ML083240428

2008/11/10-Citizens' Motion for Clarification of Certain Findings of Fact and Other Appropriate Relief

ML083240428
Person / Time
Site:	Oyster Creek
Issue date:	11/10/2008
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:	Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, ASLBP-06-844-01-LR, RAS H-84
Download: ML083240428 (9)

Text

A/%s -.UNITED STATES OFAMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF THE SECRETARY ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: E. Roy Hawkens, Chair Dr. Paul B. Abramson Dr. Anthony J. Baratta DOCKETED USNRC November 10, 2008 (4:27pm)OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of AMERGEN ENERGY COMPANY, LLC (License Renewal for the Oyster Creek Nuclear Generating Station)))))))Docket No. 50-0219-LR ASLB No. 06-844-01-LR November 10, 2008 CITIZENS' MOTION FOR CLARIFICATION OF CERTAIN FINDINGS OF FACT AND OTHER APPROPRIATE RELIEF This Motion is filed on behalf of 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 (collectively "Citizens").

On October 29, 2008, the Atomic Safety and Licensing Board (the"Board") issued a memorandum (the "Board's Answer") answering the Commission's question regarding the modeling that will be conducted to determine whether the drywell shell at the Oyster Creek Nuclear Generating Station ("Oyster Creek"), which comprises the containment vessel, meets and will continue to meet the requirements of the Current Licensing Basis ("CLB")with reasonable assurance.

This motion seeks to clarify one aspect of that decision and have the Board take appropriate action. The only issues raised by this motion are whether the Board's findings of fact regarding the comparison of the internal and external measurements are T C-1 4 L So supported by the record and, if not, what action is appropriate.

1 If the Board finds that this Motion should be made to the Commission, rather than the Board, Citizens request that the Board refer the issue to the Commission.

ARGUMENT I. The Citations Provided In The Board's Answer Regarding Comparison Of Internal And External Data Do Not Support The Findings Of Fact Regarding Data Comparison After discussing the approach taken by AmerGen to estimate the thickness of regions within each of the 10 Bays that comprise the drywell shell in the sandbed region, the Board's Answer states: The external data was also used as a check on the thickness assigned to bays where the internal UT data was not thought to be representative of the bay thickness or where no internal data was available.

See Tr. at 946 (Polonsky).

This' was done by comparing the external UT data in the bay in question to the internal UT data in the adjacent bay used to obtain the thickness of the bay in question.

If the external data was encompassed by the distribution of the internal data, then AmerGen judged the choice appropriate.

See id. at 947-48 (Polonsky).

For example, the general thickness for Bays 3, 7,8 and 15 below the 11 foot level was assigned using the average of the adjacent bays (id. at 946) (Polonsky).

In cases where the external data did not suggest a locally thinned area, the points were treated as part of the general thickness for that bay (id.at 949) (Polonsky).

Board's Answer slip op. at 9. Based on the citations provided, it appears that the Board relied upon the oral statements of AmerGen's counsel to make these findings.

However, because Citizens were unable to locate in the record or in 'the discovery disclosures any comparisons of the type described and relied upon by the Board, Citizens requested AmerGen to provide the analyses upon which counsel's statements on pages 947 to 948 of transcript were based. E-mail Citizens consulted extensively with AmerGen and NRC Staff prior to filing this Motion. AmerGen stated that it will oppose the Motion, while NRC Staff had not communicated a position to Citizens at the time of filing.2 from R. Webster to A. Polonsky, dated November 3, 2008. In response, AmerGen stated as follows: The language you cite in your email below from the September 18, 2008 oral argument transcript from pp. 947-48 is taken from my main argument.

However, I explicitly amended my argument when I addressed the Board on rebuttal.

My statements on rebuttal on this issue can be found on the bottom of page 1025 to the top of page 1026. Note that on the top of page 1026, I stated that my earlier statement was based on Exhibit 46, page 3, and that "If I said something different, I was relying on this document [i.e., Exhibit 46] for[] the source." AmierGen also addressed this issue in its October 1, 2008, supplemental briefing to the Licensing Board. Please review in particular, the bullet at the top of page 7 which concludes with footnote 33.E-mail from A. Polonsky to R. Webster, dated November 4, 2008. The bullet referred to stated:.Citizens object to AmerGen counsel's description of how, using engineering judgment, AmerGen compared the external data points to a normal distribution, for the limited purpose of confirming that'the use of adjacent bay average thickness in the 3-D analysis base case was reasonable.

However that information was in the record.[citation provided in footnote 33].AmerGen Brief dated October 1, 2008 at'7. Footnote 33 states "See Citizens' Exh. 46 at OCLR 29744 [page 3]; see also AmerGen Exh. 20 at 50 (discussing a similar comparison that analyzed external data points as representing.

the tail of a normal distribution)." Id Referring to these documents, the only relevant part of Citizens' Ex. 46 at 3 or OCLR 29744 states that "external point measurements were used in a limited way to-confirm the basis for an engineering judgment, assuming a normally [sic] statistical distribution, regarding an appropriate thickness to use in the re-analysis." However, it provided no actual analysis and it did not provide any citation to the analysis AmerGen alleged had been carried out. In contrast, AmerGen Exh. 20 at 50 provides a comparison of the thinnest point measured in 2006 in Bay 19 using external measurements to confidence limits derived from the internal measurements from grid 19A, 3 assuming a normal distribution.

While this does provide some analysis, it is clearly not the analysis referred to by the Board, which should include consideration of the external data for, at minimum, Bays 3, 7, and 15. Board's Answer slip op. at 9.Thus, contrary to the impression given in its direct argument and the explicit statement in its briefing, it appears that AmerGen has not carried out any comparison of the distribution of the internal data from adjacent bays to external data in Bays for which AmerGen acknowledges there is no representative internal data. Certainly, the Board's findings of fact in this regard are not supported by the citations given in the Board's Answer. In addition, the citations provided to date by AmerGen in response to Citizens.questions do not support the Board's findings of fact in this regard. Citizens therefore request the Board to either clarify where in the record the comparisons referred to are found, or modify the language of the memorandum to accurately reflect what is in the record. Final.ly, if the Board decides that the analysis it thought had been done has actually not been done, it should add a recommendation that AmerGen should to carry out an analysis to ensure that any thicknesses chosen for a certain Bay based on internal data from adjacent Bays actually agree with the thicknesses indicated by external data from the Bay in question to a reasonable degree.4 CONCLUSION' For the foregoing reasons, the Board should determine whether therecord supports the findings of fact about the comparison of the internal and the external data. If so, the Board should modify its October 29, 2008 Memorandum to show Which parts of the record support'these findings.

If not, the Board should amend its Memorandum and require AmnerGen to carry out the comparison that AmerGen led the Board to believe had already been done.Respectfully submitted,:Richard Webster, Esq Julia LeMense, Esq.Eastern Environmental Law Center Attorneys for Citizens Dated: November 10, 2008 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: E. Roy Hawkins, Chair.Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of ))AMERGEN ENERGY COMPANY, LLC ))(License Renewal for the Oyster Creek )Nuclear Generating Station) ))Docket No. 50-0219-LR ASLB No. 06-844-01-LR November 10, 2008 CERTIFICATE OF SERVICE I, Richard Webster, of full age, certify as follows: I hereby certify that on November 10, 2008, I caused Citizens' Emergency Motion 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@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: OCAAMail nrc.gov 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: erhonrc.gov 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: pba@nrc.gov 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@nrc.gov Law Clerk Emily Krause (Email and U.S. Postal Service)Atomic Safety & Licensing Board Panel Mail Stop -T-3 F23 US. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: DAW1(d@nrc.gov Office of General Counsel (Email and U.S. Postal Service)United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OGCMAILCENTER@NRC.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 nrc.gov Alex S. Polonsky, Esq. (Email and U.S. Postal Service)Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: apolonskyamorganlewis.com 2

Kathryn M. Sutton, Esq. (Email and U.S. Postal Service)Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: ksuttongmorganlewis.com Donald Silverman, Esq. (Email and U.S. Postal Service)Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: dsilvermanadmorganlewis.com J. Bradley Fewell (Email and U.S. Postal Service)Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 E-mail: bradley.fewellhihexceloncorp.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: i olin. corvino @dol. Ips. state. nrj. 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: valerie.gray@dol.lps.

state.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: paul(wbeyondnuclear.org 3

Edith Gbur (Email)Jersey Shore Nuclear Watch, Inc.364 Costa Mesa Drive. Toms River, New Jersey 08757 E-mail: gburl@comcast.net Paula Gotsch (Email)GRAMMIES 205 6th Avenue Normandy Beach, New Jersey 08723 E-mail: paulagotschgverizon.net Jeff Tittel (Email)New Jersey Sierra Club 139 West Hanover Street Trenton New Jersey 08618 E-mail: Jeff.Tittel Dsierraclub.org Peggy Sturmfels (Email)New Jersey Environmental Federation 1002 Ocean Avenue Belmar, New Jersey 07319 E-mail: psturmfelsgcleanwater.org Michele Donato, Esq. (Email)PO Box 145 Lavaleffe, NJ 08735 E-mail: mdonatopmicheledonatoesq.com Signed: _ _ _ _ _Richard Webster Dated: November 10, 2008 4