ML061070620

2006/04/17-Oyster Creek - NRC Staff'S Response to Nirs'S Motion for Reconsideration

ML061070620
Person / Time
Site:	Oyster Creek
Issue date:	04/17/2006
From:	Hodgdon A NRC/OGC
To:	Atomic Safety and Licensing Board Panel
Hodgdon, Ann P. 415-1797
References
50-219-LR, ASLBP 06-844-01-LR, RAS 11553
Download: ML061070620 (12)

Text

April 17, 2006UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBEFORE THE ATOMIC SAFETY AND LICENSING BOARDIn the Matter of)

)AMERGEN ENERGY COMPANY, LLC)Docket No. 50-219-LR

)(Oyster Creek Nuclear Generating Station))NRC STAFF'S RESPONSE TO NIRS'S MOTION FOR RECONSIDERATIONINTRODUCTIONPursuant to 10 C.F.R. § 2.323(c), the staff of the U.S. Nuclear Regulatory Commission("Staff") hereby answers the "Motion for Reconsideration of Motion to Add New Contentions or Supplement the Basis of the Current Contention and Leave to File Such a Motion" ("Motion forReconsideration") filed 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 (collectively "NIRS"). For the reasons discussed below, the Board could deny NIRS leave to file a motion for reconsideration and, in any event, should deny NIRS's Motion for Reconsideration.BACKGROUNDNIRS originally sought to intervene in this proceeding in November of 2005. "Requestfor Hearing and Petition for Leave to Intervene," dated November 14, 2005 ("Petition"). While awaiting a Board decision on its Petition, NIRS filed a motion requesting leave to add contentions or supplement the basis of the sole contention submitted as part of its Petition.

See "Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention,"dated February 7, 2006 ("Motion to Add Contentions"). Both the Staff and AmerGen opposed this motion.

See "NRC Staff's Response to Motion for Leave to Add Contentions orSupplement the Basis of the Current Contention," dated February 17, 2006; and "AmerGen'sAnswer to Petitioner's Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention," dated February 17, 2006.Subsequently, the Licensing Board issued an order granting NIRS's request for hearingand admitting the following contention, as re-framed by the Board:AmerGen's License Renewal Application fails to establish an adequateaging management plan for the sand bed region of the drywell liner, because its corrosion management program fails to include periodic UT measurements in that region throughout the period of extended operationand, thus, will not enable AmerGen to determine the amount of corrosionin that region and thereby maintain the safety margins during the term of the extended license.Memorandum and Order (Denying New Jersey's Request for Hearing and Petition to Intervene, and Granting NIRS's Request for Hearing and Petition to Intervene), LBP-06-07 (February 27, 2006).As noted above, in LBP-06-11, the Licensing Board denied NIRS's Motion to AddContentions. Memorandum and Order (Denying NIRS's Motion for Leave to Add Contentions or Supplement the Basis of the Original Contention), LBP-06-11 (March 22, 2006). NIRS now improperly seeks simultaneous Commission review of this Order, pursuant to 10 C.F.R. § 2.311 and 10 C.F.R. § 2.341, and Board reconsideration of the same Order, pursuant to 10 C.F.R.

§ 2.323(e). NIRS employs the same brief for both purposes.DISCUSSIONFor several reasons, NIRS's Motion for Reconsideration should be denied. First, NIRSfails to properly seek leave from the Board to file such a motion. Second, it substantively fails to demonstrate legal error in the Board's decision, or to demonstrate that the Board overlookedmaterial facts in reaching that decision. Finally, the Motion for Reconsideration mischaracterizes the Board's rulings and improperly raises new arguments. The Motion shouldbe denied. A.NIRS Fails to Meet the Legal Standard for Granting Leave to File a Motion forReconsiderationIn filing its Motion for Reconsideration, NIRS ignores the Commission's regulationsgoverning such motions. Motions for reconsideration "may not be filed except upon leave of the presiding officer or the Commission, upon a showing of compelling circumstances, such as theexistence of a clear and material error in a decision, which could not have been anticipated, thatrenders the decision invalid." 10 C.F.R. § 2.323(e). Here, although NIRS mentions a request for leave in the title of its motion, it fails to address this § 2.323(e) requirement in the motion itself. Because NIRS fails to properly request leave to file its Motion for Reconsideration, the Board could decline to grant such leave and thus deny the motion.B.NIRS Fails to Meet the Legal Standard for Granting a Motion for ReconsiderationAlternatively, even if the Board were to grant leave to file a motion for reconsideration,NIRS's motion should nonetheless be denied on substantive grounds. A motion for leave to reargue a motion will not be granted unless it appears that there is some decision or someprinciple of law that would have a controlling effect and that has been overlooked or that therehas been a misapprehension of the facts. Private Fuel Storage, L.L.C. (Independent SpentFuel Storage Installation), LBP-98-17, 48 NRC 69, 73-74 (1998); Georgia Power Co. (VogtleElectric Generating Plant, Units 1 & 2), LBP-94-31, 40 NRC 137, 140 & n.1 (1993).In seeking reconsideration, "the movant must identify errors or deficiencies in thepresiding officer's determination indicating the questioned ruling overlooked or misapprehended (1) some legal principle or decision that should have controlling effect; or (2) some criticalfactual information." Private Fuel Storage, L.L.C. (Independent Spent Fuel StorageInstallation), LBP-01-38, 54 NRC 490, 493 (2001), (citing Private Fuel Storage, 48 NRC at 73- 74). A motion for reconsideration may not rely on an entirely new thesis or include newarguments, unless they relate to a Board concern that could not reasonably have been anticipated. Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel FabricationFacility), CLI-02-2, 55 NRC 5, 7 (2002) (hereinafter "Savannah Rive r"); Texas Utilities ElectricCo. (Comanche Peak Steam Electric Station Units 1 & 2), LBP-84-10, 19 NRC 509, 517-18(1984). At the same time, a motion that constitutes nothing more than a repetition of arguments previously presented does not present a basis for reconsideration. NuclearEngineering Co. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1,11 NRC 1, 5-6 (1980). As explained below, NIRS's Motion for Reconsideration fails todemonstrate that the Board misapprehended either a controlling legal principle or a critical fact. Therefore, it should be denied.1. NIRS Fails to Demonstrate that the Board Misapplied Controlling LawThe Board's decision to deny NIRS's Motion to Add Contentions rested on threeindependent grounds. First, the Board found that NIRS failed to meet any of the three requirements of 10 C.F.R. § 2.309(f)(2) for late-filed contentions based upon previously unavailable information. LBP-06-11, slip op. at 8, 12. Second, the Board found that NIRSfailed to meet the general admissibility requirements for timely contentions found insection 2.309(f)(1). LBP-06-11, slip op. at 9, 13. Finally, the Board found that NIRS failed tomeet the requirements for late-filed contentions found in section 2.309(c)(1). The Boardexpressly stated that this represented "an independent and sufficient basis for not admitting[NIRS's] belated contentions."

LBP-06-11, slip op. at 5 n.3. Any of these bases alonesufficiently supports the Board's decision. In order for NIRS to prevail, its Motion for Reconsideration must overcome each rationale for the Board's finding. However, NIRS only addresses the first two grounds for denying its motion. Its failure to address the Board's finding with respect to § 2.309(c)(1), "an independent and sufficient basis" for the Board's decision,alone demonstrates that its Motion for Reconsideration should be denied. a.NIRS Fails to Demonstrate That it Meets the Requirements of10 C.F.R. § 2.309(f)(2) for Late-Filed Contentions Based UponInformation Not Previously AvailableNIRS asserts that "the ALSB [sic] incorrectly found that the information was 'not neweven though Citizens [NIRS] were previously unaware of the Staff's concerns ... ." Motion for Reconsideration at 5. This argument misreads the Commission's regulations. As the Boardrecognized, the issue is not whether NIRS previously knew of the information, but 1) whetherthere is new information of the type addressed by 10 C.F.R. § 2.309(f)(2), and 2) whether such information is also materially different from information that was previously available. NIRS's only response to the Board's thorough characterization of the decades-old material upon which NIRS's Motion to Add Contentions relies is to argue that the information relayed during the conference call qualifies as new under § 2.309(f)(2) simply because NIRS had not previously been aware of its existence. NIRS ignores its "ironclad obligation" to review all publicly available information and state its contention and bases at the outset. See Duke Energy Corp.(Catawba Nuclear Station, Units 1 & 2), LBP-04-4, 59 NRC 129, 146-47 (2004).The Board correctly stated that the information discussed during the January 31, 2006conference call was "

not declarations of programmatic policy or regulatory conclusions that, forexample, might be analogized to conclusions in an Environmental Impact Statement, which could trigger a petitioner's right to amend or file new contentions under 10 C.F.R. § 2.309(f)(2)"

(emphasis in original). LBP-06-11, slip op. at 9-10. The Board agreed with the Staff's position that the conference call is analogous to a Request for Additional Information (RAI), which may not be used to support admission of a contention.

Id. NIRS challenges this aspect of theBoard's decision by citing a case, Louisiana Energy Services, L.P. (Claiborne EnrichmentCenter), 34 NRC 332 (1991), which it describes as "much more on point." Motion for Reconsideration at 5. However, NIRS does not explain why this Licensing Board case is "moreon point," or why the Board should favor it over the more recent Commission precedent cited by the Board in LBP-06-11. LBP-06-11, slip op. at 10 (citing Duke Energy Corp. (Oconee NuclearStation, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 337 (1999) (a petitioner may not ground acontention on the Staff's Request for Additional Information, when the request "show[s] only an ongoing Staff dialogue with [the applicant], not any ultimate Staff determinations

")).In addition to finding that the information NIRS learned during the January 31stconference call was not new in any way that would justify a new or amended contention under 10 C.F.R. § 2.309(f)(2), the Board also concluded that it was not materially different from information that had been previously available, citing NIRS's own exhibits dating back years before the conference call. LBP-06-11, slip op. at 7-8. NIRS disputes this interpretation, arguing:Furthermore, the test for material difference in Section 2.309(f)(2)(ii) alsoacknowledges that information could already be available about the new or amended contention, but still allows it to be timely if the new information addsanything material over and above the information that was already available.Motion for Reconsideration at 7. NIRS again misstates the law. Under § 2.309(f)(2), new or amended contentions must be (1) based upon information not previously available; and(2) materially different than information previously available; and (3) submitted in a timelyfashion. Instead of attempting to show that its information is newly available and materially different, NIRS describes how its contention is based upon an inference it made from the Staff's general statements.

Id. at 7. While NIRS characterizes this as "hardly a great leap," (id.) itremains concededly an inference, and not substantively new information. As such, it is precluded by § 2.309(f)(2) as a foundation for a late-filed contention.Next, NIRS claims that its inference is supported by a passage in AmerGen's brief onappeal concerning NIRS's admitted contention, which states that AmerGen has committed to perform UT measurements in the sand bed region of the drywell liner once every ten years. Motion for Reconsideration at 7 (citing AmerGen App. Br. at 5). This argument is unavailing fortwo reasons. First, it is improper to raise new arguments in a motion for reconsideration.

Savannah River, 55 NRC at 7. Second, this argument fails to address the underlying reasonwhy the Board rejected NIRS's Motion to Add Contentions: the conference call upon which NIRS's motion relies did not provide new information of the type that would justify a new or amended contention under 10 C.F.R. § 2.309(f)(2), and the information is not materially different from information previously available. NIRS makes no attempt to explain how this passage in AmerGen's appeal brief transforms anything about the January 31st conference call into new information upon which its new contention may be based.b. NIRS Fails to Demonstrate it Meets the General Contention Admissibility Requirements of 10 C.F.R. § 2.309(f)(1)As discussed above, a second, independent basis upon which the Board denied NIRS'sMotion to Add Contentions was the failure of the contentions to meet the general admissibilitystandards of 10 C.F.R. § 2.309(f)(1). First, the Board held that NIRS's contention was basedon a conference call discussion that is analogous to an RAI, which "generally does not give rise to a genuine dispute on material issues." LBP-06-11, slip op. at 10 (citing Oconee ,49 NRC at 337). Therefore, the Board held that NIRS failed to demonstrate the existence of agenuine dispute on a material issue in this proceeding. 10 C.F.R. § 2.309(f)(1)(vi). Second, the Board noted that, because the conference call was generic in nature, NIRS was unable to link specific information from the call to specific deficient portions of the application. LBP-06-11, slip op. at 10. Both of these requirements must be met before any contentions may beadmitted, whether timely or late-filed.NIRS declines to address the Board's analysis of the first deficiency under10 C.F.R. § 2.309(f)(1), NIRS's failure to demonstrate a genuine dispute of material issues. Instead, NIRS merely reiterates its disagreement with AmerGen on matters other than thealleged new information in NIRS's Motion to Add Contentions. In discussing only unrelated disagreements in other pleadings, NIRS fails to contradict the Board's reasoning concerning NIRS's motion itself. Compare Motion for Reconsideration at 9-10, with LBP-06-11 at 9-10, 13.Similarly, NIRS replies to its second deficiency, its failure to link any specific informationto specific portions of the licensee's renewal application, by arguing that it had done so in prior pleadings or that AmerGen did so in its replies. Motion for Reconsideration at 9-10. Aside from the fact that NIRS fails to clearly address the Board's findings on this point (see LBP-06-11 at10-11, 13), it was NIRS's burden to demonstrate the admissibility of its late-filed contentions inits Motion to Add Contentions. NIRS once again fails to show that it met its burden, much less that the Board misapplied the Commission's contention standards. c. NIRS Misstates the Board's Holding with Respect to AmendingContentionsNIRS argues that the Board incorrectly applied 10 C.F.R. § 2.309(f)(2) with respect to itsattempt to amend its previous contentions. Motion for Reconsideration at 6-7. In making this argument, NIRS mischaracterizes the Board's holding, claiming that "the Board incorrectly concluded that because Citizens' [sic] could have originally pleaded their additional contentions, they could not add them based on new information."

Id. The Board did not hold that newinformation could not be used to amend a contention; rather, it correctly concluded that theinformation offered by NIRS was not new, not materially different from previously available information, and not the type of information relevant to section 2.309(f)(2), and, as such, could not warrant amendment of a contention. As the Board recognized, NIRS failed to demonstratein its motion that its proposed contentions met the requirements of §§ 2.309(c)(1) and (f)(1). 2. NIRS Fails to Demonstrate that the Board Misapprehended Any Critical FactAs discussed above, a motion for reconsideration may, in addition to arguing that theruling overlooked or misapprehended a legal principle or decision that should have controllingeffect, also argue that the Board overlooked or misapprehended some critical factual information. Private Fuel Storage, 54 NRC at 493. Here NIRS argues that a clarification, madeby AmerGen to its December 12, 2005, answer to NIRS's Petition, is critical factual information overlooked by the Board. Motion for Reconsideration at 8-9. In fact, AmerGen's letter simply clarified that the phrase "arrested corrosion" referred only to corrosion in the sand bed region.

See Letter to Judge Hawkens from Alex Polonsky, March 24, 2006. NIRS goes on to discusshow its consultant, Dr. Hausler, interprets this statement. Motion for Reconsideration at 8-9. First, NIRS's argument represents another instance of NIRS's improper introduction ofnew facts and arguments into its motion for reconsideration. Savannah River, 55 NRC at 7. The licensee's clarification has no bearing on the Board's interpretation of the information in NIRS's Motion to Add Contentions. More importantly, NIRS has failed to demonstrate how this clarification was even material to the Board's ruling on the late-filed contentions, much less how it would "render the decision invalid." 10 C.F.R. § 2.323(e). The Board denied NIRS's Motion to Add Contentions because the information upon which it was based was not new and not materially different, and, in any event, it failed to satisfy the Commission's standards for admissibility. As discussed above, the licensee's clarification in no way alters the Board'sreasoning or its conclusions on NIRS's late-filed contentions. As the Board properly held, NIRS failed, on multiple levels, to meet the Commission's contention standards. CONCLUSIONFor the foregoing reasons, the Board should deny NIRS's motion for reconsideration. Respectfully submitted,/RA/

Ann P. HodgdonSteven C. Hamrick Counsel for NRC StaffDated at Rockville, Marylandthis 17th day of April, 2006 UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBEFORE THE ATOMIC SAFETY AND LICENSING BOARDIn the Matter of)

)AMERGEN ENERGY COMPANY, LLC)Docket No. 50-219-LR

)(Oyster Creek Nuclear Generating Station))CERTIFICATE OF SERVICEI hereby certify that copies of the "NRC STAFF'S RESPONSE TO NIRS'S MOTION FORRECONSIDERATION" 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 as indicated by anasterisk, or by electronic mail, with copies by U.S. mail, first class, as indicated by double asterisk, this 17th day of April, 2006.E. Roy Hawkens, Chair*Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ERH@nrc.govAnthony J. Baratta*Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 AJB5@nrc.govPaul B. Abramson*Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 PBA@nrc.govOffice of the Secretary*ATTN: Docketing and Service Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 HEARINGDOCKET@nrc.govOffice of Commission Appellate Adjudication*

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAMail@nrc.govDebra Wolf*Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 DAW1@nrc.govLisa P. Jackson, Acting Commissioner**New Jersey Department of Environmental Protection

P.O. Box 402 Trenton, NJ 08625-0402 Lisa.Jackson@dep.state.nj.us Jill Lipoti, Director**New Jersey Department of Environmental Protection Division of Environmental Safety and Health

P.O. Box 424 Trenton, NJ 08625-0424 Jill.Lipoti@dep.state.nj.usKathryn M. Sutton, Esq.**Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 ksutton@morganlewis.comRon Zak**New Jersey Department of Environmental Protection Nuclear Engineering

P.O. Box 415 Trenton, NJ 08625-0415 Ron.Zak@dep.state.nj.usSuzanne Leta**New Jersey Public Interest Research Group 11 N. Willow St.

Trenton, NJ 08608 sleta@njpirg.orgDonald Silverman, Esq.**Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 dsilverman@morganlewis.comAlex S. Polonsky, Esq.**Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.

Washington, DC 20004 apolonsky@morganlewis.comPaul Gunter, Director**Reactor Watchdog Project Nuclear Information And Resource Service

1424 16 th Street, NW, Suite 404Washington, DC 20036 pgunter@nirs.orgJ. Bradley Fewell, Esq.**Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 bradley.fewell@exeloncorp.comJohn A. Covino, Esq.**Valerie Anne Gray, Esq.

Deputy Attorneys General Division of Law Environmental Permitting and Counseling Section Hughes Justice Complex Trenton, NJ 08625 john.covino@dol.lps.state.nj.us Valerie.Gray@dol.lps.state.nj.usRichard Webster, Esq.**Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 rwebster@kinoy.rutgers.edu/RA/ Ann P. HodgdonCounsel for NRC Staff