ML081690078
| ML081690078 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 06/16/2008 |
| From: | James Adler, Baty M NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-219-LR, FOIA/PA-2008-0306, RAS-H-39 | |
| Download: ML081690078 (6) | |
Text
June 16, 2008 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 STAFFS ANSWER TO CITIZENS MOTION TO STRIKE NRC STAFF RESPONSE TO THE MAY 21 BOARD ORDER INTRODUCTION Pursuant to § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to Citizens Motion to Strike and For Other Appropriate Relief (Motion to Strike) dated June 5, 2008. The Motion to Strike requests that the Board strike a Staff pleading that the Board ordered the Staff to file. For the reasons set forth below, Citizens Motion to Strike should be denied.
DISCUSSION On May 21, 2008, the Board issued Order (Directing Parties to Submit Explanatory Pleadings and Affidavits) (unpublished) (May 21 Order). Therein the Board directed the parties to submit affidavits by qualified experts discussing with particularity the significance of AmerGens May 5, 2008 response (RAI Response) to an NRC Staff Request for Additional Information (RAI) regarding metal fatigue analysis, as well as pleadings that explain[] the impact (if any) of that [RAI] Response on the proper disposition of Citizens motion to reopen the
record and add a new contention. The Staff and AmerGen did so,1 stating how Citizens motion should be dispositioned in light of the information in the RAI Response (e.g. that the RAI Response renders Citizens motion moot,2 or that the RAI Response confirms that Citizens motion should be denied due to failure to raise an issue of safety significance3).
Citizens now seek to strike these pleadings on the unlikely grounds that compliance by the Staff and AmerGen with the Boards express direction in the May 21 Order to provide views regarding proper dispositioning of Citizens motion to reopen and add a new contention created a violation of Commission pleading requirements. See Motion to Strike at 3-6. Effectively, Citizens are claiming that the Board erred when it ordered the parties to state these views, or, at the very least, that the Board made a mistake by failing to direct the parties to style their responses as motions. See id. The Staff doubts that the cardinal rule of fairness, upon which Citizens rely in their Motion to Strike, see id. at 2, 4, 6-8, would permit the Board to penalize the Staff or AmerGen for following the Boards own instructions.4 1
See NRC Staffs Explanatory Pleading and Affidavit (May 27, 2008) (Staffs Explanatory Pleading); AmerGens Response to May 21 Board Order (May 27, 2008) (AmerGens Explanatory Pleading).
2 Staffs Explanatory Pleading at 4.
3 Staffs Explanatory Pleading at 3-4; AmerGens Explanatory Pleading at 5.
4 The Staff also notes that in the section of Citizens own response to the Boards May 21 Order that is entitled Response To The Boards Question (as distinguished from the subsequent section entitled Briefing In Support Of Motion To Supplement), Citizens themselves attempt to supplement their earlier arguments regarding the original metal fatigue analysis provided by AmerGen for the recirculation nozzle. See Citizens Response to Board Order and Motion to Supplement the Basis of Their Contention at 5 (May 27, 2008) (Citizens Explanatory Pleading) (claiming that the RAI Response adds to the basis of Citizens original proposed metal fatigue contention); id. at 6 (alleging that the confirmatory analysis indicates that the original analysis was not sufficiently conservative in two additional respects). Citizens seem to treat this section of their Explanatory Pleading as separate and distinct from its motion, yet this section nonetheless includes the same sort of supplementation that that Citizens take issue with in the Staffs and AmerGens Explanatory Pleadings. As a result, Citizens arguments in their Motion to Strike ring hollow.
Citizens also request, in the event the Board declines to penalize the Staff and AmerGen for following its instructions by striking their pleadings in full, that the Board order AmerGen to provide the documentation that supports the analyses contained in its RAI Response. The evidentiary record in this proceeding, however, is closed, which means that parties have no obligation to submit additional documents into the record. This request by Citizens amounts to a discovery request that is prohibited in Subpart L proceedings such as this one. See 10 C.F.R.
§§ 2.336(f) and 2.1203(d). Citizens request is also contrary to Commission case law which precludes an intervenor from obtaining discovery to assist it in framing motions to reopen and add contentions. See Baltimore Gas and Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1
& 2), CLI-98-25, 48 NRC 325, 351 (1998) (noting Commissions longstanding precedent that intervenors are not entitled to engage in discovery to assist in framing contentions and the Commissions determination that this precedent does not violate intervenors due process rights); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 7), CLI-85-7, 21 NRC 1104, 1106 (1985) (precluding movant from engaging in discovery to support a motion to reopen). Thus, to honor Citizens request for discovery would be contrary to well established Commission precedent.
Finally, as stated in the Staffs previous pleadings on the metal fatigue issue, reopening a closed record is a difficult task by design, and so Citizens claim that accomplishing this goal may prove difficult under the current circumstances does not signal a lack of fairness; it simply reflects the reality of the Commissions rules on record reopening.
CONCLUSION For the reasons explained above, Citizens Motion should be denied.
Respectfully submitted,
/RA/
James E. Adler Counsel for NRC Staff
/RA/
Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 16th day of June 2008
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 NRC STAFFS ANSWER TO CITIZENS MOTION TO STRIKE NRC STAFF RESPONSE TO THE MAY 21 BOARD ORDER 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 16th day June, 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. Rutgers Environmental Law Clinic Raphael P. Kuyler, Esq. 123 Washington Street Morgan, Lewis & Bockius LLP Newark, NJ 07102-5695 1111 Pennsylvania Ave., N.W. Email: rwebster@easternenvironmental.org Washington, DC 20004 jlemense@easternenvironmental.og 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