Text

the State of New York'S Response to the Board'S Question Concerning Hearing Procedures and Motion That the Board Apply Subpart G Discovery Procedures to Certain Admitted Contentions
	ML082400524
Person / Time
Site:	Indian Point
Issue date:	08/21/2008
From:	Matthews J, Sipos J; State of NY, Dept of Environmental Conservation, State of NY, Office of the Attorney General
To:	; Atomic Safety and Licensing Board Panel
	SECY RAS
References
	50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS-E-145
	Download: ML082400524 (63)
	v • d • e

DOCKETED USNRC UNITED STATES August 22, 2008 (8:30am)

NUCLEAR REGULATORY COMMISSION .OFFICE OF SECRETARY RULEMAKINGS AND ATOMIC SAFETY LICENSING BOARD ADJUDICATIONS STAFF 7-----------------------------x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. August 21, 2008

x

,THE STATE OF NEW YORK'S RESPONSE TO THE BOARD'S QUESTION CONCERNING HEARING PROCEDURES AND MOTION THAT THE BOARD APPLY SUBPART "G" DISCOVERY PROCEDURES TO CERTAIN ADMITTED CONTENTIONS Pursuant to the Atomic Safety and Licensing Board's July 31, 2008 Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing) ASLB 08-13 ("Board Order"),

the State of New York submits this motion with respect to the issue of the choice of hearing procedures to be used in this proceeding. The Board, in its Order, instructed "New York State, Riverkeeper and Clearwater [to], no later than, August 21, 2008, indicate, for each admitted contention, whether each Party wishes to proceed pursuant to Subpart G or Subpart L." The Board also required partiesto "indicate why the contention proponent believes a particular Subpart is more appropriate." Board Order, at 227.

At the outset, the State of New York wishes to emphasize the importance that the determination of applicable hearing procedure will have for the people of the State of New York.

The issues surrounding the relicensing of the Indian Point power plants are critical to the future 2A/--n S~7f3

of the Hudson Valley and to the millions who live in the region, including the 20 million people who live within a 50-mile radius of the plants. Indeed, no other operating power reactor site in the Nation has so many people living within 50 miles. The admitted contentions must be addressed in an open, thorough, and comprehensive public process, such as that authorized by Subpart G, to ensure the State's access to a full inquiry into the factual bases for Entergy's and Staffs positions, both through discovery and, the State anticipates, at a hearing.

Two sets of procedures can apply: the informal procedures set forth in 10 C.F.R. Part 2, Subpart L and the formal procedures set forth in 10 C.F.R. Part 2, Subpart G. While the State of New York recognizes that three of its admitted contentions could proceed through the application of the Subpart L hearing procedures, the State submits that complexity and breadth of issues involved in the remaining eight admitted contentions warrant application of Subpart G at least for discovery procedures (although as discussed below, it is probably too early in the process to definitely decide which Subpart G procedures should be used and for which aspect of the contentions). Given the breadth of documents and information required to fully evaluate eight of the State's contentions as well as evidence that Entergy and/or Staff have not been fully forthcoming in disclosing documents relevant to these contentions in this proceeding or other proceedings application of Subpart G or at least some of its discovery procedures, is required. As to the evidentiary hearing itself, the State of New York respectfully submits that it is premature at this time - before witnesses have been designated - to request authorization to conduct cross-examination. Nevertheless, the State reserves the right to return to the Board to request such authorization.

The following Table identifies the Contention and the Subpart that the State submits should be used for resolution of that Contention:

State of NIew York Selection of HearingProcedures - Subpart G or L NYS Admitted Contention Subpart G or Subpart L Procedures

5 Inadequate AMP for. Corrosion or Leaks in Buried Systems, Structures, & Components G

6 - No Specific AMP for Inaccessible Medium-voltage Cables and G Wiring

7 - No Specific AMP for Inaccessible Low-voltage Cables and G Wiring

8 - No AMP for Electrical Transformers G

9 - ER Fails to Evaluate Energy C6nservation as an Alternative L

12 - SAMA Does Not Accurately Reflect Decontamination & G.

Cleanup Costs

16 - SAMA Air Dispersion Model Does Not Accurately Estimate Costs of Human Exposure G

17 - ER Fails to Analyze Adverse Impact of Off-site Land Use L

24 - Inadequate AMP for Containment Structures Based on Updated Water/Cement ratio L

25.- Inadequate AMP for Embrittlement of RPV and Associated G Internals

26 - Inadequate AMP for Metal Fatigue G

1. In This Proceeding, NRC Regulations Afford the State of New York the Right to Utilize Formal Subpart G's Discovery Tools for Certain of the Admitted Contentions.

A. Basic Statutory and Regulatory Scheme Three statutory provisions address the choice of hearing procedures: 42 U.S.C. §§ 2021 (1) and 2231 and 5 U.S.C. § 556. Four NRC regulations also address the choice of hearing procedures: 10 C.F.R. §§ 2.309(g), 2.3 10(d), 2.336(f) and, to the extent Subpart L applies to this 4

proceeding, § 2.1204(b)(3). The underlying rationale behind all of these provisions is that the procedures to be used in an NRC licensing hearing that is governed by the provisions of 42 U.S.C. § 2239(a), which require a hearing in "any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit... upon the request of any person whose interest may be affected by the proceeding. .. ," hall be those procedures that have been shown to be necessary, for "resolution of material issues of fact which may be best determined through the use of the identified procedures." 10 C.FR. § 2.309(g). See also 10 C.F.R. § 2.i204(b)(3) (cross-examination allowedunder Subpart L where it is shown that it is "necessary to ensure the development of an adequate record for decision").

According to the provisions of 10 C.F.R. § 2.336(f) the mandatory disclosure requirements of § 2.336 are "the sole discovery permitted for NRC proceedings [under 10 C.F.R.

Part 2] unless there is further provision for discovery under the specific subpart under which the hearing will be conducted." The choice of hearing procedure is governed by 10 C.F.R.

§ 2.309(g), entitled "Selection of hearing procedures." The provisions of 10 C.F.R. § 2.31 0(a) provide that a relicensing proceeding "may be conducted under the procedures of subpart L" (emphasis added) but do not mandate such use and in § 2.310(d) set forth one way in which a Subpart G proceeding might be justified.

As the Board's Order recognizes, the application of Subpart G or Subpart L is done on a contention-by-contention basis. See Board Order at 227 (July 31, 2008). In addition, application of the individual procedures in Subpart G - interrogatories, requests for document production, requests for admissions, depositions and cross-examination - are separately justified for each contention. See 10 C.F.R. § 2.309(g) ("the request/petition must demonstrate,. by reference to the contention and the bases provided and the specific proceduresin subpart G of this part, that resolution of the contention necessitates resolution of material issues of fact which may be best determined through the use of the identifiedprocedures"(emphasis added)).

Although Subpart G includes anumber of adjudicatory procedures and provides the sole basis for use of such procedures,' application of Subpart G to a contention maybe justified on the basis of the likely need for only one of those procedures. Under § 2 .309(g), use of Subpart G is required whenever it can be shown that, as to any of the Subpart G procedures, "resolution of the contention necessitates resolution of material, issues of fact which may be best determined through the use of the identified procedures." That does not mean that all Subpart G procedures are available with regard to the contention. Subparts C and G provide wide discretion to the

'ASLB to determine'whether and to what extent discovery tools identified in Subpart G may be used by any party. See 10 C.F.R, §§ 2.319(f),(g),(k),(q), and (r), and 2.705(a), and (b)(2).

Thus, New York State submits that the regulations create a two-step process. Step one, set forth in § 2.309(g), is to demonstrate that it is reasonable to anticipate that the use of one or more Subpart G procedures will be required for certain contentions. Once the Board accepts that analysis, as the State of New York submits that it should as to eight of the State's admitted contentions, it will still be necessary for the party seeking to use a particular Subpart G procedure to justify its use with regard to a particular contention. This would mean, of course, that even if 10 C.F.R. § 2.336(e)(1) specifically provides that among the sanctions available against a party for its "continuing unexcused failure to make the disclosures required" is the "use of the discovery provisions in subpart G." However, as noted infra, there are many instances in which full compliance with the requirements of § 2.336 may still leave substantial gaps in the available information needed to establish material facts to develop an adequate record for certain New York State contentions in this proceeding or where it will not be possible to demonstrate that the

§ 2.336 disclosures are not complete.

I New York State were to satisfy the Board that Subpart G was warranted for a particular contention, all parties, including the Staff and Entergy, as well as New York State, would be required to obtain permission from the Board to use Subpart G procedures each time a procedure was proposed to be used as to a particular contention. In this way the Board would control the use of each procedure and assure that its use (1) would not unduly delay the hearing, (2) would involve the use of a procedure that was best to obtain the necessary information, and (3) would serve the goal of developing an adequate record. As discussed, infra, one of the principle goals of discovery, if conducted properly, is to reduce hearing time and make the entire process more efficient.

B. Criteria For Selecting Hearing Subpart The regulations' plain language permits formal subpart G discovery in this case, for certain contentions, because, as discussed infra, the use of some of the discovery procedures available under Subpart G will be the best way. to obtain the information needed to resolve material'issues of fact related to certain State of New York Contentions. The standard to be used in deciding whether Subpart G should be used in a particular proceeding is set forth in § 2.309(g) and unequivocally identifies a functional test, drawn from the Administrative Procedure Act (see discussion infra of 5 U.S.C. § 556). The touchstone for deciding on the use of Subpart G is Whether "resolution of the contention necessitates resolution of material issues of fact which may be best determined through the use of the identified. procedures." Under § 2.309(g) a petitioner "must demonstrate by reference to the contention and the bases provided and the specific procedures" that this test is met in order to proceed under Subpart G.

An alternative way.of obtaining Subpart G status is set forth in § 2.310(d).which applies an different, and perhaps more lenient, test than § 2.309(g), and includes additional alternative tests which are uniquely relevant only to the use of cross-examination but of no relevance to whether requests for admissions, interrogatories, depositions or document production requests

-should be allowed. Thus, § 2.310(d) is not really relevant here since, as seen infra, the State of New York meets the test in § 2.309(g) as to the Contentions of concern and thus need not address the standard in § 2.310(d). However, because the ASLB in In the Matter of Entergy Nuclear Vermont Yankee L.L. C. and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), 60 N.R.C. 686, 694-95, Docket No. 50-271-OLA, LBP-04-31 (December 16, 2004) ruled, not only that (1) the only test for Subpart G use is that contained in § 2.3 10(d), but also (2) that the section requires a showing that the credibility of witness or the witnesses intent or motive must be shown to be at issue, it is necessary to examine § 2.3 10(d) to see why, the State respectfully submits, the Vermont Yankee Board was in error.2 As noted supra, § 2.310(a) does not mandate the use of Subpart L in relicensing proceedings but merely says that this Board may use that Subpart unless it finds that standard in § 2.3 10(d) has been metý Another ASLB, addressing the issue of hearing procedure choice in a license renewal proceeding, emphasized the discretion afforded the hearing board in deciding 2 The Vermont Yankee Board concluded that § 2.309(g) "simply specifies how to submit a request for a particular hearing procedure, but it does not expand or modify the criteria that must be met under 10 C.F.R. § 2.310(d)." With due respect to that Board, no fair reading of the language of § 2.309(g) supports the proposition that it is simply a procedural regulation describing "how" to submit a request for Subpart G proceedings. A more logical interpretation is that because the focus on much of the controversy about the proposed new regulations was on the use of cross-examination, the Commission was focused on cross-examination when it wrote the test in § 2.310(d) and did not consider the instances in which other Subpart G procedures might be needed even though the credibility of a witness or the intent of a party were not at issue. See 69 Fed. Reg. 2182, 2205 and 2222 (where the Commission's discussion of the issue is focused on cross-examination and not discovery procedures).

whether to use the procedures of Subpart L. In the Matter of Entergy Nuclear Vermont Yankee L.L. C. and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), 64 N.R.C. 131, 204, Docket No. 50-271-LR, LBP-06-20 (Sept. 22, 2006) ("If a specific hearing procedure is not mandated, the plain language of 10 C.F.R. § 2.3 10(a) uses the term 'may' in describing our options in selecting the appropriate hearing procedures. The use of the permissive

'may' instead of the mandatory 'shall' indicates that even if a petitioner fails to demonstrate that Subpart G procedures are required, the.Board 'may' still find that the use of Subpart G procedures is more'appropriate than the use of Subpart L procedures for a given contention"). If, a party meets the provisions of § 2.309(g) for use of Subpart G procedures, then the Board would have no basis to exercisethe discretion granted to it under § 2.3 10(a). In addition, if § 2.310(d) were properly applied in this case, the use of Subpart G procedures would be even more obvious.

Under § 2.3 10(d) the test is whether the ASLB finds that "resolution of the contention or contested matter [1] necessitates resolution of issues of material fact relating to the occurrence of a past activity, [2] where the credibility of an eyewitness may reasonably be expected to be at issue, and/or [3] issues of motive or intent of the party or eyewitness material to the resolution of the contested matter" (brackets added). The plain reading of this test is that a Subpart G proceeding is to be granted if any one of the three enumerated standards is met.

As written, by using commas to separate each of the three phrases as well as the conjunctive "and/or" phrase between the second and third phrase, the § 2.3 10(d) establishes three separate standards that can be read either disjunctively or conjunctively. As a general rule of statutory construction, the use of a conjunctive, such as "or" before the last term in a series, indicates that each term in the series is intended to be read in the disjunctive and given separate

meaning. See United States v. Urban, 140 F.3d 229, 231 (3d Cir.1998). In addition, the use of the commas, along with the use of "and/or", signals that each phrase is to be read separately.

Basic grammar principles do not allow for any other reading of the text. Strunk and White, The Elements of Style, 3d edition, at p. 2 ("In a series of three or more terms with a single conjunction, use a comma after each term except the last.. .This comma is often referred to as the "serial" comma."); The Chicago Manual of Style.Online, 15't edition, at § 6.19 ("Items in a series are normally separated by commas .... When a conjunction joins the last two elements in a series, a comma-known as the serial or series comma or the Oxford scomma-should appear before the conjunction. Chicago strongly recommends this Widely practiced usage, blessed by Fowler and other authorities..., since it prevents ambiguity."). Thus, on-its face, the plain meaning of § 2.310(d) is that three separate tests are established and either all three tests have to be met or any one of them can be met.3 In bypassing the plain text of the regulation, the Vermont Yankee uprate Board also

/

eschewed a second rule of construction: when a statute's language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms. See Hartford UnderwritersIns. Co. v. Union PlantersBank, N.A., 120 S.Ct. 1942 (2000); Hughes Aircraft Co. v. Jacobson, 119 S.Ct. 755,(1999) (in any case of statutory construction, a court's analysis begins with the language of the statute, and where the statutory language-provides a clear answer, it ends there as well). Instead, following the 3 As written § 2.310(d) is not a model of clarity as to the criteria for tests 2 and 3, particularly test 3 which appears to have dropped a verb between "eyewitness" and "material."

All that merely underscores why if, as here, the standard for a Subpart G hearing set forth in § 2.309(g).has been met, the Board should use its discretion to disregard the § 2.310(d) option.

arguments of Entergy and NRC Staff, the Vermont Yankee uprate Board reached its conclusion "based primarily on the parallel structure of the regulation." 60 N.R.C. at 694. Although, bereft of additional textual analysis, it would appear that the holding required extensive - but unstated -

editing of the regulatory text. Indeed, to arrive at that conclusion, one would have to first eliminate the two commas between the three clause, next insert the word "and" between "activity" and "where", and finally limit the "and/or" conjunction only to the second and third clauses. Since the Commission has emphasized on many occasions that the provisions of Part 2 are "strict by design" and are to be strictly construed, there is no authority to tinker with the words of the regulations. In addition, the Atomic Energy Act and the Administrative Procedure Act 4 establish precise procedures for the amendment of NRC regulations, 'and Energy, NRC Staff, administrative tribunals, and/or the Commissioners lack the power to use a blue pencil to add or remove text from the regulations without complying with those procedures. If Energy or NRC Staff believe that §§ 2.309(g) and 2.310(d) as written should not be applied to this case, they can use the provisions of § 2.335 to make their argument for a waiver of the regulations.

Absent such a showing, this Board should interpret the regulations in a manner that follows the regulation as written, makes sense of all the Words, and comports with the Commission's goal in adopting the regulations.

The Statement of Consideration accompanying the 2004 Part 2 amendments contains statements that support State of New York's view that § 2.309(g) provides the standard to be used for selecting Subpart G and that § 2.310(d) has a more limited role. The ALBpanel in Oyster Creek referred to this regulatory history when it addressed the choice of procedures issue.

4See 42 U.S.C. § 2239, 5 U.S.C. § 553.

In the Matter ofAmergen Energy Company, LLC (Oyster Creek Nuclear GeneratingStation)

Docket No. 50-0219 LR, Memorandum and Order (Denying NIRS's Motion to Apply Subpart G Procedures) June 5, 2006 slip op. at 2-3. In that decision, the Oyster Creek ALB panel recognized that the standard set forth in § 2.3 10(d) was primarily intended by the Commission to be tied to a claim for the right to cross-examine. Id. at 3. The ALB quoted from the Statement of Consideration which accompanied the 2004 Part 2 amendments, where, in adopting the current test in § 2.310(d), the Commission offered the following extended discussion of its reasoning in adopting the language in that section, showing clearly, that it was focused on the portion of SubpartG that relates to cross-examination when it developed the standards in

§ 2.3 10(d), not on discovery:

Rather, the Commission agrees with the thrust of the commenters opposing this criterion that; inasmuch as neither the AEA nor the APA require the use of the procedures provided in Subpart G, they should be utilized only where the application of such procedures are necessary to reach a correct, fair and expeditious resolution of such matters. In the Commission's view, the centralfeature of a Subpart G proceeding is an oral hearingwhere the decisionmaker has an opportunity to directly observe the demeanor of witnesses in response to appropriate'cross-examinationwhich challenges their recollection orperception offactual occurrences. This also appears to be the position of several citizen group commenters, judging by the reasons given for their opposition to greater use of Subpart L procedures. Hence, the Commissionfocused on criteria to identify those contested mattersfor which an oral hearingwith right of cross-examinationwould appearto be necessaryfor afair and expeditious resolution of the contested matters. Common sense, as well as case law, lead the Cormmission to conclude that oral hearings with right of cross-examination are best used to resolve issues where "motive, intent, or credibility are at issue, or if there is a dispute over the occurrence of a, past event." See Union Pac. Fuels v. FERC, 129 F.3d 157, 164 (DC Cir. 1997), citing La.

Ass'n ofIndep. Producers& Royalty Owners v. FERC, 958 F.2d 1101, 1113 (DC Cir.1992).

69 Fed. Reg. 2182, 2205 (footnote omitted, emphasis added).

Another reason why the test under § 2.310(d) should not be applied to a request for Subpart G discovery procedures is that the test, as interpreted by the Vermont Yankee and Oyster Creek ASLBs, is focused on witness credibility and intent, thus creating substantial opportunity for delay in the proceeding. For example, at this early stage in the proceeding where the provisions of § 2.309(g) are intended to be applied, it is not possible to even know the names of the witnesses, much less their proposed testimony. Thus, it would be impossible for the Board or the parties to intelligently address whether "credibility of an eyewitness may reasonably be expected to be at issue, and/or issues of motive or intent of the party or eyewitness material to the resolution of the contested matter [are involved]," until after the mandatory disclosures required by § 2.336 and the final witness lists were submitted'. The ALB in Vermont Yankee recognized this dilemma and chose to postpone a final decision on whether to use the Subpart G procedures until after the final witness list was submitted. See In the Matter of Energy Nuclear Vermont Yankee L.L. C. and-Energy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station) 2005 NRC LEXIS 23, Docket No. 50-271 LR, Initial Scheduling Order, February 1, 2005 slip op.

at,3 (ML050330176)..

The problem with the Vermont Yankee approach, which was necessitated by the earlier decision of that ALB interpreting § 2.310(d) to require a showing on credibility and/or intent as a prerequisite to a Subpart G hearing, is that if the required showing were made at the time of the filing of the final witness list, the full panoply of discovery procedures would be available for the first time and their use at that time would almost certainly cause delay in the hearing procedure, thus defeating the most significant justification offered by the Commission for adopting the 2004 rule changes as they relate to discovery. See 69 Fed. Reg. at 2194 (" The Commission believes that the tiered approach to discovery set forth in the proposed rule represents a significant enhancement to the Commission's existing adjudicatory procedures, and has the potential to significantly reduce the delays andresources expended by all parties in discovery")..

Thus, reading the literal language of the relevant regulatory sections and applying the policy considerations that underlay the Commission's adoption of the 2004 amendments to Part 2, State of New York submits that if a determination is to be made at this time*on whether to use Subpart G or Subpart L, the relevant test is that specified in § 2.309(g). A decision to proceed under Subpart G is not'an endorsement of the use of any particular Subpart G procedure. To obtain the use of any Subpart G procedure, the party seeking its use must demonstrate that the particular instance "necessitates resolution of material issues of fact which may be best determined through the use of the identified procedures" (10 C.F.R. § 2.309(g)).

C. Formal Subpart G's Discovery Tools Also Promote Judicial Economy Using Subpart G procedures in the manner urged by State of New York, e.g., requiring that use of each of the discovery procedures in Subpart G must be justified by the party seeking its use and that the Board, using its broad discretion, may limit the use of a particular discovery tool by, for example, placing a limit on the number of interrogatories, requests for admissions or document production requests or by placing time limits on depositions, will allow discovery to be used as intended in the Federal Rules of Civil Procedure (FRCP), which is to shorten the hearing by discovering and clarifying facts and pinning down the position of parties.

When the Commission adopted the 2004 amendments to 10 C.F.R. Part 2, it specifically noted that it was drawing upon the Federal Rules of Civil Procedure. 69 Fed. Reg. 2128, 2194

("The mandatory disclosure provisions, which were generally modeled on Rule 26 of the Federal Rules of Civil Procedure, have been tailored to reflect the nature and requirements of NRC proceedings"). Significantly, when Congress implemented the 1993 Amendments to the FRCP it did not abolish the right to other discovery procedures such as interrogatories, depositions, requests for document production and admissions. Rather, it strengthened the power of Courts to control the use of those procedures while continuing the procedures, which, when they were adopted, were intended to improve the efficiency of the process. See e.g.:

Rule 36 serves two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be.

Fed. R. Civ. P. 36, 1970 Advisory Committee's Note.

Depositions can make the entire process more efficient by assuring that the information provided by the opposing party is offered by the persons who have the most knowledge, not merely the persons who the opposing party wants to offer:

The testimony of a Rule 30(b)(6) witness is binding on the entity and goes beyond the individual's personal knowledge. A corporation has an affirmative duty to produce a representative who can answer questions that are within the scope of the matters described in the notice. In Bracco DiagnosticsInc. v. Amersham Health Inc., C.A. No. 03-6025(SRC), 2005 U.S. Dist. LEXIS 26854, at *3 (D.N.J.2005) (citations omitted), the Court succinctly summarized the benefits of a Rule 30(b)(6) deposition:

A 30(b)(6) deposition more efficiently produces the most appropriate party for questioning, curbs the elusive behavior of corporate agents who, one after another, know nothing about facts clearly available within the organization and suggest someone else has the requested knowledge, and reduces the number of depositions for which an organization's counsel must prepare agents and employees.

Harrisv. New Jersey 2007 WL 2416429, 2 (D.N.J. 2007)(footnote omitted).

As one Court noted, in chiding the parties for failing to work cooperatively to allow depositions to proceed "any eventual trial of this case will undoubtedly be more efficient if the depositions at issue go forward." Landeen v. Phonebillit,Inc. 2007 WL 2902212, 2 (S.D. Ind.

2007).

In addition, Courts have recognized that mandatory disclosures similar to those provided under 10 C.F.R. § 2.336, are often insufficient to meet the legitimate goals of the opposing parties and that additional discovery will be required:

Plaintiff has requested more specific information in response to the request that each person listed in the Supplement to Attachment "A" to Defendants' Initial Disclosures (Motion to Compel, Exhibit, D) be identified and a summary of the discoverable information possessed by each provided. The defendants have provided the identification information for the persons listed, but the summary of the information possessed by, that person is often couched in generalizations such as, "... has information concerning certain matters alleged in the pleadings, including Tinley's business practices." The court finds this level of response to be inadequate.

The plaintiff is entitled to a more complete factual summary of the individual's alleged knowledge about the issues relevant to this case and the basis for such knowledge. The plaintiff is entitled to enough basic information to allow him to determine, for instance, why the individual is placed on the defendants' list of initial disclosure in the first instance. If the defendants more fully describe the information possessed by the person listed, the plaintiff can more readily cull his list of necessary potential interviews or depositions and therefore save time and expense in trial preparation. Given that the defendants chose to include the person in their~initial disclosures, the defendants are already, knowledgeable about, at least, the general nature of the prospective witness's potential testimonial knowledge.

Tinley v. Poly-Triplex Technologies, Inc., 2008 WL 732590, 2 (D.Colo. 2008). A request for a further specification of information following § 2.336 disclosures is not clearly contemplated by Subpart L or § 2.336 but it would be readily available under Subpart G.

The judicial recognition of the valuable assistance and improved efficiency associated with the proper use of pretrial discovery is also endorsed by administrative law judges also. In discussing formal hearings under the APA, the Manual for Administrative Law Judges notes that "if [the] exchange of evidence is preceded by an exchange of information, subsequent proceedings are easier and the duration of the hearing is reduced." Manual for Administrative Law Judges ("ALJ Manual"), at 56.

As the Court in CAN did, with much less expertise available to it (CAN, 391 F.3d at 353),

this Board can take judicial notice of the time wasted at evidentiary hearings while the ALB attempts to determine precisely what each witness is claiming, or what commitments have been made by the applicant. See Transcript, In the Matter of Energy Nuclear Vermont Yankee L.L. C.

and Energy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), Docket No.

50-271-OLA, LBP-04-31 (July.24, 2008), ML072100169, at 1498-1505, 1522-1659. Allowing carefully controlled discovery, at a time when limits on the time for discovery, have already been set to avoid delay for the start of the evidentiary hearing, will undoubtedly allow the hearings to be more focused and proceed more efficiently.

D. The Interplay of NRC Regulations and the Administrative Procedure Act The State of New York's view of the regulatory requirements is consistent with and dictated by certain controlling statutory provisions. Pursuant to the Atomic Energy Act the NRC is required to follow the mandates of the Administrative Procedure Act. 42 U.S.C. § 2231. The Administrative Procedure Act, 5 U.S.C. §§ 551 et. seq. provides the minimum obligations that an agency must meet when it provides an opportunity for a hearing, as the NRC does pursuant to the mandate of 42 U.S.C. § 2239(a), In CANv. NRC, 391 F.3d 338 (1st Cir. 2004) the Court upheld the NRC procedures for licensing hearings that are applicable to this proceeding insofar as the provisions related to discovery rights and cross-examination.

The ruling in CAN regarding the interplay between the APA and the AEA, plus the Commission's representation to the Court about the meaning of its own regulations, provides conclusive support for the proposition that the only proper interpretation of the Commission regulations is that § 2.309(g) sets the standard for when Subpart G is to be used. Even if § 2.3 10(d) is an alternative test for application of Subpart G rights, CAN providessupport for the view that under that regulation a Subpart G proceeding is authorized "where the presiding officer by order finds that resolution of the contention or contested matter necessitates resolution of issues of material fact relating to the occurrence of a past activity..,." In CAN the Commission argued that its procedure for allowing the use of cross-examination was wholly consistent with the mandate of the APA. It cited to the language in § 2.1204(b)(3) to support this proposition and the CAN court agreed that the cited language meets the APA standard. In reaching that conclusion the CAN court made the following ruling:

The APA does require that cross-examination be available when "required for a full and true disclosure of the facts." Id. If the new procedures are to comply in practice with the APA, cross-examination must be allowed in appropriate, instances.

Should the agency's administration of the new rules contradict its present representations or otherwise flout this principle, nothing in this opinion will inoculate the rules against future challenges.

CAN v. NRC, 391 F.3d at 354. Thus, the CAN decision supports the proposition that cross-examination rights, regardless of the Subpart of the regulations that is being applied, "must be allowed in appropriate instances," and those appropriate instances are where it is "required for a full and true disclosure of the facts." Id.

However, if § 2.310(d) is interpreted to require either that "'the credibility of an eyewitness may reasonably be expected to be at issue" or that "issues of motive or intent of the party or eyewitness material to the resolution ofthe contested matter" must also be shown to get a Subpart G proceeding, then the barrier to the right of cross-examination under Subpart G would be higher than the CAN decision established or than the Commission represented to the Court when it provided its own interpretation of the these regulations.

In sum, the only reading of 10 C.F.R. Part 2 that is consistent with the regulations as written, consistent with the NRC's representations made to the First Circuit, and consistent with the ruling in CAN, is that a party is entitled to obtain a Subpart G hearing on any contention for which it can demonstrate, pursuant to § 2.309(g), that it is likely "that resolution of the contention necessitates resolution of material issues of factwhich may be best determined through the use of the identified procedures."

II. Certain Contentions Submitted by the State of New York Should Proceed Through Discovery Pursuant to the Subpart G Discovery Procedures As previously discussed, the State of New York is entitled to a Subpart G proceeding for any contention for which it can demonstrate that it meets the requirements of § 2.309(g) or the first test in § 2.310(d). However, at this early stage of the proceeding it may not be possible to demonstrate conclusively that the standards are met, particularly the standard under § 2.309(g).

Thus, should the Board conclude that the showing required to obtain Subpart G status has not been made at this time, the State of New York respectfully requests the Board defer any final ruling on this matter and allow the State of New York to file supplemental briefing in support of its request.for Subpart G status until 30 days after the initial disclosures have been made pursuant to § 2.336 by both Energy and NRC Staff.

The use of discovery procedures specified in Subpart G, particularly requests for.

admissions, will provide an extremely efficient method to ascertain precisely what actions Energy is committed to taking to meet its obligations under Part 54. Efforts to evade taking a definitive position with such equivocating phrases as "will generally comply with" or "is based upon" will be exposed early and Energy will be compelled to provide precise answer to precise questions. While similar inquiries can be taken at the evidentiary hearing, it will be far more efficient for all the. parties, and particularly the Board, if the hearings are able to focus on the actual choices made by Energy and not on first trying to determine what choices it has made.

As with any good pre-trial practice, depositions can be used to fully discover all the relevant facts that lay behind a position adopted by a party. Without depositions, the evidentiary hearings are themselves part discovery and part cross-examination. If the discovery - i.e. the uncovering of all relevant facts - is carried out during depositions, the hearing will be able to focus on the one procedure that is appropriate for hearings - i.e. cross-examining the witnesses based upon the already established facts, not uncovering the facts.

This license renewal hearing involves more contentions and more complex contentions than any previous license renewal proceeding. If, as the State of New York has suggested, the Board imposes strict guidelines -- after allowing the parties to propose their own procedural controls, and possibly to propose a joint case management plan, as contemplated by § 2.329 -- to control pre-hearing discovery, the Board can assure itself that the time devoted to the hearings themselves will be spent as efficiently as possible. Traditionally, the items that control the commencement of the hearings are publication by the Staff of the SER and FEIS and the ACRS review. So long as Subpart G discovery is conducted within that time frame, it will not add any time to the ultimate resolution of the case and by speeding up the hearing itself and the focus of the parties on the issues of concern, will actually expedite the final resolution of the proceeding.

A. NYS Contentions 5, 6, and 7 In admitting the State of New York Contentions 5, 6 and 7 regarding buried piping and inaccessible electrical cables, the Board concluded:

the Board admits NYS-5 to the extent that it pertains to the.

adequacy of Entergy's AMP for buried pipes, tanks, and transfer canals that contain radioactive fluid which meet 10 C.F.R. § 54.4(a) criteria. The questions to be addressed at hearing include, inter alia, whether, and to what extent, inspections of buried SSCs containing radioactive fluids, a leak prevention program, and monitoring to detect future excursions, are needed as part of Entergy's AMP for these components.

While we accept at face value Entergy's representation that it fully intends to develop an AMP consistent with the GALL Report, that commitment does not demonstrate, now, that the effects of aging will be adequately managed.

LBP 08-13 at 34, 41. Eriergy is obligated under 10 C.F.R. § 2.336(a)(2)(I) to either produce a copy or a description of "all documents and data compilations in the possession, custody, or control [of Energy] that are relevant to the contentions." As the Board recognized in its Order, the issue for resolution in Contentions 5, 6 and 7 is whether inspections, leak prevention programs and monitoring proposed by Energy are sufficient to meets its obligations for license renewal. Step one in the process of resolving this issue is a full identification, by location, design, function and accessibility of all the buried pipes, tanks, and transfer canals that contain radioactive fluid and relevant inaccessible electrical cables which meet 10 C.F.R. § 54.4(a) criteria. Only by knowing 'Where each of these critical components are located, how it is buried or why it is inaccessible, what natural forces it may be subjected to, how difficult it will be to detect a leak occurring from that pipe or damage tothe electrical cable and similar specific details, will it be possible to determine whether the plan provided by Energy will be effective.

If there were a readily ascertainable CLB for both Indian Point units, presumablythe document production under § 2.336 by Energy could be thorough and all the relevant information about pipes and inaccessible cables would be provided. However, in light of the questions and answers provided by Staff and Energy during the hearings on contention admissibility, there is serious doubt that the CLB is easily ascertainable. Under these circumstances, the judicious use of depositions, particularly a deposition modeled on FRCP Rule 30(b)(6) which gathers information from the "person most knowledgeable" about the particular system, is essential to either ascertain where the relevant documentation is, whether it is up to date as required by 10 C.F.R. § 50.74, or whether the relevant documentation cannot be located.

Beyond the limited information contained in the LRA, Energy should possess or have access to substantially more documentation, as part of its current licensing basis, that more precisely and completely identifies all the buried pipes, tanks, and transfer canals and should have similar details for the inaccessible electrical cables that are the subject of the contentions.

However, since it did not provide this information as part of its LRA, did not identify with any specificity what programs it will implement to address these and other issues in its LRA, there is reason to be concerned that when Energy makes its § 2.336 disclosures they will be far from complete. Of course, if Entergy's initial disclosures are complete and thorough, no additional discovery will be needed to ascertain which pipes, tanks, transfer canals and inaccessible electrical cables are at issue and the relevant details about them. Whether Energy will offer any actual aging management plans for the inaccessible cables and the extent of its disclosure of such plans now, is also an as yet unanswered question., However, past history suggests that a full disclosure of all relevant documents may not occur, at least not in a timely manner.

For example, in the Pilgrim license renewal proceeding, Energy produced, for the first time on January 8, 2008, a corporate document, that had, an effective date of November 9, 2007, which had presumably been in existence for some time prior to its effective date. ,This production was in conjunction with filing its Statement of Position regarding Pilgrim Watch's admitted Contention related to buried piping. See BuriedPiping and Tanks Inspection Program and MonitoringProgram ("BPTIMP")(submitted by Energy in the matter of Pilgrim Nuclear Power Station License Renewal in Entergy's Initial Statement of Position, Exhibit 5, posted January 8, 2008, and docketed January 9, 2008 (ADAMS ML080160268)).. This disclosure, at least two and half months after the document had come into existence and at a critical time in the hearing when the intervenor was formulating its prefiled testimony, is hardly in compliance with the requirements of § 2.336(a)(2)(1). In addition, Pilgrim Watch could not know of the existence of the document and thus could not avail itself of the provisions of § 2.336(e) to seek sanctions for the failure to produce a document the existence of which was unknown to it. However, a properly conducted deposition of the person with the most knowledge about buried piping inspection programs would have quickly disclosed the existence of either the document or the program that was developing the document. Of equal importance to the document itself would be the underlying documents that formed the basis for Entergy's decision to provide an enhanced program for inspections of buried piping, none of which were apparently produced in the Pilgrim proceedingf Despite this history of alack of diligence and timeliness in making document disclosures, it would be inappropriate for the State of New York to seek to obtain expanded discovery in this proceeding based solely on Entergy's record in other proceedings. Energy is entitled to the benefit of the doubt and until it is has made its initial disclosures and any appropriate supplements it is not possible to determine whether additional discovery will be needed here. Nonetheless, under the Commission rules and this Board's Order, now is the time for the State of New York to make its case for the.use of Subpart G procedures. As noted, the State of New York does not believe this will give it the automatic right to use any discovery procedure, but once this Contention has. been accepted under Subpart G, the State of New York can, if the nature of Entergy's § 2.336 disclosures warrant, seek to use additional discovery procedures to assure the "full and true disclosure of the facts." Although the State of New York submits that as of today it is. not possible to make a full case for why a particular discovery procedure is needed, there is. already sufficient evidence, discussed in this pleading, that it.is 5 Although Entergy vigorously opposed admission of Contention 5 on buried pipes, it did not disclose to the Board that at the same time it was opposing admission of the Contention, it had commissioned an Independent Safety Evaluation (ISE) which was looking, in part, at the issue of buried pipes. The ISE concluded that "the' protective wrapping/insulation [on feedwater piping] most likely was not installed as required by design specification, causing the corrosion of the piping" and "a comprehensive investigation of the nature and rate of wall corrosion had not been done in 1998 when wall thinning of the auxiliary steam piping was first detected, and by 2007 the piping condition was sufficiently degraded as to preclude effective investigation of the leak source." ISE Report at 50. The Report went on to state that "...the vulnerability remains for future tritiated steam leaks in the remaining 275 linear feet ... of Unit 2 auxiliary feedwater piping." Id. at 51. Moreover, the Report noted that identification and location of buried pipes can be "sometimesdifficult in older plants" (id. at 50) and the ISE's first recommendation to Entergy was to identify all buried pipes. Id., Appendix 3, p. 50. The ISE based its conclusion on a review of documents made available to it by Energy. Given past practice, it is unlikely Energy will be producing a similarly comprehensive set of documents pursuant to § 2.336.

extremely likely that the discovery procedures in Subpart G will, in specific instances, provide the best mechanism to resolve disputed issues of fact that are material to resolution of specific contentions.

Although for a different reason, a request for cross-examination of witnesses is even less ripe for presentation at this time. It is not possibleito determine whether cross-examination is warranted, in part because there is no way to determine whether a particular witness needs to be cross-examined to test either veracity or intent until such time as witnesses and their testimony are identified. As the Board recognized in its Prehearing Scheduling Order in the Vermont Yankee License Renewal Proceeding, the earliest that a request for cross-examination can be made is a reasonable time after the witness for whom cross-examination is sought has been identified. In the Matter of Vermont Yankee Nuclear Power Station, Docket No. 50-271-LR, Initial Scheduling Order, Nov. 17, 2006 slip op. at 6. No witnesses have been identified by any party and the earliest such disclosures will occur will be after~the initial disclosures required by

§ 2.336(a)(1). Therefore, the State of New York reserves its rights to seek Subpart G cross-examination authority at a later date.

B. NYS Contention 8 For reasons similar to those raised for Contention 5, 6, and 7, the State of New York has reason to believe that initial disclosures related to Contention 8 may not be complete. Contention 8 alleges, inter alia, that the failure to manage properly the aging of electrical transformers could result in loss of emergency power to the 480*volt safety equipment and 6.9kV busses, including all station blackout loads and may result in accidents beyond the Design Basis Accidents resulting in exposures to the public exceeding 10 C.F.R. § 100 limits. See New York State Petition to Intervene at 104. On March 12, 2008, after the State ofNew York completed its oral arguments to this Board, the NRC published its Proposed License Renewal Interim Staff Guidance LR-ISG-2008-01: Staff Guidance Regarding the Station Blackout Rule. See Proposed License Renewal Interim Staff Guidance LR-ISG-2008-01: Staff Guidance Regarding the Station Blackout Rule (10 CFR 50.63); Associated With License Renewal Applications, 73 Fed. Reg. 13258 (Mar. 12, 2008). This guidance supports New York State's Contention 8.

However, at no time during the consideration of Contention 8 did Staff acknowledge that this document was being prepared within the NRC and continued to insist that there was no merit to the claims made in Contention 8. Given this notable omission, there is little reason to believe that when NRC Staff produces documents pursuant to § 2.336 it will make a full a complete disclosure of"[a]ll documents (including documents that provide .. opposition to, the application". 10 C.F.R. § 2.336(b)(3). The fact that Staff has asserted it believes it has the right to discard documents that are within the scope of the disclosure requirements in § 2.336(b)(3),

see July 21, 2008 NRC Staff Opposition to New York State Motion to Preserve Documents, underscores the fact that Staff disclosures under § 2.336(b)(3) are not likely to be complete. The use of a quick deposition of the' relevant Staff member who is addressing the merits of these issues will quickly disclose whether other documents exist that have not been produced.

C. NYS Contention 12 This contention concerns the clear up and decontamination costs associated with a significant accident. See New York State Petition to Intervene at 140-145. The State of New York submits that a discussion of NYS Contention 12 that does not include production of NRC documents related to (1) the SAND 96-0957 Report, Site Restoration:Estimation of Attributable Costs From Plutonium-DispersalAccidents (May 1996); and (2) economic costs associated with a potential accident at or near a dry cask storage facility located near Skull Valley, Utah, and any analysis of reports or testimony of M. Resnikoff regarding accidents associated with the Skull Valley site and/or the transportation of nuclear material to that site would be incomplete. As part of discovery in this proceeding, the State of New York seeks all documents within NRC's possession analyzing: (1) the SAND 96-0957 Report or (2) economic costs' associated with a potential accident at or near the Skull Valley facility and any analysis of reports or testimony of M. Resnikoff regarding accidents associatedwith the Skull Valley site and/or the transportation of nuclear material to that site. It is anticipated that such NRC documents will analyze the factual and theoretical underpinnings of the Sandia Report and the Skull Valley analyses; such NRC documents may be material to resolution of NYS Contention 12. If such documents are not included as part of the NRC Staff's disclosure, the State of New York anticipates returning to the Board and requesting the application of Subpart G to further discovery on this contention.

In addition, the State of New York notes that in the recent Pilgrim license renewal proceeding, it appears that Entergy produced scores of pages of a print out of a computer run of a SAMA analysis. However, from the face of the document, it is difficult to identify the assumptions Entergy used in the analysis. For purposes of illustration, the State has appended a five page excerpt of the print out (see Appendix A hereto). Without interrogatories, notices to admit, and/or a deposition, it would be difficult to interpret the inputs and assumptions used by Entergy or-its consultants. This need for Subpart G discovery procedures would also hold true for Contention 16.

D. NYS Contention 16 In opposing admissibility of this Contention on the basis that there was no substantive support for it, Staff and Energy failed to acknowledge in their pleadings to the Board the existence of at least one governmental study which support the State of New York's Contention

16. Contention 16 alleged that Entergy's assertion in its Severe Accident Mitigation Alternatives (SAMA) Analysis that it "conservatively" estimated the population dose of radiation in a severe accident is unsupported because the air dispersion model it used will not accurately predict the dispersion of radionuclides, or resulting human exposure, in the event of a severe accident. See New York State Petition to Intervene at 163-67. As the State of New York noted in its reply, Staff and'Energy failed to disclose or reference a 1999 federal government study which.raised the samne concerns about the air dispersion model at issue that the State's expert, Dr. Bruce Egan, did. See Directory of Atmospheric Transportand Diffusion ConsequenceAssessment Models, Office of the Federal Coordinator for Meteorology, FCM-13-1999 (March 1999), availableat www.ofcmr.gov/atd dir/pdf/maccs2.pdf. When coupled with the many examples discussed above regarding other substantive issues where neither Staff nor Energy were candid in filing their oppositions to the State of New York's Petition to Intervene and where they failed to disclose documents that would undercut their opposition to the Petition, there is every reason to believe that without the benefit of discovery, particularly discovery where witnesses are placed under oath and interrogatories, where answers are required to be filed under oath, there will not be a full and complete disclosure of all the relevant information. The provisions of§ 2.336 and its virtually unenforceable obligation to produce all relevant documents - particularly where the existence of the documents is not known or readily knowable by intervenors - are not the best way to find or resolve the material facts in dispute with regard to this or anyof the other Contentions for which the State of New York seeks Subpart G proceedings.

E. NYS Contention 25 Contention 25 addresses the significant aging management problem of embrittlement of the reactor pressure vessel ("RP.V") and ass6ciated internals. The State of New York believes that this issue has not been raised in a relicensing proceeding to date, and so the parties have no prior history upon which to draw a conclusion that the initial disclosures required under § 2.336 would be adequate to provide the necessary information for the State's experts to review and prepare for the adjudicatory hearing.

In fact, the opposite is true. Contention 25 raises exceedingly complex, technical issues that have likely been reviewed by third parties, e.g., EPRI and NEI, and relevant documents from those organizations may be claimed by Energy to not be within the "possession, custody, or control" of the Applicant here. 10 C.F.R. § 2.336(2)(1); see above discussion of this issue as applied to pipe corrosion. Conversely, if this significant, technical aging management issue has not been reviewed by third parties, that, too, would provide relevant and important information to the State of New York and the Board. The Subpart G procedures would provide those answers.

Because § 2.336 only provides for document production, questions such as how or why something was done to address an issue are not answered until the hearings or possible in prefiled direct testimony. For such an exceedingly complex aging management issue, it is far more efficient to get to the root of the "how" and the "why" long before prefiled testimony is filed and the evidentiary hearings begin.

Entergy's LRA failed to include an adequate aging management plan to monitor and manage the effects of aging due to embrittlement of the reactor pressure vessels and the

.associated internals. The LRA also did not include an evaluation of Time Limited Aging Analysis ("TLAA") as required by 10 C.F.R. 54.21 (c). Entergy's LRA does not indicate if Energy performed any age-related accident analyses, if it even took embrittleement into account when assessing the effect of transient loads, or if it considered how embrittled RPVs would respond in the case of a design basis accident loss of coolant ("DBA LOCA") event. Energy may well have this information, and assuming, arguendo, that it would provide that information pursuant to the general disclosures under § 2.336, the reasons why it did not include this information in the LRA would never be ascertained under the § 2.336 disclosures or by application of the Subpart L procedures. Additionally, it may be that Energy never conducted tests and analyses that would have provided this key safety information. In either event (whether it did or did not conduct those tests and analyses), the paucity of information in the LRA goes*

directly to the issue of motive and intent, thus making application of the Subpart G procedures appropriate, pursuant to 2.310(d).

F. Consolidated NYS Contention 26/26A & Riverkeeper Contention TC-1/TC-1A Consolidated Contention NYS 26 and Riverkeeper TC- 1 addresses the aging management issue of metal fatigue. In contrast to Contention 25, this contention has been litigated in other proceedings, e.g., Vermont Yankee. The issue was also raised in the relicensing proceedings for Oyster Creek and Pilgrim, though the contentions in those cases did not garner an adjudicatory hearing. Moreover, in the Indian Point relicensing matter, as in Vermont Yankee, metal fatigue has undergone a metamorphosis - by the Applicant's design. In both relicensing proceedings, the Applicant amended its LRA in response to the petitions in which metal fatigue, was raised as a contention. The Applicant's LRA amendments in both proceedings prompted the petitioners to submit revised or supplemental contentions.

As was apparent by the ALB panel's questioning of Entergy's experts at the Vermont Yankee adjudicatory hearing, the motives of the Applicant in approaching metal fatigue in its LRA and LRA Amendments became relevant, but were not illuminated by the general disclosures in § 2.336. Having had that information prior to the adjudicatory hearing would have been far more efficient. Given this history - of this issue with this Applicant - the general disclosure provisions would not provide the information necessary to efficiently andadequately adjudicate this issue, both for the petitioners and the Board.

Resolution of the metal fatigue contention necessitates resolution of issues of material fact relating to Entergy's past activity and to issues of Entergy's motive or intent in submitting LRA Amendment 2. Among the issues to be explored are what CUF/FEN calculations Energy performed, what assumptions it used, when it performed those calculations, how - if at all - it accounted for environmental factors, what data it has that it has not submitted to the NRC, why Energy changed its position in LRA Amendment 2, any'new assumptions that it used, the details of its professed corrective action. The general disclosures and Subpart L procedures are simply not designed to explore these issues, which exist given Energy's history of handling the metal fatigue issue at Indian Point and other plants.

III. The State of New York Reserves it Ability to Invoke 42 U.S.C. § 2021(1) to Secure its Right to Cross-Examine Witnesses in Connection with NRC-Issued Licenses for.

Activities within the State As previously noted by the State of NewYork, the Atomic Energy Act itself grants the states, but not other entities, a right to present evidence, interrogate witness, and advise the Commission about federally licensed atomic energy activities that take place within a state. See NYS November 30, 2007 Petition at 19-22; March 11, 2008 Oral Argument, Tr. at 493.

Although Applicant and the Staff point to NRC regulations that establish, some criteria on the extent to which a State has rights to participate once a hearing has been established (see 10 C.F.R.:§ 2.315 (c)), they do not and cannot dispute the fact that 42 U.S.C. § 2021(1) compels the NRC to "afford reasonable opportunity for State representatives to offer evidence, interrogate witnesses, and advise the Commission as to the application" for any licensing amendment authorizing operation of a nuclear reactor whether or not a hearing is to be held.

However, the State of New York respectfully submits that it is premature to decide this issue at this juncture. First, as already noted, it is not possible at this time to determine whether any cross-examination by a party is warranted since final witness lists have not been produced and topics to be addressed have not been identified for each of those witnesses. In addition, in its capacity as a party, the State of New York possesses the opportunity to seek the right to cross-examine and if, as urged above, the standard for cross-examination, whether the contention is considered under Subpart G or L, is the standard established by the APA and endorsed by the Commission and the Court in CAN, the State of New York may obtain all the rights it possesses under 42 U.S.C. § 2021 (1)without having to invoke. that authority or press the issue in this proceeding. In the interest of efficiency, the State of New York will not press this right at this time, but reserves the right to do so if,, and when, it becomes necessary to assure a "full and true disclosure of the facts."

Conclusion For the reasons outlined above, the State of New York respectfully requests that the Board apply~the provisions of Subpart G to State of New York Contentions 5, 6, 7, 8, 12, 16, and 25 and consolidated contention NYS 26/26A and Riverkeeper TC-1/TC-1A.

Respectfully submitted, August 21, 2008 Janice A. Dean Joan Leary Matthews John J. Sipos Senior Counsel for Special Projects Assistant Attorneys General New York State Department of Office of the Attorney General Environmental Conservation

'for the State of New York Office of General Counsel The Capitol 625 Broadway, 1 4 th Floor Albany, New York 12224 Albany, NY 12223-5500 (518) 402-2251 (518) 402-9190 iohn.sinoskThoag.state.nv.us jlrhattheagw.dec. state.ny.us John L. Parker Region 3 Attorney New York, State Department of Environmental Conservation Region 3 Headquarters 21 South Putt Corners Road New Paltz, NY 12561-1620 (845) 256-3037 ilparker(2gw.dec.state.ny.us Consultation with Parties Pursuant to 10 C.F.R. § 2.323 Prior to filing this motion, on Monday, August 21, 2008, Assistant Attorney General John Sipos contacted Paul Bessette, Esq., counsel to Entergy, and Sherwin Turk, Esq., counsel to the NRC Staff, and inquired whether Entergy or NRC Staff objected to a motion that this Atomic Safety and Licensing Board apply Subpart G procedures to this license renewal proceeding. Both Mr. Bessette and Mr. Turk expressed no opposition to the State's ability to file the motion, but did oppose the application of Subpart G to this proceeding.

John J. Sipos APPENDIX A 744 0001 01 00 233 125 224 69 .28 27 240 150 222 65 28 44 0001 01 01 229 126 226 67 29 20 233 152 219 68 28 38 00 01 01 02 239 141 228 82 29 15 242 164 219 85 29 .31 0001 01 03 250 145 244 79 29 17 255 171 223 78 29 33 0001 01 04 257 129 243 64 30 15 263 161 228 69 30 33 0001 01 05 238 143 229 83 30 17 242 163 219 85 30 30 0001-01 06 235 135 228 84 30 14 235 167 221 74 31 30.

0001 01 07 228 147 225 86 32 9 -226 179 212 76 32 22 0001 01 08 216 103 216, 62 35 3 215 148 201 58 35 15 0001 01 09 209 69 208 52 38 -.5 210 111 196 54 39 -17 0001 01 10 216 82 224 68 41 -9 209 124 207 75 41 -27 0001 01 11 212 106 218 83 43 --11 207 133 203 80 43 -24 0001 01 12 209 119 210 90 45 --10 215 161'214 90 46 -20 0001 01 13. 214 159 217 118 47 -10 214 197 212 107 47 -17 0001 01 14 212 145 209 104 46 -10 211 162 208 90 46 -17 0001 01 15- 215 121 216 89 45 -7 216 159 213 78 45 -11 0001 01 16 217 120 219 75 41 -4 219 164 212 71 41 -4 0001 01 17 214 125 208 67 40 0 212 174 203 63 39 4 0001 01 18 203 146 197 82 40 2 205 200 193 75 40 10 0001 01 19 208 148 204 80 41 2 208 200 198 75 40 10 0001 01 20 212 144 203 83 41 4 209-209 198 70 40 17 000101 21 212 140 207 84 42 6 211 208 197 68 41 20 0001 01 22 217 136 211 .80- 42 3 216 198 203 64 41 17 0001 01 23 216 131 212 74 43 4 216 195 201 -63 42 17 0001 0200 .224 154 221 92 43 5 221 212 205 71 42 18 00 01 02 01 221 173 220' 105 43 4 218 212 204 77 42 15 0001 0202 218 180 212 104 43 6 212 213 203 83 42 16 0001 02 03 214 187 208 -105 43 9 209 225 200 90 42 20 0001 0204 218 181 218 109 44 8 215 221 204 89 43 26 0001 02 05 221 169 21.9 108 45 3 214 200 209 80 44 15 0001 0206 214 166 214 100 46 3 209 194 203 77 45 8 O0 01 0207 202 177 202 101 46 7 198 194 193 83 46 .8 0001 0208 198 178 200 105 48 2 194 190 192 86* 47 -2 00 01 0209 192 159 195 107 49 -4 190 181 186 82 48 -4 0001 0210 195 156 196 100 51 -4 193 179 187 85 50 -5 0001 0211 199 133 197 91 52 -7 197 161 188 82 52,-l1 0001 0212 195 131 199 92 55 -7 197 167 192 88 55 -15 0001 0213 202 162 198 116 57 -7 203 187 196 103 57 -14 0001 0214 200 159 199 115 57 -8 201, 173 191 91 57 -15 00010215 197 166 198 117 56 -8 198 190 189 102 56 -12 0001 0216 196 176 193 125 54 -7 194 203 190 109 54 -6 0001 0217 198 .159 193'104 53 -4 196 183 189 92 53 -3 0001 0218 197 148 189 106 53 -2 196 195 187 99 53 .-3 O0 01 02 19 203 172 192 118 53 -2 203 198 196 99 53 -6 0001 0220 200 155 195 100 54 -3 203.194 194 89 53 -7 0001 0221 200 184 193 124 54 -3 201 210-192' 95 53 -6 0001 0222 212 188 199-131 55 -2 211 238 202 113 54 -6 0001 0223 214 195 211 125 56 -2 214 263 209 121 55 -5

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- . . I - -- -- - . - .

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter, of ENTERGY NUCLEAR INDIAN POINT 2, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC, and ENTERGY NUCLEAR OPERATIONS, INC. Docket Nos.

50-247-LR & 50-286-LR INDIAN POINT NUCLEAR GENERATING UNITS 2 & 3 ASLBP No.

Regarding the Renewal of Facility Operating Licenses 07-858-03-LR-BDOi NO. DPR-26 and No. DPR-64 for an Additional 207year Period CONSOLIDATED CONTENTION OF PETITIONERS STATE OF NEW YORK (No. 26/26-A)

AND.RIVERKEEPER, INC. (TC-I/TCI-A) - METAL FATIGUE AND DESIGNATION OF THE STATE OF NEW YORK AS LEAD LITIGATOR FOR THIS CONSOLIDATED CONTENTION Introduction & Background Petitioners State ofNewYork (New York) and Riverkeeper, Inc. (Riverkeeper), submit this consolidated contention pursuant to the July 31, 2008, Memorandum and Order of the Atomic Safety and Licensing Board (ASLB) (Ruling on Petitions to Intervene and Requests for Hearing) in the above captioned license renewal proceeding.

On April 23, 2007, Entergy filed its License Renewal Application (LRA) for the two operating reactors at Indian Point (IP2 and IP3). On November 30, 2007, New' York .and Riverkeeper filed Petitions to Intervene in which both Petitioners included the issue of metal fatigue as an aging management contention. New.York's and Riverkeeper's petitions included

i metal fatigue as Contention 26 and TC-1, respectively.1 On January 22, 2008, along, with its Answer to these two petitions, Entergy submitted an amendment to its original LRA. This LRA amendment was denominated as "LRA Amendment.

2." Both New .York and Riverkeeper filed supplemental or amended contentions in response to 2

LRA Amendment 2 - these contentions were labeled-Contention 26-A and TC-IA, respectively.

On July 31, 2008, the ASLB panel admitted New York State Contehtion 26/26-A and Riverkeeper, Inc. Contention TC- 1/TC- 1A and directed the two Petitioners "to confer andsubmit a draft of the Consolidated Contention for the Board's consideration within 21 days of [the]

Order.2' ASLB Mem. & Order at 226-27, 228. As directed by the ASLB panel, the -following constitutes the parties' consolidated contention on the aging management issue of metal fatigue.

Designation of the State of New York as Lead Litigator In-its July 31, 2008, Memorandum an Order, the ASLB Panel directed New York and Riverkeeper to advise the Board as to which of the two parties would take the lead in litigating this consolidated contention. The parties have conferred and now advise the Board that the State of New York will take the lead in litigating this consolidated contention.

New York State Contention 26 was set forth in its Notice of Intention to Participate and Petition to Intervene, filed with the NRC on November 30, 2007 (ML073400187). Riverkeeper TC-1.

was set forth in its Request for Hearing and Petition to Intervene, filed with the NRC on November 30, 2007 (ML073410093). These documents as. well as the associated replies that New York.and Riverkeeper filed (ML080600444 and ML080560247, respectively) are incorporated byreference in this consolidated contention.

2 New York State Supplemental Contention 26-A was filed with the NRC on April 7, 2008 (ML081750691). Riverkeeper TC-1A was set forth in its Request for Admission of Amrended Contention 6, filed with the NRC on March 5, 2008 (ML080840441). These documents as well as the associated replies that New York and Riverkeeper-filed (ML081280606 and ML081280335., respectively) are incorporated by reference in this consolidated contention.'

Consolidated Contention New York State 26/26-A &.Riverkeeper TC-1/TC-1A (Metal Fatigue)

ENTERGY'S LICENSE RENEWAL APPLICATION DOES NOT INCLUDE AN ADEQUATE PLAN TO MONITOR AND MANAGE THE EFFECTS OF AGING DUE TO METAL FATIGUE ON KEY REACTOR COMPONENTS.

A.; Specific Statement of the Issue of Law or Fact to Be Raised or Controverted Entergy's LRA and LRA Amendment 2 fail to include adequate time limited aging analyses (TLAAs) of reactor components for metal fatigue required by 10 C.F.R. § 54.21(c)(1)(i) and (ii), and fail to include an adequate plan to monitor and manage the effects of aging due to metal fatigue on key reactor components that are subject to an aging management review required by 10 C.F.R. §§ 54.21 (a)(3) and 54.21(c)(1)(iii).

Specifically, Entergy has failed to satisfy the requirements of section 54.21(c)(1) in several ways:

NRC regulations require adequate and thorough TLAAs now - as part of the license renewal application review process.- and those TLAAs cannot be deferred until after a renewal license is granted; Entergy's TLAAs for a number of components subject to the license renewal regulations listed in Tables 4.3-3 through 4.3-12 are incomplete because they omit consideration - through the application of "Fen factors','

- of the exacerbating effects of environmental conditions on the fatigue of metal components, contrary to NRC regulations and guidance; Entergy has inappropriately limited the number of reactor components that must undergo a TLAA, by both failing to broaden its TLAA analysis beyond the universe of the representative components identified in Tables 4.3-13 and 4,3-14 of its original LRA, and by eliminating, in its LRA Amendment 2, its commitment to evaluate cumulative use factors (CUFs) for locations specified in NUREG/CR-6260; Entergy's promised and future "refinement" in LRA Amendment 2 of the CUFanalysis for some key reactor components does not and cannot constitute a valid corrective action under NRCregulations; and the correlation between Entergy's future "refinement" of the CUF analysis and its commitment to repair and replace key components as part of its "Fatigue Monitoring Plan" is unacceptably vague, in violation of 10 C.F.R.§ 54.21 (c)(1)(iii).

B. Brief Explanation of the Basis for the Contention This consolidated contention is supported byNRC regulations, NRC regulatory guidance, and the two Declarations of Richard T. Lahey, Jr., submitted with New York's Petition on November 30, 2007 ("Lahey Decl. I"), and with New York's Supplemental Contention 26A on April 7, 2008 ("Lahey Decl. Ii"); and the two Declarations of Jorarn Hopenfeld, Ph.D., dated November 28, 2007 ("Hopenfeld Decl. I") (submitted with Riverkeeper's Petition on November 30, 2007), and dated March 4, 2008 ("Hopenfeld Decl. II") (submitted with Riverkeeper's Amended Contention TC-l on March 5,, 2008).. These experts have reviewed Entergy's initial LRA and LRA Amendment 2, as well as applicable NRC regulations and relevant NRC. and industry guidance. Dr. Lahey's and Dr. Hopenfeld's declarations and citations to NRC regulations, guidance, and any'other supporting materials referenced in New York's 26/26A and Riverkeeper's TC/TC-I contentions, are incorporated here as support for this consolidated contention.

NRC Regulations NRC regulations require an applicant to provide in the license renewal application an evaluation of TLAAs and show that those analyses "remain valid for the period of extended operation" and have been "projected to the end of the period of extended operation." 10 C.F.R. § 54.21 (c)(1)(i), (ii). 3 If those TLAAs demonstrate that corrective action is necessary, the Applicant goes to the next step of demonstrating, also in the license renewal application, that the corrective action will occur through the adequate management of the effects of aging on the intended function for the period of extended operation. 10 C.F.R. § 54.21 (c)(1)(iii).

Metal Fatigue and CUF Aging effects on intended functions of nuclear power plant equipment include fatigue-or "cyclic stress" of metal parts due to repeated stresses during.plant operation. Material composition, strain rate, temperature, and local water chemistry are some of the factors that contribute to fatigue of metal parts. Equipment failures from fatigue may result in small leaks, which, if not detected. in time, could result in a pipe rupture. Fatigue can also create small cracks that propagate and cause a given component to malfunction and/or break up and form loose parts, which would interfere with the safe operation of a plant. Such failures may occur during steady 3 The full text of section 54.21(c)(1) reads as follows:

54.21 Contents of application--technical information.

Each application must contain the following information:

(c) An evaluation of time-limited aging analyses.

(1) A list of time-limited aging analyses, as defined in § 54.3, must be provided. The applicant shall demonstrate that--

(i) The analyses remain valid for the period of extended operation; (ii) The analyses 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..

10 C.F.R. § 54.21(c)(1).

state or during anticipated or unanticipated transients and may have serious consequences to public health and safety.

For example, if one of the feed water distribution nozzles (J-tubes) were to fail from fatigue, pieces from the broken nozzle could be lodged between steam generator tubes, causing the tubes to rupture and leading to a potential core melt. Components that are susceptible to fatigue, therefore, must, as required by NRC regulations, have a planned management program to ensure that the plant functions efficiently and safely.

The cumulative use factor (CUF) plays a-key role in TLAAs. "A common figure of merit used to appraise the possibility of fatigue failure is the cumulative usage factor (CUF), which is the ratio of the number of cycles experienced by a structure orcomponent divided by the number of allowable cycles for that structure or component. At a nuclear power plant, the maximum number of cycles that should be experienced by any structure or component should always result in a CUF of less than 1.0. In other words, the number of actual cycles experienced should always be less than the number of allowable cycles." Lahey Decl. I ¶ 20.

NRC Regulator, Guidance for TLAAs The NRC provides guidance for the conduct of TLAAs in NUREG-1 800, Rev. 1, StandardReview Planfor Renewal Applicationsfor Nuclear Power Plants (SRP). According to Section 4.3.1.1 of the SRP, metal components may be designed .or analyzed based on requirements in the American Society of Metal Engineers (ASME) Boiler and Pressure Vessel Code or the American National Standards Institute (ANSI) guidance. "A[n] [ASME] Section III Class I fatigue analysis requires the calculation of the CUF, based'on.the fatigue properties of the.

materials and the expected fatigue service of the component." SRP § 4.3.1 l. In order to be acceptable, a CUF value must be less than or equal to 1.0. Id. The factors considered in the fatigue analysis must include "the effects of coolant environment on component fatigue life."

Id., § 4.3.1.2. Those components with a CUF greater than 1.0 are deemed likely to develop cracks and must therefore be subjected to further analysis and management under 10 C.F.R. § 54.21 (c)(a)(iii).

NUREG-1,801, Rev. i, GenericAging Lessons Learned (GALL) Report (2005)

("NUREG- 1801") also provides guidance for the preparation of TLAAs. 4 NUREG-1801 advises that a license renewal applicant may comply with the regulations by addressing "the effects of the coolant environment on component fatigue life by assessing the impacts of the reactor coolant environment on a sample of critical components for the plant." Id., Vol. 2 at X M-1. Examples of critical components are identified in NUREG/CR-6260, Application of NUREG/CR-5999 Interim Fatigue Curves to Selected Nuclear Power Plant Components (1995). The sample of critical components "can be evaluated by applying environmental life correction factors to the existing ASME.Code fatigue analyses." NUREG-l 801, Vol. 2 atX M-1.

If these components are found not to comply with the acceptance criteria.(i.e., CUF less than. 1.0), "corrective actions" must be taken, which "include a review of additional affected reactor coolant pressure boundary locations." Id. atX M-2. As explained further in industry guidance document MRP-47:

The locations evaluated in NUREG/CR-6260 [2] for the appropriate vendor/vintage plant should be evaluated on a plant-unique basis. For cases where acceptable fatigue results are demonstrated for these locations for 60 years of plant operation including environmental effects, additional evaluation or locations need not be considered.. However, plant-unique evaluations may show that some of the NUREG/CR-6260 [2] locations do not remain within allowable limits for 60 years of plant operation when environmental effects are considered.

4 NUREG-1801 is referenced with approval in Regulatory Guide 1.188, Rev. 1, Standard Format and Contentfor Applications to Renew Nuclear Power Plant OperatingLicenses (2005) ("Reg.

Guide 1.188").

In this situation, plant specific-evaluations should expand the sampling of locations accordingly to include other locations where high usage factors might be a concern.

MRP-47, Revision 1, Electric Power Research Institute, MaterialsReliability Program.

Guidelinesfor Addressing Fatigue EnvironmentalEffects in a License Renewal Application at 3-4 (2005) ("MRP-47"').

NRC Regulatory Guidance for Aging Management Programs A license applicant that is unable to demonstrate in its TLAAs that CUFs are less than 1.0 must develop and submit a methodology to manage fatigue so that public health and safety during the life extension period will.be maintained at least at the current level. NUREG-1801 states that the requirements of 10 C.F.R. Part 50 Appendix B set forth "acceptable" corrective actions for components .that are subject to aging management. The Part 50 corrective actions are as follows:

Measures shall be established-to assure-that conditions adverse to quality, such as failures, malfunctions, deficiencies, deviations,, defective material and equipment, and nonconformance are promptly identified and corrected. In the case of significant conditions adverse to quality, the measures shall assure that the cause of the condition is determined and corrective action taken to preclude repetition.

The identification of the significant condition adverse to quality, the cause of the condition, and the corrective action shall be documented and.reported to appropriate levels of management.

10 C.F.R. Part 50, Appendix B, Section XVI.

Based on the NRC regulations and guidance, in Dr. Hopenfeld's professional opinion, an aging management program should (a) provide a reliable method for detecting cracks in pressure systems; (b) provide for a thorough assessment of the component's condition (which may include stress analysis); and (c) contain criteria for deciding whether the component should be repaired or replaced or merely monitored. If monitoring is selected, the frequency of monitoring must be clearly specified, as required by ASME Section XI, Appendix L (1998),.

Here, Entergy has failed to satisfy the NRC's regulatory two-step process of(1) first performing adequate TLAAs:to address metal fatigue and (2) then demonstrating that it has an adequate aging management plan for those key reactor components that the TLAAs showed will suffer from the effects of metal fatigue.

The Applicant's Initial LRA (April 23, 2007)

Section 4.3. of the Applicant's initial LRA discusses Entergy's time-limited aging analyses ("TLAA") for metal fatigue at IP2 and IP3, and Entergy's asserted compliance with the requirements of 10 C.F.R. § 54.2 1(c)(1).

The data that Entergy provided in Tables 4.3-13 (IP2) and 4.3-14 (IP3) of the initial LRA indicated that four key reactor components will have a greater potential for cracking due to metal t'tligue during the period of extended plant operation for each reactor, which will terminate in 2033 and 2035. Entergy's data for these four components are.summarized as follows:

Component Plant Environmentally Amount of exceedence Adjusted CUF of 1.0 CUF criterion (Entergy's data)

Pressurizer surge line piping IP2 9.21 . nearly 10 times Pressurizer surge line piping IP3 9.21 nearly 10 times Reactor coolant system IP2 15.20. , over 15 titties (RCS) piping charging system nozzle' Pressurizer surge line nozzles 1P3 2.35 more than double Data stated in Tables 4.3-13 and 4.3-14 indicate that the requirements of 10 C.F.R'§ 54.2.1 (c)(1)(i) and (ii) are not satisfied because on their face they demonstrate that these components will exceed the .CUF during extended operation. This would then require Entergy to Appendix L is currently being revised.

demonstrate that it will adequately manage these aging effects, pursuant to section 54.21 (c)(1)(iii).

To satisfy section 54.21(c)(1)(iii)- that "the effect of aging on the intended functions(s) will be adequately managed for the period of extended operation" - Entergy stated in its initial LRA that it will implement one or more of the folloving:.

(1) Refine the fatigue analyses to determine valid CUFs less than 1 when accounting for the effects of reactor water environment. This includes applying the appropriate Fen factors to valid CUFs determined in accordance with one of the following.

For locations, including NUREG/CR-6260 locations, with existing fatigue analysis valid for the period of extended operation, use the existing CUF to determine the environmentally adjusted CUF.

Morelimiting IPEC-specific locations with a valid CUF may be added in addition to the NUREG/. CR-6260 locations., In particular, the pressurizer lower shell will be reviewed to ensure the surge nozzle remains the limited component.

Representative CUF values from other plants, adjusted to or enveloping the IPEC plant-specific external loads may be used if demonstrated applicable to IPEC.

An analysis using an NRC-approved version of the ASME code or NRC-approved alternative (e.g., NRC approved code case) may be performed to determine a valid CUF.

(2) Manage the effects of aging due to fatigue at the affected locations by an inspection program that has been reviewed and approved by the NRC (e.g.,

periodic nondestructive examination of the affected locations at inspection intervals to be determined by a .method acceptable to the NRC).

(3) Repair or replace the affected locations before exceeding a CUF of 1.0.

LRA at 4.3-22 (April 23, 2007).

Thus, Entergy selected three options in the initial LRA to manage the effects of aging on those components that it showed already exceeded CUF of 1.0: (1) further refine the CUF analyses (though when it would do this was unspecified).to account for environmental effects (i.e., by applying Fen factors); (2) manage the aging effects by an inspection program, or (3)

~

repair or replace the components before they exceed CUF of 1.0.

LRA Amendment 2 (January 22, 2008)

On January 22, 2008, nine months after the Applicant submitted its initial LRA, and after New York and Riverkeeper filed their Petitions raising a contention based on Entergy's failure to adequately account. for metal fatigue as an aging management issue, Entergy submitted LRA Amendment 2. In this LRA Amendment, Entergy abandoned its proposal to conduct inspections as an aging management response to key reactor components that have will a CUF of greater than 1.0 during extended operations; retained its proposal to perform a "refined fatigue analyses" to account for the effects of reactor water environment - only this time it will perform those analyses "at least two years prior to entering the period of extended operation," and not in the context of this license renewal proceeding; and failed to provide any details of its plan to repair or replace the key reactor

components that it now knows - and has so informed the NRC in its initial LRA - will exceed the 1.0 CUF measurements during extended operations, and has merely "committed" to repairing or replacing affected components before they exceed CUF of 1.0.

New York's and Riverkeeper's Criticism of the Applicant's Initial LRA New York and Riverkeeper demonstrated in Contention 26 and TC-1, respectively, that Entergy's proposals in the. initial LRA were incomplete, vague, and indefinite as to timing of actions.

First, Entergy failed to broaden its TLAA analysis beyond the scope of the representative components identified in Tables 4.3-13 and 4.3-14 to identify other comnponents whose CUF may be greater than 1.0.

Second, Entergy's list of components with CUFs of less than 1.0.in Tables 4.3 -13 and 4.3-14 is incomplete, because Entergy's methods and assumptions for identifying those components are unrealistic and inadequate in several key respects:

Based on data in NUREG/CR-6909, Effect ofLWR CoolantEnvironment on 'FatigueLife of Reactor Materials,FinalReport (February 2007), Dr.

Hopenfeld believes that Entergy used an unrealistically low number of 2.45 for an environmental correction factor ("Fen"). In Dr. Hopenfeld's expert judgment, a Fen of 17 would be more consistent with the data in NUREG/CR-6909; Entergy inappropriately used the "CUF of Record," i.e., the CUF for 40 years in Tables 4.3-13 & 4.3-14 of the LRA. But the regulations and regulatory guides required Entergy to project the number of cycles to 60 years. 10 C.F.R. 54.21 (c)(l)(ii), MRP-47 at 3-4; and Entergy claimed that itdid not calculate several NUREG-CR/6260 limiting locations because they were designed to ANSI B3.1.1, and therefore the CUFs were not available for the IP plant. LRA at Tables 4.3-13 and 4.3-14. But Entergy could and should have substituted, at a minimum, the unavailable data with generic CUF values from NUREG-CR/6260, Application ofNUREG-CR-5999'Interim Fatigue Curves to Selected NuclearPower Plant Components (NRC: 1995).

Third, for.a number of other components subject to the license renewal regulations, which

are listed in Tables 4.3-3 through 4.3-12, Entergy failed to perform complete TLAAs. These TLAAs were incomplete because they omitted consideration of the exacerbating effects of environmental conditions on the fatigue of metal components. In essence, .those tables are based on the assumption that the listed components operate in' air alone, while in fact these components, operate in very harsh environments that include water and steam, which are known to reduce fatigue life. In Dr. Hopenfeld's professional opinion, based on Fens that have been reported in the literature regarding component fatigue, it would be reasonable to apply a representative correction factor of seventeen to the CUFs in Tables 4.3-3 through 4.3-12. See NUREG/CR-6909 and Makoto Higuchi, Revised Proposalof Fatigue.Life Correction FactorFenfor Carbon.

and Low Alloy Steels in LWR Water Environments, Transactions of.the ASME, Vol. 1126 at 436-38 (November 2004). Applying a factor of seventeen shows that the CUF of many components in those tables would exceed 8.5. Thus, Entergy's TLAAs for the components in Tables 4.3-3 -

4.3-12 violate 10 C.F.R. § 54.21 (c)(1)(i)-(ii) and NRC guidance because they do not take into account environmental factors..

Fourth, Entergy's proposal to further refine its fatigue analysis to lower the predicted CUFs to less than 1.0 suggested that it was using analytical techniques that lend themselves to arbitrary adjustments. Valid scientific techniques do not supiport adjustments to obtain a predetermined outcome - responding 'to alarming test results by changing the test is absurd.

Moreover, application of the Fen factors to account for environmental conditions, as Dr.

Hopenfeld asserts is necessary, would increase the number of components with a CUF equal to or greater than 1.0.

Fifth, Entergy's "plan to develop a plan" tb manage fatigueat affected locations is too vague'and indefinite to evaluate. Entergy's statement that it will "repair or replace" affected components is also an impermissibly vague "plan to develop a plan." Additionally, an adequate program to identify other components at risk of metal fatigue would include a monitoring plan with a clear inspection schedule. However, Entergy did not commit to this approach in its LRA.

A plan to obtain NRC's future approval of a yet-to-be-detennined program doesnot constitute an adequate aging management plan consistent with the intent of 10 C.F.R. §§ 54.21 (c)(1) and 54:21 (a)(3).

In sum, Entergy failed to demonstrate in its initial LRA that it had conducted appropriate and accurate TLAAs, that the TLAAs for metal fatigue will remain valid for the entire period of extended operation, or that the "effects of aging on the intended functions will be adequately managed for the period of extended operation." 10 C.F.R. §§ 54.21(c)(1), 54.21(a)(3).

New-York's and Riverkeeper's Criticism of the Applicant's LRA Amendment 2 LRA Amendment 2 fails to address the basic premise ofNew York's and Riverkeeper's.

metal fatigue contention: that Entergy has not conducted proper and accurate TLAAs and has failed to submit an adequate aging plan for metal fatigue, as it is required to do pursuant to 50 C.F.R. § 54.21 (c)(1)(iii). If anything, LRA Amendment 2 further moves Entergy away from compliance with section 54.21 (c)(1) and 54.21 (a)(3). Entergy's approach in LRA Amendment 2 is unreasonable and inadequate for the following reasons.

First, Entergy's continued proposal of a"more refined" reanalysis of the most fatigued-.

limited components in IP2' and IP3.raises more questions thananswers. Entergy apparently expects that these new analyses.will demonstrate that all of the most limiting CUFs are <1.0, and it appears that only if this is not so does Entergy propose to replace the most fatigue-limited components. Lahey Decl. II ¶5. Nowhere does Entergy explain why it is likely that CUFs that are now above 1.0 are likely to be less than 1.0 when re-calculated. See Riverkeeper's Hearing Request at 13, Riverkeeper's Reply tO Entergy's and NRC Staff s Responses to Hearing Request and Petition to Intervene at 5 (February 15, 2008) ("Riverkeeper's Reply"). Importantly for this proceeding before the ASLB, 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 1.0. See Riverkeeper's Hearing Request at 12, Riverkeeper'sReply at 6.

Second, Entergy does not provide any details onthe analytical method and analysis approach it proposes to use. *These details are critical, since, depending on the calculational method to be used,.e.g., a multidimensional FEM code, and the assumptions made, an applicant can obtain almost any answer that it wishes. Lahey Decl. II ¶ 7. Additionally, Entergy does not.

indica'te how its new calculational method will be benchmarked to assure its validity. Id., ¶ 8. in other words, since Entergy has not provided any data that will be used to benchmark, neither

(

New York nor the NRC can be assured that it is representative data and that-the calculational method will be properly assessed. Id.

Given that some of the most fatigue-limited components are key parts of the primary system's pressure boundary, this vagueness in Entergy's prop'sed "refined analysis" is unacceptable, Id. The proposed methodology, where such important calculations'that are not part of the LRA are performed at some unknown point following approval of the renewal application, simply does not demonstrate that the Applicant has met its legal obligations to satisfy the required elements of 1.0 C.F.R. § 54.21(c)(1)(iii). Lahey Decl. II ¶ 8.

Third, Entergy fails to address.NRC guidance requiring that ifCUFs for representative components in the license renewal application are more than 1.0, the applicant must evaluate all components that are subject to the effects of aging. See Riverkeeper's Hearing Request at 14-15, citing NUREG-1 801, Rev. I, Generic Aging Lessons Learned Report, Vol.'2 at X M X- M-2 (2005) ("'Gall Report"); Electric Power Research Institute, Material Reliability Program.-

Guidelines.for Addressing Fatigue Environmental Effects in a License Renewal Application Revision I; at 3-4 (2005) ("MRP-47").

Instead, Entergy's LRA Amendment 2 limits the recalculation of CUFs to locations specified in Tables 4.3-13 and 4.3.14, rather than including the six representative locations identified in NUREG/CR-6260, Application of NUREG-CR-5999.Interim Fatigue Curves to Selected Nuclear Power Plant Components (February 1995) ("NUREG/CR-6260"):" LRA Amendment 2, Attachment I at 1. The changes to the LRA are marked in Amendment 2 as follows:

For locations in LRA Table 4.3-13 (lP2) and 4.3-13 (IP 3), incltudiig NU - 6'2" .,."" tk,,.withexisting fatigue analysis valid for the period of

/CR.,

determine, t extended operation, use the existing CUF to ,c,.,.,,,,. mntall _

LRA Amendment 2, Attachment I at 1. Thus, for five locations for which Entergy now lacks plant-specific CUFs - the RCS piping safety injection nozzle and RHR Class I piping at 1P2 (Table 4.3-1 3) and the RCS piping charging system nozzle, RCS piping safety /

injection nozzle, and RHR Class I piping at 1P3 (Table 4-3-14) - Entergy proposes to drop its commitment to calculate CUFs at any time in the future.

By deleting from the LRA a commitment to evaluate CUFs for all six NUREG/CR-6260 locations, Entergy fails to satisfy NRC guidance and regulations for managing aging components.

As discussed in Riverkeeper's Hearing Request at 10-11, NUREG/CR-6260 lists examples of critical locations that should be evaluated in aging analyses. These components were selected "to give a representative overview of components that had higher CUFs and/or were important from a risk perspective." NUREG/CR-6260 at 4-1. For this reason the GALL Report requires that an "acceptable" aging management program must perform fatigue calculations for all six NUREG/CR-6260 locations. Id. at X M-I.

Failing to calculate CUFs for any one of the NUREG/CR-6260 locations would be' inconsistent with the GALL Report, and therefore would also demonstrate that Entergy had failed to satisfy NRC safety regulations. Louisiana Energy Services (Claiborne Enrichment Center),

LBP-91-41, 34 NRC 332, 338 (1991),.citing CarolinaPower and Light Co. (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 544-45 (1986) (recognizing that because regulatory guides reflect the "considered judgment of Staff and offer insight on what is needed to satisfy a regulation," they constitute "evidence of legitimate.means for complying with regulatory requirements.") Entergy's failure to perform a TLAA 'on other components means that the

breadthof the problem has not been presented by the Applicant in this proceeding - and it is Entergy's burden to provide that information.

" Finally, instead of providing concrete and verifiable details on its corrective action option of repair or replacement, Entergy merely includes a vague description of its proposed "corrective actions":

The program requires corrective actions including repair or replacement of affected components before fatigue Usage calculations determine the CUF exceeds 1.0. Specific corrective actions are implemented-in accordance with the IPEC corrective action program. Repair or replacement of the affected component(s), if necessary, will be in accordance with established plant procedures governing repair and replacement. activities. These established procedures are governed by

'Entergy's 10 CFR 50 Appendix B QA program and meet the applicable repair or replacement requirements ofthe ASME Code Section Xl.

LRA Amendment 2, Attachment I at 2. Not only is this "corrective action" proposal exceedingly vague, but since Entergy does not believe that any components will exceed the 1.0 CUF once it recalculates those figures, any corrective action will occur, if at all, during extended operation, and not before. Lahey DecI. J1¶ 10. Plainly stated, the vagueness of this proposed corrective action cannot be fairly and adequately evaluated now.

In conclusion, what Entergy now proposes in LRA Amendment 2. on metal fatigue merely confirms the validity of New York Contention 26/26-A and Riverkeeper TC- I/TC1 A, their relevance to aging managemenIt and license renewal, and the seriousness of the issues raised in this now consolidated contention. See Id_., 11. Entergy's attempts in LRA Amendment 2 to avoid its initial analysis and defer any real analysis.outside of the glare of this license renewal proceeding runs afoul of NRC regulations and guidance.

C. The Issue Raised Is within the Scope Of the Proceeding New York and Riverkeeper have raiseda contention that Entergy's LRA does not contain an adequate aging management plan for key systems. structures. and components that will suffer.

the effects of rnetal fatigue, contrary to the requirements of 10 C.F.R. § 54.21(c)(1). Specifically, and as discussed more fully above, the Applicant's own data that it submitted in its initial LRA demonstrated .that (a) the pressurizer surge line piping for 1P2 and ]P3, (b) the reactor. coolant system piping charging system nozzle for IP2, and (c) the pressurizer surge line nozzle for IP3 have exceeded the applicable CUF criterion of 1.0 and thus are at a higher risk for cracking and failure due to metal fatigue. The Applicant's subsequent attempt to address this patent aging problem in LRA Amendment 2 fails to remove this issue from contention.

Moreover, in both the LRA and LRA Amendment 2, the Applicant improperly, and contrary to its legal obligations.set forth for thelicense renewal process, limitedthe universe of components for which it would conduct a TLAA. And, for all components, the Applicant did not perform TLAAs based on environmental (Fen) factors.

Thus, because the issue of metal fatigue of plant systems requires appropriate TLAAs and an aging management plan as contemplated by section 54.4, this contention is within the scope of this license renewal proceeding.

D. The Issue Raised Is Material to the.Findings that the NRC Must Make to Support the Action that is Involved in this Proceeding .

The issue of metal fatigue is material to this relicensingproceeding because, if the petitioners are correct in their contention, the NRC must make certain findings to protect the public health and.safety, and the environment, and either deny the.license renewal,or impose significant, modifications on the applicant's operations. The petitioners have demonstrated above that metal fatigue is a significant safety and public health issue. Inadequate management of the effects of metal fatigue on key reactor components could lead to cracks in these components, which could result in a breaking away of parts through the system,-if not ultimate failure of the component.

E. Concise Statement of the.Facts or Expert Opinion Supporting the Issue and on Which Petitioner Intends to Rely at the Hearing As more fully demonstrated in "B" above and incorporated by reference here, both Dr.

Lahey and Dr. Hopenfeld have opined that Entergy's approach in the LRA and LRA Amendment 2 does not adequately address the increased potential for cracks in components, which can lead to ultimate catastrophic failure. This potential catastrophic failure could occur during steady state, or more likely during anticipated or unanticipatedtransients. These experts have based their opinions upon Entergy's own submissions, their review of NRC regulations, NRC and industry guidance, and their extensive professional experience.

F. A Genuine Dispute Exists with the Applicant on a Material Issue of Law or Fact New York and Riverkeeper have provided sufficient information that a genuine dispute exists with the applicant on the material issue of the facts of whether Entergy has submitted an

adequate plan for managing the effects of aging caused by material fatigue on key reactor

.components.,

As demonstrated above, Entergy believes (1) that it need not provide CUF calculations as threshold values to then assess the need for an AMP; (2) that later calculations would qualify as "corrective action," instead of being a necessary first step in the TLAA; and (3) that itneed not specify what it plans to do to adequately manage the key reactor components that will suffer-the effects of metal fatigue during extended operations.

As demonstrated above, New York and Riverkeeper plainly dispute Entergy's on these material issues of fact andlaw. In admitting this contention, the Board agreed with the Petitioners. See Mem. & Order at 11 6.

In sum, Entergy and the Petitioners have expressed fundamental and key differences regarding what is required to comply with certain aspects of the Part 54 license renewal

.t requirements before the ASLB and the NRC decide a license renewal application.

Albany, New York August 21, 2008 Respectfully submitted, Sta te of New York ALEXANDER B. GRANNIS ANDREW M. CUOMO Commissioner Attorney General for the State of New York New York State Department o Environmental Conservation

'OA N'IEAR Y f%A-T-T HE*9* IOHN J.. POS "

Senior Counsel for Special Projects Assistant Attorney General New York State Department Office of the Attorney General of Environmental Conservation The Capitol Office of General Counsel Albany, New York. 12224 625 Broadway, 1 4ih Floor * (518) 402-2251 Albany, New York 12233-5500 iohn.sivo soaPg.state.ny. us (518) 402-9190 ilmatthe(azw.dec.state.ny.us

)

JOHN L. PARKER JANICE A. DEAN Region 3 Attorney Assistant Attorney General New York State Department Qffice of the Attorney General of Environmental Conservation 120 Broadway Region 3 Headquarters New York, NY 21 South Putt Comers Road (212) 416-8459 New Paltz, NY 12561-1620 ianice.dean(.noa i.state.nv.us (845) 256-3037 jlparker(72gAw.dec.state.nv.us Riverkeeper, Inc. "

DIANE CURRAN .. PHILLIP M{JS E GkAS .-

Harmon, Curran Spielberg, & Eisenberg, L.L.P. Staff Attorney 1726 M Street, N:W.;Suite 600. Riverkeeper, Inc.

Washington, D.C. 20036 .828 South Broadway (202) 328-6918 Tarrytown,,NY 10591" dcunranl(harnmoncUrTan.corn (914) 478-4501 (ext 224) nhil i-or.riverkeeDer.orR UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY LICENSING BOARD In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. August 21, 2008

-x CERTIFICATE OF SERVICE I certify that on August 21, 2008, the following two documents:

(1) the Consolidated Contention of Petitioners State of New York (No. 26/26-A) and Riverkeeper, Inc. (TC-1/TC-1A) - Metal Fatigue and Designation of the State of New York as Lead Litigator for this Consolidated Contention; and (2) the State of New'York's Response to the Board's Question Concerning Hearing Procedures and Motion that Board Apply Subpart "G" Discovery Procedures to Certain Admitted Contentions were served on the following judges, law clerks, offices, organizations, attorneys, parties, and/or petitioners via e-mail and U.S. Mail at the e-mail and street addresses that follow:

Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 3 F23 11545 Rockville Pike

-Two White Flint North Rockville, MD 20852-2738 11545 Rockville Pike Rockville, MD 20852-2738 Zachary S. Kahn, Esq.

Lawrence.McDade@nrc.gov Law Clerk Atomic Safety and Licensing Board Panel Richard E. Wardwell, U.S. Nuclear Regulatory Commission Administrative Judge Mailstop 3 F23 Atomic Safety and Licensing Board Panel Two White Flint North U.S. Nuclear Regulatory Commission 11545 Rockville Pike Mailstop 3 F23 Rockville, MD 20852-2738 Two White Flint North Zachary.Kahn@nrc.gov 11545 Rockville Pike Rockville, MD 20852-2738 Marcia Carpentier, Esq.

Richard.Wardwell@nrc.gov Law Clerk, Atomic Safety and Licensing Board Panel Kaye D: Lathrop, U.S.'Nuclear Regulatory Commission Administrative Judge Mailstop 3 E2B Atomic Safety and Licensing Board Panel Two White Flint North U.S. Nuclear Regulatory Commission 11545 Rockville Pike 190 Cedar Lane E. Rockville, MD 20852-2738 Ridgway, CO 81432. Marcia.Carpentier@nrc.gov

.Kaye. Lathrop@nrc.gov

Office of Commission Appellate Adjudication William C. Dennis, Esq. .

U.S. Nuclear Regulatory Commission Assistant General Counsel Mailstop 16 G4 Entergy Nuclear Operations, Inc.

One White Flint North 440 Hamilton Avenue 11555 Rockville Pike White.Plains, NY 10601 Rockville, MD 20852-2738 wdennis@entergy.com ocaamail@nrc.gov Robert D. Snook, Esq.

Office of the Secretary Assistant Attorney General Attn: Rulemaking and Adjudications Staff Office of the Attorney General U.S. Nuclear Regulatory Commission State of Connecticut Mailstop 3 F23 55 Elm Street Two White Flint North P.O. Box 120 11545 Rockville Pike Hartford, CT 06141-0120 Rockville, MD 20852-2738 robert.snook@po.state.ct.us hearingdocket@nrc.gov Justin D. Pruyne, Esq.

Sherwin E. Turk, Esq. Assistant County Attorney David E. Roth, Esq. Office of the Westchester County Attorney Marcia J. Simon, Esq. Michaelian Office Building Beth N. Mizuno, Esq. 148 Martine Avenue, 6th Floor Jessica A. Bielecki, Esq. White Plains, NY 10601 Office of the General Counsel jdp3@westchestergov.com U.S. Nuclear Regulatory Commission Mailstop 15 D21 Daniel E. O'Neill, Mayor One White Flint North James Seirmarco, M.S.

.11555 Rockville Pike Village of Buchanan Rockville, MD 20852-2738 Municipal Building set@nrc.gov 236 Tate Avenue der@nrc.gov Buchanan,, NY 10511-1298 jessica.bielecki@nrc.gov vob@bestweb.net bnml @nrc.gov marcia.simon@nrc.gov Daniel Riesel, Esq.

Thomas F. Wood, Esq.

Kathryn M. Sutton, Esq.. Jessica Steinberg, J.D.

Paul M. Bessette, Esq. Sive, Paget & Riesel, P.C.

Martin J. O'Neill, Esq. 460 Park Avenue Mauri T. Lemoncelli, Esq:. New York, NY 10022 Morgan, Lewis & Bockius LLP driesel@sprlaw.com 1111 Pennsylvania Avenue, NW jsteinberg@sprlaw.com Washington, DC 20004 ksutton@morganlewis.com Michael J. Delaney, Esq.

pbessette@morganlewis.com Vice President - Energy Department martin.o'neill@morganlewis.com New York City Economic Development mlemoncelli@morganlewis.com Corporation (NYCEDC) cadams@morganlewis.com 110 William Street New York, NY 10038 Elise N. Zoli, Esq. mdelaney@nycedc.com Goodwin Procter, LLP Exchange Place Arthur J. Kremer, Chairman 53 State Street New York Affordable Reliable Electricity Alliance Boston, MA 02109 (AREA) ezoli@goodwinprocter.com 347 Fifth Avenue, Suite 508 New York, NY 10016 kremer@area-alliance.org ajkremer@rmfpc.com

Manna Jo Greene, Director Phillip Musegaas, Esq.

Hudson River Sloop Clearwater, Inc. Victor Tafur, Esq.

112 Little .Market St. Riverkeeper, Inc.

Poughkeepsie, NY 12601 828 South Broadway Mannajo@clearwater.org Tarrytown, NY. 10591 phillip@riverkeeper.org Stephen Filler, Esq. vtafur@riverkeeper.org Board Member Hudson River Sloop Clearwater, Inc.

Suite 222 303 South Broadway Tarrytown, NY 10591 sfiller@nylawline.com Susan H. Shapiro, Esq.

Weschester Citizen's Awareness Network (WestCan), Citizens Awareness Network (CAN),etc.

21 Perlman Drive Spring Valley, NY 10977 mbs@ourrocklandoffice.com Nancy Burton 147 Cross' Highway Redding Ridge, CT 06876 NancyBurtonCT@aol.com Richard L. Brodsky, Esq.

Assemblyman.

Suite 205 5 West Main Street Elmsford, NY 10523 brodskr@assembly.state.ny.us richardbrodsky@msn.com Sarah L. Wagner, Esq.

Room 422 Legislative Office Building Albany, NY 12248 sarahwagneresq@gmail.com John LeKay FUSE USA 351 Dyckman Street Peekskill, NY 10566 fuse_usa@yahoo.com Diane Curran, Esq.

Harmon, Curran, Spielberg & Eisenberg, LLP Suite 600 1726 M Street, NW Washington, DC 20036 dcurran@harmoncurran.com

Executed on:

August 21,2008 Albany, New York 10 J Sipos Office of the Attorney General State of New York State Capitol New York, New York 12224-0341 John.Sipos@oag.state.ny,.us

ML082400524

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