ML12023A246

NRC Staff'S Response in Support of First Energy'S Motion for Reconsideration of the Board'S Order Denying Motion to Dismiss Contention 1

ML12023A246
Person / Time
Site:	Davis Besse
Issue date:	01/23/2012
From:	Subin L NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21782, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML12023A246 (8)

Text

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 RESPONSE IN SUPPORT OF FIRST ENERGYS MOTION FOR RECONSIDERATION OF THE BOARDS ORDER DENYING MOTION TO DISMISS CONTENTION 1 INTRODUCTION The Staff of the U.S. Nuclear Regulatory Commission (Staff) does not oppose FirstEnergy Nuclear Operating Companys (FENOC) Motion for Reconsideration of the Boards Order Denying Motion to Dismiss (FENOCs Motion). 1 The Atomic Safety and Licensing Boards (Board) Order2 denying FENOCs Motion to Dismiss Contention 1 solely on the grounds that it was untimely,3 is inconsistent with and contrary to the Boards Initial Scheduling Order.4 Specifically, Sections B.1 and C of the ISO clearly allowed dispositive motions like FENOCs Motion to Dismiss Contention 1. Section C allows dispositive motions to be filed no later than 30 days after the Staff publishes the later of the Final Supplemental Environmental Impact Statement or final Safety Evaluation Report.5 Thus, the Boards denial of 1

FENOCs Motion for Reconsideration of the Boards January 10 Order (Jan. 13, 2012). See also FENOCs Motion for Leave to File a Motion for Reconsideration of the Boards January 10 Order (Jan. 13, 2012).

2 Memorandum and Order (Denying Motion to Dismiss Contention 1) (Order) (Unpublished)

January 10, 2012 (ADAMS Accession No. ML120101A103).

3 Order at 4.

4 Initial Scheduling Order (ISO), June 15, 2011 (ADAMS Accession No. ML111662021).

5 ISO at 13.

FENOCs motion as untimely is a clear and material error, which neither FENOC, nor the other parties, reasonably could have anticipated and which, if left unaddressed, would materially prejudice the rights of all parties going forward.6 Consequently, the compelling circumstances required by 10 C.F.R. § 2.323(e) for reconsideration do exist. Furthermore, clarification is necessary to clear up the ambiguity created by this inconsistency for any future motions made during this proceeding. Accordingly, FENOCs Motion for Reconsideration satisfies 10 C.F.R. § 2.323(e) and should be granted.

PROCEDURAL BACKGROUND On August 27, 2010, FENOC submitted a License Renewal Application (LRA), which included an Environmental Report (ER), to the Nuclear Regulatory Commission (NRC) for the Davis-Besse operating license. The Request for Public Hearing and Petition for Leave to Intervene (Petition) was filed on December 27, 2010, and proffered three alternative energy contentions.7 The Board consolidated the three alternative contentions and admitted them as Contention 1, challenging the sufficiency of the ERs analysis of renewable energy sources and FENOCs conclusions that the proffered alternatives are not reasonable alternatives.8 On September 19, 2011, FENOC docketed revisions to the ER specifically addressing the alleged deficiencies raised in Contention 1.9 Section C of the ISO allows dispositive motions, including motion for summary disposition, motion to dismiss a contention as moot, or other dispositive 6

Based on the timing of intervenors response in opposition and staffs filing, each of the parties considered the FENOCs Motion to Dismiss as a dispositive motion under Section C of the ISO.

7 See generally Petition. A fourth contention challenged the Severe Accident Mitigation Alternatives (SAMA) analysis. Id.

8 Memorandum And Order (Ruling on Petition to Intervene and Request for Hearing) at 34. The SAMA contention, which is not at issue in these motions, was admitted as limited by the Board. Id. at 62.

Intervenors recently moved to admit a new contention based on cracks in the Davis-Besse shield building, which is still being briefed by the parties, and remains pending before the Board.

9 Letter from K. Byrd, FENOC, to NRC, License Renewal Application Amendment 16 for the review of the Davis-Beese Nuclear Power Station, Unit No. 1, License renewal Application Environmental report (September 19, 2011) (ADAMS Accession No. ML11266A062).

motion to be filed as late as thirty (30) days after the Trigger Date.10 FENOC filed its Motion to Dismiss Contention 1 on December 19. Pursuant to ISO Section C, Intervenors and the NRC Staff timely filed their responses on January 9, 2012.

DISCUSSION A. Legal Standards Governing Motion For Reconsideration Pursuant to 10 C.F.R. § 2.323(e), motions for reconsideration may not be filed except with leave of the presiding officer or the Commission and upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid.11 In adopting the test of compelling circumstances, the Commission explained that it was adopting this higher standard to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier.12 As the Commission has made clear, the test for reconsideration is applied strictly and reconsideration is not undertaken 10 ISO at 13. The Trigger Date is defined as the later of the issuance date of the FSEIS or issuance date of the FSER. Id. at 14.

11 10 C.F.R. § 2.323(e); Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI 07-13, 65 NRC 211, 214 (2007). As stated in Pacific Gas and Electric Co. (Diablo Canyon Power Plant Spent Fuel Storage Installation), CLI-06-27, 62 NRC 399, 400 n.5 (2006), the new rules simply codify our practice (referring to its discussion (in n. 6) of Louisiana Energy Services, L.P (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004) (fundamental misunderstanding of a key point) and Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-18, 58 NRC 433, 434 (2003) (overlooked controlling decision or principle of law, or factual clarification). As summarized by the Commission in its 2004 rulemaking, under prior case law, motions for reconsideration were permitted where a movant showed that evidence may have been misunderstood or overlooked, or to clarify a ruling on a matter. Changes to Adjudicatory Process, Statement of Considerations, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004).

12 69 Fed. Reg. at 2207.

lightly.13 The amended regulations clear error standard is a high standard: a clearly erroneous finding is one that is not even plausible in light of the record viewed in its entirety.14 B. The Order Contradicts the Boards Initial Scheduling Order The Order states that 10 C.F.R. § 2.323(a) requires that motions be filed no later than ten days after the occurrence or circumstance from which the motion arises, and that unless otherwise specified by the Board, a motion, such as a motion to compel, shall be filed within those ten days. Order at 3. The Order (at 1) states that the ISO contains no expansion or waiver of the ten-day limit imposed by 10 C.F.R. § 2.323(a) for other kinds of motions, other than a motion to compel. As pointed out by FENOC, Section A.6 of the ISO is not applicable to dispositive motions.15 Contrary to the Order, Section C of the ISO specifically addresses the timing requirements for dispositive motions. Section C states that no dispositive motion shall be filed later than thirty (30) days after the Trigger Date.16 Section F defines the Trigger date as the later of the issuance of the Final Supplemental Environmental Impact Statement (SEIS) or the Final Safety Evaluation Report (SER). Section C also uses the summary disposition rules of 13 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Spent Fuel Storage Installation), CLI-06-27, 62 NRC at 400-401 (2006).

14 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-5-19, 62 NRC 403, 411 (2005).

15 FENOCs Motion at 3 - 4. Section A.6, Disclosure Disputes and Motions to Compel, limits its discussion to discovery disputes and any related motion practice. ISO at 11 - 12.

16 ISO at 13. Section C also identifies examples of dispositive motions, which included motions to dismiss as moot. Id. FENOC has also pointed out that the incompatibility of the timing requirements as outlined by the Order and ISO. Specifically, Section C of the ISO modified the timing of responses to dispositive motions to be filed within 20 days. Based on the Orders apparent requirement that dispositive motions should be filed within 10 days of the triggering event, parties responding to dispositive motions would be unfairly allowed twice time to respond as the party filing the motion. See Order at 4. Compare ISO at 13. As the Order stands, it applies the 10 day trigger in Section 2.323(a) for all motions other than motions to compel, thus allowing for more time to respond to a motion than to prepare for the original motion. Id. This would clearly inequitable result could not have been the Boards intent. Thus, the Board should reconsider FENOCs Motion to Dismiss.

Section 2.1205(a) preventing parties from filing for summary disposition later than forty-five days (45) before the hearing.17 Accordingly, Section C of the Order does not place timing restrictions on filing of dispositive motions other than thirty (30) days after the Trigger date which would be thirty days after the later of the issuance of the SEIS or SER or forty-five (45) days before a scheduled hearing.18 Neither of which has occurred at this point in time. Thus the Boards conclusion that FENOCs Motion to Dismiss and the responsive filings to that motion were untimely is contrary to the ISO and constitutes clear and material error that the parties could not have reasonable anticipated. Consequently, for the compelling circumstances shown, the Board should consider FENOCs Motion to Dismiss Contention 1 as Moot on its merits.

C. The Board Should Clarify the Scope and Application of the ISO The Boards Order has muddled the scope and application of the ISO to the parties filing, especially as it relates to dispositive motions. By the Boards Order, it is now unclear as to when a dispositive motion can and should be filed. This uncertainty is likely to lead to a significant waste of resources by the Board and the parties over the proper timing of certain motions and responses. Even if the Board were to deny FENOCs Motion, it should clarify and correct the inconsistencies between its Order and the ISO, so that the parties will be able to meet the Boards future expectations.

CONCLUSION The Board made a clear and material error by declaring the Motion to Dismiss and the responsive filings untimely. Section C of the ISO clearly governs the timing for filing and 17 Transcript of FirstEnergy Nuclear Operating Co., Davis-Besse Nuclear Power Station, Telephone Conference on Thursday, May 19, 2011 at 262-63 (May 19,2011) (ADAMS Accession No. ML11146A066).

18 As discussed by FENOC, other Boards have not applied § 2.323(a)s 10-day trigger to motions to dismiss. FENOCs Motion at 4 - 6. Each Board cited by FENOC would have rejected the motion before it as untimely had they applied Orders application of Section 2.323(a)s been appropriate. These other Boards, however, granted the motions. Section C of the ISO sets forth the appropriate timing for FENOCs motion to dismiss and is consistent with other Boards ruling in similar motions.

responding to any dispositive motion including motions to dismiss a contention as moot. Here, all parties filed their respective pleadings in accordance with Section C of the ISO and interpreted that as the governing section. As such, the parties could not have reasonably anticipated that the Board would reject FENOCs Motion as not timely and implicitly alter or reverse its ISO. The Board should reconsider FENOCs Motion to Dismiss Contention 1 on the merits and clarify the applicability of the ISO to future filings in this proceeding. The narrow filing deadline for dispositive motions, as suggested by the Boards Order, could result in a significant waste of judicial resources by the Board and parties as issues that are no longer in dispute would be forced to continue to hearing. Therefore the Board should grant FENOCs motion and reconsider its Order.

Respectfully submitted,

/Signed (electronically) by/

Lloyd B. Subin Counsel for NRC Staff Date of signature: January 23, 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) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS RESPONSE IN SUPPORT OF FIRST ENERGYS MOTION FOR RECONSIDERATION OF THE BOARDS ORDER DENYING MOTION TO DISMISS CONTENTION 1 in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 23rd day of January, 2012.

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 Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: william.kastenberg@nrc.gov

Hillary Cain, Law Clerk 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: hillary.cain@nrc.gov E-mail: djenkins@firstenergycorp.com Derek Coronado Morgan, Lewis & Bockius Citizens Environmental Alliance (CEA) Pennsylvania Avenue, NW of Southwestern Ontario Washington, D.C. 20004 1950 Ottawa Street Stephen Burdick, Esq.

Windsor, Ontario Canada N8Y 197 E-mail: sburdick@morganlewis.com Email: dcoronado@cogeco.net Alex Polonsky, Esq.

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

6930 Carroll Avenue, Suite 400 E-mail: ksutton@morganlewis.com Takoma Park, MD 20912 Timothy Matthews, Esq.

Paul Gunter E-mail: tmatthews@morganlewis.com E-mail: paul@beyondnuclear.com Mary Freeze, Legal Secretary Kevin Kamps E-mail: mfreeze@morganlewis.com Email: Kevin@beyondnuclear.com Anita Rios Michael Keegan Green Party of Ohio Dont Waste Michigan 2626 Robinwood Avenue 811 Harrison Street Toledo, Ohio 43610 Monroe, Michigan 48161 Email: rhannon@toast.net E-mail: mkeeganj@comcast.net

/Signed (electronically) by/

Lloyd B. Subin Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1988 E-mail: Lloyd.Subin@nrc.gov Date of signature: January 23, 2012