ML052270397

New England Coalition'S Answer Opposing Entergy'S Motion to Dismiss as Moot, or in the Alternative, for Summary Disposition of New England Coalition'S Contention 4

ML052270397
Person / Time
Site:	Vermont Yankee
Issue date:	08/02/2005
From:	Block J New England Coalition
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-271-OLA, ASLBP 04-832-02-OLA, RAS 10308
Download: ML052270397 (24)

Text

/1~ 'A 103 of DOCKETED USNRC August 2, 2005 (4:23pm)

UNITED STATES OF AMERICA OFFICE OF SECRETARY NUCLEAR REGULATORY COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF Before the Atomic Safety and Licensing Board In The Matterof Entergy Nuclear Vermont Yankee, LLC, and Docket No. 50-271 Entergy Nuclear Operations, Inc. ASLBP No. 04-832-02-OLA (Operating License Amendment)

(Vermont Yankee Nuclear Power Station) August 2, 2005 NEW ENGLAND COALITION'S ANSWER OPPOSING ENTERGY'S' MOTION TO DISMISS AS MOOT, OR IN THE ALTERNATIVE. FOR

SUMMARY

DISPOSITION OF NEW ENGLAND COALITION'S CONTENTION 4 New England Coalition, by and through attorney Jonathan M. Block, hereby enters its answer (henceforth "New England Coalition's Answer") opposing Entergy's Motion to Dismiss As Moot, or in the Alternative For Summary Disposition of New England Coalition's Contention 4 (e-filingJuly 13, 2004) (henceforth "Motion to Dismiss').

Pursuant to United States Nuclear Regulatory Commission Rules of Practice

("NRC" Rules), New England Coalition first replies to Entergy's allegations regarding the status of genuine issues of material fact relating to Contention 4. See generally, 10 CFR

§§2.1205 and 2.710. Comment and/or citation to the attached Declaration of Arnold Gundersen Opposing Summary Disposition of New England Coalition's Contention 4, Exhibit 'A' attached hereto (henceforth "Gundersen Declaration"), and to other material On July 25, 2005, the NRC Staff filed an 'answver' supporting Entergy's Motion to Dismiss As Moot, or in the Alternative For Summary Disposition of New England Coalition's Contention 4. The Staff's 'answer' does not provide attach a supporting declaration or statement of alleged material facts no longer in dispute. As the NRC Staffs arguments appear to be entirely cumulative of those put forward by Entergy, New England Coalition incorporates within its opposition to Entergy's motion opposition to the NRC Staff's 'answer'. Hence, whenever "Entergy" is used referring to the arguments in their motion, it should be understood as including the NRC Staff's arguments.

-eMhfte =scY- 0V/I

that form a part of the record of this case are appended to these replies. This section is followed by a statement of facts and law addressing and refuting Entergy's allegations, as Contention 4 is neither moot nor ripe for summary disposition.

I. NEW ENGLAND COALITION'S STATEMENT OF GENUINE ISSUES OF MATERIAL FACT REGARDING CONTENTION 4 Applicants Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (collectively "Entergy") submitted, in support of their Motion to Dismiss, that there are no genuine issues to be heard with respect to the material facts set forth below.

New England Coalition hereby replies to the submission indicating the facts that New England Coalition contends support the existence of genuine issues of material fact in dispute regarding the substance and basis of Contention 4. Where New England Coalition contends that no dispute exists, the statement is followed by the word "ADMITTED";

where the matter remains in dispute, the statement is followed by the word "DENIED" or "ADMITTED IN PART AND DENIED IN PART' or "DENIED INSOFAR AS" and statement and/or reference for the basis of the denial.

1. On August 30, 2004, the New England Coalition ("NEC') sought admission, interalia, of its Contention 4 ("NEC Contention 4'). New England Coalition's Request For Hearing, Demonstration of Standing, Discussion of Scope of Proceeding and Contentions, dated August 30, 2004 at 11. ADMITTED.

2. In NEC Contention 4, NEC asserted that Entergy "cannot assure seismic and structural integrity of the cooling towers under uprate conditions, in particular the Alternate Cooling System cell. At present the minimum appropriate structural analyses have apparently not been done." Id. ADMITTED.

3. The Vermont Yankee Alternate Cooling System ("ACS') provides an alternate means of cooling in the unlikely event that the service water pumps become unavailable. Declaration of George S. Thomas (Ihomas Declaration), para. 6.

ADMITTED IN PART AND DENIED IN PART. The ACS is intended to provide an alternate means of cooling. Whether or not the ACS can actually meet performance criteria under extended power uprate conditions has not been 2

established. In fact, a REOUEST FOR ADDITIONAL INFORMATION-EXTENDED POWER UPRATE.VERMONT YANKEE NUCLEAR POWER STATION (TAC NO.MC0761), July 27, 2005, contains, at page 25, Number 26, the following question:

Reactor Auxiliary Cooling Water Systems (SE template Section 2.5.3.3)

UFSAR Section 10.8 indicates that the deep basin has a water capacity of 1.48 million gallons and that a water inventory of 1.45 million gallons is sufficient to assure seven days worth of ACS cooling capability. Please explain in detail how this conclusion was reached for post-EPU operation, quantifying all water additions and losses that are assumed to occur over this seven day period along with how these values are determined, and how much inventory is required at the end of seven days to satisfy pump net positive suction head (NPSI-I) requirements.

Id

4. The ACS utilizes the north end cell (CT2-1) ("Alternate Cooling System cell') of the West eleven-cell cooling tower (Cooling Tower No. 2) for service water heat removal. Id. ADMITTED.

5. The Alternate Cooling System cell, as well as the adjoining cell (CT2-2), are Seismic Class I structures. Id., para. 7. ADMITTED IN PART AND DENIED IN PART. The Alternate Cooling System Cell and the adjoining cell (CT2-2) are designated as Seismic Class I structures. It remains uncertain that they are and can perform as Seismic Class I structures. See Gundersen Declaration, ¶¶5 through 17, attached to New England Coalition's Answer as Exhibit 'A'.

6. The remaining cells in the West and East cooling towers are Seismic Class II structures. Id. ADMITTED IN PART AND DENIED IN PART. The remaining cells are designated as Seismic. The structural performance qualities of these cells remains uncertain. See Gundersen Declaration, ¶¶5 through 17, attached to New England Coalition's Answer as Exhibit 'A'.

7. The gravamen of NEC Contention 4 is that, before the extended power uprate

("EPU') is approved, which approval is the subject of the instant proceeding, Entergy should be required to perform seismic and structural analyses of the cooling towers under uprate conditions, in particular the Alternate Cooling System cell.

Memorandum and Order, LBP-04-28, 60 NRC 543, 580 (2004). ADMITTED IN PART AND DENIED IN PART AS ENTERGY HAS NOT PERFORMED ITS ANALYSES ON THE COOLING TOWERS IN THEIR NEW MODIFIED CONDITION AND THE ANALYSES IT RELIES UPON WERE NOT BASED ON PHYSICAL EXAMINATION AND FIELD TESTING OF THE TOWERS. See Gundersen Declaration, ¶¶5 through 17, attached to New England Coalition's Answer as Exhibit 'A'.

3

8. Entergy has completed a new structural and seismic analysis of the cooling tower Seismic Class I cells under EPU conditions that takes into account the cooling tower modifications performed as part of the proposed uprate. Thomas Declaration, para.

9. ADMITTED IN PART AND DENIED INSOFAR AS THE ANALYSIS DOES NOT ADDRESS THE ISSUES BEFORE THE BOARD. See Gundersen Declaration, ¶¶5 through 17, attached to New England Coalition's Answer as Exhibit 'A'.

9. The new analysis is contained in the Seismic Calculation, which is attached as Exhibits 2 and 3 to the Thomas Declaration. ADMITTED IN PART AND DENIED IN PART. The new "analysis" is wholly inadequate and incomplete for reasons stated in the Declaration of Arnold Gundersen Opposing Summary Disposition, ¶¶5 through 17, attached to New England Coalition's Answer as Exhibit 'A'.

10. The Seismic Calculation includes structural and seismic analyses for the Alternate Cooling System cell and the adjacent cell. Thomas Declaration, para. 9 and Exhibit 2 thereto. ADMITTED IN PART AND DENIED INSOFAR AS THE ANALYSES ARE NOT COMPLETE AND DO NOT ADDRESS THE SUBSTANCE OF NEC'S CONTENTION 4. See Declaration of Arnold Gundersen, ¶¶5 through 17, attached to New England Coalition's Answer as Exhibit

'A'.

11. ITe Seismic Calculation shows that the cooling tower cell utilized for the Alternate Cooling Systems cell and the adjacent cell are seismically adequate for the design basis loading under EPU conditions. Thomas Declaration, para. 11 and Exhibit 2 thereto, Section 7 at 179. DENIED INSOFAR AS THE PROFFERED ANALYSIS DOES NOT ADDRESS NUMEROUS CONDITIONS SPECIFIC TO THE COOLING TOWERS AT VERMONT YANKEE AND DOES NOT MEET THE SUBSTANCE OF THE CONCERNS ADDRESSED IN NEC'S CONTENTION 4. See Gundersen Declaration, ¶¶5 through 17, attached to New England Coalition's Answer as Exhibit 'A'.

II. DISCUSSION OF LAW AND FACTS PROVING THAT THERE REMAIN GENUINE ISSUES OF MATERIAL FACT IN DISPUTE CONCERNING NEW ENGLAND COALITION'S CONTENTION 4 AND THAT IT IS NEITHER MOOT NOR RIPE FOR

SUMMARY

DISPOSITION.

A. Under NRC Legal Standards, Mootness Does Not Apply Here.

Entergy invokes the notion that New England Coalition's Contention 4 is now moot due to the report that ABS Consulting prepared for Entergy and which are the entire support for the opinions of its declarant/affiant George Thomas. See generally, Entergy's 4

Motion to Dismiss. The standard for mootness is that a justiciable controversy no longer exists. Georgia Institute of Technology (Georgia Tech Research Reactor), LBP-95-19. 42 NRC 191, 195 (1995). This means that the controversy at issue would not be capable of repetition. In the instant matter, not only do justiciable controversies exist regarding the substance and basis of New England Coalition's Contention 4, Entergy's subsequent activities have undermined any resolution its proffered consultant's report could have provided had the report been adequate in the first. See generally Gundersen Declaration at ¶¶ 5-17, and particularly ¶1 1-14; see also the documents cited under I, 3 above.

A number of crucial facts underlying Contention 4, as Mr. Gundersen discusses in his Declaration, have not been addressed in the study Entergy proffered to this Board as satisfying its burden and, thus, mooting the contention. Gundersen Declaration at ¶¶7-10.

Significantly, Mr. Gundersen notes that the ABS Consulting report supporting Mr. Thomas's affidavit/declaration are deficient in that the report fails to address concerns Mr. Gundersen raised in support of the contention. Id. at ¶6. These concerns, which Mr. Gundersen first voiced to Entergy during the Vermont Public Service Board hearings on the proposed Extended Power Uprate, are (1) the cooling towers were modified in the mid-1980s and no seismic analysis was ever conducted on the towers to analyze the effect of fill on the seismic qualification of the towers; (2) the records for any calculations that may have been performed were missing; (3) no information was available on the breaking strength of the "ties", i.e., steel rods connecting the tower cells; (4) no analysis of subsequent modifications on the towers in 1985 was available. Id. at 7, A-C. Significantly, Mr. Gundersen notes that the study at issue now does not utilize field data for the 35-year-old towers; hence, "even if the as-built information has been found, its use on a 35-year old structure is inexcusable."

5

Id. at ¶7D. These are substantial issues that have not been addressed in Entergy's proffered report and Thomas affidavit/declaration. In a seismic event, unless the "ties" cut away, all the towers will fall over and all emergency cooling capacity will be lost in a single action.

The lack of actual field data upon which the analysis that Entergy relies upon is a serious omission that leaves open the question as to how the actual towers at Vermont Yankee will behave under seismic stress when the reactor is operated in extended power uprate mode.

Unless and until such non-academic studies are completed and provided to the parties and Board in this case, the essential issues underlying New England Coalition's Contention 4 are not moot. Id. at ¶7D, 8.

Similar consideration applies to other deficiencies in the ABS Consulting report upon which Entergy's affiant/declarant Mr. Thomas relies. Mr. Gundersen notes that the ABS reports do not indicate that the studies relied upon "consideration of the degrading effects of aging and/or moisture and cooling system chemicals on the wooden structural members, the steel connecting hardware of the cooling towers, and the concrete within the towers." Id. at ¶8. This means that the report not only fails to address the actual condition of the structures it is supposed to qualify, but it also fails, therefore, to provide the engineering conservatisms appropriate to the emergency cooling system at a nuclear reactor such as Vermont Yankee. Id.

Furthermore, the ABS engineers just assumed that Vermont Yankee has made adequate replacements to the materials of which the towers are constructed. Id. at ¶9. This assumption is fatal, according to Mr. Gundersen, as "a structural analysis that does not assign a negative value to the rate at which degraded members require replacement cannot be said to be conservative or acceptable." Id. This fact is important to the Board 6

consideration of the motion before it, as it goes to the heart of whether Contention 4 merely required any old report to be proffered to the Board in satisfaction of the substance and basis of the contention, or whether the Board, in fact, places a high-quality engineering emphasis on the need for true, professional, complete appropriate structural and seismic analyses of the cooling towers at Vermont Yankee prior to allowing the facility to implement an extended power uprate that will further stress the available emergency cooling capacity of the facility.

The contention at issue, as modified by the Board, states:

The license amendment should not be approved because Entergy cannot assure the seismic and structural integrity of the cooling towers under uprate conditions, in particular the Alternate Cooling System cell. At present the minimum appropriate structural analyses have apparently not been done.

Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 548, 580 (2004).

Significantly, the Board further opined when admitting the contention that "The gist of this contention is that a new seismic AND structural analysis should be performed to qualify the Vermont Entergy cooling towers for the additional loads that will result from increasing the maximum power by 20%", id. at 573 (emphasis added), this shows that the Board implicitly recognized that in addition to seismic qualification, the "structural integrity" of the cooling towers under uprate conditions must also be demonstrated. As Mr. Gunderson states, the proffered ABS report does not address the structural integrity of the towers at Vermont Yankee, rather it merely addresses hypothetical, computer modeled cooling towers based upon assumptions that were provided by Entergy rather than actual field measurement.

Gundersen Declaration at ¶¶7-10. Thus, the proffered engineering report that undergirds 7

Mr. Thomas's affidavit/declaration is not a report on the condition of the towers at Vermont Yankee--it is a report on the condition of hypothetical cooling towers that do not correspond to the actual condition of the cooling towers. This, too, creates a serious and dangerous situation if approval is given to Entergy to operate the Vermont Yankee reactor in extended power uprate conditions. It means that any changes or modifications to the cooling towers are being based upon assumptions about the actual physical condition of the towers and not "hands on" measurements and inspections. Such a situation can easily result in miscalculations concerning the ability of the towers to withstand seismic forces and, importantly, ordinary age-related stress under the new, higher load conditions.

To the best of New England Coalition's knowledge, Entergy has not provided New England Coalition with any disclosure materials that document the actual condition of the towers and subsequent modifications that have been made to the towers since ABS prepared its computer-modeled engineering study. Gundersen Declaration at ¶11-14. This means that, at a minimum, additional disclosures/discovery should be permitted so that New England Coalition's expert may be in a position to assess the status of the information that formed the basis of New England Coalition's Contention 4. In any event, under such circumstances, as is set forth in more detail in legal argument below, only further disclosure/discovery, not summary disposition, is appropriate under these circumstances.

Mr. Gundersen points out a number of non-conservative assumptions underlying the ABS report. See, e~g., Gundersen Declaration at ¶5- 17; in particular, %j11-16. These include, significantly, the effects of the post-ABS study modifications to the cooling towers.

Id. at N¶11-16. Mr. Gundersen notes that the ABS study assumptions concerning the concrete strength and the failure to consider the effects of structural steel splices on the 8

rigidity of the cooling towers lead to over-estimation of the ability of the structures to withstand seismic stress. Id. at 11-16. Again, plainly, these issues are not addressed by the ABS study because the modifications to which they refer were undertaken after the study was completed. Therefore, even though the ABS study relied on computer modeling based upon Entergy's assumptions and data, it could not be complete or accurate or appropriate, as it did not take into account the modifications Entergy has subsequently made to the analyzed structures. Finally, it must be noted that the studies did not take into account FEMA data from 1988 that increased the intensity of the maximum credible earthquake. Id.

at ¶115. Because, as Mr. Gundersen notes, the towers have both seismic and non-seismic components, in the worst-case single failure during a seismic shutdown earthquake, at this time no reasonable prediction can be made about the Vermont Yankee reactor's ability to survive under such conditions. Id. at ¶15-16. For that reason, and the other set forth in his declaration, Mr. Gundersen concludes that Entergy has not yet provided the "minimum appropriate structural analyses necessary to satisfy New England Coalition's Contention 4.

Idat ¶17.

Entergy believes that it has provided a complete, credible engineering study that satisfies the Board's interpretation of New England Coalition's Contention 4. Mr.

Gundersen, having examined that study, the supporting affidavit/declaration and many other documents, believes that there are a number of serious issues that the study does not address. In fine, there is a genuine dispute here. The issues are, by agreement of the parties, material to the determination of the validity of Contention 4. See discussion under I above. These issues remain to be resolved by further disclosure/discovery and, perhaps, at hearing. Therefore, as justiciable issues remain, the matter is not moot and should not be 9

dximssed. G e o t p lnsthi/e oj Technology (Georgla 'Tech Research Reactor), LBP-95-19, 42 NRC 191,195 (1995).

B. Under N R C Legal Standards, Summary Disposition Does Not Apply Here.

The factual citations and argument set f ~ r t habove are hereby realleged herein as applied to the legal issues that follow.

Entergy, as the moving party, is not eltitled to summary dsposition of New England Coalition's Contention 4 as a matter of law i: the .Atcinic Safety and Licensing Board finds that the f h g s in the proceedmg, tcgether with the statements of the parues, eslubits, and declarations, do not demonstrate the absence of a genuine issue of material fact. See 10 C.F.R. $5 2.1205 and 2.710(d)(2); see also Carolina Power & Lzgbt Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 384 (2001); Aduanced&ledical Jjs., Inc. (One Factory Row, Geneva, Oluo), CLI-93-22, 38 NRC 38, 102-03 (1993). The reason for tlis statement in the negative is that Entergy, not New England Coalition, has the entire burden of proving the absence of any material facts in dspute concerning Contention 4. Significantly, when the Board assays Entergy's proffered evidence, any e7:idence Entergy submits, as h e moving party, must be construed in favor of the non-moving party. J'egmyah .Fzels C o p & Gen.

Atomics C o p (Gore, Oklahoma Site Decontamination and Decommissioning Fundulg),

LBP-94-17, 39 NRC 359, 361, a.-f d , CLI-9411, 40 NRC 55 (1994).

Thus, a tribunal decidmg a summary Qsposiuon motion, such as the Board in the instant case, tllust rule in favor of allowing New England Coalition's Contention 4 to go forward to hearing where, based upon the Board's examination of the factual record as referenced in the motion and opposition and respective attached exlubits and supporting

declarations, "the factual record, considered in its cntirety [is] enough in doubt so that therc is a reason to hold a hearing to resolve the issue." Cleveland Elec. 1llztminatir.g Co. (Perry Nuclear Powcr Plant, Units 1 & 2), LRP-83-46, 18 NRC 218, 223 (1983). If possibhty exists that there is a litigable issue of fact or anv doubt exists as to whether the parties should be allowed or required to further proceed, the summary dsposition motion must be denied.

General Elec/?icCo. (GE Morris Operation Spent Fuel Storage Fachty), LBP-82-14. 15 NRC 530, 532 (1982); Safety Light Corn. (Bloomsburg Site Decommissioning and License Rencwal Denials), EB1'-95-9,41 NRC 412,449 n.167) citingflnder~onu. L b e q L b h . h . , 477 U.S. 242, 238 (1986).

Ncw England Coalition contends that the factual record in the instant casc raises sufficient doubt to require a hearing on the matter and, therefore, Entergy's motion for summary Qsposition should be dsnissed. because it does not (and could not) meet the requisite burden of erasing all doubt material to the d q o s i t i o n of the issues raised in Contention 4.

In fule, as set forth in the incorporated dscussion arid argument from SIIA above, Entergy has not e h a t e d the doubts raised by New England CoaZtion's c o o h g tower contention. In fact, as the proffcrcd study was not bascd upon thc actual physical c o n d u o n of the coolrng towers but only a computer model constructed from Entergy's data and assumptions, tile doubts are unresolved. Gundersen Declaration at 775-18. Furthcr, as Entergy has introduced further modfications on the coolrng towers after the engineering study was conducted, the conclusions of the ABS study a x in doubt. Id. at 11-13, 18. It is also readily apparent that the NRC Staff questlon the adequacy of the emergency cooling capacity of LTermont Yankee Nuclear Power Station under extended power uprate

conditions, as NRC Staff only recently posed an additional RAI (among numerous that remain open, including some 200 issued in late July), questioning, in pertinent part, Reactor Auxiliary Cooling Water Systems (SE template Section 2.5.3.3)

UFSAR Section 10.8 indicates that the deep basin has a water capacity of 1.48 million gallons and that a water inventory of 1.45 million gallons is sufficient to assure seven days worth of ACS cooling capability. Please explain in detail how this conclusion was reached for post-EPU operation, quantifying all water additions and losses that are assumed to occur over this seven day period along with how these values are determined, and how much inventory is required at the end of seven days to satisfy pump net positive suction head (NPSH) requirements.

Request For Additional Information-Extended Power Uprate, Vermont Yankee Nuclear Power Station (TAC NO.MC0761) Number 26 at page 25 July 27, 2005). Thus, there plainly is doubt about the issues underlying New England Coalition's Contention 4.

Certainly, too, there is dispute, as Entergy believes that the hypothetical study it proffered to the Board in support of its affiant/declarant is sufficient to resolve the matter--and New England Coalition and its expert Mr. Gundersen do actively dispute such an assertion. See

,general/y, argument set forth herein above and in the attached Declaration of Arnold Gundersen at ¶¶5-18. If an possibility exists that there is a litigable issue of fact or any doubt exists as to whether the parties should be allowed or required to further proceed, the summary disposition motion must be denied. General Electic Co. (GE Morris Operation Spent Fuel Storage Facility), LBP-82-14, 15 NRC 530, 532 (1982); Safety Light Corn.

(Bloomsburg Site Decommissioning and License Renewal Denials), LBP-95-9,41 NRC 412,449 n.167) citin~g Anderson v. Libedy Lobby. Inc., 477 U.S. 242, 248 (1986). Such possibilities plainly exist in this case concerning the satisfaction of the basis and substance of New England Coalition's Contention 4 by the disclosures made to date.

12

CONCLUSION For the foregoing reasons, there is a genuine issue of material fact in dispute in this case concerning the substance and basis of New England Coalition's Contention 4. For that reason, it remains for the Board to adjudicate the issues underlying that dispute and, thus, the contention is not moot. Because there is the possibility of the existence of a litigable issue of fact and doubt about the need for further disclosure/discovery in this case, Entergy's motion for summary disposition must be denied.

Respectfully submitted:

Jonathan M. Block 94 Main Street P.O. Box 566 Putney, VT 05346 802-387-2646 cc: Service List 13

New England Coalition's EXHISI7 Z UNITED STATES OF AMERICA NUCLEAR REGULATORY CONMIISSION Before the ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket No. 50-271-OLA Entergy Nuclear Vermont Yankee, LLC and ASLBP No. 04-832-02-OLA Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station) August 2, 2005 (Extended Power Uprate)

DECLARATION OF ARNOLD GUNDERSEN OPPOSING

SUMMARY

DISPOSITION ON NEW ENGLAND COALITION'S CONTENTION 4 I, Arnold Gundersen, declare as follows:

1. My name is Arnold Gundersen. I reside at 376 Appletree Point Road, Burlington, Vermont.

2. The New England Coalition has retained me as an expert witness in the above captioned matter.

3. I am a nuclear engineer and an independent consultant on nuclear safety and engineering issues. I am a qualified expert on matters relating to the safety of operation of nuclear power plants.

4. My curriculum vitae was attached as Exhibit D-A to New England Coalition's Request For Hearing Demonstration Of Standing. Discussion Of Scope Of Proceeding And Contentions, filed on August 30, 2004.

5. I have reviewed the report Entergy submitted as a discovery disclosure and in support of its motion for summary disposition of New England Coalition's contention concerning the lack of adequate proof of seismic qualification and structural integrity under extended power uprate conditions of the alternate cell cooling towers at the Vermont Yankee Nuclear Power Station. I also read the affidavit of a Mr. George Thomas. I have also reviewed the following documents in preparation for the filing of this declaration: relevant sections of Vermont Yankee Nuclear Power Station Final Safety Analysis Report (50-271) as well as information provided during discovery in the Vermont Public Service Board Hearings Docket 6812. It is

Declaradon ofAmnold Gundersen OpposingSummay Dispositdon on NECM Contendon 4 (8/2/2005) Page 2 of 8 my opinion based upon reading the ABS Cooling Tower Seismic Evaluation (as provided by Entergy), supporting documentation, and Mr. Thomas' affidavit that there remain issues in dispute between New England Coalition and Entergy that are material to the determination of the contention at issue.

6. In particular, it is my opinion that Entergy's reports and supporting declaration are deficient in the respects described below and do not address the concerns that I raised in support of the contention.

7. The ABS Cooling Tower Seismic Evaluation and supporting material reveals no claim that the ABS consultants actually made a physical examination of the alternate cell cooling towers. One must remember that this is a 35-year-old concrete structure operating under a very caustic environment. Analyzing this structure under uprated loads without field data indicating its actual condition is not a sound engineering approach on the part of ABS. It is clear that consultants assumed that the as-is condition of the cooling towers is accurately reflected in existing plant documentation (See, Entergy Exhibit 2, Cooling Tower Seismic Evaluation. pages 6-12 of 182.) This assumption is misplaced. As indicated in my initial declaration, August 30, 2004:

Documents I have recently received from Entergy in my role as an expert witness on behalf of the New England Coalition before the Vermont Public Service Board indicate that Vermont Yankee has knowingly operated with a safety system in an unanalyzed condition for the last 18 years. Specifically the safety related seismic cooling tower had its fill replaced in the mid 1980's but that modification was never properly analyzed to determine if it effected the seismic qualification of the tower. This is and has been known to VY. An undated Tower Performance, Inc. document produced in discovery states "there has not been any analysis of the class II structure to account for the additional fill that was added in the mid 1980's" Furthermore, in my review of VY records produced in the Vermont Public Service Board Hearings, I have discovered a disturbing trend in the area of records retention [see below]

for safety related items. The newly provided ENVY material confirms that previously identified trend.

Declaration ofArnold Gundersen Opposing Summay Dispositionon NECs Contention 4 (8/2/2005) Page 3 of 8 A. The original seismic analysis of the safety related cooling tower was done by Fluor before the plant was built. An undated attachment to an email from Dan Yasi dated 12/6/02 states (Bates CT00205 and 206), "There is no documentation of the calculation of the loads used for the analysis or a comparison of the calculated loads to allowable loads."

B. MR 83-2055 modified the Cooling towers in 1983. An attachment to an email from Dan Yasi dated 12/6/02 states (Bates CT00206), "I am not able to locate any analysis associated with these modifications to determine what force would cause the ties to break." The "ties" referred to here are steel rods connecting the tower cells.

Without knowing the breaking strength of these rods, it cannot be said that the collapse of one or more cells would not propagate collapse throughout the entire set.

C. MR 8-0635 and 0636 again modified the cooling towers in 1985. An attachment to an email from Dan Yasi dated 12/6/02 states (Bates CT 00206), "Again, I was not able to locate any analysis associated with these modifications."

D. Even if the as-built information has been found, its use on a 35-year-old structure is inexcusable. One need only visit a 35-year-old parking garage to notice how concrete deteriorates in a much less caustic environment. It is therefore imperative that ABS use field data indicating the actual condition of the tower rather then the purely academic approach they have taken.

8. Further, it is my professional opinion that Entergy's April 2005 ABS Consulting seismic evaluation and accompanying materials fail to state that the engineers who performed the calculations or the computer model utilized in performing the calculations took into account the actual physical (as-found) condition of the cooling towers at issue. No apparent consideration in terms of additional conservatisms was provided for the degrading effects of aging and/or moisture and cooling system chemicals on the wooden structural members, the steel connecting hardware of the cooling towers, and the concrete within the towers.

9. ABS Consulting assumes, under "Assumptions" on page 12 of 182 of the Cooling Tower Seismic Evaluation, " that all lumber is capable of supporting the full design capacities based on ongoing inspection and replacement regime in place at VY (see sheet B-7)." One can only

DeclarationofArnold Gundersen Opposing Summay Dispositionon NEC's Contention 4 (8/2/2005) Page 4 of 8 deduce that ABS intends to say that the material in the cooling towers is as good, and therefore as strong, as new. However, the "replacement" regime following visual inspection verifies that some structural members are found to be substandard and therefore they are replaced. In my opinion, a structural analysis that does not assign a negative value to the rate at which degraded members require replacement cannot be said to be conservative or acceptable. In fact a cooling tower is only as strong as its weakest member and to retain original design conservatisms, one should even avoid using the AVERAGE age of structural components (due to replacements of portions), as the oldest will not behave like the average.

10. The Cooling Tower Seismic Evaluation (Page 6 of 182) states that only the Alternate Cooling System cooling tower cells (CT2-1 and CT2-2) are evaluated in "this calculation,"

and assumes that, "The remaining non-safety-related cells, 3 through 11, are separated by breakaway joints are [therefore] not addressed in this calculation."

A. However, as evidenced in "B" above and in my first declaration, Vermont Yankee (MR 83-2055) modified the Cooling towers in 1983. An attachment to an Entergy Nuclear Vermont Yankee email from Dan Yasi of, dated 12/6/02 states (Bates CT00206), "I am not able to locate any analysis associated with these modifications to determine what force would cause the ties to break." The "ties" referred to here are steel rods connecting the alternate cell cooling towers into the other yet-to-be-seismically and structurally qualified cooling towers connecting the tower cells. Without knowing the breaking strength of these rods, it cannot be said that the collapse of one or more cells would not propagate collapse throughout the entire set.

B. Furthermore, the shear characteristics of the breakaway joints as they exist today will not be the same as the shear characteristics of the breakaway joints as they were originally designed. The ABS assumption that shear will occur under the uprate conditions and in a caustic environment is in fact not based upon sound engineering judgment.

C. The wall separating the non-safety related cells from CT2-1 and CT2-2 was originally built to mitigate the lateral and transverse loads from the collapse of Cells 3 through 11 under 100 percent power conditions. However, as identified in

DeclarationofAmold Gundersen Opposin~g Summag Dispositionon NEC4 Contention 4 (8/2/2005) Page 5 of 8 7C above, the wall was never analyzed when the fill in Cells 3 through 11 was replaced in 1985. Lateral and transverse stress loads on the separation wall are further compounded by the additional loads in Cells 3 through 11 in uprate conditions to 120 percent of original design capacity.

D. The weight from the 1985 fill modification and the added weight from the additional water due to uprate in cells 3 through 11 have not been analyzed.

Therefore, there is also an increased shear load on the wall separating these cells from CT2-1 and CT2-2, and also there is a significantly different perpendicular load on the separating wall in the event of a seismic failure of cells 3 through 11.

Ignoring this critical juncture between seismic and non-seismic systems is not conservative and is in fact grossly negligent.

E. In conclusion, one cannot analyze CT2-1 and CT2-2 without reanalyzing all of the breakaway characteristics between Cells 3 through 11 and those two Cells.

11. Entergy's motion fails to provide an account of changes and the impact of the changes made to the cooling towers after the ABS Cooling Tower Seismic Evaluation was completed.

These unanalyzed modifications will have a significant impact upon the structural integrity and seismic qualification of the alternate cell cooling towers. These unanalyzed changes were noted as follows in NRC Integrated Inspection Report 05000271/2005003 (July 20, 2005)

(ADAMS #ML052020003):

IR15 Operability Evaluations (71111.15), Inspection Scope (seven samples)

• Damage to alternate cooling deep basin cement wall 1R23 Temporary Plant Modifications (71111.23), Inspection Scope (one sample):

• The inspectors reviewed temporary modification TM 2005-004, "Installation of Structural Steel Splices in Cooling Tower CT2-1" and calculation VYC-2404, "Design of Structural Member Splices on Cooling Tower CT-2 for TM 2005-004, "and discussed the modification with the responsible engineer to ensure that the modification did not adversely affect the availability or functional capability of the cooling tower. The inspectors also walked down the accessible portions [Emphasis added] of CT 2-1 to verify the TM was properly maintained and there were no obvious deficiencies."

As to IR15, in its seismic evaluation, ABS relies on the proposition that concrete gains strength over time. Under 5-Assumptions, ABS has it,

DeclaradonofArnold Gundersen Opposing Summar Disposidon on NEC's Contenfion 4 (8/2/2005) Page 6 of 8

• The concrete strength of the cooling tower foundation basin is assumed to be 3000 psi based on the notes on Drawing G-2000357 (ref.7.1 1). This is used for determining allowable anchor bolt loads. This assumption is conservative since the value on the drawing is the minimum design strength (actual strength at the time the concrete is placed is normally much greater than the minimum design strength) and concrete strength increases with time While concrete strength under compression generally does increase with age under ideal conditions, this is not a conservative assumption given the age and caustic environment within these towers. Furthermore, age never improves the tension characteristics of reinforced concrete, as rebar always degrades, especially under the caustic conditions within these cells.

As evidenced from the failing concrete identified in IR15 above, this general rule must not be used as a basis for assumptions regarding the evaluation of a particular site. This instance of over-reliance on conceptual (design) analysis of Vermont Yankee's cooling towers (as opposed to real world conditions) points to the absolute need to integrate first-hand observation in any structural evaluation.

As to 1R23, the ABS evaluation relies on a seismic damping ratio for wooden structures, as follows:

A damping ratio of 5 percent of critical damping is used in the analysis for the MIHE [Maximum Hypothetical Earthquake]. This type of wooden structure has significant damping since bolted connections absorb energy due to friction and slippage inherent in the connections and support points.

12. It is my professional opinion that where "structural steel splices" have been applied as identified in 1R23 above, these splices may add rigid nodes or fulcra to the structure.

Therefore credit for flexibility (friction and slippage) in bolted wooden joints must be re-examined following completion of any such modifications. It is not clear that ABS has ever reviewed the actual condition of the tower to identify all situations where "structural steel splices" have been applied.

13. The ABS Cooling Tower Seismic Evaluation is an admission by Entergy that the structural and seismic assessment of the Alternate Cooling System was not performed until after New England Coalition filed its Contention on August 30, 2004. The ABS evaluation, in my professional opinion, fails to provide reasonable assurance that under extended power

DeclarationofArnold Gundersen Opposing Summay Dispositionon NECs Contention 4 (8/2/2005) Page 7 of 8 uprate conditions Vermont Yankee's cooling towers would be able to withstand a design basis earthquake. The ABS evaluation fails under two broad categories:

• The evaluation relies on non-conservative unsupported and unsupportable assumptions (as detailed above).

• The evaluation ignores the actual cooling tower structural conditions. In order to determine whether or not component condition and performance are accurately reflected in Vermont Yankee's plant documentation, quality assurance reviews should have been integrated into the evaluation process. Such quality assurance review is imperative, where, as in this case, vital design documentation and analysis is missing entirely. Given the fact that Vermnont Yankee's Cooling Towers are a critical component to plant safety, revisiting and reanalyzing both the design and the structure from a quality assurance perspective should be a matter of course.

14. For all of the foregoing reasons, it is my professional opinion that the ABS product that Entergy offers on the issue of Contention 4 remains only a "stand alone" calculation; one with questionable input and very limited reliability, and not the evaluation and analysis that Entergy purports it to be.

15. ABS and Entergy invoke certain "conservations" throughout their filing that, in my professional opinion, must be put in perspective for the record. The very design basis earthquake against which all of the calculations are measured, that is the Vermont Yankee design basis earthquake, is non-conservative. The FSAR for Vermont Yankee (VY) indicates that the Maximum Credible Event (MCE) for the design earthquake results in a 0.14g ground acceleration at the plant site. This acceleration appears to be the Safe Shutdown Earthquake (SSE) basis. However, seismic hazard maps prepared for FEMA (1988) appear to indicate that a 0.15g ground acceleration is consistent with a 2400-year return interval, resulting in an MCE of 0.3g ground acceleration.

16. In a deterministic approach, the non-seismic towers would fail in an SSE. As I have previously pointed out, Vermont Yankee's towers have mixed seismic and non-seismic structures and components. If the worst-case single failure occurs during an SSE, it is not clear how Vermont Yankee survives. A failure modes and effects analysis with respect to the

DeclarationofArnold Gundersen Opposing Summay Dispositionon NEC' Contendon 4 (8/2/2005) Page 8 of 8 safety-related and non-safety-related cooling towers must be completed to provide this assurance.

17. In sum, it is my professional opinion that, based upon reading the above referenced documents that I reviewed in preparation for this declaration, Entergy has not provided the "minimum appropriate structural analyses" necessary to satisfy New England Coalition's cooling tower contention in this matter. Moreover, it is also my professional opinion that the reports and affidavit Entergy placed before the Atomic Safety and Licensing Board in this case do not take into account modifications that have been made to the cooling towers since the reports were made.

18. For the foregoing reasons, the material basis of New England Coalition's cooling tower seismic and structural integrity and safety performance remains in dispute.

I declare under penalty of perjury that the foregoing is true and correct. Executed August 2, 2005.

Arnold Gundersen 376 Appletree Point Road Burlington, Vermont 05401 0000 -6,

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

)

ENTERGY NUCLEAR VERMONT YANKEE ) Docket No. 50-271-OLA LLC and ENTERGY NUCLEAR )

OPERATIONS, INC. ) ASLBP No. 04-832-02-OLA

)

(\Terrnont Yankee Nuclear Power Station) ) August 2, 2005 CERTIFICATE OF SERVICE I, Jonathan M. Block, counsel for New England Coalition, hereby certify that copies of the within Answer to Entergy's motion for dismissal of New England Coalition's Contention 4 in the above captioned proceeding has been served on the following by deposit in the United States mail, first class within the permitted period of time following service on August 2, 2005, by e-mail upon all persons listed below except those listed with an asterisk (*) who were served by U.S. mail, first class, only.

Alex S. Karlin, Chair Dr. AnthonyJ. Baratta Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 ask2@nrc.gov ajb5@nrc.gov Lester S. Rubenstein Office of the Secretary Administrativejudge ATIN: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4760 East Country Villa Drive Washington, DC 20555-0001 Tucson, AZ 85718 HEARINGDOCKET~nrcgov lesrtrrcomcast.net Anthony Z. Roisman, Esq.

Office of Appellate Adjudication* National Legal Scholars Law Firm U.S. Nuclear Regulatory Commission 84 East Thetford Rd.

Washington, DC 20555-0001 Lyme, NH 03768 aroisman(valley.net

Jay E. Silberg, Esq. Sarah Hofmann, Esq.

Matias Travieso-Diaz, Esq. Special Counsel Douglas Rosinski, Esq. Department of Public Service Pillsbury Winthrop Shaw Pittman, LLP 112 State Street - Drawer 20 2300 N St., NW Montpelier, VT 05620-2601 Washington, DC 20037-1128 sarah.hofmannestate.vt.us jay.silbergepillsburylaw.com matias.travieso-diaz~pillsburylaw.com douglas.rosinski~pilsburylaw.com Brooke Poole, Esq.; Robert Weisman, Esq., Raymond Shadis Nathan Wildermann, Esq. Staff Technical Advisor Counsel for NRC Staff New England Coalition United States Nuclear Regulatory Commission P.O. Box 98 Washington, D.C. 20555 Edgecomb, ME 04556 bdpgnrc.gov shadisgprexar.com robeessential.org nrwvnrc.gov Jonathan M. Rund, Esq., Law Clerk John M. Fulton, Esq.

Atomic Safety and Licensing Board Panel Assistant General Counsel U.S. Nuclear Regulatory Commission Entergy Nuclear Operations, Inc.

Washington, DC 20555-0001 440 Hamilton Avenue jmr3@nrc.gov; src2@nrc.gov, ksvenrc.gov White Plains, NY 10601 jfultol entergy.com Respectfully submitted, C(6 Jonathan M. Block

`Counsel for New England Coalition

JONATHAN M. BLOCK ATTORNEY AT LAW 94 Main Street P.O. Box 566 Putney, VT. 05346-0566 802-387-2646 (vox)

-2667 (fax) jonbTsover.net August 3, 2005 Secretaiy United States Nuclear Regulatory Commission Washington, DC 20555-0001 ATT: Rulemakings and Adjudications Staff RE: In tome Afatter of Docket No. 50-271 -OLA ENTERGY NUCLEAR VERMONT YANKEE L.L.C.

and ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 04-832-02-OLA (Vemiont Yankee Nuclear Powver Station)

Dear Rulemakings and Adjudications Staff:

Enclosed for filing are the original and two copies of an e-mail filing (yesterday afternoon, 8/2/2005) of "New England Coalition's Answer to Entergy's Motion to Dismiss As AMoot or, In The Alternative, Summary Disposition on New England Coalition's Contention 4 and the Declaration of Arnold Gundersen (attached to the Answer as "Exhibit 'A'." Also attached to the Answer and Exhibit is a Certificate of Service.

Thank you for your assistance in this matter.

Sincerely, Jo0than M. Block Attorney for New England Coalition cc: Service List