ML082760032

Oyster Creek - NRC Staff'S Supplemental Brief on Commission-Referred Question

ML082760032
Person / Time
Site:	Oyster Creek
Issue date:	10/01/2008
From:	Baty M, Marcia Simon NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, RAS H-71
Download: ML082760032 (12)

Text

October 1, 2008 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 STAFFS SUPPLEMENTAL BRIEF ON COMMISSION-REFFERED QUESTION INTRODUCTION In accordance with the Boards instructions during the September 18, 2008 oral argument in Toms River, New Jersey, the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby submits this supplemental brief. For the reasons set forth below and in the Staffs June 11 and June 18, 2008 submissions, the Staff maintains its position that the structural analysis that AmerGen has committed to perform, and that is reflected in the Staffs proposed license condition, matches or bounds the sensitivity analyses that Judge Baratta would impose and that, in any event, no additional analysis is necessary.

BACKGROUND On December 18, 2007, this Board issued an initial decision resolving Citizens contention1 in favor of AmerGen concluding: AmerGen has demonstrated that the frequency of its planned UT measurements, in combination with other elements of its aging management program [(AMP)], provides reasonable assurance that the sand bed region of the drywell shell 1

Citizens contention asserted that, [i]n light of the uncertain corrosive environment and the 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. AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), LBP-07-17, 66 NRC 327, 336 (2007).

will maintain the necessary safety margin during the period of extended operation. Oyster Creek, LBP-07-17, 66 NRC at 330. In so concluding, the Board found the following:

• The factor of safety is greater than 2.0. Id. at 343 n.20.

• AmerGen demonstrated by a preponderance of the evidence that the sand bed region satisfies the acceptance criteria [which are part of CLB]. Id. at 345.

• [T]here will be an available margin of at least 0.064 inch when Oyster Creek enters the renewal period. Id.; see also id. at 371.

• The external UT measurements are not representative of the overall drywell shell thickness in the sand bed region and do not provide a basis for determining the available buckling margin. Id. at 349 n.30.

• The external UT measurements, which are representative of the most severely corroded areas, were then thinned even further (approximately 100 to 200 mils) by the grinding process. Id.

• Dr. Hauslers contour plots are not reliable representations of the drywell shell because they are based upon the exterior UT measurements, which are significantly biased in the thin direction. Id.

• AmerGens compliance with its commitment, and the proposed license condition, to perform a 3-D analysis is not a condition precedent to renewing Oyster Creeks operating license. Id. at n.55.

In an Additional Statement appended to the Boards initial decision, id. at 373-76, Judge Baratta stated that he agreed with his brethrens findings of fact, but given the limited data set of thickness measurements he would impose an additional requirement to perform a series of sensitivity studies as part of AmerGens future 3-D analysis, to provide a conservative best estimate of the actual condition of the drywell shell. Id. at 376.

On January 14, 2008, Citizens appealed this Boards decision in LBP-07-17. 2 The Staff and AmerGen filed answers on January 24, 2008. 3 On May 28, 2008, the Commission issued an order requesting briefs addressing the following:

2 Citizens also appealed to the Commission several decisions by this Board denying admission of proposed contentions challenging, among other things, the adequacy of AmerGens thickness acceptance criteria, the spatial scope of AmerGens UT monitoring program, AmerGens method for (continued. . .)

Explain whether the structural analysis AmerGen has committed to perform, and that is reflected in the Staffs proposed license condition, matches or bounds, the sensitivity analyses Judge Baratta would impose. In any event, explain whether additional analysis is necessary.

Oyster Creek, CLI-08-10, 67 NRC __ (May 28, 2008) (slip op. at 3). The parties filed initial briefs on June 11, 20084 and reply briefs on June 18, 2008.5 On August 21, 2008, the Commission referred the single specified issue in CLI-08-10 to this Board for expeditious resolution. See Commission Order (Aug. 21, 2008) (unpublished) at 2 (Commission Order).

On September 18, 2008, this Board held oral argument on the referred issue in Toms River, NJ. See Memorandum and Order (Scheduling Oral Argument) (Sept. 8, 2008) (unpublished). Prior to the argument, the Board provided a list of topics to be addressed at oral argument. See Memorandum and Order (Topics for Discussion and Procedures for Oral Argument) (Sept. 10, 2008) (unpublished).

(. . .continued) analyzing UT results, and the use of the capacity reduction factor in determining the thickness acceptance criteria. See Citizens Petition for Review of LBP-07-17 and Interlocutory Decisions in the Oyster Creek Proceeding (Jan. 14, 2008) (Petition) at 17-18.

3 See AmerGens Answer Opposing Citizens Petition for Review of LBP-07-17 and the Interlocutory Decisions in the Oyster Creek Proceeding (Jan. 24, 2008); NRC Staffs Answer to Citizens Petition for Review of LBP-07-17 (Jan. 24, 2008).

4 NRC Staffs Brief Responding to the Commissions Order (Staff Brief) (attaching Affidavit of Hansraj G. Ashar); AmerGens Initial Brief in Response to CLI-08-10 (AmerGen Brief) (attaching Affidavit of John F. ORourke); Citizens Response to the Commissions Order (Citizens Brief) (attaching three exhibits including Declaration of Dr. Rudolf Hausler (CR 1)).

5 NRC Staffs Reply in Response to Citizens Response to Commission Order Dated May 28, 2008 (Staff Reply); AmerGens Reply to Citizens Response to CLI-08-10 (AmerGen Reply); [Citizens]

Reply to NRC Staff and AmerGen Responses to Commission Order Dated May 28, 2008 (Citizens Reply) (attaching Declaration of Dr. Rudolf Hausler (CR 4) and Letter from J. Kirk Brownlee and Richard C. Biel to Richard Webster (June 17, 2008) (CR 5)). It should be noted that Messrs. Brownlee and Biel did not provide statements of professional qualifications, did not testify at hearing, and have not been qualified as experts in this proceeding.

As requested by the Board in its September 10 Order, AmerGen distributed a diagram explaining Mr. ORourkes June 11, 2008 affidavit to the Board and the parties.

See e-mail from Raphael P. Kuyler, counsel for AmerGen, to Emily Krause, Board law clerk, enclosing AmerGen diagram of base case thicknesses (Sept. 16, 2008). On the same day, Citizens filed Citizens Emergency Motion to Amend Reply Pleading and for Other Appropriate Relief (Citizens September 16 Motion). On September 18, 2008, in response to Citizens Motion, the Board ruled from the bench that each party would have an opportunity to file a supplemental brief. Tr. 916, 1045-47.

DISCUSSION I. Boundaries of the Commission Order and Status of the Evidentiary Record The Commission Order did not remand the proceeding, reopen the record, order further evidentiary hearing, or suggest in any way that this Board should reconsider its initial decision.6 The record in this proceeding is closed and Citizens appeals of LBP-07-17 and the Boards interlocutory decisions regarding admissibility of Citizens other proposed contentions are still pending before the Commission. Tr. 1034, 1039 (J. Abramson). Thus, the Commissions request for additional briefs in CLI-08-10, the Boards oral argument, and these supplemental briefs are not opportunities for Citizens to reargue their appeals or for any party to supplement the evidentiary record.

At oral argument Citizens asserted that this Board has the jurisdiction to take additional testimony and or revisit issues already reviewed and determined. Tr. 928 (citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station) et al., CLI-77-10, 6

Compare Commission Order with Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC 22, 24 (1986) (specifically reversing and remanding for further evidentiary hearing) and Andrew Siemaszko, CLI-06-16, 63 NRC 708, 718-19 (2006) (vacating and remanding licensing board decision for further consideration because decision was too cursory and in other respects in error).

5 NRC 717 (1977) (CLI-77-10). The case cited by Citizens, however, is inapposite. In CLI-77-10, the Commission instructed appeal boards to resume show cause (i.e. 10 C.F.R.

§ 2.206) proceedings7 that had been suspended pending promulgation of an interim rule.

CLI-77-10, 5 NRC at 717. The Commission stated that the boards could secure the information necessary to act in those proceedings, but noted that in most cases no additional information would be necessary. Id at 717. Here, however, the Commission has not instructed this Board to resume the proceeding or obtain additional information. In a situation much more similar to the one at hand, the Commission remanded a single issue to the Board for clarification before taking action on three pending petitions for review of the Boards decision. Louisiana Energy Serv. (Claiborne Enrichment Ctr.), CLI-97-11, 46 NRC 49 (1997). In providing the requested clarification, the Board stated that it could not properly rely upon evidentiary material submitted after the close of the record in making factual findings. Louisiana Energy Serv. (Claiborne Enrichment Ctr.), 46 NRC 275, 277 n. 1 (1997);8 see also Carolina Power and Light Co.

(Shearon Harris Nuclear Power Plant, Units 1-4), ALAB-526, 9 NRC 122, 124 n.3 (1979)

(stating that on remand, a licensing board may only consider the specific remanded issue).

Thus, Citizens assertion that the Board has jurisdiction to revisit issues beyond the single specified issue in CLI-08-10 is unsupported and their attempts to revisit such matters should not be entertained.9 7

See, e.g. Public Serv. Co. of New Hampshire, et al. (Seabrook Station Units 1 & 2), CLI-76-17, 4 NRC 451 (1976)(granting motion to suspend construction permits for the Seabrook station in light of a Commission policy statement on the environmental effects of the uranium fuel cycle).

8 In granting a subsequent motion by Louisiana Energy Services to withdraw its application and terminate the proceeding, the Commission vacated the Boards decision but stated: Our decision to vacate the Board orders does not intimate any opinion on their soundness. Louisiana Energy Serv.

(Claiborne Enrichment Ctr.), CLI-98-5, 47 NRC 113, 114 (1998).

9 See, e.g., AmerGen Reply at 3-5 (listing Citizens attempts to resurrect arguments considered and rejected by this Board and the ACRS).

II. Staff Review of the Planned 3-D Finite Element Analysis Neither the Staffs nor this Boards finding of reasonable assurance that the structural integrity of the drywell shell will be maintained during the period of extended operation is predicated on AmerGens performance of a 3-D structural analysis. Oyster Creek, LBP-07-17, 66 NRC at 330, 367 n.55, 371; Staff Initial Brief at 3; Tr. 1002 (J. Abramson). The 3-D analysis AmerGen plans to perform is not part of AmerGens AMP for the drywell shell, and it is the AMP, not the future 3-D analysis, that provides reasonable assurance. Oyster Creek, LBP-07-17, 66 NRC at 330, 371. The GE analysis (which forms the basis for AmerGens AMP), not the future 3-D analysis, is and will remain Oyster Creeks CLB absent a request to amend it. See id.

at 342-45 & n.55. Nevertheless, the Staff plans to review, in accordance with Inspection Procedure 71003, the summary of the 3-D analysis that AmerGen has agreed to provide. This detailed summary will describe the methodology, input assumptions, modeling approach, and overall conclusions in detail sufficient for the Staff to determine whether the analysis is consistent with applicable codes and standards and to ensure that the CLB remains conservative. 10 If the Staff has questions or concerns, the Staff will audit the underlying calculations in order to make these determinations.

III. Regulations Require AmerGen to Meet the Acceptance Criteria Formed by the CLB Analysis, Not to Precisely Quantify Margin In arguing that AmerGens planned analysis will not meet Judge Barattas requirements and that more analysis is needed, Citizens allege that the margin is unknown (referring to the 10 AmerGen represented that the summary will be hundreds of pages, including figures, diagrams, and data, such that a knowledgeable structural engineer could view it with an independent eye.

Tr. 1026-27. AmerGen also represented that the summary will not contain proprietary information.

Tr. 1034. If this is the case, the Staff will make the entire summary available to the public. However, it is the Staffs understanding that some aspects (i.e., design input information) of the entire analysis (as opposed to the summary) may be proprietary.

margin by which the factor of safety exceeds 2.0)11 and that this margin must be known in order for AmerGen to develop an effective AMP (i.e. to determine the frequency of UT inspections).

In LBP-07-17, however, this Board found that although the precise factor of safety is not known, it is greater than 2.0 because the average thickness of the drywell shell is substantially greater than 0.736 inch (i.e. generalized corrosion has not thinned the entire drywell shell in the sand bed region to 0.736 inch). Id. at 343 n.20. While Citizens may disagree with this finding, unless and until the Commission finds it is not supported by the record, Citizens assertions do not demonstrate that additional analysis is needed to develop an adequate AMP.12 Furthermore, Citizens have provided no regulatory basis for their assertion that the precise factor of safety must be quantified. Part 54 requires that AmerGen establish an AMP that is adequate to provide reasonable assurance that the intended functions of Oyster Creeks drywell shell will be maintained in accordance with the CLB during the period of extended operation. See 10 C.F.R.

§§ 54.21, 54.29. Thus, the regulations require only reasonable assurance that the drywell shell complies with the CLB, not an exact determination of the margin by which it exceeds the CLB.

IV. Citizens Assertions Regarding AmerGens Planned Analysis are Not Credible In asserting that AmerGens planned 3-D analysis will not address Judge Barattas concerns, and that more analysis is needed, Citizens alleged several inadequacies in AmerGens proposed analysis, none of which is credible. First, Citizens argued that AmerGens base case does not adequately consider the external UT measurements, which, in Citizens 11 This should not be confused with the margin above the thickness acceptance criteria from general buckling, which the Board found to be 0.064 inch. See Oyster Creek, LBP-07-17, 66 NRC at 348

& n.27.

12 Citizens argument that more data is needed, Tr. 1004-05, 1022, is an attempt to revive a contention that was not admitted by this Board. AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 NRC 229, 249-51 (2006). See also Petition at 17-18 (appealing Board decision in LBP-06-22). Moreover, Judge Barattas Additional Statement does not suggest that more measurements or new measurement techniques are needed and the Commissions question did not ask if more data or new measurement techniques are needed.

view, are more representative of the remaining thickness than the internal measurements.

Tr. 982, 1004. This assertion challenges a specific Board finding and substantial evidence in the evidentiary record, including evidence presented by Citizens expert and observations of individuals who have actually inspected the drywell shell. Oyster Creek, LBP-07-17, 66 NRC at 348, 349 n.30, AmerGen Exh. C, Part. 3 at A.42; Citizens Exh. 12 at 4; Tr. 555 (Tamburro),

560 (OHara). This Board also found that the grid locations for internal measurements of the drywell shell were selected after taking over 1000 UT measurements to identify the thinnest areas in each bay; that these grids are located at the elevation where the observed corrosion was most concentrated; and that future corrosion, if it occurs, will occur at the bottom of the sand bed region, where the margin is 0.229 inch. Oyster Creek, LBP-07-17, 66 NRC at 346, 368; AmerGen Exh. 3 at 5-1.

Second, Citizens asserted that the planned analysis will not adequately consider individual thin points. Tr. 990, 1000. As Judge Baratta noted, however, Citizens assertion is contradicted by the testimony of Dr. Hardayal S. Mehta that variations in properties over areas smaller than the square root of radius over thickness will not materially affect the results.13 Tr. 990-992 and 1000 (Baratta) (citing Tr. 476 (Mehta)).

Third, Citizens argued that AmerGen has not explicitly accounted for uncertainty in its 3-D analysis. Judge Baratta questioned Citizens argument, quoting from Citizens own exhibit, CR 4. Tr. 996-97.

Fourth, Citizens asserted that AmerGens base case is not realistic because it uses data from non-adjacent bays and does not show the bathtub ring all the way around the drywell shell.

Tr. 994-95. The assertion that AmerGen is improperly using data from non-adjacent bays lacks 13 For the drywell shell at Oyster Creek, the buckling safety factor would not be materially altered if there are fluctuations in thickness over a distance smaller than 18 inches. Tr. 476-77 (Mehta). Citizens non-structural engineer witness did not dispute this. Tr. 479 (Hausler).

merit, because, as Judge Baratta noted, AmerGen is not relying strictly on thickness measurements but also on visual inspection. Tr. 994. The assertion that the bathtub ring goes all the way around the drywell shell is not supported by the inspection results, which show that some bays have little corrosion. Oyster Creek, LBP-07-17, 66 NRC at 333; AmerGen Exh. 16.

Fifth, Citizens assert that, based on the Sandia analysis, the capacity reduction factor (CRF) AmerGen plans to use is too high and results in double counting of hoop stress.

Tr. 995. The Staffs position is that a modified CRF is acceptable for evaluation of Oyster Creeks drywell shell.14 See Staff Exh. 1 at 4-72. Although Sandia did not use a modified CRF, Sandia took no position on GEs use of a modified CRF. See Letter From P.T. Kuo, NRC, to Frank Gillespie, ACRS, Re: ACRS Review of Oyster Creek LRA (Mar. 8, 2008) (ADAMS Accession No. ML070650376) at 2. The GE analysis is the CLB and cannot be challenged in this proceeding. Oyster Creek, LBP-07-17, 66 NRC 339, 342-345.

Finally, the only support15 Citizens provided for its assertions that AmerGens planned 3-D analysis will not address Judge Barattas concerns and that additional analysis is needed comes from Dr. Hausler, who is not a structural engineer. Tr. 986-89; Oyster Creek, LBP-07-17, 66 NRC at 345.

IV. AmerGens Base Case Diagram is Based on Record Material Citizens assertion that AmerGens base case diagram is not based on record material and that they were caught unawares by the inclusion of five locally thinned areas in the base 14 ASME Code Case N-284 provides that higher values of capacity reduction factor may be acceptable to account for the beneficial effects of tensile hoop stresses. The derivations of a modified CRF were based on research performed by Dr. Clarence Miller, which he presented at the ACRS Meeting on January 19, 2007. See AmerGen Exh. 41 at 22-28 15 The opinion of Richard C. Biel and J. Kirk Brownlee (CR 5) attached to Citizens Reply Brief does not address the Commissions question, i.e. whether Judge Barattas concerns are addressed.

Rather it describes the limitations of the GE analysis, makes a tentative statement about Sandias decision not to use the enhanced capacity reduction factor, and suggests use of laser-generated point clouds to model the drywell shell. CR 5 at 2, 4.

case for the 3-D model is not credible. September 16 Motion; Tr. 1013-14. First, ¶ 15 of Mr. ORourkes affidavit clearly states that five locally thinned areas were included in the base case. Second, it is perfectly reasonable to expect parties to be familiar with the evidentiary record such that they will recognize when material taken directly from hearing exhibits (in this case Citizens own exhibits 4516 and 46) is repeated in slightly different form. Third, Citizens have provided no authority requiring affidavits to provide precise citations to the record.17 Finally, Citizens explicitly cited their Exhibit 45, which contains figures of the five locally thinned areas, in their June 18, 2008 Reply Brief at 3. Thus, Citizens assertions are simply not credible.

CONCLUSION For the reasons explained above, AmerGens planned 3-D structural analysis addresses Judge Barattas concerns, no additional analysis is needed, and Citizens have failed to proffer credible evidence to the contrary.

Respectfully submitted,

/RA/

Mary C. Baty Marcia J. Simon Counsel for NRC Staff Dated at Rockville, Maryland this 1st day of October 2008 16 Citizens Exh. 45, AmerGen Technical Evaluation 330592-27-27 (Apr. 20, 2007), explicitly states that the information it contains will be provided to Structural Integrity Associates to perform the realistic 3-D analysis. On page 6 of 12, there is a table for the base case analysis and a note that locally thin areas shall be modeled per attachment 1, which contains diagram of five locally thinned areas.

17 Furthermore, Citizens expert, Dr. Hausler, failed to provide citations for his sources. In CR 4 at 2 of 7, Dr. Hausler asserts that the relationship between the internal grid reference and the external reference was revealed at hearing without citing any exhibit or the transcript. He then depicts the purported relationship in figures 3-11, and 13. Inexplicably, Dr. Hauslers depiction of this relationship conflicts with AmerGens depictions in AmerGen Exh. 28 and 40 at 101.

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 NRC STAFFS SUPPLEMENTAL BRIEF ON COMMISSION-REFFERED QUESTION 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 October 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*

New Jersey Public Interest Research Group J. Bradley Fewell, Esq.*

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

Alex S. Polonsky, Esq. Richard Webster, Esq.*

Kathryn M. Sutton, Esq. Julia LeMense, Esq.

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