N. Michigan St., Ste. 520 Beyond Nuclear Toledo, OH 43604 6930 Carroll Avenue, Suite 400 E-mail: tjlodge50@yahoo.com Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org; paul@beyondnuclear.org Signed (electronically) by Jane T. Accomando Jane T. Accomando Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5815 E-mail: jaccomando@morganlewis.com DB1/ 71134244.3