ML061570288

LB Memorandum and Order (Contention of Omission Is Moot, and Motions Concerning Mandatory Disclosure Are Moot) (LBP-06-16)

ML061570288
Person / Time
Site:	Oyster Creek
Issue date:	06/06/2006
From:	Abramson P, Anthony Baratta, Hawkens E Atomic Safety and Licensing Board Panel
To:
Byrdsong A T
References
50-219-LR, ASLBP 06-844-01-LR, LBP-06-16, RAS 11721
Download: ML061570288 (13)

Text

1 The six organizations are: Nuclear Information and Resource Service (NIRS);

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 Environmen-tal Federation.

RAS 11721 LBP-06-16 DOCKETED 06/06/06 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION SERVED 06/06/06 ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

E. Roy Hawkens, Chairman Dr. Paul B. Abramson Dr. Anthony J. Baratta In the Matter of AMERGEN ENERGY COMPANY, LLC (Oyster Creek Nuclear Generating Station)

Docket No. 50-0219-LR ASLBP No. 06-844-01-LR June 6, 2006 MEMORANDUM AND ORDER (Contention of Omission is Moot, and Motions Concerning Mandatory Disclosure are Moot)

I. INTRODUCTION On February 27, 2006, this Board granted a Petition to Intervene submitted by six organizations1 - hereinafter referred to collectively as NIRS - opposing an application by AmerGen Energy Company, LLC (AmerGen) to renew its operating license for the Oyster Creek Nuclear Generating Station (Oyster Creek) for twenty years beyond the current expira-tion date of April 9, 2009. See LBP-06-07, 63 NRC 188 (2006). This Board admitted one con-tention for litigation; namely, NIRSs challenge to AmerGens aging management program for measuring corrosion in the sand bed region of Oyster Creeks drywell liner to the extent that the program fails to include periodic [ultrasonic testing (UT)] measurements in that region throughout the period of extended operation (LBP-06-07, 63 NRC at 217).

2 NIRS opposed AmerGens requests. See [NIRS] Brief in Opposition to Amer-Gens Motion to Dismiss and to Suspend Mandatory Disclosures (May 5, 2006) [hereinafter NIRS Opposition to AmerGen Motion to Dismiss]. The NRC Staff supported AmerGens requests. See NRC Staffs Response to AmerGens Motion to Dismiss Drywell Contention as Moot (May 5, 2006) [hereinafter NRC Staff Response to AmerGen Motion to Dismiss].

3 AmerGen opposed NIRSs requests. See AmerGen Answer Opposing [NIRSs]

Motion to Compel Further Mandatory Disclosures (May 16, 2006) [hereinafter AmerGen Opposition to NIRS Motion to Compel Disclosures]. The NRC Staff declined to take a position on NIRSs requests. See Letter from Mitzi A. Young, Counsel for NRC Staff, to Administrative Judges (May 16, 2006).

On April 25, 2006, AmerGen filed a motion seeking to: (1) dismiss NIRSs contention as moot on the basis of AmerGens newly docketed formal commitment to conduct periodic UT measurements in the sand bed region of the drywell liner throughout the period of extended operation; and (2) suspend further mandatory disclosures pending this Boards resolution of the dismissal request. See AmerGens Motions to Dismiss Drywell Contention as Moot and to Suspend Mandatory Disclosures (Apr. 25, 2006) [hereinafter AmerGen Motion to Dismiss].2 Shortly thereafter, on May 5, 2006, NIRS filed a motion asking this Board to: (1) compel AmerGen to disclose all records relating to corrosion in the region above the sand bed region; and (2) grant permission for NIRS to file (if necessary) subsequent timely motions to compel after AmerGen makes its required disclosures. See [NIRS] Motion to Compel Further Manda-tory Disclosures (May 5, 2006) [hereinafter NIRS Motion to Compel Disclosures].3 For the reasons discussed below, we conclude that NIRSs contention is moot and sub-ject to dismissal. We will refrain, however, from issuing an order of dismissal for 20 days from the date of this Memorandum and Order, thus allowing NIRS the opportunity to seek leave to file a new contention in this proceeding. Our conclusion that NIRSs contention (which is the sole contention in this proceeding) is moot terminates the mandatory disclosure process for that contention, thus rendering moot the parties remaining motions pertaining to mandatory disclo-sures.

4 NIRS raised a similar contention with respect to the region of the drywell liner above the sand bed region, known as the upper region. The Board declined to admit that contention, because AmerGens aging management program included periodic UT measure-ments of the upper region throughout the renewal period. See LBP-06-07, 63 NRC at 216 n.27.

II. BACKGROUND AmerGens License Renewal Application (LRA) for Oyster Creek, as originally submit-ted, contained no provision for future UT measurements in the sand bed region of the drywell liner. The LRA omitted such measurements because AmerGen had concluded that corrosion in that region had been arrested, and that periodic visual inspections - which AmerGen planned to perform throughout the twenty-year renewal period - would be adequate to identify the effects of age-related corrosion (LRA at 3.5-19 to -21; AmerGen Motion to Dismiss at 2).

In November 2005, NIRS submitted a Petition to Intervene in which it argued that peri-odic visual inspections would not be adequate to monitor the extent of corrosion in the sand bed region of the drywell liner. NIRS contended, inter alia, that for AmerGen to ensure an adequate safety margin in the thickness of the drywell liner in the sand bed region, it must conduct peri-odic UT measurements in that region throughout the renewal period (see LBP-06-07, 63 NRC at 211).4 In February 2006, this Board concluded that NIRS proffered an admissible contention.

Because the contention, as originally advanced by NIRS, was overbroad, this Board reformu-lated it to clarify the precise scope (supra note 4). NIRSs contention - as admitted by this Board - alleges that AmerGens LRA is deficient because it improperly omits periodic UT measurements in [the sand bed] region throughout the extended period of operation (LBP 07, 63 NRC at 217). The contention reads as follows (ibid.):

AmerGens [LRA] fails to establish an adequate aging management plan for the sand bed region of the drywell liner, because its corrosion management program fails to include periodic UT measurements in that region throughout the period of extended operation and, thus, will not enable AmerGen to determine the amount 5

A licensees written commitments... that are docketed and in effect constitute part of the current licensing basis, which is the set of NRC requirements applicable to a specific plant (10 C.F.R. § 54.3(a)). A licensee must comply with its licensing basis unless the licensing basis is properly changed or the license is formally excused by the NRC from compli-ance (Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,951 (Dec. 13, 1991)).

6 As mentioned supra Part I, the following motions are also pending before this Board: (1) AmerGens motion that we suspend further mandatory disclosures pending resolu-tion of its dismissal motion (AmerGen Motion to Dismiss at 8-10); and (2) NIRSs motion that we compel AmerGen to provide additional disclosures (NIRS Motion to Compel Disclosures at 5),

(continued...)

of corrosion in that region and thereby maintain the safety margins during the term of the extended license.

Meanwhile, in December 2005 - while NIRSs Petition to Intervene was pending before this Board - AmerGen docketed a commitment to perform UT measurements in the sand bed region prior to the period of extended operation under the proposed renewed license (LBP 07, 63 NRC at 216). Additionally, on April 4, 2006 - after this Board had granted NIRSs Peti-tion to Intervene - AmerGen docketed a commitment to perform periodic UT measurements in the sand bed region of the drywell liner throughout the period of extended operation. Specifical-ly, AmerGen committed to perform UT measurements in the sand bed region every ten years following the measurements taken prior to the renewal period. AmerGen committed to incorpo-rate the periodic UT program into its LRA. See Letter from Michael P. Gallagher, AmerGen, to NRC (Apr. 4, 2006).5 Pending before us is AmerGens Motion of April 25, 2006, which argues that its commit-ment to perform a set of UT examinations in the sand bed region prior to the period of extend-ed operation and then every ten years thereafter during the period of extended operation [ren-ders] moot [NIRSs] contention as admitted by the Board (AmerGen Motion to Dismiss at 3).

AmerGen therefore requests that we dismiss NIRSs contention (ibid.).

The NRC Staff supports AmerGens request, but NIRS opposes it (NRC Staff Response to AmerGen Motion to Dismiss at 5; NIRS Opposition to AmerGen Motion to Dismiss at 10).6 6(...continued) and that we allow NIRS (if necessary) to file future motions to compel (ibid.).

III. ANALYSIS A.

NIRSs Contention, Which Is A Contention Of Omission, Has Been Rendered Moot By AmerGens Commitment To Perform Periodic UT Measurements During The Renewal Period AmerGen and the NRC Staff characterize NIRSs contention as a contention of omission that attacks AmerGens aging management program for failing to include periodic UT measure-ments in the sand bed region of the drywell liner throughout the renewal period. This alleged deficiency has been cured, they assert, by AmerGens commitment to perform periodic UT measurements in that region throughout the renewal period. Accordingly, AmerGen and the NRC Staff aver that NIRSs contention is moot and should be dismissed. See AmerGen Motion to Dismiss at 3-6; NRC Staff Response to AmerGen Motion to Dismiss at 3-5.

In response, NIRS argues that AmerGens commitment to perform two or three rounds of UT measurements in the sand bed region does not moot the contention (NIRS Opposition to AmerGen Motion to Dismiss at 1). To render the contention moot, asserts NIRS, AmerGen would have to demonstrate that its proposed measurement regime will allow safety margins to be maintained throughout the entire relicensing period (id. at 3).

NIRSs argument misconceives the nature of the admitted contention. There is a differ-ence between contentions that, on the one hand, allege that a license application suffers from an improper omission, and contentions that, on the other hand, raise a specific substantive challenge to how particular information or issues have been discussed in a license application.

In the former situation, [w]here a contention alleges the omission of particular information or an issue from an application, and the information is later supplied by the applicant..., the conten-7 If a contention includes both a claim of omission and a specific substantive chal-lenge, an applicants curing of the omission will not necessarily render the entire contention moot. For example, here, NIRS conceivably could have proffered a contention that included (1) an omission challenge asserting that AmerGen must take periodic UT measurements in the sand bed region, and (2) a substantive challenge asserting - based on particularized support-ing information - that AmerGens UT measurements must be performed at a specified frequen-cy. Had NIRS proffered (and had we admitted) such a contention, AmerGens commitment to perform periodic UT measurements would have mooted the omission component of the con-tention, but not necessarily the substantive component (unless AmerGen committed to per-form UT measurements consistent with the contentions prescribed frequency).

8 The thrust of the reformulated contention tracked that of NIRSs overbroad contention (supra note 4), which asserted that UT measurements [must] be taken periodically for the life of the reactor... to confirm that the actual corrosion measurements are as project-ed (LBP-06-07, 63 NRC at 211).

tion is moot (Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 383 (2002)).7 Generally, the plain language of a contention will reveal whether the contention is (1) a claim of omission, (2) a specific substantive challenge to an application, or (3) a combination of both. In some instances, it may be necessary to examine the language of the bases to deter-mine the contentions scope (McGuire, CLI-02-28, 56 NRC at 383 n.45) (internal quotation marks omitted); accord Public Serv. Co. of New Hampshire (Seabrook Station, Units 1 & 2),

ALAB-899, 28 NRC 93, 97 (1988); Private Fuel Storage, L.L.C. (Independent Spent Fuel Stor-age Installation), LBP-01-23, 54 NRC 163, 171 (2001).

In the instant case, we specifically interpreted NIRSs contention to be a claim of omis-sion, and we reformulated it according to that understanding. The contentions plain language thus challenges AmerGens aging management plan for the sand bed region of the drywell liner because its corrosion management program fails to include periodic UT measurements in that region throughout the period of extended operation (LBP-06-07, 63 NRC at 217) (emphasis added).8 9

This Boards admissibility analysis shows decisively that the gravamen of NIRSs claim is that AmerGens aging management program improperly fails to include periodic UT measurements in the sand bed region throughout the period of extended operation. See, e.g.,

LBP-06-07, 63 NRC at 219 (the issue of... the necessity vel non of periodic UT measure-ments to maintain safety margins during the term of the extended license, is material in this license renewal proceeding); id. at 220 (NIRSs expert opines that it is absolutely essential that the integrity of the [sand bed region of the drywell liner] be directly assessed by periodic UT measurements); id. at 221 (we find that a genuine dispute exists regarding whether Amer-Gens aging management program for the heavily corroded sand bed region - which does not include periodic UT measurements - will enable AmerGen to determine the extent and continu-ation vel non of corrosion); ibid. (NIRS contends that periodic UT measurements in this heavi-ly corroded and epoxy covered region are essential throughout Oyster Creeks extended period of operation).

That NIRSs contention is one of omission is confirmed by its underlying basis which, as we stated in our admissibility analysis, was grounded on the premise that - given the extent of corrosion damage in [the sand bed] region and the potential for continuing corrosion, coupled with the licensees prior acknowledgment of the need to take UT measurements for the life of the plant to assure public safety - periodic UT measurements must be taken in the sand bed region during the renewal period (LBP-06-07, 63 NRC at 218 n.29). In other words, according to NIRS, AmerGens failure to include periodic UT measurements in the sand bed region during the renewal period was a fatal flaw of omission.9 Finally, if further evidence were needed to support the conclusion that NIRSs contention is one of omission, it may be found in our discussion rejecting NIRSs argument that its conten-tion was not limited to the sand bed region, but extended as well to the upper region of the drywell liner (see supra note 4). We stated (LBP-06-07, 63 NRC at 216 n.27):

We limit NIRSs contention to the sand bed region because, contrary to NIRSs assertion, AmerGen is performing, and will continue to perform during the renew-al period, UT measurements at critical locations in the upper region of the drywell liner.... For this reason, NIRSs contention - to the extent it includes the upper region of the drywell liner - lacks an adequate basis....

The foregoing statement makes clear that a fundamental distinction between the upper region of the drywell liner (which was excluded from the contention) and the sand bed region (which 10 AmerGen makes the alternative argument that NIRSs contention is moot to the extent that it is construed as requiring - in general, non-quantified terms - an adequate number of confirmatory UT measurements, because the docketed commitments fully and satisfactorily address the concept of an adequate number of UT measurements (AmerGen Motion to Dismiss at 7). But cf. NRC Staff Response to AmerGen Motion to Dismiss at 5 (Staff states it has yet to determine the adequacy of [AmerGens] commitments [to perform UT measurements in the sand bed region] as part of the applicants corrosion management pro-gram). Because we resolve the mootness issue in AmerGens favor on a different ground, we need not, and do not, address AmerGens alternative argument.

was included in the admitted contention) was the fact that AmerGens aging management program included periodic UT measurements in the upper region throughout the renewal period, but failed to include them in the sand bed region. That omission - which was the sole foundation for our conclusion that NIRS had proffered an admissible contention - has now been cured.

Specifically, in response to this Boards admission of NIRSs contention of omission -

i.e., NIRSs complaint that AmerGens LRA failed to include periodic UT measurements of the sand bed region throughout the renewal period - AmerGen has committed to perform periodic UT measurements in the sand bed region during the renewal period pursuant to a ten year cycle (AmerGen Motion to Dismiss at 2-3). Because AmerGen has supplied a plan to provide the periodic UT measurements that NIRSs contention claimed were improperly omitted from AmerGens LRA, NIRSs claim of omission is moot.10 Where, as here, a contention of omission that is the sole contention in the proceeding has been rendered moot and no other motions remain pending, an order dismissing the conten-tion ordinarily would terminate the proceeding. This Board declines to take that step at this juncture. The Commission has instructed (McGuire, CLI-02-28, 56 NRC at 383) that when a contention of omission has been rendered moot, the intervenor - if it wishes to raise specific 11 The Commission in McGuire explained that unless it require[d] an amended or new contention in omission situations, an original contention alleging simply a failure to address a subject could readily be transformed - without basis or support - into a broad series of disparate new claims. This approach effectively would circumvent NRC contention-pleading standards and defeat the contention rules purposes (CLI-02-28, 56 NRC at 383).

12 The above procedure, which deems a new contention filed within 20 days to be timely for purposes of 10 C.F.R. § 2.309(f)(2)(iii), means that - if NIRS satisfies the remaining factors in section 2.309(f)(2) - the parties need not address the requirements under 10 C.F.R. § 2.309(c), which apply to nontimely filings. See Entergy Nuclear Vermont Yankee L.L.C. (Ver-mont Yankee Nuclear Power Station), LBP-06-14, 63 NRC __, __-__ & n.14 (slip op. at 3-7 &

n.14) (May 25, 2006).

challenges regarding the new information - may timely file a new contention that addresses the admissibility factors in 10 C.F.R. § 2.309(f)(1).11 Accordingly, to give NIRS the opportunity to file a new contention in this proceeding raising a specific substantive challenge to AmerGens new periodic UT program for the sand bed region, we will forbear from issuing an order of dismissal for 20 days from the date of this Memorandum and Order. See Entergy Nuclear Vermont Yankee L.L.C. (Vermont Yankee Nuclear Power Station), LBP-05-24, 62 NRC 429, 433 (2005); cf. 10 C.F.R. § 2.319 (presiding officer has all the powers necessary to promote efficiency and ensure a fair hearing process).

If NIRS seeks leave to file a new contention within 20 days of the date of this Memorandum and Order (i.e., by June 26, 2006), we will deem the filing to be timely for purposes of 10 C.F.R. § 2.309(f)(2)(iii). Any such filing - the substance of which must be limited to the sand bed region, and which must be limited to AmerGens new UT program for that region as reflected in its docketed commitment of April 4, 2006 - shall address the remaining factors in 10 C.F.R. § 2.309(f)(2), as well as the admissibility factors in 10 C.F.R. § 2.309(f)(1). See Vermont Yankee, LBP-05-24, 62 NRC at 433.12 If NIRS elects to file a new contention, AmerGen and the NRC Staff may file an answer consistent with 10 C.F.R. § 2.309(h)(1). NIRS may file a reply to any answer consistent with 10 C.F.R. § 2.309(h)(2).

B.

The Motions Concerning The Mandatory Disclosure Process For The Moot Contention Are Moot Because the sole contention in this proceeding is moot, the mandatory disclosure pro-cess for that contention (10 C.F.R. §§ 2.336 and 2.1203) is terminated. The following requests pertaining to mandatory disclosures are thus moot: (1) AmerGens motion to suspend manda-tory disclosures (AmerGen Motion to Dismiss at 8-10); (2) NIRSs motion to compel further mandatory disclosures (NIRS Motion to Compel Disclosures at 6); and (3) NIRSs motion seek-ing permission to file (if necessary) subsequent timely motions to compel (ibid.).

13 Copies of this Memorandum and Order were sent this date by Internet e-mail to counsel for: (1) AmerGen; (2) New Jersey; (3) NIRS; and (4) the NRC Staff.

IV. CONCLUSION For the foregoing reasons, we conclude that NIRSs contention is moot. However, we will refrain from issuing an order of dismissal for 20 days from the date of this Memorandum and Order, thus allowing NIRS the opportunity to seek leave to file a new contention in this proceeding if it wishes to raise a specific substantive challenge regarding AmerGens periodic UT program for the sand bed region. Our conclusion that NIRSs contention is moot terminates the mandatory disclosure process for that contention, and the motions pending before us pertaining to mandatory disclosures are thus moot.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD13

/RA/

E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE

/RA/

Dr. Paul B. Abramson ADMINISTRATIVE JUDGE

/RA by G.P. Bollwerk for:/

Dr. Anthony J. Baratta ADMINISTRATIVE JUDGE Rockville, Maryland June 6, 2006

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

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AMERGEN ENERGY COMPANY, LLC

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Docket No. 50-219-LR

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(Oyster Creek Nuclear Generating Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (CONTENTION OF OMISSION IS MOOT, AND MOTIONS CONCERNING MANDATORY DISCLOSURE ARE MOOT) (LBP-06-16) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge E. Roy Hawkens, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Anthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Steven C. Hamrick, Esq.

Mitzi A. Young, Esq.

Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Richard Webster, Esq.

Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695

2 Docket No. 50-219-LR LB MEMORANDUM AND ORDER (CONTENTION OF OMISSION IS MOOT, AND MOTIONS CONCERNING MANDATORY DISCLOSURE ARE MOOT) (LBP-06-16)

Paul Gunter, Director Reactor Watchdog Project Nuclear Information and Resource Service 1424 16th Street, NW, Suite 404 Washington, DC 20036 Donald J. Silverman, Esq.

Kathryn M. Sutton, Esq.

Alex S. Polonsky, Esq.

Morgan, Lewis, & Bockius LLP 1111 Pennsyvlania Ave., NW Washington, DC 20004 Bradley M. Campbell, Commissioner New Jersey Department of Environmental Protection P.O. Box 402 Trenton, NJ 08625-0402 Jill Lipoti, Director New Jersey Department of Environmental Protection Division of Environmental Safety and Health P.O. Box 424 Trenton, NJ 08625-0424 Ron Zak New Jersey Department of Environmental Protection Nuclear Engineering P.O. Box 415 Trenton, NJ 08625-0415 J. Bradley Fewell, Esq.

Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 Suzanne Leta NJPIRG 11 N. Willow St.

Trenton, NJ 08608 John A. Covino, Esq.

Ellen Barney Balint, Esq.

Valerie Anne Gray, Esq.

Caroline Stahl, Esq.

Deputy Attorneys General New Jersey Office of the Attorney General Environmental Permitting &

Counseling Section Division of Law Hughes Justice Complex P.O. Box 093 Trenton, NJ 08625

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 6th day of June 2006