ML22343A142

Nuclear Fuel Services, Inc Motion to Strike Portions of Ecan Reply

ML22343A142
Person / Time
Site:	Erwin
Issue date:	12/09/2022
From:	Lighty R, Mattison M Morgan, Morgan, Lewis & Bockius, LLP, Nuclear Fuel Services
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 23-976-01-LA-BD02, RAS 56554, 70-143-LA
Download: ML22343A142 (10)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the matter of:

Docket No. 70-143-LA NUCLEAR FUEL SERVICES, INC.

December 9, 2022 (License Amendment Application)

NUCLEAR FUEL SERVICES, INC.S MOTION TO STRIKE PORTIONS OF THE REPLY FILED BY ERWIN CITIZENS AWARENESS NETWORK

I. INTRODUCTION

In accordance with 10 C.F.R. § 2.323(a),1 Nuclear Fuel Services, Inc. (NFS) moves to

strike portions of the Reply filed on December 2, 2022, by Erwin Citizen Awareness Network,

Inc. (ECAN)2 related to their October 31, 2022, Amended Petition to Intervene and Request

for a Hearing (Petition)3 and the Answers thereto filed by NFS and the U.S. Nuclear

Regulatory Commission (NRC) Staff.4 The Petition concerns NFSs license amendment

request submitted to the NRC on November 18, 2021 (LAR) asking the NRC to amend NFSs

1 Pursuant to 10 C.F.R. § 2.323(b), NFS counsel certifies that a sincere effort was made to contact the other participants in the proceeding and resolve the issues raised in this motion, and those efforts to resolve the issues have been unsuccessful. ECAN stated that they oppose the motion. The NRC Staff takes no position on the motion at this time and will evaluate whether to respond upon review.

2 [ECAN]s Combined Reply in Support of Petition for Leave to Intervene (Dec. 2, 2022) (ML22336A251)

(Reply).

3 Amended Petition of Erwin Citizens Awareness Network for Leave to Intervene in Nuclear Fuel Services, Inc.

License Amendment Proceeding, and Request for a Hearing (Oct. 31, 2022) (ML22304A709) (Petition).

4 [NFS]s Answer to [ECAN]s Hearing Request and Petition for Leave to Intervene (Nov. 25, 2022)

(ML22329A376) (NFS Answer); NRC Staff Answer to [ECAN]s Petition to Intervene and Request for Hearing (Nov. 23, 2023) (ML22327A214) (NRC Staff Answer).

existing special nuclear materials (SNM) license (SNM-124) to authorize new activities

associated with uranium purification and conversion (informally called the U-Metal process).5

The portions of the Reply identified below should be stricken because they exceed the

authorized scope of a reply pleading and impermissibly introduce new and untimely arguments

into the proceeding without satisfying the late-filing criteria in 10 C.F.R. § 2.309(c). Those

arguments neither legitimately amplify arguments raised in the Petition, nor focus narrowly on

the legal or factual arguments raised in the Answers. 6 By presenting new information and

arguments in their Reply, ECAN has denied NFS and the NRC Staff a full and fair opportunity to

address those arguments in their respective Answer pleadings.

II. LEGAL STANDARDS

It is well established in NRC proceedings that a reply cannot expand the scope of the

arguments set forth in the original hearing request. Replies must focus narrowly on the legal or

factual arguments first presented in the origin al petition or raised in the answers to it.7

Moreover, [t]he Commission will not permit, in a reply, the filing of new arguments or new

legal theories that opposing parties have not had an opportunity to address.8 Rather, NRC

contention admissibility and timeliness requirements demand a level of discipline and

preparedness on the part of petitioners, who must... set forth their claims... at the outset of

5 Letter from T. Knowles, NFS, to NRC Document Control Desk, License Amendment Request for U-Metal at the NFS Site (Nov. 18, 2021) (ML21327A099) (public version) (LAR). The LAR also includes the Supplement to Applicants Environmental Report (ML22066B005) (SAER), and NFSs response to requests for additional information from the NRC Staff, Letter from T. Knowles, NFS, to NRC Document Control Desk, Response to NRC Request for Additional Information to Support Environmental Review of NFS Application to Amend SNM-124 to Construct and Operate a Uranium Metal Process at 1 (Jun. 30, 2022)

(ML22193A034) (RAI Response).

6 See NFS Answer; see also NRC Staff Answer Reply.

7 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).

8 USEC, Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006).

2 the proceeding.9 As the Commission has explained, [t]here simply would 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.10

The Commission demands adherence to this requirement to avoid unnecessary delays

and increase the efficiency of NRC adjudication,11 because answering parties are entitled to be

told at the outset, with clarity and precision, what arguments are being advanced.12 Thus, the

permissible scope of a reply includes only information that (1) legitimately

amplifie[s]arguments in the original petition,13 or (2) focus[es] narrowly on the legal or factual

arguments first... raised in the answers [thereto].14 Ignoring these principles would render the

Commissions intentionally-restrictive pleading standard meaninglessas petitioners could

simply raise new contentions after the filing deadline, without the need to satisfy the

requirements in 10 C.F.R. § 2.309(c) for new or amended contentions filed after the initial

deadline for hearing requests and petitions to intervene.15 Among other things, those

requirements mandate a demonstration by the petitioner as to why the new claims could not have

been raised earlier in the proceeding.

9 La. Energy Servs., LP (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (internal quotation marks omitted), reconsideration denied, CLI-04-35, 60 NRC 619 (2004).

10 Id.

11 LES, CLI-04-35, 60 NRC at 622-23.

12 Kan. Gas & Elec. Co. & Kan. City Power & Light Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 576 (1975) (emphasis added).

13 LES, CLI-04-25, 60 NRC at 224-25.

14 Palisades, CLI-06-17, 63 NRC at 732.

15 See Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-22, 65 NRC 525, 527-28 (2007).

3 III. PORTIONS OF ECANS REPLY SHOULD BE STRICKEN

In Proposed Contention Ccaptioned Legacy Contamination Is Understated,

Uninvestigated and Missing From Cumulative Effects Analysis in the ERECAN claimed that

the SAER fails to disclose or analyze past, present, and future effluents and does not consider the

cumulative effects thereof. 16 In opposition to ECANs claims of omission, NFS and the NRC

Staff explained that ECAN disregarded or overlooked information in the LAR bearing on those

very issues. NFS and the NRC Staff also explained that ECANs vague claims of inadequate

analysis failed to identify specific alleged deficiencies in the application.

In its Reply, ECAN no longer argues that the information identified by NFS and the NRC

Staff is missing (because it is not), but rather it presents arguments for the first time purporting to

show that the information ECAN originally ignore d is somehow deficient. Likewise, the Reply

attempts to replace ECANs vague assertions of inadequacy with newly supplied challenges

and specificity. Furthermore, the Reply presents several other new arguments conjured from

whole cloth. As explained below, these new arguments exceed the permissible scope of a reply.

ECAN had an ironclad obligation to raise these arguments in its Petition.17 It did not. And it

is too late to do so now. Accordingly, these portions of the Reply should be stricken.

A. ECANs New Regulatory Capture and Signage Arguments Are Untimely and Improper

In its Reply, ECAN makes the generalized assertion that [n]o environmental impact is

ever significant enough for the NRC to reject a license amendment.18 It also asserts that certain

16 Petition at 21-22.

17 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 312 (2012) (noting a petitioners ironclad obligation to review application materials thoroughly)

18 Reply at 14.

4 signs near the NFS facility have been removed.19 These are wholly new arguments. Neither

was presented in the Petition, and neither respondsor even purports to respondto anything in

the NFS or NRC Staff Answer pleadings. It is settled law that replies must focus narrowly on

the legal or factual arguments first presented in th e original petition or raised in the answers to

it.20 Because [t]he Commission will not permit, in a reply, the filing of new arguments or new

legal theories that opposing parties have not had an opportunity to address,21 these arguments in

Section IV.A of the Reply are impermissible and should be stricken.

B. ECANs New Pipe Stream Argument Is Untimely and Improper

ECAN also presents for the first time, in its Reply, new criticisms attacking the

description of Banner Spring Branch in both the SAER and the RAI Response. Specifically,

ECAN challenges the SAERs statement that Banner Spring Branch is classified for fish and

aquatic life, livestock watering, irrigation and recreation.22 ECAN also challenges an assertion

in the RAI Response that Banner Spring Branch contains several species of minnows where it

converges with Martin Creek.23 Both the SAER and the RAI Response were available to ECAN

for many months in advance of the hearing re quest deadline. Nevertheless, ECAN did not

present these challenges in the Petition. Instead, it waited until its Reply pleading to present

them for the first time, without any explanation as to why they could not have been raised earlier.

Likewise, this issue was not raised in the NRC Staff or NFS Answer pleadingsand nothing in

this section of the Reply even mentions those pleadings. As the Commission has explained,

19 Id. at 15.

20 Palisades, CLI-06-17, 63 NRC at 732.

21 USEC, CLI-06-9, 63 NRC at 439.

22 Reply at 16-17 (calling this assertion false and incredible).

23 Id. at 17 (challenging this assertion as unsupported because a report cited nine sentences later, for a different proposition, does not contain the challenged assertion).

5 NRC contention admissibility and timeliness requirements demand a level of discipline and

preparedness on the part of petitioners, who must... set forth their claims... at the outset of

the proceeding.24 Because ECAN did not do so with these arguments in Section IV.B of the

Reply, and because they do not narrowly focus on the Petition or the Answers, they are untimely,

impermissible, and should be stricken.

C. ECANs New Drinking Water System Argument is Untimely and Improper

ECANs Reply also asserts that the LAR improperly omitted a discussion of drinking

water for Greeneville and other communities in Greene County, TN.25 However, this line of

argument exceeds the permissible scope of a reply pleading and does not otherwise satisfy the

requirements for a new or amended contention out-of-time. This argument was not raised in the

Petition, despite the LAR being available for months before the Petition was filed. And ECAN

does not identify any portion of any Answer pleading to which it purports to respond. Because

this criticism was not raised at the outset, it is untimely, improper, and Section IV.D of the Reply

should be stricken.26

D. ECANs Attempt to Reinvigorate Its Contention By Curing Deficiencies Identified by Other Parties Exceeds the Permissible Scope of a Reply

In its original Petition, ECAN made numerous vague and conclusory assertions regarding

alleged omissions and insufficiencies in the LAR. In their respective Answer pleadings, NFS

and the NRC Staff explained numerous reasons those claims failed to raise an admissible

contention, largely because they were unsupported and failed to dispute, with requisite

specificity, the relevant analyses in the LAR. In its Reply, ECAN responds to those criticisms,

24 LES, CLI-04-25, 60 NRC at 224-25.

25 Reply at 17.

26 LES, CLI-04-25, 60 NRC at 224-25.

6 not by rebutting them, but by attempting to cure them through presentation of new, specific

criticisms of the relevant analyses they previously ignored.

That is impermissible. The Commission has long held that reply briefs cannot be used to

cure or reinvigorate thinly supported contentions by presenting entirely new arguments.27 Yet,

as explained below, that is precisely what ECAN has done here. Accordingly, these improper

attempts to cure the numerous admissibility defects identified by NFS and the NRC Staff should

be stricken.

1. ECANs Attempt to Cure Defects Identified by the NRC Staff

In the Petition, ECAN raised several vague criticisms related to the analysis of

groundwater contamination in the LAR.28 In its Answer pleading, the NRC Staff pointed to the

sections of the LAR that analyze that topic,29 and explained that, because the Petition d[id] not

address that information information, ECAN had failed to identify a genuine dispute.30 The

Reply does not challenge that assertion. ECAN glosses right over itapparently conceding the

point. Instead, ECAN quibbles with the Staffs characterization of that information as

extensive,31 and attempts to cure its failure by offeringfor the first timea critique of the

information that it originally ignored.32 Likewise, ECAN attacks plutonium contamination data

presented in the SAER and RAI Response, which was referenced in the NRC Staff Answer,

27 La. Energy Servs. LP (Natl Enrichment Facility), CLI-04-32, 60 NRC 223, 224 (2004).

28 See generally Petition at 21-35; see also generally NRC Staff Answer at 18-25; NFS Answer at 16-25.

29 E.g., NRC Staff Answer at 20 (citing Table 22B).

30 NRC Staff Answer at 22 (emphasis added).

31 Petition at 18 (criticizing the NRC Staffs characterization of the information as extensive).

32 Petition at 17-19 (criticizing the legibility of charts, criticizing the length of the discussion, criticizing statements as squishy, criticizing data as not new, criticizing the NRC Staff for not requesting additional information, criticizing a data table as needing explanation, and criticizing the NRC Staffs characterization of this information as extensive).

7 purporting to identifyfor the first timeways in which that data falls short.33 However, the

Staffs Answer merely noted that ECAN had failed to engage with or dispute that data. These

new and untimely criticisms are not narrowl y focused on Staffs observation that ECAN

disregarded that information in the first instan ce. Instead, ECAN makes a thinly veiled attempt

to reinvigorate its inadmissible contention through presentation of new specificity, and freshly

conjured disputes, not presented in the Petition. As a matter of law, these claims in Section IV.C

and the first paragraph of Section IV.G of the Replyto which NFS and the NRC Staff have not

had an opportunity to respondshould be stricken.34

2. ECANs Attempt to Cure Defects Identified by NFS

In its Answer pleading, NFS similarly noted that ECANs Petition disregards the

multiple portions of the application that presen t updated disclosures and analyses regarding the

presence and quantity of facility effluents.35 The Reply does not challenge the overarching

assertion that ECAN failed to engage with or dispute the information. Instead, ECAN attempts

to dispute that information for the first time by (1) republishing its new arguments related to

Banner Spring Branch, and (2) raising wholly new criticisms of the LARs discussion of

groundwater plumes.36

As noted above, ECANs new criticisms of NFSs description of Banner Spring Branch

arguments are untimely and impermissible.37 Duplicating those arguments in a separate part of

the Reply,38 under the guise of responding to a statement in the NFS Answer, does not change

33 Reply at 24-25.

34 LES, CLI-04-32, 60 NRC at 224.

35 NFS Answer at 16.

36 Reply at 20-24.

37 See supra Section III.B.

38 Reply at 20-21.

8 that. So too with ECANs fresh criticisms regarding groundwater plumes.39 The Reply does

not focus narrowly on NFSs observation that ECAN did not dispute this information to begin

with. In fact, it does not engage with that assertion at all. As a matter of settled law, Petitioners

cannot file thinly supported contentions, wait for other parties to flag their deficiencies, and then

cure those defects in a reply. That is a textbook example of impermissible reinvigoration.40

Accordingly, these new arguments in Section IV.F of the Reply should be stricken.

IV. CONCLUSION

Sections IV.A through IV.D,Section IV.F, and the first paragraph of Section IV.G of the

Reply exceed the authorized scope of a reply pleading and do not satisfy the requirements in

10 C.F.R. § 2.309(c) for new or amended contentions out of time. Accordingly, the appropriate

remedy is to strike those portions of the Reply.

Respectfully submitted,

Signed (electronically) by Ryan K. Lighty Executed in accord with 10 C.F.R. § 2.304(d)

Ryan K. Lighty, Esq. Molly R. Mattison, Esq.

MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W. 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Washington, D.C. 20004 (202) 739-5274 (202) 739-5540 ryan.lighty@morganlewis.com molly.mattison@morganlewis.com Counsel for Nuclear Fuel Services, Inc.

Dated in Washington, D.C.

This 9th day of December 2022

39 Id. at 22-24.

40 LES, CLI-04-32, 60 NRC at 224.

9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the matter of:

Docket No. 70-143-LA NUCLEAR FUEL SERVICES, INC.

December 9, 2022 (License Amendment Application)

CERTIFICATE OF SERVICE

Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing

Nuclear Fuel Services, Inc.s Motion to Strike Portions of the Reply Filed by Erwin Citizens

Awareness Network was served upon the Electronic Information Exchange (the NRCs E-Filing

System), in the above-captioned docket.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com

Counsel for Nuclear Fuel Services, Inc.

DB1/ 134465396