ML061430028

Vermont Yankee - NRC Staff'S Response to the Atomic Safety and Licensing Board'S Order of May 10, 2006

ML061430028
Person / Time
Site:	Vermont Yankee
Issue date:	05/22/2006
From:	Sherwin Turk NRC/OGC
To:	Atomic Safety and Licensing Board Panel
S. Turk, NRC/OGC, 301-415-1533
References
%dam200606, 50-271-OLA, ASLBP 04-832-02-A, RAS 11675
Download: ML061430028 (8)

Text

May 22, 2006 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

)

(Vermont Yankee Nuclear Power Station) )

NRC STAFFS RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF MAY 10, 2006 INTRODUCTION On May 10, 2006, the Atomic Safety and Licensing Board issued its Order (Granting Joint Motion to Suspend Certain Filing and Discovery Obligations and Setting Certain Deadlines), regarding the Amended Notice of Withdrawal and Request for Dismissal of Contentions filed by the State of Vermont Department of Public Service (State) on May 8, 2006. In its Order, the Licensing Board invited the parties to comment upon the States Amended Notice of Withdrawal and/or the proposed settlement between the State and Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations Inc. (collectively referred to herein as Applicant or Entergy). Order at 1. In particular, the Licensing Board directed that such comments shall focus on the public interest as specified in 10 C.F.R.

§ 2.338(I). Id. at 1-2.

In accordance with the Licensing Boards Order, the NRC Staff (Staff) herewith provides its comments on the States Amended Notice of Withdrawal (Amended Notice) and its settlement with the Applicant. As set forth below, the Staff submits that the States Amended Notice and its settlement with the Applicant are wholly in the public interest, and the States two contentions should be dismissed with prejudice.

DISCUSSION In its Amended Notice, the State indicates that voluntarily withdraws from this proceeding and requests the dismissal with prejudice of the States contentions. Amended Notice at 1. The State describes the events that have occurred which led to its decision to withdraw from this proceeding, including the facts that:

(1) the State and Applicant have agreed to a mutually satisfactory resolution of the issues raised by the State in this proceeding, as evidenced by the Memorandum of Understanding and the Addendum . . . attached as Exhibit A to the Amended Notice, Id. at 1; (2) the Staff performed an independent engineering assessment at Vermont Yankee, as requested by the State, in which the States Nuclear Engineer participated, Id. at 2; (3) the Staff performed independent calculations to verify the computer-model calculations associated with containment overpressure credit, and the discussion in the Staffs Final Safety Evaluation regarding this matter giv[es] the State confidence in the conservatisms claimed by Entergy in its containment overpressure request, Id.;

(4) the Staff submitted numerous requests for additional information (RAIs) to the Applicant, regarding, inter alia, the request for containment overpressure credit, and (as a result of the States review of the Applicants supplements in response to those RAIs, and its review of the Staffs review and thinking on this issue through the Advisory Committee on Reactor Safeguards (ACRS) process as well as the Staffs Draft and final SERs), [t]he State is satisfied that the issue raised in the States contentions was thoroughly reviewed, Id.; and (5) the State actively participated in the ACRS review of the generic issue of containment overpressure credit and the site-specific review of the Vermont Yankee EPU (including four formal presentations to the full ACRS or the ACRS subcommittee) and was present during much of the Applicants and Staffs presentations, after which the ACRS determined that the overall risk associated with [the EPU] is small, and that the change in risk

resulting from allowing the requested containment overpressure credit is small - and the State is satisfied with the level of the review and the time spent on this issue of import, Id. at 2.

The Staffs review of the States Amended Notice leads it to conclude that the State -

which has been represented throughout this proceeding by highly qualified and able Counsel, with active participation and expert advice from the States Nuclear Engineer - has now reasonably concluded that the issues raised in the States contentions have been resolved to its satisfaction. The States determination that these issues have been satisfactorily resolved has appropriately led the State to withdraw from the proceeding and to request the dismissal of its contentions, based on its determination that there is no longer any need for the State to continue to litigate those contentions or to expend any additional resources in this proceeding.

The Staff submits that the States Amended Notice unequivocally states its satisfaction with the manner in which its contentions have been addressed, its intention to withdraw as a party in this proceeding, and its desire to withdraw its two contentions. Further, the Amended Notice and the modified settlement agreement attached thereto demonstrate that the State has given careful thought to this matter, and that it has independently determined that the concerns identified in its contentions have been satisfactorily addressed and any continued litigation of those contentions would be of no benefit.

The States determination to withdraw and to request the dismissal of its contentions with prejudice represents a well-considered decision that is clearly in the public interest. As the sole sponsor of its two contentions concerning containment overpressure credit,1 the State formulated contentions which assembled all of its concerns and the bases therefor, presented 1

The Licensing Board has previously rejected the New England Coalitions attempt to incorporate by reference and thereby adopt the States contentions. See Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),

Memorandum and Order (Denying Incorporation by Reference and Additional Discovery Disclosure),

unpublished (Feb. 16, 2005), slip op. at 2-3.

expert opinion in support of the contentions admission, and sought to have its concerns addressed by the Commission. The Staff and ACRS have given careful review of the States concerns, to the States satisfaction. As the State notes, the Staffs review of these issues has involved substantial time and effort, as has the consideration afforded these issues by the ACRS. The States Amended Notice describes the careful review that has been given to its concerns by the Applicant, Staff, and the ACRS. On the basis of that review - in which the State was often an active participant - the State has now concluded that the concerns set forth in its contentions have now been satisfactorily resolved. As the sponsor and drafter of its two contentions, the State is in the best position to determine whether its concerns have been satisfactorily resolved. The States conclusion that the concerns raised in its contentions have been resolved is determinative.

The Staff has reviewed the settlement agreement executed by the State and Applicant on May 2, 2006, as modified on May 9, 2006, and has not identified any provision in that settlement agreement which would appear to be contrary to the public interest. To the contrary, the settlement agreement appears to be fair and reasonable; it does not jeopardize public health and safety; and it affords the State an opportunity for continued meaningful participation in matters concerning containment integrity, as it imposes an ongoing duty upon the Applicant to provide information to the State concerning, inter alia, containment leak rate testing, nitrogen readings, and containment inspections at Vermont Yankee.2 The States Amended Notice 2

In an enforcement context, the Commission has evaluated whether the public interest favors a proposed settlement by considering:

(1) whether, in view of the agency's original order and the risks and benefits of further litigation, the settlement result appears unreasonable; (2) whether the terms of the settlement appear incapable of effective implementation and enforcement; (3) whether the settlement jeopardizes the public health and safety; and (4) whether the settlement approval process deprives interested parties of meaningful participation.

(continued...)

confirms that the public interest has been served as a result of the careful attention given to its contentions by the Applicant, the Staff and the ACRS, and by the Applicants ongoing commitment to provide information to the State. Further, the States Amended Notice confirms that the public interest would be served by the dismissal of its contentions, as there is no longer any need for the parties, the Licensing Board or the Commission to expend valuable resources addressing matters which the contentions own sponsor has determined are now resolved.

Finally, the Staff submits that the proposed settlement agreement is consistent with the Commissions oft-stated interest in eliminating unnecessary litigation. Thus, the Commission has emphasized that "Commission policy strongly favors settlement of adjudicatory proceedings." Rockwell International Corp. (Rocketdyne Division), CLI-90-05, 31 NRC 337, 340 (1990); cf. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

LBP-05-29, 62 NRC 635, 699 (2005) (Commission policy strongly favors settlements).3 The proposed settlement agreement between Entergy and the State is consistent with this well-established Commission policy and, in light of the States determination that its concerns have been resolved to its satisfaction, the proposed settlement agreement should be approved as 2

(...continued)

Sequoyah Fuels Corp. (Gore, OK Site Decontamination and Decommissioning Funding), CLI-97-13, 46 NRC 195, 209 (1997).

3 See also Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 167-68 (2005), in which the Commission cited the important role settlements play in our adjudicatory program under (former) § 2.759, which stated:

The Commission recognizes that the public interest may be served through settlement of particular issues in a proceeding or the entire proceeding. Therefore, to the extent it is not inconsistent with hearing requirements in section 189 of the [Atomic Energy] Act, (42 U.S.C.

[§] 2239), the fair and reasonable settlement of contested initial licensing proceedings is encouraged. It is expected that the presiding officer and all the parties to those proceedings will take appropriate steps to carry out this purpose.

being in the public interest, and the States request for withdrawal of its contentions should be granted.4 CONCLUSION The States Amended Notice clearly indicates that the State has withdrawn as a party in this proceeding based upon its determination that the concerns raised in its contentions have been satisfactorily resolved. The States proposed settlement agreement, as modified, is in the public interest and should be approved, and the States request for dismissal of its contentions should be granted.

Respectfully submitted,

/RA/

Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, Maryland this 22nd day of May, 2006 4

See, e.g., Louisiana Energy Services, L.P. (National Enrichment Facility), 2005 NRC LEXIS 138 (Aug. 12, 2005); Yankee Atomic Electric Co. (Yankee Nuclear Power Station LTP), 2005 NRC LEXIS 128 (July 21, 2005); United Evaluation Services, Inc. (Beachwood, NJ), LBP-02-17, 56 NRC 99 (2002) (enforcement proceeding); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-24 (2001) (Subpart G proceeding); PFS, LBP-99-26, 50 NRC 42 (1999); Lourdes T.

Boschuk (Order Prohibiting Involvement in NRC-Licensed Activities) LBP-98-16, 48 NRC 63 (1998)

(enforcement proceeding).

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

)

(Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF MAY 10, 2006" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class; or as indicated by an asterisk (*), by deposit in the Nuclear Regulatory Commissions internal mail system; and by e-mail as indicated by a double asterisk (**), this 22nd day of May, 2006.

Alex S. Karlin, Chair** Dr. Anthony J. Baratta**

Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Mail Stop T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: ajb5@nrc.gov Lester S. Rubenstein** Office of the Secretary**

Administrative Judge ATTN: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16C1 4760 East Country Villa Drive U.S. Nuclear Regulatory Commission Tucson, AZ 85718 Washington, DC 20555-0001 E-mail: lesrrr@comcast.net E-mail: HEARINGDOCKET@nrc.gov Office of Commission Appellate Jonathan M. Rund, Esq.**

Adjudication* Law Clerk Mail Stop: O-16C1 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: jmr3@nrc.gov)

Jered J. Lindsay, Esq.** Sarah Hofmann, Esq.**

Law Clerk Special Counsel Atomic Safety and Licensing Board Panel Department of Public Service Mail Stop: T-3F23 112 State Street - Drawer 20 U.S. Nuclear Regulatory Commission Montpelier, VT 05620-2601 Washington, DC 20555-0001 E-mail: sarah.hofmann@state.vt.us (E-mail: JJL5@nrc.gov)

Jay E. Silberg, Esq.** Anthony Z. Roisman, Esq.**

Matias Travieso-Diaz, Esq.** National Legal Scholars Law Firm Pillsbury Winthrop Shaw Pittman, LLP 84 East Thetford Rd.

2300 N St., NW Lyme, NH 03768 Washington, DC 20037-1128 E-mail: aroisman@nationallegalscholars.com E-mail: jay.silberg@pillsburylaw.com, and matias.travieso-diaz@pillsburylaw.com John M. Fulton, Esq. Raymond Shadis**

Assistant General Counsel Staff Technical Advisor Entergy Nuclear Operations, Inc. New England Coalition 440 Hamilton Avenue P.O. Box 98 White Plains, NY 10601 Edgecomb, ME 04556 E-mail: shadis@prexar.com, shadis@ime.net

/RA/

Sherwin E. Turk Counsel for NRC Staff