ML082690443
| ML082690443 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 09/16/2008 |
| From: | Webster R Eastern Environmental Law Ctr, Grandmothers, Mothers & More for Energy Safety, Jersey Shore Nuclear Watch, New Jersey Environmental Federation, New Jersey Public Interest Research Group (NJPIRG), Nuclear Information & Resource Service (NIRS), Sierra Club, New Jersey Chapter |
| To: | Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS-H-69 | |
| Download: ML082690443 (12) | |
Text
Rks_ý_O DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION September 17 2008 (8:30am)
OFFICE OF THE SECRETARY OFFICE OF SECRETARY RULEMAKINGS AND ATOMIC SAFETY AND LICENSING BOARD ADJUDICATIONS STAFF Before Administrative Judges:
E. Roy Hawkens, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of )
) Docket No. 50-0219-LR AMERGEN ENERGY COMPANY, LLC )
) *ASLB No. 06-844-01.-LR (License Renewal for the Oyster Creek -
))
Nuclear Generating Station) September 16, 2008 CITIZENS' EMERGENCY MOTION TO AMEND REPLY PLEADING AND FOR OTHER APPROPRIATE RELIEF This Motion is filed on behalf of Nuclear Information and Resource Service, Jersey Shore Nuclear Watch, Inc., Grandmothers, Mothers and More for Energy Safety, New Jersey Public Interest Research Group, New Jersey Sierra Club, and New Jersey Environmental Federation (collectively "Citizens").
RELEVANT FACTS On September 10, 2008, the Atomic Safety and Licensing Board (the "Board") suggested to AmerGen Energy Co. LLC ("AmerGen") that a diagram explaining Table I of Mr.
O'Rourke's June 11, 2008 affidavit ("O'Rourke Aff.") could be helpful. Unfortunately, when that diagram arrived just before noon today, it did far more than explain the contents of Table 1.
It also included five locally thinned areas that are not mentioned in Table 1. Citizens based their reply briefing and responsive expert opinions upon the assumption that Table I provided the base 7FY4P h A-7rc-- p-c/-2 63
case, as stated. Prior to receiving the diagram, Citizens also based their preparations for the oral argument on the same assumption.
ARGUMENT I. The O'Rourke Affidavit States That Table I Would Form The Base Case Although the O'Rourke Aff. was poorly drafted, the best interpretation is that it would not include local areas of severe corrosion in the base case. In paragraph 16 it states that Table I gives the thicknesses that "are being used in the base case." O'Rourke Aff. at ¶ 16. Table I makes no mention of locally thinned areas. The same paragraph also refers to Citizens' Ex. 46, which provided a similar explanation of the thicknesses to be modeled as Table 1. Id However, creating some ambiguity, in paragraph 15 the affidavit states that "five locally thinned areas were modeled" (emphasis added), but provided no details on the dimensions of those areas. Id. at ¶
- 15. Thus, Citizens interpreted the affidavit to mean that the modeling to be carried out in the future to meet the commitment would be based upon Table 1, and based their reply and Dr.
Hausler's responsive affidavit on this interpretation.
From the diagram submitted today, it now appears that AmerGen is actually proposing to use the thicknesses presented in Citizens' Exhibit 45 as the base case. However, AmerGen did not refer to Exhibit 45 in the O'Rourke Aff., but instead referred to Citizens' Ex. 46, which contained a similar ambiguity to the affidavit itself. Because AmerGen failed to state clearly in the evidentiary record that it would use the locally thinned areas depicted in Citizens' Ex. 45 as part of the base case, the diagram contains information that is outside the record.
Citizens contacted counsel for AmerGen and the NRC Staff shortly after receiving the diagram in an attempt to avoid filing this motion. NRC Staff has stated it takes no position on this Motion. AmerGen has stated that it will respond to Citizens tomorrow by lunchtime, but because there is a danger that the Board will be traveling to the hearing by then, Citizens are left with no choice but to file for relief. Citizens are preared to withdraw this motion if an appropriate resolution can be agreed with AmerGen and the Staff prior to the oral argument.
2
II. AmerGen Did Not Obey The Board's Order In its September 10, 2008 Memorandum and Order, The Board invited AmerGen to submit a "diagram that explains 'Table V' in Mr. O'Rourke's June 11, 2008 affidavit." Contrary to the Board's instructions, the diagram submitted by AmerGen does not explain Table 1, but instead includes material that was not included in Table 1.
Ill. The Board Should Grant Appropriate Relief There would be little point having an oral argument based on a modeling base-case that AmerGen does not intend to use. Therefore, Citizens are not moving to strike the diagram and are ready to show that the modeling proposal in the diagram is inadequate, once they have had a reasonable opportunity revise their reply brief and the responsive affidavit of Dr. Hausler to respond to the new modeling proposal. Furthermore, in the interests of creating a clean record, Citizens suggest that the Board should order AmerGen to amend Table 1 of the O'Rourke Aff. to be consistent with the submitted diagram. Citizens would be prepared to submit their amended reply and an amended Hausler affidavit a week after permission to do so is granted.
Because this issue has arisen at a very late stage, Citizens recognize that it may be difficult to postpone the oral argument scheduled for Thursday. Therefore, if the oral argument proceeds, Citizens request that this Motion be adjudicated at the outset. If the Board is inclined to grant this motion, Citizens suggest that the oral argument could be limited to the issue of the interpretation of Judge Baratta's requirements for the new modeling.
Finally, Citizens request that the Board adjust the timing for oral argument slightly in two ways. First, although the Board gave AmerGen and the NRC Staff time to rebut, it did not grant similar time to Citizens. Citizens request that, at minimum, they should be afforded the same time as the other parties to present their arguments. Second, normal procedure in federal court is 3
that equal time is allocated to opposing positions. Thus, to the extent that the NRC Staff s position is similar to that of AmerGen, AmerGen and the Staff combined should have equal time to Citizens. Citizens raised this issue with the NRC Staff, but were unable ascertain whether the Staff s position is in fact similar to AmerGen's. Citizens request that the Board make a determination on this issue prior to the oral argument on the substantive issues.
IV. Conclusion For the foregoing reasons, the Board should grant the relief requested in this Motion and any other relief as it may see fit.
Respectfully submitted, Richard Webster, Esq Julia LeMense, Esq.
Eastern Environmental Law Center Attorneys for Citizens Dated: September 16, 2008 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
E. Roy Hawkins, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of )
) Docket No. 50-0219-LR AMERGEN ENERGY COMPANY, LLC )
ASLB No. 06-844-01-LR (License Renewal for the Oyster Creek )
Nuclear Generating Station) ) September 16, 2008 CERTIFICATE OF SERVICE I. Richard Webster, of full age, certify as follows:
I hereby certify that on September 16, 2008, 1 caused Citizens' Emergency Motion to be served via email and U.S. Postal Service (as indicated) on the following:
Secretary of the Commission (Email and original and 2 copies via U.S Postal Service)
United States Nuclear Regulatory Commission Washington, DC 20555-0001 Attention: Rulemaking and Adjudications Staff E-mail: H1.EAR]N GDOCKET(LiNRC RG OV Office of Commission Appellate Adjudication (Email and U.S. Postal Service)
United States Nuclear Regulatory Commission Washington, DC 20555-0001 Attention: Rulemaking and Adjudications Staff E-mail: OCAAMailG(t-nrc.gov Administrative Judge E. Roy Hawkens, Chair (Email and U.S. Postal Service)
Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: erh(Dinrc.gov I
Administrative Judge Dr. Paul B. Abramson (Email and U.S. Postal Service)
Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: pba(dýnrc. gov Administrative Judge Dr. Anthony J. Baratta (Email and U.S. Postal Service)
Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 United States. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: aib506irc.iov Law Clerk Emily Krause (Email and U.S. Postal Service)
Atomic Safety & Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: DA\VI nrc.Loov Office of General Counsel (Email and U.S. Postal Service)
United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OGCMAILCENTER(,NRC.GOV James E. Adler (Email and U.S. Postal Service)
U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: 0-15 D21 Washington, DC 20555-0001 E-mail: .Iea!@n gov
__c.
Mary C. Baty (Email and U.S. Postal Service)
U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: 0-15 D21 Washington, DC 20555-0001 E-mail: mcb 1@etimc. -ov Alex S. Polonsky, Esq. (Email and U.S. Postal Service)
Morgan, Lewis, & Bockius LLP S111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: a pol onskv Qnii or* anl ewi s. comI 2
Kathryn M. Sutton, Esq. (Email and U.S. Postal Service)
Morgan, Lewis, & Bockius LLP
.1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: ksutton a)morganl ewis .com Donald Silverman, Esq. (Email and U.S. Postal Service)
Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: dsilvernlan g2inorgan] e\vis.corn J. Bradley Fewell (Email and U.S. Postal Service)
Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 E-mail: bradley .fewell 1aexcel oncorp. corn John Covino, DAG (Email and U.S. Postal Service)
State of New Jersey Department of Law and Public Safety Office of the Attorney General Hughes Justice Complex 25 West Market Street P.O. Box 093 Trenton, NJ 08625 E-mail: john.corvino~addo] .lps. state.n]J. uLs Valerie Gray (Email)
State of New Jersey Department of Law and Public Safety Office of the Attorney General
- Hughes Justice Complex 25 West Market Street P.O. Box 093 Trenton, NJ 08625 E-mail: \alerie.graydoI.lps.state.nius.
Paul Gunter (Email and U.S. Postal Service) c/o Nuclear Information and Resource Service 6930 Carroll Ave., Suite 340 Takoma Park, MD 20912-4446 E-mail: iDaul ('a)bevondnuclear. oroŽ
.3
Edith Gbur (Email)
Jersey Shore Nuclear Watch, Inc.
364 Costa Mesa Drive. Toms River, New Jersey 08757 E-mail: ,bur](Thcomcast.nei Paula Gotsch (Email)
GRAMMIES 205 6 "hAvenue Normandy Beach, New Jersey 08723 E-mail: paulagotsch(averizon.net Jeff Tittel (Email)
New Jersey Sierra Club 139 West Hanover Street Trenton New Jersey 08618 E-mail: Jeff.TitteIusie b Peggy Sturmfels (Email)
New Jersey Environmental Federation 1002 Ocean Avenue Belmar, New Jersey 07319 E-mail: ps turnfL.e] s(acleanwaler. or*
Michele Donato, Esq. (Email)
PO Box 145 Lavalette, NJ 08735 E-mail: in-jdoiiai ao.ti chel.]edoflaloesqlcorn.
Signed: _ _ _ _ _
Richard Webster Dated: September 16, 2008 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
E. Roy Hawkins, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of )
) Docket No. 50-0219-LR AMERGEN ENERGY COMPANY, LLC )
) ASLB No. 06-844-01-LR (License Renewal for the Oyster Creek )
Nuclear Generating Station) ) September 16, 2008
)
CERTIFICATE OF SERVICE 1, Richard Webster, of full age, certify as follows:
1 hereby certify that on September 16, 2008, 1 caused Citizens' Emergency Motion to be served via email and U.S. Postal Service (as indicated) on. the following:
Secretary of the Commission (Email and original and 2 copies via U.S Postal Service)
United StatesNuclear Regulatory Commission Washington, DC 20555-0001 Attention: Rulemaking and Adjudications Staff E-mail: HEARINGDOCKETý'TNRC.GOV Office of Commission Appellate Adjudication (Email and U.S. Postal Service)
United States Nuclear Regulatory Comnission Washington, DC 20555-0001 Attention: Rulemaking and Adjudications Staff E-mail: OCAAMailinrc.gov Administrative Judge E. Roy Hawkens, Chair (Email and U.S. Postal Service)
Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: erh(~i)nrc.goN'
Administrative Judge Dr. Paul B. Abramson (Email and U.S. Postal Service)
Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: pba~inrc. gov Administrative Judge Dr. Anthony J. Baratta (Email and U.S. Postal Service)
Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ajb5 @nrc.gov Law Clerk Emily Krause (Email and U.S. Postal Service)
Atomic Safety & Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: DA\W1 @nrc.ov Office of General Counsel (Email and U.S. Postal Service)
United States Nuclear Regulator), Commission Washington, DC 20555-0001 E-mail: OGCMA ILCENTE R(N71),Nl CiGON' James E. Adler (Email and U.S. Postal Service)
U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: 0-15 D21 Washington, DC 20555-0001 E-mail: jeal @im:c.2oov Mary C. Baty (Email and U.S. Postal Service)
U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: 0-15 D21 Washington, DC 20555-0001 E-mail: mcb 1@i-i)rc.gov Alex S. Polonsky, Esq. (Email and U.S. Postal Service)
Morgan, Lewis, & Bockius LLP 1111 Pelnsylvania Avenue, NW Washington, DC 20004 E-mail: gp)olonsky morganilewis.corn 2
4.
Kathryn M. Sutton, Esq. (Email and U.S. Postal Service)
Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: ksutton( inorganlewi s.coil Donald Silverman, Esq. (Email and U.S. Postal Service)
Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: dsi1vern-ian(.,morgan]ewis.cor J. Bradley Fewell (Email and U.S. Postal Service)
Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 E-mail: bradley.fewell1w)exceloncorp.com John Covino, DAG (Email and U.S. Postal Service)
State of New Jersey Department of Law and Public Safety Office of the Attorney General Hughes Justice Complex 25 West Market Street P.O. Box 093 Trenton, NJ 08625 E-mail: .john.corvino~ ',ýdol .]ps.state.i, us Valerie Gray (Email)
State of New Jersey Department of Law and Public Safety Office of the Attorney General Hughes Justice Complex 25 West Market Street P.O. Box 093 Trenton, NJ 08625 E-mail: valerie.gray Cq7dol.lps.staLe.nJ us.
Paul Gunter (Email and U.S. Postal Service) c/o Nuclear Information and Resource Service 6930 Carroll Ave., Suite 340 Takoma Park, MD 20912-4446 E-mail: paul(Wbeyondnuc]ear.orY 3
Edith Gbur (Email)
Jersey Shore Nuclear Watch, Inc.
364 Costa Mesa Drive. Toms River, New Jersey 08757 E-mail: gburlca conicast.net Paula Gotsch (Email)
GRAMMIES 205 611' Avenue Normandy Beach, New Jersey 08723 E-mail: paulaotsch Caerizon .nel Jeff Tittel (Email)
New Jersey Sierra Club 139 West Hanover Street Trenton New Jersey 08618 E-mail: .eff.Titte IWsierraclub.ory_,
Peggy Sturmfels (Email)
New Jersey Environmental Federation 1002 Ocean Avenue Belmar, New Jersey 07319 E-mail: ptsurifel s otcleanwaiter. orL Michele Donato, Esq. (Email)
PO Box 145 Lavalette, NJ 08735 E-mail: idona oLt i chel edonatoesq.corn..
Signed: ( -JL Richard Webster Dated: September 16, 2008 4