ML071230700

2007/04/30-Notice of, or in the Alternative, Request for Leave to File Motion to Strike Portions of Citizens' Answer to Amergen'S Motion for Summary Disposition

ML071230700
Person / Time
Site:	Oyster Creek
Issue date:	04/30/2007
From:	Polonsky A AmerGen Energy Co, Exelon Corp, Morgan, Morgan, Lewis & Bockius, LLP
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 13561
Download: ML071230700 (5)

Text

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.USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION May 1, 2007 (7:47am)

OFFICE OF SECRETARY ATOMIC SAFETY AND LICENSING BOARD RULEMAKINGS AND ADJUDICATIONS STAFF Before Administrative Judges:

E. Roy Hawkens, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta

)

In the Matter of: ) April 30, 2007

)

AmerGen Energy Company, LLC )

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

Generating Station) )

)

NOTICE OF, OR IN THE ALTERNATIVE, REQUEST FOR LEAVE TO FILE MOTION TO STRIKE PORTIONS OF CITIZENS' ANSWER TO AMERGEN'S MOTION FOR

SUMMARY

DISPOSITION On April 26, 2007, Citizens submitted their Answer to AmerGen's Motion for Summary Disposition relating to the frequency of ultrasonic testing (UT) in the sand bed region of the Oyster Creek Nuclear Generating Station Drywell. ' AmerGen has reviewed that Answer and concluded that significant portions of the Answer, including the supporting memorandum of Dr. Rudolph Hausler, go well beyond the scope of this proceeding and the limited issue in contention (i.e., the appropriate frequency of UT in the sand bed region) and raise, among other things, issues excluded from this proceeding by the Atomic Safety and Licensing Board's 2

(Board) previous decisions.

1 "Citizens' Answer Opposing AmerGen's Motion for Summary Disposition" (Apr. 26, 2007).

2 Memorandum and Order (Granting Petition to File a New Contention), LBP-06-22, 64 N.R.C. , slip op. at 9 (Oct. 10, 2006); Memorandum and Order (Denying Citizens' Motion for Leave to Add a Contention and Motion to Add a Contention) at 6 (April 10, 2007) (unpublished).

I-WA/2743560.1 Thp (o_'te=s6cc- o 9//

Pursuant to 10 C.F.R. §§ 2.1204 and 2.323, AmerGen believes that it is authorized to file a Motion to Strike those portions of Citizens' Answer that, among other things, represent another example of Citizens' continuing attempts to cloud the issues in this proceeding and reargue matters already properly excluded by the Board.3 AmerGen realizes, however, that such a pleading might be construed as an unauthorized pleading. See 10 C.F.R. §§ 2.1205 and 2.323. It is AmerGen's intent to submit a brief pleading, not to exceed ten pages in length (exclusive of any attachments), limited to striking those aspects of Citizens' Answer that go beyond the scope of the contention. AmerGen would not object to Citizens or the NRC Staff filing an Answer to the Motion to Strike. AmerGen's Motion, however, will not be a comprehensive, substantive response to Citizens' Answer, and therefore, Citizens should not be permitted to shoehorn into their Answer to the Motion to Strike matters that go beyond the content of the Motion to Strike.

If the Board does not concur that AmerGen is authorized to file the proposed Motion to Strike, then AmerGen hereby respectfully requests leave to file its Motion, pursuant to 10 C.F.R.

Pursuant to 10 C.F.R. § 2.323(c), both Citizens and the NRC Staff would be afforded the opportunity to submit answers to AmerGen's Motion to Strike.

I-WA/2743560.1 2

§§ 2.1204 and 2.323. It is AmerGen's present intention to file its Motion to Strike by May 7, 2007.'

Respectfully submitted, Donald J. Silverman, Esq.

Kathryn M. Sutton, Esq.

Alex S. Polonsky, Esq.

MORGAN, LEWIS & BOCKIUS, LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: (202) 739-5502 E-mail: dsilvermangmorganlewis.com E-mail: ksuttongmorganlewis.com E-mail: apolonsky@morganlewis.com J. Bradley Fewell Associate General Counsel Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 Phone: (630) 657-3769 E-mail: Bradley.Fewellgexeloncorp.com COUNSEL FOR AMERGEN ENERGY COMPANY, LLC Dated in Washington, D.C.

this 30th day of April 2007 4 Counsel for AmerGen has consulted with Citizens' Counsel pursuant to 10 C.F.R. § 2.323(a). Counsel for Citizens did not agree to the alternative relief requested in this Notice. Counsel for AmerGen was unable to reach Counsel for the Staff.

I -WA/2743560.1 3

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of: ) April 30, 2007

)

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 "Notice of, or in the Alternative, Request for Leave to File Motion to Strike Portions of Citizens' Answer to AmerGen's Motion for Summary Disposition" were served this day upon the persons listed below, by E-mail and first class mail, unless otherwise noted.

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, D.C. 20555-0001 (E-mail: HEARINGDOCKETanrc. gov) (E-mail: erhanrc.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, D.C. 20555-0001 Washington, D.C. 20555-0001 (E-mail: pbagnrc.gov ) (E-mail: aib5@nrc.gov)

I-WA/2743877.1

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 Hughes Justice Complex Trenton, NJ 08625 (E-mail: john.covino@dol.lps.state.nj.us) Richard Webster (E-mail: valerie. ray@dol.lps.state.ni.us) Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 (E-mail: rwebster(kinoy.rutgers.edu)

Suzanne Leta Paul Gunter NJPIRG Nuclear Information and Resource Service 11 N. Willow Street 1424 16th Street, NW Trenton, NJ 08608 Suite 404 (E-mail: sleta(2nipirg.org) Washington, DC 20036 (E-mail: pgunter@nirs.or*)

Mitzi A. Young Debra Wolf Mary C. Baty Law Clerk Office of the General Counsel, 0-15D21 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, D.C. 20555 U.S. Nuclear Regulatory Commission (E-mail: may@nrc.gov) Washington, DC 20555-0001 (E-mail: mcb I (nrc.gov) (E-mail: dawl @nrc.gov)

• Original and 2 copies

• • First Class Mail only Ralp afel P. Kuyler 2