ML063470495

LB Memorandum and Order (Denying NEC Motion for Leave to File Motion for Reconsideration of Contention 5)

ML063470495
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	12/13/2006
From:	Elleman T, Karlin A, Richard Wardwell Atomic Safety and Licensing Board Panel
To:
Byrdsong A T
References
50-271-LR, ASLBP 06-849-03-LR, RAS 12670
Download: ML063470495 (11)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION RAS 12670 DOCKETED 12/13/06 ATOMIC SAFETY AND LICENSING BOARD SERVED 12/13/06 Before Administrative Judges:

Alex S. Karlin, Chairman Dr. Richard E. Wardwell Dr. Thomas S. Elleman In the Matter of Docket No. 50-271-LR ENTERGY NUCLEAR VERMONT YANKEE, LLC, and ASLBP No. 06-849-03-LR ENTERGY NUCLEAR OPERATIONS, INC.

December 13, 2006 (Vermont Yankee Nuclear Power Station)

MEMORANDUM AND ORDER (Denying NEC Motion for Leave to File Motion for Reconsideration of Contention 5)

Before the Licensing Board is a motion by the New England Coalition (NEC), a non-profit organization that is a petitioner herein, for reconsideration of the Boards ruling on NEC Contention 5.1 For the reasons set forth below, this motion is denied.

I. BACKGROUND This proceeding concerns the application of Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (collectively, Entergy) to renew the operating license for the Vermont Yankee Nuclear Power Station in Windham County, Vermont.2 Entergy seeks to extend its license for an additional twenty years beyond the current expiration date of March 21, 1

[NEC]s Motion for Leave to File Motion for Reconsideration (Oct. 2, 2006) [NEC Motion].

2 Vermont Yankee Nuclear Power Station License Renewal Application (Jan. 25, 2006),

ADAMS Accession No. ML060300085 [Application].

2012. On March 27, 2006, the Commission published a notice of docketing of the Entergy renewal application and a notice of opportunity to request a hearing on the application. 71 Fed.

Reg. 15,220 (Mar. 27, 2006). On May 26, 2006, NEC filed its hearing request and petition to intervene, which included NEC Contention 5.3 As submitted, the contention read:

The License Renewal Application Does Not State an Adequate Plan to Manage and Monitor Aging of the Condenser.

Id. at 19. On June 22, 2006, Entergy and the NRC Staff filed their respective answers to the NEC Petition,4 and on June 29, 2006, NEC filed its reply.5 On September 22, 2006, the Board ruled, inter alia, that NEC had standing to challenge Entergys license renewal application and had presented four contentions that met the admissibility criteria of 10 C.F.R. § 2.309(f)(1). Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) LBP-06-20, 64 NRC

__ (2006). However, the Board found NEC Contention 5 to be inadmissible on the ground that NEC failed to provide any supporting information as to how the failure of the condenser would negatively affect its ability to perform its limited post-accident function - the hold-up and plate-out of some gases and solid daughter fission products. Id. (slip op. at 78). Because NECs pleadings failed to challenge these representations of the condensers post-accident function, which were contained in Entergys application, NEC Contention 5 failed to meet the pleading requirements of 10 C.F.R. § 2.309(f)(1) and was therefore rejected.

On October 2, 2006, NEC filed the motion for leave to file a motion for reconsideration 3

Petition for Leave to Intervene, Request for Hearing, and Contentions (May 26, 2006)

[NEC Petition].

4 Entergys Answer to [NECs] Petition for Leave to Intervene, Request for Hearing, and Contentions (June 22, 2006) [Entergy Answer to Petition]; NRC Staff Answer to Request for Hearing of [NEC] (June 22, 2006).

5

[NEC]s Reply to Entergy and NRC Staff Answers to Petition for Leave to Intervene, Request for Hearing, and Contentions (June 29, 2006) [NEC Reply].

that is now before the Board. In its motion, NEC alleged that the Board erred in ruling that NEC Contention 5 was outside the scope of the proceeding, arguing that the condenser is within the scope of a license renewal proceeding as described in 10 C.F.R. § 54.4 and that an aging management plan is therefore required under 10 C.F.R. § 54.21. NEC Motion at 2-3.

Furthermore, says NEC, the Board failed to take into account a statement by NECs expert that the Vermont Yankee condenser was in a degraded condition. Id. at 4. NEC argues that no credible aging management program can be developed without establishing a baseline, and that the experts statement regarding condenser condition must therefore be taken into account.

Id. Finally, NEC argues that the Boards decision depend[ed] substantially upon its apparent acceptance of Entergys unsupported arguments regarding the condensers ability to perform its designated post-accident functions. Id. at 5.

Entergys answer of October 12 challenges this position, asserting that NEC had totally failed to raise a litigable claim regarding the condensers ability to perform its post-accident function.6 According to Entergy, the issue is NECs failure to provide any support for its contention rather than any dispute on the merits. Id. Entergy notes that the Board does not treat the condenser itself as outside the scope of a license renewal, and further emphasizes that Entergy itself treats the condenser as within the scope of a license renewal proceeding. Id.

at 5 & n.2. Entergy also asserts its application demonstrate[s] that the effects of aging [on the condenser] will be adequately managed so that the intended function(s) will be maintained consistent with the [current licensing basis] of the plant. Id. at 6 (quoting 10 C.F.R. § 54.21(a)(3)). According to Entergy, the application is founded on the proposition that the ability of the condenser to perform its limited post-accident function is confirmed every day by its ability to support normal plant operations, and NEC has failed to present an adequate 6

Entergys Answer to [NEC]s Motion for Reconsideration of Board Rulings on NEC Contentions 1 and 5 (Oct. 12, 2006) at 7 [Entergy Answer].

challenge to this determination. Id.

The NRC Staff also opposes granting NECs motion on the ground that it fails to meet the legal standard of 10 C.F.R. § 2.323(e).7 Under this standard, a motion for reconsideration may be filed with leave of the Board upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not reasonably have been anticipated, that renders the decision invalid. Id. at 3 (quoting 10 C.F.R. § 2.323(e)).

According to the Staff, the Commission heightened the reconsideration standard in its 2004 amendments to NRC procedural rules, noting that reconsideration is an extraordinary action and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier. Id. (quoting Final Rule, Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004)). The Staff argues that NEC both fails to address the legal standard and fails to show any compelling circumstances to invalidate the Boards Ruling with respect to Contention 5. Id. at 4.

II. ANALYSIS As we begin our analysis, we observe that the NRC Staff is correct in noting that NEC does not address the legal standard of 10 C.F.R. § 2.323(e) and makes no effort to show the type of compelling circumstances or clear and material error that would warrant reconsideration of our ruling. Rather, NECs presentation is directed towards its assertion that the Board has misapprehended or misapplied either factual information or controlling legal principle. NEC Motion at 1. NEC has ignored, to its detriment, our prior request that parties cite and address the relevant regulatory requirements. See Vermont Yankee, LBP-06-20, 64 NRC at __ (slip op. at 60 n.62).

Much of NECs motion reiterates arguments that it has already made. As noted by the 7

NRC Staff Response to [NEC]s Motion for Leave to File Motion for Reconsideration (Oct. 13, 2006) at 2 [Staff Answer].

NRC Staff, a reconsideration motion cannot merely repeat prior arguments, but must provide a good reason for the adjudicator to change its mind. Staff Answer at 3 (citing Louisiana Energy Serv., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 n.13 (2004)). NEC has failed to provide such a reason in any of its three allegations of Board error, and the motion fails for that reason. We will now consider each of the three allegations in turn.

First, NEC argues that the Board improperly found the condenser to be outside the scope of a license renewal proceeding. NEC Motion at 2. While the Board did find NEC Contention 5 to be outside the scope of this proceeding, it does not follow that contentions related to main condensers will always fall outside the scope of license renewal proceedings.

Indeed, we recognize that Entergy itself considers the condenser to be subject to aging management review under 10 C.F.R. § 54.21. Entergy Answer at 5-6 & n.2. We also take notice of the fact that the application contains a lengthy section on aging management for the condenser and other elements of the main steam isolation valve (MSIV) leakage pathway, Application at 3.4-1 to 3.4-31, and emphasize that this section of the application is subject to challenge by intervenors to the same extent as any other. Therefore, the flaw that places Contention 5 outside the scope of the proceeding is not that it deals with an impermissible plant component, but rather that it fails to raise a proper challenge to what is said about that component in the license renewal application.8 The reasons for this failure will be discussed in more detail below.

Second, NEC argues that the Board disregarded information regarding the current state of the condenser. NEC Motion at 3. NEC Contention 5 contains a very specific allegation, 8

See Vermont Yankee, LBP-06-20, 64 NRC at __ (slip op. at 78) ([E]ven if the condenser cracked or broke into pieces at the same time a LOCA or other accident occurred, NEC has not given us facts, evidence, or any reason to think that the condenser surfaces would not be equally able to retard the flow of, or absorb, gases that may leak through the MSIVs.).

namely that the main condenser at Vermont Yankee is degraded and therefore unlikely either to withstand normal operation for the full twenty years of the license renewal period or to remain intact in the event of an accident. See NEC Petition, Exh. 8, Declaration of Arnold Gundersen (May 26, 2006) at ¶¶ 9-34. Entergy responded to the contention with the comment that [a]ll NEC shows is that the condenser may eventually have to be replaced. Entergy Answer to Petition at 40. The Board is unsure what to make of NECs assertion regarding the current state of the condenser, given (1) that aging management requirements during a license renewal

- by definition - will always apply to older equipment subject to wear, and (2) that the current degree of wear is irrelevant to any decision about whether the requirement applies.9 NECs reasons for emphasizing this point appear to shift over time, and the current rationale - that no credible aging management program can be developed without establishing a baseline - is by no means self-evident.10 Although these two lines of argument are serious shortcomings in NECs current motion, the fundamental problem with the contention itself is revealed when we consider NECs third assertion - that the Boards decision depend[ed] substantially upon its apparent acceptance of Entergys unsupported arguments about whether the condenser would be able to perform its designated post-accident functions. NEC Motion at 5. At issue here is Entergys assertion that:

Condenser integrity required to perform the post-accident intended function (holdup and plateout of MSIV leakage) is continuously confirmed by normal plant operation. This intended function does not require the condenser to be leak-tight, and the post-accident conditions in the condenser will be essentially 9

10 C.F.R. § 54.21(a)(1) specifies that aging management requirements apply to plant components that perform their intended function without moving parts or without a change in configuration or properties and [t]hat are not subject to replacement based on a qualified life or specified time period. The regulation does not mention degree of current wear.

10 For example, one might imagine an aging management program that establishes a periodic monitoring schedule and specifies a list of actions to be taken when a certain threshold is reached. Such a program does not depend on baseline measurements at any particular point in time.

atmospheric. Since normal plant operation assures adequate condenser pressure boundary integrity, the post-accident intended function to provide holdup volume and plateout surface is assured.

Application at 3.4-26 (emphasis added). NEC has argued repeatedly that the condensers integrity to mitigate the leakage of radioactive gases cannot be assured11 and has used words that suggest a belief that the condenser is meant to provide a physical barrier to any leakage of radioactive gases during an accident.12 The Board is unable to determine where NEC has found any assertion that the condenser is intended to provide a physical barrier to prevent the leakage of radioactive gases during an accident. To the contrary, the plain text of the application as well as Entergys pleadings indicate that the condenser is not meant to play any such role - it is not required to be leak-tight in the event of an accident. Application at 3.4-26; Entergy Answer to Petition at

40. NEC may believe that a leak-tight condenser is essential to mitigate the effects of an accident, and that Entergys application is flawed in claiming credit only for those functions that do not depend on maintaining pressure boundary integrity. However, Contention 5 neither presents this position squarely nor provides support for it.

This fundamental ambiguity in NECs presentation can also be seen in NECs assertion that:

[T]he Board appears to have adopted uncritically Entergys unsubstantiated assertions that main condenser integrity is continually verified during normal 11 NEC Petition at 20. See also NEC Reply at 28 ([The condensers] integrity to mitigate the leakage of radioactive gases in the event of an accident . . . cannot be assured during the period of extended operation.).

12 See NEC Motion at 4 (The Board has no basis in assuming de minimis condenser leakage . . . without requiring and then assessing quantification from Entergy); Id. at 4-5 ([I]t is common knowledge among all of the participants in this proceeding that significant early offsite dose contributors in reactor accidents are isotopes of noble gases - Krypton and Xenon.

These gases do not plate out. . . . If, as the Board postulates, the condenser cracked or broke into pieces at the same time a[n] . . . accident occurred, then no credible mechanism remains to hold up (never mind, absorb) these gases.).

plant operation and no aging management plan is required to monitor and manage aging of the primary containment boundary adequate to assure the post-accident intended function.

NEC Motion at 4. Leaving aside the question of whether the main condenser can be considered part of the primary containment boundary, this statement also appears to reflect a fundamental misapprehension of the condensers designated post-accident function. If Entergy did, in fact, claim that the condenser was required to remain leak-tight during an accident, NEC would be on much firmer ground in asserting that the ability to maintain a vacuum under normal plant conditions does not necessarily indicate the ability to maintain that vacuum under accident conditions. This is not Entergys claim, however. Rather, Entergy merely claims that the condensers ability to maintain a vacuum under normal operating conditions, not the condensers ability to perform its more limited post-accident functions, is the more demanding standard for evaluating the condensers condition at any given time. Entergy Answer to Petition at 3738; Entergy Answer at 4-5. NEC does not challenge the claim that Entergy actually makes, and the contention therefore fails both because it falls outside the scope of the proceeding and because it fails to identify an issue that is material to the decision the Board must make regarding license renewal. See Vermont Yankee, LBP-06-20, 64 NRC at __ (slip op. at 78). Nothing that NEC has presented in the instant motion causes the Board to revisit this conclusion.

III. CONCLUSION For the reasons set forth above, NECs motion for leave to file a motion for reconsideration is denied.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD13

/RA/

Alex S. Karlin, Chairman ADMINISTRATIVE JUDGE

/RA/

Richard E. Wardwell ADMINISTRATIVE JUDGE

/RA/

Thomas S. Elleman ADMINISTRATIVE JUDGE Rockville, Maryland December 13, 2006 13 Copies of this order were sent this date by Internet e-mail transmission to counsel or a representative for (1) applicant Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.; (2) petitioners the Department of Public Service of the State of Vermont and the New England Coalition; and (3) the NRC Staff.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, LLC, )

)

and )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-271-LR

)

(Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (DENYING NEC MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION OF CONTENTION 5) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Administrative Judge Adjudication Alex S. Karlin, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Richard E. Wardwell Thomas S. Elleman Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 5207 Creedmoor Rd., #101 U.S. Nuclear Regulatory Commission Raleigh, NC 27612 Washington, DC 20555-0001 Mitzi A. Young, Esq. Ronald A. Shems, Esq.

Steven C. Hamrick, Esq. Karen Tyler, Esq.

David E. Roth, Esq. Shems Dunkiel Kassel & Saunders, PLLC Office of the General Counsel 91 College Street Mail Stop - O-15 D21 Burlington, VT 05401 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket No. 50-271-LR LB MEMORANDUM AND ORDER (DENYING NEC MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION OF CONTENTION 5)

Sarah Hofmann, Esq. Anthony Z. Roisman, Esq.

Director for Public Advocacy National Legal Scholars Law Firm Department of Public Service 84 East Thetford Rd.

112 State Street - Drawer 20 Lyme, NH 03768 Montpelier, VT 05620-2601 Matthew Brock, Esq. Diane Curran, Esq.

Assistant Attorney General Harmon, Curran, Spielberg, Office of the Massachusetts Attorney General & Eisenberg, L.L.P.

Environmental Protection Division 1726 M Street, NW, Suite 600 One Ashburton Place, Room 1813 Washington, DC 20036 Boston, MA 02108-1598 Callie B. Newton, Chair Dan MacArthur, Director Gail MacArthur Town of Marlboro Lucy Gratwick Emergency Management Town of Marlboro P.O. Box 30 SelectBoard Marlboro, VT 05344 P.O. Box 518 Marlboro, VT 05344 David R. Lewis, Esq. Jennifer J. Patterson, Esq.

Matias F. Travieso-Diaz, Esq. Office of the New Hampshire Pillsbury Winthrop Shaw Pittman LLP Attorney General 2300 N Street, NW 33 Capitol Street Washington, DC 20037-1128 Concord, NH 03301

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 13th day of December 2006