ML073180508
| ML073180508 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 11/09/2007 |
| From: | Kuyler R AmerGen Energy Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 14641 | |
| Download: ML073180508 (6) | |
Text
,0/*),5 r)r-/ I/.6- / -I DOCKETED USNRC November 9, 2007 (12:17pm)
UNITED STATES OF AMERICA OFFICE OF SECRETARY NUCLEAR REGULATORY COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
E. Roy Hawkens, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of: ) November 9, 2007
)
AmerGen Energy Company, LLC )
) Docket No. 50-219 (License Renewal for Oyster Creek Nuclear )
Generating Station) )
)
)
AMERGEN'S ANSWEROPPOSING CITIZENS' NOVEMBER 1, 2007 MOTION TO STRIKE I. INTRODUCTION In accordance with 10 C.F.R. §§ 2.1204 and 2.323, and the Atomic Safety and Licensing Board's ("Board") Orders of April 19, 2006,i and April 17, 2007,2 AmerGen Energy Co., LLC
("AmerGen") hereby files its Answer to Citizens'! November 1, 2007 Motion to Strike AmerGen's Unauthorized Answer ("Citizens' Motion"). The Board should deny Citizens' Motion because Citizens' original demand was effectively a new procedural motion, and AmerGen had the right to respond.
Memorandum and Order (Prehearing Conference Call Summary, Initial Scheduling Order, and Administrative Directives) (unpublished).
Memorandum and Order (Prehearing Conference Call Summary, Case Management Directives, and Final Scheduling Order) (unpublished) ("April 17 Order").
"Citizens" are: 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.
I-WA/2852923
II. CITIZENS' DEMAND TO "HOLD THE PROCEEDING OPEN" CONSTITUTED A MOTION AND AMERGEN MUST BE PERMITTED TO RESPOND Despite Citizens' representations to the contrary, their demand to hold the proceeding.
open was effectively a new motion, and AmerGen had the right to respond. AmerGen agrees with Citizens that the parties' proposed findings of fact and conclusions of law may suggest "ultimate conclusions" and request "substantive" relief from the Board, 4 including proposals that the Board grant, deny, or condition the requested renewed license in its initial decision. The Board cannot, however, "hold the proceeding open" if it issues a full initial decision.' Thus, Citizens' demand was, in effect, a new request for ancillary procedural relief hidden in their proposed findings. This is a request that would, at any other point in the proceeding, clearly require a motion and prior consultation with the parties pursuant to 10 C.F.R. § 2.323(b), so fundamental fairness dictates that AmerGen be given the opportunity to respond to this new demand for additional relief.6 Citizens' argument that the "Federal Rules of Civil Procedure allow a party to include alternative prayers for relief in their pleadings"! is -entirely off-point. Rule 8(a) and the associated case law cited by Citizens address pleadings.- This rule gives a claimant the 4_ Citizens' Motion at 2.
_ 10 C.F.R. § 2.340(a) ("[T]he presiding officer shall make findings of fact and conclusions of law on the matters put into controversy by the parties.. - .") (emphasis added); id. § 2.1210(a) ("[T]he presiding officer shall render an initial decision after completion of an informal hearing. . . .") (emphasis added). Once the Board issues an initial decision and a party appeals, the Board loses jurisdiction over the proceeding. See Northeast NuclearEnergy Co. (Millstone Nuclear Power Station, Unit 3), CLI-00-25, 52 N.R.C. 355, 357 n.3 (2000). If there is no appeal or Commission review, the Board's initial decision will become final agency action. 10 C.F.R. § 2.1210(a).
E.g., Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 N.R.C. 343, 349-50 (1983). Further, as explained in AmerGen's Answer Opposing Citizens' Demand to Hold the Proceeding Open (Oct. 22, 2007)
("AmerGen's Answer"), contrary to Citizens' allegation, AmerGen did not "fail[] to address" this issue in its conclusions of law-Citizens improperly demanded this additional procedural relief in theirs. AmerGen's Answer at 3-4.
z Citizens' Motion at 3.
S Fed. R. Civ. P. 8(a) ("General Rules of Pleading ... Claims for Relief').
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opportunity to request alternative relief at the pleadings stage.- No analogy can be drawn between Rule 8 and the current post-hearing stage of this administrative proceeding.
Citizens' Motion, is therefore, an unauthorized reply and a transparent attempt to rehabilitate their procedurally deficient demand to hold the proceeding open. It also serves to "prolong[]" the "motion practice" in this proceeding in a "frivolous" manner and "get[] in the
'last word"' prior to a.Board decision in this proceeding.-l There is no basis to strike AmerGen's Answer.
III. CONCLUSION For the reasons set forth above, Citizens' Motion should be denied in its entirety.
Respectfully submitted, AI*onald J. Silverman, Esq.
Kathryn M. Sutton, Esq.
Alex S. Polonsky, Esq.
Raphael P. Kuyler, Esq.
MORGAN, LEWIS & BOCKIUS, LLP 1111 Pennsylvania Avenue, N.W.
Washington, DC 20004 Phone: (202) 739-5502 E-mail' dsilverman@morganlewis.com E-mail: ksutton@morganlewis.com.
E-mail: apolonsky@morganlewis.com E-mail: rkuyler(2morganlewis.com 2 This argument also illustrates Citizens' confusion: proposed findings are not an opportunity to offer "pleas" for new relief unrelated to the litigated contention, but must address only issues properly in controversy at the hearing; See AmerGen's Answer at 2-4 (explaining that Citizens' demand is unrelated to the admitted contention); see also 10 C.F.R. § 2.1209 ("Each party shall file written post-hearing proposed findings of fact and conclusions of law on the contentions addressed in an oral hearing. . . ." (emphasis added); see also 10 C.F.R. § 2.340(a) ("[Tjhe presiding officer shall make findings of fact and conclusions of law on the matters put into controversy by the parties .... ") (emphasis added). The "alternative" nature of Citizens' demand is irrelevant, because Citizens cite no law supporting their argument that proposed findings may request alternative procedural relief unrelated to the litigated contention.
10 Citizens' Motion at 3-5.
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J. Bradley Fewell Associate General Counsel Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 Phone: (630) 657-3769 E-mail: Bradley.Fewel lexeloncorp.com COUNSEL FOR AMERGEN ENERGY COMPANY, LLC Dated in Washington, D.C.
this 9th day of November 2007 I-WA/2852923 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: ) November 9, 2007
)
AmerGen Energy Company, .LLC )
) Docket No. 50-219 (License Renewal for Oyster Cre/ek Nuclear )
Generating Station) )
)
.)
CERTIFICATE OF SERVICE I hereby certify that copies of "AmerGen's Answer Opposing Citizens' November 1, 2007 Motion to Strike" were served this day upon the persons listed below, by e-mail and first class mail, unless otherwise noted.
Secretary of the Commission* Administrative Judge U.S. Nuclear Regulatory Commission E. Roy Hawkens, Chair Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Panel One White Flint North' Mail Stop: T-3 F23 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852-2738 Washington, DC 20555-0001 (E-mail: HEARINGDOCKET@nrc.gov) (E-mail: erhgnrc.gov)
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 (E-mail: pba(anrc.gov) (E-mail: aJb5@nrc.gov)
I-WA/2854970
John A. Covino Office of Commission Appellate Valerie Anne Gray Adjudication**
Division of Law U.S. Nuclear Regulatory Commission Environmental Permitting and Counseling Section Washington, DC 20555-0001 P.O. Box 093 Hughes Justice Complex Richard Webster Trenton, NJ 08625 Julia LeMense (E-mail: john.covinogdol.lps.state.nji.us) Rutgers Environmental Law Clinic (E-mail: valerie.gray@dol.lps.state.nj .us) 123 Washington Street Newark, NJ 07102-5695 (E-mail: rwebsterdkinoy.rutgers.edu)
(E-mail: jhuffakinoy.rutgers.edu)
Suzanne Leta Paul Gunter NJPIRG Kevin Kamps 11 N. Willow Street Beyond Nuclear Trenton, NJ 08608 6930 Carroll Avenue (E-mail: sletagnipirg.org) Suite 400 Takoma Park, MD 20912 (E-mail: paulkbeyondnuclear.org)
(E-mail: kevin(abeyondnuclear.org)
Mary C. Baty Debra Wolf Kimberly A. Sexton Law Clerk Office of the General Counsel, 0-15D21 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555 U.S. Nuclear Regulatory Commission (E-mail: kas2@nrc.gov) Washington, DC 20555-0001 (E-mail: mcbl @nrc.gov) (E-mail: dawl @nrc.gov)
- Original and 2 copies
- First Class Mail only
/phael,,91(Kuyler I-WA/2854970 9