ML090140078

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Entergy'S Opposition to New England Coalition'S Motion for Reconsideration of the Licensing Board'S Partial Initial Decision
ML090140078
Person / Time
Site: Vermont Yankee Entergy icon.png
Issue date: 01/07/2009
From: Travieso-Diaz M
Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271 -LR, ASLBP 06-849-03-LR, RAS M-392
Download: ML090140078 (12)
v • d • e


Text

DOCKETED USNRC -.

January 7, 2009 (1:09pm)

OFFICE OF SECRETARY January 7, 2008 RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271 -LR and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

ENTERGY'S OPPOSITION TO NEW ENGLAND COALITION'S MOTION FOR RECONSIDERATION OF THE LICENSING BOARD'S PARTIAL INITIAL DECISION Pursuant to 10 C.F.R. §2.323(e) and the Atomic Safety and Licensing Board's ("Board")

December 15, 2008 Order, Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear.

Operations, Inc. ("Entergy") hereby oppose New England Coalition's ("NEC") Motion for Reconsideration of the Licensing Board's Partial Initial Decision ("Motion").'i The Motion seeks reconsideration of significant portions of the Board's Partial Initial Decision (Ruling on Contentions 2A, 2B, 3, and 4), LBP-08-25, 68 N.R.C. __ (Nov. 24, 2008) ("Decision"). NEC's primary argument in its Motion is that the Board should have decided the issues the way NEC's experts opined instead of the way the Board did in its Decision. 2 In so doing, NEC ignores that one of the Board's fundamental functions is to weigh factual evidence. It is well established that NEC's Motion was filed twice. The revised version is saidto correct several errors in the initial filing. (Citations herein are to the revised version). The Motion is accompanied by affidavits from NEC witnesses and eight exhibits. It includes, inter alia, the Declaration of Dr. Joram Hopenfeld in Support of New England Coalition's Motion for Reconsideration (undated) ("Hopenfeld Declaration"); the Memorandum in Response to ALSB Partial Initial Decision, dated December 5, 2008 ("Witte Memorandum"); and the Memorandum in Response to ALSB Partial Initial Decision, dated December 4, 2008 ("Hausler Memorandum").

2 The Motion alleges: "The Board ruling contained findings and conclusions that unfairly favored, as more credible, the verbal opinions of less qualified witnesses unsupported by any documents or data, over the document and data supported written and oral testimony of much more highly qualified witnesses." Motion at 2.

Dr. Hopenfeld accuses the Board of "lack[ing] ... expertise to competently weigh conflicting testimony on all of the topics presented" and "lack[ing] a fundamental understanding of the principles of safety risk assessment, material fatigue, material corrosion and nuclear plant instrumentation." Hopenfeld Declaration at 5.

the standard for overturning Board factual findings "is quite high", particularly with respect to intricate factual findings based on expert witness testimony and credibility determinations.

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-03-8, 58 N.R.C.

11, 26-2 7 (2003). The Motion should also be denied because it fails to meet the requirements for reconsideration, includes inappropriate new claims and "evidence," and does not comply with procedural requirements. 3 Furthermore, the Motion fails to show compelling circumstances that' would warrant revisiting the Decision, and largely repeats the arguments that NEC has already made and the Board properly rejected.

I. APPLICABLE LEGAL STANDARDS The Commission's regulations provide that:

Motions for reconsideration may not be filed except upon leave of the presiding officer or Commission, upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid.

10 C.F.R. § 2.323(e).4 The compelling circumstances standard for granting leave to file a motion for reconsideration "is intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier."

Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,207 (Jan. 14, 2004). Reconsideration "should be an extraordinary action and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier." Id. Thus, a reconsideration motion cannot merely repeat prior arguments, but must provide a good reason for the adjudicator to change its mind. Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-35, 3 NEC's Motion, including the attachments, extends for more than one hundred pages, and thus greatly exceeds the ten page limit set forth in 10 C.F.R. § 2.323(e). On that basis alone, it should be dismissed as an improper filing.

Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-1 1, 53 N.R.C. 370, 393 (2001). The arguments NEC makes through witness declarations and exhibits appear calculated to circumvent the page limit.

4 NEC incorrectly refers to 10 C.F.R. § 2.345. Motion at 1. That rule applies to reconsideration of a Commission decision. 10 C.F.R. § 2.323(e) is the applicable regulation with respect to Board actions.

2

60 N.R.C. 619, 622 n. 13 (2004) ("LES"); Memorandum and Order (Denying NEC Motion for Leave to File Motion for Reconsideration of Contention 5) (Dec. 13, 2006) at 5. Nor can a motion for reconsideration present new arguments or evidence. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-22, 60 N.R.C. 379, 380-81, affirmed, CLI-04-36, 60 N.R.C. 631, 641, 645 (2004).

II. NEC HAS PROVIDED NO BASIS FOR RECONSIDERATION OF THE BOARD'S DETERMINATIONS ON NEC CONTENTIONS 2, 2A AND 2B NEC seeks reconsideration with respect to several of the Board's determinations on NEC Contentions 2, 2A and 2B on the basis of the Hopenfeld Declaration. Motion at 5-6. NEC does not explain in its Motion what it seeks reconsideration of, nor why its request for reconsideration meets the legal requirements that it demonstrate the existence of "compelling circumstances,"

"manifest injustice," or "decisive new information." This Board has previously ruled that failure to specify how these legal requirements are met would warrant denial of a reconsideration motion.5 That failure on NEC's part warrants denial of the Motion.

Nor does Dr. Hopenfeld's Declaration provide any basis for reconsideration. He re-argues that: (1) the Board should have accepted his views regarding the length over which turbulent flow entering a pipe will become fully developed (Hopenfeld Declaration at 2, 10-11);

(2) the Board failed to give proper weight to his CUFen calculations (Ld. at 5-8); (3) the Board's alleged focus on one aspect of metal fatigue related to the use of Green's Functions to the exclusion of other potential fatigue contributors was in error (id. at 8-10); and (4) the Board failed to consider dissolved oxygen data (id. at 11-12). In each instance, Dr. Hopenfeld repeats prior arguments and impermissibly challenges how the Board weighed the evidence.

Memorandum and Order (Denying DPS Motion for Leave to File Motion for Reconsideration of DPS Contention

2) (Dec. 13, 2006) at 5.

3

" Turbulent Flow/Heat Transfer: Dr. Hopenfeld disagrees with how the Board weighed the evidence with respect to where flow on a pipe becomes fully developed. See, e.g.

Hopenfeld Declaration at 2 ("Conversely, the Board cited and relied on Entergy's statements .... ."); 11 (". . . the ASLB accepted Entergy's position on the basis that their explanation... was more 'credible' than NEC's presentation."). Dr. Hopenfeld just repeats the assertions he made at the hearing. See Tr. at 1119-22, 1126 (Hopenfeld).

  • CUFen Calculation: Dr. Hopenfeld disagrees with the Board's determination that his CUFC, calculations were unsound. Hopenfeld Declaration at 5. He asserts that the Board erroneously believed that a CUFen greater than unity would result in a component failure.

Id. at 6. In doing so, Dr. Hopenfeld merely reiterates his testimony. Id. at 5 (citing Tr.

1128-36). Dr. Hopenfeld does not explain how the alleged misunderstanding of whether a component with a CUFen greater than unity would fail is material to the Board's rejection of his obviously unrealistic calculations, which used NUREG/CR-6909 worst-case Fen values when actual values were known and available. Decision at 56-57.

  • Board's Focus on Green's Functions: Dr. Hopenfeld asserts that the Board erred in focusing "only on one aspect associated with the application of the Green's function, i.e.,

the use of one stress component vs. the use of six stress components," and not giving due account to heat transfer and dissolved oxygen factors. Hopenfeld Declaration at 10.

However, the Board addressed Dr. Hopenfeld's heat transfer arguments (Decision at 46-

48) and those involving dissolved oxygen (Decision at 35-39).6 Dr. Hopenfeld also does not provide any argument that the Board's treatment of Green's Functions was incorrect.
  • Dissolved Oxygen: Dr. Hopenfeld repeats his argument that the CUFen calculations should use dissolved oxygen values taken from NUREGs 6909 and 6587. Hopenfeld Declaration at 11-12. This argument was already raised by Dr. Hopenfeld both before and during the hearing (NEC Exh. NEC-JH_03 at 16-17; Tr. at 970 (Hopenfeld)) and was considered and properly rejected by the Board (Decision at 38-39). Dr. Hopenfeld does not dispute that the values used in his calculations do not exist at VY (Tr. at 986-87 (Stevens)) or that bulk oxygen levels were time-averaged at VY before they were used as inputs to the fatigue analysis. Tr. at 1004-05 (Stevens).

NEC also asserts that the Board was misled by Mr. Fitzpatrick's testimony in one respect:

  • The service water lows [sic] into the cooling tower basin and over the steam condenser, as does mineral and halogen laden river water. Although he testified that the coolant was essential [sic] pure, as a former plant supervisor, Mr. Fitzpatrick knows otherwise.

6 Dr. Hopenfeld includes Exhibit JH-2, Comments on Proposed NRC Generic Communication Regulatory Issue Summary (RIS) 2008-XX "Fatigue Analysis of Nuclear Power Plant Components," dated May 1, 2008, as support for his assertion that other factors, other than the use of Green's Functions are relevant to CUFIn calculations. However, the document is not material to whether the Board appropriately addressed Green's Functions or other factors in the calculations at issue, as the Board addressed all issues raised by NEC. Neither NEC nor Dr. Hopenfeld indicate how the document demonstrates any error in the Decision.

4

Motion at 9. This is a new allegation, and as such not appropriate to raise in a motion for reconsideration. Millstone, LBP-04-22, supra. Furthermore, NEC does not describe how Mr.

Fitzpatrick's testimony relates to any determination by the Board. Indeed, the possibility of trace impurities was not identified at the hearing by Dr. Hopenfeld as being an important issue.7 In addition, NEC misunderstands the issue. First, NEC MR COPPER, Exhibit A to the Motion, has no apparent relation to the testimony quoted by NEC, nor does NEC provide any explanation of how it purports to relate to that testimony. Second, Mr. Fitzpatrick's testimony concerned a 2004 leakage of service water, whereas the NEC exhibit deals with a deviation from the BWRVIP-130 Action Level 1 for the feedwater system. Third, Mr. Fitzpatrick's testimony that the service water does not connect to the condenser under normal operations is undisputedly correct. NEC appears to confuse the service water system with the circulating water system.

Mr. Fitzpatrick's testimony is in no way misleading.

The other exhibits tendered in support of the alleged misrepresentation also demonstrate NEC's misunderstanding of VY's operations. NEC MR OP Report Exhibit B deals with a condenser tube leak occurring in 2008. It does not describe any contamination or impurities or posits the possibility that such a leak could cause impurities to be present during a transient.

NEC MR OP Report Exhibit C indicates that condenser cooling water is periodically chlorinated, not that there are impurities in the feedwater. NEC MR Cond. News Exhibit D is a newspaper article reporting a condenser leak. None of these documents demonstrate that impurities in excess of acceptable levels would be present during a transient, and none suggest that Mr.

Fitzpatrick's testimony was misleading.

7 See Tr. at 1011-13 (Hopenfeld); Tr. at 1093 (Wardwell). Also, NUREG-6909 makes it clear that it is very improbable that any impurity would be present during a transient event. Tr. at 1094 (Stevens).

5

Apart from this unfounded allegation, NEC and Dr. Hopenfeld have only repeated the arguments they have already made to the Board regarding Contentions 2, 2A and 2B. Indeed, in large measure NEC and Dr. Hopenfeld just challenge the Board's qualifications to address technical matters. See, e.g., Hopenfeld Declaration at 5 ("The ASLB's lack of rudimentary knowledge of these subjects is illustrated by several examples"); 7-8 ("The Board should be required to provide a technical explanation as to how the above decision was reached"); and 13

("Were the assumptions of Entergy and the ASLB resulting Findings of Fact to be reviewed by a competent technical panel, it is in my profession [sic] opinion they would not survive, without censure, a first reading.")). NEC has not demonstrated any good reason for the adjudicator to change its mind concerning NEC Contentions 2, 2A and 2B, as required. LES, 60 N.R.C. at 622 n.13.

III. NEC HAS PROVIDED NO BASIS FOR RECONSIDERATION OF THE BOARD'S DETERMINATIONS WITH RESPECT TO NEC CONTENTION 4 NEC also seeks reconsideration with respect to Board's findings on NEC Contention 4.

Motion at 5. NEC's Motion raises three issues with respect to NEC Contention 4: (1) the use of flow induced localized corrosion ("FILC") instead of Flow Accelerated Corrosion ("FAC"); (2) the need for reliance on CHECWORKS as a leading part of a FAC management plan; and (3) the adequacy of VY's FAC program. Motion at 6-7. NEC does not state how these allegations relate to the standard for clear and material error required for reconsideration to be granted or to the regulatory requirements for license renewal. NEC's witnesses provide a laundry list of alleged errors: (1) the Board did not understand the concept of core damage frequency ("CDF")

(Hopenfeld Declaration at 13); (2) the evidence concerning the effect of velocity on corrosion was improperly weighed (id.; Hausler Memorandum at 3-6); (3) the Board's definitions of corrosion versus erosion, while technically correct, have not been "quantitatively circumscribed" 6

(Hausler Memorandum at 1-3; -see also Witte Memorandum at 10-14); (4) CHECWORKS "must be ... the central tool of the FAC AMP" (Hausler Memorandum at 7-8; see also, Witte Memorandum at 4-5); (5) the Board improperly credited the VY FAC Program as effective (Witte Memorandum at 13-19); and (6) CHECWORKS reported data are "incredible" (Hausler Memorandum at 10). None of these allegations are valid or warrant reconsideration.

  • Core Damage Frequency: Dr. Hopenfeld asserts that the Board failed to properly credit his testimony (Tr. 1613-19) concerning CDF, but provides no explanation as to why his assertion is material, nor cites any part of the Decision as being in error as a result of his claims regarding CDF. These assertions are not material to the Board's determinations.
  • Effect of Velocity on Corrosion: Dr. Hopenfeld asserts that the Board improperly weighed evidence concerning the effect of velocity on corrosion by finding that "benchmarking is not an issue" with respect to CHECWORKS. Hopenfeld Declaration at 13. He fails to explain the significance of his assertion or how it relates to the Board's determination regarding benchmarking CHECWORKS.

Dr. Hausler does not refer to any error in the determinations by the Board regarding the effect of velocity on corrosion. He simply re-argues NEC's previously argument that the corrosion rate is not proportional to velocity. See, e.g*, Hausler Memorandum at 6. Dr.

Hausler, therefore, fails to demonstrate error or materiality.

  • Definition of Corrosion vs. Erosion: Dr. Hausler refers to the Board's definitions of corrosion and erosion and asserts that a "lack of quantitative specificity has led to the misunderstandings of the true nature of erosion-corrosion." Id. at 2. However, Dr.

Hausler's discussion of the phenomena is unrelated to any determination in the Decision and he concedes that, with respect to the possibility that erosion may occur due to the velocity of fluid flow, "[s]uch velocities do not generally occur in nuclear facility piping." Id. at 3; see also id. at 5. Dr. Hausler concludes that "all corrosion processes occurring in high energy piping .... are based on the dissolution mechanism of the iron oxide, except for some rare occurrences of impingement phenomena and cavitation." Id.

at 5-6. Dr. Hausler's conclusion is consistent with the Board's Decision. He does not identify an error or explain how his discussion relates to any determination by the Board.

" Use of CHECWORKS in a FAC Program: Both Dr. Hausler and Mr. Witte assert that CHECWORKS must be a central tool in a FAC management program.8 Both state that Mr. Witte's statements in his memorandum concerning CHECWORKS disregard the Board's ruling that Mr.

Witte is not qualified to testify concerning the "predictive accuracy of the CHECWORKS model, the requirements necessary to benchmark it, and other technical aspects of predicting and modeling FAC." (Order)

(Rulings on Motions to Strike and Motions in Limine) at 7-8 (July 16, 2008) ("July 16 Order"). Mr. Witte repeatedly opines about subjects upon which the Board ruled he is not qualified to testify. _ee, e.g., Witte Memorandum at 4 ("I believe the ASLB oversimplified when it held CHECWORKS as unreliable...."); 5 ("The ASLB settled incorrectly that limits of CHECWORKS as not reliable [sic] ..... "; I1 ("... the program for FAC is not designed to select wear points other than those attributed to flow accelerated corrosion."); 12 ("My own 7

the Board was in error in determining that CHECWORKS is only one of a number of methods for selecting inspection locations. See, e.g., Hausler Memorandum at 7; Witte Memorandum at 12. However, it is undisputed that the VY FAC program uses five criteria for selecting inspection locations, as described in Entergy NEC 4 Dir. at A40.

NEC's witnesses do not consider the other four bases for selecting inspection locations and reduce them to bald accusations that VY relies on engineering judgment. 9 See Hausler Memorandum at 7-8; see also Witte Memorandum at 7, 10-14. Thus, Dr.

Hausler's and Mr. Wite's concerns are neither material nor 10 do they demonstrate the requisite extraordinary circumstances for reconsideration.

" Effective FAC Program: Mr. Witte asserts that the FSER regarding the conformance of the VY FAC Program with the criteria contained in the aging management program

("AMP") is "in error." Witte Memorandum at 15. However, he presents no argument that the VY FAC program does not conform to the criteria contained in the AMP.

Rather, Mr. Witte asserts that an Entergy document titled Cornerstone Rollup, dated July 7, 2008, demonstrates that the VY FAC Program is not effective due to a "red" condition for personnel and a "yellow" condition with respect to two cited items. Id. at 15-16. The red condition with respect to personnel merely reflects the fact that Entergy had hired a new FAC engineer (see Tr. at 1574 (Fitzpatrick)). The yellow finding is incorrectly described by Mr. Witte as referring to a condition report ("CR"), when the open items are identified as not being CRs. Exhibit NEC MFR-3 at 5. Neither of these items relates to whether the VY FAC Program conforms to the criteria in the AMP. Nor does Mr. Witte explain how these items demonstrate that the VY FAC program is not effective." These assertions cannot be material to any determination by the Board in its Decision.

" CHECWORKS Results: Dr. Hausler asserts that the CHECWORKS results are "incredible" because "[a]n analysis of Checworks data contained in E-4-28, 29 and 30 indicates strongly that purported measurements... are not measurements." Hausler Memorandum at 8. However, Dr. Hausler misunderstands what he is reviewing in several respects. First, what he is reviewing are not "purported measurements" and are expertise in engineering programs leads me to conclude that crediting the selection and trending criteria for this degradation mechanism is entirely limited to Flow-accelerated corrosion .... ").

Likewise, Dr. Hausler's new testimony on CHECWORKS is also inconsistent with the Board's ruling denying a Staff motion to strike Dr. Hausler's pre-filed testimony. The Board determined that the motion should be denied, inter alia, because NEC had represented that Dr. Hausler's testimony dealt with FAC in general and with data interpretation and analysis, areas that do not require direct experience using CHECWORKS. July 16 Order at 12.

Dr. Hausler's Memorandum now claims an understanding of how CHECWORKS works and how it should be used in a FAC program, contrary to NEC's representations to the Board.

9 Although Mr. Witte spends considerable space opining about the need for a correct definition of FAC and other phenomena (Witte Memorandum at 13-14), he fails to acknowledge the testimony that various phenomena related to wall thinning are addressed by other programs at VY (See, e.g., Tr. at 1469 (Fitzpatrick)). Those phenomena involve different responses, and are not aging management issues. See, M.., Tr. at 1470-72 (Horowitz).

10 Neither NEC nor its various affiants has disputed Entergy's testimony at the hearing that only one-third of the inspection locations were based on the results from CHECWORKS with the majority of the locations being selected on the basis of industry/utility/plant experience, past inspections, and engineering judgment. Tr. at 1677-78 (Fitzpatrick); Decision at 132.

H Mr. Witte also asserts that these items contradict testimony provided by Entergy and NRC Staff but provides neither citation to what testimony he believes is contradicted nor explanation as to how it is contradictory.

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not presented as measurements, but are calculated values of predicted FAC wear by CHECWORKS. It is not "incredible," but expected, that if two calculations are made by CHECWORKS using exactly the same factors and assuming similar conditions, they would yield results that would consistently relate to one another. 12 Second, Dr. Hausler presumes that "[c]urrent should mean as determined between the previous and the current outage." Id. at 10. This is not what it means. Current means the calculated FAC rate for the last operating period under the operating conditions for that period. As stated in Entergy's testimony, every run of CHECWORKS estimates the lifetime wear of the component by summing the predicted wear for each operating period. 13 See, e.g., Tr. at 1447 (Horowitz).14 Third, Dr. Hausler misunderstands what the line correction factor is. It is calculated by CHECWORKS for each analysis run and cannot be "arbitrarily changed," as Dr. Hausler asserts (Hausler Memorandum at 11), by the user. Tr. at 1449 (Horowitz). Thus, Dr.

Hausler's misunderstanding of how CHECWORKS is used does not raise a material issue with respect to any Board determination.

Finally, Dr. Hausler's allegation is new and hence is not an appropriate issue for a motion for reconsideration. See Millstone, LBP-04-22, supra. In addition, Dr. Hausler acknowledges that he identified his concerns when preparing for the hearing. Hausler Memorandum at 10. If NEC felt that it had detected irregularities in the reported FAC data, it should have raised those concerns at the hearing so that Entergy's witnesses could have addressed them. To save such a baseless allegation for a motion for reconsideration is untimely as well as inappropriate. See 69 Fed. Reg. at 2,207.

IV. NEC HAS NOT DEMONSTRATED THAT ANY ALLEGED DEFICIENCIES IN THE CONDUCT OF THE HEARING WARRANT RECONSIDERATION NEC seeks reconsideration on the basis of allegations regarding the conduct of the evidentiary hearing, held in Newfane, Vermont, on July 21 - 24, 2008. Motion at 3. NEC asserts that the Board erred, inter alia, in: (1) requesting a presentation regarding CHECWORKS, but not allowing NEC to make such a presentation; (2) requesting a listing of the actual number of 12 See Tr. at 1442-48 (Horowitz); see als.o,Entergy Exh. E4-43. The components in an analysis line share the same conditions. Thus, differences from one data run to another will affect each component in the analysis line in a way that should be consistent across the analysis line.

13Average wear rate means the average wear rate calculated by dividing the total predicted wear by the total operating time.

14As Dr. Horowitz explained:

Using all the information available to the program, now the analyst tells the program to calculate for a given analysis line. That program will for each operating point, excuse me, for operating period calculate the corrosion rate multiply by the time and calculate the amount of incremental wear for that operating period. At the end of the process, the individual pieces will be summed up and the total predicted wear will be obtained. Tr. at 1447.

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plant transients to date; (3) allowing testimony regarding fatigue calculations; and (4) accepting Dr. Chang's testimony into the record. These rulings are not alleged to have been due to the misapprehension or disregard of a critical fact and therefore are not proper bases for a motion for reconsideration. instead, those rulings resulted in a more complete record, and were not errors supporting a motion for reconsideration.

NEC's assertions are also untimely. NEC had the opportunity to take exception to these rulings by the Board during the course of the hearing and failed to do so, thereby waiving any objections. Thus, NEC failed to object when the Board requested a listing of the actual plant transients, or when it allowed testimony on the calculations performed by Entergy prior to the hearing. With respect to the Chang testimony, the Board ruled from the bench on July 22, 2008, that it would admit the testimony for what it was worth. Tr. at 1175. Not only did NEC fail to object, but NEC counsel argued earlier that the Chang testimony was crucial and supportive of NEC's position in several respects. Tr. at 722-23 (Tyler). NEC may not be heard to object now.

V. CONCLUSION The compelling circumstances that must exist for entertaining a motion for reconsideration are conspicuously absent from NEC's Motion. The Motion should be denied.

Respectfully submitted, aviR. Lewis Matias F. Travieso-Diaz Blake J. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, N.W.

Washington, DC 20037-1128 Tel. (202) 663-8000 Counsel for Entergy Nuclear Vermont Yankee, Dated: January 7, 2009 LLC and Entergy Nuclear Operations, Inc.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271-LR and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of"Entergy's Opposition to New England Coalition's Motion for Reconsideration of the Licensing Board's Partial Initial Decision" dated January 7, 2009, were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, or with respect to Judge Elleman by overnight mail, and where indicated by an asterisk by electronic mail, this 7th day of January, 2009.

  • Administrative Judge *Administrative Judge Alex S. Karlin, Esq., Chairman Dr. Richard E. Wardwell Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 ask2gnrc. gov rewa~nrc.-gov
  • Administrative Judge *Secretary Dr. William H. Reed Att'n: Rulemakings and Adjudications Staff 1819 Edgewood Lane Mail Stop 0-16 Cl Charlottesville, VA 22902 U.S. Nuclear Regulatory Commission whicville@embarqmail.com Washington, DC 20555-0001 secy@nrc.gov, hearingdocket@nrc. gov
  • Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Mail Stop 0-16 Cl Mail Stop T-3 F23 U.S.. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 OCAAmail@nrc. gov
  • Lloyd Subin, Esq. *Sarah Hofmann, Esq.
  • Mary Baty, Esq. Director of Public Advocacy
  • Jessica A. Bielecki, Esq. Department of Public Service
  • Susan L. Uttal, Esq. 112 State Street - Drawer 20 Office of the General Counsel Montpelier, VT 05620-2601 Mail Stop O-15-D21 Sarah.hofinannastate.vt.us U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 LBS3@nrc.gov; mcbl(@nrc.gov; jessica.bielecki(anrc.gov; susan.uttalgnrc.gov
  • Anthony Z. Roisman, Esq. *Raymond Shadis National Legal Scholars Law Firm 37 Shadis Road 84 East Thetford Road PO Box 98 Lyme, NH 03768 Edgecomb, ME 04556 aroisman(anationallegalscholars.com shadis@prexar.com
  • Peter L. Roth, Esq. *Zachary Kahn, Esq.

Office of the New Hampshire Attorney General Atomic Safety and Licensing Board Panel 33 Capitol Street Mail Stop T-3 F23 Concord, NH 03301 U.S. Nuclear Regulatory Commission Peter.roth(idoi.nh.gov Washington, DC 20555-0001 zachary.kahn!nrc. gov

  • Matthew Brock, Esq.

Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, MA 02108 Matthew.Brock@state.ma.us Matias F. Travieso-Diaz 2

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