ML071370101
| ML071370101 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 05/16/2007 |
| From: | Matt Young NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| Young M, OGC, 301-415-1523 | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 13619 | |
| Download: ML071370101 (6) | |
Text
May 16, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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AMERGEN ENERGY COMPANY, LLC
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Docket No. 50-219-LR
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(Oyster Creek Nuclear Generating Station)
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NRC STAFF ANSWER TO AMERGENS MOTION TO STRIKE CITIZENS RESPONSE TO NRC STAFFS
SUMMARY
DISPOSITION ANSWER INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and consistent with the time periods prescribed for replies to a similar motion,1 the Staff of the Nuclear Regulatory Commission (Staff) hereby answers the AmerGen Request for Leave to File Motion to Strike Citizens2 Response to NRC Staff, dated May 9, 2007 (Leave Request), and AmerGens Motion to Strike, dated May 9, 2007 (Motion). The Motion asks the Board to strike Citizens Response to NRC Staff, dated May 7, 2007 (Response), on the ground that it is not authorized under 10 C.F.R. § 2.1205(c) or the Boards April 17, 2007 scheduling order3. Motion at 1. For the reasons set forth below, both the Leave Request and the Motion should be granted.
1 See Order (Granting AmerGens Request for Leave to File Motion to Strike) (May 1, 2007)
(unpublished), at 2. That order gave the parties seven days to file a response to AmerGens May 4, 2007 motion to strike portions of Citizens Answer Opposing AmerGens Motion for Summary Disposition, dated April 26, 2007 (Citizens Answer).
2 Citizens is the collective name for the six organizations admitted as an intervenor in this proceeding, i.e., 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.
3 Memorandum and Order (Prehearing Conference Call Summary, Case Management Directives, and Final Scheduling Order) (April 17, 2007) (April 17 Order) (unpublished).
DISCUSSION On March 30, 2007, AmerGen sought summary disposition of the sole contention admitted in the proceeding. See Motion for Summary Disposition of Citizens Drywell Contention (Mar. 30, 2007) (SD Motion). Citizens and the Staff each filed answers to AmerGens summary disposition motion. See Citizens Answer; NRC Staff Response to AmerGens Motion for Summary Disposition (April 26, 2007) (Staff Answer). Citizens, however, without first seeking permission from the Board, filed a response to the Staffs filing.
In its Motion, AmerGen argues that because Citizens Response is unauthorized under 10 C.F.R. § 2.1205 and the Boards April 17 Order, it should be stricken in its entirety. See Motion at 1-2. AmerGen asserts that that regulation only provides that the substantive standards to be used in ruling on motions for summary disposition are in 10 CFR Part 2, Subpart G, and does not incorporate by reference all of the provisions of Section 2.710.
Motion at 1-2. AmerGen further argues that any other reading of 10 C.F.R. Part 2 would render Section 2.1205 unnecessary and meaningless. Id. at 2.
AmerGen is correct. Neither the rules governing a 10 C.F.R. Part 2, Subpart L proceeding nor the Boards scheduling order gave Citizens permission to file the Response.
See 10 C.F.R. § 2.1205(c) (In ruling on motions for summary disposition, the presiding officer shall apply the standards for summary disposition set forth in subpart G of this part.); April 17 Order at 2-3 (setting a date only for answers to the SD Motion).
While the Staff does not dispute that an opponent of a summary disposition motion in a Subpart G proceeding may file a response to new facts and arguments presented in any statement filed in support of a summary disposition motion, see 10 C.F.R. § 2.710(a),4 that 4 The Staff notes that Citizens did not confine their unauthorized response to new facts or arguments in the Staffs Answer, but in large part disputed the Staffs summary of facts in AmerGens summary disposition filing. Compare Response at 2-5 with Staff Answer at 9-10.
provision does not apply to the standard for a Board summary disposition ruling in a Subpart L proceeding and was not incorporated by reference into 10 C.F.R. § 2.1205(c) when the Commission revised its Rules of Practice in 2004. See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2228, 2268 (Jan. 14, 2004). The substantive standard for ruling on summary disposition is whether the filings, etc. in the proceeding support a finding that there is no genuine issue as to any material fact. 10 C.F.R. § 2.710(d)(2). See, e.g., Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations (Vermont Yankee Nuclear Power Station),
LBP-06-05, 63 NRC 116, 121-122 (2006) (the movant must show no genuine issue as to any material fact and that the movant is entitled to a decision as a matter of law as required by 10 C.F.R. §§ 2.1205(c) and 2.710(d)(2)).
In fact, the revised rule included, for the first time in Subpart L, a provision that expressly provided for summary disposition motions in Subpart L proceedings. Compare 69 Fed. Reg. at 2268 with 10 C.F.R. § 2.1237 (2003). The Commission did not give Subpart L parties any procedural right to file a response to answers to summary disposition motions. See 10 C.F.R.
§ 2.1205, 69 Fed. Reg. at 2268.
Given that Citizens Response is not authorized by the rules and orders governing this proceeding, both AmerGens Leave Request and Motion should be granted.
CONCLUSION For the reasons discussed above, AmerGens Leave Request and Motion should be granted inasmuch as Citizens filing is not authorized by 10 C.F.R. Part 2, Subpart L, and Citizens did not seek and obtain the Boards permission to file the Response.
Respectfully submitted,
/RA/
Mitzi A. Young Counsel for NRC Staff Dated at Rockville, Maryland this 16th day of May 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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AMERGEN ENERGY COMPANY, LLC
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Docket No. 50-219-LR
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(Oyster Creek Nuclear Generating Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of the ANRC STAFF ANSWER TO AMERGENS MOTION TO STRIKE CITIZENS RESPONSE TO NRC STAFFS
SUMMARY
DISPOSITION ANSWER in the captioned proceeding, have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 16th day of May, 2007:
E. Roy Hawkens, Chair Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 EPH@nrc.gov Anthony J. Baratta Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 AJB5@nrc.gov Paul B. Abramson Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 PBA@nrc.gov Office of the Secretary ATTN: Docketing and Service Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 HEARINGDOCKET@nrc.gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAMail@nrc.gov Debra Wolf, Esq.
Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 DAW1@nrc.gov Richard Webster, Esq.*
Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 rwebster@kinoy.rutgers.edu Suzanne Leta Liou*
New Jersey Public Interest Research Group 11 N. Willow St.
Trenton, NJ 08608 sliou@environmentnewjersey.org Paul Gunter, Director*
Reactor Watchdog Project Nuclear Information and Resource Service 1424 16th Street, NW, Suite 204 Washington, DC 20036 pgunter@nirs.org Donald Silverman, Esq.*
Kathryn M. Sutton, Esq.*
Alex S. Polonsky, Esq.*
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 dsilverman@morganlewis.com ksutton@morganlewis.com apolonsky@morganlewis.com J. Bradley Fewell, Esq.*
Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 bradley.fewell@exeloncorp.com
/RA/
Mitzi A. Young Counsel for NRC Staff