ML072390493

Oyster Creek - NRC Staff Motion in Limine Regarding Citizens' Response to Board Question 12

ML072390493
Person / Time
Site:	Oyster Creek
Issue date:	08/27/2007
From:	Baty M NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, ASLBP 06-844-01-LR, RAS 14039
Download: ML072390493 (4)

Text

August 27, 2007 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) )

NRC STAFF MOTION IN LIMINE REGARDING CITIZENS RESPONSE TO BOARD QUESTION 12 INTRODUCTION Pursuant to 10 C.F.R. § 2.323 and the Memorandum and Order (Prehearing Conference Call Summary, Case Management Directives, and Final Scheduling Order)

(April 17, 2007) (unpublished) (April 17 Order), at 6, the staff of the U.S. Nuclear Regulatory Commission (Staff) submits this motion to exclude Citizens response to question number 12 propounded by the Atomic Safety and Licensing Board (Board) in Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification) (August 9, 2007) (unpublished) at 11-12. For the reasons set forth below, the Staff requests that the Board exclude from the evidentiary record or otherwise no consider Dr. Rudolf Hauslers response to Board question number 12.

DISCUSSION The Staff has briefed the scope of this proceeding, the litigable issues in this proceeding, and what is admissible evidence. See NRC Staff Motion in Limine Regarding Citizens Initial Presentation on Drywell Contention (July 27, 2007) (Staff July 27 Motion). In its July 27 Motion, the Staff argued the Citizens had not demonstrated that Dr. Hausler was qualified by knowledge, skill, training, or education to provide an expert opinions on structural mechanics or American Society of Mechanical Engineers (ASME) Code Section III. See July 27 Motion at 6.

Dr. Hauslers response to Board Question 12 should be excluded or otherwise not

considered because Dr. Hausler explicitly stated in his August 16, 2007 testimony that he is not qualified to respond to Board question number 12. See Prefiled Rebuttal Testimony of Dr. Rudolf H. Hausler Regarding Citizens Drywell Contention (August 16, 2007) at A5 (stating, I will answer question 12 to the best of my ability in this pre-filed testimony, even though I am not a structural engineer). It is incumbent that the Board receive accurate and reliable information. Dr. Hauslers lack of expertise casts doubt on the accuracy and reliability of his answer to Question 12. Therefore, his answer to that question should be excluded or otherwise not considered.

Pursuant to 10 C.F.R. § 2.323(b), Staff counsel contacted counsel for the other parties to resolve the issues raised in this motion. Counsel for AmerGen supports this motion. Citizens will respond to the motion as appropriate when filed.

CONCLUSION For the reasons discussed above, the subject motion should be granted.

Respectfully submitted,

/RA/

Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 27th day of August, 2007

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) )

CERTIFICATE OF SERVICE I hereby certify that copies of the A NRC STAFF MOTION IN LIMINE REGARDING CITIZENS RESPONSE TO BOARD QUESTION 12@ in the above-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 27th day of August, 2007.

E. Roy Hawkens, Chair Office of the Secretary Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board 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 Mail Stop O-16C1 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission OCAAmail@nrc.gov Washington, DC 20555-0001 AJB5@nrc.gov Debra Wolf Law Clerk Paul B. Abramson Atomic Safety and Licensing Board Panel Administrative Judge Mail Stop: T-3F23 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission DAW1@nrc.gov Washington, DC 20555-0001 PBA@nrc.gov Suzanne Leta Liou*

NJ Public Interest Research Group 11 N. Willow St.

Trenton, NJ 08608 sliou@environmentnewjersey.org

Richard Webster, Esq.* J. Bradley Fewell, Esq.*

Rutgers Environmental Law Clinic Exelon Corporation 123 Washington Street 4300 Warrenville Road Newark, NJ 07102-5695 Warrenville, IL 60555 rwebster@kinoy.rutgers.edu bradley.fewell@exeloncorp.com Donald Silverman, Esq.*

Alex S. Polonsky, Esq.*

Kathryn M. Sutton, Esq.*

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.

Washington, DC 20004 dsilverman@morganlewis.com apolonsky@morganlewis.com ksutton@morganlewis.com

/RA/

Mary C. Baty Counsel for the NRC Staff