ML16355A478
| ML16355A478 | |
| Person / Time | |
|---|---|
| Site: | FitzPatrick  |
| Issue date: | 12/20/2016 |
| From: | Burdick S J, Cho J, Lighty R K FitzPatrick, Entergy Nuclear Operations, Entergy Services, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-333-EA, Enforcement Action, RAS 51518 | |
| Download: ML16355A478 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
ENTERGY NUCLEAR FITZPATRICK, LLC &
ENTERGY NUCLEAR OPERATIONS, INC.
(James A. FitzPatrick Nuclear Power Plant) ) )
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) Docket No. 50-333-EA
December 20, 2016 MOTION TO STRIKE PORTIONS OF DECEMBER 12, 2016 REPLY FILED BY BEYOND NUCLEAR AND THE ALLIANCE FOR A GREEN ECONOMY I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(a), Entergy Nu clear FitzPatrick, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy") file this motion to strike portions of the December 12, 2016 Reply 1 of Beyond Nuclear and The Alliance for a Green Economy ("Petitioners"). Petitioners' Reply impermissibly seeks to supplement their original November 10, 2016 Hearing Request 2 with new arguments and new proffered suppor t that were not incl uded in the original Hearing Request and that are not narrowly aime d at responding to argum ents raised in the answers to the Hearing Request. This information includes extens ive discussion of new technical arguments regarding hardened vent s and hydrogen considerat ions, including a new Declaration from a Mr. Mark Leyse, who wa s not identified in the Hearing Request.
1 Combined Reply Beyond Nuclear & The Alliance for a Green Economy to Entergy and NRC Staff Answers in Opposition to Petitioners' Request for Hearing and Leave to Intervene in Entergy Corporation Request for Extension to Comply with NRC Orders EA-12-049, EA-12-051 and EA-13-109 (Dec. 12, 2016) (ML16347A678) ("Reply").
2 Beyond Nuclear & The Alliance for a Green Economy Petition to Request a Hearing and Leave to Intervene on Entergy's Request for an Extension to Comply with NRC Orders EA-12-049, EA-12-051 and EA-13-109 Requirements for the James A. FitzPatrick Nuclear Power Station (Nov. 10, 2016) (ML16315A433) ("Hearing Request"). Petitioners filed errata (ML16326A266) and a corrected version of the Hearing Request (ML16326A267) on November 21, 2016 with three minor editorial changes.
- - 2Furthermore, Petitioners have not even recognized or attempted to satisfy the standards for late-filed amendments to contentions set forth in 10 C.F.R. §§ 2.309(c) and (f)(2). Accordingly, those new arguments and proffered support are impermissible and must be stricken from the Reply. II. BACKGROUND On November 10, 2016, Petitioners filed th e Hearing Request seeking a hearing on Entergy's requests for relaxation 3 seeking extensions of time to comply with the requirements of U.S. Nuclear Regulatory Comm ission ("NRC") orders EA-12-049, EA-12-051, and EA-13-109.
The Hearing Request did not incl ude technical exhibits or attachments and did not mention expert support for any of Petitioners' arguments. On December 5, 2016, Entergy and the NRC Staff filed answers opposing the Hearing Request.
4 Petitioners filed their Reply on December 12, 2016, presenting, for the first time, arguments relating to documents from the 1970's and
1980's, 5 a Declaration from Mr. Mark Leyse that pur ports to provide support for the original arguments Petitioners presente d in their Hearing Request, 6 and additional new arguments related thereto.7 3 JAFP-16-0147, Letter from B. Sullivan, Entergy, to NRC Document Control Desk, Request for Extension to Comply with March 12, 2012 Commission Orders Modifying Licenses with Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events and Reliable Spent Fuel Pool Instrumentation (Order Numbers EA-12-049 and EA-12-051) (Sept. 8, 2016) (ML16252A477); JAFP-16-0148, Letter from B. Sullivan, Entergy, to NRC Document Control Desk, Request for Extension to Comply with NRC Order EA-13-109, "Order Modifying Licenses with Regard to Reliable Hardened Containment Vents Capable of Operation Under Severe Accident Conditions" (Sept. 8, 2016) (ML16252A482).
4 Entergy's Answer Opposing Request for Hearing Regarding FitzPatrick and EA-12-049, EA-12-051, and EA-13-109 (Dec. 5, 2016) (ML16340A912) ("Entergy Answer"); NRC Staff's Response to Beyond Nuclear & The Alliance for a Green Economy's Request for Hearing (Dec. 5, 2016) (ML16340C614) ("Staff Answer").
5 See Reply at 2-3.
6 See id., Exh. 2; see also id., Exh. 3 (CV for Mark Leyse).
7 See id. at 6-8, 16, 26-28.
- - 3 III. LEGAL STANDARDS The Commission has explained, in its rulemaking capacity, that a reply must be "narrowly focused on the legal or logical arguments presented" in the answers of the applicant and NRC Staff.
8 In its adjudicatory capacity, the Commission has furthe r ruled that a reply to an answer may not be used to add new bases for or supplement an otherwise de ficient contention. It has repeatedly rejected "late attempt[s] to reinvigorate th inly supported contentions" via reply briefs.9 And, as particularly releva nt here, the Commission has held that its "rules do not allow . . . using reply briefs to provide, for the first time, the necessary threshold support for contentions . . . ."
10 The Commission has explained that "support for a contention must be provided when the contention is filed, not at some later date
."11 If a contention, as originally plead, fails to cite adequate documentary support, a petitioner cannot remediate the deficiency by introducing additional docume ntary support in the reply.
12 Similarly, in the context of standing, the Commission has stated that it "is not acceptable in NRC practice for a petitioner to claim standing based on vague assertions, and when that fails, to attempt to repair the defective
8 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,203 (Jan. 14, 2004).
9 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004);
see also e.g., DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC __, __ (Sept. 8, 2015) (slip op. at 15) (noting that petitioner may not use its reply to raise new issues for the first time);
Nuclear Management Co. (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 730-32 (2006) (affirming the Licensing Board's rejection of petitioners' untimely attempt to supplement their contention on reply).
10 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004).
11 AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 276 (2009) (internal citation omitted) (emphasis added).
12 Palisades, CLI-06-17, 63 NRC at 732.
- - 4 pleading with fresh details offered for the first time . . ." in later pleadings, such as a reply.
13 In sum, the Commission will not consider evidence presented for the first time in a reply brief.
14 The Commission demands adherence to this requirement "so that the other litigants are not taken by surprise and are accorded an appr opriate opportunity to respond to new arguments or new information,"
15 and to "avoid unnecessary delays and increase the efficiency of NRC adjudication . . . ."
16 Those answering are "entitled to be told at the outset, with clarity and precision, what arguments ar e being advanced . . . ."
17 To present new support in a reply, a petitioner must, among other things, "explain why it could not have . . . introdu ced the factual support earlier."
18 Thus, new arguments, claims, factual basis, or support for a c ontention "'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 filing criteria set forth in 10 C.F.R. § 2.309(c).'"
19 Accordingly, a petitioner must show that the new claims or support: (1) were not prev iously available, (2) are materially different from information previously available, and (3) were submitted in a timely fashion following availability of the new information.
20 But they cannot add new support that "simply did not occur to them at the
13 Entergy Nuclear Operations, Inc. and Entergy Nuclear Fitzpatrick, LLC (James A. FitzPatrick Nuclear Power Plant), CLI-08-19, 68 NRC 251, 261 (2008) (citing and quoting Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-22, 65 NRC 525, 527-28 (2007)).
14 See, e.g., Fitzpatrick, CLI-08-19, 68 NRC at 261-62.
15 Fermi, CLI-15-18, 82 NRC at __ (slip op. at 15) (internal citations omitted).
16 LES, CLI-04-35, 60 NRC at 622-23.
17 Kan. Gas & Elec. Co. & Kan. City Power & Light Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 576 (1975).
18 Fermi, CLI-15-18, 82 NRC at __ (slip op. at 15) (internal citations omitted).
19 Oyster Creek, CLI-09-7, 69 NRC at 261 (quoting Palisades, CLI-06-17, 63 NRC at 732).
20 See 10 C.F.R. § 2.309(c)(1).
- - 5 outset."21 The appropriate remedy is to strike new support and arguments offered for the first time in a reply.
22 IV. PORTIONS OF THE REPLY SHOULD BE STRICKEN The Hearing Request addressed standing and pr oposed two contentions. As relevant to this Motion, Part C of Proposed Contention 1 alleged that Entergy's request for extension regarding EA-13-109 is not valid.
23 Petitioners' argument primarily consisted of quotations from EA-13-109 and the related extension request, 24 with some quotations and discussion on containment vents and hydrogen generation rega rding a 1992 Safety Evaluation and a Temporary Instruction 2515/183 Inspection Report.
25 After assuming for the sake of argument that a hearing opportunity exists, 26 Entergy and the NRC Staff argued in their December answers that the Hearing Request should be rejected because Petitioners did not demonstrate standing and did not submit an admissible contention.
Regarding standing, both Entergy and the NRC St aff concluded that Petitioners have not identified sufficient consequences or harm to support either a proximity presumption or traditional standing.
27 Regarding Part C of Proposed C ontention 1, Entergy and the NRC Staff concluded that it lacked suffici ent support, expert opinion, and a re asoned basis; ignores relevant
21 LES, CLI-04-25, 60 NRC at 225 (internal citation omitted).
22 See, e.g., Entergy Nuclear Vt. Yankee, LLC & Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 198-199 (2006), rev'd on other grounds, CLI-07-16, 65 NRC 371 (2007); Tenn. Valley Auth. (Bellefonte Nuclear Power Plant, Units 3 and 4), LBP-08-16, 68 NRC 361, 404 (2008), rev'd on other grounds, CLI-09-3, 69 NRC 68 (2009).
23 See Hearing Request at 31-38.
24 See id. at 31-35.
25 See id. at 35-38.
26 As explained by both Entergy and the Staff in their answers, the Hearing Request should be rejected because Petitioners did not have an opportunity to request a hearing on the extension requests.
See Entergy Answer at 12-19; Staff Answer at 16-19. If the Commission agrees, then issues regarding standing and contention admissibility, and thus this Motion, are moot.
27 See Entergy Answer at 22-26; Staff Answer at 19-22.
- - 6information, including informati on in the Entergy extension reque st for EA-13-109; engages in speculation; and raises issues already rejected as part of a 10 C.F.R. § 2.206 petition.
28 Neither Entergy nor the NRC Staff submitted expert opinion or engaged on the technical merits of Petitioners' arguments in their answers; instead, they addres sed the standing and contention admissibility requirements in 10 C.F.R. § 2.309.
Indeed, Petitioners comp lained that Entergy's and the NRC Staff's answer pleadings barely even acknowledged those technical arguments.
29 Rather than focus narrowly on these arguments , Petitioners introduce in their Reply and associated exhibits-for the first time-purported support for their arguments on the subject of hydrogen generation in an apparent attempt to cure standing and contention admissibility deficiencies identified by Entergy and the NRC Staff. More specifically, nearly five weeks after submitting thei r Hearing Request, Petitioners suddenly present a 27 page Declaration from a purported expert with new information and arguments relating to containment vents and hydrogen generation.
30 Indeed, Petitioners even concede that they are providi ng the Declaration as "additional support[]" for arguments found in their original Hearing Request.
31 Far from being "narrowly fo cused on the legal or logical arguments presented" in Entergy's and the NRC Staff's answers, 32 the new Declaration is merely an untimely attempt to reinvigorate a thinly supported pleading 33 and cure the standing and contention admissibility deficiencies identified by the other participants. Yet, the Commission
28 See Entergy Answer at 34-36; Staff Answer at 25-29.
29 See Reply at 5 ("Entergy and Staff Answers say very little" about the Temporary Instruction 2515/183 Inspection Report (emphasis added)).
30 Id., Exh. 2.
31 Id. at 6. 32 See Changes to Adjudicatory Process, 69 Fed. Reg. at 2,203.
33 See LES, CLI-04-25, 60 NRC at 224-25.
- - 7has made clear that support for a contention must be provided when the contention is filed
.34 Furthermore, Petitioners make no attempt to e xplain why they could not have proffered this support when they originally filed the Hearing Request.
35 Additionally, in their Reply, Petitioners quot e from (but do not ot herwise explain the relevance of) a 1972 memorandum and a 1982 journal article regarding containment vents.
36 Notably, Petitioners did not identify or even mention such purported support in their Hearing Request. Nor do they tie the new discussion to any topic covered in Entergy's or the NRC Staff's December 5, 2016 answer pleadings. Thus, here again, Petitioners improperly raise new information in their Reply. Accordingly, the Commission should strike the impermissible portions of the Reply, and the associated exhibits, because Entergy and the NRC Staff have not been "accorded an appropriate opportunity to respond" 37 to this information, and because Petitioners have not satisfied the criteria in 10 C.F.R. § 2.309(c) for late-filed supplemental support.
V. CONCLUSION For the reasons discussed above, Entergy requests that the Commission strike the portions of the Reply and its exhibits containing Petitioners' new argumen ts and new proffered support. Those portions include:
Reply at 2-3 (first paragrap h under "I. Introduction" and first sentence of the following paragraph); 6-8 (s entence on page 6 beginning "Petitioners are providing-" through the partial paragraph on page 8 ending "-of Leyse's testimony.)"); 16 (paragraphs beginning "The Petitioners prov ide-" and "A genuine dispute-"); and 26-28
34 See Oyster Creek, CLI-09-7, 69 NRC at 276.
35 See 10 C.F.R. §§ 2.309(c) and (f)(2).
36 Reply at 2-3.
37 See Fermi, CLI-15-18, 82 NRC at __ (slip op. at 15).
- - 8 (sentence on page 26 beginning "To that end-" through the bottom of page 28); Reply, Exh. 2 (entire declaration); Reply, Exh. 3 (entire CV).
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Jeanne Cho, Esq.
Senior Counsel
Entergy Services, Inc.
440 Hamilton Ave.
White Plains, NY 10601
Phone: (914) 272-3323
Fax: (914) 272-3242 E-mail: jcho1@entergy.com Stephen J. Burdick, Esq.
Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Phone: (202) 739-5059
Fax: (202) 739-3001 E-mail: stephen.burdick@morganlewis.com E-mail: ryan.lighty@morganlewis.com
Counsel for Entergy Nuclear FitzPatrick, LLC and Entergy Nuclear Operations, Inc.
Dated in Washington, D.C.
this 20th day of December 2016
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
ENTERGY NUCLEAR FITZPATRICK, LLC &
ENTERGY NUCLEAR OPERATIONS, INC.
(James A. FitzPatrick Nuclear Power Plant) ) )
)
)
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)
)
) Docket No. 50-333-EA
December 20, 2016 CONSULTATION Counsel for Entergy certifies under 10 C.F.R. § 2.323(b) that the movant has made a sincere effort to contact the other participants in this proceeding and resolve the issues raised in this Motion. The Nuclear Regulatory Commissi on Staff stated that it takes no position on the Motion; Beyond Nuclear and The Alliance for a Green Economy oppose the Motion.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Stephen J. Burdick, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Phone: (202) 739-5059
Fax: (202) 739-3001 E-mail: stephen.burdick@morganlewis.com
Counsel for Entergy Nuclear FitzPatrick, LLC and Entergy Nuclear Operations, Inc.
DB1/ 90105676 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
ENTERGY NUCLEAR FITZPATRICK, LLC &
ENTERGY NUCLEAR OPERATIONS, INC.
(James A. FitzPatrick Nuclear Power Plant) ) )
)
)
)
)
)
) Docket No. 50-333-EA
December 20, 2016 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing "Motion to Strike Portions of December 12, 2016 Reply Filed by Beyond Nuclear and The Alliance for a Green Economy" was served upon the Electronic Information Exchange (the NRC's E-Filing System) in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Phone: (202) 739-5274
Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com
Counsel for Entergy Nuclear FitzPatrick, LLC and Entergy Nuclear Operations, Inc.