ML13070A210

Order Denying Southern California Edison Company'S (Sce'S) Motion to Strike Portions of Declaration of John Large in the Matter of Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3)

ML13070A210
Person / Time
Site:	San Onofre
Issue date:	03/11/2013
From:	Hawkens E Atomic Safety and Licensing Board Panel
To:	Southern California Edison Co
SECY RAS
References
RAS 24213, 50-361-CAL, 50-362-CAL, ASLBP 13-924-01-CAL-BD01
Download: ML13070A210 (6)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

E. Roy Hawkens, Chairman Dr. Anthony J. Baratta Dr. Gary S. Arnold In the Matter of Docket Nos. 50-361-CAL, 50-362-CAL SOUTHERN CALIFORNIA EDISON CO.

ASLBP No. 13-924-01-CAL-BD01 (San Onofre Nuclear Generating Station, Units 2 and 3)

March 11, 2013 ORDER (Denying SCEs Motion to Strike Portions of Declaration of John Large)

I. BACKGROUND On November 8, 2012, the Commission in CLI-12-20 referred to the Atomic Safety and Licensing Board Panel (ASLBP) a portion of the June 18, 2012 intervention petition filed by Friends of the Earth (Petitioner) challenging a Confirmatory Action Letter (CAL) issued by the NRC to Southern California Edison Company (SCE) on March 27, 2012.1 As relevant here, Petitioner filed its opening brief with attachments on January 11, 2013;2 SCE filed an answering brief with attachments on January 30, 2013;3 the NRC Staff also filed an answering brief with attachments on January 30, 2013, including an affidavit from Mr.

1 See Southern Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-12-20, 76 NRC __, __ slip op. at 5 (Nov. 8, 2012). Specifically, the Commission directed a duly constituted Licensing Board to consider whether: (1) the [CAL] issued to SCE constitutes a de facto license amendment that would be subject to a hearing opportunity under [s]ection 189a [of the Atomic Energy Act]; and, if so, (2) whether the petition meets the standing and contention admissibility requirements of 10 C.F.R. § 2.309. CLI-12-20, slip op. at 5.

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

3 See [SCEs] Brief on Issues Referred by the Commission (Jan. 30, 2013).

2 Kenneth J. Karwoski (Karwoski Affidavit);4 and Petitioner filed a reply brief on February 13, 2013, which included a declaration from its expert, Mr. John Large (Large Declaration). 5 On February 22, 2013, SCE filed a motion to strike Sections 13 and 14 of the Large Declaration, arguing that those sections improperly advance arguments for the first time that were beyond the scope of arguments previously raised.6 On February 28, 2013, Petitioner and the NRC Staff each filed an answer urging this Board to deny SCEs motion to strike.7 II. ANALYSIS 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.8 SCE argues that Sections 13 and 14 of the Large Declaration violate this established rule and, accordingly, must be struck.

Specifically, SCE argues that Section 13 should be struck because it uses Attachment 1 of the Karwoski Affidavit [submitted by the NRC Staff] as an inappropriate basis for launching into a lengthy discussion of . . . SCEs compliance with Criteria III and VI of Appendix B --

criteria that are nowhere addressed in the Karwoski Affidavit. SCEs Motion to Strike at 4.

4 See NRC Staffs Answering Brief in the [SONGS] CAL Proceeding (Jan. 30, 2013); Affidavit of Mr. Kenneth J. Karwoski Concerning FOEs Claims Regarding Staffs March 27, 2012 CAL Issued to SCE (Jan. 30, 2013).

5 See Reply Brief of Petitioner Friends of the Earth (Feb. 13, 2013); Reply Brief, Att. 1, Declaration of John Large - Comments on the NRC and SCE Responses of January 30, 2013.

6 See [SCEs] Motion to Strike Portions of Declaration of John Large (Feb. 22, 2013) [hereinafter SCEs Motion to Strike].

7 See [Petitioners] Answer to [SCEs] Motion to Strike Portions of Declaration of John Large (Feb. 28, 2013) [hereinafter Petitioners Answer]; NRC Staffs Answer Opposing SCEs Motion to Strike Portions of the Declaration of John Large (Feb. 28, 2013) [hereinafter NRC Staffs Answer].

8 Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006)

(footnotes omitted).

3 Additionally, argues SCE, Section 13 should be struck because although the Karwoski Affidavit addresses whether the statements in the March 27 CAL are authorized by Criterion XVI, Section 13 discusses whether SCE has complied with Criterion XVI -- an issue that is not addressed in the Karwoski Affidavit. Id. Finally, SCE argues that Section 14 of the Large Declaration should be struck, because it references Attachment 1 as a basis for arguing that restart activities require a license amendment, but Attachment 1 . . . does not address that issue. Id.

For the reasons fully discussed by Petitioner and the NRC Staff (see Petitioners Answer at 2-4; NRC Staffs Answer at 3-8), we conclude that SCEs arguments lack merit.

Briefly, concerning SCEs assertion that Section 13 of the Large Declaration uses the Karwoski Affidavit as an inappropriate basis for launching into a lengthy discussion of SCEs compliance with Criteria III and VI of Appendix B (see SCEs Motion to Strike at 4), SCE fails to recognize that the discussion in the Large Declaration only restates [Petitioners] previous arguments. . . . regarding fluid elastic instability, the lack of anti-vibration bars, and the zero-gap/zero preload strategy in support of [Petitioners] initial brief. Thus, while these arguments do not respond to the Karwoski Affidavit, they are appropriate subjects for a reply because they essentially restate material from earlier filings. NRC Staffs Answering Brief at 4-5; see also Petitioners Answer at 4 (arguing that Section 13 merely walks through the door opened by Karwoskis assertion and applies the Appendix B criteria to . . . the Restart Plan).

Concerning SCEs alternative attack on Section 13 of the Large Declaration -- i.e., SCEs claim that the arguments in Section 13 regarding Criterion XVI do not respond to the Karwoski Affidavit (see SCEs Motion to Strike at 4) -- SCE again fails to recognize that these arguments too were raised by [Petitioner] in previous filings, and so are appropriate subjects for a reply.

NRC Staffs Answering Brief at 5; see also id. at 5-6; Petitioners Answer at 4.

Finally, concerning SCEs claim that Section 14 of the Large Declaration should be struck because it incorrectly references Attachment 1 as a basis for arguing that restart activities require a license amendment (see SCEs Motion to Strike at 4), SCE ignores that the

4 statements in Section 14 respond to arguments made in the NRC Staffs January 30, 2013 Answer and the Karwoski Affidavit or restate [Petitioners] previous arguments. NRC Staffs Answering Brief at 7; see also id. at 7-8; Petitioners Answer at 3-4.

In short, we reject SCEs claim that Sections 13 and 14 of the Large Declaration reach beyond the acceptable boundaries of a reply brief, because those sections do not expand the scope of the arguments set forth in [Petitioners original brief; rather, they] . . . focus narrowly on the legal or factual arguments first presented in [that brief] or raised in the answers to it.

Palisades Nuclear Plant, CLI-06-17, 63 NRC at 732. SCEs motion to strike portions of the Large Declaration is therefore denied.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

________________________

E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE Issued at Rockville, Maryland this 11th day of March 2013.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

SOUTHERN CALIFORNIA EDISON CO. )

)

) Docket Nos. 50-361-CAL (San Onofre Nuclear Generating Station - ) 50-362-CAL Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying SCEs Motion to Strike Portions of Declaration of John Large) have been served upon the following persons by Electronic Information Exchange and by electronic mail as indicated by an asterisk*.

Office of Commission Appellate Southern California Edison Company Adjudication Douglas Porter, Esq.*

U.S. Nuclear Regulatory Commission Director and Managing Attorney Washington, DC 20555-0001 Generation Policy and Resources E-mail: ocaamail@nrc.gov Law Department 2244 Walnut Grove Ave., GO1, Q3B, 335C Atomic Safety and Licensing Board Panel Rosemead, CA 91770 U.S. Nuclear Regulatory Commission Email: douglas.porter@sce.com Mail Stop - T-3 F23 Washington, DC 20555-0001 Counsel for Licensee Morgan, Lewis & Bockius, LLP E. Roy Hawkens 1111 Pennsylvania, Ave. N.W.

Chief Administrative Judge Washington, D.C. 20004 E-mail: roy.hawkens@nrc.gov Paul M. Bessette, Esq.

Kathryn M. Sutton, Esq.

Anthony J. Baratta Stephen J. Burdick, Esq.

Administrative Judge Steven P. Frantz, Esq.

Email: anthony.baratta@nrc.gov William E. Baer, Jr.*

Mary Freeze, Legal Secretary Gary S. Arnold Lena M. Long, Legal Secretary Administrative Judge E-mail: pbessette@morganlewis.com Email: gary.arnold@nrc.gov sburdick@morganlewis.com ksutton@morganlewis.com U.S. Nuclear Regulatory Commission wbaer@morganlewis.com Office of the Secretary of the Commission sfrantz@morganlewis.com Mail Stop O-16C1 mfreeze@morganlewis.com Washington, DC 20555-0001 llong@morganlewis.com Hearing Docket E-mail: hearingdocket@nrc.gov

San Onofre Nuclear Generating Station, Units 2 and 3, Docket Nos. 50-361 and 50-362-CAL ORDER (Denying SCEs Motion to Strike Portions of Declaration of John Large)

U.S. Nuclear Regulatory Commission Friends of the Earth Office of the General Counsel Ayres Law Group Mail Stop - O-15 D21 1707 L St., NW Washington, DC 20555-0001 Suite 850 Edward Williamson, Esq. Washington, D.C. 20036 David Roth, Esq. Richard E. Ayres, Esq.

Catherine Kanatas, Esq. Jessica L. Olson, Esq.

David Cylkowski, Esq. Kristin L. Hines, Esq.

Email: edward.williamson@nrc.gov Email: ayresr@ayreslawgroup.com david.roth@nrc.gov olsonj@ayreslawgroup.com catherine.kanatas@nrc.gov hinesk@ayreslawgroup.com david.cylkowski@nrc.gov Natural Resources Defense Council OGG Mail Center: ogcmailcenter@nrc.gov Geoffrey H. Fettus, Esq.

1152 15th Street, NW Suite 300 Washington, DC 20005 Email: gfettus@nrdc.org

[Original signed by Herald M. Speiser ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 11th day of March, 2013 2