ML061010044
| ML061010044 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 04/07/2006 |
| From: | Polonsky A AmerGen Energy Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| Byrdsong A T | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, LBP-06-11, RAS 11518 | |
| Download: ML061010044 (8) | |
Text
7 RS5 1/6/6 DOCKETED LISNRC Aprl 7, 2006 (12:39pm)
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE CF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF BEFORE THE COMMISSION In the Matter of: }
AmerGen Energy Company, LLC ) Docket No. 50-219 (License Renewal for Oyster Creek Nuclear )
Generating Station) )
AMERGEN BRIEF OPPOSING CITIZENS' NOTICE OF APPEAL OF LBP-06-11 Donald J. Silverman Kathryn M. Sutton Alex S. Polonsky Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 J. Bradley Fewell Assistant General Counsel Exelon Business Services Company 200 Exelon Way Kennett Square, Pennsylvania 19348 Counsel for AmerGen Energy Company, LLC April 7, 2006 I-WA/250775 fleSnp te- 6 cS'~(
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: ) April 7, 2006 AmerGen Energy Company, LLC )
Docket No. 50-219-LR (License Renewal for Oyster Creek Nuclear )
Generating Station) )
)
AMERGEN BRIEF OPPOSING CITIZENS NOTICE OF APPEAL OF LBP-06-1 1 INTRODUCTION Six environmental groups'-who now collectively refer to themselves as "Citizens"--
filed a Petition to Intervene in this license renewal proceeding for the Oyster Creek Nuclear Generating Station ("OCNGS"). See Request for Hearing and Petition for Leave to Intervene (Nov. 14, 2005) ("Petition to Intervene"). Citizens' sole contention related to corrosion monitoring of the upper and "sandbed" regions of the Oyster Creek drywell shell. Id. In LIIP-06-07, the presiding Atomic Safety and Licensing Board (Board) granted standing to Citizens and admitted their sole contention, but limited it to the sandbed region. See Memorandum and Order "(Denying New Jersey's Request for Hearing and Petition to Intervene, and Granting NIRS' Request for Hearing and Petition to Intervene)" (Feb. 27, 2006).
The six groups are Nuclear Information and Resource Service ("NIRS"), Jersey Shore Nuclear Watch, Inc.
("JSNW"), Grandmothers, Mothers and More for Energy Safety ("GRAMMES"), New Jersey Public Interest Research Group ("NJPIRG"), New Jersey Sierra Club ("NJ Sierra Club"), and New Jersey Environmental Federation ("NJEF").
2
Nearly three months after filing their Petition to Intervene, on February 7, 2006, Citizens filed with the Licensing Board a "Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention" ("Late-Filed Motion"). This Late-Filed Motion was triggered by a January 31, 2006 public telephone conference call hosted by the NRC Staff, the subject of which was proposed Interim Staff Guidance ("ISG") regarding the generic consideration of drywel]
shell corrosion in Mark I containments. Petitioners erroneously characterized the generic discussions regarding the proposed ISG as constituting new material facts relevant to their pending contention in the Oyster Creek license renewal proceeding. In LBP-06-1 1, the Licensing Board denied this Motion in its entirety, concurring with the rationale set forth in both AmerGen's and the Staff's oppositions to Citizens' Late-Filed Motion.
Citizens now impermissibly seek interlocutory review of LBP-06-1 1. As explained below, their attempt to seek review at this time is blatantly contrary to Commission regulations and precedent. It also wastes the parties' and the Commission's resources, as Citizens have simultaneously and impermissibly asked the Licensing Board to "reconsider" LBP-06-1 1. See Motion for Reconsideration of Motion to Add New Contentions or Supplement the Basis of the Current Contention and Leave to File Such a Motion (April 6, 2006). In fact, Citizens rely on the same brief for both their appeal to the Commission and their request to the Board for reconsideration. Such blatant disregard for the Commission's rules of practice should be summarily rejected.
ARGUMENT Citizens' attempt to secure an appeal is rife with deficiencies which render it unsupportable and subject to immediate rejection. Turning first to their purported bases for 3
appeal, Citizens cite 10 C.F.R. §§ 2.311 and 2.341. Quite simply, neither of these regulations affords Citizens the relief they seek.
As its title states, Section 2.311 is reserved for "interlocutory review of rulings on requests for hearing/petitions to intervene and selection of hearing procedures." LBP-06-1 1 is not a ruling on Citizens' Petition to Intervene, but rather a denial of late-filed contentions.
Therefore, Section 2.311 is irrelevant, inapposite, and unavailable as a procedural vehicle for Citizens and their claims.
The other regulation cited by Citizens-Section 2.341-is a similarly deficient basis for Citizens' "appeal." First, Commission regulations unambiguously prohibit a party from simultaneously filing an appeal with the Commission and a motion for reconsideration with the presiding Board. See 10 C.F.R. § 2.341 (b)(6) ("A petition for review will not be granted as to issues raised before the presiding officer on a pending motion for reconsideration"). Yet this is precisely what Citizens have done. The appeal should be rejected for this reason alone.2 Second, looking past these procedural deficiencies, Citizens' reason for seeking interlocutory appeal is wholly inadequate to justify Commission review. Citizens state that they seek appeal "[o]ut of an overabundance of caution, and in order to ensure their rights are preserved." Citizens Notice of Appeal of LBP 11 at 1. This rationale turns a blind eye to the fundamental fairness consideration pursuant to which the Commission "continues[s] to disfavor
[interlocutory] appeals, largely due to [its] general unwillingness to engage in 'piecemeal interference in ongoing Licensing Board proceedings."' Exelon Generation Co. (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 465-66 (2004) (quotingDuke Cogeina Stone and Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-7, 2 We note for the Commission that Citizens are represented by competent counsel and are not proceeding pro se.
4
55 NRC 207, 213 (2002)). That is why the Commission's regulations require that, in the absence of a Board certifying or referring an issue to the Commission:
[a] petition for interlocutory review will be granted only if the party demonstrates that the issue for which the party seeks interlocutory review:
(i) Threatens the party adversely affected by it with immediate and serious irreparableimpact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision; or (ii) Affects the basic structure of the proceeding in apervasive or unusual manner.
10 CFR § 2.341(f)(2) (emphasis added). See also Exelon Generation Co., CLI-04-31, 60 NRC at 466. Citizens ignore these standards and allege no immediate and serious irreparable impact from the Board's decision. Nor do they allege a pervasive or unusual change to the basic structure of the proceeding.
Nor can such impact or change even be reasonably inferred from their Notice of Appeal.
There is no serious irreparable impact because Citizens can appeal the Board's denial of their late-filed contentions at the conclusion of the proceeding. Similarly, "[c]laims that a board has wrongly rejected a contention ... are commonplace; such claims cannot be said to affect a proceeding's 'basic structure."' Exelon Generation Co., CLI-04-31, 60 NRC at 467. Although the Commission may accept interlocutory review "as an exercise of [its] inherent supervisory authority over agency adjudicatory proceedings" (Duke Energy Corp. (Catawaba Nuclear Statio:n, Units I and 2), CLI-04-21, 60 NRC 21, 27 (2004)), a "Board's routine ruling on contention admissibility provides no occasion for [the Commission] to invoke" that authority (Exelon Generation Co., CLI-04-31, 60 NRC at 466).
5
Thus, Citizens' rationale for their appeal is wholly inadequate. It appears that Citizens simply are seeking to preserve some undefined, unsupported right to appeal. They are expre3sly prohibited from doing under Sections 2.311 and 2.341. Such legally-deficient action is wastcful of NRC and party resources, and thus, Citizens' appeal should be summarily rejected.
Respectfully submitted, Donald J. Silverman, Esq.
Kathryn M. Sutton, Esq.
Alex S. Polonsky, Esq.
MORGAN, LEWIS & BOCKIUS, LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: (202) 739-5502 E-mail: dsilverman(c)morganlewis.com E-mail: ksutton(gmorganlewis.com E-mail: apolonskvy(morganlewis.com J. Bradley Fewell Assistant General Counsel Exelon Business Services Company 200 Exelon Way Kennett Square, Pennsylvania 19348 Phone: (610) 765-5580 E-mail: Bradlev.Fewell(0)exeloncorp.com COUNSEL FOR AMERGEN ENERGY COMPANY, LLC Dated in Washington, D.C.
this 7th day of April 2006 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: ) April 7, 2006 AmerGen Energy Company, LLC )
Docket No. 50-219 (License Renewal for Oyster Creek Nuclear )
Generating Station) )
)
CERTIFICATE OF SERVICE I hereby certify that copies of AmerGen's Brief Opposing Citizens' Notice of Appeal of LBP-06-11 were served this day upon the persons listed below, by E-mail and first class mail, unless otherwise noted.
Secretary of the Commission* Administrative Judge U.S. Nuclear Regulatory Commission E. Roy Hawkens, Chair Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Panel One White Flint North Mail Stop - T-3 F23 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852-2738 Washington, D.C. 20555-0001 (E-mail: HEARINGDOCKET(3,nrc.gov (E-mail: erh(i),nrc.gov)
Administrative Judge Administrative Judge Paul B. Abramson Anthony J. Baratta Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 (E-mail pba(inrc.gov ) (E-mail: aib5(a)nrc.gov)
I-WA/2551013
John A. Covino Office of Commission Appellate Ellen Barney Balint Adjudication**
Valerie Anne Gray U.S. Nuclear Regulatory Commission Caroline Stahl Washington, DC 20555-0001 Division of Law Environmental Permitting and Counseling Section P.O. Box 093 Hughes Justice Complex Richard Webster Trenton, NJ 08625 Rutgers Environmental Law Clinic (E-mail: iohn.covino(adol.lps.state.ni.us) 123 Washington Street (E-mail: EIlen.Balint(ilps.state.nj.us) Newark, NJ 07102-5695 (E-mail: Valerie.Gray(idol.lps.state.ni.us) (E-mail: rwebster(ikinoy.rutgers.edq)
(E-mail: Caroline.Stahl(ilps.state.nj.us Suzanne Leta Paul Gunter NTPIRG Nuclear Information and Resource Service 11 N. Willow Street 1424 16th Street, NW Trenton, NJ 08608 Suite 404 (E-mail: sleta(Onipirg.org) Washington, DC 20036 (E-mail: pgunteranirs.orm)
Ann P. Hodgdon Office of the General Counsel, 0-15D21 U.'S. Nuclear Regulatory Commission Washington, D.C. 20555 (E-mail: aph(qnrc.gov)
- Original and 2 copies
- First Class Mail only Alex S. Polonsky