ML081690078

2008/06/16-Oyster Creek - NRC Staff'S Answer to Citizens' Motion to Strike NRC Staff Response to the May 21 Board Order

ML081690078
Person / Time
Site:	Oyster Creek
Issue date:	06/16/2008
From:	Adler J E, Baty M C 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 STAFF'S 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DISCUSSION On May 21, 2008, the Board issued Order (Directing Parties to Submit Explanatory Pleadings and Affidavits) (unpublished) ("May 21 Order").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 AmerGen's 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 significance 3). Citizens now seek to strike these pleadings on the unlikely grounds that compliance by

the Staff and AmerGen with the Board's 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 Board's own instructions.

4 1 See NRC Staff's Explanatory Pleading and Affidavit (May 27, 2008) ("Staff's Explanatory Pleading"); AmerGen's Response to May 21 Boar d Order (May 27, 2008) ("AmerGen's Explanatory Pleading").

2 Staff's Explanatory Pleading at 4.

3 Staff's Explanatory Pleading at 3-4; AmerGen's Explanatory Pleading at 5.

4 The Staff also notes that in the section of Citizens' own response to the Board's May 21 Order that is entitled "Response To The Board's Questi on" (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 anal ysis 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) (cla iming 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 additi onal 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 so rt of "supplementation" that that Citizens take issue with in the Staff's and AmerGen's Explanatory Pleadings. As a resu lt, 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 Commission's longstanding precedent that

intervenors are not entitled to engage in discovery to assist in framing contentions and the

Commission's 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 Staff's 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 Commission's 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 STAFF'S 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

NRC's internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 16 th day June, 2008.

E. Roy Hawkens, Chair Administrative Judge

Atomic Safety and Licensing Board

Mail Stop: T-3F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: ERH@nrc.gov

Anthony J. Baratta

Administrative Judge

Atomic Safety and Licensing Board

Mail Stop: T-3F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: AJB5@nrc.gov

Paul B. Abramson

Administrative Judge

Atomic Safety and Licensing Board

Mail Stop: T-3F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: PBA@nrc.gov

Office of the Secretary ATTN: Docketing and Service

Mail Stop: O-16G4

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: HEARINGDOCKET@nrc.gov

Office of Commission Appellate

Adjudication

Mail Stop: O-16G4

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: OCAAMail@nrc.gov

Emily Krause

Law Clerk

Atomic Safety and Licensing Board

Mail Stop: T-3F23

U.S. Nuclear Regulatory Commission

Washington, DC 20555-0001

E-mail: EIK1@nrc.gov

Suzanne Leta Liou*

New Jersey Public Interest Research Group

11 N. Willow St.

Trenton, NJ 08608

E-mail: sliou@environmentnewjersey.org

Donald Silverman, Esq.*

Alex S. Polonsky, Esq.

Kathryn M. Sutton, Esq.

Raphael P. Kuyler, Esq.

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Ave., N.W.

Washington, DC 20004

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

J. Bradley Fewell, Esq.*

Exelon Corporation

4300 Warrenville Road

Warrenville, IL 60555

E-mail: bradley.fewell@exeloncorp.com

Richard Webster, Esq.*

Julia LeMense, Esq.*

Rutgers Environmental Law Clinic

123 Washington Street

Newark, NJ 07102-5695

Email: rwebster@easternenvironmental.org j lemense@easternenvironmental.og

/RA/ ______________________________

Mary C. Baty

Counsel for the NRC Staff