ML080310404
| ML080310404 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 01/25/2008 |
| From: | Webster R Eastern Environmental Law Ctr, Grandmothers, Mothers & More for Energy Safety, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Jersey Shore Nuclear Watch, New England Coalition, New Jersey Environmental Federation, New Jersey Public Interest Research Group (NJPIRG), Nuclear Information & Resource Service (NIRS), Pilgrim Watch, Riverkeeper, Sierra Club, New Jersey Chapter |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-219-LR, RAS 15000 | |
| Download: ML080310404 (26) | |
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{{#Wiki_filter:'PAS I50DO January 25,2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) DOCKETED USNRC
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) January 28, 2008 (8:00am)
AMERGEN ENERGY COMPANY, LLC ) Docket No. OFFICE OF SECRETARY (Oyster CreekNuclear Generating Station) ) 50-219-LR AD~~~7~~~~;::~F
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In the Matter of )
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ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. (Indian Point Nuclear Generating ) 50-247-LR Units 2 and 3) ) and 50-286-LR
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In the Matter of )
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ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR (Pilgrim Nuclear Power Station) )
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In the Matter of )
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ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-271-LR (Vermont Yankee Nuclear Power Station) )
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MOTION BY NUCLEAR INFORMATION AND RESOURCE SERVICE; JERSEY SHORE NUCLEAR W'ATCH, INC.; GRANDMOTHERS, MOTHERS AND MORE FOR ENERGY SAFETY; NEW JERSEY PUBLIC INTEREST RESEARCH GROUP; NEW JERSEY SIERRA CLUB; NEW JERSEY ENVIRONMENTAL FEDERATION; RIVERKEEPER, INC.; PILGRIM WATCH AND NEW ENGLAND COALITION FOR LEAVE TO REPLY TO OPPOSITIONS TO PETITION TO SUSPEND LICENSE RENE\VAL REVIEWS FOR OYSTER CREEK, INDIAN POINT, PILGRIM, ANn VERMONT YANKEE NUCLEAR POWER PLANTS PENDING INVESTIGATION OF NRC STAFF REVIEW PROCESS AND CORRECTION OF DEFICIENCIES -rem p(a.ie-=-StcY- Ot.{{
Submitted by: Richard Webster Eastern Environmental Law Center 744 Broad Street, Suite 1525 Newark, NJ 07102-3094 Counselfor Nuclear InformationAnd Resource Service; Jersey Shore Nuclear Watch, Inc.; Grandmothers,Mothers And More ForEnergy Safety, New Jersey Public Interest Research Group; New Jersey Sierra Club; New Jersey EnvironmentalFederation Phillip Musegaas Riverkeeper, Inc. 828 South Broadway Tarrytown, NY 10591 Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P. 1726M Street N.W., Suite 600 Washington, D.C. 20036 Counselfor Riverkeeper, Inc. Mary Lampert Pilgrim Watch 148 Washington Street Duxbury, MA 02332 Representativefor Pilgrim Watch Robert L. Stewart New England Coalition 229 Kibbee Extension Brookfield, Vermont 05036 Representativefor New EnglandCoalition
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; New Jersey Environmental Federation; ("Oyster Creek Organizations"); Riverkeeper, Inc. ("Riverkeeper"); Pilgrim Watch; and New England Coalition ("NEC") (collectively "Petitioners") hereby move for leave to reply to oppositions by the NRC Staff, Entergy Nuclear Operations, Inc. ("Entergy"), and AmerGen Energy Company, L.L.C. ("AmerGen") (collectively "Respondents") to Petitioners' "Petition To Suspend License Renewal Reviews for Oyster Creek, Indian Point, Pilgrim, and Vermont Yankee Nuclear Power Plants Pending Investigation of NRC Staff Review Process and Correction of Deficiencies" (January 3, 2008; corrected January 11, 2008) ("Petition").] While the Commission's regulations in 10 C.F.R. § 2.323(c) do not permit the filing of replies to motions without permission from the Commission, Petitioners respectfully submit that this case presents the type of "compelling circumstances" which warrant a reply. First, the Petition is unusual both substantively and procedurally, and therefore Petitioners could not have anticipated all of the arguments that the Respondents would make in opposition. In particular, Petitioners could not have anticipated that Respondents would fault the Petition for its failure to comply with an array of procedural requirements that are not appropriate to apply to the Petition. In addition, Petitioners could not have reasonably anticipated the arguments that Respondents would make in order to NRC Staff Answer to Petition for Suspension of License Renewal Reviews Pending Investigation of NRC Staff License Renewal Process (January 18, 2008) ("NRC Staff Response"); Answer of Entergy Nuclear Operations, Inc. Opposing Petition to Suspend License Renewal Reviews and Proceedings (January 18, 2008) ("Entergy Response"); AmerGen's Answer Opposing Petition for Stay and to Reopen the Record (January 15, 2008) ("Amergen Response").
minimize the safety significance of the Inspector General Report that forms the basis for the Petition,(Audit of NRC's License Renewal Program (OIG-07-A-15) (September 6, 2007) ("OIG Report")), or that Respondents would advocate a variety of inappropriate standards for invoking the Commission's supervisory authority over the license renewal process. Second, Petitioners seek leave to reply to an incorrect factual assertion by Entergy Nuclear Operations, Inc. that each of the Petitioners has improperly sought to appear in proceedings to which they are not parties and in which they have not filed appearances. This mischaracterization of Petitioners' actions should be corrected to clarify that none of the Petitioners has sought to participate in a proceeding to which that petitioner is not a party or a petitioner. As set forth in the Petition at 4-6, the Oyster Creek Petitioners seek relief from the Commission only with respect to the Oyster Creek nuclear power plant, Riverkeeper seeks relief only with respect to the Indian Point nuclear power plant, Pilgrim Watch seeks relief only with respect to the Pilgrim nuclear power plant, and NEC seeks relief only with respect to the Vermont Yankee plant. In conformance with 10 C.F.R. § 2.323, Petitioners sought the consent of the NRC Staff, Entergy and AmerGen to the filing of the attached Reply, but consent was denied by all three opposing parties. 2
Respectfully submitted,
/s Richard Webster, Esq. Mary Lampert Eastern Environmental Law Center Pilgrim Watch 744 Broad Street 148 Washington Street Newark, NJ 07102 Duxbury, MA 02332 973-353-3189 781-934-0387 rwebsterakinoy.rutgers.edu mary.lampert@comcast.net Counselfor Oyster Creek Organizations Representativefor Pilgrim Watch
/s Phillip Musegaas Robert L. Stewart Riverkeeper, Inc. New England Coalition 828 South Broadway 229 Kibbee Extension Tarrytown, NY 10591 Brookfield, Vermont 05036 914-478-4501 x 224 802-276-3095 phillip@riverkeeper.org Jakeskis a)aol.com Counselfor Riverkeeper, Inc.
Representativefor New EnglandCoalition Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P. 1726 M Street N.W., Suite 600 Washington, D.C. 20036 202-328-3500 dcurranoharmoncun'an. corn Counselfor Riverkeeper, Inc. January 25, 2008
January 25, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
)
AMERGEN ENERGY COMPANY, LLC ) Docket No. (Oyster CreekNuclear Generating Station) ) 50-219-LR
)
In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. (Indian Point Nuclear Generating 50-247-LR Units 2 and 3) ) and 50-286-LR In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR (Pilgrim Nuclear Power Station) In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-271-LR (Vermont Yankee Nuclear Power Station) ) REPLY BY 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; NEW JERSEY ENVIRONMENTAL FEDERATION; RIVERKEEPER, INC.; PILGRIM WATCH AND NEW ENGLAND COALITION TO OPPOSITIONS TO PETITION TO SUSPEND LICENSE RENEWAL REVIEWS FOR OYSTER CREEK, INDIAN POINT, PILGRIM, AND VERMONT YANKEE NUCLEAR POWER PLANTS - PENDING INVESTIGATION OF NRC STAFF REVIEW PROCESS AND CORRECTION OF DEFICIENCIES I
Submitted by: Richard Webster Eastern Environmental Law Center 744 Broad Street, Suite 1525 Newark, NJ 07102-3094 CounselforNuclear InformationAnd Resource Service; Jersey Shore Nuclear Watch, Inc.,* Grandmothers,Mothers And More For Energy Safety; New Jersey Public Interest Research Group; New Jersey Sierra Club; New Jersey Environmental Federation Phillip Musegaas Riverkeeper, Inc. 828 South Broadway Tarrytown, NY 10591 Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P. 1726 M Street N.W., Suite 600 Washington, D.C. 20036 Counselfor Riverkeeper, Inc. Mary Lampert Pilgrim Watch 148 Washington Street Duxbury, MA 02332 Representativefor Pilgrim Watch Robert L. Stewart New England Coalition 229 Kibbee Extension Brookfield, Vermont 05036 Representativefor New EnglandCoalition 2
TABLE OF CONTENTS Table of Contents ...................................................................... ....... .I T able of A uthorities ................................................................................. 11 I. INTRODUCTION ......................................................................... 1 II. A RGU M EN T ...................... I......................................................... 2 A. Respondents Fail to Show an Investigation is Unwarranted ................. 2 B. Respondents Fail to Show that Suspension of Licensing Renewal Reviews is Unwarranted ................................... 4 C. Respondents' Procedural Objections Are Without Merit ....................... 8 IIL CONCLUSION ........................................................................... 11
TABLE OF AUTHORITIES ADMINISTRATIVE DECISIONS Duke Cogema Stone and Webster (Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393 reconsid, denied, CLI-02-2, 55 NRC 5 (2002) ............... 7 Duke Energy Corp. (McGuire Nuclear Station, Units 1 &2); Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385 (2001) ........................ 4, 6 Exelon GeneratingCompany, L.L. C. (Early Site Permit for Clinton ESP Site), CLI-07-12, 65 N RC 203(2007) .................................. I................................. 3 Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM), LBP-98-9, 47 NRC 261 (1998)................................................................ 7 Nuclear Fuel Services, Inc., (Erwin, Tennessee), LBP-03-01, 57 NRC 9 (2003) ........... 7 Pacific Gas and Electric Company (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230 (2002)........................ 6 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376 (2001) ................................................................ 6 Statement of Policy on Conduct ofAdjudicatory Proceedings, CLI-98-12, 48 N RC 18 (1998) ..................................................................... 5 US. Army (Jefferson Proving Ground Site), LBP-04-01, 59 NRC 27 (2004) .......... 7 Vermont Yankee Nuclear Power Corp. & AmerGen Vermont LLC (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151 (2000) ................ 4 NRC REGULATIONS 10 C.F.R. § 2.323 ........... ......................................... 10 10 C .F.R . § 2.326.................................... ...................................... ..... 9 NRC GUIDANCE DOCUMENTS NRR Office Letter No. 805, License Renewal Application Review Process (June 19, 1998) ....................................................................... 3 MISCELLANEOUS Audit of NRC's License Renewal Program(OIG-07-A-15) (September 6, 2007) ....passim ii
Memorandum from William F. Kane, NRC Deputy Executive Director for Reactor and Preparedness Programs, to Stephen D. Dingbaum, Assistant Inspector General for Audits, re: Audit of NRC's License Renewal Program (OIG A- 15).....5, 6 Safety Evaluation Report Related to the License Renewal of Oyster Creek Generating Station (March 2007) ................................................. 10 iii
I. INTRODUCTION 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; New Jersey Environmental Federation; ('.'Oyster Creek Organizations"); Riverkeeper, Inc. ("Riverkeeper"); Pilgrim Watch; and New England Coalition ("NEC") (collectively "Petitioners") hereby respond to oppositions by the NRC Staff, Entergy Nuclear Operations, Inc. ("Entergy"), and AmerGen Energy Company, L.L.C. ("AmerGen") (collectively "Respondents") to Petitioners' "Petition To Suspend License Renewal Reviews for Oyster Creek, Indian Point, Pilgrim, and Vermont Yankee Nuclear Power Plants Pending Investigation of NRC Staff Review Process and Correction of Deficiencies" (January 3, 2008; corrected January 11, 2008) ("Petition").' As demonstrated below, the Respondents have failed to show that the relief requested by Petitioners is unwarranted, or that the Petition is procedurally infirm. As demonstrated in the Petition, the results of the Office of Inspector General's ("OIG's") 2007 audit regarding the NRC Staff's license renewal process (Audit of NRC's License Renewal Program(OIG-07-A- 15) (September 6, 2007) ("OIG Report")) demand further investigation by a body independent of the NRC Staff, and reform of the Staff s review process. Meanwhile, to conserve the resources of the NRC and parties and to ensure the efficiency of the license renewal process, the Commission should suspend the pending license renewal proceedings. Finally, the Commission should order the re-opening of the NRC Staff Answer to Petition for Suspension of License Renewal Reviews Pending Investigation of NRC Staff License Renewal Process (January 18, 2008) ("NRC Staff Response"); Answer of Entergy Nuclear Operations, Inc. Opposing Petition to Suspend License Renewal Reviews and Proceedings (January 18, 2008) ("Entergy Response"); AmerGen's Answer Opposing Petition for Stay and to Reopen the Record (January 15, 2008) ("Amergen Response").
Oyster Creek adjudicatory record to protect the integrity of the hearing process. The Petition should be granted. II. ARGUMENT A. Respondents Fail to Show an Investigation is Unwarranted. Respondents argue that the only problem revealed by the OIG Report is that the Staff did not adequately document its license renewal reviews, not that the quality of the reviews themselves was deficient. NRC Staff Response at 16-17, Entergy Response at 6-7. Their argument is incorrect in several respects. First, the OIG did indeed find that in spite of the conceded importance of operating experience to the license renewal review process, the NRC Staff often fails to review or audit licensees' operating experience. OIG Report at 18-23. Consequently, the OIG found that a majority of audit team members do not independently verify operating experience. Rather, they depend purely on information supplied by the licensee. Id at 18. Thus, the problems discussed in the OIG Report are not limited to inadequate documentation. Second, Respondents ignore the fact that the scope of the OIG Report did not include determining whether NRC Staff assertions in Safety Evaluation Reports ("SERs") were contradicted by actual conditions in nuclear plants. See Petition at 15 n.3. Nevertheless, the OIG stumbled upon a disturbing example of an NRC Staff assertion that was contradicted by plant conditions. See Petition at 14-15, citing OIG Report at 21-23. In addition, as Petitioners point out, the record of the Oyster Creek license renewal proceeding shows that the NRC Staff failed to independently verify whether the licensee was fulfilling its commitment to maintain plant equipment, a deficiency that has serious implications with respect to aging management. See Petition at 17-19. 2
Third, Respondents inappropriately minimize the significance of the lack of adequate documentation of the license renewal reviews. In particular, the NRC Staff asserts that there is nothing wrong with a circular process where licensees parrot generic NRC guidance and then the NRC Staff safety reviews cut and paste that guidance. NRC Response at 18. This is surprising because the safety reviews are supposed to check site specific compliance, or exceptions to compliance, against the generic guidance. Merely repeating the guidance is worse than not reporting at all because it provides no useful information at all about how the review was conducted at the particular plant under review, but gives the illusion of substantive reporting. Obviously, the NRC Staff would not accept an SER that was blank as adequate documentation. An SER that merely repeats generic guidance is equally inadequate. The Staff s position is also surprising because NRC guidance provides that the Staff's "technical review" of an applicant's license renewal programs, plus "a series of on-site inspections," are "key elements" of a license renewal review. See Petition at 11, citing NRC Office Letter No. 805, License Renewal Application Review Process,Attachment 2 (Guidelinesfor Technical and ProcessLessons Learnedfor License Renewal) at 2 (June 19, 1998). The technical review and inspections must be documented. See Petition at 12, citing NRC Office Letter No. 805. Without adequate documentation, the Commission has no supportable basis for concluding that nuclear plants can and will operate safely under renewed licenses. Respondents err in citing the Commission's decision in Exelon Generating Company, L.L.C. (Early Site Permit for Clinton ESP Site), CLI-07-12, 65 NRC 203, 207-08 (2007) for the proposition that the NRC Staff is entitled to rely on licensee assertions 3
without verifying that they are correct. CLI-07-12's conclusion that it is appropriate for the Staff to generally accept the veracity of licensee assertions is premised on the assumption that the Staff has an effective program for selectively auditing those assertions. 65 NRC at 208. The OIG Report shows that the Staff failed to use the license renewal audit system in a systematic or effective manner, and therefore lacks a supportable basis for its reasonable assurance findings.2 B. Respondents Fail to Show that Suspension of Licensing Renewal Reviews is Unwarranted. In contending that suspension of licensing proceedings is warranted only where there is an "immediate threat to public health and safety" (NRC Staff Brief at 4, citing Vermont Yankee Nuclear Power Corp. & AmerGen Vermont LLC (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 173-74 (2000)), the NRC Staff contradicts itself and misconstrues Commission precedents. As the NRC Staff recognizes, it is also appropriate for the Commission to consider "whether moving forward with an adjudication will ... prove an obstacle to fair and efficient decision making, or prevent appropriate implementation of any peftinent rule or policy changes." NRC Staff Response at 4 and 5, citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 &2); Catawba 2 One of the flaws of the safety reviews is that they are not sufficiently thorough. For example, the NRC Staff does not deny that it failed to review the untracked historic commitments at Oyster Creek. Instead, the NRC Staff asserts without any support that review of these commitments at Oyster. Creek was out of scope. NRC Staff Response at 20. This could only be true if these commitments were unrelated to aging management. In fact, a number of those commitments related to aging management of the drywell shell. Because NRC reviewers did not look deeper into the issue, neither Citizens nor the NRC Staff have any further information on the nature of the othet untracked commitments. Although AmerGen has access to such information, it has failed to even argue that the untracked commitments are out of scope. Therefore, at this stage, the Commission cannot dismiss this safety issue as out of scope. Furthermore, the significance of this issue can only be determined by further investigation. 4
Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 389-90 (2001). In this case, it would be grossly unfair and inefficient to proceed with license renewal reviews that are facially inadequate to reasonably assure protection of public health and safety during license renewal terms for the Oyster Creek, Indian Point, Pilgrim and Vermont Yankee nuclear power plants. Because the Staff is now proposing new procedures and guidance for conducting future renewal reviews (see Memorandum from William F. Kane, NRC, to Stephen D. Dingbaum, OIG, re: Audit of NRC's License Renewal Program (OIG-07-A-
- 15) (October 30, 2007) ("Kane Memorandum"), the license renewal reviews and associated adjudicatory hearings should be suspended until adequate and effective review procedures are in place. By the Staff's own estimates their proposed improvements to renewal reviews will not become effective until April 30, 2008 or later, and are purely prospective in nature. Kane Memorandum at 1-3. To continue license renewal reviews that must be repeated all over again would constitute a gross waste of NRC resources. And to force the parties to raise issues in litigation that might be resolved if the NRC Staff were doing an adequate job in its license renewal reviews would waste the resources of the parties and the Atomic Safety and Licensing Board ("ASLB").
In support of its position, the NRC Staff cites several cases that are inapposite to the instant petition. NRC Brief at 4-5. In Vermont Yankee Nuclear Power Corp., CLI 20, for example, the Commission refused to suspend a license transfer proceeding for a 3 The NRC Staff argues that the Commission should denied this Petition because Petitioners have not demonstrated that they will be "irreparably harmed" under the Commission's standard for issuance of a stay. But the Commission has never required that a party seeking efficiency and fairness in a proceeding to demonstrate that inefficiency and unfairness would cause the type of irreparable physical harm that must be demonstrated under the Commission's stay standard. Instead, as a matter of policy the Commission seeks to ensure that NRC proceedings are conducted efficiently. Statement ofPolicy on Conduct ofAdjudicatory Proceedings,CLI-98-12, 48 NRC 18 (1998). 5
nuclear plant, finding that the petitioner had not presented a litigable claim ,that the procedure for reviewing license transfer applications was deficient. In contrast, in this case the OIG has concluded, and the NRC Staff has conceded, that its procedures for conducting license renewal reviews should be reformed. The Staff also cites Duke Energy Corp., CLI-01-27, for the proposition that the Commission "did not suspend adjudicatory proceeding pending the results of the agency's reexamination of its rules following the Three Mile Island accident." NRC Staff Brief at 4. In fact, however, the Commission did suspend licensing decisions pending the outcome of the NRC's review of "lessons learned" from the TMI accident. Id., 54 NRC at 390 n. 10. And in that case, the NRC had not even made a determination that new regulations were required. Id. In this case, in contrast, the NRC Staff has already determined that its license renewal review process should be reformed. See Kane Memorandum. The NRC Staff also cites Duke Energy Corp. and three other cases in which the Commission refused to suspend licensing proceedings pending its review of security requirements after the 9/11 attacks. NRC Staff Brief at 4. Duke Energy Corp., however, was a license renewal case in which security issues were at best tangentially related. 54 NRC at 391. In the instant proceedings, however, the conceded inadequacy of the NRC Staff's license renewal review process fundamentally threatens the integrity of the NRC's licensing decisions. In addition, in none of the four cases cited by the Staff had the Commission yet determined whether its security regulations needed an overhaul. Duke Energy Corporation,54 NRC at 391; Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230, 240 (2002); Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-0 1-26, 54 6
NRC 376, 380 (2001); Duke Cogema Stone and Webster (Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 400, reconsid denied, CLI-02-2, 55 NRC 5 (2002). As the Commission stated in Pacific Gas and Electric Co., "every license the Commission issues is subject to the possibility of additional requirements." 54 NRC at 240. Here, there is no "possibility" of additional requirements with respect to the NRC Staffs process for conducting license renewal reviews; the Staff has already agreed to make comprehensive changes. It would be a gross waste of resources to continue license renewal reviews using procedures that are concededly inadequate for the purpose of ensuring continued safe operation of the Facilities during the license renewal term. The Staff also ignores relevant cases in which NRC licensing proceedings have been suspended pending completion of NRC Staff reviews. In U.S. Army (Jefferson Proving Ground Site), LBP-04-01, 59 NRC 27, 30 (2004), for example, the Presiding Officer held a proceeding for a possession-only license in abeyance after granting a hearing request, pending completion of the Staff s technical review and completion of a hearing file. In Nuclear Fuel Services, Inc., (Erwin, Tennessee), LBP-03-01, 57 NRC 9, 14-15 (2003), the Presiding Officer held a licensing proceeding for a uranium processing plant in abeyance pending the submission of additional portions of the license application. In Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM), LBP-98-9, 47 -NRC 261, 266 and n.8 (1998), the Presiding Officer suspended, for two years, a licensing proceeding for a proposed uranium mine, pending completion of the NRC Staff s review of the license application and preparation of a hearing file.4 4 The NRC Staff also argues that Petitioners may not seek suspension of the license renewal proceedings because the Staff s review process is not subject to challenge in a licensing proceeding. NRC Staff Brief at 6. As Petitioners have pointed out, however, 7
Finally, the Staff erroneously argues that a suspension would harm licensees, while failing to suspend the license renewal process would not cause irreparable harm to Petitioners. NRC Staff Response at 8. On the former point, the Staff fails to present any reasoned analysis. In fact, a delay in the license renewal process pending Commission investigation would cause no great hardship to licensees because their ability to operate would not be impaired in any way. In contrast, the Staff concedes that the inadequate documentation of safety reviews makes it more difficult for Petitioners to file contentions. Id. In fact, because many licensee documents are not in the public domain, it is impossible for Petitioners to make certain claims unless the failings of licensees are discovered and then documented in the safety reviews. 5 Because Petitioners will not be granted a similar opportunity to contest any license changes made after the Commission renews the licenses, the deprivation of this right causes irreparable harm. Moreover, where safety reviews omit important issues, as happened at Oyster Creek and Oconee, the public is harmed by the increased risk of equipment failure. C. Respondents' Procedural Objections Arc Without Merit. Respondents do not directly challenge Petitioners' right to invoke the Commission's supervisory authority over these licensing proceedings. Nevertheless, Respondents make a number of objections to the Petition that are based on the implicit assumption that the Petitioners have no legal option other than to file contentions on the license renewal applicants' license renewal applications, or add new evidence to a proceeding regarding the inadequacy of a license renewal application. For example, their Petition requests exercise of the Commission's supervisory jurisdiction over the NRC Staff by suspen ding both the Staff s review and the licensing proceedings. 5 For example, prior to discovery in the Oyster Creek case, Petitioners had no way of finding out that the commitment tracking system at Oyster Creek was inadequate. 8
Respondents argue that Petitioners may not attack the Staff's performance in a license renewal adjudication. NRC Staff Response at 13, AmerGen Response at 5, Entergy Response at 14 n.6. But they ignore the fact the Petitioners acknowledge this prohibition and therefore have brought their concerns directly .to the Commission. See Petition at 7-9. The Staff and AmerGen also argue that Petitioners must satisfy the standard for reopening the record to admit new evidence regarding the adequacy of a license application. NRC Staff Response at 10, AmerGen Response at 6. The Staff also argues that Petitioners must show they will prevail on contentions. NRC Staff Brief at 8. But Respondents fail to recognize that the Petition is neither asserting a new contention nor trying to add additional evidence to support an admitted contention after the record has closed. Instead, the Petition requests the Commission to exercise its supervisory authority to ensure the integrity and efficiency of the Staff s license renewal process, and to ensure that hearings on the pending license renewal applications are meaningful. As a resu lt, IJ application of the Commission's Part 2 rules for consideration of issues and evidence in adjudicatory proceedings have no meaningful application. Similarly, Respondents' argument that Petitioners should have addressed the standard for a motion to reopen the record in 10 C.F.R. § 2.326 is misplaced. That standard applies to situations in which a petitioner seeks to provide "additional evidence" in a licensing hearing on the adequacy of an application. Here, Petitioners request the Commission to take a series of actions designed to protect the integrity of its safety reviews and hearings, including re-opening the Oyster Creek record to allow the presentation of evidence that may be yielded by a more thorough NRC Staff review. The 9
issue is, in the first instance, a question of the Commission's supervisory responsibilities rather than a particular inadequacy in AmerGen's license renewal application. Similarly, application of the standard for issuance of a stay of a licensing decision pending review is not appropriate because the relief sought by Petitioners is much broader than what is typically sought in a stay motion: Petitioners seek suspension of current license renewal proceedings in order to ensure that the resources of the NRC and parties will not be wasted by continuation of facially inadequate license renewal reviews while the Commission conducts an independent investigation into the NRC Staff s license renewal 6 process and directs an overhaul of the Staff s license renewal review procedures. Respondents also contend that the Petition should fail because the Petitioners did not contact the opposing parties before filing it. NRC Staff Response at 9., Entergy Response at 5. This assertion has no relevance in the present case. None of the parties could have granted Petitioners the relief they requested, namely the conduct of an independent investigation into the NRC Staff's license renewal review process as directed by the Commission. Therefore such contact would have been pointless. In addition, Respondents argue that the Petition should be rejected because it is "untimely," given that Petitioners did not file it with ten days after the OIG issued its audit report or the Staff issued the Safety Evaluation Report ("SER") for the Oyster Creek nuclear power plant. NRC Staff Response at 9, AmerGen Response at 6-7, Entergy Response at 4-5, citing 10 C.F.R. § 2.323. But the "occurrence or circumstance" of which Petitioners complain is not the issuance of the OIG Report or the Oyster Creek SER. 6 For the same reason, it is not necessary for Riverkeeper to achieve "party" status in the Indian Point license renewal proceeding in order to request the Commission to exercise its supervisory authority to ensure the integrity and fairness of the Indian Point license renewal proceeding. See NRC Staff Response at 7 n.7. 10
Instead, Petitioners ask the Commission to address an ongoing failure by the NRC Staff to ensure the adequacy of its safety reviews of license renewal applications. That failure started years before the issuance of the OIG Report and the Oyster Creek SER, and it continues today - uninvestigated and uncorrected by either the NRC Staff or the Commission. Finally, Entergy incorrectly contends that "each of the Petitioners has filed the Petition in proceedings in which they never made a hearing request or sought permission to participate on any other basis." Entergy Response at 5. To the contrary, none of the Petitioners has filed the Petition in a proceeding to which that Petitioner is not already a party or a petitioner. Thus, the Petition was submitted in the Oyster Creek proceeding by Richard Webster, attorney for the Oyster Creek organizations. The Petition was submitted -in the Indian Point proceeding by Diane Curran and Phillip Musegaas, attorneys for Riverkeeper. In the Pilgrim proceeding, the Petition was submitted by Mary Lampert, the representative of Pilgrim Watch. And in the Vermont Yankee proceeding, the Petition was submitted by Robert L. Steward, the representative of NEC. See Petition at 32. As also set forth in the Petition at 4-6, the Oyster Creek petitioners seek relief from the Commission only with respect to the Oyster Creek nuclear power plant, Riverkeeper seeks relief only with respect to the Indian Point nuclear power plant, Pilgrim Watch seeks relief only with respect to the Pilgrim nuclear power plant, and NEC seeks relief only with respect to the Vermont Yankee plant. I11. CONCLUSION For the foregoing reasons, the Commission should grant the Petition. 11
Respectfully submitted,
/s' Richard Webster, Esq. Mary Lampert Eastern Environmental Law Center Pilgrim Watch 744 Broad Street, Suite 1525 148 Washington Street Newark, NJ 07102 Duxbury, MA 02332 973-353-3189 781-934-0387 rwebster@easternenvironmental.org mary.lampert@comcast.net Counselfor Oyster Creek Organizations Representativefor Pilgrim Watch
/s Phillip Musegaas Robert L. Stewart Riverkeeper, Inc. New England Coalition 828 South Broadway 229 Kibbee Extension Tarrytown, NY 10591 Brookfield, Vermont 05036 914-478-4501 x 224 802-276-3095 phillipariverkeeper.org Jakeskis@aol.com Counselfor Riverkeeper, Inc.
Representativefor New EnglandCoalition /s Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P. 1726 M Street N.W., Suite 600 Washington, D.C. 20036 202-328-3500 dcurranCiharmoncurran.com Counselfor Riverkeeper, Inc. January 25, 2008 12
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges E. Roy Hawkens 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) ) January 25, 2008 CERTIFICATE OF SERVICE I, Richard Webster, of full age, certify as follows: I hereby certify that on January 25, 2008, I caused a Motion for Leave to Reply and a Combined Reply 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: HEARINGDOCKET@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: erhgnrc.gov 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 I
E-mail: pbaknrc.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: aib5@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: EIK1(,NRC.qov Office of General Counsel (Email and U.S. Postal Service) United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OGCMAILCENTER@NRC.GOV 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-riail: mcb 1@nrc.gov Alex S. Polonsky, Esq. (Email and U.S. Postal Service) Morgan, Lewis, & Bockius LLP I1 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: apolonskykmorganlewis.com Kathryn M. Sutton, Esq. (Email and U.S. Postal Service) Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: ksuttongrmorganlewis.com Donald Silverman, Esq. (Email and U.S. Postal Service) Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: dsilvermanaimorganlewis.com 2
J. Bradley Fewell (Email and U.S. Postal Service) Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 E-mail: bradlev.fewellgexceloncorp.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: ijohn.corvinoddol.lps.state.nj.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@dol.lps.state.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: paulgbeyondnuclear.org Edith Gbur (Email) Jersey Shore Nuclear Watch, Inc. 364 Costa Mesa Drive. Toms River, New Jersey 08757 E-mail: gburlgcomcast.net Paula Gotsch (Email) GRAMMIES 205 6 th Avenue Normandy Beach, New Jersey 08723 E-mail: paulagotschgverizon.net Jeff Tittel (Email) New Jersey Sierra Club 139 West Hanover Street Trenton New Jersey 08618 E-mail: Jeff.Tittel(&,sierraclub.orp-3
Peggy Sturmfels (Email) New Jersey Environmental Federation 1002 Ocean Avenue Belmar, New Jersey 07319 E-mail: psturmfelsgcleanwater.org Michele Donato, Esq. (Email) PO Box 145 Lavalette, NJ 08735 E-mail: mdonato@micheledonatoesq.com Signed: WeA Richard Webster Dated: January 25, 2008 4}}