ML080250186

From kanterella
Jump to navigation Jump to search
Oyster Creek - NRC Staff'S Answer to Citizens' Petition for Review of LBP-07-17
ML080250186
Person / Time
Site: Oyster Creek
Issue date: 01/24/2008
From: James Adler, Baty M
NRC/OGC
To:
NRC/OCM
SECY RAS
References
50-219-LR, LBP-07-17, RAS 14955
Download: ML080250186 (34)
v • d • e


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 ANSWER TO CITIZENS PETITION FOR REVIEW OF LBP-07-17 Mary C. Baty James E. Adler Counsel for NRC Staff January 24, 2008

TABLE OF CONTENTS Page TABLE OF AUTHORITIES ...........................................................................................................iii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 1 DISCUSSION................................................................................................................................ 3 I. The Board Did Not Err in Rejecting Citizens Challenge to AmerGens Application3 A. The Boards Legal Conclusions Are Not Erroneous4

1. The Board Properly Applied the Reasonable Assurance Standard4
2. The Board Properly Rejected Citizens Challenges to Oyster Creeks CLB...5 B. The Boards Findings of Fact Are Not Clearly Erroneous..6
1. The Board Did Not Ignore Citizens Evidence and Testimony.7
2. The Board Did Not Err in Finding Compliance with the Acceptance Criteria8 3 The Boards Finding That the External Measurements Are Not Representative of the Condition of the Drywell Shell is Not Erroneous..9
4. The Board Properly Applied the Preponderance of the Evidence Standard.11 II. The Board Did Not Err in Denying Citizens Contentions..12 A. The Board Did Not Err in Finding Citizens New Contentions Untimely12 B. The Board Did Not Erroneously Pre-Judge Facts.19 C. The Board Did Not Improperly Deny Citizens the Opportunity to Litigate Issues.20

- ii -

III. No Prejudicial Error Occurred21 A. The Boards Decisions and Conduct Did Not Violate the APA22 B. Granting the Renewed License Would Not Violate the AEA...24 C. Granting the Renewed License Would Not Violate Due Process...25 CONCLUSION ............................................................................................................................ 25

-iii-TABLE OF AUTHORITIES Page JUDICIAL DECISIONS Anderson v. Bessemer City, 470 U.S. 564 (1985) ........................................................................ 7 Citizens Awareness Network, Inc. v. NRC, 391 F.3d 338 (1st Cir. 2004) .................................. 22 Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993) ........................................................... 5 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ..................................................................... 5 Merrell Dow Pharm. Inc. v. Havner, 953 SW.2d 706 (Tex. Sup. Ct. 1997) ................................... 5 North Anna Envl. Coalition v. NRC, 533 F.2d 655 (D.C. Cir. 1975) ............................................ 11 Union of Concerned Scientists v. NRC, 880 F.2d 552 (D.C. Cir. 1989)........................................ 4 Union of Concerned Scientists v. NRC, 920 F.2d 50 (D.C. Cir. 1990)........................................ 24 U.S. v. Chase, 2005 WL 757259 (D.C. Super. Jan. 10, 2005) ..................................................... 5 ADMINISTRATIVE DECISIONS Commission:

Advanced Medical Systems, Inc. (One Factory Row, Geneva, OH 40441), CLI-94-6, 39 NRC 285 (1994)....................................................................................................................... 3 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006)..................................................................................................................... 13 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370 (2001)..................................................................................................................... 16 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349 (2001)..................................................................................................................... 13 Duke Power Co. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373 (2002) .............................................................................. 17 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),

CLI-01-17, 54 NRC 3 (2001)......................................................................................................... 6

- iv -

Kenneth G. Pierce (Shorewood, Illinois), CLI-95-06, 41 NRC 381 (1995) .................................... 7 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-03-08, 58 NRC 11 (2003)............................................................................................................... 6, 7, 12 Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station),

CLI-93-12, 37 NRC 355 (1993)................................................................................................... 13 Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 1; Sequoyah Plants, Units 1 & 2; Browns Ferry Nuclear Plant, Units 1, 2 & 3), CLI-04-24, 60 NRC 160 (2004)................................................................................................................... 4, 7 Atomic Safety and Licensing Appeal Board:

Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-616, 12 NRC 419 (1980)............. 11 Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331 (1973) .................... 11 Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-669, 15 NRC 453 (1982)....................................................................................................................... 16 General Public Utilities (Three Mile Island Nuclear Station, Unit No. 1) ALAB-881, 26 NRC 465 (1987)..................................................................................................................... 7, 12 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102 (1984)..................................................................................................................... 21 Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076 (1983).................................................................................................................. 11, 22 Maine Yankee Atomic Power Co. (Maine Yankee Nuclear Power Plant, Unit 2),

ALAB-161, 6 AEC 1003 (1973)...................................................................................................... 4 Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343 (1983) ........................... 6, 7, 12 Atomic Safety and Licensing Board:

AmerGen Energy Company LLC (Oyster Creek Nuclear Generating Station), LBP-06-07, 63 NRC 188 (2006)....................................................................................................................... 2 AmerGen Energy Company LLC (Oyster Creek Nuclear Generating Station), LBP-06-16, 63 NRC 73 (2006)......................................................................................................................... 2 AmerGen Energy Company LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 NRC 229 (2006)............................................................................. 2, 13, 14, 15, 16, 19, 20, 21

-v-AmerGen Energy Company LLC (Oyster Creek Nuclear Generating Station), LBP-07-17, 66 NRC __ (Dec. 18, 2007) (slip op.)...................................................................................passim Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-07-15, 66 NRC __ (Nov. 7, 2007) (slip op.) .............. 18, 19 Memorandum and Order (Denying NIRSs Motion to Apply Subpart G Procedures (June 5, 2006)(unpublished) ....................................................................................................... 22 Memorandum and Order (Denying Citizens Motion for Reconsideration) (Nov. 20, 2006)

(unpublished) ........................................................................................................................ 19, 20 Memorandum and Order (Denying Citizens Motion for Leave to Add Contentions and Motion to Add Contention) (Feb. 9, 2007) (unpublished)...................................................................... 16, 20 Memorandum and Order (Denying Citizens Motion for Leave to Add a Contention and Motion to Add a Contention) (Apr. 10, 2007) (unpublished) ....................................................... 17 Memorandum and Order (Denying AmerGens Motion for Summary Disposition)

(June 19, 2007) (unpublished) .................................................................................................... 21 Memorandum and Order (Clarifying Memorandum and Order Denying AmerGens Motion for Summary Disposition) (July 11, 2007) (unpublished) .......................................... 15, 21 Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification),

(Aug. 9, 2007) (unpublished) ........................................................................................................ 8 Memorandum and Order (Ruling on Motion to Conduct Cross-Examination and Motions in Limine) (Sept. 12, 2007) (unpublished) ..................................................................... 22 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-27, 52 NRC 216 (2000)..................................................................................................................... 19 REGULATIONS 10 C.F.R. § 2.309....................................................................................................................... 13 10 C.F.R. § 2.309(c) ................................................................................................................... 13 10 C.F.R. § 2.309(c)(1) ............................................................................................................... 13 10 C.F.R. § 2.309(f)(1)................................................................................................................ 13 10 C.F.R. § 2.309(f)(1)(v)............................................................................................................ 13

- vi -

10 C.F.R. § 2.309(f)(1)(vi)..................................................................................................... 13, 20 10 C.F.R. § 2.309(f)(2)................................................................................................................ 13 10 C.F.R. § 2.310(d) ................................................................................................................... 23 10 C.F.R. § 2.341(b) ..................................................................................................................... 3 10 C.F.R. § 2.341(b)(1)................................................................................................................. 3 10 C.F.R. § 2.341(b)(3)................................................................................................................. 1 10 C.F.R. § 2.341(b)(4)................................................................................................................. 3 10 C.F.R. § 2.341(b)(4)(i)-(v) ........................................................................................................ 1 10 C.F.R. § 2.341(b)(4)(iv).......................................................................................................... 21 10 C.F.R. § 2.1204(b) ................................................................................................................. 22 10 C.F.R. § 2.1207...................................................................................................................... 23 10 C.F.R. § 50.2............................................................................................................................ 6 10 C.F.R. § 50.71.......................................................................................................................... 6 10 C.F.R. § 54.3............................................................................................................................ 6 10 C.F.R. § 54.29........................................................................................................................ 24 10 C.F.R. § 54.30.......................................................................................................................... 6 MISCELLANEOUS Letter from Michael P. Gallagher, AmerGen, to NRC (Apr. 4, 2006) (ML060970288).................. 2 Disposal of High-Level Radioactive Wastes in a Proposed Geological Repository at Yucca Mountain, Nevada, 66 Fed. Reg. 55,732 (Nov. 2, 2001) ................................................... 5 Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995) ............. 6 Letter from C.N. Swenson, AmerGen, to NRC (July 22, 2005)..................................................... 1 Letter from C.N. Swenson, AmerGen, to NRC (Dec. 9, 2005).................................................... 14 Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004)................................ 22, 23

January 24, 2008 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 ANSWER TO CITIZENS PETITION FOR REVIEW OF LBP-07-17 INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b)(3), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to Citizens petition for review of the Atomic Safety and Licensing Boards (Board) December 18, 2007, Initial Decision (Rejecting Citizens Challenge to AmerGens Application to Renew Its Operating License for the Oyster Creek Nuclear Generating Station), LBP-07-17, 66 NRC ___ (2007) (slip op.) (Decision).1 For the reasons set forth herein, the Staff submits that the Petition should be denied, on the grounds that Citizens have not met the criteria set forth in 10 C.F.R. § 2.341(b)(4)(i)-(v) for Commission review.

BACKGROUND This proceeding concerns AmerGens application to renew Oyster Creeks operating license for 20 years past the April 9, 2009 expiration date. On November 14, 2005, Citizens filed a timely request for hearing concerning AmerGens license renewal application (LRA). 2 1

Citizens Petition for Review of LBP-07-17 and Interlocutory Decisions in the Oyster Creek Proceeding (January 14, 2008) (Petition).

2 Letter from C. N. Swenson, AmerGen, to NRC (July 22, 2005) (ML052080172).

On February 27, 2006, the Atomic Safety and Licensing Board granted Citizens intervention petition, admitting a contention that alleged that the LRA was deficient due to the failure to include periodic ultrasonic test (UT) measurements of the sand bed region of the drywell liner in the aging management program, and rejecting Citizens attempt in its reply to expand the contention. LBP-06-07, 63 NRC 188, 211-217 (2006).

On June 6, 2006, however, the Board ruled that Citizens contention of omission was rendered moot by AmerGens April 4, 2006 commitment3 to perform periodic UT measurements in the sand bed region of the drywell prior to entering the period of extended operation and every ten years thereafter, but gave Citizens the opportunity to file a new contention challenging AmerGens new periodic UT program for the sand bed region as reflected in its April 2006 Commitment. LBP-06-16, 63 NRC 737, 742-45 (2006).

On October 10, 2006, the Board admitted the following contention:4

[I]n light of the uncertain corrosive environment and correlative uncertain corrosion rate in the sand bed region of the drywell shell, AmerGens proposed

[UT monitoring] plan . . . is insufficient to maintain an adequate safety margin.5 LBP-06-22, 64 NRC 229, 255-56 (2006).

On September 24 and 25, 2007, the Board held an evidentiary hearing.6 On 3

Letter from Michael P. Gallagher, AmerGen, to NRC (Apr. 4, 2006) (ML060970288).

4 The Board adapted the admitted contention from a single contention filed by Citizens challenging as inadequate AmerGens (1) drywell thickness acceptance criteria, (2) scheduled UT monitoring frequency, (3) moisture and coating integrity monitoring, (4) response to wet conditions and coating failure, (5) scope of UT monitoring to systematically identify and sufficiently test degraded areas, (6) quality assurance for measurements, and (7) methods for analyzing UT results. See LBP-06-22, 64 NRC at 236.

5 During the course of this proceeding, the Board concluded that a number of other contentions proffered by Citizens were not admissible because they were nontimely, failed to satisfy admissibility requirements, or both. See Decision at 10 n.14.

6 The Board also held an evidentiary session on September 20, 2007 for purposes of determining witness qualifications and receiving the parties pre-file testimony and exhibits into evidence. See Decision at 10.

December 18, 2007, the Board issued its initial decision, in which it resolved all outstanding issues concerning the admitted contention. Decision at 57-58. After conducting a hearing on the merits and having considered all the evidence in the record, the Board found that AmerGen had demonstrated that the frequency of planned UT measurements, in combination with other elements of AmerGens aging management plan, provides reasonable assurance that the sand bed of the drywell shell will maintain the necessary safety margin during the period of extended operation. Id. at 2. Considering the entire record, the Board found that AmerGen had shown by a preponderance of the evidence that the acceptance criteria for drywell shell thickness in the sand bed region, which are currently satisfied, will be satisfied throughout the period of extended operation. Id.

DISCUSSION I. The Board Did Not Err in Rejecting Citizens Challenge to AmerGens Application The Boards decision in LBP-07-17, disposed of Citizens lone admitted contention. See Decision at 57-58. Therefore, a petition for Commission review is authorized by 10 C.F.R.

§ 2.341(b).

Section 2.341(b)(1) provides for discretionary Commission review of a full or partial initial decision by a presiding officer. When a petition for review is authorized under

§ 2.341(b)(1), the Commission looks to the following five considerations, detailed in

§ 2.341(b)(4), in deciding whether to grant review:

(1) a clearly erroneous finding of fact; (2) a necessary legal conclusion is without precedent or conflicts with existing law; (3) the appeal raises a substantial and important question of law or policy; (4) the proceeding involved a prejudicial procedural error; or (5) any other consideration the Commission determines to be in the public interest.

The burden is on Citizens, as petitioners, to clearly identify the error in the Boards decision and thus demonstrate that Commission review is warranted. See Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 40441), CLI-94-6, 39 NRC 285, 297-98 (1994).

As explained below, Citizens have not met their burden: they have failed to demonstrate that the Boards factual findings are clearly erroneous, that the Boards legal conclusions depart from or are contrary to established law, or that the Boards procedural rulings resulted in actual prejudice.

A. The Boards Legal Conclusions Are Not Erroneous The Commission will reverse a boards legal conclusions if they are a departure from or contrary to established law. Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 1; Sequoyah Plants, Units 1 & 2; Browns Ferry Nuclear Plant, Units 1, 2 & 3), CLI-04-24, 60 NRC 160, 190 (2004) (TVA). Citizens have failed to show that the Boards legal conclusions in LBP-07-17 warrant Commission review.

1. The Board Properly Applied the Reasonable Assurance Standard Citizens argue that the Board erred by rejecting their argument that reasonable assurance means 95% confidence (or a high degree of certainty). See Petition at 4-6. The Board did not err because there is no basis in the Commissions case law or regulations for defining reasonable assurance as 95% confidence.

Although reasonable assurance appears in many areas of the Commission case law and regulations, it is not specifically defined in either the Atomic Energy Act (AEA) or the Commissions regulations.7 Reasonable assurance is based upon technical judgment, not application of a mechanical verbal formula, a set of objective standards, or a specific confidence interval. See Union of Concern Scientists v. NRC, 880 F.2d 552, 558 (D.C. Cir. 1989). The Commission has explicitly stated that reasonable assurance does not denote a specific statistical parameter. See Disposal of High-Level Radioactive Wastes in a Proposed Geological 7

Reasonable assurance and adequate protection are equivalent terms. Maine Yankee Atomic Power Co. (Maine Yankee Nuclear Power Plant, Unit 2), ALAB-161, 6 AEC 1003, 1004 n.4 (1973).

Repository at Yucca Mountain, Nevada, 66 Fed. Reg. 55,732, 55,739-40 (Nov. 2, 2001).

Contrary to Commission case law and regulations, Citizens argue that reasonable assurance requires 95% confidence. Citizens assert that courts require scientific facts to be demonstrated with 95% confidence. See Petition at 4 (referring to Citizens Post-Hearing Findings of Fact and Conclusions of Law at 52-55). But the cases cited by Citizens address the admissibility of scientific evidence under the Daubert and Frye tests,8 not a partys ultimate burden of proof.9 Furthermore, Citizens have demonstrated neither that rules or standards in the nuclear field require 95% confidence nor that the Staff has required AmerGen to bound the condition of the drywell shell with 95% confidence. The Staff accepted trending of the grid UT measurements at a 95% confidence level only for assessing the future corrosion. See Staff Exh. C.1 at A43. Staff and AmerGen experts testified that there is no rule, ASME Code, or industry practice requiring or recommending analysis of UT measurements using 95%

confidence intervals. See Applicant Exh. C, Part 3, at A29; Staff Exh. C at Response A10, Tr.

at 562 (Davis).

Thus, Citizens fail to demonstrate that the Board erred and also fail to demonstrate that the Commission should now adopt the 95% confidence standard.

2. The Board Properly Rejected Citizens Challenges to Oyster Creeks CLB Citizens argue that the Board improperly excluded issues related to the current licensing basis when it barred their challenge to the acceptance criteria derived from the GE analysis.

Petition at 15. The Board did not err.

8 The Daubert test is a four factor test used to determine the admissibility of scientific evidence in federal courts. See Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 592-594 (1993). The Frye test asks whether the technique or theory is sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye v. United States 293 F. 1013, 1014 (D.C. Cir. 1923).

9 See Merrell Dow Pharm. Inc. v. Havner, 953 SW.2d 706, 726 (Tex. Sup. Ct. 1997). They do not, as Citizens suggest, state that scientific facts must always be proven with 95% confidence. See id.

See also U.S. v. Chase, 2005 WL 757259, at *6 (D.C. Super. Jan. 10, 2005).

Neither a plants CLB10 nor its present compliance with the CLB may be challenged in license renewal proceedings. See 10 C.F.R. § 54.30; Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 9 (2001) (citing Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,473 (May 8, 1995)); 60 Fed. Reg.

at 22,473 (stating that the Commissions on-going regulatory process, which includes inspection and enforcement activities, ensures compliance with the CLB). Therefore, the Board properly rejected Citizens attempt to challenge the CLB.

The record supports the Boards finding that the acceptance criteria derived from the GE analysis are plant-specific design-basis information documented in Oyster Creeks final safety analysis report and, therefore, part of Oyster Creeks CLB. See Applicant Exh. C.1, Part 2, at A3, A.4; Staff Exh. B at A7; Staff Exh. C.1 at A42, Tr. at 413 (Ashar); Tr. at 415 (Gallagher),

Tr. at 448 (Hartzman).

B. The Boards Findings of Fact Are Not Clearly Erroneous Citizens claim that the Board made various factual errors because its decision was either contradicted by all the evidence or ignor[ed] conflicting evidence. Petition at 2, 6-13. Citizens have not demonstrated clear error.

The Commission defers to a licensing boards findings of fact so long as the Licensing Board has issued a plausible decision that rests on carefully rendered findings of fact and is particularly deferential to a boards determinations of witness credibility and the weight to be given to witness testimony. Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-03-8, 58 NRC 11, 25-26 (2003) (PFS); Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343, 368 (1983). Although a board must confront the facts and 10 CLB, as defined in 10 C.F.R. § 54.3, includes a plants plant-specific design-basis information defined in 10 C.F.R. 50.2 as documented in the most recent final safety analysis report (FSAR) as required by 10 C.F.R. 50.71.

legal arguments presented by the parties and articulate the reasons for its conclusions on disputed matters, it need not refer individually to every proposed finding as long as it sufficiently informs a party of the disposition of its contentions. Callaway, 18 NRC at 366-67.

The Commissions standard regarding clear error is quite high. PFS, CLI-03-8, 58 NRC at 25-26. The Commission will not overturn a boards findings simply because it might have reached a different result or because the record could support a view sharply different from that of the Board. See TVA, CLI-04-24, 60 NRC at 190; PFS, CLI-03-8, 58 NRC at 27 (quoting Kenneth G. Pierce ((Shorewood, Illinois), CLI-95-6, 41 NRC 381, 382 (1995)). Rather, there is clear error only if the Boards findings are not even plausible in light of the record viewed in its entirety. PFS, CLI-03-8, 58 NRC at 26 (citing Anderson v. Bessemer City, 470 U.S. 564, 573-76 (1985)). Thus, the Commission will reject or modify a Licensing Boards findings only if, after accounting for appropriate deference to the primary fact finder, the Commission is convinced that the record compels a different result. General Public Utilities (Three Mile Island Nuclear Station, Unit No. 1) ALAB-881, 26 NRC 465, 473 (1987) (TMI)(emphasis added). Thus, to meet the Commissions clear error standard, Citizens must show more than that the Board could have reached a different result or that the record could support a view sharply different from that of the Board,11 they must show that the Boards findings are not even plausible in light of the record viewed in its entirety. PFS, CLI-03-8, 58 NRC at 26. Citizens have not done this.

1. The Board Did Not Ignore Citizens Evidence and Testimony Citizens repeatedly argue that the Board ignored or incorrectly weighed their experts testimony, yet fail to demonstrate that the Boards weighing of evidence is erroneous.

For example, Citizens argue that the Board erroneously disregarded Dr. Hauslers contour plots because the Board had denied a motion in limine by AmerGen to exclude the 11 See TVA, CLI-04-24, 60 NRC at 190.

plots. Petition at 9 n.11, 15. Citizens argue that because the Board determined that the contour plots meet a minimum threshold for admissibility, it contradicted itself when it did not ultimately find the plots reliable. This argument is fundamentally flawed. On the contrary, the Boards denial of AmerGens motion in limine signaled a desire to keep the contour plots in the record and afford them due consideration. Furthermore, the record reflects that the Board afforded the contour plots ample consideration. See Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification) (Aug. 9, 2007) (unpublished) at 11 (posing questions for the parties to address in rebuttal testimony about the contour plots); Tr. at 526-607 (containing the Boards question of both Dr. Hausler and AmerGens experts about the contour plots).

In another example, Citizens claim that, [c]ontrary to the evidence presented, the Board determined that external UT measurements were biased thin. Petition at 10. In this instance, the Board considered the exhibits from all parties and the oral testimony (characterized as unsupported by Citizens) of two witnesses with personal knowledge of the external measurements and the procedures used to take them. Decision at 26-27 & n.30. The Board did not ignore evidence. Rather, the Board, in its discretion, weighed the credibility of all available evidence and reached a conclusion that is amply supported by the record.

2. The Board Did Not Err in Finding Compliance with the Acceptance Criteria Citizens allege that the Board erred in finding that compliance with acceptance criteria will assure that the safety factor will remain 2 or greater. The Board, however, did not err.

The Board found that, in accordance with its CLB, the Oyster Creek drywell shell must meet both buckling criteria developed from the GE analysis: that is, it must meet the local buckling criteria of 0.536 inch and the general criteria of 0.736 inch. See Decision at 25-26 (applying both criteria). It is undisputed that the GE analysis assumed the entire sand bed region to be uniformly thinned to a thickness of 0.736 inch, at which point the factor of safety would be 2.0. See id. at 19 & n.20. Thus, the Board did not err in finding that compliance with

the acceptance criteria will assure that the safety factor will remain 2.0 or greater.

3. The Boards Finding that the External Measurements Are Not Representative of the Condition of the Drywell Shell is Not Erroneous Citizens assert that the Board erred in concluding that the external UT measurements are not representative of the condition of the drywell shell in the sand bed region. Citizens argue that because the Board so concluded, it erroneously disregarded Citizens contour plots (which use only external data) and erroneously used the internal UT measurements to conclude that the acceptance criteria were met and that the available margin is 0.064 inch. The Board, however, did not err.

As the Board found, and as the record amply reflects, the external data are biased thin and, therefore, are not representative of the condition of the drywell shell in the sand bed region.

See Decision at 27 n.30; AmerGen Exh. B Part 3 at A22, A23, A30; AmerGen Exh. C Part 3 at A40; AmerGen Exh. 27 at 16; Tr. at 543-553.

Citizens contour plots are based on the external UT measurements and then extrapolated beyond those measurements. Citizens Exh. B at A14; Citizens Exh. C.1, ; Tr. at 533-538. The plots do not in fact show that the local area acceptance criterion is violated. See Tr. at 538 (Hausler) (conceding the point). Therefore, the Board did not erroneously disregard the contour plots.

The Board did not err in relying on the internal UT measurements to determine the available margin. The Board found that the locations of the 19 grids of internal UT measurements were selected after taking over 1,000 UT measurements to locate the thinnest areas in each bay and that the grids are located at or near the elevation of the drywell shell where the corrosion was concentrated. Decision at 23 (citing AmerGen Exh. B, Part 3 at A12, A13; Tr at 601 (Tamburro)); Tr. at 344-45 (Gallagher); Tr. at 324 (Hausler) (agreeing that most of the corrosion was a few inches below the top of the sand bed region).

Having reasonably found that external measurements were biased thin but that the

internal measurements were representative of the condition of the drywell shell, the Board did not err in finding, based on the thinnest average internal UT grid measurement of 0.800 inch, that the available margin is 0.064 inch.

The Board did not err in finding that the ASME-required safety factor of 2.0 is met. The Board clearly demonstrated its understanding that the ASME Code requires Oyster Creek to maintain a safety factor of 2.0 as part of its CLB. Decision at 19. See also Tr. at 849-51 (Judge Abramson) (stating that AmerGens Commitment to perform a 3D finite element structural analysis of the primary containment drywell shell (Commitment 27(18)) should be revised to state that the analysis is about compliance with the factor of safety, not compliance with required thicknesses). The Board then discussed in detail its basis for finding that the drywell shell complies with the CLB in this regard, based in part on the conclusion that if the drywell shell complies with acceptance criteria, it must necessarily also meet the minimum required safety factor. Decision at 26 n.26) (referring to n.20 and accompanying text).

Citizens assert that Dr. Hartzmans testimony regarding the safety factor shows that the Board somehow erred in its finding. For example, Citizens assert that the Board ignored [Dr.

Hartzmans] . . . testimony stating that [the safety factor] could be 1.9. Petition at 11. In so arguing, Citizens gloss over the fact that Dr. Hartzman arrived at that number by relying, solely for the sake of argument, on Dr. Hauslers contour plots. Tr. at 450. Dr. Hartzman testified during the hearing that the safety factor is 2 or more, Petition at 11 (citing Tr. at 453), and his testimony was confirmed by AmerGens expert. Tr. at 441 (Mehta). Dr. Hartzmans testimony was thus not contradictory and the Boards finding does not mean that it ignored Dr. Hartzmans testimony concerning Dr. Hauslers contour plots.

Citizens have failed to demonstrate that the Boards finding that the CLB requirement for a safety factor of 2.0 is met was clearly erroneous.

4. The Board Properly Applied the Preponderance of the Evidence Standard Citizens claim that the Board improperly shifted the burden of persuasion from AmerGen to Citizens and mistreated evidence. Petition at 12. They claim that the Board should have required AmerGen to refute, in addition to the overall issue raised by Citizens contention, every sub-issue raised by Citizens by a preponderance of the evidence. See Id. at 12-13. Contrary to Citizens assertions, the Board did not err.

In this proceeding the burden was on AmerGen to demonstrate by a preponderance of the evidence that its aging management program satisfies the reasonable assurance standard.

See Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-616, 12 NRC 419, 421 (1980)

(stating that applicants are not held to an absolute standard or required to prove a matter conclusively but rather, consistent with the Administrative Procedure Act, applicants are held to a preponderance standard). Citizens, however, had a burden too: they had to put forth a prima facie case in support of their contention. See Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1093 (1983) (quoting Consumers Power Co.

(Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 345 (1973)). It is only once the intervenor puts forth its prima facie case that the burden shifts back to the Applicant, as part of its overall burden of proof, to provide sufficient rebuttal. Id. Furthermore, to require AmerGen to rebut every allegation and every piece of evidence propounded by Citizens would be to hold AmerGen to essentially a beyond-a-reasonable doubt type standard, a standard which is not required by law, regulation, or Commission precedent. See North Anna Envl. Coalition v. NRC, 533 F.2d 655, 667 (D.C. Cir. 1975).

What Citizens characterize as mistreatment of the evidence or improper burden-shifting is instead the Board finding that Citizens failed to support their assertions with probative evidence or expert testimony. The Board rejected Citizens assertions about leakage collection trough deterioration because Citizens did not present either evidence of defects in the trough as of 2006 (the most recent refueling outage) or evidence that AmerGens commitments to monitor

the trough drains every cycle for leakage and blockage would not assure that any deterioration would be identified and corrected. See Decision at 34 (citing Applicant Exh. 10, Commitment 27(3), (13)). The Board rejected Citizens assertions about rapid deterioration of the epoxy coating between inspections based on the cracking of the coating on the sand bed floor because Dr. Hausler admitted he was not familiar with the epoxy coating used at Oyster Creek, he had no evidence that there were defects in the epoxy coating on the shell, and his experience with coatings was limited to oil field applications. Id. at 39 n.41, 40 n.42, 42 n.44.

See also Tr. at 734 (Haulser) (stating that his experience with the chemistry of coatings is course work at university). AmerGens experts testified that the coating on the concrete floor of the sand bed is not the same as the epoxy coating on the steel drywell shell, Tr. at 745 (Ouaou),

and Citizens did not refute this testimony.

Citizens fail to recognize that the Board, as the primary finder of fact, weighs the evidence and determines witness credibility. See PFS, CLI-03-8, 58 NRC at 26; TMI, ALAB-881, 26 NRC at 473. In so doing, the Board need not refer to every proposed finding so long as it provides reasons for its conclusions on disputed matters. See Callaway, ALAB-740, 18 NRC at 368. The Board did exactly this, providing detailed findings, with references to testimony and exhibits, in support of each of its each of conclusions on disputed matters. See, e.g., Decision at 26-28 (identifying the basis for its conclusions). Thus, what Citizens describe as unjustified criticism of Dr. Hauslers testimony with respect to modeling of corrosion is the Board using its discretion as the trier of fact.

II. The Board Did Not Err in Denying Citizens Contentions A. The Board Did Not Err in Finding Citizens New Contentions Untimely Citizens claim that the Board improperly rejected, on timeliness grounds, a number of their late-filed contentions/contention subparts. The Petition does not, however, provide

sufficient grounds to merit Commission review.

Pursuant to 10 C.F.R. § 2.309(f)(2),12 contentions submitted after intervention petitions are due will be timely only if [t]he information upon which the . . . new contention is based was not previously available, this information is materially different than information previously available, and the contention was filed in a timely fashion (relative to the time when this new information became available). And even timely late-filed contentions must additionally satisfy the strict admissibility criteria under 10 C.F.R. § 2.309(f)(1).13 See Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 NRC 355, 362-63 (1993);

Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001) (describing the contention admissibility factors as strict by design).14 When reviewing Board contention admissibility decisions, the Commission gives substantial deference to the Board, and will only reverse due to error of law or abuse of discretion. AmerGen Energy Co. LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006).

Citizens first assert that the Board improperly found untimely a contention subpart15 12 Contentions found untimely can still potentially be admitted, but only if the proponent successfully demonstrates that a balancing of the eight factors listed at 10 C.F.R. § 2.309(c)(1) weigh in favor of admitting the late contention. The instant Petition challenges various Board findings on timeliness, but does not address the Boards balancing of the 2.309(c)(1) factors. The Staff therefore does not address § 2.309(c)(1) balancing in this Answer.

13 The two factors relevant to the instant Petition are (f)(1)(v) (requiring a statement of supporting facts and/or expert opinions and references to specific supporting sources and documents) and (f)(1)(vi)

(requiring sufficient information to demonstrate the existence of a genuine dispute on a material issue of law or fact).

14 Note that these two Commission decisions applied 10 C.F.R. § 2.714, which was the predecessor to current regulation 10 C.F.R. § 2.309. Although § 2.309, not § 2.714, governs the instant proceeding, the relevant admissibility requirements in § 2.309(f)(1)(v) and (vi) are not substantially different from requirements previously found at § 2.714(b)(2)(ii) and (iii).

15 See LBP-06-22, 64 NRC at 229, 236 (reframing Citizens single contention into seven discrete challenges).

claiming that AmerGens acceptance criteria are inadequate to ensure adequate safety margins, because AmerGen commitments in April and June of 2006 rendered it timely. Petition at 17. Yet, Citizens were aware of the 0.736 acceptance criterion when they filed their original petition to intervene16 and could have challenged the acceptance criteria when AmerGen committed in December 2005, for purposes of license renewal, to perform UT thickness measurements of the sand bed region. See Letter from C.N. Swenson, AmerGen, to NRC at 1, 3 (Dec. 9, 2005) (December 9 Commitment). AmerGens commitments regarding the details of its drywell shell corrosion management plan in April and June of 2006 did not alter the acceptance criteria and thus did not create new grounds for challenging its adequacy.

Furthermore, Citizens assertion that a challenge to the acceptance criteria would have been entirely speculative prior to April 4, 2006, is undermined by Citizens challenge to this very same acceptance criteria in a motion it filed nearly two months before that date.17 The Board, therefore, correctly concluded that AmerGens April 4, 2006 and June 20, 2006 commitments did not provide any new information material to the adequacy of the acceptance criteria.

Citizens also challenge the Boards finding that Citizens challenge to the spatial scope of AmerGens UT monitoring was untimely. The Board reasonably concluded that Citizens were aware of the UT monitoring locations well before their June 23, 2006 petition to file the contention containing this subpart. As the Board noted, AmerGen performed UT monitoring during the 1990s, and as part of the license renewal process AmerGen committed on December 9, 2005, to perform additional UT monitoring at the same locations utilized in the 1990s. LBP-06-22, 64 NRC at 250-51. See also December 9 Commitment at 3 (stating that the 16 See NIRS et al. Request for Hearing and Petition to Intervene (Nov. 14, 2005) ("Original Petition) at 9 (referencing the 0.736 inch acceptance criteria for the sand bed region of the drywell shell).

17 See Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention (Feb. 7, 2006) at 12.

measurements would be taken at the same locations measured in the 1990s to allow for comparison of results over time); Original Petition at 9 (indicating, via Petitioners Exhibit 4, that Citizens knew where measurements were taken in the past). Consequently, as of December 9, 2005, Citizens were aware of the locations AmerGen planned to use for license renewal-related UT measurements in the drywell shells sand bed region. LBP-06-22, 64 NRC at 251. If Citizens viewed these measurement locations as inadequate, they could have challenged them following AmerGens December 9, 2005 commitment. Instead, Citizens waited until after AmerGens April 4, 2006 commitment to conduct additional monitoring at these same locations.

Accordingly, the Boards timeliness decision was correct.

Citizens objection that the Board, based upon its July 11, 2007 Order, would not have permitted a challenge based upon AmerGens December 9 Commitment lacks merit. That Order addressed the relevance of the drywell shells condition during the pre-renewal time period between AmerGens 2006 monitoring and its scheduled 2008 monitoring. Memorandum and Order (Clarifying Memorandum and Order Denying AmerGens Motion for Summary Disposition) (July 11, 2007) (unpublished) (July 11 Order) at 2. The Order stated that Oyster Creeks compliance with the CLB prior to the period of extended operation was unchallengeable. Id. The Board, however, did not preclude Citizens from using data from pre-license renewal period UT monitoring to support their challenge to Oyster Creeks UT monitoring program for the period of extended operation. See id. Therefore, Citizens argument here does not demonstrate Board error of fact or law.

Citizens next challenge the Boards rejection, on timeliness grounds, of a contention subpart challenging AmerGens methods for analyzing UT results in the sand bed region. Here, Citizens claim that AmerGen did not state until June 20, 2006 how it would [analyze the UT results]. Petition at 17. This conclusory statement simply ignores the Boards extensive refutation of the same argument. As the Board stated in its ruling on this issue, AmerGens methods for analyzing UT results have been in place since the outset of this proceeding, and

Citizens could have both (1) determined what they were and (2) challenged them much earlier than they did. See LBP-06-22, 64 NRC at 254-55. Because the Petition does not even address the Boards rationale for its decision, Citizens fail to demonstrate Board error.

Citizens also contend that the Board, using a novel legal test, improperly found untimely a contention subpart challenging AmerGens coating integrity and moisture monitoring plan for the sand bed region. Petition at 17. Citizens additionally claim that the Board made similar errors when ruling two additional contentions filed on December 20, 2006,18 to be untimely. Petition at 18. Yet, in each instance, the Boards timeliness findings were only one of multiple independent grounds it relied upon to reject the contentions. See LBP-06-22, 64 NRC at 246-47, 248 n.21; February 9 Order at 10-15, 16-19. Thus, even if Citizens arguments regarding timeliness were correct-which they are not19-the Boards ultimate decisions on these issues would still not warrant review. See Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-669, 15 NRC 453, 466 n.25 (1982) (We have no obligation to rule on every discrete point adjudicated below, so long as we are able to render a decision on other grounds that effectively dispose of the appeal.).

Citizens next contend that the Board erred in ruling untimely their February 6, 2007 18 The Petition refers to a Board Memorandum and Order dated December 20, 2006, but the Staff can find no record of a Board decision issued on that date. The Staff accordingly assumes, based in part on matching page references, that the Petition is actually referring to the Board Memorandum and Order ((Denying Citizens Motion for Leave to Add Contentions and Motion to Add Contention) (Feb. 9, 2007) (unpublished) (February 9 Order)) that rules upon a motion filed by Citizens on December 20, 2006. Nonetheless, the Staff objects to having to make guesses and assumptions as to the identity of the document to which the Petition is attempting to cite. See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 383 (2001) (We deem waived any arguments . . . not clearly articulated in the petition for review.).

19 What Citizens describe as a novel legal test is simply the Boards rationale for its ruling based upon the circumstances before it. Essentially, the Board recognized that new information must actually form the basis for a late-filed contention for the contention to be deemed timely; it is not enough for the new information simply to change the plan in some way. Where, as in these instances, the information is in the form of enhancements to the plan that clearly improve it, the information cannot reasonably be viewed as providing new justifications for challenging previously unchallenged plans; if anything, such new information would tend to eliminate preexisting bases to challenge aging management plans.

contention challenging use of a capacity reduction factor (CRF) in determining the sand bed region thickness criteria (0.736 inches). See Motion for Leave to Add a Contention and Motion to Add a Contention (Feb. 6, 2007) (February 6 Motion) at 6. Citizens claim that this late contention was filed in response to questions regarding use of the CRF that arose in a January 2007 Sandia National Labs report,20 which ultimately did not use this factor in its own analysis.21 See February 6 Motion; Citizens Exh. 60 (Excerpts of the Sandia Report) at 83. Citizens claim that the Sandia Report, either alone or in combination with the results of October 2006 UT measurements conducted by AmerGen, rendered this contention timely. Petition at 18.

As the Board noted, however, the viability of this CRF had been expressly discussed in a Brookhaven National Laboratories study attached to a 1992 SER,22 Memorandum and Order (Denying Citizens Motion for Leave to Add a Contention and Motion to Add a Contention)

(Apr. 10, 2007) (unpublished) (April 10 Order) at 7, an SER that Citizens themselves had attached as an exhibit to their Original Petition. See Exhibit 3 to Original Petition. As the Board found, this Brookhaven report provided sufficient information for Citizens to formulate a contention challenging the CRF well before February 2007. April 10 Order at 7. This fact renders the contention untimely. See Duke Power Co. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 386 (2002) (Hearing petitioners have an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could serve as the foundation for a specific contention. (internal quotation 20 The Sandia Report is part of the record of this proceeding via Staff Exh. 6 and Citizens Exh. 60.

21 The Contention recommended either (1) utilizing the acceptance criteria that Sandia had determined (i.e. without using the CRF) or (2) conducting new three dimensional modeling of further degradation in the sand bed. February 6 Motion at 6.

22 AmerGen Exh. 37 Evaluation Report on Structural Integrity of the Oyster Creek Drywell (Apr.

24, 1992). Discussion regarding the basis for using the CRF is found at pp. 4-5 of the attachment.

marks omitted)). The Petition does not actually address this Board rationale, providing only conclusory statements that the Boards view is entirely speculative and that Citizens did not have any information about the deficiency highlighted by the Sandia Report. Petition at 18.

Moreover, as explained above, Citizens could have filed a challenge to the acceptance criteria following AmerGens December 9, 2005 commitment to conduct thickness measurements.

Accordingly, the Petition does not demonstrate error in the Boards ruling that the new contention was not based upon material new information in the Sandia study.23 Citizens also now claim that a combination of the Sandia Reports information AmerGens October 2006 thickness measurements that make the contention timely. Petition at 18. Yet, the October 2006 data, publicly available after December 3, 2006,24 would not alone have rendered this February 2007 contention timely,25 and the Petition does not dispute this.

Combining this October 2006 data with Sandia Report information that is not actually new cannot change that result. The Boards untimeliness ruling was thus correct.26 Finally, Citizens assert that the Boards determinations on timeliness conflict with language in a Vermont Yankee license renewal Board decision footnote in which that Board 23 Note also that the Sandia Report was only a confirmatory analysis that was never meant to supplant the original General Electric studies that were the original source of the 0.736 inch thickness criterion. See NRC Staff Answer to Citizens Motion for Leave to Add a Contention and Motion to Add a Contention (Mar. 5, 2007) at 12.

24 The October 2006 thickness measurements to which the Petition refers were included in AmerGens December 3, 2006 submittal to the NRC, a submittal that Citizens subsequently attached as an exhibit to a December 20, 2006 motion. See Citizens Exh. 35.

25 See Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-07-15, 66 NRC __, __ (Nov. 7, 2007) (slip op. at 5 n.11) (noting that many boards, including this one, have established a general 30-day rule for the filing of late-filed contentions).

26 Given the untimeliness of the contention itself, it would not have made sense for the Board to determine whether the contentions proposed remedies(footnote 21) were themselves timely raised.

Thus, Citizens allegation that the Board erred by failing in its decision to focus on these proposed remedies, see Petition at 18, lacks merit.

observes that new information that can form the basis for new contentions sometimes does arise after petitions for interventions have been filed. Petition at 19-20; LBP-07-15, 66 NRC at __, (slip op. at 6 n.12). No actual conflict exists between this observation and the Oyster Creek Boards bases for rendering its timeliness decisions. The Oyster Creek Board simply determined that the particular information upon which Citizens untimely late-filed contentions were based had been available well before these late contentions were filed, and nothing in the Vermont Yankee Boards decision disputes that such a thing is possible.27 Moreover, another Board decision confirms that the fact that new information becomes available post-intervention does not relieve prospective or admitted intervenors of their burden to conduct timely review and analysis of all information that is available at the time of intervention or at subsequent times thereafter. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

LBP-00-27, 52 NRC 216 (2000). This alleged conflict with a Vermont Yankee Board decision footnote thus does not demonstrate error by the Oyster Creek Board.

B. The Board Did Not Erroneously Pre-Judge Facts Citizens assert that the Board erred in finding their June 2006 challenge to AmerGens quality assurance program to be untimely by improperly prejudging relevant facts and failing to construe facts in Citizens favor. Petition at 19-20. However, as Citizens neglect to mention, the Board also rejected this challenge for two other separate and independent reasons. See LBP-06-22, 64 NRC at 251; Memorandum and Order (Denying Citizens Motion for Reconsideration) (Nov. 20, 2006) (unpublished) (November 20 Order) at 3. Because the Petition fails to challenge these other grounds, it provides insufficient basis to justify Commission review even if (which the Staff does not concede) Citizens timeliness arguments 27 Note that the newness and materiality of the information forming the basis for the late-filed contention at issue in the cited Vermont Yankee Board decision was not disputed by any of the parties to that proceeding. LBP-07-15, 66 NRC at __ (slip op. at 8-9).

were valid.

Citizens also claim that the Board, in the same Order, made a similar error when it rejected a proposed contention on the embedded region by essentially adjudicating the issue instead of analyzing whether the basis set forth by Citizens was adequate, and made the same error when it rejected [a proposed] contention regarding the need to enhance the scope of the exterior monitoring of the sand bed as untimely. Petition at 20.28 In the cited sections of the November 20 Order (pp. 10-13 and 17-19), however, the Board did not prematurely adjudicate factual issues; rather, it followed the regulations. As noted earlier, in order to admit a contention, a Board must find, inter alia, that the contentions proponent has provide[d]

sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. 10 C.F.R. § 2.309(f)(1)(vi). To determine if a genuine dispute exists the Board must evaluate the information. This is precisely what the Board did in the cited sections of the November 20 Order, and the Petition provides no specific challenges to the Boards reasoning or its treatment of facts. Accordingly, the Petition does not demonstrate that the Board erred.

C. The Board Did Not Improperly Deny Citizens the Opportunity to Litigate Issues Citizens claim they were wrongly denied the opportunity to litigate issues that were the express subject of contention subparts denied by the Board in LBP-06-22. Petition at 20-21.

This is not, in Citizens view, because the Board improperly denied these contention subparts; rather, Citizens assert that the issues presented in these denied subparts were implicitly part of the one contention subpart that the Board did admit on October 10, 2006, and thus should have been litigable as part of the admitted contention subpart. Id. at 21. Consequently, 28 As noted in footnote 18, supra, the December 20, 2006 Memorandum and Order Citizens cite appears instead to be the Boards February 9 Order.

Citizens object to the Boards June 1929 and July 11, 2007 Orders. Id.

Citizens argument lacks merit. They claim that the Board found these subparts untimely because the Board adopt[ed] AmerGens argument that raising a sub-issue twice, once in a timely manner and once in a non-timely manner, should lead to its exclusion. Yet, this was not the Boards rationale. The Board denied further litigation of these subparts because Citizens request to litigate these issues had been rejected. See June 19 Order at 2, 5-6; July 11 Order, at 4. Moreover, Citizens claim does not square with the language of the Boards LBP-06-22 decision. There, the Board stated that it viewed the seven contention subparts being ruled upon as seven discrete challenges. LBP-06-22, 64 NRC at 236. This indicates that the Board did not consider any of the subparts to be contained within other subparts. Furthermore, the Board devoted several pages in its decision to denying each denied subpart and explaining its rationale for doing so. See, e.g., id. at 237-40, 254-55. If Citizens theory were correct, such effort would have been needless. The Petition thus does not demonstrate that review of the Boards June 19 or July 11 Orders is warranted.

III. No Prejudicial Procedural Error Occurred Another factor the Commission considers when deciding whether to grant review is whether the proceeding involve a prejudicial procedural error. See § 2.341(b)(4)(iv). Citizens assert that errors pervaded the proceeding. Petition at 21. The Commission will grant relief for procedural errors resulting in actual prejudice, i.e., the petitioner must demonstrate that the Boards procedural error had substantial impact on the outcome of the proceeding. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 NRC 1102, 1151 (1984)

(citing Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 29 Memorandum and Order (Denying AmerGens Motion for Summary Disposition) (June 19, 2007) (unpublished) (June 19 Order).

NRC 1076, 1096 (1983)). As explained below, Citizens have not demonstrated the existence of procedural errors resulting in actual prejudice.

A. The Boards Decisions and Conduct Did Not Violate the APA Citizens argue the Boards denial of their request to cross-examine AmerGen witnesses30 violated the APA. Their argument lacks merit. The Board did not err when it rejected Citizens request to cross-examine Mr. Tamburro, and Citizens fail to show either actual prejudice or that the Board failed to produce an adequate record.31 In 2004, the Commission revised its rules to provide for the use of informal Subpart L procedures for hearings involving license renewals. Changes to Adjudicatory Process, 69 Fed.

Reg. 2182 (Jan. 14, 2004). See Citizens Awareness Network, Inc. v. NRC, 391, F.3d 338 (1st Cir. 2004) (CAN) (finding that the revised rules issued by the Commission on January 14, 2004 meet the requirements of the APA). Subpart L procedures dispensed with the full range of trial-like procedures. 69 Fed. Reg. at 2182. Under Subpart L, cross-examination of witnesses is only available when deemed necessary by the presiding officer to ensure the development of an adequate record for decision. See 10 C.F.R. § 2.1204(b); CAN, 391 F.3d at 351 (finding

§ 2.1204 consistent with the APA requirements). Cross examination as a matter of course is available under 10 C.F.R. Part 2 Subpart G are available only when the presiding officer, by 30 See Memorandum and Order (Ruling on Motion to Conduct Cross-Examination and Motions in Limine) (Sept. 12, 2007) (unpublished) at 3 (denying Citizens request to cross-examine AmerGen witness Peter Tamburro finding that Citizens failed to demonstrate that cross-examination was necessary to ensure the development of an adequate record). See also Memorandum and Order (Denying NIRSs Motion to Apply Subpart G Procedures) (June 5, 2006) (unpublished) (denying a motion to apply the NRCs formal 10 C.F.R. Part 2, Subpart G to this proceeding). To the extent that Citizens complain the Board rigidly applied the rules in rejecting their requests (Petition at 22), they are challenging the rules not the Boards decision and conceding that the Board did not err.

31 Although the witnesses were seated in panels, the Board questioned witnesses individually.

See, e.g., Tr. at 430-437, 449-454 (Board questioning staff witness Dr. Hartzman about the factor of safety); Tr. at 751-753 (Judge Barrata questioning Dr. Hartzman outside of the panel format); Tr. at 629-630, 634-635 (Judge Abramson posing questioning directly to AmerGen witness Dr. Mehta about the GE analysis).

order, finds that resolution of the contention or contested matter necessitates resolution of (1) issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, (2) issues of motive or intent of the party or eyewitness material to the resolution of the contested matter, or both. 10 C.F.R. § 2.310(d). See also 69 Fed. Reg. at 2,205.

In accordance with Subpart L procedures, Citizens had the opportunity, through their pre-filed and live testimony, to highlight inconsistencies between Mr. Tamburros testimony and his documents, and to challenge AmerGens technical credibility. See 10 C.F.R. § 2.1207.

They also had and took the opportunity to propose questions for the Board to ask the Staffs and AmerGens witnesses prior to and during the hearing. Id. Contrary to Citizens assertion (Petition at 23 & n.14), the Board did question Dr. Hartzman about the corrections he made to his testimony. Tr. at 449-454. Thus, Citizens have not demonstrated either they were actually prejudiced by not being able to conduct cross-examination or that the Boards approach to questioning the witnesses produced an inadequate record.

Citizens also assert that the Boards examination of witnesses was insufficient to satisfy the requirements of the APA because important issues of fact were not fully explored. Petition at 24. The APA does not require an exploration of every fact related to an issue. The APA simply requires the Board to produce an adequate record. Petitioners have not shown that this is one of those rare circumstances in which the Boards questioning will not produce an adequate record. 69 Fed Reg. at 2196. The Board possessed the requisite understanding of the evidentiary record to adequately question Mr. Tamburro and the other witnesses.

Furthermore, the Board was fully capable of determining whether a need existed to question Mr. Tamburro or any other witnesses about inconsistency in testimony. Petitioners mere assertions are insufficient to establish actual prejudice.

B. Granting the Renewed License Would Not Violate the AEA Citizens assert that because the Board denied some of their contentions on safety issues renewing Oyster Creeks license would violate the AEA. Citizens are incorrect.

Although [s]ection 189(a) of the AEA prohibits the NRC from preventing parties from ever raising in a hearing on a licensing decision a specific issue it agrees is material to that decision, the NRC is not required to disregard its procedural timetables every time a party realizes . . .

that maybe there was something after all to a challenge it either originally opted not to make or which simply did not occur to it at the outset. Union of Concerned Scientists v. NRC, 920 F.2d 50, 54-55 (D.C. Cir. 1990) (finding that the Commissions late-filed contention rules do not violate the AEA, the APA, or NEPA). As discussed in Part II, supra, the Board did not err by denying Citizens late-filed contentions as untimely. Therefore, denying Citizens a hearing on these issues does not violate the AEA.

Citizens have not shown that the Commission lacks sufficient information to make the findings necessary to issue a renewed license. Petition at 24. Issuance of a renewed license requires a finding that actions have been identified and have been or will be taken such that there is reasonable assurance that licensed activities will be conducted in accordance with the CLB. 10 C.F.R. § 54.29. Citizens reliance on Judge Barratas Additional Statement is misplaced. Judge Barrata does not disagree with the Decisions factual findings, which includes a finding that the CLB, and its requirement that the drywell shell maintain a safety factor of 2.0, is satisfied. Additional Statement at 6; Decision at 26 & n.26.

C. Granting the License Would Not Violate Due Process Citizens assert that granting Oyster Creek a renewed license would violate their due process rights. The voluminous record, however, reflects that Citizens have had a full and fair hearing on their admitted contention. As discussed in Section II, supra, the Board properly dismissed most of Citizens late-filed contentions as untimely. Citizens have simply not demonstrated that they were denied due process.

CONCLUSION For the reasons set forth above, the Commission should deny Citizens Petition for review of LBP-07-17.

Respectfully submitted,

/RA/

Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland This 24th day of January, 2008

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 STAFFS ANSWER TO CITIZENS PETITION FOR REVIEW OF LBP-07-17 in the above-captioned proceeding have been served on the following by electronic mail and deposit in the U.S. Mail Service or deposit in the U.S. Nuclear Regulatory Commissions internal mail system, or by deposit in the U.S. Nuclear Regulatory Commissions internal mail system, or by deposit in the U.S. mail system, as indicated by an asterisk (*), this 24th day of January 2008.

E. Roy Hawkens, Chair Office of the Secretary Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.gov E-mail: ERH@nrc.gov Office of Commission Appellate Anthony J. Baratta Adjudication Administrative Judge Mail Stop: O-16G4 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: OCAAMail@nrc.gov Washington, DC 20555-0001 E-mail: AJB5@nrc.gov Emily Krause Law Clerk Paul B. Abramson Atomic Safety and Licensing Board Administrative Judge Mail Stop: T-3F23 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: EIK1@nrc.gov Washington, DC 20555-0001 E-mail: PBA@nrc.gov

Suzanne Leta Liou* J. Bradley Fewell, Esq.*

New Jersey Public Interest Research Group Exelon Corporation 11 N. Willow St. 4300 Warrenville Road Trenton, NJ 08608 Warrenville, IL 60555 E-mail: sliou@environmentnewjersey.org E-mail: bradley.fewell@exeloncorp.com Donald Silverman, Esq.* Richard Webster, Esq.*

Alex S. Polonsky, Esq. Julia LeMense, Esq.

Kathryn M. Sutton, Esq. Eastern Environmental Law Center Raphael P. Kuyler, Esq. 744 Broad Street, Suite 1525 Morgan, Lewis & Bockius LLP Newark, NJ 07102 1111 Pennsylvania Ave., N.W. Email: rwebster@easternenvironmental.org Washington, DC 20004 jlemense@easternenvironmental.org 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

/RA/

Mary C. Baty Counsel for the NRC Staff

Retrieved from "https://kanterella.com/w/index.php?title=ML080250186&oldid=2572107"