ML072640481
| ML072640481 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 09/21/2007 |
| From: | Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| 06-844-01-LR, 50-0219-LR, RAS 14154 | |
| Download: ML072640481 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED 09/21/07 ATOMIC SAFETY AND LICENSING BOARD SERVED 09/21/07 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 September 21, 2007 Generating Station)
MEMORANDUM AND ORDER (Ruling on Motions in Limine)
On September 18, 2007, AmerGen Energy Company, LLC (AmerGen) and the NRC Staff submitted to the Licensing Board in the above-captioned proceeding motions to strike portions of Citizens1 written sur-rebuttal reply, the sur-rebuttal written testimony of Dr. Rudolf H.
Hausler, and certain prefiled exhibits.2 Citizens oppose both motions, the NRC Staff supports AmerGens Motion in part, and AmerGen supports the NRC Staffs Motion in full.3 For the reasons set forth below, we deny AmerGens and the NRC Staffs Motions in Limine.
1 Citizens are comprised of six organizations: Nuclear Information and Resource Service, Jersey Shore Nuclear Watch, Inc., Grandmothers, Mothers and More for Energy Safe-ty, New Jersey Public Interest Research Group, New Jersey Sierra Club, and New Jersey Environmental Federation.
2 AmerGens Motion in Limine to Exclude Portions of Citizens Sur-Rebuttal (Sept.
18, 2007) [hereinafter AmerGen Motion]; NRC Staff Motion in Limine Regarding Citizens Reply (Sept. 18, 2007) [hereinafter NRC Staff Motion].
3 Citizens Opposition to AmerGen and NRC Motions in Limine (Sept. 19, 2007)
[hereinafter Citizens Answer]; NRC Staff Response to AmerGens Motion in Limine Regarding Citizens Presentation on Drywell Contention (Sept. 19, 2007); NRC Staff Motion at 3 (noting AmerGen supports the Staffs motion).
I. ANALYSIS A. AmerGens Motion In Limine AmerGen asserts that the Board must exclude or accord no weight to: (1)Section I of Citizens Reply to AmerGen and NRC Staff Rebuttal Testimony (Sept. 14, 2007) [hereinafter Citizens Sur-Rebuttal Reply]; (2) Answer No. 7 of the Prefiled Sur-Rebuttal Written Testimony of Dr. Rudolf H. Hausler Regarding Citizens Drywell Contention (Sept. 13, 2007) [hereinafter Hausler Sur-Rebuttal Testimony]; and (3) Sections II and III of Citizens Prefiled Exhibit 61, Memorandum from Dr. Rudolf H. Hausler (Sept. 13, 2007). According to AmerGen, this information does not respond to material in AmerGens or the Staffs Rebuttal Testimony, Brief, or associated rebuttal exhibits. . . . [and] deprive[s] AmerGen and the Staff of the opportunity to respond, and def[ies] [the] Boards directions regarding rebuttal testimony (AmerGen Motion at 2).
More specifically, AmerGen contends that Answer No. 7 of Dr. Hauslers Sur-Rebuttal Testimony, and Sections II and III of Citizens Prefiled Exhibit 61 improperly respond to information contained in AmerGens Prefiled Exhibit 16, Calculation No. C-1302-187-5320-024, Rev. 2, which was submitted by AmerGen with its direct testimony. Thus, AmerGen states, any responses from Citizens should have been filed with their rebuttal testimony (ibid.). Similarly, AmerGen urges the Board to accord no weight to Section I of Citizens Sur-Rebuttal Reply, in which Citizens seek to address Question No. 11(a) of the Boards August 9 Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification) (unpublished), in light of Question No. 1 of our September 12 Memorandum and Order (Hearing Directives) (unpub-lished) [hereinafter Hearing Directives Order]. According to AmerGen, Citizens answer includes no reference or response to the rebuttal submittals of the other parties, and it seeks to apply an irrelevant body of case law to NRC proceedings relating to toxic tort litigation and the interpretation of DNA evidence (id. at 3).
As we stated in our September 12 Memorandum and Order (Ruling on Motion to Conduct Cross-Examination and Motions in Limine) at 6 (unpublished) [hereinafter September 12 Order on Motions in Limine], neither the fact that Citizens or Dr. Hausler re-emphasize their opinions, nor [their] failure to include a plethora of specific references, renders the exhibit [or testimony] inadmissible. To the extent the Board finds arguments contained in Citizens Sur-Rebuttal Reply,4 Dr. Hauslers Sur-Rebuttal Testimony, or in Citizens Prefiled Exhibit 61 to be iterative, we will give those arguments the weight they merit. In addition, contrary to AmerGens interpretation of Question No. 1 of our Hearing Directives Order, although the Board expressed interest in the opinion of the NRC Staff on the issue of reasonable assurances, the Board wel-comes the relevant views of all parties on any question it raises.5 We will, therefore, consider Citizens statements in the context of the question posed, and accord them the weight they merit.
B. NRC Staffs Motion In Limine In addition to arguing that Citizens response to the Boards September 12 question on reasonable assurance should be excluded from the record - which we reject for the reasons stated in Part I.A., above - the NRC Staff asserts that: (1) Dr. Hauslers Answer 10 of his Sur-Rebuttal Testimony impermissibly challenges the . . . spatial scope of AmerGens UT program (NRC Staff Motion at 2); (2) the contour plots contained in Citizens Prefiled Exhibits 13 and 39 (Memoranda from Dr. Hausler) should be excluded because Dr. Hausler states in Answer No. 5 4
As noted in the Hearing Directives Order, because statements of counsel in the written briefs are not evidence in this proceeding and will not be submitted as an exhibit, to the extent statements made therein are irrelevant or otherwise inadmissible, we will accord those statement whatever weight they merit and will not require them to be deleted (Hearing Direc-tives Order at 2 n.2).
5 In this regard, we note it is the Board, not AmerGen, that will determine whether a partys submittal utterly fails to respond to [a] Board[] request (AmerGen Motion at 3 n.2)
(emphasis added).
of his Sur-Rebuttal Testimony that the contour plots in Prefiled Exhibit 61 should be regarded as definitive (ibid.) (quoting Hausler Sur-Rebuttal Testimony at 3); (3) Dr. Hauslers Answer No. 27 of his Sur-Rebuttal Testimony should be excluded as speculative, because Dr. Hausler provides no evidence that the condition of the epoxy coating on the floor of the sand bed demonstrates the existence of a corrosive environment or that the epoxy coating on the drywell shell will behave similarly (ibid.); and (4) Dr. Hauslers Answer No. 31 of his Sur-Rebuttal Testimony should be excluded, or accorded no weight, because Citizens have not demonstrated that Dr. Hausler is qualified by knowledge, training, or experience to provide expert opinion regarding the application, performance, or expected life span of an epoxy coating on the exterior of a drywell shell (id. at 2-3).
First, we reject the NRC Staffs interpretation of Dr. Hauslers Answer No. 10 as challenging the spatial scope of AmerGens UT program. Instead, we view Dr. Hauslers statements as addressing whether there is reasonable assurance that the acceptance criteria will not be violated during the period of extended operation. Second, with respect to Dr.
Hauslers most recent contour plots and their impact on prior contour plots offered in Citizens Prefiled Exhibits 13 and 39, th[is] Board is fully capable of according all of Dr. Hauslers plots and AmerGens analysis of the same data the weight they are due (Citizens Answer at 5).6 Third, as we have stated previously, to the extent any parties statements are speculative, or without sufficient support, the Board is fully capable of determining their reliability and the appropriate weight they should be accorded (September 12 Order on Motions in Limine at 8).
Finally, as we indicated in our August 9 Memorandum and Order on Motions in Limine and our September 12 Order on Motions in Limine, Dr. Hauslers opinions may assist the Board in 6
We also reject the NRC Staffs conclusion that Dr. Hauslers statement regarding his most recent contour plots automatically renders his previously submitted plots [to be] in accurate [sic] and unreliable (NRC Staff Motion at 4).
understanding Citizens arguments and evidence on the matters properly at issue in this proceeding (September 12 Order on Motions in Limine at 9) (internal quotation marks omitted).
II. CONCLUSION For the foregoing reasons, we deny AmerGens and the NRC Staffs motions in limine.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD7
/RA/
E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE
/RA by T.S. Moore for:/
Dr. Paul B. Abramson ADMINISTRATIVE JUDGE
/RA by T.S. Moore for:/
Dr. Anthony J. Baratta ADMINISTRATIVE JUDGE Rockville, Maryland September 21, 2007 7
Copies of this Memorandum and Order were sent this date by Internet e-mail to counsel for: (1) AmerGen; (2) Citizens; (3) the NRC Staff; and (4) New Jersey.
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 (RULING ON MOTIONS IN LIMINE) 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 Mitzi A. Young, Esq. Richard Webster, Esq.
Mary C. Baty, Esq. Rutgers Environmental Law Clinic Office of the General Counsel 123 Washington Street Mail Stop - O-15 D21 Newark, NJ 07102-5695 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Paul Gunter, Reactor Oversight Donald J. Silverman, Esq.
Kevin kamps Kathryn M. Sutton, Esq.
Beyond Nuclear Alex S. Polonsky, Esq.
Nuclear Policy Research Institute Raphael P. Kuyler, Esq.
6930 Carroll Avenue, Suite 400 Morgan, Lewis & Bockius LLP Takoma Park, MD 20912 1111 Pennsyvlania Ave., NW Washington, DC 20004
2 Docket No. 50-219-LR LB MEMORANDUM AND ORDER (RULING ON MOTIONS IN LIMINE)
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 4300 Warrenville Road Nuclear Engineering Warrenville, IL 60555 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 21st day of September 2007