ML091270859

Entergy'S Opposition to New England Coalition'S Motion to Hold Action on Proposed Contention in Abeyance Until Issuance of NRC Staff Supplemental Safety Evaluation Report

ML091270859
Person / Time
Site:	Vermont Yankee
Issue date:	05/01/2009
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-417
Download: ML091270859 (5)

Text

DOCKETED USNRC May 1, 2009 (12:57pm) May 1, 2009 OFFICE OF SECRETARY UNITED STATES OF AMERICA RULEMAKINGS AND ADJUDICATIONS STAFF 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 TO HOLD ACTION ON PROPOSED CONTENTION IN ABEYANCE UNTIL ISSUANCE OF NRC STAFF SUPPLEMENTAL SAFETY EVALUATION REPORT Pursuant to 10 C.F.R. § 2.323(c), Applicants Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively "Entergy") oppose the New England Coalition, Inc.'s ("NEC") "Motion to Hold in Abeyance Action on this Proposed Contention Until Issuance of NRC Staff Supplemental Safety Evaluation Report" ("NEC Motion to Hold Action in Abeyance"). The NEC Motion to Hold Action in Abeyance is part of NEC's filing dated April 24, 2009 entitled "New England Coalition, Inc.'s Motion for Leave to File a Timely New Contention and Motion to Hold in Abeyance Action on this Proposed Contention Until Issuance of NRC Staff Supplemental Safety Evaluation Report" ("NEC Motion"), which moves for the admission of a new contention challenging the "reanalysis of environmentally assisted metal fatigue for Recirculation Outlet (RO) and Core Spray (CS) nozzles" performed by Entergy in accordance with the Board's instructions. NEC Motion at 1; Partial Initial Decision (Ruling on

Contentions 2A, 2B, 3 and 4), LBP-08-25, 68 NRC _ (Nov. 24, 2008) ("LBP-08-25"), slip op.

at 66-67.'

In support of its Motion to Hold Action in Abeyance, NEC argues that the Audit Summary and Supplemental Safety Evaluation Report ("SSER") to be issued by the NRC Staff regarding the Staff's review of Entergy's confirmatory analyses of the RO and CS nozzles "will be helpful in both building a record in this docket and helpful to the Board and the Parties in evaluating the merits of NEC's proposed contention." NEC Motion at 7. NEC further argues that the Commission depends, and the Board relies on, the Staff "to assist in informing decisions regarding what should or should not go to hearing." Id. at 8.

On April 30, 2009 the NRC Staff filed its "Answer in Opposition to NEC Motion to Hold in Abeyance Action on Proposed Contention until Issuance of NRC Staff Supplemental Safety Evaluation Report" ("Staff's Answer"), which provides a cogent explanation of the reasons why the NEC Motion to Hold Action in Abeyance should be denied. Entergy wholly agrees with and supports the Staff's Answer.

NEC filed a very similar motion only a few weeks ago seeking an extension of time to file new contentions until fifteen days after the Staff issued its SSER and Audit Summary regarding the confirmatory analyses of the CS and RO nozzles. New England Coalition, Inc.

(NEC) Motion to Alter or Amend the Schedule in the Above Captioned Proceeding (March 6, 2009). That motion was denied by the Board. March 9, 2009 Order at.4. As that decision and others by the Board have made clear, the reviews by the Staff of Entergy' s license renewal Entergy will file a separate response opposing admission of the new contention propounded in the NEC Motion because the contention fails to meet the general admissibility requirements in 10 C.F.R. §2.309(f)(1), the additional requirements set forth in 10 C.F.R. § 2.309(f)(2) for the admission of contentions submitted after the initiation of a proceeding, the provisions of 10 C.F.R. § 2.309(c) governing untimely filings, and the very specific requirements for the admissibility of contentions challenging the new RO and CS calculations set -by the Board in LBP-08-25 and in its March 9, 2009 Order (Clarifying Deadline for Filing New or Amended Contentions).

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application are independent of the adjudicatory proceedings on the application and, after the issuance of the initial SER, the two proceed on separate schedules. LBP-08-25 at 67; Order (Granting Entergy's Motion for Clarification) (December 22, 2008) (time for NEC and other intervenors to file new contentions based on Entergy's new calculations begins when they are provided to the other parties, not when the Staff's SSER addressing the calculations is issued).

The Board's rulings are consistent with repeated Commission decisions emphasizing the separation between the Staff's review of a license application and the adjudicatory proceedings on the application. See, AmerGen Energy Co. LLC (Oyster Creek Nuclear Generating Station),

CLI-08-23, 68 N R.C. __ (Oct. 6, 2008), slip op. at 18; Dominion Nuclear Connecticut, Inc.

(Millstone Power Station, Unit 3), CLI-08-17, 68 N.R.C. __ (2008), slip op. at 8; Pa'ina Hawaii, LLC, CLI-08-3, 67 N.R.C. 151, 168 n.73 (2008). Accordingly, there is no basis for the Staff s SSER schedule to affect the Board's disposition of NEC's Motion.

Conclusion For the above stated reasons, the NEC Motion to Hold Action in Abeyance should be denied.

Respectfully Submitted, David R. Lewis Matias F. Travieso-Diaz Blake J. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1122 Tel. (202) 663-8000 Counsel for Entergy Dated: May 1, 2009 3

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 the foregoing "Entergy's Opposition to New England Coalition's Motion to Hold Action on Proposed Contention in Abeyance Until Issuance of NRC Staff Supplemental Safety Evaluation Report" 'were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 1 st day of May, 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, D.C. 20555-0001 Washington, D.C. 20555-0001 ask2@nrc.gov rew@nrc.gov

• Administrative Judge *Secretary William H. Reed Att'n: Rulemakings and Adjudications Staff 1819 Edgewood Lane Mail Stop 0-16 C I Charlottesville, VA 22902 U.S. Nuclear Regulatory Commission whrcvillegembarqmail.com Washington, D.C. 20555-0001 hearingdocket(&nrc.gov

• Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Mail Stop 0-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 OCAAmail@nrc. gov

• Lloyd Subin, Esq. *Sarah Hofmann, Esq.

• Susan L. Uttal, Esq. Director of Public Advocacy

• Maxwell C. Smith, Esq. Department of Public .Service Office of the General Counsel 112 State Street - Drawer 20 Mail Stop O-15-D21 Montpelier, VT 05620-2601 U.S. Nuclear Regulatory Commission Sarah.hofmann(astate.vt.us Washington, D.C. 20555-0001 LB S3 (@nrc.gov; susan.uttalanrc .gov; maxwell.smith(anrc.gov

• Anthony Z. Roisman, Esq.

• Matthew Brock National Legal Scholars Law Firm Assistant Attorney General 84 East Thetford Road Office of the Attorney General Lyme, NH 03768 One Ashburton Place, 18 th Floor aroismanlnationallegalscholars.com Boston, MA 01108 Matthew.Brock(&state.ma.us

• Peter L. Roth, Esq.

• Zachary Kahn 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(@doj.nh.gov Washington, D.C. 20555-0001 zachary.katmh(nrc.gov Raymond Shadis

• Lauren Bregman New England Coalition Pro Se Representative Atomic Safety and Licensing Board Panel Post Office Box 98 Mail Stop T-3 F23 Edgecomb, Maine 04556 U.S. Nuclear Regulatory Commission shadis@(prexar.com Washington, D.C. 20555-0001 lauren.bremnantnrc. aov

• & 4k44.

Matias F. Travieso-Diaz 2