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 S AmerGen Energy Co, Exelon Corp, Morgan, Morgan, Lewis & Bockius, LLP
To:	Abramson P B, Baratta A J, Hawkens E R Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, ASLBP 06-844-01-LR, RAS 13561
Download: ML071230700 (5)

Text

IV/q 513 561ýUNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: E. Roy Hawkens, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta DOCKETED.USNRC May 1, 2007 (7:47am)OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF)In the Matter of: ))AmerGen Energy Company, LLC ))(License Renewal for Oyster Creek Nuclear )Generating Station) ))April 30, 2007 Docket No. 50-219 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 (Board) previous decisions.

2 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Order (Denying Citizens' Motion for Leave to Add a Contention and Motion to Add a Contention) at 6 (April 10, 2007) (unpublished).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: ))AmerGen Energy Company, LLC ))(License Renewal for Oyster Creek Nuclear )Generating Station) ))April 30, 2007 Docket No. 50-219 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*

U.S. Nuclear Regulatory Commission Attn: Rulemakings and Adjudications Staff One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 (E-mail: HEARINGDOCKETanrc.

gov)Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop -T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: pbagnrc.gov

)Administrative Judge E. Roy Hawkens, Chair Atomic Safety and Licensing Board Panel Mail Stop -T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: erhanrc.gov)

Administrative Judge Anthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop -T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: aib5@nrc.gov)

I -WA/2743877.1 John A. Covino Valerie Anne Gray Division of Law Environmental Permitting and Counseling Section P.O. Box 093 Hughes Justice Complex Trenton, NJ 08625 (E-mail: j ohn.covino@dol.lps.state.nj.us)(E-mail: valerie. ray@dol.lps.state.ni.us)

Suzanne Leta NJPIRG 11 N. Willow Street Trenton, NJ 08608 (E-mail: sleta(2nipirg.org)

Mitzi A. Young Mary C. Baty Office of the General Counsel, 0-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 (E-mail: may@nrc.gov)(E-mail: mcb I (nrc.gov)Office of Commission Appellate Adjudication**

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Richard Webster Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 (E-mail: rwebster(kinoy.rutgers.edu)

Paul Gunter Nuclear Information and Resource Service 1424 16th Street, NW Suite 404 Washington, DC 20036 (E-mail:

Debra Wolf Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: dawl @nrc.gov)* Original and 2 copies** First Class Mail only Ralp afel P. Kuyler 2