ML072140108
| ML072140108 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 08/01/2007 |
| From: | Baty M NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| M C Baty, OGC,301-415-1324 | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 13952 | |
| Download: ML072140108 (6) | |
Text
August 1, 2007 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) )
NRC STAFF ANSWER TO AMERGENS MOTION IN LIMINE REGARDING CITIZENS INITIAL PRESENTATION INTRODUCTION Pursuant to the Memorandum and Order (Prehearing Conference Call Summary, Case Management Directives, and Final Scheduling Order) (April 17, 2007) (unpublished) (April 17 Order), at 5, the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby answers AmerGens Motion in Limine to Exclude Portions of Citizens1 Initial Written Submission (July 27, 2007) (Motion). For the reasons set forth below, the Staff supports AmerGens motion, in large part.
DISCUSSION AmerGen requests that the Board exclude portions of Citizens Initial Statement Regarding Relicensing of Oyster Creek Nuclear Generating Station (July 20, 2007) (Citizens Statement), the Pre-filed Direct Testimony of Dr. Rudolph H. Hausler (Testimony), and Citizens Exhibits 12 and 13, as well as exclude the entirety of Citizens Exhibits 26, 27 and 36 in accordance with 10 C.F.R. § 2.337(a). See Motion at 1-2. As grounds for its Motion, AmerGen argues that (1) Dr. Hausler is not expert in statistical analysis or in epoxy coating systems, (2) Citizens seek to litigate issues outside the scope of the admitted contention, 1
The six organizations--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--are collectively referred to as Citizens.
(3) Citizens present speculation and unsupported statements that are not reliable, and (4) Dr. Hauslers testimony includes impermissible attachments. See Motion at 2.
AmerGens motion is well grounded. The issue in this proceeding is, given the uncertain corrosive environment and the corrosion rate, whether the frequency of AmerGens ultrasonic testing interval in the sand bed region is sufficient to maintain an adequate safety margin. LBP-06-22, 64 NRC 229, 255-56 (2006), reconsideration dend, Memorandum and Order (Nov. 20, 2006). Only relevant, material and reliable evidence which is not unduly repetitious is to be admitted at hearing. 10 C.F.R. § 2.337(a). The opinions of an expert qualified by knowledge, skill, experience, training, or education must have an adequate factual basis and not merely constitute bare assertions, subjective belief or unsupported speculation. See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-05-04, 61 NRC 71, 80-81 (quoting Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90 (1993)).
In addition, matters pertaining to the current licensing basis of the facility are outside the scope of license renewal and should not be litigated in this proceeding. See Florida Power &
Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 8-9 (2001); Memorandum and Order (Denying AmerGens Motion for Summary Disposition)
(June 19, 2007) (SD Order) (unpublished) at 8 (Citizens may not challenge the derivation or validity of established acceptance criteria or the methodology for analyzing UT results);
Memorandum and Order (Clarifying Memorandum and Order Denying AmerGens Motion for Summary Disposition) (July 11, 2007) (unpublished) (July 11 Order), at 2-3 (Citizens may not challenge any aspect of AmerGens UT monitoring program that applies prior to the period of extended operation or established techniques for analyzing UT results and calculating the corrosion rate). Challenges to AmerGens UT acceptance criteria, spatial scope of UT measurements (including assertions that thin areas are not systematically surveyed), monitoring
for the integrity of the coating and for moisture, UT monitoring in the embedded region, and proposed monitoring in the sand bed region from the outside have been rejected as late-filed contentions and are not within the scope of this proceeding. See LBP-06-22, 64 NRC 229, 237-40, 244-55 (2006); Memorandum and Order (Feb. 9, 2007) (unpublished), at 7-15.
With respect to Dr. Haulsers expertise, the Staff agrees that Dr. Hausler has not demonstrated expertise in analyzing the potential for failure of a mechanical structure like a drywell shell or expertise in the application, performance and expected life span of the epoxy coating on the drywell shell exterior. See Motion at 4. Thus, Citizens arguments and Dr. Hauslers testimony on these topics should be excluded The Staff also supports AmerGens request to exclude testimony or exhibits which seek to litigate corrosion in the embedded region of the drywell shell or challenge AmerGens methods of analyzing UT results or uncertainties, scope of monitoring in the drywell, and adequacy of drywell acceptance criteria. See Motion at 5-7. These issues have been rejected in rulings on late-filed contentions and are outside the scope of this proceeding. See SD Order at 2 n.4.2 Similarly, Citizens statements about real time corrosion monitoring should be excluded based on the Boards ruling on a Citizens late-filed contention. See Motion at 8 (citing LBP-06-22, 64 NRC at 245, 247-48).
AmerGen correctly argues that Citizens speculative statements should be excluded.
See AmerGen at 8-9. 3 Only relevant, material, and reliable evidence which is not unduly repetitious is admissible. 10 C.F.R. § 2.337.
2 By contrast, Citizens are permitted to argue that AmerGen has been inconsistent in applying its acceptance criteria or its statistical methods. See SD Order at 8.
3 For example, AmerGens argues that the redacted, but yet still visible, portions of to Dr. Hauslers testimony (the redacted April 25, 2007 affidavit) should be excluded as beyond the scope of this proceeding and as unreliable. See Motion at 9 n.41. Dr. Hausler admits that the redacted portions of Attachment 3 either address matters outside the scope of this proceeding or are now outdated. See Testimony of Dr. Hausler at A.9. Thus, the redactions do not satisfy 10 C.F.R. § 2.337.
With respect to the Attachments 3, 4, and 5 of Dr. Hauslers testimony, the Staff agrees that, consistent with NRC practice, testimony should be presented in question and answer form, and that any attachments to testimony should not be duplicative of other exhibits. See Motion at 9. Thus, these attachments should be rejected in their entirety.
CONCLUSION For the reasons discussed above, the Staff supports AmerGens motion to the extent it seeks to exclude statements, testimony and exhibits that are not relevant, material or reliable, or which are unduly repetitious.
Respectfully submitted,
/RA/
Mitzi A. Young Counsel for NRC Staff
/RA/
Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 1st day of August, 2007
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) )
CERTIFICATE OF SERVICE I hereby certify that copies of the ANRC STAFF ANSWER TO AMERGENS MOTION IN LIMINE REGARDING CITIZENS INITIAL PRESENTATION in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or as indicated by an asterisk, by electronic mail, with copies by U.S mail, first class, this 1st day of August, 2007.
E. Roy Hawkens, Chair Office of the Secretary*
Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board Mail Stop: O-16C1 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 HEARINGDOCKET@nrc.gov ERH@nrc.gov Office of Commission Appellate Anthony J. Baratta Adjudication Administrative Judge Mail Stop O-16C1 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission OCAAmail@nrc.gov Washington, DC 20555-0001 AJB5@nrc.gov Debra Wolf Law Clerk Paul B. Abramson Atomic Safety and Licensing Board Panel Administrative Judge Mail Stop: T-3F23 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission DAW1@nrc.gov Washington, DC 20555-0001 PBA@nrc.gov Suzanne Leta Liou NJ Public Interest Research Group 11 N. Willow St.
Trenton, NJ 08608 sliou@environmentnewjersey.org
Richard Webster, Esq.* J. Bradley Fewell, Esq.*
Rutgers Environmental Law Clinic Exelon Corporation 123 Washington Street 4300 Warrenville Road Newark, NJ 07102-5695 Warrenville, IL 60555 rwebster@kinoy.rutgers.edu bradley.fewell@exeloncorp.com Donald Silverman, Esq.*
Alex S. Polonsky, Esq.*
Kathryn M. Sutton, Esq.*
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.
Washington, DC 20004 dsilverman@morganlewis.com apolonsky@morganlewis.com ksutton@morganlewis.com
/RA/
Mary C. Baty Counsel for the NRC Staff