ML061250199

NRC Staff'S Response to Amergen'S Motion to Dismiss Drywell Contention as Moot

ML061250199
Person / Time
Site:	Oyster Creek
Issue date:	05/05/2006
From:	Hamrick S NRC/OGC
To:	Atomic Safety and Licensing Board Panel
Hamrick J, OGC, 301-415-4106
References
50-219-LR, ASLBP 06-844-01-LR, RAS 11618
Download: ML061250199 (7)

Text

May 5, 2006 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 RESPONSE TO AMERGENS MOTION TO DISMISS DRYWELL CONTENTION AS MOOT INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the Nuclear Regulatory Commission (Staff) hereby answers the Motion to Dismiss Drywell Contention as Moot and to Suspend Mandatory Disclosures (Motion) filed by AmerGen Energy Company, LLC (AmerGen) on April 25, 2006. For the reasons discussed below, the Staff agrees that the contention is moot and supports the Motion to Dismiss.1 BACKGROUND A. The Contention On November 14, 2005, six organizations2 (collectively NIRS) filed a request for hearing and petition to intervene in this case. NIRS proposed a contention that AmerGens license renewal application (LRA) for the Oyster Creek Nuclear Generating Station (OCNGS) was deficient for, inter alia, its failure to include periodic UT measurements in the 1

As stated in footnote two to AmerGens Motion, the Staff concurs with AmerGens request to suspend mandatory disclosures pending resolution of the Motion to Dismiss.

2 The six organizations are 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.

sand bed region of the drywell liner. Request for Hearing and Petition for Leave to Intervene, dated November 14, 2005 (Petition).

On February 27, 2006, the Atomic Safety and Licensing Board (Board) granted NIRSs request for hearing and petition to intervene. Memorandum and Order (Denying New Jerseys Request for Hearing and Petition to Intervene, and Granting NIRSs Request for Hearing and Petition to Intervene), LBP-06-07, 63 NRC 188 (February 27, 2006). The Board narrowed NIRSs contention to read as follows:

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

Id. at 217.3 B. AmerGens Periodic UT Examination Commitments AmerGen has formally docketed two commitments pertinent to NIRSs admitted contention. Motion at 2. First, on December 9, 2005, AmerGen docketed a commitment to perform a one-time UT examination on the sand bed region prior to the renewal period.4 Second, on April 4, 2006, AmerGen docketed a commitment to perform additional UT examinations once every ten years during the renewal period.5 On April 25, 2006, AmerGen filed the instant Motion, arguing that these two commitments render NIRSs contention moot.

3 Both AmerGen and the Staff appealed the Boards decision to admit NIRSs contention. See AmerGen Notice of Appeal of LBP-06-07 Granting Admission of Petitioners Contention on Drywell Corrosion, dated March 14, 2006; and NRC Staff Notice of Appeal of LBP-06-07, dated March 14, 2006. At this time, the appeals remain before the Commission.

4 Letter from C.N. (Bud) Swenson to NRC Document Control Desk, dated December 9, 2005 (ADAMS Accession No. ML0534902190).

5 Letter from Michael P. Gallagher to NRC Document Control Desk, dated April 4, 2006 (ADAMS Accession No. ML060970288).

DISCUSSION The Commission distinguishes contentions that merely allege an omission of information from those that make specific substantive challenges to how particular information is discussed in an application. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 382-83 (2002). Where contentions allege the omission of particular information or an issue from an application, and the information is later supplied by the applicant . . . the contention is moot. Id. at 383; see also Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-05-24, 62 NRC 429 (2005); Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-04-9, 59 NRC 286 (2004); Duke Energy Corp.

(Catawba Nuclear Station, Units 1 & 2), LBP-04-7, 59 NRC 259 (2004).

In cases where the Board must determine whether a contention falls under the omission category, the analysis category, or some combination of the two, it will look first to the language of the contention. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

LBP-02-2, 55 NRC 20, 29 (2002) (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-23, 54 NRC 163, 171 (2001)). If that is unavailing, it will turn to the language of the bases provided to support the contention . . . to discern the sponsors intent relative to the contentions scope. Private Fuel Storage, 54 NRC at 171.

In this case, both the language of the contention, as well as its bases, indicate that it is strictly a contention of omission, rather than one of analysis. See 63 NRC at 217-18. NIRSs contention challenges AmerGens License Renewal Application because its corrosion management program fails to include periodic UT measurements. Id. at 217. Similarly, the language of the bases identified by the Board to support the contention focuses solely on this omission (e.g. accordingly, periodic UT inspections must be employed in the sand bed region

during the license renewal period to confirm the actual remaining wall thicknesses of this vital safety structure). Id. at 218.

In the Vermont Yankee extended power uprate (EPU) proceeding, a contention challenged the EPU application for its failure to assure seismic and structural integrity of the cooling towers under uprate conditions because the minimum appropriate structural analyses ha[d] apparently not been done. 62 NRC at 430. The Board designated this a contention of omission. Id. at 431. The licensee subsequently performed a structural and seismic analysis of the cooling towers, which took into account changes to the cooling towers associated with the EPU and filed a motion to dismiss the contention. Id. at 430. The Board dismissed the contention, stating: [g]iven that the contention was based on the need for Entergy to perform a seismic and structural analysis, now that Entergy has performed this analysis, the contention is moot.6 Id. at 432.

The Board in Vermont Yankee acknowledged that some of the language in the contention seemed to indicate that it was not solely a contention of omission:

For example, the first sentence of the contention alleges, in pertinent part, that:

Entergy cannot assure seismic and structural integrity of the cooling towers under uprate conditions . . . But this phrase, read alone, is a broad and very unfocused complaint . . . Nevertheless, in context, it is clear that NEC Contention 4 focused on the omission, not the quality, of any seismic and structural analysis of the cooling system under EPU conditions. This was inevitable, because at the time there was no such analysis, and therefore no way that NEC could review or challenge its adequacy.

Id.

6 The Board in Vermont Yankee did not address the quality of the applicants seismic and structural analysis, because the contention was one of omission. The alleged deficiency was cured simply by the applicants providing the analysis. The Board directed parties with any specific complaints regarding the analysis to seek leave to file a new contention. 62 NRC at 433. Similarly, as NIRSs contention is one of omission, the adequacy of AmerGens UT examination commitments is not relevant at this juncture. The Staff will address this topic in its review of the application.

Here, NIRSs contention asserts that AmerGens application fails to establish an adequate aging management plan. While this language, taken alone, may seem to raise a qualitative challenge to the aging management plan, in context, it is clear that the contention merely challenges the plan insofar as AmerGen failed to include periodic UT measurements in the sand bed region of the drywell liner. This failure has been remedied. Deprived of the specific challenge to the corrosion management programs lack of periodic testing, the contentions assertion regarding the inadequacy of AmerGens aging management plan is rendered a broad and very unfocused complaint. AmerGens commitments to provide periodic UT measurements cure any specific deficiencies alleged by the contention. Although the Staff has yet to determine the adequacy of these commitments as part of the applicants corrosion management program, the omission has been remedied. NIRSs contention, therefore, should be dismissed.

CONCLUSION For the foregoing reasons, the Board should grant AmerGens motion to dismiss.

Respectfully submitted,

/RA/

Steven C. Hamrick Counsel for NRC Staff Dated at Rockville, Maryland this 5th day of May, 2006

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 the NRC STAFFS RESPONSE TO AMERGENS MOTION TO DISMISS DRYWELL CONTENTION AS MOOT in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system as indicated by an asterisk, or by electronic mail, with copies by U.S. mail, first class, as indicated by double asterisk, this 5th day of May, 2006.

E. Roy Hawkens, Chair* Office of the Secretary*

Administrative Judge ATTN: Docketing and Service Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 HEARINGDOCKET@nrc.gov ERH@nrc.gov Office of Commission Appellate Anthony J. Baratta* Adjudication*

Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3F23 OCAAMail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Debra Wolf*

AJB5@nrc.gov Law Clerk Atomic Safety and Licensing Board Paul B. Abramson* Mail Stop: T-3F23 Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3F23 DAW1@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Lisa P. Jackson, Acting Commissioner**

PBA@nrc.gov New Jersey Department of Environmental Protection P.O. Box 402 Trenton, NJ 08625-0402 Lisa.Jackson@dep.state.nj.us

Jill Lipoti, Director** Alex S. Polonsky, Esq.**

New Jersey Department of Morgan, Lewis & Bockius LLP Environmental Protection 1111 Pennsylvania Ave., N.W.

Division of Environmental Safety and Health Washington, DC 20004 P.O. Box 424 apolonsky@morganlewis.com Trenton, NJ 08625-0424 Jill.Lipoti@dep.state.nj.us Paul Gunter, Director**

Reactor Watchdog Project Kathryn M. Sutton, Esq.** Nuclear Information Morgan, Lewis & Bockius LLP And Resource Service 1111 Pennsylvania Ave., NW 1424 16th Street, NW, Suite 404 Washington, DC 20004 Washington, DC 20036 ksutton@morganlewis.com pgunter@nirs.org Ron Zak** J. Bradley Fewell, Esq.**

New Jersey Department of Exelon Corporation Environmental Protection 200 Exelon Way, Suite 200 Nuclear Engineering Kennett Square, PA 19348 P.O. Box 415 bradley.fewell@exeloncorp.com Trenton, NJ 08625-0415 Ron.Zak@dep.state.nj.us John A. Covino, Esq.**

Valerie Anne Gray, Esq.

Suzanne Leta** Deputy Attorneys General New Jersey Public Interest Research Group Division of Law 11 N. Willow St. Environmental Permitting and Counseling Trenton, NJ 08608 Section sleta@njpirg.org Hughes Justice Complex Trenton, NJ 08625 Donald Silverman, Esq.** john.covino@dol.lps.state.nj.us Morgan, Lewis, & Bockius LLP Valerie.Gray@dol.lps.state.nj.us 1111 Pennsylvania Avenue, NW Washington, DC 20004 Richard Webster, Esq.**

dsilverman@morganlewis.com Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 rwebster@kinoy.rutgers.edu

/RA/

Steven C. Hamrick Counsel for NRC Staff