ML072640363

2007/09/18-AmerGen's Motion in Limine to Exclude Portions of Citizens' Sur-Rebuttal

ML072640363
Person / Time
Site:	Oyster Creek
Issue date:	09/18/2007
From:	Kuyler R AmerGen Energy Co, Exelon Corp, Morgan, Morgan, Lewis & Bockius, LLP
To:	Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, ASLBP 06-844-01-LR, RAS 14152
Download: ML072640363 (6)

Text

PfV5 JLj5_91-DOCKETED USNRC September 19, 2007 (8:00am)OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: E. Roy Hawkens, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta)In the Matter of: ))AmerGen Energy Company, LLC ))(License Renewal for Oyster Creek Nuclear )Generating Station) )))September 18, 2007 Docket No. 50-219 AMERGEN'S MOTION IN LIMINE TO EXCLUDE PORTIONS OF CITIZENS' SUR-REBUTTAL I. INTRODUCTION In accordance with 10 C.F.R. §§ 2.1204, 2.323 and 2.337, and the Atomic Safety and Licensing Board's ("Board")

Orders of April 19, 2006,' April 17, 2007. and September 12, 2007,3 AmcrGcn Energy Company, LLC ("AmerGen")

hereby moves to have the Board accord no weight to one section of "Citizens' 4 Reply to AmerGen and NRC Staff Rebuttal Testimony," dated September 14, 2007 ("Citizens' Sur-rebuttal"), and to exclude portions of the "Pre-Filed Sur-Rebuttal Written Testimony of Dr. Rudolf H. Hausler Regarding Citizens' Drywell Memorandum and Order (Prehearing Conference Call Summary. Initial Scheduling Order. and Adminislrative Directives) (unpublished).

Memorandum and Order (Prehearing Conference Call Summary. Case Management Directives.and Final Scheduling Order) (unpublished)

("April 17 Order").Memorandum and Order (Hearing Directives) (unpublished)

("Sept. 12 Order")."_Citizens" are: Nuclear Information and Resource Service: Jersey Shore Nuclear Watch. Inc.: Grandmothers.

Mothers and More tfr Energy Safety: New Jersey Public Interest Research Gro¢up" New Jersey Sierra Club;and New Jersey Environmental Federation.-reAA i-/I--T -ý 5 -C ( -L --y-o Contention" ("Testimony");

and Citizens' Exhibit 61 ("Memorandum from R. Hausler to R.Webster re: Further Discussion of the External Con-osion on the Drywell Shell in the Sandbed Region").5 Specifically, the Board must exclude or accord such information no weight because Citizens have submitted new material that does not respond to material in ArnerGen's or the Staff's Rebuttal Testimony, Brief, or associated rebuttal exhibits.

These portions of Citizens'Sur-rebuttal amount to a second "bite at the apple" of rebuttal testimony, deprive AmerGen and the Staff of the opportunity to respond, and defy this Board's directions regarding rebuttal testimony:

the parties' responses should not "advance any new affirmative claims or arguments that reasonably should have been, but were not, included in the party's previously-filed" submittals.6-1I. ARGUMENT A. Citizens' Arguments Addressin2 the "24 Calc" Citizens' sur-rebuttal Testimony and Exhibit 61 (an additional memorandum from Dr.Hausler) present a variety of responses to information in the "24 Calc.," revision 2, Applicant's Exhibit 16. AmerGen submitted this exhibit with its direct testimony.

Thus, any responses from Citizens should have been filed with their rebuttal testimony.

Citizens' inclusion of these new arguments at this late date deprives AmerGen and the Staff of the opportunity to respond and defies the Board's directives regarding the scope of responsive filings.5 In its Sept. 12 Order at 2 (unpUblished), the Board directed Citizens to "redact- from their testimony material that the Board had ruled to be inadmissible, but Citizens' written statements are not evidence, so inadmissible portions should be accorded "nno weight." hi. at I: see a/.Lo id. at 2 n.2.April 17 Order at 6. Counsel for AmerGen has consulted with Citizens*

and NRC Staff counsel in accordance with I0 C.F.R. § 2.323(a).

Counsel for Citizens does not concur with this motion. NRC Staff counsel indicated that the Staff concurs with Argument "'B' in this motion, but that the Staff would respond as appropriate after review of Argument ".A."

In "A7" of Citizens' sur-rebuttal Testimony, Dr. Hausler offers a variety of allegations about "'AmerGen's latest analysis," but he uses this phrase to describe the 24 Calc.. revision 2, not any analysis in AnmerGen's rebuttal testimony.

Similarly, in Sections II and III, Dr. Hausler criticizes "Mr. Tainburro's evaluation" of the external UT measurements in the 24 Calc., without any reference, discussion, or response to AmerGen's or the Staff's rebuttal submittals.

For these reasons, the Board must exclude "A7" in Citizens' sur-rebuttal Testimony, and Section II and Section III of Citizens' Exhibit 61.B. Citizens' "Additional Response to Board Ouestion 11(a)" Apparently unsatisfied with their response to the Board's Question 1 (a), Citizens now shoehorn a second answer in Section I of their sur-rebuttal statement, without any reference or response to the rebuttal submittals of the other parties. Citizens attempt to mask their impermissible new arguments by referencing alleged "questions" that the Board "still" has regarding the "issue of confidence and reasonable assurance.'"2 The Board's question on this topic specifically asked for the Staff to discuss the "reasonable assurance standard that [the Staff]has used in matters involving measurements of parameters that are at issue in license renewal proceedings

.... ." Citizens' "response" offers the Board Citizens' interpretation of a wide range of case law on toxic tort litigation and the interpretation of DNA evidence, in an effort to convince the Board to apply this irrelevant body of case law to NRC proceedings.

Thus, this material shoutld also be accorded no weight because it not responsive to the other parties' rebuttal submittals, and because it is irrelevant.

Sept. 12 Order at 3-4 (.emphasis added). The Order does note that. iltlo the extent AmerGen or Citizens believe they have an expert who can contribute relevant information on this matter, they should be prepared to have their expert testif.'" Id. at 4 (emphasis added). Citizens' legal essay on judicial case law from other contexts utterly fails to respond to the Board's request for additional expert testimony on this narrow topic.3 For these reasons, the Board should accord no weight to Section I of the "Argument" in Citizens' Sur-rebuttal.

III. CONCLUSION Because Citizens' Stir-rebuttal.

Testimony, and Exhibit 61 impermissibly present new arguments for the first time on sur-rebuttal, the Board should accord no weight to the section of Citizens' Sur-rebuttal identified in this Motion, and should exclude portions of Citizens'Testimony and Exhibit 61 identified in this Motion.Respectfully submitted,/Donald J. Silverman, Esq.Kathryn M. Sutton, Esq.Alex S. Polonsky, Esq.Raphael P. Kuyler,. Esq.MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.Washington, DC 20004 Phone: (202) 739-5502 (Isitverman

@ rnort-a,,lewis.com ksutton g@) znorganlewis.corn apolohskyQ) morg "anlewis.com rkiytlcr@

morgan lewis.corn J. Bradley Fewell. Esq.Associate General Counsel Exelon Corporation 4300 Warrenville Road Warrenville, IL 60555 Phone: (630) 657-3769 Bradley. Fewel I @0excloncorp.coin Dated in Washington, D.C. COUNSEL FOR AMERGEN ENERGY this 18th day of September 2007. COMPANY, LLC 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: E. Roy Hawkins, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta)In the Matter of: ))AmerGen Energy Company, LLC ))(License Renewal for Oyster Creek Nuclear )Generating Station) )).)September 18, 2007 Docket No. 50-219 CERTIFICATE OF SERVICE I hereby certify that copies of "AmerGen's Motion in Limine to Exclude Portions of Citizens' Stir-rebuttal" were served this day upon the persons listed below, by E-mail and first class mail, unless otherwise noted Secretary of the Commission*

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

gov)Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop -T-3 F23 U.S. Nuclear Regulatory Commission Washington.

D.C. 20555-0001 (E-mail pha@iirc.gov

)Administrative Judge E. Roy Hawkens, Chair Atomic Safety and Licensing Board Oanel Mail Stop -T-3 F23 U.S. Nuclear regulatory Commission Washington, D.C. 20555-0001 (E-mail: erh@jirc.gyov)

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

John A. Covino Office of Commission Appellate**

Valerie Anne Gray Adjudication Division of Law U.S. Nuclear Regulatory Commission Environmental Permitting and Counseling Section Washington, DC 20555-0001 Hughes Justice Complex Trenton, NJ 08625 (E-mail: john.covino@

dol.lps.state.ni.us)(E-mail: valerie. gray@dol.lps.state.ni.us)

Mitzi A. Young Mary C. Baty Office of the General Counsel Mail Stop -T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: rnay@ nrc.gov)(E-mail: incbl @nrc.gov)Paul Gunter Kevin Kamps Beyond Nuclear 6930 Carroll Ave.Suite 400 Takoma Park, MD 20912 (E-mail: paul@beyondnuclear.org)(E-mail: kevin @bevondnuclear.org)

Richard Webster Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 (E-mail: rwebster@

kinoy.rutgcrs.edu)

Suzanne Leta NJPIRG 11 N. Willow St.Trenton, NJ 08608 (E-mail: slcta@)niprig.org)

Debra Wolf Law Clerk Atomic Safety and Licensing Board Panel Mail Stop- T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: (law I @nrc.gov)** *Original and 2 copies First Class Mail only Ral ael P. Vyler, Esq.