ML061570288

2006/06/06-LB Memorandum and Order (Contention of Omission Is Moot, and Motions Concerning Mandatory Disclosure Are Moot) (LBP-06-16)

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

Text

1The six organizations are: Nuclear Information and Resource Service ("NIRS");Jersey Shore Nuclear Watch, Inc.; Grandmothers, Mothers and More for Energy Safety; New Jersey Public Interest Research Group; New Jersey Sierra Club; and New Jersey Environmen-tal Federation.RAS 11721LBP-06-16DOCKETED 06/06/06UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION SERVED 06/06/06ATOMIC SAFETY AND LICENSING BOARDBefore Administrative Judges:E. Roy Hawkens, ChairmanDr. Paul B. AbramsonDr. Anthony J. BarattaIn the Matter ofAMERGEN ENERGY COMPANY, LLC (Oyster Creek Nuclear Generating Station) Docket No. 50-0219-LRASLBP No. 06-844-01-LR June 6, 2006MEMORANDUM AND ORDER(Contention of Omission is Moot, and Motions Concerning Mandatory Disclosure are Moot)I. INTRODUCTIONOn February 27, 2006, this Board granted a Petition to Intervene submitted by sixorganizations 1 - hereinafter referred to collectively as NIRS - opposing an application byAmerGen Energy Company, LLC ("AmerGen") to renew its operating license for the Oyster Creek Nuclear Generating Station ("Oyster Creek") for twenty years beyond the current expira-tion date of April 9, 2009. See LBP-06-07, 63 NRC 188 (2006). This Board admitted one con-tention for litigation; namely, NIRS's challenge to AmerGen's aging management program for measuring corrosion in the sand bed region of Oyster Creek's drywell liner to the extent that theprogram "fails to include periodic [ultrasonic testing ("UT")] measurements in that region throughout the period of extended operation" (LBP-06-07, 63 NRC at 217). 2NIRS opposed AmerGen's requests. See [NIRS] Brief in Opposition to Amer-Gen's Motion to Dismiss and to Suspend Mandatory Disclosures (May 5, 2006) [hereinafter NIRS Opposition to AmerGen Motion to Dismiss]. The NRC Staff supported AmerGen'srequests. See NRC Staff's Response to AmerGen's Motion to Dismiss Drywell Contention asMoot (May 5, 2006) [hereinafter NRC Staff Response to AmerGen Motion to Dismiss].

3AmerGen opposed NIRS's requests. See AmerGen Answer Opposing [NIRS's]Motion to Compel Further Mandatory Disclosures (May 16, 2006) [hereinafter AmerGen Opposition to NIRS Motion to Compel Disclosures]. The NRC Staff declined to take a positionon NIRS's requests. See Letter from Mitzi A. Young, Counsel for NRC Staff, to AdministrativeJudges (May 16, 2006).On April 25, 2006, AmerGen filed a motion seeking to: (1) dismiss NIRS's contention asmoot on the basis of AmerGen's newly docketed formal commitment to conduct periodic UT measurements in the sand bed region of the drywell liner throughout the period of extendedoperation; and (2) suspend further mandatory disclosures pending this Board's resolution of the dismissal request. See AmerGen's Motions to Dismiss Drywell Contention as Moot and toSuspend Mandatory Disclosures (Apr. 25, 2006) [hereinafter AmerGen Motion to Dismiss].

2 Shortly thereafter, on May 5, 2006, NIRS filed a motion asking this Board to: (1) compelAmerGen to disclose all records relating to corrosion in the region above the sand bed region;and (2) grant permission for NIRS to file (if necessary) subsequent timely motions to compel after AmerGen makes its required disclosures. See [NIRS] Motion to Compel Further Manda-tory Disclosures (May 5, 2006) [hereinafter NIRS Motion to Compel Disclosures].

3For the reasons discussed below, we conclude that NIRS's contention is moot and sub-ject to dismissal. We will refrain, however, from issuing an order of dismissal for 20 days from the date of this Memorandum and Order, thus allowing NIRS the opportunity to seek leave to file a new contention in this proceeding. Our conclusion that NIRS's contention (which is thesole contention in this proceeding) is moot terminates the mandatory disclosure process for thatcontention, thus rendering moot the parties' remaining motions pertaining to mandatory disclo-sures. 4NIRS raised a similar contention with respect to the region of the drywell linerabove the sand bed region, known as the upper region. The Board declined to admit that contention, because AmerGen's aging management program included periodic UT measure-ments of the upper region throughout the renewal period. See LBP-06-07, 63 NRC at 216 n.27.II. BACKGROUNDAmerGen's License Renewal Application ("LRA") for Oyster Creek, as originally submit-ted, contained no provision for future UT measurements in the sand bed region of the drywellliner. The LRA omitted such measurements because AmerGen had concluded that corrosion in that region had been arrested, and that periodic visual inspections - which AmerGen planned toperform throughout the twenty-year renewal period - would be adequate to identify the effectsof age-related corrosion (LRA at 3.5-19 to -21; AmerGen Motion to Dismiss at 2). In November 2005, NIRS submitted a Petition to Intervene in which it argued that peri-odic visual inspections would not be adequate to monitor the extent of corrosion in the sand bed region of the drywell liner. NIRS contended, inter alia, that for AmerGen to ensure an adequatesafety margin in the thickness of the drywell liner in the sand bed region, it must conduct peri-odic UT measurements in that region throughout the renewal period (see LBP-06-07, 63 NRCat 211).4 In February 2006, this Board concluded that NIRS proffered an admissible contention. Because the contention, as originally advanced by NIRS, was overbroad, this Board reformu-lated it to clarify the precise scope (supra note 4). NIRS's contention - as admitted by thisBoard - alleges that AmerGen's LRA is deficient because it improperly omits "periodic UT measurements in [the sand bed] region throughout the extended period of operation" (LBP-06-07, 63 NRC at 217). The contention reads as follows (ibid.

):AmerGen's [LRA] fails to establish an adequate aging management plan for thesand bed region of the drywell liner, because its corrosion management program fails to include periodic UT measurements in that region throughout the period of extended operation and, thus, will not enable AmerGen to determine the amount 5A "licensee's written commitments . . . that are docketed and in effect" constitutepart of the "current licensing basis," which is the "set of NRC requirements applicable to aspecific plant" (10 C.F.R. § 54.3(a)). A licensee must "comply with its licensing basis unless the licensing basis is properly changed or the license is formally excused by the NRC from compli-ance" (Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,951 (Dec. 13, 1991)).

6As mentioned supra Part I, the following motions are also pending before thisBoard: (1) AmerGen's motion that we suspend further mandatory disclosures pending resolu-tion of its dismissal motion (AmerGen Motion to Dismiss at 8-10); and (2) NIRS's motion that we compel AmerGen to provide additional disclosures (NIRS Motion to Compel Disclosures at 5),(continued...)of corrosion in that region and thereby maintain the safety margins during theterm of the extended license.Meanwhile, in December 2005 - while NIRS's Petition to Intervene was pending beforethis Board - AmerGen docketed a commitment to perform UT measurements in the sand bed region prior to the period of extended operation under the proposed renewed license (LBP 07, 63 NRC at 216). Additionally, on April 4, 2006 - after this Board had granted NIRS's Peti-tion to Intervene - AmerGen docketed a commitment to perform periodic UT measurements in the sand bed region of the drywell liner throughout the period of extended operation. Specifical-ly, AmerGen committed to perform UT measurements in the sand bed region every ten years following the measurements taken prior to the renewal period. AmerGen committed to incorpo-rate the periodic UT program into its LRA. See Letter from Michael P. Gallagher, AmerGen, toNRC (Apr. 4, 2006).5Pending before us is AmerGen's Motion of April 25, 2006, which argues that its commit-ment "to perform a set of UT examinations in the sand bed region prior to the period of extend-ed operation and then every ten years thereafter during the period of extended operation [ren-ders] moot [NIRS's] contention as admitted by the Board" (AmerGen Motion to Dismiss at 3).

AmerGen therefore requests that we dismiss NIRS's contention (ibid.). The NRC Staff supports AmerGen's request, but NIRS opposes it (NRC Staff Responseto AmerGen Motion to Dismiss at 5; NIRS Opposition to AmerGen Motion to Dismiss at 10).

6 6(...continued)and that we allow NIRS (if necessary) to file future motions to compel (ibid.). III. ANALYSISA.NIRS's Contention, Which Is A Contention Of Omission, Has BeenRendered Moot By AmerGen's Commitment To Perform Periodic UT Measurements During The Renewal Period AmerGen and the NRC Staff characterize NIRS's contention as a contention of omission that attacks AmerGen's aging management program for failing to include periodic UT measure-ments in the sand bed region of the drywell liner throughout the renewal period. This allegeddeficiency has been cured, they assert, by AmerGen's commitment to perform periodic UT measurements in that region throughout the renewal period. Accordingly, AmerGen and theNRC Staff aver that NIRS's contention is moot and should be dismissed. See AmerGen Motionto Dismiss at 3-6; NRC Staff Response to AmerGen Motion to Dismiss at 3-5. In response, NIRS argues that AmerGen's commitment to perform "two or three rounds"of UT measurements in the sand bed region does not moot the contention (NIRS Opposition toAmerGen Motion to Dismiss at 1). To render the contention moot, asserts NIRS, "AmerGen would have to demonstrate that its proposed measurement regime will allow safety margins tobe maintained throughout the entire relicensing period" (id. at 3). NIRS's argument misconceives the nature of the admitted contention. There is a differ-ence between contentions that, on the one hand, allege that a license application suffers froman improper omission, and contentions that, on the other hand, raise a specific substantivechallenge to how particular information or issues have been discussed in a license application.

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

8The thrust of the reformulated contention tracked that of NIRS's overbroadcontention (supra note 4), which asserted that "UT measurements [must] be taken periodicallyfor the life of the reactor . . . to confirm that the actual corrosion measurements are as project-ed" (LBP-06-07, 63 NRC at 211). tion is moot" (Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC373, 383 (2002)).

7 Generally, the plain language of a contention will reveal whether the contention is (1) aclaim of omission, (2) a specific substantive challenge to an application, or (3) a combination ofboth. In some instances, "it may be necessary to examine the language of the bases to deter-mine the contention's scope" (McGuire, CLI-02-28, 56 NRC at 383 n.45) (internal quotationmarks omitted); accord Public Serv. Co. of New Hampshire (Seabrook Station, Units 1 & 2),ALAB-899, 28 NRC 93, 97 (1988); Private Fuel Storage, L.L.C. (Independent Spent Fuel Stor-age Installation), LBP-01-23, 54 NRC 163, 171 (2001). In the instant case, we specifically interpreted NIRS's contention to be a claim of omis-sion, and we reformulated it according to that understanding. The contention's plain languagethus challenges AmerGen's aging management plan for the sand bed region of the drywell liner

"because its corrosion management program fails to include periodic UT measurements in thatregion throughout the period of extended operation" (LBP-06-07, 63 NRC at 217) (emphasisadded).8 9This Board's admissibility analysis shows decisively that the gravamen of NIRS'sclaim is that AmerGen's aging management program improperly fails to include periodic UT measurements in the sand bed region throughout the period of extended operation. See , e.g.,LBP-06-07, 63 NRC at 219 ("the issue of . . . the necessity vel non of periodic UT measure-ments to maintain safety margins during the term of the extended license, is material in this license renewal proceeding"); id. at 220 (NIRS's expert opines that "it is 'absolutely essential'that the integrity of the [sand bed region of the drywell liner] be directly assessed by periodic UTmeasurements"); id. at 221 ("we find that a genuine dispute exists regarding whether Amer-Gen's aging management program for the heavily corroded sand bed region - which does notinclude periodic UT measurements -

will enable AmerGen to determine the extent and continu-ation vel non of corrosion"); ibid. ("NIRS contends that periodic UT measurements in this heavi-ly corroded and epoxy covered region are essential throughout Oyster Creek's extended period of operation").That NIRS's contention is one of omission is confirmed by its underlying basis which, as we stated in our admissibility analysis, was grounded on the premise that - "given the extent ofcorrosion damage in [the sand bed] region and the potential for continuing corrosion, coupledwith the licensee's prior acknowledgment of the need to take UT measurements for the life of the plant to assure public safety - periodic UT measurements must be taken in the sand bed region during the renewal period" (LBP-06-07, 63 NRC at 218 n.29). In other words, accordingto NIRS, AmerGen's failure to include periodic UT measurements in the sand bed region during the renewal period was a fatal flaw of omission.

9 Finally, if further evidence were needed to support the conclusion that NIRS's contentionis one of omission, it may be found in our discussion rejecting NIRS's argument that its conten-tion was not limited to the sand bed region, but extended as well to the upper region of the drywell liner (see supra note 4). We stated (LBP-06-07, 63 NRC at 216 n.27): We limit NIRS's contention to the sand bed region because, contrary to NIRS'sassertion, AmerGen is performing, and will continue to perform during the renew-al period, UT measurements at critical locations in the upper region of the drywell liner. . . . For this reason, NIRS's contention - to the extent it includes the upper region of the drywell liner - lacks an adequate basis . . . . The foregoing statement makes clear that a fundamental distinction between the upper regionof the drywell liner (which was excluded from the contention) and the sand bed region (which 10AmerGen makes the alternative argument that NIRS's contention is moot to theextent that it is construed as requiring - in general, non-quantified terms - an "adequate number of confirmatory UT measurements," because the "docketed commitments fully and satisfactorily address the concept of an 'adequate number' of UT measurements" (AmerGen Motion to Dismiss at 7). But cf. NRC Staff Response to AmerGen Motion to Dismiss at 5 (Staffstates it "has yet to determine the adequacy of [AmerGen's] commitments [to perform UT measurements in the sand bed region] as part of the applicant's corrosion management pro-gram"). Because we resolve the mootness issue in AmerGen's favor on a different ground, weneed not, and do not, address AmerGen's alternative argument. was included in the admitted contention) was the fact that AmerGen's aging managementprogram included periodic UT measurements in the upper region throughout the renewal period, but failed to include them in the sand bed region. That omission - which was the solefoundation for our conclusion that NIRS had proffered an admissible contention - has now been cured. Specifically, in response to this Board's admission of NIRS's contention of omission -i.e., NIRS's complaint that AmerGen's LRA failed to include periodic UT measurements of thesand bed region throughout the renewal period - AmerGen has committed to perform periodic UT measurements in the sand bed region during the renewal period pursuant to a ten year cycle (AmerGen Motion to Dismiss at 2-3). Because AmerGen has supplied a plan to providethe periodic UT measurements that NIRS's contention claimed were improperly omitted fromAmerGen's LRA, NIRS's claim of omission is moot.

10 Where, as here, a contention of omission that is the sole contention in the proceedinghas been rendered moot and no other motions remain pending, an order dismissing the conten-tion ordinarily would terminate the proceeding. This Board declines to take that step at this juncture. The Commission has instructed (McGuire, CLI-02-28, 56 NRC at 383) that when acontention of omission has been rendered moot, the intervenor - if it wishes to raise specific 11The Commission in McGuire explained that unless it "require[d] an amended ornew contention in 'omission' situations, an original contention alleging simply a failure to address a subject could readily be transformed - without basis or support - into a broad series of disparate new claims. This approach effectively would circumvent NRC contention-pleadingstandards and defeat the contention rule's purposes" (CLI-02-28, 56 NRC at 383).12The above procedure, which deems a new contention filed within 20 days to betimely for purposes of 10 C.F.R. § 2.309(f)(2)(iii), means that - if NIRS satisfies the remainingfactors in section 2.309(f)(2) - the parties need not address the requirements under 10 C.F.R. § 2.309(c), which apply to "nontimely filings." See Entergy Nuclear Vermont Yankee L.L.C. (Ver-mont Yankee Nuclear Power Station), LBP-06-14, 63 NRC __, __-__ & n.14 (slip op. at 3-7 &

n.14) (May 25, 2006). challenges regarding the new information - may timely file a new contention that addresses theadmissibility factors in 10 C.F.R. § 2.309(f)(1).

11 Accordingly, to give NIRS the opportunity to file a new contention in this proceedingraising a specific substantive challenge to AmerGen's new periodic UT program for the sand bed region, we will forbear from issuing an order of dismissal for 20 days from the date of thisMemorandum and Order. See Entergy Nuclear Vermont Yankee L.L.C. (Vermont YankeeNuclear Power Station), LBP-05-24, 62 NRC 429, 433 (2005); cf. 10 C.F.R. § 2.319 (presidingofficer has "all the powers necessary" to promote efficiency and ensure a fair hearing process).

If NIRS seeks leave to file a new contention within 20 days of the date of this Memorandum andOrder (i.e., by June 26, 2006), we will deem the filing to be timely for purposes of 10 C.F.R. §2.309(f)(2)(iii). Any such filing - the substance of which must be limited to the sand bed region,and which must be limited to AmerGen's new UT program for that region as reflected in its docketed commitment of April 4, 2006 - shall address the remaining factors in 10 C.F.R. § 2.309(f)(2), as well as the admissibility factors in 10 C.F.R. § 2.309(f)(1). See Vermont Yankee

,LBP-05-24, 62 NRC at 433.12 If NIRS elects to file a new contention, AmerGen and the NRC Staff may file an answerconsistent with 10 C.F.R. § 2.309(h)(1). NIRS may file a reply to any answer consistent with 10 C.F.R. § 2.309(h)(2).B.The Motions Concerning The Mandatory Disclosure Process For The Moot Contention Are Moot Because the sole contention in this proceeding is moot, the mandatory disclosure pro-cess for that contention (10 C.F.R. §§ 2.336 and 2.1203) is terminated. The following requestspertaining to mandatory disclosures are thus moot: (1) AmerGen's motion to suspend manda-tory disclosures (AmerGen Motion to Dismiss at 8-10); (2) NIRS's motion to compel further mandatory disclosures (NIRS Motion to Compel Disclosures at 6); and (3) NIRS's motion seek-ing permission to file (if necessary) subsequent timely motions to compel (ibid.). 13Copies of this Memorandum and Order were sent this date by Internet e-mail tocounsel for: (1) AmerGen; (2) New Jersey; (3) NIRS; and (4) the NRC Staff.IV. CONCLUSIONFor the foregoing reasons, we conclude that NIRS's contention is moot. However, wewill refrain from issuing an order of dismissal for 20 days from the date of this Memor andumand Order, thus allowing NIRS the opportunity to seek leave to file a new contention in thisproceeding if it wishes to raise a specific substantive challenge regarding AmerGen's periodic UT program for the sand bed region. Our conclusion that NIRS's contention is moot terminatesthe mandatory disclosure process for that contention, and the motions pending before uspertaining to mandatory disclosures are thus moot. It is so ORDERED.THE ATOMIC SAFETY AND LICENSING BOARD 13/RA/

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_____________E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE/RA/ Dr. Paul B. Abramson ADMINISTRATIVE JUDGE/RA by G.P. Bollwerk for:/

Dr. Anthony J. Baratta ADMINISTRATIVE JUDGERockville, MarylandJune 6, 2006 UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONIn the Matter of )

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

)

)(Oyster Creek Nuclear Generating Station) )CERTIFICATE OF SERVICEI hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (CONTENTIONOF OMISSION IS MOOT, AND MOTIONS CONCERNING MANDATORY DISCLOSURE ARE MOOT) (LBP-06-16) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeE. Roy Hawkens, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgePaul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeAnthony J. Baratta Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Steven C. Hamrick, Esq.Mitzi A. Young, Esq.

Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Richard Webster, Esq.Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 2Docket No. 50-219-LRLB MEMORANDUM AND ORDER (CONTENTION OF OMISSION IS MOOT, AND MOTIONS CONCERNING MANDATORY DISCLOSURE ARE MOOT) (LBP-06-16) Paul Gunter, DirectorReactor Watchdog Project Nuclear Information and Resource Service

1424 16 th Street, NW, Suite 404Washington, DC 20036Donald J. Silverman, Esq.Kathryn M. Sutton, Esq.

Alex S. Polonsky, Esq.

Morgan, Lewis, & Bockius LLP

1111 Pennsyvlania Ave., NWWashington, DC 20004Bradley M. Campbell, CommissionerNew Jersey Department of Environmental Protection

P.O. Box 402 Trenton, NJ 08625-0402Jill Lipoti, DirectorNew Jersey Department of Environmental Protection Division of Environmental Safety and Health

P.O. Box 424 Trenton, NJ 08625-0424Ron ZakNew Jersey Department of Environmental Protection Nuclear Engineering

P.O. Box 415 Trenton, NJ 08625-0415J. Bradley Fewell, Esq.Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348Suzanne LetaNJPIRG 11 N. Willow St.

Trenton, NJ 08608John A. Covino, Esq. Ellen Barney Balint, Esq.

Valerie Anne Gray, Esq.

Caroline Stahl, Esq.

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

Counseling Section Division of Law Hughes Justice Complex

P.O. Box 093 Trenton, NJ 08625[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the CommissionDated at Rockville, Marylandthis 6 th day of June 2006