ML063050430

2006/10/31-Oyster Creek - NRC Staff Response to Citizens' Motion for Reconsideration

ML063050430
Person / Time
Site:	Oyster Creek
Issue date:	10/31/2006
From:	Hamrick S NRC/OGC
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-219-LR, ASLBP 06-844-01-LR, LBP-06-07, RAS 12455
Download: ML063050430 (12)

Text

October 31, 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. 50-0219-LR (Oyster Creek Nuclear Generating Station) )

)

NRC STAFF RESPONSE TO CITIZENS MOTION FOR RECONSIDERATION INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the Nuclear Regulatory Commission (Staff") hereby answers Citizens Motion for Leave to File for Reconsideration and Motion for Reconsideration of Order Partially Granting Petition to File a New Contention, dated October 20, 2006 (Motion).1 For the reasons set forth below, the Staff respectfully submits that the Motion fails to demonstrate circumstances that compel the Board to reconsider its ruling.

BACKGROUND On November 14, 2005, six organizations (collectively Citizens) filed a request for hearing and petition to intervene in this case, alleging that the license renewal application (LRA) filed by AmerGen Energy Co. LLC, (AmerGen) for the Oyster Creek Nuclear Generating Station was deficient for, inter alia, its failure to include periodic ultrasonic testing (UT) measurements in the sand bed region of the drywell liner. Request for Hearing and Petition for Leave to Intervene, dated November 14, 2005. On February 27, 2006, the Atomic Safety and Licensing Board (Board) granted the hearing request. LBP-06-07, 63 NRC 188 (February 27, 2006). On December 9, 2005, AmerGen docketed a commitment to perform a 1

The Staff received the Motion via e-mail on Friday, October 20, 2006 at 5:04 pm. Pursuant to 10 C.F.R. § 2.306, the Staffs response date is extended by one business day.

set of one-time UT measurements in the sand bed region prior to the period of extended operation. Letter from C.N. (Bud) Swenson, AmerGen, to NRC, (Dec. 9, 2005) (December 9 Commitment). On April 4, 2006, AmerGen docketed a second commitment to perform periodic UT measurements in the sand bed region of the drywell liner throughout the period of extended operation. Letter from Michael P. Gallagher, AmerGen, to NRC (Apr. 4, 2006) (April 4 Commitment).

Subsequently, AmerGen filed a motion to dismiss Citizens sole contention, arguing that its commitment to perform a set of UT examinations in the sand bed region prior to the period of extended operation and every ten years thereafter during the period of extended operation rendered the contention moot. See AmerGens Motion to Dismiss Drywell Contention as Moot and to Suspend Mandatory Disclosures at 3 (Apr. 25, 2006). The Board dismissed Citizens contention, but allowed them 20 days to raise a challenge to AmerGens new periodic UT program for the sand bed region. LBP-06-16, 63 NRC 737, 744-45 (2006).

On June 20, 2006, AmerGen filed a third commitment to perform an additional set of UT measurements two refueling outages after the initial UT measurements, with subsequent inspection frequency to be established as appropriate, not to exceed 10-year intervals. Letter from Michael P. Gallagher, AmerGen, to NRC, Encl. 2, at 2 (June 20, 2006) (June 20 Commitment). AmerGen also committed to monitor the sand bed region drains daily during refueling outages and quarterly during the plant operating cycle throughout the period of extended operation. Id. Three days later, Citizens filed a Petition to Add a New Contention (June 23 Petition), which was supplemented on July 25, 2006 to include discussion of the June 20 Commitment (July 25 Supplement).

On October 10, 2006, the Board issued LBP-06-22, in which it divided Citizens contention into seven discrete challenges:

1. AmerGens acceptance criteria are inadequate to ensure adequate safety margins.

2. AmerGens scheduled UT monitoring frequency in the sand bed region is insufficient to maintain an adequate safety margin.

3. AmerGens monitoring in the sand bed region for moisture and coating integrity is inadequate.

4. AmerGens response to wet conditions and coating failure in the sand bed region is inadequate.

5. AmerGens scope of UT monitoring is insufficient to systematically identify and sufficiently test all the degraded areas in the sand bed region.

6. AmerGens quality assurance for the measurements in the sand bed region is inadequate.

7. AmerGens methods for analyzing UT results in the sand bed region are flawed.

64 NRC __, slip op. at 9. The Board admitted Challenge 2 and denied admission of the other six challenges. Id. at 10. On October 20, 2006, Citizens sought reconsideration of the Boards ruling with respect to Challenges 1, 5, 6 and 7. See Motion at 4-10. For the reasons set forth below, Citizens fail to demonstrate that the Board should reconsider its ruling.

DISCUSSION A. Legal Standards Governing Motions for Reconsideration A motion for reconsideration may not be filed except with leave of the Licensing Board, upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not reasonably have been anticipated, that renders the decision invalid.2 10 C.F.R. § 2.323(e); see also Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 n.12 (2004).

2 When discussing findings of fact, the Commission has described clear error as a finding that is not even plausible in light of the record viewed in its entirety. Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-19, 62 NRC 403, 411 (2005).

In promulgating changes to Part 2, the Commission explained that the new compelling circumstances standard was intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier. See Final Rule: "Changes to Adjudicatory Process," 69 Fed. Reg. 2,182, 2,207 (Jan. 14, 2004). The new, higher standard was meant to replace that which had evolved under previous case law, whereby reconsideration motions could simply address existing evidence that may have been misunderstood or overlooked, or seek to clarify a ruling on a matter. Id.

Reconsideration should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier. Id.

A successful reconsideration motion cannot simply republish prior arguments, but must give the [adjudicator] a good reason to change its mind. Louisiana Energy Services, 60 NRC at 622 n.13 (citing Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004)). Further, as the Commission reaffirmed in its statement of consideration for the Part 2 amendments, a motion for reconsideration may not rely on an entirely new thesis or include new arguments, unless they relate to a Board concern that could not reasonably have been anticipated. 69 Fed.

Reg. 2,207; see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-22, 60 NRC 379, 380-81 (2004); affirmed, CLI-04-36, 60 NRC 631, 641 (2004). As explained below, Citizens Motion fails to demonstrate compelling circumstances requiring the Board to revisit its ruling, and should be denied.

B. Citizens Motion for Reconsideration Should Be Denied

1. Citizens Motion Fails to Apply the Proper Standard for Reconsideration Citizens Motion fails to apply the correct regulatory standard for reconsideration.

See 10 C.F.R. § 2.323(e). The Motion states that it is primarily based on: i) the ASLBs misinterpretation of the law on timeliness and availability of new information, and ii) the ASLBs failure to note that Citizens could not have known how AmerGen was going to conduct tests

that it had not even proposed at the time Citizens filed their initial petition. Motion at 8-9.

However, as discussed above, the Commission has stated clearly that the new compelling circumstances standard in section 2.323(e) was meant to allow for such a motion only where manifest injustice would occur in the absence of reconsideration and the claim could not have been raised earlier. 69 Fed. Reg. 2,207. Citizens never assert that they will be subject to manifest injustice absent reconsideration, nor do they ever assert that their arguments could not have been raised earlier, even though that requirement is plainly stated in 10 C.F.R.

§ 2.323(e).3 See generally Motion. The requirement is crucial because, as the Commission stated, reconsideration should be an extraordinary action and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier. 69 Fed. Reg. 2,207. By declining to even discuss whether their arguments were or should have been discussed earlier, Citizens Motion fails to meet the Commissions standard for reconsideration.

2. Reconsideration of the Boards Ruling on Challenge 1 is Not Warranted With respect to Citizens first challenge, the Board held that the proper time to challenge AmerGens acceptance criteria was at the time Citizens filed their initial Petition to Intervene.

LBP-06-22, slip op. at 14. Citizens argue that they could not have been expected to make such a challenge before AmerGen made a commitment to perform UT measurements. Motion at 4-5. Instead of pleading manifest injustice or explaining why the Boards decision could not reasonably have been anticipated, Citizens Motion seeks reconsideration based upon an argument the Board previously considered. See June 23 Petition at 16 (The April 4, 2006 3

Citizens argument more closely follows the case law that the Commission explicitly superceded. See 69 Fed. Reg. 2,207. Under the prior standard, in seeking reconsideration, the movant could simply identify errors or deficiencies in the presiding officers determination indicating the questioned ruling overlooked or misapprehended (1) some legal principle or decision that should have controlling effect; or (2) some critical factual information. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-38, 54 NRC 490, 493 (2001).

commitment is materially different information because something (a UT testing plan) cannot be materially the same as nothing (no UT testing plan at all).4 The Commission has clearly stated that motions for reconsideration are not an opportunity to reargue facts and rationales that were (or should have been) argued earlier. 69 Fed. Reg. 2,207; see also Louisiana Energy Services, 60 NRC at 622 n.13. By relying on the same arguments set forth in their Petition, Citizens fail to demonstrate circumstances compelling the Board to reconsider its decision.

Even assuming, arguendo, that Citizens argument is correct, they fail to adequately explain why this challenge was not raised in response to AmerGens December 9 Commitment to perform UT and compare the results to results from previous testing in the 1990s. Citizens assert that the December 9 Commitment failed to state which acceptance criteria would be applied. Motion at 5. However, the use of acceptance criteria was implied in this commitment to perform testing and, as the Board notes, AmerGens LRA states that the aging management program for the drywell shell will demonstrate the minimum required shell thickness is in accordance with the ASME Code. See LBP-06-22, slip op. at 13 (citing LRA at 3.5-18). At the latest, this challenge should have been raised in response to the December 9 Commitment.

The Board also acknowledged that Citizens directly challenged AmerGens acceptance criteria in their February 2006 motion to add new contentions. LBP-06-22, slip op. at 13 (citing

[Citizens] Motion for Leave to Add Contentions or Supplement the Basis of the Current Contention at 12 (Feb 7, 2006) (new acceptance criteria must be developed)). Citizens fail to adequately explain why they should not have been expected to raise this challenge in response to the December 9 Commitment, and thus fails to show that the decision is invalid.

4 Citizens makes a similar argument with respect to Challenges 5 and 7, that it could not raise its challenge until AmerGen had a UT testing plan for the sand bed region. See Motion at 6-7, 10. This argument fails with respect to those challenges for the same reason it fails here.

3. Reconsideration of the Boards Ruling on Challenge 5 is Not Warranted The Board found that Challenge 5, on the spatial scope of the monitoring, was not timely, holding that the proper time to make this claim was following the December 9 Commitment.5 LBP-06-22, slip op. at 29-30. Citizens argue that this commitment relates to the facilitys current operation and, thus it could not be challenged because the [d]ecision makes clear that the scope of this proceeding does not extend to matters that relate to the current licensing basis (CLB). Motion at 6. This is an incorrect representation of the Boards ruling. See LBP-06-22, slip op. at 32-33. As the Commission has stated, the license renewal review encompasses written commitments that are a part of the CLB and concern the capability of systems, structures, and components identified in 10 C.F.R. § 54.21(a). Final Rule Nuclear Power Plant License Renewal, 60 Fed. Reg. 22,461, 22,473 (May 8, 1995).

As Citizens acknowledge, AmerGens December 9 Commitment, while relevant to current operation, is related to license renewal. See Motion at 6 ([I]t is not at all clear that these [commitments] relate solely to the license renewal decision) (emphasis added).

However, this commitment was intended to provide support for the Staffs license renewal decision. See 60 Fed. Reg. 22,473. Its relation to license renewal was clearly indicated by the subject line and text of the cover letter. See December 9 Commitment at 1. The spatial scope of this monitoring was described in the December 9 Commitment and a challenge thereto could have been raised in response. Further, as discussed above with respect to Challenge 1, Citizens argument regarding timeliness was previously propounded in their June 23 Petition and may not simply be republished in a motion for reconsideration. See 69 Fed. Reg. 2,207.

5 Initially, the Staff did not oppose admission of this challenge (see NRC Staff Answer to Petition to Add a New Contention and Petition Supplement, dated August 21, 2006 at 11), but Citizens have not shown that the Boards decision was clearly erroneous.

4. Reconsideration of the Boards Ruling on Challenge 6 is Not Warranted Citizens Challenge 6 asserts that AmerGens quality assurance plans for the UT measurements in the sand bed region are inadequate. Citizens Petition at 11. The Board denied admission of this challenge for three distinct reasons. LBP-06-22, slip op. at 30. First, like the other three challenges for which Citizens seeks reconsideration, the Board found the challenge untimely. Id. However, the Board also found that the challenge is beyond the scope of this proceeding and fails to demonstrate the existence of a genuine dispute with AmerGen on an issue of material fact. Id. (citing 10 C.F.R. § 2.309(f)(1)(iii) and (iv)).

The Board first found the challenge untimely, noting that petitioners have an affirmative obligation to obtain documentation in support of a proffered contention to the extent such documentation is part of the LRA or contained in the LRA as an attachment or a supporting document. LBP-06-22, slip op. at 31 (citing AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC at __ n.71 (slip op. at 13 n.71)). Citizens argue that the Boards order accuses them of failing to make a timely request for the information, when in fact they made such a request and were improperly denied by AmerGen. Motion at 8. In their August 18 Reply to AmerGen, Citizens argued that AmerGen consistently refused to provide the 1996 data to Citizens. Citizens Reply to AmerGen at 16. The Board acknowledged this argument, but held that the claim that AmerGen improperly withheld the 1996 results is simply too late and should have been raised in Citizens Petition. LBP-06-22, slip op. at 32 n.27. The Motion fails to address this aspect of the Boards decision, and so cannot demonstrate that it is erroneous.6 6

Citizens claim that their Exhibit RC 1 shows they made a request for the 1996 test results on September 6, 2005 and AmerGen denied the request on October 10, 2005 because the data were proprietary. Motion at 8. In addition to being improper in a motion for reconsideration, this exhibit does not contain the initial requesting e-mail and so it is unclear which documents were requested.

The Motion fails to accurately represent the Boards second rationale for denying admission of this challenge, stating that the Board asserts that Citizens are attempting to attack the CLB with this challenge. See Motion at 8. Citizens respond by claiming that their challenge addresses the quality assurance program for testing during the period of extended operation, does not attack the CLB, and thus, is admissible. Id. at 8-9. Contrary to Citizens representation, the Board, relying on the Commissions statement of consideration for the license renewal rule, held that those aspects of the CLB not subject to physical aging processes, such as quality assurance plans, are outside the scope of license renewal proceedings. LBP-06-22, slip op. at 33 (citing 60 Fed. Reg. 22,475). Regardless of whether the testing involved is before or during the period of extended operation, the Commission has made clear that quality assurance plans are not within the scope of license renewal.

The third reason the Board denied admission of this challenge is that Citizens failed to demonstrate a genuine dispute of a material fact. LBP-06-22, slip op. at 33. Citizens respond by arguing that both AmerGen and the NRC Staff have now acknowledged that while they initially accepted the 1996 results as valid, they are actually erroneous. Motion at 9. Citizens provide no citation to support this assertion or the claim that AmerGen even offered improvements to the quality assurance program in the New Information.7 Id. Thus, Citizens arguments fail to show that the June 23 Petition demonstrated the existence of a genuine dispute. Citizens fail to demonstrate any of the Boards three rationales are erroneous.

7 In its June 23 Petition, Citizens argued that the Staff had questioned the 1996 results, but said nothing about AmerGen acknowledging their invalidity. June 23 Petition at 11. The Motions reference to the Staff is merely a republication of its prior argument, and is inappropriate in a motion for reconsideration. See Louisiana Energy Services, CLI-04-35, 60 NRC at 622, n.13. On the other hand, the reference to AmerGen, in addition to having no citation or explanation, is an improper new argument, which should have been, but was not, raised before. See 69 Fed. Reg. at 2,207. Further, no citation is provided for the New Information to which Citizens refers.

5. Reconsideration of the Boards Ruling on Challenge 7 is Not Warranted With respect to Challenge 7, regarding statistical analysis, the Motion makes the same argument it raised for Challenges 1 and 5 and in its June 23 Petition, that until AmerGen proposed measurements during the license renewal period and specified how it would analyze the results of those measurements, Citizens could not have formed a contention about the statistical treatment of those results. Motion at 10. However, as the Board noted, AmerGens statistical techniques for analyzing UT results, referenced in its LRA, have been a matter of public record since 1990. See LBP-06-22, slip op. at 34-35 (citing LRA at 3.5-18). Citizens claim to have shown that AmerGen merely assumed the corrosion rates in the sand bed would be zero thereafter, but did not obtain sufficient valid data to justify this. Motion at 9. This argument is irrelevant to the Boards timeliness decision. Citizens concern about the assumed corrosion rate does not obviate the requirement to raise the challenge in a timely manner.

Further, the Motion ignores the Boards other reason for denying admission of Challenge 6, that Citizens fail to reference, much less discuss, the specific portions of the application that they dispute, nor do they adequately identify a material issue of . . .[disputed]

fact. LBP-06-22, slip op. at 36, n.29 (citing 10 C.F.R. § 2.309(f)(1)(vi)). Citizens cannot demonstrate that the Boards decision was erroneous while ignoring one of its two rationales.

CONCLUSION For the foregoing reasons, the Board should deny Citizens motion for reconsideration.

Respectfully submitted,

/RA/

Steven C. Hamrick Counsel for NRC Staff Dated at Rockville, Maryland this 31st day of October 2006

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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AMERGEN ENERGY COMPANY, LLC ) Docket No. 50-219-LR

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(Oyster Creek Nuclear Generating Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS RESPONSE TO CITIZENS MOTION FOR RECONSIDERATION in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 31st day of October, 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