ML073040561
| ML073040561 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 10/31/2007 |
| From: | Baty M NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 14567 | |
| Download: ML073040561 (8) | |
Text
October 31, 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 ANSWER TO AMERGENS MOTION TO STRIKE PORTIONS OF CITIZENS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION Pursuant to 10 C.F.R. §§ 2.1204 and 2.323, the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby answers AmerGens Motion to Strike Portions of Citizens Findings of Fact (Oct. 22, 2007) (Motion). For the reasons set for below, the Staff agrees with AmerGens objections to Citizens proposed findings but does not think that AmerGens motion is necessary.
DISCUSSION In order to preserve its objections for any appeal, AmerGen moves to strike identified portions of Citizens Post-Hearing Proposed Findings of Fact and Conclusions of Law (Oct. 10, 2007) (Citizens Proposed Findings of Fact and Conclusions of Law) because those portions contain facts and analysis that are not part of the evidentiary record, as well as arguments that exceed the scope of the proceeding. See Motion at 1.
The Staff agrees with AmerGen that the record in this proceeding was closed on September 25, 2007, subject only to motions for transcript corrections, See Transcript of AmerGen Energy Company Oyster Creek Evidentiary Hearing at 603, and that presentation of
new facts, exhibits, and arguments for the first time in post-hearing findings deprives interested parties of an opportunity to respond. See Union Electric Co., (Callaway Plant, Unit 1), ALBA-740, 18 NRC 343, 349-50 (rejecting new arguments made in findings as depriving interested parties of a meaningful opportunity to respond to crucial facts); Inquiry into Three Mile Island Unit 2 Leak Rate Data Falsification, LBP-87-14, 25 NRC 671, 687-88 (1987) (refusing to consider materials attached to proposed findings which had not been offered (or attempted to be offered) before the hearing record was closed). NRC proceedings must provide both an opportunity to submit evidence and to challenge evidence as to any and all material facts. See Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1444-45 (D.C. Cir. 1984).
The Staff also agrees with AmerGen that, although 10 C.F.R. Subpart L contains its own provision for findings of fact and conclusions of law (10 C.F.R. § 2.1209), proposed findings of fact and conclusions of law in Subpart L proceedings should conform with the requirements of 10 C.F.R. § 2.712(c) in Subpart G, i.e., proposed findings of fact must be confined to the material issues of fact presented on the record, with exact citations to the transcript of record and exhibits in support of each proposed finding, particularly because § 2.1209, in contrast to
§ 2.712(c), does not authorize reply findings. To allow otherwise in a Subpart L proceeding would be contrary to case law and the Administrative Procedure Act. See LBP-87-14, 25 NRC at 687-88; 5 U.S.C. § 556(e).
Although the Staff agrees that Citizens Proposed Findings of Fact and Conclusions of Law impermissibly contain new facts, exhibits, and arguments that are not already part of the record, the Staff is confident that, in accordance with Commission case law, the Boards initial decision will be based solely on factual material that has been introduced and admitted into evidence and that its findings will be supported by probative and substantial evidence on the
record.1 See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Unit 2),
ALAB-254, 8 AEC 1184, 1187 (1975). For the Board to do otherwise would be in error. See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580, 11 NRC 227, 230-31 (vacating a licensing board decision that was not supported by evidence in the record).
In addition, the Staff is confident that the Board is aware of both AmerGens and the Staffs objections to Citizens arguments regarding continuous UT thickness monitoring and derivation of AmerGens wall thickness acceptance criteria as beyond the scope of this proceeding, see e.g., Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification) (Aug. 9, 2007) at 5-7, and that the Boards decision will not address issues beyond the scope of the admitted contention.
1 The Board may, however, apply known engineering principles to and make mathematical calculations from facts in the record whether or not any witness purported to attempt this exercise.
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-229, 8 AEC 425, 437, rev. on other gnds., CLI-74-40, 8 AEC 809(1974). If the Board applies engineering principles or performs calculations, it must adequately explain the basis for its conclusions. Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-422, 6 NRC 33, 66 (1977).
CONCLUSION For the reasons stated above, the Staff agrees with AmerGens objections to Citizens Proposed Findings of Fact and Conclusions of law, but submits that AmerGens motion is unnecessary.
/RA/
Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 31st day of October, 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) )
NOTICE OF WITHDRAWAL Notice is hereby given that, effective October 31, 2007, the undersigned counsel withdraws her appearance in the captioned proceeding. All mail and service lists in this proceeding should be amended appropriately.
Respectfully submitted,
/RA/
Mitzi A. Young Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15 D-21 Washington, DC 20555-0001 (301) 415-1523 may@nrc.gov Dated at Rockville, Maryland this 31st day of October, 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) )
NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter in accordance with 10 C.F.R. ' 2.314(b).
Name: Kimberly A. Sexton Address: U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O-15-D21 Washington, D.C. 20555-0001 Telephone Number: (301) 415-1151 Fax Number: (301) 415-3725 E-Mail address: KAS2@nrc.gov Admissions: Florida Name of Party: NRC Staff Respectfully submitted,
/RA/
Kimberly A. Sexton Counsel for the NRC Staff Dated at Rockville, Maryland this 31st day of October, 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 ANSWER TO AMERGENS MOTION TO STRIKE PORTIONS OF CITIZENS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW, NOTICE OF WITHDRAWAL of Mitzi A. Young, and NOTICE OF APPEARANCE of Kimberly A. Sexton, 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 31st day of October, 2007.
E. Roy Hawkens, Chair Office of the Secretary*
Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board Mail Stop: O-16G4 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-16G4 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 J. Bradley Fewell, Esq.*
NJ Public Interest Research Group Exelon Corporation 11 N. Willow St. 4300 Warrenville Road Trenton, NJ 08608 Warrenville, IL 60555 sliou@environmentnewjersey.org bradley.fewell@exeloncorp.com Richard Webster, Esq.* Paul Gunter, Esq.*
Julia LeMense, Esq.* Keven Kamps*
Rutgers Environmental Law Clinic Nuclear Watchdog Project & Nuclear 123 Washington Street Information and Resource Service Newark, NJ 07102-5695 6930 Carroll Ave., Suite 340 rwebster@kinoy.rutgers.edu Takoma Park, MD 20912 jhuff@kinoy.rutgers.edu paul@beyondnuclear.org kevin@beyondnuclear.org Donald Silverman, Esq.*
Alex S. Polonsky, Esq.*
Kathryn M. Sutton, Esq.*
Ray Kuyler, Esq.*
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.
Washington, DC 20004 dsilverman@morganlewis.com apolonsky@morganlewis.com ksutton@morganlewis.com rkuyler@morganlewis.com
/RA/
Mary C. Baty Counsel for the NRC Staff