ML090630162
| ML090630162 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 03/02/2009 |
| From: | Baty M C, Harris B G NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-219-LR, RAS H-106 | |
| Download: ML090630162 (8) | |
Text
March 2, 2009 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 RESPONSE TO CITIZENS' MOTION FOR LEAVE TO REPLY TOTHE STAFF'S OPPOSITION TO CITIZENS' MOTION TO REOPEN INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission ("Staff") hereby responds to "Motion For Leave to File a Reply to the NRC Staff's Opposition to Citizens' Motion to Reopen" ("Citizens' Motion")
1 dated February 19, 2009. The Staff submits that Citizens' Motion should be denied, on the grounds the Citizens has not demonstrated that it has met the criteria in 10 C.F.R. § 2.323(c) for a reply. BACKGROUND Citizens requests leave to reply to "NRC Staff's Response in Opposition to Citizens' Motion to Reopen the Record and Postpone Final Disposition of the Licensing Decision"
("Staff's Answer") (Feb. 12, 2009). The Staff's Answer 2 was filed in response to "Motion by [Citizens] to Reopen the Record and to Postpone Final Disposition of the Licensing Decision" (Feb. 2, 2009) ("Motion to Reopen") Citizens claims it could not have anticipated that the Staff 1 "Citizens" comprise 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.
2 Citizens states in footnote 1 that it received the Staff's Answer after 10PM. This appears to be incorrect. The Staff served its answer to Citizens' Motion to Reopen via e-mail at 4:04PM. The Staff did not receive any indication of a transmission error. would 1) "make new factual allegations, including repeating an unverified rumor" and 2) "argue that the [M]otion was untimely", and, therefore, the compelling circumstances contemplated by 10 C.F.R. § 2.323(c) for the filing of replies exist. Motion at 2. However, Citizens fails to satisfy the standard to grant it the opportunity to submit a reply.
DISCUSSION I. Legal Standard Governing Motions for Leave to Reply Section 2.323(c) provides that there is no right to reply to answers to motions, but that permission to file a reply may be granted "only in compelling circumstances, such as where the moving party demonstrates that it could not have reasonably anticipated the arguments to which it seeks leave to reply" (emphasis added). In 2004, the Commission added the "compelling circumstances" standard to its rules governing motions for leave to file replies to answers to motions 10 C.F.R. § 2.323(c).
See Changes to Adjudicatory Process (Final Rule), 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004). Thus, a demonstration of compelling circumstances in a motion for leave to reply should show that manifest injustice would occur in the absence of a reply and that the arguments raised in the reply could not have been raised earlier. II. Citizens Claims of Compelling Circumstances are Unsupported Citizens argues that the Staff's Answer introduced "new allegations" and "unverified rumors," which entitle it to reply and to conduct cross-examination of witnesses under the Administrative Procedure Act ("APA"). Citizens focuses on a single "unverified rumor" in two footnotes of the Staff's Answer, and asserts that the Staff's Answer relied on that "rumor." This is an attempt to create an issue where none exists and thus, is insufficient to justify a reply. In footnote 9 of its Answer, the Staff stated: It has been recently reported but not verified that on November 15, 2008, AmerGen employees found the funnel connected to the Bay 11 poly bottle clogged. These employees removed the clog upon inspection, which resulted in water draining to the poly
bottle.3 The Staff's footnotes expressly stated that the information had not been verified. Moreover, the information was provided in response to Citizens' unverified speculations regarding potential sources of water. Therefore, the Staff's reference to this information is no less probative than Citizens' speculation that the water must have come from a source other than the refueling cavity because the water appeared in the Bay 11 poly bottle when the bay itself was found to be dry.
See, e.g., Motion to Reopen at 4. Furthermore, Citizens' assertion that these two footnotes were used to support the Staff's argument is simply incorrect. The Staff's Answer clearly states that Citizens' Motion to Reopen and Citizens' expert "fail to present any evidence that identifies any alternative plausible source for the water" other than the refueling cavity. See, e.g., Staff's Answer at 10. Citizens was clearly on notice of the Staff's argument and offers scant basis to conclude otherwise. Thus, Citizens' Motion should be denied. III. Citizens' Request for Cross-Examination is Irrelevant Citizens next argues that it should be entitled by right to cross examine witnesses from the Staff and AmerGen. Citizens' assertions and arguments are simply not relevant to the instant motion for leave to reply and are duplicative of arguments Citizens' made in its Motion to Reopen. Furthermore, Citizens assertions regarding its rights under the APA are incorrect. The 3 Staff's Answer at 5 n. 9. The Staff's Answer stated the same information without duplication of the information's source in a later footnote.
Id. at 12 n. 18.
APA does not guarantee a right to cross-examination or an absolute right to rebuttal.
See Citizens' Awareness Network, Inc. v. United States, 391 F.3d 338, 351 (1st Cir. 2004). Moreover, Citizens fails to identify a right to cross-examine witnesses in the context of motions to reopen. The further examination of witnesses is not allowed to support a motion to reopen. Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), CLI-86-1, 23 NRC. 1, 1 (1986) (citing Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-7, 21 NRC 1104, 1106 (1985) (stating that movant's are "not entitled to engage in discovery in order to support [the] motion -. Rather, the issue in each case is whether the available information meets the standards for reopening -."). Citizens fail to show that the compelling circumstances contemplated by 10 C.F.R.
§ 2.323(c) for the filing of replies exist. IV. Citizens' Should Have Anticipated the Timeliness Argument Citizens' argument that it could not anticipate that the Staff would argue that its motion was not timely is not plausible. Citizens has argued in other motions for leave to reply that it could not reasonably anticipate that the Staff would argue that Citizens' Motion was untimely.
4 Citizens' Motion fails to simultaneously assert that it could not have reasonably anticipated that AmerGen would argue in its answer that Citizens' Motion to Reopen was untimely.
See [AmerGen's] Answer to Citizens Motion to Reopen the Record and to Postpone Final Disposition of the Licensing Proceeding (Feb. 11, 2009) at 6 ("AmerGen Answer to Motion to Reopen"). To successfully move to reopen the record, the moving party must demonstrate, 4 See also Motion for Leave to File a Reply to the NRC Staff's Opposition to Citizens' Motion to Reopen at 6 (May 6, 2008);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 at 10 (Jan. 25, 2008).
inter alia, that its motion to reopen is timely. 10 C.F.R. § 2.326(a)(1). Citizens argued that its Motion to Reopen was timely.
See Motion to Reopen at 10-11. Thus, Citizens should have reasonably anticipated that the Staff would argue to the contrary, particularly given that Citizens' Motion was based on information available to Citizens no later than November 17, 2008.
See Staff Answer at 17-19.
See also AmerGen's Answer to Motion for Reopen at 6. In fact, even though AmerGen made essentially the same argument regarding timeliness, Citizens' Motion remains silent as to any need to reply to AmerGen's Answer to Motion to Reopen. Rather than demonstrate that it could not have reasonably anticipated that the Staff would argue its Motion to Reopen was not timely, Citizens simply repeats the same arguments it made in the Motion to Reopen. Citizens duplicates its argument from the Motion to Reopen that the information provided by the Staff's November 6 Commission Notification, AmerGen's November 6 Commission Notification, AmerGen's November 17 Updated Commission Notification, and the Staff's November 17 Preliminary Notification were insufficient notice to trigger Citizens' requirement to timely file its Motion to Reopen. Motion at 5. Compare Motion to Reopen at 11. This is insufficient for granting a motion to reply.
Citizens asserts that they were not notified of the December 23, 2008, exit meeting
concluding the NRC's fall 2008 on-site inspection. However, Citizens fails to establish why the Staff was required to notify Citizens of such exit meeting or why attendance at such a meeting forms a basis to conclude that Citizens could not have anticipated the Staff's timeliness argument. Motion at 2. This assertion is immaterial to whether Citizens should have anticipated the Staff's timeliness argument and does not justify Citizens' failure to act in a timely fashion on the existing information in the Staff's November 6 Commission Notification, AmerGen's November 6 Commission Notification, AmerGen's November 17 Updated Commission Notification, and the Staff's November 17 Preliminary Notification.
See Staff Answer at 17-19 (explaining that Citizens had sufficient information to file its Motion to Reopen as of November 17, 2008). Thus, Citizens' allegation fails to demonstrate that Citizens could not have anticipated the Staff's argument that Citizens' Motion to Reopen was untimely. Consequently Citizens has failed to demonstrate compelling circumstances under 10 C.F.R.
§ 2.323(c).
CONCLUSION For the reasons set forth above, Citizens motion for leave to reply should be denied.
Respectfully submitted, /RA by Brian G. Harris/
Brian G. Harris Mary C. Baty Counsel for NRC Staff
Dated at Rockville, Maryland This 2 nd day of March 2009 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) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S RESPONSE TO CITIZENS' MOTION FOR LEAVE TO REPLY TO THE STAFF'S OPPOSITION TO CITIZENS' MOTION TO REOPEN" 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 2nd day of March 2009.
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: Docketing and Service
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