ML080710122

NRC Staffs Motion in Limine to Strike Exhibits and Testimony Filed by Pilgrim Watch

ML080710122
Person / Time
Site:	Pilgrim
Issue date:	03/10/2008
From:	James Adler NRC/OGC
To:
SECY RAS
References
50-293-LR, ASLBP 06-848-02-LR, RAS J-9
Download: ML080710122 (25)

Text

March 10, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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Entergy Nuclear Generation Co. and

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Entergy Nuclear Operations, Inc.

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Docket No. 50-293-LR

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ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station)

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NRC STAFFS MOTION IN LIMINE TO STRIKE EXHIBITS AND TESTIMONY FILED BY PILGRIM WATCH Pursuant to 10 C.F.R. § 2.323 and the Atomic Safety and Licensing Boards Order (Revising Schedule for Evidentiary Hearing and Responding to Pilgrim Watchs December 14 and 15 Motions), dated December 19, 2007 (Scheduling Order), NRC Staff (Staff) hereby requests that the Board issue an Order, in limine, excluding from the evidentiary record of this proceeding portions of Pilgrim Watchs direct testimony,1 rebuttal testimony,2 and exhibits for the reasons set forth below.

BACKGROUND On January 25, 2006, Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (collectively, Entergy) filed an application to renew its operating license for the Pilgrim 1 See Pilgrim Watch Presents Statements of Position, Direct Testimony and Exhibits under 10 CFR 2.1207 at 2-3 (Jan. 29, 2008) (modified, with additional citations, on Mar. 3, 2008) (PW Statement);

Exhibit 1 to PW Statement (Gundersen Direct Testimony); Exhibit 2 to PW Statement (Ahlfeld Testimony).

2 See Testimony of Arnold Gundersen Supporting Pilgrim Watchs Contention 1 (March 6, 2008)

(Gundersen Rebuttal Testimony).

Nuclear Power Station (Pilgrim).3 Pilgrim Watch filed a petition to intervene in this matter on May 25, 2006, submitting five contentions for consideration by the Board.4 On October 26, 2006, the Board admitted two of those contentions.5 The Board subsequently disposed of one of the two admitted contentions via summary disposition,6 leaving Pilgrim Watch Contention 1 as the sole admitted contention in this proceeding. Contention 1, as admitted by the Board, reads:

The Aging Management Program proposed in the Pilgrim Application for license renewal is inadequate with regard to aging management of buried pipes and tanks that contain radioactively contaminated water, because it does not provide for monitoring wells that would detect leakage.7 As will be discussed in Section B of the Discussion below, the Board, on a number of occasions, has issued orders that have clarified the nature and scope of the admitted contention, specifying which issues are, and are not, relevant and material to the contentions adjudication.

Pursuant to the Scheduling Order,8 Pilgrim Watch, on January 29, 2008, filed the PW Statement. The Board, on February 21, 2008, issued an Order and Notice requiring Pilgrim 3 See Letter from Michael Balduzzi, Entergy Nuclear Operations, to U.S. NRC, Re: License Renewal Application, (January 25, 2006) (Agencywide Documents and Access Management System (ADAMS) Accession No. ML060300028).

4 Request for Hearing and Petition to Intervene by Pilgrim Watch (May 25, 2006).

5 Entergy Nuclear Generation Co. and Entergy Nuclear Operations Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257 (2006) (Memorandum and Order on Contentions).

6 See Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC __ (Oct. 30, 2007) (slip op.).

7 Memorandum and Order on Contentions at 315.

8 Scheduling Order at 3.

Watch, in and/or with its rebuttal testimony[to] provide specific citations to the testimony of its (or any other partys) experts and to exhibits, as relevant, for each of the statements made in its Statement of Position of January 29, 2008, and in any additional statements.9 In response to this Board Order, Pilgrim Watch, on March 3, 2008, filed a revised version of its PW Statement, and has since filed additional exhibits cited in the revised PW Statement.

The Staff also filed its Initial Statement of Position on Contention 1 on January 29, 2008, with Staff witness testimony attached.10 Subsequently, on March 6, 2008, the Staff filed a response, with rebuttal testimony attached, to the PW Statement.11 The Scheduling Order grants parties until March 10, 2008 to file motions in limine.12 Pursuant to that Order, the instant motion in limine requests that the Board strike from these proceedings certain portions of the testimony of Pilgrim Watchs witnesses and a number of Pilgrim Watchs exhibits.

Pursuant to 10 C.F.R. 2.323(b), Staff counsel contacted Pilgrim Watch and counsel for Entergy regarding this motion and both indicated that they would respond, as appropriate, to the motion when filed.

9 Order and Notice (Regarding Hearing, Limited Appearance Session, and Additional Questions for Parties) at 2 (Feb. 21, 2008).

10 NRC Staff Initial Statement of Position on Contention 1 (Jan. 29, 2008).

11 NRC Staff Response to Initial Presentations on Contention 1, Rebuttal Testimony and Response to Board Questions (Mar. 6, 2008) (Staff Rebuttal).

12 Scheduling Order at 3.

DISCUSSION A.

LEGAL STANDARD In NRC adjudicatory proceedings, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. 10 C.F.R. § 2.337. Even when a document does contain relevant, material, reliable, and not-unduly-repetitious evidence, [i]mmaterial or irrelevant parts of [the] document will be segregated and excluded as far as is practicable. Id.

Accordingly, NRC regulations expressly empower Boards to strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative, or cumulative and to restrictevidence and/or arguments that exhibit such qualities. 10 C.F.R. § 2.319(d) and (e). The striking of presentations or responses on these grounds may be done by the Board either on motion or sua sponte. 10 C.F.R. § 2.319(d). In addition, opinions by experts qualified by knowledge, skill, training or education must have an adequate factual basis; bare assertions and general denials, even by an expert, are insufficient.

See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),

LBP-05-04, 61 NRC 71, 80-81 (2005). An experts opinion is only admissible if it would assist the trier of fact in understanding the evidence or determining a fact at issue and the opinion is based on sound methods and reliable principles rather than subjective belief or unsupported speculation. Id. at 80 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90 (1993)). The proponent of a witness has the burden to demonstrate that the experts testimony will assist the trier of fact. See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-410, 5 NRC 1398, 1405 (1977).

B.

ISSUES RELEVANT AND MATERIAL TO THIS PROCEEDING The Board has explained that the sole issue in this case is:

whether or not monitoring wells are necessary to assure that the buried pipes and tanks at issue will continue to perform their safety function during the license renewal period or, put another way, whether Pilgrims existing [Aging Management Plans, or AMPs] have elements that provide appropriate assurance as required under relevant NRC regulations that the buried pipes and tanks will not develop leaks so great as to cause those pipes and tanks to be unable to perform their intended safety functions.13 Thus, the Board has made clear that this proceeding is concerned solely with whether the AMPs in their present form will be adequate. Further, this adequacy relates solely to assurance that Pilgrims buried pipes and tanks will not develop leaks so great as to cause those pipes and tanks to be unable to perform their intended safety functions during the extended operation period.

Accordingly, as the Staff has previously discussed in the Staff Rebuttal,14 the Board has repeatedly advised the parties that issues that go beyond the present contents of the relevant Pilgrim AMPs or which fall outside the scope of license renewal review, such as (1) groundwater contamination and related monitoring,15 (2) monitoring wells,16 (3) leaks that do not challenge (continued...)

13 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-12, 66 NRC ___ (Oct. 17, 2007) (slip op. at 18) (Summary Disposition Order).

14 See Staff Rebuttal at 10-18, 20-21.

15 Order (Denying Pilgrim Watchs Motion for Reconsideration) at 5 (Jan. 11, 2008)

(Reconsideration Order) (quoting Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), LBP-06-12, 64 NRC 257, 274-277 (2007) (As we have said on numerous occasions, monitoring is not proper subject matter for license extension contentions.); id.

([W]here Pilgrim Watchs original formulation of its contention focused upon the potential for surface and groundwater contamination from radioactivity contained by certain of the Applicants buried pipes and tanks, that subject is a matter managed by the Applicants ongoing monitoring programs, and is therefore the ability of the pipes and tanks to perform their intended safety functions,17 and (4) leakage events at other power plants that do not help the Board determine whether the specific Pilgrim buried pipes and tanks AMPs are adequate,18 are not relevant and will not be considered by the Board.

C.

DIRECT TESTIMONY THAT MERITS EXCLUSION

1. Vague and Unhelpful Testimony One necessary prerequisite for the admission of expert testimony as evidence is that it will assist the trier of fact. Louisiana Power and Light Co. (Waterford Stream Electric Station,

(...continued) outside the scope of matters properly considered in license extension hearings.); Summary Disposition Order at 18 (issues concerned with monitoring of radiological releases, or determinations of how leakage could harm health or the environment, are not legitimately in dispute here, because they do not relate to aging and/or because they are addressed as part of ongoing regulatory processes. See, e.g., Pilgrim, LBP-06-23, 64 NRC at 275-77.).

16 Reconsideration Order at 5-6 (explaining that the Board had reformulated [Contention 1] when we admitted it to focus upon [an] inquirythat does not, as we said in our December 19th Order, involve monitoring wells, and that monitoring wells could only become relevant if Entergy specifically state[s] -

which it has not done - that it planned to utilize monitoring wells in order to determine whether its buried pipes and tanks were leaking at such great rates as to render them unable to perform their intended safety functions); id. at 7 (making clear that the mere possibility that Entergy could render monitoring wells relevant in the future does not render them relevant now).

17 Summary Disposition Order at 17 ([P]revention of leaks per se is not a stated objective of any relevant aging management program.At issue here is the following fundamental question: Do the AMPs for buried pipes and tanks, by themselves, ensure thatsafety-function-challenging leaks will not occur (emphasis added).); Scheduling Order at 1-2 (The single admitted contention relates to whether or not Applicants AMPs are sufficient to enable it to determine whether or not certain buried pipes and tanks are leaking at such great rates that they cannot satisfy their respective intended safety functions (emphasis added).). See also Reconsideration Order at 5-6, 8.

18 Summary Disposition Order at 18-19 (noting that leakage events at other plants are not directly relevant to the issue at hand because what is relevant, as Pilgrim Watch appears to agree, is the uniqueness of the Pilgrim plant and what may be required with regard to it).

Unit 3), ALAB-732, 17 NRC 1076, 1091 (1983). As explained below, certain portions of the Gundersen Direct Testimony are too vague to provide meaningful help to the Board in this case.

Paragraphs 9, 10, and 11 of the Gundersen Direct Testimony will not assist the Board in this case because they fail to address the specific matter at issue in these proceedings. These paragraphs claim, respectively, that the AMPs will not sufficiently assure the integrity of Pilgrims buried pipes and tanks, detect any defects in those pipes and tanks, or assess and ensure that those pipes and tanks will withstand the stresses of an additional 20-year license extension. As the Board has made clear, however, the sole question at issue in this proceeding is whether the relevant AMPs will adequately address the risk that particular buried pipes and tanks will develop leaks large enough to render them unable to perform their intended safety functions. General comments by Mr. Gundersen about buried pipe and tank integrity, defects, and ability to withstandstresses seem to cover much more than merely the category of leaks at issue in this case, and so are simply too vague to assist the Board in its determination of the precise question before it.19 As a result, the Staff respectfully requests that the Board strike these three paragraphs from the Gundersen Direct Testimony.

The final sentence of Paragraph 12.3 is similarly vague and unhelpful. In that sentence, Mr. Gundersen asserts that given the unique attributes of the Pilgrim Site, the [Buried Piping and Tanks Inspection Program and Monitoring Program] must be plant specific, not simply a generic one-size fits all approach. Yet, Mr. Gundersen does not specify (either in Paragraph 19 Exacerbating the unhelpfulness of Mr. Gundersens vague language is the fact that, as explained at pp. 8-9, infra, Mr. Gundersen suggests elsewhere in his testimony that minor leaks which would lead only to groundwater contamination are relevant to the admitted contention. A reader of the Gundersen Direct Testimony cannot be certain, therefore, whether Mr. Gundersen had these sorts of smaller leaks in mind when stating his conclusions regarding pipe and tank integrity, defects, and ability to withstandstresses.

12.3 or anywhere else in his testimony) what unique attributes of the Pilgrim Site he is concerned about here. This sentence is thus vague and unhelpful and should be stricken from the testimony.20

2. Monitoring Wells As discussed above, the Board has stated explicitly that monitoring wells are not relevant to this proceeding. Therefore, the Staff respectfully requests that the Board strike all testimony submitted by Pilgrim Watch regarding monitoring wells. This includes paragraphs 18.4 through 18.4.6 of the Gundersen Direct Testimony, which describe a monitoring well program and recommends that Pilgrim be required to adopt it. This also includes the entirety of the Ahlfeld Testimony, which, as the title of it indicates, Regard[s] Groundwater Monitoring Requirements for [Pilgrim]. The Ahlfeld Testimony deals solely with the issue of groundwater contamination and recommends a network of monitoring wells to monitor for such contamination. The Ahlfeld Testimony does not address the specific issue of whether buried pipes and tanks containing radioactive water would experience leaks large enough to render them unable to perform those intended safety functions that fall within the scope of license renewal. The Ahlfeld Testimony should therefore be stricken in its entirety because it deals solely with issues outside the scope of the admitted contention.

3. Groundwater Contamination Additional testimony by Mr. Gundersen deals with the related - and equally irrelevant -

issue of groundwater contamination. As explained above, the Board has clarified that, because 20 Furthermore, Mr. Gundersens failure to identify any specific unique attributes of the Pilgrim Sites which he believes support his conclusion means that he has not meaningfully explained his basis for reaching his conclusion. As noted later in this Motion (p. 11, infra), an experts failure to explain how he or she reached a particular conclusion means that the Board should accord the conclusion no weight.

For this reason, too, this sentence of the Gundersen Direct Testimony should be stricken.

of the limited scope of license renewal reviews, the admitted contention pertains not to groundwater contamination that could arise due to leakage from buried pipes and tanks, but to the ability of those pipes and tanks to perform their intended safety functions. Two paragraphs of the Gundersen Direct Testimony - 12.4.2 and 12.4.4.3 - seek expressly to challenge the Boards position on this issue, contending that radioactive contamination of groundwater is relevant to this proceeding. As noted above, the Board has already decided this question, rendering these paragraphs of the Gundersen Direct Testimony irrelevant. The Board should therefore strike these paragraphs of the Gundersen Direct Testimony.

Moreover, the irrelevancy of groundwater contamination provides further grounds for striking the entirety of the Ahlfeld Testimony, as, again, its sole purpose is to recommend a system of monitoring wells aimed at detecting groundwater contamination.

4. Leaks Too Small to Prevent Performance of Intended Safety Functions As noted above, the Board has repeatedly stated that it is concerned only with leaks that would be large enough to prevent the relevant buried pipes and tanks from performing their intended safety functions. Certain portions of the Gundersen Direct Testimony, however, address leaks generally, rather than focusing specifically upon the category of leaks that the Board indicated is relevant to these proceedings. Paragraphs 13, 13.1, and 13.2 of his testimony recite the Boards determination that non-safety-function-inhibiting leaks are outside the scope of the license renewal process, and then contend that this fact demonstrates that there is a risk that such leaks will occur. The fact remains, however, that the Board has deemed such non-safety-function-inhibiting leaks to fall outside the scope of the contention.

Furthermore, an expert witnesss repetition of the Boards own Orders in that witnesss sworn testimony does not constitute the sort of evidence that would assist the trier of fact. Therefore, these paragraphs should be stricken from the Gundersen Direct Testimony.

5. Leakage Events at Other Power Plants As explained above, the Board has already made clear to the parties that evidence regarding leakage events at other plants will generally not aid the Board in determining whether Pilgrims buried pipes and tanks AMPs will be adequate for the unique set of characteristics present at Pilgrim. Nonetheless, the final two sentences of Paragraph 15 of the Gundersen Direct Testimony, as well as the final three sentences of Paragraph 17.1.4 of his testimony, discuss a pipe leakage event that occurred at Byron and attempt to use this Byron event to support Mr. Gundersens conclusions regarding Pilgrims AMPs. Mr. Gundersen, however, does not provide the sorts of details about the Byron event that would allow the Board to determine whether, or to what extent, the Byron event could be analogized to the Pilgrim buried pipes and tanks at issue in this proceeding.21 The only specific information that Mr. Gundersen provides is that the Byron pipe flanges where the leakage was occurring were safety-related -

a detail that is not particularly helpful. This testimony, therefore, falls into the category of evidence regarding leakage events at other plants that the Board has previously stated would not be useful to its adjudication of this case. The last two sentences in Paragraph 15, as well as the last three sentences of Paragraph 17.1.4, should therefore be stricken from the Gundersen Direct Testimony.

21 Indeed, as the Staff explains in its NRC Staff Response to Initial Presentations on Contention 1, Rebuttal Testimony and Response to Board Questions at 20 n.28 (March 6, 2008), the problematic pipe at Byron is in no meaningful way comparable to the Pilgrim buried pipes at issue in the instant proceeding. The Pilgrim pipes are either made of materials, such as stainless steel, that are resistant to corrosion, or are lined and coated with materials that will resist corrosion. Furthermore, the Pilgrim pipes are buried in substances that are intended to minimize accumulation of moisture. The Byron pipe, in contrast, was an above-ground pipe made out of unprotected carbon steel and located in a persistently wet environment.

6. Reasons Underlying Entergys Actions Mr. Gundersen is not an expert in the Applicants decision-making processes.

Mr. Gundersen also does not claim to have personal knowledge about such matters. Yet, Mr. Gundersen testifies at paragraphs 12 and 12.1 of his direct testimony, and in the first sentence of paragraph 12.3, that Entergys development of its Buried Piping and Tanks Inspection Program and Monitoring Program necessarily means that Entergy itself has determined that its AMPs for buried pipes and tanks are inadequate. Since Mr. Gundersen has no personal knowledge of or expertise in this area, these portions of his testimony should be stricken as unreliable. See Georgia Institute of Technology (Georgia Tech Research Reactor Atlanta, Georgia), LBP-96-10, 43 NRC 231, 232-33 (1996) (striking prepared testimony because witness lacked both personal knowledge and expertise regarding the matter at issue).

7. Testimony for Which No Scientific Basis is Provided Where an expert testifies as to his or her conclusions, but does not explain the bases for those conclusions, a Board should accord no weight to these expert conclusions. See Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 735 (1985); Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-83-81, 18 NRC 1410, 1420 (1983), modified on reconsid. sub nom., Texas Utilities Electric Co. (Comanche Peak Electric Station, Units 1 and 2), LBP-84-10, 19 NRC 509, 518, 532 (1984). In other words, even where the witness is an expert in the relevant area, he or she must explain, at least to some extent, how any conclusions were reached.

Paragraph 12.4.1.3 of the Gundersen Direct Testimony states that In my experience, any program worth its salt would require a thorough baseline inspection along the entire length of the pipe. Mr Gundersen does not, however, explain in his testimony why he adheres to this view. The Board should therefore strike this paragraph as unreliable.

Similarly, Paragraphs 12.4.5.1, 12.4.5.2, and 12.4.5.3 of the Gundersen Direct Testimony are merely statements of conclusions that provide no accompanying explanations.

For example, Paragraph 12.4.5.1 states that The time interval is [sic] proposed in the [Buried Piping and Tanks Inspection and Monitoring Program] is too long, but does not explain the basis for his opinion. The Staff therefore requests that the Board strike these paragraphs from the Gundersen Direct Testimony on the grounds that no basis is provided for these conclusions.

8. Tritium Paragraph 16 of the Gundersen Direct Testimony states that tritium has been discovered at Pilgrim, but then goes on to state that he does not know where, specifically, at Pilgrim the tritium might have come from or what implications this discovery of tritium might have regarding the functionality of any of Pilgrims systems. Mr. Gundersen also does not explain how the possibility of past tritium leakage at Pilgrim will inform the Board as to the adequacy of Pilgrims buried pipes and tanks AMPs, which were developed in order to manage aging of those pipes and tanks during the proposed period of extended operation, which has not yet begun. The Board should accordingly strike Paragraph 16 of the Gundersen Direct Testimony as immaterial, irrelevant, and unreliable.

Mr. Gundersen also references this discovery of tritium at Pilgrim in paragraphs 17, 17.1, 17.1.3, and 17.4. Because Mr. Gundersen still does not, in these sections of his testimony (or elsewhere), provide any concrete link between the presence of tritium at Pilgrim and the buried pipes and tanks that fall within the scope of the admitted contention - much less any link to the AMPs for these buried pipes and tanks - the Staff respectfully requests that the Board strike these references to discovered tritium from the Gundersen Direct Testimony, as well as the conclusions that Mr. Gundersen, in these paragraphs, draws from the discovery of tritium.

In addition, the entire set of paragraphs and subparagraphs of the Gundersen Direct Testimony that begins at paragraph 17 (i.e. 17 through 17.4) depends upon a purely speculative and unexplained assumption by Mr. Gundersen that the tritium discovered at the Pilgrim site has some connection to the specific buried pipes or tanks within the scope of Contention 1. In these paragraphs and subparagraphs, Mr. Gundersen deduces from this assumption that the buried pipes and tanks within the scope of Contention 1 must be leaking, and then goes on to address possible implications of this supposed leakage. As his own testimony in Paragraph 16 makes clear, however, Mr. Gundersen has no basis for assuming any connection between the tritium discovery and the buried pipes and tanks within Contention 1s scope. At most, he concludes (without elaboration) that the tritium must have come from somewhere at the Pilgrim plant.22 This entire section of paragraphs and subparagraphs, based upon an unjustifiable and unexplained assumption (which Mr. Gundersens own testimony contradicts), should be stricken by the Board due to its immateriality, irrelevancy, and unreliability.

9. Recommending Particular Improvements to the AMPs Again, the question before the Board in this case is whether Pilgrims current proposed set of AMPs for buried pipes and tanks that do, or potentially could, contain radioactive water will provide reasonable assurance that those pipes and tanks will be able to perform their intended safety functions during the proposed period of extended operation. The Board has determined that the issue to be decided in this case is whether the relevant AMPs are adequate in their present form, not whether other features or procedures might be useful to add to these 22 See Paragraph 16 of the Gundersen Direct Testimony (At the concentrations detected the Tritium undoubtedly came from the plant.).

AMPs. The Board should therefore strike from the Gundersen Direct Testimony all proposals for what, in his view, should be included in the buried pipes and tanks AMPs but are not.

For example, in Paragraphs 12.4.5.4 and 12.4.5.5 of his testimony, Mr. Gundersen proposes that Entergy add guidance to its Buried Piping and Tanks Inspection and Monitoring Program that would promote opportunistic inspections, claiming that this additionboth protects public safety and health and protects the environment, and is also most cost effective.

Paragraph 12.4.5.5 of the Gundersen Direct Testimony. The Gundersen Direct Testimony at Paragraphs 18 through 18.4.6, which lays out four separate approaches he is suggesting would address the alleged deficiencies with the Pilgrim buried pipes and tanks AMPs, also falls into this category. Such testimony is unhelpful to the Board because it will not assist the Board in determining whether Pilgrims AMPs in their current form are adequate. The Staff therefore respectfully requests that the Board strike Paragraphs 12.4.5.4, 12.4.5.5, and 18 through 18.4.6 on the grounds that they will not assist the trier of fact in adjudicating the issues that are actually before it.

This same rationale further justifies striking a substantial portion of the Ahlfeld Testimony, which, again, sets forth a proposed system of monitoring wells that he recommends as an addition to the Pilgrim buried pipes and tanks AMPs. While the general thrust of the entire testimony revolves around this recommendation, the testimony focuses most directly on the recommendation beginning with the fourth paragraph on page 1 of his testimony and concluding just prior to the Recent Experience at PNPS section on page 3 of his testimony.

The second-to-last paragraph of his testimony (beginning with In summary) also focuses solely on his recommendation for a monitoring well system for Pilgrim. These portions of the Ahlfeld Testimony should therefore be stricken because they are irrelevant and immaterial to the questions before the Board.

10. Testimony on Matters outside Witness Areas of Expertise It is elementary that an expert witnesss testimony should be stricken of material that falls outside the witnesss areas of expertise, unless that material is based upon the witnesss personal knowledge. See Georgia Tech, LBP-96-10, 43 NRC 231, 232-33. Further, where challenges to the expertise of a witness are raised, the party sponsoring the witness has the burden of demonstrating the witnesss expertise. See Pacific Gas and Electric Co., ALAB-410, 5 NRC at 1405.

Mr. Gundersen testifies in a number of places regarding details of corrosion in piping.

These include Paragraphs 12.4.5.6, 12.4.6.1, 12.4.6.2, 12.4.6.3, 12.4.11, 17.1.1 and 17.1.2 of the Gundersen Direct Testimony. Yet, it is not apparent, either from his testimony or his curriculum vitae (CV),23 that Mr. Gundersen is an expert on pipe corrosion. His CV indicates that he has received training in the general area of nuclear engineering, and that he has held a number of positions (some professional, some academic) related to both nuclear and non-nuclear engineering. Gundersen CV at 1-3, 6-7. No specific training or experience that would tend to ensure development of expertise in the specific area of pipe corrosion, however, is apparent. Even Mr. Gundersens CVs list of Special Qualifications - which, admittedly, the CV claims is incomplete - does not attempt to characterize Mr. Gundersen as an expert in pipe corrosion. See Gundersen CV at 1. Mr. Gundersen, as his CV indicates, may have testified in the past as an expert witness in various proceedings related to nuclear power plants,24 but the descriptions of these expert witness roles do not indicate that he has been qualified in the past 23 Mr. Gundersens CV is included with his pre-filed testimony as part of Exhibit 1 to the PW Statement.

24 Gundersen CV at 3-5. It is also unclear if Mr. Gundersen has ever been qualified by a licensing board as an expert.

as an expert in pipe corrosion.25 Moreover, even if Mr. Gundersen had been qualified as an expert on pipe corrosion by another tribunal, or even by another Board, this would not automatically qualify Mr. Gundersen to be an expert on pipe corrosion in the instant proceedings. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-78-36, 8 NRC 567, 572 (1978). In sum, the information provided by Pilgrim Watch provides insufficient basis to conclude that Mr. Gundersen is an expert on pipe corrosion.

Therefore, the Staff respectfully requests that the Board strike those portions (noted above) of the Gundersen Direct Testimony that delve into the details of pipe corrosion.

D.

REBUTTAL TESTIMONY THAT MERITS EXCLUSION The Gundersen Rebuttal Testimony suffers from many of the same flaws as the Gundersen Direct Testimony. Therefore, as outlined below, several portions of the Gundersen Rebuttal Testimony should be stricken.

First, several portions of the Gundersen Rebuttal Testimony are copied verbatim, or nearly verbatim, from the Gundersen Direct Testimony. A number of these portions of testimony correspond to direct testimony that the Staff, in this Motion, has already argued should be stricken. Included are:

Gundersen Rebuttal Testimony at page 16, line 13 through page 20, line 14, which essentially repeats what is said in the Gundersen Direct Testimony at Paragraph 17, et seq.;26 (continued...)

25 See id.

26 See p. 10, supra (discussing reasons for excluding last three sentences of Paragraph 17.1.4);

pp. 12-13, supra (discussing Paragraphs 17, 17.1, 17.1.3, 17.4, as well as entire set of paragraphs Gundersen Rebuttal Testimony at page 41, line 22 through page 49, line 2, which is extracted verbatim minus Tables27 from Paragraphs 12.4.1 through 12.4.11 of the Gundersen Direct Testimony;28 and Gundersen Rebuttal Testimony at page 51, line 12 through page 56, line 15, which is copied verbatim from Paragraph 18, et seq., of the Gundersen Direct Testimony.29 For the same reasons, discussed earlier in this Motion,30 that much of the above testimony should be excluded from the Gundersen Direct Testimony, the Staff requests that the equivalent portions of the Gundersen Rebuttal Testimony be excluded as well.

Additionally, the Gundersen Rebuttal Testimony contains new material, discussed below, that repeats some of the direct testimonys flaws.

At page 21, line 18 though page 27, line 14 of the Gundersen Rebuttal Testimony, Mr.

Gundersen testifies regarding corrosion in piping. As the Staff discussed above, however, Pilgrim Watch has not demonstrated that Mr. Gundersen has expertise in pipe corrosion.31

(...continued) beginning at Paragraph 17); pp. 15-16, supra (discussing Paragraphs 17.1.1 and 17.1.2).

27 See Gundersen Rebuttal Testimony at page 41, lines 20-21.

28 See pp. 8-9, supra (discussing reasons for excluding Paragraphs 12.4.2 and 12.4.4.3); pp. 11-12 (discussing Paragraphs 12.4.1.3, 12.4.5.1, 12.4.5.2, and 12.4.5.3); pp. 13-14, supra (discussing Paragraphs 12.4.5.4 and 12.4.5.5); pp.15-16, supra (discussing Paragraphs 12.4.5.6, 12.4.6.1, 12.4.6.2, 12.4.6.3, and 12.4.11).

29 See p. 8, supra (discussing reasons for excluding Paragraphs 18.4 through 18.4.6); pp. 13-14 (discussing Paragraphs 18 through 18.4.6).

30 See notes 26, 28, and 29, supra.

31 See pp. 15-16, supra.

Therefore, the portions of the Gundersen Rebuttal Testimony regarding corrosion should be stricken.

At page 30, lines 1-4 of the Gundersen Rebuttal Testimony, Mr. Gundersen again testifies about what he believes Entergys analysts and decision makers must have been thinking when they decided to develop a new framework for a company-wide Buried Pipe and Tanks Inspection Program. As discussed at p. 11, supra, such testimony regarding the thought processes underlying Entergy decisions falls outside the scope of Mr. Gundersens expertise and personal knowledge. This testimony should therefore be stricken.

On pages 31 though 35 of the Gundersen Rebuttal Testimony, Mr. Gundersen discusses what he perceives as flaws in the Buried Pipes and Tanks Inspection Program. Just as he did in his direct testimony, Mr. Gundersen makes unsupported and/or out-of-scope statements. For example, without any factual or other support, he states that a baseline examination of the pipes should be a prerequisite to any license extension program. Gundersen Rebuttal Testimony at 31, line 11-12. He then complains about the lack of monitoring wells, id. at 31, line 13-15, an issue that, as explained above, has been held by the Board to be outside the scope of this hearing. Later, he identifies additional alleged deficiencies in the program without explaining his reasoning. Id. at 32, lines 7-15. The Staff, therefore, respectfully requests that the Board strike the unsupported conclusions and out-of-scope statements from this portion of the Gundersen Rebuttal Testimony.

Throughout his rebuttal testimony, Mr. Gundersen also refers to leaks of any size, rather than the specific kind of leaks that are within the scope of Contention 1, that is, leaks that are large enough to prevent the pipes from performing their intended functions. See, e.g.,

Gundersen Rebuttal Testimony at 41, line 4-7 (the central question of identifying leaks, that is leaks of any size, is not addressed so that the responses and [Board] questions... do not answer the question at hand, which is the sufficiency of the AMPs to assure that leaks will be detected); id. at 28, lines 6-9; id. at 35, lines 14-15; id. at 39, lines 19-21. These vague references to leaks in the rebuttal testimony mirror Mr. Gundersens similarly vague direct testimony regarding leaks, which was discussed earlier in this Motion at pp. 6-7. Since it cannot be determined whether Mr. Gundersen, in such testimony, is referring specifically to leaks within the scope of the contention, such testimony should be stricken.

E.

EXHIBITS THAT MERIT EXCLUSION As noted above, Pilgrim Watch, in response to a Board Order, submitted an updated version of its initial PW Statement on March 3, 2008 that included additional citations to exhibits and which also featured additional exhibits that were not attached to the initial PW Statement.

The following discussion will refer to the exhibit numbers listed in the March 3, 2008 updated version of the PW Statement.

Exhibit 3 (10 C.F.R. § 54.21) and the first component of Exhibit 5 (10 C.F.R. Part 50, Appendix B, XVI) should be excluded because it is unnecessary to introduce provisions of NRC regulations as exhibits in NRC adjudications.

Exhibit 7 to the PW Statement is the NRCs Liquid Radioactive Release Lessons Learned Task Force Final Report, dated September 1, 2006. This report discusses the issue of radioactive contamination at power plant sites. As explained above, however, the Board has already made clear that radioactive contamination per se is not within the scope of license renewal, and so is not within the scope of the instant adjudication. Furthermore, Pilgrim is not discussed anywhere in the report, and the Board (as discussed above) has already made clear that information about leaks at plants other than Pilgrim will generally be of no value to its adjudication of this case. The Staff respectfully requests, therefore, that the Board strike Exhibit 7 on the grounds that is immaterial to the question before the Board: namely, whether the Pilgrim buried pipes and tanks AMPs provide reasonable assurance that those pipes and tanks will not leak at such great rates during the extended operation period that they will be unable to perform their intended safety functions.

Exhibit 10 to the PW Statement is a report concerning nuclear power plant aging written by David Lochbaum of the Union of Concerned Scientists. Mr. Lochbaum provides a signed declaration which states that he stand[s] by the contents of this report, and that he declare[s]

under penalty of perjury that [the report] is true and correct. Effectively, Pilgrim Watch is submitting this report as expert testimony given by Mr. Lochbaum. Since Mr. Lochbaum has not been named as a witness and will not be present at the hearing to field questions from the Board regarding the contents of this report, the Staff would respectfully request that this exhibit be stricken. See Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3),

ALAB-732, 17 NRC 1076, 1088 n.13 (1983) (upholding Board exclusion of prefiled testimony of expert witness who was unwilling to appear at hearing for cross-examination).

Exhibit 12 to the PW Statement contains four separate documents, and the Staff respectfully requests that the Board strike all four. The first document is an article written by Mr.

Lochbaum regarding a leakage event at Byron. This article is devoted to discussing a matter that, as noted earlier in this Motion, the Board has already deemed immaterial to the question before it. The articles relatively brief discussion of a leak at Byron will not assist the Board in determining whether the Pilgrim buried pipes and tanks AMPs will be adequate in light of Pilgrims unique set of characteristics. The Board should therefore strike this exhibit.

Furthermore, this exhibit is also covered by Mr. Lochbaums signed declaration, and so is effectively being submitted by Pilgrim Watch as expert witness testimony. Therefore, since Mr.

Lochbaum will not be appearing at the hearing to answer any Board questions regarding this article, this exhibit should be stricken for reasons discussed above regarding Exhibit 10.

Exhibit 12 also contains two NRC preliminary notifications regarding the Byron leak.

These two documents about Byron also provide no material information regarding the Pilgrim buried pipes and tanks at issue in the instant case. They should therefore be stricken.

Finally, Exhibit 12 contains an NRC preliminary notification regarding tritium discovered in monitoring wells at Catawba. This document relates solely to issues of groundwater contamination at another plant and monitoring for such contamination via monitoring wells -

issues that, as explained earlier in this Motion, the Board has already deemed irrelevant and immaterial to these proceedings. The Board should therefore strike this Exhibit 12 document as well.

Exhibit 22 to the PW Statement is an NRC Office of Inspector General Audit Report regarding the NRCs license renewal process (OIG Report). As previously set forth in the Staffs Response to the PW Statement at 24-27, the OIG Report assesses the adequacy of the Staffs review of license renewal applications, not the adequacy of the applications themselves.

The OIG Report also contains no information regarding Pilgrim, as the Staffs review of the Pilgrim application was not included as part of the audit underlying the OIG Report.32 Pilgrim Watch, in its PW Statement, acknowledges that the adequacy of the Pilgrim application, not adequacy of the Staffs review of that application, is before the Board in this proceeding.33 Further, as the Staff explained in the Staff Response to the PW Statement, the Commission has 32 See PW Statement (March 3, 2008 version) at 80 (admitting that Pilgrim was not included in the audit).

33 PW Statement (March 3, 2008 version) at 77 (We understand that technically Entergys License Application is at issue here, and not the quality of the NRC Staffs review and Final Report.).

repeatedly made clear that the quality of the Staffs review of applications is not a proper subject for Board review in licensing proceedings.34 The Staff therefore respectfully requests that the Board strike Exhibit 22 on the grounds that it concerns solely matters outside the scope of this proceeding.

Exhibit 23 to the PW Statement is an NRC Event Notification regarding a discovery of tritium in groundwater monitoring wells at Palisades Nuclear Plant. This exhibit does nothing but demonstrate that tritium contamination of groundwater has occurred in the past at a nuclear power plant site other than Pilgrim. As noted earlier in this Motion, the Board has already made clear that groundwater contamination is not per se relevant to this proceeding, and that information regarding leaks at other plants will generally be immaterial to the issues currently before the Board. The Staff therefore requests that the Board strike Exhibit 23.

Exhibit 24 contains two documents related to an NRC proposed rulemaking related to power plant decommissioning. As indicated in the exhibits second document - the NRCs summary of the proposed rulemaking - the proposed rulemaking is intended to minimize the amount of radioactivity that operating plants introduce into their environments so as to help ensure that plant sites do not become legacy sites at the decommissioning stage. Exhibit 24, therefore, deals solely with issues of groundwater contamination and decommissioning. The Board, as explained above, has already made clear that groundwater contamination per se is not relevant to this proceeding. Further, the ability of Pilgrim to effectively decommission when 34 See Staff Response to the PW Statement at 25 (citing Duke Energy Corp. (Oconee Nuclear Station Units 1, 2, & 3), CLI-99-11, 49 NRC 328, 338 (1999) (quoting Baltimore Gas & Electric Co.

(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 350 (1998)); see also Changes to Adjudicatory Process, Final Rule, 69 Fed. Reg. 2,182, 2,202 (Jan. 14, 2004) (stating that the adequacy of the applicants license application, not the NRC staffs safety evaluation, is the safety issue in any licensing proceeding and that contentions on the adequacy of the [safety evaluation report, or SER] are not cognizable in a proceeding).

it ceases operation is not at issue in this proceeding, which is looking solely at issues related to the ability of certain buried pipes and tanks to perform their intended safety functions while the plant is still operational. Accordingly, the Board should strike Exhibit 24.

Exhibit 25 to the PW Statement, which provides information relating to monitoring well locations at Pilgrim, should be stricken by the Board because its sole function would be to provide information on a topic - monitoring wells - that the Board (as discussed above) has already deemed irrelevant to these proceedings. The Staff respectfully requests, therefore, that the Board strike this exhibit on the grounds of irrelevance and immateriality.

Exhibit 26 to the PW Statement relates solely to tritium discovered at Pilgrim. As discussed above, the mere presence of tritium at the Pilgrim site does not assist the Board in resolving the question before it in this case. Because Pilgrim Watch has provided no connection between tritium discovered at Pilgrim and the buried pipes and tanks at issue in these proceedings (or to the AMPs for those buried pipes and tanks), the Staff requests that the Board strike this exhibit on the grounds that it provides only immaterial information.

CONCLUSION For the reasons discussed above, the Staff respectfully requests that the motion be granted.

Respectfully submitted,

/RA/

James E. Adler Counsel for NRC staff Dated at Rockville, Maryland this 10th day of March, 2008.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

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ENTERGY NUCLEAR OPERATIONS, INC.

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Docket No. 50-293-LR

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(Pilgrim Nuclear Power Station)

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ASLBP No. 06-848-02-LR

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CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS MOTION IN LIMINE TO STRIKE EXHIBITS AND TESTIMONY FILED BY PILGRIM WATCH in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commissions internal mail system, as indicated by an asterisk (*), or by electronic mail and by deposit in the U.S. Mail system this 10th day of March, 2008.

Administrative Judge

• Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov Administrative Judge

• Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Paul.Abramson@nrc.gov Administrative Judge

• Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Ann.Young@nrc.gov Office of Commission Appellate Adjudication*

Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (NRC Internal Mail System Only)

Office of the Secretary

• Attn: Rulemakings and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov Sheila Slocum Hollis Duane Morris LLP 1667 K Street, NW, Suite 700 Washington, DC 20006 E-mail: sshollis@duanemorris.com Terence A. Burke, Esq.

Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213 Mary Lampert 148 Washington Street Duxbury, MA 02332 E-mail: mary.lampert@comcast.net David R. Lewis, Esq.

Paul A. Gaukler, Esq.

Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street Duxbury, MA 02332 E-mail: nord@town.duxbury.ma.us Town Manager Town of Plymouth 11 Lincoln St.

Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us

/RA/

James E. Adler Counsel for the NRC Staff