ML12285A373

Order (Granting in Part and Denying in Part Motion to Strike)

ML12285A373
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 23607, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML12285A373 (7)

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 in Part and Denying in Part Motion to Strike)

On January 10, 2012, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Party of Ohio (collectively, " Intervenors") filed a proposed Contention 5 in this proceeding.

1 FirstEnergy Nuclear Operating Company (FENOC) and the Nuclear Regulatory Commission Staff (NRC Staff) filed answers on February 6, 2012.

2 Intervenors filed a combined reply on February 13, 2012.

3 FENOC then filed a motion to strike portions of Intervenors' reply on February 23, 2012, 4 to which Intervenors and the NRC Staff 1 Motion for Admission of Contention No. 5 on Shield Building Cracking (Jan. 10, 2012).

2 See FENOC's Answer Opposing Intervenors' Motion for Admission of Contention No. 5 on Shield Building Cracking (Feb. 6, 2012); NRC Staff's Answer to Motion to Admit New Contention Regarding the Safety Implications of Newly Discovered Shield Building Cracking (Feb. 6, 2012).

3 Intervenors' Combined Reply in Support of Motion for Admission of Contention No. 5 (Feb. 13, 2012). 4 FENOC's Motion to Strike Portions of Intervenors' Reply for the Proposed Contention 5 on Shield Building Cracking (Feb. 23, 2012) [hereinafter "Motion to Strike"]. responded on February 27, 2012, and March 5, 2012, respectively.

5 For the reasons discussed below, FENOC's motion to strike is granted in part and denied in part. I. LEGAL STANDARD A reply brief may not raise new arguments beyond the scope of a proposed contention in an effort to rectify inadequacies that existed in the motion to admit the new contention.

6 However, a reply may "legitimately amplif [y]" arguments found within the motion to admit.

7 A reply may also respond to any legal or logical arguments put forward by other parties in their answers.

8 II. ANALYSIS AND RULING FENOC contends that Intervenors have put forward in their reply a number of arguments that are outside the scope of the proposed new contention, and that Intervenors have made unsupported allegations against FENOC that are "c ontrary to the standards of practice for NRC adjudicatory proceedings."

9 We grant the motion to strike in part and deny it in part. First, FENOC argues that the Board should strike Section E of Intervenors' reply, which addresses postulated accidents.

10 FENOC contends that while Intervenors raised "cursory" arguments regarding postulated accidents in their original contention, "Intervenors' Reply impermissibly provides new information and arguments in a blatant attempt to cure their earlier 5 Intervenors' Answer to FENOC 'Motion to Strike' (Feb. 27, 2012) [hereinafter "Intervenors' Answer"]; NRC Staff's Answer to FENOC's Motion to Strike Portions of Intervenors' Reply for the Proposed Contention on Shield Building Cracking (Mar. 5, 2012) [hereinafter "NRC Staff Answer"].

6 See Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 152 (2006), rev'd in part on other grounds, CLI-07-16, 65 NRC 371 (2007).

7 See, e.g., Nuclear Management Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 329 (2006).

8 See Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004). 9 Motion to Strike at 1.

10 Id. at 4-6. deficiencies."

11 Intervenors claim that their "reply statements focus squarely on the issues and arguments raised by FENOC" in FENOC's answer.

12 While the NRC Staff has indicated its support for the motion, 13 it does not seem to have put forward any arguments on this particular subject. While FENOC is correct that Intervenors cite new legal authority and raise certain new arguments in their reply, we believe that these citations and arguments are fairly responsive to arguments proffered by FENOC in its answer. While a party may not raise new arguments in a reply that are outside the scope of the initial contention, it may "legitimately amplify" arguments presented in its initial contention in order to fairly respond to arguments raised in the answers.

14 The arguments presented by Intervenors in Section E of its reply do not strike us as attempts to belatedly broaden the scope of the contention, but rather as efforts to fairly respond to FENOC's answer. As such, FENOC's February 23 Motion to Strike is denied insofar as it seeks to strike Section E of Intervenors' reply.

Second, FENOC seeks to strike Section F of Intervenors' reply regarding cumulative effects.15 FENOC argues that "Intervenors had not included any arguments whatsoever about the 'cumulative effects' of changes to the Shield Building in the proposed Contention," and that "neither FENOC nor the NRC Staff raised cumulative effects issues in their respective answers."

16 The NRC Staff agrees, arguing that "Intervenors have not identified any portion of their original pleading as raising the issue of cumulative effects."

17 Intervenors again argue that their discussion of 11 Id. at 4, 5.

12 Intervenors' Answer at 2.

13 See NRC Staff Answer at 1.

14 See, e.g., Nuclear Management Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 329 (2006).

15 Motion to Strike at 6-7.

16 Id. at 6. 17 NRC Staff Answer at 6. cumulative effects in their reply "directly responded to FENOC's argument" and should therefore not be stricken.

18 We disagree. Intervenors' motion to admit proposed Contention 5 did not contain the phrase "cumulative effects." The issue of cumulative effects, as FENOC asserts, is simply outside the scope of the proposed contention. Intervenors' argument that its discussion of cumulative effects is a fair response to arguments put forward by FENOC is not convincing. The discussion of cumulative effects is not a "legitimate amplification," but rather an attempt to expand the scope of proposed Contention 5. As such, FENOC's motion is granted insofar as it seeks to strike Section F of Intervenors' reply.

Finally, FENOC contends that the Board should strike portions of the Intervenors' reply raising accusations of fraudulent conduct against FENOC and the NRC Staff.

19 FENOC argues that such allegations are "outside the bounds of appropriate conduct in an NRC adjudicatory proceeding."

20 The NRC Staff agrees, arguing that Intervenors' claims of fraud are "unsupported" and "meant to inflame rather than address any legitimate argument for contention admissibility."

21 We agree. NRC Regulations provide that "parties and their representatives . . . are expected to conduct themselves with honor, dignity, and decorum as they should before a court of law."

22 Intervenors' actions in putting forward baseless and irrelevant allegations of fraud on the part of FENOC and the NRC Staff did not conform with this standard. As such, FENOC's motion is granted insofar as it seeks to strike all allegations of fraudulent activity within Intervenors' reply.

18 Intervenors' Answer at 5.

19 See Motion to Strike at 7-10.

20 Id. at 7. 21 NRC Staff Answer at 4.

22 10 C.F.R. § 2.314(a). We fully expect that the parties will conform their actions to this standard in all future activities before this Board, including the upcoming oral argument. At that argument, the Board will not entertain arguments beyond the scope of Contention 4 as it has been admitted and Contention 5 as it has been proposed and amended. The Board will not hesitate to exercise its powers to

maintain decorum as necessary.

23 Unsupported allegations of fraudulent conduct will not be tolerated. III. CONCLUSION For the foregoing reasons, the FENOC February 23, 2012 motion to strike portions of Intervenors' Reply for the Proposed Contention 5 on Shield Building Cracking is granted in part and denied in part as follows: 1. The motion is granted such that the entirety of Section F on pages 13 through 14 of Intervenors' reply is stricken from the record of this proceeding; 2. The motion is granted such that those portions of Section A that allege fraud, active concealment or mendacity took place are stricken from the record of this

proceeding; and 3. The motion is denied insofar as it seeks to strike Section E of Intervenors' reply.

It is so ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD

__________________________ William J. Froehlich, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland October 11, 2012

23 See id. § 2.314(c).

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 in Part and Denying in Part 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 in Part and Denying in Part 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