ML13053A185: Difference between revisions

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{{#Wiki_filter:DB1/ 73046465.3 1  UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
{{#Wiki_filter:UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
              )
                                                                  )
In the Matter of       )  
In the Matter of                                                 )
        ) Docket Nos. 50-361-CAL & 50-362-CAL SOUTHERN CALIFORNIA EDISON COMPANY )  
                                                                  ) Docket Nos. 50-361-CAL & 50-362-CAL SOUTHERN CALIFORNIA EDISON COMPANY )
        )
                                                                  )
(San Onofre Nuclear Generating Station,   ) February 22, 2013 Units 2 and 3)     )
(San Onofre Nuclear Generating Station,                         ) February 22, 2013 Units 2 and 3)                                       )
      ) SOUTHERN CALIFORNIA EDISON COMPANY'S MOTION TO STRIKE PORTIONS OF DECLARATION OF JOHN LARGE I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323, Southern California Edison Company ("SCE") files this Motion to strike portions of "Comments on the NRC and SCE Responses of January 30, 2013, Declaration of John Large" ("Larg e Declaration"), which is att ached to the "Reply Brief of Petitioner Friends of the Earth"
                                                                  )
("Reply"), dated February 13, 2013.
SOUTHERN CALIFORNIA EDISON COMPANYS MOTION TO STRIKE PORTIONS OF DECLARATION OF JOHN LARGE I.       INTRODUCTION Pursuant to 10 C.F.R. § 2.323, Southern California Edison Company (SCE) files this Motion to strike portions of Comments on the NRC and SCE Responses of January 30, 2013, Declaration of John Large (Large Declaration), which is attached to the Reply Brief of Petitioner Friends of the Earth (Reply), dated February 13, 2013.1 As discussed below, portions of the Large Declaration should be struck to the extent that the Large Declaration impermissibly and untimely includes new arguments beyond the scope of issues raised in SCEs and the Nuclear Regulatory Commission (NRC) Staffs briefs. Accordingly, SCE requests that the Atomic Safety and Licensing Board (Board) strike those arguments.2 1
1 As discussed below, portions of the Large Declarati on should be struck to the exte nt that the Large Declaration impermissibly and untimely includes new arguments beyond the scope of issues raised in SCE's and the Nuclear Regulatory Commi ssion ("NRC") Staff's briefs.
FOE filed a revised Large Declaration on February 20, 2013 to include a notary page, but the revised declaration did not include any substantive changes that would affect this Motion.
Accordingly, SCE requests that the Atomic Safety and Licensing Board ("Board") strike those arguments.
2 Counsel for SCE certifies under 10 C.F.R. § 2.323(b) that it has contacted representatives of Friends of the Earth (FOE) and the NRC Staff and made a sincere effort to resolve the issues set forth in this Motion, and that these efforts to resolve the issues have been unsuccessful. Counsel for FOE stated that FOE opposes the Motion. Counsel for the NRC Staff stated that the Staff has no objection to SCE filing the Motion, but reserves its right to respond to the actual contents of the Motion.
2 1 FOE filed a revised Large Declaration on February 20, 2013 to include a notary page, but the revised declaration did not include any substantive changes that would affect this Motion.
DB1/ 73046465.3                                               1
2 Counsel for SCE certifies under 10 C.F.R. § 2.323(b) that it has contacted representatives of Friends of the Earth ("FOE") and the NRC Staff and made a sincere effort to resolve the issues set forth in this Motion, and that these efforts to resolve the issues have been unsuccessful. Counsel for FOE stated that FOE opposes the Motion. Counsel for the NRC Staff stated that the Staff has no objection to SCE filing the Motion, but reserves its right to respond to the actual contents of the Motion.
DB1/ 73046465.3 2  II. BACKGROUND On November 8, 2012, the Commission issued decision CLI-12-20 referring to the Board a portion of FOE's June 18, 2012 intervention pe tition, which argued that the March 27, 2012 Confirmatory Action Letter ("CAL") issued by the NRC to SCE requires a license amendment.
3  On December 7, 2012, the Board issued an order for the briefing of the issues referred by the Commission, and additional i ssues identified by the Board.
4  On December 20, 2012, the Board issued another order clarifying the schedule and document disclosure requirements of the participants.
5    Following these orders, FOE filed its initial brief on January 11, 2013, 6 along with affidavits from John Large 7 and Arnold Gundersen.
8  The Natural Resources Defense Council then filed its amicus brief on January 18, 2013.
9  On January 30, 2013, SCE and the NRC Staff filed their answering briefs, arguing that the CAL is not a de facto license amendment and FOE's petition to intervene should be rejected.
10  Thereafter, the Board granted FOE's request for an extension to file its Reply.
11  FOE filed its Reply and the La rge Declaration on February 13, 2013.


3 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC __, slip op. at 4-5 (Nov. 8, 2012).
II.      BACKGROUND On November 8, 2012, the Commission issued decision CLI-12-20 referring to the Board a portion of FOEs June 18, 2012 intervention petition, which argued that the March 27, 2012 Confirmatory Action Letter (CAL) issued by the NRC to SCE requires a license amendment.3 On December 7, 2012, the Board issued an order for the briefing of the issues referred by the Commission, and additional issues identified by the Board.4 On December 20, 2012, the Board issued another order clarifying the schedule and document disclosure requirements of the participants.5 Following these orders, FOE filed its initial brief on January 11, 2013,6 along with affidavits from John Large7 and Arnold Gundersen.8 The Natural Resources Defense Council then filed its amicus brief on January 18, 2013.9 On January 30, 2013, SCE and the NRC Staff filed their answering briefs, arguing that the CAL is not a de facto license amendment and FOEs petition to intervene should be rejected.10 Thereafter, the Board granted FOEs request for an extension to file its Reply.11 FOE filed its Reply and the Large Declaration on February 13, 2013.
4 Order (Conference Call Summary and Directives Relating to Briefing), at 5 (Dec. 7, 2012) (unpublished).
3 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC
5 Order (Granting in Part and Denying in Part Petitioner's Motion for Clarification and Extension), at 5 (Dec. 20, 2012) (unpublished).
__, slip op. at 4-5 (Nov. 8, 2012).
6 Opening Brief of Petitioner Friends of the Earth (Jan. 11, 2013).
4 Order (Conference Call Summary and Directives Relating to Briefing), at 5 (Dec. 7, 2012) (unpublished).
7 Response to Atomic Safety and Licensing Board's Factual Issues, 1st Affidavit of John H Large (Jan. 10, 2013).
5 Order (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension), at 5 (Dec. 20, 2012) (unpublished).
8 Gundersen Affidavit (Jan. 9, 2013).
6 Opening Brief of Petitioner Friends of the Earth (Jan. 11, 2013).
9 Natural Resources Defense Council's Amicus Response in Support of Friends of the Earth (Jan. 18, 2013).
7 Response to Atomic Safety and Licensing Boards Factual Issues, 1st Affidavit of John H Large (Jan. 10, 2013).
10 Southern California Edison Company's Brief on Issues Referred by the Commission (Jan. 30, 2013); NRC Staff's Answering Brief in the San Onofre Nuclear Generating Station CAL Proceeding (Jan. 30, 2013).
8 Gundersen Affidavit (Jan. 9, 2013).
11 Order (Granting Petitioner's Motion for Extension of Time) (Feb. 1, 2013) (unpublished).
9 Natural Resources Defense Councils Amicus Response in Support of Friends of the Earth (Jan. 18, 2013).
DB1/ 73046465.3 3  III. LEGAL STANDARDS It is axiomatic that a reply provides a petitioner the opportunity to oppose or support arguments raised in the opposing parties' answers to its original filing. Consequently, it is not surprising that the Commission has long held that a reply may not be used as a vehicle to introduce for the first time new arguments not contained either in an answer or in the original filing.12  As the Commission has stated, it disapproves of the tactic of seeking to present new arguments in a reply brief rather than in an initi al brief, because the tactic deprives the other parties of an opportunity to re spond directly to the substantive arguments in the reply brief.
10 Southern California Edison Companys Brief on Issues Referred by the Commission (Jan. 30, 2013); NRC Staffs Answering Brief in the San Onofre Nuclear Generating Station CAL Proceeding (Jan. 30, 2013).
13  This tactic also deprives the Board and Commission of those responses.
11 Order (Granting Petitioners Motion for Extension of Time) (Feb. 1, 2013) (unpublished).
IV. BASES FOR MOTION TO STRIKE FOE was required, as a matter of due process and fundamental fairness, to include all of its arguments in its initial filing. As demonstr ated below, SCE's Motion should be granted and FOE's Large Declaration struck to the extent it raises issues for the first time that were not raised in SCE's or the NRC Staff's briefs.
DB1/ 73046465.3                                             2
14    For example, Paragraphs 8 and 9 of the Karw oski Affidavit attached to the Staff's brief demonstrate that the actions listed in the March 27 CAL are already authorized (referring to


12 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-11-14, 74 NRC __, slip op. at 10 (Dec. 22, 2011) (stating that the Commission has "long held that a reply may not contain new information that was not raised in either the petition or answers").
III. LEGAL STANDARDS It is axiomatic that a reply provides a petitioner the opportunity to oppose or support arguments raised in the opposing parties answers to its original filing. Consequently, it is not surprising that the Commission has long held that a reply may not be used as a vehicle to introduce for the first time new arguments not contained either in an answer or in the original filing.12 As the Commission has stated, it disapproves of the tactic of seeking to present new arguments in a reply brief rather than in an initial brief, because the tactic deprives the other parties of an opportunity to respond directly to the substantive arguments in the reply brief.13 This tactic also deprives the Board and Commission of those responses.
13 See Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-05-14, 61 NRC 359, 361-62 n.7 (2005). In the context of petitions to intervene, there are several precedents striking or refusing to consider replies that raised new arguments or information.
IV.      BASES FOR MOTION TO STRIKE FOE was required, as a matter of due process and fundamental fairness, to include all of its arguments in its initial filing. As demonstrated below, SCEs Motion should be granted and FOEs Large Declaration struck to the extent it raises issues for the first time that were not raised in SCEs or the NRC Staffs briefs.14 For example, Paragraphs 8 and 9 of the Karwoski Affidavit attached to the Staffs brief demonstrate that the actions listed in the March 27 CAL are already authorized (referring to 12 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-11-14, 74 NRC __, slip op. at 10 (Dec. 22, 2011) (stating that the Commission has long held that a reply may not contain new information that was not raised in either the petition or answers).
See, e.g.
13 See Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-05-14, 61 NRC 359, 361-62 n.7 (2005).
, Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 182, 198-99 (2006) (granting in part a motion to strike and finding that petitioners impermissibly "expand[ed] their arguments" by filing a second declaration from their expert in a reply brief that provided additional detail regarding the original arguments); Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 351-63 (refusing to consider references to various documents identified in a petitioner's reply that were not included in the original petition), aff'd , CLI-06-17, 63 NRC 727 (2006). 14 See, e.g., Palisades, CLI-06-17, 63 NRC at 732 ("Allowing new claims in a reply . . . would unfairly deprive other participants of an opportunity to rebut the new claims."); see also La. Energy Servs., L.P. (Nat'l Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) ("In Commission practice, and in litigation practice generally, new arguments may not be raised for the first time in a reply brief.").
In the context of petitions to intervene, there are several precedents striking or refusing to consider replies that raised new arguments or information. See, e.g., Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 182, 198-99 (2006) (granting in part a motion to strike and finding that petitioners impermissibly expand[ed] their arguments by filing a second declaration from their expert in a reply brief that provided additional detail regarding the original arguments); Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 351-63 (refusing to consider references to various documents identified in a petitioners reply that were not included in the original petition), affd, CLI-06-17, 63 NRC 727 (2006).
DB1/ 73046465.3 4  Attachment 1 of the Affidavit). In turn, Attachment 1 of the Karwoski Affidavit demonstrates that specified statements in the CAL are author ized by Criterion XVI of Appendix B to 10 C.F.R.
14 See, e.g., Palisades, CLI-06-17, 63 NRC at 732 (Allowing new claims in a reply . . . would unfairly deprive other participants of an opportunity to rebut the new claims.); see also La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (In Commission practice, and in litigation practice generally, new arguments may not be raised for the first time in a reply brief.).
Part 50. Section 13 of the Large Declaration uses Attachment 1 of the Karwoski Affidavit as an inappropriate basis for launching into a lengthy discussion of matters that are irrelevant to the Karwoski Affidavit. In particular, the Large Declaration discusses SCE's compliance with Criteria III and VI of Appendix B - - criteria that are nowhere addressed in the Karwoski Affidavit. Indeed, the Large Declaration (Par agraph 13.5) concedes that these criteria are not addressed in the Karwoski Affidavit. Furthermore, although the Large Declaration briefly discusses Criterion XVI, it does not address whether the statements in the March 27 CAL are authorized by Criterion XVI (which is the subj ect of the Karwoski Affidavit). Instead, it discusses whether SCE has complied with Criterion XVI - - an issue that is not addressed in the Karwoski Affidavit. Therefore, those arguments in the Large Declaration should be stricken for raising issues not addressed in th e briefs of the Staff or SCE. Similarly, Section 14 of the Large Declaration (referring to Attachment 1 of the Karwoski Affidavit) discusses compliance of SCE with the San Onofre Technical Specifications and whether all of the restart activities require a license amendment. However, Attachment 1 of the Karwoski Affidavit does not address that issue. Instead, it discusses whether the statements in the March 27 CAL are encompassed within the pr ovisions of the Tec hnical Specifications. The Board should strike the discussion of these new issues that are impermissibly raised for the first time in the Large Declaration. Thes e passages are not focused on the legal or logical arguments presented in the briefs of SCE and the NRC Staff. Instead, FOE provides new information in the Large Declaration, to which SCE and the NRC Staff are not allowed to respond. Accordingly, the new arguments should be stricken.
DB1/ 73046465.3                                               3
DB1/ 73046465.3 5  V. CONCLUSION For the foregoing reasons, the Board should strike the new arguments and information impermissibly provided in the Large Declaration. Specifically, SCE respectfully requests the Board to strike Sections 13 and 14 of the Large Declaration. Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) /s/ Steven P. Frantz Steven P. Frantz Stephen J. Burdick


Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.  
Attachment 1 of the Affidavit). In turn, Attachment 1 of the Karwoski Affidavit demonstrates that specified statements in the CAL are authorized by Criterion XVI of Appendix B to 10 C.F.R.
Part 50. Section 13 of the Large Declaration uses Attachment 1 of the Karwoski Affidavit as an inappropriate basis for launching into a lengthy discussion of matters that are irrelevant to the Karwoski Affidavit. In particular, the Large Declaration discusses SCEs compliance with Criteria III and VI of Appendix B - - criteria that are nowhere addressed in the Karwoski Affidavit. Indeed, the Large Declaration (Paragraph 13.5) concedes that these criteria are not addressed in the Karwoski Affidavit. Furthermore, although the Large Declaration briefly discusses Criterion XVI, it does not address whether the statements in the March 27 CAL are authorized by Criterion XVI (which is the subject of the Karwoski Affidavit). Instead, it discusses whether SCE has complied with Criterion XVI - - an issue that is not addressed in the Karwoski Affidavit. Therefore, those arguments in the Large Declaration should be stricken for raising issues not addressed in the briefs of the Staff or SCE.
Similarly, Section 14 of the Large Declaration (referring to Attachment 1 of the Karwoski Affidavit) discusses compliance of SCE with the San Onofre Technical Specifications and whether all of the restart activities require a license amendment. However, Attachment 1 of the Karwoski Affidavit does not address that issue. Instead, it discusses whether the statements in the March 27 CAL are encompassed within the provisions of the Technical Specifications.
The Board should strike the discussion of these new issues that are impermissibly raised for the first time in the Large Declaration. These passages are not focused on the legal or logical arguments presented in the briefs of SCE and the NRC Staff. Instead, FOE provides new information in the Large Declaration, to which SCE and the NRC Staff are not allowed to respond. Accordingly, the new arguments should be stricken.
DB1/ 73046465.3                                      4


Washington, D.C. 20004  
V. CONCLUSION For the foregoing reasons, the Board should strike the new arguments and information impermissibly provided in the Large Declaration. Specifically, SCE respectfully requests the Board to strike Sections 13 and 14 of the Large Declaration.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
                                              /s/ Steven P. Frantz Steven P. Frantz Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5460 E-mail: sfrantz@morganlewis.com Douglas Porter Director and Managing Attorney Generation Policy and Resources Law Department Southern California Edison Company 2244 Walnut Grove Avenue GO1, Q3B, 335C Rosemead, CA 91770 Phone: 626-302-3964 E-mail: Douglas.Porter@sce.com Counsel for Southern California Edison Company Dated in Washington, D.C.
this 22nd day of February 2013 DB1/ 73046465.3                                    5


Phone:  202-739-5460 E-mail:  sfrantz@morganlewis.com
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
 
                                                          )
Douglas Porter
In the Matter of                                         )
 
                                                          ) Docket Nos. 50-361-CAL & 50-362-CAL SOUTHERN CALIFORNIA EDISON COMPANY )
Director and Managing Attorney
                                                          )
 
(San Onofre Nuclear Generating Station,                   ) February 22, 2013 Units 2 and 3)                                 )
Generation Policy and Resources Law Department Southern California Edison Company 2244 Walnut Grove Avenue GO1, Q3B, 335C Rosemead, CA 91770
                                                          )
 
CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Southern California Edison Companys Motion to Strike Portions of Declaration of John Large was filed through the E-Filing system.
Phone:  626-302-3964 E-mail:  Douglas.Porter@sce.com
Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
 
Washington, D.C. 20004 Phone: 202-739-5059 Fax: 202-739-3001 E-mail: sburdick@morganlewis.com Counsel for Southern California Edison Company DB1/ 73046465.3}}
Counsel for Southern California Edison Company Dated in Washington, D.C.
this 22nd day of February 2013 DB1/ 73046465.3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
              )
In the Matter of       )  
        ) Docket Nos. 50-361-CAL & 50-362-CAL SOUTHERN CALIFORNIA EDISON COMPANY )  
        )
(San Onofre Nuclear Generating Station,   ) February 22, 2013 Units 2 and 3)     )
      ) CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of "Southern California Edison Company's Motion to Strike Portions of Declaration of John Large" was filed through the E-Filing system.
Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.  
 
Washington, D.C. 20004  
 
Phone: 202-739-5059  
 
Fax: 202-739-3001 E-mail: sburdick@morganlewis.com  
 
Counsel for Southern California Edison Company}}

Latest revision as of 21:53, 4 November 2019

Southern California Edison Company'S Motion to Strike Portions of February 13, 2013 Declaration of John Large
ML13053A185
Person / Time
Site: San Onofre  Southern California Edison icon.png
Issue date: 02/22/2013
From: Burdick S, Frantz S, Porter D
Morgan, Morgan, Lewis & Bockius, LLP, Southern California Edison Co
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24144, 50-361-CAL, 50-362-CAL, ASBLP 13-924-01-CAL-BD01
Download: ML13053A185 (6)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket Nos. 50-361-CAL & 50-362-CAL SOUTHERN CALIFORNIA EDISON COMPANY )

)

(San Onofre Nuclear Generating Station, ) February 22, 2013 Units 2 and 3) )

)

SOUTHERN CALIFORNIA EDISON COMPANYS MOTION TO STRIKE PORTIONS OF DECLARATION OF JOHN LARGE I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323, Southern California Edison Company (SCE) files this Motion to strike portions of Comments on the NRC and SCE Responses of January 30, 2013, Declaration of John Large (Large Declaration), which is attached to the Reply Brief of Petitioner Friends of the Earth (Reply), dated February 13, 2013.1 As discussed below, portions of the Large Declaration should be struck to the extent that the Large Declaration impermissibly and untimely includes new arguments beyond the scope of issues raised in SCEs and the Nuclear Regulatory Commission (NRC) Staffs briefs. Accordingly, SCE requests that the Atomic Safety and Licensing Board (Board) strike those arguments.2 1

FOE filed a revised Large Declaration on February 20, 2013 to include a notary page, but the revised declaration did not include any substantive changes that would affect this Motion.

2 Counsel for SCE certifies under 10 C.F.R. § 2.323(b) that it has contacted representatives of Friends of the Earth (FOE) and the NRC Staff and made a sincere effort to resolve the issues set forth in this Motion, and that these efforts to resolve the issues have been unsuccessful. Counsel for FOE stated that FOE opposes the Motion. Counsel for the NRC Staff stated that the Staff has no objection to SCE filing the Motion, but reserves its right to respond to the actual contents of the Motion.

DB1/ 73046465.3 1

II. BACKGROUND On November 8, 2012, the Commission issued decision CLI-12-20 referring to the Board a portion of FOEs June 18, 2012 intervention petition, which argued that the March 27, 2012 Confirmatory Action Letter (CAL) issued by the NRC to SCE requires a license amendment.3 On December 7, 2012, the Board issued an order for the briefing of the issues referred by the Commission, and additional issues identified by the Board.4 On December 20, 2012, the Board issued another order clarifying the schedule and document disclosure requirements of the participants.5 Following these orders, FOE filed its initial brief on January 11, 2013,6 along with affidavits from John Large7 and Arnold Gundersen.8 The Natural Resources Defense Council then filed its amicus brief on January 18, 2013.9 On January 30, 2013, SCE and the NRC Staff filed their answering briefs, arguing that the CAL is not a de facto license amendment and FOEs petition to intervene should be rejected.10 Thereafter, the Board granted FOEs request for an extension to file its Reply.11 FOE filed its Reply and the Large Declaration on February 13, 2013.

3 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC

__, slip op. at 4-5 (Nov. 8, 2012).

4 Order (Conference Call Summary and Directives Relating to Briefing), at 5 (Dec. 7, 2012) (unpublished).

5 Order (Granting in Part and Denying in Part Petitioners Motion for Clarification and Extension), at 5 (Dec. 20, 2012) (unpublished).

6 Opening Brief of Petitioner Friends of the Earth (Jan. 11, 2013).

7 Response to Atomic Safety and Licensing Boards Factual Issues, 1st Affidavit of John H Large (Jan. 10, 2013).

8 Gundersen Affidavit (Jan. 9, 2013).

9 Natural Resources Defense Councils Amicus Response in Support of Friends of the Earth (Jan. 18, 2013).

10 Southern California Edison Companys Brief on Issues Referred by the Commission (Jan. 30, 2013); NRC Staffs Answering Brief in the San Onofre Nuclear Generating Station CAL Proceeding (Jan. 30, 2013).

11 Order (Granting Petitioners Motion for Extension of Time) (Feb. 1, 2013) (unpublished).

DB1/ 73046465.3 2

III. LEGAL STANDARDS It is axiomatic that a reply provides a petitioner the opportunity to oppose or support arguments raised in the opposing parties answers to its original filing. Consequently, it is not surprising that the Commission has long held that a reply may not be used as a vehicle to introduce for the first time new arguments not contained either in an answer or in the original filing.12 As the Commission has stated, it disapproves of the tactic of seeking to present new arguments in a reply brief rather than in an initial brief, because the tactic deprives the other parties of an opportunity to respond directly to the substantive arguments in the reply brief.13 This tactic also deprives the Board and Commission of those responses.

IV. BASES FOR MOTION TO STRIKE FOE was required, as a matter of due process and fundamental fairness, to include all of its arguments in its initial filing. As demonstrated below, SCEs Motion should be granted and FOEs Large Declaration struck to the extent it raises issues for the first time that were not raised in SCEs or the NRC Staffs briefs.14 For example, Paragraphs 8 and 9 of the Karwoski Affidavit attached to the Staffs brief demonstrate that the actions listed in the March 27 CAL are already authorized (referring to 12 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-11-14, 74 NRC __, slip op. at 10 (Dec. 22, 2011) (stating that the Commission has long held that a reply may not contain new information that was not raised in either the petition or answers).

13 See Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-05-14, 61 NRC 359, 361-62 n.7 (2005).

In the context of petitions to intervene, there are several precedents striking or refusing to consider replies that raised new arguments or information. See, e.g., Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 182, 198-99 (2006) (granting in part a motion to strike and finding that petitioners impermissibly expand[ed] their arguments by filing a second declaration from their expert in a reply brief that provided additional detail regarding the original arguments); Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 351-63 (refusing to consider references to various documents identified in a petitioners reply that were not included in the original petition), affd, CLI-06-17, 63 NRC 727 (2006).

14 See, e.g., Palisades, CLI-06-17, 63 NRC at 732 (Allowing new claims in a reply . . . would unfairly deprive other participants of an opportunity to rebut the new claims.); see also La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (In Commission practice, and in litigation practice generally, new arguments may not be raised for the first time in a reply brief.).

DB1/ 73046465.3 3

Attachment 1 of the Affidavit). In turn, Attachment 1 of the Karwoski Affidavit demonstrates that specified statements in the CAL are authorized by Criterion XVI of Appendix B to 10 C.F.R. Part 50. Section 13 of the Large Declaration uses Attachment 1 of the Karwoski Affidavit as an inappropriate basis for launching into a lengthy discussion of matters that are irrelevant to the Karwoski Affidavit. In particular, the Large Declaration discusses SCEs compliance with Criteria III and VI of Appendix B - - criteria that are nowhere addressed in the Karwoski Affidavit. Indeed, the Large Declaration (Paragraph 13.5) concedes that these criteria are not addressed in the Karwoski Affidavit. Furthermore, although the Large Declaration briefly discusses Criterion XVI, it does not address whether the statements in the March 27 CAL are authorized by Criterion XVI (which is the subject of the Karwoski Affidavit). Instead, it discusses whether SCE has complied with Criterion XVI - - an issue that is not addressed in the Karwoski Affidavit. Therefore, those arguments in the Large Declaration should be stricken for raising issues not addressed in the briefs of the Staff or SCE.

Similarly, Section 14 of the Large Declaration (referring to Attachment 1 of the Karwoski Affidavit) discusses compliance of SCE with the San Onofre Technical Specifications and whether all of the restart activities require a license amendment. However, Attachment 1 of the Karwoski Affidavit does not address that issue. Instead, it discusses whether the statements in the March 27 CAL are encompassed within the provisions of the Technical Specifications.

The Board should strike the discussion of these new issues that are impermissibly raised for the first time in the Large Declaration. These passages are not focused on the legal or logical arguments presented in the briefs of SCE and the NRC Staff. Instead, FOE provides new information in the Large Declaration, to which SCE and the NRC Staff are not allowed to respond. Accordingly, the new arguments should be stricken.

DB1/ 73046465.3 4

V. CONCLUSION For the foregoing reasons, the Board should strike the new arguments and information impermissibly provided in the Large Declaration. Specifically, SCE respectfully requests the Board to strike Sections 13 and 14 of the Large Declaration.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

/s/ Steven P. Frantz Steven P. Frantz Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5460 E-mail: sfrantz@morganlewis.com Douglas Porter Director and Managing Attorney Generation Policy and Resources Law Department Southern California Edison Company 2244 Walnut Grove Avenue GO1, Q3B, 335C Rosemead, CA 91770 Phone: 626-302-3964 E-mail: Douglas.Porter@sce.com Counsel for Southern California Edison Company Dated in Washington, D.C.

this 22nd day of February 2013 DB1/ 73046465.3 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket Nos. 50-361-CAL & 50-362-CAL SOUTHERN CALIFORNIA EDISON COMPANY )

)

(San Onofre Nuclear Generating Station, ) February 22, 2013 Units 2 and 3) )

)

CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of Southern California Edison Companys Motion to Strike Portions of Declaration of John Large was filed through the E-Filing system.

Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5059 Fax: 202-739-3001 E-mail: sburdick@morganlewis.com Counsel for Southern California Edison Company DB1/ 73046465.3

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