ML061070620

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, 2006 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 STAFFS RESPONSE TO NIRSS MOTION FOR RECONSIDERATION INTRODUCTION Pursuant 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 for Reconsideration) 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 NIRSs Motion for Reconsideration.

BACKGROUND NIRS originally sought to intervene in this proceeding in November of 2005. Request for 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 Staffs Response to Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention, dated February 17, 2006; and AmerGens Answer to Petitioners 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 NIRSs request for hearing and admitting the following contention, as re-framed by the Board:

AmerGens License Renewal Application fails to establish an adequate aging 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 operation and, thus, will not enable AmerGen to determine the amount of corrosion in that region and thereby maintain the safety margins during the term of the extended license.

Memorandum and Order (Denying New Jerseys Request for Hearing and Petition to Intervene, and Granting NIRSs Request for Hearing and Petition to Intervene), LBP-06-07 (February 27, 2006).

As noted above, in LBP-06-11, the Licensing Board denied NIRSs Motion to Add Contentions. Memorandum and Order (Denying NIRSs 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.

DISCUSSION For several reasons, NIRSs Motion for Reconsideration should be denied. First, NIRS fails to properly seek leave from the Board to file such a motion. Second, it substantively fails to demonstrate legal error in the Boards decision, or to demonstrate that the Board overlooked material facts in reaching that decision. Finally, the Motion for Reconsideration

mischaracterizes the Boards rulings and improperly raises new arguments. The Motion should be denied.

A. NIRS Fails to Meet the Legal Standard for Granting Leave to File a Motion for Reconsideration In filing its Motion for Reconsideration, NIRS ignores the Commissions regulations governing 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 the existence of a clear and material error in a decision, which could not have been anticipated, that renders 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 Reconsideration Alternatively, even if the Board were to grant leave to file a motion for reconsideration, NIRSs 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 some principle of law that would have a controlling effect and that has been overlooked or that there has been a misapprehension of the facts. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-17, 48 NRC 69, 73-74 (1998); Georgia Power Co. (Vogtle Electric 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 the presiding officers determination indicating the questioned ruling overlooked or misapprehended (1) some legal principle or decision that should have controlling effect; or (2) some critical factual information. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 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 new arguments, unless they relate to a Board concern that could not reasonably have been anticipated. Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-2, 55 NRC 5, 7 (2002) (hereinafter Savannah River); Texas Utilities Electric Co. (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. Nuclear Engineering Co. (Sheffield, Illinois Low-Level Radioactive Waste Disposal Site), CLI-80-1, 11 NRC 1, 5-6 (1980). As explained below, NIRSs Motion for Reconsideration fails to demonstrate 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 Law The Boards decision to deny NIRSs Motion to Add Contentions rested on three independent 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 NIRS failed to meet the general admissibility requirements for timely contentions found in section 2.309(f)(1). LBP-06-11, slip op. at 9, 13. Finally, the Board found that NIRS failed to meet the requirements for late-filed contentions found in section 2.309(c)(1). The Board expressly stated that this represented an independent and sufficient basis for not admitting

[NIRSs] belated contentions. LBP-06-11, slip op. at 5 n.3. Any of these bases alone sufficiently supports the Boards decision. In order for NIRS to prevail, its Motion for Reconsideration must overcome each rationale for the Boards finding. However, NIRS only addresses the first two grounds for denying its motion. Its failure to address the Boards finding

with respect to § 2.309(c)(1), an independent and sufficient basis for the Boards decision, alone demonstrates that its Motion for Reconsideration should be denied.

a. NIRS Fails to Demonstrate That it Meets the Requirements of 10 C.F.R. § 2.309(f)(2) for Late-Filed Contentions Based Upon Information Not Previously Available NIRS asserts that the ALSB [sic] incorrectly found that the information was not new even though Citizens [NIRS] were previously unaware of the Staffs concerns ... . Motion for Reconsideration at 5. This argument misreads the Commissions regulations. As the Board recognized, the issue is not whether NIRS previously knew of the information, but 1) whether there 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. NIRSs only response to the Boards thorough characterization of the decades-old material upon which NIRSs 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, 2006 conference call was not declarations of programmatic policy or regulatory conclusions that, for example, might be analogized to conclusions in an Environmental Impact Statement, which could trigger a petitioners 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 Staffs 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 the Boards decision by citing a case, Louisiana Energy Services, L.P. (Claiborne Enrichment Center), 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 more on 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 Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 337 (1999) (a petitioner may not ground a contention on the Staffs 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 31st conference 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 NIRSs 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) also acknowledges that information could already be available about the new or amended contention, but still allows it to be timely if the new information adds anything 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 timely fashion. 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 Staffs general statements. Id. at 7. While NIRS characterizes this as hardly a great leap, (id.) it remains 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 AmerGens brief on appeal concerning NIRSs 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 for two 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 reason why the Board rejected NIRSs Motion to Add Contentions: the conference call upon which NIRSs 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 AmerGens 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 NIRSs Motion to Add Contentions was the failure of the contentions to meet the general admissibility standards of 10 C.F.R. § 2.309(f)(1). First, the Board held that NIRSs contention was based on 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 a genuine 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 be admitted, whether timely or late-filed.

NIRS declines to address the Boards analysis of the first deficiency under 10 C.F.R. § 2.309(f)(1), NIRSs failure to demonstrate a genuine dispute of material issues.

Instead, NIRS merely reiterates its disagreement with AmerGen on matters other than the alleged new information in NIRSs Motion to Add Contentions. In discussing only unrelated disagreements in other pleadings, NIRS fails to contradict the Boards reasoning concerning NIRSs 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 information to specific portions of the licensees 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 Boards findings on this point (see LBP-06-11 at 10-11, 13), it was NIRSs burden to demonstrate the admissibility of its late-filed contentions in its Motion to Add Contentions. NIRS once again fails to show that it met its burden, much less that the Board misapplied the Commissions contention standards.

c. NIRS Misstates the Boards Holding with Respect to Amending Contentions NIRS argues that the Board incorrectly applied 10 C.F.R. § 2.309(f)(2) with respect to its attempt to amend its previous contentions. Motion for Reconsideration at 6-7. In making this argument, NIRS mischaracterizes the Boards 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 new information could not be used to amend a contention; rather, it correctly concluded that the information 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 demonstrate in 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 Fact As discussed above, a motion for reconsideration may, in addition to arguing that the ruling overlooked or misapprehended a legal principle or decision that should have controlling effect, 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, made by AmerGen to its December 12, 2005, answer to NIRSs Petition, is critical factual information overlooked by the Board. Motion for Reconsideration at 8-9. In fact, AmerGens 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 discuss how its consultant, Dr. Hausler, interprets this statement. Motion for Reconsideration at 8-9.

First, NIRSs argument represents another instance of NIRSs improper introduction of new facts and arguments into its motion for reconsideration. Savannah River, 55 NRC at 7.

The licensees clarification has no bearing on the Boards interpretation of the information in NIRSs Motion to Add Contentions. More importantly, NIRS has failed to demonstrate how this clarification was even material to the Boards 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 NIRSs 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 Commissions standards for admissibility. As discussed above, the licensees clarification in no way alters the Boards reasoning or its conclusions on NIRSs late-filed contentions. As the Board properly held, NIRS failed, on multiple levels, to meet the Commissions contention standards.

CONCLUSION For the foregoing reasons, the Board should deny NIRSs motion for reconsideration.

Respectfully submitted,

/RA/

Ann P. Hodgdon Steven C. Hamrick Counsel for NRC Staff Dated at Rockville, Maryland this 17th day of April, 2006

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 STAFFS RESPONSE TO NIRSS MOTION FOR RECONSIDERATION in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system as indicated by an asterisk, 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* Office of the Secretary*

Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 HEARINGDOCKET@nrc.gov ERH@nrc.gov Office of Commission Appellate Anthony J. Baratta* Adjudication*

Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3F23 OCAAMail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Debra Wolf*

AJB5@nrc.gov Law Clerk Atomic Safety and Licensing Board Paul B. Abramson* Mail Stop: T-3F23 Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3F23 DAW1@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Lisa P. Jackson, Acting Commissioner**

PBA@nrc.gov New Jersey Department of Environmental Protection P.O. Box 402 Trenton, NJ 08625-0402 Lisa.Jackson@dep.state.nj.us

Jill Lipoti, Director** Alex S. Polonsky, Esq.**

New Jersey Department of Morgan, Lewis & Bockius LLP Environmental Protection 1111 Pennsylvania Ave., N.W.

Division of Environmental Safety and Health Washington, DC 20004 P.O. Box 424 apolonsky@morganlewis.com Trenton, NJ 08625-0424 Jill.Lipoti@dep.state.nj.us Paul Gunter, Director**

Reactor Watchdog Project Kathryn M. Sutton, Esq.** Nuclear Information Morgan, Lewis & Bockius LLP And Resource Service 1111 Pennsylvania Ave., NW 1424 16th Street, NW, Suite 404 Washington, DC 20004 Washington, DC 20036 ksutton@morganlewis.com pgunter@nirs.org Ron Zak** J. Bradley Fewell, Esq.**

New Jersey Department of Exelon Corporation Environmental Protection 200 Exelon Way, Suite 200 Nuclear Engineering Kennett Square, PA 19348 P.O. Box 415 bradley.fewell@exeloncorp.com Trenton, NJ 08625-0415 Ron.Zak@dep.state.nj.us John A. Covino, Esq.**

Valerie Anne Gray, Esq.

Suzanne Leta** Deputy Attorneys General New Jersey Public Interest Research Group Division of Law 11 N. Willow St. Environmental Permitting and Counseling Trenton, NJ 08608 Section sleta@njpirg.org Hughes Justice Complex Trenton, NJ 08625 Donald Silverman, Esq.** john.covino@dol.lps.state.nj.us Morgan, Lewis, & Bockius LLP Valerie.Gray@dol.lps.state.nj.us 1111 Pennsylvania Avenue, NW Washington, DC 20004 Richard Webster, Esq.**

dsilverman@morganlewis.com Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 rwebster@kinoy.rutgers.edu

/RA/

Ann P. Hodgdon Counsel for NRC Staff