ML080840470

LB Order (Ruling on Pending Matters and Addressing Preparation of Exhibits for Hearing)

ML080840470
Person / Time
Site:	Pilgrim
Issue date:	03/24/2008
From:	Abramson P, Cole R, Austin Young Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
06-848-02-LR, 50-293-LR, RAS J-11
Download: ML080840470 (8)

Text

1Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 315 (2006) (footnote omitted).

2 Entergys Motion in Limine to Exclude Pilgrim Watch Testimony and Exhibits (Mar. 10, 2008) [hereinafter Entergy Motion]; NRC Staffs Motion in Limine to Strike Exhibits and Testimony filed by Pilgrim Watch (Mar. 10, 2008) [hereinafter Staff Motion]. See also Pilgrim Watch Reply to Entergys Motion in Limine to Strike Exhibits and Testimony Filed by Pilgrim Watch, March 10, 2008 (Mar. 17, 2008) [hereinafter Pilgrim Watch Reply to Entergy]; Pilgrim Watch Reply to NRC Staffs Motion in Limine to Strike Exhibits and Testimony Filed by Pilgrim Watch, March 10 2008 (Mar. 17, 2008) [hereinafter Pilgrim Watch Reply to Staff].

3 Pilgrim Watch Request to Conduct Cross-Examination in Accordance with 10 CFR 2.104(b) (Mar. 17, 2008); see also NRC Staff Response in Opposition to Pilgrim Watch Request to Conduct Cross-Examination (March 20, 2008).

UNITED STATES OF AMERICA DOCKETED 03/24/08 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL SERVED 03/24/08 Before Administrative Judges:

Ann Marshall Young, Chair Dr. Paul B. Abramson Dr. Richard F. Cole In the Matter of:

ENTERGY NUCLEAR GENERATION COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC.

(Pilgrim Nuclear Power Station)

Docket No. 50-293-LR ASLBP No. 06-848-02-LR March 24, 2008 ORDER (Ruling on Pending Matters and Addressing Preparation of Exhibits for Hearing)

Currently before the Licensing Board in this proceeding, which involves the license renewal application of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc., and one remaining contention of Intervenor Pilgrim Watch involving whether 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,1 are two motions in limine2 and one request to cross-examine.3 In this Order the Board rules on these matters and also sets out certain requirements for the parties regarding preparation of exhibits 4Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-12, 66 NRC 113, 130 n. 81 (2007).

5 Pilgrim Watch Reply to Entergy at 4.

for the April 10, 2008, hearing in this matter.

1. With regard to the motions in limine filed by Entergy and the NRC Staff, the Board denies the motions in part and grants them in part. With regard to matters relating solely to radiological content or radiological effects of any potential leaks, the Board grants the motions; all such issues have been ruled to be not legitimately in dispute here, because they do not relate to aging and/or because they are addressed as part of ongoing regulatory processes.4 Therefore, the Board will not consider paragraphs 12.4.2, 12.4.4.3, and 18.4.6 of the Testimony of Arnold Gunderson, or Pilgrim Watch Exhibit 24. Pilgrim Watch shall therefore redact these from its final submitted testimony and exhibits (see below paragraph 6 et seq.). All the redacted material will remain in Pilgrim Watchs filings to date, to serve as a record of the material that we now exclude.

2. We will not exclude the Ahlfeld Declaration because, as Pilgrim Watch suggests, issues of groundwater flow are relevant not only to contaminant transport, but also to detecting small leaks before they become large enough to compromise safety functions.5 (How small of a leak would need to be detected in order to prevent compromising of such functions is a factual matter for our ultimate determination.) Also, regarding tritium, although, as Entergy argues, tritium contamination by itself does not indicate any deficiency in the [Pilgrim Plants aging management programs], it may arguably be relevant to the issue of detecting leaks themselves, when considered in combination with other evidence.

3. We will also not exclude testimony relating to monitoring wells and how effective they may be in detecting leaks that might become large enough to compromise safety functions. As 6 See id. at 5.

7 Entergys Initial Statement of Position On Pilgrim Watch Contention 1 at 3 (January 8, 2008); Testimony of Alan Cox, Brian Sullivan, Steve Woods, and 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 at 10 (January 8, 2008).

8 Pilgrim Nuclear Power Station, LBP-07-12, 66 NRC at 130.

suggested by Pilgrim Watch,6 Entergy opened the door to litigation of such issues in its prefiled direct testimony, by arguing and submitting testimony to the effect that monitoring wells are not necessary to ensure that the CSS and SSW system do not develop leaks that would impair the performance of their intended functions, and that using monitoring wells to detect leakage would not be nearly as effective as the AMPs.7 This clearly opens the door to evidence relevant to the relative effectiveness of monitoring wells to ensure that the CSS and SSW system do not develop leaks that would impair the performance of their intended functions.

4. With regard to various other categories of evidence asserted to merit exclusion, e.g.,

evidence regarding matters of expertise, vagueness and unhelpfulness, leakage at other plants (which we have noted is not directly relevant to the issue at hand, but still might provide relevant information regarding the potential usefulness of monitoring wells in detecting leaks8),

and others, we also deny the motions of Entergy and the Staff. In making our ultimate determinations, we will give all evidence before us the weight we find to be appropriate (from none to significant), and will consider all parties arguments in the current pleadings in reaching these determinations.

5. With regard to Pilgrim Watchs Request to Conduct Cross-Examination, the Board will permit additional questions to be posed at the April 10 hearing, to the degree relevant and necessary to ensure the development of an adequate record for decision. See 10 C.F.R.

§ 2.1204(b)(3).

6. With regard to preparation and submission of exhibits for the April 10 evidentiary hearing, the parties are directed to comply with the following procedures:

A.

Admission of Exhibits Exhibits in this proceeding will be admitted into the evidentiary record on April 10, 2008.

B.

Procedures for Submission of Exhibits (i)

Prefiled testimony:

Written testimony will be received into evidence in exhibit form (10 C.F.R. § 2.1207(b)(2)) and should include all initial testimony, rebuttal testimony, sur-rebuttal testimony, and CVs of witnesses. No personally identifiable information (PII) should be included in any CV.

All testimony must be signed by all individuals and appropriately sworn.

(ii)

Exhibits to Any exhibit to prefiled testimony that a party desires to be Prefiled testimony:

included within the evidentiary record, excluding CVs, should be submitted as a separate exhibit.

(iii)

Stamping and Remove all prior markings from exhibits.

marking exhibits:

Each exhibit should be marked in the upper right corner and/or the top center of the exhibit, using a stamp that Ms. Johanna Thibault will provide to all parties, to be mailed out no later than Friday, March 28. Counsel must return the stamps to Ms. Thibault at the conclusion of the hearing.

Prior to submission into evidence, each exhibit must be stamped and filled out, as in the diagram below.

The stamp should be placed in the upper right corner of the exhibit, unless doing so will obscure the exhibit. The spaces on the stamp should be filled in as demonstrated below. All portions of the stamp so marked should be left blank as indicated. Place a circle around the appropriate party offering the exhibit.

Diagram of Stamp:_______________________________________________

U.S. NUCLEAR REGULATORY COMMISSION In the Matter of______Entergy (Pilgrim Nuclear Power Station)__________

Docket No.___50-293-LR______ Official Exhibit No.__LEAVE BLANK_____

OFFERED by: Applicant/Licensee Intervenor _[Party Name] Exh. #_____

(Circle appropriate party)

Or:

NRC Staff Other _[Party Name] Exh._______

IDENTIFIED on __LEAVE BLANK___ Witness/Panel__LEAVE BLANK____

Action Taken:

ADMITTED REJECTED WITHDRAWN Reporter/Clerk ___________LEAVE BLANK__________________________

(iv) Stamped exhibit copies: Parties shall submit two (2) stamped copies of each exhibit

- one (1) original and one (1) copy. The Board will deliver the two copies to the Office of the Secretary after completion of the hearing (10 C.F.R. § 2.337(d)). When submitting the exhibits, counsel should arrange them in two (2) separate collections, each ordered sequentially.

Copies for the Board and parties shall be provided as set forth in section III below.

(v) Exhibit List:

Each set of exhibits will be accompanied by an exhibit list marked: [Party Name] Exh. #. The list should indicate the Exhibit Number and a short descriptive title of the exhibit.

The parties shall electronically distribute their respective exhibit lists to the service list and the Board no later than Monday, April 7, 2008.

C.

Copies for the Board and Parties Parties shall provide for the Licensing Board three (3) sets of all submitted exhibits discussed above in Section 6.B. Each set of exhibits must be submitted in a three-ring binder, in sequential order, beginning with the exhibit list, followed by prefiled testimony and then all submitted exhibits. Each individual document should be tabbed accordingly.

The copies provided to the Board need not bear the evidence stamp but must bear a proper party exhibit number that may be referenced to that partys exhibit list (see Section 6.B(v)).

Parties shall provide a copy of all exhibits to the other parties. Each party should bring sufficient copies of any new or modified exhibits being offered at the oral hearing for all board members and other parties.

9 Copies of this Order were sent this date by Internet electronic mail transmission to all counsel and representatives for the parties.

D.

Electronic Copies of Exhibits Each party should provide one (1) set of CD-ROMs containing all submitted testimony and exhibits. The electronic version of the exhibits need not bear the evidence stamp but must bear a proper exhibit number (see Section 6.B(v)). The Board prefers that every exhibit be in Word, Wordperfect, or PDF (with searchable text), format.

E.

Witnesses The Board expects all witnesses to be available for the entire length of the hearing.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD9 Ann Marshall Young, Chair ADMINISTRATIVE JUDGE Dr. Paul B. Abramson ADMINISTRATIVE JUDGE Dr. Richard F. Cole ADMINISTRATIVE JUDGE Rockville, Maryland March 24, 2008

/RA/

/RA/

/RA/

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

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ENTERGY NUCLEAR GENERATION CO.

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AND

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ENTERGY NUCLEAR OPERATIONS, INC. )

Docket No. 50-293-LR

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)

(Pilgrim Nuclear Power Station)

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (RULING ON PENDING MATTERS AND ADDRESSING PREPARATION OF EXHIBITS FOR HEARING) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Susan L. Uttal, Esq.

David Roth, Esq.

Kimberly Sexton, Esq.

James E. Adler, Esq.

Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 David R. Lewis, Esq.

Paul A. Gaukler, Esq.

Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N. Street, N.W.

Washington, DC 20037-1128

2 Docket No. 50-293-LR LB ORDER (RULING ON PENDING MATTERS AND ADDRESSING PREPARATION OF EXHIBITS FOR HEARING)

Perry H. Buckberg, Project Manager Plant Licensing Branch I-I Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Mail Stop O11-F1 Washington, DC 20555-0001 Mary Lampert, Director Pilgrim Watch 148 Washington Street Duxbury, MA 02332 Sheila Slocum Hollis, Esq.

Town of Plymouth MA Duane Morris, LLP 505 9th Street, NW, Suite 1000 Washington, DC 20004-2166 Mark D. Sylvia, Town Manager Town Managers Office 11 Lincoln Street Plymouth, MA 02360 Terrence A. Burke, Esq Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213 Chief Kevin M. Nord Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street Duxbury, MA 02332

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 24th day of March 2008