ML072080013
| ML072080013 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 07/26/2007 |
| From: | Baty M NRC/OGC |
| To: | |
| M C Baty, OGC,301-415-1324 | |
| References | |
| 50-271-LR, ASLBP 06-849-03-LR, RAS 13919 | |
| Download: ML072080013 (10) | |
Text
July 26, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ENTERGY NUCLEAR VERMONT YANKEE, LLC )
Docket No. 50-271-LR AND ENTERGY NUCLEAR OPERATIONS, INC.
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ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station)
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NRC STAFF ANSWER TO NECS SUPPLEMENT TO OPPOSITION TO ENTERGYS MOTION FOR
SUMMARY
DISPOSITION OF NEC CONTENTION 3 (STEAM DRYER)
INTRODUCTION In accordance with the Atomic Safety and Licensing Board (Board) Order Granting Motion to Defer and Setting Schedule (July 13, 2007), the NRC Staff (Staff) herein answers New England Coalition, Inc.s (NEC) Supplement to Opposition to Entergys Motion for Summary Disposition of New England Coalition Contention 3 (Steam Dryer) (NEC Supplement) filed by NEC on July 19, 2007. For the reasons set forth below, the Staff again submits that there is no genuine dispute of material fact with respect to the issue raised by NEC in its Contention 3. NECs Supplement raises issues outside the scope of this proceeding, relies on mere speculation, and fails to set forth specific facts demonstrating a genuine issue of material fact. Accordingly, Entergy is entitled to a decision in its favor as a matter of law on NEC Contention 3 and its motion for summary disposition should be granted.
BACKGROUND NECs Contention 3 alleges: Entergys license renewal application does not include an adequate plan to monitor and manage aging of the steam dryer during the period of extended operation. Memorandum and Order (Ruling on Standing,
Contentions, Hearing Procedures, State Statutory Claim, and Contention Adoption),
Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station),
LBP-06-20, 64 NRC 131, 187 (2006). On April 19, 2007, Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (collectively Entergy) filed Entergys Motion for Summary Disposition of New England Coalitions [NEC] Contention 3 (Steam Dryer) (SD Motion). On May 9, 2007, the Staff and NEC filed answers to Entergys SD Motion. See NRC Staffs Answer in Support of Entergys Motion for Summary Disposition of New England Coalition Contention 3 (Steam Dryer); New England Coalition Incs (NEC) Opposition to Entergys Motion for Summary Disposition of NECS Contention 3 (Steam Dryer).
On June 12, 2007, the Board held a pre-hearing conference call. During the call NEC raised concerns about the availability of steam dryer inspection data prior to a Board ruling on Entergys SD Motion. See Transcript of Pre-Hearing Conference (June 12, 2007) at 550-551. As a result of the call, the Board gave NEC until June 19, 2007 to file a motion in accordance with 10 C.F.R. §§ 2.323 and 2.710(c) requesting the Board withhold its decision on Entergys SD Motion until the results of Vermont Yankees May 2007, steam dryer inspection have been made available to the parties. See Transcript at 559. On June 19, 2007, NEC filed a motion (NEC Motion) requesting that the Board withhold its decision on the SD Motion until after July 19, 2007, so that NEC could review the steam dryer inspection data (which was not available at the time answers to Entergys SD Motion were due) and file a supplement to its May 9th Answer.
On July 13, 2007, the Board granted NECs request to withhold its decision and set deadlines of July 19, 2007, for NEC to file its supplement, and July 26, 2007, for any responses to NECs supplement. See Order Granting Motion to Defer and Setting Schedule) (July 13, 2007) (unpublished) at 2. On July 19, 2007, NEC filed the instant
Supplemental Answer to Entergys motion for summary disposition of NEC Contention 3 (Steam Dryer). Attached thereto, as Exhibit 1, was the Second Declaration of Ulrich Witte (Second Witte Declaration).
DISCUSSION I.
Legal Standards In ruling on a motion for summary disposition, the presiding officer applies the standards for summary disposition set forth in 10 C.F.R. § 2.710(d)(2). See 10 C.F.R.
§ 2.1205(c). A moving party is entitled to summary disposition of a contention as a matter of law if the filings in the proceeding, together with the statements of the parties and the affidavits, demonstrate that there is no genuine issue as to any material fact.
See 10 C.F.R. §§ 2.1205 and 2.710(d)(2); see also Advanced Medical Sys., Inc. (One Factory Row, Geneva, Ohio), CLI-93-22, 38 NRC 98, 102-03 (1993); Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 179-80 (2005).
A party seeking summary disposition bears the burden of demonstrating the lack of a genuine issue of material fact, and the evidence submitted must be construed in favor of the non-moving party. See Sequoyah Fuels Corp. & Gen. Atomics Corp. (Gore, Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-17, 39 NRC 359, 361, aff'd, CLI-94-11, 40 NRC 55 (1994).
A party opposing a motion for summary disposition cannot rely on mere allegations or denials of the moving partys facts; rather, the non-moving party must set forth specific facts demonstrating a genuine issue of material fact. See 10 C.F.R.
§ 2.710(b); Advanced Medical Sys., Inc., 38 NRC at 102. Bare assertions and general denials, even by an expert, are insufficient to oppose a properly supported motion for summary disposition. Duke Cogema Stone & Webster, LBP-05-04, 61 NRC at 81 (citing
Advanced Med. Sys., Inc., CLI-93-22, 38 NRC at 102; Houston Lighting & Power Co.
(Allens Creek Nuclear Generating Station, Unit 1), ALAB-629, 13 NRC 75, 78 (1981).
A party cannot overcome a motion for summary disposition by submitting an unsupported affidavit. Duke, 38 NRC at 81. An expert affidavit is supported only if the expert is competent to give an expert opinion and only if the factual basis for that opinion is adequately stated and explained in the affidavit. Id. When an experts qualifications are challenged, the burden is on the party sponsoring the expert to demonstrate the experts qualifications. See, Duke Energy Corp. Catawba Nuclear Station Units 1 &2)
CLI-04-21, 60 NRC 21, 27 (2004).
II.
NECs Supplement Raises Issues Outside the Scope of This Proceeding NECs concerns, as raised in its Supplement, about Entergys management of the steam dryer during the remainder of Vermont Yankees current license term are concerns about Vermont Yankees current operations. License renewal proceedings are limited in scope to avoid duplication of the Commissions on-going review and oversight of operating reactors. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 7 (2001) (citing Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991)). The license renewal process focuses on potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs. Id. License renewal applicants must demonstrate how their programs will be effective in managing the effects of aging during the period of extended operation. Id. at 8 (citing 10 C.F.R. § 54.21(a)). Issues involving the facilitys current licensing basis are outside the scope of license renewal.
Id. at 8-9. Therefore, the concerns raised by NEC in its Supplement about Entergys management of the steam dryer during the current license term are outside the scope of this proceeding.
The results of Entergys 2006 steam dryer inspection are not within the scope of this proceeding. NEC Contention 3 alleges that Entergys plan to manage the effects of aging on Vermont Yankees steam dryer during the period of extended operation is inadequate. See Vermont Yankee, 64 NRC at 187. Entergys steam dryer aging management program is comprised of regular, recurring monitoring (plant parameter monitoring) and inspection in accordance with industry guidance (i.e., GE-SIL-644). See Staff Answer, Affidavit of Jonathan R. Rowley, Kaihwa R. Hsu, and Thomas G.
Scarbrough Staff Answer Affidavit at ¶11. The Staff reviewed Entergys steam dryer aging management program and found it adequate. See Id.; Safety Evaluation Report with Confirmatory Items Related to License Renewal of Vermont Yankee Nuclear Power Station (Mar. 2007) (ML070870378) at 3-56 to 3-64, 3-189 to 3-190.
The purpose of the steam dryer aging management program is to identify potential degradation of the steam dryer so that corrective actions may be taken, not to ensure that degradation does not occur. See Staff Answer Affidavit at ¶12. Conducting inspections and taking appropriate corrective actions based on inspection results are part of the program. The inspection results themselves, however, are not part of the program. Therefore, the 2006 steam dryer inspection results are not relevant to whether Entergys proposed aging management program is adequate for the extended period of operation. They only pertain to Vermont Yankees current licensing basis. The results are outside the scope of this proceeding and do not raise a genuine issue of material fact.
III.
NECs Opposition to Entergys SD Motion Relies on Speculation In its Supplement, NEC speculates that both Entergys current steam dryer management and inspection program and its steam dryer aging management program rely on stress load analysis (Acoustic circuit model (ACM) and computational flow
dynamics (CFD) model) performed by Entergy as part of Vermont Yankees extended power uprate ascension testing. See Supplement at 1. In its SD Motion, Entergy stated that its steam dryer aging management program does not rely on ACM or CFD analyses, which were used to evaluate pressure loads acting on the steam dryer at extended power uprate conditions. See Staff Answer Affidavit at ¶6; Safety Evaluation Related to Amendment 229 to Facility Operating License No. DPR-28 (Mar. 2, 2006)
(ML060050028) at 46. NEC and its experts do not proffer specific facts supporting their speculation that Entergys program relies on stress load analysis. NECs speculation does not raise a genuine issue of material fact.
IV.
NECs Supplement is Not Supported By Ulrich Wittes Affidavit NECs supplement relies upon Ulrich Wittes review of the 2006 steam dryer inspection results to 1) support its assertion that fatigue cracking may be occurring,
- 2) cast doubt on the validity of the stress load analysis, and consequently support their contention that Entergys steam dryer aging management program is inadequate. See NEC Supplement at 2. Mr. Ulrichs affidavit does not support NECs assertions either that fatigue cracking is occurring or that Entergys steam dryer aging management program relies on stress load analysis because it is entirely inconclusive. Mr. Ulrichs affidavit states that he reviewed Entergys documentation of its 2006 steam dryer inspection, including videos of the visual inspections of the steam dryer, but he can make no conclusions about the results. See Second Declaration of Ulrich Witte at ¶¶ 3,
- 18. NECs Supplement, which relies on Mr. Wittes inconclusive and speculative affidavit fails to set forth specific facts demonstrating a genuine issue of material fact as required by 10 C.F.R. § 2.710(b) to overcome a motion for summary disposition.
In addition, Mr. Witte does not appear to be qualified by knowledge, skill, training, experience, or education, to opine on the results of Vermont Yankees 2006 Steam
Dryer inspection. Although Mr. Witte holds a B.A. in physics and has over twenty-six years of professional experience in engineering, licensing, and regulatory compliance of commercial nuclear facilities, his curriculum vitae does not evidence knowledge, skill, training, or experience related analyzing and interpreting inspection results, particularly steam dryer inspection results. See New England Coalition, Inc.s (NEC) Opposition to Entergys Motion for Summary Disposition of NECs Contention 4 (Flow-accelerated Corrosion), Attachment A (July 19, 2007). Mr. Wittes expertise appears to lie in the areas of management, licensing, and regulatory compliance. Thus, Mr. Witte appears to be qualified only to opine on whether inspection results are properly documented; he does not appeared to be qualified to analyze and interpret inspection results. Because Mr. Witte does not appear to be qualified to analyze and interpret Vermont Yankees steam dryer inspection results, his statements are speculative and cannot generate a genuine issue of material fact.
CONCLUSION For the reasons set forth above NECs Supplement raises issues outside the scope of this proceeding, relies on mere speculation, and fails to set forth specific facts demonstrating a genuine issue of material fact. Accordingly, the Board should grant Entergys motion for summary disposition of NEC Contention 3.
Respectfully submitted,
/RA/
Lloyd B. Subin Counsel for NRC Staff
/RA/
Mary C. Baty Counsel for NRC Staff Dated at Rockville, Maryland this 26th day of July, 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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ENTERGY NUCLEAR VERMONT YANKEE, LLC )
Docket No. 50-271-LR AND ENTERGY NUCLEAR OPERATIONS, INC.
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(Vermont Yankee Nuclear Power Station)
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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF ANSWER TO NEC SUPPLEMENT TO OPPOSITIONTO ENTERGYS MOTION FOR
SUMMARY
DISPOSITION OF NEC CONTENTION 3 (STEAM DRYER) in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 25th day of June, 2007.
Alex S. Karlin, Chair Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@nrc.gov Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew@nrc.gov Thomas S. Elleman*
Administrative Judge Atomic Safety and Licensing Board 5207 Creedmoor Road, #101 Raleigh, NC 27612 E-mail: elleman@eos.ncsu.edu Office of Commission Appellate Adjudication Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAmail@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Sarah Hofmann, Esq.*
Director of Public Advocacy Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 E-mail: sarah.hofmann@state.vt.us Ronald A. Shems, Esq.
Karen Tyler, Esq.
Shems Dunkiel Kassel & Saunders, PLLC 91 College Street Burlington, VT 05401 E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.com Marcia Carpentier, Esq.
Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mxc7@nrc.gov Peter C. L. Roth*
Senior Assistant Attorney General Office of the Attorney General 33 Capitol Street Concord, New Hampshire 03301 E-mail: peter.roth@doj.nh.gov Anthony Z. Roisman, Esq.*
National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768 E-mail:
aroisman@nationallegalscholars.com David R. Lewis, Esq.*
Matias F. Travieso-Diaz*
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.co
/RA/
Mary C. Baty Counsel for the NRC Staff