ML081720363

Amergen'S Answer Opposing Citizens' Motion to Strike

ML081720363
Person / Time
Site:	Oyster Creek
Issue date:	06/16/2008
From:	Fewell J, Kuyler R AmerGen Energy Co, Exelon Corp, Morgan, Morgan, Lewis & Bockius, LLP
To:	Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, FOIA/PA-2008-0306, RAS-H-47
Download: ML081720363 (11)

Text

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. UNITED STATES OF AM ERICA NUCLEAR REGULATORY CO )MMISSION DOCKETED ATOMIC SAFETY AND LICENS ING BOARD USNRC Before Administrative Ju dges: June 16, 2008 (4:44pm)

E. Roy Hawkens, Cha ir OFFICE OF SECRETARY Dr. Paul B. Abramso n RULEMAKINGS AND STAFF Dr. Anthony J. Barati ADJUDICATIONS

)

In the Matter of: )

) June 16, 2008 AmerGen Energy Company, LLC )

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

)

AMERGEN'S ANSWER OPPOSING CITIZENS' MOTION TO STRIKE Pursuant to 10 C'.F.R. § 2.323(c), AmerGen Energy Co., LLC ("AmerGen") hereby files its Answer Opposing Citizens'" Motion to Strike.2 As demonstrated below, the Motion must be denied because it fails to justify the Board taking the discretionary step of striking AmerGen's and the Staffs Responses,- particularly when said responses have been submitted in full compliance with the Board's request.- Further, Citizens misuse their Motion to Strike to, yet again, request unauthorized discovery, thereby continuing to waste Board and party resources with yet another groundless motion.

"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.

2 Citizens' Motion to Strike and For Other Appropriate Relief (June 5, 2008) ("Motion to Strike"). This Answer is timely filed and Citizens may not file a reply. 10 C.F.R. §§ 2.323(c); 2.306.

3 AmerGen's Response to May 21 Board Order (May 27, 2008) ("Response"); NRC Staff's Explanatory Pleading and Affidavit (May 27, 2008) ("Staff Response").

4 Licensing Board Order (Directing Parties to Submit Explanatory Pleadings and Affidavits) (May 21, 2008) (unpublished)

("Order").

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I. BACKGROUND This Motion to Strike stems from Citizens' pending motion to reopen the record and late-filed contention.- Specifically, AmerGen's Answer-6 to Citizens' Petition explains that the motion to reopen and new contention fails to meet the requirements for such relief, in part because they demand performance of a confirmatory analysis that the Staff had already requested and AmerGen had already agreed to perform.2 AmerGen's Answer to the Petition also explains that the motion and contention, ultimately rest on speculation as to the results of the pending confirmatory analysis.- After AmerGen filed its Answer, the confirmatory analysis was completed and AmerGen submitted the results to the NRC Staff, under oath and on the docket as a response to a request for additional information ("RAI").2 AmerGen closed the loop by 1

notifying the public, the Commission and the parties. -° Thereafter, the Commission referred the matter to the Board, and the Board specifically directed each of the parties to submit an expert affidavit "that discusses with particularity the significance of the" RAI Response, "accompanied by a pleading that explains the impact, (if any) of that Response on the proper disposition of Citizens' motion to reopen the record and add a 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; and New Jersey Environmental Federation to Reopen the Record and for Leave to File a New Contention, and Petition to Add a New Contention (Apr. 18, 2008) ("Petition").

6 AmerGen's Answer Opposing Citizens' Motion to Reopen Record and Petition to Add a New Contention (Apr. 28, 2008)

("Answer to Petition").

2 See Answer to Petition at 26-27.

See id. at 27-28.

2 Letter from M. Gallagher to NRC Document Control Desk, "Response to NRC Request for, Additional Information on Metal Fatigue Analysis Related to Oyster Creek Generating Station License Renewal Application (TAC No. MC7624)"

(May 1, 2008), available at ADAMS Accession No. ML081270386 ("RAI Response").

1 Response at 3; see also Letter from A. Polonsky to Chairman D. Klein, "In the Matter of AmerGen Energy Company, LLC (License Renewal for Oyster Creek Nuclear Generating Station) Docket No. 50-219-LR" (May 5, 2008) availableat ADAMS Accession No. ML0812904550 ("AmerGen Letter").

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)

1 new contention.". AmerGen, the Staff, and Citizens each responded to the Board's request; 2 the very responses Citizens now seek to strike.13 ii. ARGUMENT Citizens' Motion to Strike must be denied. Although the Board "may... strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative,'"'L Citizens do not address these standards directly, but instead request that the Board exercise its discretion under a "cardinal rule of fairness" to strike AmerGen's and the Staffs Responses.-- Citizens allege that, contrary to the Board's request, AmerGen and the Staff "supplement their answers and suggest additional grounds for dismissal

,,6 of the Contention.'6 As explained below, Citizens proffer no justification for the Board to take the discretionary step of striking the Responses, as they are responsive to the Board's request and are in no way irrelevant, immaterial, unreliable, duplicative, or cumulative. Thus, Citizens' Motion to Strike fails to satisfy 10 C.F.R. § 2.319(d) and must be denied as a matter of law.

A. Citizens Have Not Shown That They Are Entitled to Any Relief I. The Responses Are Within The Scope Of The Board's Request The fundamental premise of the Motion to Strike is that AmerGen and the Staff have strayed beyond the scope of the Board's request. 1 7 This argument is fatally deficient because H Order at 2 (emphasis added).

12 Response; Staff Response; Citizens' Response to Board Order and Motion to Supplement the Basis of Their Contention (May 27, 2008) ("Citizens' Response").

_3 As a threshold matter, the instant Motion to Strike is baseless because the Board in this proceeding has already ruled that one party may not seek to strike another party's response to a Board request. Instead, the Board will consider the "statements in the context of the question posed." Licensing Board Memorandum and Order (Ruling on Motions in Limine) at 3 (Sept. 21, 2007) (unpublished). Thus, the Motion to Strike is unauthorized because "it is the Board, not [a party], that will determine whether a party's submittal utterly fails to respond to a Board request." Id. at 3 n.5 (citations and quotations omitted; emphasis in original).

L4 10 C.F.R. § 2.319(d) (emphasis added).

L5 Motion to Strike at 2.

L6 Id.

L7 See id.

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citizens fail to articulate any intelligible distinction between issues that are "within the scope" of the Board's request, and those that are not.-L In this regard, they appear to claim that the Board's request is limited to whether it should "consider the contents of the [RAI] Response" as opposed to "whether to admit Citizens' pending contention regarding metal fatigue."'19 Such an argument is plainly at odds with the Board's Order.

The Board did not ask the parties to address whether the RAI Response has any impact on the pending issues, but rather to explain "the impact (if any) of that Response on the proper disposition of Citizens' motion to reopen the record and add a new contention.",° Further, if the Board had been interested only in a legal discussion of whether it is permitted to consider the RAI Response, it would not have asked for "an affidavit authored by an appropriate expert that

• 21 discusses with particularity the significance" of the RAI Response.21 Thus, the distinction Citizens desire to draw lacks any basis in the Board's Order, rendering their Motion baseless.

Further, AmerGen's Response addresses the Board's request and contains no new arguments.

2. AmerGen's Response Is Not "Effectively" A Motion of Any Kind Contrary to Citizens' claims,22 AmerGen makes no motion and requests no relief in its Response. The same is true for the Staff. Citizens once again have conveniently forgotten that they bear the burden of demonstrating that the record must be reopened and their late filed contention or contentions must be admitted if they wish to obtain any relief.23 The record, of course, remains closed and no contention has been admitted, so any purported motion to dismiss L See id. at 1-2.

See id. at 2.

L Order at 2 (emphasis added).

21 Id.

22 See generally Motion to Strike.

23 See generdlly AmerGen's Answer Opposing Citizens' Motion to Supplement (June 6, 2008) ("Answer to Motion to Supplement").

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would be premature. It is therefore specious to argue that AmerGen and the Staff have "effectively" submitted motions to dismiss.

Furthermore, as explained above, AmerGen's Response contains no new arguments, and responds only to the Board's request. There has been no prejudice to Citizens. AmerGen's Response clearly explains that the AmerGen Letter closed the loop created by the Staff's Notification24 and AmerGen's Answer by notifying the Commission, the parties, and the public of the results of the pending analysis.25 It also explains that the RAI Response confirmed the original arguments in AmerGen's Answer and provided additional evidence supporting those arguments 26 Citizens, however, claim that AmerGen's Response was "effectiyely" a motionto dismiss because AmerGen argues that "the relief Citizens requested.., had already been granted."L7 This charge is deceptive, however, because it suggests that this is the first time AmerGen has made this argument. This is not true. AmerGen made this argument for the first time in its Answer to the Petition, and merely reiterated it in its Response.28 In context, the phrase Citizens' 29 quote is clearly only a reiteration of AmerGen's previous arguments, and nothing new.

Citizens also allege that "both AmerGen and the NRC Staff argue incorrectly that the Letter showed that the Motion did not raise a significant safety issue."3 °OYet again they 24 Board Notification 2008-01, Notification of Information in the Matter of Oyster Creek Nuclear Generating Station License Renewal Application (Apr. 3, 2008), available at ADAMS Accession No. ML080940688.

25 Response at 3-4.

L6 See id. passim.

L7 Motion to Strike at 5.

28 Response at 6 (citing Answer to Petition at 26-28). In its Response, AmerGen appropriately argued that the RAI Response confirmed that the proposed contention did not raise a genuine issue because: (a) it demonstrated that Dr. Hopenfeld's speculation was wrong, and (b) it documented the completion of the analysis Citizens requested. Response at 6-7.

AmerGen did not argue that the proposed contention was moot.

29 Id. ("In its Answer, AmerGen explained that the new contention is inadmissible because it fails to raise a genuine dispute, contrary to 10 C.F.R. § 2.309(f)(1)(vi) for two reasons: first, because the relief Citizens requested (i. e., performance of a confirmatory analysis) had already been granted... ") (emphasis added).

LO Motion to Strike at 3 (citing Response at 4-5; Staff Response at 3-4) (emphasis added).

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mischaracterize the arguments of AmerGen and the Staff. In its Response, AmerGen argues that the RAI Response "confirms the lack of safety significance of the issue Citizens raise."31 Similarly, the Staff explains that the RAI Response "does not support Citizens' assumption and undermines their assertion that they have raised a significant safety issue.-32 Thus, because neither AmerGen nor the Staff introduces any new arguments in their respective Responses, there is no basis to strike them. Moreover, as explained in Section II.B, below, Citizens are attempting to use their Motion to Strike as a vehicle in which to reply to AmerGen's and the Staff's Responses, so they cannot claim any prejudice based on any alleged denial of a "full and fair opportunity to respond." 33 B. Citizens Have Had More Than Enough Opportunities To Brief The Issues The parties and the Board have now heard Citizens' multiple, speculative complaints about how their rights would be infringed if they are not given a "full and fair opportunity to respond" to all arguments made on their pending motion to reopen the record and new contention.34 These objections ring hollow. Citizens have taken full advantage of many opportunities to brief this issue, including: (1) an initial motion for stay; (2) a motion to reopen the record and new contention; (3) a reply to the answers opposing their new contention; (4) a response to the Board Order, accompanied by a motion to "supplement" the basis of their contention; and finally (5) a motion to strike. Moreover, many of these filings reach beyond the 31 Response at 4; see also id. at 4-6; 32 Staff Response at 3. The Staffs mootness argument is also not new. Compare Staff Response at 4 ("AmerGen's RAI Response moots Citizens' proposed new contention.") with NRC Staff s Response in Opposition to Citizens' Motion to Reopen the Record and for Leave to File and Add a New Contention (June 16, 2008) at 23 ("Citizens' contention would likely become moot once the Staff carries out its plan to request that AmerGen provide a confirmatory calculation.").

13 Motion to Strike at 6.

L4 Motion to Strike at 7; Citizens' Response at 4; see also 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;and New Jersey Environmental Federation to Stay License Renewal Proceedings for Oyster Creek Nuclear Power Plant Pending Resolution of the Significant New Issue Notified by Staff at 2 (Apr. 11, 2008) ("Motion for Stay") (requesting that the Commission order AmerGen to produce a copy of the confirmatory analysis "to prevent Citizens' hearing rights under the AEA being curtailed").

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Rules of Practice by, for example, failing to request leave of the Board to amend their contention, or even to address most of the applicable requirements for amending their contention this late in the proceeding, contrary to 10 C.F.R. §§ 2.309 and 2.326.05 They also have repeatedly requested unauthorized discovery, contrary to 10 C.F.R. § 2.336(f) and binding Commission precedent. 36 The instant Motion to Strike is effectively an unauthorized reply to AmerGen's and the Staff's Responses. For example,Section I.B of the Motion to Strike replies to AmerGen's and the Staff's arguments about the impact of the RAI Response and further develops Citizens' previous position that the RAI Response cannot lead to any "relief' for AmerGen.37 Section II thereof attempts to bolster Citizens' previous claims that they must engage in discovery prior to any denial of their motion to'reopen.L8 These actions mute Citizens' hue and cry about being deprived of a "full and fair opportunity to respond."

C. Citizens Are Not Entitled To Discovery To Develop Their Motion to Reopen Or Contention Desperate to shore up the bulkheads of their sinking contention, Citizens reiterate their previous requests for documentary discovery, this time in the form of an alternative request for relief.3 This argument not only is without legal basis, but now, instead of twisting the words of other parties, they misleadingly paraphrase the Board's statements. Specifically, Citizens cite the Board's decision in LBP-06-22 for the proposition that they have a duty to "'obtain L See generally Answer to Motion to Supplement.

L6 See Section C, below.

37 See Motion to Strike at 4-6.

L8 See id. at 6-7.

L9 See id.

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information' from AmerGen to support a contention if the information is part of the LRA or is contained in supportingdocumentation to the LRA [license renewal application]."° The Board, however, did not say this. It stated that "petitioners have an affirmative obligation to obtain documentation in support of a proffered contention to the extent such documentation is part of the LRA or contained in the LRA as an attachment or supporting document.'4 AmerGen has not provided the confirmatory analysis itself to the Staff, so the analysis is not "part of ... or contained in the LRA as an attachment or supporting document."4-2

,AmerGen has submitted the results of the confirmatoryanalysis on the docket, so Citizens have full access to that information (and AmerGen has even served-a copy on Citizens), so the case law Citizens' cite is inapposite. The proprietary nature of the documents is simply irrelevant.!3 Instead, controlling Commission precedent forbids discovery for the purpose of developing a motion to reopen or a proposed contention.44 Thus, the Board must deny Citizens' alternative request for document discovery.

Id. at 7 (quoting AnmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 NRC 229, 238-239 (2006) ("LBP-06-22")).

LBP-06-22, 64 NRC at 252.

! Id.

. Cf AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 123 n.71 (2006)

("[P]etitioners or intervenors may request, and where appropriate, obtain ... information withheld from the general public for proprietary or security reasons.") (quoting USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 433, 460 (2006); AmerGen Energy Co., LLC, Oyster Creek Nuclear GeneratingStation; Notice ofAcceptance for Docketing of the Application and Notice of OpportunityforHearing Regarding Renewal of Facility OperatingLicense No. DRP-] 6for an Additional 20-Year Period,70 Fed. Reg. 54,585, 54,586 n.1 (Sept. 15, 2005) ("To the extent that the application contains attachments and supporting documentation that are not publicly available because they are asserted to contain safeguards or proprietary information, petitioners desiring access to this information should contact the applicant .... ").

! E.g., Balt. Gas and Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units I & 2), CLI-98-25, 48 NRC 325, 351 (1998)

("[L]ongstanding agency precedent precludes an intervenor from obtaining discovery to assist it in framing contentions.");

Metro. Edison Co. (Three Mile Island, Unit 1), CLI-85-7, 21 NRC 1104, 1106 (1985) ("The movant is not entitled to engage in discovery in order to support a motion to reopen."); see also Rules of Practicefor Domestic Licensing Proceedings-ProceduralChanges in the HearingProcess, 54 Fed. Reg. 33,168, 33,170-71 (Aug. 1I. 1989) (This requirement is intended to "preclude a contention from being admitted where an intervenor has no facts to support its position and ... contemplates using discovery ... as a fishing expedition.").

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III. CONCLUSION For the reasons set forth above- the Board must deny the Motion to Strike in its entirety.

Respectfully submitted, Donal 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: dsilveiman(morganlewis.com E-mail: ksuttongmorganlewis.com E-mail: apolohskygmorganlewis.com E-mail: rkuylergmorganlewis.com J. Bradley Fewell Associate General Counsel Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 Phone: (630) 657-3769 E-mail: Bradley.Fewellna)exeloncorp.com Dated in Washington, D.C. COUNSEL FOR this 16th day of June 2008 AMERGEN ENERGY COMPANY, LLC I-WA/2988636 9-

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

E. Roy Hawkens, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta

)

In the Matter of: ) June 16, 2008

)

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 to Strike" were served this day upon the persons listed below, by e-mail and first class mail.

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: HEARINGDOCKETa~nrc.gov) (E-mail: erha~nrc. 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: pbagnrc.gov) (E-mail: ajb5(@nrc.gov)

I-WA/2988636

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 (E-mail: OCAAmnailginrc.gov)

Hughes Justice Complex Trenton, NJ 08625 Richard Webster (E-mail: john.covino(a dol .lps. state.nj .us) Julia LeMense (E-mail: valerie.gzray(a.dol.lps.state.nj.us) Eastern Environmental Law Center 744 Broad Street, Suite 1525 Newark, NJ 07102 (E-mail: rwebster(2easternenvironmrental.org)

(E-mail: jlemensedeasternenvironmental.org)

Mary C. Baty Paul Gunter Kimberly A. Sexton Kevin Kamps James E. Adler Beyond Nuclear Office of the General Counsel, 0-15D21 6930 Carroll Avenue U.S. Nuclear Regulatory Commission Suite 400 Washington, DC 20555 Takoma Park, MD 20912 (E-mail: kas2Qnrc.gov) (E-mail: paui(beyondnuclear.org)

(E-mail: mcbl a,nrc.gov) (E-mail: kevingbeyondnuclear.org)

(E-mail: jea I@Danrc.gov)

Emily Krause Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: eikl nrc.gov)

• Original and 2 copies Aaph 7P. Kuyler I-WA/2988636 2