ML090560650

2009/02/19-Motion for Leave to File a Reply to the NRC Staff'S Opposition to Citizens' Motion to Reopen

ML090560650
Person / Time
Site:	Oyster Creek
Issue date:	02/19/2009
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:	NRC/OCM
SECY RAS
References
50-0219-LR, RAS H-101
Download: ML090560650 (49)

Text

DOCKETED USNRC February 20, 2009 (8:30am)OFFICE OF SECRETARY UNITED STATES OF AMERICA RULEMAKINGS AND , ~ADJUDICATIONS .STAFF 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 19, 2009)MOTION FOR LEAVE TO FILE A REPLY TO THE NRC STAFF'S OPPOSITION TO CITIZENS' MOTION TO REOPEN INTRODUCTION On February 12, 2009 the NRC Staff answered the motion to reopen this proceeding (the"Motion to Reopen") filed by 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").'

Because the Commission's regulations in 10 C.F.R._§ 2.323(c) do not permit the filing of replies to answers without leave from the presiding adjudicatory body, Citizens are filing this motion to obtain such leave. In conformance with 10 C.F.R. § 2.323(b), Citizens sought the consent of the NRC Staff and AmerGen Energy Co. LLC to the filing of the attached Reply, but have not yet heard from the parties regarding this Motion.Replies to answers to motions are only permitted in "compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments Citizens received the Staff s answer at 10 p.m., which extended Citizens' time to reply by one day in accordance with 10 C.F.R. § 2.306.TPLi~re~ §~scJ-cN(

I to which it seeks to reply." 10 C.F.R, § 2.323(c).

Citizens find themselves in precisely such circumstances.

Citizens could not have reasonably anticipated the following arguments:

i) that the Staff would make new factual allegations, including repeating an unverified rumor about an event that was not contained in the Inspection Report;ii) that the Staff would argue that the motion was not timely, when it was based upon information that the NRC Staff had avoided disclosing to Citizens by failing to notify them or of the inspection exit~meeting or inviting them to observe;ARGUMENT I. The NRC Staff's Introduction Of New Allegations And Repetition Of Unverified Rumors Illustrates That Citizens Should Be Permitted To Reply And Cross Examination Of Witnesses Is Required To Meet APA Requirements In their Motion to Reopen, Citizens made the rather obvious observation that the bottle which collected the water from the Bay 11 drain filled three days after the refueling cavity had been drained, providing direct evidence that water sources other than the refueling cavity are probably draining to the sandbed region of the drywell. To Citizens surprise the NRC Staff tried to refute this straightforward argument by stating "it has recently been reported but not verified that on November 15, 2008, AmerGen employees found the funnel connected to the Bay I I poly bottle blocked. These employees removed the clog upon inspection, which resulted in water draining to the poly bottle." NRC Staff Answer dated February 12, 2009 at 5 n. 9. This rumor is then repeated as a factual allegation in footnote 18 without any indication that the alleged facts have not been verified by the Staff.Notably neither the inspection report, Exelon's Answer dated February 11, 2009, nor the affidavit supporting the Staffs Answer made any mention of this information.

Citizens could hardly have anticipated that approximately three months after these events actually took place, 2 the NRC Staff would repeat an unverified rumor in an attempt to explain away a reported fact that supports Citizens' argument about additional sources of water. Furthermore, Citizens could not have anticipated that the Staff would present a factual affidavit that contains a number of questionable assertions that Citizens have had no opportunity to rebut.The Staff's attempt to introduce new allegations, including those for which no evidentiary support is available, into this proceeding without providing Citizens any opportunity to rebut those allegations or cross examine the witnesses making the assertions.

The Staff s approach directly illustrates why a remand to the licensing board for further evaluation of the facts is required.

Citizens argued in the Motion to Reopen that because the findings of the inspection report contradict the testimony of a number of witnesses, the circumstances here show that the initial proceeding was not adequate to provide full and true disclosure of the facts. The Staff s Answer further illustrates that that even at this nominally late stage in this proceeding further development of the facts is required to adjudicate the issues raised by Citizens'contention.

The Administrative Procedure Act ("APA") dictates that this further factual development should include an opportunity for Citzens to present rebuttal evidence to the new allegations and cross-examine the witnesses for the applicant and the Staff. Although, the First Circuit found that despite the apparently limited right to cross-examination, the Subpart L rules are facially valid and in accordance with the APA, it only did so because NRC committed to treating the right to cross-examination allowed by Subpart L to be equivalent to the right to cross examination under Section 556(d) of the APA. Citizens Awareness Network, Inc. v. Nuclear 3 Regulatory Commission, 391 F.3d 338, 354 (1st Cir. 2004).2 That section of the APA states that"A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts." 5 U.S.C. § 556(d). The First Circuit warned "[s]hould the agency's administration of the new rules contradict its present representations or otherwise flout this principle, nothing in this opinion will inoculate the rules against future challenges." 391 F.3d at 354.Here, Citizens have not had the chance to rebut the new allegations presented by the Staff. Therefore, Citizens should be grated a right to respond to present such rebuttal testimony.

Further, the Staff has not even alleged it can produce witnesses to can testify to the unverified rumor that the Staff uses to try to support its argument that that water that filled a bottle 3 days after the refueling cavity had been drained could nonetheless have come from the refueling cavity. Because of the strange circumstances here, where the Staff is repeating rumors about previously unreported events, the APA at least grants Citizens the right to cross examine any witnesses the Staff may be able to produce in the future to support this allegation.

Moreover, an issue that the First Circuit did not address is whether it is possible to predict in advance of a hearing how much cross-examination is required to achieve "full and true disclosure of the facts" as required by the APA or what would happen if it later became clear that such an opportunity had not been provided.

Here, the facts in the inspection report contradict the testimony of a number of witnesses for the Staff and for AmerGen. Thus, it is now clear that the hearing failed to achieve "full and true disclosure of the facts." The APA therefore dictates that, 2 Strangely, although the Staff cites to this case, the Staff made no reference whatsoever to the NRC's undertaking to the First Circuit that the cross examination right under Subpart L would be equivalent to that granted by the APA. Staff Answer at 19 n. 32.4 at minimum, Citizens should be provided an opportunity to cross examinethe witnesses who gave the testimony that has proven to be incorrect.

II. The Motion To Reopen Was Timely Citizens based their Motion To Reopen upon the official account of the refueling outage provided by the inspection report. NRC Staff now argues that even though Citizens should have moved earlier, because the keys facts were known prior to the publication of the inspection report. NRC Staff Answer at 17-19. This is straightforwardly incorrect.

Prior to the publication of the inspection report Citizens did not know many key facts, including that: i) no water had been found in the poly bottles that were designed to monitor the drywell drains prior to November 115, 2009, even though water had been observed in Bays 11, 13, 15, and 17 on November 8, 2009;ii) it was only by happenstance that the water in the drywell was Observed, because the action plan that was in place did not call for a drywell entry under the circumstances; iii) water flowed to the bottle that was nominally connected to the Bay 11 drain 3 days after the refueling cavity was drained;iv) the analysis of the collected water in that bottle failed to draw any conclusions about the origin of the water;v) the observed "bumps" in the coating were actually unbroken corrosion blisters that had not been found in the review of the video from 2006.Although the Staff and AmerGen provided Citizens-with some preliminary and rather cryptic information through three notifications, the information contained in those notifications was insufficient to show that the initial decision of the licensing board and the findings of the Safety Evaluation Report had been comprehensively undermined by the events that occurred during the November 2008 outage. For example, while the notifications showed that' one visual inspection had failed to find coating degradation, they did not show that repeated visual inspections by both Amergen personnel and an NRC inspector had missed corrosion blisters and a rust stain. Furthermore, the notifications failed to note that the method AmerGen is proposing to use to detect water in the sandbed region had proven to be ineffective during the outage.5 '

Most egregiously, the NRC Staff insinuate that Citizens deliberately held back on filing the Motion To Reopen because they wanted to submit just prior to an affirmation session. NRC Staff Answer at 18 n. 30. Nothing could be further from the truth. The NRC Staff failed to invite Citizens to attend the exit meeting about the events during the November 2008 outage, citing insufficient significance or public interest.3 Citizens therefore only received full information about the events of the outage when they received the inspection report on January 21 2009.Thus Citizens most certainly did not hold their submission back until the affirmation session was scheduled' CONCLUSION For the foregoing reasons, Citizens respectfully request that the Commission grant leave for Citizens to reply to the NRC Staff s Answer to the Motion to Reopen.Respectfully submitted Richard Webster, Esq.Eastern Environmental Law Center Attorneys for Citizens Dated: February 19, 2009 E-mail from M. Baty to R. Webster, dated January 9, 2009.6 February 19, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED USNRC BEFORE THE COMMISSION February 20, 2009 (8:30am)OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF In the Matter of ))AMERGEN ENERGY COMPANY, LLC ) Docket No.(Oyster CreekNuclear Generating.

Station) ) 50-21 9-LR)PETITION 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 REQUIRE SUPPLEMENTATION OF THE SAFETY EVALUATION REPORT FOR OYSTER CREEK NUCLEAR POWER PLANT Submitted by: Richard Webster Eastern Environmental Law Center 744 Broad Street, Suite 1525 Newark, NJ 07102-3094 Counsel for 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 Environmental Federation 1

TABLE OF CONTENTS TABLE OF AUTHORITIES i...........................................

I. INTRODUCTION AND

SUMMARY

.................................

1 II. DESCRIPTION OF PETITIONERS AND THEIR INTERESTS

.....................

3 III. N A TU RE O F PETITION .....................................................................................

3 IV. REGULATORY FRAMEWORK.......

......6 A. Requirements of Atomic Energy Act and NRC Regulations for Renewal O f O perating L icenses ...................................................................................

6 B. NRC Staffs Legal Responsibility in License Renewal Reviews .....................

8 C. The Review Process For License R~newal............................9 D. NRC Staff Practice Regarding Supplementary SERs ....................................

10 V. THE FINDINGS OF THE REPORT ...................................................................

11 VI. THE SER MUST BE UPDATED ...................................

12 A. The SER Incorrectly Assumed Visual Inspections Would Reliably D etect C oating Failure ..................................................................................

13 B. The SER Incorrectly Assumed That The Proposed Method of Detecting Water in The Drywell Would Be Reliable ..........................

14 C. The SER Incorrectly Assumed That The One-time Inspection of Certain Piping Would Find No Measurable Degradation

..........................................

16 VII. CONCLUSION AND REQUEST for RELIEF ...................................................

17 i I TABLE OF AUTHORITIES UJUDICIAL DECISIONS Union of Concerned Scientists

v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 469 U .S. 1132 (1985) .............................................................................

5 I Union of Concerned Scientists

v. NRC, 920 F.2d 50 (D.C.Cir.

1990) ...............

5 ADMINISTRATIVE DECISIONS AmerGen Energy Co. LLC (License Renewal for Oyster Creek Nuclear Generating Station), LBP-06-07, 63 NRC 188 (2006) .................................................

3 AmerGen Energy Co. LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, slip op (2008) .............................................

4 Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), A LA B-678, 15 N RC 1400 (1982) ...............................................................................

8 Consolidated Edison Co. of N.Y., Inc. (Indian Point, Units 1, 2 and 3), CLI-75-8, 2 N R C 173 (1975) ....................................................................................

3 Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-17, 62 N R C 5 (2005) .....................................................................................

8 Pacific Gas and Electric Company (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230 (2002) ........................

3, 4, 5 South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 (1981) .........................................

8 U.S. Army (Jefferson Proving Ground Site), LBP-06-26, 64 NRC 438, 456 (2007) ..... 4, 6 I STATUTES I Atom ic Energy Act, 42 U .S.C. §2133 ........................................................................

6 42 U .S.C .§ 2133(c) .......................................................................................

6 I 42 U .S .C .§ 2 133(d) .....................................................................................

1,2,6 42 U.S.C. § 2201(b) ........................................................

42 U .S.C .§ 2232(a) .................................................................................

1, 2, 6! ii 42 U .S.C .§ 2239(a) ..........................................

...............................................

5 42 U .S.C .§ 2239(a)(1)(A ) ...................................................................................

I NRC REGULATIONS 10 C .F .R .§ 2.206 ......................................................................................................

..4 10 C .F .R .§ 2 .3 2 3 .............................................................................................................

I 10 C .F .R .§ 2.802 ....................................................................................................

4 10 C .F .R .§52.29(a)

...................................................................................................

..2 10 C .F .R .§ 54 .2 7 .............................................................................................................

I 10 C .F .R .§ 54 .2 9 .............................................................................................................

I FEDERAL REGISTER NOTICES Final Rule, Changes to Adjudicatory Process 69 Fed. Reg. 2182 (January 14, 2004) ... 4, 5 Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (D ecem ber 13, 1991) ....................................................................

7 Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,462 (M ay 8, 1995) .............................................................................

7 NRC GUIDANCE DOCUMENTS NRC Inspection Manual, Inspection Procedure 71002 (February

18. 2005) ............

9 NRR Office Letter No. 805, License Renewal Application Review Process (June 19, 1998) ............................................................................

9, 10 Inspection Report No. 05000219/2008007 (January 21, 2009) .........................................

I MISCELLANEOUS ASME Working Group, Subsection I WE Commentary (2007), available at

.........................

14 Calvert Cliffs Nuclear Power Plant, Units 1 and 2 -Renewal of Full-Power Operating License, January 14, 2000 available at http://www.nrc.gov/reading-rm/doc-collections/commission/secys/2000/secy2000-0010/2000-001 0scy.html

.....................

10 111 Hull, et al, NPP License Renewal and Aging Management:

Extrapolating American Experience, submitted to the First Symposium on Nuclear Pressure Equipment and Regulation (NuPEER), Dijon, France (June 22-24, 2005) ....................

8 Safety Evaluation Report for Oyster Creek (April 2007) ...................................

1,2, 13, 16 Safety Evaluation Report Related to the License Renewal of The Browns Ferry Nuclear Plant Units 1, 2 and 3 (April 2006), available at ML061220272

.....................

10 Transcript of Oyster Creek ASLB Hearing (September 24 and 25, 2007) ....................

5 iv I. INTRODUCTION AND

SUMMARY

Pursuant to the Atomic Energy Act ("AEA"), 42 U.S.C. §§ 2133(d), 2201(b) and (c), 2232(a), and 2239(a)(1)(A);

and implementing regulations 10 C.F.R. §§ 2.323, 54.27, and 54.29, 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 Environmental Federation;

("Citizens" or"Petitioners")

hereby request the U.S. Nuclear Regulatory Commission

("NRC" or"Commission")

to instruct the NRC Staff to supplement the Safety Evaluation Report ("SER") for the Oyster Creek nuclear power plant ("Oyster Creek").This Petition is based upon the facts contained in inspection report No.05000219/2008007 (the "Report"), which was published on January 21, 2009 and is available on ADAMS as document number ML090210106.

Citizens have already shown through their filing on February 2, 2009, with an attached declaration by Dr. Rudolf Hausler, that the information in the Report undermines the initial decision of the Atomic Safety and Licensing Board in the Oyster Creek proceeding.

This Petition goes further and shows that the information in the Report also contradicts three critical findings made by the Staff in the SER and therefore undermines the Staff's overall finding that the aging management program ("AMP") for the drywell shell to which AmerGen Energy Co., LCC ("AmerGen" or "Exelon")l has committed would provide reasonable assurance of adequate protection during any extended period of operation.

Contrary to the findings or assumptions in the Safety Evaluation Report for Oyster Creek, dated April 2007 ("Oyster Creek SER"), the Report shows that,: i) visual inspections alone are not adequate to detect Exelon Generation Company LLC has now taken over the license from AmerGen.

the onset of corrosion and subsequent coating degradation; ii) the committed measures that involve monitoring of bottles connected to drains by long tubes are insufficient to reliably determine when water is present in the sandbed region and iii) loss of material due to aging at some-locations in the small-bore piping is significant and requires additional aging management.

Based upon the facts in the Report, both Dr. Hausler and the State of New Jersey have concluded that the aging management plan ("AMP") for the drywell shell in the sandbed region must be.enhanced.

In addition, the text of the SER itself makes clear that the Staff closed some relevant open items based upon commitments that have been shown to be ineffective for their intended purpose. For example, the Staff found the Exelon's commitment to monitor bottles connected to the drains from the sandbed region would"provide reasonable assurance that any further incidents of water in the sandbed region will be systematically evaluated." Oyster Creek SER at 4-69 (emphasis added). However, the Report now shows that water can be present in the sandbed region, but not be observed in the bottles connected to the drains. Report at 6-7. Thus, Staff s finding of reasonable assurance in this regard has proved incorrect.

Therefore, without a supplement to the existing Oyster Creek SER, the Commission does not have an adequate basis to determine whether the AMPs for the drywell and small bore piping at Oyster Creek would provide adequate protection to public health and safety during the license renewal term, as required by 42 U.S.C. § 2232(a) and 10 C.F.R. § 52.29(a).

Nor does the Commission have an adequate basis for concluding that continued operation of nuclear power plants under license renewal terms would not be inimical to the common defense and security or public health and safety, as required by 42 2 U.S.C. § 2133(d). Thus, unless the Staff supplements the Oyster Creek SER, the Commission cannot issue a renewed license for Oyster Creek.II. DESCRIPTION OF PETITIONERS AND THEIR INTERESTS Citizens are national, New Jersey-specific and local organizations concerned about the safety of the Oyster Creek nuclear power plant, whose standing to intervene in the Oyster Creek license renewal proceeding has been established.

AmerGen Energy Co. LLC (License Renewal for Oyster Creek Nuclear Generating Station), LBP-06-07, 63 NRC 188, 195-96 (2006).Citizens seek the relief requested above in Section I because their expert and the State of New Jersey believe that the AMP for the sandbed region of the drywell must be enhanced.

Furthermore, in part because the Oyster Creek SER needs to be updated to reflect newly revealed operating experience, the Commission does not currently have an adequate basis to make statutorily required findings for renewing the operating license at Oyster Creek.III. NATURE OF PETITION This Petition constitutes a request to the Commission to exercise its supervisory authority to ensure that NRC decisions with respect to the re-licensing of the Facilities comply with the Commission's obligations under the AEA to protect public health and safety, and to ensure that the NRC provides a meaningful opportunity for public participation in its licensing decisions.

Consolidated Edison Co. of N. Y, Inc. (Indian Point, Units 1, 2 and 3), CLI-75-8, 2 NRC 173 (1975) (holding that the Commission has an"overriding responsibility for assuring public health and safety in the operation of nuclear power facilities").

See also Pacific Gas and Electric Company (Diablo Canyon Power 3 Plant Independent Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230, 236-237 (2002) (holding it appropriate for the Commission to exercise its "ultimate supervisory control" over NRC proceedings);

AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-08-23 (2008), slip. op. at 17 (Commission addressed a petition regarding the adequacy of several SERs pursuant to its inherent supervisory authority).

Petitioners do not seek enforcement action against a licensee under 10 C.F.R. §2.206, nor do Petitioners request a rulemaking under 10 C.F.R. § 2.802. Instead, Petitioners request that the Commission instruct the Staff to supplement the SER. Because this Petition is neither a request for rulemaking nor a request for enforcement of NRC's ongoing operating requirements, it should be treated as a "general motion" filed directly with the Commission, consistent with Pacific Gas and Electric Co., 56 NRC at 236-237.Petitioners recognize that the Commission discourages participants in adjudicatory hearings from bypassing the Atomic Safety and Licensing Board (the "Board" or"ASLB"). Id., 56 NRC at 237. However, Petitioners believe that this Petition is correctly filed with the Commission because the subject of the Petition is the performance of the NRC Staff in license renewal proceedings, a subject the Commission has excluded from the purview of the ASLB: The Commission has made it clear that '[t]he adequacy of the applicant's license application, not the NRC staffs safety evaluation, is the safety issue in any licensing proceeding, and under longstanding decisions of the agency, contentions on the adequacy of the [content of the] SER are not cognizable in a proceeding.'

US. Army (Jefferson Proving Ground Site), LBP-06-26, 64 NRC 438, 456 (2007), quoting Final Rule, Changes to Adjudicatory Process; 69 Fed. Reg. 2182, 2202 (January 14, 4 2004).2 In prohibiting challenges to the adequacy of NRC Staff reviews before the ASLB, the Commission reasoned that it is inappropriate to give the ASLB the role of supervising the NRC Staff. 69 Fed. Reg. at 2202. Thus, it is appropriate for Petitioners to raise the issue before the Commission, which has ultimate supervisory authority.

Pacific Gas and Electric Company, 56 NRC at 236-37.While the Commission has prohibited Petitioners from raising their concerns about the adequacy of the NRC Staff's review before the ASLB, those concerns are nevertheless material to the NRC'S decisions in the license renewal proceedings for the Facilities because, 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).Accordingly, the Commission should consider the issues raised by this Petition because they are material to the license renewal proceeding for Oyster Creek. Union of Concerned Scientists

v. NRC 735 F.2d 1437, 1438-50 (D.C. Cir. 1984), cert. denied, 469 U.S. 1132 (1985). See also Union of Concerned Scientists

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 2 In fact, at the recent ASLB hearing concerning Oyster Creek, Judge Abramson explicitly stated that the work of the NRC Staff was not at issue in the proceeding:

Just for clarification for those of you who are not familiar with our processes here, what's at issue here is the application by AmerGen.The staff s work is not at issue. And even though the staff is formally a party to our proceeding that's a holdover from our old regulations which have recently been revised. Staff is, in fact, here as an amicus to us to help us understand what the staff thought when it reviewed the application.

Their work is not at issue.Transcript of Oyster Creek ASLB Hearing at 9:19-10:3 (September 24 and 25, 2007)(available at ML072700833 and ML072700797).

5 material to [a licensing]...

decision.").

Moreover, even if the Commission believes that Citizens do not have the right to a hearing on material issues that involve supervision of the Staff, Citizens have an inherent right to petition their government to take appropriate action.Citizens have consulted with both Exelon and the NRC Staff prior to filing this Petition.

Exelon has objected because the Commission essentially repeated the language quoted above from Jefferson Proving Ground in CLI-08-23, which discussed Citizens previous Petition.

However, Citizens do not understand this language to forbid parties that are involved in licensing proceedings from also raising relevant issues to the Commission outside of their appeal. Instead, Citizens believe that the language is designed to indicate that parties may not raise issues regarding NRC Staff performance in proceedings before the ASLB. Citizens have never claimed and do notnow claim that that this Petition is filed as part of their appeal of LBP-07-17, although some of the information it presents is relevant to that appeal.Although NRC Staff has not yet taken a definitive position on this Petition, it has questioned what the differences are between this Petition and Citizens' Motion filed on February 2, 2009. As Citizens have explained to the Staff, the essential differences are that this Petition requests different relief and is not part of Citizens' appeal of LBP-07-17.

IV. REGULATORY FRAMEWORK A. Requirements of Atomic Energy Act and NRC Regulations for Renewal of Operating Licenses.Section 103 of the Atomic Energy Act, 42 U.S.C. § 2133, grants the Commission authority to issue licenses for the commercial exploitation of special nuclear material.

It states that such licenses "may be renewed upon the expiration of' the initial licensed 6 period. 42 U.S.C. § 2133(c). However, the Commission is required to find that the authorized utilization of special nuclear material is "in accord with the common defense and security and will provide adequate protection to the health and safety of the public." 42 U.S.C. § 2232(a). See also 42 U.S.C. § 2133(d) ("[N]o license may be issued to any person within the United States if... in the opinion of the Commission, the issuance of a license to such person would be inimical to the common defense and security or to the health and safety of the public.")To implement these requirements, the Commission has promulgated regulations that lay out the specific requirements for relicensing.

In 1991, recognizing that "age related degradation will be critical to safety during the term of [a] renewed license," the Commission established a requirement for a plant-wide review of age-related degradation.

Final Rule, Nuclear Power Plant License Renewal; 56 Fed. Reg. 64,943, 64,960 (December 13, 1991). The regulations also required licensees to demonstrate that they had effective programs for management of aging equipment.

56 Fed. Reg. at 64,955.In 1995, the Commission narrowed the scope of the plant-wide review and aging management program to cover only age-related degradation of long-lived passive components.

Final Rule, Nuclear Power Plant License Renewal; Revisions; 60 Fed. Reg.22,461, 22,464 (May 8, 1995). In narrowing the scope of the equipment covered by the rule, however, the NRC did not alter the fundamental principles underlying the 1991 rulemaking, including that: (a) age-related degradation poses a threat to the continued safe operation of nuclear power plants, and (b) safety must be maintained throughout the license renewal period by managing the effects of aging. 60 Fed. Reg. at 22,464. As the Commission explained:

7 The objective of a license renewal review is to determine whether the detrimental effects of aging, which could adversely affect the functionality of systems, structures, and components that the Commission determines require review for the period of extended operation, are adequately managed. The license renewal review is intended to identify any additional actions that will be needed to maintain the functionality of the systems, structures, and components in the period of extended operation.

Id. Thus, the proper identification of adequate measures for managing aging effects is critical to the NRC's regulatory process for assuring safety during the license renewal term.B. NRC Staff's Legal Responsibility In License Renewal Reviews The NRC Staff has a legal responsibility to make safety findings on all relevant issues before a license or renewed license may issue. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400, 1420 n.36 (1982), citing South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895-96 (1981). In NRC licensing proceedings, the Commission defers to the Staff's conclusions on safety issues, unless they are contested.

Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-17, 62 NRC 5, 35 (2005).Thus, as a general matter, the Staff s findings on the adequacy of a license renewal application will form the basis for the NRC's decision whether to allow the facility to operate twenty years beyond its original license term. As the NRC Staff has summed up its role, "[t]he responsibility of the NRC is to ensure that plant license renewal is safe -that it does not pose additional risk to public health and safety or to the environment." Hull, et al, ANPP License Renewal andAging Management.

Extrapolating American Experience at 10, submitted to the First Symposium on Nuclear Pressure Equipment and Regulation (NuPEER), Dijon, France (June 22-24, 2005) ("Hull Report") (available in ADA.MS at ML051670356).

8 C. The Review Process For License Renewal NRC guidance stipulates that the "key elements" of a license renewal application review consist of a "technical review" of license renewal-related programs by the NRC's Office of Nuclear Reactor Regulation

("NRR"), plus "a series of on-site inspections." NRR Office Letter No. 805, License Renewal Application Review Process, Attachment 2 (Guidelines for Technical and Process Lessons Learned for License Renewal) at 2 (June 19, 1998). The purpose of the on-site inspections is to verify that: (1) the license renewal programs and activities are being documented consistently with the requirements of the rule, quality assurance requirements, and site-approved procedures; (2) the aging management programs are being implemented consistently with information provided in the LRA and the staff safety evaluation (SE); and (3) the aging management programs are effectively managing the effects of aging throughout the period of extended operation.

Id.Both the scope and the adequacy of a license renewal applicant's program for managing aging passive components are subject to the Staff's review. NRC Inspection Manual, Inspection Procedure 71002 at 1-2 (February 18, 2005). The NRC's Inspection Manual confirms that the Staff is responsible for verifying

-- through walk-downs, inspections and audits -- that the license renewal applicant has documented and covered all relevant systems, structures and components

("SSCs") in its license renewal program; and that the applicant's aging management program is adequate.

Inspection Procedure 71002 at 2-3. In addition, the NRC Staff must "ensure that operating experience relevant to a specific system, structure, or component was properly considered in the nature and extent of the potential aging effects." NRR Office Letter No. 805, Attachment I (Guide Jbr License Renewal Application Review Process), Attachment B (Safety Evaluation Form and Content Template) at 2 (June 19, 1998). NRC guidance also requires the NRC Staff to 9 document its safety review. Each safety evaluation report ("SEW') "should provide sufficient information to explain the staff's rationale to someone unfamiliar with the licensee's request" for renewal of the license. NRR Office Letter No. 805, Attachment 1 (Guide for License Renewal Application Review Process) at 9.D. NRC Staff Practice Regarding Supplementary SERs As is appropriate, the Staff has adopted a longstanding practice of issuing SER supplements when new issues regarding aging management of in-scope components emerge after the SER for a particular reactor is complete.

For example, the Staff issued a supplement to the Oyster Creek SER in September 2008 in response to two new issues.The first issue was the belated recognition by the Staff that certain metal fatigue calculations reported in the License Renewal Application

("LRA") were overly simplified.

Oyster Creek SER Supplement (September 2008) at I- 1. The second issue was the licensee's docketing of its undertaking to the Board at the hearing to enhance its commitments.

Id.The Staff has taken similar approaches to new information at other plants. For example, during the license renewal for Calvert Cliffs nuclear power plant, which did not involve a hearing, Staff supplemented the Calvert Cliffs SER when a potential issue arose about the need for additional aging management of submerged electrical cables.3 In that case, the commitment documented in the supplemental SER' was merely to review the applicability of findings made elsewhere to the cables at Calvert Cliffs. Similarly, the Staff supplemented the SER related to the license renewal for the Browns Ferry nuclear 3 http://www,.nrc.gov/reading-rm/doc-collections/commission/secys/20OO/secy2000-0010/2000-001 0scy.html 10 power plant to document a number of commitments made to resolve issues raised by the Advisory Committee on Reactor Safeguards

("ACRS").

Safety Evaluation Report Related to License Renewal of the Browns Ferry Nuclear Plant Units 1, 2, and 3 (April 2006) at 1-1, available at ML061220272.

Thus, the Staff s past actions regarding issuing supplements to SERs shows that if a potential issue arises after completion of the SER that is within the scope of license renewal and could affect a Staff finding regarding the ability of the proposed AMPs to offer reasonable assurance of adequate protection, an SER supplement should document the disposition of that issue.V. THE FINDINGS OF THE REPORT The findings of the Report are summarized in Citizens' Motion to Reopen the Record, dated February 2, 2009 and Dr. Hausler's declaration of the same date attached thereto as Exhibit CRO 1. Dr. Hausler's declaration, dated February 18, 2009, attached to this Petition as Exhibit PSERI and a letter from Jill Lipoti, State of New Jersey to Pamela B. Cowan, Exelon Generation Company, LLC, dated February 6, 2009, attached as Exhibit PSER 2, provide additional factual background.

Instead of repeating the facts, they are incorporated from these documents by reference.

The essential elements are that: 1. Visual inspections in 2006 by both trained licensee inspectors and NRC inspectors failed to find the coating degradation that the Report acknowledges was then present.2. Measures to prevent water reaching the sandbed region have proved ineffective and there are multiple indications that the refueling cavity may not be the only source of water draining to the sandbed region of the 11 drywell, including that the bottle catching the water draining from Bay 11 filled up 3 days after the refueling cavity was drained.3. At unknown times since the coating was applied, water has found its way beneath the protective coating and caused multiple corrosion blisters in at least Bay 11. One broken blister caused a rust stain on the coating, indicating that the blister contained water until it burst.4. Detecting whether water is present in the sandbed region by observing the bottles that are designed to catch the drainage water, as is currently proposed, is inherently unreliable.

Water has been observed in the sandbed region when no water has reached the bottles for various reasons.5. A one-time inspection of piping that was supposed to confirm that there was no thinning of the wall thickness of certain pipes actually found that there was measureable thinning.VI. THE SER MUST BE UPDATED The findings of the Report constitute additional operating experience.

Because this experience contradicts a number of the Staff's expectations when the Oyster Creek SER was written, the Staff must prepare a supplement to the SER to incorporate this newly identified operating experience.

Furthermore, both Dr. Hausler and the State of New Jersey have concluded that the operating experience related by the Report requires the proposed AMP for managing corrosion of the' drywell shell to be enhanced.

The Staff must now document in a supplemental SER whether it concurs with the conclusions of Dr.12 Hausler and the State of New Jersey.4 Finally, the one-time piping inspection produced an unexpected result that has triggered corrective action. The result, the corrective action taken, and the Staff's evaluation of the corrective action need to be documented in a supplemental SER.A. The SER Incorrectly Assumed Visual Inspections Would Reliably Detect Coating Failure The commitment regarding the AMP for managing the corrosion of the drywell shell that the Oyster Creek SER documented as Commitment 27 (Oyster Creek SER at A-18 to A-33) was the product of prolonged discussion between the Staff and Exelon. The Staff issued an SER with Open Items in August 2006 because the epoxy coating has a limited life and leakage of water into the sandbed region of the drywell had not been prevented.

Oyster Creek SER at 1-16. The Staff identified the extent of examination of the coated surfaces during each inspection as Open Item O 4.7.2-3. SER at 1-17. The Staff closed this open item based upon a commitment to visually inspect the coating all 10 drywell Bays prior to any period of extended operation and notification from the licensee that visual inspection of 100% of the coating had found no evidence of any deterioration.

Id.Thus, the resolution of the open item regarding the extent of the coating inspection rested on two assumptions, both of which have now been shown to be invalid. First, the Report shows that the coating had already started to deteriorate in 2006, contrary to Staff s stated belief in the SER. Second, the Report also makes clear that at least two visual 4 At least one member of the NRC Staff has apparently already rejected a number of Dr. Hausler's conclusions about the need to enhance the proposed AMP. Affidavit of Dr. James A. Davis, dated February 12, 2009. However, he failed to address to number of key issues, such as whether the method of detecting moisture in the sandbed region should be enhanced and why he believes that the coating inspection frequency and method should remain the same even though at least two visual inspections missed coating degradation that those inspections were designed to observe. He also completely ignored the piping issue.13 inspections in 2006 missed the coating deterioration that was then present. This means that visual inspection is not a reliable means of detecting deterioration of the coating, contrary to Staff s assumption in the SER. Thus, the Staff should now revert to the posture that coating inspection is an open item in need of resolution through further commitments.

As Dr. Hausler indicates, such commitments should involve going-beyond purely visual inspection.

Ex. PSER 1 at ¶ 13.The SER itself also indicates that augmented inspection for the coating is required.It states that because there are no signs of coating deterioration in the sandbed region "the region is not subject to augmented inspection in accordance with IWE-1240." SER at 3-118. Inverting this logic, it is now clear that because coating deterioration has been present since at least 2006, augmented inspection under IWE-1240 is required because these areas are "susceptible to accelerated degradation and aging." 5 Finally, the State of New Jersey has called for additional of routine monitoring of the coating in the sandbed region. Ex. PSER 1. In addition, Dr. Hausler has provided a detailed approach to setting the routine monitoring frequency.

Ex CRO I at ¶ 7 (attached to Citizens Motion to Reopen, dated February 2, 2009). The staff should also revisit this issue in the supplemental SER.B. The SER Incorrectly Assumed That The Proposed Method Of Detecting Water In The Drywell Would Be Reliable In the SER, the Staff found that the applicant's commitment to monitor bottles connected to the drains from the sandbed region by long plastic tubes would "provide reasonable assurance that any further incidents of water in the sandbed region will be 5 ASME Working Group, Subsection IWE Commentary (2007) at 8, available at http://www.tech-tel.com/IWE-Commentary-Rev-3 .pdf.14 systematically evaluated." SER at 4-69 (emphasis added). The systematic evaluation that is triggered by discovery of water includes investigation of the water source and additional inspection of the coating and the seal at the junction between the epoxy floor at the shell.Id. at 4-68 to 4-69. It was, in part, this additional commitment that led the Staff to conclude that it could close one of the open items. Id.However, the Report now shows the additional evaluation may not be triggered as envisaged because water can be present in the sandbed region, but not be observed in the bottles connected to the drains. Report at 6-7. The State of New Jersey has confirmed that"the tubing and polybottle method [of detecting water in the sandbed region] is not reliable." Ex. PSER 2. Thus, Staff's finding of reasonable assurance that water intrusion will be systematically evaluated has proved incorrect and must be revisited.

Even the Report itself highlights deficiencies in the current procedures by stating that "the action plan, as written, did not direct a sand bed entry of sand bed internal inspection, because the cavity trough drain flow never exceeded 12 gpm." Report at 7.Furthermore, the Staff noted that "if the sand bed bays had been closed out by Nov. 2, as originally scheduled,.

..then Exelon personnel would not have been inside of bay 11 on Nov. 8, and therefore, would not have visually identified water intrusion into bay 11." Id.Relying on happenstance to detect whether water has reached the sandbed region is clearly inadequate and fails to provide reasonable assurance of adequate protection.

Suggesting possible approaches to enhancing this monitoring have been provided by Dr. Hausler and New Jersey. Dr. Hausler has suggested that remote electronic detection of moisture is appropriate.

Ex. CRO I at ¶ 7; Ex. PSER at ¶ 13. New.Jersey has suggested routine visual inspection of all of the drywell Bays' during every refueling outage after 15 draindown of the refueling cavity and prior to start up. Ex. PSER 2. However, Citizens do not believe that New Jersey's approach would provide any means of reliably detecting water intrusion into the sandbed region during operation.

As New Jersey's letter points out, additional drywell entries to monitor for water would also have the undesirable effect of causing more worker exposure.

New Jersey therefore also supports exploring alternative technologies for remote monitoring of water. Id. Thus, the Staff should now require the applicant to explain how it can provide a reliable approach to monitoring for water in the sandbed region both during outages and during operation.

The Staff should then document the disposition of this issue in a supplemental SER.C. The SER Incorrectly Assumed That The One-time Inspection Of Certain Piping Would Find No Measurable Degradation With regard to piping systems of less than 4 inch nominal pipe size, 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.

Oyster Creek SER at App. A Item 24, 3-107. Such inspections had not been previously carried out. See id. at App. A Item 24 (stating "this program is new"). The one-time inspection program was designed to provide confirmation that such piping was not suffering from significant degradation.

Id at 3-105 to 3-106.The Report shows that at two out of 24 measured locations the aging was unexpectedly significant such 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. Thus, the one-time inspection has now shown the, opposite of what was intended by the SER; that thinning in certain piping is occurring to a 16 greater extent than anticipated.

In addition, at present neither the Commission nor Citizens know how this issue has been resolved.6 VII. CONCLUSION AND REQUEST FOR RELIEF For the foregoing reasons, the Commission should order the Staff to revise the SER to incorporate the operating experience found in the report and then determine whether the AMPs for the sandbed region and the small bore piping remain adequate to provide reasonable assurance of adequate protection.

Respectfully submitted, Richard Webster, Esq.Eastern Environmental Law Center 744 Broad Street, Suite 1525 Newark, NJ 07102 973-424-1166 rwebster@eastemenvironmental.org February 19, 2009 6 Citizens are still awaiting a response to their FOJA request, which was filed on January 22, 2009, one day after the Report was published.

17 EXHIBIT PSER 1 EXHIBIT PSER I 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 I. 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 an expert on the corrosion of metals during operation in various environments and under various conditions.

3. I also have an advanced degree in chemical engineering and am well versed in failure analysis.4. I have reviewed the NRC Inspection Report No. 05000219/2008007 (the"Report")

as well as the SER of April 20071).5. Before progressing to the subject of the need for enhanced inspection processes at Oyster Creek and the need to fundamentally restructuring the SER in as 1) Safety Evaluation Report related to License Renewal of Oyster Creek Generating Station, Docket No 50-219, March 2007, published April 2007 (the "SER").

much as the drywell and the corrosion in the former sand bed are concerned, I would like to remind the Commission about some fundamental principles with respect to aging processes of materials in operating environments.

6. There are very few instances in nature or industry where the corrosion rate (rate of deterioration of a substrate in general) is constant with time (often also referred to as linear), and therefore future damage assessment could be based on a linear projection of observed past deterioration rates. I provide a number of specific examples to illustrate this issue, as follows: a. steel corroding in a strong acid, such as hydrochloric acid, has an approximately constant corrosion rate.2)b. Steel corroding under conditions of flow accelerated corrosion, as long as the environmental conditions and the geometry of the system remain constant with time, also has an approximately constant corrosion rate .3 c. Almost all other corrosion phenomena one could think of are non-linear in the sense that their rate either decreases or increases with time. This not only holds for the corrosion of metals but in fact for the deterioration of materials in general.d. The observations of acceleration have been embodied in the so called bathtub curve which postulates that after a certain period of near failure-2) R. H. Hausler, On the use of Linear Polarization Measurements for the Evaluation of Corrosion Inhibitors in Concentrated Hydrochloric Acid at 200 F. CORROSIO.86, NACE, HoustonTX March 17-21, 1996, paper 275 3) Ph. Berge, J. Ducreux, P. Staint-Paul, Effects of Chemistry on Corrosion-Erosion of Steel in Water and Wet Steam, Water Chemistry, II, BNEX, 1980 Paper 2 2 free operation the cumulative failure count increases exponentially.

4) With respect to the nuclear industry the principle was clearly elucidated by Professor Roger Staehle during his'Plenary Lecture before the NACE International in '2004 in New Orleans.5)

Staehle showed that the logarithm of the cumulative failure rate in the nuclear industry observed globally over the past 20 years increased linearly with time. In other words this means an exponential increase in the failure rate.7. It is therefore excessively optimistic (and contrary to the notion of "reasonable assurance")

to-extrapolate future deterioration linearly on the basis of past observations.

8. With respect to the corrosion of the drywell in .the former sandbed area, irrespective of the mechanism one may propose for the observed corrosion beneath the coating (blister formation), the principle of non-linear kinetics is the same. More specifcally:

a. If, as Exelon proposes, blistering started because water (humidity) diffused (osmosis of moisture) through the epoxy coats and initiated corrosion where there was a corrosion initiation vector (grain of sand, grain of salt, dust or any other atmospheric impurity floating in the confined air following the removal of the sand bed and cleaning of the surface from rust, prior to the application of the epoxy coating), one can reasonably expect the water concentration at the coating/steel interface to 4) W. Kent Muhlbauer; Pipeline Risk Management Manual, 3 rd Ed. Elsevier, pg. 1/6, 2004 5) Roger W. Staehle, Plenary Lecture, CORROsion/2004, NACE International, New Orleans.3 be high enough to initiate corrosion, to generate blisters, to cause blisters to crack, causing the process to accelerate, if water continues to be present in the sandbed region.6 b. Alternatively, the coating may disbond in certain places, predominantly at the upper edge of the coating, (because of various aging mechanisms inherent to coatings) such that water can get trapped underneath the coating and promote corrosion.

Once disbonding starts it will continue and accelerate because of the ongoing corrosion at the coating/steel interface.

Again, this process, once it is started, will accelerate.

c. Prediction of the rate of deterioration of the epoxy coating is complicated by the fact that there is no agreement over the mechanism of deterioration even among the Exelon experts. In 2007 during the hearing Mr. Cavallo, expert for Exelon, stated categorically that there would be no pinholes in the coating applied in 1992 (Tr. At 448). He further indicated that if there were any pinholes one would see rust spots developing (id), thus linking rust spots with pinholes.

However, when in 2008 (2006) rust spots were observed, the existence of pinholes was categorically excluded (Report at 11).d. Similarly, Mr. Cavallo stated categorically that the presence of dust in the atmosphere during application of the coating would have no relevance (with respect to the integrity of the coating).

However, now that rusting 6) See Report at 11 4 underneath the coating has been observed it is attributed to the presence of chloride particles present prior to the application of the coating.e. And again, in response to Citizens' allegation that "slow diffusion of water and corrosive gases across the epoxy boundary could cause de-lamination, blister formation, and subsequent breaking of the bubble and rapid attack of the metal" Exelon's expert, Mr. Cavallo, flatly dismissed that possibility 7). However, as shownin the Report, the observed coating failure is rationalized on the basis of a diffusion phenomenon (osmosis)(Report at 11). Apparently the coated surface does not have to be immersed in water for this to happen, as Mr. Cavallo postulated earlier (id).f. I submit that it is precisely because of the lack of a clear understanding of the deterioration mechanism that future rates of coating deterioration-cannot be reliably predicted (or derived from past performance).

9. Similarly, the chance of water leaks from sources other than the refueling cavity will grow exponentially with time and the refueling cavity has not been shown to be the only source of water. Because of the danger of exponential growth in the rate of deterioration; the Aging Management Plan ("AMP") for the drywell should include effective detection of the presence of water coupled with frequent effective monitoring of the condition of the coating and the thickness of the shell.7 AmerGen's Prefiled Rebuttal Testimony, August 17, 2007, Part 5, pg. 11 5

10. I posited in my original memorandum that "visual inspection" was not adequate enough to ensure that the integrity of the epoxy coating would be retained.

8) This early judgment has now been proved realistic:

a. Following the 2006 refueling outage Exelon testified that the leakage from the reactor cavity during refueling had now been brought under control (AmerGen's Prefiled Rebuttal Testimony Part 4 at 12). However, these measures proved ineffective in 2008 and ample water was diverted into the gap between the liner and the containment building (see Report).b. Even worse, contrary to assurances that there are no other sources of water (Tr. 414) it now turns out that there is excessive water in the sandbed area of the drywell liner the origin of which cannot be readily determined.

This fact is gleaned primarily from NRC's account of water emanating from the sandbed area 3-4 days after the refueling cavity had been drained.c. It now turns out that contrary to the assurances by Exelon's experts to the effect that the start of corrosion underneath the coating would be easily detected visually by the resulting rust stains and discoloration underneath the coating, neither the two Exelon inspectors, 9) nor the NRC inspector detected the blistering and rust stains 2006, which were later found amplified in 2008, but had already been captured on video in 2006 (Report at 11). Clearly, more effective methods have to be used to assure the integrity of the coating and the absence of continuing corrosion.

8) Memorandum to P. Gunter from R. H. Hausler, November 10 2005, Oyster Creek Drywell Liner Corrosion 9) Tr. At 448; Mr. Erickson: "I concur with Mr. Hawkins. I saw no evidence of any rust seepage or any pinhole evidence of rust going on" 6

d. Since no corrosion will occur without the presence of water, monitoring for water is essential.

Exelon assumes that the only source of water in the sandbed region is from the refueling cavity and occurs during the refueling operations.

However, the most recent Inspection Report demonstrates many shortcomings in Exelon's present plan to monitor for leaks and water in the sandbed area. These shortcomings include puddling on floors without any flow to the drains, potentially plugged drains, and disconnected tubing. It is reasonable to assume that these occurrences could repeat themselves in the future.e. Only small amounts of water are needed to sustain corrosion underneath the coating and cause potentially devastating effects. The criteria by means of which Exelon judges leaks are whether water is observed in bottles connected to the drains by 50 feet of plastic tubing. However small leaks, resulting in puddles of water on the sandbed floor, but no flow to the drains, are sufficient to sustain corrosion either underneath the coating or in the crevices.11. The drywell liner, it is fully recognized, is the major protective barrier in case of major plant upsets, such as a loss of coolant accident.

As such its integrity needs to be assured at all times. Since water intrusion into the space between the drywell wall and the concrete containment building has been and will be in the future the major cause of deterioration and weakening of this primary barrier, I fully agree with the call for more frequent inspections expressed in the recent 7 letter from the State of New Jersey to the NRC.1 0) Dr. Lipoti not only calls for more frequent visual inspection but also clearly states that "based on the NRC inspection Report, it seems that the tubing and polybottle method [of detecting water] is not reliable." I wholeheartedly agree with that conclusion.

Dr. Lipoti conditionally suggests exploring technologies which can remotely, monitor for the presence of water in the sandbed area during normal operational cycles. I believe that such remote monitoring is essential because, as is explained elsewhere, the epoxy seals between the sandbed epoxy floor and the drywell wall are cracked, have developed open gaps, and corrosion has already been observed in this area.12. 1 have also read in detail Dr. Davis' (NRC) affidavit in support of the NRC Staff s"Response in Opposition to Citizens' Motion to reopen the Record and to Postpone Final Disposition of the Licensing Decision"'

1) [The affidavit].

a. Dr. Davis flatly states that moisture cannot penetrate the "moisture seals" thereby causing additional corrosion of the drywell wall in areas not accessible to visual inspection

[Affidavit at par. 4] He completely overlooks the fact that these moisture seals are cracked [Report pg. 9, par.3.7 c]. (VT inspections identified moisture barrier seal problems in 7 of the 10 sandbed bays, including small cracks and partial separation of the sealfrom the steel shell of the concrete floor). And again: (VT inspection for sandbed bay 3 identified a seal crack and surface rust stains below the crack.) Apparently in 2006 no such cracks were observed, which would 10) Letter from Dr. Jill Lipoti, Director, Department of Environmental Protection, State of New Jersey, dated Feb. 9, 2009.11) NRC Staff s Response etc. February 12, 2009 8 indicate that end of life of the sealmay have been approached.

It is, therefore, astounding that Exelon is arguing the problem away by blaming incomplete cure of the epoxy material on the defects after 16 years.Incomplete or "inadequate" cure of an epoxy composite would indicate that the resin and the hardener (curing agent) had been mixed at the wrong ratio. Failures would have been observed sooner than after 16 years and this is a completely separate problem from the observed cracking, which must be occurring in hard cured material.

Without a showing of where the improper proportion of the two components was applied in 1992 or a good test for whether improperly cured material lies beneath a surface crust, the responsible action is to replace the entire seal.b. Since corrosion was associated with the crack in Bay 3 water must have been there at some point. Unfortunately the Report does not indicate the extent of the corrosion, other than characterizing it by saying "some drywell shell surface corrosion

". (Of course the corrosion couldn't have been anywhere else but on the drywell shell surface).

However, because the extent of the corrosion damage is unknown and this area is critical to the integrity of the drywell shell it should be examined.

The SER should in my opinion contain an ongoing requirement to assess the extent of corrosion in these crevice areas where the epoxy floor in the sandbed region meets the steel shell.c. Dr. Davis seems not to appreciate the significance of the observes failures of the coating and seal in the sandbed region. Because, he says, my 9 experience with coatings in the oilfield deals with different environments I am not qualified to judge the case at hand. However, Dr. Davis does not give a technical or quantitative reason why the failures are not indicative of the end of the useful life of the seal and the epoxy coating other than saying the cracks in seal are minor and the blisters are rare events. This 3 logic is not persuasive because end of life failure commences with rare failures that generally become exponentially more frequent.I d. Water is absolutely necessary for corrosion to proceed. The consequences I of the problems observed with the coating and the seal material will therefore be minimal if there is no water present in the sandbed area in the Ifuture. Unfortunately Exelon cannot assure us that the leaks have been I remedied.

All the assurances given at the Hearing to the effect that the leaks have been stopped, and that there would be no more water in the sandbed area (Tr. 112, 494), have come to naught during the 2008 I refueling outage. Documented failures include: delamination of the strippable coating, valves on drains being closed when they needed to be open (Report at 3.3.b), the trough designed to capture leakage being much 3 less effective than expected even after the drainage valve was opened (Report at 3.5.b), tygon tubing being disconnected (Report 3.4.b), and water puddling on the epoxy floor instead of draining to the bottles 3(Report at 3.4.b & 3.5.b.e. In light of these documented deficiencies it is difficult to attribute much confidence to the Exelon's assurances of control over water leaks.I 1 10

13. 1 therefore think it is absolutely imperative that the AMP for the coating and corrosion in the sand bed area be restructured.

For this purpose the SER needs to be rewritten with regards to the sandbed area. In particular:

a. It is essential that all criteria in the AMP be objective in order to prevent subjective judgments and that the AMP takes account of the potential for exponential acceleration of the observed deterioration rate.b. The first step would be to install remote water monitors in strategic locations in each of the 10 sandbed Bays. The AMP should then require complete and effective inspection of the coating within a short time after detecting water.c. Inspection of the coating, the useful life of which has surely been reached, must be accomplished by means which allow objective judgments, not merely by visual observation.

One approach that would have many advantages would be to augment visual inspections with thickness measurements that cover a representative area of the sandbed region.d. Detecting the presence of water is particularly important in view of the fact that the seal in the crevice between the epoxy coated floor and the drywell liner has been routinely shown to become defective.

The cracks in the seal have been shown to give rise to corrosion of the unprotected strip of drywell liner at this very location.e. It is not known how serious the corrosion in this crevice area may be.However, it has been observed.

This area cannot be inspected from the inside of the drywell, nor the outside, because it is below the epoxy floor 11 in the sandbed. The only possible locations for inspection are from the narrow space (7 inches) in the trenches.

These very small locations can hardly be considered representative of the entire circumferential crevice.Other methods must be defined to inspect a broader spectrum of these crevices.

One approach would be to remove the seal and the epoxy floor, take measurements from the exterior, and then replace the floor and the seal.14. In conclusion it is evident that corrosion in the sandbed area continues to be a 3 concern. Contrary to Exelon's assurances one does not know at this point how badly damaged the coating may already be since both the two Exelon Inspectors I as well as the NRC inspector missed the damage in 2006 and it is not obvious that 3 the entire area had been inspected.

Exelon's assurances that the reactor cavity leaks are the only sources of water in the outer. areas of the drywell liner and only I during refueling operations are tenuous at best. The evidence suggests that there I are other water sources as yet not specifically identified.

At minimum, one cannot be reasonably sure that no other water sources exist. Therefore more effective I and categorically objective means must be defined and anchored in the SER with 3 the intent to determine a) the integrity of the coating, b) the integrity of the areas of the drywell liner in the sandbed region below the epoxy floor that were not previously investigated, and c) the presence of water in the sand .bed area during 3 normal operations.

I I I declare under penalty of perjury that the foregoing and the attached memorandum, dated February 18, 2009 is true and correct-Executed this 18th day of February, 2009 at Kaufman, Texas Rudolf 1-u er. PhD 13 EXHIBIT PSER 2 EXHIBIT PSER 2 Oate of Xthr &rorg DEPARTMENT OF ENVIRONMENTAL PROTECTION JON S. CORZINE Division of Environmental Safety and Health MARK N. MAURIELLO Governor P.O. Box 424 Acting Commissioner Trenton, New Jersey 08625-0424 Phone: (609) 633-7964 Fax: (609) 777-1330 February 6, 2009 Exelon Generation Company, LLC Attn: Pamela B. Cowan 200 Exelon Way Kennett Square, PA 19348

Subject:

Oyster Creek Nuclear Generating Station Drywell Inspections Commitment

Dear Ms. Cowan:

The New Jersey Department of Environmental Protection (NJDEP) is in receipt of your letter dated January 23, 2009 in which you describe an "...intent to perform inspections of 50 percent of the drywell sand bed bays during the Oyster Creek Nuclear Generating Station refueling outage scheduled for the fall of 2010." Your letter further states that "...any discrepancies found during that inspection will be evaluated for corrective action, including the need for expanded inspections." The NJDEP understands that your letter is meant as a clarification to the commitment to the U.S. Nuclear Regulatory Commission contained in thelicense renewal application.

in discussions with Exelon, we expressed concern that your intentions were not in writing, so you have documented them in the letter to me. They are not meant as an alteration to your formal commitments to the NRC.It remains in the best interests of the residents of New Jersey that a robust and effective drywell inspection and water intrusion prevention program is implemented and maintained at Oyster Creek. Based upon the shortcomings identified in the recent NRC Inspection Report 05000219/2008007 relating to visual drywell inspections and unplanned water intrusion, it is NJDEP's position that it would be prudent to inspect 100 percent of the drywell bays during the fall 2010 refueling outage for sandbed coating failures.New Jersey is an Equal Opportunity Employer, Printed on Recycled Paper and Recyclable In addition, to assure there is no standing water in the sand bed region during plant operation following a-refueling outage, it would be prudent, for all future refueling outages, to visually inspect all drywell bays for water following drain down and prior to start up. Should the visual inspection pose worker safety issues or significantly increase worker exposure, it would be acceptable to explore technologies that can remotely monitor the presence of water in these areas. However, based on the NRC Inspection Report, it seems that the tubing and polybottle method is not reliable.It must be clear that NRC is the cognizant regulatory agency for the Oyster Creek operating license. While NJDEP appreciates the opportunity to discuss these matters with Exelon, all commitments should be through the NRC so that they are documented and enforced through the inspection process. These inspection enhancements should be included as part of the corrective action needed in response to the unresolved item in the NRC's inspection report so that they can be implemented right now. For the futture, if the NRC renews the operating license, they should be memorialized in the license conditions and associated regulatory conmitments Should you have any questions or need additional information, please contact me directly at (609) 633-7964 or Mr. Patrick Mulligan, Manager of the Bureau of Nuclear Engineering, at (609) 984-7701.Sincerely ours,' I r?4 ill Lipoti, Ph.D.Director c: Nancy T. McNamara, USNRC State Liaison Officer, Region 1 G. Edward Miller, USNRC Senior Project Manager, Oyster Creek Marc S. Ferdas, USNRC Senior Resident Inspector, Oyster Creek Lisa Regner, USNRC License Renewal Project Manager, Oyster Creek Michael P. Gallagher, P.E., Vice President, License Renewal Projects, Exelon Nuclear Timothy S. Rausch, Site Vice President, Oyster Creek Nuclear Generating Station UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )AMERGEN ENERGY COMPANY, LLC ))(License Renewal for the Oyster Creek )Nuclear Generating Station) )Docket No. 50-0219-LR February 19, 2009 CERTIFICATE OF SERVICE I, Richard Webster, of full age, certify as follows: I hereby certify that on February 19, 2009, I caused Citizens' Petition to Require Supplementation of The Safety Evaluation Report for Oyster Creek Nuclear Power Plant and Citizens' Motion for Leave to Reply 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: HEARIN GDOCKET(&)NRC.GOV Office of Commission Appellate Adjudication (Email and U.S. Postal Service)United States Nuclear Regulatory Commission Washington, DC 20555-0001 Attention:

Rulemaking andAdjudications Staff E-mail: OCAAMaiIa).nrc.L,,ov Administrative Judge E. Roy Hawkens, Chair (Email and U.S. Postal Service)Atomic Safety and Licensing Board Panel Mail Stop -T-3F23 United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: erh62)nrc.io' 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: pbannrc.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: ajb5i@nrc.jov 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: DAW1 @),nrc.gov Office of General Counsel (Email and U.S. Postal Service)United States Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OGCMAILCENTERnaNRC.GOV Brian G. Harris (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: brian.harris@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: incb] (I7i'rc. oov Alex S. Polonsky, Esq. (Email and U.S. Postal Service)Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: al ol on sk 01-or2anl ewi S.con1 2 Kathryn M. Sutton, Esq. (Email and U.S. Postal Service)Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: ksuttona -organlewis.com Donald Silverman, Esq. (Email and U.S. Postal Service)Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: dsilvermnaninrinorganlewis.coln J. Bradley Fewell (Email and U.S. Postal Service)Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 E-mail: brad] ey.fewel I noexcel 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: john.corvino a)dol.Ips.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: !alerile.

gray(7hdol.1 ps. state. jij. 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: na t ] (Wbeondn ucI ear. oU 3 Edith Gbur (Email)Jersey Shore Nuclear Watch, Inc.364 Costa Mesa Drive. Toms River, New Jersey 08757 E-mail: gburl(a.comcast.net Paula Gotsch (Email)GRAMMIES 205 6"h Avenue Normandy Beach, New Jersey 08723 E-mail: paulagotschi amlerizon.net Jeff Tittel (Email)New Jersey Sierra Club 139 West Hanover Street Trenton New Jersey .08618 E-mail: Jeff.Tittel (7i),sierraclub.org Peggy Sturmfels (Email)New Jersey Environmental Federation 1002 Ocean Avenue Belmar, New Jersey 07319 E-mail: psturm fels(d),clean water,.or Michele Donato, Esq. (Email)PO Box. 145 Lavalette, NJ 08735 E-mail: mdonato(')micheledonatoes cqj.com/s JýjýSigned: Richard Webster Dated: February 19, 2009 4