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{{#Wiki_filter:October 27, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) )
{{#Wiki_filter:October 27, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of                                       )
AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR ) (Oyster Creek Nuclear Generating Station) )
                                                        )
NRC STAFF'S MOTION FOR LEAVE TO REPLY TO CITIZENS'  OCTOBER 14, 2008 LETTER AND COMMENTS TO THE CHAIRMAN INTRODUCTION
AMERGEN ENERGY COMPANY, LLC                             )           Docket No. 50-219-LR
                                                        )
(Oyster Creek Nuclear Generating Station)               )
NRC STAFFS MOTION FOR LEAVE TO REPLY TO CITIZENS OCTOBER 14, 2008 LETTER AND COMMENTS TO THE CHAIRMAN INTRODUCTION Pursuant to 10 C.F.R. § 2.323(b) the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby requests the opportunity to respond to Citizens October 14, 2008 letter to Chairman Klein attaching the comments of Dr. Joram Hopenfeld on the Safety Evaluation Report Related to the License Renewal of Oyster Creek Nuclear Generating Station Supplement 1 (Sept. 19, 2008).1 For the reasons set forth below, Citizens letter with attached its attached comments is an unauthorized attempt to supplement their petition for review2 of the Atomic Safety and Licensing Boards (Board) July 24, 2008, Memorandum and Order (Denying Citizens Motion to Reopen the Record and Add a New Contention), LBP 12, 67 NRC ___ (2008) (LBP-08-12) and should not be considered by the Commission.
If, however, the Commission chooses to consider the assertions in Citizens letter and 1
Citizens October 14, 2008 letter did not include a certificate of service reflecting service on the parties to this pending proceeding. After the lack of a certificate of service was brought to Citizens attention by the Office of the Secretary, Citizens provided a certificate of service on October 21, 2008.
2 Citizens Petition for Review of LBP-08-12 (Aug. 1, 2008) (Appeal).


Pursuant to 10 C.F.R. § 2.323(b) the Staff of the U.S. Nuclear Regulatory Commission ("Staff") hereby requests the opportunity to respond to Citizens' October 14, 2008 letter to Chairman Klein attaching the "comments" of Dr. Joram Hopenfeld on the Safety Evaluation Report Related to the License Renewal of Oyster Creek Nuclear Generating Station Supplement 1 (Sept. 19, 2008).
Dr. Hopenfelds comments, the Staff respectfully requests leave to respond to the erroneous information contained therein.3 BACKGROUND On April 18, 2008 and May 27, 2008 Citizens filed motions to reopen the record. LBP-08-12, 67 NRC ___, (slip op. at 1). Therein Citizens raised the following new contention:
1  For the reasons set forth below, Citizens' letter with attached its attached "comments" is an unauthorized attempt to supplement their petition for review 2 of the Atomic Safety and Licensing Board's ("Board") July 24, 2008, Memorandum and Order (Denying Citizens' Motion to Reopen the Record and Add a New Contention), LBP-08-12, 67 NRC ___ (2008) ("LBP-08-12") and should not be considered by the Commission.
The predictions of metal fatigue for the recirculation nozzles at Oyster Creek are not conservative. A confirmatory analysis using a conservative method is required to establish whether these nozzles could exceed allowable metal fatigue limits during any extended period of reactor operation.
If, however, the Commission chooses to consider the assertions in Citizens' letter and 1 Citizens' October 14, 2008 letter did not include a certificate of service reflecting service on the parties to this pending proceeding. After the lack of a certificate of service was brought to Citizens' attention by the Office of the Secretary, Citizens provided a certificate of service on October 21, 2008.
Id. at 4; see also id. at n.4. Citizens asserted that this contention satisfied the requirements of § 2.326 for reopening the record; the requirements of § 2.309(f)(2) for timeliness; and § 2.309(f)(1) for contention admissibility. Id. at 4.
2 Citizens' Petition for Review of LBP-08-12 (Aug. 1, 2008) ("Appeal").  
On July 24, 2008, the Board issued a decision denying Citizens Motion to Reopen. See LBP-08-12, 67 NRC ___. Therein the majority of the Board concluded that Citizens April 18 and May 27 motions4 failed to satisfy the regulatory requirements of 10 C.F.R. § 2.326 for reopening the record. Id. (slip op. at 1-2). Judge Baratta filed a dissenting opinion. Id. (slip op. at 29-45) 3 In accordance with 10 C.F.R. § 2.323(b) the Staff contacted counsel for the other parties in regards to filing this motion. AmerGen joins the Staffs request for leave to reply if the Commission elects to consider Citizens letter and Dr. Hopenfelds comments. The Staff also contacted counsel for Citizens. Counsel for Citizens indicated via voicemail that Citizens do not object to the Staff filing a reply to their letter and comments. Citizens assent, however, does not obviate the need for this motion.
4 Motion by [Citizens] to Reopen the Record and for Leave to File a New Contention, and Petition to Add a New Contention (Apr. 18, 2008); Citizens Response to Board Order and Motion to Supplement the Basis of Their Contention at 2-4 (May 27, 2008).


Dr. Hopenfeld's "comments," the Staff respectfully requests leave to respond to the erroneous information contained therein.
On August 1, 2008, Citizens appealed the Boards decision in LBP-08-12. The Staff and AmerGen responded in opposition to Citizens appeal on August 11, 2008.5 On August 18, 2008, Citizens replied to the Staffs and AmerGens answers.6 On September 19, 2008, the Staff issued and served on the parties with a certificate of service Safety Evaluation Report Related to Renewal of Oyster Creek Nuclear Generating Station Supplement 1 (SER Supplement) (ADAMS Accession No.
3  BACKGROUND On April 18, 2008 and May 27, 2008 Citizens filed motions to reopen the record. LBP-08-12, 67 NRC ___, (slip op. at 1). Therein Citizens raised the following new contention: The predictions of metal fatigue for the recirculation nozzles at Oyster Creek are not conservative. A confirmatory analysis using a conservative method is required to establish whether these nozzles could exceed allowable metal fatigue limits during any extended period of reactor
ML082630509).
On October 14, 2008, Citizens filed the instant informal letter to the Chairman of the Commission attaching Comments on NRC SER Supplement 1, September 2008 by Dr. Joram Hopenfeld. In the letter, Citizens request that the Commission exercise its supervisory authority over the Staff with regard to the adequacy of the SER Supplement because Dr. Hopenfelds comments show that even though AmerGens calculations contain a critical error, the Staff accepted them. Citizens also assert in the letter that Dr. Hopenfelds comments confirm that [Citizens] proposed contention raises a material dispute about the adequacy of the aging management program for the recirculation outlet nozzles, and illustrate that the licensing boards finding of mootness [of Citizens proposed new contention] was premature.
DISCUSSION Citizens letter with attached comments to the Chairman is an unauthorized attempt to supplement their petition for review of LBP-08-12 based on the SER Supplement. Pursuant to § 2.341, Citizens had two opportunities to present the grounds 5
See AmerGens Answer Opposing Citizens Petition for Review of LBP-08-12 (Aug. 11, 2008); NRC Staffs Answer in Opposition to Citizens Petition for Review of LBP-08-12 (Aug. 11, 2008).
6 Citizens Consolidated Reply Regarding Petition for Review of LBP-08-12 (Aug. 18, 2008) (Reply).


operation.  
for their appeal of LBP-08-12a petition for review in accordance with § 2.341(b)(1) and (2), and a reply to answers supporting or opposing their petition for review pursuant to
§ 2.341(b)(3). Citizens availed themselves of these opportunities. See Appeal; Reply.
The Commissions regulations provide for the filing of motions and petitions.
See, e.g., §§ 2.323, 2.326, 2.206, 2.309. Rather than present their supplementary assertions in the form of a proper pleading, Citizens chose to supplement their appeal in the form of a letter and attached comments. Citizens should not be allowed to supplement their appeal through submission of a letter to the Chairman in lieu of a proper pleading. Therefore, the Commission should not consider Citizens improper attempt to supplement their appeal. However, if the Commission elects to consider Citizens letter and Dr. Hopenfelds comments as part of the record, the Staff requests leave to respond to the erroneous assertions contained therein.7 7
The Commission recently stated that [t]he NRC has not, and will not, litigate claims about the adequacy of the Staffs review in licensing adjudications. AmerGen Entergy Co., LLC.,
(Oyster Creek Nuclear Generating Station) et al., CLI-08-23, 68 NRC __ (slip op. at 18) (Oct. 6, 2008). Thus Citizens assertion regarding the adequacy of the Staffs Supplemental SER is entirely outside the scope of this litigation. In addition, the Supplemental SER speaks for itself as it is clear from a careful reading of the page cited by Dr. Hopenfeld, page 4-3, that AmerGen did not make and the Staff did not accept the erroneous assumption that the highest dissolved oxygen concentration occurs at the highest transient temperature.


Id. at 4; see also id. at n.4. Citizens asserted that this contention satisfied the requirements of § 2.326 for reopening the record; the requirements of § 2.309(f)(2) for timeliness; and § 2.309(f)(1) for contention admissibility.
CONCLUSION For the reasons set forth above, the Commission should not consider Citizens unauthorized attempt to supplement their Appeal of LBP-08-12. However, if the Commission considers Citizens letter, the Staff requests leave to respond.
Id. at 4. On July 24, 2008, the Board issued a decision denying Citizens' Motion to Reopen. See LBP-08-12, 67 NRC ___. Therein the majority of the Board concluded that Citizens' April 18 and May 27 motions 4 failed to satisfy the regulatory requirements of 10 C.F.R. § 2.326 for reopening the record.
Respectfully submitted,
Id. (slip op. at 1-2). Judge Baratta filed a dissenting opinion.
                                                            /RA/
Id. (slip op. at 29-45) 3 In accordance with 10 C.F.R. § 2.323(b) the Staff contacted counsel for the other parties in regards to filing this motion. AmerGen joins the Staff's request for leave to reply if the Commission elects to consider Citizens' letter and Dr. Hopenfeld's "comments."  The Staff also contacted counsel for Citizens. Counsel for Citizens indicated via voicemail that Citizens do not object to the Staff filing a reply to their letter and comments. Citizens' assent, however, does not obviate the need for this motion.
Mary C. Baty Marcia J. Simon Counsel for NRC Staff Dated at Rockville, Maryland this 27th day of October 2008
4 Motion by [Citizens] to Reopen the Record and for Leave to File a New Contention, and Petition to Add a New Contention (Apr. 18, 2008); Citizens' Response to Board Order and Motion to Supplement the Basis of Their Contention at 2-4 (May 27, 2008).


On August 1, 2008, Citizens appealed the Board's decision in LBP-08-12. The Staff and AmerGen responded in opposition to Citizen's appeal on August 11, 2008.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE COMMISSION In the Matter of                                    )
5  On August 18, 2008, Citizens replied to the Staff's and AmerGen's answers.
                                                    )
6  On September 19, 2008, the Staff issued and served on the parties with a certificate of service Safety Evaluation Report Related to Renewal of Oyster Creek Nuclear Generating Station Supplement 1 ("SER Supplement") (ADAMS Accession No.
AMERGEN ENERGY COMPANY, LLC                        )          Docket No. 50-219-LR
ML082630509). On October 14, 2008, Citizens filed the instant informal letter to the Chairman of the Commission attaching "Comments on NRC SER Supplement 1, September 2008" by Dr. Joram Hopenfeld. In the letter, Citizens request that the Commission exercise its supervisory authority over the Staff with regard to the adequacy of the SER Supplement because Dr. Hopenfeld's comments "show that even though AmerGen's calculations contain a critical error, the Staff accepted them."  Citizens also assert in the letter that Dr. Hopenfeld's comments "confirm that [Citizens'] proposed contention raises a material dispute about the adequacy of the aging management program for the recirculation outlet nozzles," and "illustrate that the licensing board's finding of mootness [of Citizens' proposed new contention] was premature."
                                                    )
DISCUSSION Citizens' letter with attached "comments" to the Chairman is an unauthorized attempt to supplement their petition for review of LBP-08-12 based on the SER Supplement. Pursuant to § 2.341, Citizens had two opportunities to present the grounds 5 See AmerGen's Answer Opposing Citizens' Petition for Review of LBP-08-12 (Aug. 11, 2008); NRC Staff's Answer in Opposition to Citizens' Petition for Review of LBP-08-12 (Aug. 11, 2008).
(Oyster Creek Nuclear Generating Station)           )
6 Citizens' Consolidated Reply Regarding Petition for Review of LBP-08-12 (Aug. 18, 2008) ("Reply").
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS MOTION FOR LEAVE TO REPLY TO CITIZENS OCTOBER 14, 2008 LETTER AND COMMENTS TO THE CHAIRMAN in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 27th day of October, 2008.
for their appeal of LBP-08-12-a petition for review in accordance with § 2.341(b)(1) and (2), and a reply to answers supporting or opposing their petition for review pursuant to § 2.341(b)(3). Citizens availed themselves of these opportunities.
E. Roy Hawkens, Chair                                  Office of the Secretary Administrative Judge                                    ATTN: Attn: Rulemakings and Atomic Safety and Licensing Board                      Adjudications Staff Mail Stop: T-3F23                                      Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission                      U.S. Nuclear Regulatory Commission Washington, DC 20555-0001                              Washington, DC 20555-0001 E-mail: ERH@nrc.gov                                    E-mail: HEARINGDOCKET@nrc.gov Anthony J. Baratta                                      Office of Commission Appellate Administrative Judge                                      Adjudication Atomic Safety and Licensing Board                      Mail Stop: O-16G4 Mail Stop: T-3F23                                      U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission                     Washington, DC 20555-0001 Washington, DC 20555-0001                              E-mail: OCAAMail@nrc.gov E-mail: AJB5@nrc.gov Emily Krause Paul B. Abramson                                        Law Clerk Administrative Judge                                    Atomic Safety and Licensing Board Atomic Safety and Licensing Board                      Mail Stop: T-3F23 Mail Stop: T-3F23                                      U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission                      Washington, DC 20555-0001 Washington, DC 20555-0001                              E-mail: EIK1@nrc.gov E-mail: PBA@nrc.gov
See Appeal; Reply. The Commission's regulations provide for the filing of motions and petitions.
See, e.g., §§ 2.323, 2.326, 2.206, 2.309. Rather than present their supplementary assertions in the form of a proper pleading, Citizens chose to supplement their appeal in the form of a letter and attached "comments."  Citizens should not be allowed to supplement their appeal through submission of a letter to the Chairman in lieu of a proper pleading. Therefore, the Commission should not consider Citizens' improper attempt to supplement their appeal. However, if the Commission elects to consider Citizens' letter and Dr. Hopenfeld's comments as part of the record, the Staff requests leave to respond to the erroneous assertions contained therein.
7 7  The Commission recently stated that "[t]he NRC has not, and will not, litigate claims about the adequacy of the Staff's review in licensing adjudications."  AmerGen Entergy Co., LLC., (Oyster Creek Nuclear Generating Station) et al., CLI-08-23, 68 NRC __ (slip op. at 18) (Oct. 6, 2008). Thus Citizens' assertion regarding the adequacy of the Staff's Supplemental SER is entirely outside the scope of this litigation. In addition, the Supplemental SER speaks for itself as it is clear from a careful reading of the page cited by Dr. Hopenfeld, page 4-3, that AmerGen did not make and the Staff did not accept the erroneous assumption that the highest dissolved oxygen concentration occurs at the highest transient temperature.
CONCLUSION For the reasons set forth above, the Commission should not consider Citizens' unauthorized attempt to supplement their Appeal of LBP-08-12. However, if the Commission considers Citizens' letter, the Staff requests leave to respond.
Respectfully submitted,  /RA/  Mary C. Baty Marcia J. Simon Counsel for NRC Staff


Dated at Rockville, Maryland this 27th day of October 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE COMMISSION In the Matter of )  ) AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR  ) (Oyster Creek Nuclear Generating Station) )
Suzanne Leta Liou*                            J. Bradley Fewell, Esq.*
 
New Jersey Public Interest Research Group     Exelon Corporation 11 N. Willow St.                             4300 Warrenville Road Trenton, NJ 08608                             Warrenville, IL 60555 E-mail: sliou@environmentnewjersey.org       E-mail: bradley.fewell@exeloncorp.com Donald Silverman, Esq.*                       Richard Webster, Esq.*
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S MOTION FOR LEAVE TO REPLY TO CITIZENS' OCTOBER 14, 2008 LETTER AND COMMENTS TO THE CHAIRMAN" 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 27 th day of October, 2008.
Alex S. Polonsky, Esq.                       Julia LeMense, Esq.*
E. Roy Hawkens, Chair Administrative Judge Atomic Safety and Licensing Board Mail Stop:  T-3F23 U.S. Nuclear Regulatory Commission Washington, DC  20555-0001
Kathryn M. Sutton, Esq.                       Eastern Environmental Law Center Raphael P. Kuyler, Esq.                       744 Broad Street, Suite 1525 Morgan, Lewis & Bockius LLP                   Newark, NJ 07102 1111 Pennsylvania Ave., N.W.                 Email: rwebster@easternenvironmental.org Washington, DC 20004                                 jlemense@easternenvironmental.org 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
E-mail: ERH@nrc.gov
                                              /RA/
 
______________________________
Anthony J. Baratta
Mary C. Baty Counsel for the NRC Staff}}
 
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:  Attn: Rulemakings and Adjudications Staff 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.*
 
Eastern Environmental Law Center 744 Broad Street, Suite 1525
 
Newark, NJ 07102 Email: rwebster@easternenvironmental.org j lemense@easternenvironmental.org
 
/RA/ ______________________________ Mary C. Baty Counsel for the NRC Staff}}

Revision as of 12:44, 14 November 2019

2008/10/27-Oyster Creek, NRC Staff'S Motion for Leave to Reply to Citizens' October 14, 2008 Letter and Comments to the Chairman
ML083010484
Person / Time
Site: Oyster Creek
Issue date: 10/27/2008
From: Baty M, Marcia Simon
NRC/OGC
To:
NRC/OCM
SECY/RAS
References
50-219-LR, RAS H-77
Download: ML083010484 (7)
v • d • e


Text

October 27, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

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

)

(Oyster Creek Nuclear Generating Station) )

NRC STAFFS MOTION FOR LEAVE TO REPLY TO CITIZENS OCTOBER 14, 2008 LETTER AND COMMENTS TO THE CHAIRMAN INTRODUCTION Pursuant to 10 C.F.R. § 2.323(b) the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby requests the opportunity to respond to Citizens October 14, 2008 letter to Chairman Klein attaching the comments of Dr. Joram Hopenfeld on the Safety Evaluation Report Related to the License Renewal of Oyster Creek Nuclear Generating Station Supplement 1 (Sept. 19, 2008).1 For the reasons set forth below, Citizens letter with attached its attached comments is an unauthorized attempt to supplement their petition for review2 of the Atomic Safety and Licensing Boards (Board) July 24, 2008, Memorandum and Order (Denying Citizens Motion to Reopen the Record and Add a New Contention), LBP 12, 67 NRC ___ (2008) (LBP-08-12) and should not be considered by the Commission.

If, however, the Commission chooses to consider the assertions in Citizens letter and 1

Citizens October 14, 2008 letter did not include a certificate of service reflecting service on the parties to this pending proceeding. After the lack of a certificate of service was brought to Citizens attention by the Office of the Secretary, Citizens provided a certificate of service on October 21, 2008.

2 Citizens Petition for Review of LBP-08-12 (Aug. 1, 2008) (Appeal).

Dr. Hopenfelds comments, the Staff respectfully requests leave to respond to the erroneous information contained therein.3 BACKGROUND On April 18, 2008 and May 27, 2008 Citizens filed motions to reopen the record. LBP-08-12, 67 NRC ___, (slip op. at 1). Therein Citizens raised the following new contention:

The predictions of metal fatigue for the recirculation nozzles at Oyster Creek are not conservative. A confirmatory analysis using a conservative method is required to establish whether these nozzles could exceed allowable metal fatigue limits during any extended period of reactor operation.

Id. at 4; see also id. at n.4. Citizens asserted that this contention satisfied the requirements of § 2.326 for reopening the record; the requirements of § 2.309(f)(2) for timeliness; and § 2.309(f)(1) for contention admissibility. Id. at 4.

On July 24, 2008, the Board issued a decision denying Citizens Motion to Reopen. See LBP-08-12, 67 NRC ___. Therein the majority of the Board concluded that Citizens April 18 and May 27 motions4 failed to satisfy the regulatory requirements of 10 C.F.R. § 2.326 for reopening the record. Id. (slip op. at 1-2). Judge Baratta filed a dissenting opinion. Id. (slip op. at 29-45) 3 In accordance with 10 C.F.R. § 2.323(b) the Staff contacted counsel for the other parties in regards to filing this motion. AmerGen joins the Staffs request for leave to reply if the Commission elects to consider Citizens letter and Dr. Hopenfelds comments. The Staff also contacted counsel for Citizens. Counsel for Citizens indicated via voicemail that Citizens do not object to the Staff filing a reply to their letter and comments. Citizens assent, however, does not obviate the need for this motion.

4 Motion by [Citizens] to Reopen the Record and for Leave to File a New Contention, and Petition to Add a New Contention (Apr. 18, 2008); Citizens Response to Board Order and Motion to Supplement the Basis of Their Contention at 2-4 (May 27, 2008).

On August 1, 2008, Citizens appealed the Boards decision in LBP-08-12. The Staff and AmerGen responded in opposition to Citizens appeal on August 11, 2008.5 On August 18, 2008, Citizens replied to the Staffs and AmerGens answers.6 On September 19, 2008, the Staff issued and served on the parties with a certificate of service Safety Evaluation Report Related to Renewal of Oyster Creek Nuclear Generating Station Supplement 1 (SER Supplement) (ADAMS Accession No.

ML082630509).

On October 14, 2008, Citizens filed the instant informal letter to the Chairman of the Commission attaching Comments on NRC SER Supplement 1, September 2008 by Dr. Joram Hopenfeld. In the letter, Citizens request that the Commission exercise its supervisory authority over the Staff with regard to the adequacy of the SER Supplement because Dr. Hopenfelds comments show that even though AmerGens calculations contain a critical error, the Staff accepted them. Citizens also assert in the letter that Dr. Hopenfelds comments confirm that [Citizens] proposed contention raises a material dispute about the adequacy of the aging management program for the recirculation outlet nozzles, and illustrate that the licensing boards finding of mootness [of Citizens proposed new contention] was premature.

DISCUSSION Citizens letter with attached comments to the Chairman is an unauthorized attempt to supplement their petition for review of LBP-08-12 based on the SER Supplement. Pursuant to § 2.341, Citizens had two opportunities to present the grounds 5

See AmerGens Answer Opposing Citizens Petition for Review of LBP-08-12 (Aug. 11, 2008); NRC Staffs Answer in Opposition to Citizens Petition for Review of LBP-08-12 (Aug. 11, 2008).

6 Citizens Consolidated Reply Regarding Petition for Review of LBP-08-12 (Aug. 18, 2008) (Reply).

for their appeal of LBP-08-12a petition for review in accordance with § 2.341(b)(1) and (2), and a reply to answers supporting or opposing their petition for review pursuant to

§ 2.341(b)(3). Citizens availed themselves of these opportunities. See Appeal; Reply.

The Commissions regulations provide for the filing of motions and petitions.

See, e.g., §§ 2.323, 2.326, 2.206, 2.309. Rather than present their supplementary assertions in the form of a proper pleading, Citizens chose to supplement their appeal in the form of a letter and attached comments. Citizens should not be allowed to supplement their appeal through submission of a letter to the Chairman in lieu of a proper pleading. Therefore, the Commission should not consider Citizens improper attempt to supplement their appeal. However, if the Commission elects to consider Citizens letter and Dr. Hopenfelds comments as part of the record, the Staff requests leave to respond to the erroneous assertions contained therein.7 7

The Commission recently stated that [t]he NRC has not, and will not, litigate claims about the adequacy of the Staffs review in licensing adjudications. AmerGen Entergy Co., LLC.,

(Oyster Creek Nuclear Generating Station) et al., CLI-08-23, 68 NRC __ (slip op. at 18) (Oct. 6, 2008). Thus Citizens assertion regarding the adequacy of the Staffs Supplemental SER is entirely outside the scope of this litigation. In addition, the Supplemental SER speaks for itself as it is clear from a careful reading of the page cited by Dr. Hopenfeld, page 4-3, that AmerGen did not make and the Staff did not accept the erroneous assumption that the highest dissolved oxygen concentration occurs at the highest transient temperature.

CONCLUSION For the reasons set forth above, the Commission should not consider Citizens unauthorized attempt to supplement their Appeal of LBP-08-12. However, if the Commission considers Citizens letter, the Staff requests leave to respond.

Respectfully submitted,

/RA/

Mary C. Baty Marcia J. Simon Counsel for NRC Staff Dated at Rockville, Maryland this 27th day of October 2008

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE COMMISSION 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 NRC STAFFS MOTION FOR LEAVE TO REPLY TO CITIZENS OCTOBER 14, 2008 LETTER AND COMMENTS TO THE CHAIRMAN in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 27th day of October, 2008.

E. Roy Hawkens, Chair Office of the Secretary Administrative Judge ATTN: Attn: Rulemakings and Atomic Safety and Licensing Board Adjudications Staff Mail Stop: T-3F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ERH@nrc.gov E-mail: HEARINGDOCKET@nrc.gov Anthony J. Baratta Office of Commission Appellate Administrative Judge Adjudication Atomic Safety and Licensing Board Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov E-mail: AJB5@nrc.gov Emily Krause Paul B. Abramson Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: EIK1@nrc.gov E-mail: PBA@nrc.gov

Suzanne Leta Liou* J. Bradley Fewell, Esq.*

New Jersey Public Interest Research Group Exelon Corporation 11 N. Willow St. 4300 Warrenville Road Trenton, NJ 08608 Warrenville, IL 60555 E-mail: sliou@environmentnewjersey.org E-mail: bradley.fewell@exeloncorp.com Donald Silverman, Esq.* Richard Webster, Esq.*

Alex S. Polonsky, Esq. Julia LeMense, Esq.*

Kathryn M. Sutton, Esq. Eastern Environmental Law Center Raphael P. Kuyler, Esq. 744 Broad Street, Suite 1525 Morgan, Lewis & Bockius LLP Newark, NJ 07102 1111 Pennsylvania Ave., N.W. Email: rwebster@easternenvironmental.org Washington, DC 20004 jlemense@easternenvironmental.org 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

/RA/

______________________________

Mary C. Baty Counsel for the NRC Staff

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