ML082280079

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Amergen'S Answer Opposing Citizens' Petition for Review of LBP-08-12
ML082280079
Person / Time
Site: Oyster Creek
Issue date: 08/11/2008
From: Sutton K
AmerGen Energy Co, Exelon Corp, Morgan, Morgan, Lewis & Bockius, LLP
To:
NRC/OCM
SECY RAS
References
LBP-08-12, RAS-H-55
Download: ML082280079 (32)
v • d • e


Text

Rp6- 45 DOCKETED USNRC UNITED STATES OF AMERICA August 12,, 2008 (8:30am)

NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY BEFORE THE COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF

)

In the Matter of: )

)

AmerGen Energy Company, LLC

) Docket No. 50-219

)

(License Renewal for Oyster Creek Nuclear )

Generating Station) )

)

AMERGEN'S ANSWER OPPOSING CITIZENS' PETITION FOR REVIEW OF LBP-08-12 Donald J. Silverman Kathryn M. Sutton Alex S. Polonsky Raphael P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 J. Bradley Fewell Associate General Counsel Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 COUNSEL FOR AMERGEN ENERGY COMPANY, LLC August 11, 2008

TABLE OF CONTENTS Page

1. STATEMENT OF THE CASE ...................................................................................... 2 II. LEG A L STAN DA RD S ................................................................................................. 5 A. Reopening the Record is an Extraordinary Action ............................................ 5 B. Standard of R eview ........................................................................................... 6 III. CITIZENS HAVE NOT DEMONSTRATED THAT COMMISSION REVIEW IS WARRANTED UNDER 10 C.F.R. § 2.341 ............................................................ 8 A. The Board's Ruling Regarding A Lack Of A Significant Safety Issue Is C orrect (C itizens' Issue C l) ................................................................................ 8
1. The Board Applied The Correct Definition of a Significant Safety Issu e ...................................................................................................... . .8
a. The Board Correctly Required Citizens To Demonstrate a Connection Between Their Alleged Deficiency and a Significant Safety Issue ............................................................. 8
b. The Board Is Required to Weigh All of the Evidence ............. 10
2. The Board Properly Weighed the Evidence ......................................... 14 B. The Board's Ruling Regarding The Lack Of A Likely Materially-Different Result Is Correct (Citizens' Issue C2) .................................................................. 18
1. Citizens Have Not Shown Clear Error In the Board's Factual F indings ............................................................................................. . . 18
2. Citizens Have Not Shown That The Board Erred In Finding Their Initial Motion To B e Moot ....................................................................... 19
3. Citizens Are Not Entitled to Discovery ...................................................... 20 C. The Board's Procedural Rulings Did Not Prejudice Citizens (Citizens' Issu e C 3 ) .............................................................................................................. 21 D.-I The Board Did Not Vi6lafe the AEA 0r Cifizefis' Due Process Rights-(C itizens' Issue C 4) ......................................................................................... 23 IV . C ON C L U S IO N ................................................................................................................ 25

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TABLE OF AUTHORITIES JUDICIAL DECISIONS Hale v. Committee on Character& Fitnessfor the State of Ill., 335 F.3d 678 (7th Cir. 2 0 0 3) ...................................................................................................... .............. 15 Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984) ................. 23,24 Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990) ........................ 23,24 ADMINISTRATIVE DECISIONS Advanced Medical Sys., Inc., CLI-93-22, 38 NRC 98 (1993) ...................................... 19 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI 24, 64 N R C 111 (2006) .................................................................................................. 7 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

Commission Order (unpublished) (May 9, 2008) .................................................. 4, 7 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), Licensing Board Order (unpublished) (May 21, 2008) ............................. 5 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI 13, slip op . (June 17, 2008) ........................................................................... ........... 3,20 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP 12, slip op. (Aug. 1, 2008) ................................................................................... p assim Balt. Gas and Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2),

CLI-98-25, 48 NRC 325 (1998) ................ ...................... ........ 20 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2),

LBP-84-3, 19 N R C 282 (1984) ................................................................................. 9 Cleveland Electric IlluminatingCo. (Perry Nuclear Power Station, Units I & 2),

CLI-86-7, 23 N RC 233 (1986) ................................................................................ 21 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-813, 22 NRC 59 (19 85) ..................................................................................................................... 2 1, 2 2 Hydro Res., Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-1, 63 NRC 1 (2 0 0 6 ) ................................................................................................................. 7 , 14 , 19

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Kan. Gas & Electric Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 N R C 320 (1978) ...................................................................................... 6, 11 La. Energy Services, LP (National Enrichment Facility), CLI-05-28, 62 NRC 721 (2 0 0 5) ................................................................................................................. 7 , 14 , 19 La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 N R C 1 (19 86) ......................................................................................................... 15 ,2 1 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-82-34A , 15 N RC 914 (1982) ................................................................................... 6 MetropolitanEdison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-807, 21 N R C 1195 (1985) ...................................................................................... 10 MetropolitanEdison Co. (Three Mile Island Nuclear Station, Unit No. I), CLI-85-7, 21 NRC 1104 (1985) ................................... 6, 13, 20 MetropolitanEdison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-8, 21 N R C 1111 (1985) ...................................................................................... 10 Pac. Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

A LAB -775, 19 NRC 1361 (1984) ................................................................................. 6 PhiladelphiaElectric Co. (Limerick Generating Station, Units 1 & 2), ALAB-828, 23 NR C 13 (1986) ............................................................................................ 7 Private Fuel Storage, L.L. C. (Independent Spent Fuel Storage Installation), CLI-05-19, 62 N RC 403 (2005) .............................................................................. 17, 18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Installation), CLI-06-3, 64 N R C 19 (2006) ...................................................................................................... . . 13 PrivateFuel Storage, L.L. C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 N RC 345 (2005) .................................................................................. p assim Pub. Serv. Co. of Okla. (Black Fox Station, Units 1 & 2), ALAB-573, 10 NRC 775 (19 79 ) ...................................................................................................................... 7 Pub. Serv. Co. ofN.H. (Seabrook Station, Units 1 & 2), ALAB-915, 29 NRC 427 (19 89) ..................................................................................................................... 20 , 21 Pub. Serv. Co. ofN.H. (Seabrook-Station, Units 1 & 2), CLI-90-06, 31 NRC 483 (19 9 0 ) ........ .....................................................................  :......................................... 9 , 15

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Pub. Serv. Co. ofN.H. (Seabrook Station, Units 1 & 2), CLI-90-10, 32 NRC 218 (19 9 0 ) ........................................................................................................................... 12 Tenn. Valley Auth. (Hartsville Nuclear Plant, Units IA, 2A, 1B and 2B), ALAB-463, 7 N R C 341, 352 (1978) .................................................................................. 14,17 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006) .................. 18 Vt. Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

A LAB -138, 6 A .E.C . 520 (1973) ..................................................................... 10, 20, 22 FEDERAL REGULATIONS/FEDERAL REGISTER 10 C .F .R . § 2 .309 ............................................................................................. I............ 6, 13 10 C .F .R . § 2 .3 11 ................................................................................................................. 7 10 C .F .R . § 2.3 19 ............................................................................................................... 21 10 C .F .R . § 2 .32 3 .............................................................................................................. 22 10 C .F .R . § 2 .326 ....................................................................................................... p assim 10 C .F .R . § 2 .34 1 ....................................................................................................... p assim 10 C .F.R. § 2.802 .... ............................................................................................ 13 10 C .F .R . § 54.2 1 ........................................................................................................ 9 Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989) .................................... 20 Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004)....................... 13 Fatigue Analysis of Nuclear Power Plant Components, 73 Fed. Reg. 24,094 (May 1, 20 0 8) .......................................................................................................................... 3

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: ) August 11, 2008

)

AmerGen Energy Company, LLC )

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

Generating Station) )

- AMERGEN'S ANSWER OPPOSING CITIZENS' PETITION FOR REVIEW OF LBP-08-12 On August 1, 2008, Citizens' filed a Petition2 seeking Commission review of the Atomic Safety and Licensing Board's ("Board") Memorandum and Order-3 ("LBP-08-12") denying their requests4 to reopen the record to litigate new issues in the Oyster Creek Nuclear Generating Station ("Oyster Creek") license renewal proceeding. In their appeal, Citizens allege that the Board erred in finding that they failed to raise a significant safety issue or demonstrate that a materially different result would be likely if the record was reopened, and that the Board's procedural rulings prejudiced Citizens and violated their rights under the Atomic Energy Act and U.S. Constitution.- AmerGen Energy Company, LLC ("AmerGen") hereby opposes the Petition because it does not meet the standards for appellate review defined by 10 C.F.R § 2.341(b)(4), it Citizens consist of 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 the New Jersey Environmental Federation.

Citizens' Petition for Review of LBP-08-12 (Aug. 1, 2008) ("Petition").

(Denying Citizens' Motion to Reopen the Record and to Add a New Contention) slip op. (July 24, 2008).

_4 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) ("Motion to Reopen"); Citizens' Response to Board Order and Motion to Supplement the Basis of Their Contention (May 27, 2008) ("Second Motion").

See generally Petition.

misstates the governing regulatory standards for a motion to reopen the record under 10 C.F.R.

§ 2.326, and once again presents self-serving mischaracterizations of the record and LBP-08-12.

I. STATEMENT OF THE CASE This is a case that has run its full and fair adjudicatory course. It is not a case about significant nuclear safety issues or due process. Rather, Citizens have taken a Staff Notification out of context and are attempting to create the specter of an unaddressed significant safety issue where none exists.

Specifically, on April 3, 2008 the NRC Staff notified the Commission that it was reviewing the use of a simplified method to calculate cumulative usage factors ("CUF") that, it believed, "may not be conservative.'"' The Staff focused its review for Oyster Creek on one type of component (i.e., the recirculation outlet nozzles). It explained its intent to ask AmerGen "to perform a confirmatory analysis consistent with the methodology in Section III of the ASME Code."7 The Staff provided this information to the Commission not because it is a significant safety issue, but "because this may be an issue of public interest."- The Staff specifically stated that the issue's safety significance is low.9 In fact, as this issue has.developed, the Staff has 0

consistently maintained that this issue is of low safety significance.'

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

("Commission Notification").

Id. This is because AmerGen only applied the method questioned by the NRC Staff on the recirculation outlet nozzle.

Id.

Id. The Staff's low safety significance conclusion is based on the risk assessments made in resolving generic safety issues (GSI)-166 and GSI4190. Id. In a subsequent Draft Regulatory Issue Summary

("RIS"), the Staff explained that this is a generic issue that applied throughout the industry and that the simplified methodology "could be nonconservative if not correctly applied." Regulatory Issue Summary, Fatigue Analysis of Nuclear Power Plant Components at 1 (Apr. 11, 2008), available at ADAMS (footnote continued) 2

Citizens, however, viewed the April 3 Commission Notification as an opportunity to further delay issuance of the renewed operating license for Oyster Creek, and took action to accomplish that goal. They first requested that the Commission stay the issuance of the renewed 1

license.11 The Commission denied their request. 2 Next, Citizens moved to reopen the record and admit a new contention to require.

AmerGen to perform a confirmatory analysis of the recirculation outlet nozzles at Oyster Creek

("Motion to Reopen"); i.e., the same analysis requested by the Staff, as discussed in the Commission Notification.-3 AmerGen's Answer explained that Citizens' Motion to Reopen lacked merit because, in addition to failing to meet the regulatory requirements for reopening a proceeding or proffering a late-filed contention, it demanded that AmerGen be required to Accession No. ML0809502350. This RIS was later published in the FederalRegister in an unnumbered format (i.e., RIS 2008-XX). See 73 Fed. Reg. 24,094 (May 1, 2008).

LO See NRC Staff's Response in Opposition to Citizens' Motion to Reopen the Record and for Leave to File and Add a New Contention (Apr. 28, 2008) at 6-9; Affidavit of John R. Fair (Apr. 28, 2008) ¶¶ 2, 6-9, 12; NRC Staff's Explanatory Pleading (May 27, 2008) at 3-4; Affidavit of John R. Fair (May 27, 2008) ¶¶ 6; NRC Staff's Answer to Citizens' Motion to Supplement (June 5, 2008) at 4-6.

lU 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 IssueNotified by Staff(Apri. 11, 2008)-("Motion to Stay").

L2 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, slip op. at 1 (June 17, 2008) (rejecting Citizens' stay motion as mooted by subsequent events and because it failed to meet the required standards for a stay).

L3 See Motion to Reopen at 12. Citizens also initially requested that similar confirmatory analyses be carried out for any other component that relied upon the potentially non-conservative analysis method, and that the metal fatigue monitoring program for Oyster Creek be revised to eliminate reliance on the purportedly non-conservative analysis method. However, in their Reply, they withdrew these other issues from litigation.

"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; and New Jersey Environmental Federation to AmerGen's Opposition to Their Petition to Add a New Contention" at 3 (May 5, 2008) ("Reply").

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perform an analysis that the Staff had already requested and that AmerGen had already agreed to 14 perform.

After the parties briefed Citizens' Motion to Reopen, AmerGen completed the confirmatory analysis for the recirculation outlet nozzle, and on May 1, 2008, provided the results in response to a Staff Request for Additional Information ("RAI").15 Counsel for AmerGen submitted a copy of the RAI Response to the Commission and the parties on May 5, 2008.-L It did so to communicate to the Commission and the general public that the confirmatory analysis requested by the Staff (1) was complete and (2) confirmed that the recirculation outlet nozzle at Oyster Creek would perform within ASME Code allowables.17 On May 9, the Secretary referred adjudication of Citizens' Motion to Reopen to the Board,1 8 and, on May 21, the Board 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' 14 AmerGen's Answer Opposing Citizens' Motion to Reopen Record and Petition to Add a New Contention at 26-27 (Apr. 28, 2008).

L5 Request for Additional Information Concerning Metal Fatigue and Its Impact on the Review of Oyster Creek Generating Stati6o, License Renewal Application (TAC No. M07624) (Apgr. 29, 2008)availableat ADAMS Accession No. ML0810800770; Letter from M. Gallagher to NRC Document Control Desk, "Response to NRC Request for Additional Information on Metal Fatigue Analysis Related to Oyster Creek Nuclear Generating Station License Renewal Application (TAC No. MC7624)" (May 1, 2008) availableat ADAMS Accession No. ML081270386 ("RAI Response").

16 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),

available at ADAMS Accession No. ML081290455.

L7 AmerGen's Response to May 21 Board Order at 3-4 (May 27, 2008) ("Response").

18 Commission Order (May 9, 2008) (unpublished) ("May 9 Order").

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motion to reopen the record and add a new contention.' 1'9 The parties responded to the Board's request.20 In doing so, however, Citizens included with their expert affidavit a second "Motion to Supplement the Basis of their Contention."21 This Second Motion blatantly sought to litigate,-

under the guise of their first late-filed contention, a new set of issues stemming from Citizens' criticisms of the information in the RAI Response.L2 Citizens later moved to strike the responses of the Staff and AmerGen to their Second Motion,2Q which the Board denied.2 4 On July 24, the Board denied Citizens' Motion to Reopen and Second Motion.L5 Judge Baratta filed a dissent, and Citizens now appeal that denial-largely on the basis of the dissent.

II. LEGAL STANDARDS A. Reopening the Record is an Extraordinary Action Despite their contretemps, by proffering a motion to reopen the record and litigate a new contention unrelated to a contention previously in controversy, Citizens face an extraordinary burden. First, under 10 C.F.R. § 2.326, they must satisfy, through expert affidavit, all of the requirements to reopen the record: the motion must be timely (or address an exceptionally grave issue); it must address a significant safety or environmental issue; and it must demonstrate that a L Licensing Board Order (Directing Parties to Submit Explanatory Pleadings and Affidavits) at 2 (May 21, 2008) (emphasis added).

20 See generally Response; NRC Staff's Explanatory Pleading and Affidavit (May 27, 2008) ("Staff Response"); Second Motion.

L Second Motion.

L2 See AmerGen's Answer Opposing Citizens' Motion to Supplement (June 6, 2008).

23 See generally Citizens' Motion to Strike and for Other Appropriate Relief (June 5, 2008) ("Motion to Strike").

24 LBP-08-12, slip op. at 23 n. 21.

25 See generally id. f 5

materially different result would be or would have been likely had the newly-proffered evidence been considered.

Reopening the record is "an extraordinary action."' The "burden is on the movant to establish, prior to reopening, that the standards for reopening are met."'7 Thus, 10 C.F.R.

§ 2.326(b) requires that the motion be accompanied by affidavits that support each of the bases satisfying the three criteria in § 2.326(a). The moving party must submit relevant, material, and reliable evidence in support of its motion.2 In analyzing the motion, the presiding officer must consider both the evidence presented by the movant, and any contrary evidence presented in response, to determine "whether there was a real issue at stake warranting a reopened hearing."

Moreover, 10 C.F.R. § 2.326(d) requires that "[a],motion to reopen which relates to a contention not previously in controversy among the parties must also satisfy the requirements for nontimely contentions in § 2.309(c)." In addition to the requirements for reopening the record, Citizens must demonstrate that the contention they seek to litigate meets the timeliness requirements of Sections 2.309(f)(2) and, if necessary, 2.309(c). Finally, they must demonstrate that their contention is admissible under Section 2.309(f)(1).

B. Standard of Review Under 10 C.F.R. § 2.341(b)(4), the Commission may grant a petition for review of a Board decision if the petition raises a substdntil lu&stihn withire-spect to the following-: (i) a 26 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-82-34A, 15 NRC 914, 915 (1982).

27 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-7, 21 NRC 1104, 1106 (1985)

(emphasis added); see also Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 NRC 320, 338 (1978) (noting that the proponent of a motion to reopen carries a heavy burden).

28 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-775, 19 NRC 1361, 1367 (1984).

L9 PrivateFuel Storage,LLC (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005) ("PFS").

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finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) a necessary legal conclusion is without governingprecedent or is a departurefrom or contraryto establishedlaw; (iii) a substantialand important question of law, policy, or discretion has been raised; (iv) the conduct of the proceeding involved a prejudicial procedural error; or (v) any other consideration which the Commission may deem to be in the public interest.30 LBP-08-12 is entitled to substantial deference because it denied Citizens' motion to reopen and late-filed contention. This is because the Commission, "give[s] 'substantial deference' to our boards' determinations on threshold issues, such as standing and contention admissibility."'31 Further, it appears that the Commission referred this matter to the Board in order to evaluate the evidence in the first instance, so a non-deferential review would appear to be inappropriate.-2 Moreover, in this appeal, Citizens seek to have the Commission scrutinize the Board's analysis of the expert affidavits that the parties submitted. For these challenges, the Board is accorded the highest deference, beyond that ordinarily accorded the Board for its factual determinations.33 Citizens' Petition should not be granted for numerous reasons. As discussed in Section III, below, Citizens have failed to demonstrate clear error in any of the Board's findings on 3O 10 C.F.R. § 2.341(b)(4) (emphasis added). Although Citizens cite 10 C.F.R. § 2.311 "out of an overabundance of caution," Petition at 1, this regulation does not apply to the instant petition. See PhiladelphiaElec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-828, 23 NRC 13, 18 n.6 (1986)

(holding that the predecessor of Section 2.311 applied to board orders wholly denying a petition for leave to intervene, and did not apply to a denial of a motion to reopen the record).

L1 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006); see also Pub. Serv. Co. of Okla. (Black Fox Station, Units 1 & 2), ALAB-573, 10 NRC 775, 804 (1979) (reviewing a licensing board decision on a motion to reopen under an abuse of discretion standard).

3_2 See May 9 Order.

L3 Hydro Res., Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-1, 63 NRC 1, 2 (2006); see also La.

Energy Servs., LP (National Enrichment Facility), CLI-05-28, 62 NRC 721, 723 (2005) ("LES").

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material facts in its analysis of the evidence presented by the parties, that the Board's legal conclusions are without governing precedent or are a departure from or contrary to established law, that the litigated issue raises a substantial question of law or policy, or that there is a prejudicial procedural error. As stated, they fail to satisfy Section 2.341(b)(4) and their Petition must be denied as a matter of law.

III. CITIZENS HAVE NOT DEMONSTRATED THAT COMMISSION REVIEW IS WARRANTED UNDER 10 C.F.R. § 2.341 A. The Board's Ruling Regarding A Lack Of A Significant Safety Issue Is Correct (Citizens' Issue CI)

1. The BoardApplied The CorrectDefinition of a Significant Safety Issue Citizens claim that the Board applied an incorrect definition of a significant safety issue under 10 C.F.R. § 2.326(a)(2).34 The Board explained that, in order to demonstrate that they raised a significant safety issue, Citizens must make aprimafacie showing that the license renewal application is deficient, and that the deficiency presents a significant safety issue.35 According to Citizens, the purportedly-correct definition only requires that they "merely had to show that a possible violation of safety standards could occur.36 Citizens provide no legal authority for this wishful interpretation. This simply is incorrect as a matter of law, rendering their Petition fatally deficient from the outset.

. a. . The Board Correctly Required Citizens To -Demonstratea Connection Between Their Alleged Deficiency and a Significant Safety Issue The Board properly ruled that Citizens cannot narrowly and simply rely upon the safety significance of the component in question-the recirculation outlet nozzle--but must instead L Petition at 4.

- LBP-08-12, slip op. at 11-12.

36 Petition at 4 (emphasis added).

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present sufficient evidence to show a connection between an alleged deficiency in said component and a significant safety issue.L- In seeking to reopen the record, Citizens simply relied on the alleged statement of an NRC spokesperson, as quoted in a newspaper article, speculating that, "breakage of the recirculation nozzle could lead to a severe accident." But even if Citizens are permitted to rely upon hearsay as presented in a newspaper article,39 the Board correctly explained that Citizens cannot rely solely upon the "unremarkable truism" that breakage of certain components, such as the recirculation outlet nozzle, could be a significant safety issue.4-Similarly, Citizens are fundamentally incorrect when they argue that any potential lack of compliance with Commission regulations constitutes a significantsafety issue.-L Citizens cite no legal authority for this proposition, because there is none. The NRC's Reactor Oversight Process and, more generally, the principles of risk-informed regulation are based on the premise that any and every failure to comply with regulations does not carry the same level .of safety significance.42 L7 LBP-08-12, slip op. at 11-12.

L8 Petition at 6 (emphasis added).

L9 _ Generally,, newspaper allegations cannot provide-sufficient grounds- to reopen the record. See Cleveland-Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-84-3, 19 NRC 282, 286 (1984).

4O LBP-08-12, slip op. at 14 (citing Pub. Serv. Co. ofN.H. (Seabrook Station, Units 1 & 2), CLI-90-06, 31 NRC 483, 487 (1990) (merely showing that a plant component "perform[s] safety functions and thus ha[s]

safety significance" is insufficient to demonstrate the requisite significant safety issue in a motion to reopen) (emphasis added)).

L Petition at 4-6 (claiming that AmerGen has "failed to demonstrate that it would comply with 10 C.F.R.

§ 54.21 (c)(1)(ii)"). However, as explained below, after consideration of all of the evidence, the Board found no reason to conclude that the CUFen of the recirculation outlet nozzle exceeded 1.0, so Citizens failed to even show that there is any potential lack of compliance.

42 See, e.g., NUREG- 1649, Reactor Oversight Process, at 3 (Rev. 3, July 2000) (outlining the key principles of the reactor oversight process, including "[r]esponding to violations of regulations in a ... manner that reflects the potential safety impact of the violations").

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This claim is also contrary to Commission precedent. In a motion to reopen the record of the TMI- 1 restart proceeding, petitioners in that proceeding presented evidence suggesting a variety of potential regulatory violations: loose plugs discovered in steam generator tubes, transient increases in sulfur and chloride concentrations in reactor coolant and secondary water, and new corrosion damage to steam generator tubes revealed by eddy current testing.'- The Appeal Board denied the motion, in part because each of the identified problems had been explained, steps had been taken to correct them, and as a result, the motion to reopen failed to raise a significant safety issue.4-4 Similarly, the Board in this proceeding correctly ruled that the proponent of a motion to reopen the record must allege more than simply a potential violation of Commission regulations, and must instead demonstrate the connection between the alleged violation and a significant safety issue. 45

b. The Board Is Required to Weigh All of the Evidence The Board properly evaluated all of the evidence presented by the parties briefing the motion to reopen, to determine whether the movant met its burden.-6 Citizens dispute the Board's analysis by citing Commission decisions in which aspects of the summary disposition analysis have been applied to understand the movant's burden in a motion to reopen the record. 47 Citizens, however, improperly extend this analogy when they conclude that: (1) the party opposing the rfiotion to reopen "¶eafs the burden of provinig the absence of a-genuiie-issue of -

.3 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-807, 21 NRC 1195, 1200-01 (1985).

L4 See id. at 1202-08.

L5 LBP-08-12, slip op. at 11-12.

L6 See id. at 11-15; 22-25; Metro. Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-8, 21 NRC 1111, 1113-1116 (1985).

Petition at 9 (citing PFS,CLI-05-12, 61 NRC at 350; Vt. Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973).

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material fact"; (2) the evidence submitted in a motion to reopen "must be viewed in the light most favorable to the [movant]"; (3) a decision to deny a motion to reopen "may not rest on credibility determinations," so "conflicting opinions from experts" demand reopening of the record; and (4) the "Commission should apply this summary judgment standard in a way that ensures that technically meritorious contentions are admitted, even if it means admitting a few contentions that are easily dismissed" on summary disposition.-8 All of these unsupported theories are contrary to well-settled Commission precedent that reopening the record is an extraordinary action, and the burden to demonstrate that the record should be reopened falls squarely on the movant.49 First, the analogies in the case law between motions to reopen and summary disposition focus exclusively on the movant's burden, and do not assign or shift any burden to the parties responding to a motion to reopen. The PFS case, relied upon by Citizens, along with other Commission precedent on motions to reopen, is crystal clear that "a party seeking to reopen a closed record to raise a new matter faces an elevated burden to lay a proper foundation for its claim.5 "This is in addition to the usual requirements for a well-pleaded contention and for admission of a late-filed contention." Citizens cite to no precedent even suggesting that the party responding to a motion to reopen bears the burden of proof-again because there is none.

48 Petition at 10.

L9 See Section ILA, above. Indeed, to the extent Citizens seek to apply this wish list of legal standards to the test under Section 2.326(a)(3), it is contrary to the plain text of that Section, which requires that "the motion must demonstrate that a materially different result would be or would have been likely.", (Emphasis added).

LO PFS, CLI-05-12, 61 NRC at 350; see also, e.g., Wolf Creek, ALAB-462, 7 NRC at 338 (noting that the proponent of a motion to reopen has a heavy burden).

Ll PFS, CLI-05-12, 61 NRC at 348.

11

Citizens' attempt to shift the burden onto AmerGen and the Staff is unprecedented, unjustified, and pure fancy.

Citizens' second point-that the Board must look at the evidence in a light most favorable to the moving party-is likewise wholly unsupported by case law addressing motions to reopen, and is yet another unjustified attempt to shift the burden away from Citizens. Instead, the Board articulated the correct legal standard: it must "evaluate[] the evidentiary material submitted by the parties" and "weigh[] the competing evidence."'2 Citizens provide no legal authority suggesting that, in considering their motion to reopen the record, they are entitled to have their evidence viewed more favorably than evidence presented by other parties. The Board is fully authorized to carefully scrutinize the evidence that the parties present. Even in the PFS case that Citizens cite, the Commission upheld the Board's decision to credit the evidence submitted by the applicant over the evidence submitted by the party seeking to reopen the record. 53 The novelty, error, and inconsistency of Citizens' new legal standard are clearly highlighted when Citizens claim that "[t]he Commission should apply this summary judgment standard in a vWay that ensures that technically meritorious contentions are admitted, even if it means admitting a few contentions that are easily dismissed.54 They go on to suggest that, in such a case; a contention could later be disinissed by summ ary disposition. This idea simply.

defies logic, fosters the continuation of groundless litigation, and flies in the face of the 52 LBP-08-12, slip op. at 10 (citing PFS,61 NRC at 350; Pub. Serv. Co. ofN.H. (Seabrook Station, Units 1 &

2), CLI-90-10, 32 NRC 218, 222 (1990)).

L_3 See PFS, CLI-05-12, 61 NRC at 354-55.

L Petition at 10.

12

Commission's stated policy to maintain an "effective and efficient" hearing process.-' What Citizens are propounding is that the Board should grant certain motions to reopen, using the summary disposition standard, because the issues raised will later be easily dismissed using the very same summary disposition standard. Citizens' new standard is an illogical recipe for pointless litigation in previously-closed proceedings.

The new legal standard Citizens wish to implement in this proceeding contradicts the well-settled principle that the burden to provide sufficient evidence to demonstrate that a record should be reopened falls squarely on the movant.56 Citizens offer no valid reason, much less a legal basis, for the Commission to embrace a new policy of admitting "easily dismissed" contentions after the closure of the evidentiary record.17 The appropriate forum for such legislative efforts is that of NRC rulemaking, as described in 10 C.F.R. § 2.802.

Finally, Citizens' new standard also contradicts settled precedent because the threshold they propose for a motion to reopen would be lower than that applicable to initial contention admissibility. Under the general contention admissibility standards of 10 C.F.R.

§ 2.309(f)(1)(vi), a petitioner has the burden of raising a genuine dispute on a material issue of law or fact. Citizens would have the Commission adopt a new standard for a motion to reopen, under which the burden of "proving the absence of a genuine issue of material fact" shifts to the applicdnt.58- This would -ofcourse, upset the well-settledpninciple that a motion to reopen-involves an elevated burden for the movant, higher than that normally required for contention L5 Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004).

56 E.g., Three Mile Island, CLI-85-7, 21 NRC at 1106.

L7 See PrivateFuel Storage, LLC (Independent Spent Fuel Installation), CLI-06-3, 64 NRC 19, 25 (2006) ("In such a case as this, with the record long closed, we do not lightly reopen our adjudicatory proceedings.").

L8s Petition at 10.

13

admissibility.L9 Thus, Citizens' blatant attempt to rewrite the motion to reopen standard applicable to the Petition herein must fail as a matter of law, policy, and simple logic.

2. The BoardProperly Weighed the Evidence Citizens also seek reviewd of the Board's factual determinations, arguing that it "failed to 60 consider" evidence presented by Citizens.6 In this regard, Citizens dispute the Board's:

(1) alleged failure to credit a newspaper article quoting an NRC spokesperson; (2) alleged disregard of the "evidence" in Judge Baratta's dissent; (3) alleged failure to consider the broader safety significance of the issues raised; and (4) alleged failure to consider evidence from the Vermont Yankee proceeding.-1 Finally, Citizens appear to claim that the Board's decision is inconsistent with an Appeal Board decision.62 These arguments mischaracterize LBP-08-12 because the Board did not ignore the information provided by Citizens. To the contrary, the Board appropriately considered the evidence presented by all parties and determined that Citizens failed to meet their burden of showing that there was is a deficiency in the license renewal application that presents a significant safety issue.-3 The Commission generally accords this type of factual determination by the Board, based on an evaluation of expert affidavits, the highest deference.-4 Citizens' first complaint is that the Board "dismissed as irrelevant" their showing of purported safety significance based on the statements of afn NRC spokesperson, as quoted in a.

L_9 PFS, 61 NRC at 350.

60 SeePetition at 6-8.

61 See Petition at 6-8.

62 Id. at 8 (citing Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, lB and 2B), ALAB-463, 7 NRC 341, 352 (1978)).

63 See LBP-08-12, slip op at 11-15.

64 Hydro Res., Inc., CLI-06-1, 63 NRC at 2 (2006); see also LES, CLI-05-28, 62 NRC at 723.

14

newspaper article.65 As explained above, even if one disregards the hearsay nature of the statements in question, the Board correctly ruled that the statements merely illustrated the obvious safety function of the recirculation outlet nozzle itself, and are therefore insufficient to show that Citizens raised a significant safety issue.66 Thus, Citizens' claim that "the NRC spokesperson had already stated that a catastrophic failure could lead to a severe accident" is irrelevant, because it draws no connection between the fatigue analysis in question and the potential for "catastrophic failure" of a component in general.67 Second, Citizens point to the Board's alleged disregard of the "evidence" presented in Judge Baratta's dissent.68 Judge Baratta's singular opinion about the weight that the majority of the Board should have accorded to Dr. Hopenfeid's affidavit and his additional technical analysis simply is not "evidence."'69 Whatever authority they may carry, Judge Baratta's statements, by themselves, are not evidence that the Board must weigh in its analysis of whether to reopen the record.70 Moreover, it appears that Judge Baratta is under the incorrect impression that AmerGen's confirmatory analysis neglected the nozzle cladding in its finite element modeling of the nozzle and in its stress calculation.- AmerGen only considered the nozzle cladding to be absent in the 65 Petition at 6.

66 LBP-08-12, slip op. at 14 (citing Seabrook, CLI-90-06, 31 NRC at 487).

67 Petition at 7; LBP-08-12, slip op. at 14-15.

68 Petition at 7.

69 Cf La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC 1, 6 (1986)

("[T]he issue in each case is whether the available information meets the standards for reopening .... It is not the duty of the adjudicatory boards to search for evidence that might fill in gaps in the moving party's submissions.") (internal citations and quotations omitted).

LO Cf, e.g., Hale v. Comm. on Character& Fitnessfor the State of ll., 335 F.3d 678, 683 (7th Cir. 2003)

("the views expressed by dissenting judges or justices are not 'binding").

71 See LBP-08-12, Dissent of Judge Baratta, slip op. at 13 ("Since the cladding is a different material than the base metal, it has a different coefficient of thermal expansion and will expand and contract a different (footnote continued) 15

fatigue calculation-as is permitted under the ASME Code.-2 Citizens failed to raise any questions on this particular point before the Board, and their attempt to rely upon new purported evidence in Judge Baratta's dissent is misplaced.

Third, Citizens claim that the Board "failed to consider the broader safety significance" of their claims.13 In effect, Citizens argue that the alleged generic nature of the issues they raise mandates that the Board reopen the record of the Oyster Creek license renewal proceeding. But the issue is of low safety significance, and allegations about other plants are irrelevant to whether to reopen this proceeding.

Fourth, again straying outside the scope of this proceeding, Citizens claim that evidence presented in the Vermont Yankee proceeding regarding the feedwater nozzle at that plant indicated that similar results should be expected for the Oyster Creek recirculation outlet nozzle.!- The Board correctly recognized, however, that Citizens failed to show any connection between two different components at two different plants because the analyses "involve different plant designs, different components, and, as the April 2008 draft RIS explains, each individual fatigue calculation is a complex analysis involving a great deal of judgment by the analyst."'T amount compared to the base metal. This adds to the stress of the nozzle, increasing the usage factor.")

(emphasis added).

L2 See RAI Response, encl. at 3 ("In the new analysis, the nozzle claddingwas neglected for thefatigue calculation, as permitted in NB-3122.3 of Section III of the ASME Code. . . .") (emphasis added);

Affidavit of Gary Stevens (May 27, 2008) ¶ 10 ("In the confirmatory analysis, the stainless steel nozzle cladding was considered absentfor thefatigue calculation,as permitted in NB-3122.3 of Section III of the ASME Code ... ") (emphasis added). The ASME Code does not permit the analyst to neglect the nozzle cladding for the finite element modeling or stress calculation, and AmerGen did not consider the cladding absent in these aspects of the confirmatory analysis. Therefore, AmerGen's confirmatory analysis accounts for the differential material stresses induced by the cladding on the base metal. See id. ¶ 9 ("[T]he [Oyster Creek] recirculation outlet nozzle confirmatory analysis ... was performed using ASME Code,Section III, Subsection NB-3200 methodology.").

L3 Petition at 7-8.

L-4 Petition at 5, 7.

7U LBP-08-12, slip op. at 13 (internal quotations and brackets omitted).

16

And Citizens fail to explain why the Board's decision to credit the evidence presented by AmerGen regarding the analyses done at Oyster Creek-over the speculative analogies to Vermont Yankee presented by Dr. Hopenfeld-was clearly erroneous, as required by 10 C.F.R.

§ 2.341(b)(4)(i).76 Finally, Citizens cite the Hartsville Appeal Board decision77 for the amorphous proposition that "[t]he need to develop the record can itself serve as a trigger to reopen the record."8 It is not clear what this sentence even means, much less the relationship between Citizens' statement and either the Hartsville decision or the standards for motions to reopen under 10 C.F.R. § 2.326. The Hartsville case did not involve a motion to reopen the record, but instead involved an attempt by intervenors to introduce new scientific articles in their post-hearing proposed findings of fact.79 Although the Appeal Board therein noted that it would be unfair to the other parties to consider this new evidence, it nevertheless examined the articles because they allegedly "raised an issue of possible importance to public health and safety."'° From this examination, the Appeal Board concluded that the articles did not support the intervenors' position.8- Thus, nothing in that case suggests that Citizens have raised a significant safety issue in this proceeding, or that the Board's application of the motion to reopen standard is without governing precedent, or is a departure from or contrary to established law.

76 See PrivateFuel Storage, L.L. C. (Independent Spent Fuel Storage Installation), CLI-05-,19, 62 NRC 403, 411 (2005) ("A clearly erroneous finding is one that is not even plausible in light of the record viewed in its entirety.") (internal quotations omitted).

L Hartsville, ALAB-463, 7 NRC at 352.

78 Petition at 8.

L9 Hartsville,ALAB-463, 7 NRC at 351-52.

LO Id. at 352.

Li Id.

17

B. The Board's Ruling Regarding The Lack Of A Likely Materially-Different Result Is Correct (Citizens' Issue C2)

1. Citizens Have Not Shown ClearErrorIn the Board'sFactualFindings Citizens-dispute the Board's factual conclusion that a materially-different result would not be likely if it reopened the record.L2 They would have the Commission believe that the Board credited "bare assertions" by AmerGen regarding the decision to neglect the nozzle cladding in the confirmatory fatigue analysis, over Dr. Hopenfeld's demand for a "plant-specific justification. "L3 This is not true.

The fact of the matter is that Citizenshave in no way shown that the Board's analysis of the evidence presented on this issue is clearly erroneous.-4 The Board relied upon AmerGen's "undisputed" explanation that the confirmatory analysis met ASME Code standards, specifically with respect to the decision not to calculate fatigue for the nozzle cladding.85 In reviewing Citizens' contrary statement, the Board found that Dr. Hopenfeld "failed to provide meaningful factual or technical support" to the contrary.86 Ultimately, Dr. Hopenfeld did not adequately explain why he believes that AmerGen's analyses fail to comply with the ASME code, so the 87 Board credited AmerGen's undisputed evidence over Dr. Hopenfeld's "bare assertions."

82 Petition at 12. Citizens also dispute the legal standard used by the Board to analyze whether Citizens had made the requisite showing under 10 C.F.R. § 2.326(a)(3). This claim is addressed in Section III.A. 1.b, above.

83 Petition at 12.

84 I.e., "not even plausible in light of the record viewed in its entirety." PFS, CLI-05-19, 62 NRC at 411.

85 LBP-08-12, slip op. at 24.

86 Id. at 25.

87 Compare Petition at 12-13, with LBP-08-12, slip op. at 25; see also USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) ("[A]n expert opinion that merely states a conclusion (e.g., the application is 'deficient,' 'inadequate,' or 'wrong') without providing a reasoned basis or explanation for that conclusion is inadequate because it deprives the Board of the ability to make the necessary, reflective assessment of the opinion [that is alleged to support the contention]").

18

Moreover, the Board did not "[i]gnore [c]ritical [e]vidence" or "[c]ite [i]rrelevant

[e]vidence."'8- Citizens criticize the Board's conclusion that they "provide no factual evidence or expert testimony showing that the analysis performed at Oyster Creek employing the Green's function was improperly performed. .. ."9 Citizens' criticism, however, does not identify any evidence that the Board ignored,but rather takes issue with the Board's determination that Dr.

Hopenfeld's criticisms of the original fatigue analysis are "bare assertions"9 and could be "fairly characterized as speculation."' In sum, the Board considered the "evidence" that Citizens proffered and deemed it insufficient. Again, this type of factual determination is generally accorded the highest deference by the Commission.92

2. Citizens Have Not Shown That The Board ErredIn Finding Their InitialMotion To Be Moot Citizens present two arguments to support their claim that the Board erred when it found that their original motion to reopen was moot. First, they dispute the Board's decision to credit AmerGen's expert testimony that the confirmatory analysis was performed in accordance with the ASME Code over Dr. Hopenfeld's unexplained desire for a "plant-specific justification.'93 As explained above, Citizens have not shown that this determination is clearly erroneous.

Second, Citizens appear to dispute the Board's authority to independently rule that their 88 - Petition at 13.

89 Id.

90 LBP-08-12, slip op. at 34 n.22.

2_1 Id. at 12.

92 Hydro Res., Inc., CLI-06-1, 63 NRC at 2; see also LES, CLI-05-28, 62 NRC at 723. Even if the question of whether a materially-different result would be likely is evaluated under an analysis similar to that applied to motions for summary disposition, Citizens have still failed to show clear error in the Board's decision. As explained above, the Board found that Citizens' key criticisms of the original and confirmatory analyses amounted to unsupported assertions and speculation-which are insufficient to carry Citizens' burden of demonstrating a genuine dispute on a material issue of fact or law. See, e.g., Advanced Medical Sys., Inc.,

CLI-93-22, 38 NRC 98, 102 (1993).

L3 Petition at 15.

19

initial Motion to Reopen was moot.94 This argument lacks merit for two reasons. First, the Staff did claim, in its response to the Board's request for additional briefing, that the contention was moot.9-5 Second, the Board would have been well within its authority to find, sua sponte, Citizens' motion moot.-6 Citizens ignore both points.

3. Citizens Are Not Entitled to Discovery Finally, Citizens repeat their alternative demand for discovery, in the event that the Commission finds that they have not met the standards to reopen the record.97 As the Board explained, this request is contrary to well-settled Commission precedent, which prohibits 98 discovery for the purpose of developing a motion to reopen the record or a contention.

Ignoring the precedent, Citizens attempt to distinguish the controlling decisions based on an alleged "inability to present countervailing facts exception" as found only in a 1973 Appeal Board decision that predates all of the cases that the Board cited,-9 and which even predates the rulemaking for the current 10 C.F.R. § 2.326. The subsequent cases prohibiting discovery to L4 See id.

9-5 Staff Response at 4. Citizens also took the opportunity to respond to the Staff on this point by seeking to strike the Staff s Response based, in part, on the mootness claim. Citizens' Motion to Strike at 4 (June 5, 2008).

96 See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-13, slip op. at 3 (June 17, 2008) (ruling, sua sponte, that Citizens' motion for a stay was moot).

97 Petition at 15-16 98 LBP-08-12, slip op. at 25 n.23 (citing Balt. Gas and Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1

& 2), CLI-98-25, 48 NRC 325, 351 (1998) ("longstanding agency precedent precludes an intervenor from obtaining discovery to assist it in framing contentions"); Three Mile Island, CLI-85-7, 21 NRC at 1106

("The movant is not entitled to engage in discovery in order to support a motion to reopen."); Pub. Serv.

Co. ofN.H. (Seabrook Station, Units 1 & 2), ALAB-915, 29 NRC 427, 432-33 (1989)); see also Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 54 Fed. Reg.

33,168, 33,170-71 (Aug. 11, 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").

29A Petition at 16 & 16 n.5 (citing Vt. Yankee, ALAB-138, 6 AEC at 522). Citizens also attempt to distinguish the Calvert Cliffs case as dealing with "an initial contention." Petition at 16. The language in Calvert Cliffs, however, is not so limited, see note 98, above, nor have Citizens articulated a reason why the analysis for a late-filed contention should be any different.

20

support a motion to reopen, however, cannot be clearer: whatever discretion boards may have had in 1973, today's boards no longer have authority to permit discovery to support a pending motion to reopen. 10- Moreover, Citizens failed to argue that this "inability to present 101 countervailing facts exception" applies; thereby waiving this claim.

C. The Board's Procedural Rulings Did Not Prejudice Citizens (Citizens' Issue C3)

Citizens next claim that the Board's decision to request simultaneous additional briefings from the parties on the significance of the RAI prejudiced their procedural rights.)-2 According to Citizens, this choice allegedly permitted AmerGen and the Staff to "make additional factual arguments" without allowing them the opportunity to reply. 103 The Board's decision to consider the RAI Response and grant the parties an opportunity to brief its significance did not prejudice Citizens. First, under 10 C.F.R § 2.319, the Board has the discretion to request additional briefing.10 Further, the case law is clear that parties responding to a motion to reopen the record may submit evidence with their answer,1-5 and the 100 E.g., Seabrook,ALAB-915, 29 NRC at 432-33 ("Any possible doubt that the Commission expects its adjudicatory boards to enforce the [motion to reopen] requirements rigorously-i.e., to reject out-of-hand reopening motions that do not meet those requirements within their four corners-is dispelled by its 1986 decisions in the Waterford and Perry operating license proceedings") (citing Waterford, CLI-86-1, 23 NRC at 6; Cleveland Elec. Illuminating Co. (Perry Nuclear Power Station, Units 1 & 2), CLI-86-7, 23 NRC 233, 235 (1986) ("[A] Board is to decide the motion to reopen on the information before it and has no authority to engage in discovery in order to supplement the pleadings before it.") (emphasis added)).

1021 See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-813, 22 NRC 59, 82-83 (1985)

(holdifig-thit -an appellant-cannof claim error when the first time it raises a-specifi&cis'sue is on appeal). In any case, as the Board explained, if Citizens had satisfied their burden of raising a significant safety issue, then there was sufficient information available to potentially show the "likelihood of a materially different outcome based on a solid technical foundation - if such a foundation existed." LBP-08-12, slip op. at 20 n.

17.

L02 Petition at 16-17.

_03 Id. at 16.

104 It is also important to remember that the information in the RAI Response was not submitted in response to Citizens' contention, nor was it in any way triggered by Citizens' attempts to litigate the metal fatigue issue. It was an RAI Response submitted to the Staff, independent of Citizens attempts to litigate related issues.

o05 See PFS, CLI-05-12, 61 NRC at 350.

21

regulations provide no right for the movant to reply. 106 In fact, Citizens ultimately enjoyed numerous opportunities to brief their metal fatigue-related allegations, including a motion to strike the additional briefings submitted by AmerGen and the Staff.l°7 Citizens' actions before the Board also preclude their claim of procedural prejudice.

They filed a Motion to Strike the briefs submitted by AmerGen and the NRC Staff.-18 They requested that, if the Board did not strike the briefs, that they be allowed to respond to those briefs, but only after they were allowed discovery on the underlying calculations and related documents.- Thus, Citizens' request to substantively respond to AmerGen's and the Staff s briefs was inexorably linked to their impermissible request for discovery. In the absence of discovery, Citizens did not directly seek leave to file a replyý-a tactic they have used repeatedly in the past.-10 Having failed to fully avail themselves of their options before the Board, Citizens cannot now complain to the Commission about alleged prejudicial procedural errors.-I Finally, Citizens do not have the right to "fully litigate" the issues they raise in their motions to reopen the record and late-filed contention(s). 112 As explained above, to obtain the extraordinary opportunity to litigate new issues at this late date in the proceeding, Citizens must 106 10 C.F.R. § 2.323(c).

.07 _ See Motionto Strike.. ..

108 id.

L09_ See id. at 6-7.

110 See Motion for Leave to File a Reply to the Staffs Opposition to Citizens' Motion to Reopen (May 6, 2008); 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).

See, e.g., Catawba,ALAB-813, 22 NRC at 82-83 (rejecting a due process claim for failure to "place the issue properly before the Board").

_2 1 Petition at 17.

22

first demonstrate that they meet the stringent standards in 10 C.F.R. § 2.326. This they have not done.

D. The Board Did Not Violate the AEA or Citizens' Due Process Rights (Citizens' Issue C4)

Citizens' fourth and final "issue" is proffered as a sweeping allegation that the Board violated their due process rights and right to a hearing under the Atomic Energy Act ("AEA").

They allege that the Board "impos[ed] very stringent requirements for reopening and disallow[ed] any discovery," thereby "eviscerat[ing]" Citizens rights to a hearing under the AEA.m3 Citizens also hearken back to the Constitution and claim that it-would be a due process violation to allow "Oyster Creek to be relicensed without full consideration of Citizens' concerns Such grandiose claims aside, Citizens' AEA argument is, in reality, a direct challenge to the regulations on motions to reopen and late-filed contentions, and to longstanding Commission precedent prohibiting discovery to develop such claims. As explained throughout this brief, the Board did not "impose" these requirements. It correctly applied Commission regulation and precedent in all of these areas, in compliance with the AEA.

Nothing in the UCS cases Citizens cite requires that they be permitted to raise new issues this late in a proceeding without meeting the relevant standards. 115 Contrary to Citizens' claims, the UCS cases do not hold that the Commission must entertain contentions on all material issues at any stage in a licensing proceeding. Although UCS I held that the Commission generally may I-!!3 Id. at 20.

" l4 Id. at 20-21.

rLA5 See id. at 19 (citing Union of ConcernedScientists v. NRC, 735 F.2d 1437, 1438-50 (D.C. Cir. 1984), cert.

denied, 469 U.S. 1132 (1985) ("UCSI"); Union of ConcernedScientists v. NRC, 920 F.2d 50, 53 (D.C. Cir.

1990) ("UCS I/"; collectively, "UCS Cases")).

23

not eliminate consideration of issues material to licensing from the hearing process,-1,, UCSII clarified this principle by holding that it was within the Commission's authority to establish a hearing schedule and require parties to raise issues in a timely manner.117 The court further explained:

we think it unreasonable to suggest that the NRC must disregard its procedural timetable every time a party realizes based on NRC environmental studies [for example] that maybe there was something after all to a challenge it either originally opted 18 not to make or which simply did not occur to it at the outset.

Thus, contrary to Citizens' suggestion, the UCS cases provide no support for Citizens' claim that the AEA requiresthat they be permitted to litigate new late-filed contentions after the close of the evidentiary record in this proceeding.

As to Citizens' due process argument, they cite no supporting legal authority for the claim that the Constitution requires the NRC to permit litigation of late-filed contentions in a license renewal proceeding.-19 In summary, this claim lacks merit.

IV. CONCLUSION Citizens have not demonstrated that Commission review of their Petition is warranted, as it is legally and factually deficient. The Board properly applied the stringent standards applicable to motions to reopen the record. The Board weighed the evidence presented by all parties aird concluded, based on-that evideice, that-Citizens-failed to raise a-significant safety issue and had failed to demonstrate that a materially different result would be likely if the record 1__6 See 735 F.2d at 1451,

__7 See 920 F.2d at 55-56 ("the Commission can certainly adopt a pleading schedule designed to expedite its proceedings").

LA8- Id. at 55.

119 Petition at 20-21.

24

were reopened. The Board made no prejudicial procedural errors. Accordingly, the Commission should reject Citizens' Petition and affirm the Board's Order.

Respectfully s§bmitted, Dona d JA ~verman, fsq.

Kathryn I. 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: dsilverman(i~morganlewis.com E-mail: ksutton(amorganlewis.com E-mail: apolonsky(cmorganlewis.com E-mail: rkuyler(cmorganlewis.com J. Bradley Fewell, Esq.

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 11 th day of August 2008 25

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of: ) August 11, 2008 AmerGen Energy Company, LLC )

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

Generating Station) )

.~)

CERTIFICATE OF SERVICE I hereby certify that copies of"AMERGEN'S ANSWER OPPOSING CITIZENS' PETITION FOR REVIEW OF LBP-08-12" 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: H EARINGDOCKET(a-,nrc.gov) (E-mail: erh((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: pba(inrc.gov) (E-mail: ajb5(dnrc.gov)

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: OCAAmail(anrc.gov)

Hughes Justice Complex Trenton, NJ 08625 Richard Webster (E-mail: john.covino(cdol.lps. state.ni.us) Julia LeMense (E-mail: valerie. gray(idol.lps. state.ni.us) Eastern Environmental Law Center 744 Broad Street, Suite 1525 Newark, NJ 07102 (E-mail: rwebster(Theasternenvironmental.org)

(E-mail: jlemense(-eastemenvironmental.ora)

- Suzanne Leta Paul Gunter NJPIRG Kevin Kamps 11 N. Willow Street Beyond Nuclear Trenton, NJ 08608 6930 Carroll Avenue (E-mail: sleta(cbnipirg.org) Suite 400 Takoma Park, MD 20912 (E-mail: paul(d)beyondnuclear.org)

(E-mail: kevin(dbeyondnuclear.org)

Mary C. Baty Emily Krause Kimberly A. Sexton Law Clerk James E. Adler Atomic Safety and Licensing Board Office of the General Counsel, 0-1 5D21 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: eikI (1nrc.gov)

(E-mail: mcb 1(@nrc.gov)

(E-mail: jeal (1 nrc.gov)

  • . Original and 2 copies

,ýphael . kuyler DB 1/62039434 2

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