ML083250028

Oyster Creek - NRC Staff'S Answer in Opposition to Citizens' November 10, 2008 Motion for Clarification

ML083250028
Person / Time
Site:	Oyster Creek
Issue date:	11/19/2008
From:	Baty M NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-219-LR, RAS H-85
Download: ML083250028 (8)

Text

November 19, 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 ANSWER IN OPPOSITION TO CITIZENS NOVEMBER 10, 2008 MOTION FOR CLARIFICATION INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby answers Citizens Motion for Clarification of Certain Findings of Fact and Other Appropriate Relief (Nov. 10, 2008) (Motion). For the reasons set forth below, Citizens Motion should be denied.

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 will maintain the necessary safety margin during the period of extended operation. Oyster Creek, LBP-07-17, 66 NRC at 330.

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).

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. The Staff and AmerGen filed answers on January 24, 2008. 2 On May 28, 2008, the Commission issued an order requesting briefs addressing the following:

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). On August 21, 2008, the Commission issued an order referred the single specified issue in CLI-08-10 regarding AmerGens planned structural analysis to the 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). The parties filed post-argument briefs on October 1, 2008.3 On October 29, 2008, the Board issued Memorandum (Addressing the Issue Referred by the Commission Regarding the Adequacy of AmerGens Proposed 3-D Finite 2

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).

3 See AmerGens Supplemental Brief Following Oral Argument (Oct. 1, 2008); Citizens Supplemental Brief Regarding Commission Questions on Structural Analysis and Board Follow Up Questions (Oct. 1, 2008); NRC Staffs Supplemental Brief on Commission-Referred Question (Oct. 1, 2008).

Element Analysis Studies) (unpublished) (Board Advisory Memo). Therein two members of the Board (Judges Baratta and Hawkens) responded to the question posed by the Commission in CLI-08-10: In the Boards judgment, AmerGens proposed sensitivity analyses appear to bound what Judge Baratta would impose. Board Memo at 14. Nevertheless, the two judges also concluded that some of Citizens concerns should be accommodated4 and, therefore, provided the Commission with six specific recommendations. See id. at 16-18. Attached to the Board Memo was the Separate Advisory Opinion of Judge Abramson (Abramson Advisory Opinion). Therein Judge Abramson stated: The simple answer to the Commissions inquiry . . . is that no additional analysis is required with respect to, and there is nothing raised by the referred question that impacts, in any way, the license renewal proceeding before this Board or the Boards determination that the challenge should be resolved in favor of the Applicant.

Abramson Advisory Opinion at 2. Judge Abramson recommended that the Commission apply its customary license condition review practices and direct the Staff to engage appropriate expertise to thoroughly review AmerGens analysis when submitted. Id. at 3-4.

On November 10, 2008, Citizens filed the instant motion asserting that statements made by AmerGen during the September 18, 2008 oral argument by counsel and in post-argument briefing suggested that a statistical analysis comparing internal and external UT measurements had been performed as part of the development of the base case for the 3-D finite element analysis of the drywell shell. Motion at 2,4. Citizens assert that because no statistical analysis comparing internal and external UT measurements is in the record (and AmerGen did not provide Citizens with any analysis in response to 4

Id. at 15.

Citizens requests) AmerGens statements are not supported by the evidentiary record.

Citizens assert that the Board majority relied on AmerGens oral arguments and thus made an erroneous factual finding that a statistical analysis comparing the internal and external UT measurements had in fact been performed. Id. at 2, 4. Citizens therefore request that the Board reconsider its finding and, if necessary require AmerGen to carry out the comparison that AmerGen led the Board to believe had already been done. Id.

at 4-5.

DISCUSSION I. Board Memo Does Not Contain Findings of Fact Citizens assertion that the Boards Memo contains findings of fact is erroneous. The Commission Order did not request findings of fact, reopen the record, order further evidentiary hearing, or suggest in any way that the Board should reconsider the factual findings in its initial decision or make additional factual findings.5 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); Abramson Advisory Opinion at 2. The Boards decision in LBP-07-17 contained an explicit section setting forth the Boards findings of fact. See LBP-07-17, 66 NRC at 340. In contrast, the Board Advisory Memo simply summarizes oral arguments provided by counsel (which are not evidence) and makes recommendations on how the planned analysis ought to be performed and reviewed by the Staff. Because the Boards Memo does not contain findings of fact, Citizens request for clarification lacks merit and should be denied.

5 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).

II. AmerGens and the Boards Statements Are Supported by the Record Citizens assert that because no statistical analysis comparing internal and external UT measurements is in the record (and AmerGen did not provide Citizens with any analysis in response to Citizens requests) AmerGens statements are not supported by the evidentiary record. Citizens assertion lacks merit.6 First, the quoted passage from the Boards Memo at 9 does not suggest that the Board was under the impression that an analysis comparing the external UT data points to the distribution of the internal data was part of the record. Second, both at oral argument and in its post-argument brief AmerGen made clear that the basis for its statements regarding comparison of external data to internal data in forming the base case for the planned 3-D finite element analysis was Citizens Exhibit 46. See Tr. at 1025-26 (Polonsky)

(stating that the basis for his previous statement about comparing external UT measurements to statistical analysis of internal UT data was based on Citizens Exhibit 46 at OCLR number 29744). Thus, AmerGens and the Boards statements are supported by evidence in the record.

6 Citizens appear to under the misapprehension that AmerGen is required to document and disclose to Citizens all analyses related to its yet-to-be completed 3-D analysis of the drywell shell.

However, because AmerGens planned 3-D analysis was not within the scope of Citizens admitted contention (see Board Memo at 2 n.2) and has not even been completed, the details of the analysis are not part of the evidentiary record.

CONCLUSION For the reasons explained above Citizens Motion for clarification is unnecessary and should be denied.

Respectfully submitted,

/RA/

Mary C. Baty Marcia J. Simon Counsel for NRC Staff Dated at Rockville, Maryland this 19th day of November 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) )

CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS ANSWER IN OPPOSITION TO CITIZENS NOVEMBER 10, 2008 MOTION FOR CLARIFICATION 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 19th day of November 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