ML081000269

Answer of Entergy Nuclear Operations, Inc. to Riverkeeper'S Request for Admission of Amended Contention TC-1 (Concerning Environmentally Assisted Metal Fatigue)

ML081000269
Person / Time
Site:	Indian Point
Issue date:	03/31/2008
From:	Bessette P Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Lathrop K, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel
SECY/RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-44
Download: ML081000269 (16)

Text

t2P 1ccv DOCKETED USNRC April 1, 2008.(8:00am)

OFFICE OF SECRETARY UNITED STATES OF AMERICA RULEMAKINGS AND NUCLEAR REGULATORY COMMISSION ADJUDICATIONS STAFF ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chair Dr. Richard E. Wardwell Dr. Kaye D. Lathrop

) Docket Nos. 50-247-LR and 50-In the Matter of ) 286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

) ASLBP No. 07-858-03-LR-

) BDO1 (Indian Point Nuclear Generating Units 2 and 3) )

) March 31, 2008 ANSWER OF ENTERGY NUCLEAR OPERATIONS, INC. TO RIVERKEEPER'S REQUEST FOR ADMISSION OF AMENDED CONTENTION TC-1 (CONCERNING ENVIRONMENTALLY ASSISTED METAL FATIGUE)

I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1), Entergy Nuclear Operations, Inc. ("Entergy" or "Applicant"), hereby files its Answer to Riverkeeper, Inc.'s Request for Admission of Amended Contention TC-1, dated March 5, 2008 ("TC-1 Amendment Request"). As set forth below, Entergy opposes the admission of Amended TC-1 on the ground that it does not satisfy the contention admissibility standards of 10 C.F.R. § 2.309(f)(1). It fails to raise a genuine dispute with the Applicant on a material issue of law or fact, contrary to 10 C.F.R. § 2.309(f)(1)(vi). Also, by positing requirements beyond those contained in 10 C.F.R. Part 54, Amended TC-1 raises issues that are outside the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

II. BACKGROUND On November 30, 2007, Riverkeeper filed a timely Request for Hearing and Petition to Intervene in this license renewal proceeding, challenging certain aspects of Entergy's license

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renewal application ("LRA") for Indian Point Nuclear Generating Units 2 and 3. Among Riverkeeper's proffered contentions is TC-1, which generally alleges that Entergy's LRA does not adequately address environmentally assisted fatigue ("EAF") of key reactor components that are subject to time-limited aging analysis ("TLAA") under 10 C.F.R. § 54.21(c). Entergy and the NRC Staff filed their answers to Riverkeeper's petition on January 22, 2008. Entergy opposed the admission of TC-1. The NRC Staff did not initially oppose the admission of TC-1, albeit only with respect to limited bases.'

On the same day that Entergy responded to Riverkeeper's Petition, it filed Amendment No.

2 to the LRA ("LRA Amendment 2").2 As Entergy explained, LRA Amendment 2 clarifies the relationship between License Renewal Commitment 33 regarding EAF and the Fatigue Monitoring Program described in Section B. 1.12 of Appendix B to the LRA. Riverkeeper filed its Reply to Entergy's Answer on February 15, 2008, asserting, inter alia, that LRA Amendment 2 did not resolve the concerns raised in TC-1. Significantly, on March 4, 2008, the NRC Staff-reaching exactly the opposite conclusion-filed a letter apprising the Licensing Board that the LRA omissions alleged in TC-1 and New York Contention 26 had been cured by LRA Amendment 2, 3

and that the Staff now considered those contentions moot and inadmissible.

The next day, Riverkeeper filed its TC-1 Amendment Request, to which Entergy responds herein. Riverkeeper asserts that it "does not seek to withdraw any portion of Contention TC- 1, but rather to amend the basis to Subpart 1 of the contention to address the reasons that Entergy's LRA In its January 22, 2008, Answer, the Staff indicated that it did not oppose the admission of Subpart 1 of TC-l to the extent it:. (1) challenged whether the LRA has demonstrated the methodology it will use to manage the effects of aging or broaden its TLAA for components with a cumulative usage factor ("CUF") greater than 1.0, and (2) contended that Entergy's methods and assumptions used in calculating the CUF may be incorrect. Like Entergy, the Staff opposed the admission of Subparts 2 and 3 of TC-1. Staff Answer at 115-18.

2 See Letter from Fred R. Dacimo, Vice President, Entergy, to U.S. Nuclear Regulatory Commission, Document Control Desk, (Jan. 22, 2008) (Entergy Letter NL-08-021), available at ADAMS Accession No. ML080290659.

3 See Letter from David E. Roth and Kimberly A. Sexton, Counsel for NRC Staff, to Atomic Safety and Licensing Board (Mar. 4, 2008) ("NRC Staff March 4 Letter").

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Amendment 2 does not cure Entergy's failure to demonstrate that it will adequately manage the aging of components with a CUF greater than one."4 III. ARGUMENT A. Entergy Does Not Oppose Amended TC-1 As Nontimely During oral argument on March 12, 2008, on the admissibility of Riverkeeper's proposed contentions, the Licensing Board asked Staff and Entergy counsel whether they intended to object to Amended TC-1 as nontimely. 5 Counsel for both parties indicated that neither party would object.

to Amended TC-1 on timeliness grounds. 6 Entergy did not oppose Amended TC-1 because Riverkeeper filed the amended contention approximately 30 days after first receiving a copy of LRA Amendment 2.7 Thus, consistent with counsel's representation during oral argument, Entergy 8

does not oppose Amended TC-1 as nontimely.

4 TC-1 Amendment Request at 3. Subpart 1 of TC-1 contends that Entergy's evaluation of the TLAAs for four representative reactor coolant components is inadequate. It asserts that to meet 10 C.F.R. § 54.2 1(c)(1)(iii),

Entergy must submit a list of all components with CUF larger than 1.0, and an AMP that includes "clear criteria for determining when a defect in any one of these components is acceptable, when it is acceptable but requires monitoring, and when it is unacceptable and requires repairs." It further asserts that Entergy must broaden its TLAA analysis beyond the scope of the representative components identified in Tables 4.3-13 and 4.3-14 to identify other components whose CUF may be greater than 1.0.

5 See Transcript of Oral Argument on Admissibility of Proposed Contentions at 541 (Mar. 12, 2008).

6 Id. at 541-42.

7 As Riverkeeper noted, numerous Licensing Boards have viewed 30 days as a reasonable period for filing new or amended contentions. TC-1 Amendment Request at 2 (citing Entergy Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-07-15, 66 NRC 261, 266 n.11 (2007)).

8 Entergy notes that its decision not to oppose Amended TC-1 as nontimely should not be construed as a waiver of the applicable provisions of 10 C.F.R. §§ 2.309(c) and 2.309(0(2) concerning nontimely filings and new or amended contentions. Entergy expressly reserves the right to oppose the admission of any future new or amended contentions, whether filed by Riverkeeper or any other petitioner, on the basis of the contention timeliness requirements set forth in those regulations.

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B. Entergy Opposes The Admission Of Amended TC-1 Because It Still Fails To Establish A Genuine Dispute With The Applicant On A Material Issue Of Law Or Fact And Raises Issues Outside The Scope Of This Proceeding By Positing Stricter Requirements Than Those In 10 C.F.R. Part 54

1. The Amended Contention Must Meet The Admissibility Standards Of 10 C.F.R. § 2.309(f)(1)

Apart from the late-filing criteria set forth in 10 C.F.R. §§ 2.309(c) and 2.309(f)(2), a proposed new or amended contention must meet the substantive admissibility criteria set forth in 10 C.F.R. § 2.309(f)(1). 9 Failure to comply with any one of the six admissibility criteria is grounds for the dismissal of a.proposed new or amended contention.-L' The Commission's contention admissibility rule at 10 C.F.R. § 2.309(f)(1) is "strict by design,"-' because its purpose is to "focus litigation on concrete issues and result in a clearer and more focused record for decision." The Commission has stated that it "should not have to expend resources to support the hearing process 3

unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.'1 In the absence of genuine dispute on a material issue of law or fact-which, as shown below, is the case here-no hearing is warranted.

2. Amended TC-1 Challenges 10 C.F.R. Part 54 And Basic Aspects Of The Regulatory Process, Including NRC Reliance on Licensee Commitments Before addressing each of the principal argurnients proffered by Riverkeeper, Entergy offers These criteria are discussed in detail in Entergy's January 22, 2008, Answer. In brief, to be admitted, a proposed contention must: (1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioner's position and upon which the petitioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact. See 10 CFR § 2.309(f)(1)(i)-(vi).

10 See Final Rule, "Changes to the Adjudicatory Process," 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004); see also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

11 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001), recons. denied, CLI-02-1, 55 NRC 1 (2002).

12 69 Fed. Reg. at 2202.

13 Id.

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some general observations concerning TC-1 and the proposed amendment thereto. These observations provide context for the specific arguments presented below. First, Entergy submits that Riverkeeper's real dispute is with the current requirements of 10 C.F.R. Part 54, particularly 10 C.F.R. § 54.21(c)(1)(iii), not with Entergy's LRA. Through TC-1, Riverkeeper seeks to impose on Entergy requirements not found in Part 54. This proceeding, however, concerns Entergy's compliance with the requirements of Part 54 as they exist now, not with alleged requirements that Riverkeeper believes ought to apply.

Second, in challenging Entergy's compliance with 10 C.F.R. § 54.21 (c)(1)(iii), specifically as it pertains to EAF, Riverkeeper impermissibly challenges current Part 54 requirements and the NRC's regulatory process. Part 54 anticipates that some actions taken by licensees to achieve compliance with its requirements will be future or prospective actions-and it expressly authorizes such actions. 14 As the Commission explained in its Turkey Point decision:

Part 54 requires renewal applicants to demonstrate how their programs will be effective in managing the effects of aging during the proposed period of extended operation. .... License renewal applicants must demonstrate that all important systems, structures, and components will continue to perform their intended function in the period of extended operation. Applicants must identify any additionalactions, i.e.,

maintenance, replacement of parts,, etc., that will need to be taken to manage adequately the detrimental effects of aging. Adverse aging effects generally are gradual and thus can be detected by programs that 15 ensure sufficient inspections and testing.

Part 54 thus centers license renewal reviews on the adverse effects of aging of materials, which by its Very nature "becomes important principally during theperiod of extended operation beyond the initial 40-year license term."'16 EAF is no exception. The NRC has noted that no 14 See, e.g., 10 C.F.R. § 54.29 (stating "actions have been identified and have been or will be taken" with respect to managing the effects of aging and TLAAs) (emphasis supplied).

15 Fla. Power & Light Co. (Turkey Point Nuclear Power Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8 (2001)

(internal citations and quotation marks omitted; emphasis supplied).

16 Id. at 7 (quoting Final Rule, "Nuclear Power Plant License Renewal," 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991)).

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immediate Staff or licensee action is necessary to address the EAF issue. 7 Rather, because metal fatigue effects increase with service life, the NRC has directed applicants to evaluate EAF for any proposed extended period of operation.' 8 Riverkeeper's claim that Entergy must re-calculate CUFs prior to the conclusion of this adjudicatoryproceeding thus lacks a basis in law or fact.

Licensee commitments provide a well-established and essential mechanism for ensuring that any "additional actions" identified by a licensee to address aging effects and TLAAs are implemented in a timely manner. 19 Commitment 33-one of numerous commitments made by Entergy in connection with its LRA-is no exception. It provides an acceptable means for ensuring that the actions specified therein are completed at least two years prior to the period of extended operation. Such a docketed commitment satisfies a licensee's regulatory obligation. 21 The NRC has "long declined to assume that licensees will refuse to meet their obligations," 22 particularly given that licensees remain subject to continuing NRC oversight, inspection, and enforcement authority during the renewed operating term. 23 Assuming otherwise "would... transmogrify 17 See LRA at 4.3-21. As the LRA explains, due to the factor of safety included in the ASME code, a CUF of greater than 1.0 does not indicate that fatigue cracking has occurred or even is expected; rather, it indicates that there is a higher potential for fatigue cracking at locations having CUFs exceeding 1.0 during the period of extended operation. LRA at 4.3-22.

'8 Id. at 4.3-21.

19 The Commission has held that all licensee commitments need not be converted into express license conditions to be enforceable. See, e.g., PrivateFuel Storage, L.L. C. (Independent Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 235-236 (2001); PrivateFuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-03-8, 58 NRC 11, 21 (2003). Of course, the Commission, Licensing Board, and NRC Staff have the authority to attach appropriate conditions to initial and renewed operating licenses.

20 As discussed in Entergy Letter NL-08-021 and below, the approach to compliance with Section 54.21 (c)(1)(iii) set forth in Commitment 33 is fully consistent with the guidance set forth in NUREG-1801, "General Aging Lessons Learned Report" (Sept. 2005) ("GALL Report").

21 AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), LBP-,06-7, 63 NRC 188, 207 (2006) (accepting licensee commitment as satisfying regulatory obligation).

22 Pac. Gas and Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-03-2, 57 NRC 19, 29 (2003).

23 For example, with respect to license renewal in particular, the NRC Staff conducts post-renewal inspections "to verify that license conditions added as part of the renewed license, license renewal commitments, selected aging management programs, and license renewal commitments revised after the renewed license was granted, are implemented in accordance with [10 C.F.R. Part 54]." See NRC Inspection Manual, Inspection Procedure 71003, "Post-Approval Site Inspection for License Renewal" (Feb. 15, 2008) at 1, availableat NRC ADAMS Accession No. ML073530536.

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license proceedings into open-ended enforcement actions: that is, licensing boards would be required to keep license proceedings open for the entire life of the license so intervenors would have

• a continuing, unrestricted opportunity to raise charges of noncompliance.'" 24 Such a result clearly is not the intent of the agency's license renewal regulations at 10 C.F.R. Part 54. Those regulations, among other things, permit Part 50 licensees to seek renewal of their reactor operating licenses as early as "20 years before the expiration of the operating license or combined license currently in 25 effect."

3. The Proffered Amendment To TC-l Does Not Support Admission Of That Contention Because The Amended Contention Still Fails To Raise A Genuine Dispute And Raises Issues Beyond The Scope Of This Proceeding Riverkeeper presents four principal arguments in its amended proposed contention. Entergy addresses each of those arguments in turn below. None of the arguments supports the admission of Amended TC-1 for hearing.

a. Entergy is not requiredto demonstrate in its LRA that any refinedfatigue analyses will, or are likely to, yield CUFs that are less than 1.0 Riverkeeper first argues that, while Entergy has committed to update its fatigue analyses, it does not explain why CUFs that are now above 1.0 are likely to be less than 1.0 when re-calculated. 26 Riverkeeper asserts that Entergy fails to address "the legal requirement that the LRA application itself is required to demonstrate that CUFs for representative components are less than 1.0, not that it is possible that results of future re-calculations may be less than one." 27 Tellingly, Riverkeeper points to no NRC regulation as containing this purported "legal requirement."

24 Hydro Res., Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-1, 63 NRC 1, 5 (2006) (citationomitted). As counsel for Entergy noted during oral argument, if a petitioner or intervenor having cause to believe that a licensee has not adequately followed a commitment can petition the NRC Staff for appropriate enforcement action under 10 C.F.R. § 2.206. See Transcript of Oral Argument on Admissibility of Proposed Contentions at 546-52, 562.

25 10 C.FYR. § 54.17(c). See also Transcript of Oral Argument on Admissibility of Proposed Contentions at 562 (statement by Entergy counsel).

TC-1 Amendment Request at 4.

27 Id. at 4-5.

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Riverkeeper's argument does not support the admission of TC-1 because it rests on an erroneous premise; i.e., that Entergy is required to demonstrate in its LRA that any refined fatigue analyses will, or are likely to, yield CUFs that are less than 1.0. The only relevant "legal requirement" is that imposed by 10 C.F.R. § 54.21(c)(1), which requires that an applicant demonstrate that (i) TLAAs remain valid for the period of extended operation; (ii) TLAAs have been projected to the end of the period of extended operation; or (iii) the effects of aging on the intended function(s) will be adequately managed for the period of extended operation. Section 54.21(c)(1) does not require that an applicant show in its LRA that all CUFs are, or will be, less than 1.0 for the period of extended operation. As explicitly allowed by the Commission's regulations, an applicant has another option-it may demonstrate that aging effects "will be adequately managed" during the extended operating term. Riverkeeper's assertion that an applicant must show in it is LRA that its analysis is valid for the period of operation wrongly suggests that there is never a need for this third option; i.e., it impermissibly reads 10 C.F.R. § 54.21(c)(1)(iii) out of the regulations.

The GALL Report lends further support to this conclusion in its discussion of corrective actions.Section X.M1 states: "Acceptable corrective actions include repairof the component, replacement of the component, and a more rigorous analysis of the component to demonstrate that the design code limit will not be exceeded during the extended period of operation." 28 Entergy's Commitment 33 is consistent with the approach described in the GALL Report. In accordance with Commitment 33, if Entergy does not update the fatigue usage calculations using refined fatigue analyses so a's to determine valid CUFs less than 1.0 when accounting for the effects of EAF (Option 1), then it must pursue Option 2 of the commitment. Option 2 requires that Entergy repair or replace the affected locations before exceeding a CUF of 1.0, consistent with the Fatigue 28 GALL Report, Vol. 2., Rev. 1 at X M-2, Item 7.

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MonitoringProgram. By asserting that Entergy must demonstrate in its LRA that CUFs are less than 1.0, Riverkeeper fabricates a fanciful "legal requirement." As such, there is no genuine dispute on a material issue of law or fact.

b. Neither Part54 nor the GALL Report requires Entergy to expand its EAF analyses to include "all" components subject to the effects of aging Riverkeeper's second argument is that "Entergy fails to address NRC guidance requiring that, if CUFs for representative components in the [LRA] are more than one, the applicant must evaluate all components that are subject to the effects of aging.",29 Riverkeeper cites the GALL Report and an Electric Power Research Institute guidance document in support of this alleged requirement. 30 The "requirement" asserted by Riverkeeper is, however, nowhere to be found in NRC regulations. And Riverkeeper misrepresents thereferenced guidance. The GALL Report-the guidance document followed by Entergy---does not direct applicants (in the event CUFs for the representative components exceed 1.0) to broaden their EAF analyses to include "all components that are subject to the effects of aging."31 Instead, the GALL Report states that, "[fljor programs that monitor a sample of high fatigue usage locations, corrective actions include a review of additional affected reactor coolant pressure boundary locations." 32 It adds that "the staff finds the 33 requirements of 10 CFR Part 50, Appendix B, acceptable to address the corrective actions."

Contrary to Riverkeeper's claim, Entergy has adhered to the guidance of the GALL Report.

Entergy will evaluate the limiting locations identified in NUREG/CR-6260 (shown in LRA Tables 4.3-13 and 4.3-14) using a more refined fatigue analysis consistent with the guidance of the GALL 29 TC-1 Amendment Request at 5 (emphasis supplied).

30 Id. See Electric Power Research Institute, "Materials Reliability Program: Guidelines for Addressing Fatigue Environmental Effects in a License Renewal Application," Revision 1 at 3-4 (2005).

31 TC-1 Amendment Request at 5.

32 GALL Report, Vol. 2., Rev. I at X M-2, Item 7.

33 Id.

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Report,Section X.Ml. 34 Although the GALL Report states that corrective actions include "a review of additional affected reactor coolant pressure boundary locations,, 35 this is necessary only if the more rigorous analysis of the limiting locations cannot show that the actual CUF is less than 1.0. The Fatigue Monitoring Program corrective actions are consistent with those in the GALL Report,Section X.M1, in providing for a review of additional affected reactor coolant pressure boundary locations in that situation. Riverkeeper ignores this fact, and again fails to show a genuine dispute relative Entergy's compliance with Part 54 or its use of the GALL Report.

c. LRA Amendment 2 does not exclude from considerationthe six representative locations identified in NUREG/CR-6260 Riverkeeper's third argument is that "Entergy's LRA Amendment 2 also limits the recalculation of CUFs to locations specified in [LRA] Tables 4.3-13 and 4.3.14, rather than including the six representative locations identified in NUREG/CR-6260.6 This argument is factually incorrect and disregards the actual content of the LRA. The LRA and Commitment 33 indicate that Entergy will update the fatigue usage calculations using refined fatigue analyses to determine valid CUFs less than 1.0 for locations in LRA Table 4.3-13 (IP2) and LRA Table 4.3-14 (IP3). Review of LRA Tables 4.3-13 and Table 4.3-14 reveals that the locations identified therein are the representative locations identified in NUREG/CR-6260. The title of each table-

"Cumulative Usage Factors for NUREG/CR-6260 Limiting Locations"--makes this patently obvious. Entcrgy's deletion of the text "including NUREG/CR-6260 locations" from the text of Commitment 33 was an editorial revision, not a substantive change to the scope of Entergy's EAF analyses. Contrary to Riverkeeper's unfounded allegation, Entergy has not "propose[d] to drop its 34 LRA at 4.3-21.

35 GALL Report, Vol. 2., Rev. 1 at X M-2, Item 7.

36 TC-1 Amendment Request at 5.

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commitment to calculate CUFs at any time in the future.'" 37 Also contrary to Riverkeeper's claim, the LRA remains true to the guidance of the GALL Report,Section X.Ml. Riverkeeper again falls far short of establishing a genuine dispute with Entergy.

d. . There is no factual or legal basisfor Riverkeeper's claim that the LRA is unacceptably vague with respect to Entergy'splansfor addressingEAF during the period of extended operation Riverkeeper's last principal argument is that the LRA, notwithstanding the January 22, 2008, amendment thereto, "continues to be unacceptably vague about Entergy's plans for improving 38 its methodology for calculating CUFs or its criteria for repairing or replacing components."

Riverkeeper states that "LRA Amendment 2 adds little substantive information." Riverkeeper then declares: "It is not sufficient to merely presume that [] things will happen; they should be described sufficiently in the LRA so that the adequacy of the Entergy's program can be evaluated." 39 Riverkeeper's assertions are not rooted in reality. As reflected in LRA Amendment 2, the actions to be taken under, Commitment 33 and the Fatigue Monitoring Program are specific and detailed. The revised Fatigue Monitoring Program Description contained in LRA Section B. 1.12 (see LRA Amendment 2, Attachment 1 at 5-6) contains considerable and sufficient "substantive information." In short, Entergy has committed to update its fatigue usage (i.e., CUF) calculations using analysis methods consistent with an NRC-approved version of the ASME Code. Those calculations will be governed by Entergy's 10 C.F.R. Part 50, Appendix B, Quality Assurance program. In assessing the effects of EAF, Entergy-consistent with the GALL Report-will apply the CUFs environmental life correction factors obtained using the .formulae contained in NUREG/CR-6583 (for carbon and low-alloy steels) and in NUREG/CR-5704 (for austenitic stainless steels). The criterion. for repairing or replacing components is similarly unequivocal: if 31 Id. at 5-6.

" Id. at 6.

39 Id. at 7.

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Entergy is unable to determine valid CUFs less than 1.0 for any location, then it must repair or replace the affected locations. Entergy thus has done more than simply "summarize options for future plans"--it has identified specific actions that must and will be taken to ensure that EAF is adequately addressed during the period of extended operation.

In view of the above, it is notsurprising that the NRC Staff has concluded that Proposed TC-1 has been rendered moot by LRA Amendment 2. As the Staff noted in its March 4, 2008, letter, Entergy has "provided specific commitments to manage fatigue using the existing Fatigue Monitoring Program under 10 C.F.R. 54.21 (c)(1)(iii) ... and provided additional information regarding its calculations and quality assurance.",40 As Entergy indicated in its January 22, 2008, Answer to Riverkeeper's petition, its amendment of the LRA to bring Commitment 33 within the scope of the Fatigue Monitoring Program and to credit that aging management program as the basis for accepting the TLAA is in accordance with 10 C.F.R. § 54.21(c)(1)(iii). Significantly, Riverkeeper, while positing new "requirements," does not suggest that Entergy will be unable to comply with the aforementioned commitments.

40 NRC Staff March 4 Letter at 2.

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IV. CONCLUSION For the reasons set forth above, Amended TC-1 does not meet the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1) and should be rejected.

Resl~tfuly s~ itted, Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Phone: (202) 739-5738 Fax: (202)739-3001 E-mail: ksutton(anmorganlewis.com E-mail: pbessette(@morganlewis.com E-mail: martin.o'neill(@morganlewis.com William C. Dennis, Esq.

Assistant General Counsel ENTERGY NUCLEAR OPERATIONS, INC.

440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis(aenter.y.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated at Washington, DC this 31 st day of March, 2008 I-WA/2950568.2 13

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

Lawrence G. McDade, Chair Dr. Richard E. Wardwell Dr. Kaye D. Lathrop In the Matter of ) Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ) ASLBP No. 07-858-03-LR-BDO1 (Indian Point Nuclear Generating Units 2 and 3) )

) March 31, 2008 CERTIFICATE OF SERVICE I hereby certify that copies of "Answer of Entergy Nuclear Operations, Inc. to Riverkeeper's Request for Admission of Amended Contention TC-1 '(Concerning Environmentally Assisted Metal Fatigue)," dated March 31, 2008, was served this 31 st day of March 2008 upon the persons listed below, by first class mail and e-mail as shown below.

Office of Commission Appellate Adjudication Administrative Judge U.S. Nuclear Regulatory Commission Lawrence G. McDade, Chair Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail(iDnrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: lgml(anrc.gov)

Administrative Judge Administrative Judge Richard E. Wardwell Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.

U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: kdl2(Pnrc.gov)

(E-mail: rew(a~nrc.gov)

Office of the Secretary

• Sherwin E. Turk, Esq.

Attn: Rulemaking and Adjudications Staff Lloyd B. Subin, Esq.

U.S. Nuclear Regulatory Commission Beth N. Mizuno, Esq.

Washington, D.C. 20555-0001 Kimberly A. Sexton, Esq.

(E-mail: hearingdocketanrc.gov) Christopher C. Chandler, Esq.

David E. Roth Office of the General Counsel Mail Stop: 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set(inrc.gov)

(E-mail: lbs3(@nrc.gov)

(E-mail: bnm 1()nrc. gov)

(E-mail: kimberly.sexton(inrc.gov)

(E-mail: christopher.chandler(anrc.gov)

(E-mail: David.Roth(ah)nrc.gov)

Zachary S. Kahn Nancy Burton Law Clerk 147 Cross Highway Atomic Safety and Licensing Board Panel Redding Ridge, CT 06876 Mail Stop: T-3 F23 (E-mail: NancyBurtonCT(',aol.com)

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: zxkl @(nrc.gov)

Manna Jo Greene Justin D. Pruyne, Esq.

Environmental Director Assistant County Attorney, Litigation Bureau Hudson River Sloop Clearwater, Inc. of Counsel to Charlene M. Indelicato, Esq.

112 Little Market Street Westchester County Attorney Poughkeepsie, NY 12601 148 Martine Avenue, 6th Floor (E-mail: mannaijo(ZZclearwater.org) White Plains, NY 10601 (E-mail: jdp3@(awestchestergov.com)

Stephen C. Filler, Board Member Diane Curran, Esq.

Hudson River Sloop Clearwater, Inc. Harmon, Curran, Spielberg, & Eisenberg, 303 South Broadway, Suite 222 L.L.P.

Tarrytown, NY 10591 1726 M Street N.W., Suite 600 (E-mail: sfiller(nylawline.com) Washington, D.C. 20036 (E-mail: dcurran(d-harmoncurran.com)

Phillip Musegaas, Esq. Thomas F. Wood, Esq.

Victor M. Tafur, Esq. Daniel Riesel, Esq.

Riverkeeper, Inc. Ms. Jessica Steinberg, J.D.

828 South Broadway Sive, Paget & Riesel, P.C.

Tarrytown, NY 10591 460 Park Avenue (E-mail: phillipiriverkeeper.org) New York, NY 10022 (E-mal: vtafur(ihriverkeeper.org) (E-mail: driesel(Csprlaw.com)

(E-mail: isteinberg(sprlaw.com) 2

Robert D. Snook, Esq. Susan H. Shapiro, Esq.

Office of the Attorney General 21 Perlman Drive State of Connecticut Spring Valley, NY 10977 Assistant Attorney General (E-mail: Palisadesart(aaol.com 55 Elm Street mbs(odourrocklandoffice.com)

P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert. Snook(apo. state. ct.us)

Andrew M. Cuomo, Esq. Richard L. Brodsky Attorney General of the State of New York 5 West Main St.

John J. Sipos, Esq. Elmsford, NY 10523 Charlie Donanldson Esq. (E-mail: brodskr(,assembly.state.ny.us Assistants Attorney General richardbrodsky(omsn.com)

The Capitol Albany, NY 12224-0341 (E-mail: iohn. sipos(ioag. state.ny.us)

Joan Leary Matthews, Esq. Janice A. Dean Senior Attorney for Special Projects Office of the Attorney General Office of the General Counsel of the State of New York New York State Department of Assistant Attorney General Environmental Conservation 120 Broadway, 26th Floor 625 Broadway, 14th Floor New York, New York 10271 Albany, NY 12207 (E-mail: Janice.Dean(a?)oag.state.ny.us)

(E-mail: ilmiatthe(ýgw.dec.state.ny.us)

Sarah L. Wagner, Esq.

Legislative Office Building, Room 422 Albany, New York 12248 (E-mail: sarahwagneresq@&gnail.com)

• Original and 2 copies Martin J. O'Neil 1-WA/2951047.1 3