ML110750381

Entergy'S Response to New England Coalition'S Motion for Stay and Request for Further Opportunity for Hearings

ML110750381
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	03/10/2011
From:	Doris Lewis Pillsbury, Winthrop, Shaw, Pittman, LLP, Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee
To:	NRC/OCM
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-463
Download: ML110750381 (6)

Text

• DOCKETED March15, 2011 (8:30 a.m.) _

OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF March 10, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

) Docket No. 50-271-LR Entergy Nuclear Vermont Yankee, LLC )

and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR

)

(Vermont Yankee Nuclear Power Station) )

ENTERGY'S RESPONSE TO NEW ENGLAND COALITION'S MOTION FOR STAY AND REQUEST FOR FURTHER OPPORTUNITY FOR HEARINGS Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.

("Entergy") hereby oppose the motion filed by the New England Coalition ("NEC") today seeking to stay Commission decisions and requesting further opportunity for hearings.' The NEC Motion is frivolous and appears designed simply to disrupt and delay the Affirmation Session scheduled for this afternoon. As such, it is an outrageous abuse of the administrative process.

The NEC Motion provides no grounds to stay the Commission's decision, scheduled for affirmation today, on NEC's November 12, 2010 Petition for Review of LBP-10-19, which denied as untimely NEC's previous motion to reopen the record to admit a new contention 2

challenging Vermont Yankee's aging management program for non-EQ inaccessible cable.

Motion to Stay Any and All Final Commission Decisions in the Matter of 50-271 LR Pending NRC Disposition of Energy License Renewal Application Amendments Filed After Close of Record and New England Coalition's Request for a Hearing on Entergy's License Renewal Amendments Filed After Close of Record (March 10,2011)

("NEC Motion").

2 Petition for Commission Review of ASLBP Memorandum and Order (Ruling on New England Coalition Motion to Reopen and Proffering New Contention) (Nov. 12, 2010).

NEC offers no explanation why the Commission should not proceed with its decision on that prior appeal. Nor does NEC make any attempt to address the Commission's standards for a stay.

Likewise, NEC does not proffer any motion to reopen the record or specify any new contentions, but instead requests an opportunity to submit some unspecified new contentions in the future. The Commission has previously made clear that such "place holder" motions are impermissible.

[O]ur regulations, do not contemplate such filings, which are tantamount to impermissible "notice pleadings."

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 N.R.C. 115, 120 (2009) (footnote omitted). The Commission has also made clear that it will not accept eleventh hour motions to restart proceedings that make no attempt to address the standards for reopening.

We cannot consider a last-second reopening of an adjudication and a restart of Licensing Board proceedings based on a pleading that is defective on its face.

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-06-4, 63 N.R.C. 32, 38 (2006).

Further, there is not even the slightest prospect that NEC could satisfy the standards for a motion to reopen based on the License Renewal Application ("LRA") supplements that Entergy filed on September 3, 2010, December 21, 2010, and February 4, 2011. Those LRA supplements merely enhanced the aging management program for non-EQ inaccessible cable in response to the NRC Staff recommendations during the development and issuance of Revision 2 to the Generic Aging Lessons Learned ("GALL") Report. 3 As the Commission has held, 3 The September 3, 2010 LRA Supplement expanded the aging management program for non-EQ inaccessible cable to include low-voltage cable, increased the minimum frequency for manhole inspections, and increased the minimum frequency of cable testing, consistent with the reconmmendations of the NRC Staff in its draft revision 2

enhancements to a program cannot be considered "new" information for the purposes of supporting a new contention. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 273-74 (2009).4 Nor does NEC provide any explanation why it has waited over six months from the first LRA supplement, nearly three months from the second, and over a month from the third, to suggest the need for further proceedings. The obvious implication is that timing of the current motion is dictated solely by NEC's desire to derail the affinration session.

Finally, NEC's suggestions that an applicant cannot respond to new NRC guidance or questions after the close of the record, or that if it does, the proceeding must somehow restart, is truly frivolous. NRC Staff review very often continues after the close of the adjudicatory record (which may occur early in a proceeding if contentions are rejected, resolved in summary disposition, or adjudicated after release of the initial SER). Further, responses to NRC questions and provision of new commitments do not require a proceeding to re-noticed or restarted.

For all of these reasons, Entergy strenuously urges the Commission to proceed with the affirmation session and not allow NEC's dilatory motion to interfere with the resolution of this to the GALL Report. Letter, Entergy to USNRC, License Renewal Application Supplemental Information, BVY 10-050, dated September 3, 2010 (ADAMS Accession No. ML102500065). This LRA Supplement was included as an exhibit to Entergy's Answer Opposing New England Coalition's Motion to Reopen" (Sept. 14, 2010), and thus provided to NEC six months ago. The December 21, 2010 LRA Supplement added a further commitment to perform event driven inspections of manholes, in response to an added recommendation in the final version of GALL Rev. 2. Letter, Entergy to USNRC, License Renewal Application Supplemental Information, BVY 10-058, dated December 21, 2010 (ADAMS Accession No.ML103630357). The February 4, 2011 LRA Supplement provided further specification of these commitments in response to NRC Staff questions. Letter, Entergy to USNRC, License Renewal Application Supplemental Information, BVY 11-010, dated February 4, 2011 (ADAMS Accession No. ML110400113).

This is because, if the enhanced program is inadequate, then, "as a matter of law and logic," the unenhanced program in the prior version of the LRA "was afortioriinadequate." CLI-09-7, 69 N.R.C. at 274. Moreover, in Oyster Creek, the Commission expressed agreement with the policy concern that "conferring an automatic right to file a new contention whenever an applicant improves an existing program might have 'the perverse effect of discouraging applicants from enhancing safety, health, and environmental programs on a voluntary basis."' Id.

Here, GALL Rev. 2 and Entergy's LRA supplements present only enhancements, expanding the scope of the program to include inaccessible low-voltage cable, increasing the minimum frequency of testing cables and inspecting manholes, and adding event driven inspections.

3

proceeding. This proceeding is now in its sixth year, and as the Commission has previously held, "applicants for a license are ... entitled to a prompt resolution of disputes concerning their applications." Statement of Policy on the Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 19 (1998). Here, the absence of a final decision in this proceeding is not only causing substantial harm to Vermont Yankee's ability to do business as a merchant plant and acting as a detriment to employee retention, recruitment and morale, but also could prejudice proceedings under Vermont law related to the plant's continued operation. 5 Indeed, Entergy surmises that the potential prejudice to the Vermont proceedings is the likely reason for NEC's baseless motion and attempt to delay and derail a final NRC decision.

Respectfully Submitted, David R. Lewis Matias F. Travieso-Diaz PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8000 Counsel for Entergy March 10, 2011 5 See 30 V.S.A. § 248(e)(2). See also Vermont Public Service Board ("PSB") Docket No. 7440, available at htto://psb.verniont.f-ov/docketsandprojects/electric/7440.

4

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

) Docket No. 50-271 -LR Entergy Nuclear Vermont Yankee, LLC )

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 Response to New England Coalition's Motion for Stay and for Further Opportunity for Hearings," dated March 10, 2011, 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 11th day of March, 2011.

• Hon. Gregory B. Jaczko *Hon. Kristine L. Svinicki Chairman Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 chairmandnrc.gov cmrsvinicki nanrc.gov

• Hon. George Apostolakis *Hon. William D. Magwood, IV Commissioner Conmmissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 cmrapostolakis(rnrc.gov cimrmagwood~tnrc.gov

• Hon. William C. Ostendorff *Office of Commission Appellate Adjudication Commissioner Mail Stop 0-16 Cl U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 cmrostendorffl(nrc.gov OCAAmail()nrc.gov

• Office of the Secretary of the Commission *Administrative Judge Attn: Rulemakings and Adjudications Staff Dr. Richard E. Wardwell Hearing Docket 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 hearingdocketODnrc.gov Richard.Wardwell C'nrc.gov

• Administrative Judge *Administrative Judge Alex S. Karlin, Esq., Chairman William H. Reed Atomic Safety and Licensing Board 1819 Edgewood Lane Mail Stop T-3 F23 Charlottesville, VA 22902 U.S. Nuclear Regulatory Commission whrcville(-bembaromail.com Washington, DC 20555-0001 Alex.Karlininrc.gov Atomic Safety and Licensing Board *Raymond Shadis Mail Stop T-3 F23 New England Coalition U.S. Nuclear Regulatory Commission Post Office Box 98 Washington, DC 20555-0001 Edgecomb, ME 04556 shadisvprexar.corn

• Lloyd Subin, Esq. *Anthony Z. Roisman, Esq.

• Susan L. Uttal, Esq. National Legal Scholars Law Finn

• Maxwell C. Smith, Esq. 84 East Thetford Road

• Mary B. Spencer, Esq. Lyme, NH 03768 Office of the General Counsel aroismaniunationallegalscholars.com Mail stop O- 15-D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Lloyd. Subin(a,,nrc.gov; Susan.Uttal(a,nrc.gov; Maxwell. Smith ,nrc.gov; Mary. SpencerOnrc.gov

• Sarah Hofmann, Esq. *Peter L. Roth, Esq.

Director of Public Advocacy Office of the New Hampshire Attorney General Department of Public Service 33 Capitol Street 112 State Street - Drawer 20 Concord, NH 03301 Montpelier, VT 05620-2601 Peter.Rothnaidoj.nh.gov Sarah.Hofmann(,state.vt.us

• Matthew Brock, Esq. *Ann Hove, Law Clerk Assistant Attorney General Atomic Safety and Licensing Board Panel Office of the Attorney General Mail Stop: T-3 F23 One Ashburton Place, 18 th Floor U.S. Nuclear Regulatory Commission Boston, MA 02108 Washington, DC 20555-0001 Matthew.BrockCdstate.ma.us Ann.Hove(anrc. zov David R. Lewis 2