ML072680388

2007/09/19-Citizens' Opposition to Amergen and NRC Motions in Limine

ML072680388
Person / Time
Site:	Oyster Creek
Issue date:	09/19/2007
From:	Webster R Grandmothers, Mothers & More for Energy Safety, Jersey Shore Nuclear Watch, New Jersey Environmental Foundation, New Jersey Public Interest Research Group (NJPIRG), Nuclear Information & Resource Service (NIRS), Rutgers Environmental Law Clinic, Sierra Club, New Jersey Chapter
To:	Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, ASLBP 06-844-01-LR, RAS 14177
Download: ML072680388 (10)

Text

~,45/V-/77 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF THE SECRETARY ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: E. Roy Hawkens, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta DOCKETED USNRC September 20, 2007 (7:38am)OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of AMERGEN ENERGY COMPANY, LLC OYSTER CREEK NUCLEAR GENERATING STATION License Renewal for Oyster Creek Nuclear Generating Station)))))))))Docket No. 50-219 September 19, 2007 CITIZENS' OPPOSITION TO AMERGEN AND NRC MOTIONS IN LIMINE PRELIMINARY STATEMENT AmerGen Energy Company LLC ("AmerGen")

and the NRC Staff have yet again moved to exclude portions of arguments and testimony submitted on behalf 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 New Jersey Environmental Federation (collectively "Citizens").

AmerGen's motion is yet another attempt to avoid the central issues in this litigation by excluding testimony that was carefully tailored to respond to the framework provided by the Atomic Safety and Licensing Board (the "Board") and allegations by AmerGen's witnesses that the contour plots were somehow inaccurate or designed to exaggerate the corrosion problem. NRC Staff s motion is a smorgasbord of legal arguments that have already been 1 TeA~~p~LI)

~sc -~ I sec/y- o0-rejected by the Board and unjustified assertions.

Both motions are entirely devoid of merit and should be denied.ARGUMENT AmerGen argues that certain portions of Citizens' sur-rebuttal filing are inadmissible.

AmerGen misconstrues the scope of the Board's prior orders, however, and attempts to unduly restrain Citizens' ability to respond fully and completely to testimony and materials filed by the other parties, as well as to the Board's questions.

Furthermore, AmerGen and NRC have both apparently lost sight of the fact that this Board, as recently as August 9, 2007, has reminded the parties that "Licensing Boards are accustomed to weighing evidence, including expert testimony, and determining its relevance to the issues presented." Memorandum and Order (Ruling on Motions in Limine and for Clarification) at 2 (Aug. 9, 2007). Moreover, on September 12, 2007, the Board completely rejected the most recent motions in limine from AmerGen and the NRC Staff. Memorandum and Order (Ruling on Motion to Conduct Cross-Examination and Motions in Limine and for Clarification) (Sept.12, 2007).I. Citizens' Exhibit 39 Satisfies the Board's Requirement For Rebuttal Testimony As has become its habit, AmerGen complains that most of Dr. Hausler's latest Memorandum (Citizens Ex. 61) is not responsive to Rebuttal testimony and asks the Board to disregard it. AmerGen Mot. in Limine. at 2-3. AmerGen apparently overlooked the fact that it made a wholesale attack on the contouring analysis previously presented by Citizens.Specifically, it accused Dr. Hausler of using an inappropriate or improper statistical treatment, AmerGen Rebuttal Test. Part 3 at A2, A40, A46, using the "wrong data and the wrong methods," Id. at 30, being inaccurate, id. at Part 2 A7 and plotting "drywell shell thinning that has not been observed or measured by AmerGen." Id. Furthermore, AmerGen 2 suggested that its own analysis of the external data was superior.

See AmerGen Rebuttal Test. Part 3 at A46 ("Dr. Hausler in wrong... AmerGen has evaluated as acceptable those locations.

.."); id at 43 ("AmerGen's Evaluation of the Local Buckling Criterion in the 24 Calc. is Appropriate").

AmerGen also provided additional information about the procedures used to carry out its evaluation.

Id. at A53.To rebut this blistering attack, Dr. Hausler went back and rechecked his calculations and those of AmerGen. He then refuted AmerGen's claim that he had exaggerated the extent of corrosion by showing that his previous presentations were actually quite conservative and appropriately extrapolating the data leads to even worse results.'

In addition, he showed definitively that AmerGen's evaluation was merely a crude approximation of his own and was riddled with minor errors. This is a classic battle of the experts. Now, having lost the battle, AmerGen is now attempting to win the war by obliterating Dr. Hausler's response showing that his calculations are far superior to those of AmerGen. The Board should categorically reject this attempt. AmerGen can hardly expect to impugn the reputation and competence of Citizens' expert in its rebuttal filing and then strike his response filed in sur-rebuttal.II. Citizens' Briefing About Reasonable Assurance Is An Argument Of Counsel Submitted In Response To A Board Request Strangely, both AmerGen and the NRC Staff attempt to attack through a Motion in Limine an additional briefing that Citizens provided to assist the Board to fully understand the extent to which federal courts and indeed the federal government has required scientific facts to be established to 95% certainty.

This briefing is not evidentiary and is therefore not subject to a motion in limine. Furthermore, two days before the briefing was submitted, the Board asked to the parties to provide additional information on the meaning of the term I It is unclear why AmerGen makes the claim that the plots do not properly represent the observed data. It has offered no substantiation on this point.3 "reasonable assurance." Memorandum and Order (Ruling on Motion to Conduct Cross-Examination and Motions in Limine and for Clarification), 3 (September 12, 2007).Responding to that request, Citizens provided additional briefing on the need for at least 95%certainty.

Thus, AmerGen and the NRC Staff's attempt to use an evidentiary motion to strike non-evidentiary material is not only procedurally deficient, it also flies in the face of the Board's request for more information on this issue.1II. NRC Staff's Other Evidentiary Arguments Are Without Merit NRC staff alleges that Dr. Hausler's sur-rebuttal testimony at A10, which discusses the need to use the external measurements to determine compliance with the local area acceptance criteriofi, calls into question the spatial scope of the monitoring program. This is straightforwardly incorrect.

Dr. Hausler merely responded to testimony from AmerGen alleging that the external data are not sufficient to allow the margin above the local area acceptance criterion to be calculated.

If NRC considered AmerGen's testimony to be out of scope it should have moved to strike it. It cannot now challenge Citizens' response to that testimony and try to favor AmerGen by selective motion practice.

Moreover, the Board is fully qualified to weigh Citizens' arguments.

Next the NRC Staff allege that because Dr. Hausler has refined his analysis in Citizens' Ex. 61, all the previous contour plots should be excluded.

This is incorrect on many levels. First, the Board has already ruled against Motions in Limine seeking to strike the original plots. Second, Citizens' Ex. 61 only discussed Bays 1 and 13, so it does not have any effect on plots submitted for other Bays. Third, the refinements only affected the placement of a few points in Bay 1 and were minor. Fourth, far from being an admission that the plots were inaccurate, the refinements represented diligent work on the part of Dr.Hausler to try to make sense of inconsistent presentations of the underlying data provided by 4 AmerGen. Finally, the Board is fully capable of according all of Dr. Hausler's plots and AmerGen's analysis of the same data the weight they are due.NRC next attempts to strike testimony about the cracking in the epoxy floor. This request is far too late. This testimony has its roots in testimony that the Board refused to exclude from Citizens' initial testimony.

Having allowed the initial testimony and a rebuttal to that testimony, it would be unjust to exclude the sur-rebuttal.

Once again, the Board is perfectly capable of deciding what weight to give this testimony.

IV. The Board Already Decided That Dr. Hausler Is Suitably Qualified to Opine On Epoxy Coatings NRC Staff now waste the Citizens' and the Board's time with an argument concerning Dr. Hausler's expertise on epoxy coatings that has already been rejected.

In its Motion in Limine submitted on July 27, 2007 (pages 6-7) NRC made precisely the same argument.

This argument was rejected by the Board and therefore NRC Staff are precluded from raising it again according to the doctrines of the law of the case and issue preclusion.

Memorandum and Order (Ruling on Motions in Limine and for Clarification) at 3 (Aug. 9, 2007); see also Memorandum and Order (Hearing Directives) at 2 (Sept. 12, 2007) (not striking any testimony of Dr. Hausler regarding epoxy coatings).

5 CONCLUSION For the foregoing reasons, AmerGen's and NRC Staff s Motions in Limine should be denied in their entirety.Respectfully submitted, Richard Webster, Esq RUTGERS ENVIRONMENTAL LAW CLINIC Attorneys for Petitioners Dated: September 19, 2007 6 UNITED STATES OF AMERICA BEFORE THE NUCLE.AR REGULATORY COMMISSION OFFICE OF THE SECRETARY In the Matter of ))AMERGEN ENERGY COMPANY, LLC ))(License Renewal for the Oyster Creek )Nuclear Generating Station) ))Docket No. 50-0219-LR ASLB No. 06-844-01-LR September 19, 2007 CERTIFICATE OF SERVICE I, Karen Hughes, of full age, certify as follows: I hereby certify that on September 19, 2007, I caused Citizen's Opposition to AmerGen and NRC Motions in Limine in the above captioned matter to be served via email and U.S. Postal Service (as ihdicated) on the following:

Secretary of the Commission (Email and original and 2 copies via U.S Postal Service)United States Nuclear Regulatory Commission Washington, DC 20555-0001 Attention:

Rulemaking and Adjudications Staff E-mail: HEARINGDOCKETna)NRC.GOV Administrative Judge E. Roy Hawkens, Chair (Email and U.S. Postal Service)Atomic Safety and Licensing Board Panel Mail Stop -T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: erhtinrc.gov Administrative Judge Dr. Paul B. Abramson (Email and U.S. Postal Service)Atomic Safety and Licensing Board Panel Mail Stop -T-3 F)3 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: pbagnrc.gov I

Administrative Judge Dr. Anthony J. Baratta (Email and U.S. Postal Service)Atomic Safety and Licensing Board Panel Mail Stop -T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: aib5(,nrc.aov Law Clerk Debra Wolf (Email and U.S. Postal Service)Atomic Safety & Licensing Board Panel Mail Stop -T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: DAWI1 nrc.gov Office of General Counsel (Email and U.S. Postal Service)United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OGCMAILCENTER@NRC.GOV Mitzi Young (Email and U.S. Postal Service)U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: 0-15 D21 Washington, DC 20555-0001 E-mail: mavy(nrc.gov Mary C. Baty (Email and U.S. Postal Service)U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: 0-15 D21 Washington, DC 20555-0001 E-mail: mcb I@dnrc.gov Alex S. Polonsky, Esq. (Email and U.S. Postal Service)Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: apolonsky@morganlewis.com Kathryn M. Sutton, Esq. (Email and U.S. Postal Service)Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: ksuttonna.,morganlewis.com 2

Donald Silverman, Esq. (Email and U.S. Postal Service)Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington.

DC 20004 E-mail: dsilverman(,m organ]ewis.com J. Bradley Fewell (Email and U.S. Postal Service)Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 E-mail: bradlev.fewell(aexceloncorp.com John Covino, DAG (Email and U.S. Postal Service)State of New Jersey Department of Law and Public Safety Office of the Attorney General Hughes Justice Complex 25 West Market Street P.O. Box 093 Trenton, NJ 08625 E-mail: i ohn.corvinoadol.lps.state.

nj.us Valerie Gray (Email)State of New Jersey Department of Law and Public Safety Office of the Attorney General Hughes Justice Complex 25 West Market Street P.O. Box 093 Trenton, NJ 08625 E-mail: valerie.gray@dol.lps.state.nj .us.Paul Gunter (Email and U.S. Postal Service)c/o Nuclear Information and Resource Service 6930 Carroll Ave., Suite 340 Takoma Park, MD 20912-4446 E-mail: paul(abeyondnuclear.org Edith Gbur (Email)Jersey Shore Nuclear Watch, Inc.364 Costa Mesa Drive. Toms River, New Jersey 08757 E-mail: gburlnd.comcast.net Paula Gotsch (Email)GRAMMIES 205 6h Avenue Normandy Beach, New Jersey 08723 E-mail: DaulaLotsch(averizon.net 3

Jeff Tittel (Email)New Jersey Sierra Club 139 West Hanover Street Trenton New Jersey 08618 E-mail: Jeff. Tittel (-,si erraclub.

org Peggy Sturmfels (Email)New Jersey Environmental Federation 1002 Ocean Avenue Belmar, New Jersey 073119 E-mail: pstrmfelsnacleanwater.org Signed: a ý/v ý' --Karýn Hughes Dated: September 19, 2007 4