ML103080978
| ML103080978 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/04/2010 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | |
| SEC RAS | |
| References | |
| ASLBP 07-858-03-LR-BD01, RAS E-420 Indian Point | |
| Download: ML103080978 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-0247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) November 4, 2010 ORDER (Ruling on Riverkeepers Motion to Compel)
On August 3, 2010, Riverkeeper, Inc. (Riverkeeper) moved to compel Entergy Nuclear Operations, Inc. (Entergy or the Applicant) to disclose certain documentation related to the implementation of the CHECWORKS computer code at Indian Point.1 Entergy responded on August 13, 2010, opposing the Motion.2 For the reasons stated below, the Board denies Riverkeepers Motion.
The Board admitted Riverkeeper Contention TC-2, which alleged, in pertinent part, that Entergys program for managing flow-accelerated corrosion (FAC) relies on results from CHECWORKS without benchmarking or a track record of performance at IPECs power uprate levels.3 As a result of that action by the Board, Entergy had an 1
Riverkeeper, Inc. Motion to Compel Disclosure of Documents Relevant to Riverkeeper Contention TC-2 (Aug. 3, 2010) at 1 [hereinafter Riverkeeper Motion].
2 Entergys Answer to Riverkeeper, Inc.s Motion to Compel Disclosure of Documents (Aug. 13, 2010) at 10 [hereinafter Entergy Answer].
3 LBP-08-13, 68 NRC 43, 177 (2008).
obligation, pursuant to 10 C.F.R. § 2.336, to provide documents and data in its possession relevant to this contention.
The NRCs mandatory disclosure requirements set out in Section 2.336 are drawn from Rule 26 of the Federal Rules of Civil Procedure4 which, in general, permits a tribunal to order discovery for good cause, . . . of any matter relevant to the subject matter involved in the action, and does not require such information to necessarily be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.5 The NRC mandatory disclosure regime provides that, other than the NRC Staff, all parties to a proceeding shall . . . disclose and provide:
. . . [a] copy, or a description by category and location, of all documents and data compilations in the possession, custody, or control of the party that are relevant to the contentions.6 Moreover, the disclosing party shall certify that all relevant materials required by [Section 2.336] have been disclosed, and that the disclosures are accurate and complete as of the date of the certification.7 However, a Board may limit discovery if:
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the proceeding, the parties resources, the importance of the issue in the 4
See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2194 (Jan. 14, 2004).
Because the standard governing mandatory disclosures in Subpart L in 10 C.F.R.
§ 2.336(a) derives from Rule 26 and the language governing discovery in Subpart G appears to also come from Rule 26, we find the standard defining what is relevant for discovery in Subpart G partially applicable to the standard of what is relevant and thus subject to mandatory disclosure under Subpart L. But see infra note 7.
5 Fed. R. Civ. P. 26(b)(1).
6 10 C.F.R. § 2.336(a)(2)(i) (emphasis added).
7 Id. § 2.336(c).
proceeding, and the importance of the proposed discovery in resolving the issues.8 Since the admission of this contention, Entergy and Riverkeeper have exchanged letters and engaged in discussions that have resulted in the production of documents potentially relevant to Riverkeeper Contention TC-2 and have also resulted in various representations by Entergy regarding the availability of other documents requested by Riverkeeper.9 As the Board understands the current status of production, Entergy has, without conceding relevance, represented that based on a search of the electronic and paper records that are within its care, custody, or control, it has provided to Riverkeeper all Indian Point Unit 2 (IP2) CHECWORKS documents of which it is aware.10 Based on this representation, Riverkeeper understands, as does the Board, that Entergy is not in possession of CHECWORKS documentation related to IP2 that were generated prior to the year 2000.11 Accordingly, it is the Boards understanding that Riverkeepers Motion is limited to information relating to Indian Point Unit 3 (IP3).
With regard to IP3, Entergy has represented that it has provided to Riverkeeper over 10 years worth of FAC outage reports (from 1999 to the present)and all reports that were prepared since Entergy purchased IP3 in 2001.12 More specifically, Entergy has provided the CHECWORKS reports from the two outages immediately preceding the 2005 uprate at IP3 (the 2001 and 2003 outages) and the three outages that occurred 8
10 C.F.R. § 2.705(b)(2)(i)-(iii); cf. Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii).
9 Riverkeeper Motion at 2-4; Entergy Motion at 2-6.
10 See Riverkeeper Motion, Attach. E, Letter from Kathryn M. Sutton and Paul M.
Bessette, counsel for Entergy Nuclear Operations, Inc., to Deborah Brancato, counsel for Riverkeeper, Inc. at 3 (July 14, 2010) [hereinafter July 14, 2010 Letter from Entergy, to Riverkeeper]. See also Entergy Answer at 5.
11 See Riverkeeper Motion at 4 n.9.
12 Entergy Answer at 5.
since the uprate at IP3 (the 2005, 2007, and 2009 outages).13 In addition, Entergy has agreed to provide Riverkeeper with any additional IP3 CHECWORKS reports prepared prior to 2001 that are in Entergys possession, custody, or control.14 With regard to other documents generated at IP3 prior to 1999, Entergy argues that locating such documentation, to the extent it exists, would be extremely burdensome and would be far removed from the actual claims and defenses involved in this action.15 We agree.
Riverkeeper Contention TC-2 questions the sufficiency of Entergys Aging Management Plan (AMP) addressing the effects of FAC which, according to Riverkeeper, relies on the results from CHECWORKS without the benchmarking or track record of performance at Indian Point Energy Centers (IPEC) power uprate levels.16 However, the data generated during seven post-power uprate outages at Indian Point is already available to assess the ability of CHECWORKS to account for changed plant conditions.17 Moreover, Riverkeepers expert does not explain how the additional historical data generated several years or more prior to the power uprates at IPEC and requested by Riverkeeper in its Motion to Compel could impact his opinion regarding the adequacy of Entergys AMP to address FAC in the wake of such uprates. Likewise, Riverkeeper in its Motion to Compel does not explain how this historical data could lead to the discovery of evidence that would be relevant to the decisions to be made by this Board regarding the adequacy of Entergys FAC AMP. Entergy has produced several 13 Entergy Answer at 8.
14 Id. at 10. The Boards ruling on Riverkeepers Motion to Compel assumes that these additional CHECWORKS reports will be provided by Entergy to Riverkeeper.
15 Id. at 5-6, 9.
16 Riverkeeper Motion at 2, 4-5.
17 Riverkeeper Opposition to Entergys Motion for Summary Disposition of Riverkeeper Technical Contention 2 (Flow-Accelerated Corrosion), Attach. 2, Declaration of Dr.
Joram Hopenfeld at ¶ 29 (Aug. 16, 2010).
years of CHECWORKS data generated prior to the power uprates at IPEC18 and several years of CHECWORKS data generated since the power uprates that could be relevant to evaluating the accuracy of the CHECWORKS code in predicting or tracking future FAC.19 Riverkeeper has not demonstrated how the additional data it seeks would add, even marginally, to our assessment of CHECWORKS as a predictive tool. In a Motion to Compel, the moving party must, inter alia, demonstrate that the potential value of the requested data outweighs the burden and expense of production. Riverkeeper has not met this burden.
The record reflects that Entergy does not have ready access to the data requested and thus has not, and cannot, rely on it to provide the track record for its AMP that Riverkeeper claims is lacking.20 Nor, to the extent that Entergy must demonstrate that its use of CHECWORKS is adequately benchmarked, could this data which the Applicant has not reviewed be of practical use to either party in this proceeding.
Likewise, given that this historical data was not generated by Entergy, and cannot be searched for electronically, we conclude that it would be unreasonably burdensome to require Entergy to search for and produce this data which could not, in the Boards view, impact our decision on the merits of this contention.
18 See Riverkeeper Motion at 3.
19 See July 14, 2010 Letter from Entergy, to Riverkeeper at 2.
20 See Riverkeeper Motion at 4.
Accordingly, Riverkeepers Motion to Compel is denied.
It is so ORDERED.
THE ATOMIC SAFETY AND LICENSING BOARD21
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE
/RA, by Edward R. Hawkens for/
Dr. Kaye D. Lathrop ADMINISTRATIVE JUDGE
/RA, by Edward R. Hawkens for/
Dr. Richard E. Wardwell ADMINISTRATIVE JUDGE Rockville, Maryland November 4, 2010 21 Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for Riverkeeper, Inc.; (5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Sean Murray, the Representative for the Village of Buchanan; and (10) Counsel for the New York City Economic Development Corporation.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR
) 50-286-LR
)
(Indian Point Nuclear Generating Station, )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Ruling on Riverkeepers Motion to Compel) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.
Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission Mail Stop O-7H4M Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop T-3F23 Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Sherwin E. Turk, Esq.
Administrative Judge Beth N. Mizuno, Esq.
Lawrence G. McDade, Chair David E. Roth, Esq.
Brian Harris, Esq.
Administrative Judge Andrea Z. Jones, Esq.
Richard E. Wardwell Michael G. Dreher, Esq.
Karl Farrar, Esq.
Administrative Judge Brian Newell, Paralegal Kaye D. Lathrop 190 Cedar Lane E.
Ridgway, CO 81432 Joshua A. Kirstein, Law Clerk
Docket Nos. 50-247-LR and 50-286-LR ORDER (Ruling on Riverkeepers Motion to Compel)
William C. Dennis, Esq. Andrew M. Cuomo, Attorney General Assistant General Counsel John J. Sipos, Assistant Attorney General Entergy Nuclear Operations, Inc. Mylan L. Denerstein 440 Hamilton Avenue Deputy Assistant Attorney General White Plains, NY 10601 Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224 Kathryn M. Sutton, Esq. Joan Leary Matthews, Esq.
Paul M. Bessette, Esq. Senior Attorney for Special Projects Martin J. ONeill, Esq. New York State Department Counsel for Entergy Nuclear Operation, Inc. of Environmental Conservation Morgan, Lewis & Bockius, LLP 625 Broadway, 14th Floor 1111 Pennsylvania Avenue, NW Albany, New York 12233-5500 Washington, DC 20004 Michael J. Delaney Robert D. Snook, Esq.
Vice President, Energy Department Office of The Attorney General New York City Economic Development State of Connecticut Corporation (NYCEDC) 55 Elm Street 110 William Street P.O. Box 120 New York, NY 10038 Hartford, CT 06141-0120 Arthur J. Kremer, Chairman Stephen C. Filler, Board Member New York Affordable Reliable Electricity Hudson River Sloop Clearwater, Inc.
Alliance (AREA) 724 Wolcott Ave.
347 Fifth Avenue, Suite 508 Beacon, NY 12508 New York, NY 10016 2
Docket Nos. 50-247-LR and 50-286-LR ORDER (Ruling on Riverkeepers Motion to Compel)
Sean Murray, Mayor Manna Jo Greene, Environmental Director Kevin Hay, Village Administrator Hudson River Sloop Clearwater, Inc.
Village of Buchanan 724 Wolcott Ave.
Municipal Building Beacon, New York 12508 236 Tate Avenue Buchanan, NY 10511-1298 Ross Gould, Board Member Hudson River Sloop Clearwater, Inc.
270 Route 308 Rhinebeck, NY 12572 Counsel for the Town of Cortlandt Nancy Burton, Esq.
Thomas F. Wood, Esq. Connecticut Residents Opposed Daniel Riesel, Esq. to Relicensing of Indian Point (CRORIP)
Jessica Steinberg, J.D. 147 Cross Highway Sive, Paget & Riesel, P.C. Redding Ridge, CT 06876 460 Park Avenue New York, NY 10022 Elise N. Zoli, Esq. Melissa-Jean Rotini, of counsel Goodwin Proctor, LLP Assistant County Attorney Exchange Place Office of Robert F. Meehan, 53 State Street Westchester County Attorney Boston, MA 02109 148 Martine Avenue, 6th Floor White Plains, NY 10601 FUSE USA Westchester Citizens Awareness Network John LeKay (WestCan), Citizens Awareness Network, Heather Ellsworth Burns-DeMelo (CAN), et al Remy Chevalier Susan H. Shapiro, Esq.
Bill Thomas 21 Pearlman Drive Belinda J. Jaques Spring Valley, NY 10977 351 Dyckman Street Peekskill, New York 10566 3
Docket Nos. 50-247-LR and 50-286-LR ORDER (Ruling on Riverkeepers Motion to Compel)
Philip Musegaas, Esq. Richard L. Brodsky, Esq.
Deborah Brancato, Esq. Member of Assembly Riverkeeper, Inc. 92nd Assembly District, 20 Secor Road State of New York Ossining, NY 10562 5 West Main Street Suite 205 Elmsford, NY 10523 Sarah L. Wagner, Esq.
Legislative Office Building, Room 422 Albany, NY 12248
[Original signed by Christine M. Pierpoint]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 4th day of November, 2010.
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