ML12285A376

Order (Granting Motion to Strike)

ML12285A376
Person / Time
Site:	Davis Besse
Issue date:	10/11/2012
From:	William Froehlich 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: Docket No. 50-346-LR FirstEnergy NUCLEAR OPERATING ASLBP No. 11-907-01-LR-BD01 COMPANY October 11, 2012 (Davis-Besse Nuclear Power Station, Unit 1)

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, Dont 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 Staffs Answer to FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis Source Terms) (Sept. 14, 2012) [hereinafter NRC Staff Answer]; Intervenors Reply in Opposition to FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis -

Source Terms) (Sept. 14, 2012) [hereinafter Intervenors Reply].

3 FENOCs Motion to Strike Intervenors Reply in Opposition to FENOCs Motion for Summary Disposition of Contention 4 (SAMA Analysis - Source Terms) (Sept. 24, 2012) [hereinafter FENOCs Motion to Strike].

filed an answer in opposition to the FENOC Motion to Strike on October 4, 2012.4 This Order addresses FENOCs Motion to Strike.

I. PROCEDURAL BACKGROUND This underlying proceeding in this docket concerns FENOCs 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 FENOCs 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 FENOCs Motion to Strike Intervenors Reply in Opposition to FENOCs Motion for Summary Disposition of Contention 4 (SAMA Analysis -

Source Terms) (Oct. 4, 2012) [hereinafter Answer to FENOCs Motion to Strike].

5 FENOCs License Renewal Application is available on the NRCs 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, Dont 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 Boards 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 FENOCs motion for summary disposition and the Intervenors filed a reply in opposition to FENOCs 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 FENOCs 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 FENOCs Motion to Strike at 1.

15 See Answer to FENOCs 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 FENOCs 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 419 and improperly raise two new arguments: (1) FENOCs SAMA analysis does not take into account the Davis-Besse shield building cracking issue; and (2) FENOCs 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 Moores 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 FENOCs Motion to Strike at 3-4.

19 Id. at 4.

20 Id. at 5 (citing Reply to FENOCs Motion for Summary Disposition at 1-2).

21 FENOCs Motion to Strike at 7.

Intervenors contend in their Answer to FENOCs Motion to Strike that the arguments raised in their Reply to FENOCs 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 FENOCs SAMA analysis.22 Thus, Intervenors assert that their opposition arguments are relevant to the source terms used in FENOCs 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 FENOCs Motion for Summary Disposition because Intervenors commented that the structural problems in the shield building and steel containment shell would affect FENOCs 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 FENOCs 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 FENOCs 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 FENOCs SAMA analysis, the scope of Contention 4 does not encompass any and all arguments Intervenors have relating to SAMAs. Contention 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 arguments in a motion to amend Contention 4 or a motion to admit a new contention, but they did not.27 Thus, the Board grants FENOCs Motion and strikes Intervenors Reply to FENOCs Motion for Summary Disposition.

IV. CONCLUSION For the foregoing reasons, FENOCs September 24, 2012 Motion to Strike Intervenors Reply in Opposition to FENOCs Motion for Summary Disposition of Contention 4 is GRANTED; Intervenors September 14, 2012 Reply in Opposition to FENOCs 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 FENOCs 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, Moores 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

/RA/

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 Office of the Secretary of the Commission Adjudication U.S. Nuclear Regulatory Commission Mail Stop O-7H4M Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov Office of the General Counsel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission. Mail Stop O-15D21 Mail Stop T-3F23 Washington, DC 20555-0001 Washington, DC 20555-0001 Edward L. Williamson, Esq.

E-mail: edward.williamson@nrc.gov William J. Froehlich, Chair Lloyd B. Subin, Esq.

Administrative Judge E-mail: lloyd.subin@nrc.gov E-mail: william.froehlich@nrc.gov Brian Harris, Esq.

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

Administrative Judge E-mail: catherine.kanatas@nrc.gov E-mail: nicholas.trikouros@nrc.gov Brian P. Newell, Paralegal E-mail: brian.newell@nrc.gov William E. Kastenberg Administrative Judge OGC Mail Center : OGCMailCenter@nrc.gov E-mail: wek1@nrc.gov FirstEnergy Service Company.

Matthew Flyntz, Law Clerk Mailstop: A-GO-15 E-mail: matthew.flyntz@nrc.gov 76 South Main Street Onika Williams, Law Clerk Akron, OH 44308 Email: onika.williams@nrc.gov David W. Jenkins, Esq.

E-mail : djenkins@firstenergycorp.com

Davis-Besse Nuclear Power Station, Docket No. 50-346-LR ORDER (Granting Motion to Strike)

Morgan, Lewis & Bockius Dont Waste Michigan 1111 Pennsylvania Avenue, NW 811 Harrison Street Washington, D.C. 20004 Monroe, Michigan 48161 Stephen Burdick, Esq. Michael Keegan E-mail: sburdick@morganlewis.com E-mail: mkeeganj@comcast.net Kathryn M. Sutton, Esq.

E-mail: ksutton@morganlewis.com Terry J. Lodge, Counsel for CEA, Dont Martin ONeill, Esq. Waste Michigan, and Green Party of Ohio E-mail: martin.oneill@morganlewis.com 316 N. Michigan Street, Suite 520 Timothy Matthews, Esq. Toledo, OH 43604-5627 E-mail: tmatthews@morganlewis.com E-mail: tjlodge50@yahoo.com Jane Diecker, Esq.

E-mail: jdiecker@morganlewis.com Beyond Nuclear Mary Freeze, Legal Secretary 6930 Carroll Avenue Suite 400 E-mail: mfreeze@morganlewis.com Takoma Park, Md. 20912 Kevin Kamps Citizens Environmental Alliance (CEA) E-mail : kevin@beyondnuclear.org of Southwestern Ontario Paul Gunter 1950 Ottawa Street E-mail : paul@beyondnuclear.org Windsor, Ontario Canada N8Y 197 Green Party of Ohio 2626 Robinwood Avenue Toledo, Ohio 43610

[Original signed by Herald M. Speiser ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 11th day of October 2012 2