ML081760222
| ML081760222 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 06/23/2008 |
| From: | James Adler NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR, RAS J-154 | |
| Download: ML081760222 (7) | |
Text
June 23, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Entergy Nuclear Generation Co. and )
Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR
)
) ASLBP No. 06-848-02-LR (Pilgrim Nuclear Power Station) )
NRC STAFFS RESPONSE TO ENTERGYS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION On May 12, 2008, the Atomic Safety and Licensing Board (Board) issued an order setting forth the schedule for filing proposed findings of fact and conclusions of law regarding Pilgrim Watch Contention 1 as well as responses to the proposed findings of fact and conclusions of law filed by other parties in this license renewal matter.1 Pursuant to that order, the NRC Staff (Staff) herein provides its response to the proposed findings of fact and conclusions of law filed by Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Entergy).2 1
Order (Setting Deadlines for Provisional Proposed Findings and Conclusions on Contention 1, and for Pleadings Related to Pilgrim Watchs Recent Motion Regarding CUFs) (May 12, 2008)
(unpublished) (May 12 Order).
2 Pilgrim Watch Post-Hearing Findings of Fact, Conclusions of Law (June 9, 2008) (PW Proposed Findings).
DISCUSSION The NRC Staff (Staff) generally considers the proposed findings of fact and conclusions of law3 submitted by Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Entergy) regarding Pilgrim Watchs Contention 1 to be consistent with, and supported by, the evidentiary record. Nonetheless, the Staff believes that a few aspects of Entergys Proposed Findings do merit a response.
I. Scope of License Renewal Reviews First, part of Entergys discussion of the scope of license renewal reviews is overly broad. As the Staff explained in its proposed findings, 10 C.F.R. Part 54 addresses systems, structures, and components in the initial scoping phase under § 54.4, but then requires aging management review of only structures and components under § 54.21.4 Entergys approach to license renewal scoping seems to have glossed over this distinction, which may have helped create some earlier confusion in this case about whether the condensate storage systems buried pipes were legitimately within the scope of license renewal.5 In Entergys Proposed Findings, Entergy repeats this error by stating, incorrectly, that 10 C.F.R. § 54.21(a)(1) defines the systems, structures, and components that are subject to aging management review and that 10 C.F.R. § 54.21(a)(3) requires that the applicant demonstrate that, for each system, structure, and component identified under § 54.21(a)(1), the effects of aging will be adequately 3
Entergys Proposed Findings of Fact and Conclusions of Law on Pilgrim Watch Contention 1 (June 9, 2008) (Entergys Proposed Findings).
4 See NRC Staff Proposed Findings of Fact and Conclusions of Law, and Order in the Form of an Initial Decision (June 9, 2008) (Staff Proposed Findings) at ¶ 23.
5 See Staff Proposed Findings at 17 n.51.
managed.6 Under the terms of § 54.21(a)(1) and (a)(3), each of these references to systems, structures, and components should instead read structures and components.
The Staff further notes that this distinction in Part 54 between systems, structures, and components and structures and components was deliberate, and it was specifically addressed in the Statement of Considerations accompanying the 1995 revisions to Part 54.7 In that Statement of Considerations, the Commission explained that aging management review
. . . should be a component and structure level review rather than a more general system level review, in contrast to time-limited aging analyses (TLAA) conducted under § 54.21(c), which apply to systems as well as to structures and components.8 Accordingly, the Board should adhere to the text of § 54.21 rather than to Entergys incorrect paraphrasing of that text.
II. Proposed Findings With Respect to Out-of-Scope Components A second point, also related to the proper scope of license renewal proceedings, involves Entergys proposed findings regarding the condensate storage (CS) system. Entergy, like the Staff, recognizes that the CS systems buried piping does not perform any intended safety functions within the scope of license renewal.9 However, Entergy goes on to propose that the Board find that Entergys aging management programs for buried piping and tanks provide reasonable assurance with respect to the CS system. The Staff recognizes that Entergy may simply be proposing this finding out of an abundance of caution. Yet, because the Staff, in light of the evidence presented in this case, sees no possible basis under the 6
Entergys Proposed Findings at 8.
7 Final Rule, Nuclear Power Plant License Renewal: Revisions, 60 Fed. Reg. 22,461 (May 8, 1995).
8 Id. at 22,462 n.1.
9 See Entergy Proposed Findings at ¶14; Staff Proposed Findings at ¶ 31.
Commissions license renewal regulations for including the CS systems buried piping within the scope of the admitted contention,10 the Staff does not consider it appropriate for the Board, in the context of this license renewal adjudication, to make these reasonable assurance findings regarding the CS system.
III. Reasonable Assurance and Preponderance of the Evidence Lastly, Entergy provides a potentially misleading definition of the burden it must meet to obtain a renewed license. The regulatory standard that Entergy must satisfy to obtain a renewed license is one of reasonable assurance. The evidentiary burden that Entergy must satisfy in this adjudication is that of preponderance of the evidence. Whether intentionally or not, Entergy appears to equate these two terms, stating that [r]easonable assurance requires here that Entergy must prove its case by a preponderance of the evidence. These two standards, however, are not one and the same; rather, they represent, respectively, a substantive regulatory burden and an evidentiary burden. In tandem, they signify the following:
in this license renewal adjudicatory proceeding, Entergy must convince the Board, by a preponderance of the evidence, that the relevant aging management programs satisfy the NRCs reasonable assurance standard. Thus, the two standards serve distinct functions.
The Staff further notes that the cases cited by Entergy in support of their characterization of their evidentiary burden do not actually support interpreting the evidentiary burden in the manner that Entergy explains it; in fact, the Oyster Creek decision that Entergy references states that, [i]n this proceeding, [the applicant] must demonstrate that it satisfied the reasonable assurance standard by a preponderance of the evidence.11 Again, this shows that 10 See Staff Proposed Findings at ¶¶ 30-34.
11 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-07-17, 66 NRC (continued. . .)
the reasonable assurance standard is a substantive regulatory standard that is distinct from the preponderance of the evidence evidentiary standard.
Accordingly, the Staff submits that the Board should not adopt Entergys mistaken conflation of the Commissions reasonable assurance standard with the preponderance of the evidence standard.
CONCLUSION The Staff considers Entergys proposed findings of fact and conclusions of law to be consistent with the evidentiary record, except as discussed above.
Respectfully submitted,
/RA/
James E. Adler Counsel for NRC Staff Dated at Rockville, Maryland this 23rd day of June, 2008
(. . .continued) 327, 340 (2007) (citing Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 421 (1980)). In the Advanced Medical Systems footnote to which Entergy also cites, the Commission indicates that the preponderance of the evidence standard is applied following a hearing in NRC administrative proceedings. See Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285, 302 n.22 (1994). This case is therefore also consistent with the notion that the preponderance standard is an evidentiary burden in an adjudicatory hearing context, and so is not equivalent to reasonable assurance, which is the ultimate regulatory standard that applicants for renewed licenses must meet in order to obtain those licenses.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Entergy Nuclear Generation Co. and )
Entergy Nuclear Operations, Inc. ) Docket No. 50-293-LR
)
(Pilgrim Nuclear Power Station) ) ASLBP No. 06-848-02-LR
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS RESPONSE TO ENTERGYS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commissions internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 23rd day of June, 2008.
Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY) Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov
Sheila Slocum Hollis* Terence A. Burke, Esq.*
Duane Morris LLP Entergy Nuclear 1667 K Street, NW, Suite 700 1340 Echelon Parkway Washington, DC 20006 Mail Stop: M-ECH-62 E-mail: sshollis@duanemorris.com Jackson, MS 39213 E-mail: tburke@entergy.com Mary Lampert* David R. Lewis, Esq*.
148 Washington Street Paul A. Gaukler, Esq.
Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: mary.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburylaw.com Chief Kevin M. Nord* Town Manager*
Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.
668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: msylvia@townhall.plymouth.ma.us E-mail: nord@town.duxbury.ma.us Richard R. MacDonald* Matthew Brock*
Town Manager Assistant Attorney General, Chief 878 Tremont Street Environmental Protection Division Duxbury, MA 02332 Office of the Attorney General E-mail: macdonald@town.duxbury.ma.us One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us Diane Curran*
Harmon, Curran, Spielberg, & Eisenberg, LLP 1726 M Street N.W., Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com
/RA/
James E. Adler Counsel for the NRC Staff