ML061170170
| ML061170170 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 04/27/2006 |
| From: | Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 11593 | |
| Download: ML061170170 (12) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 11593 DOCKETED 04/27/06 ATOMIC SAFETY AND LICENSING BOARD SERVED 04/27/06 Before Administrative Judges:
E. Roy Hawkens, Chairman Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of Docket No. 50-0219-LR AMERGEN ENERGY COMPANY, LLC ASLBP No. 06-844-01-LR (License Renewal for Oyster Creek Nuclear April 27, 2006 Generating Station)
MEMORANDUM AND ORDER (Denying NIRSs Motion for Reconsideration)
I. INTRODUCTION On February 27, 2006, this Board granted a hearing request submitted by six organiza-tions1 - hereinafter referred to collectively as NIRS - opposing an application by AmerGen Energy Company, LLC (AmerGen) to renew its operating license for the Oyster Creek Nuclear Generating Station (Oyster Creek) for twenty years beyond the current expiration date of April 9, 2009. See LBP-06-07, 63 NRC __ (slip op.) (Feb. 27, 2006). This Board admitted one con-tention for litigation; namely, NIRSs challenge to the adequacy of AmerGens aging manage-ment program for measuring corrosion in the sand bed region of Oyster Creeks drywell liner (LBP-06-07, 63 NRC at __ (slip op. at 33)).
On February 7, 2006, while NIRSs hearing request was still pending, NIRS filed a Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention
[hereinafter NIRS Motion to Add Contentions]. In its Motion, NIRS stated that on January 31, 1
The six organizations are Nuclear Information and Resource Service (NIRS),
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 Environ-mental Federation.
2006, the NRC Staff conducted a telephonic conference call with the Nuclear Energy Institute, industry representatives, and interested members of the public. During that conference call, argued NIRS, the NRC Staff allegedly communicated new information that supported admission of the following two additional contentions (NIRS Motion to Add Contentions at 11, 13):
- 1. AmerGens monitoring regime for the inaccessible areas of the drywell liner is inadequate and must at least include ongoing, regular, direct measurements of thickness at all areas where corrosion could have occurred for the life of the plant and clear acceptance criteria for the measurements; and
- 2. In addition to direct testing of the thickness of the drywell liner, AmerGen must conduct a root cause analysis of the corrosion problem and implement a verifi-able program to eliminate leakage of water onto the drywell liner.
Alternatively, NIRS sought to supplement its original contention with the allegedly new information arising from the conference call (id. at 10).2 On March 22, 2006, this Board denied NIRSs Motion to Add Contentions. See LBP 11, 63 NRC __ (slip op.) (Mar. 22, 2006).
On April 6, 2006, NIRS filed a timely motion requesting that this Board reconsider the decision denying NIRSs Motion to Add Contentions. 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 (Apr. 6, 2006) [hereinafter NIRS Motion for Reconsideration].3 2
AmerGen and the NRC Staff opposed NIRSs Motion to Add Contentions. See AmerGens Answer to [NIRSs] Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention (Feb. 17, 2006); NRC Staffs Response to Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention (Feb. 17, 2006).
3 AmerGen and the NRC Staff opposed NIRSs Motion for Reconsideration. See AmerGens Answer in Opposition to [NIRSs] Motion for Reconsideration (Apr. 17, 2006) [here-inafter AmerGen Opposition]; NRC Staffs Response to NIRSs Motion for Reconsideration (Apr. 17, 2006) [hereinafter NRC Staff Opposition].
For the reasons discussed below, we deny NIRSs Motion for Reconsideration.4 II. ANALYSIS A. Regulatory Standard Governing Motions for Reconsideration Motions seeking reconsideration of licensing board decisions are evaluated under 10 C.F.R. § 2.323(e), which provides that such motions may not be filed except upon leave of the
[licensing board] . . . upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid. The Commission adopted this standard as part of the 2004 amendments to the adjudicatory Rules of Practice. See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004)).
Previously, the standard for granting a motion for reconsideration was defined under NRC case law, which allowed a presiding officer to reexamine existing evidence that may have been misunderstood or overlooked, or to clarify a ruling on a matter (69 Fed. Reg. at 2207). In adopting 10 C.F.R. § 2.323(e), the Commission admonished that - pursuant to the compelling circumstances standard embodied in the regulation - reconsideration is an extraordinary ac-tion and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier (ibid.). Section 2.323(e) thus creates a higher standard than the existing case law [and] is intended to permit reconsideration only where manifest injustice would occur . . . and the claim could not have been raised earlier (ibid.). See also Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 4
Contemporaneously with its Motion for Reconsideration, NIRS filed a Notice of Appeal to the Commission challenging the identical Memorandum and Order that is at issue here. This was improper. See, e.g., Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-630, 13 NRC 84, 85 (1981) (a litigant ought not simultan-eously seek Licensing Board reconsideration of a ruling and appellate review of the same ruling); accord Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-01, 53 NRC 1, 3 (2001). Cf. 10 C.F.R. § 2.341(b)(6) (A petition for review will not be grant-ed as to issues raised before the presiding officer on a pending motion for reconsideration.).
(2004) (a party seeking reconsideration must bring[] decisive new information to [the adjudi-cators] attention or demonstrate[] a fundamental . . . misunderstanding of a key point by the adjudicator).
B. NIRS Has Not Satisfied The Requirements For Seeking Reconsideration NIRS asserts (NIRS Motion for Reconsideration at 3) that the Board should reconsider its denial of NIRSs Motion to Add Contentions because: (1) the Board misinterpreted the law regarding what constitutes new information under 10 C.F.R. § 2.309(f)(2) for purposes of add-ing or amending contentions; (2) the Board failed to note a key fact (i.e., that ongoing corrosion is occurring above the sand bed region); and (3) the Board erroneously ruled that NIRSs newly presented contentions failed to satisfy the admissibility requirements of 10 C.F.R. § 2.309(f)(1).
AmerGen and the NRC Staff argue (AmerGen Opposition at 5-10; NRC Staff Opposition at 4-9) that NIRSs Motion for Reconsideration should be denied because it fails to demonstrate compelling circumstances that would justify reconsideration, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid (10 C.F.R. § 2.323(e)). We agree with AmerGen and the NRC Staff.5
- 1. The Board Declines To Reconsider Its Ruling That NIRSs Newly Presented Information Failed To Satisfy 10 C.F.R. § 2.309(f)(2)
NIRS argues that the Board should reconsider its finding that the information from the telephone conference call of January 31, 2006, on which NIRS sought to add or amend contentions, did not satisfy the standard in 10 C.F.R. § 2.309(f)(2). In support of that argument, 5
The NRC Staff argues that NIRSs Motion should be denied on the procedural ground that NIRS failed, in contravention of 10 C.F.R. § 2.323(e), to seek leave to file the motion (NRC Staff Opposition at 3). We disagree. We believe that NIRSs Motion - which expressly requests leave of the Board to file (NIRS Motion for Reconsideration at 1), and which purports to explain why relief should be granted - does not suffer a fatal procedural defect.
Rather, it suffers a fatal substantive defect in that it fails to demonstrate extraordinary and compelling circumstances warranting reconsideration, as is required by 10 C.F.R. § 2.323(e).
See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 641 (2004).
NIRS asserts that the Board improperly (NIRS Motion for Reconsideration at 3-8): (1) failed to appreciate the significance of the new information arising from the conference call on January 31, 2006; and (2) ignored the rationale in Louisiana Energy Servs., L.P. (Claiborne Enrichment Center), LBP-91-41, 34 NRC 332 (1991). Neither assertion has merit.
First, NIRSs assertion that the Board failed to appreciate the significance of the infor-mation discussed during the January 31, 2006 conference call is simply wrong. This Board fully considered the entirety of that information and its import, and we concluded that it failed to satisfy the standard in section 2.309(f)(2) for adding or amending contentions. NIRSs current argument regarding the putative significance of that information provides no basis for granting reconsideration, because NIRS simply repeats assertions it previously made in its Motion to Add Contentions regarding the informations alleged newness and materiality. NIRSs recycled arguments fail to persuade us now - as they failed to persuade us earlier (see LBP-06-11, 63 NRC at __ (slip op. at 7-8, 12)) - that the information arising from the conference call was new or materially different from information previously available. Moreover, NIRSs effort to use a motion for reconsideration to reargue facts and rationales that already have been rejected is inappropriate (69 Fed. Reg. at 2207).
Nor is there merit to NIRSs assertion that reconsideration is mandated by the rationale in LES, which - according to NIRS (NIRS Motion for Reconsideration at 5) - demonstrates that this Board erred in analogizing the January 31, 2006 conference call to a Staff-issued Request for Additional Information (RAI). First, no licensing board decision issued in another proceed-ing can mandate reconsideration, because such a decision has no binding precedential effect beyond the immediate proceeding in which it was issued (Sequoyah Fuels Corp., CLI-95-02, 41 NRC 179, 190 (1995)).6 6
We do not mean to suggest that a licensing board decision could never support (continued...)
In any event, LES is inapposite, because it involved a petitioners initial request to admit contentions, not a motion to add or amend contentions. Moreover, the facts in LES are signifi-cantly different than those in the instant case. In LES, the licensing board admitted a conten-tion that was based on an NRC Staff letter to the applicant regarding the applicants use of a published regulatory guide in preparing its application. The licensing board held that the infor-mation in the letter provided [the petitioner] with a starting point, and the [p]etitioner went on to explain how the alleged inadequacies support its contention and provided additional information in support (LES, LBP-91-41, 34 NRC at 339). Here, in contrast, the January 31, 2006 confer-ence call formed the entirety of NIRSs request to add or amend, and NIRS failed to provide supporting information that sufficed to identify an alleged deficiency that is specific to Oyster Creek or its License Renewal Application (LBP-06-11, 63 NRC at __ (slip op. at 13)).7 Addi-tionally, the regulatory guide that provided the LES petitioner with a starting point for framing a contention is not analogous to the conference call of January 31, 2006. The regulatory guide is a document that describes methods acceptable to the NRC Staff for complying with the Com-missions regulations, and in LES, a specific applicant used the regulatory guide in preparing a specific application (LES, LBP-91-41, 34 NRC at 338-39). No similar nexus existed here 6
(...continued) reconsideration. See Hydro Resources, Inc., LBP-06-01, 63 NRC 41, 59 (2006) (the preceden-tial value of a licensing board decision lies in its power to persuade). For example, a licensing board decision might support reconsideration if it were issued after the decision that is being challenged by a motion to reconsider and if it persuasively suggested the existence of an error in [the challenged] decision, which could not have reasonably been anticipated, that renders the decision invalid (10 C.F.R. § 2.323(e)). That is not this situation. Here, NIRS relies on a licensing board decision that (1) is over a decade old, (2) was not cited in previous pleadings, (3) is distinguishable from the challenged decision in material respects, and (4) does not reveal an error that renders the challenged decision invalid.
7 Cf. Baltimore Gas & Elec. Co., CLI-98-25, 48 NRC 325, 350 (1998) (Commission acknowledges that an RAI may, in some cases, provide a starting point from which a petitioner may posit an admissible contention; however, the Commission affirmed the licensing boards rejection of petitioners contention, which offer[ed] no specific safety concerns arising out of the RAIs but [chose] instead to rest on their mere existence).
between AmerGens License Renewal Application and the January 31, 2006 conference call, in which the NRC Staff engaged in a wide-ranging discussion with a broad and diverse audience regarding possible generic issues relating to all reactors of a certain design (LBP-06-11, 63 NRC at __ (slip op. at 9-11)).
In sum, NIRS has not identified a clear and material error (10 C.F.R. § 2.323(e)) in the Boards interpretation and application of 10 C.F.R. § 2.309(f)(2) that warrants reconsideration.8
- 2. NIRS Fails To Show That The Board Overlooked A Critical Fact That Renders Its Decision Invalid NIRS argues that the Boards decision in LBP-06-11 warrants reconsideration because it failed to acknowledge the critical fact that AmerGen corrected its Answer to NIRSs Petition to Intervene to clarify that corrosion is ongoing in two of four regions in the upper area of the dry-well liner that are being monitored (NIRS Motion for Reconsideration at 8). See Letter from Alex S. Polonsky to Judge E. Roy Hawkens (Mar. 24, 2006) [hereinafter Polonsky Letter].9 We disagree.
First, this Boards denial of NIRSs Motion to Add Contentions was wholly unrelated to the content of AmerGens Answer to NIRSs Petition to Intervene. We denied the Motion because: (1) it failed to satisfy the requirements of 10 C.F.R. § 2.309(f)(2) for submitting new or amended contentions (LBP-06-11, 63 NRC at __ (slip op. at 6-8, 12)); (2) it failed to satisfy 8
In our decision rejecting NIRSs Motion to Add Contentions, we explained that NIRSs newly presented contentions were nontimely under 10 C.F.R. § 2.309(f)(2) and, accordingly, they must satisfy section 2.309(c) to be admitted (LBP-06-11, 63 NRC at __ (slip op. at 5 n.3)). NIRS made no attempt, however, to show that its contentions satisfied section 2.309(c), which provided an independent and sufficient basis for not admitting its belated con-tentions (ibid.). The NRC Staff observes (NRC Staff Opposition at 4-5) that NIRSs Motion for Reconsideration fails to address this aspect of the Boards decision, and that this omission provides an additional ground for rejecting NIRSs Motion. We agree.
9 AmerGen corrected a sentence on page 21 of its Answer, which stated: Based on these measurements and inspections, AmerGen concluded that corrosion of the drywell shell has been arrested, including in the sand bed region. Application at 3.5-20 to -21 (Polonsky Letter at 2). AmerGens letter of correction stated that the word including could cause confusion and should be deleted.
the requirements of 10 C.F.R. § 2.309(c)(1) for submitting nontimely contentions (id. at 5 n.3);
and (3) the newly presented contentions would not have satisfied the admissibility requirements of 10 C.F.R. § 2.309(f)(1) in any event (id. at 9-11, 12-14).
Second, the existence vel non of continuing corrosion in the upper region of the drywell liner was irrelevant to the Boards denial of NIRSs Motion to Add Contentions, because we already had ruled in LBP-06-07 that - in light of AmerGens ongoing aging management pro-gram for measuring corrosion in the upper region - NIRS failed to submit an admissible conten-tion with respect to that region (LBP-06-07, 63 NRC at __ (slip op. at 32 & n.27)). AmerGens clarification of its Answer to NIRSs Petition to Intervene has no impact on either of this Boards prior rulings.
Third, the existence of continuing corrosion in the upper region of the drywell liner is not a new or compelling fact warranting reconsideration. That fact is documented in AmerGens License Renewal Application, and NIRS had access to the License Renewal Application for nearly four months prior to filing its November 14, 2005 Petition to Intervene.10 It is well settled that petitioners have an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention (Duke Power Co.
(Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 468 (1982)). That NIRS neglected to make timely discovery of publicly available facts militates decisively against recon-sideration.
10 The pertinent provision in the License Renewal Application states that corrosion in the upper region of the drywell continues to decline (License Renewal Application at 3.5-21). See also id. at B-76 (the rate of corrosion in the upper region of the drywell liner is in a declining trend).
- 3. The Board Declines To Reconsider Its Ruling That The New Contentions Were Inadmissible Under 10 C.F.R. § 2.309(f)(1)
NIRS argues that the Board should reconsider its ruling that NIRSs new contentions failed to demonstrate a genuine dispute on a material issue of fact and therefore did not satisfy 10 C.F.R. § 2.309(f)(1) (NIRS Motion for Reconsideration at 9-10). This argument lacks merit.
In denying NIRSs Motion to Add New Contentions, this Board held that as a general rule, the NRC Staffs mere interest in an issue, its solicitation of public input on an issue, or its proposed revision to a generic guidance document will not - standing alone and lacking an articulated plant-specific safety concern - suffice as a contentions cornerstone (LBP-06-11, 63 NRC at __ (slip op. at 10)). After finding that NIRS had failed to link any specific information arising from the [January 31, 2006] conference call to specific portions of [AmerGens License Renewal] [A]pplication that are deficient, the Board ruled the nontimely contentions were inad-missible for failing to satisfy section 2.309(f)(1)(vi) (id. at 10-11).
NIRSs Motion for Reconsideration makes no attempt to show the existence of any circumstances - much less compelling circumstances (10 C.F.R. § 2.323(e)) - that render the Boards admissibility analysis invalid. Instead, NIRS simply repeats the arguments it advanced in its Motion to Add New Contentions (NIRS Motion for Reconsideration at 9-10), and asserts that those arguments suffice to show a genuine dispute about a material issue (ibid.). At bottom, NIRS is expressing its bare disagreement with this Boards decision, which does not warrant the filing of a motion for reconsideration. See 69 Fed. Reg. at 2207 (reconsideration motion should not be used to reargue facts and rationales which were . . . discussed earlier and rejected).
III. CONCLUSION For the foregoing reasons, we deny NIRSs Motion for Reconsideration.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD11
/RA/
E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE
/RA/
Dr. Paul B. Abramson ADMINISTRATIVE JUDGE
/RA/
Dr. Anthony J. Baratta ADMINISTRATIVE JUDGE Rockville, Maryland April 27, 2006 11 Copies of this Memorandum and Order were sent this date by Internet e-mail to counsel for: (1) AmerGen; (2) New Jersey; (3) NIRS; and (4) the NRC Staff.
UNITED STATES OF AMERICA NUCLEAR REGULATORY 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 foregoing LB MEMORANDUM AND ORDER (DENYING NIRSS MOTION FOR RECONSIDERATION) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate Administrative Judge Adjudication E. Roy Hawkens, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 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, DC 20555-0001 Washington, DC 20555-0001 Ann P. Hodgdon, Esq. Richard Webster, Esq.
Patrick A. Moulding, Esq. Rutgers Environmental Law Clinic Steven C. Hamrick, Esq. 123 Washington Street Office of the General Counsel Newark, NJ 07102-5695 Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
2 Docket No. 50-219-LR LB MEMORANDUM AND ORDER (DENYING NIRSS MOTION FOR RECONSIDERATION)
Paul Gunter, Director Donald J. Silverman, Esq.
Reactor Watchdog Project Kathryn M. Sutton, Esq.
Nuclear Information Alex S. Polonsky, Esq.
and Resource Service Morgan, Lewis, & Bockius LLP 1424 16th Street, NW, Suite 404 1111 Pennsyvlania Ave., NW Washington, DC 20036 Washington, DC 20004 Bradley M. Campbell, Commissioner Jill Lipoti, Director New Jersey Department of New Jersey Department of Environmental Protection Environmental Protection P.O. Box 402 Division of Environmental Safety and Health Trenton, NJ 08625-0402 P.O. Box 424 Trenton, NJ 08625-0424 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 Trenton, NJ 08625-0415 Suzanne Leta John A. Covino, Esq.
NJPIRG Ellen Barney Balint, Esq.
11 N. Willow St. Valerie Anne Gray, Esq.
Trenton, NJ 08608 Caroline Stahl, Esq.
Deputy Attorneys General New Jersey Office of the Attorney General Environmental Permitting &
Counseling Section Division of Law Hughes Justice Complex P.O. Box 093 Trenton, NJ 08625
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 27th day of April 2006