ML072620551

Oyster Creek - NRC Staff Response to Amergen'S Motion in Limine Regarding Citizens' Presentation on Drywell Contention

ML072620551
Person / Time
Site:	Oyster Creek
Issue date:	09/19/2007
From:	Baty M NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, ASLBP 06-844-01-LR, RAS 14165
Download: ML072620551 (5)

Text

September 19, 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 RESPONSE TO AMERGENS MOTION IN LIMINE REGARDING CITIZENS PRESENTATION ON DRYWELL CONTENTION INTRODUCTION Pursuant to 10 C.F.R. § 2.323 and the Memorandum and Order (Hearing Directives)

(Sept. 12, 2007) (unpublished) (Sept. 12 Order), at 3, the Staff of the U.S. Nuclear Regulatory Commission (Staff) submits this answer to AmerGens Motion in Limine to Exclude Portions of Citizens Sur-Rebuttal (Sept. 18, 2007) (Motion). For the reasons set forth below, the Staff supports the Motion in part.

DISCUSSION AmerGen Energy Company, LLC (AmerGen) requests that the Board accord no weight to Section I of Citizens Reply to AmerGen and NRC Staff Rebuttal Testimony (Sept. 14, 2007)

(Citizens Sur-Rebuttal Presentation), and exclude portions of the Pre-Filed Sur-Rebuttal Written Testimony of Dr. Rudolf H. Hausler Regarding Citizens Drywell Contention (Sept. 14, 2007) (Sur-Rebuttal Testimony) and Sections II and III of Citizens Exhibit 61 (Memorandum from R. Haulser to R. Webster re: Further Discussion of the External Corrosion on the Drywell Shell in the Sandbed Region (Sept. 13, 2007)). See Motion at 1-2. AmerGen argues that Board should accord no weight to Section I of Citizens Sur-Rebuttal because it exceeds the scope of permissibly sur-rebuttal and is irrelevant. Id. AmerGen asserts that portions of Dr.

Hauslers Sur-Rebuttal Testimony and portions of Citizens Exhibit 61 should be excluded because they exceed the permissible scope of sur-rebuttal testimony. Id. The Staff agrees in part.

Dr. Hauslers sur-rebuttal testimony at A7 and Sections II and III of Citizens Exhibit 61 discusses AmerGen Exhibits 16-18, which were attached to AmerGens initial presentation on July 20, 2007. Although Dr. Hausler lists AmerGen and Staff rebuttal testimony as references at the end of Exhibit 61, he does not reference any rebuttal testimony in Sections II and III. In accordance with Memorandum and Order (Prehearing Conference Call Summary, Case Management Directives, and Final Scheduling Order) (Apr. 17, 2007) (unpublished) (Apr. 17 Order) at 6, sur-rebuttal testimony may not advance new affirmative claims and arguments that should have been made in rebuttal testimony. Dr. Hauslers Sur-Rebuttal Testimony at A7, and Sections II and III of Citizens Exhibit 61, should be excluded to the extent they take issue with Exhibits 16-18 and are not responsive to arguments made by AmerGen or the Staff in rebuttal testimony.

The Staff agrees that Section I of Citizens Sur-Rebuttal Presentation should be accorded no weight1 because it exceeds the scope of permissible rebuttal, i.e., it advances new affirmative arguments that do not respond to either AmerGen or Staff rebuttal submissions, and should have been made in rebuttal testimony in response to Board Question 11. See Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification) (Aug. 9, 2007) (unpublished) at 10-11. In addition, Citizens new affirmative arguments based on case law involving epidemiological studies and DNA evidence are not relevant to this proceeding because Citizens have not demonstrated that the case law cited is applicable to the nuclear industry, adopted by the Commission for NRC proceedings, or responsive to the areas identified by the Board in the September 12 Order.2 Consequently, the Board should not consider 1

In its September 18, 2007 Motion in Limine, the Staff incorrectly argued that arguments in Citizens Sur-Rebuttal Presentation should be excluded.

2 In the Sept. 12 Order, the Board stated that if AmerGen and Citizens have experts who could contribute to the topic of reasonable assurance, they should be prepared to have their experts testify.

See Sept, 12 Order at 4. The Board did not, however, ask the parties to re-brief the topic of reasonable assurance.

Section I of Citizens Sur-Rebuttal Presentation.

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

Respectfully submitted,

/RA/

Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 19th day of September, 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 ANRC Staff Reponse to AmerGens Motion in Limine Regarding Citizens Sur-Rebuttal@ 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 19th day of September, 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, D.C. 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, D.C. 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, D.C. 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.* Paul Gunter, Director*

Alex S. Polonsky, Esq.* Kevin Kamps Kathryn M. Sutton, Esq.* Reactor Watchdog Project Raphael P. Kuyler, Esq.* Nuclear Information Morgan, Lewis & Bockius LLP And Resource Service 1111 Pennsylvania Ave., N.W. 6930 Carroll Avenue Suite 340 Washington, DC 20004 Takoma Park, MD 20912 dsilverman@morganlewis.com E-mail: paul@beyondnuclear.org apolonsky@morganlewis.com kevin@beyondnuclear.orq ksutton@morganlewis.com rkuyler@morganlewis.com

/RA/

Mary C. Baty Counsel for the NRC Staff