ML081710737

Vermont Yankee - NRC Staff'S Answer in Support of Entergy'S Motion in Limine

ML081710737
Person / Time
Site:	Vermont Yankee
Issue date:	06/19/2008
From:	Subin L NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-91
Download: ML081710737 (10)

Text

June 19, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LR AND ENTERGY NUCLEAR OPERATIONS, INC. )

) ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) )

NRC STAFFS ANSWER IN SUPPORT OF ENTERGYS MOTION IN LIMINE Pursuant to 10 C.F.R. § 2.323(c) and the Atomic Safety and Licensing Boards (Board)

Initial Scheduling Order (Nov. 17, 2006) (unpublished) (November Order), the staff of the U.S.

Nuclear Regulatory Commission (Staff) hereby responds to Entergys Motion in Limine (Motion) dated June 12, 2008. For the reasons set forth below, the Staff supports Entergys Motion.

BACKGROUND Pursuant to the Boards November Order, Entergy filed the instant Motion requesting that the Board exclude certain direct and rebuttal testimony and exhibits filed by NEC in this proceeding on April 28 and June 2, 2008 on the grounds that certain testimony and exhibits do not meet the requirements of 10 C.F.R. § 2.337(a), address issues outside the limited scope of this proceeding, improperly raise new claims, are not properly supported, and the sponsoring witness is not qualified.

DISCUSSION I. Legal Standards Entergy correctly states the legal standards governing the scope of this proceeding (Motion at 2-3), the evidence that may be admitted (id. at 3), the proper scope of rebuttal

testimony (id.), and qualification of experts (id. at 4). In accordance with 10 C.F.R. § 2.337(a),

only relevant, material, and reliable evidence is admissible and that the Board may, pursuant to

§§ 2.319(d) and (e), strike or restrict materials that are irrelevant, immaterial, unreliable, duplicative, or cumulative. Testimony and exhibits that raise issues outside the scope of the admitted contentions should be excluded because the scope of license renewal proceedings is limited to the issues raised by the admitted contentions1 and the scope of the admitted contentions are limited by their bases. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-899, 28 NRC 93, 97 (1988) (stating that contentions and bases must be stated with specificity to put the parties on notice of the issues that they must defend against or oppose and that the scope of a contention is defined by the contention and its stated bases).

With regard to written responses and rebuttal testimony, in accordance with 10 C.F.R.

§ 2.1207(a)(2), written responses and rebuttal testimony should be directed to the initial statements and testimony of the other parties and are not to advance new affirmative claims or arguments. See November Order at ¶10.D.

Finally, an experts opinion may be excluded if the witness is not properly qualified as an expert or the opinion would not assist the trier of fact in understanding the evidence. Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1091 (1983) (internal citations omitted).

1 Statement of Policy on Conduct of Adjudicatory Proceedings, (CLI-98-12) 48 NRC 18, 22-23 (1998).

II. Testimony and Exhibits that Warrant Exclusion Entergy seeks to exclude a number of NEC exhibits and statements. As indicated in the following discussion, the Staff supports Entergys Motion to exclude the statements and exhibits identified below.

A. Statements and Exhibits Regarding the Indian Point License Renewal Proceeding Entergy asserts that statements in NECs Rebuttal Statement of Position (at 6), Rebuttal Testimony of Dr. Joram Hopenfeld (NEC-JH_63 at A19), and the entire Exhibit NEC-JH_67 (a pleading from the Indian Point license renewal proceeding) submitted in support of NEC Contentions 2A & 2B should be excluded because they are irrelevant to issues raised by NECs Contentions. Motion at 5-6. Entergy accurately states that the last paragraph on page 6 of NECs rebuttal statement of position discussing the Indian Point license renewal proceeding should be given no weight and that the Board should exclude the second paragraph of Dr. Hopenfelds response to A19 in Exhibit NEC-JH_63 and all of Exhibit NEC-JH_67. See Motion at 5-6 (reproducing sections that warrant exclusion). Statements and exhibits discussing the strategy or events in the Indian Point proceeding are simply not relevant to NECs Contentions challenging Entergys metal fatigue calculations for key reactor components at Vermont Yankee, and therefore are inadmissible under 10 C.F.R. §2.337(a).

B. Statements Challenging EPU Stress Analyses Entergy correctly asserts that Question 34 (Q34) and Answer 34 (A34) of Dr. Hopenfelds rebuttal testimony (Exhibit NEC_JH-63) regarding stress analyses for Vermont Yankees stream dryer performed as part of the extended power uprate (EPU) are outside the scope of NECs admitted contention challenging the adequacy of Entergys aging management program for the Vermont Yankee steam dryer. The Boards ruling on Entergys motion for summary disposition granted Entergys motion as it relates to the specific use and benchmarking of the CFD ACM computer models in monitoring potential stream dryer cracking.

Memorandum and Order (Ruling on Motion for Summary Disposition of NEC Contention 3)

(Sept. 11, 2007) (September Order) (unpublished) at 3. Q34 and A34 in NECs rebuttal testimony (NEC-JH_63) challenge the use of the CFD and ACM computer models, and do not explain why Entergys steam dryer aging management program should include some form of stress load analysis. Thus, Q34 and A34 should be excluded.

C. New Claims regarding NEC Contention 3 Entergy argues that statements regarding NECs assertion that intergranular stress corrosion cracks (IGSCC) provide another mechanism for fatigue failure should be excluded because NEC is impermissibly raising a new claim. Motion at 7-8. Dr. Hopenfeld raises the claim of IGSCC in his rebuttal testimony. See NEC-JH_63 at A31. Dr. Hopenfelds rebuttal testimony is, in fact, the first instance in which IGSCC cracks are identified as a mechanism for fatigue failure of the steam dryer. Id. at 8. The Board has clearly stated that rebuttal testimony and exhibits are not to advance any new affirmative claims or arguments that should have been, but were not, included in the partys previously-filed initial written statement. November Order at

¶10D. Clearly, this is an attempt to expand the scope of the contention. Therefore, this question and answer warrant exclusion.

D. New Allegations Beyond the Scope of NEC Contention 4 Entergy properly asserts that NECs direct and rebuttal testimony and exhibits raise new allegations that are beyond the scope of NEC Contention 4. Motion at 9. Specifically, Entergy asserts that NECs direct and rebuttal testimony and exhibits dispute for the first time (1) whether the CHECWORKS computer code has been qualified; (2) whether EPRI Report NSAC-202L is a valid guidance document; (3) whether the definition of FAC in NSAC-202L is correct; and (4) whether Vermont Yankees program managing flow-accelerated corrosion is adequate to protect susceptible reactor components. Id.

NEC Contention 4 alleges: Entergys plan for managing flow-accelerated corrosion (FAC) in plant piping fails to meet the requirements of 10 C.F.R. § 54.21(a)(3), i.e. fails to demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB during the period of extended operation.

New England Coalition, Inc. Initial Statement of Position (Apr. 28, 2008) at 23 (quoting Entergy Nuclear Vermont Yankee LLC & Entergy Nuclear Operations Inc. (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 192 (2006)). The issue raised by NEC Contention 4 is whether Entergys plan to monitor and manage the aging of plant piping due to flow-accelerated corrosion at Vermont Yankee is inadequate because it relies on CHECWORKS, an empirical code, used to determine the scope and frequency of inspection of susceptible components, a code which must be continuously updated with plant-specific data, and a code that has not been benchmarked with data reflecting parameter changes associated with Vermont Yankees extended power uprate (EPU). See LBP-06-20, 64 NRC at 192-194.

First, the Staff notes that statements regarding whether the CHECWORKS code has been qualified and/or produces accurate results with sufficient data should be stricken. See Motion at 10. NEC did not previously challenge the qualification of CHECWORKS under NRC regulations and guidelines. Now, for the first time, Dr. Hopenfeld challenges the qualification of CHECWORKS in his rebuttal testimony. See Exhibit NEC-JH_63 at A39, A41, and A48. In addition, the issue of whether the CHECWORKS code has been qualified is outside the scope of NEC Contention 4. The contention, as admitted, focuses on the whether CHECWORKS is properly benchmarked, not on whether it has been qualified. See LBP-06-20, 64 NRC at 192-94; see also Motion at 11-13 (citing NEC statements focusing on the issue of benchmarking in NECs Petition for Leave to Intervene, Request for Hearing, and Contentions (May 26, 2006)

(Petition), Declaration of Dr. Joram Hopenfeld, Exhibit 7 to Petition (First Hopenfeld Declaration) (May 26, 2006), and Statement of Disputed Material Facts and Responses to

Entergys Statement of Material acts Regarding NEC Contention 4 on Which no Genuine Dispute Exists (Statement of Disputed Facts) (July 16, 2007)).

Similarly, Dr. Hopenfelds rebuttal testimony, for the first time, raises claims regarding the ability of CHECWORKS to provide accurate results, even with sufficient data. Motion at 15 (citing NEC-JH_63 at A43; also citing A40, A47). However, the question of whether CHECWORKS can provide accurate results, even with sufficient data, is also outside the scope of the admitted contention. The contention, as admitted, states that it would take 10-15 years to benchmark CHECWORKS. It does not raise the issue of inaccurate results even with sufficient data. Id. at 11 (citing Petition at 19). In fact, as Entergy notes, Dr. Hopenfeld himself has previously stated that CHECWORKS can be used as a predictive tool so long as there is sufficient data. Id. at 12 (citing First Hopenfeld Declaration at ¶24). Thus, these statements warrant exclusion.

Second, Entergy correctly asserts that statements regarding the applicability and appropriateness of NSAC-202L should be excluded because this also is outside the scope of NEC Contention 4. See Motion at 15. NEC has agreed that the EPRI guidance (NSAC-202L) applies to Vermont Yankees FAC program. Motion at 15 (citing Statement of Disputed Material Facts at 1). Thus, it is inappropriate for NEC to now challenge the applicability of this guidance document. See NEC-JH_63 at 9-11; NEC-JH_63 at A38. Furthermore, this is the first time that this issue has been raised, and as the Board stated in the November Order, it is improper to raise new claims in the rebuttal testimony. November Order at ¶10D. Thus, the statement should be excluded.

Third, Entergy accurately notes that statements made by NEC challenging the definition of FAC warrant exclusion. See Motion at 20. The scope of the admitted contention does not include an issue regarding the definition of FAC used in the Application and guidance. Motion at 17 (citing LBP-06-20, 64 NRC at 192-196; Aug. 10, 2007 Order). In addition, statements

challenging the definition of FAC warrant exclusion because this issue was not raised by NEC prior to the filing of the rebuttal statement of position and rebuttal testimony. Motion at 18-19.

NEC now claims that the definition of FAC includes erosion-corrosion, impingement and cavitation Motion at 19-20 (citing NEC Rebuttal Statement of Position at 23-24; NEC_JH_63 at A45; NEC-RH_04 at A6; NEC-RH_05 at 1 (first and second bullets), 6-7. However, NUREG-CR-6396 clearly states that FAC is not erosion-corrosion, and therefore does not include mechanical factors such as the impact of water droplets, cavitation effects, or entrained particles. See Motion at 18 (citing NUREG-CR-6396 at 5.24-5.25). Furthermore, the EPRI guidance clearly states that it is incorrect to call FAC erosion-corrosion. See Motion at 17 (citing Entergy Exhibit E4-33). Finally, as Entergy states, there is no indication in the Boards ruling that challenges to the definition of FAC are within the scope of NEC Contention 4. See Motion at 17 (citing LBP-06-20, 64 NRC at 192-196). Thus, statements regarding this issue warrant exclusion because they were improperly raised and are outside the scope of NEC Contention 4.

Fourth, NECs statements identifying the scope of FAC as susceptible reactor components, design basis accidents, and core damage frequency as opposed to carbon steel piping systems including feed water heater and moisture separator re-heater (MSR) shells susceptible to FAC warrant exclusion. See Motion at 21. Contention 4 is limited to plant piping subject to management review. See LBP-06-20, 64 NRC at 192-194. Thus, when Dr.

Hopenfeld states that his FAC concerns include susceptible reactor components, design basis accidents, and core damage frequency, he is going outside the scope of the admitted contention. See Motion at 21-22 (citing NEC-JH_63 at A38, A53, A44, and A53). Statements outside the scope of an admitted contention warrant exclusion. See Seabrook, ALAB-899, 28 NRC at 97.

D. Exclusion of Mr. Wittes Testimony Entergy correctly asserts that the direct testimony (Exhibit NEC-UW_01), expert report (Exhibit NEC-UW_03), and exhibits (Exhibits NEC-UW_04 to NEC-UW_22) provided by Ulrich Witte in support of NEC Contention 4 should be excluded because Mr. Witte is not qualified to provide an expert opinion on FAC matters and because his testimony is not adequately supported and explained. See Motion at 22-23. Mr. Wittes curriculum vitae does not demonstrate that Mr. Witte is qualified by knowledge, training, education, or experience with programs at nuclear power plants to manage FAC. In addition, his testimony discusses the adequacy of Vermont Yankees implementation of CHECWORKS without alleging or demonstrating familiarity with CHECWORKS. See id. Thus Mr. Wittes testimony, report, and exhibits should be excluded. The Staff made a similar request in its motion in limine, asking that the Board exclude or not consider Mr. Wittes initial testimony and report because the factual basis for his opinions are not adequately stated or explained. See NRC Staffs Motion in Limine to Strike Testimony and Exhibits Filed by New England Coalition, Inc. (June 12, 2008) at 5-6 (describing instances where Mr. Witte fails to provide factual support for his assertions and where the exhibit referenced by Mr. Witte does not support the assertion); Motion at 23 (citing Savannah River, LBP-05-05, 61 NRC at 81). Thus, these Mr. Wittes testimony and exhibits warrant exclusion.

CONCLUSION For the foregoing reasons, Entergys Motion in Limine should be granted.

Respectfully submitted,

/RA/

Lloyd B. Subin Counsel for NRC Staff Dated at Rockville, Maryland this 19th day of June, 2008

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

)

ENTERGY NUCLEAR VERMONT YANKEE, ) Docket No. 50-271-LR LLC, and ENTERGY NUCLEAR )

OPERATIONS, INC. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFFS ANSWER IN SUPPORT OF ENTERGYS MOTION IN LIMINE in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 19th day of June, 2008.

Alex S. Karlin, Chair Office of the Secretary Administrative Judge Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: hearingdocket@nrc.gov William H. Reed* Marcia Carpentier, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 1819 Edgewood Lane U.S. Nuclear Regulatory Commission Charlottesville, VA 22902 Washington, DC 20555-0001 E-mail: whrcville@embarqmail.com E-mail: mxc7@nrc.gov Richard E. Wardwell Lauren Bregman, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555-0001 Washington, D.C. 20555-0001 E-mail: rew@nrc.gov E-mail: lauren.bregman@nrc.gov Office of Commission Appellate Peter C.L. Roth, Esq*

Adjudication Office of the Attorney General Mail Stop: O-16G4 33 Capitol Street U.S. Nuclear Regulatory Commission Concord, NH 3301 Washington, DC 20555-0001 E-mail: peter.roth@doj.nh.gov E-mail: OCAAmail@nrc.gov

Ronald A. Shems, Esq.* Anthony Z. Roisman, Esq.*

Karen Tyler, Esq. National Legal Scholars Law Firm Shems Dunkiel Kassel & Saunders, PLLC 84 East Thetford Rd.

91 College Street Lyme, NH 03768 Burlington, VT 05401 E-mail: aroisman@nationallegalscholars.com E-mail: rshems@sdkslaw.com Ktyler@sdkslaw.com David R. Lewis, Esq.* Sarah Hofmann, Esq.*

Matias F. Travieso-Diaz, Esq Director of Public Advocacy Elina Teplinsky, Esq Department of Public Service Blake J. Nelson, Esq 112 State Street - Drawer 20 Pillsbury Winthrop Shaw Pittman LLP Montpelier, VT 05620-2601 2300 N Street, NW E-mail: sarah.hofmann@state.vt.us Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com elina.teplinsky@pillsburylaw.com blake.nelson@pillsburylaw.com Diane Curran* Matthew Brock*

Harmon, Curran, Spielberg, & Eisenberg, LLP Assistant Attorney General, Chief 1726 M Street N.W., Suite 600 Environmental Protection Division Washington, D.C. 20036 Office of the Attorney General E-mail: dcurran@harmoncurran.com One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us

/RA/

Lloyd B. Subin Counsel for NRC Staff