ML061040317

Oyster Creek - NRC Staff'S Brief in Opposition to Appeal from LBP-06-07

ML061040317
Person / Time
Site:	Oyster Creek
Issue date:	04/10/2006
From:	Hodgdon A, Patrick Moulding NRC/OGC
To:	NRC/OCM
Hodgdon, Ann P. 415-1797
References
50-219-LR, ASLBP 06-844-01-LR, LBP-06-07, RAS 11520
Download: ML061040317 (20)

Text

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 STAFFS BRIEF IN OPPOSITION TO APPEAL FROM LBP-06-07 Ann P. Hodgdon Patrick A. Moulding Counsel for NRC Staff April 10, 2006

TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Legal Standard for Interlocutory Appeal of Licensing Board Order Granting a Petition to Intervene or Request for a Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Legal Standards for the Admission of Contentions . . . . . . . . . . . . . . . . . . . . . . 3 C. License Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. The Licensing Board was Correct in Finding Contention 1 Inadmissible . . . . . . 5 B. The Licensing Board was Correct in Finding Contention 2 Inadmissible . . . . . . 7 C. The Licensing Board was Correct in Finding Contention 3 Inadmissible . . . . . . 9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

-ii-TABLE OF AUTHORITIES Page ADMINISTRATIVE DECISIONS Commission:

Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Dominion Nuclear Conn., Inc. (Millstone Power Station, Unit 3),

CLI-02-27, 56 NRC 367 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),

CLI-02-24, 56 NRC 335 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358 (2002) . . . . . . . . . . . . . . . . 6 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3),

CLI-99-11, 49 NRC 328 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195 (2003) . . . . . . . . . . . . . . 4 Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-01-17, 54 NRC 3 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-02-25, 56 NRC 340 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-99-10, 49 NRC 318 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning),

CLI-01-02, 53 NRC 9 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Atomic Licensing Appeal Board:

Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

-iii-Page Atomic Safety and Licensing Board:

Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

LBP-06-07, 63 NRC __ (February 27, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),

LBP-01-35, 54 NRC 403 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Louisiana Energy Services, L.P., LBP-04-14, 60 NRC 40 (2004) . . . . . . . . . . . . . . . . . . . . . . . 4 Nuclear Management Co., LLC (Palisades Nuclear Plant),

LBP-06-10, 63 NRC __, slip op. (March 7, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 REGULATIONS 10 C.F.R. Part 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 10 C.F.R. § 2.309(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 10 C.F.R. § 2.309(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 6, 8, 10 10 C.F.R. § 2.311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 10 C.F.R. § 2.311(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3 10 C.F.R. § 50.55a(g)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 10 C.F.R. § 50.59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 C.F.R. § 54.21(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 C.F.R. § 54.21(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 C.F.R. § 54.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

-iv-Page FEDERAL REGISTER Changes to Adjudicatory Process [Final Rule], 69 Fed. Reg. 2182 (Jan. 14, 2004) . . . . . . . . . 4 Design Basis Threat, 70 Fed. Reg. 67,380 (Nov. 7, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Industry Codes and Standards; Amended Requirements, 64 Fed. Reg. 51,370, 51,381 (Sept. 22, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License DRP-16 for an Additional 20-Year Period.

70 Fed. Reg. 54,585 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

[Final Rule], Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

April 10, 2006 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 STAFFS BRIEF IN OPPOSITION TO APPEAL FROM LBP-06-07 INTRODUCTION Pursuant to 10 C.F.R. § 2.311(a), the staff of the Nuclear Regulatory Commission (Staff) hereby files its brief in opposition to the New Jersey Department of Environmental Protections (Petitioners or NJDEPs) appeal from the decision of the Atomic Safety and Licensing Board (Board), LBP-06-07, which, inter alia, denied Petitioners hearing request and petition to intervene. As discussed below, the Board properly found that NJDEP had not proffered an admissible contention, and, accordingly, the Commission should uphold that portion of the Boards Order that denies NJDEPs request for hearing and petition to intervene.

STATEMENT OF THE CASE This case arises from the July 22, 2005 application by AmerGen Energy Company, LLC (AmerGen) to renew its operating license for Oyster Creek Nuclear Generating Station (Oyster Creek). See Letter from C.N. Swenson, Site Vice President, Oyster Creek Nuclear Generating Station [OCNGS], to U.S. NRC (July 22, 2005) (Agencywide Documents and Access Management System (ADAMS) Accession No. ML052080172). On September 15, 2005, the NRC published a Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License DRP-16 for an

Additional 20-Year Period. 70 Fed. Reg. 54,585 (2005). On November 14, 2005, NJDEP filed its Request for Hearing and Petition for Leave to Intervene (NJDEP Petition).

Subsequently, this Board was established to preside over the proceeding. See Establishment of Atomic Safety and Licensing Board, dated December 9, 2005. On December 12, 2005, AmerGen filed its answer to NJDEPs Petition to Intervene, as did the Staff.1 NJDEP did not file a reply to either the AmerGen or Staff answer. Subsequently, the parties filed simultaneous supplemental briefs in response to two Board orders.2 Following these briefs, the Board, on February 27, 2006, issued an order that, among other things, denied NJDEPs request for hearing and petition to intervene, finding that NJDEP had not proffered an admissible contention. See Memorandum and Order (Denying New Jerseys Request for Hearing and Petition to Intervene, and Granting NIRSs Request for Hearing and Petition to Intervene), LBP-06-07, 63 NRC __ (February 27, 2006).

STATEMENT OF THE ISSUES The Commission should sustain the Boards decision denying admission of NJDEPs proposed Contention 1, regarding the adequacy of AmerGens severe accident mitigation alternatives (SAMA) analysis; proposed Contention 2, concerning metal fatigue and AmerGens use of a cumulative usage factor (CUF); and proposed Contention 3, pertaining to AmerGens agreement with a third party to maintain combustion turbines.

1 See AmerGens Answer Opposing NIRS et al. Request for Hearing and Petition to Intervene, dated December 12, 2005 (AmerGen Answer); NRC Staff Answer to [NJDEP] Request for Hearing and Petition to Intervene, dated December 12, 2005 (Staff Answer).

2 On January 17, 2006, NJDEP, AmerGen, and the NRC Staff each filed a supplemental brief concerning, inter alia, the issue of combustion turbines (NJDEP Turbine Brief, AmerGen Turbine Brief, and Staff Turbine Brief, respectively) in response to a January 10, 2006 Order (Directing Supplemental Briefing on Hearing Requests) (Supplemental Briefing Order). Subsequently, on January 30, 2006, NJDEP, AmerGen, and the NRC Staff each filed a supplemental brief on the issue of cumulative usage factor (NJDEP CUF Brief, AmerGen CUF Brief, and Staff CUF Brief, respectively) in response to a January 23, 2006 Order (Directing Supplemental Briefing on Hearing Requests)

(Supplemental Briefing Order).

LEGAL STANDARDS A. Legal Standard for Interlocutory Appeal of Licensing Board Order Granting a Petition to Intervene or Request for a Hearing Pursuant to 10 C.F.R. § 2.311(c), an order granting a petition to intervene and/or request for hearing may be appealed by a party other than the requestor/petitioner on the question as to whether the request/petition should have been wholly denied. In considering an appeal raised pursuant to section 2.311(c) (formerly, 2.714a(c)), the Commission may consider all the points of error raised on appeal, rather than simply whether the petition should have been wholly denied. See Sequoyah Fuels Corp. (Gore, Oklahoma Site Decommissioning),

CLI-01-02, 53 NRC 9, 19 (2001); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-869, 26 NRC 13, 25-27 (1987).

B. Legal Standards for the Admission of Contentions To gain admission to a proceeding as a party, a petitioner for intervention, in addition to establishing standing, must proffer at least one contention that satisfies the admissibility requirements of 10 C.F.R. § 2.309(f). See 10 C.F.R. § 2.309(a). See also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-99-11, 49 NRC 328, 333 (1999). For a contention to be admissible, the petitioner must satisfy the following six requirements:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the . . . petitioners position on the issue and on which the petitioner intends to rely at the hearing, together with references to the specific sources and documents on which the . . . petitioner intends to rely to support its position on the issue; and

(vi) Provide sufficient information to show that a genuine dispute exists with the . . .

licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.

10 C.F.R. § 2.309(f)(1)(i)-(vi). These contention requirements are strict by design. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001). A contention that fails to comply with any of these requirements will not be admitted for litigation. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999); Changes to Adjudicatory Process [Final Rule], 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004). The petitioner must do more than submit bald or conclusory allegations of a dispute with the applicant. Millstone, CLI-01-24, 54 NRC at 358.

There must be a specific factual and legal basis supporting the contention. Id. at 359.

A contention will not be admitted if it is based only on unsupported assertions and speculation.

See Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003). If a petitioner fails to provide the requisite support for its contentions, then a Licensing Board may neither make factual assumptions that favor the petitioner, nor supply information that is lacking. Louisiana Energy Services, L.P. (National Enrichment Facility), LBP-04-14, 60 NRC 40, 56 (2004) (citing Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 422 (2001)).

C. License Renewal The scope of technical issues that may be considered in a license renewal proceeding is limited by 10 C.F.R. Part 54. See Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 6-10 (2001); Nuclear Management Co.,

LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC __, slip op. at 25-28 (March 7, 2006); [Final

Rule], Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995).

The focus of Part 54 safety review is on the detrimental effects of aging on the functionality of certain systems, structures, and components in the period of extended operation. 60 Fed.

Reg. at 22,464. As the Commission has explained, license renewal review focuses on plant systems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation.

Turkey Point, CLI-01-17, 54 NRC at 10 (citing 60 Fed. Reg. at 22,469) (alteration in CLI-01-17).

In contrast, issues relating to a plants current licensing basis are ordinarily beyond the scope of a license renewal review, because those issues already [are] monitored, reviewed, and commonly resolved as needed by ongoing regulatory oversight. Id. at 8. The current licensing basis is defined in § 54.3(a) and includes the various Commission requirements and the licensees written commitments applicable to a particular plant that are docketed and in effect. See 10 C.F.R. § 54.3. Therefore, a contention that does not raise a genuine dispute of fact or law with respect to the detrimental effects of aging during the period of extended operation has not demonstrated that it is within the scope of license renewal and therefore, necessarily, has not raised an issue material to license renewal.

DISCUSSION A. The Licensing Board was Correct in Finding Contention 1 Inadmissible As the Licensing Board correctly found, Petitioners proposed contention concerning the adequacy of AmerGens SAMA analysis (Contention 1") was inadmissible. The Board concluded that the contention failed to satisfy several of the Commissions 10 C.F.R.

§ 2.309(f)(1) contention criteria. Although failure to meet any of the § 2.309(f)(1) criteria would render the contention inadmissible, the Board determined that NJDEPs SAMA contention was deficient on several separate grounds as well. The Board found that the contention was outside the scope of the proceeding; lacked materiality; lacked proper basis, support, and specificity;

and failed to establish a genuine dispute on a material issue of law or fact. See 10 C.F.R.

§ 2.309(f)(1)(i)-(vi); LBP-06-07, at 15.

Petitioners appeal does not cite the Commissions detailed contention standards.

Indeed, nothing in the appeal appears to respond to, much less overcome, the Boards conclusions concerning Contention 1s failure to demonstrate materiality; basis, support, and specificity; or a genuine dispute on a material issue of law or fact. See 10 C.F.R.

§ 2.309(f)(1)(i),(ii), (iv)-(vi). For that reason alone, Petitioner has failed to identify a basis for reversing the Boards decision on Contention 1.

Instead, NJDEPs argument concerning Contention 1 appears to contest only the Boards conclusion that the contention was not within the scope of the proceeding. NJDEP argues that the AmerGens SAMA analysis is deficient (1) because it does not address the consequences of terrorist air attacks; (2) because it does not address the consequences of the vulnerability of the spent fuel pool; and (3) because it is not based on long-term compensatory security measures. Petitioners Appeal, at 8-24. LBP-06-07, at 10-15. However, as the Board succinctly explained, these NJDEP arguments have already been thoroughly examined and rejected by the Commissions regulations and prior adjudicatory decisions.

First, to the extent Petitioner is demanding consideration of terrorist attacks (whether in the context of aircraft attacks or spent fuel pool vulnerability) as part of the license renewal review,[t]he Commission repeatedly and unequivocally has ruled that the effects of terrorist attacks need not be considered under NEPA. LBP-06-07, at 10; see Duke Energy Corp.

(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358 (2002). See also, Dominion Nuclear Conn., Inc. (Millstone Power Station, Unit 3),

CLI-02-27, 56 NRC 367 (2002); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340 (2002); Duke Cogema Stone & Webster (Savannah River

Mixed Oxide Fuel Fabrication Facility), CLI-02-24, 56 NRC 335 (2002). See also Staff Answer, at 8-10.

Second, to the extent that Petitioner is challenging AmerGens SAMA analysis for failing to look at design basis accidents for spent fuel pools (see Petition at 4-5), the Board correctly stated that this challenge is precluded by regulation. LBP-06-07, at 12. On-site spent fuel is a Category 1 issue (see 10 C.F.R. Part 51, Subpt. A, App. B) that the Commission has resolved generically for all plants. See Turkey Point, CLI-01-17, 54 NRC at 15, 20-24; Oconee, CLI-99-11, 49 NRC at 343-44; LBP-06-07, at 12.

Finally, to the extent NJDEP is seeking to require AmerGen to implement long-term compensatory security measures, the Board acknowledged the Commissions ongoing rulemaking proceedings concerning this precise issue. See LBP-06-07, at 14-15; Design Basis Threat, 70 Fed. Reg. 67,380 (Nov. 7, 2005). Because the Commission has instructed its licensing boards to refrain from admitting contentions that are the subject of general rulemaking, the Board properly found NJDEPs contention to be beyond the scope of this proceeding. See LBP-06-07, at 14-15; Oconee, CLI-99-11, 49 NRC at 345.

Inasmuch as NJDEP has failed to establish that its Contention 1 is admissible in this proceeding in light of Commission regulations and precedent, and because the Board properly concluded that the contention failed to meet several admissibility requirements (including some not addressed by Petitioners appeal), the Commission should uphold the Boards dismissal of Contention 1.

B. The Licensing Board was Correct in Finding Contention 2 Inadmissible As the Licensing Board correctly found, Petitioners contention concerning the licensees use of a cumulative usage factor (CUF) of 1.0 rather than 0.8 (Contention 2") was inadmissible. The Board properly concluded that the contention failed to satisfy two elements of the Commissions 10 C.F.R. § 2.309(f)(1) contention standards: (1) because the contention

was unsupported as a matter of law or fact and (2) because the contention failed to show the existence of a genuine dispute regarding a material issue. LBP-06-07, at 19; see 10 C.F.R.

§ 2.309(f)(1)(v), (vi).3 In its proposed contention, NJDEP alleged that 10 C.F.R. § 50.55a(c)(4) requires the licensee to apply the more restrictive CUF of 0.8 specified by the [standards in the American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code)]

that were required at the time the plants construction permit was issued. NJDEP Petition, at 6.

Petitioner also contended that AmerGens use of a CUF of 1.0 exceeds the current licensing basis (CLB) in violation of 10 C.F.R. § 54.21(a)(3). Id. at 7.

However, Petitioners understanding of the Commissions regulations is mistaken.

First, as the Board recognized, 50.55a(c)(4) does not impose an inexorable requirement that AmerGen forever use the standards embodied in the ASME Code in effect at the time its construction permit was issued[.] LBP-06-07, at 17. In fact, the regulation gives the licensee the option to voluntarily update to a later permissible version of the ASME Code, if that version has been endorsed in 10 C.F.R. § 50.55a. Id.; see also Industry Codes and Standards; Amended Requirements, 64 Fed. Reg. 51,370, 51,381 (Sept. 22, 1999). The portion of the ASME Code referenced by the licensee in the LRA relevant to the CUF has been so endorsed.

LBP-06-07, at 17; see also 10 C.F.R. § 50.55a(g)(4); 64 Fed. Reg. at 51,386.

The Board also properly rejected the Petitioners construction of 10 C.F.R. § 54.21(a)(3) concerning the CLB. NJDEP argues that because the licensees current CLB is a CUF of 0.8,

§ 54.21(a)(3) requires the licensee to maintain that CUF through the period of extended operation. NJDEP Petition, at 7. However, as the Board explained, § 54.21(a)(3) simply requires the licensee to demonstrate that the intended functions of the relevant components 3

As with Petitioners discussion of Contention 1, Petitioners Contention 2 argument again does not even mention the Commissions 10 C.F.R. § 2.309(f)(1) contention standards; Petitioner therefore does not make clear precisely which element of the Boards analysis it disputes.

will be maintained consistent with the CLB for the period of extended operation. LBP-06-07, at 18-19 (quoting 10 C.F.R. § 54.21(a)(3)).4 Because AmerGen had already formally committed to update its CLB to reflect the CUF of 1.0 prior to the period of extended operation, the Board was correct in finding that AmerGen had demonstrated that a CUF of 1.0 would be the CLB at the time of extended operation; therefore, the licensees commitment comports with the regulation. Id. at 19; see also AmerGen Exh. 1, at 3.

In its appeal, Petitioner further claims that AmerGens commitment to update its CLB is flawed because 10 C.F.R. § 50.55a(a)(3) requires Commission approval of such a Code update before it can become effective. Petitioners Appeal, at 24-26. However, no such approval is required where the updated version of the Code has already been endorsed by Commission regulation; such updating is a matter of the licensees option and, therefore, as the Board concluded, a docketed commitment is sufficient demonstration for the purposes of 10 C.F.R.

§ 54.21(a)(3). LBP-06-07, at 19.5 Inasmuch as NJDEP failed to establish that its Contention 2 is admissible in this proceeding, and because the Board correctly determined that NJDEPs Contention 2 was unsupported as a matter of law or fact and failed to raise a genuine dispute regarding a material issue, the Commission should uphold the Boards dismissal of Contention 2.

C. The Licensing Board was Correct in Finding Contention 3 Inadmissible As the Licensing Board correctly determined, Petitioners contention concerning AmerGens Interconnection Agreement with a third party (First Energy) to operate the Forked River combustion turbines (FRCTs) (Contention 3"), was inadmissible. AmerGen relies on 4

The Commissions regulations explicitly contemplate changes to the CLB during the license renewal review process. See 10 C.F.R. § 54.21(b); see also Staff CUF Brief, at 3-4.

5 For a licensee to use a different version of the Code, it needs to perform an evaluation pursuant to 10 C.F.R. § 50.59. Such evaluations are subject to Staff review and Staff action, if appropriate.

the FRCTs to satisfy 10 C.F.R. § 50.63, which requires an alternate source of alternating current (AC) power for Oyster Creek in the event of a station blackout (SBO). LBP-06-07, at 20. In its proposed contention, NJDEP alleged that the Interconnection Agreement improperly fails to assure that:

1) First Energy will continue to operate the FRCTs during the extended period of operation;

2) the FRCTs will be maintained in compliance with the licensees aging management plan; and

3) any problems First Energy encounters with the FRCTs will be entered into a corrective action program that satisfies 10 C.F.R. Part 50, Appendix Bs quality assurance requirements. NJDEP Petition, at 9.

The Board concluded that Contention 3 failed to satisfy several elements of the Commissions 10 C.F.R. § 2.309(f)(1) contention standards: the contention lacked adequate basis, was unsupported by facts or expert opinion, and failed to show the existence of a genuine dispute regarding a material issue. LBP-06-07, at 21-24; see 10 C.F.R.

§ 2.309(f)(1)(ii), (v)-(vi). Petitioner appears to appeal the Boards dismissal of the contention solely with respect to the issue of whether AmerGen had provided for First Energys compliance with the FRCT aging management plan.6 Petitioners Appeal, at 26-27.

As the Board explained, NJDEP articulated no grounds to believe either that the aging management plan for the FRCTs is inadequate or that First Energy will not comply with it.

LBP-06-07, at 22-23.

Further, although Petitioners appeal devotes much attention to its supposed lack of access to the Interconnection Agreement, see Petitioners Appeal at 28-30, the commitments involved in the aging management plan were discussed in the LRA as well as in AmerGens 6

Petitioner does not appear to challenge the Boards conclusion that Petitioner failed to demonstrate the admissibility of its contention on the issues of 1) continued operation of the FRCTs (see LBP-06-07, at 20-22) or 2) the applicability of a corrective action program (see id. at 24-25). .

Response to a Staff Request for Additional Information (RAI Response).7 See Staff Answer, at 21; Staff Turbine Brief, at 9. Although the RAI Response was publicly available when NJDEP framed its contention, NJDEP did not take issue with any of the factual assertions in the RAI Response or, in fact, even mention the RAI Response. Id. In effect, Contention 3 relies on unsupported speculation that, despite AmerGens confirmation that the Interconnection Agreement requires First Energy to implement the aging management plan,8 First Energy might nevertheless fail to do so. NJDEP does not explain why AmerGens confirmation that the Interconnection Agreement commits First Energy to implement the aging management plan is insufficient to demonstrate that the aging management plan will in fact be performed as proposed.

In short, Petitioners contention fails to reference any factual grounds for disagreement with the aging management plan or AmerGens assertions about its implementation. Therefore, the Board correctly found Contention 3 inadmissible because it lacked an adequate basis, was unsupported by facts or expert opinion, and failed to show the existence of a genuine dispute regarding a material issue. Consequently, the Commission should uphold the Boards dismissal of Contention 3.

7 See Response to NRC Request for Additional Information (RAI 2.5.1.19-1), dated September 28, 2005, Related to Oyster Creek Generating Station License Renewal Application, dated October 12, 2005 (ADAMS Accession No. ML052910091); see also Oyster Creek LRA at section 2.5.1.19.

8 (and allows AmerGen to oversee the implementation)

CONCLUSION As stated above, the Board was correct in finding all three of NJDEPs contentions inadmissible. Therefore, the Commission should deny Petitioners appeal of LBP-06-07.

Respectfully submitted,

/RA/

Ann P. Hodgdon Patrick A. Moulding Counsel for NRC Staff Dated at Rockville, Maryland this 10th day of April, 2006

April 10, 2006 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR

)

(Oyster Creek Nuclear Generating Station) )

NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney enters an appearance in the above-captioned matter. In accordance with 10 C.F.R. § 2.314(b), the following information is provided:

Name: Patrick A. Moulding Address: U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 Telephone Number: 301-415-2549 Fax: 301-415-3725 E-mail Address: PAM3@nrc.gov Admissions: State of Maryland Name of Party: NRC Staff Respectfully submitted,

/RA/

Patrick A. Moulding Counsel for NRC Staff Dated at Rockville, Maryland

this 10th day of April 2006 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 the NRC STAFFS BRIEF IN OPPOSITION TO APPEAL FROM LBP-06-07 and NOTICE OF APPEARANCE of Patrick A. Moulding in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system as indicated by an asterisk, or by electronic mail, with copies by U.S. mail, first class, as indicated by double asterisk, this 10th day of April, 2006.

E. Roy Hawkens, Chair* Office of the Secretary*

Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 HEARINGDOCKET@nrc.gov ERH@nrc.gov Office of Commission Appellate Anthony J. Baratta* Adjudication*

Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3F23 OCAAMail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Debra Wolf*

AJB5@nrc.gov Law Clerk Atomic Safety and Licensing Board Paul B. Abramson* Mail Stop: T-3F23 Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3F23 DAW1@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Lisa P. Jackson, Acting Commissioner**

PBA@nrc.gov New Jersey Department of Environmental Protection P.O. Box 402 Trenton, NJ 08625-0402 Lisa.Jackson@dep.state.nj.us

Jill Lipoti, Director** Alex S. Polonsky, Esq.**

New Jersey Department of Morgan, Lewis & Bockius LLP Environmental Protection 1111 Pennsylvania Ave., N.W.

Division of Environmental Safety and Health Washington, DC 20004 P.O. Box 424 apolonsky@morganlewis.com Trenton, NJ 08625-0424 Jill.Lipoti@dep.state.nj.us Paul Gunter, Director**

Reactor Watchdog Project Kathryn M. Sutton, Esq.** Nuclear Information Morgan, Lewis & Bockius LLP And Resource Service 1111 Pennsylvania Ave., NW 1424 16th Street, NW, Suite 404 Washington, DC 20004 Washington, DC 20036 ksutton@morganlewis.com pgunter@nirs.org Ron Zak** J. Bradley Fewell, Esq.**

New Jersey Department of Exelon Corporation Environmental Protection 200 Exelon Way, Suite 200 Nuclear Engineering Kennett Square, PA 19348 P.O. Box 415 bradley.fewell@exeloncorp.com Trenton, NJ 08625-0415 Ron.Zak@dep.state.nj.us John A. Covino, Esq.**

Valerie Anne Gray, Esq.

Suzanne Leta** Deputy Attorneys General New Jersey Public Interest Research Group Division of Law 11 N. Willow St. Environmental Permitting and Counseling Trenton, NJ 08608 Section sleta@njpirg.org Hughes Justice Complex Trenton, NJ 08625 Donald Silverman, Esq.** john.covino@dol.lps.state.nj.us Morgan, Lewis, & Bockius LLP Valerie.Gray@dol.lps.state.nj.us 1111 Pennsylvania Avenue, NW Washington, DC 20004 Richard Webster, Esq.**

dsilverman@morganlewis.com Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 rwebster@kinoy.rutgers.edu

/RA/

Ann P. Hodgdon Counsel for NRC Staff