ML081160090

Amergen 'S Answer Opposing Citizens' Motion to Stay Proceeding

ML081160090
Person / Time
Site:	Oyster Creek
Issue date:	04/21/2008
From:	Sutton K AmerGen Energy Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
50-219-LR, FOIA/PA-2008-0306, RAS H-15
Download: ML081160090 (12)

Text

.- IRAS-s-415 DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION OFFICE OF THE SECRETARY April 21,2008 4:51pm)

OFFICE OF SECRETARY BEFORE THE COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF

)

In the Matter of: ) April 21, 2008

)

AmerGen Energy Company, LLC )

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

Generating Station) )

.)

AMERGEN'S ANSWER OPPOSING CITIZENS' MOTION TO STAY PROCEEDING AmerGen Energy Company, LLC ("AmerGen") hereby files its Answer opposing the Motion that Citizens' filed on April 11, 2008,2 requesting a stay of the above-captioned license renewal proceeding. As demonstrated below, Citizens have no regulatory basis for filing the Motion and have failed to demonstrate the requisite compelling circumstances warranting such extraordinary relief.. Therefore, the Commission should deny the Motion.2 I. BACKGROUND AmerGen submitted its license renewal application for the Oyster Creek Nuclear Generating Station ("Oyster Creek") on July 22, 2005.4 In September 2007, the Atomic Safety and Licensing Board ("Board") held a hearing on the only remaining contention in the The six organizations comprising "Citizens" are Nuclear Information and Resource Service ("NIRS"), Jersey Shore Nuclear Watch, Inc. ("JSNW"), Grandmothers, Mothers and More for Energy Safety ("GRAMMES"),

New Jersey Public Interest Research Group ("NJPIRG"), New Jersey Sierra Club ("NJ Sierra Club"), and New Jersey Environmental Federation ("NJEF").

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 Issue Notified by Staff (Apr. 11, 2008) ("Motion").

On April 18, 2008, Citizens also filed a motion to "Reopen the Record and for Leave to File a New Contention, and Petition to Add a New Contention." AmerGen will reply to this petition in a timely manner under separate cover.

Letter from C. Swenson, AmerGen, to NRC, Application for Renewed Operating License (July 22, 2005).

proceeding, relating to corrosion of the drywell shell, and resolved the contention in favor of AmerGen.5 Citizens' appeal of the Board's decision is pending before the Commission. 6 On April 3, 2008, the Nuclear Regulatory Commission ("NRC") Staff notified the Commission that it is reviewing a calculation methodology related to metal fatigue and plans to requestthat AmerGen perform a confirmatory analysis for its own calculations.! The Staff not only explained that the calculation "is not relevant to the [drywell] contention," but also stated that "the safety significance of using the simplified analysis method is low based on the risk assessments performed by the staff in resolving generic safety issues (GSI)-166 and GSI-190.",

II. ARGUMENT Citizens' two major arguments are: (1) the Commission should stay issuance of the renewed license until it resolves the metal fatigue issue,2 and (2) the Commission should suspend the license renewal proceeding until final resolution of an unrelated rulemaking petition.-° As discussed below, these arguments ate procedurally-defective, without merit, and do not support delaying either this proceeding or issuance of the renewed license." Instead, Citizens' Motion is AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), LBP-07-17, 66 NRC 327, 372 (Dec. 18, 2007).

Citizens' Petition for Review of LBP-07-17 and the Interlocutory Decisions in the Oyster Creek Proceeding (Jan. 14, 2008) (hereinafter "Citizens' Petition for Review").

2 Board Notification 2008-01, Notification of Information in the Matter of Oyster Creek Nuclear Generating Station License Renewal Application (Apr. 3, 2008) (hereinafter "Commission Notification").

8 Id.

2 Motion at 1-2, 6-9.

Lo Id. at 1-3, 9-10.

L Citizens make additional arguments that do not support the Motion. For example, Citizens argue that the Commission Notification is deficient. Id. at 5-6. This argument is unrelated to Citizens' request for a stay of the proceeding, and Citizens have not requested any change to the proceeding based on the purported inadequacy of the Commission Notification. Similarly, Citizens claim that the Commission Notification supports its January 3, 2008 petition requesting suspension of four ongoing license renewal proceedings. Id. at

10. This argument is likewise irrelevant to the Motion and these issues are already before the Commission.

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yet another attempt to delay issuance of Oyster Creek's renewed license by raising any conceivable argument, while disregarding procedure, regulation, and fact.

A. Citizens' Motion For A Stay Based On The Commission Notification Must Be Rejected

1. The Motion Is Untimely Citizens filed their Motion pursuant to 10 C.F.R. § 2.323,-L2 which states that "[a] motion must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises.' '13 Although the NRC Staff issued the CommissionNotification on April 3, 2008, information on the fatigue issues discussed therein-including the claimed basis for Citizens' Motion-was publicly-available long before Citizens filed the present Motion. In this regard, Citizens rely On a February 7, 2008 ACRS meeting transcript, a March 6, 2008 ACRS meeting transcript, the March 17, 2008 Seventh Declaration of Dr. Joram Hoppenfeld, and a May 1, 2006 AmerGen Response to a Request for Additional Information.- 4 This information has been long-available to Citizens, and highlights the untimely nature of the Motion. For this reason alone, the Motion must be dismissed pursuant to 10 C.F.R. § 2.323(a).

2. The Motion Provides No Basis To Stay Issuance Of The Renewed License Citizens' Motion also must be dismissed because it fails to satisfy the requirements for a stay in 10 C.F.R. § 2.342. This governing regulation only contemplates requests for stays of "decisions." Citizens do not cite to this regulation, and their Motion is devoid of authority as:

there is no "decision" from which to request a timely stay.-5 L Id. atl.

L 10 C.F.R. § 2.323(a).

14 Motion at 4.

L The most recent decision whichCitizens could attempt to stay was the Board's Initial Decision issued in December 2007, much earlier than the ten day time limit allowed by 10 C.F.R. § 2.342(a)'.

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Indeed, Citizens recognize that the Motion has no regulatory basis because they loosely plead for the Commission to exercise its "supervisory authority over this proceeding," rather than cite any regulatory or precedential basis for the Motion.-6 Furthermore, the metal fatigue claims set forth in the Motion have no nexus to the drywell contention currently on appeal; Citizens themselves acknowledge "the new information does not concern any of the evidence related to the admitted contention."'17 Nonetheless, even if the Commission disregards these fatal procedural defects, Citizens may not ignore the standards for issuing a stay.i' Section 2.342(e) defines the four factors that must be weighed before the Commission will issue a stay:

1. Whether the moving party has made a strong showing that it is likely to prevail on the merits;

2. Whether the party will be irreparably injured unless a stay is granted;

3. Whether the granting of a stay would harm other parties; and

4. Where the public interest lies.

Inexplicably, Citizens fail to address these factors in their Motion, even though the burden of persuasion rests with them.- For example, the Motion does not explain how Citizens will be irreparably injured unless a stay is granted.2° As a result, Citizens have not met their burden for issuance of a stay, and the Motion must be denied on its merits.21 L6 Motion at 6.

L7 Id. at 7.

L8 See Sequoyah Fuels (Gore, Oklahoma Site), CLI-94-9, 40 NRC 1, 6 (1994) (treating a stay request filed under

§ 2.730 (now § 2.323) using the standard in § 2.788(e) (now § 2.342(e))).

L9 See Ala. Power Co. (Farley Nuclear Plant, Units 1 and 2), CLI-81-27, 14 NRC 795, 797 (1981).

Lo See Pub. Serv. Co. ofN.H. (Seabrook Station, Units 1 and 2), CLI-90-3, 31 NRC 219, 258 (1990) (denying a stay based on lack of showing of irreparable harm and absence of a strong showing on the other factors).

Simply "'raising the specter of a nuclear accident' does not demonstrate irreparable harm." Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-06-8, 63 NRC 235, 237-38 (2006). See also Int'l Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-02-10, 55 NRC 251, 259 (2002) (denying a stay, in part because movant's mere allegations, until substantiated, fell short of meeting the "likelihood of success" and "irreparable injury" requirements); Duke Energy Corp. (Oconee Nuclear Station Units 1, 2, & 3),

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Even beyond these four factors, Citizens do not provide any sufficient basis for staying this proceeding. For example, Citizens engage in blatant fearmongering by selectively quoting a news article, which posits that if the recirculation nozzle breaks, "it could lead to a severe accident."22 Citizens ignore the remainder of the article, however, which quotes an NRC spokesperson as stating: "We have decided to have AmerGen and other companies do this re-analysis out of an abundance of caution" and "' [t]he initial analysis done on these nozzles was performed using proven methods and the results showed' they met a metal fatigue factor.'"23 Additionally, the Commission Notification specifically states that the NRC Staff believes the 24 safety significance of the metal fatigue issues to be low.

Citizens' arguments are laden with speculation and supported by absolutely no factual basis. For example, Citizens' attorney performs a "back of the envelope" calculation in an attempt to demonstrate that the same increase in the cumulative usage factor in the Vermont Yankee proceeding also would apply in the instant proceeding.25- In this speculative exercise, he fails to indicate, cite, or provide any basis for his assumptions. Similarly, Citizens speculate that "the facts strongly suggest that the requested reanalysis could well find that the metal fatigue would go beyond its allowable limits during any period of extended operation if no further action CLI-99-11, 49 NRC 328, 339 (1999) (stating that the Commission is reluctant to suspend proceedings due to the "substantial public interest in efficient and expeditious administrative proceedings").

-l Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-2, 37 NRC 55, 58 & n.2 (1993)

(rejecting stay request because the Petitioners did not address stay factors).

22 Motion at 3.

L3 Todd B* Bates, NRC Wants Nuclear Plant's Water Nozzles Rechecked, Asbury Park Press (Apr. 7, 2008)

(emphasis added), http://www.app.com/apps/pbcs.dll/article?AID=/20080407/NEWS/804070368.

L4 See Commission Notification.

25 Motion at 4-5.

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is taken."2-6 This claim, along with the rest of the Motion, is unsupported by facts and must be rejected'in its entirety.

3. Citizens Have No Right To The Confirmatory Analysis Citizens further request that the Commission order AmerGen to provide them with a copy of the confirmatory analysis,- in order to (1) prevent the NRC Staff from failing to spot a deficiency,-8 and (2) preserve their hearing rights. 29 In seeking such an Order, however, Citizens again cite no supporting legal authority.

The only issue for which Citizens are a party in this proceeding is the drywell contention, which is on appeal to the Commission.-° Nonetheless, the hearing record on that issue is closed. 1 Citizens have no right to any additional discovery-regarding that issue, metal fatigue, or any other matter-beyond that allowed pursuant to Section 2.336(f). In sum, Citizens simply have no right to a confirmatory analysis that is beyond the scope of the single issue on appeal, and have not provided sufficient justification otherwise.

B. Citizens' Request To Suspend The Proceeding Until Final Resolution Of A Rulemaking Petition Also Must Be Rejected A rulemaking petitioner may request that the Commission suspend a licensing proceeding. In this regard, 10 C.F.R. § 2.802(d) states: "The petitioner may request the Commission to suspend all or any part of any licensing proceeding to which the petitioner is a party pending disposition of the petition for rulemaking." Citizens claim that NJ Sierra Club and 2 Id. at 7.

27 Id. at 2, 8-9.

2 Id. at 2..

L9 Id. at 8..

Lo See Citizens' Petition for Review.

L_ See LBP-07-17, 66 NRC at 338.

6

NJEF "filed" a rulemaking petition regarding the criteria for license renewal,32 which was rejected by the Commission.-3 Now, as members of Citizens, NJ Sierra Club and NJEF request a stay of the Commission's final licensing decision in the Oyster Creek proceeding pending judicial review34 of this rulemaking petition. For the reasons explained below, this request must fail.

1. Only Rulemaking Petitioners May Request Suspension Of A Related Proceeding NJ Sierra Club and NJEF did not submit a rulemaking petition as claimed in the Motion; rather, they only submitted letters supporting a rulemaking petition by Joseph Scarpelli, mayor of the Township of Brick.L5 In the FederalRegister notice for the petition, the NRC explained that

"[t]he petitioner is the Mayor of Brick Township, New Jersey" and "[t]he petitioner also included letters from the New Jersey Chapter of the Sierra Club and the New Jersey Environmental Federation in support of the petition."L6 In fact, in the notice rejecting the petition, the NRC stated that NJ Sierra Club and NJEF "do not appear to request petitioner status.'3-7 By its terms, 10 C.F.R. § 2.802(d) only allows a rulemaking "petitioner" to submit a request to suspend a proceeding. Neither NJ Sierra Club nor NJEF-much less Citizens in piggy-back mode--are "petitioners" within the meaning of this regulation, and Citizens may not twist the regulation to suit their own purposes.3 L Motion at 9.

L3 Joseph Scarpelli, Mayor of Brick Township, NJ; Receipt of Petition for Rulemaking, 70 Fed. Reg. 54,310, 54,310 (Sept. 14, 2005); Andrew J. Spano and Joseph C. Scarpelli; Denials of Petition for Rulemaking, 71 Fed.

Reg. 74,848, 74,848 n.1 (Dec. 13, 2006).

L4 See N.J. Sierra Club v. NRC, No. 07-1276 (2d Cir. filed Mar. 29, 2007).

L5 See Letter from M. Donato to NRC, Petition for Rulemaking and Adjudications Staff (July 20, 2005).

L 70 Fed. Reg. at 54,310 (emphasis added).

L 71 Fed. Reg. at 74,848 n. 1.

H8 See, e.g., Fla. Power & Light Co. (Turkey Point Power Plant, Unit Nos. 3 & 4),DD-82-2, 15 NRC 1343, 1345-46 (1982) ("[Petitioner] was not a party to the license amendment proceeding and therefore would not be entitled to invoke Section 2.802(d) in any event.").

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2. The Rulemaking Petition Already Has Been Dispositioned Commission regulations only allow a request for suspension of a proceeding "pending disposition of the petition for rulemaking."'9 As acknowledged by Citizens, the rulemaking petition already has been rejected by the Commission.4- Thus, the petition has been fully dispositioned and 10 C.F.R. § 2.802(d) no longer applies. The ongoing Second Circuit judicial review of this rejection is irrelevant to the Commission's actions in response to Citizens' instant request for stay.

3. Citizens' Suspension Request Is Untimely The timing of Citizens' request to suspend the proceeding under Section 2.802(d) is unjustifiably late. The rulemaking petition at issue was~filed by Mr. Scarpelli in 2005, .at about the same time as submission of the Oyster Creek license~renewal application. Even if NJ Sierra Club and NJEF were rulemaking petitioners-which they were not-then they should have filed a request to suspend the instant proceeding much earlier. NJ Sierra Club and NJEF have been parties, as part of Citizens, to this proceeding since February 2006 (i.e., over two years). 4 1 It is evident that Citizens filed this request on the eve of issuance of the renewed license, hoping to further delay this proceeding. Such motivation is an inadequate justification for suspension.

Furthermore, Citizens' Motion is based on the April 3, 2008 Commission Notification.

Citizens themselves describe the 2005 rulemaking petition as requesting "that a renewed license would issue only if the facility operator demonstrates that the plant meets all criteria and 42 requirements that would be applicable if the plant was being proposed for initial construction.",

3 10 C.F.R. § 2.802(d).

4- Motion at 9; see also 71 Fed. Reg. at 74,848.

4- See AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), LBP-06-7, 63 NRC 188, 193-94 (2006).

42 Motion at 9.

8

The underlying NRC regulations governing license renewal are not at issue in this proceeding.

Thus, the rulemaking petition is beyond the scope'of this proceeding and cannot serve as a basis for a suspension request herein.

Finally, Citizens characterize their pleading as a "motion." Under 10 C.F.R. § 2.323(a),

motions "must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises." This requirement is not satisfied in this case.

4. The Motion Specifies No Basis For The Suspension Request Yet again, Citizens have provided absolutely no basis, or explanation, for why the Commission should suspend the proceeding until final resolution of the rulemaking petition.

Citizens simply claim that the regulations allow them to request a suspension of the proceeding, 43 without any argument whatsoever of the justification for such a suspension.

In a 2003 decision, the Commission rejected a request by intervenors to suspend a proceeding under 10 C.F.R. § 2.802(d), providing the following standard for the request:

[W]e consider whether moving forward with the adjudication will jeopardize the public health and safety, prove an obstacle to fair and efficient decisionmaking, or prevent appropriate implementation of any pertinent rule or policy changes that might emerge from our important ongoing evaluation of terrorism-related 44 policies.

The articulation of this standard demonstrates that the Commission 'sets a high bar for granting a Section 2.802(d) request. Additionally, as with the stay request, Citizens must satisfy the general Id. at 9-10.

L4 Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-03-4, 57 NRC 273, 277 (2003).

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stay standards in 10 C.F.R. § 2.342(e), as discussed above, to suspend the proceeding.45 Citizens do not discuss, much less attempt to satisfy, any of these standards.

III. CONCLUSION For the foregoing reasons, the Commission should deny Citizens' Motion in its entirety.

Respectfully submitted, Dona;,d . Silverman, Esq.

Kathryn M. 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(2morganlewis.com E-mail: ksutton(2morganlewis.com E-mail: apolonskyabmorganlewis.com E-mail: rkuylergmorganlewis.com J. Bradley Fewell Associate General Counsel Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 Phone: (630) 657-3769 E-mail: Bradley.Fewellaexeloncorp.com

• Dated in Washington, D.C. COUNSEL FOR this 21st day of April 2008 AMERGEN ENERGY COMPANY, LLC 45 See EnvironmentalRadiationProtectionStandardsfor Nuclear Power Operations,40 CFR 190, CLI-81-4, 13 NRC 298, 301 (1981); UraniumMill Licensing Requirements (10 CFR Parts30, 40, 70 & 150), CLI-81-9, 13 NRC 460, 463 (1981).

10

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: ) April 21, 2008

)

AmerGen Energy Company, LLC )

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

Generating Station) )

.)

CERTIFICATE OF SERVICE I hereby certify that copies of"AmerGen's Answer Opposing Citizens' Motion to Stay Proceeding" 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: HEARINGDOCKETgnrc. gov) (E-mail: erh(anrc.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@nrc.gov) (E-mail: ajb5@nrc.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: OCAAmailgnrc.gov)

Hughes Justice Complex Trenton, NJ 08625 Richard Webster (E-mail: j ohn.covino(dol.lps.state.nj.us) Julia LeMense (E-mail: valerie.gray(@dol.lps.state.ni.us) Eastern Environmental Law Center 744 Broad Street, Suite 1525 Newark, NJ 07102 (E-mail: rwebstergeasternenvironmentai.org)

(E-mail: ilemensegeastemenvironmental.org)

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

(E-mail: kevingbeyondnuclear.org)

Mary C. Baty Emily Krause Kimberly A. Sexton Law Clerk James E. Adler Atomic Safety and Licensing Board Office of the General Counsel, 0-15D21 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: eikl @nrc.gov)

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

(E-mail: jeal @nrc.gov)

• Original and 2 copies Stephen J. Burdi*"

I-WA/2957489 2