ML072130244

New England Coalition, Inc.'S (NEC) Motion to File Supplemental Authority in Support of NEC Opposition to NRC Staff Motion to Strike NEC Response to NRC Staff'S Summary Disposition Answer

ML072130244
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	07/25/2007
From:	Tyler K New England Coalition, Shems, Dunkiel, Kassel, & Saunders, PLLC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, FOIA/PA-2007-0313, RAS 13945
Download: ML072130244 (21)

Text

QAS 13956 DOCKETED USNRC UNITED STATES July 31, 2007 (3:55pm)

NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY RULEMAKINGS AND Before the Atomic Safetv and Licensin~Board ADJUDICATIONS STAFF In the Matter of

)

Entergy Nuclear Vermont Yankee, LLC 1 Docket No. 50-27 1-LR and Entergy Nuclear Operations, Inc. ) ASLB No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) 1 NEW ENGLAND COALITION, INC.'S (NEC) MOTION TO FILE SUPPLEMENTAL AUTHORITY IN SUPPORT OF NEC OPPOSITION TO NRC STAFF MOTION TO STRIKE NEC RESPONSE TO NRC STAFF'S

SUMMARY

DISPOSITION ANSWER New England Coalition, Inc. (NEC) moves to file the June 19,2007 Atomic Safety and Licensing Board (ASLB) decision attached hereto as Exhbit 1 as supplemental authority in support of NEC's June 8,2007 Opposition to the NRC Staffs Motion to Strike NEC's Response to NRC Staffs Summaiy Disposition Answer. NEC specifically requests that the Board consider the following discussion:

On a separate procedural note, on May 7,2007, Citizens filed a response to the NRC Staffs answer to AmerGen's request for summary disposition.

On May 9,2007, AmerGen moved to strike Citizen's response, arguing that it was not authorized by the relevant regulation (10 C.F.R. 5 2.1205).

The NRC Staff filed an answer on May 16,2007 supporting AmerGen's motion to strike. The relevant regulatory language and structure, on the one hand, provides some support for the argument advanced by AmerGen and the NRC Staff; on the other hand, we would find it to be contrary to fbndamental fairness if the regulations absolutely deprived Citizens of the opportunity to respond to new facts or arguments presented by the Staff in support of AmerGen's sumnary disposition motion.

In the Matter of Amer-Gen Energy Company, LLC (License Renewalfor Oyster Creek Nuclear Generating Station), Docket No. 50-02 19-LR, ASLBP No. 06-844-0 1-LR, Memorandum and Order Denying AmerGen's Motion for Summary Disposition (June 19,2007) at 15-16 n. 14.

NEC has consulted with: all parties to~this proceeding concerning this motion. The State of Vermont and the State of New Hampshire do not object. The NRC Staff takes no position. Entergy is opposed.

WHEREFORE, the Board should grant NEC's Motion to File Supplemental Authority, and consider the ASLB decision attached hereto as Exhibit 1 in support of NEC's Opposition to the NRC Staff's Motion to Strike NEC's Response to NRC Staff'sSummary Disposition Answer (June 8, 2007).-

July 25, 2007 New England Coalition, Inc.

by: t6A -

Ronald A. Shems

" -Karen Tylef SHEMS DUNKIEL KASSEL & SAUNDERS PLLC Attorneys for NEC 2

Exhibit 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

E. Roy Hawkens, Chairman Dr. Paul B. Abramson Dr. Anthony J. Baratta' In the Matter of Docket No.. 50-0219-LR AMERGEN ENERGY COMPANY, LLC ASLBP No. 06-844-01-LR (License Renewal for Oyster Creek Nuclear June 19, 2007 Generating Station)

MEMORANDUM AND ORDER (Denying AmerGen's Motion for Summary Disposition)

Pending before this Board is a motion for summary disposition filed by AmerGen Energy Company, LLC ("AmerGen"), who has applied for a twenty-year renewal of its license for the Oyster Creek Nuclear Generating Station ("Oyster Creek").1 The intervenors in this case - six organizations hereinafter referred to collectively as Citizens 2 - argue that AmerGen fails to satisfy the standards for granting summary disposition. 3 We agree with Citizens, and we therefore deny AmerGen's motion.

I. BACKGROUND See AmerGen Energy Company, LLC Motion for Summary Disposition on Citi-zens' Drywell Contention (Mar. 30, 2007) [hereinafter AmerGen Summary Disposition Motion].

The NRC Staff supports AmerGen's motion. See NRC Staff Response to AmerGen's Motion for Summary Disposition (Apr. 26, 2007) [hereinafter NRC Staff Response].

2 The six organizations are Nuclear Information and Resource Service, Jersey Shore Nuclear Watch, Inc., Grandmothers, Mothers and More for Energy Safety, New Jersey Public Interest Research Group, New Jersey Sierra Club, and New Jersey Environmental Federation.

3 See Citizens' Answer Opposing AmerGen's Motion for Summary Disposition (Apr.

26, 2007) [hereinafter Citizens' Answer].

In October 2006, this -Board admitted for. adjudication the following contention proffered' byCitizens challenging AmerGen's license renewal application: "AmerGen's scheduled' UT-

'monitoring frequency in the sand bed-region [during the period of extended operation] is insuffi-cient to maintain an adequate safety margin" (LBP-06-22,' 64 NRC 229, 240 (2006)). More precisely, this Board stated that the "issue presented is whether, in.light of the uncertainty regarding the existence vel non of a corrosive environment in the sand bed region and the cor-relative uncertainty regarding corrosion rates in that region, AmerGen's UT monitoring plan is sufficient to ensure adequate safety margins" (ibid.). 4 4 During the course of this proceeding, this Board concluded that the following contentions proffered by Citizens were not admissible: (1) Citizens' challenge to AmerGen's monitoring program for areas of the drywell shell below and above the sand bed region (LBP 11, 63 NRC 391, 396-400,(2006)); (2) Citizens challenge'asserting -that AmerGen be directed to conduct a root cause analysis of the corrosion problem (id. at 400-01); (3) Citizens' challenge to AmerGen's modeling for deriving acceptance criteria (LBP-06-22, 64 NRC at 237-40; Licensing Board Memorandum and Order at 6-12 (Apr. 10, 2007) (unpublished)); (4) Citizens' challenge to AmerGen's monitoring program in the sand beddregion for moisture and coating integrity (LBP-06-22, 64 NRC at 244-48); (5) Citizens' challenge to AmerGen's program for responding to wet conditions and coating failure in the sand bed region (id. at 248-49); (6) Citizens'"challenge to the 'scope of AmerGen's UT monitoring program in the sand bed region (id. at 249-51; Licensing Board Memorandum and.Order at 7-19 (FebI 9, 2007) (unpublished) [hereinafter Feb. 9 Order]);

(7) Citizens' challenge to AmerGen's quality assurance program for measurements in the sand bed region'(LBP-06-22, 64 NRC at 251-53); and (8) Citizens' challenge to AmerGen's methods for analyzing ULT results in the sand bed region (id. at 254-55).

- AmerGen tookits most recent UT measurements in the sand bed region of the drywell shelf during the plant's refueling.outage in October 2006... It will take measurements again in 2008 and thereafter at four-year intervals,- unless the measurements warrant a different interval.

See AmerGen Summary Disposition'Motion, Exh. 3, Letter from Michael P. Gallagher, AmerGen, to NRC (Feb. 15, 2007) (Encl. 1).

On March 30, 2007, AmerGen submitted a motion for summary disposition, arguing that "there is nogenuine issue of material fact that. calls into question whe.ther.AmerGen's scheduled UT monitoring frequency for the sand bed region of the drywell is sufficient to-maintain an adequate safety margin .... [and] AmerGen is [therefore] entitled to a decision as a matterof law" (AmerGen Summary Disposition Motion at-3). The NRCStaff supports AmerGen's motion (NRC Staff Response at 8-12), andCitizens: oppose it (Citizens',,Answer.at 22).

.A. ANALYSIS A. Legal Standards Governing Summary Dis osition Motions..

Pursuant.to 1:0 C.F.R.. § 2.1205(a), a party in a Subpart L:proceeding may submit a motion for summary dispqsition. :.Section 2.1205(c) states that the, resolution of such motions shall be governed by the standards for summarydisposition set forth-in Subpart, G. Pursuant to Subpart G, a moving party shall be granted summary disposition "if the filings in the proceeding,

... 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 C.F.R. § 2.71 0(d)(2)).

Motions for summary disposition are analogous to motions for summary judgment and, accordingly, are evaluated pursuant to the standards governing summary judgment in Rule 56 of the Federal Rules of Civil Procedure. See Advanced Med. Sys., Inc. (One Factor Row, Geneva, Ohio), CLI-93-22, 38 NRC 98, 102 (1993). Pursuant to Rule 56, the movant is required to.show the "absence of a genuine issue of material fact" and that, under the undisputed material facts,

the movant is entitled:to a decisionas a matterof law (Celotex Corb. v. Catrett, 477 U.S-. 317,1; 323, 325 (1986)). To forestall the granting of the'. motion, the non-movant must designate "specific facts-showing that there is a genuine issue [of material fact] for trial" (id. at 324).

Facts are "materialr" if they will "affect the outcome of the trial under the governing law" (Anderson v. Liberty Lobby, Inc., 477 U:S. 242, 248 (1986)). Issues are genuine only if a reasonably jury considering the evidence presented could find for the non-moVing party (id. at 249). In determining whether a genuine question of material fact exists, a judge must consider all evidence in the light most favorable to the non-movant (Hunter v. Byant, 502. U.Se 224, 233 (1991)).

Summary judgment is not appropriate if it would require a judge to engage in the making of '"[c]redibility determinations, the weighing of the evidence, [or] the drawing of legitimate infer-ences from the facts'" (Anderson, 477 U.S. at 255), because the performance of such functions signals the existence of a genuine factual issue whose resolution should be based on a hearing, not a summary judgment motion. Similarly, summary judgment is not appropriate if it would require a judge to assess the correctness of facts and conclusions that are embodied in the competing, well-founded opinions of the parties' experts. See United States V. Alcan Aluminum Corp., 990 F.2d 711, 722-23 (2d Cir. 1993); Norfolk S. Corp. v. Oberly, 632 F. Supp. 1225, 1243 (D. Del. 1*986), aff'd, 822 F.2d 388 (3d Cir. 1987); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-39, 54 NRC 497, 509-10 (2001).

B. The Existence Of Genuine Issues Of Material Fact Preclude The Granting Of AmerGen's.Request For Summary Disposition

1. The Factual Issues Included in the Admitted Contention "

The parties are in sharp disagreement about-the litigable issues includedlin'the admitted contention. 5 Defining those issues is critical so this Board may properly analyze AmerGen's.

See AmerGen Motion to Strike (May 4, 2007); Citizens' Opposition to AmerGen

summary disposition motion and so-the parties may prepare -a relevant and focused record for the evidentiary hearing.

In Citizens' view, the litigable issues in the admitted contention include disputes regard-ing the acceptance criteria (Citizens' Answer at 5-8), and.the methods for analyzing UT results (id. at 8-13). In.addition, Citizens appear to seek to litigate some aspect of the scope of the UT monitoring program; as evidenced by their experts. reference to that issue. See Citizens' Answer, Memorandum from Rudolf H. Hausler to Richard Webster at 1 (Apr. 25, 2007) [herein-.

after Hausler Memorandum].

Motion, to Strike (May 1,. 2007) [hereinafter Citizens' Opposition to Motion to Strike] NRC Staff Answer to AmerGen's Motion to'Strike Citizens' Summary Disposition Answer (May 11, 2007)

[hereinafter NRC Staff Answer to Motion to Strike].

AmerGen argues that, based on this Board's prior rulings, Citizens'are' foreclosed from raising challenges regarding (AmerGen Motion to Strike at 2-5): (1) the derivation of the'accep-tancecriteria; (2) the established methods for analyzing UT results; and (3) the scope of the UT monitoring program. In addition, AmerGen argues that Citizens may not rely on new information acquired by AmerGen' during its 2006 performance of UT measurements (id. at 5-6): AmerGen asks this Board to strike those portions of Citizens' Answer that touch on these matters.6 6 The NRC Staff disagrees with AmerGen to the extent AmerGen asserts that Citizens may not rely on new information - including information acquired by AmerGen during its 2006 performance of UT measurements - that is relevant to, and within the scope of, the a.dmitted contention (NRC .Staff Answer~to Motion to Strike at 6-7).. Aside from that, the Staff supports AmerGen's motion to strike.(ki. at 4-7).

We grant AmerGen's request in part. AmerGen is correct in arguing that Citizens are precluded from raising challenges regarding: (1) the derivation of the acceptance criteria for the drywell shell; (2) the established methods for analyzing UT results; and,.(3) the scope 'of the UT monitoring program. This Board previously rebuffed Citizens' efforts-to raise such challenges on the ground that Citizens failed to raise them in a timely manner orfailed to show that they satisfied the admissibility requirements in 10 C.F.R..§ 2.309(f)(1). See supra note 4. These challenges are thus not litigable, and Citizens may not resurrect them in effort to avoid summary disposition; Nor do we expect Citizens to attempt to raise these issues further in the course of this proceeding. 7 AmerGen is incorrect, however, to the extent it argues that Citizens may not rely on new information (e.g., information acquired by AmerGen during its 2006 performance of UT measure-ments) that is relevant to, and within the scope of, the admitted contention. As a matter of common sense, to render an informed and accurate factual finding on an issue incident to an admitted contention, a Board must consider the factual record in its entirety, including new, pertinent information that comes to light after the contention is admitted. AmerGen's assertion to the contrary would, if accepted, require a Board torender a factual finding on an incomplete, and possibly misleading, factual record. Plainly,,the process advocated by AmerGen is untenable.on its face. See Citizens' Opposition to Motion to Strike at 7-10; NRC Staff Answer to Motion to Strike at 6-7.8

That these issues are beyond the scope of this'proceeding does not mean that

.their safety implications are not considered by the NRC Staff. In the context of a license renewal application, the "NRC Staff will consider and resolve all safety questions regardless of whether any hearing takes place" (Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1

& 2), CLI-98-25, 48 NRC 325, 350 (1998)). Here, the Staffs extensive consideration of safety questions relating to corrosion of the drywell shell may be found in the Safety Evaluation Report Related to the License Renewal of Oyster Creek Generating Station (Mar. 2007).

8 We emphasize that the new information a party seeks to introduce into the record must be relevant to, and within the scopelof, the admitted contention. A party may not attempt to

S-.8-Accordingly,'consistent with the above discussion, we 'grant AmerGen's motion to strike in part, and we deny it in part.9 .

use new information to expand the scope of an admitted contention withoutfirst'obtaining authority from the Board-to admit a new,,or to amend an existing, contention. -See 10 C.F.R. § 2.309(f)(2).-

..The granting of AmerGen's motion does not result in the actual expungement of material from the record;, rather, we simply decline to consider the offending material. The reason such material is not purged from the record is that it could become relevant in'a subse-quent appeal:. See PPL Sussquehanna LLC (Susquehahna Steam Electric Station', Units 1 & 2),

LBP-07-4, 65 NRC , n.86 (slip op. at 18 n.86) (Mar. 22, 2007).

.'Jo be clear,, in our view, the relevant factual issues.that remain litigable in this proceed-ing pertain to: (1) the amount by which the remaining thickness of the shell, exceeds the estab-lished acceptance criteria in the sand bed region; (2) the existence vel non of a corrosive environment, taking into account whether sources of water have been eliminated as well as whether, regardless of the potential existence of water, a corrosive environment can exist in. the sand bed region after the sand was removed and the protective coating applied, particularly considering that sand is no longer there to hold water,in the previously corroded area of the shell; and (3).the corrosion rate - including the uncertainties related to its determination1 ° - that reasonably may be expected in the sand bed region. Establishment.of these facts will, in turn, determine how rapidly the thickness is approaching the acceptance criteria and, thus, the adequacy of the frequency of UT measurements AmerGen proposes to take during the period of extended operation.

We do not discount.the possibility that the factual issues identified above may contain ancillary issues that require resolution. For example, Citizens are not proscribed from arguing 0 .Uncertainties relating to the. corrosion rate. may derive from a variety of sources, including the limited accuracy.of the measurement method used,: the use of a limited number of data points, and the method used to analyze and interpret the data. Thus, in addressing uncer-'

tainties, the parties may. provide evidence associated with the measurement technique as well as with the interpretation of the data. The Board's consideration of this information will be for the purpose of determining how much the actual values of thickness can reasonably be-expected to:

differ from the measured values, which",in turn,.will inform the Board's judgment regarding; whether AmerGen has demonstrated that its UT monitoring plan is sufficient to ensure adequate.

safety margins.

that the frequency of UT measurements is insufficient to ensure that an adequate safety margin is maintained under the protective epoxy coating. This argument - which is directed to a discrete portion of the sand bed region (i.e., the shell under-the epoxy coating)'- plainly is

encompassed in the contention that additional UT measurements are necessary in the sand bed region"due to the "uncertainty regarding the existence ... of a corrosive environment in th[at]

region and the correlative uncertainty regarding corrosion rates in that region"*(LBP-06-22, 64 NRC at 240 ',See.alsoid. at 242 (Citizens provide expert opinion in support of their assertion that UT monitoring is. necessary even where visual inspections of epoxy coating do not reveal coating deterioration, because "corrosion may occur under epoxy coating in the absence of visual deterioration due to nonvisib!e ... pinholes").

Similarly, although Citizens may not challengethe' derivation or validity of the established acceptance criteria or the methodology for analyzing UT~results, they are not precluded from arguing that AmerGen's application of acceptance criteria and anaiytic :methodology to the 2006 UT results was inconsistent with past practice. See Citizens' Answer at 5-8, 10. Such a challenge, if advanced by Citizens, would not be an attack on the validity of AmerGen's established acceptance criteria and methodology for analyzing UT results. Rather, it would be an assertion that AmerGen's unexplained deviation from established, valid practices casts doubt on. the most recent analysis. Such a challenge would go to the heart of ,the admitted contention, because it would. be relevant to determining'whetherAmerGen's most recent: assessment of UT measurements provides a reasonable assurance of safe operation until the next scheduled UT monitoring is performed. Hence, if Citizens were to provide adequate support for such an argument and indicate with sound technica'l reasoning how the difference of application has led

- or reasonably could be expected to lead - to differing interpretations of remaining thickness, AmerGen would be required to rebut those arguments.

jhe list of potentialancillary issues identified above may not be panoptic. 1 ' It must be emphasized, however, that the scope of the admitted contention is circumscribed, and we,.

expect the parties will scrupulously endeavor to remain within that scope as they prepare testi:-

mony for the evidentiary hearing. In this regard, counsel for the NRC Staff previously expressed the "expectation,' that the parties, working together, will be able to narrow the issues included in direct testimony "through stipulations ... [and, therefore] probably should not be faced with testimony that is all over the place and not focused on the admitted.issue"(Tr., at 70 (Apr. 11, 2007)).- Achievement of this goal will have the salutary effectof conserving resources, promoting efficiency, and avoiding the need for motions-in limine. ,This Board will look with disfavor on further efforts by any party to raise matters that we have indicated -- either here or in prior rulings - are outside the scope of this proceeding.

2.:- AmerGen Failsto Show theAbsence of Genuine'Disputes Regarding the Adequacy of the Frequency of UT Measurements it Will Take in the Sand Bed Region of the Drywell Shell For example, Citizens have expressed concern that the "bathtub ring" of corrosion in the sand bed region may lead toa buckling failure. between AmerGen's performance of scheduled UT measurements, but they have not provided technical support showing that the extant :pattern of corrosion can result in such a failure.. We would expect the parties to address that issue, including whether the pattern of corrosion existing in the sand bed region - as that pattern may be exacerbated by.future corrosion - renders the shell susceptible to buckling ,

failure for which the buckling acceptance criteria was developed, and if not, what criteria (such as a leakage criteria) should apply. Cf. LBP-06-7, 63 NRC 188, 214-15 nn.23 & 24 (2006);.Feb.

9 Order at 21 (concurring opinion of Judge Abramson).

AmerGen appears to argue thatthere is no genuine dispute astothe following material facts: (1) AmerGen has taken corrective action to prevent water from reaching the sand bed' region of the drywell shell, thus preventing a corrosive environment-in that region (AmerGen Summary Disposition Motionat 1.6);.'(2) corrosion of the drywell shell. in the sand bed region' has been arrested (jibd); and (3) in light of the remaining thickness of the drywell shell in the sand bed region and the negligible corrosion that may reasonably be expected, the frequency of the UT measurements'that will be performed during the period of extended operations is sufficient to ensure an :adequate safety margin is. rnaintairied (id. at 17-18).12 Accordingly, argues AmerGen, Citizens' contention challenging the frequency of UT measurements may be rejected 'as a matter of law '(id at.19). In support of these arguments, AmerGen submits affidavits that Contain the expert opinions of Peter Tamburr0,; Barry Gordon, and Jon Cavallo, each of whom, for present purposes, we accept as8an expert in, the area of his'respective'testimony based on his education, experience, and knowledge. Mr. Tamburro provides a twelve-page affidavit in sup-port of his opinion that (1) Citizens' allegation regarding the amount of remaining safety margin lacks -merit, and (2) Citizens' allegation,regarding a future annual corrosion rate lacks merit. See AmerGen Summary DispositionMotion, Affidavit of Peter.Tamburro (Mar. 26,:2007). -Mr. Gordon provides a nine-page affidavit in support of hisl opinion that (1) Citizens' allegation regarding the corrosion rate of the epoxy-coated drywell shell lacks merit, and (2) AmerGen's frequency of UT measurements is adequate in any event to detect such, corrosion before the safety criteria is 12 AmerGen did not provide a separate statement of material facts,: aguing that the simplified process for summary disposition in Subpart L proceedings, 10 C.F.R. § 2.1205, dis-penses with the requirement in sectionm2.71 0(a) of providing a separate statement. :See Amer-Gen Summary Disposition Motion at 4 n.4. Assuming the correctness of AmerGen's argument, we nevertheless observe that, in ourtview, it is a far better'practice if a party seeking summary disposition provides a separate statement. As the Staff observes, where - as here - a movant fails to provide a separate statement of material facts, it may be "difficultpfor partiesand this Board to discern material facts that the movant believes are not in dispute and whether particular facts have been cohtroverted" (NRC Staff Response at 5 n.11).

- exceeded. See AmerGen Summary Disposition Motion, Affidavit of Barry Gordon (Mar. 26, 2007).; Mr. Cavallo' provides a nine-page affidavit in support of his opinion that Citizens' allegation regarding- the need for additional UT measurements for the epoxy-coated drywell shell lacks merit., See AmerGen Summary Disposition Motion, Affidavit, of Jon R. Cavallo (Mar. 26, 2007). 'A The NRC Staff supports-AmerGen's. motion for, summary disposition (NRC Staff:

Response at 8-12). Consistent with its position,, the: Staff submits affidavits, that contain the expert opinions of Hansraj Ashar and James Davis,, Ph.D., each of whom, for present purposes, we accept as an expert in the area of his respective testimonybased on his education, experi-ence, and knowledge. Mr. Ashar provides a four-page affidavit in support of his opinion that, in light of the corrective actions taken by AmerGen since the .1980s, the performance of UT measurements and visual inspections, every four years "provides reasonable. assurance that the drywell shell integrity (and the intended function of the drywell) will be.maintained during the period of extended operation" (NRC Staff Response, Affidavit of Hansraj G. Ashar at 4 (Apr. 26, 2007)). Dr. Davis provides a five-page affidavit in support of his opinion that Citizens' allegation regarding the need for additional UT measurements for the epoxy-coated drywell shell lacks merit. .See NRC Staff Response, Affidavit of James-A. Davis. Ph.D. (Apr. 26,,2007).,

Citizens oppose summarydisposition, arguing that genuine issues of material fact:

continue tounderlie their contention that AmerGen's plan to conduct UT monitoring :every fourý years is inadequate. In particular, Citizens argue that record evidence supports the conclusions that: (1) AmerGenh.has, without justification, been inconsistent in applying a local area accep-tance criterion, (Citizens' Answer at 5-8); (2) AmerGen has been inconsistent in determining the, safety margins (id. at 10-13); (3):a corrosive environment exists in the drywell shell, because AmerGen has not devised a way to ensure the refueling cavity does not eak, nor has. it defini-tively tracedthe source of all moisture in the drywell shell to therefueling cavity (id. at 14); (4)

~-*14 -

appreciable corrosion may occur under the epoxy coating (id. at 13-14); and (5) corrosion'-from both inside and outside the drywell shell - could occur at a rate that is so substantial 'that it warrants conducting UT monitoring at least every two years (ibid.). In support of their arguments opposing summary disposition; Citizens present the expert opinion of Rudolf Hausler, Ph.D.,

whom, for present purposes, we accept as an expert based on his education, experience, and knowledge. See Citizens' Answer, Affidavit of Dr. Rudolf H. Hausler-(Apr: 25; 2007): Cf. LBP-06-22, 64 NRC at 242 n.14 (Board previously deemed Dr. Hausler to be."qualified tomprovide an expert opinion with regard to matters relating to corrosion of the drywell shell").

-We,agree, with Citizens that summary, disposition is notappropriate. -At this juncture and on this.,record, we are Lunable to conclude as a matter of law that AmerGen's UT monitoring plan is sufficient to,.ensure adequate safety margins during the period of extended operation.,

Significant to our decision are4he reasonably supported expert opinions provided by the parties. The expert opinions provided by AmerGen and the NRC Staff, on the one hand, aver that AmerGen's UT- monitoring program-is adequate. ,In contrast, the expert opinion provided by Citizens' expert, Dr. Hausler, states that '!great uncertainty" surrounds all of the facts underlying AmerGen's "current approach of taking UT measurements once every four years in the sand bed region" (Hausler Memorandum at 2). For example, Dr. Hausler explains that, in his professional judgment, serious disputes exist regarding (id. at 1-12): (1) the remaining safety margins; (2) the potential for corrosion under the epoxy coating due to defects in and deterioration of the coating, which is - for all intents and purposes - past its useful life; and (3) future corrosion rates.

Viewing the evidence in the light most favorable to Citizens - as we are required-to do in the context of considering AmerGen's motion (Hunter, 502 U.S. at 233) - we are compelled to conclude that Dr. Hausler's version of the facts and his expert opinion derived therefrom demon-strate the existence of genuine issues regarding the adequacy of AmerGen's UT monitoring

program. 13 This conclusion mandates the rejection of AmerGen's summary disposition motion, because the resolution of factual disputes based on an evaluation of competing expert opinions "is not a basis upon which [this Board] may rest in granting a motion for summary [disposition]"

(Arrington v. United, States, 473 F.3d 329, 333 (D.C. Cir. 2006) (quoting George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005)). To rule otherwise would be to act in derogation of the Supreme Court's admonition that-a summary disposition motion "by no means authorizes trial on affidavits" (Anderson, 477 U.S. at 255).14, 13 I is Well established that a judge ought to be chary about granting requests for summary disposition where it would require the judge to assess the correctness of competing, reasonably supported views embedded in affidavits submitted bythe parties'ýexperts. See" cases cited supra p. 4; HudsonRiverkeeper Fund, Inc. v. Atl. Richfield Co., 138 F. Supp. 2d 482, 488-89 (S.D.N.Y. 2001) (citing cases); Seneca Meadows.,inc. v.:EDI Liquidating. Inc., 121 F.

Supp. 2d.248, 254 (W.D.N.Y. 2000) (citing cases). That principle applies here. Based on the record before us, we find that AmerGen has failed todemon~hstratethe absence ofa genuine dispute on-the litigable issues identified supra pp. 7-9.

14 On a separate procedural note, on May 7, 2007, Citizens filed a response to the NRC Staffs answer to AmerGen's request for summary disposition. OnMay9, 2007, AmerGen (I

'16 -

moved to strike Citizen's response, arguing that it was not authorized by the relevant regulation (10 C.F.R. § 2.1205). The NRC Staff filed an answer on May 16., 2007 supporting AmerGen's motion to strike. The relevant regulatory language and structure, on the one hand, provides some support for the argument advanced by AmerGen and the NRC Staff; on the other hand, we would find it to be contrary to fundamental fairness if the regulations absolutely deprived Citizens of the opportunity to respond to new facts or arguments presented by the Staff in' support of AmerGen's summary disposition motion. But we need not resolve the issue, because we have.concluded - without reference to or reliance on Citizens' response - that AmerGen's request for summary disposition lacks merit. We therefore dismiss as moot AmerGen's motion to strike Citizens' response to. the NRC Staffs summary disposition answer.

-'17 III. CONCLUSION For the foregoing reasons, we: (1) grant in part and deny in part AmerGen's motion to strike portion's of Citizens' Answer opposing AmerGen's request for summary disposition (supra Part II.B.1); (2) deny AmerGen's request for summary disposition (supra Part II.B.2); and (3) dismiss as moot AmerGen's motion to strike Citizens response to the NRC Staffs sumniary disposition answer (supra note 14).

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD 15

/Originalsigned by!

E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE lOriginal signed by E. Roy Hawkens for!

Dr. Paul B. Abramson ADMINISTRATIVE JUDGE lOriginal signed by!

Dr. Anthony J. Baratta ADMINISTRATIVE JUDGE Rockville, Maryland June 19, 2007 15 ,Copies of this Memorandum and Order were sent this date by Internet e-mail to counsel for: (1) AmerGen; (2) Citizens;: (3) the NRC Staff; and (4) New Jersey-.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board 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)

CERTIFICATE OF SERVICE I, Clara Cavitt, hereby certify that copies of NEW ENGLAND COALITION, INC.'S MOTION TO FILE SUPPLEMENTAL AUTHORITY IN SUPPORT OF NEC'S OPPOSITION TO NRC STAFF MOTION TO STRIKE NEC RESPONSE TO NRC STAFF'S

SUMMARY

DISPOSITION ANSWER, in the above-captioned proceeding were served on the persons listed below, by U.S. Mail, first class, postage prepaid; by Fed Ex overnight to Judge Elleman; and, where indicated by an e-mail address below, by electronic mail, on the 25th day of July, 2007.

Administrative Judge Office of the Secretary Alex S. Karlin, Esq., Chair Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov E-mail: ask2@nrc.gov Sarah Hofinann, Esq.

Administrative Judge Director of Public Advocacy Thomas S. Elleman Department of Public Service Atomic Safety and Licensing Board Panel 112 State Street, Drawer 20 5207 Creedmoor Road, #101 Montpelier, VT 05620-2601 Raleigh, NC 27612 E-mail: sarah.hofmiann@state.vt.us /

E-mail: elleman@eos.ncsu.edu Lloyd B. Subin, Esq.

Office of Commission Appellate Adjudication Mary C. Baty, Esq.

Mail Stop: O-16C1 Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop 0-15 D21 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: OCAAmailgnrc.gov Washington, DC 20555-0001 E-mail: lbs3@nrc. gov; mcb 1@nrc.gov Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Dan MacArthur, Director Mail Stop T-3 F23 Town of Marlboro U.S. Nuclear Regulatory Commission Emergency Management Washington, DC 20555-0001 P.O. Box 30 E-mail: rew@nrc.gov Marlboro, VT 05344 E-mail: dmacarthur@igc.org

Marcia Carpentier, Esq. David R. Lewis, Esq.

Atomic Safety and Licensing Board Panel Matias F. Travieso-ýDiaz Mail Stop T-3 F23 Pillsbury Winthrop Shaw Pittman LLP U.S. Nuclear Regulatory Commission 2300 N Street NW Washington, DC 20555-0001 Washington, DC 20037-1128 E-mail mxc7@rnrc.gov " E-mail: david.lewisgpillsburylaw.com matias.travieso-diaz(pillsburylaw.com Anthony Z. Roisman, Esq. )

National Legal Scholars Law Firm Peter C. L. Roth, Esq.

84 East Thetford Road Office of the Attorney General' Lyme, NH 03768 33 Capitol Street E-mail: aroisman@nationallegalscholars.com Concord, NH 03301 Peter.rothgdoi.nh.gov Callie B. Newton, Chair Gail MacArthur Lucy Gratwick, MarciaHamilton Town of Marlboro Selectboard P.O. Box 518 Marlboro, VT 05344

.netI E-mail: cbnewton@sover.net; marcialvnnIev1 SHEMS DUNKIEL KASSEL & SAUNDERS, PLLC by:

Clara Cavitt, for Ronald A. Shems, Esq. and

.. Karen Tyler, Esq...

.91 College Street' B,* rlington, VT 05401 802 860 1003 802 860 1208 (fax) rshems(,sdkslaw.comr ktyler(,sdkslaw.Corn for the firm Attorneys for New England Coalition, Inc.

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