ML071650204
| ML071650204 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 06/08/2007 |
| From: | Travieso-Diaz M Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-271-LR, ASLBP 06-849-03-LR, FOIA/PA-2007-0313, RAS 13770 | |
| Download: ML071650204 (7) | |
Text
PJ~137 -)eý June 8, 2007 DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION June 8, 2007 (4:01pmn)
OFIEOF SECRETARY Before the Atomic Safely and Licensing, Board RULEMAKINGS AND ADJUDICATIONS 'STAFF In the Matter of)
Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271-LR and Entergy Nuclear Operations, Inc. ASLBP No. 06-849-03-LR
,(Vermont Yankee Nuclear Power Station))
ENTERGY'S RESPONSE IN SUPPORT OF NRC STAFF'S MOTION TO. STRIKE NEC'S RESPONSE TO NRC STAFF'S
SUMMARY
DISPOSITION ANSWER Pursuant to 10 C.F.R. §2.323(c), Applicants Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively "Entergy") provide this Response in support of the NRC S taff s ("Staff') "Motion to Strike NEC Response to NRC Staffs Summary Disposition Answer" filed on May 29, 2007 ("Staff s Motion to Strike"). The NEC filing in.
question is unauthorized and impermissibly raises new arguments not contained in the Staff s pleading to which it purportedly responds.
On April 19, 2007, Entergy sought summary disposition of NEC Contention 3 (steam dryer) in this proceeding. Entergy's Motion for Summary Disposition of New England Coalition's Contention 3 (Steam Dryer) ("Entergy's Motion"). On May 9, 2007, NEC and the Staff filed answers to Entergy's Motion. New England Coalition Inc.'s (NEC) Opposition to Entergy's motion for Summary Disposition of NEC's Contention 3 (Steam Dryer) ("NEC Answer to Entergy's Motion"); NRC Staff s Answer In Support of Entergy's Motion for Summary Disposition of New England Coalition's Contention 3 (Steam Dryer) ("Staff s Answer"). On May 18, 2007, NEC filed, without seeking leave from the Board to do so, a response to the Staff's Answer. New England Coalition, Inc.'s (NEC) Response to NRC Staff s j-'--6t 5-
Answer in Support of Entergy's Motion for Summary Disposition of New England Coalition Contention 3 (Steam Dryer) ("NEC Response").
The NEC Response is as an unauthorized pleading. Summary disposition motions in Subpart L proceedings are governed by 10 C.F.R. § 2.1205. When such a motion is filed, the only response authorized by the regulation is that "[amny other party may serve an answer
.supporting or opposing the motion within twenty (20) days after service of the motion." 10 C.F.R. §2.1205(b). Responses to such answers are nE~t authorized. While 10 C.F.R. § 2.1205(c) provides that "[iln ruling on motions for summary disposition, the presiding officer shall apply the standards for summary disposition set forth in subpart G of this part," that cross-reference refers to the substantive standards in subpart G for granting or denying summary disposition motions,' not the summary disposition procedures in subpart G.2 The Commission made this clear in its section-by-section analysis of 10 C.F.R. § 2.1205:
Section 2.1205 provides a simplified procedure for summary disposition in informal proceedings. The standardsto be applied in ruling on such motions are those set out in Subpart G.
"Changes to Adjudicatory Process," 69 Fed. Reg. 2,182, 2,228 (Jan. 14, 2004).(emphases added).
Consistent with the plain' language 'ofthe Section 2.1205 and the Commission's statement of considerations, Licensing Boards, including this Board, have routinely noted and applied the substantive standard in 10 C.F.R. § 2.7 10(d)(2) when ruling on motions for summary disposition under 10 C.F.R. § 2.1205(c). See, e+/-g., Entergv Nuclear Vermont Yankee. LLC, and Entergv Nuclear Op~erations. Inc. (Vermont Yankee Nuclear Power Station), Memorandum and Order Under the subpart G standards, a summary disposition motion will be g ranted "if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law." 10 G.F.R. § 2.7 10(d)(2).
2The summary disposition procedures in subpart G allow a party opposing such a motion "within ten (10) days after service, respond in writing to new facts and arguments presented in any statement filed in support of the motion." 10 C.F.R. §2.7 10(a).
2
(enying Entergy Motion for Leave to File Motion for Reconsideration of NEC Contention 3),
(Dec. 13, 2006), slip op. at 6, n. 12; Dominion Nuclear North Anna. LLC (Early Site Permit for North Anna ESP Site), Memorandum and Order (Granting in Part and Denying in Part Summary Disposition on Contention BC 3.3.2. -- Impacts on Striped Bass in Lake Anna) (June 16, 2005),
slip op. at 5..To hold that the proceduralprovisions in § 2.7 10(a) apply would negate the Commission's purpose in establishing a "simiplified procedure" for summary disposition motions in Subpart L proceedings. 69 Fed. Reg. at 1,228.
Accordingly, the NEC Response is an unauthorized filing and must be stricken.
Even assuming, arguendo, that the procedures in 10 C.F.R. § 2.7 10(a) applied to subpart L summary disposition motions, the NEC Response would still need to be stricken because in it NEC does not respond to any "new facts and arguments presented", in the Staff s Answer, but raises three arguments, none of them contained in the Staff s Answer, against Entergy's Motion:
- That "Entergy does not expressly state on [its Motion] that visual inspection will continue throughout the license renewal period." NEC Response at 2. This argument
- isnew and constitutes an untimely additional response to Entergy's Motion, not a response to the Staff s Answer. The Staff s Answer does not mention this-subject.3
- That "[tlhe Board should not decide Entergy's motion for summary judgment [sic]
until the results of the May 2007 inspection are made available to the Board and all 3 This NEC argument is invalid as well as new. Entergy's Motion clearly states that the proposed aging management program for the steam dryer during the license renewal period "is based solely on monitoring of plant parameters and periodic visual examinations of the steam dryer in accordance with accepted industry guidance." Entergy's Motion at 7; see also, Declaration of John R. Hoffman in Support of Entergy's Motion for Sunmmary Disposition of NEC Contention 3 (Apr. 18, 2007), ¶123: "The aging management program for the VY steam dryer during the twenty-year license renewal period will consist of well-defined monitoring and inspection activities that are defined in the GE SIL-644 guidelines and are identical to those being conducted during the current post-EPU phase. . .. The inspection activities will include visual inspections of the steam dryer every two refueling outages consistent with GE and BWR Vessel Internals Program (VIP) requirements. The inspections will focus on areas that have been repaired, those where flaws exist, and areas that have been susceptible to cracking based on reactor operating experience throughout the industry."
3
the parties." NEC Response at 4. The Staff s Answer makes no statement as to the potential applicability of the May 2007 inspection to Entergy's Motion.
- That the "NRC Staff also disagrees with Entergy['s representation that inspections to date confirm that there has been no fatigue-induced cracking of the steam dryer],
apparently'taking the position that there has been some fatigue-induced cracking, but not such as would generate loose parts, or cracks or tears that would result in excessive moisture carryover." NEC Reskonse. at 5. However, the Staff s Answer contains no such "position."' The Staff merely states that "[T]he monitoring that has been performed under the EPU program, and the inspections conducted to date (ije prior to the inspections to be conducted under the Steam Dryer Monitoring Plan),
confirm that fatigue induced cracking of the VY steam dryer such as would generate loose parts, or cracks or tears that would result in excessive moisture carrover is not occurring. I1d,." Affidavit of Jonathan G. Rowley, Kaihwa R. Hsu and Thomas G.
Scarbrough Concerning NEC Contention 3 (May 9, 2007), ¶10, emphasis in original.
The quoted statement clearly does not say that fatigue induced cracking has occurred at VY, but onily clarifies that the definition of unacceptable dryer performance includes "the generation of loose parts, or cracks or tears in the steam dryer that would result in excessive moisture carryover is not occurring." See id., ¶ 9.
Therefore, the Staff s Answer contains no new statement or argument to which NEC would be entitled to reply if 10 C.F.R. § 2.7 10(a) were applicable (which it is not).
4
For these reasons, and those set forth in the Staff s Motion to Strike, the Staff s motion should be granted and the NEC Response should be stricken.
Respectfully Submitted, David R. Lewis Matias F. Travieso-Diaz PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W.
Washington, DC 20037-1128 Tel. (202) 663-8000 counsel for Entergy Dated: June 8, 2007 5
UINITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
Entergy Nuclear Vermont Yankee, LLC ))) Docket No. 5 0-27 1-LR and Entergy Nuclear Ope rations, Inc. ) A8LBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station))
CERTIFICATE OF SERVICE I hereby certify that copies of "Entergy's Response in Support of NRC Staff s Motion to Strike NEC'.s Response to NRC Staff s Summary Disposition Answer," dated June 8, 2007, were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, or with respect to Judge Elleman by overnight mail, and where indicated by an asterisk by electronic mail, this 8tht day of June, 2007.
- Administrative Judge *Administrative Judge Alex S. Karlin, Esq., Chairman Dr. Richard E. Wardwell Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 I. 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(Anrc. gov rew(&,nrc. gov
- Administrative Judge
- Secretary Dr. Thomas S. Elleman Att'n: .Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop 0-16 Cl 5207 Creedmoor Road, #101, U.S. Nuclear Regulatory Commission Raleigh, NC 27612. Washington, D.C. 20555-0001 tse(aJ~nrcjgov; elleman4E~eos.ncsu.edu secy(~nrc. gov , hearingdocket(o-)nrc. gov
Offi~ce of Commission Appellate Adjudication Atomic Safety and Licensing Board Mail Stop 0-16 ClI 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,
- Mitzi A. Young, Esq. *Sarah Hofmiann, Esq.
- Mary C. Baty, Esq. Director of Public Advocacy Office of the General Counsel Department of Public Service
'Mail Stop 0- 15 D2 1 112 State Street - Drawer 20
.U.S. Nuclear Regulatory Commission Montpelier, VT 05620-260 1 . W, Washington, D.C. 20555-0O0lmay(Wnrc.g6 ,v; Sarah.hofinannO),statexvt.us mcb 1(o-)nrc.gov
- ,Anthony Z. Roisman, Esq. *Ronald A. Shems, Esq.
National Legal Scholars Law Firm *Karen Tyler, Esq.
8,4 East Thetford Road Shems, Dunkiel, Kassel &Saunders, PLLC Lyme, NH 03768, 9 College Street aroisman~nationallegalscholars.com Burlington, VT 05401 rshems(a)sdkslaw.com kjyler(~sdkslaw.com
- Jennifer J. Patterson, Esq.
Senor Assistant Attorney General Environmental Protection Bureau 3.3 Capitol Street Concord, NH 03301 Jennifer.Patterson@doj .nh.gov
.Poo~b Matias F. Travieso-Diaz 2