ML080780247

Entergy'S Motion in Limine to Exclude Pilgrim Watch Testimony and Exhibits

ML080780247
Person / Time
Site:	Pilgrim
Issue date:	03/10/2008
From:	Gaukler P Entergy Nuclear Generation Co, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Atomic Safety and Licensing Board Panel
SECYRAS
References
50-293-LR, ASLBP 06-848-02-LR, RAS J-6
Download: ML080780247 (43)

Text

COPY March 10, 2008 UNITED STATES OF AMERICA DOCKETED USNRC NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing, Board Panel March 17, 2008 (11:40am)

In the Matter of ) OFFICE OF SECREl rARY

) RULEMAKINGS Ar4D ADJUDICATIONS S TAFF Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR

)

(Pilgrim Nuclear Power Station) )

ENTERGY'S MOTION IN LIMINE TO EXCLUDE PILGRIM WATCH TESTIMONY AND EXHIBITS Pursuant to 10 C.F.R. § 2.3231 and the Atomic Safety and Licensing Board Panel's

("Board") December 19, 2007 Order (Revising Schedule for Evidentiary Hearing and Responding to Pilgrim Watch's December 14 and 15 Motions) ("Dec. 19 Order"), Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (collectively, "Entergy")

submit this motion in limine to exclude the testimony of Pilgrim Watch's ("PW") witnesses Arnold Gundersen and Dr. David Ahlfeld. 2 The testimony of these witnesses should be excluded in their entirety because PW has failed to comply with the NRC's disclosure requirements. In addition, their testimony should be entirely excluded because (1) Dr. Ahlfeld's testimony is devoted to groundwater monitoring which is a topic that, as the Board has expressly ruled, is Pursuant to 10 C.F.R. § 2.323 (b), counsel for Entergy has consulted with Pilgrim Watch and the NRC Staff on the filing of the instant Motion. Neither party objects to the filing of the Motion, and both will set forth their respective positions on the Motion in their responses provided for in the Board's scheduling order.

Declaration of Arnold Gundersen Supporting Pilgrim Watch's Petition for Contention 1 (Jan. 26, 2008)

("Gundersen Test."); Declaration of David P. Ahlfeld, PhD, PE, Regarding Groundwater Monitoring Requirements for PNPS (Jan. 28, 2008) ("Ahlfeld Test."); Testimony of Arnold Gundersen Supporting Pilgrim Watch's Contention 1 (March 6, 2008) ("Gundersen March 6 Test.").

Pilgrim Watch has also filed several prehearing statements repeating many of the inadmissible claims of its witnesses. These prehearing statements are not addressed in this motion, because they are not evidence and have no value in this proceeding.

40077352403 SýCN-cC,- -

beyond the scope of the admitted contention, (2) Mr. Gundersen has no particular experience or expertise with aging management of buried piping, and his testimony is predicated on an incorrect legal interpretation of the reasonable assurance standard, and (3) Mr. Gundersen's testimony of March 6, 2008 is not proper rebuttal testimony. Further, specific portions of their testimony should be excluded as irrelevant, incompetent, unsupported, or otherwise inadmissible for the reasons set forth in more detail later in this motion. Finally, certain PW exhibits should be excluded as irrelevant, unsponsored, untimely, or otherwise inadmissible.

I. BACKGROUND A. Scope of the Proceeding and of PW Contention 1 This proceeding concerns Entergy's application to renew the operating license for the Pilgrim Nuclear Power Station ("PNPS"). As Entergy has previously briefed in detail, 3 the scope of a license renewal proceeding is limited. "License renewal reviews are not intended to

'duplicate the Commission's ongoing review of operating reactors."' Florida Power & Light Co.

(Turkey Point Generating Plant, Units 3 and 4), CLI-01-17, 54 N.R.C. 3, 7 (2001). Rather, the license renewal review is confined to those issues relevant to the public health and safety during the period of extended operation, leaving all other issues to be addressed by the existing regulatory processes. Final Rule, Nuclear Power Plant License Renewals, 60 Fed. Reg. 22,461, 22,463 (May 8, 1995). Issues involving the PNPS current licensing basis are outside the scope of license renewal. Turkey Point, CLI-01-17, 54 N.R.C. at 8-9.

Only one contention remains at issue here. As admitted by the Board, PW Contention 1 reads:

3 Entergy's Answer to the Request for Hearing and Petition to Intervene by Pilgrim Watch and Notice of Adoption of Contention (June 26, 2006) at 2-6.

2

"[t]he 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."

Memorandum and Order, LBP-06-23, 64 N.R.C. 257, 315 (2.006) (footnote omitted). In addition, the Board has provided the following rulings on Contention 1:

the only issue remaining before this Licensing Board regarding Contention 1 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 Pilgrim's existing 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.

Memorandum and Order, LBP-07-12, 66 N.R.C. 113, 1.29 (2007).

[I]ssues 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.

Id. at 130 n.8 1. Further, "leakage events at other plants are not directly relevant to the issue at hand." Id. at 130.

As the Board has admonished, parties to the proceeding are to "strictly observe[] what is, and what is not, at issue in this proceeding." Dec. 19 Order at 1. Therefore, the scope of this proceeding does not include any challenge to the PNPS current licensing basis, or any matter beyond the scope of PW Contention 1 as admitted and clarified by the Board. Thus, the permissible scope of testimony offered by any party does not include the monitoring of radiological releases, the potential environmental consequences of such releases, or the mitigation thereof. Nor does it include leakage events at other plants.

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B. Pre-hearing Disclosure Requirements Commission regulations require that parties to Subpart L proceedings, other than the NRC Staff, disclose and provide in advance of any hearing:

[t]he name... of any person, including any expert, upon whose opinion the party bases its claims and contentions ... and a copy of the analysis or other authority upon which that person bases his or her opinion; 10 C.F.R. § 2.336(a)(1) (emphasis added). This duty to disclose is continuing. 10 C.F.R. § 2.336(d). Failure to comply with these requirements may result in sanctions imposed by the Board, including the "prohibit[ion of] the admission into evidence of documents or testimony of the witness proffered by the offending party in support of its case." 10 C.F.R. § 2.336(e)(2).

C. Admissible Evidence Commission regulations allow into a proceeding "[o]nly relevant, material, and reliable evidence which is not unduly repetitious." 10 C.F.R. § 2.337(a). Those same regulations guide NRC Licensing Boards to exclude "[i]mmaterial or irrelevant parts of an admissible document

... so far as is practicable." Id. Further, the Board has the power to strike or restrict any portion of testimony that is irrelevant, immaterial, unreliable, duplicative, or cumulative. 10 C.F.R. § § 2.319(d), (e).

An expert witness' opinion is admissible as evidence only if (1) the opinion would assist the trier of facts in understanding the evidence or to determine a fact in issue; and (2) the opinion is based upon sufficient facts or data to be the product of reliable principles and methods that the witness applied to the facts of the case Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-05-04, 61 N.R.C. 71, 80 (2005) (citing Fed. R. Evid. 702) ("Savannah River"). A proffered witness can only qualify as an expert by his or her "'knowledge, skill, experience, training, or 4

education."' Id. (quoting Fed. R. Evid. 702). Further, it is the party sponsoring the expert witness who bears the burden of demonstrating the expert's expertise in the field or area in which the expert offers an opinion. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2) ALAB-410, 5 N.R.C. 1398, 1405 (1977). Furthermore, the expert opinion cannot be based merely on "subjective belief or unsupported speculation." Savannah River, LBP-05-04, 61 N.R.C. at 80 (citing Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589-90 (1993)). Thus,

"[e]xpert opinion is admissible only if the affiant 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. at 81 (emphasis added) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990) and United States v. Various Slot Machs. on Guam, 658 F.2d. 697, 700 (9th Cir. 1981)).

II. ARGUMENT A. The Board Should Exclude All Testimony of Mr. Gundersen and Dr. Ahlfeld Because PW Has Failed to Make the Disclosures Required Under 10 C.F.R.

§ 2.336(a)

Pursuant to 10 C.F.R. § 2.336(e)(2), the Board should exclude from the evidentiary record the testimony submitted by Mr. Gundersen and Dr. Ahlfeld because PW has failed to make the disclosures required under 10 C.F.R. § 2.336(a). The Commission's rules required PW to disclose "the analysis or other authority upon which [a witness] bases his or her opinion."

Final Rule, Changes to the Adjudicatory Process, 69 Fed. Reg. 2,182, 2,225, 2,248 (Jan. 14, 2004). PW has failed to disclose any such analysis or authority upon which its witnesses base their opinions. 10 C.F.R. § 2.336(a)(2)(i).

PW's failure to make any attempt to meet this disclosure requirement is highly prejudicial because the discovery afforded under 10 C.F.R. § 2.336 "constitutes the totality of the discovery that may be obtained in informal proceedings." 69 Fed. Reg. at 2,225.. The 10 C.F.R. 5

§ 2.336 disclosures provide the only means to learn the bases and prepare for the positions of opposing parties prior to the hearing.

PW's failure to disclose the basis for Mr. Gundersen's testimony is particularly egregious because Mr. Gundersen raises numerous issues for the first time in his testimony. For example, Mr. Gundersen alleges that the frequency, extent, and acceptance criteria for inspections are inadequate. Gundersen Test. at ¶¶ 12.4.5.1, 12.4.5.2, 12.4.5.3. Despite more than 16 months since its contention was admitted into the proceeding, none of PW's disclosures (or prior pleadings) identified the bases on which for Mr. Gundersen now alleges that Entergy's Buried Pipes and Tanks Inspection Program ("BPTIP") is inadequate.

PW has offered no excuse for its violation of the disclosure requirements.

Consequently, the Board should not "hesitate to impose sanctions" afforded by 10 C.F.R. § 2.336(e), Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-31, 60 N.R.C. 686, 698 (2004), and exclude the testimony submitted by Mr. Gundersen and Dr. Ahlfeld from the evidentiary record. 10 C.F.R. § 2.336(e)(2) (the Board may "prohibit[] the admission into evidence of [the] documents or testimony of the witness proffered by the offending party in support of its case").

B. Dr. AhIfeld's Testimony Should Be Excluded Because It Is Beyond the Scope of PW Contention 1 The Board should also exclude Dr. Ahlfeld's testimony in its entirety because it is beyond the scope of PW Contention 1 and is thus irrelevant. As the Board has previously ruled, the only issue in this proceeding is "whether Pilgrim's existing 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 6

intended safety functions." LBP-07-12, 66 N.R.C. at 129. Dr. Ahlfeld's testimony doesnot address this issue. His testimony provides no discussion of the specific measures relied upon in Pilgrim's AMPs, and no discussion of whether those AMPs are sufficient to provide reasonable assurance that the buried components within the scope of this contention will perform their intended function. Thus, his testimony is entirely irrelevant.

Instead of addressing the sole relevant issue, Dr. Ahlfeld's testimony concerns only groundwater monitoring, as the title of his Declaration clearly indicates. However, the Board has made it clear that "[o]ngoing monitoring is not within the scope of this proceeding" and unless and until the Applicant expressly advises this Board and the Agency that it intends to rely upon monitoring wells for making its determination that buried pipes and tanks are not leaking at such great rates that they cannot satisfy their intended safety functions, information related to monitoring wells is irrelevant to the issues at hand before this Board.

Dec. 19 Order at 1-2.

As we have said on numerous occasions, monitoring is not proper subject matter for license extension contentions. Thus, where Pilgrim Watch's original formulation of its contention focused upon the potential for surface and groundwater contamination from radioactivity contained by certain of the Applicant's buried pipes and tanks, that subject is a matter managed by the Applicant's ongoing monitoring programs, and is therefore outside the scope of matters properly considered in license extension hearings.

Order (Denying [PW's] Motion for Reconsideration) (Jan. 2008) at 5 (footnotes omitted). Thus, Dr. Ahlfeld's testimony contravenes the Board's previous rulings.

In particular, starting from the fourth paragraph, Dr. Alhfeld's testimony is devoted to how a monitoring network should be designed, and whether the monitoring network at Pilgrim is sufficient to identify the source of the very low levels of tritium recently discovered in a couple of monitoring wells. Since none of the monitoring wells at Pilgrim are credited as an AMP, none of this testimony has any relevance.

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Moreover, Dr. Ahlfeld does not limit his testimony to monitoring leakage from the buried piping within the scope of PW Contention 1, but discusses monitoring buried tanks (there are none within the scope of the Contention) and the offgas and fuel oil systems. See Ahifeld Test.

at 1-2. The offgas system is not within the scope of license renewal. Entergy Direct Testimony4 at Q26, A26. The fuel oil systems do not contain radioactivity and thus are not within the scope of the admitted contention. See Order (Denying Pilgrim Watch Motion for Clarification) (Jan.

11, 2008) at 3-4. Thus, Mr. Ahlfeld's testimony is irrelevant for this reason too.

The second and third paragraphs of Dr. AhIfeld's testimony do include a couple of statements that "leaks can occur" and that "Entergy has not demonstrated that they have sufficient means of detecting leaks if they occur." These statements are vague and unsupported.

Dr. Ahlfeld provides no basis for his opinion concerning Entergy's programs. Indeed, he does not even discuss those programs. Without any explanation of its factual basis, such testimony has no probative value and is inadmissible. Savannah River, LBP-05-04, 61 N.R.C. at 80.

Further, there is no showing that Dr. Ahlfeld is qualified to provide expert opinion in this area.

As indicated by his testimony, his area of expertise is groundwater flow and contaminant transport. There is no indication that Dr. Ahlfeld has any expertise regarding the effectiveness of the coatings applied to the buried piping within the scope of the contentions, the effectiveness of the inspections and other AMPs employed by Entergy to maintain the buried piping, or the effectiveness of the other tests that Entergy routinely conducts to demonstrate their capability to perform their intended functions.

4 Testimony of Alan Cox, Brian Sullivan, Steve Woods, William Spataro on Pilgrim Watch Contention 1, Regarding Adequacy of Aging Management Program for Buried Pipes and Tanks and Potential Need for Monitoring Wells to Supplement Program (Jan. 8, 2008) ("Entergy Direct Testimony").

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In short, there is no relevant, reliable, or probative information in Dr. Ahlfeld's testimony. Therefore, the Board should exclude Dr. Ahlfeld's testimony in its entirety.

C. Mr. Gundersen's Testimony Should Be Excluded In Its Entirety Because Mr.

Gundersen Lacks Qualifications and Bases His Testimony on an Incorrect Legal Standard All of Mr. Gundersen's testimony should similarly be excluded in its entirety because (1) he has not demonstrated knowledge and experience qualifying him as an expert on the matters to which he testifies, and (2) is testimony is predicated on an incorrect legal standard.

1. Mr. Gundersen Has Not Demonstrated the Requisite Qualifications PW has failed in its burden to demonstrate that Mr. Gunderson is an expert in the areas on which he offers an opinion. Diablo Canyon, ALAB-410, 5 N.R.C. at 1405. As discussed below, PW does not demonstrate that Mr. Gundersen has the requisite knowledge, skill, experience, training, or education to provide an expert opinion on the matters at hand. Savannah River, LBP-05-04, 61 N.R.C. at 80. Thus, Mr. Gundersen's opinion cannot "assist the trier of facts in understanding the evidence or to determine a fact in issue." Id. Accordingly, Mr.

Gundersen's opinion is not reliable evidence, 10 C.F.R. § 2.337(a), and his testimony should be excluded from the proceeding's evidentiary record.

Mr. Gundersen seeks to testify to the adequacy of Pilgrim's aging management programs for buried piping, but nothing in Mr. Gundersen's Curriculum Vitae or testimony indicates that he has the requisite expertise in aging management. Nowhere does Mr. Gundersen demonstrate that he has any education, knowledge, or experience with the design, construction, inspection, or protection of buried piping. Likewise, he fails to demonstrate that he has any education, knowledge, or experience with metallurgy or with coatings. Mr. Gundersen does not purport to 9

hold any certifications or other qualifications in these fields. Indeed, none of the areas in which he has worked, as identified in paragraph 7 of his January 26 testimony and in pages 3-4 of his March 6 testimony, appears relevant to the aging management of buried piping.

Mr. Gundersen lists "aging plant management assessment" as one of his "Special Qualifications," and notes that he has briefed two members of Congress on "aging management concerns." Gundersen Curriculum Vitae at 1, 5. Mr. Gundersen's willingness to talk to members of Congress certainly does not establish any "special qualifications" in the field of aging management. Further, it does not indicate any knowledge or expertise regarding buried piping.

Moreover, Mr. Gundersen overstates his previous experience in NRC licensing proceedings. Mr. Gundersen asserts that he has "qualified as an expert witness before the NRC ASLB relating [to] the proposed uprate at the Entergy Nuclear Vermont Yankee Nuclear Power Station." Gundersen Test. at ¶ 5. Aside from the fact that Mr. Gundersen fails to explain how alleged expertise in an uprate proceeding would qualify him as an expert on license renewal aging management issues, Mr. Gundersen's assertion is wrong. Mr. Gundersen withdrew as a witness in the Vermont Yankee uprate proceeding before he filed any testimony in that proceeding. See Docket No. 50-271-OLA, Transcript (Telephone Conference) at 716-17 (Jan.

24, 2006) (available at ADAMS accession no. ML060310281). Therefore, Mr. Gundersen never qualified as an expert witness and never testified in the Vermont Yankee uprate proceeding.

Similarly, Mr. Gundersen's testimony states that he was a "Senior Vice President for a nuclear licensee." Gundersen Test. at ¶ 4. To the extent that this statement may suggest that he held that position at a nuclear plant, it is misleading. As indicated in his Curriculum Vitae, Mr.

Gundersen has never been an officer at a nuclear plant. Rather, it appears that he was an officer 10

at a vendor, Nuclear Energy Services, which may have had some minor materials licenses. This provides no basis to establish any qualifications to testify to the adequacy of the aging management of buried piping at a nuclear power plant.

Finally, there is no indication that Mr. Gundersen has any familiarity with the design of the Pilgrim plant, or the design of boiling water reactors ("BWR") generally. Mr. Gundersen's Curriculum Vitae does not indicate that he has worked at any BWR. Further, the lack of familiarity with BWR design is clearly reflected in his testimony. For example, his March 6, 2008 testimony demonstrates that Mr. Gundersen does not know the difference between the Standby Gas Treatment System and the Offgas System. Compare Gundersen March 6 Test. at 4-5 with Entergy Direct Testimony at 15-16. Similarly, Mr. Gundersen seeks to attack responses to the Board's questions concerning leakage from the buried CSS piping by referring to language in NRC Inspection Manual Part 9900 concerning discovery of leakage from an ASME Class 1, 2 or 3 pressure boundary component (see Gundersen March 6 Test. at 9), but apparently does not understand that the buried CSS piping has no such classification.

In short, PW has failed in its burden to demonstrate that Mr. Gundersen is competent to give an expert opinion on the issues raised by PW Contention 1. See Diablo Canyon, ALAB-410, 5 N.R.C. at 1405; Savanmah River, LBP-05-04, 61 N.R.C. at 80. Therefore, the Board should exclude Mr. Gundersen's testimony from the evidentiary record.

2. Mr. Gundersen's Testimony is Irrelevant Because It is Based on an Incorrect Legal Interpretation of the Reasonable Assurance Standard Mr. Gundersen's testimony is also entirely inadmissible because his opinions are predicated on an incorrect legal standard concerning whether the PNPS aging management programs provide "reasonable assurance" that the buried piping will perform its intended 11

functions. Mr. Gundersen asserts that Entergy has not demonstrated the adequacy of its programs "with 95 percent certainty." Gundersen Test. at ¶¶ 10, 15; Gundersen March 6 Test. at pp. 6-8. Since this is not the required legal standard, as discussed below, all of Mr. Gundersen's opinions are irrelevant.

While Mr. Gundersen provides little basis for his assertion that Entergy must demonstrate the adequacy of its programs with 95% certainty - and indeed, he is not qualified to provide any such legal opinion - PW elaborates on this standard in its prehearing statement. Unfortunately, PW simply cribs arguments made in another license renewal proceeding and conveniently neglects to inform the Board of precedents rejecting these arguments.

PW's argument concerning the meaning of reasonable assurance, at pages 5-10 of its Statement of Position,5 is lifted nearly verbatim from the intervenor's post-hearing proposed findings in the Oyster Creek license renewal proceeding.6 However, PW omits the portion of those proposed findings 7 which acknowledge that the U.S. Court of Appeals for the District of Columbia rejected the claim that reasonable assurance means "beyond a reasonable doubt."

North Anna Envtl. Coal.v. NRC, 533 F.2d 655, 667-68 (D.C. Cir. 1976).8 PW also fails to inform the Board that this argument was rejected in the Oyster Creek license renewal proceeding because it was "not supported by Commission regulations or case law." AmerGen Energy Co.,

LLC (Oyster Creek Nuclear Generating Station), LBP-07-17, 66 N.R.C. _, slip. op. at 15-16 5 Pilgrim Watch Presents Statements of Position, Direct Testimony and Exhibits under 10 C.F.R. 2.1207 (March 3, 2008).

6 Compare Citizen's Post Hearing Proposed Findings of Fact and Conclusions of Law, Docket No. 50-0219-LR (Oct. 10, 2007) (ADAMS accession no. ML073100089) at 52 - 55.

7 See id. at 50.

8 Pilgrim Watch cannot be unaware of this precedent, because it is discussed in a recent petition which Pilgrim Watch's representative, Ms. Lampert, signed. See Petition to Suspend License Renewal Reviews (Jan. 3, 2008)

(ADAMS accession no. ML080090427) at 22.

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n. 18 (Dec. 18, 2007). The Board in Oyster Creek found that an applicant's meeting the reasonable assurance standard should be evaluated based on "sound technical judgment applied on case-by-case basis" and "compliance with Commission regulations." Id. at 15, ýin Union of Concern Scientists v. NRC, 880 F.2d 552, 558 (D.C. Cir. 1989); Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 A.E.C. 1003, 1009 (1973).

As is the case with most standards of proof, the courts have not defined the "reasonable assurance" standard adopted by the NRC to a percentage. Further, the Commission has made it clear that, in providing reasonable assurance, an applicant does not have to meet an "absolute standard." Commonwealth Edison Co. (Zion Units 1 and 2), ALAB-616, 12 N.R.C. 419, 421 (1980).9 Moreover, the courts have been very clear in finding that "reasonable assurance" is not equal to "beyond a reasonable doubt" - the highest level of burden of persuasion and the closest level to 95% confidence level advanced by Mr. Gundersen. See North Anna Envtl. Coal, 533 at 667-68 (equating "reasonable assurance" to "beyond a reasonable doubt" results in a overburden on the applicant). In North Anna, the Court found no support in the NRC regulations for placing such a high burden of proof on the applicant: "[h]ad the regulations been intended to require proof beyond a reasonable doubt we believe it would have been clearly so stated." Id. at 667.

Likewise, the Commission has noted that "reasonable assurance" as a basis for judging compliance does not imply "a potentially more stringent statistical criteria (e.g., use of the 95th 9 Further, with respect to Entergy's burden in the instant proceeding - whether the PNPS AMPs have elements that provide reasonable assurance that the buried CSS and SSW system pipes will not develop leaks so great as to cause those pipes to be unable to perform their intended safety functions - Entergy must prove its case by a preponderance of the evidence. See, e.g., Advanced Medical Systems, Inc., CLI-94-06, 39 NRC 285, 302 and n.22 (1994); 10 C.F.R. § 2.732. A preponderance of the evidence requires "only that the record underlying a finding makes it slightly more likely than not." Inquiry into Three Mile Island Unit 2 Leak Rate Data Falsification, LBP-87-15, 25 NRC 671, 690 (1987); Commonwealth Edison Company (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419 (1980). In addition, before Entergy's burden of proof comes into play, "the burden of going forward on any issues that make it to the hearing process is on" PW. Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), LBP-05-12, 61 N.R.C. 319, 326 (2005).

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percentile of the distribution of the estimate of dose)." Final Rule, Disposal of High-Level Radioactive Wastes in a Proposed Geologic Repository at Yucca Mountain, NV, 66 Fed. Reg.

55,732, 55,740 (Nov. 2, 2001).

D. Mr. Gundersen's March 6 Testimony Should Be Entirely Excluded Because It Is Not Proper Rebuttal Mr. Gundersen's March 6 testimony should be excluded from the evidentiary record in its entirety because it is not proper rebuttal testimony. As the Board made clear in its scheduling

order, The opportunity to submit rebuttal is NOT an opportunity to present material unrelated to the explicit prefiled direct testimony being rebutted, nor is it an opportunity to raise additional matters or testimony to supplement it initial prefiled direct testimony.

Dec. 19 Order at 3 n.3. Pilgrim Watch has ignored the Board's instructions and simply used its March 6 filing to repackage much of Mr. Gundersen's January 26 testimony. Indeed, the March 6 filing is not even captioned as rebuttal testimony.

Rather, Mr. Gundersen's March 6 testimony copies or duplicates swaths of his January 29 testimony. See Gundersen March 6 Test. at pp. 6-8 (testimony on 95% confidence standard),

16-20 (testimony on three possible scenarios); 30-35, 41-49 (testimony on alleged inadequacies in the BPTIMP); pp. 51-56 (testimony on mitigating consequences of leaks). He also copies large portions of Entergy's and the Staff s testimony. Such unduly repetitious testimony' 0 is not admissible. 10 C.F.R. § 2.337(a).

10Indeed, barely 8 pages of Mr. Gundersen's March 6 testimony could be considered not generally duplicative and repetitious of previous testimony. See pp. 35-41, 49.

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E. Portions of Mr. Gunderson's Testimony should be excluded from the evidentiary record because they do not constitute admissible evidence Should the Board not exclude Mr. Gundersen's testimony in its entirety, the Board should nonetheless exclude numerous portions of the Gunderson testimony as incompetent, irrelevant, or otherwise inadmissible, as discussed below.

1. Mr. Gundersen's Testimony Includes Inadmissible Legal Opinion

a. Reasonable Assurance Standard Mr. Gundersen's January 26 testimony in paragraphs 10 and 15, and in his March 6 testimony at pages 6-8 and 50-51 are inadmissible because they are a legal argument that Mr.

Gundersen is not qualified to make. Mr. Gundersen states that, in his opinion, "the factual record submitted by the applicant Entergy does not meet the burden of proof required by a licensee, much less with 95% certainty, that the Aging Management Program will identify leaks, or that any leaks already identified by the AMP will not expand further." Gundersen Test. at ¶15 (emphasis in original); see also Gundersen Test. at ¶ 10. In his March 6 testimony, he adds that

"[t]he 95 percent confidence standard was accepted and applied by the NRC as the measure of

'reasonable assurance... and "[n] either the Applicant nor the NRC may simply rely on

'engineering judgment', unless that judgment is grounded in facts that provide the 95% level of certainty." Gundersen March 6 Test. at 7; see also id. at p. 50 (lines 22-23), p. 51 (lines 1-2).

Mr. Gundersen is not qualified to give such opinions.' How a burden of proof should be Mr. Gundersen's reference to the statements in a Sept. 6, 2001 ACRS meeting (see Gundersen March 6 Test. at 7) does not cure the inadmissible nature of this unqualified opinion. First, Mr. Gundersen mischaracterizes the statements in that transcript. When asked whether "law requires you to make a finding with 95 percent confidence", a member of the NRC staff (Mr. Caruso) responded "No, the law requires us to make a reasonable assurance finding." PW Exhibit 4 at p. 2. Mr. Caruso also stated "I don't think there has ever been any definition that everyone has agreed to." Id. Mr. Caruso did state that "We could say that a 95 percent confidence does define reasonable assurance," but was responding to a question that was based on the hypothetical "If your criterion is 95 percent confidence .... Thus, Mr. Gundersen's assertion that the 95 percent confidence standard "was accepted and applied by the NRC as the measure of 'reasonable assurance... is unsupported. Moreover, 15

weighed and whether an applicant meets it are legal issues. Mr. Gunderson is not a lawyer, nor does he have any legal training or experience. Thus, his opinion of whether Entergy has satisfied its burden of proof with respect to whether Pilgrim's AMPs meet NRC standards is unreliable and irrelevant. Similarly, Mr. Gundersen's testimony in paragraph 14, discussing who has the burden of proof, is inadmissible because it provides a legal opinion that Mr. Gundersen is not qualified to give.

Consequently, paragraphs 10 and 14, and the portion of paragraph 15 from "[i]n my opinion.., back-up safety system" of Mr. Gundersen's January 26 testimony, and pages 6 (from line 18) through 8 (line 1), and pages 50 (lines 22-23) through 51 (lines 1-2) in his March 6 testimony should be excluded.

b. Scope of PW Contention 1 Paragraphs 12, 12.1, 12.3, 12.4.2, and 12.4.4.3 of Mr. Gundersen's January 26 testimony, and pages 30 (lines 1-7), 41 (lines 15-18), 42 (lines 13-19), and 43 (lines 17-20) of his March 6 testimony, are inadmissible because they are argumentative, speculative, and seek to provide a legal opinion which Mr. Gundersen is not qualified to give. Mr. Gundersen argues that Entergy "has recognized the inadequacy" of its AMPs and speculates that the Buried Piping and Tanks Inspection Monitoring Program ("BPTIMP") was initiated as an attempt to address inadequacies raised by PW. Gundersen Test. at ¶ 12. See also Gundersen March 6 Test. at 30 ("it is apparent that Entergy agrees with me"). There is no basis whatsoever for this speculation. Mr.

Gundersen then argues that, because Pilgrim has a procedure that implements both the external inspection requirements for buried piping within the scope of the license renewal rule and there is no showing that Mr. Caruso was qualified to provide a legal opinion on the reasonable assurance standard.

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voluntary inspections of other buried components as part of Entergy's groundwater protection initiative, Entergy has shown that it agrees with PW that the groundwater contamination is properly part of the LRA AMPs. Gundersen Test. at ¶¶ 12.1; 12.4.2 ("that radioactive contamination of groundwater is an important issue" that belongs in the AMP "as originally voiced by [PW] in this contention,"); and 12.4.4.3 ("Entergy is once again confirming the validity of [PW's] initial contention that radioactive contamination clearly belongs in this adjudicatory process"); Gundersen March 6 Test. at 41 ("The Program indicates that Entergy agrees with Petitioners.. . ."), 42 (the program ". . .acknowledges the validity of Pilgrim Watch's initial contention...."), 43 ("once again confirming the validity of Pilgrim Watch's initial contention that radioactive contamination belongs in this adjudication process"). This testimony is in essence argument concerning the scope of the admitted contention - and is, in fact, an argument that seeks to circumvent the Board's prior rulings. Furthermore, the scope of the admitted contention is a legal matter, on which Mr. Gundersen is not qualified to provide any opinion.

Finally, this testimony has no probative value whatsoever. Entergy has never suggested that groundwater protection is unimportant, but simply that it is not within the scope of the license renewal rules. The fact that PNPS has a groundwater protection initiative which includes both groundwater monitoring and inspections of potential sources of leaks simply reflects Entergy's commitment to protect the environment. In no way can such actions expand the scope of the NRC's license renewal rules or the scope of this proceeding.

For much the same reason, paragraphs 13, 13.1, and 13.2 of Mr. Gundersen's January 26 testimony and his March 6 testimony at page 4, lines 7-9, should be excluded. Mr. Gundersen argues that the Board "has suggested" that it is not necessary for the AMPs to prevent or detect 17

failures. Here, he is simply quarreling with the Board's ruling and the scope of the admitted contention. Similarly, in paragraph 18 of his January 26 testimony, Mr. Gundersen states that the Board has suggested a possible weakness in Entergy's AMP. This statement is inadmissible legal opinion concerning the Board's ruling. Moreover, the Board has made no substantive ruling on the merits of PW's contention. Finally, at page 4 of his March 6 testimony, he states "the Order has changed significantly during the course of these proceedings." Such a veiled criticism of the Board's rulings on the scope of the admitted contention is again simply argument not suitable for witness testimony.

c. Information Required for NRC Staff Review Paragraphs 12.4.3.2 and 12.4.3.3 of Mr. Gundersen's January 23 testimony, and lines 7-11 on page 43 of Mr. Gundersen's March 6 testimony are inadmissible because they are irrelevant, argumentative, and offer legal opinion which Mr. Gundersen is unqualified to give. In these paragraphs, Mr. Gundersen asserts that certain information is of the type that the NRC requires and argues that the decision should be delayed because it was not available for NRC review. First, the adequacy of the NRC Staff's review is not an issue in this proceeding.12 Second, there is no indication that Mr. Gundersen has any personal knowledge or qualifications to testify to the information that the NRC Staff requires. Mr. Gundersen also provides no basis for his assertion that information was unavailable to the Staff. The NRC Staff conducted both onsite audits and inspections of relevant documentation. There is no indication that Mr.

12 "With the exception of the NEPA issues, the sole focus of the hearing is on whether the application satisfies NRC regulatory requirements, rather than the adequacy of the NRC Staff performance." Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989) (citing Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-728, 17 N.R.C. 777, 807, review declined, CLI-83-32, 18 N.R.C. 1309 (1983). An Atomic Safety and Licensing Board has no jurisdiction to review the NRC Staff's review process. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-93-5, 37 N.R.C. 168, 170 (1993); Northeast Nuclear Energy Co.

(Montagne Nuclear Power Station), LBP-75-19, 1 N.R.C. 436 (1975).

18

Gundersen has any personal knowledge of what information the NRC Staff may or may not have reviewed. Thus, he is simply assuming facts not in evidence. Finally, his argument that decisions in this proceeding should be delayed is a legal claim that he is not qualified to make.

Therefore, this testimony should be excluded from the record.

d. Criticism of the NRC Staff's SER Review Similarly, Mr. Gundersen's March 6 testimony at page 50, lines 12 through 16, opines that the NRC's SER review should not be applied to PNPS because of a an OIG report that evaluated the NRC staff s review process. Again, arguments that the proceeding should be delayed are not proper opinion testimony. Further, as the Commission has long stated, the sole focus of a hearing focuses on whether an application satisfies NRC requirements, and not on the adequacy of the staff's performance.' 3 Thus, this testimony and the topic of how the staff perfonrs its review is beyond the scope of the proceeding. Moreover, the OIG report (OIG A-15, Sept. 6, 2007) did not even address the NRC Staff's review at PNPS.

e. Interpretation of 10 C.F.R. § 54.21 (a)(3)

Mr. Gundersen's March 6 testimony, at page 8, lines 3-11, is inadmissible because it provides a legal opinion that Mr. Gundersen is not qualified to make. In essence, Mr. Gundersen argues that the requirement in Section 54.21 (a)(3) to manage aging so that intended functions will be maintained "consistent with the CLB" means that Energy is required to fully comply with its license and all NRC regulations." Pilgrim Watch is free to argue the meaning of regulations in its briefs, but its technical witnesses have no qualifications to reinterpret the NRC rules or offer opinions beyond their qualifications.

13 Id.

19

2. Mr. Gundersen's Testimony Includes Irrelevant Testimony, Including Testimony Beyond the Scope of the Proceeding Mr. Gundersen's testimony is replete with statements that fall outside the permissible scope of litigable issues in this proceeding, which, as described in detail below, should be excluded from the evidentiary record.

a. Mr. Gundersen's Testimony on Groundwater Monitoring is Irrelevant Mr. Gundersen's January 26 testimony in paragraph 18.4 (including all subparagraphs, and repeated verbatim at pp. 54-56 of his March 6 testimony) concerning groundwater monitoring is beyond the scope of the admitted contention and this proceeding, and is therefore irrelevant. Mr. Gundersen endorses Dr. AhIfeld's recommendations concerning the design of the monitoring well systems, asserts that such monitoring should not be voluntary, and recommends that the monitoring should include additional radionuclides. This testimony is inadmissible for the same reasons that apply to Dr. Ahlfeld's testimony. Moreover, it is clear that Mr.

Gundersen's testimony in paragraph 18.4 relates to groundwater protection, and not to ensuring the functions of buried piping within the scope of the license renewal rule. His assertions that other radionuclides should be monitored (¶ 18.4.4), that tritium and other releases may spread rapidly (¶ 18.4.5); and that Pilgrim is proximate to "the environmentally sensitive Bay and salt marshes" (¶ 18.4.6) show that this testimony has nothing to do with ensuring that equipment within the scope of the license renewal rule continues to perform its intended function.

This testimony once more highlights the wholly pretextual nature of PW's contention and the testimony of its witnesses. The focus and concern of Pilgrim Watch and its witnesses is not license renewal aging management, but the prevention of radioactive groundwater 20

contamination, which the Board has clearly held is beyond the scope and purpose of license renewal aging management programs.

Similarly, paragraph 12.3 of Mr. Gundersen's testimony ("Given the recent tritium findings.., the Public requires a firm commitment.., not simply a voluntary plan....") is irrelevant. This testimony refers to Entergy's voluntary groundwater protection initiative and, therefore, is beyond the scope of the contention and proceeding.

Finally, the several references in Mr. Gundersen's testimony relating to protecting against 4

groundwater contamination and offsite migration are beyond the scope of the proceeding. 1 These references too, should be excluded.

b. Mr. Gundersen's Testimony on Leakage at Other Plants is Irrelevant The numerous references in Mr. Gundersen's testimony to leakage at other plants, and testimony predicated on such leakage, are irrelevant. 15 The Board has previously ruled that "leakage events at other plants are not directly relevant to the issue at hand." LBP-07-12, 66 N.R.C. at 130. Moreover, Mr. Gundersen provides no basis to indicate that any experience at other plants is germane. There is no indication that Mr. Gundersen has any personal knowledge regarding the experience at Byron. He does not provide any information showing that leakage at 14 The inadmissible testimony on ground water monitoring occurs in Mr. Gundersen's January 26 testimony at ¶118

("Increase the Monitoring Well Program to actively look for leaks once they have occurred"), and in Mr.

Gundersen's March 6 testimony at pp. 6 (lines 7-15); 29 (lines 1-4); 31 (lines 13-15); 39 (lines 19-24); and 52 (lines 2-3).

15 The inadmissible references to leakage at other plants are in Mr. Gundersen's January 26 testimony at ¶¶ 12.4.5.6

("Industry evidence... hand in hand"); 15 (last two sentences); 16 (entire paragraph); 17.1.4 (from "In my opinion" to end of paragraph), 17.3.3 ("similar to the aforementioned Byron incident" and from "As the nuclear industry well knows" to the end of the paragraph); 18.1 (entire paragraph); and 18.4.5 (entire paragraph). The inadmissible references are also in Mr. Gundersen's March 6 testimony at pp. 17 (lines 14-20); 19 (lines 24-25);

and 20 (lines 2-4).

21

any other plant involved the same materials, environment, and aging management programs.

Indeed, the experience at Byron to which Mr. Gundersen refers did not occur in piping that was buried or wrapped. Accordingly, all of the references to experience at other plants should be excluded.

c. Mr. Gundersen's Testimony Concerning Recent Tritium Measurements at Pilgrim Is Irrelevant All of Mr. Gundersen's testimony concerning the recent trace measurements of tritium in a couple of monitoring wells is irrelevant because Mr. Gundersen provides no testimony relating this information to the adequacy of the aging management programs for the buried piping within the scope of Contention 1.16 Mr. Gundersen provides no information showing that the trace levels of tritium may have come from the Salt Service Water ("SSW") System discharge piping or the Condensate Storage System ("CSS") piping. He provides no explanation of how the SSW piping could be the source, since that piping does not normally contain any radioactivity. He similarly provides no linkage to the buried CSS piping. He provides no explanation of how any leakage could be attributed to the buried CSS piping when the level of tritium in a well immediately adjacent to the condensate storage tanks is near background. Moreover, Mr.

Gundersen provides no discussion of why these trace levels of tritium would indicate any deficiency in the AMPs and other tests and inspections described in Entergy's testimony that are 16 The inadmissible testimony predicated on tritium findings is in Mr. Gundersen's January 26 testimony at ¶ 12.3

("Given the recent tritium findings" to end of paragraph); ¶ 16 ("As recently as" to end of paragraph); ¶ 17

("More specifically ... finction."); ¶ 17.1 ("Unfortunately ... yet to be uncovered."); ¶ 17.1.3 (entire paragraph);

¶ 17.4 (entire paragraph); ¶ 18 ("The Board appropriately.., on-site Tritium leaks"); ¶ 18.1 (entire paragraph); ¶ 18.4 ("However, given... license extension."); ¶ 18.4.1 (entire paragraph); ¶ 18.4.2 (entire paragraph); ¶ 18.4.3 (entire paragraph); ¶ 18.4.5 (entire paragraph). Inadmissible testimony predicated on tritium findings is also in Mr. Gundersen's March 6 testimony at 16 (lines 17-20); 17 (lines 4-7); 20 (lines 11-14); 26 (lines 5-7); 35 (lines 14-15); 51 (lines 18-23); 52 (lines 4-9); 55 (lines 7-18); 56 (lines 1-10).

22

implemented to provide reasonable assurance that the buried SSW and CSS piping will perform their intended functions.

Because Mr. Gundersen has not demonstrated that the trace tritium measurements have any relevance to the aging management of the buried SSW and CSS piping, all of his testimony predicated on these tritium measurements is irrelevant and should be excluded.

d. Mr. Gundersen's Testimony Concerning Buried Tanks Is Irrelevant, As there Are No Buried Tanks within the Scope of this Contention.

All of Mr. Gundersen's testimony regarding buried tanks17 is outside the scope of PW Contention 1 and is, therefore, inadmissible. There are no buried tanks within the scope of PW Contention I because the buried components in the two systems that contain or potentially contain radioactive liquid, the CSS and the SSW System, consist of buried piping and no buried tanks. Entergy Direct Testimony at A24. Mr. Gundersen has provided no evidence that there is any buried tank within the scope of PW Contention 1. In fact, Mr. Gundersen admits as much in his March 6 testimony. Gundersen March 6 Test. at 5. Thus, his testimony assumes facts not in evidence. Without any evidentiary basis indicating the presence of buried tanks within the scope of this contention, all references in Mr. Gundersen's testimony with respect to buried tanks are irrelevant and should be excluded.

17 See Gundersen Test. at ¶¶ 9, 10, 11, 12, 12.2, 12.4.1, 12.4.2, 12.4.3, 12.4.5, 12.4.7, 12.4.9, 12.4.9.1(a), 12.4.10, 13, 15, 16, 17, 17.1, 17.1.1, 17.1.2, 17.1.3, 17.2, 17.3, 17.3.3, 18.1, 18.2, 18.3, 18.3.1, 18.3.2, 18.3.3, 18.3.4. See also Gundersen March 6 Test. at pp. 10 (line 18); 16 (lines 17 & 23); 17 (lines 1 & 6); 18 (line 3); 19 (lines 15 &

25); 23 (line 4); 26 (line 23); 44 (lines I & 3); 48 (line 19); 49 (line 19); 52 (line 9); 53 (lines 9, 15, 17, & 19); 54 (lines 1, 5 & 13); 56 (line 19).

23

e. Mr. Gundersen's Testimony on The Vermont Yankee "Aging Management System" is Irrelevant to PNPS and Therefore Inadmissible Mr. Gundersen's testimony regarding the implementation of an aging management program at another nuclear plant is vague and irrelevant. Mr. Gunderson criticizes the implementation of some unspecified aging management program at Vermont Yankee.

Gundersen Test. at ¶ 18.3.4 (entire paragraph); Gundersen March 6 Test. at p. 54 (lines 8-18).

However, he fails to provide any explanation of how the implementation of any program at Vermont Yankee is relevant to PNPS. There is no indication that this vague testimony is applicable to the aging management of buried piping. Moreover, he provides no factual basis for his allegations regarding the implementation of aging management at Vermont Yankee. Indeed, Vermont Yankee's license renewal proceeding is still ongoing; it is unclear how Mr. Gundersen can even suggest that some required aging management program was not being performed.

Consequently, this testimony should be excluded from the record.

Similarly, Mr. Gundersen asserts in paragraph 18.3.4 of his January 26 testimony and page 54, lines 8-18, of his March 6 testimony that Entergy should be required to "certify" the implementation of tests and allow PW to review copies of inspection reports in regard to the scope of this proceeding. PW's contention relates to whether the aging management programs are adequate. It does not involve any aspect of Mr. Gundersen's baseless insinuation that Entergy might violate the program. Speculation that a licensee will violate regulatory requirements is not admissible in NRC licensing proceedings. Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), LBP-99-25, 50 N.R.C. 25, 34 (1999) c General Public Utilities Corp. (Oyster Creek Nuclear Generating Station), LBP-96-23, 44 N.R.C. 143, 164 (1996). In the absence of evidence to the contrary, the NRC does not presume that a 24

licensee will violate agency regulations whenever the opportunity arises. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-9, 53 N.R.C. 232, 235 (2001);

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-35, 52 N.R.C. 364, 405 (2000). Further, inspecting and enforcing a licensee's compliance with aging management programs after issuance of a renewed license is the NRC Staff's responsibility, and the Board has no jurisdiction to supervise that function. See New England Power Co. (NEP, Units 1 and 2), LBP-78-9, 7 N.R.C. 271, 278-79 (1978) (licensing boards do "not have the power to direct the Staff in the performance of its independent responsibilities"); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 N.R.C. 1193, 1263 (1984), rev'd on other grounds, CLI-85-2, 21 N.R.C. 282 (1985).

f. Mr. Gundersen's Testimony Concerning Counterfeit or Substandard Parts is Beyond the Scope of Contention 1 and Therefore Irrelevant Mr. Gundersen's testimony regarding the need to consider alleged counterfeit or substandard parts is irrelevant. Mr. Gundersen lists "counterfeit or substandard parts not replaced" as an additional item the BPTIMP should consider when evaluating risk. Gundersen Test. at ¶¶ 12.4.6.1, 12.4.6.2. Mr. Gundersen also argues that there should be a further review of this issue. Gundersen March 6 Test. at pp. 26 (lines 9-20); 45 (line 13). However, this claim does not raise an aging issue. Rather, it relates to the adequacy of the current licensing basis (concerning the adequacy of NRC and industry response to construction issues three decades ago), and hence is outside the scope of PW Contention 1. See, e.g*, 60 Fed. Reg. at 22,464, 22,481-82; Turkey Point, CLI-01-17, 54 N.R.C. at 7-9.8 18 Indeed, the NRC issued NRC Bulletin 88-05 to alert utilities about potential counterfeit and substandard pipe fittings and flanges, and then PNPS owner Boston Edison undertook a comprehensive and multi-discipline review 25

Furthermore, Mr. Gundersen has failed to provide any factual basis for his assertion that the BPTIMP needs to consider counterfeit or substandard parts. Nowhere does Mr. Gundersen's testimony indicate that PNPS received counterfeit or substandard parts, nor does his testimony even claim that such counterfeit or substandard parts made their way into the buried piping within the scope of PW Contention 1. Mr. Gundersen's testimony provides only a bare assertion that counterfeit or substandard parts should be considered without providing any factual support for his claim with respect to Pilgrim. Consequently, his testimony - aside from being beyond the scope of Contention 1 - is unreliable evidence and should be excluded.

g. Mr. Gundersen's Testimony Purportedly Relating to Standby Gas Treatment System Is Beyond the Scope of the Proceeding Mr. Gundersen's March 6 testimony (from page 4, line 12, to page 6, line 4) is beyond the scope of the admitted contention and thus irrelevant. Mr. Gundersen speculates that the Standby Gas Treatment System (SGTS) piping "may" have radioactive liquids (id. at 4), but the system that he then discusses (on page 5 of his March 6 testimony) relates to the Offgas system, not the SGTS system. Mr. Gundersen states that "The SGTS is used to improve the performance of the condenser.. ." Id. This is the function of the Offgas System, not the SGTS. Entergy Direct Testimony at Q&A 25. The Offgas System is not within the scope of license renewal. Id.

at Q&A 26.

Indeed, Pilgrim Watch knows full well that this discussion relates to the Offgas System, not the STGS. The description in Mr. Gundersen's testimony is practically the same as to identify, locate and remediate, as appropriate, any counterfeit and substandard pipe fittings and flanges at the Pilgrim plant. See Boston Edison Company, "Response to NRC Bulletin 88-05 and Supplements 1 & 2, Nonconforming Materials" (Sept. 1988). Thus, this issue was handled under the NRC's "ongoing agency oversight, review, and enforcement" of operational issues as contemplated by the NRC license renewal rules. See 60 Fed. Reg. at 22,473. See also LBP-06-23, 64 N.R.C. 257, 275 (2006).

26

description of the Offgas System in Pilgrim Watch's Answer Opposing Entergy's Motion for Summary Disposition of Pilgrim Watch Contention 1 (June 27, 2007) at 10. It appears that Mr.

Gundersen has simply taken this description of a system beyond the scope of the proceeding and changed its name. This does not speak well of his credibility.

h. Mr. Gundersen's testimony of the function of the pipes is irrelevant and beyond the scope of this proceeding Mr. Gundersen's testimony on the basic function of pipes (Gundersen March 6 Test. at p.

6 (lines 7-15)) is irrelevant and beyond the scope of this hearing. Mr. Gundersen is attempting to define the function of the buried piping as "protecting the environment by keeping its contents from seeping out into the environment" and argues that this is critical to prevent leakage that "might leach into water tables and Pilgrim's surrounding fragile estuaries." Gundersen March 6 Test. at 6. This testimony is irrelevant because it does not relate to the "intended functions" that must be maintained under the license renewal rules. See 10 C.F.R. § 54.4(b). Rather, Mr.

Gundersen is simply quarreling with the Board's prior ruling that groundwater protection is beyond the scope of license renewal and not an issue here.

i. Mr. Gundersen's Attack on the Board's Questions Assumes Facts Not In Evidence and Is Irrelevant Mr. Gundersen's March 6 testimony, from page 8, line 13, through page 16, line 11, is irrelevant because it assumes facts not in evidence, misapplies NRC guidance, and concerns issues beyond the scope of this proceeding. In essence, this section of Gundersen's March 6 testimony attacks the Board's questions about whether leakage could be detected and what affect it would have on the intended functions of the buried piping. See Gundersen March 6 Test. at 10

("In my opinion,. . . the ASLB seems to have turned this issue of underground leakage on its head."). This attack, however, has no basis for a number of reasons.

27

First, Mr. Gundersen relies upon some language in NRC Inspection Manual Part 9900, which states that "[u]pon discovery of leakage from a Class 1, 2 or 3 pressure boundary component.. ., the licensee must declare the component inoperable." Id. at 9.19 This guidance is not applicable to the buried CSS piping which has no ASME classification and is not subject to the operability requirements in the technical specifications. Furthermore, the guidance specifically states that Class 3 components (such as the SSW discharge piping) may be deemed operable following evaluation of the degradation.

Second, Mr. Gundersen is basing his attack, inter alia on the importance of (1) not exposing members of the public to excessive doses by radioactive leaks migrating offsite, (2) not exposing workers, and (3) reducing decommissioning costs. Gundersen March 6 Test at 9.

These are important objectives, but they are not the intended functions that must be maintained under the NRC license renewal rules. See 10 C.F.R. § 54.4(b). The purpose of the license renewal AMPs is to provide reasonable assurance that the effects of aging during the renewed license term are managed such that the intended function of the in-scope components will be maintained consistent with the current licensing basis for the period of extended operation. It is not to prevent radioactive leakage or to minimize radiological exposures which concern ongoing plant operations that are equally applicable to the current licensing term. The general concerns of leakage raised by Mr. Gundersen throughout his testimony are thus operational issues beyond the scope of license renewal.

19 NRC Inspection Manual, Part 9900, Technical Guidance, "Operability Determinations & Functionality Assessments for Resolution of Degraded or Nonconforming Conditions Adverse to Quality or Safety" (Sept. 26, 2005) at C-10.

28

Finally, Mr. Gundersen appears to assume that the Board's questions and the answers from Entergy and the NRC Staff somehow imply that leakage detected in the buried CSS and SSW piping would go uncorrected. Nothing in any of the responses to the Board's questions suggests that corrective action would not be taken if such leakage were detected. Indeed, both Entergy and the NRC Staff have testified that the Appendix B corrective action program applies to any degradation detected under the aging management programs for these components.

j. Mr. Gundersen's Discussion of "Pre-Existing Holes" Is Irrelevant Mr. Gundersen's March 6 Testimony at page 20, lines 15-22, is irrelevant. Mr.

Gundersen attempts to draw an analogy between pre-existing holes in underground piping and the permanent removal of an emergency diesel generator. First, there is no evidence indicating that there are any pre-existing holes in the buried piping subject to this contention (or any other buried piping for that matter). Second, emergency diesel generators are unrelated to this contention, and the analogy has no probative value.

Mr. Gundersen's March 6 Testimony at page 21, lines 1 through 16, is similarly irrelevant. Again, there is no evidence in this proceeding that there pre-existing holes. Further, Mr. Gundersen's discussion of the steps that Entergy might take if leaks were detected is irrelevant. There is no dispute in this proceeding that any detected leakage in the buried piping at issue in this proceeding would be subject to the corrective action program requirements.

k. Mr. Gundersen's Discussion of the BPTIP Misapplies the GALL Report and Therefore Is Irrelevant.

Mr. Gundersen's March 6 testimony, from page 30 line 16 through page 34 line 13, is irrelevant because Mr. Gundersen is mistakenly applying the wrong GALL section in his critique of the PNPS Buried Piping and Tanks Inspection Program (BPTIP). Mr. Gundersen is 29

purporting to explain why the BPTIP program is insufficient, but the testimony identified above relates to the separate One-Time Inspection Program. In particular, Mr. Gundersen quotes NUREG-1801 as applying to the BPTIP, but all of the sections that he quotes are from section XI.M32 of the GALL Report (One-Time Inspection), rather than section XI.M34 of the GALL Report (Buried Piping and Tanks Inspections). Accordingly, this discussion is not only irrelevant but once more shows that Mr. Gundersen has no real familiarity with aging management and is not a credible witness.

F. Testimony Lacking a Factual Basis Should Be Excluded from the Evidentiary Record Mr. Gundersen's testimony contains many assertions and opinion statements for which he has failed to adequately state and explain a factual basis, thus rendering that testimony inadmissible. Savannah River, LBP-05-04, 61 N.R.C. at 80. The Board should exclude all such inadequately supported testimony, as discussed below, from the evidentiary record.

20 Mr. Gundersen's testimony alleging a need for a baseline review of buried components consists only of unexplained assertions, unsupported by any factual basis and should therefore be excluded from the record. Nowhere does Mr. Gundersen explain why a "baseline review" (which he never defines) is required or what such a review might accomplish above and beyond what is proposed by the AMP. He provides only his subjective belief that full examinations of buried components are required. Such unsupported assertions have no probative value.

20 See Gundersen Test. at ¶¶ 12.4.1.1 (from "However" to end of paragraph); 12.4.1.2 (entire paragraph); 12.4.1.3 (entire paragraph); 18 ("Establish critical Baseline Data"); 18.1 (entire paragraph and subparagraphs). See Gundersen March 6 Test. at 31 (lines 8-12), 34 (lines 15-18); 42 (lines 3-11); 50 (lines 1-3); 51 (line 24), 52 (lines 4-21); and 53 (lines 1-11).

30

Likewise, Mr. Gundersen's testimony offers nothing but speculation and his subjective beliefs concerning the adequacy of the BPTIMP. Mr. Gundersen's criticisms include suggesting what type of data should be collected, Gundersen Test. at ¶ 12.4.3.1 (entire paragraph), but he fails to support his suggestions with any factual basis. In particular, Mr. Gundersen provides no explanation of why any of the data in paragraph 12.4.3.1 is required. He provides no explanation of how any of this data relates to the inspection designed to ensure that protective coatings remain effective. Similarly, Mr. Gundersen provides no facts or data supporting his criticism of the impact analyses, the stated inspection interval and inspection priorities, risk parameters to be employed, proposed corrective actions, and various other portions of the BPTIMP.21 His unsupported belief and speculation do not amount to admissible evidence and should be excluded from the evidentiary record. Likewise, Mr. Gundersen speculates about whether, according to "the odds," difficult to access components have been inspected. Gundersen Test. at

¶ 12.4.5.6 (from "In fact" to the end of the paragraph). Such speculation does not amount to admissible evidence and should be excluded. Further, the PNPS AMPs for buried piping do not rely on past inspections, so this speculation is irrelevant.

Also inadmissible are Mr. Gundersen's repeated, unsupported assertions regarding the behavior of leaks. Mr. Gunderson is quick to assume hypotheticals and opine as to what characteristics leaks might possess that could hamper intended safety functions, but he provides no facts or data to support his suppositions. See Gundersen Test. at ¶¶ 17 (entire paragraph);

17.1 (entire paragraph and its subparagraphs); 17.2 (entire paragraph); 17.3 (entire paragraph);

17.3.1-3; 17.4; see also Gundersen March 6 Test. at pp. 16 line 13 through p. 20 line 14; 23 21 Gundersen Test. at 1}¶ 12.4.4 (paragraph and subparagraphs); 12.4.5; 12.4.5.1; 12.4.5.2; 12.4.5.3; 12.4.6.2; 12.4.6.3; 12.4.6.4; 12.4.8; 12.4.8.1; 12.4.8.2; 12.4.8.3; 12.5. See also Gundersen March 6 Test. at pp. 29-35; and 41-49 (all of which is "extracted" from Mr. Gundersen's January 26 testimony).

31

(lines 2-9). Because Mr. Gundersen offers no foundation for the hypotheticals he propounds and merely speculates what could occur, all of this testimony is unsupported and unreliable and therefore should be excluded from the evidentiary record.

Mr, Gundersen's discussion of the so-called "Bathtub Curve" (Gundersen March 6 Test.

at p. 21 line 22 through 22 line 18) is irrelevant. Mr. Gundersen's testimony on these points is so general, vague and unsupported that it has no probative value. He provides no data, study, or other technical support indicating that the buried piping within the scope of this contention will experience accelerated aging. His statement that "I would expect that most of Pilgrim Station's pipes, wraps, and coatings would be in the 'wear out phase' during the relicensed period" appears to be nothing more than unsupported speculation. Mr. Gundersen's reference to the Space Shuttle is also irrelevant. Gundersen March 6 Test. at p. 22. Entergy is not aware of the Space Shuttle having any buried piping.

Mr. Gundersen's attempt to raise a seismic qualifications issue relating to underground piping also fails to qualify as admissible testimony and should be excluded. See Gundersen Test.

at ¶¶ 17.3.3, 17.3.4; Gundersen March 6 Test. at p. 26 line 22 through p. 27 line 2. Nowhere does Mr. Gundersen discuss any seismic design requirements applicable to either the buried CSS piping or the buried SSW System piping. Lacking any foundation showing that the current license basis for these components includes seismic design requirements that would be affected by aging, his testimony is irrelevant.

Likewise inadmissible are Mr. Gundersen's unsupported assertions regarding the frequency and requirements for monitoring and inspections of buried piping. Mr. Gundersen opines that the PNPS AMP should require more and different inspections and monitoring. See 32

Gundersen Test. at ¶¶ 18.3 (entire paragraph); 18.3.1 (entire paragraph), 18.3.2 (entire paragraph), 18.3.3 (entire paragraph); Gundersen March 6 Test. at p. pp. 22 (lines 20-23); 23 (lines 11-15); 34 (lines 18-23); 35 (lines 1-2, 12-14); 51 (lines 15-18); 52 (line 1); and 53 line 12 through p. 54 line 7. His opinions are offered without any support or basis and consequently are not admissible evidence.

Mr. Gundersen's assertions with respect to cathodic protection are offered without any factual predicate and are therefore inadmissible. Mr. Gundersen's testimony on cathodic protection merely asserts that that cathodic protection should be installed, but nowhere does Mr.

Gundersen provide any explanation or basis for his assertions. See Gundersen Test. at ¶¶ 12.4.3.1 ("cathodic protection"); 12.4.11 (entire paragraph); 18.2 (entire paragraph); Gundersen March 6 Test. at p. 25 line 9 through p. 26 line 7; p. 4 3 (line 6); p. 4 8 line 22 through p. 49 line 2;

p. 53 (lines 7-11). Absent any such foundation, Mr. Gundersen's testimony on cathodic protection should be excluded from the record.

Finally, Mr. Gundersen makes a number of off-hand comments suggesting that information has not been provided in the mandatory disclosure process. There is no indication, however, that Mr. Gundersen knows what was provided in Entergy's disclosures, and his misstatements in fact show that he does not. For example, in paragraph 12 of this January 29 testimony, Mr. Gundersen states that Entergy's BPTIMP was "just recently provided as an Appendix to Entergy's Prefiled Testimony" Gundersen Test. at 3. In fact, this procedure, which was issued in November 2007, was included in Entergy's November 30, 2007 disclosure.

Similarly, Mr. Gundersen claims that Pilgrim Watch was not provided information on the "precise configuration" of the buried piping, but rather a "cartoon style schematic." Gundersen March 6 Test. at p. 27, lines 4-14. This statement is also repeated in PW's question on page 28, 33

lines 11-13, of Gundersen's March 6 testimony. In fact, Entergy provided both P&ID drawings and construction drawings for the buried piping at issue. Once more, it appears that Mr.

Gundersen is simply ignorant of the information provided. Lastly, Mr. Gundersen states that "It strikes me as remarkably convenient that the life expectancy of the [SSW discharge piping]

liners is given as 35-years, yet there is no factual data with which to corroborate that statement."

Gundersen March 6 Test. at p. 37. In fact, Entergy disclosed the documentation for the CIPP providing the basis for the 35-year life. Accordingly, there is no indication that Mr. Gundersen has personal knowledge sufficient to support these accusations.

G. All Late-Filed Exhibits Should Be Excluded from the Record All of the new exhibits filed with PW's March 3, 2008 modified Statement of Position should be excluded from the record as untimely filed. The Board's November 14, 2007 Memorandum and Order (Ruling on Pilgrim Watch's Motion to Extend Deadlines) initially set December 21, 2007 as the "deadline for simultaneous filing of statements of position, written direct testimony and exhibits." Nov. 14, 2007 Order at 2. The Board's subsequent Order of December 19, 2007 extended that deadline to January 29, 2008 for the NRC Staff and PW.

Accordingly, PW's exhibits were due on January 29, 2008, and only those 11 exhibits submitted on that date were timely.

The Board subsequently further directed that PW provide specific citations to the testimony of its (or any other party's) 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.

Order and Notice (Regarding Hearing, Limited Appearance Session, and Additional Questions for Parties) (Feb. 21, 2008) at 2. The Board's request that PW provide citations to its Statement of Position was not an invitation to submit new testimony or exhibits. Thus, the 15 34

additional exhibits 22 that PW filed on March 3, 2008, when it modified its Statement of Position, were improper.

H. Unsponsored Exhibits Should be Excluded from the Record PW exhibits that are not sponsored by either of its testifying witnesses should be excluded from the record. Excluding its exhibits containing portions of the regulations, the PNPS SER, the Gall Report, the license renewal application, and testimony of Entergy's and the NRC Staff s witnesses, PW's March 3 modified Statement of Position contains 12 exhibits that are not relied on or sponsored by PW's testifying witnesses.23 Consequently, they are not admissible evidence and should be excluded from the record. See Duke Power Co. (William B.

McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 N.R.C. 453, 477 (1982) (excluding exhibits not sponsored by an expert "who can be examined on the reliability of the factual assertions and soundness of the scientific opinions found in the documents").

PW Exhibit 8, which is a portion of NUREG/CR-6876 prepared by the Brookhaven National Laboratory, is a prime example of why unsponsored exhibits should be excluded.

Neither of PW's witnesses attempted to relate that data and information to the circumstances at PNPS. The Exhibit is simply appended to PW's Statement of Position, but no explanation is provided as to how it might relate to the PNPS AMPs, specifically the adequacy of the coatings of the in scope buried piping. Without such an explanation, the exhibit cannot assist the Board to 22 The new exhibits filed with PW's modified Position Statement on March 3, 2008 are Exhibits 3, 4, 5, 6, 7, 8, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26.

23 The unsponsored exhibits that should be excluded from the record are Exhibits 4, 7, 8, 10 (initially filed on January 29, 2008 as Exhibit 5), 12 (initially filed on January 29, 2008 as Exhibit 7), 13, 15, 16 (initially filed on January 29, 2008 as Exhibit 10), 22, 23, 24, 25, and 26.

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determine a fact in issue. Thus, all exhibits that are not sponsored by PW's testifying witnesses should be excluded from the record.

I. Irrelevant Exhibits Should Be Excluded from the Record PW's March 3 modified Statement of Position relies on numerous exhibits that, if not excluded from the record on other grounds, should be excluded from the record because they are unreliable, outside the scope of Contention 1, or otherwise irrelevant, as set forth below.

PW Exhibit 4 should be excluded from the record as unreliable hearsay and as irrelevant.

PW Exhibit 4 is a transcript of a September 6, 2001 ACRS meeting. As previously discussed, sur n. 11, the ACRS meeting transcript does not support the proposition that the NRC has accepted the 95 percent confidence standard as the measure of reasonable assurance. Moreover, there is no showing that the NRC Staff member quoted in the exhibit was qualified to provide a legal opinion on the reasonable assurance standard. Consequently, PW Exhibit 4 is irrelevant and should be excluded from the record.

PW Exhibit 7 should be excluded from the record as over broad and outside the scope of PW Contention 1 and therefore irrelevant. PW Exhibit 7 is the final report prepared by an NRC task force established to examine tritium groundwater contamination at nuclear plants. PW Exhibit 7 does not relate specifically to PNPS, and there is no showing that it contains information demonstrating that the PNPS AMPs are deficient. Further, as previously discussed, tritium contamination by itself does not indicate any deficiency in the PNPS AMPs and other tests and inspections described in Entergy's testimony that are implemented to provide reasonable assurance that the buried SSW and CSS piping will perform their intended functions.

Rather, the crux of the report deals with the monitoring of radiological releases, which the Board 36

has previously held is not an issue here. LBP-07-12, 66 N.R.C. at 130 n.81. Therefore, PW Exhibit 7 should be excluded from the record.

PW Exhibit 8 should be excluded from the record because it is vague and not specific to PNPS and otherwise immaterial. PW Exhibit 8, which is a portion of NUREG/CR-6876 prepared by the Brookhaven National Laboratory, purportedly contains information regarding degradation of buried piping systems at nuclear power plants. However, the exhibit does not discuss buried piping at Pilgrim or otherwise discuss the effectiveness of the coatings applied to the buried piping at Pilgrim within the scope of the contention, or the effectiveness of the inspections and other AMPs that Entergy will employ for maintaining the buried piping. Indeed, PW conveniently neglected to include page 98 of NUREG/CR-6876 as part of PW Exhibit 8.

Page 98 establishes that five nuclear plants were the subject of the risk evaluation discussed in the report, none of which was PNPS. Consequently, PW Exhibit 8 is irrelevant and should be excluded from the record.

PW Exhibit 10 (initially filed as Exhibit 5) should be excluded because it is not relevant to this proceeding, contains immaterial information, and is vague. PW Exhibit 10 is an article written by David Lochbaum of the Union of Concerned Scientists entitled "U.S. Nuclear Plants in the 2 1St Century: the Risk of a Lifetime." The article offers no relevant or material information with respect to the quality of the coatings on PNPS buried piping, or the adequacy of PNPS AMPs. Rather, the article vaguely advocates for "strong aging management programs at all reactors." PW Exhibit 10 at 21. Further, this report is hearsay and is provide without any indicia of reliability. Certainly it is not any sort of peer-reviewed scientific study. Consequently, PW Exhibit 10 should be excluded from the record.

37

PW Exhibit 12 (initially filed as Exhibit 7) should be excluded from the record because it is outside the scope of PW Contention I and therefore irrelevant. The exhibit is authored by Mr.

Lochbaum and concerns corrosion and leakage at the Byron nuclear plant. Thus, PW Exhibit 7 contravenes the explicit direction of the Board that leakage events at other plants are not directly relevant to PW Contention 1. LBP-07-12, 66 N.R.C. at 130. Indeed, Exhibit 7 fails to discuss the type of metal used in the corroded pipe, whether or not the pipe was coated, and, if so, how it was coated. Moreover, the subject leakage did not occur in a buried portion of the piping. PW Exhibit 12 at 2 ("The leak occurred just above the concrete floor where the ESW piping emerges from an underground run"). Nothing suggests that the Byron event has any relevance to the central issues concerning PW Contention 1.

PW Exhibit 15 should be excluded from the record because it is irrelevant and otherwise does not contain reliable evidence. PW Exhibit 15 is an October 1990 GAO Report entitled "Nuclear Safety and Health: Counterfeit and Substandard Products Are a Governmentwide Concern." As its title suggests, the report concerns instances where, inter alia, suppliers provided nonconforming parts to commercial nuclear power plants. However, as previously discussed, supra pp. 25-26, nonconforming parts do not raise an aging issue but rather a current design and licensing basis issue. Hence, it is outside the scope of PW Contention 1.

Furthermore, PW Exhibit 15 provides no basis to conclude that the in-scope buried piping at issue in Contention 1 contains any non-conforming parts. Indeed, the most that PW Exhibit 15 claims is that PNPS was "suspected" of having received non-conforming pipe fittings and flanges. PW Exhibit 15 at 16-17. Such speculation is not reliable and is therefore not admissible evidence.

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PW Exhibit 16 (initially filed as Exhibit 10) and PW Exhibit 26 contain irrelevant information and should be excluded from the proceeding. PW Exhibit 16 is an April 2006 article that appeared in the Boston Globe concerning earthquakes. PW fails to explain how speculation on future earthquakes has any relation to the adequacy of the exterior coatings of the buried piping at PNPS, or the AMPs relied on to provide reasonable assurance that the in-scope buried piping will perform its intended function during the license renewal term. Further, as previously discussed, PW provides no foundation to establish pertinent seismic design requirements in the PNPS current licensing basis. PW Exhibit 26 concerns the discovery of tritium in a monitoring well at PNPS. As previously discussed, supra pp.22-23, tritium measurements have no relevance to the aging management of the buried SSW and CSS piping, and therefore are irrelevant and immaterial to the resolution of PW Contention 1. Furthermore, PW Exhibits 16 and 26 are newspaper articles, and are hearsay that is not sufficiently reliable to be used as evidence in an NRC hearing. See Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3),

CLI-86-1, 23 N.R.C. 1, 4 n.2 (1986) ("hearsay based on a newspaper article does not constitute the kind of evidence that can support a [motion to reopen a record]"). Thus, PW Exhibits 16 and 26 are irrelevant, immaterial, and unreliable, and therefore should be excluded from the record.

PW Exhibit 22 is inadmissible because it is irrelevant. PW Exhibit 22 is an NRC Office of Inspector General ("OIG") Report, the stated purpose of which was to "determine the effectiveness of NRC's license renewal safety reviews." OIG Report at i. As previously discussed, supra p. 19 & n.13, the adequacy of the NRC Staff's safety review is not at issue in this proceeding. Moreover, PW Exhibit 22 does not address the adequacy of the PNPS AMPs, or the design and durability of the in scope buried piping. Thus, the exhibit is irrelevant and should be excluded.

39

PW Exhibit 23 is inadmissible because it is irrelevant and directly contravenes the previous rulings of the Board. PW Exhibit 23 is an NRC Event Notification Report concerning the discovery of tritium in a monitoring well at the Palisades Nuclear Plant. PW Exhibit 23 contravenes the express direction of the Board that "leakage events at other plants are not directly relevant to the issue at hand." LBP-07-12, 66 N.R.C. 130. The exhibit is therefore outside the scope of PW Contention I and is inadmissible.

PW Exhibit 24 and PW Exhibit 25 are inadmissible because they are irrelevant and contravene the prior rulings of the Board. PW Exhibit 24 is a proposed rule issued by the NRC concerning potential amendments to its regulations on decommissioning along with an ACRS letter on the proposed rulemaking. 24 Aside from the fact that the proposed rule is just that -

proposed and not final or binding - the proposed rule does not propose to amend the Commission's license renewal rules and therefore would have no impact on the instant proceeding. See 73 Fed. Reg. at 3,829-3,832 (discussing the proposed changes to existing rules).

Furthermore, the discussion of the potential need to install monitoring wells to comply with the proposed rule (if and when it is enacted) goes toward monitoring radiological releases, or determining how such releases could harm health or the environment. The same is true with respect to PW Exhibit 25, which purports to be an Entergy document providing the approximate location of four monitoring wells at the site. Monitoring radiological releases or determining how such releases could harm health or the environment are issues which the Board has 24 Proposed Rule, Decommissioning Planning, 73 Fed. Reg. 3,812 (Jan. 22, 2008).

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previously ruled "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." LBP-07-12, 66 N.R.C. at 130 n.81 (emphasis added). Consequently, PW Exhibits 24 and 25 have no relevance here and should be excluded.

III. CONCLUSION For the reasons set forth above, the PW written testimony and exhibits should be excluded from the evidentiary record in their entirety or, in the alternative, the portions set forth above because PW has failed to meet the 10 C.F.R. § 2.336(a) disclosure requirements; the testimony is outside the scope of PW Contention 1; and/or the testimony does not amount to admissible evidence.

Respectfully Submitted, David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8000 Counsel for Entergy Dated: March 10, 2008 41

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

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station) ))

CERTIFICATE OF SERVICE I hereby certify that copies of"Entergy's Motion In Limine to Exclude Pilgrim Watch Testimony and Exhibits," dated March 10, 2008, were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 10th day of March, 2008.

• Administrative Judge *Administrative Judge Ann Marshall Young, Esq., Chair Dr. Richard F. Cole Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 amy(&nrc.gov rfc I@nrc. gov

• Administrative Judge

• Secretary Paul B. Abramson Att'n: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop 0-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 secy@nrc.gov; hearingdocket(2nrc. gov pba@nrc.gov Office of Commission Appellate Atomic Safety and Licensing Board Adjudication Mail Stop T-3 F23 Mail Stop 0-16 CI U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 400773524v2

• Susan L. Uttal, Esq. *Mr. Mark D. Sylvia

• Kimberly A. Sexton, Esq. Town Manager

• James E. Adler, Esq. Town of Plymouth Office of the General Counsel 11 Lincoln St.

Mail Stop 0- 15 D21 Plymouth, MA 02360 U.S. Nuclear Regulatory Commission msylvia(otownhall.plyrmouth.ma.us Washington, DC 20555-0001 slu@nrc.gov; KAS2@nrc.gov:

JEA I@ý)nrc. gov

• Ms. Mary Lampert *Chief Kevin M. Nord 148 Washington Street Fire Chief and Director, Duxbury Emergency Duxbury, MA 02332 Management Agency mary.lampert@comcast.net 688 Tremont Street P.O. Box 2824 Duxbury, MA 02331 nordgtown.duxbury.ma.us

• Sheila Slocum Hollis, Esq. *Richard R. MacDonald Duane Morris LLP Town Manager 505 9th Street, NW, Suite 1000 878 Tremont Street Washington, DC 20004-2166 Duxbury, MA 02332 sshollis(aduanemorris.com macdonalda~town.duxburv.ma.us P aul A. G'ýau.Tler 2