ML070820338
| ML070820338 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 03/20/2007 |
| From: | Polonsky A AmerGen Energy Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Abramson P, Anthony Baratta, Hawkins E Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 13285 | |
| Download: ML070820338 (7) | |
Text
- ,_R145 DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION March 20, 2007 (2:48pm)
OFFICE OF SECRETARY ATOMIC SAFETY AND LICENSING BOARD RULEMAKINGS AND ADJUDICATIONS STAFF Before Administrative Judges:
E. Roy Hawkins, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta
)
In the Matter of: ) March 20, 2007
)
AmerGen Energy Company, LLC )
) Docket No. 50-219 (License Renewal for Oyster Creek Nuclear )
Generating Station) )
AMERGEN MOTION TO STRIKE In accordance with 10 C.F.R. § 2.323(a), AmerGen Energy Company, LLC (AmerGen), hereby files this Motion to Strike in response to "Citizens' Combined Reply to AmerGen's and NRC Staff's Answer to Their Petition to Add a New Contention" (March 13, 2007) (Reply).' As demonstrated below, to the extent Citizens' Reply addresses AmerGen's March 5, 2007 "Answer Opposing Citizens' Motion for Leave to Add a Contention and Motion to Add a Contention" (Answer), it is impermissibly late.
Citizens' Reply also impermissibly presents - for the first time - a new purported basis for their most recent late-filed contention, while ignoring the criteria of 10 C.F.R. § 2.3 09 Citizens are 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. As required by 10 C.F.R. § 2.323(b), counsel for AmerGen contacted counsel for Citizens, in an attempt to resolve the issues in this motion. Citizens' counsel did not agree to the relief requested in this motion. Counsel for the Staff did not express an opinion regarding this motion.
1-WA/2720197 enpi --5Ec)/- o4a/
I. THE BOARD SHOULD DISREGARD CITIZENS' RESPONSES TO AMERGEN'S ANSWER BECAUSE THEIR REPLY IS UNTIMELY Citizens' Reply to AmerGen's Answer is untimely. AmerGen filed its Answer via electronic mail prior to 5 p.m. on March 5, 2007.- Thus, under 10 C.F.R. §§ 2.306 and 2.309(h)(2), Citizens' Reply was due on Monday, March 12, 2007, but they did not file until Tuesday, March 13. AmerGen therefore requests that the Board strike Citizens' Reply as it pertains to AmerGen's Answer, including (1) Citizens' challenge to AmerGen's argument that certain issues were resolved during the February 1, 2007 ACRS Full Committee meeting, Reply at 3-5, 6 n. 1, 8-9; and (2) their response to AmerGen's arguments regarding the non-timely filings requirements in 10 C.F.R. § 2.309(c)(1), Reply at 9-10.3 II. THE BOARD ALSO SHOULD DISREGARD CITIZENS' NEW ARGUMENTS BASED ON A FEBRUARY 9 E-MAIL Citizens' Reply also includes impermissible new arguments. In a belated attempt to rehabilitate their newest late-filed contention, Citizens argue - for the first time - that "Sandia continues to disagree about the appropriate capacity reduction factor." Reply at
- 9. Citizens rely on an e-mail sent by Sandia's Michael Hessheimer to the NRC Staff on February 9, 2007 (February 9 e-mail),! claiming that "[i]t has now become clear ... that Sandia does not agree with the Staff's presentation at the February 1, 2007 ACRS Counsel for Citizens has confirmed that he received AmerGen's Answer prior to 5 p.m. on March 5.
In their response on this point, Citizens assume that AmerGen has been producing documents regarding GE's derivation, in the early 1990s, of the acceptance criteria for the Oyster Creek drywell shell. Reply at 9. The Board, however, has specifically excluded challenges to the acceptance criteria from the admitted contention. Memorandum and Order, LBP-06-22 (slip op. at 10-14) (Oct. 10, 2006). Accordingly, AmerGen's mandatory disclosures do not include documents regarding GE's derivation of the acceptance criteria.
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meeting." Reply at 8; see also id. at 3 (first paragraph), 4-5 (Section II.A), 6 n. 1.
Desperate to recover from their apparent failure to support their newest late-filed contention with any of the four original bases in their February 6, 2007 "Motion for Leave to Add a New Contention and Motion to Add a Contention" (Motion), Citizens now attempt to proffer a fifth purported basis for their new contention. In doing so, Citizens utterly ignore the requirements for late-filed amendments to contentions in 10 C.F.R. § 2.309(f)(2), and the non-timely filing criteria in Section 2.309(c)(1), such as the required showing that late-filed amendments to contentions be based on new, materially different information. Because their "late attempt to reinvigorate [a] thinly supported contention[] by presenting [an] entirely new argument[] in the reply brieffl" is prohibited, Citizens' arguments based on the February 9 e-mail should be stricken.5- Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-25, 60 N.R.C. 223, 224 (2004), reconsiderationdenied, CLI-04-35, 60 N.R.C. 619 (2004).
After failing to reference the February 1 Advisory Committee on Reactor Safeguards (ACRS) Full Committee Meeting in their Motion, Citizens now point to the February 9 e-mail, claiming that they, "have not had the chance to explore how Dr.
Miller reached his conclusions about the enhanced capacity reduction factor presented at the February 1, 2007 meeting." Reply at 9. Citizens had the opportunity to explore Dr.
Further, in proffering the February 9 e-mail alone, Citizens yet again fail to provide full candor to the Board, and offer only a preliminary and incomplete analysis of the technical issues in support of their late-filed contention. The NRC Staff served the Board and Citizens with its March 8 response to the February 9 e-mail. The Staff's response emphasized that, "Mr. Hessheimer agreed with the staff's determination that the [Sandia] analysis did not incorporate the effects of hoop tension to modify the capacity reduction factor." Memorandum from P. T. Kuo, NRR, to F.
Gillespie, ACRS, "Advisory Committee on Reactor Safeguards Review of the Oyster Creek Nuclear Generating Station License Renewal Application - Safety Evaluation Report," at I (March 8, 2007), available in ADAMS at ML070650376.
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Miller's conclusions in their Motion, but instead left those conclusions unchallenged.
Having chosen not to dispute this information in their Motion, the Board should not permit Citizens to now "add new bases or new issues that simply did not occur to them at the outset," CLI-04-25, 60 N.R.C. at 225 (internal quotations omitted), without even addressing the late-filing criteria. By not addressing the late-filing criteria for amended contentions, Citizens' inclusion of this information in their Reply violates the "cardinal rule" of fairness in Commission proceedings. See Houston Lighting & Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 N.R.C. 521, 524 (1979).6 III. CONCLUSION Because Citizens failed to submit their Reply to AmerGen's Answer in a timely fashion, and failed to address the criteria in 10 C.F.R. §§ 2.309(0(2) and (c)(1) for In LBP-06-7, this Board permitted Citizens to. introduce additional support for their original contention by attaching previously-existing documents as exhibits in their reply because AmerGen was already "on notice" as to the issues in contention. 63 N.R.C. 188, 226-27 (2006). Here, in contrast, Citizens attach a new document, containing new information not available at the time they filed their contention, as an additional basis.
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amending their late-filed contention, the Board should grant AmerGen's Motion to Strike the arguments specified above, 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 dsilverman(fi*morganlewis.com ksutton01morganlewis.com apolonskyLmrnorganlewis.com J. Bradley Fewell, Esq.
Associate General Counsel Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 Phone: (630) 657-3769 Bradley.Fewell.Cexeloncorp.com COUNSEL FOR AMERGEN ENERGY COMPANY, LLC Dated in Washington, D.C.
this 20th day of March 2007.
.5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: ) March 20, 2007
)
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 Motion to Strike" 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@nrc.gov) (E-mail: erh@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(Dnrc.gov) (E-mail: aib5(@,nrc.gov)
I-WA/2721546
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.covinogdol .lps. state.nji.us) 123 Washington Street (E-mail: Ellen.Balint(dlps.state.ni.us) Newark, NJ 07102-5695 (E-mail: Valerie.Graygdol.lps.state.nj.us) (E-mail: rwebsterakinoy.rutgers.edu)
(E-mail: Caroline. Stahl(ilps.state.ni.us)
Suzanne Leta Paul Gunter NJPIRG Nuclear Information and Resource Service 11 N. Willow Street 1424 16th Street, NW Trenton, NJ 08608 Suite 404 (E-mail: sletaknjpirg.org) Washington, DC 20036 (E-mail: pguntergnirs.org)
Mitzi A. Young Debra Wolf Steven C. Hamrick Law Clerk Jody C. Martin Atomic Safety and Licensing Board Office of the General Counsel, 0-1 5D21 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, DC 20555-0001 (E-mail: may@nrc.gov) (E-mail: daw 1(@nrc.gov)
(E-mail: schl @nrc.gov)
(E-mail: jcm5@nrc.gov)
- Original and 2 copies
- First Class Mail only oaphae~l P. Kuyler 2