ML12040A170

Fenoc'S Unopposed Motion for Leave to Respond to the NRC Staff'S Answer to Proposed Contention 5 on Shield Building Cracking

ML12040A170
Person / Time
Site:	Davis Besse
Issue date:	02/09/2012
From:	Burdick S J, Jenkins D W, Matthews T P, Sutton K M FirstEnergy Nuclear Operating Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21871, 50-346-LR, ASLBP 11-907-01-LR-BD01
Download: ML12040A170 (5)

Text

DB1/ 69050454.3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD )

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) February 9, 2012

) FENOC'S UNOPPOSED MOTION FOR LEAVE TO RESPOND TO THE NRC STAFF'S ANSWER TO PROPOSED CONTENTION 5 ON SHIELD BUILDING CRACKING On January 10, 2012, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Don't Waste Michigan, and the Green Part y of Ohio ("Intervenors") filed a Motion with the Atomic Safety and Licensing Board ("Board") to admit newly-proposed Contention 5

("proposed Contention") regardi ng Shield Building cracking.

1 Both FirstEnergy Nuclear Operating Company ("FENOC") and the Nuclear Regulatory Commission

("NRC") Staff filed Answers to the proposed C ontention on February 6, 2012.

2 The Staff agreed with FENOC that the proposed Contention was not timely filed under 10 C.F.R. § 2.309(f)(2) and the In itial Scheduling Order. Unli ke FENOC, however, the Staff concluded that, although not specifically pled by the Intervenors, the factors for non-timely contentions under 10 C.F.R. § 2.309(c) supported timeliness of a revised contention with new wording supplied by the Staff.

3 Because the Staff Answer a dvances arguments not pled by Intervenors themselves, and more importantly, because the Staff Answer supplies revised contention language that FENOC will not otherwise have an opportunity to address in the record, 1 Motion for Admission of Contention No. 5 on Shield Building Cracking (Jan. 10, 2012).

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

3 Staff Answer at 9-16.

DB1/ 69050454.3 2FENOC moves for leave from the Board to file a Response to the Staff Answer in accordance with 10 C.F.R. § 2.323. The other parties do not oppose FENOC's request.

4 Pursuant to the Board's Initial Scheduling Order Section B, FENOC has no automatic right to file a brief in respons e to another party's Answer. However, the new arguments and modified contention language supplied for the first time in the Staff Answer give rise to exactly the type of "compelling circumstances" contem plated by 10 C.F.R. § 2.323(c) because FENOC could not have reasonably anticipated the arguments made by the Staff.

5 As the non-moving party with respect to Intervenors' propos ed Contention, FENOC respectfully requests an opportunity to address on the record the Staff's arguments against FENOC's interests. FENOC could not reasonably have antici pated the Staff's suggestion of revised contention language, or other new arguments, because FENOC and the Staff filed their Answers on the same day. Accordingly, FENOC requests a limited-scope opportunity to respond to the new arguments and suggested revised contention language. For these reasons, FENOC requests that th e Board grant this mo tion and allow FENOC until Friday, February 17 to file a short Response to the Staff Answer. In the alternative, should the Board not grant this motion, FENOC requests that the Board hold oral argument on the proposed Contention, which would provide FENOC an opportunity to address on the record its concerns related to the new arguments and revised contention language first advanced in the Staff Answer.

4 Counsel for FENOC certifies under 10 C.F.R. § 2.323(b) and Initial Scheduling Order Section G.1 that it consulted with the other Parties regarding this request. Counsel for the NRC Staff indicated that the Staff does not oppose FENOC's request to file a responsive brief. Counsel for Intervenors similarly indicated that Intervenors would not oppose FENOC's request, provided FENOC does not oppose an opportunity for Intervenors to file a rebuttal pleading; FENOC does not oppose.

5 If the Board does not consider this Motion appropriate under 10 C.F.R. § 2.323(c), then FENOC requests the Board consider it as a general motion under 10 C.F.R. § 2.323(a).

DB1/ 69050454.3 3 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Signed (electronically) by Timothy P. Matthews Timothy P. Matthews Kathryn M. Sutton

Stephen J. Burdick

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004

Phone: 202-739-5527 E-mail: tmatthews@morganlewis.com

David W. Jenkins

Senior Corporate Counsel

FirstEnergy Service Company Mailstop: A-GO-15

76 South Main Street

Akron, OH 44308

Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FENOC Dated in Washington, D.C.

this 9th day of February 2012 DB1/ 69050454.3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) February 9, 2012

) CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of "FENOC's Unopposed Motion for Leave to Respond to the NRC Staff's Answer to Proposed Contention 5 on Shield Building Cracking" was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.

Administrative Judge William J. Froehlich, Chair Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: wjf1@nrc.gov

Administrative Judge Dr. William E. Kastenberg Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: wek1@nrc.gov

Office of the Secretary

U.S. Nuclear Regulatory Commission Rulemakings and Adjudications Staff

Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov

Administrative Judge Dr. Nicholas G. Trikouros Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: nicholas.trikouros@nrc.gov

Office of the General Counsel

U.S. Nuclear Regulatory Commission Mail Stop O-15D21

Washington, DC 20555-0001

Brian G. Harris Megan Wright Emily L. Monteith Catherine E. Kanatas E-mail: Brian.Harris@nrc.gov; Megan.Wright@nrc.gov; Emily.Monteith@nrc.gov;

Catherine.Kanatas@nrc.gov

DB1/ 69050454.3

- - 2

Office of Commission Appellate Adjudication

U.S. Nuclear Regulatory Commission Mail Stop: O-16C1

Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov

Kevin Kamps

Paul Gunter

Beyond Nuclear

6930 Carroll Avenue, Suite 400 Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org;

paul@beyondnuclear.org

Michael Keegan Don't Waste Michigan

811 Harrison Street

Monroe, MI 48161 E-mail: mkeeganj@comcast.net

Terry J. Lodge

316 N. Michigan St., Ste. 520

Toledo, OH 43604 E-mail: tjlodge50@yahoo.com Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5059 E-mail: sburdick@morganlewis.com

COUNSEL FOR FENOC