ML061070559
| ML061070559 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 04/17/2006 |
| From: | Hodgdon A NRC/OGC |
| To: | NRC/OCM |
| Hodgdon, Ann P. 415-1797 | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, LBP-06-11, RAS 11552 | |
| Download: ML061070559 (7) | |
Text
April 17, 2006 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR
)
(Oyster Creek Nuclear Generating Station) )
NRC STAFF BRIEF OPPOSING NIRSS NOTICE OF APPEAL OF LBP-06-11 INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b)(3), the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby answers the Citizens Notice of Appeal of LBP-06-11 filed by Nuclear Information and Resource Service, Jersey Shore Nuclear Watch, Inc., Grandmothers, Mothers, and More for Energy Safety, New Jersey Public Interest Research Group, New Jersey Sierra Club, and New Jersey Environmental Federation (collectively NIRS). In LBP-06-11, the Atomic Safety and Licensing Board (Board) denied NIRSs motion for leave to add contentions or supplement the basis of its original contention. For the reasons discussed below, the Commission should deny NIRSs request for review.
BACKGROUND NIRS originally sought to intervene in this proceeding in November of 2005. Request for Hearing and Petition for Leave to Intervene, dated November 14, 2005 (Petition). While awaiting a Board decision on its Petition, NIRS filed a motion requesting leave to add contentions or supplement the basis of the sole contention submitted as part of its Petition.
See Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention, dated February 7, 2006. Both the Staff and AmerGen opposed this motion. See NRC Staffs Response to Motion for Leave to Add Contentions or Supplement the Basis of the Current
Contention, dated February 17, 2006; and AmerGens Answer to Petitioners Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention, dated February 17, 2006.
Subsequently, the Licensing Board issued an order granting NIRSs request for hearing and admitting the following contention, as re-framed by the Board:
AmerGens License Renewal Application fails to establish an adequate aging management plan for the sand bed region of the drywell liner, because its corrosion management program fails to include periodic UT measurements in that region throughout the period of extended operation and, thus, will not enable AmerGen to determine the amount of corrosion in that region and thereby maintain the safety margins during the term of the extended license.
Memorandum and Order (Denying New Jerseys Request for Hearing and Petition to Intervene, and Granting NIRSs Request for Hearing and Petition to Intervene), LBP-06-07 (February 27, 2006).
As noted above, in LBP-06-11, the Licensing Board denied NIRSs motion for leave to add contentions. Memorandum and Order (Denying NIRSs Motion for Leave to Add Contentions or Supplement the Basis of the Original Contention), LBP-06-11 (March 22, 2006).
NIRS now improperly seeks simultaneous Commission review of this Order, pursuant to 10 C.F.R. § 2.311 and 10 C.F.R. § 2.341, and Board reconsideration of the same Order, pursuant to 10 C.F.R. § 2.323(e). NIRS employs the same brief for both purposes.
DISCUSSION NIRSs Notice of Appeal should be summarily rejected. NIRS seeks review pursuant to 10 C.F.R. §§ 2.311 and 2.341. Neither of these regulations, however, provides an avenue for this appeal. Section 2.311 only allows for appeals on rulings with respect to requests for hearing, petitions to intervene, and selection of hearing procedures. NIRS, which is already a party to this proceeding, is not appealing from a denial of a request for hearing; it is appealing from a denial of a motion to add late-filed contentions. Its petition to intervene and request for
hearing were granted in LBP-06-07 on February 27, 2006. Such an appeal is interlocutory and is not authorized by § 2.311.
Nor is NIRS allowed to seek Commission review under 10 C.F.R. § 2.341. As discussed above, NIRS simultaneously filed a Notice of Appeal to the Commission and a motion for reconsideration to the Board. This action disregards Commission regulations. Section 2.341(b)(6) states that a petition for review will not be granted as to issues raised before a presiding officer on a pending motion for reconsideration. The Commission disapproves of simultaneously seeking reconsideration of a Licensing Board decision and appealing the same Board ruling, because that practice would result in rulings on the same issues at the same time from both a trial and appellate forum.1 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-01, 53 NRC 1, 2 (2001); International Uranium (USA) Corp.,
(White Mesa Uranium Mill), CLI-97-9, 46 NRC 23, 24-25 (1997).
The Commission generally disfavors interlocutory review, reserving it for those cases where a petitioner has demonstrated that the disputed ruling threatens the aggrieved party with serious, immediate, and irreparable harm or where it will have a pervasive or unusual effect on the proceedings below. Private Fuel Storage, CLI-01-01, 53 NRC at 3. The Commission has held that refusal to admit a contention from a party with other admitted contentions does not constitute a pervasive effect on the litigation that would justify interlocutory review. Id. NIRS claims neither a pervasive or unusual effect, nor irreparable harm. Instead NIRS asserts that its appeal is merely taken, out of an overabundance of caution, to ensure their rights are preserved. Notice of Appeal of LBP-06-11 at 1. NIRS does not even cite the Commissions standard for interlocutory review, much less argue that it has satisfied it.
1 In some similar situations, the Commission has reserved ruling until the Licensing Board disposed of the motion for reconsideration, in order to avoid this problem. See White Mesa, CLI-97-9, 46 NRC at 24-25. However, because NIRS has further failed to satisfy the standards for interlocutory review, denial of this appeal is appropriate. See Private Fuel Storage, CLI-01-01, 53 NRC at 5.
CONCLUSION For the reasons stated above, the Commission should deny NIRSs appeal and decline to review the Boards decision.
Respectfully submitted,
/RA/
Ann P. Hodgdon Steven C. Hamrick Counsel for NRC Staff Dated at Rockville, Maryland this 17th day of April, 2006
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR
)
(Oyster Creek Nuclear Generating Station) )
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. § 2.314(b), the following information is provided:
Name: Steven C. Hamrick Address: Office of the General Counsel, 0-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Telephone Number: (301) 415-4106 Fax Number: (301) 415-3725 E-mail Address: sch1@nrc.gov Admissions: Maryland Name of Party: NRC Staff Respectfully submitted,
/RA/
Steven C. Hamrick Counsel for NRC Staff Dated at Rockville, Maryland this 17th day of April 2006
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR
)
(Oyster Creek Nuclear Generating Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF BRIEF OPPOSING NIRSS NOTICE OF APPEAL OF LBP-06-11 and NOTICE OF APPEARANCE of Steven C. Hamrick in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system as indicated by an asterisk, or by electronic mail, with copies by U.S. mail, first class, as indicated by double asterisk, this 17th day of April, 2006.
E. Roy Hawkens, Chair* Office of the Secretary*
Administrative Judge ATTN: Docketing and Service 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 HEARINGDOCKET@nrc.gov ERH@nrc.gov Office of Commission Appellate Anthony J. Baratta* Adjudication*
Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3F23 OCAAMail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Debra Wolf*
AJB5@nrc.gov Law Clerk Atomic Safety and Licensing Board Paul B. Abramson* Mail Stop: T-3F23 Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3F23 DAW1@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Lisa P. Jackson, Acting Commissioner**
PBA@nrc.gov New Jersey Department of Environmental Protection P.O. Box 402 Trenton, NJ 08625-0402 Lisa.Jackson@dep.state.nj.us
Jill Lipoti, Director** Alex S. Polonsky, Esq.**
New Jersey Department of Morgan, Lewis & Bockius LLP Environmental Protection 1111 Pennsylvania Ave., N.W.
Division of Environmental Safety and Health Washington, DC 20004 P.O. Box 424 apolonsky@morganlewis.com Trenton, NJ 08625-0424 Jill.Lipoti@dep.state.nj.us Paul Gunter, Director**
Reactor Watchdog Project Kathryn M. Sutton, Esq.** Nuclear Information Morgan, Lewis & Bockius LLP And Resource Service 1111 Pennsylvania Ave., NW 1424 16th Street, NW, Suite 404 Washington, DC 20004 Washington, DC 20036 ksutton@morganlewis.com pgunter@nirs.org Ron Zak** J. Bradley Fewell, Esq.**
New Jersey Department of Exelon Corporation Environmental Protection 200 Exelon Way, Suite 200 Nuclear Engineering Kennett Square, PA 19348 P.O. Box 415 bradley.fewell@exeloncorp.com Trenton, NJ 08625-0415 Ron.Zak@dep.state.nj.us John A. Covino, Esq.**
Valerie Anne Gray, Esq.
Suzanne Leta** Deputy Attorneys General New Jersey Public Interest Research Group Division of Law 11 N. Willow St. Environmental Permitting and Counseling Trenton, NJ 08608 Section sleta@njpirg.org Hughes Justice Complex Trenton, NJ 08625 Donald Silverman, Esq.** john.covino@dol.lps.state.nj.us Morgan, Lewis, & Bockius LLP Valerie.Gray@dol.lps.state.nj.us 1111 Pennsylvania Avenue, NW Washington, DC 20004 Richard Webster, Esq.**
dsilverman@morganlewis.com Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 rwebster@kinoy.rutgers.edu
/RA/
Ann P. Hodgdon Counsel for NRC Staff