ML12017A258

Exelon'S Motion to Strike Portions of Nrdc'S Reply

ML12017A258
Person / Time
Site:	Limerick
Issue date:	01/17/2012
From:	Polonsky A, Sutton K Exelon Generation Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML12017A256	List: ML12017A257 ML12017A258
References
RAS 21767, 50-352-LR, 50-353-LR, ASLBP 12-916-04-LR-BD01
Download: ML12017A258 (13)

Text

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

)

In the Matter of )

) Docket Nos. 50-352-LR EXELON GENERATION COMPANY LLC ) 50-353-LR

)

(Limerick Generating Station, Units 1 and 2) ) January 17, 2012

)

EXELONS MOTION TO STRIKE PORTIONS OF NRDCS REPLY I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(a), Exelon Generation Company LLC (Exelon) moves to strike portions of Natural Resources Defense Council (NRDC) Combined Reply to Exelon and NRC Staff Answers to Petition to Intervene (Combined Reply), dated January 6, 2012. As discussed below, the Combined Reply impermissibly includes entirely new arguments, references, and factual claims without satisfying the standards governing late-filed contentions set forth in 10 C.F.R. § 2.309(c) and (f)(2). Accordingly, this new information should be stricken, as identified and discussed below.

II. BACKGROUND On November 22, 2011, NRDC filed its Petition to Intervene and Notice of Intention to Participate (Petition). In response, Exelon and the NRC Staff filed timely, separate answers to the Petition on December 20, 2011, and December 21, 2011, respectively. 1 On January 6, 1

Exelons Answer Opposing NRDCs Petition to Intervene (Dec. 20, 2011); NRC Staffs Answer to Natural Resource [sic] Defense Council Petition to Intervene and Notice of Intention to Participate (Dec. 21, 2011).

2012, NRDC filed its Combined Reply to Exelons Answer and the NRC Staffs Answer. 2 In the Combined Reply, NRDC does not limit itself to defending the adequacy of its contentions as pled in the Petition. Rather, as discussed in Section IV below, NRDC drifts far afield and portions of its Combined Reply contain new arguments, references, and factual assertions not contained in its Petition.3 III. LEGAL STANDARDS 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. 4 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. R eplies 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). 5 2

By Order of the U.S. Nuclear Regulatory Commission (Commission) dated December 22, 2011, the time for NRDC to reply to the Answers filed by Exelon and NRC Staff was extended to January 6, 2012.

3 In a Motion to Strike, Exelon cannot address whether the new arguments, references, and factual assertions identified herein provide an adequate basis for an admissible contention. Therefore, if the Board decides to consider the new arguments, references, and factual assertions contained in the Reply, then Exelon requests an opportunity to respond to the admissibility of the new information in writing and/or during any oral argument scheduled by the Board in this proceeding.

4 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-11-14, slip op. at 9, 11 (Dec. 22, 2011) (granting in part a motion to strike on the ground that new arguments not raised in the petition for interlocutory review are outside the appropriate scope of a reply); 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, 351-53, affd CLI-06-17, 63 NRC 727 (2006) (refusing to consider references to various documents identified in a petitioners reply that were not included in the original petition).

5 Palisades, CLI-06-17, 63 NRC at 732 (citation omitted).

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The Commissions prohibition on new arguments in replies is rooted in the Commissions interest in conducting adjudicatory hearings efficiently, and on basic 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. 6 It has further stated that NRC contention admissibility and timeliness requirements demand a level of discipline and preparedness on t he part of petitioners.

But there would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements every time they realize[d] . . . t hat maybe there was something after all to a challenge it e ither originally opted not to make or which simply did not occur to it at the outset. 7 Accordingly, a petitioner must include all of its arguments and claims in its initial filing. Allowing a party to amend or supplement its pleadings in reply to the applicants or NRC Staffs answers would run afoul of the Commissions clear directives:

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. 8 Moreover, because NRC regulations do not allow the applicant to respond to a petitioners reply, principles of fairness mandate that a petitioner restrict its reply brief to addressing issues raised in the applicants or NRC Staffs answer. 9 Allowing new claims in a 6

La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (LES), recons. denied, CLI-04-35, 60 NRC 619, 622-23 (2004), .

7 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 17, 58 NRC 419, 428-29 (2003), quoted approvingly in LES, CLI-04-25, 60 NRC at 224-25.

8 LES, CLI-04-35, 60 NRC at 622-23 (internal quotes and citation omitted).

9 See 10 C.F.R. § 2.309(h)(3).

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reply not only would defeat the contention-filing deadline, but would unfairly deprive other participants an opportunity to rebut the new claims. 10 Thus, [i]n Commission practice, and in litigation practice generally, new arguments may not be raised for the first time in a reply brief. 11 Accordingly, [a]ny reply should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC staff answer. 12 Any arguments that improperly expand upon that should be stricken. 13 These principles have recently been applied in the Davis-Besse license renewal proceeding. In that proceeding, the petitioners submitted a reply that contained new arguments and factual allegations (including a new attachment) in an attempt to rehabilitate their proposed contention challenging the applicants analysis of severe accident mitigation alternatives (SAMAs). 14 The licensing board granted the applicants motion to strike that new information, ruling that reply pleadings cannot be used to provide new information to expand the scope of and cure defects in proposed contentions. 15 IV. BASES FOR MOTION TO STRIKE As detailed in the following table, NRDCs Combined Reply contains numerous new arguments, references, and factual claims that should be stricken. The relevant pages of the 10 Palisades, CLI-06-17, 63 NRC at 732.

11 LES, CLI-04-25, 60 NRC at 225.

12 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004).

13 A licensing board has the authority to strike individual arguments and exhibits. 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); see also Tenn. Valley Auth. (Bellefonte Nuclear Power Plant Units 3 & 4), LBP 16, 68 NRC 361, 399-400, 407, 429 (2008) (granting the applicants motion to strike portions of petitioners reply that contained new arguments and factual allegations (including a new affidavit and reports) in an attempt to cure deficiencies in the proposed contentions in the petition to intervene).

14 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), Memorandum and Order (Granting Motion to Strike and Requiring Re-Filing of Reply) at 3-4 (Feb. 18, 2011) (unpublished).

15 Id.

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Combined Reply with the specific text that Exelon seeks to strike are identified using the Cross Out Text function in Adobe Acrobat, and are attached to this Motion as Exhibit 1.

Location of New Information Description of New Information in NRDCs Combined Reply Contention 1-E These portions of the Combined Reply raise a

• The text on page 19 beginning with By new legal argument that was not identified in not notifying the public, through the the Petition. The Petition (at 2-3, 31) argued parenthetical quote ending with that the 1989 SAMDA in the Limerick FES provide interested persons an Supplement could not be relied upon because opportunity to comment. (Citations it was not adjudicated, but NRDC did not omitted)) on page 20. provide any legal citation for this argument.

In the Combined Reply, NRDC seeks to bolster Contention 1-E by, for the first time, citing the Administrative Procedures Act (APA) (5 U.S.C. §§ 553(b), 554(b) and 554(c)(2)) as requiring adjudication of the adequacy of the 1989 SAMDA to trigger the exception for Limerick under 10 C.F.R. § 51.53(c)(3)(ii)(L). Neither the Petition nor supporting affidavits mentioned the APA or 5 U.S.C. § 553 or 554.

Contention 1-E These portions of the Combined Reply

• The text on page 23 beginning with provide new information and arguments that But that argument misses and ending were not identified in the Petition. Contention with understating the impact of a 1-E raised arguments regarding the purported severe accident. Id. inadequacy of Exelons population estimates in the 10-mile and 50-mile radius surrounding Limerick, but did not assert that collective dose would be more significant within 10 miles of a nuclear reactor site than at other locations. NRDC cites to NRDC E Declaration at 22-30 for support, but those paragraphs of the Declaration do not provide support that the 10-mile radius is the most vulnerable zone.

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Location of New Information Description of New Information in NRDCs Combined Reply Contention 3-E This sentence of the Combined Reply provides

• The text on page 37 beginning with a new argument and reference that was not The applicable standard for application identified in the Petition. Contention 3-E in of the, including the quotation of the Petition (at 21-22) only alleged a 10 C.F.R. § 51.53(c)(3)(iii), and ending deficiency to meet NEI-05-01 Rev. A; it did with an adequate analysis of severe not discuss or reference 10 C.F.R.

accident mitigation alternatives. § 51.53(c)(3)(iii) as the legal standard for applying the Section 51.53(c)(3)(ii)(L) exception to Limerick. The supporting Declaration also fails to mention Section 51.53(c)(3)(iii) to support Contention 3-E.

Discussion of Section 51.53(c)(3)(iii) was limited to Contention 2-E in the Petition.

Contention 4-E These portions of the Combined Reply

• References to Section 8.2 of the GEIS 16 provide new arguments and references to the in the following sentences: GEIS to support Contention 4-E. When o The last full sentence on page 53 referring to the GEIS, the Petition (at 24) and beginning with The GEIS outlines the Paine Declaration (for example, paragraph the necessary scope and ending on 4) limit their arguments to the GEIS guidance page 54 with in a manner that of limiting an alternative to analysis of supports NRDCs contention. single, discrete electric generation sources.

o On page 55, the phrase but also They cite to no other portions of the GEIS to fails to consider . . . as called for in support their arguments.

the GEIS. GEIS at 8-2.

o The second to last full sentence on Contention 4-E, however, now references page 56 beginning with Moreover, other portions of the GEIS. This includes the in the case of no action and ending guidance that an alternative be technically with the cite GEIS at 8-2 (emphasis feasible and commercially viable (GEIS, added). § 8.1), 17 discussion of the No-Action o On page 67, the last full paragraph, Alternative (GEIS, § 8.2), preferred sets of beginning with Finally and ending alternatives (GEIS, § 8.3) and conservation with several of them are not. technologies (GEIS, § 8.3.14). Contention

• References to Section 8.3 & 8.3.14 of 4-E, as initially proffered, nowhere mentions the GEIS: these sections of the GEIS or otherwise quotes o On page 57, beginning with In fact, or references those sections of the GEIS on the GEIS recognizes and ending which NRDC now belatedly relies.

16 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1 (May 1996), available at ADAMS Accession No. ML040690705.

17 Although the NRC Staff raises this portion of the GEIS in its Answer (NRC Staff Answer at 42, 44-45, 50),

any NRDC argument that Exelons ER did not conform to this guidance could haveand should havebeen raised in its Petition, because NRC regulations do not authorize Exelon to file a Sur-Reply. See 10 C.F.R. § 2.323.

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Location of New Information Description of New Information in NRDCs Combined Reply with municipal solid waste combination would be the preferred Furthermore, the Petition unambiguously set of alternatives to replace a single characterized Contention 4-E as a contention nuclear plant. GEIS at 8-16; and of omission (Petition at 31), and now NRDC the third and fourth full sentences on contends for the first time that the ERs page 66 that discuss and contain existing discussion of reasonable alternatives references to Section 8.3 of the and demand-side management (DSM)

GEIS beginning with However, as contravenes the findings of the newly-cited already noted and ending with and provisions of the GEIS.

commercially viable..

o On the bottom of page 69, references to and discussion of Section 8.3.14 of the GEIS, beginning with: But this contravenes the findings of the GEIS ending with . . . nuclear plant(GEIS at 8.3.1.4).; and the last full sentence on page 71 beginning with The GEIS assumes and ending with . . . nuclear plant.

GEIS at 8.3.14..

• General, new references to the GEIS:

o The phrase which is governed by other GEIS determinations on the top of page 57.

o On page 70, the phrase and cited to portions of the GEIS that Exelon failed to follow, and the last full sentence beginning with But, contrary to NRC Staffs and ending with No Action Alternative..

Contention 4-E These portions of the Combined Reply

• On page 55, the first full sentence provide new arguments and information that beginning with Items 1, 2, and 3 and were not identified in the Petition. NRDC ending with as described in the GEIS; asserts for the first time in the Combined and the phrase but also fails to consider Reply that the ER omitted discussion of a combination of these different combinations of the PJM energy portfolio and outcomes as called for in the GEIS. other resources, and provides new facts as to GEIS at 8-2, which discuss what Exelon should have considered in its ER.

combinations of resources. This is the first time NRDC has raised the

• The second to last full sentence on page purported missing discussion of combinations 56 beginning with Moreover, in the (other than a single ambiguous reference in the case of no action and ending with the Paine Declaration to combined heat and 7

Location of New Information Description of New Information in NRDCs Combined Reply cite GEIS at 8-2 (emphasis added); power), including DSM combined with and the sentence on page 57 beginning conventional nonrenewable technologies. And with The GEIS goes on to postulate this is the first time that NRDC argued facts and ending with the cite GEIS at 8-16, related to other factors that Exelon should which discuss combinations of have considered, such as evolution of gas resources under the No-Action prices.

alternative.

• The phrases combinations of and with conventional nonrenewable technologies at the bottom of page 57.

• The text on page 62 beginning (a) to comply with existing PJM-area state renewable mandates and ending with the word technologies on the top of page 63.

Contention 4-E These portions of the Combined Reply

• The phrase decentralized and in the provide new arguments and information that second full sentence on page 56; and the were not identified in the Petition. Instead of phrase massive but wildly unrealistic confronting directly the substance of the ER centralized on page 57. discussion on renewable energy alternatives

• All but the first paragraph of Section and DSM, NRDCs general approach in the III.B.4 of the Combined Reply, Petition was to insist that the ER omitted these beginning on page 58, challenging the subjects. Now that the NRDC has realized ERs discussion of and conclusions that these alternatives were actually cross-regarding reasonable alternatives, referenced in the discussion of the No-Action including solar photovoltaic generation. Alternative, it contends that the existing

• The phrase on the top of page 61: nor discussion of the purported missing do they plausibly represent the way in information is not adequate, in an attempt to which these resources will be deployed rehabilitate its deficient contention of and integrated in the future if omission.

relicensing is denied.

• The paragraph beginning As noted In addition, the new claims in the Combined above on the bottom of page 61 Reply relating to decentralized generation, through the sentence ending to assume solar photovoltaic energy, wind energy, a portion of the system load now served battery storage systems, natural gas-fired by LGS on the middle of page 62, generation and Canadian hydropower imports discussing solar photovoltaic generation impermissibly expand Contention 4-E to the and battery storage systems. point that it barely resembles the original

• The phrase either alone or in contention contained in the Petition.

combination with distributed renewable generation or other electricity resources, such as natural gas-fired generation or Canadian hydropower imports on the 8

Location of New Information Description of New Information in NRDCs Combined Reply bottom of page 69.

Contention 4-E These portions of the Combined Reply

• The first full paragraph on page 56, provide new arguments and information that beginning with While employing and were not identified in the Petition. Contention ending with playing a larger role in the 4-E as submitted in the Petition does not future. challenge any aspect of the ERs consideration

• The first full paragraph on page 61 of reasonable alternatives, including the use of beginning with In the introduction to hypothetical scenarios.

its alternatives analysis and ending with would do so. ER at p. 7-10.; and the second full sentence on page 65 beginning with On the contrary and ending with not feasible and indeed, speculative, which discuss the ERs use of hypothetical scenarios in its alternatives analysis.

Contention 4-E This portion of the Combined Reply provides

• On page 63, the text beginning thereby a new argument and legal reference that was providing a bona fide basis through the not identified in the Petition. Contention 4-E end of the paragraph ending minimize in the Petition did not discuss or reference environmental harm. 10 C.F.R. § 51.103(a)(4) as a legal standard for analysis of the No-Action Alternative.

The Licensing Board should strike these new arguments, references, and factual claims that NRDC impermissibly raises for the first time in the Combined Reply. These portions of the Combined Reply fail to focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it. 18 Instead, these portions of the Combined Reply impermissibly attempt to expand the scope of Contentions 1-E, 3-E and 4-E and attempt to provide new bases and supporting material for the contentions, without addressing the criteria for late-filed or amended contentions in 10 C.F.R. § 2.309(c) and (f)(2). NRDC cannot now try to remedy the defects in its original contentions by providing additional information that is not narrowly focused on the legal or logical arguments presented in the Exelon or NRC Staff 18 Palisades, CLI-06-17, 63 NRC at 732.

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answer. 19 Instead, NRDC provides new information in its Combined Reply, to which Exelon and the NRC Staff are not allowed to respond. Accordingly, the new arguments, references, and factual claims identified above should be stricken.

V. CONCLUSION For the foregoing reasons, the Board should strike the new arguments, references, and factual claims impermissibly provided in NRDCs Combined Reply to Exelons and NRC Staffs Answers to its Petition.

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

Signed (electronically) by Alex S. Polonsky 20 Alex S. Polonsky Kathryn M. Sutton Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: 202-739-5830 Fax: 202-739-3001 E-mail: apolonsky@morganlewis.com 19 Changes to Adjudicatory Process, 69 Fed. Reg. at 2203.

20 As required by 10 C.F.R. § 2.323(b), on January 10, 2012, counsel for Exelon requested consultation with the parties regarding this motion. Counsel for the NRC Staff agrees with the Motion.

On January 11, counsel for Exelon spoke with Mr. Geoffrey Fettus, NRDC counsel, in an attempt to resolve the issues in this Motion. Mr. Fettus could not take a position on the Motion because NRDCs lead counsel is now Mr. Roisman, and Mr. Roisman was out of the office and could not be consulted until Tuesday, January 17 (the deadline for this Motion). Because this would be too late for proper consultation, Mr. Fettus stated that NRDC would have no objection to extending that window of time to file past Tuesday, giving Exelon an opportunity to consult with Mr. Roisman and then file later in the week. Exelon has chosen to not seek an extension of time to file this Motion because it would generate more work for Exelon, and there is no guarantee that the Board would grant it.

On January 17, 2012, counsel for Exelon also spoke with Mr. Roisman. After learning which portions Exelon proposed to strike, Mr. Roisman stated that NRDC intends to oppose the Motion.

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J. Bradley Fewell Deputy General Counsel Exelon Generation Company, LLC 4300 Warrenville Road Warrenville, IL 60555 Phone: 630-657-3769 Fax: 630-657-4335 E-mail: Bradley.Fewell@exeloncorp.com Counsel for Exelon Dated in Washington, D.C.

this 17th day of January 2012 11

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

)

In the Matter of )

) Docket Nos. 50-352-LR EXELON GENERATION COMPANY LLC ) 50-353-LR

)

(Limerick Generating Station, Units 1 and 2) ) January 17, 2012

)

CERTIFICATE OF SERVICE I hereby certify that on January 17, 2012 a copy of Exelons Motion to Strike Portions of NRDCs Reply was served by the Electronic Information Exchange on the following recipients:

Administrative Judge Office of the Secretary William J. Froehlich, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov E-mail: william.froehlich@nrc.gov Matthew Flyntz Administrative Judge Law Clerk Dr. William E. Kastenberg Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: matthew.flyntz@nrc.gov E-mail: William.kastenberg@nrc.gov Office of the General Counsel Administrative Judge U.S. Nuclear Regulatory Commission Michael F. Kennedy Mail Stop O-15D21 Atomic Safety and Licensing Board Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission ogcmailcenter@nrc.gov Washington, DC 20555-0001 Catherine Kanatas E-mail: michael.kennedy@nrc.gov catherine.kanatas@nrc.gov Brian Newell brian.newell@nrc.gov

Maxwell Smith maxwell.smith@nrc.gov Office of Commission Appellate Adjudication Mary Spencer U.S. Nuclear Regulatory Commission mary.spencer@nrc.gov Mail Stop: O-16C1 Ed Williamson Washington, DC 20555-0001 edward.williamson@nrc.gov E-mail: ocaamail@nrc.gov Lauren Woodall lauren.woodall@nrc.gov Natural Resources Defense Council (NRDC) 1152 15th St., N.W.

Washington, D.C. 20005 Geoffrey H. Fettus, Senior Project Attorney E-mail: gfettus@nrdc.org National Legal Scholars Law Firm, P.C.

241 Poverty Lane, Unit 1 Lebanon, NH 03766 Anthony Z. Roisman, Managing Partner E-mail: aroisman@nationallegalscholars.com Signed (electronically) by Brooke E. Leach Brooke E. Leach Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Phone: 215-963-5404 Fax: 215-963-5001 E-mail: bleach@morganlewis.com Counsel for Exelon 2