ML070650051

NRC Staff Answer to Citizens Motion for Leave to Add a Contention and Motion to Add a Contention

ML070650051
Person / Time
Site:	Oyster Creek
Issue date:	03/05/2007
From:	Matt Young NRC/OGC
To:	Atomic Safety and Licensing Board Panel
Young M, NRC/OGC, 301-415-1523
References
50-219-LR, ASLBP 06-844-01-LR, RAS 13139
Download: ML070650051 (20)

Text

1 The six organizations are Nuclear Information and Resource Service, Jersey Shore Nuclear Watch, Inc., Grandmothers, Mothers, and More for Energy Safety, New Jersey Public Interest Research Group, New Jersey Sierra Club, and New Jersey Environmental Federation.

March 5, 2007 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

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Docket No. 50-0219-LR

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(Oyster Creek Nuclear Generating Station) )

NRC STAFF ANSWER TO CITIZENS MOTION FOR LEAVE TO ADD A CONTENTION AND MOTION TO ADD A CONTENTION INTRODUCTION On February 6, 2007, Citizens1 filed a Motion for Leave to Add Contention and Motion to Add a Contention (Late Petition). In accordance with 10 C.F.R. § 2.309(h)(1) and the Boards July 5, 2006 Order, the Staff of the Nuclear Regulatory Commission (Staff) hereby answers the Late Petition.

For the reasons set forth below, the Staff opposes the admission of the late-filed contention because it is not based on new information that is materially different from information previously available, it lacks adequate factual or expert support, and it fails to raise a genuine dispute on a material issue. In addition, a balancing of the contention late-filing factors does not warrant admission of the contention. Accordingly, the contention should be rejected as failing to satisfy contention pleading requirements in 10 C.F.R. §§ 2.309(f)(2),

2.309(f)(1), and 2.309(c)(1).

BACKGROUND On November 14, 2005, Citizens filed a timely request for hearing concerning the application of AmerGen Energy Company, LLC (AmerGen) to renew the Oyster Creek operating license for 20 years past the April 9, 2009 expiration date. On February 27, 2006, the Atomic 2 Letter from C. N. Swenson, AmerGen, to NRC (July 22, 2005) (ML052080172).

3 The admitted contention alleged that AmerGens corrosion management program... will not enable AmerGen to determine the amount of corrosion in that region and thereby maintain the safety margins during the term of the extended license. LBP-06-07, 63 NRC at 217.

Safety and Licensing Board (Board) granted Citizens intervention petition, admitting a contention that alleged that the license renewal application (LRA)2 was deficient due to the failure to include periodic ultrasonic test (UT) measurements of the sand bed region of the drywell liner in the aging management program. LBP-06-07, 63 NRC 188, 211-217 (2006).3 The Board rejected Citizens attempt to expand its contention (by raising arguments for the first time in a reply brief) to encompass the drywell liner below the sand bed region. Id. at 217 n.28 (citing Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224 (2004)). In LBP-06-11, 63 NRC 391, 393-95, review dend, CLI-06-24, 64 NRC 111(2006),

the Board similarly rejected Citizens February 7, 2006, attempt to raise contentions challenging, among other things, the adequacy of monitoring of thickness in inaccessible areas of the drywell liner.

Prior to the admission of the contention, AmerGen committed to perform a set of one-time thickness measurements... in the sand bed region... at a sample of areas previously inspected (in the 1990s) and identified as having exhibited corrosion. Letter from C. N.

Swenson, AmerGen, to NRC (Dec. 9, 2005) (ML053490219), at 3. 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) (ML060970288).

In LBP-06-16, 63 NRC 737, 742-45 (2006), the Board ruled that Citizens contention of omission was rendered moot by AmerGens April 4, 2006, commitment to perform periodic UT measurements in the sand bed region of the drywell (i.e., prior to entering the period of extended operation and every ten years thereafter), but gave Citizens the opportunity to file a 4 Letter from Michael P. Gallagher, AmerGen, to NRC (June 20, 2006) (ML061740573).

5 Citizens challenged as inadequate AmerGens (1) acceptance criteria, (2) scheduled UT monitoring frequency, (3) moisture and coating integrity monitoring, (4) response to wet conditions and coating failure, (5) scope of UT monitoring to systematically identify and sufficiently test degraded areas, (6) quality assurance for measurements, and (7) methods for analyzing UT results. See LBP-06-22, 64 NRC at 236.

new contention challenging AmerGens new periodic UT program for the sand bed region.

Citizens filing was to be limited to AmerGens new UT program for that region as reflected in its April 4 commitment and was to 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). Id. at 744-45.

Citizens subsequently submitted a contention based on the April 4 commitment, was granted permission to file a supplement limited to AmerGens UT program as reflected in [a June 20, 2006 commitment] and new information in that commitment,4 and filed a supplemental petition. See [Citizens] Petition to Add a New Contention (June 23, 2006); Order (Granting NIRSs Motion for Leave to Submit a Supplement to its Petition (July 5, 2006) (unpublished)

(July 5 Order); Supplement to Petition to Add a New Contention (July 25, 2006). In LBP-06-22, 64 NRC 229, 255-56 (October 10, 2006), the Board admitted one of seven challenges5 raised by Citizens as the following contention:

[I]n light of the uncertain corrosive environment and the correlative uncertain corrosion rate in the sand bed region of the drywell shell, AmerGens proposed plan to perform UT tests prior to the period of extended operations, two refueling outages later, and thereafter at an appropriate frequency not to exceed 10-year intervals is insufficient to maintain an adequate safety margin.

The Board rejected as nontimely Citizens challenge to the spatial scope of AmerGens UT measurements and assertions that monitoring fails to systematically survey thin areas, noting that such challenges should have been raised after the docketing of AmerGens December 2005 commitment based on Citizens reliance on information about pre-LRA measurements and locations. Id. at 249-51. The Board also ruled, inter alia, that Citizens challenge to AmerGens drywell minimum thickness acceptance criteria (i.e., 0.736 inches and 0.536 inches) was 6 Motion for Leave to Add Contentions and Motions to Add Contentions (Dec. 20, 2006).

Appended to this filing was the December 3 Supplement (Exh. ANC 1), AmerGens Advisory Committee on Reactor Safeguards Information Package (Exh. ANC 2), an Oyster Creek shift turnover note for October 21-22, 2006 (Exh. ANC 3), a Memorandum of Dr. Rudolph Hausler (Dec. 19, 2006) (Exh. ANC 4)

(Sixth Hausler Memo), an Oyster Creek Action Request (Oct. 25, 2006) (Exh. ANC 5), and a Letter from Richard Conte, NRC, to Richard Webster (Nov. 9, 2006) (Exh. ANC 6).

7 Letter from Michael P. Gallagher to NRC ( Dec. 3, 2006) (enclosing [LRA] Supplemental Information Post 2006 Refueling Outage) (December 3 Supplement) (ML063390664). Corrections to this letter were submitted on December 15, 2006 (ML963530042).

untimely because (1) recent AmerGen commitments did not add to or modify acceptance criteria that have been used since 1992, (2) similar information was included in Citizens November 2005 intervention petition, (3) Citizens had an obligation to obtain information necessary to mount its challenge, (4) Citizens filings indicated that the analyses used to generate the acceptance criteria in accordance with ASME Code had long been publicly available, and (5)

Citizens should have challenged the adequacy of the criteria in its initial petition. Id. at 237-240.

On December 20, 2006,6 citing a December 3, 2006 AmerGen letter7 that revised the LRA to include October 2006 refueling outage results and revised license renewal commitments, Citizens sought leave to file two new contentions concerning (1) AmerGens proposal to conduct UT monitoring in the embedded region and (2) the inadequacy of AmerGens proposed monitoring in the sand bed region from the outside. On February 9, 2007, the Board denied the petition, ruling that the contentions were nontimely under 10 C.F.R.

§ 2.309(f)(2), and inadmissible under 2.309(f)(1) since they failed to raise a genuine dispute regarding a material issue of law or fact. Memorandum and Order (Denying Citizens Motion for Leave to Add Contentions and Motion to Add Contention) (unpublished) (February 9 Order),

slip op. at 7, 15-16, 19.

Prior to issuance of the February 9 Order, Citizens filed the instant petition based on 8 Structural Integrity Analysis of the Degraded Drywell Containment at the Oyster Creek Nuclear Generating Station, SAND2007-0055 (Jan. 2007) (Sandia Report) (ML070120395).

9 January 18 Transcript (ML070240433). A subsequent meeting, not mentioned by Citizens, was held by the full ACRS on Feburary 1, 2007 (February 1 Transcript) (ML070440100).

(1) a January 2007 Sandia National Laboratories (Sandia) report8 that shows... AmerGens acceptance criterion for the mean thicknesses in the sandbed region is set over 0.1 inches too low and the local wall thickness for contiguous areas less than one square foot is over 0.08 inches too low, Late Petition at 1, (2) comments about the Sandia study made during a January 18, 2007 Advisory Committee on Reactor Safeguards (ACRS) subcommittee meeting,9 and (3) an AmerGen statistical analysis of October 2006 UT results that indicates the sandbed is 0.02 inches thinner than in 1992 on average and over 0.1 inches thinner in certain spots indicating that corrosion may be occurring, id. at 2-3. Appended to the petition is a Note to OC-12 Files from George Licina, dated November 9, 2006 (Exh. ANC 7), and an Oyster Creek Assignment Report 004161639, printed May 30, 2006 (Exh. ANC 8).

The Staffs response to this latest request for admission of a late-filed contention is set forth below.

DISCUSSION I.

Legal Standards for Admission of Late-Filed Contentions The first matters to be addressed in ruling on a late-filed contention are to determine if it is timely and otherwise meets the requirements of 10 C.F.R. § 2.309(f)(2). Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 572 (2006). Late-filed contentions may be admitted with leave of the presiding officer only upon a showing that:

(i) the information upon which the amended or new contention is based was not previously available; (ii) the information upon which the amended or new contention is based is materially different than information previously available; and (iii) the amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

10 C.F.R. § 2.309(f)(2).

In addition, a nontimely contention may be admitted only upon the presiding officers determination favoring admission after balancing the following eight factors, all of which must be addressed in the petitioners filing:

(i)

Good cause, if any, for the failure to file on time; (ii)

The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii)

The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv)

The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v)

The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi)

The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii)

The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and (viii)

The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record.

10 C.F.R. § 2.309(c)(1).

The Commission has indicated that because any contention filed after the initial petition deadline is late-filed, the factors in 10 C.F.R. § 2.309(c) and (f) should be addressed. See Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 625 (2004). This is particularly true since the 60-day petition filing period provides ample time to prepare adequately supported contentions and that the regulations allow late-filed contentions 10 Cases decided when the regulations contained only five factors are applicable to the instant petition since factors (ii), (iii), and (iv), which relate to standing, are not at issue here. Those factors were included in 2004. See Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,239 (Jan. 14, 2004).

where there is a compelling justification. Id. at 623 & n.20 (citing 10 C.F.R. § 2.309(c)).

Petitioners seeking admission of a late-filed contention bear the burden of showing that a balancing of these factors weighs in favor of admission. Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 347 (1998) (noting that the Commission has summarily dismissed petitioners who failed to address the factors for a late-filed petition). The first factor, whether good cause exists for the failure to file on time, is entitled to the most weight. State of New Jersey (Department of Law and Public Safety), CLI-93-25, 38 NRC 289, 296 (1993). Where no showing of good cause for the lateness is tendered, petitioners demonstration on the other factors must be particularly strong. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 73 (1992) (quoting Duke Power Co. (Perkins Nuclear Station, Units 1, 2 & 3),

ALAB-431, 6 NRC 460, 462 (1977)). The fifth and sixth factors, the availability of other means to protect the petitioners interest and the ability of other parties to represent the petitioners interest, are less important than the other factors, and are therefore entitled to less weight. See id. at 74.10 In addition to fulfilling the requirements of 10 C.F.R. § 2.309(f)(2), a petitioner must also show that the late-filed contention meets standard contention admissibility requirements. See Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 NRC 355, 362-363 (1993). The NRC strictly limits the contentions that may be raised so that individual licensing adjudications are limited to deciding "genuine, substantive safety and environmental issues placed in contention by qualified intervenors." Duke Energy Corp.

(Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999) (quoting H.R.

Rep. No.97-177, at 151 (1981)). The Commission has noted that the subject of the contention must be appropriate for adjudication in an individual licensing proceeding, and that [n]o contention is to be admitted for adjudication if it attacks applicable statutory requirements or Commission regulations, if it raises issues that are not applicable to the facility in question, or it raises a question that is not concrete or litigable. Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 129 (2004).

In addition to these substantive requirements, a petitioner seeking to raise a contention in an adjudicatory hearing must meet the strict pleading standards found in section 2.309(f)(1).

Id. This regulation requires a petitioner to:

(i)

Provide a specific statement of the issue of law or fact to be raised or controverted; (ii)

Provide a brief explanation of the basis for the contention; (iii)

Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv)

Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v)

Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing... ; and (vi)

Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reason for the petitioners belief.

10 C.F.R. § 2.309(f)(1).

The Commission has emphasized that its rules on contention admissibility establish an evidentiary threshold more demanding than a mere pleading requirement and are strict by design. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349, 358 (2001). Failure to comply with any of these requirements is grounds for dismissing a contention. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

Each contention should refer to the specific documents or other sources of which the petitioner is aware and upon which he or she intends to rely in establishing the validity of the contentions. Millstone, CLI-01-24, 54 NRC at 358 (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 333 (1999)). A petitioner must submit more than bald or conclusory allegation[s] of a dispute with the applicant, but instead must read the pertinent portions of the license application,... and... state the applicants position and the petitioners opposing view. Millstone, CLI-01-24, 54 NRC at 358 (quoting Final Rule, Rules of Practice for Domestic Licensing Proceedings Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171, 33,170 (Aug. 11 1989)).

A late contention must be based on data or conclusions that differ significantly from what was submitted in the license application and cannot raise arguments that could have been raised previously if publicly available information about the facility had been examined. See Duke Power Co. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2),

CLI-02-28, 56 NRC 373, 385-86 (2002). Petitioners have an ironclad obligation to examine the publicly available documentary material pertaining to the facilty with sufficient care to...

uncover any information that could serve as the foundation for a specific contention. Id. at 386 (citing Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989)).

License renewal focuses on the potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs. Florida Power & Light Co.

(Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3 (2001).

II.

Citizens Proffered Contention Citizens seek admission of the following contention based on the January 2007 Sandia Report, statements made by the ACRS during the January 18, 2007 subcommittee meeting and a statistical analysis (made available on January 29, 2007") of UT measurements during the October 2006 outage:

The computer modeling undertaken by General Electric, upon which the disputed acceptance criteria are based, used unjustified factors leading to underestimation of the uniform required thickness by over 0.108 inches and of the small area required thickness by over 0.082 inches. For this reason, the acceptance criterion for the average thickness of each bay of the drywell shell should be increased to around 0.844 inches to ensure that the applicable ASME Code safety requirements are met or should be replaced with a set of criteria based on accurate and realistic three dimensional modeling of further degradation in the sandbed. For similar reasons, the acceptance criterion for small area thickness should be increased to at least 0.618 inches or integrated into the acceptance criteria derived from further three dimensional modeling.

Late Petition at 6.

Citizens argue that they have timely raised this contention challenging AmerGens aging management program for corrosion in the sand bed because it is being submitted shortly after information made available in January 2007 that was not previously available. E.g., Late Petition at 12. Citizens claim they did not know previously that Sandia held the opinion that enhancement of the capacity reduction factor used by GE is not justified. Id. Citizens further argue that until the full results of UT testing became available, it was unclear whether systematic thinning had been observed in the sandbed. Id.

Citizens also claim the issue raised is material because the acceptance criteria is necessary to ensure plant safety during extended operation. Id. Citizens further assert that while they have previously proffered the issue that UT acceptance criteria are inadequate, they have not previously argued that the drywell structural analysis modeling done by General Electric (GE) uses unjustified factors leading to systematic underestimation of the required 11 A complete copy of the Staffs 1992 safety evaluation (which as noted on page 5, includes a BNL TER) was publicly available, but was not attached to Citizens initial petition. See November 14, 2005 Petition, Exh. 3.

average thickness. Id. at 2.

Citizens attempt to proffer this latest contention should be rejected.

A.

Citizens Have Not Satisfied 10 C.F.R. § 2.309(f)(2)

Citizens contention challenging the drywell minimum thickness acceptance criteria is untimely under 10 C.F.R. § 2.309(f)(2)(ii). Citizens has long been aware of the drywell minimum thickness acceptance criteria and how they were derived. See LBP-06-22, 64 NRC at 237-40.

The Board noted that Citizens initial petition included exhibits that described the use of the ASME Code in establishing minimum thickness criteria and the Staffs approval of that methodology. See id. at 239 (citing Citizens Petition to Intervene, Exh. 4, Summary of May 5 1993 Meeting with GPU Nuclear Corp., Encl. 2 at 12 (drywell shell was evaluated using ASME local acceptance criteria); id. Exh.3, Safety Evaluation Report on Structural Integrity of the Oyster Creek Drywell at 3 (Apr. 24, 1992)). The Board also noted that materials attached to Citizens June 23, 2006, petition indicated that engineering analyses for vessel thickness are documented in General Electric (GE) reports transmitted to the Staff in December 1990 and in 1991. Id. (citing June 23, 2006 Petition, Exh.1, AMP-210 at 7). The issue of whether the modified capacity reduction factor was appropriate due to hoop tension effects was addressed in the Brookhaven National Laboratory Technical Evaluation Report (BNL TER) appended to the Staffs April 1992 Safety Evaluation. See PDR Accession No. 9204300087 (Also ML070290668).11 Given Citizens concerns about the structural integrity of the drywell during license renewal and the previous availability of information about how the thickness criteria were determined, Citizens attempt to litigate this issue now is untimely. Nothing in the documents cited modified these acceptance criteria in the AmerGen LRA. In addition, questions similar to Sandias questions about use of a modified capacity reduction factor were raised and addressed prior to the filing of the petition. Compare January 18 Transcript at 283-84 and BNL TER at 3, 4-5 (the capacity reduction factors were also modified to taken into account the effects of hoop stress; in response to questions raised during the review, the licensee submitted additional information to support modified capacity reduction factors). The onus was on Citizens to obtain and examine the BNL TER and the GE analysis in order to provide support for their petition to intervene. See CLI-06-24, 64 NRC at 123 n.71.

While Citizens argue that the recent Sandia report, discussions at the January 18, 2007 ACRS meeting, and an AmerGen statistical analysis (received in late January) justify the timeliness of the proffered contention, see Late Petition at 2-3, it is not clear that this information, albeit new, is materially different from that previously available to Citizens. For example, the Sandia Report concludes, even using a different minimum thickness of 0.844 inches, that the drywell meets the ASME Code allowable stresses. See Sandia Report at 83.

The Sandia Report was a confirmatory analysis that used different assumptions. January 18 Transcript at 268, 282. Sandia did not attempt to reproduce the 1990s GE analysis, which assumed a minimum thickness of 0.736 inches in the sandbed region and is part of the current licensing basis for the facility. See Sandia Report at 12, 83; January 18 Transcript at 303, 298, 305. Sandia also indicated that a direct comparison of the GE and the Sandia Report was not appropriate. See January 18 Transcript at 284. For example, the Sandia Report used averaged UT data from the early 1990s and prior to the application of the protective coating, noting that those measurements are conservatively biased since they were made only at the visually identified thinnest points. See id. at 12. Even though Sandia used a three-dimensional analysis and different assumptions and input, Sandias analysis confirmed that the drywell met ASME code structural requirements. See id. at 83.

Sandias statements about use of an increased capacity reduction factor, see Sandia 12 Also, an ACRS member noted that Sandia did not deem the use of the modified factor inappropriate, but indicated it did not have access to information that would justify the use of an increased capacity reduction factor. See February 1 Transcript at 242-43 (Maynard).

Report at 77, 82, 83; January 18 Transcript at 299-30 (the code case indicates justification can be provided for using an increased factor, but Sandia did not have access to the justification for the increase), are not materially different given that the Staff previously approved the use of the increased reduction factor in 1992 after BNL raised similar issues. See BNL TER at 4-5. Also, Citizens knew, but failed to disclose to the Board, that (1) the author of ASME Code Case 284, Dr. Clarence Miller, explained why use of the increased factor was appropriate and (2) the Staff indicated that the application of the increased factor to the Sandia analysis would result in a minimum thickness of less than 0.736 inches. See February 1 Transcript at 202-215, 241.12 Moreover, because the thickness criteria in the 1990s GE Report was available both before the application was filed or at least when AmerGen submitted its December 2006 commitment to perform UT examinations, Citizens challenge to the thickness criteria is clearly untimely.

In addition, as indicated by the Staffs February 1, 2007 presentation to the ACRS, see Tr. 242, 244 (Staff agrees hoop stress should be included in the capacity reduction factor; Sandias confirmatory analysis does not replace 1992 licensing basis), the Sandia Report and statements do not constitute a Staff position or statement of NRC policy that might be analogized to conclusions in an environmental impact statement (or safety evaluation report) which could trigger a right to amend or file a new contention under § 2.309(f)(2). See LBP-06-11, 63 NRC at 399.

The AmerGen statistical analysis and assignment report also fail to excuse the proposed late-filed contention. See Exh. ANC 7 and ANC 8. Data from the October 2006 outage was included in AmerGens December 3, 2006 submittal to the NRC. See December 3 Supplement, 13 This document was appended as Exh. ANC 1 to Citizens Motion for Leave to Add Contentions and Motion to Add Contentions, dated December 20, 2006.

14 An ACRS member noted that his reading of the data supported the conclusion that corrosion had been arrested since 1992 and opined that Licina probably did not view the data as evidence of continuing corrosion. February 1 Transcript at 262-63.

Enclosure at 68.13 Citizens could have performed their own statistical analysis to reach similar conclusions about the outage data. Moreover, AmerGen indicated during the ACRS full committee meeting that the Licina note (ANC 7), which counsel for Citizens forwarded to the ACRS by letter, dated January 31, 2007 (ML070370619), was a draft and that a subsequent analysis completed in January found no corrosion and that differences were attributable to UT measurement techniques in 1992 versus 2006. See February 1 Transcript at 261.14 In addition, Exhibit ANC 8 also appears to raise a concern about the safety of current plant operations, an issue that is addressed outside the scope of license renewal. See 10 C.F.R.

§ 54.30. Thus, Citizens have not shown that the contention is based on data or conclusions that differ significantly from those in the LRA. See Duke Power Co., CLI-02-28, 56 NRC at 385-

86.

Given that information about the thickness criteria and use of the capacity reduction factor was available either at the time the initial petition was filed (or shortly thereafter) and the cited documents do not significantly differ from that information, the contention is untimely and not based on materially different information that was previously unavailable. Therefore, the contention should be rejected as failing to satisfy 10 C.F.R. § 2.309(f)(2)(i)-(iii).

B.

The Late-filed Contention Does Not Satisfy 10 C.F.R. § 2.309(f)(1)

Even if it can be argued that the Sandia Report, ACRS meeting discussions and statistical analysis render the contention timely, the contention should not be admitted. A contention must show that a genuine dispute exists with the applicant on a material issue of law or fact. Duke Energy Corp. (Oconee Nuclear Station Units 1, 2, and 3), CLI-99-11, 49 NRC 15 Findings made for the issuance of a renewed license include reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the [current licensing basis]. 10 C.F.R. § 54.29(a).

328, 333-34 (1999) (citing 10 C.F.R. § 2.714(b)(2)(iii) (now 10 C.F.R. § 2.309(f)(1)(vi)). The dispute at issue is "material" if its resolution would "make a difference in the outcome of the licensing proceeding." Id. (citing Final Rule, Rules of Practice for Domestic Licensing Proceedings -- Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989)).

Contrary to 10 C.F.R. § 2.309(f)(1)(2), the contention does not seek to raise an issue within the scope of this renewal proceeding inasmuch as it questions a factor used in an analysis which is part of the current licensing basis of the facility. Citizens apparently and impermissibly seek to litigate current plant safety in this renewal proceeding. Citizens assertion that current margins are razor-thin, Late Petition at 6, squarely challenges the safety of current operation. Questions about the safety of current operation are not subject to review during a license renewal review and are not admissible in this proceeding. See 10 C.F.R.

§ 54.30.15 In addition, even if Sandias statements about its confirmatory analysis performed to support Staff review activities were attributed to the Staff, questions about the basis for application of the increased factor, similar to a request for additional information (RAI), would not raise a genuine dispute on a material issue of law or fact. See Duke Power Co. (Oconee Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 336-37 (1999) (issuance of RAIs does not provide a basis for a contention). As discussed above, the Staff concluded that use of the modified capacity reduction factor was appropriate to account for hoop tension. See February 1 Transcript at 242. Thus, although Citizens state a basis for the contention, the proffered contention does not appear to be adequately supported or to raise a genuine dispute with regard to the AmerGen acceptance criteria.

Citizens appear to have selectively presented information in their possession concerning the Sandia Report and AmerGen analyses. Citizens neglect to disclose that Sandia indicated that it was not reasonable to directly compare the Sandia and GE analyses, see January 18 Transcript at 284, and that questions about differences between the Sandia and GE analyses were addressed in an ACRS full committee meeting where the Staff explained that, if the increased capacity reduction factor is applied to the Sandia analysis, the minimum thickness would be less than the 0.736 inches in the GE analysis, see February 1, 2007 Transcript at 240-42. AmerGen also explained that the analysis in Exhibit ANC 7 was preliminary and that a subsequent document resolved the concern about possible corrosion. See id. at 261 In addition, Dr. Clarence Miller, the author of the ASME Code Case N-284 addressed the appropriateness of the capacity reduction factor at Oyster Creek and AmerGen committed to perform a three-dimensional finite element structural analysis to better quantify the margin that exists above the Code required minimum for buckling. See February 1 Transcript at 202, 205-215, 217; Letter from Michael P Gallagher to NRC (Feb. 15, 2007) (ML070520252) (February 15 Letter), Enclosure at 11. Thus, the contention is not supported by a sufficient basis or show a genuine dispute on a material issue.

In brief, Citizens contention challenging UT acceptance criteria in the sand bed region does not appear to raise a genuine dispute on a material issue or to be adequately supported.

Thus, Citizens have failed to plead information that satisfies the requirements of 10 C.F.R.

§2.309(f)(1)(v) and (vi).

C.

A Balancing of the Late-filing Factors Do Not Warrant Admission Citizens argue that the filing satisfies the late-filing factors in 10 C.F.R. § 2.309(c)(1) in that (1) good cause exists because its contention could not have been filed prior to publication of the Sandia Report, (2) the proceeding will not be delayed because the contention is closely related to the contention already admitted in this proceeding, (3) Citizens members reside near the plant and are interested in ongoing safety, (4) Citizens presentations at ACRS meetings have led to a fuller NRC record, and (5) a hearing before the Board is the best way to address matters raised by the contention because it permits discovery, and (6) other NRC processes are beyond the stage where Citizens could have significant input in license renewal decision making. See Late Petition at 13-14.

The factor attributed the most weight is whether there is good cause for the late-filing.

State of New Jersey, CLI-93-25, 38 NRC at 296. As discussed above, because information concerning the drywell monitoring acceptance criteria was available prior to the filing of the initial petition or shortly thereafter, the Sandia report is not materially different, and Citizens have long held concerns about the adequacy of AmerGen acceptance criteria, but failed to examine relevant documents to raise the acceptance criteria issue on a timely basis, see sections II.A and II. B, supra, Citizens do not have good cause for the late-filing. As noted above, the onus is on Citizens to examine publicly available information and obtain documents to support their contention. See Duke Power Co., CLI-02-28, 56 NRC at 385-86; Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004).

Similarly, because AmerGen has committed to update its drywell analysis prior to entering the renewal period, see February 1 Transcript at 218 (Polaski); February 15 Letter, Enclosure at 11, and Citizens concerns pertain to the safety of current operations at Oyster Creek, there are other means (such as a 10 C.F.R. § 2.206 petition) to protect Citizens interests. Further, because Citizens seek to challenge the current licensing basis of the facility and such a challenge cannot be mounted in this proceeding, Citizens cannot show that litigation of the contention would contribute to the development of a sound record in this proceeding.

Consequently, the petition should be rejected.

CONCLUSION For the reasons discussed above, the Staff objects to the admissibility of the late-filed contentions because Citizens do not meet the timeliness, admissibility and late-filing requirements in 10 C.F.R. §§ 2.309(f)(2), 2.309(f)(1) and 2.309(c)(1).

Respectfully submitted,

/RA/

Mitzi A. Young Counsel for NRC Staff Dated at Rockville, Maryland this 5th day of March 2007

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

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Docket No. 50-219-LR

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(Oyster Creek Nuclear Generating Station)

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CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF ANSWER TO CITIZENS MOTION TO FOR LEAVE TO ADD A CONTENTION AND MOTION TO ADD A CONTENTION 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 5th day of March, 2007.

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.gov Anthony 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.gov Paul 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.gov Office of the Secretary ATTN: Docketing and Service Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 HEARINGDOCKET@nrc.gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAMail@nrc.gov Debra Wolf Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 DAW1@nrc.gov Lisa 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.us Kathryn M. Sutton, Esq.*

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 ksutton@morganlewis.com Ron Zak*

New Jersey Department of Environmental Protection Nuclear Engineering P.O. Box 415 Trenton, NJ 08625-0415 Ron.Zak@dep.state.nj.us Suzanne Leta*

New Jersey Public Interest Research Group 11 N. Willow St.

Trenton, NJ 08608 sleta@njpirg.org Donald Silverman, Esq.*

Morgan, Lewis, & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 dsilverman@morganlewis.com Alex S. Polonsky, Esq.*

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.

Washington, DC 20004 apolonsky@morganlewis.com Paul Gunter, Director*

Reactor Watchdog Project Nuclear Information And Resource Service 1424 16th Street, NW, Suite 404 Washington, DC 20036 pgunter@nirs.org J. Bradley Fewell, Esq.*

Exelon Corporation 200 Exelon Way, Suite 200 Kennett Square, PA 19348 bradley.fewell@exeloncorp.com John A. Covino, Esq.*

Valerie Anne Gray, Esq.

Deputy Attorneys General Division of Law Environmental Permitting & Counseling Section Division of Law Hughes Justice Complex P.O. Box 093 Trenton, NJ 08625 john.covino@dol.lps.state.nj.us Valerie.Gray@dol.lps.state.nj.us Richard Webster, Esq.*

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

/RA/

Mitzi A. Young Counsel for NRC Staff