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| {{#Wiki_filter:November 2 1, 2017 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of | | {{#Wiki_filter:}} |
| ) ) ENTERGY OPERATIONS, INC. ) Docket No. 50
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| -4 58-LR ) (River Bend Station, Unit 1)
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| ) NRC STAFF'S ANSWER TO ENTERGY'S MOTION TO STRIKE PORTIONS OF SIERRA CLUB REPLY TO ANSWERS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission ("NRC Staff" or "Staff") hereby submits its answer to the motion to strike portions of the Sierra Club's Reply, filed by Entergy Operations, Inc. ("Entergy"
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| ) on November 17, 201 7.0F 1 In i ts Motion, Entergy seeks to strike the n ew facts and arguments that were presented for the first time in "Sierra Club's Reply to Answers Opposing Sierra Club's Petition to Intervene" ("Reply"), which the Sierra Club filed on November 13, 2017. For the reasons stated in Entergy's Motion and in the discussion below, the Staff supports the Motion and recommends that it be granted.
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| BACKGROUND O n May 25, 2017, Entergy submitted, on behalf of itself and Entergy Louisiana, LLC (collectively, "Applicant")
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| an application to renew the operating license for River Bend Station, 1 "Motion to Strike Portions of Sierra Club Reply to Answers" (Nov.
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| 17, 2017) ("Motion").
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| As noted in the "Consultation" page appended to the Motion, during consultations with Entergy's Counsel prior to filing of the Motion, the NRC Staff stated that it "supports the Motion and intends to file an answer" thereto.
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| Unit 1 ("River Bend" or "RBS")
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| for a period of 20 years following expiration of the current license.1F 2 On August 14, 2017, the NRC published a notice of opportunity for hearing on the license renewal application ("LRA")
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| , requiring that petitions for leave to intervene and requests for hearing be filed within 60 days of publication of the Notice.
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| 2F 3 On October 12, 2017, the Sierra Club timely filed its petition to intervene and request for hearing, in which it presented three contentions for litigation.
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| 3F 4 On October 18, 2017, this Board was established to rule on petitions to intervene and hearing requests, and to preside over any proceeding that may be held.
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| 4F 5 On November 6, 2017, Entergy and the Staff filed their answers to the Sierra Club's Petition, in which they respon ded to the Sierra Club's contentions as presented in the Petition
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| .5F 6 In their answers, both the Staff and Entergy pointed out , inter alia
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| , that the Sierra Club had failed to point to specific statements or sections in the Applicant's LRA or Environmental Report ("ER") which it contest ed.6F 7 O n November 13, 2017, the Sierra Club filed its Reply, in which it 2 Letter from William F. Maguire
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| ,(Entergy) to NRC Document Control Desk, Re: License Renewal Application, River Bend Station
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| - Unit 1, Docket No. 50
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| -458, License No. NPF-47, RBG-47735 (May 25, 2017) (Agencywide Documents Access and Management System ("ADAMS")
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| Document Package Accession No. ML17153A282) ("LRA"). 3 Entergy Operations, Inc., River Bend Station, Unit 1; License renewal application; opportunity to request a hearing and to petition for leave to intervene, 82 Fed. Reg. 37,908, 37,909 (Aug. 14, 2017) ("Notice").
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| 4 Petition to Intervene and Request for Adjudicatory Hearing by Sierra Club ("Petition") (Oct.
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| 12, 2017) (ADAMS Accession No. ML17285B126).
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| 5 Entergy Operations, Inc.; Establishment of Atomic Safety and Licensing Board, 82 Fed. Reg. 49,233 (Oct. 24, 2017).
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| 6 See (1) "Entergy's Answer Opposing Sierra Club's Petition to Intervene and Request for Adjudicatory Hearing" (Nov. 6, 2017) ("Entergy's Answer"), and (2) "NRC Staff's Response to Petition to Intervene and Request for Hearing Filed by the Sierra Club" (Nov. 6, 2017) ("Staff Response"). 7 See, e.g., Entergy's Answer at 2, 12, 13-15, 22, 23
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| -24 , and 25-26; Staff Response at 22, 25-26, 27-28, 30, and 31-33. presented various new facts and arguments, including new challenges to specific statements or sections in the LRA and ER. On November 17, 2017, Entergy filed its Motion. As explained in the Motion and in the discussion below, the Sierra Club's assertion of new facts and arguments in its Reply is untimely, contravenes the Commission's requirements governing the admissibility of contentions, and unfairly deprives other parties of an opportunity to respond. In accordance with well
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| -established Commission jurisprudence, portions of the Sierra Club's Reply
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| , as identified in Entergy's Motion
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| , should be stricken.
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| DISCUSSION I. Legal Standards Governing the Filing of a Reply As discussed in the Staff's Response, 7F 8 the Commission's regulations in 10 C.F.R.
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| § 2.309(f)(1) require that a petition for leave to intervene must set forth i t s contentions, including "a specific statement of the issue of law or fact to be raised or controverted
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| ," "a brief explanation of the basis for the contention
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| ," and "a concise statement of the alleged facts or expert opinions which support the . . . petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the . . . petitioner intends to rely to support its position on the issue
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| ."8F 9 Moreover, for each contention, the request or petition "must":
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| 8 See Staff Response at 7
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| -12. 9 10 C.F.R. § 2.309(f)(1)(i), (ii), and (v). Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief
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| .9F 10 In addition, the rule requires that:
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| Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting documen t filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the appli cant's environmental report.
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| 10F11 As stated in 10 C.F.R. § 2.309(i), the applicant, Staff, and other parties may file answers to the petition and the petitioner's contentions
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| ;11F12 the petitioner may then file a reply to th os e answer s.12F13 The rule specifies that "[n]o other written answers or replies will be entertained."
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| 13F14 As the Commission has remarked, the purpose for allowing a petitioner to file a reply is to give the petitioner an opportunity to address arguments presented in answers opposing its petition or contentions
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| .14F 15 A reply may not, however, introduce new arguments or support for a
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| 10 10 C.F.R. § 2.309(f)(1)(v i). 11 10 C.F.R. § 2.309(f)(2)
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| . 12 10 C.F.R. § 2.309(i)(1).
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| 13 10 C.F.R. § 2.309(i)(2). 14 10 C.F.R. § 2.309(i)(3). Thus, parties opposing the Reply have no opportunity to respon d thereto. 15 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI 25, 60 NRC 223, 22 5 (2004), reconsideration denied, CLI-04-35, 60 NRC 619 (2004).
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| contention, expand the scope of arguments contained in the contention , or attempt to cure a defective petition or contention
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| .15F16 In this regard, the Commission has stated as follows:
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| 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 original petition or raised in the answers to it. New bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late
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| -filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2). While a petitioner need not introduce at the contention phase every document on which it will rely in a hearing, if the contention as originally pled did not cite adequate documentary support, a petitioner cannot remediate the deficiency by introducing in the reply documents that were available to it during the time frame for initially filing contentions. Allowing new claims in a reply not only would defeat the contention
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| -filing deadline, but would unfairly deprive other participants of an opportunity to rebut the new claims.16F 17 The requirement that petitions to intervene must set forth all of a petitioner's arguments and provide the documentary support underlying each contention reflects the Commission's interest in conducting fair and efficient adjudicatory proceedings.
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| 17F18 The Commission has observed that to allow petitioners to use "reply briefs to provide, for the first time, the necessary threshold support for contentions . . . would effectively bypass and eviscerate [the
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| 16 Id. at 2 24-25; Nuclear Management Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 351-63 (refusing to consider a reply's references to documents that were not included in the petition), aff'd , CLI-06-17, 63 NRC 727, 732 (2006)
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| . 17 Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI 17, 63 NRC 727, 732 (2006)
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| (emphasis added). The principle that new arguments may not be presented for the first time in a reply applies, as well, to pleadings filed regarding other matters in litigation. See, e.g., USEC, Inc. (American Centrifuge Plant), CLI 9, 63 NRC 433, 439 (2006)
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| (in declining to consider portions of a appellant's reply brief that were not contained in its initial brief, noting that "[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")
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| ; Entergy Nuclear Operations, Inc.
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| (Indian Point, Units 2 and 3), CLI 14, 74 NRC 801, 810 n.50 (2011) (declining to consider new material contained in a reply brief on summary disposition, in that "we do not consider new material raised for the first time in a reply"
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| ). 18 LES, CLI-04-35, 60 NRC at 62 2-2 3. Commission's] rules governing timely filing, contention amendment, and submission of late
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| -filed contentions."
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| 18F 19 As the Commission also observed, the rules require strict adherence to contention admissibility standards and demand discipline and preparedne ss by petitioners.
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| 19F 20 Such discipline is necessary in that "there would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements" and raise untimely arguments which they "either originally opted not to make or which simply did not occur to [them] at the outset."
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| 20F21 Significantly, petitioners may not "initially file vague, unsupported, and generalized allegations and simply recast, support , or cure them later."21F22 While petitioners are not required "to prove their case, or to provide an exhaustive list of possible bases," they are required to provide "sufficient alleged factual or legal bases to support the contention, and to do so at the outset."
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| 22F 23 Likewise, petitioners may not use a reply to reinvigorate thinly supported contentions.
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| 23F 24 In sum , the Commission's rules afford a petitioner an "ample" 60 day period in which to file its petition and contentions.
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| 24F 25 A s required by 10 C.F.R. § 2.309(f)(2), contentions must be
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| 19 Id. at 623. 20 LES, CLI-04-25, 60 NRC at 224
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| -225. 21 Id. at 2 25. 22 LES, CLI-04-35, 60 NRC at 622
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| -23 (emphasis added)
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| . 23 Id.; see also Dominion Nuclear Connecticut, Inc.
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| (Millstone Power Station, Unit 3) CLI 17, 68 NRC 231, 237 n.27 (2008).
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| 24 LES, CLI-04-25, 60 NRC at 224.
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| 25 See Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2197, 2199 (Jan. 14, 2004) (stating the Commission's view that its "notice provisions , in conjunction with an expanded period of sixty (60) days in which to file a request for hearing/petition to intervene and contentions, will provide more than ample time for a potential requestor/intervenor to review the application, prepare a filing on standing, and develop proposed contentions and reference to materials in support of the contentions")
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| (emphasis added). based on documents or other information available at the time the petition is filed. A petitioner's untimely attempt to use its reply to amend a defective petition or contention by introducing new arguments or support must be rejected on two grounds: (a) for failing to satisfy the late
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| -filing factors in 10 C.F.R. §§ 2.309(c) and (f)(2), 25F 26 and (b) for unfairly depriving other participants of an opportunity to rebut the newly asserted claims.
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| 26F 27 These standards have been consistently applied by Licensing Boards in numerous other proceedings, where the Boards have repeatedly struck, or declined to consider, new information and argument s first presented in a reply.
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| 27F28 II. The New Information and Arguments in Sierra Club's Reply Should Be Stricken In its Petition, the Sierra Club set out three contentions for litigation, as follows:
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| Sierra Club Contention 1 The environmental report submitted by Entergy Operations does not properly and adequately state a purpose and need for the relicensing of River Bend Station.
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| Sierra Club Contention 2 In examining the no action alternative, the ER improperly failed to include renewable energy and energy efficiency as a consequence of the River Bend license not being renewe
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| : d. Sierra Club Contention 3 The LRA does not undertake an adequate aging management review of the concrete on the containment vessel.
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| In support of these contentions, the Sierra Club provided lengthy argument, but generally failed to point to any statement in the Applicant's LRA or Environmental Report ("ER") which it
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| 26 LES, CLI-04-25, 60 NRC at 224.
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| 27 Palisades, CLI-06-17, 63 NRC at 732.
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| 28 See e.g., Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 and 4), LBP-08-16, 68 NRC 361, 376
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| -77, 399-400, 407, 429 (2008);
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| PPL Susquehanna, LLC (Susquehanna Steam Electric Station, Units 1 and 2), LPB 04, 65 NRC 281, 301
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| -302 (2007)
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| ; Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.
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| (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 198
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| -199 (2006)
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| . believed were deficient. In their answers to the Petition, E ntergy and the NRC Staff pointed out, inter alia, that the Petition failed to satisfy the Commission's contention admissibility requirements including, in particular, the requirements of 10 C.F.R.
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| § 2.309(f)(1)(iv)
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| -(vi). In its Reply, the Sierra Club now seeks to remedy those deficiencies
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| . As shown in Entergy's Motion , the Reply presents numerous new facts and arguments, including new references to statements or discussions in the Applicant's LRA and ER which it now contends are deficient. The Staff has reviewed each of Entergy's requested deletions, and concurs that each of those statements should be stricken from the Reply
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| .28F29 Each of those statements could have been, but were not, presented by the Sierra Club i n its Petition on October 12, 2017. If the Sierra Club had included the new material in its Petition, its assertions would have been timely, as required by 10 C.F.R. § 2.309(b)(3)
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| - and the Staff and Applicant would have had an opportunity to address that material in their answers to the Petition. The Sierra Club's failure to include the new assertions in its Petition requires that those assertions be stricken from its Reply
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| , in accordance with established Commission case law.
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| 29F30 Moreover, the Sierra Club has not made any showing of "good cause" as to why the new material could not have been presented earlier, as required by 10 C.F.R. § 2.309(c).
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| 30F31 To allow this untimely 29 Indeed, prior to Entergy's filing of its Motion, the Staff was preparing to file its own motion to strike portions of the Reply. During consultations on Entergy's proposed Motion, the Staff compared its own proposed deletions with the deletions proposed by Entergy, and confirmed that it agreed with each of Entergy's proposed deletions.
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| 30 LES, CLI-04-25, 60 NRC at 224
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| -225; cf. Millstone, CLI-08-17, 68 NRC at 237 n.27.
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| 31 In accordance with 10 C.F.R. § 2.309(c), motions for leave to file new or amended contentions after the initial deadline in § 2.309(b) "will not be entertained" by the presiding officer absent a demonstration of "good cause," showing that "(i) [t]he information upon which the filing is based was not previously available; (ii)
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| [t]he information upon which the filing is based is materially different from information previously available; and (iii) [t]he filing has been submitted in a timely fashion based on the availability of the subsequent information."
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| information and argument to support the admission of a contention at this point, when other parties have no opportunity to address them in a ny substantive manner, would be unfair.
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| 31F32 CONCLUSION Entergy's Motion correctly observes that the Sierra Club's Reply includes new arguments and information in support of Contentions 1, 2 and 3 that are impermissible in a reply brief. The Staff's review of the Motion and the attached strikeout of the Sierra Club's Reply confirms that the statements sought to be stricken by Entergy, properly should be stricken. Accordingly, the Staff supports the Motion and recommends that it be granted.
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| Respectfully submitted, /Signed (electronically) by/
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| Sherwin E. Turk Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop
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| - O-14-A44 Washington, DC 20555 Telephone: (301) 287
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| -9194 E-mail: Sherwin.Turk@nrc.gov Executed in Accord with 10 C.F.R.
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| § 2.304(d): David E. Roth Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop
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| - O-14-A44 Washington, DC 20555 Telephone: (301) 287
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| -9121 E-mail: David.Roth@nrc.gov Dated at Rockville, Maryland this 2 1 st day of November 2017
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| 32 Palisades, CLI-06-17, 63 NRC at 732.
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| UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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| ) ) ENTERGY OPERATIONS, INC.
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| ) Docket No. 50
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| -458-LR ) (River Bend Station, Unit 1)
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| ) CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER TO ENTERGY'S MOTION TO STRIKE PORTIONS OF SIERRA CLUB REPLY TO ANSWERS
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| " dated November 2 1, 201 7 , have been served upon the Electronic Information Exchange (the NRC's E
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| -Filing System), in the above
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| -captioned proceeding, this 2 1 st day of November, 2017.
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| /Signed (electronically) by/
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| Sherwin E. Turk Special Counsel for Litigation Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop
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| - O-14-A44 Washington, DC 20555 Telephone: (301) 287
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| -9194 E-mail: Sherwin.Turk@nrc.gov}}
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