ML12065A341

NRC Staff'S Answer to Fenoc'S Motion to Strike Portions of Intervenors' Reply for the Proposed Contention 5 on Shield Building Cracking

ML12065A341
Person / Time
Site:	Davis Besse
Issue date:	03/05/2012
From:	Harris B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-346-LR, ASLBP 11-907-01-LR-BD01, RAS 21999
Download: ML12065A341 (9)

Text

March 5, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LRA

)

(Davis-Besse Nuclear Power Station, Unit 1) )

)

NRC STAFFS ANSWER TO FENOCS MOTION TO STRIKE PORTIONS OF INTERVENORS REPLY FOR THE PROPOSED CONTENTION 5 ON SHIELD BUILDING CRACKING INTRODUCTION In accordance with 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission (Staff ) files its Answer to FENOCs Motion to Strike Portions of Intervenors Reply for the Proposed Contention 5 on Shield Building Cracking (FENOCs Motion).

Intervenors Combined Reply in Support of Motion for Admission of Contention No. 5 (Intervenors Reply) 1 impermissibly includes new arguments not within the scope of the original pleading without any attempt to satisfy the standards governing late-filed contentions as set forth in 10 C.F.R. §§ 2.309(c) and (f)(2). Accordingly, these new arguments should be stricken and FENOCs Motion granted.

BACKGROUND This proceeding concerns FirstEnergys August 27, 2010 application to renew its operating license for Davis-Besse for an additional twenty years from the current expiration date 1

See Intervenors Combined Reply in Support of Motion for Admission of Contention No. 5, (Feb. 13, 2012) (Intervenors Reply) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML12044A361).

of April 22, 2017. 2 The Staff accepted the LRA for review, and on October 25, 2010, published a Federal Register Notice providing a Notice of Opportunity for Hearing. 3 On December 27, 2010, Joint Petitioners filed a petition to intervene. 4 On April 26, 2011, the Atomic Safety and Licensing Board (Board) admitted in part two of four originally proffered contentions. On January 10, 2012, Intervenors filed a new contention on shield building cracking in the Davis-Besse license renewal proceeding. 5 On February 13, 2012, the Intervenors filed their reply to the Staffs and Applicants answers that contained new arguments and supporting facts not present in the initial petition to add the new contention. 6 On February 27, 2012, Intervenors filed their answer to FENOCs Motion. 7 DISCUSSION I. The Standards Governing Arguments Raised For the First Time In A Reply Brief Under the Commissions rules, petitioners may file a reply to any answer filed in response to its petition. 8 The scope of that reply, however, is not unlimited. 9 In Palisades, the Commission explained that 2

Letter from Barry S. Allen, Vice President, dated August 27, 2010, transmitting the license renewal application for Davis-Besse (Agencywide Document Access and Management System (ADAMS) (ADAMS Accession No. ML1024505650) (LRA) at 1.2-1. If the LRA is approved, Davis-Besses new license expiration date would be April 22, 2037.

3 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License No. NPF-003 for an Additional 20-Year Period; FirstEnergy Nuclear Operating Company, Davis-Besse Nuclear Power Station, Unit 1, 75 Fed. Reg. 65,528 (Oct. 25, 2010).

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).

5 See Motion for Admission of Contention No. 5 On Shield Building Cracking, (Jan. 10, 2012)

(ADAMS Accession No. ML12010A172).

6 See Intervenors Combined Reply in Support of Motion for Admission of Contention No. 5, (Feb. 13, 2012) (Intervenors Combined Reply) (ADAMS Accession No. ML12044A361).

7 See Intervenors Answer to FENOCs Motion to Strike, (Feb. 27, 2012) (Intervenors Answer) (ADAMS Accession No. ML12058A260).

8 10 C.F.R. § 2.309(h)(2).

[i]t 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 present in the original petition or raised in the answers to it. New bases for [the] contention cannot be introduced in a reply brief unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. 2.309(c), (f2). 10 These pleading requirements form the cornerstone of the Commissions effort to avoid unnecessary delays and increase the efficiency of NRC adjudication, 11 and ensure the fundamental fairness of the proceedings. 12 Allowing new claims in a reply not only would defeat the contention-filing deadline, but would unfairly deprive other participants an opportunity to rebut the new claims. 13 Therefore, petitioners are precluded from using a reply to present entirely new facts or arguments in an attempt to reinvigorate thinly supported contentions. 14 Any improper arguments and factual support should be stricken. 15 II. The Board Should Grant FENOCs Motion to Strike Portions of Intervenors Combined Reply Intervenors Answer asserts that FENOC is raising petty disagreements that supply no basis for the severe step of striking Intervenors statements. 16 Intervenors argue, incorrectly, that because FENOCs Motion failed to contain the terms relevant, relevance, irrelevant and irrelevance 17 that FENOC is raising issues without consequence. But, Intervenors assert 9

See Nuclear Management Co. (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).

10 Id.

11 Louisiana Energy Services (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004).

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

13 Id.

14 Louisiana Energy Services (National Enrichment Facility), CLI-04-32, 60 NRC 223, 224 (2004).

15 10 C.F.R. § 2.319. See, e.g., Tenn. Valley Auth. (Bellefonte Nuclear Power Plant Units 3 and 4), LBP-08-16, 68 NRC 361, 376-77, 399-400, 407, 429 (2008).

16 Intervenors Answer at 2.

17 Intervenors Answer at 1-2.

only two reasons for denying FENOCs Motion, namely fraudulent conduct of the NRC Staff and FENOC and that Intervenors Combined Reply only legitimately amplified their original contention. 18 A. The Board Should Strike the Portions of Intervenors Reply That Assert Unsupported Accusations of Fraud Intervenors Combined Reply accused the Staff and FENOC of committing fraud. The Intervenors Answer to FENOCs Motion repeats these unsupported accusations. These baseless accusations appear to be meant to inflame rather than address any legitimate argument for contention admissibility or address any of the arguments advanced by the Staff or FENOC. In the Combined Reply, Intervenors assert but do not cite to any specific statements made by the Staff that were false. Intervenors repeated claims of fraud in their answer to FENOCs Motion are equally unsupported. Again, Intervenors claim that the NRC said that there would be no restart until the root cause of the cracking had been isolated, there was a grasp of how extensive the cracking was . 19 But, here again, Intervenors do not identify any specific statements made by the NRC to that effect.

In fact, Intervenors Combined Reply contradicts their assertions that FENOC somehow misled them. For example, Intervenors asserted that FENOC active[ly] conceal[ed] the true nature of the cracking problem throughout the months of October through December 2011 by pretending that only the decorative and architectural features of the shield building were showing concrete fissures. 20 Intervenors very next sentence credits FENOC for disclosing that cracks had been discovered in areas of the shield building that were not decorative or architectural on October 31, 2011. 21 It appears that Intervenors complaints are not that FENOC 18 See Intervenors Answer at 2-3, 7.

19 See Intervenors Answer at 8.

20 Intervenors Combined Reply at 2.

21 Intervenors Combine Reply at 2.

materially misled them or committed fraud but that they wanted a different disclosure that would alleviate them of their iron-clad obligation to examine the publicly available documentary material with sufficient care to enable [them] to uncover any information that could serve as the foundation for a specific contention. Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 496 (2010).

Intervenors Answer to FENOCs Motion is similarly silent as to a specific NRC statement that was fraudulent. Intervenors argue that their purpose for raising the aspect of fraud in FENOC[s] disclosures is to show that FENOC cannot be heard to rely on its misleading concealments and omissions to answer as authority for the objection that Intervenors missed the 60-day filing window for the cracking contention. 22 Intervenors assert that the time for filing should be tolled until the fraud is discovered, if the party was without fault and exercised due diligence. 23 As discussed above, Intervenors have already acknowledged in the Combined Reply that they knew that the cracking was not limited to the decorative or architectural as of October 31, 2011. 24 Even if Intervenors theory of fraud was true, they admit to discovering the fraud on October 31, 2011. Therefore, Intervenors should have filed their proposed contention 5 no later than December 29, 2012. 25 Because Intervenors have pointed to no information that would support their claims of fraudulent conduct by the Staff or FENOC and their own filings before the Board indicate that they were in fact not deceived by the disclosures, FENOCs motion to strike the portions of Intervenors Reply should be granted.

22 Intervenors Answer at 9.

23 Id.

24 Intervenors Combined Reply at 2.

25 As discussed in the answer to Intervenors proposed Contention 5, the Staff suggested that a portion of the contention as revised by the Staff would meet the late-filed criteria of 10 C.F.R. § 2.309(c).

B. Portions of Intervenors Combined Reply Were Wholly New Theories Not Within the Scope of the Proposed Contention 5 Instead of focusing narrowly on the scope of proposed contention 5 as Intervenors originally proffered it to this Board, Intervenors Combined Reply attempts to recast and add additional bases to support their proposed contention 5.

As FENOCs Motion clearly explained, Intervenors Proposed Contention 5 did not seek a waiver in accordance with 10 C.F.R. § 2.335 and did not originally assert that cumulative effects had not been properly considered in the Environmental Report. Intervenors Answer acknowledges that they did not seek a waiver in accordance with 10 C.F.R. § 2.335 in their original pleading. Because Intervenors did not seek a waiver in their original Proposed Contention 5, they cannot cure the deficiency by arguing that contention satisfies the waiver requirements in their reply. Thus, this portion of Intervenors Combined Reply should be stricken, and FENOCs Motion granted.

Intervenors also assert that [they] have consistently advanced their belief, beginning with the original cracking motion filing, that the concept of age-related degradation includes consideration of cumulative effects 26 without providing any citation to portions of their previous filing that raised that issue. Because Intervenors have not identified any portion of their original pleading as raising the issue of cumulative effects, this portion of Intervenors Combined Reply should be stricken.

Allowing Intervenors to argue new legal theories and facts in their Combined Reply defeats the fundamental fairness of the proceeding and the Commissions clear precedent regarding pleading requirements and the scope of replies. The Commission has warned intervenors that they need to be prepared to meet the high standards of participating in an NRC proceeding. Specifically, the Commission has stated that:

26 Intervenors Answer at 6.

As we have stressed previously, our contention admissibility and timeliness rules require a high level of discipline and preparation by petitioners, who must examine the publicly available material and set forth their claim and the support for their claim at the outset. 27 Quite clearly, Intervenors Combined Reply demonstrated the lack of discipline and preparation that the Commission and this Board explained would not be acceptable going forward. 28 Each of these new legal theories and facts could have been identified in Intervenors motion proposing Contention 5. Because Intervenors failed to raise these theories and facts in their initial pleading, they should be stricken from the Combined Reply and FENOCs Motion granted.

CONCLUSION For the foregoing reasons, the unsupported accusations of fraud and new arguments and facts should be stricken from Intervenors Combined Reply and FENOCs Motion should be granted.

Respectfully submitted, Signed (electronically) by

____________________

Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Date of signature: March 5, 2012 27 Amergen Energy Co., L.L.C. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 271-72 (2009) (quoting Louisiana Energy Services, L.P., CLI-04-25, 60 NRC at 224-25).

28 See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP11-13, 73 NRC ___ (April 26, 2011) (slip op. at 7 - 8); Licensing Board Order (Granting Motion To Strike and Requiring Re-filing of Reply) (Feb. 18,2011) at 4 (unpublished). (granting motion to strike portions of Intervenors Reply).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LRA

)

(Davis-Besse Nuclear Power Station, Unit 1) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS ANSWER TO FENOCS MOTION TO STRIKE PORTIONS OF INTERVENORS REPLY FOR THE PROPOSED CONTENTION 5 ON SHIELD BUILDING CRACKING in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 5th day of March, 2011.

William J. Froehlich, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: william.froehlich@nrc.gov E-mail: OCAAmail.resource@nrc.gov Nicholas G. Trikorous, Administrative Judge Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemakings and Adjudications Staff Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: nicholas.trikorous@nrc.gov E-mail: hearingdocket@nrc.gov William E. Kastenberg, Administrative Judge David W. Jenkins, Esq.

Atomic Safety and Licensing Board Panel First Energy Service Company Mail Stop: T-3F23 Mail Stop A-GO-15 U.S. Nuclear Regulatory Commission 76 South Main Street Washington, DC 20555-0001 Akron, OH 44308 E-mail: william.kastenberg@nrc.gov E-mail: djenkins@firstenergycorp.com

Hillary Cain, Law Clerk Morgan, Lewis & Bockius Atomic Safety and Licensing Board Panel Pennsylvania Avenue, NW Mail Stop: T-3F23 Washington, D.C. 20004 U.S. Nuclear Regulatory Commission Stephen Burdick, Esq.

Washington, DC 20555-0001 E-mail: sburdick@morganlewis.com E-mail: hillary.cain@nrc.gov Alex Polonsky, Esq.

E-mail: apolonsky@morganlewis.com Kathryn M. Sutton, Esq.

E-mail: ksutton@morganlewis.com Timothy Matthews, Esq.

E-mail: tmatthews@morganlewis.com Mary Freeze, Legal Secretary E-mail: mfreeze@morganlewis.com Derek Coronado Michael Keegan Citizens Environmental Alliance (CEA) Dont Waste Michigan of Southwestern Ontario 811 Harrison Street 1950 Ottawa Street Monroe, Michigan 48161 Windsor, Ontario Canada N8Y 197 E-mail: mkeeganj@comcast.net Email: dcoronado@cogeco.net Beyond Nuclear Anita Rios 6930 Carroll Avenue, Suite 400 Green Party of Ohio Takoma Park, MD 20912 2626 Robinwood Avenue Paul Gunter Toledo, Ohio 43610 E-mail: paul@beyondnuclear.com Email: rhannon@toast.net Kevin Kamps Email: Kevin@beyondnuclear.com

/Signed (electronically) by/

Brian G. Harris Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1392 E-mail: Brian.Harris@nrc.gov