ML083010484
| 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) | |
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 STAFF'S 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 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.
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. Hopenfeld's "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 motions 4 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 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.
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.
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.
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).
6 Citizens' Consolidated Reply Regarding Petition for Review of LBP-08-12 (Aug. 18, 2008) ("Reply").
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.
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) )
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.
E. Roy Hawkens, Chair Administrative Judge Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
E-mail: ERH@nrc.gov
Anthony J. Baratta
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