ML090480395

Motion by Counsel for Nuclear Information and Resource Service to Reopen the Record and to Postpone Final Disposition of the Licensing Decision

ML090480395
Person / Time
Site:	Oyster Creek
Issue date:	02/02/2009
From:	Webster R Eastern Environmental Law Ctr, Grandmothers, Mothers & More for Energy Safety, Jersey Shore Nuclear Watch, New Jersey Environmental Federation, New Jersey Public Interest Research Group (NJPIRG), Nuclear Information & Resource Service (NIRS), Sierra Club, New Jersey Chapter
To:	Atomic Safety and Licensing Board Panel, NRC/OCM
SECY RAS
References
06-844-01-LR, 50-219-LR, RAS H-100
Download: ML090480395 (31)

Text

)ZA-S /-(- q ý DOCKETED USNRC February 2, 2009 (4:04pm)

OFFICE OF SECRETARY February 2, 2009 RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ))

AMERGEN ENERGY COMPANY, LLC ) Docket No.

(Oyster CreekNuclear Generating Station) ) 50-219-LR

)

MOTION BY NUCLEAR INFORMATION AND RESOURCE SERVICE; JERSEY SHORE NUCLEAR WATCH, INC.; GRANDMOTHERS, MOTHERS AND MORE FOR ENERGY SAFETY; NEW JERSEY PUBLIC INTEREST RESEARCH GROUP; NEW JERSEY SIERRA CLUB; AND NEW JERSEY ENVIRONMENTAL FEDERATION TO REOPEN THE RECORD AND TO POSTPONE FINAL DISPOSITION OF THE LICENSING DECISION Submitted by:

Richard Webster Eastern Environmental Law Center 744 Broad Street, Suite 1525 Newark, NJ 07102-3094 Counselfor Nuclear Information And Resource Service; Jersey Shore Nuclear Watch, Inc.;

Grandmothers,Mothers And More For Energy Safety; New Jersey Public Interest Research Group; New Jersey Sierra Club; New Jersey EnvironmentalFederation J~4~L~ 4 0

TABLE OF CONTENTS PRELIMINARY STATEMENT .......... ........................................................ ...... 1 NEW INFORMATION AVAILABLE................................................................... 2

1. Visual Inspections Have Repeatedly Failed To Find Ongoing Corrosion ................. 3

11. Water From Multiple Sources Is Probably Entering The Sandbed Region ................. ...... 4 1I1. The Committed Measures Are Insufficient To Determine When Water Is Present In The Sand Bed Region................................................. I.....................

................. 5 IV. The Board's Conclusion Regarding The Aging Management Program For The Drywell Is No Longer Valid .................................................................................... 6 V. The Report Shows That The Aging Management For-The Piping May Be Inadequate......... 8 ARGUMENT................................................................................................ 9 I. The Commission Should Hear This Motion............................................ I............ 9 1I. The Record Must Be Reopened...................................................................... 9 A. This Motion Is Tim ely ...  :..................................... ............ 10 B. This Motion Raises A Significant Safety Issue ............ ................................... 12 C. The New Evidence Would Have Materially Affected The Board's Decision ............. 14 111. Citizens May Raise An Admissible New Contention............................................ 15 CON CLU SIO N ........................................................... ..... 16

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION, OFFICE OF THE SECRETARY BEFORE THE COMMISSION In the Matter of )

) Docket No. 50-0219-LR AMERGEN ENERGY COMPANY, LLC )

)

(License Renewal for the Oyster Creek )

Nuclear Generating Station) ) February 2, 2009 MOTION TO REOPEN THE RECORD AND TO POSTPONE FINAL DISPOSITION OF THE LICENSING DECISION PRELIMINARY STATEMENT Nuclear Information and Resource Service, Inc., Jersey Shore Nuclear Watch, Inc.,

Grandmothers, Mothers and More for Energy Safety, New. Jersey Public Interest Research Group, New Jersey Sierra Club, and the New Jersey Environmental Federation (collectively "Citizens") submit this Motion (supported by the attached Declaration of Rudolf Hausler, dated February 2, 2009, attached as Exhibit CRO 1) because the NRC Staff has recently published an inspection report containing facts that contradict the testimony of certain witnesses during this proceeding and invalidate the initial decision of the Atomic Safety and Licensing Board (the "Board") in this case. 1 Citizens have already addressed these issues to some extent in their Notification provided to the Commission on January 23, 2008. However, Citizens are now electing to provide a more formal motion with the support of an expert to ensure that the Commission is fully informed about the extent to which the new information requires' enhancement of the proposed aging. management program ("AMP") for the drywell.

Initial Decision, In the Matter Of AmerGen Energy Co, LLC (License Renewal for Oyster Creek Nuclear Generating Station, LBP-07-I 7 (December 18, 2007) (the "Decision").

I,. The latest inspection report also showed that a one-time inspection to confirm that certain 3

piping was not deteriorating rapidly enough to require aging management actually showed the opposite to the extent that the pipe walls at some locations were already below acceptance criteria. Citizens are seeking more information on this issue from the Staff and are. considering 3 whether to file a motion for a new contention. Citizens therefore request the Commission to delay taking final action on the pending licensing decision at least until after February 20, 2009, which is the approximate deadline for such a contention to.be filed.

3 NEW INFORMATION AVAILABLE On January 21, 2009, the NRC Staff published the inspection report No.

05000219/2008007 (the "Report"), which is available on ADAMS as document number 3 ML090210106. The information in the Report contradicts three critical findings made by the, 3 Board in its Initial Decision in this proceeding and therefore undermines the overall finding that the aging management program ("AMP") for the drywell shell to which AmerGen Energy Co.,

I LCC ("AmerGen") 2 has committed would provide reasonable assurance of adequate protection I . during any extended period of operation. The critical findings that the information in the Report contradicts are: i) visual inspections alone are adequate to detect the onset of corrosion and I coating degradation; ii) the only source of water that could enter the drywell is from the refueling 3 cavity; and iii) committed measures are sufficient to determine when water is present in the sand bed region. Furthermore, the inspection report shows that loss of material due to aging in at least some piping is significant and requires additional aging management. The Commission Itherefore cannot currently find that the proposed aging management programs are sufficient to provide reasonable assurance that the reactor will operate in accordance with' its current licensing I basis ("CLB") during any extended period of operation.

2 Exelon Nuclear, Inc. ("Exelon") has now taken over the license from AmeiGen.

3 2

I I. Visual Inspections Have Repeatedly Failed To Find Ongoing Corrosion In its Decision the Board cited favorably to the testimony of four AmerGen witnesses and one NRC Staff witness, all of whom agreed that the epoxy coating on the exterior of the drywell in the sandbed region was not degraded at all. Decision at 41-42, 45. This testimony was based 3 on both direct observation and observation of the video tapes. Id. at 41-42. In particular, the NRC Staff witness both checked either the tapes and directly inspected the. coating in Bays 11 and 13 to check on the accuracy of AmerGen's visual inspection. Transcript of the Hearing on 1 September 24 & 25, 2007 (Tr.) at 443:19-444:6. However, the Report now confirms that that a six inch rust stain and a broken blister was present in 2006 in Bay 11 and is visible on the video.

Report at 11. Thus, the testimony of both AmerGen and Staff witnesses about the state of the epoxy coating was erroneous. Furthermore, this testimony indicates that two separate direct I . visual inspections, one by an NRC inspector, and subsequent reviews of video tapes, were unable to reliably identify even a broken blister with a six inch rust stain.

1 AmerGen witnesses, with whom the Board concurred, also stated that visual observations would be sufficient to detect the early stage of coating failure. Decision at 38, 40-41. However, the Report states that Exelon concluded that the corrosion had taken place over approximately 16 years. Report at 11. This may be because the broken blister with a rust stain, which the direct visual inspections in 2006 failed to find, is a late stage of coating failure., Earlier signs of coating failure are unbroken blisters. Report at 11. Because it is more difficult to see unbroken blisters I without any staining, the repeated failure to spot the broken blister with a rust stain in 2006 completely discredits the claims that visual observation alone can reliably find the early stages of coating failure. Overall, the Report shows that, contrary to the Board's finding, Decision at 38, I visual observation alone cannot provide reasonable assurance that ongoing corrosion will be 3 detected.

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II. Water From Multiple Sources Is Probably Entering The Sandbed Region Relying in part upon evidence that no water was found in the sandbed region in 2006, Decision at 33, and that AmerGen has enhanced its commitments regarding the prevention of leakage from the refueling cavity into the sandbed region, the Board found that the refueling cavity was the only source of water that could enter the sand bed region, AmerGen's commitments eliminated the potential for leaking from the refueling cavity, and in the absence of such leakage, there would be no further corrosion. Decision at 36.

The Report directly contradicts the second of these findings because in 2008, water from the refueling cavity leaked into four bays in the sandbed region, despite the implementation of the committed leakage prevention and. control measures. Report at 7-8. Furthermore, three other findings in the Report suggest that other sources of water may be entering the drywell. First, a poly bottle connected to the floor drain from Bay 11 contained water on November 15, even though it had been empty on November 14. Report at 6. This water could' not have come from the reactor cavity because it had been drained on November 12, and all the bays had been dried and inspected for moisture thereafter, without anything being found. Id. at 7. Radiological and chemical analysis of the water in the bottle did not shed any light on its origin. Id. at 6.

Second, despite the reported absence of water in the sand bed region during the 2006 outage, three unbroken blisters were found in 2008. Id. at 11. The Report states that Exelon reviewed the 2006 video of the sand bed and found the broken blister, but makes no mention of the three unbroken blisters. Id. In the absence of any further information, it therefore appears that these blisters formed between 2006 and 2008. Because the reactor cavity was empty during this time, the water that caused these blisters is unlikely to have come from the reactor cavity.

Finally, the torus room floor had standing water upon it during most of the outage from "other identified system leaks." Report at 6. Citizens know of no evidence showing that that AmerGen 4

I has verified that these other leaks could not enter the sandbed region. Because AmerGen bears the burden of proof in licensing proceedings, AmerGen must show why these leaks can reach the torus room, but not reach the sandbed region of the drywell.

Three separate pieces of evidence therefore indicate that there is'probably an additional source of water to the sandbed region apart from the refueling cavity. First, the bottle collecting I the Bay 11 drainage filled when the cavity was empty and the Bays had been dried. Second, corrosion-related blisters probably formed between 2006 and 2008. As the Board noted,, these 3blisters would not form in the absence of water. Thus, if the testimony that Bay 11 was dry during the 2006 outage is correct, e.g. Testimony of NRC Inspector O'Hara, Tr. at 444:16-18, there must have been a source of water other than the refueling cavity to enable these blisters to I form. Citizens trust that NRC experts are carefully examiningthe analyses of the collected water to confirm where it came from. Finally, the torus room floor was wet most of the time showing that leakage at the plant is pervasive. Given this evidence, it is impossible to conclude with reasonable assurance that the refueling cavity is the only source of water that could leak to the Isandbed region.

III. The Committed Measures Are Insufficient To Determine When Water Is Present In 3The Sand Bed Region The Board concluded somewhat paradoxically that water that reached the sandbed floor would flow to the drains, even though the epoxy on the floor was not intended to be a moisture I barrier. Decision at 46 n. 48. This footnote rejected one of the many reasons that Citizens had alleged could allow water to be present in the sandbed region, but not flow to the drains and be seen in the bottles. Citizens Ex. B A. 18 (Initial Testimony of Dr. Hausler). The Report confirms the presence of dripping water in Bay 11 on November 8, 2008, and puddles of water on the floor of Bays 13, 15, and 17. Report at 7. However, while the Report notes that the bottles

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connected to the drains were monitored every four hours up to November 12, 2008, id., and daily thereafter, id. at 6, no water was found in the bottle that drained Bay 11 prior to November 15, id, and the Report contains no mention of the discovery of water in other bottles. Thus, the Report shows directly that Dr. Hausler was correct and water can be present in the sand region, but not be detected in the bottles, even when they are actually connected to drains, as intended.

This means that AmerGen's failure to find water during operation in the bottles collecting the sandbed drainage does not mean that water is not present in the sandbed region during operation.

IV. The Board's Conclusion Regarding The Aging Management Program For The Drywell Is No Longer Valid Ultimately, the Board decided to assume that some water could reach the sandbed region

,and could penetrate the coating. Decision at 49-50. Thus, the Board's decision did not rest on incorrect sworn assurances from AmerGen witnesses that water would not enter the sandbed region because it would be caught by the trough drain, Decision at 36, that the coating was in pristine condition, AmerGen Ex. B part 5 at A. 23, or. that absent immersion, osmotic diffusion could not enable water to penetrate the epoxy coating. AmerGen Ex. C part 5 at A. 12.

The Decision actually rested tipon the premise that water could only be present in the drywell for 30 days because the refueling cavity was the only source of water that could reach the sandbed any waterpresent would evaporate rapidly. Decision at 50. The Board assumed a corrosion rate of 0.039 inches per year for external corrosion during these 30 day periods, which it assumed would occur once every two years. Id. at 50-51. This reduced the average external 3 On November 10,'2008, Exelon found that two of the five tubes connecting the bottles to the drains were disconnected. Report at 6. It appears that no check of this basic requirement had been carried out, because "Exelon personnel could not determine when the tubing was last verified to be connected to the funnel." Id However, these tubes came from Bays 3 and 7, id., so do not affect Citizens conclusion that water can be present in the Bays, but not drain to the bottles.

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corrosion rate to 0.0015 inches per year. Id. at 51. The Board then made an allowance for possible internal corrosion at 0.002 inches per year and therefore concluded the maximum corrosion rate could be at most about 0.0035 inches per year. Decision at 17, 50. The Board then concluded that over 4 years the maximum amount of corrosion could be 0.014 inches, which is only a quarter of the limiting margin the Board found. Id.

The Report shows that it is possible for water to be present in the sandbed region at times other than during refueling. This may be because there are sources of water other than the refueling cavity or because after the water has gone underneath the coating, the coating then impedes evaporation of the water. The Report also shows that water could be present in the drywell, but would not drain to the bottles connected to the drains. Furthermore, the Report shows that even longstanding corrosion can repeatedly evade detection by visual inspection.

Redoing the Board's calculations to reflect the reality shown by the Report, the maximum corrosion rate would be 0.039 inches per year externally, because water could be continually present in the drywell during operation without being detected. Allowing for the possibility of internal corrosion at 0.002 inches per year, the maximum corrosion rate would be 0.041 inches per year. This corrosion rate would use up the available margin that the Board found within 1.5 years. 4 This shows that the proposed inspection frequency of every four years is inadequate.

Furthermore, if visual detection alone is used, the corrosion could be missed in one or more inspections. This shows that AmerGen should augment its visual inspections with other techniques.

4 As documented in Citizens' letter of January 26, 2009 and in briefs and affidavits provided to the Board during the proceeding concerning the Commission's question concerning the analysis required by Judge Baratta, the margin found by the Board may be illusory and must, at minimum, be verified by a rigorous three dimensional structural analysis which meets the recommendations of the Board and the Advisory Committee on Reactor Safeguards ("ACRS"). Because such an analysis has not yet been completed, it is premature to make a final estimate of the required routine monitoring frequency. Therefore the-calculation supplied here is purely illustrative.

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V. The Report5 Shows That The Aging Management For The Piping May Be Inadequate With regard to certain piping systems, AmerGen committed to perform a "one-time inspection program" in order to provide reasonable assurance that aging was not significant and therefore would not-need additional aging management. Safety Evaluation Report for Oyster Creek, dated April 2007 ("SER") at Appendix A Item 24. Such inspections had not been previously carried out. See id. (stating "this program is new"). The Report shows that at two out of 24 measured locations the aging was so significant that the pipe thickness was below the acceptance criteria. Report at 15. It then states without elaboration "the results were evaluated within the corrective action programs." Id.

Exelon has indicated to Citizens that the acceptance criteria were set to indicate any deterioration and that aging of the inspected piping "would be of little or no consequence." E-mail from A. Polonsky to R. Webster, dated February 2, 2009. Citizens have requested clarification of these statements. Although the available information is sparse, it is all that Citizens and the Commission have available at this time. In the absence of further explanation, the available information shows that the one-time inspection program confirmed precisely the opposite of what was intended, that aging of the inspected pipes is occurring, although to an as yet unknown degree. Thus, at minimum, Exelon and Staff should review whether additional aging management is needed in light of the unexpected finding of detectable aging. In addition, at this stage, because the one-time inspection using ultrasonic testing ("UT") found detectable aging, ongoing periodic UT inspections may be required to adequately manage future aging.

5 Citizens recognize that this issue was not raised previously. However, it is based upon new information that only came into Citzens' possession on January 21, 2009. Citizens are currently attempting to obtain more information on this issue and note that they have at least 30 days from January 21,2009 to determine whether to file a new contention regarding this issue.

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KP Because this inspection was a one-time event, Citizens conclude that, at,present, AmerGen may not have an ongoing UT inspection program in placefor the inspected pipes.6 Therefore, the Commission cannot currently issue a new license, because it is unclear whether further actions are needed to provide reasonable assurance that the pipes will continue to meet CLB requirements. 10 C.F.R. § 54.29.

ARGUMENT I. The Commission Should Hear This Motion Because a licensing board has no jurisdiction to consider a motion to reopen the record in a proceeding where it has issued its final decision and a party has already filed a petition for Commission review of the decision, a motion to reopen the record at that-point should be referred to the Commission for consideration. PhiladelphiaElectric Co. (Limerick Generating Station, Units 1 & 2), ALAB-823, 22 NRC 773, 775 (1985). Here, Citizens have already filed their petition for Commission review of the licensing board decision. Thus, jurisdiction over this motion properly rests with the Commission. Prior to filing this motion, Citizens consulted with the NRC Staff and AmerGen. The NRC Staff reserved their position until they see the motion, while AmerGen opposes the motion.

lI. The Record Must Be Reopened In accordance with 10 C.F.R. § 2.326 a motion to reopen the record must: be timely, address a significant safety issue, and show that it could materially affect the decision before the Commission:

6 Citizens checked ADAMS on January 23, 2009 and found no proposal by AmerGen to enhance the commitment for the aging management of the pipes.

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(a) ...

(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

(d) A motion to reopen which relates to a contention not previously in controversy among the parties must also satisfy the requirements -for nontimely contentions in § 2.309(c).

A. This Motion Is Timely A motion to reopen the record in order to admit a new contention must be filed promptly after the relevant information needed to frame the contention becomes available. Public Service Co. of New Hampshire (Seabrook Station, Units I & 2), CLI-90-6, 31 NRC 483, 487 (1990).

Furthermore, a party's opportunity to gain access to information is a significant factor in a Board's determination of whether a motion based on such information is timely filed. Houston Lighting & Power Co. (South Texas Project, Units 1 and 2), LBP- 85-19, 21 NRC 1707, 1723 (1985). Moreover, where factual disclosures reveal a need for further development of an evidentiary record, the record may be reopened for the taking of supplementary evidence.

Tennessee Valley Authority (Hartsville Nuclear Plant, Units IA, 2A, 11B and 2B), ALAB-463, 7 NRC 341, 352 (1978).

The findings of ongoing corrosion in the drywell made during the most recent refueling outage have been the subject of at least one notification by the NRC Staff, dated November 6, 2008, and two'by AmerGen, dated November 6 and November 17, 2008. The Staff notification provided minimal information except to note that a single blister with a rust stain had been 10

observed and three other "bumps" had been seen without a rust stain. AmerGen's November 6, 2008 Notification repeated the information notified by the Staff, but also added that the blister with the rust stain had been seen on a video taken during the 2006 refueling outage. The AmerGen November 17 Notification noted that, contrary to testimony given to the Board during the hearing, water penetrated through the protective coating that is on the exterior of the drywell in the sandbed region. AmerGen November 17 Notification at 2-3. It confirmed the presence of the blister with the rust stain. It also stated that water had entered the drywell and that AmerGen had identified the refueling cavity as the source of the water. Id. at 4-5. It also noted that problems with the moisture seal at the drywell interface with the exterior floor had been identified and attributed to incorrect installation in 1992. Id. at 3-4.

Thus, until the inspection report was published on January 21, 2009 Citizens did not know the following facts:

1. The observed "bumps" were actually unbroken corrosion blisters that had not been previously observed or recorded on video.

2. Water had been present in the sandbed region on November 8, 2008, but had not been found in the bottles attached to the drains.

3. Water flowed to the drain in Bay 11 on November 12, 2008, three days after the refueling cavity was emptied.

4. Analysis of that water was inconclusive as to its origin.

5. The torus room floor was wet throughout the outage, indicating pervasive leakage of water.

This motion is therefore timely because without. these facts Citizens did not know that water could enter the drywell without being observed by AmerGen or that AmerGen's claim to have definitively found that the refueling cavity was the source of all the water observed in the sand bed was incorrect. Citizens are filing this motion within 12 days of the Staff notification to ensure that it is timely and to illustrate that further development of the record is required to resolve the issues raised by the Report. In the alternative, even if this Motion is not timely, it 11

should be granted because it raises a number of important issues that it is in the public interest to resolve. Specifically those issues are: i) is the AMP for the Oyster Creek drywell adequate?; and ii) why did AmerGen and NRC witnesses make a number of overly optimistic definitive statements in their testimony, which the facts in the Report show were incorrect?

B. This Motion Raises A Significant Safety Issue A hearing must be reopened whenever a significant unresolved safety question is, involved. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

ALAB-138, 6 AEC 520, 523 (1973), reconsid,den., ALAB-141, 6 AEC 576. Furthermore, as the Commission has stated, "the NRC may not issue a license until all appropriate safety findings have been made." 69 Fed. Reg. at 2,202 (citations omitted). Moreover, in order to actually issue a renewed license the Commission must find that AmerGen met its burden of proof to demonstrate that the proposed AMPs will provide reasonable assurance that the current licensing basis would be maintained during any period of extended operation. 10 C.F.R. § 54.29(a).

As discussed above, the Board's finding that the proposed measurement frequency for the drywell was adequate rested upon a finding that water could only possibly be present.in the sandbed region for 30 days every two years because the only possible source of water was the refueling cavity and any water that penetrated the drywell would evaporate rapidly. The new facts provided in the Inspection Report show that these two factual predicates are now in doubt.

With regard to the water source, it is likely that there are sources of water to the drywell other than the refueling cavity for a number of reasons. First, the water observed in the Bay 11 drain on November 15, 2008 could not have come from the refueling cavity, because it had been drained on November 12, 2008. Second, the analysis of the collected water was inconclusive.

Third, there are many other leaks at the plant. Finally, thethree new corrosion blisters could not 12

have formed in just a few days, showing that water was probably present in the sandbed region between the 2006 outage and the 2008 outage. Further evidence for this is that at the hearing, AmerGen witnesses confirmed that statistical analysis showed that there is ongoing corrosion in the upper drywell, albeit at a very low rate. Tr. at 110:9-18. Thus, the evidence now indicates that water could be present in the sandbed region for much longer than 30 days every two years.

Although Citizens know of no observations of water in the sandbed drains between 2006 and 2008, it is now crystal clear that the proposal to check for moisture in the sandbed by monitoring the drains is ineffective because water can be dripping into the sandbed and even pond on the floor without any water being observed in the drains. Thus, lack of water in the bottles during operation between 2006 and 2008 does not indicate a lack of water in the sandbed during that time period.

The presence of the three unbroken corrosion blisters found in 2008 shows that any water.

that gets underneath the coating does not evaporate rapidly, as assumed in the Decision.

Furthermore, because water is probably penetrating into the sandbed region during operation, ongoing slow evaporation Would not protect the shell from being continuously wet. Finally, the failure of AmerGen's inspectors and NRC personnel to detect the broken blister in 2006 shows that visual inspections alone, which the Board found would be sufficient to detect coating failure, could miss even quite obvious signs of ongoing corrosion such as a six inch rust stain.

In the light of these issues, the Commission cannot rely upon the Board's reasoning to find that the AMP for the drywell shell is adequate. Furthermore, in the Safety Evaluation Report ("SER") the NRC Staff discussed AmerGen's commitment to monitor the sandbed drains 7 As AmerGen noted in its November 17, 2008 notification, its expert originally believed that blistering of the coating could not occur without "continuous immersion." AmerGen November 27 Notification at 3 n. 2. In addition, AmerGen's coating expert testified that without complete immersion any pinpoint rusting and delamination would "develop at a very slow rate, over a period of years." AmerGen Ex. C Part 5 at A.7.

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during refueling and operation and, carry out additional inspection if water is detected. SER at 4-

69. Based uponthis commitment the NRC Staff found that "the applicants program will provide reasonable assurance that any further incidents of water in the sand bed region will be systematically evaluated.. ." Id. (emphasis added). The Report undermines this finding because it shows that the monitoring of the drains is not an effective method of determining whether water is present in the sandbed region. Thus, the Commission is also unable to rely upon the SER to show that the drywell AMP is adequate. Because the new information fatally.

undermines the findings that the drywell AMP was adequate in both the Board's Decision and the SER, it is safety significant.

C. The New Evidence Would Have Materially Affected The Board's Decision As discussed at length above, the new information contradicts many of the factual findings of the Board and undermines its ultimate conclusion. It is therefore clear that this prong of the reopening test is met. Furthermore, the facts in the Report raise troubling questions about the efficacy of the hearing process itself.

Because Citizen intervention is an arduous and difficult process, very few issues will get to a hearing. Unfortunately, the Inspection Report shows that many of the assurances offered to the Board by AmerGen's experts at the hearing were overly optimistic. For example, in addition to assuring the Board that water could not penetrate the coating absent complete immersion, AmerGen witnesses also stated that the coating was in perfect condition in 2006, AmerGen Ex.

B Part 5 at A.23, the refueling cavity was the only source of water to the sandbed, AmerGen Ex.

C Part 4 at A.16; Tr. at 112:9-10, the trough drain would catch any leakage from the refueling cavity, id. and Tr. at 110:4-8, and visual inspection would detect any rust stains on the coating.

AmerGen Ex. B Part 5 at A. 16-17. Thus, unless this motion is granted, Citizens will be denied 14

the opportunity to litigate their contention based upon the facts rather than the over-optimistic testimony of AmerGen's experts.

Finally, at the hearing Citizens wereunable to cross-examine any witnesses because the Board found that they had been unable to show that there was any question about the credibility of eyewitnesses or that cross-examination was otherwise required. The Report clearly shows that cross examination of these witnesses could have been helpful at the original hearing and would provide strong support to justify cross examination of a number of witnesses at any remanded hearing: Thus, the Report not only shows that the substance of the Decision must be revisited, it also shows that the procedures used to'reach the Decision were not sufficiently rigorous.

I11. Citizens May Raise An Admissible New Contention As noted above, the bare bones information provided in the Report appears to indicate that an aging management program that involves periodic* UT inspection of certain piping may be required to ensure that aging of the piping is adequately managed. Citizens are currently endeavoring to find out more information about this issue through a Freedom of Information Act request to the NRC Staff and a request to Exelon for further information. The Atomic Energy Act requires the Commission to grant Citizens the opportunity to obtain a hearing on all issues that are material to relicensing. Union of ConcernedScientists v. NRC, 735 F.2d 1437, 1438-50 (D.C. Cir. 1984), cert. denied, 469 U.S. 1132 (1985). See also Union of ConcernedScientists v.

NRC, 920 F.2d 50, 53 (D.C. Cir. 1990) (holding that "Section 189(a) [of the Atomic Energy Act, 42 U.S.C. 2239(a),] prohibits the NRC from preventing all parties from ever raising in a hearing a specific issue it agrees is material to [a licensing]. .. decision."). Aging management of piping that is within the scope of reviews conducted for license renewal is material to relicensing.

Therefore, Because Citizens have until February 20, 2009 to file a contention about the aging 15

management of the inspected piping, it would be inappropriate for the Commission to deny Citizens the opportunity to request a hearing on this issue prior to that date.

CONCLUSION For the foregoing reasons, Citizens respectfully request that the Commission reopen the record in this proceeding and refrain from making any final decision on the pending license renewal application until the later of February 20, 2009 or when Exelon resolves the outstanding issues regarding the AMP for the sandbed region of the drywell, including carrying out the three dimensional analysis to the specifications of the Board and the ACRS. Because the issues raised by the new information go to the heart of the issues litigated before the Board and raise questions about the credibility of certain witnesses the Commission may consider remanding this matter to the Board for further consideration.

Respectfully submitted Richard Webster, Esq.

Eastern Environmental Law Center Attorneys for Citizens Dated: February 2, 2009 16

EXHIBIT CRO 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

' )

AMERGEN ENERGY' COMPANY, LLC ) Docket No. 50-219-LR (Oyster CreekNuclear Generating Station) )

)

)

DECLARATION OF DR. RUDOLF HAUSLER

1. My name is Dr. Rudolf Hausler. Citizens have retained me as an expert witness in proceedings concerning the application of AmerGen Energy Company LLC to renew its operating license for the Oyster Creek Nuclear Generating Station ("Oyster Creek") for twenty years beyond the current expiration date of April 9, 2009.

2. I am a Chemical Engineer as well as expert on the corrosion of metals in a variety of environments and subject to various operational parameters.

3. 1 have reviewed inspection report No. 05000219/2008007 (the. "Report")

and the Notification sent to the Commission by Richard Webster, Esq. on January 23, 2008 (the "Notification").

4. 1 agree with the statements relating to corrosion in the Notification.

5. 1 would also like to add the following points in support of statements made in the Notification, as well as point out some mistaken notions in the Report:

a. The visual inspection apparently identified multiple problems with the moisture barrier seal in several bays")(Rept. at 9). Exelon determined the as-found moisture barrierfunction was not impairedbecause no cracks or separationpenetratedthe seal. However, when the seal was excavated drywell shell corrosionwas identified (Report at 9). Clearly Exelons assessment of non-impairment of the seal was incorrect. The seal, was hot actually preventing corrosion below the level of the built up epoxy floor in the sandbed region.

b. Exelon's laboratory assessment was that "the epoxy seal materialhad not adequately cured", and that the problem "was an original1992 installationissue" (id). I submit that it is practically impossible to determine after 18 years whether a failure in an epoxy coating or seal, as the case may be, is due to aging or an original improper mixing issue of resin and curing agent. If, however, Exelon's assessment were correct then it is reasonable to assume that a broader area than the one excavated could be affected. I therefore recommend checking the entire moisture seal for similar problems.

c. The water leakage through the moisture seal and epoxy floor is by no means trivial. It has been observed that cracks have developed in the seal and the epoxy floor and water has penetrated into the space between the drywell shell and the floor, causing ongoing corrosion and further damage.

Even more seriously, the extent of such damage cannot be detected

' The moisture barrier seal is intended to prevent water from seeping into the gap between the sandbed floor and the outer drywell shell wall.

2

visually, because the damage is concealed by the floor and the moisture seal. Thus, visual inspection alone, as is currently proposed, cannot provide reasonable assurance that corrosion beyond the safety limits is not occurring.

d. During the inspection of the epoxy coating on the drywell shell in the sandbed area blisters in the coating were observed. (The fact that these blisters already existed in 2006 but were not reported has already been highlighted in the Notification and does not need to be belabored here).

However, the observed facts bear on the alleged failure mechanism, and hence on prediction of the useful life of the coating. It is noted that one of the blisters had cracked with a 6 inch rust stain trailing toward the floor.

The rust stain indicates that there must have been sufficient water present to carry rust from the cracked blister toward the floor. The cracked blister was at least 6 inches off the sandbed floor and could therefore not have been within reach of water puddles accumulating on the floor because of inadequate drainage. The question then is "where does the water come from to carry rust from the blister toward the floor. Exelon's explanation of osmosis through three layers of epoxy coating does not appear plausible simply because diffusion of water through layers of epoxy coating would be excruciatingly slow (Diffusion coefficient of the order of 10.8 to 10-9 cm 2/sec.) Ironically, at the hearing Exelon's witness specifically ruled ouf such osmotic diffusion as a possible mechanism for water to penetrate the coating. AmerGen Ex. C Part 5 A. 12.

3

I had pointed out that epoxy resins will age (Tr. 459). With time, and especially elevated temperature, they will continue to harden and shrink ever so slightly, but enough to cause cracking and delamination. Of specific concern is the boundary of the epoxy coating at the top of the sandbed area where a three phase boundary exists between steel air and epoxy. That three phase boundary is especially prone to delaminate, perhaps ever so slightly and allow access for water to intrude between the coating and the steel surface of the drywell shell. I believe this mechanism for water to get behind the coating is more plausible that the osmotic diffusion theory, because water trickling down the drywell shell from greater elevations would have a greater residence time behind the coating than if it were simply flowing over the area where the corrosion, nucleus resides imbedded behind three layers of coating. There would in this case also be sufficient water there to cause the trailing rust stain.

e) For corrosion to be as localized as has been observed (one broken blister, three unbroken ones) there have to be certain factors on the surface to stimulate such localized corrosion. These are usually foreign bodies such as dust, sand and other impurities present in the environment during the application of the coating. Exelon suggested that because chloride had been detected in the corrosion product filling the blister (Report at 11), the nucleus stimulating the corrosion phenomenon was a salt grain. In fact, the chloride could come from anywhere (even the water descending from higher elevations) and a sand grain would also have been sufficient to 4

stimulate localized corrosion. I should point out that Exelon and its experts hotly denied the relevance of dust to future corrosion and useful life of the coating (Tr. 4492)), but in view of the new evidence has apparently reversed its position on this issue as well.

f) Exelon has been insisting that the water necessary for the observed corrosion could only come from the reactor cavity leaks during refueling outages. I believe that in the absence of total immersion, the presence of water for a limited period of time during refueling (around 30 days- every two years) could not possibly account for the observed blistering and cracking and bleeding of rust. Rather, the findings suggest that water may be present most of the time. There are 208 penetrations through the drywell shell, some for the coolant to the reactor, some for service water, and many more carrying water for a variety of purposes. It is well known that inside the drywell leaks are a permanent condition (Tr.418). With 208 penetrations all welded into the drywell shell it would not be surprising that some of these weldments might have become leaky right in the gap between the containment building wall and the dryweil shell wall. Some of the water from such leaks may evaporate because of the elevated temperature at the higher elevations, while some, or portions of it may actually reach the bottom. Similarly it appears that the torus building floor is in a permanent wet condition with the sources of this water unknown. In light of this situation, it is notreasonable to structure an aging

2) Judge Abramson: What's the relevance of dust in the atmosphere when you are applying this (epoxy coating)? Mr. Cavallo: None.

5

management program on the basis of past conjecture that water can only be present in the sandbed region during refueling.

g) In this context it must also be mentioned that Exelon investigated 24 selected piping sample locations and found that two these had remaining wall thicknesses below acceptance criteria. With this minimal one-time inspection program Exelon can hardly expect to provide reasonable assurance that an aging effect is not occurring. Nuclear power plants usually specify hundreds of pipe locations subject to internal flow'-induced corrosion. I have studied the problem of flow accelerated corrosion in nuclear power plants, specifically BWR's, quite extensively and truly find Exelon's program totally unacceptable. "The one time inspectionprogram will provide reasonable assurance that an aging effect is not occurring,or that the aging effect is occurring slowly enough to not affect the component or structure intendedfunction during the period of extended operation"(Report at 15). It defies logic to expect that a one time measurement can determine the ongoing rate of aging. Furthermore, this commitment is entirely contrary to the recommendations of the GALL report (NUREG-1801, Rev. I XI M-61) which clearly specifies the approach and methodology of dealing with internal corrosion of high energy fluids.

6. Overall, the results of the Report show that the rationale that AmerGen used to set the inspection frequency was over-optimistic and failed to take adequate account of the lack of knowledge about many of the factors that must be considered in 6

selecting the inspection frequency. Similarly, the approaches taken by the Staff and the

.Board were also based on incorrect assumptions that the Report now shows were incorrect.

7. To remedy the problems with the aging management of the drywell shell in the sandbed above the epoxy floor, I make the following recommendations:

a. Use a properly conducted three dimensional structural analysis to obtain a conservative estimate of the limiting margin in the sandbed region in terms of wall thickness; this analysis to be carried out or thoroughly reviewed by a truly independent agency, such as Sandia National Laboratory.

b. Assume a conservative corrosion rate of 0.042 inches per year; because at this point in time there is no assurance that corrosion has been arrested.

c. Divide the limiting margin by the assumed corrosion rate, and divide the result by two, in order to obtain the routine monitoring frequency;

d. Install electronic moisture detectors in the sandbed region;

e. If moisture is detected during operation then trace the source, eliminate the water, and carry out a full scope inspection at the next outage;

f. Augment visual inspections of the coating with objective measurement techniques.

g. If any corrosion is observed during inspections, adjust the estimate of the limiting margin and the routine measurement frequency accordingly.

8. I also have concerns that water may be leaking into the exterior floor, around or through the moisture seal. In Bay 3, the Report states there were cracks in the 7

seal and surface rust stains below the crack. Report at 9. When the seal was excavated corrosion was found. Id. Apparently, this corrosion is either new or it was not seen in 2006. Id. This shows thatvisual inspection alone is inadequate in the region where the exterior floor has been built up with epoxy, as it is in the region above. Because there is a chance that relatively rapid crevice corrosion could occur in this region, I therefore recommend using objective measurement techniques to determine whether corrosion is occurring in this region. I am unable to estimate the rate at which such corrosion could occur. I therefore recommend monitoring of this area should be carried out within 3 months of observing moisture in the sandbed region using the electronic monitoring I recommend above.

9. I further recommend that as an urgent priority Exelon establish at Oyster Creek a consistent program to monitor Flow Assisted Corrosion (FAC) and Flow Induced Localized Corrosion (FILC) on an ongoing basis for all piping that could have safety significance. The Report appears to indicate dlack of such a program for at least some piping systems. If correct, this defect should be remedied.

10. Finally, I would just like to make clear that my only objective in participating in this proceeding is to improve corrosion management at Oyster Creek and hopefully other nuclear plants.. I am deeply concerned that instead of adopting an approach that took account of human and equipment failures, the licensee at Oyster Creek has consistently tried to pretend the problem of corrosion does not exist by using over-optimistic assumptions, or by asserting that certain shortcomings (e.g. defective curing process of epoxy resin) are only local and not really predictive of future failures. It is only by good fortune that we now have definitive information showing that reality 8

contradicts most of the assurances about future corrosion given at the hearing by the witnesses for the licensee. I trust that the Commission will now recognize that AmerGen's approach so far has not been adequate and needs to be improved to ensure that future corrosion at Oyster Creek is properly managed.

I declare under penalty of perjury that the f6regoing and the attached memorandum, dated February 2, 2009 is true and correct.

Executed this 2 Ud day of February, 2009 at Kaufman, Texas Rudolf Ilausler, PhD 9

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

Docket No. 50-0219-LR AMERGEN ENERGY COMPANY, LLC )

)

(License Renewal for the Oyster Creek )

Nuclear Generating Station) ) February 2, 2009

)

CERTIFICATE OF SERVICE I, Richard Webster, of full age, certify as follows:

I hereby certify that on February 2, 2009, I caused Citizens' Motion to Reopen The Record and to Postpone Final Disposition of The Licensing Decision to be served via email and U.S. Postal Service (as indicated) on the following:

Secretary of the Commission (Email and original and 2 copies via U.S Postal Service)

United States Nuclear Regulatory Commission Washington, DC 20555-0001 Attention: Rulemaking and Adjudications Staff E-mail: HEARINGDOCKET(L*2)NRC.GOV Office of Commission Appellate Adjudication (Email and U.S. Postal Service)

United States Nuclear Regulatory Commission Washington, DC 20555-0001 Attention: Rulemaking and Adjudications Staff E-mail: OCAA.M ai (*a)fnrc. uo_

Administrative Judge E. Roy Hawkens, Chair (Email and U.S. Postal Service)

Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: erlhtKc.rcj.Žo\

I

Administrative Judge Dr. Paul B. Abramson (Email and U.S. Postal Service)

Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: plba(anrc.,ov Administrative Judge Dr. Anthony J. Baratta (Email and U.S. Postal Service)

Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ajb5(anrc. oov Law Clerk Emily Krause (Email and U.S. Postal Service)

Atomic Safety & Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: DA\VI (@inrc.gov Office of General Counsel (Email and U.S. Postal Service)

United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OGCMAILCENTER (nNRC.GOV Marcia Simon (Email and U.S. Postal Service)

U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: 0-15 D21 Washington, DC 20555-0001 E-mail: Marcia. Simon@nrc.gov Mary C. Baty (Email and U.S. Postal Service)

U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: 0-15 D21 Washington, DC 20555-0001 E-mail: mcbl 0)nrc.Liov (I

Alex S. Polonsky, Esq. (Email and U.S. Postal Service)

Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: anolonsh\ (0."'mor afl1ewis. corn 2

Kathryn M. Sutton, Esq. (Email and U.S. Postal Service)

Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: 1 sittonIfm or(-,anlewis. coIII Donald Silverman, Esq. (Email and U.S. Postal Service)

Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: dsil verman(2i),iorazanl ewi s.com*

J. Bradley Fewell (Email and U.S. Postal Service)

Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 E-mail: bradley .fewel lt),excel oncorp.com John Covino, DAG (Email and U.S. Postal Service)

State of New Jersey Department of Law and Public Safety Office of the Attorney General Hughes Justice Complex 25 West Market Street P.O. Box 093 Trenton, NJ 08625 E-mail: johin.corvinoo(7dol. lps.state.ni.us Valerie Gray (Email)

State of New Jersey Department of Law and Public Safety Office of the Attorney General Hughes Justice Complex 25 West Market Street P.O. Box 093 Trenton, NJ 08625 E-mail: Nalerie. gray @do. ls.Siaie.nj.us.

Paul Gunter (Email and U.S. Postal Service) c/o Nuclear Information and Resource Service 6930 Carroll Ave., Suite 340 Takoma Park, MD 20912-4446 E-mail: patl (bevdmclear.orc

Edith Gbur (Email)

Jersey Shore Nuclear Watch, Inc.

364 Costa Mesa Drive. Toms River, New Jersey 08757 E-mail: Lburl (acom cast. net Paula Gotsch (Email)

GRAMMIES 205 6" Avenue Normandy Beach, New Jersey 08723 E-mail: paul auotsch a)verizon.net Jeff Tittel (Email)

New Jersey Sierra Club 139 West Hanover Street Trenton New Jersey 08618 E-mail: ,Jeff.Titte] Wsi erract ub.ore Peggy Sturmfels (Email)

New Jersey Environmental Federation 1002 Ocean Avenue Belmar, New Jersey 07319 E-mail: pstu rmfels(a),cleanwxater.ore Michele Donato, Esq. (Email)

PO Box 145 Lavalette, NJ 08735 E-mail: id oaio(micheledonaloes .C() m Signed:

/s

/ _ _ _ _

Richard Webster Dated: February 2, 2009 4