ML11305A269
| ML11305A269 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/01/2011 |
| From: | Brancato D, Musegaas P, Sipos J Riverkeeper, State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21352, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML11305A269 (22) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. November 1, 2011
x STATE OF NEW YORK AND RIVERKEEPERS JOINT REPLY IN SUPPORT OF ADMISSION OF PROPOSED CONTENTION NYS-38/RK-TC-5 Office of the Attorney General Riverkeeper, Inc.
for the State of New York 20 Secor Road The Capitol Ossining, New York 10562 State Street Albany, New York 12224
TABLE OF CONTENTS Page INTRODUCTION ...........................................................................................................................1 I. PROMISES TO DEVELOP AGING MANAGEMENT PROGRAMS ARE NOT SUFFICIENT TO MEET PART 54 REQUIREMENTS ..................................4 II. THE PROPOSED CONTENTION IS TIMELY AND ADMISSIBLE ..............................7 A. The Proposed Contention is Timely ........................................................................7 B. CUFen and Identifying Limiting Locations..............................................................8 C. RPV Internal Inspections and MRP-227................................................................10 D. WESTEMS Code and Entergy Modifications To It ..............................................13 E. New AMP for Steam Generator Divider Plates.....................................................18 CONCLUSION..............................................................................................................................20 i
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR because I feel so strongly that nuclear energy is probably the most important thing we are dealing with in our industrial life today, I want to be sure that the Commission has to do its business out of doors, so to speak, where everyone can see it.
Statement of Senator Clinton Anderson, 1957 Congressional Record 4093-94 (March 21, 1957).
INTRODUCTION Contrary to the intent of Senator Anderson when he supported the adoption of open and mandatory hearings prior to the issuance of licenses for commercial nuclear power plants, Entergy and NRC Staff (jointly referred to here as Opponents) are proposing that major portions of essential Aging Management Programs (AMPs) for critical safety components not be publicly disclosed prior to completion of these hearings, which provide the only meaningful opportunity for the public to influence the decisions of Entergy and Staff. That scheme is also contrary to well-established Commission and Court precedent that demand that definitive findings of safety be made before approval of any operating license.
The oppositions to Proposed Contention NYS-38/RK-TC-5 (Proposed Contention) are based upon a serious misapprehension of the thrust of that contention. The new information upon which this contention is based is that in each instance, deficiencies have been identified in the existing AMP which Entergy intends to address in future filings with NRC Staff, one of which future filings was given to the State one day before the deadline for filing this contention.
Some of these deficiencies were identified in New Yorks previously-admitted Contention 25 and New York and Riverkeepers combined Contention 26B/RK-TC-1B. Some of the 1
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR deficiencies were identified in studies and reports prepared by NRC or the industry. The Proposed Contention is focused on how Entergy and NRC Staff are now, for the first time, proposing to address these deficiencies and, where appropriate, also adds the bases for the Proposed Contention to the bases for previously admitted NYS-25 and NYS-26B/RK-TC-1B, which addition Opponents do not seem to oppose. So the issue is not whether previous promises to address certain AMP compliance by relying on yet-to-be-issued industry or Staff programs are objectionable, but whether the promises, revealed for the first time in the Supplemental Safety Evaluation Report (SSER) and the responses to the Requests for Additional Information (RAI) leading up to that SSER, to develop a program in the future to address a problem that Entergy is now, for the first time, agreeing to address, are sufficient to meet the requirements of the Atomic Energy Act, the Administrative Procedure Act, and NRC license renewal regulations.
Thus, when Opponents argue that the Proposed Contention is untimely because Entergy has previously indicated it will rely on yet-to-be-formulated industry guidance, they miss the point. New York and Riverkeeper (Intervenors) agree that in order to raise the challenge they now raise they must allege that the current AMP, unimproved by the promised future upgrade, is itself deficient and that a mere promise to address those deficiencies in the future by agreeing to abide by a yet-to-be-articulated program fails to meet the legal requirements. Some of those deficiencies, as Opponents concede, are contained in previously-admitted contentions, but the intent to rely on a promise to fix the problem in the future, rather than to only defend the current AMP, is a new circumstance revealed in the SSER. Some of the deficiencies, like relying on the 2
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR water chemistry program as the AMP to address primary water stress corrosion cracking (PWSCC) in the steam generator divider plates, are now being proposed to be addressed by a program, the details of which are unknown, and by an interim inspection program, the parameters of which are not revealed. Entergys proposal to deal with certain deficiencies in existing AMPs is the focus of the Proposed Contention. Entergys proposal was first revealed in RAIs and SSER acceptance of those RAI responses, and a challenge could not have been filed earlier.
Opponents both assert that the Propose Contention is untimely because the arguments advanced could have been made 4 years ago. However, as Entergy notes in its opposition its AMPs have been revised and augmented over the past four years. Entergy Opp. at 2. In fact, Opponents pleadings are full of historical explanations of the evolution of the AMPs from essentially no program, or no program details, when the License Renewal Application (LRA) was filed with merely a promise to comply with GALL or future industry guidance documents, to the current situation where, apparently in response to criticisms from Intervernors and their experts or to reactor operational data, Entergy is now promising to do better in the future. The problem is that, as the supporting evidence and expert declarations demonstrate, future actions to be taken are not detailed sufficiently to assess their adequacy and thus Entergy does not - and cannot - demonstrate that what it promises to do will actually result in an adequate AMP.
Opponents are urging that an intervenor should be precluded from filing a new contention based on information newly-disclosed when an applicant modifies its previously-identified AMP 3
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR and should, instead anticipate that such information would be filed and raise its issues at the outset. The absurdity of such a proposition is well-illustrated in this case where the gravamen of the original contentions that Opponents now assert should have alerted Intervenors to these issues was that Entergy had failed to provide the details of an AMP sufficient to allow a judgment to be reached on whether they had demonstrated compliance with Commission regulations. Once Entergy filed what it asserts are the required details for an AMP, the magnitude of those filings was sufficiently different from the LRA that NRC Staff deemed it necessary to issue a Supplemental Safety Evaluation Report.
I. PROMISES TO DEVELOP AGING MANAGEMENT PROGRAMS ARE NOT SUFFICIENT TO MEET PART 54 REQUIREMENTS Opponents challenge the legal basis for the Proposed Contention by asserting that the details that Intervenors are demanding involve implementation of AMPs and thus are not required prior to license renewal. The question of whether the missing components are essential parts of the AMP that must be disclosed and evaluated prior to license renewal or are merely implementation of otherwise well-defined AMP components is essentially a factual matter and not subject to resolution at the pleading stage for contentions. As the Commission has noted, at the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion. Rules of Practice for Domestic Licensing Proceedings -- Procedural Changes in the Hearing Process, 54 Fed. Reg. 33168, 33171 (Aug. 11, 1989).
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State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR Determining whether the contention is adequately supported by a concise allegation of the facts or expert opinion is not a hearing on the merits. The petitioner does not have to prove its contention at the admissibility stage.
The contention admissibility threshold is less than is required at the summary disposition stage. Nevertheless, while a Board may appropriately view [p]etitioners support for its contention in a light that is favorable to the [p]etitioner, a petitioner must provide some support for his contention, either in the form of facts or expert testimony.
Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 N.R.C. 43, 63 (July 31, 2008) (footnotes omitted); accord, Tennessee Valley Authority (Watts Bar Unit 2),
LBP-09-26, 70 N.R.C. 939, 954-55 (Nov. 19, 2009).
In addition, there is a practical aspect to the issue. Entergy has chosen to rely on what it has submitted as demonstrating compliance with Part 54. In the already-admitted contentions and in the Proposed Contention, Intervenors have identified missing elements in the AMPs as presented by Entergy and Intervenors experts have explained the importance of those missing elements in judging whether the AMP is sufficient to meet the standards. The Board will ultimately have to determine whether Entergy meets the standards. This is not the time to make that judgment. What is clear is that some items, like specific calculations for which the methodologies are well-defined, may not need to be completed prior to license renewal and that other items, like disclosure of the methodologies to be used in attempting to prove that the goals of the statute are met, must be disclosed if the AMP is to be meaningfully evaluated. Intervenors and Opponents have joined issue on whether the AMPs that are the subject of the Proposed Contention have sufficient detail to meet the regulations. That is all that is required at this stage for admissibility of the contention.
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State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR But, Opponents argue that merely saying that an AMP will comply with GALL, or merely committing to develop a program that will meet certain safety goals, is sufficient to meet the regulations. The Board and the Commission have rejected that theory and have instead placed the initial burden on the applicant to demonstrate in the first instance not only that it is committed to complying with GALL and safety goals, but also to demonstrate that the program it is adopting will in fact comply with GALL and achieve the goals listed there. See Entergy Nuclear Vermont Yankee (Vermont Yankee Nuclear Power Station), LBP-08-25, 68 N.R.C. 763, 870-871 (Nov. 24, 2008) (if an applicant submits an AMP that shows how it addresses the recommendations of NUREG-1801, then it will have provided the demonstration required of 10 C.F.R. § 54.21. . . . But we find that an applicant promising to prepare a program in the future consistent with NUREG-1801 or merely stating that its AMP meets NUREG-1801 without any specificity falls short of the required demonstration). The Proposed Contention is based on the very simple, albeit not simplistic, principle that where an AMP has a known shortcoming -
either identified by intervenors, admitted by the applicant, or identified by Staff - and the applicant proposes to address that shortcoming with a new or amended AMP, the applicant cannot rely on that new or amended AMP to defend against attacks on the original AMP, unless the applicant provides sufficient details of the new or amended AMP to allow it to be assessed by the Board. The Proposed Contention identifies several instances in which Entergy has promised to develop and implement an AMP in the future but has not provided essential details needed to determine whether, if the new or amended AMP is implemented, it will achieve the goals 6
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR required by Part 54. The challenge is not to the fact that the AMP will not actually be implemented until some future date. The challenge is to the fact that the details of the AMP will not be identified and justified until a later date.
At root, the controversy here is about whether (1) Staff and Entergy can continue with business as usual in which Entergy makes a promise to do the right thing, Staff accepts the promise, and in the future Staff asks whether Entergy has actually fulfilled its promise and commitment or (2) whether Entergy will have to provide the evidence to the Board in this AEA § 189 proceeding that it is not only promising to do the right thing but that it has provided the details of what it plans to do such that the Board can be confident that what Entergy plans to do will be the right thing. The principle underlying the second option is essentially trust but verify. The NRC regulations and the AEA require that verification and entrust the Board with the authority to make that determination where, as here, intervenors have raised legitimate safety concerns with specificity, bases and supporting evidence.
II. THE PROPOSED CONTENTION IS TIMELY AND ADMISSIBLE A. The Proposed Contention Is Timely The core of Opponents timeliness argument is that previous filings by Entergy could have been attacked on the basis that they merely relied on promises to take future action and thus a contention based on such a promise regarding different promises for different future actions is untimely. However, the thrust of the Proposed Contention is that for very specifically identified deficiencies in existing AMPs, which deficiencies have been previously identified by Intervenors 7
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR or are newly accepted in the SSER and the RAIs upon which it is based, Entergy is proposing to address the deficiencies, but only after the licensing renewal hearing process is completed. In a comparable situation, the Board has already ruled that so long as the proposed contention is focused on information revealed within the time-frame set by the Board for a timely contention to be filed, the contention will be deemed timely. See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-10-13, 71 N.R.C. __, slip op. at 26-28 (June 30, 2010) (Ruling on the Admissibility of New Yorks New and Amended Contentions 12B, 16B, 35, and 36).
B. CUFen and Identifying Limiting Locations Staff asserts the Proposed Contention challenge to the metal fatigue methodology because of the failure of Entergy to identify specific limiting locations at this time, but to merely commit to evaluate such locations in the future, is untimely. Staff Opp. at 8-11. The basis for its argument is that the LRA mentioned that Staff required that CUFen calculations should be done for license renewal. However, as Staff acknowledges, it was not until August 10, 2010 that Entergy updated its fatigue usage calculations (as to which Contention 26B/RK-TC-1B was filed and admitted) and then Entergy further updated its plans for the CUFen analysis by a letter dated March 28, 2011 in which it agreed, based on newly disclosed evidence of problems with nickel alloy components, it will, for the first time, review its CUFen calculations to see if the locations previously selected are the limiting locations. Staff Opp. at 8-11. However, that analysis will not occur until long after the license renewal hearings are completed and the Intervenors opportunity to challenge such analysis has ended. Staff Opp. at 9-10. Only when Entergy finally 8
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR agreed that the locations previously-selected might not be the limiting locations, based upon new information suggesting that there may be a problem with nickel alloy components and that it would make that determination in the future, did the Proposed Contention challenging Entergys decision to postpone selection of these locations and to fail to provide the details of the methodology it would use to do that review, become ripe.
Entergy for its part argues that all the details of how it will conduct the analysis to determine whether there are as yet unidentified limiting locations is contained in the LRA and/or the guidance documents referenced there and in its March 28, 2011 letter to Staff and all that is left is implementation, which is not an appropriate subject for license renewal hearings.
However, Entergy ignores this Boards 2010 ruling denying Entergys motion for summary disposition and admitting the State and Riverkeepers new contention. There, the Board held that challenges to the adequacy of the details provided in the LRA and the guidance documents were admissible. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), slip op.
(Nov. 10, 2010) (Ruling on Motion for Summary Disposition of NYS-26/26A/Riverkeeper TC-1/1A (Metal Fatigue of Reactor Components) and Motion for Leave to File New Contention NYS-26B/Riverkeeper TC-1B). Thus, Entergys defense of its stated intent to conduct a further analysis of the limiting locations for CUFen analyses is a defense already rejected by the Board as inadequate to preclude a contention or to obtain summary judgment following completion of the CUFen reanalysis. The issue raised by the Proposed Contention, is whether it is permissible to postpone identifying the details of the methodology to be used in determining whether there are 9
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR other limiting locations and postpone identifying those locations, the possibility of which has now arisen as a result of data discussed in the SSER, until after completion of the license renewal hearing. That claim is timely as it focuses on the new CUFen analysis plan from Entergy that is approved by Staff in the SSER.
Finally, it is GALL, with which Entergy is committed to comply, that requires that an acceptable AMP must include additional plant-specific component locations in the reactor coolant pressure boundary if they may be more limiting than those considered in NUREG/CR-6260. Entergy has now agreed it has work to do to determine whether the locations previously identified are the most limiting locations but believes it can avoid making that determination until after license renewal is completed. GALL says otherwise and requires as a condition of an acceptable AMP for metal fatigue that the limiting locations are identified in the plan, not that implementation of the plan will identify the limiting locations. Power Reactor Development Co.
- v. International Union of Elec., Radio and Mach. Workers, AFL-CIO, 367 U.S. 396, 397 (1961),
similar to GALL, requires that the definitive finding of safety be made before the license is approved. GALL makes clear that such a finding requires identification of the limiting locations to which the AMP will be applied if license renewal is approved.
C. RPV Internal Inspections and MRP-227 Entergy argues (Opp. at 10-11) that to the extent Contention 38/TC-5 challenges Entergys commitment to comply with the inspection requirements in MRP-227, it is untimely since Entergy had previously committed to comply with industry guidance on inspections.
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State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR Entergy Opp. at 10. However, NYS-25 amended bases did address the problems with MRP-227 (State of New Yorks Motion for Leave to File Additional Bases for Previously-Admitted Contention NYS-25 In Response to Entergys July 14, 2010 Proposed Aging Management Program for Reactor Pressure Vessels and Internal Components filed on September 15, 2010) and supplemented by additional supporting evidence on April 29, 2011 (Ltr. from AAG John Sipos to Licensing Board (ML11133A288)), and those bases have been accepted by the Board.
Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), slip op. at 27-28 (July 6, 2011)
Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions). The important new information revealed in the SSER was that NRC Staff has now confirmed the existence of several problems with MRP-227 which would need to be corrected in order to meet NRC Staff approval and Entergy agrees to make the modifications.
Thus, the inspection program with which Entergy agreed to comply, has not been approved by NRC Staff. Entergy could choose to stand on the MRP-227 as it exists and defend against NYS-25 by arguing that compliance with MRP-227 is sufficient to meet its obligations under Part 54. However, Entergy is now agreeing that it plans to modify its AMP to meet the modifications in MRP-227 that are implemented following Staff criticism of that document. But, Entergy did not address the specific deficiencies in the current version MRP-227 in its September 28, 2011 submittal. In short, instead of its previous commitment to comply with MRP-227, compliance with which left several serious flaws in the embrittlement aging program, as identified in New Yorks Supplemental Bases, Entergy is now saying it will address the NRC 11
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR Staff identified deficiencies in MRP-227 in the future, with a program whose details are unknown. That is new information and materially different than the previous commitment to comply with MRP-227.
On September 29, 2011, Entergy provided the States representatives with a copy of NL-11-107. Although Entergy asserts that its newly-modified plan for reactor vessel internals, provided to the State of New Yorks Representative only one day before the Proposed Contention was due, fully addresses all of the problems that Staff identified with MRP-227 as applied to Indian Point (Entergy Opp. at 25), as the attached Declaration of Dr. Richard Lahey demonstrates, some of the most critical decisions are to be made after conclusion of the licensing hearings. For example, no details are provided at this time for the timing of the NDT inspections or the criteria to be used in deciding on the timing. In addition, in some instances, instead of providing details, Entergy merely asserts [i]n accordance with SER Section 4.2.7, IPEC will submit this information to the NRC as part of the submittal to apply the approved version of MRP-227. See, e.g., compliance item 7 on page-22 of Section 3.6 of the September 28, 2011 supplemental submittal by Entergy. Thus, contrary to Entergys assertion in its Opposition that Entergy has submitted a plant-specific inspection plan that is based on MRP-227 and that includes the modifications requested by the Staff in its Safety Evaluation of MRP-227 there are substantial details that are yet to be provided and will not be provided until Entergy submits its information to apply the approved version of MRP-227. Entergy Opp. at 25. This is not surprising since it is apparent that the modifications to MRP-227 that Staff insists upon are not 12
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR trivial or minor and apparently will require some time by EPRI to develop the required changes.
Dr. Laheys declaration identifies other problems with Entergys newly- submitted plan of inspection based on MRP-227. For example, Entergy concedes that NDT inspections of 100% of the RPV internal structures, components and fittings of interest is not possible and that the indication of aging will be determined in some cases by failed or missing bolts. See Entergy September 28, 2011 submittal, Table 5-2 at page 36. This is the functional equivalent of testing the adequacy of the barn doors by counting the number of horses that are missing. Moreover, this strategy may make some sense for steady state operations, but it is not viable when considering core coolability subsequent to shock loads. See Attached November 1, 2011 Declaration of Dr. Richard Lahey.
In the final analysis, there is a factual dispute regarding the significance of the information that Entergy has indicated is to be filed in the future and a legal dispute as to whether such missing information can be provided after the completion of the license renewal proceeding or must be submitted during the hearing in order for Entergy to have the program details required to determine whether it has demonstrated that its AMP will meet the requirements of Part 54.
D. WESTEMS Code and Entergy Modifications To It NRC Staff asserts that the Proposed Contention is untimely because it focuses on user intervention portions of the WESTEMS Code, the proprietary Code used by Entergy to do the CUFen calculations, and that the user intervention is specifically identified in WESTEMS Code 13
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR Manual and, if objectionable, should have been objected to earlier. The Board will recall that in August 2010 Entergy actively opposed the States efforts to obtain the code and its manual during the lead up to Entergys summary disposition motion and the State and Riverkeepers supplemental contention -- claiming that the code and its documentation was out of scope of the then admitted contention NYS 26A/RK-TC-1A. Contrary to Senator Andersons expectation that Staff would do its business out of doors . . . where everyone can see it, NRC Staff did nothing to support the Intervenors request to obtain the code. The State only received a few pages of the codes hundreds of pages on September 3, 2010 - a few days before it was due to file a new contention. See, e.g., Declaration of Dr. Richard T. Lahey, Jr. (Redacted and Public Version) Sept. 9, 2010 at n. 1 (in ML102670665); Declaration of AAG Janice Dean, Sept. 12, 2010 (in ML103010518). It was not until January 2011, i.e., only after the Board admitted the supplemental contention, that Entergy provided the State with WESTEMS Code Manual Volume 2 (which is over 350 pages) and limited portions of WESTEMS Code Manual Volume 1. To date, the State has not been given the entire WESTEMS Code Manual. Nor has the State received an explanation of where, when, and why user intervention may have been used in the 2010 Refined analysis. Turning to the SSER, its associated RAIs, and Entergy promises as to what it might do in the future, the State has not yet received any explanation of where, when and why user intervention might be used in future Refined analysis.
Nonetheless, contrary to Staff assertions, Intervenors had long ago focused on the ability of the user to manipulate the CUFen calculations to essentially achieve any result needed to keep 14
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR the value at >1 and the lack of any specific criteria or guidelines to prevent Entergy from gaming the calculations. See, e.g., Declaration of Dr. Richard T. Lahey, Jr., in Support of the State of New Yorks Supplemental Contention 26-A (Apr. 4, 2008) at ¶ 5 (Entergys continued proposal of a more refined re-analysis of the most fatigued-limited components in IP2 and IP3 leaves too much opportunity for Entergy to reach a manipulated and predetermined result . . .
[T]here are too many opportunities for gaming the reanalysis, and the safety-related stakes are too high, to simply accept Entergys unspecified new analytical approach on faith); Petitioners State of New York and Riverkeeper, Inc. New and Amended Contention Concerning Metal Fatigue (Sept. 9, 2010) Bases at ¶ 25 (the methodology and process disclosed by Entergy and Westinghouse in connection with recent CUFen re-analysis of reactor component metal fatigue does not constitute a meaningful aging management program or comply with the parameters of the guidance and goals contained in NRC Staff guidance (GALL, NUREG-1801) . . . [because]
details regarding the methodologies used for selecting numerous parameters and assumptions that were critical to the CUFen evaluations, are not provided); Declaration of Dr. Joram Hopenfeld in Support of Petitioners State of New York and Riverkeeper, Inc.s New and Revised Contention Concerning Metal Fatigue (Sept. 9, 2010) at ¶¶ 10, 12 and 13; see also State of New York and Riverkeeper, Inc.s Joint Reply to Entergy and NRC Staffs Separate Answers to the State and Riverkeepers New and Amended Contention New York State 26B/Riverkeeper TC-1B (Metal Fatigue)(Oct. 12, 2010) at 15-19 for a fuller discussion of Intervenors previously raised concerns with the presence of uncontrolled user discretion or judgment that is built into 15
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR Entergys CUFen calculation methodology.
The new information contained in the RAIs and SSER is that Staff has apparently taken these concerns seriously and has demanded that, in the future, every time Entergy makes a revision to the WESTEMS results it must provide written explanation and justification of any user intervention. SSER at 4-2.1 Thus, it is not the fact of user intervention that forms the basis for this portion of the Proposed Contention, it is that while Entergy has agreed it will explain and justify such intervention, which commitment did not exist before and which information Intervernors have been insisting must be provided, Entergy will only provide the criteria to be used in justifying user intervention after the license renewal hearing is concluded.
The WESTEMS discussion in the SSER also highlights the distinction between developing an AMP and implementing the program. As noted above, Entergy is not intending to disclose the criteria it will use in determining when and how to exercise user intervention until after the license renewal hearings. The SSER accepts this proposal from Entergy noting that the implementation schedule also allows the applicant sufficient time to document and implement necessary procedures. It is the documenting of necessary procedures which must be disclosed at this time to assess whether, with their use, Entergy will be able to demonstrate that its AMP meets the requirements of Part 54. Intervenors concern with this scenario is that the implementation will occur after Entergy has already used WESTEMS and user intervention to 1
Significantly, Staff has not required that Entergy provide written explanation and justification of any user intervention regarding the prior calculations upon which the Application rests and which Intervenors continue to challenge as part of Contention NYS 26B/RK-TC-1B.
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State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR create the baseline calculations and to identify components CUFen values without providing the required explanation and justification for those calculations, thus calling into question the validity of the work already done, upon which Entergy relies. NYS 26B/RK-TC-1B challenges the adequacy of those calculations and argues that without an explanation and justification for how the values were obtained, Entergy fails to carry its burden of proof. That argument is substantially buttressed by the SSER and Entergy Commitment 44 recognizing the need for explanation and justification.
Entergy asserts that user intervention is authorized under WESTEMS Code Manual to only be used when appropriate. Entergy Opp. at 21-22. There is clearly a point of disagreement regarding the extent to which user intervention can compromise the effectiveness of the WESTEMS Code to properly calculate CUFen. Not surprisingly, Entergy asserts that it will not make these modifications in order to obtain technically unjustified results. Entergy Opp. at 22.
As the Commission has already declared [w]e do not simply take the applicant at its word.
Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-10-17, 72 N.R.C.
__, slip op. at 45 (July 8, 2010). In order to provide the assurance that modifications will not be used inappropriately, Entergy needs to disclose the criteria that will be used in determining whether a user intervention is warranted and the criteria that will be used to determine whether user intervention is appropriate in light of the intended function of the WESTEMS Code and the CUFen calculation. Since those criteria are not disclosed in either the Manual or in Entergys recent commitment to provide an explanation and justification for when it resorts to user 17
State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR intervention, its AMP cannot demonstrate compliance with the requirements of Part 54.
E. New AMP for Steam Generator Divider Plates Finally, with regard to PWSCC in the steam generator divider plates, NRC Staff again asserts that the contention is untimely because Entergy had previously asserted that it would follow any industry guidance that was approved by Staff. Staff Opp. at 13-15. However, Staff misses the point. Until issuance of the recent RAIs and the SSER, it was asserted, as Staff concedes, that the LRA cited the water chemistry program as the pertinent aging management program, and no further evaluation was recommended and, in general, Entergy would implement applicable staff-accepted industry guidelines. Staff Opp. at 14. In short, the AMP relying only on the water chemistry program was alleged to be adequate by Opponents. There was no reason to challenge the intent to use unspecified industry guidance since the AMP using the water chemistry program was asserted to be sufficient.
However, now the SSER reveals that the water chemistry program is not, in and of itself, sufficient to meet the requirements for an AMP for PWSCC in the steam generator divider plates and a specific addendum to that program is required. The elements of the addendum are inspections pending completion of industry guidance and then inspections following that guidance. This addendum, and its lack of specificity, coupled with the recognition that the initial AMP is no longer, on its own, sufficient to provide the necessary demonstration of compliance with Part 54 requirements, is the focus of this portion of the Proposed Contention. This represents a significant shift from the prior program and challenges to this addendum are timely.
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State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR Entergy argues that it has not conceded a problem with its prior AMP for this issue but, also, that it is now relying, in part, on its steam generator divider plate assembly inspections to assure that it meets Part 54 requirements. The Board can decide for itself, when Entergys witnesses testify, whether Entergy can defend its inconsistent positions in which it denies there is a problem with the prior AMP, that relied solely on the water chemistry program and, at the same time admits that it needs to add to its prior AMP a new inspection program to meet Part 54 requirements. What is not in dispute is that NRC Staff has directed Entergy to describe an inspection program (examination technique and frequency) to ensure that there are no cracks propagating into other items which are part of the reactor coolant pressure boundary (e.g.,
tubesheet and channel head) that could challenge the integrity of those adjacent items. SSER at 3-18. Rather than describe the inspection program, Entergy has chosen instead to postpone any such description of an inspection program until industry guidelines for such inspections have been developed and thus not to produce the inspection program until sometime prior to the completion of the first 10 years of extended operation for IP3 and at the time of the first refueling outage after license extension for IP2. Id. at 3-19. Even the interim inspection program to be used by Entergy pending development of industry guidance has not been disclosed but consists merely of a general commitment to engage in some inspection program whose goal would be to find cracks in divider plates. Id. Entergy has not demonstrated that the AMP for detecting PWSCC in the steam generator divider plates meets the requirements of Part 54.
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State of New York and Riverkeeper Reply in Support of Admission of NYS 38/RK-TC-5 NRC Docket Nos. 50-247-LR and 50-286-LR CONCLUSION For the above reasons, the State of New York and Riverkeeper respectfully request that the Board admit proposed Contention NYS-38/RK-TC-5.
Respectfully submitted, Signed (electronically) by Signed (electronically) by John J. Sipos Deborah Brancato, Esq.
Assistant Attorney General Phillip Musegaas, Esq.
Office of the Attorney General Riverkeeper, Inc.
for the State of New York 20 Secor Road The Capitol Ossining, New York 10562 Albany, New York 12224 (914) 478-4501 (518) 402-2251 john.sipos@ag.ny.gov November 1, 2011 20