ML061250199
| ML061250199 | |
| Person / Time | |
|---|---|
| Site: | Oyster Creek |
| Issue date: | 05/05/2006 |
| From: | Hamrick S C NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| Hamrick J S, OGC, 301-415-4106 | |
| References | |
| 50-219-LR, ASLBP 06-844-01-LR, RAS 11618 | |
| Download: ML061250199 (7) | |
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1 As stated in footnote two to AmerGen's Motion, the Staff concurs with AmerGen's request tosuspend mandatory disclosures pending resolution of the Motion to Dismiss.
2 The six organizations are Nuclear Information and Resource Service, Jersey Shore NuclearWatch, Inc., Grandmothers, Mothers, and More for Energy Safety, New Jersey Public Interest ResearchGroup, New Jersey Sierra Club, and New Jersey Environmental Federation. May 5, 2006UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBEFORE THE ATOMIC SAFETY AND LICENSING BOARDIn the Matter of)
)AMERGEN ENERGY COMPANY, LLC)Docket No. 50-219-LR
)(Oyster Creek Nuclear Generating Station))NRC STAFF'S RESPONSE TO AMERGEN'S MOTIONTO DISMISS DRYWELL CONTENTION AS MOOTINTRODUCTIONPursuant to 10 C.F.R. § 2.323(c), the Staff of the Nuclear Regulatory Commission("Staff") hereby answers the "Motion to Dismiss Drywell Contention as Moot and to Suspend Mandatory Disclosures" ("Motion") filed by AmerGen Energy Company, LLC ("AmerGen") on April 25, 2006. For the reasons discussed below, the Staff agrees that the contention is mootand supports the Motion to Dismiss.
1BACKGROUNDA.The ContentionOn November 14, 2005, six organizations 2 (collectively "NIRS") filed a request forhearing and petition to intervene in this case. NIRS proposed a contention that AmerGen's license renewal application ("LRA") for the Oyster Creek Nuclear Generating Station("OCNGS") was deficient for, inter alia, its failure to include periodic UT measurements in the 3 Both AmerGen and the Staff appealed the Board's decision to admit NIRS's contention. See"AmerGen Notice of Appeal of LBP-06-07 Granting Admission of Petitioners' Contention on DrywellCorrosion," dated March 14, 2006; and "NRC Staff Notice of Appeal of LBP-06-07," dated March 14,2006. At this time, the appeals remain before the Commission.
4 Letter from C.N. (Bud) Swenson to NRC Document Control Desk, dated December 9, 2005(ADAMS Accession No. ML0534902190).
5 Letter from Michael P. Gallagher to NRC Document Control Desk, dated April 4, 2006(ADAMS Accession No. ML060970288).sand bed region of the drywell liner. "Request for Hearing and Petition for Leave to Intervene,"dated November 14, 2005 ("Petition"). On February 27, 2006, the Atomic Safety and Licensing Board ("Board") granted NIRS'srequest for hearing and petition to intervene. Memorandum and Order (Denying New Jersey's Request for Hearing and Petition to Intervene, and Granting NIRS's Request for Hearing and Petition to Intervene), LBP-06-07, 63 NRC 188 (February 27, 2006). The Board narrowedNIRS's contention to read as follows:AmerGen's License Renewal Application fails to establish an adequateaging management plan for the sand bed region of the drywell liner, because its corrosion management program fails to include periodic UT measurements in that region throughout the period of extended operationand, thus, will not enable AmerGen to determine the amount of corrosionin that region and thereby maintain the safety margins during the term of the extended license.
Id. at 217.3 B. AmerGen's Periodic UT Examination CommitmentsAmerGen has formally docketed two commitments pertinent to NIRS's admittedcontention. Motion at 2. First, on December 9, 2005, AmerGen docketed a commitment toperform a one-time UT examination on the sand bed region prior to the renewal period.
4 Second, on April 4, 2006, AmerGen docketed a commitment to perform additional UT examinations once every ten years during the renewal period.
5 On April 25, 2006, AmerGenfiled the instant Motion, arguing that these two commitments render NIRS's contention moot. DISCUSSIONThe Commission distinguishes contentions that merely allege an omission of informationfrom those that make specific substantive challenges to how particular information is discussed in an application. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba NuclearStation, Units 1 & 2), CLI-02-28, 56 NRC 373, 382-83 (2002). Where contentions allege the"omission of particular information or an issue from an application, and the information is later supplied by the applicant . . . the contention is moot."
Id. at 383; see also Entergy NuclearVermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear PowerStation), LBP-05-24, 62 NRC 429 (2005); Duke Cogema Stone & Webster (Savannah RiverMixed Oxide Fuel Fabrication Facility), LBP-04-9, 59 NRC 286 (2004); Duke Energy Corp.(Catawba Nuclear Station, Units 1 & 2), LBP-04-7, 59 NRC 259 (2004).In cases where the Board must determine whether a contention falls under the omissioncategory, the analysis category, or some combination of the two, it will look first to the l anguageof the contention. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),LBP-02-2, 55 NRC 20, 29 (2002) (citing Private Fuel Storage, L.L.C. (Independent Spent FuelStorage Installation), LBP-01-23, 54 NRC 163, 171 (2001)). If that is unavailing, it will turn to"the language of the bases provided to support the contention . . . to discern the sponsor's intent relative to the contention's scope." Private Fuel Storage, 54 NRC at 171. In this case, both the language of the contention, as well as its bases, indicate that it isstrictly a contention of omission, rather than one of analysis.
See 63 NRC at 217-18. NIRS'scontention challenges AmerGen's License Renewal Application "because its corrosion management program fails to include periodic UT measurements."
Id. at 217. Similarly, thelanguage of the bases identified by the Board to support the contention focuses solely on thisomission (e.g. "accordingly, periodic UT inspections must be employed in the sand bed region 6 The Board in Vermont Yankee did not address the quality of the applicant's seismic andstructural analysis, because the contention was one of omission. The alleged deficiency was curedsimply by the applicant's providing the analysis. The Board directed parties with any specific complaintsregarding the analysis to seek leave to file a new contention. 62 NRC at 433. Similarly, as NIRS'scontention is one of omission, the adequacy of AmerGen's UT examination commitments is not relevantat this juncture. The Staff will address this topic in its review of the application. during the license renewal period to confirm the actual remaining wall thicknesses of this vitalsafety structure"). Id. at 218.In the Vermont Yankee extended power uprate ("EPU") proceeding, a contentionchallenged the EPU application for its failure to "assure seismic and structural integrity of the cooling towers under uprate conditions" because "the minimum appropriate structural analyses ha[d] apparently not been done." 62 NRC at 430. The Board designated this a contention ofomission.
Id. at 431. The licensee subsequently performed a structural and seismic analysis ofthe cooling towers, which took into account changes to the cooling towers associated with the EPU and filed a motion to dismiss the contention.
Id. at 430. The Board dismissed thecontention, stating: "[g]iven that the contention was based on the 'need for Entergy to perform aseismic and structural analysis,' now that Entergy has performed this analysis, the contention is moot."6 Id. at 432.The Board in Vermont Yankee acknowledged that some of the language in thecontention seemed to indicate that it was not solely a contention of omission:For example, the first sentence of the contention alleges, in pertinent part, that:"Entergy cannot assure seismic and structural integrity of the cooling towers under uprate conditions" . . . But this phrase, read alone, is a broad and very unfocused complaint . . . Nevertheless, in context, it is clear that NEC Contention 4 focused on the omission, not the quality, of any seismic and structural analysis of the cooling system under EPU conditions. This was inevitable, bec ause at thetime there was no such analysis, and therefore no way that NEC could review or challenge its adequacy.
Id. Here, NIRS's contention asserts that AmerGen's application "fails to establish anadequate aging management plan." While this language, taken alone, may seem to raise a qualitative challenge to the aging management plan, in context, it is clear that the contentionmerely challenges the plan insofar as AmerGen failed to include periodic UT measurements in the sand bed region of the drywell liner. This failure has been remedied. Deprived of the specific challenge to the corrosion management program's lack of periodic testing, the contention's assertion regarding the inadequacy of AmerGen's aging management plan is rendered "a broad and very unfocused complaint." AmerGen's commitments to provide periodic UT measurements cure any specific deficiencies alleged by the contention. Althoughthe Staff has yet to determine the adequacy of these commitments as part of the applicant'scorrosion management program, the omission has been remedied. NIRS's contention, therefore, should be dismissed.CONCLUSIONFor the foregoing reasons, the Board should grant AmerGen's motion to dismiss.Respectfully submitted,/RA/Steven C. HamrickCounsel for NRC StaffDated at Rockville, Marylandthis 5 th day of May, 2006 UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBEFORE THE ATOMIC SAFETY AND LICENSING BOARDIn 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 "NRC STAFF'S RESPONSE TO AMERGEN'S MOTION TODISMISS DRYWELL CONTENTION AS MOOT" in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRC's internal mailsystem as indicated by an asterisk, or by electronic mail, with copies by U.S. mail, first class, asindicated by double asterisk, this 5th day of May, 2006.E. Roy Hawkens, Chair*Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 ERH@nrc.govAnthony J. Baratta*Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 AJB5@nrc.govPaul B. Abramson*Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 PBA@nrc.govOffice of the Secretary*ATTN: Docketing and Service Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 HEARINGDOCKET@nrc.govOffice of Commission Appellate Adjudication*
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAMail@nrc.govDebra Wolf*Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 DAW1@nrc.govLisa P. Jackson, Acting Commissioner**New Jersey Department of Environmental Protection
P.O. Box 402 Trenton, NJ 08625-0402 Lisa.Jackson@dep.state.nj.us Jill Lipoti, Director**New Jersey Department of Environmental Protection Division of Environmental Safety and Health
P.O. Box 424 Trenton, NJ 08625-0424 Jill.Lipoti@dep.state.nj.usKathryn M. Sutton, Esq.**Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 ksutton@morganlewis.comRon Zak**New Jersey Department of Environmental Protection Nuclear Engineering
P.O. Box 415 Trenton, NJ 08625-0415 Ron.Zak@dep.state.nj.usSuzanne Leta**New Jersey Public Interest Research Group 11 N. Willow St.
Trenton, NJ 08608 sleta@njpirg.orgDonald Silverman, Esq.**Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 dsilverman@morganlewis.comAlex S. Polonsky, Esq.**Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.
Washington, DC 20004 apolonsky@morganlewis.comPaul Gunter, Director**Reactor Watchdog Project Nuclear Information And Resource Service
1424 16 th Street, NW, Suite 404Washington, DC 20036 pgunter@nirs.orgJ. Bradley Fewell, Esq.**Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 bradley.fewell@exeloncorp.comJohn A. Covino, Esq.**Valerie Anne Gray, Esq.
Deputy Attorneys General Division of Law Environmental Permitting and Counseling Section Hughes Justice Complex Trenton, NJ 08625 john.covino@dol.lps.state.nj.us Valerie.Gray@dol.lps.state.nj.usRichard Webster, Esq.**Rutgers Environmental Law Clinic 123 Washington Street Newark, NJ 07102-5695 rwebster@kinoy.rutgers.edu/RA/
Steven C. HamrickCounsel for NRC Staff