ML083590028
| ML083590028 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 12/23/2008 |
| From: | Baty M, Jessica Bielecki, Subin L NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 06-849-03-LR, 50-271-LR, LBP-08-25, RAS m-382 | |
| Download: ML083590028 (7) | |
Text
December 23, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, )
L.L.C., and ENTERGY NUCLEAR ) Docket No. 50-271-LR OPERATIONS, INC. )
)
(Vermont Yankee Nuclear Power Station) )
NRC STAFFS REPLY TO VERMONT DEPARTMENT OF PUBLIC SERVICES ANSWER TO NRC STAFFS PETITION FOR REVIEW OF LBP-08-25 INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b)(3), the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to Vermont Department of Public Service [DPS]
Opposition to Petition for Review of Partial Initial Decision LBP-08-251 (Dec. 19, 2008)
(Answer). DPS Answer asserts that Commission review of the Partial Initial Decision (Ruling on Contentions 2A, 2B, 3 and 4), LBP-08-25, 68 NRC ___ (Nov. 24, 2008) (slip op.) (Decision or LBP-08-25) is not warranted because the Decision is correct. The Staff disagrees.
DISCUSSION In its Answer, DPS argues that Commission review of LBP-08-25 is not warranted.2 DPS asserts that the Boards view of the concepts of time-limited aging analyses (TLAA),
cumulative usage factors (CUF) and environmentally adjusted cumulative usage factors 1
NRC Staffs Petition for Review of the Licensing Boards Partial Initial Decision, LBP-08-25 (Dec. 9, 2008) (Petition).
2 DPS incorrectly asserts that the Staff is the only party to file a petition for review of LBP-08-25.
See Answer at 1. The State of Massachusetts filed, Commonwealth of Massachusetts Petition for Review of LBP-08-25 and Request for Consolidated Ruling (Dec. 2, 2008). Also, NEC has challenged the Decision, filing: [NEC] Motion for Reconsideration of the Licensing Boards Partial Initial Decision (Dec. 17, 2008), and [NEC] Motion to Extend Time to File Petition for Review (Dec. 8, 2008).
(CUFens) are supported by the Staffs own writings and actions. See Answer at 2. DPS also asserts that the Staff is now engaged in a semantic squabble in an attempt to recant its own admissions of law and fact. Answer at 2, 6. This is incorrect for four reasons.
First, the Staff is not attempting to recant its admissions with regard to the proper interpretation and application of 10 C.F.R. § 54.21(c)(1). The Staffs Petition is consistent with the statements and positions articulated in its Initial Statement of Position and July Briefs.3 Second, as the Staff noted in its Petition: regardless of the parties characterizations of what the CUFen analyses are in the course of this litigation, the Board must focus on the proper interpretation of the regulations. Petition at 18 n.38. Third, the Staff did not change its position on the proper interpretation of 10 C.F.R. § 54.21(c)(1) during the course of review. See Petition at 5 n.16, 16 n.37. Finally, DPS assertion that the Staff is engaged in a semantic squabble ignores the Boards erroneous factual findings with respect to the contents of Entergys license renewal application (LRA). Specifically, the Board failed to acknowledge that Entergys LRA, as amended, includes an aging management program (AMP), which is consistent with GALL.
See Petition at 5, 19, 23. The CUFen calculations Entergy preformed are part of the AMP and do not eliminate the need for an AMP. Id. at 14 n.35. Thus, DPS arguments in opposition to Commission review are unpersuasive.
DPS also argues that Commission review is not warranted because LBP-08-25 is consistent with the Commissions Oyster Creek4 decision. Answer at 2-3. Oyster Creek, 3
See NRC Staff Initial Statement of Position on NEC Contentions 2A, 2B, 3 and 4 (May 13, 2008)
(Staff Initial Position); NRC Staffs Brief in Response to Board Order (July 9, 2008) (Staff July 9 Brief);
NRC Staffs Reply Brief (July 15, 2008). The Staffs July Briefs were in response to the Board Order (Regarding the Briefing of Certain Legal Issues) (June 27, 2008) (unpublished).
4 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) et al.,
CLI-08-28, 68 NRC ___, slip op. (Nov. 6, 2008) (Oyster Creek).
however, does not stand for the proposition that CUFen calculations must be completed prior to issuance of a renewed license. DPS fails to note the Commissions clear statement: In addition to the regulatory requirement that the cumulative usage factor not exceed 1.0, the Staff guidance suggests that the cumulative usage factor be adjusted to account for the fact that the fatigue life of components in an operational environment . . . may be less than predicted by the ASME Code . . . . Oyster Creek 68 NRC at __, slip op. at 8 (emphasis added).5 As the Staff has noted, neither the Commissions regulations nor legal precedent require CUFen analyses.
See, e.g. Petition at 13.6 Thus, DPSs assertion that LBP-08-25 is consistent with Oyster Creek is incorrect. Rather, LBP-08-25 is without precedent and thus Commission review is warranted.7 In further opposition to Commission review, DPS incorrectly asserts that the Staff took out of context the Commissions statement: if an application for license renewal is submitted, and if the applicant commits to follow the guidance in GALL, that will be sufficient evidence to establish reasonable assurance with the licensing requirements. See Answer at 5. The Commission clearly stated that a license renewal applicants use of an aging management program identified in GALL constitutes reasonable assurance that it will manage the targeted 5
DPS also quotes a passage from the SRP to support is position. As the Staff previously explained, the SRP does not require CUFen calculations for license renewal. See Petition at 13-14, 21-23. See also Staff Exh. 19 (NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants at 4.3-2 to 4.3-3 (Sept. 2005)).
6 DPS also states that the Commission has acknowledged that a CUFen calculation is part of the analysis required by 10 C.F.R. § 54.21(c)(1)(ii). Answer at 3. This is irrelevant because Entergy has selected the 10 C.F.R. § 54.21(c)(1)(iii) option. See Petition at 5.
7 See Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-06-7, 63 NRC 165 (2006).
aging effect during the renewal period.8 LBP-08-25 calls into question this Commission policy and precedent by completely dismissing Entergys reliance on a GALL-consistent AMP.9 By dismissing Entergys reliance on an AMP, the Decision eliminates the 10 C.F.R. § 54.21(c)(1)(iii) option. See Petition at 18. Thus, contrary to DPSs assertion, LBP-08-25 questions Commission policy and precedent and Commission review of LBP-08-25 is warranted.
Next, DPS argues that LBP-08-25 is consistent with case law requiring that all key safety issues be resolved in a hearing. Answer at 7. DPS asserts that metal fatigue of the reactor pressure boundary is a key issue that, if challenged, must be resolved by the Board at hearing. Id. at 10. This is incorrect. As explained in the Petition at 21-23, neither the Commissions regulations and policies nor the ASME code require calculation of CUFens.
Instead, Staff guidance recommends that license renewal applicants consider CUFens when developing AMPs. In addition, the Commissions regulations allow a finding of reasonable assurance to be based on a licensees commitments to perform future actions. See Staff July 9 Brief at 7-8; Entergy July 9 Brief at 7.
Further, DPS questions whether the Staff has standing to file a petition. DPS Answer at 11-12. 10 Section 2.341(b) states that a party may file a petition for review and does not 8
AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) et al.,
CLI-08-23, 68 NRC ___, slip op. (Oct. 6, 2008).
9 Staff guidance documents designed to assist with compliance with Commission regulations are entitled to special weight. Private Fuel Storage, LLC. (Independent Spent Fuel Storage Installation),
CLI-01-22, 54 NRC 255, 264 (2001). GALL, in particular, is entitled to special weight because it was developed at the direction of the Commission using procedures similar to those for rulemaking. See Entergys Answer to Licensing Board Questions (July 9, 2008) at 12 (Entergy July 9 Brief).
Furthermore, the Commission-recognized purpose of GALL is to provide predictability and efficiency in the license renewal process. See id. LBP-08-25 undermines the purposes the Commission intended GALL to serve.
10 DPS asserts that the Petition is premature because the CUFen calculations required by LBP-08-05 will likely be completed before Commission disposition of the Petition. Answer at 12. These (continued. . .)
require a showing of injury. The Staff is a party. 11 DPS provides no authority to support its assertion that a showing of injury is required to file a petition for review pursuant to 10 C.F.R
§ 2.341(b). The case cited by DPS addresses party standing to intervene in a license transfer proceeding, not to file a petition for Commission review.12 Finally, the fact that participants in other license renewal proceedings have submitted a motion to file an amicus brief clearly indicates the importance of the issues raised in the Staffs Petition.13 Thus, Commission review is warranted.
CONCLUSION For the reasons stated above, the Staff again submits that Commission review of LBP-08-25 is warranted.
Respectfully submitted,
/RA by Mary C. Baty/
Lloyd B. Subin Mary C. Baty Jessica A. Bielecki Counsel for NRC Staff Dated at Rockville, Maryland this 23rd day of December, 2008
(. . .continued) calculations are, however, irrelevant to the Staff Petitions request for review of the clearly erroneous legal and factual findings in LBP-08-25.
11 DPS is only a party by virtue of its adoption of NEC Contentions 2, 3, and 4, but DPS never filed a motion to adopt NEC Contentions 2A and 2B. See Notice of [DPSs] Intent to Adopt Contentions and Motion for Leave to Allowed to Do So (June 5, 2006) at Certification of Counsel ¶1.
12 See Answer at 11 (citing Entergy Nuclear Operating, Inc. and Entergy Nuclear Palisades, LLC (Palisades Nuclear Plant) et. al, CLI-08-19, 68 NRC ___ (Aug. 22, 2008)).
13 Motion for Leave to Submit Brief Amicus Curiae in Opposition to Staffs Petition for Review and In Support of Intervenors State of Vermont and the New England Coalition (Dec. 19, 2008).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, )
LLC and ENTERGY NUCLEAR ) Docket No. 50-271-LR OPERATIONS, INC. )
)
(Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS REPLY TO DEPARTMENT OF PUBLIC SERVICES ANSWER TO NRC STAFFS PETITION FOR REVIEW OF LBP-08-25 in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commissions internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 23rd day of December, 2008.
Alex S. Karlin, Chair Office of the Secretary Administrative Judge Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: hearingdocket@nrc.gov William H. Reed* Zachary Kahn, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 1819 Edgewood Lane U.S. Nuclear Regulatory Commission Charlottesville, VA 22902 Washington, DC 20555-0001 E-mail: whrcville@embarqmail.com E-mail: zachary.kahn@nrc.gov Richard E. Wardwell Lauren Bregman, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, DC 20555-0001 Washington, D.C. 20555-0001 E-mail: rew@nrc.gov E-mail: lauren.bregman@nrc.gov Office of Commission Appellate Peter C.L. Roth, Esq*
Adjudication Office of the Attorney General Mail Stop: O-16G4 33 Capitol Street U.S. Nuclear Regulatory Commission Concord, NH 3301 Washington, DC 20555-0001 E-mail: peter.roth@doj.nh.gov E-mail: OCAAmail@nrc.gov
Raymond Shadis* Anthony Z. Roisman, Esq.*
37 Shadis Road National Legal Scholars Law Firm PO Box 98 84 East Thetford Rd.
Edgecomb, ME 04556 Lyme, NH 03768 E-mail: shadis@prexar.com E-mail: aroisman@nationallegalscholars.com David R. Lewis, Esq.* Sarah Hofmann, Esq.*
Matias F. Travieso-Diaz, Esq Director of Public Advocacy Elina Teplinsky, Esq Department of Public Service Blake J. Nelson, Esq 112 State Street - Drawer 20 Pillsbury Winthrop Shaw Pittman LLP Montpelier, VT 05620-2601 2300 N Street, NW E-mail: sarah.hofmann@state.vt.us Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com elina.teplinsky@pillsburylaw.com blake.nelson@pillsburylaw.com Matthew Brock*
Assistant Attorney General, Chief Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us
_________/RA/_________________
Mary C. Baty Counsel for NRC Staff