ML080380581
| ML080380581 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 02/04/2008 |
| From: | Polonsky A Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY/RAS | |
| References | |
| 50-219-LR, RAS 15042 | |
| Download: ML080380581 (8) | |
Text
CA S IS'o 9:j UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF THE SECRETARY DOCKETED USNRC February 4, 2008 (3:41pm)
BEFORE THE COMMISSION OFFICE OF SECRETARY
) RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of: ) February 4, 2008
)
AmerGen Energy Company, LLC )
) Docket No. 50-219 (License Renewal for Oyster Creek Nuclear )
Generating Station) )
., )
.)
AMERGEN'S ANSWER OPPOSING CITIZENS' MOTION FOR LEAVE TO REPLY AmerGen Energy Company, LLC ("AmerGen") hereby files its Answer opposing the Motion Citizens1 filed on January 25, 2008,2 requesting leave to file a reply to AmerGen's January 15, 2008 Answer Opposing Petition for Stay and to Reopen the Record ("Answer to the Petition"). Because Citizens have failed to demonstrate the requisite compelling circumstances under 10 C.F.R. § 2.323(c), the Commission should deny the Motion.
The six organizations comprising "Citizens" are Nuclear Information and Resource Service ("NIRS"), Jersey Shore Nuclear Watch, Incý ("JSNW"), Grandmothers, Mothers and More for Energy Safety ("GRAMMES"),
New Jersey Public Interest Research Group ("NJPIRG"), New Jersey Sierra Club ("NJ Sierra Club"), and New Jersey Environmental Federation ("NJEF").
"Motion By 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; New Jersey Environmental Federation; Riverkeeper, Inc.; Pilgrim Watch And New England Coalition for Leave to Reply to Oppositions to Petition to Suspend License Renewal Reviews for Oyster Creek, Indian Point, Pilgrim, and Vermont Yankee Nuclear Power Plants Pending Investigation of NRC Staff Review Process and Correction of Deficiencies" (Jan. 25, 2008) ("Motion").
1-WA/2917755 L~~O&& 3/4
BACKGROUND On January 3, 2008, CitizTens and various other organizations submitted a Petition-3 to ieh Nuclear Regulatory Commission ("NRC" or "Commission") requesting, among other things, that the Commission "suspend the'currently pending license renewal proceedings" 4 for Oyster Creek Nuclear Generating Station ("Oyster Creek") and other plants, and "reopen the record" of the Oyster Creek license renewal proceeding, stich that-ne'w; contentions could be filedV Pursuant to the Commission's January II Order,-6 AmerGen filed its Answer to the Petition on Jniiuary 15, and the NRC Staff and Entergy filed their answers on January 18, 2008.
On January 25, 2008, Citizens filed the instant Motion and attached their Reply,- The Motion states that because their underlying Petition "is unusual both substantively and procedurally, [Citizens] could not have anticipated all of the arguments" thatwould be made in opposition to the Petition.- As a result, Citizens conclude that they have demonstrated "the type of 'compelling circumstances'which warrant a reply-:`-
ARGUMENT :
Citizens argue that because they did not anticipate certain arguments in response to their Petition, they should be granted the opportunity to correct their lack of foresight and respond to 3 "Petition By 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; New Jersey Environmental Federation; Riverkeeper, Inc.; Pilgrim Watch And New England Coalition for Leave to Reply to Oppositions to Petition to Suspend License Renewal Reviews for Oyster Creek, Indian Point, Pilgrim, and Vermont Yankee Nuclear Power Plants Pending Investigation of NRC Staff Review Process and Correction of Deficiencies" (Jan. 3, 2008) ("Petition").
Id, at 1.
5 Id. at 2.
Commission Order (January 11, 2008) (unpublished) (Setting Date for Filing of Answers to Petition).
7 See generally "Reply By 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; New Jersey Environmental Federation; Riverkeeper, Inc.; Pilgrim Watch And New England Coalition to Oppositions to Petition to Suspend License Renewal Reviews for Oyster Creek, Indian Point, Pilgrim, and Vermont Yankee Nuclear Power Plants Pending Investigation of NRC Staff Review Process and Correction of Deficiencies" (Jan. 25, 2008) ("Reply").
Motion at 1. Citizens provide a variety of examples of such unanticipated arguments in their Reply.
- Id.
,9
all the specific objections in the Answers to the Petition.'. This tiiiiconstrues`Citi'zens' burden, which is to show that there are "compelling circumstances, such as wherethe moving party demonstrates that it could not have reaoionablyanticipated,the arguments to which it seeks leave to reply." 11 Citizens cannot simply point to specific arguments that they did not anticipate as proof that they have met the standard. Rather, they must show that they could not reasonably have anticipated these arguments.- Citizens are faced with a high hurdle, because the
"'compelling circumstances'"' requirement is generally understood to signal an "extraordinary action [that] should not be used as an opportunity to reargue facts and rationales which were (or
" 13 e should have been) discussedear.lier -.. - ...
Citizens have not ,cariied their burden. Citizens understood-at'the tim' they filed the Petition that respondents might "fault the Petition for its failure to comply'with an array of procedural requirements" that Citizens coiisid-&ed inappropriate. In fact,Citizens anticiLated that.their Petition-might be interpreted asla petition for'enforcenieiitunder 10 CIF.R. § 2.206, oIa petition for rulemnaking -under Section 2.802.-L Further, Citizens anticipated that respondents might argue that Citizens improperly bypassed the Atomic Safety and Licensing Board
("Board") in raising their issues for the first time with the Commission.-6 Citizens also 0 See Id. at 1-2.
10 C.F.R. § 2.323(c) (emphasis added). Even if Citizens do show.compelling circumstances, then their request "mav," but need not be granted. Id.
L2 Taken to its logical conclusion, Citizens' argument would permit a finding of compelling circumstances in any request for leave to reply, with a plea that the opposing party's answer included an argument that the moving party did not anticipate.
'L See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004) (discussing changes to 10 C.F.R. § 2.323(e), which uses the same "compelling circumstances" language as Section 2.323(c)),
.4 Motion at 1.
'L5 Petition at 7.
L Id.
1-WA/2917755 3
acknowledge that their Petition includes a request to stay the proceeding,1 7 alrequest to reopen the record,-L a request for the opportunity to file (unspecified) late contentfrnsj and more.-
Thus, the unusual nature of their Petition was clear from the outset, and Citizens could have reasonably anticipated the procedural objectionst'o their Petition tha't AmerGen and thfe' NRC staff included in their Answx r. But Citizens appare'ntly did not, for ýxarnple, anticipate that AmerGen would argue that the Petition must meet the requirements for a motion for a stay, or for a motion to reopen-the'record, despite the fact that they blatantly request a stay and reopening~of the record. The admittedly- wide scop eof theii Petitibn put Citiz2ns on noti&e th-ait-r-easonably could be interpreted as a request for a nufinb&of specific tyipes of relief, each with its own requirelnents.A Citizens' previous attempt to ignore these i.equirernments is nowY the b-iais ffritieir attempt to cure these deficiencies.- This 'ircular -and i'nfounded basis'fdr the instant Motionrmustfbe rejected as a matter of la*) pursuantto 10 CFR § 2.3c - J-ong Island Lighring Co., the movant requested leave to file a reply, arguing that the respondents had "recast the issues" in their answer.- 3 Even under those purported circumstances, the Board rejected the request, because "[t]he parties have been afforded the opportunity called for by the regulations to make L' Reply at 10 ("relief sought by Petitioners is much broader than what is typically sought in a stay motion:
Petitioners seek suspension of current license renewal proceedings").
Id. at 9 ("Petitioners request the Commission take a series of actions ... including re-opening the Oyster Creek Is record").
1- Id. (Petitioners request the Commission to ... allow the presentation of evidence that may be yielded by a more thorough NRC Staff review."); see also Petition at 2 ("the Commission should reopen the record so that the revised safety reviews can form the basis of new contentions").
20- Contrary to all logic, however, Citizens now argue that because their Petition requests the types of relief normally associated with all of these procedural mechanisms, they need not meet the procedural requirements for any of them. See Motion at I (Respondent-s ... fault the Petition for failure to comply with an array of procedural requirements that do not apply to the Petition.); see also Reply at 9-10.
-' See Reply at 9-10.
2- See id.
- Long IslandLighting Co. (Shoreham Nuclear Power Station), LBP-87-26, 26NRC 201, 203, recons. denied, LBP-87-29, 26 NRC 302 (1987).
I-WA/2917755 4
their cases, and the Board has sufficient infonnation.to, reach. adectson m the matter.-'-4-Absent :- ..:. -. "
any justification, or demonstration that they could not reasonably have anticipated AmerGen's.
and the NRC Staffs arguments, Citizens have not shown the requisite compelling. circumstances.
Citizens' substantive arguments also lack rnerit,2 - Citizens complain that.they,"could not have reasonably anticipated the argumentsthat Respondents would make in order to ininimize..
the safety significance of the Inspector General Report . . .."2-6 This argurnent simply.strains-credulity-Citizens could, and.reasonably.should, have:expected that-respondents might disagree with Citizens' interpretation of the Inspector General Report.
Conclusioni>
For the foregoing reasons, the Commission should deny Citizens' Motion in its entirety.. , .
Respectfully submitted, Donald J. Silvennan,.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: dsi lverman((moruan iewi s.com E-mail: ksutton(tJimoreanlewis.com E-mail: apolonskv'(?ý).moruanlewis.com E-mail: rkuv'lerQ'morean le\w\is.com 24 Id. at 205. It is also worth noting that the Long Island Lighting Co. Board applied an earlier version of 10 C.F.R. § 2.323(c) (fornerly § 2.730(c)). Section 2.730(c) provided that the "moving party shall have no right to reply, except as permitted by the presiding officer or the Secretary or the Assistant Secretary." It did not include the current "compelling circumstances" provision.
15 Noneof Citizens' substantive arguments specifically responds to any points in AmerGen's Answer to the Petition. See Reply at 2-8. Nevertheless, AmerGen responds here to (he extent Citizens' Motion addresses issues raised in AmerGen's Answer to the Petition.
L.6 Motion at 1-2.
I -WA/2917755 5
-,J:.Bradley.F~ew ell.u-7.:".. :-. - .' .. .
Associate General Counsel Exelon Corporation.
4300 Warrenville Road Warrenville, IL 60555 Phone: (630) 657-3769 E-mail: Bradlev.Fewell I exeloncorp.coma Dated in Washington, D.C. COUNSEL FOR this 4th day of February-2008. AMERGEN ENERGY COMPANY, LLC I-WA/2917755 6
UN"ITED STATES:OF-AMERICA ..
NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: ) February 4, 2008 AmerGen Energy Company, LLC )
. ) . :. Docket No. 50-219-LR:
(License Renewal f( r Oyster Creek Nuc lear )
Generating Station)
)
CERTIFICATE OF SERVICE.
I hereby certify that -opies of '"AnmerGen's Answ6r Opposing Citizens' Motion for Leave to Reply" 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 H-lawkens, 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 20555-000!
(E-mail: HEARINGDOCKET0:nrc.gov) (E-mail: erh(dnrc.cov)
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)
I-WA/2920315
I John A. Covino Office of Commission Appellate_'
Valerie Anne Gray Adjudication**- - ,-, e -
- Division of Law U.S. Nuclear Regulatory Commission Environmental Permitting and Counseling Section Washington, DC. 20555n.000 1 P.O. Box 093 Hughes Justice Complex Richard Webster,- .
Trenton, NJ 08625 Julia LeMense (E-mail: john. covi no#)dol.lps.state.nj. Is) Eastern En\virbnmehital Law. C~ter-.-.. -
(E-mail: valerie.eravwdol.lps.state.nj.us) 744 Broad Street, suite 1525 Newark, NJ 07102 (E-mail: rwebster(i-,easternenvironmental .org)
(E-mail: ilemense(,@*easternenvironnlental.ora)
Suzanne Leta Paul Gunter NJPIRG Kevin Kamps 1i N. Willow Street Beyond Nuclear Trenton, NJ 08608 6930 Carroll Avenue (E-mail: -sletawnipirgy.org) Suite 400 Takoma Park, MD 20912 (E:mail: paultbevondnuclear.org)
(E-mail: kevin ,bevondnuclear.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: kas2nanrc.gov) (E-mail: eikl (inrc.,ov)
(E-mail: mebl @nrc.gov)
(E-mail: jeal .,nrc.gov)
- Original and 2 copies
- First Class Mail only Brian P. Oldham (IL I-WA/2920315 z.
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