ML071700768

LB Memorandum and Order (Denying Amergens Motion for Summary Disposition)

ML071700768
Person / Time
Site:	Oyster Creek
Issue date:	06/19/2007
From:	Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-219-LR, ASLBP 06-844-01-LR, RAS 13788
Download: ML071700768 (16)

Text

1 See AmerGen Energy Company, LLC Motion for Summary Disposition on Citi-zens Drywell Contention (Mar. 30, 2007) [hereinafter AmerGen Summary Disposition Motion].

The NRC Staff supports AmerGens motion. See NRC Staff Response to AmerGens Motion for Summary Disposition (Apr. 26, 2007) [hereinafter NRC Staff Response].

2 The six organizations are 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.

3 See Citizens Answer Opposing AmerGens Motion for Summary Disposition (Apr. 26, 2007) [hereinafter Citizens Answer].

RAS 13788 UNITED STATES OF AMERICA DOCKETED 06/19/07 NUCLEAR REGULATORY COMMISSION SERVED 06/19/07 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

E. Roy Hawkens, Chairman Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of AMERGEN ENERGY COMPANY, LLC (License Renewal for Oyster Creek Nuclear Generating Station)

Docket No. 50-0219-LR ASLBP No. 06-844-01-LR June 19, 2007 MEMORANDUM AND ORDER (Denying AmerGens Motion for Summary Disposition)

Pending before this Board is a motion for summary disposition filed by AmerGen Energy Company, LLC (AmerGen), who has applied for a twenty-year renewal of its license for the Oyster Creek Nuclear Generating Station (Oyster Creek).1 The intervenors in this case - six organizations hereinafter referred to collectively as Citizens2 - argue that AmerGen fails to satisfy the standards for granting summary disposition.3 We agree with Citizens, and we therefore deny AmerGens motion.

4 During the course of this proceeding, this Board concluded that the following contentions proffered by Citizens were not admissible: (1) Citizens challenge to AmerGens monitoring program for areas of the drywell shell below and above the sand bed region (LBP-06-11, 63 NRC 391, 396-400 (2006)); (2) Citizens challenge asserting that AmerGen be direct-ed to conduct a root cause analysis of the corrosion problem (id. at 400-01); (3) Citizens chal-lenge to AmerGens modeling for deriving acceptance criteria (LBP-06-22, 64 NRC at 237-40; Licensing Board Memorandum and Order at 6-12 (Apr. 10, 2007) (unpublished)); (4) Citizens challenge to AmerGens monitoring program in the sand bed region for moisture and coating integrity (LBP-06-22, 64 NRC at 244-48); (5) Citizens challenge to AmerGens program for responding to wet conditions and coating failure in the sand bed region (id. at 248-49); (6) Citi-zens challenge to the scope of AmerGens UT monitoring program in the sand bed region (id.

at 249-51; Licensing Board Memorandum and Order at 7-19 (Feb. 9, 2007) (unpublished)

[hereinafter Feb. 9 Order]); (7) Citizens challenge to AmerGens quality assurance program for measurements in the sand bed region (LBP-06-22, 64 NRC at 251-53); and (8) Citizens chal-lenge to AmerGens methods for analyzing UT results in the sand bed region (id. at 254-55).

I. BACKGROUND In October 2006, this Board admitted for adjudication the following contention proffered by Citizens challenging AmerGens license renewal application: AmerGens scheduled UT monitoring frequency in the sand bed region [during the period of extended operation] is insuffi-cient to maintain an adequate safety margin (LBP-06-22, 64 NRC 229, 240 (2006)). More precisely, this Board stated that the issue presented is whether, in light of the uncertainty regarding the existence vel non of a corrosive environment in the sand bed region and the cor-relative uncertainty regarding corrosion rates in that region, AmerGens UT monitoring plan is sufficient to ensure adequate safety margins (ibid.).4 AmerGen took its most recent UT measurements in the sand bed region of the drywell shell during the plants refueling outage in October 2006. It will take measurements again in 2008 and thereafter at four-year intervals, unless the measurements warrant a different interval.

See AmerGen Summary Disposition Motion, Exh. 3, Letter from Michael P. Gallagher, AmerGen, to NRC (Feb. 15, 2007) (Encl. 1).

On March 30, 2007, AmerGen submitted a motion for summary disposition, arguing that there is no genuine issue of material fact that calls into question whether AmerGens sched-uled UT monitoring frequency for the sand bed region of the drywell is sufficient to maintain an adequate safety margin.... [and] AmerGen is [therefore] entitled to a decision as a matter of law (AmerGen Summary Disposition Motion at 3). The NRC Staff supports AmerGens motion (NRC Staff Response at 8-12), and Citizens oppose it (Citizens Answer at 17-22).

II. ANALYSIS A.

Legal Standards Governing Summary Disposition Motions Pursuant to 10 C.F.R. § 2.1205(a), a party in a Subpart L proceeding may submit a motion for summary disposition. Section 2.1205(c) states that the resolution of such motions shall be governed by the standards for summary disposition set forth in Subpart G. Pursuant to Subpart G, a moving party shall be granted summary disposition if the filings in the proceeding,

... together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law (10 C.F.R. § 2.710(d)(2)).

Motions for summary disposition are analogous to motions for summary judgment and, accordingly, are evaluated pursuant to the standards governing summary judgment in Rule 56 of the Federal Rules of Civil Procedure. See Advanced Med. Sys., Inc. (One Factor Row, Geneva, Ohio), CLI-93-22, 38 NRC 98, 102 (1993). Pursuant to Rule 56, the movant is required to show the absence of a genuine issue of material fact and that, under the undisputed material facts, the movant is entitled to a decision as a matter of law (Celotex Corp.

v. Catrett, 477 U.S. 317, 323, 325 (1986)). To forestall the granting of the motion, the non-movant must designate specific facts showing that there is a genuine issue [of material fact] for trial (id. at 324).

Facts are material if they will affect the outcome of the trial under the governing law (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Issues are genuine only if a 5

See AmerGen Motion to Strike (May 4, 2007); Citizens Opposition to AmerGen Motion to Strike (May 11, 2007) [hereinafter Citizens Opposition to Motion to Strike]; NRC Staff Answer to AmerGens Motion to Strike Citizens Summary Disposition Answer (May 11, 2007)

[hereinafter NRC Staff Answer to Motion to Strike].

reasonably jury considering the evidence presented could find for the non-moving party (id. at 249). In determining whether a genuine question of material fact exists, a judge must consider all evidence in the light most favorable to the non-movant (Hunter v. Bryant, 502 U.S. 224, 233 (1991)).

Summary judgment is not appropriate if it would require a judge to engage in the making of [c]redibility determinations, the weighing of the evidence, [or] the drawing of legitimate infer-ences from the facts (Anderson, 477 U.S. at 255), because the performance of such functions signals the existence of a genuine factual issue whose resolution should be based on a hear-ing, not a summary judgment motion. Similarly, summary judgment is not appropriate if it would require a judge to assess the correctness of facts and conclusions that are embodied in the competing, well-founded opinions of the parties experts. See United States v. Alcan Aluminum Corp., 990 F.2d 711, 722-23 (2d Cir. 1993); Norfolk S. Corp. v. Oberly, 632 F. Supp. 1225, 1243 (D. Del. 1986), affd, 822 F.2d 388 (3d Cir. 1987); Private Fuel Storage, L.L.C. (Inde-pendent Spent Fuel Storage Installation), LBP-01-39, 54 NRC 497, 509-10 (2001).

B.

The Existence Of Genuine Issues Of Material Fact Preclude The Granting Of AmerGens Request For Summary Disposition 1.

The Factual Issues Included in the Admitted Contention The parties are in sharp disagreement about the litigable issues included in the admitted contention.5 Defining those issues is critical so this Board may properly analyze AmerGens summary disposition motion and so the parties may prepare a relevant and focused record for the evidentiary hearing.

6 The NRC Staff disagrees with AmerGen to the extent AmerGen asserts that Citizens may not rely on new information - including information acquired by AmerGen during its 2006 performance of UT measurements - that is relevant to, and within the scope of, the admitted contention (NRC Staff Answer to Motion to Strike at 6-7). Aside from that, the Staff supports AmerGens motion to strike (id. at 4-7).

In Citizens view, the litigable issues in the admitted contention include disputes regard-ing the acceptance criteria (Citizens Answer at 5-8), and the methods for analyzing UT results (id. at 8-13). In addition, Citizens appear to seek to litigate some aspect of the scope of the UT monitoring program, as evidenced by their experts reference to that issue. See Citizens Answer, Memorandum from Rudolf H. Hausler to Richard Webster at 1 (Apr. 25, 2007) [herein-after Hausler Memorandum].

AmerGen argues that, based on this Boards prior rulings, Citizens are foreclosed from raising challenges regarding (AmerGen Motion to Strike at 2-5): (1) the derivation of the accep-tance criteria; (2) the established methods for analyzing UT results; and (3) the scope of the UT monitoring program. In addition, AmerGen argues that Citizens may not rely on new informa-tion acquired by AmerGen during its 2006 performance of UT measurements (id. at 5-6).

AmerGen asks this Board to strike those portions of Citizens Answer that touch on these matters.6 We grant AmerGens request in part. AmerGen is correct in arguing that Citizens are precluded from raising challenges regarding: (1) the derivation of the acceptance criteria for the drywell shell; (2) the established methods for analyzing UT results; and (3) the scope of the UT monitoring program. This Board previously rebuffed Citizens efforts to raise such chal-lenges on the ground that Citizens failed to raise them in a timely manner or failed to show that they satisfied the admissibility requirements in 10 C.F.R. § 2.309(f)(1). See supra note 4.

These challenges are thus not litigable, and Citizens may not resurrect them in effort to avoid 7

That these issues are beyond the scope of this proceeding does not mean that their safety implications are not considered by the NRC Staff. In the context of a license renew-al application, the NRC Staff will consider and resolve all safety questions regardless of wheth-er any hearing takes place (Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 350 (1998)). Here, the Staffs extensive consideration of safety questions relating to corrosion of the drywell shell may be found in the Safety Evaluation Report Related to the License Renewal of Oyster Creek Generating Station (Mar. 2007).

8 We emphasize that the new information a party seeks to introduce into the record must be relevant to, and within the scope of, the admitted contention. A party may not attempt to use new information to expand the scope of an admitted contention without first obtaining authority from the Board to admit a new, or to amend an existing, contention. See 10 C.F.R. § 2.309(f)(2).

9 The granting of AmerGens motion does not result in the actual expungement of material from the record; rather, we simply decline to consider the offending material. The reason such material is not purged from the record is that it could become relevant in a subse-quent appeal. See PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 & 2),

LBP-07-4, 65 NRC __, __ n.86 (slip op. at 18 n.86) (Mar. 22, 2007).

summary disposition. Nor do we expect Citizens to attempt to raise these issues further in the course of this proceeding.7 AmerGen is incorrect, however, to the extent it argues that Citizens may not rely on new information (e.g., information acquired by AmerGen during its 2006 performance of UT measurements) that is relevant to, and within the scope of, the admitted contention. As a mat-ter of common sense, to render an informed and accurate factual finding on an issue incident to an admitted contention, a Board must consider the factual record in its entirety, including new, pertinent information that comes to light after the contention is admitted. AmerGens assertion to the contrary would, if accepted, require a Board to render a factual finding on an incomplete, and possibly misleading, factual record. Plainly, the process advocated by AmerGen is untena-ble on its face. See Citizens Opposition to Motion to Strike at 7-10; NRC Staff Answer to Motion to Strike at 6-7.8 Accordingly, consistent with the above discussion, we grant AmerGens motion to strike in part, and we deny it in part.9 10 Uncertainties relating to the corrosion rate may derive from a variety of sources, including the limited accuracy of the measurement method used, the use of a limited number of data points, and the method used to analyze and interpret the data. Thus, in addressing uncer-tainties, the parties may provide evidence associated with the measurement technique as well as with the interpretation of the data. The Boards consideration of this information will be for the purpose of determining how much the actual values of thickness can reasonably be expect-ed to differ from the measured values, which, in turn, will inform the Boards judgment regarding whether AmerGen has demonstrated that its UT monitoring plan is sufficient to ensure ade-quate safety margins.

To be clear, in our view, the relevant factual issues that remain litigable in this proceed-ing pertain to: (1) the amount by which the remaining thickness of the shell exceeds the estab-lished acceptance criteria in the sand bed region; (2) the existence vel non of a corrosive environment, taking into account whether sources of water have been eliminated as well as whether, regardless of the potential existence of water, a corrosive environment can exist in the sand bed region after the sand was removed and the protective coating applied, particularly considering that sand is no longer there to hold water in the previously corroded area of the shell; and (3) the corrosion rate - including the uncertainties related to its determination10 - that reasonably may be expected in the sand bed region. Establishment of these facts will, in turn, determine how rapidly the thickness is approaching the acceptance criteria and, thus, the adequacy of the frequency of UT measurements AmerGen proposes to take during the period of extended operation.

We do not discount the possibility that the factual issues identified above may contain ancillary issues that require resolution. For example, Citizens are not proscribed from arguing that the frequency of UT measurements is insufficient to ensure that an adequate safety margin is maintained under the protective epoxy coating. This argument - which is directed to a discrete portion of the sand bed region (i.e., the shell under the epoxy coating) - plainly is encompassed in the contention that additional UT measurements are necessary in the sand bed region due to the uncertainty regarding the existence... of a corrosive environment in th[at] region and the correlative uncertainty regarding corrosion rates in that region (LBP 22, 64 NRC at 240. See also id. at 242 (Citizens provide expert opinion in support of their assertion that UT monitoring is necessary even where visual inspections of epoxy coating do not reveal coating deterioration, because corrosion may occur under epoxy coating in the absence of visual deterioration due to nonvisible... pinholes).

Similarly, although Citizens may not challenge the derivation or validity of the estab-lished acceptance criteria or the methodology for analyzing UT results, they are not precluded from arguing that AmerGens application of acceptance criteria and analytic methodology to the 2006 UT results was inconsistent with past practice. See Citizens Answer at 5-8, 10. Such a challenge, if advanced by Citizens, would not be an attack on the validity of AmerGens established acceptance criteria and methodology for analyzing UT results. Rather, it would be an assertion that AmerGens unexplained deviation from established, valid practices casts doubt on the most recent analysis. Such a challenge would go to the heart of the admitted contention, because it would be relevant to determining whether AmerGens most recent assessment of UT measurements provides a reasonable assurance of safe operation until the next scheduled UT monitoring is performed. Hence, if Citizens were to provide adequate sup-port for such an argument and indicate with sound technical reasoning how the difference of application has led - or reasonably could be expected to lead - to differing interpretations of remaining thickness, AmerGen would be required to rebut those arguments.

11 For example, Citizens have expressed concern that the bathtub ring of corro-sion in the sand bed region may lead to a buckling failure between AmerGens performance of scheduled UT measurements, but they have not provided technical support showing that the extant pattern of corrosion can result in such a failure. We would expect the parties to address that issue, including whether the pattern of corrosion existing in the sand bed region - as that pattern may be exacerbated by future corrosion - renders the shell susceptible to buckling failure for which the buckling acceptance criteria was developed, and if not, what criteria (such as a leakage criteria) should apply. Cf. LBP-06-7, 63 NRC 188, 214-15 nn.23 & 24 (2006);

Feb. 9 Order at 21 (concurring opinion of Judge Abramson).

The list of potential ancillary issues identified above may not be panoptic.11 It must be emphasized, however, that the scope of the admitted contention is circumscribed, and we expect the parties will scrupulously endeavor to remain within that scope as they prepare testi-mony for the evidentiary hearing. In this regard, counsel for the NRC Staff previously expressed the expectation that the parties, working together, will be able to narrow the issues included in direct testimony through stipulations... [and, therefore] probably should not be faced with testimony that is all over the place and not focused on the admitted issue (Tr. at 70 (Apr. 11, 2007)). Achievement of this goal will have the salutary effect of conserving resources, promoting efficiency, and avoiding the need for motions in limine. This Board will look with disfavor on further efforts by any party to raise matters that we have indicated - either here or in prior rulings - are outside the scope of this proceeding.

2.

AmerGen Fails to Show the Absence of Genuine Disputes Regarding the Adequacy of the Frequency of UT Measurements it Will Take in the Sand Bed Region of the Drywell Shell AmerGen appears to argue that there is no genuine dispute as to the following material facts: (1) AmerGen has taken corrective action to prevent water from reaching the sand bed region of the drywell shell, thus preventing a corrosive environment in that region (AmerGen Summary Disposition Motion at 16); (2) corrosion of the drywell shell in the sand bed region has been arrested (ibid.); and (3) in light of the remaining thickness of the drywell shell in the sand bed region and the negligible corrosion that may reasonably be expected, the frequency of the 12 AmerGen did not provide a separate statement of material facts, arguing that the simplified process for summary disposition in Subpart L proceedings, 10 C.F.R. § 2.1205, dis-penses with the requirement in section 2.710(a) of providing a separate statement. See Amer-Gen Summary Disposition Motion at 4 n.4. Assuming the correctness of AmerGens argument, we nevertheless observe that, in our view, it is a far better practice if a party seeking summary disposition provides a separate statement. As the Staff observes, where - as here - a movant fails to provide a separate statement of material facts, it may be difficult for parties and this Board to discern material facts that the movant believes are not in dispute and whether particu-lar facts have been controverted (NRC Staff Response at 5 n.11).

UT measurements that will be performed during the period of extended operations is sufficient to ensure an adequate safety margin is maintained (id. at 17-18).12 Accordingly, argues AmerGen, Citizens contention challenging the frequency of UT measurements may be rejected as a matter of law (id. at 19). In support of these arguments, AmerGen submits affidavits that contain the expert opinions of Peter Tamburro, Barry Gordon, and Jon Cavallo, each of whom, for present purposes, we accept as an expert in the area of his respective testimony based on his education, experience, and knowledge. Mr. Tamburro provides a twelve-page affidavit in support of his opinion that (1) Citizens allegation regarding the amount of remaining safety margin lacks merit, and (2) Citizens allegation regarding a future annual corrosion rate lacks merit. See AmerGen Summary Disposition Motion, Affidavit of Peter Tamburro (Mar. 26, 2007).

Mr. Gordon provides a nine-page affidavit in support of his opinion that (1) Citizens allegation regarding the corrosion rate of the epoxy-coated drywell shell lacks merit, and (2) AmerGens frequency of UT measurements is adequate in any event to detect such corrosion before the safety criteria is exceeded. See AmerGen Summary Disposition Motion, Affidavit of Barry Gordon (Mar. 26, 2007). Mr. Cavallo provides a nine-page affidavit in support of his opinion that Citizens allegation regarding the need for additional UT measurements for the epoxy-coated drywell shell lacks merit. See AmerGen Summary Disposition Motion, Affidavit of Jon R.

Cavallo (Mar. 26, 2007).

The NRC Staff supports AmerGens motion for summary disposition (NRC Staff Response at 8-12). Consistent with its position, the Staff submits affidavits that contain the expert opinions of Hansraj Ashar and James Davis, Ph.D., each of whom, for present purposes, we accept as an expert in the area of his respective testimony based on his education, experi-ence, and knowledge. Mr. Ashar provides a four-page affidavit in support of his opinion that, in light of the corrective actions taken by AmerGen since the 1980s, the performance of UT measurements and visual inspections every four years provides reasonable assurance that the drywell shell integrity (and the intended function of the drywell) will be maintained during the period of extended operation (NRC Staff Response, Affidavit of Hansraj G. Ashar at 4 (Apr. 26, 2007)). Dr. Davis provides a five-page affidavit in support of his opinion that Citizens allegation regarding the need for additional UT measurements for the epoxy-coated drywell shell lacks merit. See NRC Staff Response, Affidavit of James A. Davis. Ph.D. (Apr. 26, 2007).

Citizens oppose summary disposition, arguing that genuine issues of material fact continue to underlie their contention that AmerGens plan to conduct UT monitoring every four years is inadequate. In particular, Citizens argue that record evidence supports the conclusions that: (1) AmerGen has, without justification, been inconsistent in applying a local area accep-tance criterion (Citizens Answer at 5-8); (2) AmerGen has been inconsistent in determining the safety margins (id. at 10-13); (3) a corrosive environment exists in the drywell shell, because AmerGen has not devised a way to ensure the refueling cavity does not leak, nor has it defini-tively traced the source of all moisture in the drywell shell to the refueling cavity (id. at 14); (4) appreciable corrosion may occur under the epoxy coating (id. at 13-14); and (5) corrosion -

from both inside and outside the drywell shell - could occur at a rate that is so substantial that it warrants conducting UT monitoring at least every two years (ibid.). In support of their argu-ments opposing summary disposition, Citizens present the expert opinion of Rudolf Hausler, Ph.D., whom, for present purposes, we accept as an expert based on his education, 13 It is well established that a judge ought to be chary about granting requests for summary disposition where it would require the judge to assess the correctness of competing, reasonably supported views embedded in affidavits submitted by the parties experts. See (continued...)

experience, and knowledge. See Citizens Answer, Affidavit of Dr. Rudolf H. Hausler (Apr. 25, 2007). Cf. LBP-06-22, 64 NRC at 242 n.14 (Board previously deemed Dr. Hausler to be quali-fied to provide an expert opinion with regard to matters relating to corrosion of the drywell shell).

We agree with Citizens that summary disposition is not appropriate. At this juncture and on this record, we are unable to conclude as a matter of law that AmerGens UT monitoring plan is sufficient to ensure adequate safety margins during the period of extended operation.

Significant to our decision are the reasonably supported expert opinions provided by the parties. The expert opinions provided by AmerGen and the NRC Staff, on the one hand, aver that AmerGens UT monitoring program is adequate. In contrast, the expert opinion provided by Citizens expert, Dr. Hausler, states that great uncertainty surrounds all of the facts under-lying AmerGens current approach of taking UT measurements once every four years in the sand bed region (Hausler Memorandum at 2). For example, Dr. Hausler explains that, in his professional judgment, serious disputes exist regarding (id. at 1-12): (1) the remaining safety margins; (2) the potential for corrosion under the epoxy coating due to defects in and deteri-oration of the coating, which is - for all intents and purposes - past its useful life; and (3) future corrosion rates.

Viewing the evidence in the light most favorable to Citizens - as we are required to do in the context of considering AmerGens motion (Hunter, 502 U.S. at 233) - we are compelled to conclude that Dr. Hauslers version of the facts and his expert opinion derived therefrom demonstrate the existence of genuine issues regarding the adequacy of AmerGens UT moni-toring program.13 This conclusion mandates the rejection of AmerGens summary disposition 13(...continued) cases cited supra p. 4; Hudson Riverkeeper Fund, Inc. v. Atl. Richfield Co., 138 F. Supp. 2d 482, 488-89 (S.D.N.Y. 2001) (citing cases); Seneca Meadows, Inc. v. EDI Liquidating, Inc., 121 F. Supp. 2d 248, 254 (W.D.N.Y. 2000) (citing cases). That principle applies here. Based on the record before us, we find that AmerGen has failed to demonstrate the absence of a genuine dispute on the litigable issues identified supra pp. 7-9.

14 On a separate procedural note, on May 7, 2007, Citizens filed a response to the NRC Staffs answer to AmerGens request for summary disposition. On May 9, 2007, Amer-Gen moved to strike Citizens response, arguing that it was not authorized by the relevant regu-lation (10 C.F.R. § 2.1205). The NRC Staff filed an answer on May 16, 2007 supporting Amer-Gens motion to strike. The relevant regulatory language and structure, on the one hand, pro-vides some support for the argument advanced by AmerGen and the NRC Staff; on the other hand, we would find it to be contrary to fundamental fairness if the regulations absolutely deprived Citizens of the opportunity to respond to new facts or arguments presented by the Staff in support of AmerGens summary disposition motion. But we need not resolve the issue, because we have concluded - without reference to or reliance on Citizens response - that AmerGens request for summary disposition lacks merit. We therefore dismiss as moot Amer-Gens motion to strike Citizens response to the NRC Staffs summary disposition answer.

motion, because the resolution of factual disputes based on an evaluation of competing expert opinions is not a basis upon which [this Board] may rest in granting a motion for summary

[disposition] (Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006) (quoting George v.

Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005)). To rule otherwise would be to act in derogation of the Supreme Courts admonition that a summary disposition motion by no means authorizes trial on affidavits (Anderson, 477 U.S. at 255).14 15 Copies of this Memorandum and Order were sent this date by Internet e-mail to counsel for: (1) AmerGen; (2) Citizens; (3) the NRC Staff; and (4) New Jersey.

III. CONCLUSION For the foregoing reasons, we: (1) grant in part and deny in part AmerGens motion to strike portions of Citizens Answer opposing AmerGens request for summary disposition (supra Part II.B.1); (2) deny AmerGens request for summary disposition (supra Part II.B.2); and (3) dismiss as moot AmerGens motion to strike Citizens response to the NRC Staffs summary disposition answer (supra note 14).

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD15

/RA/

E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE

/RA by E. Roy Hawkens for/

Dr. Paul B. Abramson ADMINISTRATIVE JUDGE

/RA/

Dr. Anthony J. Baratta ADMINISTRATIVE JUDGE Rockville, Maryland June 19, 2007

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

)

AMERGEN ENERGY COMPANY, LLC

)

Docket No. 50-219-LR

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(Oyster Creek Nuclear Generating Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (DENYING AMERGENS MOTION FOR

SUMMARY

DISPOSITION) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge E. Roy Hawkens, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Anthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Mitzi A. Young, Esq.

Mary C. Baty, Esq.

Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Richard Webster, Esq.

Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 Paul Gunter, Director Reactor Watchdog Project Nuclear Information and Resource Service 1424 16th Street, NW, Suite 404 Washington, DC 20036 Donald J. Silverman, Esq.

Kathryn M. Sutton, Esq.

Alex S. Polonsky, Esq.

Morgan, Lewis, & Bockius LLP 1111 Pennsyvlania Ave., NW Washington, DC 20004

2 Docket No. 50-219-LR LB MEMORANDUM AND ORDER (DENYING AMERGENS MOTION FOR

SUMMARY

DISPOSITION)

Bradley M. Campbell, Commissioner New Jersey Department of Environmental Protection P.O. Box 402 Trenton, NJ 08625-0402 Jill Lipoti, Director New Jersey Department of Environmental Protection Division of Environmental Safety and Health P.O. Box 424 Trenton, NJ 08625-0424 Ron Zak New Jersey Department of Environmental Protection Nuclear Engineering P.O. Box 415 Trenton, NJ 08625-0415 J. Bradley Fewell, Esq.

Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 Suzanne Leta NJPIRG 11 N. Willow St.

Trenton, NJ 08608 John A. Covino, Esq.

Ellen Barney Balint, Esq.

Valerie Anne Gray, Esq.

Caroline Stahl, Esq.

Deputy Attorneys General New Jersey Office of the Attorney General Environmental Permitting &

Counseling Section Division of Law Hughes Justice Complex P.O. Box 093 Trenton, NJ 08625

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 19th day of June 2007