ML083590053
| ML083590053 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 12/23/2008 |
| From: | Subin L NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-271-LR, LBP-08-25, RAS M-380 | |
| Download: ML083590053 (6) | |
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 NECS 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 New England Coalitions [NEC] Response to NRC Staffs Petition for Review of the Licensing Boards [Board] Partial Initial Decision, LBP-08-251 (Answer) dated December 20, 2008.2 NECs Answer opposes the Staffs Petition for Review of LBP-08-25. 3 The Staff submits that NECs opposition to the Staffs Petition is without merit.
DISCUSSION In its Answer, NEC argues that the Staffs Petition should be denied. Answer at unnumbered page 2. NEC asserts the Commission should show deference to the ASLB panel and that the Staff has failed to provide a compelling case as to why the judgment of the Board 1
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).
2 The Staff notes that NEC sent two Answers via e-mail; the first was sent on December 19, 2008 at 11:19 PM and received on December 20, 2008 at 12:20 AM, and the second Answer was sent on December 20, 2008 at 10:27 AM and received at 10:28 AM. NEC claimed that the December 20 version is the one it intended to file. Therefore, the Staff is responding to the December 20 version.
3 NRC Staffs Petition for Review of the Licensing Boards Partial Initial Decision, LBP-08-25 (Dec. 9, 2008) (Petition).
should be set aside regarding the proper application of NRC regulation, precedence and guidance. See Answer at unnumbered page 5. This statement does not however, support NECs assertion that the Staffs Petition should be denied because the standard for Commission review of a licensing boards full or partial initial decision is not a compelling case. Pursuant to 10 C.F.R. § 2.341(b), the standard for Commission review is the existence of a substantial question with respect to 1) a clearly erroneous finding of fact; 2) a legal conclusion that is without precedent or is contrary to established law; 3) important question of law, policy or discretion; 4) prejudicial procedural error; or 5) any other consideration that the Commission deems to be in the public interest.
The Staffs Petition meets the Commissions standard for review.4 The Staff asserts that the Board made clearly erroneous findings of fact and conclusions of law in its Decision, including: that Entergy has not correctly addressed environmentally assisted fatigue through an aging management program; that environmentally assisted fatigue is a time-limited aging analysis (TLAA); and that an aging management program (AMP) may not include a calculation. Furthermore, the Boards Decision raises substantial questions of law and policy concerning the standards for the license renewal process. Therefore, the Staffs Petition meets the Commissions legal standards for granting a petition for review under 10 C.F.R. § 2.341(b).
NEC alleges that the Staff had the opportunity to bring its complaints to the Board in pre-hearing briefs and that the Staffs questions and concerns have been heard and should be raised in a Motion for Reconsideration. See Answer at unnumbered pages 5-6. This is irrelevant and in no way demonstrates that the Staffs Petition fails to meet the standard set 4
See also Entergys Answer in Support of NRC Staffs Position For Review of The Licensing Boards Partial Initial Decision, LBP-08-25 (Dec.19, 2008).
forth in 10 C.F.R. § 2.341(b). There is no requirement for a party to first seek reconsideration before the Board before it may file a petition for review with the Commission.5 Therefore, there is no basis for NECs assertions.
NEC also asserts that the Boards decision grants the Intervenors a small accommodation of protection of public health and safety by keeping the record open until after submission of the remaining reanalysis to recalculate the CUFens. See Answer at 6. However, this is immaterial as to whether the Staffs Petition meets that Commissions standard for review.
Further, NEC asserts that the Staff and the Applicant allegedly entered into some sort of deal to address the defects in the LRA after the proceeding has closed. See Answer at 6. This assertion is unsupported and has no bearing on whether Commission review of the Staffs Petition should be granted.
In addition, NEC further accuses the Staff of not assisting in providing a fair hearing process without specifically stating what regulation, rule or policy the Staff has violated by filing this petition. See Answer at 6-8. This is unrelated to the issue before the Commission, i.e.,
whether to grant the Staffs Petition for review.
Finally, NEC argues that if the Commission considers the Staffs Petition, the Commission should hold consideration of the Staffs Petition in abeyance until NEC has exhausted its allotted time in which to file a Petition for Review. Answer at 10. NEC asserts that this is necessary to avoid overlapping, confused, and duplicative litigation. Id. The Staff 5
See Staff Petition at 1, whereby In accordance with 10 C.F.R. § 2.341(b)(4), the Staff submits that Commission review is warranted because the Boards decision regarding Contentions 2, 2A and 2B raises substantial questions of law and policy that are without governing precedent, and the Board makes clearly erroneous findings of fact. Furthermore, Commission review is in the public interest because this decision raises issues that could affect pending and future license renewal determinations.
disagrees. NEC has filed a motion for reconsideration alleging that LBP-08-25 rests on clearly erroneous findings of fact and conclusions based on the erroneous findings of fact as well as procedural errors with respect to Contentions 2A, 2B, and 4. See [NEC] Motion for Reconsideration of the Licensing Boards Partial Initial Decision (Dec. 17, 2008) at 1-3.
However, unlike the Staffs Petition, NECs Motion for Reconsideration does not assert that the Boards Decision misinterpreted and misapplied the Commission regulations or that Boards decision challenges Commission policy and precedent. The issues NEC requests for reconsideration and the issues the Staff has request the Commission review are different.
Further, if the Staffs Petition is granted and the Commission finds error in the Boards decision, this could render NECs reconsideration requests moot. Thus, NECs arguments to hold the Staffs Petition in abeyance are unpersuasive.
CONCLUSION For the reasons stated above, the Staff submits that the Commission review of LBP-08-25 is warranted.
Respectfully submitted,
/RA/
Lloyd B. Subin Counsel for NRC Staff Dated at Rockville, Maryland this 23rd day of December, 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 NECS RESPONSE 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