ML080670108

Oyster Creek - NRC Staff'S Response in Opposition to Citizens' Motion for Clarification

ML080670108
Person / Time
Site:	Oyster Creek
Issue date:	03/04/2008
From:	Baty M NRC/OGC
To:	NRC/OCM
SECY/RAS
References
06-844-01-LR, 50-219-LR, RAS H-1
Download: ML080670108 (7)

Text

March 4, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR

)

(Oyster Creek Nuclear Generating Station) )

NRC STAFFS RESPONSE IN OPPOSITION TO CITIZENS MOTION FOR CLARIFICATION INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to Citizens Motion for Clarification (Motion) dated February 27, 2008. For the reasons set forth herein, Citizens Motion should be denied.

DISCUSSION Citizens assert that the Memorandum from Luis A. Reyes, Executive Director of Operations, to the Commissioners regarding Renewal of Full-Power Operating License for Oyster Creek Nuclear Generating Station (SECY-08-0018), dated February 14, 2008, and served by the Office of the Secretary on the parties on February 21,1 was an unauthorized and ex parte submission and request that the Commission instruct the Staff not to make further unauthorized or ex parte submissions.2 Motion at 1.

1 See Memorandum from Annette L. Vietti-Cook to Luis A. Reyes Re: SECY-08-0018 (Feb. 21, 2008).

2 The remedy for an ex parte communication or communication in violation of separation of functions is disclosure of the communication. See, e.g., 10 C.F.R. § 2.348(c). SECY-08-0018 has been disclosed. In addition, Citizens have not alleged that they were harmed by the Staffs submission of SECY-08-0018.

SECY-08-0018 was neither unauthorized nor an ex parte submission to the Commission. Rather, it was sent to the Commission consistent with the Commissions procedures and past practice. Sections 2.340 and 54.32 of the Commissions regulations provide that a renewed operating license may be issued notwithstanding the pendency of a petition for Commission review under 10 C.F.R. § 2.341.3 The Commission has authorized the Director of the Office of Nuclear Reactor Regulation (NRR) to issue renewed operating licenses once he or she has made the appropriate findings in uncontested license renewal proceedings. However, the Commission, as a matter of policy, has not allowed the Director of NRR to make the appropriate findings and renew operating licenses in contested proceedings without Commission authorization. Staff Requirements Memorandum-SECY-02-0088-Turkey Point Nuclear Plant, Units 3 & 4, Renewal of Full Power Operating Licenses (SRM-SECY-02-0088) (June 5, 2002).

Therefore the Director of NRR must seek Commission authorization to issue renewed licenses in contested proceedings.

In the only other license renewal proceeding thus far in which an adjudicatory matter was still pending at the time the Director was prepared to make the required findings and issue the renewed license, the Staff followed the Commissions guidance in SRM-SECY-02-0088, sending a memorandum4 to the Commission informing it of the results of the Staffs review of the McGuire-Catawba license renewal applications, and 3

In the statements of consideration for the license renewal rule, the Commission stated: Neither the AEA, the Administrative Procedure Act, nor any precept of administrative law compels the NRC to await exhaustion of the judicial appeals before it may issue a license. Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,964 (Dec. 13, 1991). Section 54.31 also provides that if a renewed license is later set aside on further administrative or judicial action, the operating license previously in effect will be reinstated.

4 Renewal of Full-Power Operating Licenses for McGuire Nuclear Station, Units 1 & 2, and Catawba Nuclear Station, Units 1 & 2 (SECY-03-0200) (Nov. 18, 2003).

requesting that the Commission allow the Director of NRR to renew the licenses upon the making of the proper findings.5 The Office of the Secretary (SECY) made SECY-03-0200 publicly available on November 24, 2003, and counsel for the Staff served SECY-03-0200 on the parties to the proceeding on November 25, 2003.6 Consistent with the Commissions directions and past practice, the Staff prepared SECY-08-0018 because the Oyster Creek license renewal proceeding is still contested.

Consequently, contrary to Citizens assertion, the Staffs submission of SECY-08-0018 was not an unauthorized submission but rather an appropriate step in the licensing process.

Moreover, the Staffs submission of SECY-08-0018 did not run afoul of the Commissions rules against restricted communications in adjudications. Although Citizens assert that the Staff violated 10 C.F.R. § 2.347, Staff communications are governed by § 2.348, which addresses separation of functions.7 Pursuant to 10 C.F.R.

§ 2.348, NRC officers or employees engaged in the performance of a litigating function in 5

At the time SECY-03-0200 was sent to the Commission, an appeal of the licensing boards decision in LBP-03-17, 58 NRC 221 (2003), was pending before the Commission and that SECY paper was not released to the parties until publicly released by the Office of the Secretary.

6 The Commissions Internal Procedures provide that Commission Papers will be released 10 business days after receipt by the Commission. Commission Internal Procedures, Chapter II, available at http://www.nrc.gov/about-nrc/policy-making/internal.html#SECYPapers. Also, In accordance with Management Directive (MD) 3.57, Handbook 3.57 Section 5.6, SECY finalizes each Commission paper in ADAMs, determines its public or non-public availability, and declares the paper an official agency record.

7 Section 2.347 only applies to communications between persons outside the agency and Commission adjudicatory employees relevant to the merits of the proceeding. See Revision of Ex Parte and Separation of Functions Rules Applicable to Formal Adjudicatory Proceedings, 53 Fed. Reg. 10360 (Mar. 31, 1988); Revision to Ex Parte and Separation of Functions Rules Applicable to Formal Adjudicatory Proceedings, 51 Fed Reg. 10,393, 10394 (Mar. 26, 1986).

Citizens also incorrectly assert that submission of SECY-08-0018 violated Sections §§ 554(d) and 557(d) of the Administrative Procedures Act. Sections 554(d) and 557(d) apply only to adjudications required to be on the record. Most NRC licensing proceedings are not required to be on the record by the Atomic Energy Act or any other statute. Therefore, the application of ex parte and separation of function limitations in NRC proceedings is a matter of discretion. 72 Fed. Reg. at 49417.

a proceeding are prohibited from advising Commission adjudicatory employees about any disputed issue in that proceeding, but may report status and provide general background.

Section 2.348 does not apply to uncontested issues in contested proceedings. See 72 Fed. Reg. at 49417.

The express purpose of SECY-08-0018 was to inform the Commission of the results of the Staffs review of Oyster Creeks license renewal application and request that the Commission authorize the Director of NRR to make the appropriate findings and renew Oyster Creeks operating license. The Staff did not intend to present new facts, opinions, arguments, or other information that was not already part of the public record.

Indeed, the Staff noted that pending administrative and judicial appeals in the proceeding.

Moreover, the Staff, well aware of its separation of functions obligations, intended to serve SECY-08-0018 on the parties in accordance with Commission procedures had SECY not served SECY-08-0018 on the parties itself. 8 Assuming arguendo that SECY-08-0018 contained information restricted by the separation of functions rule, SECY-08-0018 was served on the parties in fulfillment of

§ 2.348, and Citizens have suffered no harm. Thus, no clarification of the Commissions rules on restricted communications is warranted and no further action need be taken in response to Citizens Motion.

8 See procedures cited supra note 6. As noted above, in the case of SECY-03-0200, the Staff waited to serve the paper until SECY made it publicly available

CONCLUSION For the reasons set forth above, the Commission should deny Citizens Motion for Clarification.

Respectfully submitted,

/RA/

Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 4th day of March 2008

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE 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 NRC STAFFS RESPONSE IN OPPOSITION TO CITIZENS MOTION FOR CLARIFICATION in the above-captioned proceeding have been served on the following by electronic mail and deposit in the U.S. Mail Service or deposit in the U.S. Nuclear Regulatory Commissions internal mail system, or by deposit in the U.S. Nuclear Regulatory Commissions internal mail system, or by deposit in the U.S. mail system, as indicated by an asterisk (*), this 4th day of March 2008.

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, DC 20555-0001 Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.gov E-mail: 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, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: OCAAMail@nrc.gov Washington, DC 20555-0001 E-mail: AJB5@nrc.gov Emily Krause Law Clerk Paul B. Abramson Atomic Safety and Licensing Board Administrative Judge Mail Stop: T-3F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: EIK1@nrc.gov Washington, DC 20555-0001 E-mail: PBA@nrc.gov

Suzanne Leta Liou* J. Bradley Fewell, Esq.*

New Jersey Public Interest Research Group Exelon Corporation 11 N. Willow St. 4300 Warrenville Road Trenton, NJ 08608 Warrenville, IL 60555 E-mail: sliou@environmentnewjersey.org E-mail: bradley.fewell@exeloncorp.com Donald Silverman, Esq.* Richard Webster, Esq.*

Alex S. Polonsky, Esq. Julia LeMense, Esq.

Kathryn M. Sutton, Esq. Eastern Environmental Law Center Raphael P. Kuyler, Esq. 744 Broad Street, Suite 1525 Morgan, Lewis & Bockius LLP Newark, NJ 07102 1111 Pennsylvania Ave., N.W. Email: rwebster@easternenvironmental.org Washington, DC 20004 jlemense@easternenvironmental.org E-mail: dsilverman@morganlewis.com apolonsky@morganlewis.com ksutton@morganlewis.com rkuyler@morganlewis.com Paul Gunter, Director*

Kevin Kamps Reactor Watchdog Project Nuclear Information And Resource Service 6930 Carroll Avenue Suite 340 Takoma Park, MD 20912 E-mail: paul@beyondnuclear.org kevin@beyondnuclear.orq

/RA/

Mary C. Baty Counsel for the NRC Staff