ML082800344
| ML082800344 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 10/06/2008 |
| From: | Marcia Simon, Subin L NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 08-869-03-OLA-BD01, RAS 1290, Turkey Point 3_4 50-250 and 50-251-OLA | |
| Download: ML082800344 (9) | |
Text
October 6, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) Docket Nos. 50-250/251-OLA Florida Power & Light Company )
) ASLBP No. 08-869-03-OLA-BD01 (Turkey Point Nuclear Plant, Units 3 and 4) )
NRC STAFFS RESPONSE IN SUPPORT OF FPLS MOTION TO STRIKE SECS REPLY AND FOR SANCTIONS INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the Nuclear Regulatory Commission (Staff) hereby responds to the Florida Power & Light Companys (FPL or Applicant) Motion to Strike SECs Reply and for Sanctions (Motion), dated September 26, 2008. For the reasons set forth below, FPLs Motion should be granted.
BACKGROUND By letter dated September 5, 2007, FPL submitted a request to amend operating licenses DPR-31 and DPR-41 for the Turkey Point Nuclear Plant, Units 3 and 4, respectively. 1 The proposed amendment removes notes associated with two prior amendments 2 that implemented alternate methods of determining rod positions for Control Rod F-8 in Unit 4 and control rod M-6 in Unit 3 while the rod position indication systems for those two control rods were being repaired. LAR at 1. Furthermore, the Applicant stated that since the repairs were 1
See Letter from William Jefferson, Jr., FPL, to the NRC Document Control Desk, Turkey Point Units 3 and 4, Docket Nos. 50-250 and 50-251, License Amendment Request (LAR) 193, Administrative changes to Technical Specifications to Remove Notes Regarding the Inoperability of Rod Position Indication for Control Rods F-8 (Unit 4) and M-6 (Unit 3), dated Sept. 5, 2007 (Amendment Request or LAR).
2 The prior amendments are No. 221 (Unit 4) and No. 230 (Unit 3), issued on August 20, 2004, and October 5, 2006, respectively. LAR at 1.
2 completed during a prior outage, the alternate methods, and therefore, the notes, are no longer required. Id. On July 29, 2008, the Staff published in the Federal Register a notice of consideration of issuance of the proposed amendment, proposed no significant hazards consideration determination, and opportunity for a hearing. 3 In response to this notice, Saporito Energy Consultants (SEC), through Mr. Thomas Saporito (collectively Petitioner), timely filed a petition to intervene (SEC Petition) on August 18, 2008. On September 11, 2008, the Staff and Applicant filed answers, both of which argued that the Petitioner failed to demonstrate standing or plead any admissible contentions. 4 In the interim, Mr. Saporito filed petitions to intervene in two other NRC proceedings involving license amendments to facilities owned by FPL or its subsidiaries. 5 On September 18, 2008, Mr. Saporito, on behalf of SEC, filed a 13-page reply (SEC Reply), in which he attempts to augment the Petitioners assertions of standing and amends the three previously submitted contentions into a single new contention. 6 See SEC Reply at 2-6; 9-
- 13. In addition, Mr. Saporito provided a 2-page Overview of Control Rod Drive Mechanism and his own affidavit in support of the amended contention. Id. at 6-7; Affidavit of Thomas Saporito (dated Sept. 16, 2008). On September 26, 2008, FPL filed this Motion and the Staff now responds.
3 Florida Power and Light Company; Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing, 73 Fed. Reg. 43,956 (July 29, 2008).
4 NRC Staffs Answer to Saporito Energy Consultants Petition to Intervene and Request for Hearing (Staff Answer); FPLs Answer to Request for Hearing and Petition for Leave to Intervene of Saporito Energy Consultants (FPL Answer).
5 Request for Hearing and Leave to Intervene, Docket No. 50-266, Point Beach Nuclear Plant (Aug. 20, 2008); Request for Hearing and Leave to Intervene, FPL Energy Seabrook, Docket No. 50-443, Seabrook Station Unit No. 1 (Aug. 29, 2008).
6 As noted in the FPL Motion, SECs amended contention appears to be loosely tied to original Contention 3, which asserted that the amendment might reduce the margin of safety. FPL Motion at 16.
3 DISCUSSION Under the Commissions rules of procedure, a petitioner may file a reply to any answer filed in response to its petition. 10 C.F.R. § 2.309(h)(2). While the regulation itself does not address the proper scope of a reply, in Nuclear Management Company (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727 (2006), the Commission explained that
[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 presented in the original petition or raised in the answers to it. New bases for 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), (f)(2).
Palisades, CLI-06-17, 63 NRC at 732.
The contention pleading requirements are the cornerstone of the Commissions efforts to avoid unnecessary delays and increase the efficiency of NRC adjudication. Louisiana Energy Services (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004). As such, the Commission has stressed the paramount need for adherence to and enforcement of NRC pleading standards to prevent petitioners from disregarding timeliness requirements and adding new bases or new issues that did not occur to them initially. Louisiana Energy Services (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004), reconsideration denied, CLI-04-35, 60 NRC 619 (2004). Therefore, petitioners may not use a reply to present entirely new arguments in an attempt to reinvigorate thinly supported contentions. Id. at 224.
Although the Petitioner claims that it is amending its contentions in accordance with the rules in Section 2.309, the Petitioner has failed to comply with section 2.309(f)(2), which states that a petitioner must seek leave of the presiding officer before filing new or amended contentions after the initial filing. 7 Such leave will be granted upon a showing that the three 7
As noted in the FPL motion, this provision applies to any new or amended contention, not just those that are untimely. FPL Motion at 13.
4 requirements in section 2.309(f)(2)(i)-(iii) have been met. SEC has failed to seek leave of the presiding officer and has failed to demonstrate in its reply that the amended contention is based on information that was not previously available, or that such information is materially different than information previously available. 10 C.F.R. 2.309(f)(i),(ii). Therefore, because the Petitioner has not complied with the rules for submitting new or amended contentions, the amended contention should be stricken.
SECs reply should also be stricken because it exceeds the scope of a proper reply by providing new arguments and attempting to recast and provide support for originally deficient contentions. As discussed in the Staffs Answer, SECs original contentions are deficient on their face for two reasons: first, they are impermissible attacks on the Staffs no significant hazards consideration determination, and second, they fail to satisfy, or even address, the Commissions contention pleading requirements. Staff Answer at 9-13. The arguments in SECs reply do not represent legitimate amplification of its previous arguments, nor are they narrowly focused on the legal or logical arguments of the Staffs or FPLs Answers. Louisiana Energy Services, CLI-04-25, 60 NRC at 224-25. Instead, the SEC Reply merely attempts to amend the facially deficient original contentions and add new support for the amended contention. For instance, SEC provides an overview of control rod drive mechanisms that was not present in the original petition. SEC Reply at 6-9. Because this information was not discussed or referred to in the original petition, it cannot be added in a reply as a new basis or additional support for contentions. Palisades, CLI-06-17, 63 NRC at 732. Petitioners have an ironclad obligation to examine publicly available information pertaining to a facility to find information that could support proffered contentions. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1041 (1983). The SEC Reply also provides new arguments in support of standing, SEC Reply at 3-6, which are impermissible under Commission case law. Cf.
5 Palisades, CLI-06-17, 63 NRC at 732; Louisiana Energy Services, CLI-04-35, 60 NRC at 622-23.
Additionally, the Petitioners reply includes an affidavit in support of its new standing arguments. Because this affidavit was not provided with the original petition, and because it supports new arguments not raised in the original petition, the affidavit should be rejected. 8 In summary, because the reply impermissibly expands the scope of the arguments and amends the contentions in the original petition, it should be stricken. Id.
In this proceeding, the Petitioner filed a barebones petition 20 days after the original Federal Register notice, requiring the Applicant and the Staff to file answers within the initial 60-day filing period. See 10 C.F.R. § 2.309(h)(1) (requiring answers to be filed within 25 days of service of a petition or request for hearing). The Commission has stated that allowing a petitioner to add, amend or supplement contentions at any time would defeat the purpose of the specific contention requirements . . . by permitting the intervenor to initially file vague, unsupported, and generalized allegations and simply recast, support, or cure them later.
Louisiana Energy Services, CLI-04-35, 60 NRC at 622 (internal quotations omitted).
Furthermore, in NRC proceedings, the burden is on the petitioner to provide adequate support for contentions, and this burden must be satisfied at the outset. Id. at 623. Because the Applicant and the Staff are not entitled to file responses to the new information in the SEC Reply, 10 C.F.R. § 2.309(h)(3), allowing new claims in a reply unfairly deprives other participants of an opportunity to rebut the claims. Louisiana Energy Services, CLI-04-35, 60 8
See Entergy Nuclear Operations, Inc. and Entergy Nuclear Palisades, LLC et al. (Palisades Nuclear Plant, James A. Fitzpatrick Nuclear Power Plant, Pilgrim Nuclear Power Station, Vermont Yankee Nuclear Power Station, Indian Point Nuclear Generating Unit Nos. 1, 2, and 3, Big Rock Point), CLI 19, 68 NRC ___ (slip op. at 9-10) (Aug. 22, 2008) (holding that failure to provide an affidavit supporting representational standing with an original petition could not be cured by providing the affidavit in a reply).
6 NRC at 622. The Petitioners attempt to bypass the pleading requirements is not allowed under the Commissions pleading rules; therefore, the reply should be stricken.
The Staff recognizes that the Petitioner is not represented by counsel, and that pro se petitioners are normally held to less rigid pleading standards, although a totally deficient petition will be rejected. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 546 (1980); Public Service Electric & Gas Co. (Salem Nuclear Generating Station, Units 1 & 2), ALAB-136, 6 AEC 487, 489 (1973). The FPL Motion clearly demonstrates, however, that despite the Petitioners pro se status, Mr. Saporito is no stranger to NRC proceedings. See FPL Motion at 6-10 & n. 5. Mr. Saporito has had ample notice, through prior ASLB and Commission decisions, including the most recent decision in St. Lucie, 9 of the Commissions pleading standards and of deficiencies in his previous filings. 10 Therefore, the Staff submits that he should not be granted the leniency normally extended to pro se petitioners.
Finally, while the Staff does not make any specific request to the Board regarding FPLs request for sanctions of Mr. Saporito, based on the evidence presented by FPL, and the history of Mr. Saporitos interactions with FPL, the Staff does not oppose FPLs request for sanctions.
CONCLUSION FPLs Motion demonstrates that the SEC Reply fails to satisfy the requirements of 10 C.F.R. § 2.309(f)(2) and impermissibly includes new arguments and bases for its contentions.
Accordingly, FPLs Motion should be granted.
9 Florida Power & Light Co. (St. Lucie Nuclear Plant, Units 1 and 2), Memorandum and Order (Denying Request for Hearing), slip op. at 11 (Aug. 15, 2008).
10 Moreover, the Petitioners Opposition to FPLs Motion to Strike Saporitos Reply and for Sanctions demonstrates that the Petitioner is well versed in citing Commission case law.
7 Respectfully submitted, Signed (electronically) by Lloyd B. Subin Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1988 lloyd.subin@nrc.gov Executed in Accord with 10 C.F.R. § 2.304(d)
Marcia J. Simon Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1261 marcia.simon@nrc.gov Dated at Rockville, Maryland this 6th day of October, 2008
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
) Docket Nos. 50-250/251-OLA Florida Power & Light Company )
) ASLBP No. 08-869-03-OLA-BD01 (Turkey Point Nuclear Plant, Units 3 and 4) )
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS RESPONSE IN SUPPORT OF FPLS MOTION TO STRIKE SECS REPLY AND FOR SANCTIONS in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 6th day of October, 2008.
Administrative Judge Administrative Judge William J. Froelich, Chair Michael F. Kennedy Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: wjf1@nrc.gov E-mail: mfk2@nrc.gov Administrative Judge Office of Commission Appellate Thomas S. Moore Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov E-mail: tsm2@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16C1 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov
Mitchell Ross, Esq. Thomas Saporito, President Antonio Fernandez, Esq. Saporito Energy Consultants Florida Power & Light Company 1030 Military Terrace, #25 700 Universe Boulevard Jupiter, FL 33458 P.O. Box 14000 saporito3@gmail.com Juno Beach, FL 33408-0420 mitch.ross@fpl.com antonio.fernandez@fpl.com Signed (electronically) by Lloyd B. Subin Counsel for the NRC Staff