ML073550680

Amergen'S Answer Opposing Citizens' Motion for Extension of Time to File Any Appeal

ML073550680
Person / Time
Site:	Oyster Creek
Issue date:	12/17/2007
From:	Polonsky A AmerGen Energy Co, Exelon Corp, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, RAS 14825
Download: ML073550680 (5)

Text

DOCKETED USNRC December 17, 2007 (3:18pm)

UNITED STATES OF AMERICA OFFICE OF SECRETARY NUCLEAR REGULATORY COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of: ) December 17, 2007

)

AmerGen Energy Company, LLC )

) Docket No. 50-219-LR (License Renewal for Oyster Creek Nuclear )

Generating Station) )

)

.)

AMERGEN'S ANSWER OPPOSING CITIZENS' MOTION FOR EXTENSION OF TIME TO FILE ANY APPEAL Pursuant to 10 C.F.R. §§ 2.307(a) and 2.323(c), AmerGen Energy Company, LLC

("AmerGen") opposes Citizens'! Motion requesting a nine-day extension of time to appeal the Board's anticipated initial decision.2 Citizens' base their request on the nine-day vacation of their lead counsel, Mr. Webster. As discussed below, the Motion is filed with the wrong tribunal, is premature, and Mr. Webster's vacation in any event does not justify a day-for-day extension.

Citizens' Motion is before the wrong decision-makers. The Commission i's tasked with entertaining any appeals from a Board's initial decision, see 10 C.F.R. §§ 2.341 (b), 2.1212, so it seems logical for the Commission to decide whether to grant an extension of time for any appeal "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.

Citizens' Motion for an Extension of Time to File Any Appeal (Dec. 10, 2007).

1-WA/2870358 /

under 10 C.F.R. § 2.307. So this Motion, when itis ripe, should be placed before the Commission, not the Board.

Citizens' Motion also is premature. The Board has not issued its initial decision, so there is nothing from which to request an extension. Moreover, Citizens' Motion presumes that the Board will rule in AmerGen's favor in a manner that Citizens would wish to appeal. The Board has not yet ruled, so the Motion is premature and it would not be a good use of the Board's resources to entertain it at this time.

Finally, Mr. Webster's vacation does not justify a nine-day extension. Mr. Webster is not the only lawyer working on this proceeding for Citizens. Ms. Julia LeMense, from the Rutgers Environmental Law Clinic, participated at the hearing and is on the service list. And the Motion itself acknowledges that there are others at the Rutgers Environmental Law Clinic who can work on this appeal (e.g., reference to Mr. Webster as "lead counsel" and admission that the law clinic has some capacity to provide other lawyers).

In addition, Citizens ignore the fact that they will have 20 days to file any appeal.

10 C.F.R. § 2.341(b)(1) provides Citizens with 15 days from service of the initial decision to file any appeal. The Board is expected to serve its initial decision via First Class Mail; the electronic copy is a courtesy. Accordingly, 10 C.F.R. § 2.306 would provide Citizens with an additional five days to account forFirst Class Mail, even though Citizens would have the initial decision electronically the day it was issued.

Thus, to give Citizens a nine day extension would be an unjustified windfall. If the Board issued its initial decision on December 20, 2007, the appeal would be due on January 9, 2008. This means that, if the Board granted Citizens' Motion, Mr. Webster would have 19 days to polish his appeal after he returned fromvacation on December 30, 2007.

2

For all these reasons, AmerGen urges the Board to deny Citizens' Motion for an extension of time.

Respectfully, submitted, Donald J. Silverman, Esq.

• Kathryn M. Sutton, Esq. 1 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: dsilvermankmorganlewis.com E-mail: ksutton@morganlewis.com E-mail: apolonsky(Qmorganlewis.com E-mail: rkuyler(cmorganlewis.com J. Bradley Fewell Associate General Counsel Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 Phone: (630) 657-3769 E-mail: Bradley.Fewell@exeloncorp.com COUNSEL FOR AMERGEN ENERGY COMPANY, LLC Dated in Washington, D.C.

this 17th day of December-2007 3

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of: ) December 17, 2007

)

AmerGen Energy Company, LLC

) Docket No. 50-219 (License Renewal for Oyster Creek Nuclear )

Generating Station) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of "AmerGen's Answer Opposing Citizens' Motion for Extension of Time to File Any Appeal" 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(anrc.gov) (E-mail: erh(dnrc.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@nrc.gov ) (E-mail: aib5@~nrc.gov) 1-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: iohn.covino@dol.lps.state.ni.us) Rutgers Environmental Law Clinic (E-mail: valerie. gray@dol.lps.state.niJ.us) 123 Washington Street Newark, NJ 07102-5695 (E-mail: rwebstergkinoy.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: sleta@nipirg.org) Suite 400 Takoma Park, MD 20912 (E-mail: paulhbeyondnuclear.org)

(E-mail: kevin@beyondnuclear.org)

Mary C. Baty Emily Krause Kimberly A. Sexton Law Clerk James E. Adler Atomic Safety and Licensing Board Office of the General Counsel, 0-15D21 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555-0001 (E-mail: kas2@nrc.gov) (E-mail: eikl @nrc.gov)

(E-mail: mcbl @nrc.gov)

(E-mail: ieal @nrc.gov)

O

_riginal and 2 copies

• • First Class Mail only aph aP. Kuyler I-WA/2854970 2