ML042820100

Entergy'S Answer to Vermont Department of Public Service Notice of Intention to Participate and Petition to Intervene

ML042820100
Person / Time
Site:	Vermont Yankee
Issue date:	09/29/2004
From:	Travieso-Diaz M Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, ShawPittman, LLP
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-271-OLA, ASLBP 04-832-02-OLA, RAS 8589
Download: ML042820100 (45)

Text

RAS g58S September 29, 2004 UNITED STATES OF AMERICA DOCKETED NUCLEAR REGULATORY COMMISSION USNRC Before the Atomic Safety and Licensing Board September 29, 2004 (3:51 PM)

OFFICE OF SECRETARY

) RULEMAKINGS AND In the Matter of ) ADJUDICATIONS STAFF

) Docket No. 50-271 ENTERGY NUCLEAR VERMONT )

YANKEE, LLC and ENTERGY ) ASLBP No. 04-832-02-OLA NUCLEAR OPERATIONS, INC. ) (Operating License Amendment)

(Vermont Yankee Nuclear Power Station) )

)

ENTERGY'S ANSWER TO VERMONT DEPARTMENT OF PUBLIC SERVICE NOTICE OF INTENTION TO PARTICIPATE AND PETITION TO INTERVENE Pursuant to 10 C.F.R. § 2.3 10(h)(1), Applicants Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. l (collectively "Entergy") hereby provide this Answer in opposition to the Vermont Department of Public Service's ("DPS") "Notice of Intention to Participate and Petition to Intervene" (Aug. 30, 2004) ("DPS Petition") regarding Entergy's application to amend Facility Operating License DPR-28 for the Vermont Yankee Nuclear Power Station ("VY") to increase the maximum authorized power level. The DPS Petition should be rejected because it fails to propose any admissible contentions that meet the requirements of 10 C.F.R. § 2.309(f). See 10 C.F.R. § 2.309(a). Accordingly, DPS's request for hearing should be denied and the DPS Petition should be dismissed. 2 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. are the licensees of the Vermont Yankee Nuclear Power Station.

2 It is fundamental that the NEC Petition must be judged on its own merits, notwithstanding the submittal of another request for hearing in this case. See, e.g., CincinnatiGas & Electric Co. (William H. Zimmer Nuclear Power Station), ALAB-305, 3 NRC 8, 12 (1976) (where a State and several intervenors sought a hearing on an operating licensing proceeding, each of the prospective parties needed to satisfy the requirement of demonstrating standing and submitting at least one admissible contention.)

-remp late = sEc V- 031 5 Ad y-

I. PROCEDURAL BACKGROUND Entergy submitted its license amendment application to increase the authorized VY power level on September 10, 2003. The proposed amendment will increase the maximum authorized power level from 1593 megawatts thermal ("MWt") to 1912 MWt. The proposed extended power uprate ("EPU") represented an increase of approximately 20% above original rated thermal power. Entergy included in its Application a description and justification for each proposed change to the VY operating license and Technical Specifications, a determination of no significant hazards consideration, and an assessment of environmental impacts associated with the license amendment request. Entergy supplemented its Application by submitting additional information over a dozen times since its initial filing. On February 20, 2004, the Nuclear Regulatory Commission ("NRC") Staff determined that Entergy had provided the information necessary for review of the license amendment request.

The NRC published a "Notice of Docketing and Opportunity for Hearing" ("Notice") on July 1, 2004. 69 Fed. Reg. 39,976 (2004). The Notice permitted any person whose interest may be affected to file a request for hearing and petition for leave to intervene within 60 days of the notice (i.e., by August 30, 2004). Id. It stated that hearing requests shall be filed in accordance with the Rules of Practice in 10 C.F.R. Part 2 and advised interested persons to consult a current copy of 10 C.F.R. § 2.309 (the pertinent provision under the newly revised Part 2 rules). 4 The Notice directed any person requesting a hearing to set forth with particularity the interest of the petitioner in the proceeding and how that interest may be affected, and also, consistent with the newly revised Part 2 rules, to "identify the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding." Id.

3 Letter from J. Thayer to U.S.N.R.C., "Vermont Yankee Nuclear Power Station License No. DPR-28 (Docket No. 50-271) Technical Specification Proposed Change No. 263 Extended Power Uprate" (Sept. 10, 2003)

("Application").

4 See Changes to AdjudicatoryProcess, 69 Fed. Reg. 2182 (Jan. 14, 2004). A challenge to the new NRC rules is pending. Citizens Awareness Netvork, Inc. v. NRC (1" Cir., Docket No. 04-1145).

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On August 30, 2004, the DPS gave notice of its intention to participate in this proceeding by filing a petition to intervene herein. This submittal is Entergy's answer to the DPS Petition.

II. STANDING Entergy does not challenge DPS's standing to seek to participate in this proceeding. See 10 C.F.R. § 2.309(d)(2)(i). 5 III. ROLE OF THE STATE IN THIS PROCEEDING Under the Commission regulations, an interested State or State agency can follow one of two routes to participate in an adjudicatory proceeding on an application for an amendment to a nuclear power plant operating license. It can seek to become a party to the proceeding pursuant to the provisions of 10 C.F.R. § 2.309(d)(2)(i). Alternatively, it can participate in a hearing on the application, should there be such a hearing, "by filing testimony, briefs, and interrogating witnesses if parties are permitted by the rules to cross-examine witnesses, as provided in 10 C.F.R. § 2.315(c)." 69 Fed. Reg. at 2,201.6 "However, such participation is dependent on the existence of a hearing independent of the interested State ... participation, and such participation ends when the hearing is terminated." Id. at 2,201.

s 10 C.F.R. § 2.309(d)(2)(i) states: "State, local governmental body (county, municipality or other subdivision),

and any affected Federally-recognized Indian Tribe that desires to participate as a party in the proceeding shall submit a request for hearing/petition to intervene. The request/petition must meet the requirements of this section (including the contention requirements in paragraph (f) of this section), except that a State, local governmental body or affected Federally-recognized Indian Tribe that wishes to be a party in a proceeding for a facility located within its boundaries need not address the standing requirements under this paragraph."

6 10 C.F.R. § 2.315(c) reads: "The presiding officer will afford an interested State, local governmental body (county, municipality or other subdivision), and affected, Federally-recognized Indian Tribe, which has not been admitted as a party under § 2.309, a reasonable opportunity to participate in a hearing. Each State, local governmental body, and affected Federally-recognized Indian Tribe shall, in its request to participate in a hearing, each designate a single representative for the hearing. The representative shall be permitted to introduce evidence, interrogate witnesses where cross-examination by the parties is permitted, advise the Commission without requiring the representative to take a position with respect to the issue, file proposed findings in those proceedings where findings are permitted, and petition for review by the Commission under § 2.341 with respect to the admitted contentions. The representative shall identify those contentions on which it will participate in advance of any hearing held."

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In other words, the alternatives available to DPS in connection with Entergy's Application were (1) to seek participation as party to an adjudicatory proceeding on the application and thus become "entitled to the rights and bear[ing] the responsibilities of a full party, including the ability to engage in discovery, initiate motions, and take positions on the merits," id., or (2) adopt the more limited role described in 10 C.F.R. §2.315(c) on any hearings held on the Application.

DPS has chosen to intervene as a full party pursuant to 10 C.F.R. § 2.309(d)(2)(i) and has proffered five proposed contentions. Having chosen to seek the status of a party, DPS is subject to the same requirements (save demonstration of standing) as any other prospective intervenor, including that of having to file "at least one good contention." 69 Fed. Reg. at 2,221. Therefore, DPS's ability to become a party to an adjudicatory proceeding on the Application hinges on its submittal of one or more admissible contentions. As discussed below, DPS has failed to satisfy this requirement.

DPS makes the novel argument that it is entitled under Section 274(1) of the Atomic Energy Act ("AEA"), 42 U.S.C. § 2021(1), to "offer evidence and interrogate witnesses to all applications, even if pursuant to 10 CFR § 2.309 no hearing will otherwise be held." DPS Petition at 3. In other words, DPS argues that just because Vermont is an interested State, DPS is entitled to have a hearing on the Application, at which it may offer evidence and interrogate witnesses, even if there is no other basis for a hearing and even if the State does not proffer an admissible contention. DPS provides no support for this peculiar argument, which is 7 42 USC § 2021(1) reads: "With respect to each application for Commission license authorizing an activity as to which the Commission's authority is continued pursuant to subsection (c) of this section, the Commission shall give prompt notice to the State or States in which the activity will be conducted of the filing of the license application; and shall afford reasonable opportunity for State representatives to offer evidence, interrogate witnesses, and advise the Commission as to the application without requiring such representatives to take a position for or against the granting of the application."

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inconsistent with the AEA, the Commission's rules of practice, and decades of NRC administrative proceedings in which interested states have been held subject to those rules.

The relevant statutory provisions on hearings on nuclear power plant license amendment applications are those in Section 189(a)(1) of the AEA, which states in relevant part:

In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees . .. the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.

42 USC § 2239(a). There is a long history of administrative and judicial interpretations of hearing rights under Section 189(a) of the AEA which establish that (1) Section 189(a) does not confer an unqualified right to a hearing, and (2) the Commission is authorized to establish reasonable regulations defining the requirements for holding such hearings. See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 NRC 1041, 1045 (1983),

citing BPI v. AEC, 502 F.2d 424 (D.C. Cir. 1974). Interested States are subject to the requirements in the NRC rules of practice as much as any other party seeking a hearing on the proposed licensing action. See, e.g., Northern States Power Co. (Independent Spent Fuel Installation), LBP-96-22, 44 NRC 138, 140 (1996).

The NRC regulations recognize that the AEA gives interested States special status in adjudicatory hearings held on license applications and grants States the opportunity to offer evidence, interrogate witnesses and advise the Commission on the issues raised on those hearings. See 10 C.F.R. § 2.315(c) and former 10 C.F.R. § 2.715(c). These are the same rights granted by 42 U.S.C. § 2021(1). However, it is well established that the participation rights 8 The current "interested State" rule, 10 C.F.R. § 2.315(c), is essentially identical to the prior rule in 10 C.F.R. § 2.715(c).

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conferred by these regulations do not include the right to have a hearing. 69 Fed. Reg. at 2,201; Northern States Power Co. (Tyrone Energy Park, Unit 1), CLI-80-36, 12 NRC 523, 527 (1980);

Duquesne Light Co. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 426 (1984).

Thus, there is no merit to DPS's claim that it has the right to a hearing even if none is convened under 10 C.F.R. § 2.309.

IV. STANDARDS FOR ADMISSIBILITY OF CONTENTIONS The Commission's rules for admissibility of contentions in NRC licensing proceedings are clear and controlling. 9 Failure to satisfy the requirements must result in rejection of a proffered contention. Failure to proffer at least one admissible contention requires that a request for hearing or petition to intervene be denied. 10 C.F.R. § 2.309(a).

A. Contentions Must Be Within the Scope of the Proceeding and May Not Challenge NRC's Rules As a fundamental requirement, a proposed contention is only admissible if it addresses matters within the scope of the proceeding and does not seek to attack the NRC's regulations governing the proceeding. 10 C.F.R. §§ 2.309(f)(1)(iii)-(iv) require a petitioner to demonstrate that the issue raised by each of its contentions is within the scope of the proceeding and material to the findings that the NRC must make. Licensing boards "are delegates of the Commission" and, as such, they may "exercise only those powers which the Commission has given [them]."

PublicService Co. oflndiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170 (1976) (footnote omitted); accord, PortlandGeneralElectric Co. (Trojan Nuclear Plant), ALAB-534,9 NRC 287,289-90 n.6 (1979). Accordingly, it is well established that a contention is not cognizable unless it is material to a matter that falls within the scope of 9 Adoption of the new adjudicatory hearing rules has not changed the requirements for admissibility of proffered contentions, and indeed has made those requirements explicitly applicable to informal hearings under Subpart L of 10 C.F.R. Part 2. 69 Fed. Reg. at 2,201-02, 2,221. As pointed out by the Commission, "no contention will be admitted for litigation in any NRC adjudicatory proceeding unless [the requirements in 10 C.F.R. § 2.309(0]

are met." Id. at 2,221.

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the proceeding for which the licensing board has been delegated jurisdiction as set forth in the Commission's Notice of Opportunity for Hearing. Id.; see also Commonwealth Edison Co. (Zion Station, Units I and 2), ALAB-616, 12 NRC 419, 426-27 (1980); Commonwealth Edison Co.

(Carroll County Site), ALAB-601, 12 NRC 18, 24 (1980).

It is also well established that a petitioner may not raise contentions that merely attack NRC requirements or regulations. Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-99-11, 49 NRC 328, 334 (1999). "[A] licensing proceeding... is plainly not the proper forum for an attack on applicable statutory requirements or for challenges to the basic structure of the Commission's regulatory process." PhiladelphiaElectric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20, affid in part on othergrounds, CLI-74-32, 8 AEC 217 (1974) (footnote omitted). Thus, a contention whose import is to attack a Commission rule or regulation is not appropriate for litigation and must be rejected. 10 C.F.R.

§ 2.335(a); PotomacElectric Power Co. (Douglas Point Nuclear Generating Station, Units I and 2), ALAB-218, 8 AEC 79, 89 (1974). Also, a contention which "advocate[s] stricter requirements than those imposed by the regulations" is "an impermissible collateral attack on the Commission's rules" and must be rejected. Public Service Co. ofNew Hampshire (Seabrook Station, Units I and 2), LBP-82-106, 16 NRC 1649, 1656 (1982); see also, Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP-91-19, 33 NRC 397, 410, affid in partand rev 'd in part on othergrounds,CLI-91-12, 34 NRC 149 (1991).

Likewise, a contention that seeks to litigate a generic determination established by Commission rulemaking is "barred as a matter of law." Pacific Gas andElectric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), LBP-93-1, 37 NRC 5, 30 (1993).

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B. Contentions Must Be Specific and Supported By a Basis Demonstrating a Genuine, Material Dispute In addition to the requirement to address issues within the scope of the proceeding and material to the NRC's findings, a contention is admissible only if it provides a "specific statement of the issue of law or fact to be raised or controverted," accompanied by (i) a "brief explanation of the basis for the contention;"

(ii) a "concise statement of the alleged facts or expert opinion" supporting the contention together with references to "specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue;" and (iii) "sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact," which showing must include "references to specific portions of the application (including the applicant's 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 reasons for the petitioner's belief."

10 C.F.R. §§ 2.309(f)(1)(i), (ii), (v) and (vi). The failure of a contention to comply with any one of these requirements is grounds for dismissing the contention. Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991).

These pleading standards governing the admissibility of contentions are the result of a 1989 amendment to 10 C.F.R. § 2.714, now § 2.309, which was intended "to raise the threshold for the admission of contentions." 54 Fed. Reg. 33,168 (Aug. 11, 1989); see also Oconee, CLI-99-11, 49 NRC at 334; Palo Verde, CLI-91-12, 34 NRC at 155-56. The Commission has stated that the "contention rule is strict by design," having been "toughened ... in 1989 because in prior years 'licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation."' Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001) (citation omitted). The pleading standards are to be enforced rigorously. "If any one ... is not met, a contention must 8

be rejected." Palo Verde, CLI-91-12, 34 NRC at 155 (citation omitted). A licensing board is not to overlook a deficiency in a contention or assume the existence of missing information. Id.

The Commission has explained that this "strict contention rule" serves multiple purposes, which include putting other parties on notice of the specific grievances and assuring that full adjudicatory hearings are triggered only by those able to proffer at least some minimal factual and legal foundation in support of their contentions. Oconee, CLI-99-11, 49 NRC at 334. By raising the threshold for admission of contentions, the NRC intended to obviate lengthy hearing delays caused in the past by poorly defined or supported contentions. Id. As the Commission reiterated in incorporating these same standards into the newly revised Part 2 rules, "[t]he threshold standard is necessary to ensure that hearings cover only genuine and pertinent issues of concern and that issues are framed and supported concisely enough at the outset to ensure that the proceedings are effective and focused on real, concrete issues." 69 Fed. Reg. at 2,189-90.

Under these standards, a petitioner is obligated "to provide the [technical] analyses and expert opinion" or other information "showing why its bases support its contention." Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 NRC 281, 305, vacated in part and remanded on other grounds, CLI-95-10, 42 NRC 1, affd in part, CLI-95-12, 42 NRC 111 (1995). Where a petitioner has failed to do so, "the [Licensing] Board may not make factual inferences on [the] petitioner's behalf." Id., citing Palo Verde, CLI-91-12, 34 NRC 149.

Further, admissible contentions "must explain, with specificity, particular safety or legal reasons requiring rejection of the contested [application]." Millstone, CLI-01-24, 54 NRC at 359-60. In particular, this explanation must demonstrate that the contention is "material" to the NRC's findings and that a genuine dispute on a "material issue of law or fact" exists. 10 C.F.R.

§§ 2.309(f)(l)(iv), (vi). The Commission has defined a "material" issue as meaning one where 9

"resolution of the dispute would make a difference in the outcome of the licensing proceeding."

54 Fed. Reg. at 33,172.

As observed by the Commission, this threshold requirement is consistent with judicial decisions, such as Conn. Bankers Ass 'n v. Bd. of Governors, 627 F.2d 245, 251 (D.C. Cir. 1980),

which held that:

[A] protestant does not become entitled to an evidentiary hearing merely on request, or on a bald or conclusory allegation that ... a dispute exists. The protestant must make a minimal showing that material facts are in dispute, thereby demonstrating that an 'inquiry in depth' is appropriate.

Id. (footnote omitted); see also Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units I and 2), CLI-98-14, 48 NRC 39, 41 (1998) ("It is the responsibility of the Petitioner to provide the necessary information to satisfy the basis requirement for the admission of its contentions"). A contention, therefore, is not to be admitted "where an intervenor has no facts to support its position and where the intervenor contemplates using discovery or cross-examination as a fishing expedition which might produce relevant supporting facts." 54 Fed. Reg. at 33,171.10 As the Commission has emphasized, the contention rule bars contentions where petitioners have what amounts only to generalized suspicions, hoping to substantiate them later, or simply a desire for more time and more information in order to identify a genuine material dispute for litigation. Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419,424 (2003).

Therefore, under the Rules of Practice, a statement "that simply alleges that some matter ought to be considered" does not provide a sufficient basis for an admissible contention.

10 See also Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-687, 16 NRC 460, 468 (1982),

vacated in parton other grounds, CLI-83-19, 17 NRC 1041 (1983) ("[A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable [the petitioner] to uncover any information that could serve as the foundation for a specific contention. Stated otherwise, neither Section 189a of the Act nor Section 2.714 [now 2.309] of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or staff.")

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Sacramento Municipal Utility District(Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200, 246 (1993), review declined, CLI-94-2, 39 NRC 91(1994). Similarly, a mere reference to documents does not provide an adequate basis for a contention. Baltimore Gas &

Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 348 (1998).

C. Contentions Cannot Ignore Publicly Available Documentation NRC's pleading standards require a petitioner to read the pertinent portions of the licensing request and supporting documentation, including the Safety Analysis Report, state the applicant's position and the petitioner's opposing view, and explain why it has a disagreement with the applicant. 54 Fed. Reg. at 33,170; Millstone, CLI-01-24, 54 NRC at 358. Indeed, an intervenor

[h]as an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could serve as the foundation for a specific contention.

Neither Section 189a of the Atomic Energy Act nor [the corresponding Commission regulation] ... permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or Staff.

54 Fed. Reg. at 33,170 (quoting Catawba, ALAB-687, 16 NRC at 468). The obligation to make specific reference to relevant facility documentation applies with special force to an applicant's Safety Analysis Report and Environmental Report and a contention should be rejected if it inaccurately describes an applicant's proposed actions or misstates the content of the licensing documents. See, e.g., CarolinaPower & Light Co.. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-82-119A, 16 NRC 2069, 2076 (1982); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-32-107A, 16 NRC 1791, 1804 (1982); PhiladelphiaElectric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1504-5 (1982).

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If the petitioner does not believe the licensing request and supporting documentation address a relevant issue, the petitioner is "to explain why the application is deficient." 54 Fed.

Reg. at 33,170; see also Palo Verde, CLI-91-12, 34 NRC at 156. A contention that does not directly controvert a position taken by the applicant in the license application is subject to dismissal. See Texas UtilitiesElectric Co. (Comanche Peak Steam Electric Station, Unit 2),

LBP-92-37, 36 NRC 370, 384 (1992). An allegation that some aspect of a license application is "inadequate" or "unacceptable" does not give rise to a genuine dispute unless it is supported by facts and a reasoned statement of why the application is unacceptable in some material respect.

FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-16, 31 NRC 509, 521 & n.12 (1990).

V. NONE OF DPS'S CONTENTIONS IS ADMISSIBLE All of the contentions raised by DPS relate to a single issue - whether Entergy can appropriately take credit for containment overpressure to demonstrate adequate performance by the Emergency Core Cooling System ("ECCS") pumps after a loss of coolant accident

("LOCA") at VY. Because all proffered contentions deal with the same issue, they include a significant amount of overlap and repetition. Substantively, the contentions express irrelevant concerns that, if proven, would not result in the denial of the Application or the imposition of conditions or limitations to it's approval. DPS has, therefore, failed to raise litigable issues and its Petition should accordingly be dismissed.

A. DPS Contention 1 DPS alleges in Contention 1 that:

Applicant has Claimed Credit for Containment Overpressure in Demonstrating the Adequacy of ECCS Pumps for Plant Events Including a Loss of Coolant Accident in Violation of 10 C.F.R. § 50, Appendix A, Criteria 35 and 38 and Therefore Applicant Has Failed to Demonstrate That the Proposed Uprate Will Not Create a Significant Hazard as Required by 10 C.F.R. § 50.92 and Will Not Create a Significant Hazard as Required by 10 C.F.R. § 50.92 and 12

Will Not Provide Adequate Protection for the Public Health and Safety as Required by 10 C.F.R. § 50.57(a)(3).

DPS Petition at 6."

In order to focus the analyses on whether the contention should be admitted, Entergy proposes that the contention be restated incorporating the specific allegations as follows:12 Applicant has claimed credit for containment overpressure in demonstrating the adequacy of ECCS Pumps for plant events including a Loss of Coolant Accident in violation of 10 C.F.R. Part 50, Appendix A, Criteria 35 and 38, in that:

a) The portion of NRC Regulatory Guide 1.82, Revision 3, which purports to authorize containment overpressure credit has never been properly evaluated or approved by the Advisory Committee on Reactor Safeguards in violation of the requirements of 42 U.S.C. §2039; b) The provisions of Regulatory Guide 1.82, Revision 3, that authorize the use of containment overpressure contravene NRC safety requirements for defense in depth by multiple fission product barriers by allowing one barrier failure - containment failure - to compromise the effectiveness of two critical safety systems - containment and ECCS pump operation; and Attached to the DPS Petition is the Affidavit of William K. Sherman, a DPS employee in charge of ongoing regulatory oversight of VY for DPS. Mr. Sherman's Affidavit does not provide facts or expert opinions in support of the proposed DPS Contentions, but merely indicates (at para. 3) that "[a]ll of the information given as Supporting Evidence in Contentions 1 through 4 of the VDPS Petition is true and correct to the best of my knowledge."

12 The rewording of contentions to provide greater specificity can be achieved by agreement among the parties to a proceeding, or can be implemented by the Atomic Safety and Licensing Board in order to define or consolidate contentions or clarify their scope. PrivateFuel Storage, L.L. C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 182, reconsiderationgrantedin partand denied inpart on other grounds, LBP-98-10,47 NRC 288, affdon other grounds, CLI-98-13, 48 NRC 26 (1998). The rewording of a contention includes explicitly setting forth its bases, for the "scope of a contention is determined by the 'literal terms' of the contention, coupled with its stated bases." Vermont Yankee NuclearPower Corp. (Vermont Yankee Nuclear Power Station), LBP-88-25, 28 NRC 394,396 (1988) (citations omitted). Entergy developed the proposed rewording of each the NEC's contentions based on the information set forth in the DPS Petition.

Entergy then provided the language to DPS and to the NRC Staff. Counsel for the NRC Staff stated that it will take no position on the reworded contentions. Counsel for DPS stated that the contentions and the bases should not be modified. While, as discussed below, each of DPS's contentions is deficient for lack of specificity even as reworded, the vagueness of the contentions as presented by DPS renders them totally inadmissible.

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c) Applicant has failed to demonstrate, as required by the Regulatory Guide, that the use of containment overpressure is either "necessary" or that plant operations or equipment cannot be "practicably altered" either by limiting thermal output of the reactor or upgrading the ECCS. Therefore, Applicant has failed to demonstrate that the proposed uprate will not create a significant hazard as required by 10 C.F.R. §50.92 and will not provide adequate protection for the public health and safety as required by 10 C.F.R. § 50.57(a)(3).

1. The Alleged Shortcomings in the ACRS Review of Proposed Rev.

3 to Regulatory Guide are Irrelevant to this Proceeding DPS discusses at some length but in a contradictory manner some alleged deficiencies in the Advisory Committee on Reactor Safeguards ("ACRS") review of the one paragraph in the then proposed Revision 3 to Regulatory Guide 1.82 that allows some BWR plants to take partial credit for containment overpressure to ensure adequate performance by the ECCS pumps after a LOCA.13 DPS Petition at 9-1 1. DPS's argues that the change in the proposed regulatory guide that authorized BWR plants to take partial credit for containment overpressure was a "major policy change [that] has not received the required review by the ACRS." Id. at 9.

The role of the ACRS is, inter alia, to "advise the Commission with regard to the hazards of proposed or existing reactor facilities and the adequacy of proposed reactor safety standards."

42 U.S.C. § 2039. While the ACRS serves as advisor to the NRC Staff in its regulatory fimctions, it plays no required role in the approval of amendments to facility licenses.' 4 3 While the DPS admits that "both the full ACRS and the ACRS Thermal-Hydraulic Phenomena Subcommittee reviewed the draft of Regulatory Guide 1.82, Rev. 3, before its issue," DPS alleges that the ACRS review "did not consider the containment overpressure policy change. " DPS Petition at 9. Yet, in the very next sentence, DPS acknowledges that the NRC Staff "presented the policy change to both subcommittee and full committee,"

albeit "almost as an afterthought." Id. Likewise, DPS admits that the ACRS recommended approval of the Regulatory Guide revision in a "recommendation letter [that] is long, filled with technical details and reservations about containment sump design, pump suction strainer design and debris loading assumptions," but because the letter is silent on the issue of giving credit to containment overpressure, "this supports a conclusion that the ACRS was not fully aware of the major policy change or its implications." Id. at 10. This "conclusion" is nothing more than unsupported speculation. It is at least as reasonable to conclude that the ACRS did not address the containment overpressure credit because it was not deemed significant enough to merit separate discussion.

14 Even where the preparation of an ACRS Report is a licensing requirement, as is the case with applications for construction permits for new facilities pursuant to 10 C.F.R. § 50.58(a), the ACRS Report has no evidentiary weight and is disregarded in the licensing proceeding on the application. See Arkansas Power & Light Co.

Footnote continued on next page 14

Therefore, the thoroughness of the ACRS review of a proposed regulatory guide is irrelevant to the resolution of the issues in this proceeding.

This conclusion is further reinforced by the fact that the adequacy of the applicant's license application, not the NRC staff's safety evaluation, is the safety issue in any licensing proceeding, and under longstanding decisions of the agency, contentions on the adequacy of the SER are not cognizable in a proceeding. Curators of the Univ. of Mo., CLI-95-1, 41 NRC 71, 121-22 (1995), affirmed on motion for consideration, CLI-95-8, 41 NRC 386, 396 (1995), La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5, 55-56 (1985); Pac. Gas Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807 (1983),

review denied, CLI-83-32, 18 NRC 1309 (1983).

69 Fed. Reg. at 2,202. For it is well established that "An intervenor ... may not proceed on the basis of allegations that the staff has somehow failed in its performance." Pacific Gas & Elec.

Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-728, 17 NRC 777, 807, review declined, CLI-83-32, 18 NRC 1309 (1983). Since the merits of the NRC Staff's review of a license amendment application are not a proper subject for litigation in a licensing proceeding, the quality of the advice that the ACRS provides the Staff in support of its review is afortiori irrelevant to the adjudication of the license amendment.

2. The Alleged Inconsistency Between Rev. 3 of Regulatory Guide 1.82 and the Defense in Depth Doctrine is Irrelevant to this Proceeding DPS argues that "Regulatory Guide 1.82, Revision 3 is substantively indefensible because its authorization for the use of containment overpressure to demonstrate the [Net Positive Suction Head] required to properly operate ECCS pumps, improperly eliminates NRC Footnote continued from previous page (Arkansas Nuclear One Unit 2), ALAB-94, 6 AEC 25, 32 (1972); Long IslandLighting Co. (Shoreham Nuclear Power Station), LBP-83-57, 18 NRC 445, 518 (1983).

15

safety requirements for defense in depth by multiple fission product barriers... ." DPS Petition at 6. Such an argument is irrelevant to this proceeding, for regulatory guides are not regulations but serve, as ACRS reviews do, merely to provide guidance for the NRC Staff to use in its review of the license application, and or applicants to consider following in their submittals to the Staff. '5 Compliance with Regulatory Guides is not required, and failure to comply with them does not give rise to a litigable contention in a licensing proceeding. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Power Station), CLI-74-40, 8 AEC 809, 811 (1974); Consumers Power Co. (Big Rock Point Nuclear Power Plan), ALAB-725, 17 NRC 562, 568 n. 10 (1983).

Therefore, alleged deficiencies in a regulatory guide such as Rev. 3 of Regulatory Guide 1.82 do not provide the basis for an admissible contention in a licensing proceeding.

3. There is no Requirement that Entergv Demonstrate that Relving on Containment Overpressure Meets "Necessary" or "Practicably Altered" Tests, but Entergy has Shown that such Reliance is Needed and Appropriate DPS interprets the discussion in Regulatory Guide 1.82, Revision 3, as "granting overpressure credit" only where such credit is "necessary" or where the "design cannot be practicably altered to avoid taking overpressure credit." DPS Petition at 17 (emphasis in original).

As discussed above, compliance with Regulatory Guides is not required, and failure to comply with them does not give rise to a litigable contention in a licensing proceeding, thus DPS's attempt to impose on VY the "tests" it draws from the Regulatory Guide do not give rise to an admissible contention.

5 Rev. 3 of Regulatory Guide 1.82 contains the following disclaimer on its cover page: "Regulatory guides are used to describe and make available to the public such information as methods acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques used by the staff in evaluating specific problems or postulated accidents, and data needed by the NRC staff in its review of applications for permits and licenses. Regulatory guides are not substitutesfor regulations, and compliance with them is not required.

Methods and solutions different from those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance or continuance of a permit or license by the Commission" (emphasis added).

The same disclaimer appears on other Regulatory Guides.

16

In addition, and contrary to DPS's assertions, VY meets the intent of the Regulatory Guide 1.82, Revision 3, sections applicable to the EPU. Although the document had not been issued when the Application was filed,16 Entergy agreed with the NRC Staff to address the aspects of Regulatory Guide 1.82, Revision 3, pertinent to crediting containment overpressure, and did so in response to a Request for Additional Information ("RAI") from the NRC Staff. 17 See Entergy RAI Response at 177. DPS failed to address Entergy's RAI Response in its contention, even though Entergy provided the document to DPS at the same time it sent it to the NRC Staff.18 Failure to address such available information violates DPS' "ironclad obligation" and is sufficient basis for the contention's dismissal. See Section IV.C, supra.

DPS asserts that "Applicant has failed to demonstrate that it meets" the Regulatory Guide conditions for use of containment overpressure." DPS Petition at 6-7. Contrary to the assertion, Entergy clearly did "demonstrate" satisfaction of applicable portions of Regulatory Guide 1.82, Revision 3, in its July 2, 2004, RAI response, which was docketed as Supplement 8 to the Application. Entergy RAI Response at 1. With respect to Section 2.1.1.2 of the Regulatory Guide, Entergy wrote:

The [VY] NPSH calculations for EPU conditions meet the intent of Regulatory Position 2.1.1.2. The containment pressure required for NPSH is less than the calculated available post-accident containment overpressure. This is demonstrated in Figure 4-6 of Attachment 6 to the [Application]. Figure 4-6 shows approximately 1.5 psi margin between the stepped overpressure credit and the overpressure available. The calculation of available 16 The Application was filed in September 2003 and Revision 3 of the Regulatory Guide was issued in November 2003.

17 Letter from Jay K. Thayer, Site Vice President, to NRC, BVY 04-058, Attachment 1, "Response to Request for Additional Information" (Jul. 2, 2004) ("Entergy RAI Response").

28DPS is on the distribution list for all formal correspondence from Entergy to the NRC Staff concerning VY, and has, to the best of Entergy's knowledge, received copies of the all submittals referenced in this Answer. Indeed, pursuant to a July 2002 Memorandum of Understanding between Entergy and DPS, DPS receives copies of all significant plant documents (excluding financial and personnel records). In addition, DPS has the authority under state law (30 V.S.A. § 206) to request plant information from Entergy. (As recently as September 24, 2004, DPS relied upon that statute to request documents from Entergy purporting to relate to the Application.)

17

overpressure underestimates the expected overpressure, and suppression pool temperature calculations are performed with conservative assumptions to overestimate the expected temperature.

Entergy RAI Response at 177; see also id. at 178. Since what DPS alleges has not been done was in fact done, the contention is demonstrably without factual support and should be rejected.

See, e.g., Oconee, CLI-99-11, 49 NRC at 334.

DPS's specific assertion that VY has failed to demonstrate that the use of containment overpressure is "necessary," DPS Petition at 7, 17, also fails to raise any factual dispute. Entergy clearly demonstrated in the Application the need for containment overpressure credit at EPU conditions. In the safety analysis included in the Application, Entergy discussed the numerous calculations it performed to determine the NPSH requirements for the ECCS pumps and represented that "[t]he NPSH analyses conclude that containment overpressure is needed to meet long-term NPSH requirements." Application, Att. 4, "Safety Analysis Report For Vermont Yankee Nuclear Power Station Constant Pressure Power Uprate" (Sep. 2003) ("PUSAR") at 4-10 (emphasis added). VY also demonstrated that the available containment overpressure is adequate to provide NPSH to the ECCS pumps for all events and provides tables of supporting analyses results. Id., Tables 4-1, 4-2 at 4-16, 17. Not only has DPS failed to address these analyses, it has provided nothing to challenge Entergy's conclusion that containment overpressure is "necessary" at EPU conditions.' 9 19 DPS states that "it is clear that there has been no consideration of the necessary test and no attempt to demonstrate that the 20% uprate is necessary." DPS Petition at 18. Such a statement blithely ignores the above referenced analysis that showed the need for containment overpressure. DPS either did not review or chose to disregard this analysis. In either case, DPS failed to meet its "ironclad obligation" to review this publicly available document and make specific references to the portions, if any, with which it disagreed. See, e.g., 54 Fed. Reg. at 33,170; Shearon Harris, LBP-82-1 19A, 16 NRC at 2076. The contention is, therefore, inadmissible for want of a specific challenge to the Application.

DPS alleges that "[riegarding the necessary test, there is no apparent compelling reason that requires the Applicant to request a 20% power uprate of Vermont Yankee. There is no power shortage in New England.

There is no way that Vermont Yankee's power 20% uprate could be found to be necessary." DPS Petition at 17-18. DPS, of course, confuses the technical need to rely on overpressure to ensure sufficient ECCS pump NPSH during accident conditions with the economic need for the EPU. Such confusion renders DPS's "necessary" argument irrelevant and is surprising in view of DPS's claim in Contention 5 that economic Footnote continued on next page 18

Finally, DPS asserts that VY has failed to show "that plant operations or equipment cannot be 'practicably altered' either by limiting thermal output of the reactor or upgrading ECCS pumps." DPS Petition at 7. It is DPS, however, that has failed to identify any factual basis for its assertion. It is not enough for DPS to assert a "generalized suspicion" that the VY design could be "practicably altered" (i.e., modified), it had the responsibility to identify what "alterations" it believed were practicable that VY failed to consider in the Application. See, e.g.,

McGuire, CLI-03-17, 58 NRC at 424. Thus, DPS failed to submit any factual or legal basis for it claims. 2 0 Moreover, the text of Regulatory Position 2.1.1.2 provides guidance if a facility "design cannot be practicably altered" to conform to Regulatory Position 2.1.1.1.

For certain operating BWRs for which the design cannot be practicably altered, conformance with Regulatory Position 2.1.1.1 may not be possible. In these cases, no additional containment pressure should be included in the determination of available NPSH than is necessary to preclude pump cavitation.

Regulatory Guide 1.82, Revision 3, Regulatory Position 2.1.1.2. This is precisely what VY has done. Having demonstrated (see discussion of RAI Response above) that conformance with Regulatory Position 2.1.1.1 was not possible without taking credit for containment overpressure, it could, alternatively, take such credit and provide containment pressure to no greater level "than is necessary to preclude pump cavitation." DPS has not identified any basis for admission of a Footnote continued from previous page considerations are not to be entertained in determining whether a requested license amendment should be granted.

20 DPS asserts that Entergy "has not shown that it is not possible to modify existing ECCS pumps or provide new ECCS pumps that do not require credit for containment overpressure in order to function." DPS Petition at 19.

However, in light of Entergy's conclusion, based on well documented analysis, that credit for containment overpressure was necessary, see discussion above, DPS needed to do more than vaguely claim that the ECCS pumps could be modified or replaced in order to raise a litigable issue.

19

contention that challenges Entergy's use of containment overpressure in favor of some other, unspecified, "alteration." The contention, therefore, is inadmissible.

B. DPS Contention 2 - NPSH Calculation DPS Contention 2 as submitted reads:

Because of the Current Level of Uncertainty Associated with the Demonstration of the Adequacy of ECCS Pumps, Applicant Has Not Demonstrated That Allowing a Radical Departure from the Defense in Depth Principle Which Prohibits Use of Containment Overpressure to Provide the Necessary NPSH for ECCS Pumps Will Not Constitute a Significant Hazard (10 C.F.R. §50.92) and Will Provide Adequate Protection for the Public Health and Safety as Required by 10 C.F.R §50.57(a)(3).

DPS Petition at 20.

In order to focus the analyses on whether the contention should be admitted, Entergy proposes that the contention be restated incorporating the specific allegations as follows:

Because of the current level of uncertainty associated with the demonstration of the adequacy of ECCS pumps, Applicant has not demonstrated that allowing a radical departure from the defense in depth principle which prohibits use of containment overpressure to provide the necessary NPSH for ECCS pumps will not constitute a significant hazard (10 C.F.R. § 50.92) and will provide adequate protection for the public health and safety as required by 10 C.F.R.

§ 50.57(a)(3), in that:

a) Calculation VYC-0808, Rev. 6, which calculates the effect of strainer and debris losses on the net positive suction head (NPSH) of the ECCS pumps following a LOCA, is not conservative because it contains areas of imprecision and uncertainty; b) The calculation of containment pressure and torus temperature in VYC-0808, Rev. 6, is deficient in that it does not identify the amount of overpressure developed or credited for the station blackout, Appendix R fire events, and anticipated transients without scram, and uncertainty exists within the analytical methods used in the calculation; c) Vermont Yankee's current design basis and licensing basis recognize that containment pressure increases above 20

atmospheric pressure for various plant events, but do not take credit for this increase in pressure to demonstrate that ECCS pumps will function properly and it is inappropriate to abandon this safety margin or defense-in-depth by allowing containment overpressure credit because the calculations and analyses for determining NPSH of the ECCS pumps are uncertain and imprecise.

1. The Contention is Impermissibly Vague Pared of its rhetoric, DPS's second contention boils down to the argument that "Defense in Depth must not be abandoned." DPS Petition at 28. The claim that the "defense in depth" principle is being abandoned by reliance on containment overpressure is backed by a recitation of purported "uncertainties" in the Application and its supporting calculations that allegedly require that containment overpressure remain uncredited. Id.

Other than conclusory assertions of the effects of relying on containment overpressure, DPS provides little, if any, specific, substantive and relevant support for its contention. To the contrary, DPS again ignores the contents of the Application and chooses instead to essentially rely upon selected snippets of industry guidance and personal statements as the basis of its assertions. At the same time, DPS asserts that consistency with the provisions of Regulatory Guide 1.82, Rev. 3, id. at 21, still would not be enough for there to be some undefined "high confidence" in the results. Id. Such vague, and clearly ad hoc, assertions do not meet the Commission's standards for admission of the contention.

For example, DPS asserts that Calculation VYC-808, Revision 6, "is not conservative" because "it does not incorporate all the provisions of Regulatory Guide 1.82, Rev. 3." DPS Petition at 21. However, DPS does not identify how, where, or why VYC-808 is "not conservative." Nor does DPS identify which "provisions" of Regulatory Guide 1.82, Revision 3, VY purportedly did not "incorporate" into VYC-808, Revision 6, or what, if any, effect incorporation of the missing provisions would have on the results of the calculation.

Similarly, DPS's assertion that "[u]ncertainty also exists in the value Applicant uses for containment leakage," DPS Petition at 26, does not identify how much "uncertainty" exists, or 21

why that (unspecified) degree of uncertainty is unacceptable. Equally vague is the assertion that some VY calculations "have a recent history of revision." Id. at 28. Furthermore, DPS strings together a litany of vague terms, such as, "radical departure," id. at 20, "insufficient conservatism," id. at 24, "not complete enough," id., "unacceptable erosion," id. at 28. Without more, these undefined assertions fail the Commission's test for specificity. See 10 C.F.R.§ 2.309(f)(1)(ii); see also, e.g., Calvert Cliffs, CLI-98-14, 48 NRC at 41.

Accordingly, the contention is impermissibly vague and is, therefore, inadmissible.

2. The Contention Lacks Legal and Factual Basis As an initial matter, DPS fails to identify any legal basis for its sweeping assertions.

Instead, DPS claims that the analysis in Calculation VYC-0808 is deficient "because it does not incorporate all the provisions of Regulatory Guide 1.82, Rev. 3." DPS Petition at 21. In so claiming, DPS again confuses guidance in a NRC Regulatory Guide with Commission requirements.

DPS then relies on transcript excerpts from an ACRS meeting as a factual basis for its subsequent assertion that the Regulatory Guide is itself deficient. Id. at 21-23. However, as discussed earlier with respect to Contention 1, the appropriateness of the Regulatory Guide is not at issue here, thus the ACRS colloquy cited by DPS is irrelevant.

On the facts of the contention, DPS has provided absolutely no support for its assertion that crediting containment overpressure as proposed in the Application has any impact on "defense-in-depth," much less causes a "radical departure" from the principle. DPS Petition at

20. DPS simply follows one conclusory assertion with another, claiming that without "sufficient information to adequately bound the uncertainties" in the Application, there "is no reliable basis to justify" the proposed crediting of containment overpressure. Id. Strikingly, DPS failed to identify any specific "uncertainty" it believes is "unquantifiable" or any quanta of "information" 22

it believes is missing from the Application or supporting calculations. Thus, DPS has simply failed to provide any factual underpinning for its contention.

DPS's assertion that Calculation VYC-808, Revision 6, is "not conservative because it does not incorporate all the provisions of Regulatory Guide 1.82, Rev. 3," in addition to being vague and legally irrelevant (see above), is without factual basis for several reasons. First, DPS fails to define "conservative" as used in the contention. In which way should the calculation be more conservative? It is not clear whether DPS seeks, e.g., to require more margin between containment design pressure and the calculated maximum overpressure, calculated overpressure and required NPSH, an increase in strainer clogging parameters, or something else entirely. DPS also overlooks that a "conservative" result is not, as a matter of fact, dependant only on use of a particular methodology, but on other factors such as assumptions of initial conditions and equipment performance (i.e., a conservative calculation methodology could still produce non-conservative results). Thus, DPS failed to establish any factual basis for its asserting VYC-808 is "not conservative."

Equally baseless is DPS's assertion that unless "all the provisions" in Regulatory Guide 1.82, Revision 3 are "incorporated" in VYC-808, the Calculation "is not conservative." DPS Petition at 21. Even assuming the "provisions" to which DPS refers equate to the regulatory position "criteria" stated in Regulatory Guide 1.82, Revision 3, Section C, nothing in the guidance suggests a licensee can or should implement all the criteria, or that it would be "conservative" to incorporate all the Regulatory Guide's "provisions." To the contrary, the Regulatory Guide clearly states that the "guidance, to a great extent, is generic and it may go beyond the currentdesign of some operating reactors." Reg. Guide 1.82, Revision 3 at 9 (emphasis added). Further, the introduction to the Regulatory Guide's Boiling Water Reactor section states that the "adequacy of the combinations of the features and capabilities should be evaluated." Id. at 20 (emphasis added). Thus, a plain reading of the very document cited by 23

DPS is inconsistent with DPS's claim that the Application "is not conservative because it does not incorporate all the provisions of Regulatory Guide 1.82." DPS Petition at 21.

Next, DPS argues that even if Regulatory Guide 1.82, Revision 3, were followed, "there

[still] would not be high confidence in the calculated results." Id. DPS supports its assertion by quoting remarks of ACRS members in approving the Regulatory Guide. Subcommittee Chairman Wallis, although expressing some concerns, clearly stated in the transcript excerpt cited by DPS his thought that publishing Regulatory Guide, Revision 3 was "the right thing to do." DPS Petition at 21. Likewise, DPS cites comments that purportedly "demonstrate" that "important uncertainties in analytical methods still exist" in "the letter recommending the issu[ance] of Regulatory Guide, Rev. 3." DPS Petition at 23-24(emphasis added). DPS makes no effort to explain why the ACRS would approve issuance of document containing the number and magnitude of deficiencies DPS asserts.

Moreover, DPS has failed to identify any connection between the Application and the purported deficiencies in Regulatory Guide 1.82, Revision 3. Indeed, since DPS claims that Entergy did not follow the Regulatory Guide, DPS Petition at 21, it is difficult to understand how any deficiencies in the guidance provided by the Regulatory Guide could be found in the Application. In any event, DPS failed to show how purported deficiencies in the "three-region two-phase conical jet model," DPS Petition at 22, "zone of influence (ZOI) models," id. at 23, or consideration of "chemical reactions," id., have any relevance the Application or supporting calculations. DPS again provides no factual basis for the contention.

Similarly, DPS fails to provide any specific factual basis for its assertions that purported deficiencies in "ECCS pump adequacy," DPS Petition at 24, "containment leakage," id. at 26, and "containment pressure and torus temperature calculations," id., require rejection of the Application. Instead of citing "specific sources and documents" in support of its assertions and information to show a genuine dispute exists on a "material" issue of fact, see 10 C.F.R. 24

§§ 2.309(f)(l(ii), (iii), DPS provides nothing more that its own assertions that more "margin should be provided," DPS Petition at 26, that "containment leakage is underestimated," id., and regardless of verification of VY's calculations, unacceptable "uncertainty will still exist." Id. at

27. Without specific bases, the contention is little more than speculation based on "generalized suspicions" and inadmissible. See, e.g., McGuire, CLI-03-17, 58 NRC at 424.

Other factual claims made in the contention are also erroneous. For example, DPS's assertions that NPSH testing was performed for "only one of the four residual heat removal pumps" and that "the tests of the residual heat removal ("RHR") pumps were not complete enough," DPS Petition at 24, is demonstrably wrong. As clearly stated in VYC-808, there "is a separate set of test data for each of the two Core Spray pumps and the four RHR pumps delivered" to VY. VYC-808, Revision 6 § 2.1. The calculation further states At [VY]'s request, the pump vendor performed additional NPSH evaluations for the RHR and Core Spray pumps in order to provide a more rigorous basis for interpolating between and extrapolating beyond the NPSH data base provided with the pumps. The pump vendor supplemented the data supplied for each pump with additional and more extensive data for the same or similar pumps obtained from their archives.

VYC-808, Revision 6 § 2.1. In addition to the individual pump testing, "NPSH tests were also performed on one of the four RHR pumps" to establish the slope and shape of NPSH vs. Total Dynamic Head (TDH) curve." Id. at 2.1.1. Indeed, VY's RHR pump testing far exceeded that normally performed by the vendor. DPS provides no basis for believing that the testing that was done was inadequate or less than required. Likewise, DPS provides no basis for its argument that the purported failure to record "vibration readings" or testing only one of four identical pumps raises any material issue related to EPU.

DPS's assertions regarding the VY Core Spray pumps are likewise without factual support. Although DPS alleges several purported problems with the testing of the VY Core Spray pumps, including the use of curve fitting to extrapolate discrete data into pump curves, 25

DPS Petition at 24-25, DPS conspicuously fails to point out any substantive error either in the resulting pump curves or in the methodology used. Indeed, DPS only postulates that the use of "curve fit programs create an uncertainty in the precision of results." Id. at 25. It is not the potential existence of uncertainty, but whether and how VY accounted for that uncertainty, that is relevant in this proceeding.21 Ultimately, despite all its allegations concerning the pump vendor's tests, DPS has failed to identify any specific error in the calculation of the RHR or Core Spray NPSH or explain how any such error affects operation at EPU conditions. See Turkey Point, LBP-90-16, 31 NRC at 521 & n.12 (an allegation that some aspect of an application is "inadequate" or "unacceptable" alone does not give rise to a genuine dispute). Thus, these assertions fail to provide any factual basis for the contention.

Also demonstrably wrong is DPS's assertion that the "PUSAR is deficient" because it does not identify the containment overpressure "developed or credited for the SBO [station blackout], Appendix R fire events and ATWS [anticipated transients without scram]." DPS Petition at 26. Curiously, DPS admits that "the NRC staff has received this information through data requests." Id. Indeed, the PUSAR specifically discusses the NPSH analyses for loss of coolant accidents, ATWS, SBO, and Appendix R fire events. See Application, Att. 6, "PUSAR"

§ 4.2.6. In its response to RAI SPSB-C-3, Entergy stated that "[t]hese isolation events have been considered" and referenced the applicable PUSAR section. Entergy RAI Response at 145.

Thus, DPS's assertion that the analyses for SBO, ATWS, and Appendix R events do not exist is demonstrably and admittedly wrong. Apparently, DPS's argument is that it "appears NRC is only independently verifying the LOCA calculations. If this is the case, this will leave uncertainty regarding the accuracy of the SBO, Appendix R and ATWS calculations." DPS 21 Likewise, DPS states that "there is no indication of accounting for instrumentation inaccuracies in test instruments," id at 25, but does not describe the extent of instrumentation inaccuracies that it claims may exist or their relevance.

26

Petition at 27. However, for purposes of this proceeding, what matters is whether DPS can point to any deficiency in Entergy's calculations, not whether the NRC Staff has independently verified them. Finally, the DPS assertion that there is "insufficient conservatism" associated with the VY NPSH calculations, DPS Petition at 24, is without basis. Contrary to the claim, the calculations supporting the Application contain adequate and appropriate conservatism for a calculation of this type. VY explicitly identified the following conservatisms in the NPSH calculation:

• Conservatism in the Torus Pressure Calculation;

• Conservatism in the Suppression Pool Water Level Calculation;

• Conservatism in the Vapor Pressure Calculation; and

• Conservatism in the Head Loss Calculation Entergy RAI Response at 151-54. VY calculated that the "overall effect of all the terms is thus on the order of 5 ft in available NPSH, or 2.1 psia." Id. at 154. Nowhere does DPS challenge this result or suggest an alternative value. The assertion, therefore, ignores available information and fails to identify any dispute with the Application. DPS violation of its "ironclad obligation" to review the information it had in its possession in itself is ample justification for dismissing the contention.

For all the above reasons, the contention is inadmissible.

C. DPS Contention 3 - Design Basis "Cherry-Picking" DPS Contention 3 as submitted reads:

Because Applicant Is Voluntarily Seeking A Change In Design Or Licensing Basis, It Should Comply With Current, More Restrictive Practices Which Relate to the Proposed Design or Licensing Basis Change in Order to Demonstrate That It Will Provide Adequate Protection to the Health and Safety of the Public As Required By 42 U.S.C. §2232(a).

DPS Petition at 28.

27

In order to focus the analyses on whether the contention should be admitted, Entergy proposes that the contention be restated incorporating the specific allegations as follows:

Because Applicant is voluntarily seeking a change in design or licensing basis, it should demonstrate that it will provide adequate protection to the health and safety of the public as required by 42 U.S.C. § 2232(a) by complying with current, more restrictive practices which relate to the proposed design or licensing basis change, i.e.:

a) Evaluating the containment and its appurtenances under the current criteria for single active failure, which include check valve movement, spurious valve movement and single inappropriate operator action as single active failures, and b) Demonstrating that the containment isolation valves will satisfactorily retain containment pressure for a period up to 50 hours5.787037e-4 days <br />0.0139 hours <br />8.267196e-5 weeks <br />1.9025e-5 months <br /> following an earthquake using current seismic analysis standards.

1. The Contention Impermissibly Challenges Commission Regulations Contention 3 is but a blunt attempt to utilize the licensing hearing process to rewrite the regulatory requirements applicable to VY. DPS's key assertion is that where changes to the design or licensing basis2 2 are made "voluntarily," such as the EPU, the licensees seeking the changes "should then meet current more restrictive" regulatory requirements. DPS Petition at

29. This proposition, offered without any supporting authority, is nothing but a demand that the ASLB devise new, "more restrictive" regulatory requirements and impose them on VY. The contention is, therefore, a challenge to existing regulations regarding design and licensing basis maintenance, change, and approval processes; see, e.g., 10 C.F.R. §§ 50.59, 50.90, 50.92, 50.109. Even more fundamentally, the contention represents an attempt to enlarge the powers delegated to the Board by the Commission, see 10 C.F.R. §§ 2.319, 2.321; it also conspicuously 22 DPS's parenthetical that design basis and licensing basis "are used synonymously" in its Petition, DPS Petition at 29, displays a fundamental misunderstanding of these two important, and quite distinct, regulatory concepts.

See, e.g., 10 C.F.R. § 50.2.

28

ignores the prohibition against litigating Commission rules and regulations in a licensing proceeding. See 10 C.F.R. § 2.335(a). The contention is, therefore, grossly deficient and should be rejected.

DPS's disregard for the "backfit rule," 10 C.F.R. § 50.109, is particularly noteworthy, since the purpose of that regulation is to address the situation that DPS asserts exists here.

Backfitting is defined, inter alia, as "the imposition of a regulatory staff position interpreting the Commission's rules that is either new or different from a previously applicable staff position" after the date of issuance of the operating license for the facility." 10 C.F.R. § 50.109(a)(1)

(emphasis added). The rule also states that the Commission "shall require backfitting of a facility only when it determines . . . that there is a substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit."

Id. § 50.109(a)(3). 2 3 DPS does not address the backfit rule nor provides an explanation why the rule would not apply here. The contention, therefore, challenges the Commission's criteria for forcing new or different requirements on licensees and should be rejected.

2. The Actions that the Contention Seeks are only Appropriate, if at all, in the NRC Staff Review of a Propose License Amendment and thus may not be Raised in a Licensing Hearing DPS's sole support for its contention is a reference to an "approach" described in Regulatory Guide 1.18324 for the NRC Staff review of an issue entirely unrelated to the EPU Application. DPS Petition at 30. That approach, as interpreted by DPS, suggests that "the NRC staff may apply more restrictive, current practices" for "voluntary" changes to a facility's design bases. Id. As only the Application and not the NRC Staff's review thereof is within the scope of this proceeding, the contention is inadmissible.

23 The rule also contains the criteria for an exception to the backfiring rule should such action be required to safeguard public health and safety. See 10 C.F.R. §§ 50.109(a)(4)(i)-(iii).

24 Regulatory Guide 1.183, "Alternative Radiological Source Terms For Evaluating Design Basis Accidents At Nuclear Power Reactors" (July 2000).

29

Furthermore, the approach described in Regulatory Guide 1.183 is limited to guidance on "acceptable applications of alternative source terms," an issue not presented in this proceeding.

Regulatory Guide 1.183 at 1. Thus, by its own terms, the guidance 25 in Regulatory Guide 1.183 is not applicable to this proceeding. DPS does not argue otherwise.

DPS also misinterprets the portion of Regulatory Guide 1.183 it relies upon. The relevant text of the Regulatory Guide reads The characteristics of the ASTs and the revised dose calculational methodology may be incompatible with many of the analysis assumptions and methods currently reflected in the facility's design basis analyses. The NRC staff may find that new or unreviewed issues are created by a particular site-specific implementation of the AST, warranting review of staff positions approved subsequent to the initial issuance of the license. This is not considered a backfit as defined by 10 C.F.R. 50.109, "Backfitting." However, prior design bases that are unrelated to the use of AST, or are unaffected by the AST, may continue as the facility's design basis.

Regulatory Guide 1.183 at 21-22. First, the cited language does not say, as DPS claims, that the "NRC staff may apply more restrictive, current practices." See DPS Petition at 40. Rather, only if a new dose calculation methodology is "incompatible" with "analysis assumptions and methods currently reflected in the facility's design basis," the situation may warrant "review of staffpositions" approved subsequent to the initial issuance of the license. Regulatory Guide 1.1 83 at 22 (emphasis added). A review by the NRC Staff of its own licensing positions is quite different from the imposition of new regulatory requirements on a licensee.

Second, DPS concedes that even under its interpretation of the guidance in Regulatory Guide 1.183, the NRC Staff action is purely discretionary (i.e., the "NRC staff may apply" new requirements). DPS Petition at 30, emphasis added. However, discretionary Staff use of the recommendations in a Regulatory Guide is only pertinent to the Staffs review of a license 25 As discussed above in connection with Contention 1, even if Regulatory Guide 1.183 were germane to this proceeding, the approaches it describes would not be regulatory requirements, and would not be binding.

30

application, an issue not cognizable in a licensing proceeding. See, e.g., LouisianaPower &

Light Company (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5 (1985);

CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI 12, 11 NRC 514, 516-17 (1980). Therefore, the recommendations in Regulatory Guide 1.183 provide no basis on which to found an admissible contention.

3. The Contention Lacks Factual Basis The elements of the Application to which DPS would impose a "backfit" by the ASLB are only vaguely asserted in Contention 3 and are not factually supported. DPS asserts that Entergy "has not evaluated the containment and its appurtenances" to "current" single failure criteria. DPS Petition at 31. DPS also asserts that the "other area in which current practices must be applied is the seismic analysis of the reactor containment. Id. DPS, however, provides no basis for "cherry-picking" these two design functions for ad hoc application of requirements beyond those required by the Commission.

As to single failure, the Application describes no changes in the VY single failure criteria because the EPU does not impact or require a change to the existing single failure design basis.

Single failure following EPU implementation will remain "considered in the design of certain systems" and "presumed in the evaluation of incidents to investigate the ability of the station to respond in the requires manner under degraded conditions." UFSAR at 1.2-13. Further, single failures of "passive equipment are assumed sometimes to be the causes of accidents." Id. Heat removal systems "shall be adequate to prevent fuel clad damage, assuming any single active or passive failure. Id. at 1.5-3. Thus, DPS's assertion regarding single failure is factually incorrect and provides no basis for the contention.

DPS asserts that the "other area in which current practices must be applied is the seismic analysis of the reactor containment" because "newer nuclear plants" in the region "have significantly higher SSE accelerations" than VY. DPS Petition at 31. DPS bases its assertions 31

largely on statements of the Vermont State Geologist who purportedly "questions the adequacy of the Applicant's containment seismic analysis." Id. at 32. These assertions are without factual or legal basis and provide no support to the contention.

The State Geologist's letter does not challenge VY's compliance with its seismic design basis. DPS Petition, Exh. 24 at 1. Instead, the State Geologist compares the VY ground motion criteria against those in another, allegedly more stringent code:

Though not adopted in Vermont yet, the International Building Code (IBC) is the governing code in 26 states, the District of Columbia and for the Department of Defense. The IBC recommends peak ground accelerations comparable to those by the USGS for a return period of 2500 years (2% probability of exceedance in 50 years).

Id. at 2. It is only when comparing the VY seismic design parameters to IBC seismic provisions, which are not Commission regulations - indeed, which have not been adopted even by the State of Vermont - that the State Geologist's "concern" appears. See id. 26 Neither DPS nor the State Geologist provide any factual or legal basis for seeking imposition of inapplicable the IBC criteria or the higher "SSE accelerations" at VY.27 The assertion, therefore, does not provide any support for the contention.

For all the above reasons, the contention is inadmissible.

D. DPS Contention 4 - Operator Actions DPS Contention 4 as submitted reads:

26 The State Geologist's letter also references the Building Officials and Code Administrators' (BOCA) National Building Code and the United States Geological Service ("USGS") as providing alternative estimates of seismic ground motion. Id. It is unclear whether the State Geologist believes that those sources would predict accelerations at the VY site that would exceed the licensing basis for the plant. In any case, neither the USGS probabilistic seismic hazard estimates nor the BOCA National Building Code have any relevance to VY and the State Geologist does not appear to contend otherwise.

27 A similar attempt to apply the use of IBC seismic requirements in a licensing proceeding has been recently turned down by a Licensing Board. See Private Fuel Storage L.L.C (Independent Spent Fuel Storage Facility),

LBP-03-08, 57 NRC 293, 366-67, 495-96 (2003), affirmed on other grounds, CLI-03-08, 58 NRC I1 (2003).

32

The Change in Design Basis to Use the Reactor Containment as an Engineered Safety Feature to Guarantee at Least a Minimum Pressure for ECCS Pump Performance Violates the Lessons-Learned Regarding Human Factors for Operators in the Three Mile Island Event and Creates a Contrary and Confusing Operating Requirement That Will Create a Significant Hazard (10 C.F.R.

§50.92) and Will Not Provide Adequate Protection for the Public Health and Safety as Required by 10 C.F.R. §50.57(a)(3).

DPS Petition at 33.

In order to focus the analyses on whether the contention should be admitted, Entergy proposes that the contention be restated incorporating the specific allegations as follows:

The change in design basis to use the primary containment as an engineered safety feature to guarantee at least a minimum pressure for ECCS pump performance violates the lessons-learned regarding human factors for operators in the Three Mile Island event and creates contrary and confusing operating requirements in that:

a) Operators will be required to reduce containment pressure, but will also be required to retain a minimum amount of pressure, and b) The minimum pressure to retain is not a constant amount, but varies for different time steps and accident sequences.

Such confusion will create a significant hazard (10 C.F.R. § 50.92) and will not provide adequate protection for the public health and safety as required by 10 C.F.R. § 50.57(a)(3).

1. The Contention is Impermissibly Vague DPS's sweeping allegations of operator "confusion" in the process of establishing and maintaining containment overpressure fall far short of the Commission's requirement for specific, concise contentions accompanied by supporting facts that are sufficient to show that a genuine dispute exists. See 10 C.F.R. §§ 2.309(f)(1)(ii), (iii). In this contention, DPS asserts only that "operators will be placed in a confused position" and that Entergy has proposed an "unacceptable human factors paradigm for operators" in the Application. DPS Petition at 33.

33

Such conclusory and diffuse assertions grossly fail to satisfy the Commission's "strict contention rule," Oconee, CLI-99-11, 49 NRC at 334, and the contention must be rejected. 28

2. The Contention Lacks Factual Basis DPS has also failed to identify any relevant and substantive factual support for the contention. Instead, DPS has chosen to largely rely on: 1) snippets of text from documents unrelated to the Application and irrelevant to EPU and 2) demonstrably erroneous conclusions based on misunderstood or misconstrued VY analyses and operating practices. Further, DPS has ignored numerous relevant VY analyses and operating procedures containing information explicitly counter to DPS's allegations. DPS's assertions, therefore, must be rejected as lacking support, since they are "based on little more than speculation." Millstone, CLI-0 1-24, 54 NRC at 358.

First, DPS cites the well-known conclusion that "human factors" were "a primary contributor" to the March 1979 Three Mile Island event. DPS Petition at 33. DPS fails, however, to provide any connection between the 1979 and 1980 TMI reports it cites and the Application for EPU operation at VY. Further, to the extent that the cited TMI findings may once have had relevance to VY (and other nuclear plants), DPS simply ignores the post-TMI regulatory changes that have addressed the deficiencies identified therein. For example, operator 28 DPS states, without any citation or supporting reference, that "[olperators are trained, and have been trained for the past 32 years at Vermont Yankee, to take action to reduce containment pressure if it increases (for any reason) a small amount over atmospheric pressure. If the containment overpressure credit were granted, these operators would be required not only to concentrate on reducing containment pressure, but would also be required to retain a minimum amount of pressure," and that this would create "confusion for operators." DPS Petition at 35. Such an unsubstantiated claim ignores the extensive training and qualifications of the plant's licensed plant operators. For, contrary to DPS's unsupported speculation, the VY operators are trained to control containment pressure excursions during an event using containment sprays and other techniques as determined by plant conditions. See EOP-3 "Primary Containment Control."

Under the above referenced July 2002 Memorandum of Understanding between Entergy and DPS, DPS has unrestricted access to the VY facility, "up to full-time, on-site presence of one or more designated individuals from the Department." Pursuant to that agreement, Mr. Sherman, DPS's technical advisor, enjoys free access to the VY control room and to the EOPs, so he should be aware of the existence of the provisions of EOP-3 and other plant procedures.

34

training requirements have integrated the team concept, team training is given to operating crews, a control room human factors review is now performed, etc. See, e.g., Regulatory Guide 1.97, Revision 3, Instrumentationfor Light-Water-CooledNuclear PowerPlants to Access Plant and Environs Conditions Duringand Following an Accident (Rev. 3, 1980) for some of the post-TMI changes.

DPS next asserts that VY operators would suffer "confusion" because the containment "pressure crediting scheme is complicated for operators to grasp in the middle of emergencies."

DPS Petition at 35. DPS argues that VY intends to implement "too small a band" of containment pressures to be able to be maintained by an operator in the event of an accident. Id. at 37.

Wholly apart from a total absence of citation or support, 29 these DPS conclusions are based on misinterpretation of VY design information and misunderstanding of the VY Emergency Operating Procedures.

DPS incorrectly relies on engineeringcalculations as a basis for its conclusions regarding procedures governing operatoractions. For example, DPS underscores the "confusion" that is created by the fact that the containment pressure credited during postulated events varies over a number of small "pressure steps" as the event unfolds. DPS Petition at 35-36. This observation, indeed, and similar ones for other accident sequences constitute the entire basis for DPS's conclusion that the pressure credit follows a "complicated" scheme. Id. at 35. The small pressure steps to which DPS refers, however, are calculatedvalues drawn from the NPSH calculation. 30 DPS fails to recognize or acknowledge that operators do not perform actions based on VYC-808 or any other calculation, but act in accordance with approved operating procedures; in the case of an emergency event, the Emergency Operating Procedures ("EOPs").

29 Nothing in the resume of Mr. Sherman, attached to his Affidavit in support of the DPS Petition, suggests that he has any expertise or experience in reactor operations.

30 Calculation VYC-808, "Core Spray and Residual Heat Removal Pump Net Positive Suction Head Margin Following a Loss of Coolant Accident With Fibrous Debris on the Intake Structure," CCN 06 to Revision 6 (July 20, 2004) ("VYC-808").

35

DPS claims that it is "unacceptable" that Entergy "does not plan to change EOPs to incorporate the new proposed design basis of credited overpressure." DPS Petition at 38.

However, for the four accident scenarios cited by DPS (LOCA, ATWS, station blackout and Appendix R fire, see id. at 35-36), it is clear that the EOPs do not require modifications to incorporate taking credit for overpressure.

Station blackouts and fires are addressed by transient procedures, not the EOPs, and the responses to these events do not require using "pressure steps," but are determined by torus water temperature and required pump flow. For an ATWS or a LOCA event, operators at VY are currently trained to control containment pressure during the event using containment sprays and other techniques. Under EPU operations, the EOPs direct operators to take specified actions, as warranted by plant conditions. These actions are set out in charts that are part of the existing EOPs and to which the operators refer for instructions. The EOPs establish the measures the operators need to take to maintain containment pressure during an event without need to refer to the "small" pressure steps predicted by the calculation. Since no new operator actions need to be defined in the EOPs to maintain the required overpressure, the EOPs need not be modified.

It is thus evident that DPS' charges of deficiencies in the EOP, such as the assertions that "it is unacceptable" that VY "does not tell the operator he must maintain a set level of overpressure" and that it "will not have its operators attempt to maintain [the design basis pressure] in accidents" are baseless and the contention is without factual support. 3' E. DPS Contention 5 - Economics/Need For Power DPS Contention 5 must be rejected because it is raises issues wholly outside the scope of an extended power uprate proceeding. The contention as submitted is also factually unsupported 3" DPS's assertions regarding the failure of the NRC Staff to investigate properly the possibility of containment venting and to review EOP revisions, DPS Petition at 40-41, are merely challenges to the NRC Staffs discharge of its regulatory duties, an issue not cognizable in a licensing proceeding. See, e.g.. Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 NRC 5 (1985); CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant, Units 1,2, 3, and 4), CLI-80-12, 11 NRC 514, 516-17 (1980).

36

as Entergy has not based any part of its Application on, or made any claim of, "economic or need for power considerations" in connection with taking credit for containment overpressure. Thus, by the terms of the plain text of the contention, DPS failed to identify, much less provide a factual basis for, any admissible issue.

DPS Contention 5 as submitted reads:

To the Extent Applicant Is Claiming That Use of Containment Overpressure as a Credit to Meet NPSH Is Necessary and Failure to Use Is Impracticable Because of Economic or Need for Power Considerations, its Request Should Be Rejected as Contrary to the Atomic Energy Act (42 U.S.C. §2232).

DPS Petition at 40.

In order to focus the analyses on whether the contention should be admitted, Entergy proposes that the contention be restated incorporating the specific allegations as follows:

To the extent applicant is seeking to demonstrate, as required by Rev. 3 of Regulatory Guide 1.82, that use of containment overpressure as a credit to meet NPSH is necessary and failure to use it is impracticable because of economic or need for power considerations, its request should be rejected as contrary to the Atomic Energy Act (42 U.S.C. § 2232).

Contention 5 starts from the premise that Regulatory Guide 1.82, Revision 3, "authorizes" the use of containment overpressure "when it is 'necessary' or when it would be

'impracticable' to alter the plant to meet NPSH requirements." DPS Petition at 41. From that premise, DPS concludes that in order to meet the conditions set in the guide, Entergy would need to invoke need for power or cost considerations, which according to DPS would be impermissible. Id.

As discussed above in response to Contention 1, compliance with the guidelines in Regulatory Guide 1.82, Revision 3, is not required by NRC regulations and the options suggested by the Regulatory Guide for complying with the intent of the General Design Criteria 37

("GDC") and the criteria for using them are not mandatory. Therefore, the argument propounded by DPS fails ab initio since it is based on a faulty premise.

Moreover, DPS misinterprets the language in the Regulatory Guide. As discussed above in responding to Contention 1, the "necessary" and "practicably altered" criteria are technical, not financial, in nature. Even though DPS opines that "[tihe normal meaning of the terms implicates economic considerations," DPS Petition at 40, there is nothing in the Regulatory Guide or Entergy's Application that invokes economic factors as the justification for seeking to take credit for containment overpressure. Entergy's technical explanation for the necessity of doing so stands unchallenged and the DPS economic arguments are wholly speculative.

Finally, even if Entergy sought to invoke economic factors, it is incorrect to claim that economic considerations cannot be taken into account in deciding how to meet a particular regulatory requirement. Even with respect to regulations, the NRC will consider granting exemptions from regulatory requirements where compliance would result in undue hardship or other costs significantly in excess of those contemplated when the regulation was enacted. 10 C.F.R. § 50.12(a)(iii); see also, PhiladelphiaElectric Company (Limerick Generating Station, Unit 1), DD-86-1, 23 NRC 39, 46 (1986) ("[T]he Commission may give appropriate consideration to the effect on the public interest of any delay from not granting an exemption, including power needs and delay costs to the applicant and to the consumer.") A fortiori, when a regulatory guide offers alternative means of satisfying the intent of the regulations, it is entirely appropriate for a licensee to select the most cost-effective way of doing so.

Thus, Contention 5 raises no admissible issues and must be rejected.

VI. APPLICABLE HEARING PROCEDURES DPS argues at length that any adjudicatory hearing that is held on the application should be conducted using the formal hearing procedures in Subpart G to 10 C.F.R. Part 2. DPS Petition at 42-47. DPS would have "a full hearing, with live witnesses and cross-examination of 38

those witnesses, and full discovery with document production requests and depositions." Id. at

43. However, the revised rules of practice recently implemented by the Commission are specifically intended to eliminate the use of such formal procedures except in exceptional cases and instead conduct licensing hearings under the informal procedures of Subpart L. Formal hearings and full discovery are to be granted in only four situations: "(I) Licensing of uranium enrichment facilities, (2) initial authorization of the construction of a HLW geological repository, and initial issuance of a license to receive and possess HLW at a HLW geological repository, (3) enforcement matters (unless the parties agree to use more informal hearing procedures), and (4) parts of nuclear power plant licensing proceedings where the presiding officer by order finds that resolution of an admitted contention necessitates resolution of: (a) issues of material fact relating to the occurrence of a past activity, where the credibility of an eyewitness may reasonably be expected to be at issue, and/or (b) issues of motive or intent of the party or eyewitnesses material to the resolution of a contested factual matter." 69 Fed. Reg. at 2,191; 10 C.F.R. § 2.310 (a) through (d).

Clearly, none of the four situations that call for formal hearings and full discovery are present in this proceeding and DPS has provided no support for their applicability. DPS alleges that "Vermont has demonstrated a keen and continuing interest in its one nuclear power plant" and that "[m]any Vermonters are very interested in and concerned about the proposal to increase the level of nuclear power output from the State's only commercial nuclear plant." DPS Petition at 42, 43. DPS argues that formal hearings and full discovery are "essential" to assure the public "that whatever decision is reached, there has been a full and public airing of the important safety issues which this proposal raises." Id. at 43. However, in establishing the informal hearing and streamlined discovery procedures in the new rules, the NRC considered - and rejected -

arguments that formal hearings and full discovery were necessary "in order to build public confidence." 69 Fed. Reg. at 2,192. Simply put, public concerns or state or local governmental 39

interest in the subject of a licensing proceeding are not valid grounds for invoking formal hearing and full discovery procedures.

DPS further argues that the formal hearing and full discovery procedures of Subpart G are appropriate because the issues involved in the contentions it raises are "complex and controversial." DPS Petition at 43-44. However, the Commission has rejected complexity of the issues as a factor requiring formal hearings and full discovery:

[T]he Commission believes that the complexity and number of issues in nuclear power plant licensing proceedings may not, per se, lead ineluctably to the conclusion that cross-examination is necessary to ensure a fair and adequate hearing on the contested matters. Rather, it is the nature of the disputed matters themselves that most directly and significantly bears on whether the techniques of formal hearings such as cross-examination are appropriate.

69 Fed. Reg. at 2,196.32 DPS also argues that there are "material fact disagreements related to past activities" that must be probed by cross examination, including

1) how did Applicant calculate post-accident conditions in making its determination of the level of post-accident containment pressure and was this calculation appropriate?, 2) did testing conducted of the performance of ECCS pumps following a LOCA leave a large area of uncertainty regarding NPSH including the impact of strainers and debris on NPSH?, 3) did the ACRS actually conduct the statutorily required safety review of the portion of Regulatory Guide 1.82, Revision 3, which altered the long-standing NRC prohibition against using containment overpressure as a credit to meet NPSH for ECCS pumps following a LOCA?, 4) does defense in depth as traditionally developed by the NRC and used in licensing decisions prohibit allowing failure of one physical barrier, in this case the reactor containment, to result in 32 In fact, the amendments to the Rules of Practice issued for public comment included a criterion that would have called for the use of the hearing procedures of Subpart G in those reactor licensing proceedings that involve a large number of complex issues. In the final rule, however, the Commission deleted this criterion, reasoning that it may not be well suited for determining whether the procedures of Subpart G should be used in a given proceeding. 69 Fed. Reg. at 2,204-05.

40

the failure of the ECCS pump function which in turn will fail a second physical barrier, the fuel cladding, and if so is the level of uncertainty associated with the calculation of post-LOCA NPSH and containment performance sufficiently high to make reliance on probabilistic risk analyses (PRA) instead of defense in depth, unacceptable? and 5) has Applicant provided sufficient evidence to prove that meeting NPSH requirements without taking credit for containment overpressure by altering the plant or the proposed level of uprate is 'impracticable' or that the use of containment overpressure is necessary?

DPS Petition at 44-45.

All the facts that DPS alleges to be in dispute, however, are technical issues that do not require a formal hearing and full discovery to elucidate. They are definitely not the type of contested issues as to which the Commission believes that full adjudicatory hearings are required. In the Commission's judgment, the issues that warrant full hearings "are issues relating to the occurrence of a past event material to the issue in controversy, where the credibility of an eyewitness (not an expert witness without first-hand knowledge) may reasonably be expected to be at issue, as well as issues of motive or intent of the party or eyewitness." 69 Fed. Reg. at 2,196; see also id. at 2,205. Nothing raised by DPS in its Petition fits the description of the issues that warrant resort to Subpart G procedures. Indeed, if the types of issues alleged by DPS were sufficient to justify formal hearings and full discovery, the exception would swallow the rule. See id. at 2,204. Accordingly, if a hearing is held on any of the contentions raised by DPS, the hearing on such contention should be governed entirely by the procedures of Subpart L.

VII. REQUIREMENTS FOR LATE-FILED CONTENTIONS Noting that the NRC is conducting an Engineering Assessment of VY, DPS requests that "amendments to the contentions, bases and supporting evidence and the request for adjudicatory hearings" be allowed "within 30 days of the public availability of independent engineering inspection report and supporting documentation without the constraints imposed by 10 CFR

§§2.309(c) and (f)(i)(ii) and (iii)." DPS Petition at 50.

41

DPS's request is contrary to an express Commission ruling on this docket, which found the request unwarranted. Entergy Nuclear Vermont Yankee LLC andEntergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Order (August 18, 2004). See also letter from Chairman Nils J. Diaz to the Honorable James E. Douglas, dated September 1, 2004.

Entergy opposes the request on the grounds cited by the Commission and also because it is speculative, unnecessary and prejudicial to Entergy's rights.

DPS's request is speculative because there in no basis for anticipating that the results of the NRC inspection would yield information that would warrant (I) amending any contentions that DPS has sought to raise in this proceeding, or (2) filing new contentions. Holding open the period for filing new or amended contentions because of the possibility that new matters may come up would waste time without promoting hearing efficiency.

The request is also unnecessary because the Commission's requirements for submittal of late-filed contentions are well established. See 10 C.F.R. §§ 2.309(c)(1) and 2.309(f)(2). 3 3 If the 33 1 0 C.F.R. § 2.309(c)(1) reads: "Nontimely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board designated to rule on the request and/or petition and contentions that the request and/or petition should be granted and/or the contentions should be admitted based upon a balancing of the following factors to the extent that they apply to the particular nontimely 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(f)(2) states in relevant part: "...[C] ontentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that--

(i) The information upon which the amended or new contention is based was not previously available; Footnote continued on next page 42

results of the NRC Engineering Assessment identify new matters or information that would support the filing of new or amended contentions relevant to the Application, these regulations would apply, and no waiver of the regulatory requirements would be necessary. Conversely, if DPS were unable to meet the criteria in 10 C.F.R. §§ 2.309(c)(1) and 2.309(f)(2), it should not have been granted the extension of time in which to file new or amended contentions.

DPS's request is prejudicial to Entergy in that, if granted, it would extend potential hearing schedules by an indefinite period of time, and thus delay completion of this proceeding. 34 WIII. CONCLUSION For the reasons stated above, DPS has failed to offer any admissible contention in this proceeding. Therefore, its request for hearing should be denied.

Respectfully submitted, Jay E. Silberg Matias F. Travieso-Diaz Douglas J. Rosinski SHAW PITTMAN LLP 2300 N Street, N.W.

Washington, DC 20037-1128 Tel. (202) 663-8063 Counsel for Entergy Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.

Dated: September 29, 2004 Footnote continued from previous page (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."

34 DPS indicates that the NRC Engineering Assessment "is scheduled for release in mid-September." DPS Petition at 50. However, as of the date of filing of this Answer (September 29, 2004) the report had not yet been released. Entergy understands that the typical practice of the Staff is to issue an inspection report approximately thirty days after the public "exit meeting" on the inspection. The exit meeting on the Engineering Assessment has not-yet been scheduled.

43

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board

)

In the Matter of )

) Docket No. 50-271 ENTERGY NUCLEAR VERMONT )

YANKEE, LLC and ENTERGY ) ASLB No. 04-832-02-OLA NUCLEAR OPERATIONS, INC. )

(Vermont Yankee Nuclear Power Station) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of "Entergy's Answer to Vermont Department of Public Service Notice of Intention to Participate and Petition to Intervene" were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 29th day of September, 2004.

• Administrative Judge *Administrative Judge Alex S. Karlin, Chair Lester S. Rubenstein Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 ask2(inrc.gov lesrrr~msn.com

• Administrative Judge Atomic Safety and Licensing Board Dr. Anthony J. Baratta Mail Stop T-3 F23 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ajb5(anrc.gov

• Secretary Office of Commission Appellate Att'n: Rulemakings and Adjudications Staff Adjudication Mail Stop 0-16 Cl Mail Stop 0-16 Cl U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 secyenrc.gov, hearingdocketgnrc.gov

• Sarah Hoffman *Brooke Poole, Esq.

Special Counsel *Robert Weisman, Esq.

Department of Public Service *Marisa Higgins, Esq.

112 State Street - Drawer 20 Office of the General Counsel Montpelier, VT 05620-2601 Mail Stop 0-15 D21 Sarah.Hofinann(state.vt.us U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 bdp~nrc.gov, rmw(dnrc.jov, mch5@nrc.gov

• Anthony Z. Roisman National Legal Scholars Law Firm 84 East Thetford Rd.

Lyme, NH 03768 aroisman~valley.net Matias F. Travieso-Diaz 2