ML11325A433
| ML11325A433 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/21/2011 |
| From: | O'Neill M Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21461, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML11325A433 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) November 21, 2011 APPLICANT'S MOTION FOR CLARIFICATION OF LICENSING BOARD MEMORANDUM AND ORDER ADMITTING CONTENTION NYS-38/RK-TC-5 Pursuant to 10 C.F.R. § 2.323(a), Entergy Nuclear Operations, Inc. (Entergy) respectfully requests clarification of the Atomic Safety and Licensing Board's (Board) November 10, 2011 Order, in which the Board admitted New York States and Riverkeepers (jointly, Intervenors) new contention NYS-38/RK-TC-5.1 Specifically, Entergy seeks clarification regarding (1) the scope of the new contention and (2) the schedule for filing evidentiary submittals on the contention.
I. LEGAL STANDARD The purpose of a motion for clarification is to explain or clarify something ambiguous or vague, not to alter or amend.2 In NRC adjudications, a party may seek clarification of a ruling on the scope of an admitted contention and related matters.3 This Board previously has granted such motions for clarification.4 1
Licensing Board Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5) (Nov. 10, 2011) (unpublished)
(November 10, 2011 Order).
2 See United States v. Philip Morris USA. Inc., No. No. 99-2496, 2011 WL 2469733, at *2 (D.D.C. June 22, 2011) (quoting Resolution Trust Corp. v. KPMG Peat Ma-wick, No. 92-1373, 1993 WL 211555, at *2 (E.D.Pa. June 8, 1993)).
3 See, e.g., Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 374-384, 388 (2002) (addressing the applicant's request that the Commission clarify its intent, as set forth in a prior Commission order (CLI-02-17), regarding the scope of an admitted contention).
4 See, e.g., Licensing Board Memorandum and Order (Granting Entergys Request for Clarification) (Aug. 10, 2011)
(unpublished).
II. REQUESTS FOR CLARIFICATION A. Scope of the Contention As It Relates to Entergys Commitment to Inspect Steam Generator Divider Plate Assemblies During the Period of Extended Operation Entergy first seeks clarification regarding the scope of NYS-38/RK-TC-5 insofar as it pertains to managing the potential aging effect of primary water stress corrosion cracking (PWSCC) in steam generator divider plate assemblies. In particular, Entergy seeks confirmation that the new contention is limited to the adequacy of Commitment 41 as an additional action that Entergy will take to address a specific issue raised by the Staff as a result of recent foreign operating experience. 5 Namely, in a request for additional information, the Staff asked, among other things, that Entergy describe the actions that it will take to confirm the absence of PWSCC indications during the period of extended operation.6 Entergy submitted Commitment 41 to address that request.
This interpretation of the contention is reasonable and reflected in Intervenors own pleadings. Whether correct or not, Intervenors construed Commitment 41 as a commitment by Entergy to develop an inspection program or plan and crafted their contention as a challenge to Entergys purported reliance on that unspecified inspection program (which they also refer to as an AMP).7 For example, they stated that:
The issue is not conducting the inspections and taking any required corrective action before license renewal, but developing the inspection 5
Commitment 41 states:
IPEC will inspect steam generators for both units to assess the condition of the divider plate assembly. The examination technique used will be capable of detecting PWSCC in the steam generator divider plate assembly. The IP2 steam generator divider plate inspections will be completed within the first ten years of the period of extended operation (PEO). The IP3 steam generator divider plate inspections will be completed within the first refueling outage following the beginning of the PEO.
NUREG-1930, Safety Evaluation Report, Supp. 1, Related to the License Renewal of Indian Point Nuclear Generating Unit Nos.
2 and 3, Docket Nos. 50-247 and 50-286, Entergy Nuclear Operations, Inc., App. A at A-23 (Aug. 30, 2011) (SSER),
available at ADAMS Accession No. ML11242A215.
6 See id. at 3-18 to 3-19.
7 State of New York and Riverkeepers New Joint Contention NYS-38/RK-TC-5 at 2, 7-8 (Sept. 30, 2011).
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plan and presenting it prior to license renewal in order to demonstrate whether the plan will be consistent with the standards in GALL and NRC Regulations.8 Similarly, in their November 1, 2011 Reply, Intervenors stated that Entergy has not demonstrated that the AMP for detecting PWSCC in the steam generator divider plates [via inspections of the divider plates in accordance with Commitment 41] meets the requirements of Part 54.9 The recently admitted contention makes no particularized challenge to any other Entergy program aside from the purported unspecified or interim inspection program Intervenors allege Entergy has created in response to a Staff RAI in Commitment 41.10 Entergy submits that clarification from the Board is warranted to avoid the parties submittal of testimony that is either too broad or too narrow in scope, particularly if the parties have disparate views regarding the scope of the issue admitted for hearing.
B. Timing of Evidentiary Submittals Related to NYS-38/RK-TC-5 Entergy also seeks confirmation from the Board that any evidentiary filings on NYS-38/RK-TC-5, including those related to the PWSCC issue, are to be submitted in accordance with the amended schedule approved by the Board in its November 17, 2011 Order.11 That Order directs the Intervenors to submit written statements of position, written direct testimony with supporting affidavits, and exhibits by December 22, 2011, and directs Entergy and the NRC Staff to submit their corresponding evidentiary filings by February 29, 2012.12 It carves out no exceptions (explicit or implicit) to these newly-established filing deadlines. Moreover, prior to admitting NYS-38/RK-TC-5, the Board stated that the parties 8
Id. at 8 (emphasis added).
9 State of New York and Riverkeepers Joint Reply in Support of Admission of Proposed Contention NYS-38/RK-TC-5 at 19 (Nov. 1, 2011).
10 Id. at 18-19.
11 Licensing Board Order (Granting Unopposed Motion by the State of New York and Riverkeeper, Inc. to Amend the Scheduling Order) (Nov. 17, 2011) (unpublished) (November 17, 2011 Order).
12 See id. at 1.
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should not assume that the filing deadline for their statements of position and direct testimony on the new contention will be extended beyond the dates established by the Board.13 C. Treatment of Embrittlement and Metal Fatigue Issues Raised in the New Contention and Timing of Related Evidentiary Submittals As Entergy previously has noted, NYS-38/RK-TC-5 also raises issues related to Entergys IPEC Reactor Vessel Internals Program and Fatigue Monitoring Program, which are being addressed in previously admitted contentions NYS-25 and NYS-26B/RK-TC-1B.14 Specifically, the recently admitted contention raises issues related to: (1) the identification of the most limiting locations for environmentally-assisted metal fatigue evaluations, (2) the nature of user intervention permitted by the WESTEMSTM computer code, and (3) Entergys reliance on guidance in Electric Power Research Institute (EPRI) report MRP-227, Pressurized Water Reactor Internals Inspection and Evaluation Guidelines.15 Entergy seeks confirmation that Board expects the parties to address these three issues in their evidentiary filings on contentions NYS-25 and NYS-26B/RK-TC-1B, as applicable, and in accordance with the amended schedule approved by the Board in its November 17, 2011 Order. Entergy respectfully submits that this approach is both feasible and preferred given the significant substantive overlap with the issues raised in the previously-admitted contentions and the economy that would achieved by avoiding duplicative filings.
13 Licensing Board Order (Denying New Yorks Motion for an Extension of Time) at 5 (Oct. 7, 2011) (unpublished).
14 See Applicants Answer to New York States and Riverkeepers Joint Motion to Admit New Contention NYS-38/RK-TC-5 at 18-19 (Oct. 25, 2011). Intervenors testimony on those contentions is due on December 22, 2011, per the Boards November 17, 2011 Order.
15 See November 10, 2011 Order at 10-11, n.47.
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III. CONCLUSION Entergy respectfully requests that the Board grant the relief requested above to clarify the scope of recently admitted contention NYS-38/RK-TC-5 and the timing of any related evidentiary submittals.
Respectfully submitted, Signed (electronically) by Martin J. ONeill Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Martin J. ONeill, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.oneill@morganlewis.com William C. Dennis, Esq.
Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis@entergy.com Counsel for Entergy Nuclear Operations, Inc.
Dated in Washington, D.C.
this 21st day of November 2011 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) November 21, 2011 MOTION CERTIFICATION Pursuant to 10 C.F.R. § 2.323(b), counsel for Entergy certifies that he made a sincere effort to contact the other parties in this proceeding on November 18, 2011, to explain to them the factual and legal issues raised in this Motion, and to resolve those issues, and he certifies that his efforts have been unsuccessful. The NRC Staff supports Entergys Motion for Clarification.
NYS stated that it does not oppose Entergys submitting a motion for clarification, but does not concur with the arguments that it understands to animate the motion. Riverkeeper does not oppose Entergys submitting a motion for clarification and takes no position with respect to the stated bases for the Motion. NYS and Riverkeeper reserve their right to file an answer.
Signed (electronically) by Martin J. ONeill Martin J. ONeill, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana St., Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 739-5001 E-mail: martin.oneill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) November 21, 2011 CERTIFICATE OF SERVICE I hereby certify that on November 21, 2011, a copy of the Applicants Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5 was served electronically with the Electronic Information Exchange on the following recipients:
Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.
U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: Kaye.Lathrop@nrc.gov)
(E-mail: Lawrence.McDade@nrc.gov)
Administrative Judge Office of the Secretary Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)
Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)
Office of Commission Appellate Adjudication Josh Kirstein, Law Clerk U.S. Nuclear Regulatory Commission Katherine Tucker, Law Clerk Mail Stop: O-7H4M Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail.resource@nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)
(E-mail: Katie.Tucker@nrc.gov)
Sherwin E. Turk, Esq. Melissa-Jean Rotini, Esq.
Beth N. Mizuno, Esq. Assistant County Attorney David E. Roth, Esq. Office of Robert F. Meehan, Esq.
Brian G. Harris, Esq. Westchester County Attorney Andrea Z. Jones, Esq. 148 Martine Avenue, 6th Floor Office of the General Counsel White Plains, NY 10601 Mail Stop: O-15D21 (E-mail: MJR1@westchestergov.com)
U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)
(E-mail: Beth.Mizuno@nrc.gov)
(E-mail: david.roth@nrc.gov)
(E-mail: brian.harris@nrc.gov)
(E-mail: andrea.jones@nrc.gov)
Manna Jo Greene Thomas F. Wood, Esq.
Stephen C. Filler Daniel Riesel, Esq.
Karla Raimundi Victoria Shiah, Esq.
Hudson River Sloop Clearwater, Inc. Sive, Paget & Riesel, P.C.
724 Wolcott Ave. 460 Park Avenue Beacon, NY 12508 New York, NY 10022 (E-mail: mannajo@clearwater.org) (E-mail: driesel@sprlaw.com)
(E-mail: karla@clearwater.org) (E-mail: vshiah@sprlaw.com)
(E-mail: stephenfiller@gmail.com)
Joan Leary Matthews, Esq. John Louis Parker, Esq.
Associate Commissioner Office of General Counsel, Region 3 Hearings and Mediation Services NYS Dept. of Environmental Conservation New York State Department of 21 S. Putt Corners Road Environmental Conservation New Paltz, New York 12561-1620 625 Broadway, 14th Floor (E-mail: jlparker@gw.dec.state.ny.us)
Albany, NY 12233-1500 (E-mail: jlmatthe@gw.dec.state.ny.us)
John J. Sipos, Esq. Michael J. Delaney, Esq.
Charlie Donaldson Esq. Vice President -Energy Department Assistant Attorneys General New York City Economic Development Office of the Attorney General Corporation (NYCDEC) of the State of New York 110 William Street New York, NY 10038 The Capitol mdelaney@nycedc.com Albany, NY 12224-0341 (E-mail: John.Sipos@ag.ny.gov) 2
Phillip Musegaas, Esq. Daniel E. ONeill, Mayor Deborah Brancato, Esq. James Siermarco, M.S.
Riverkeeper, Inc. Village of Buchanan 20 Secor Road Municipal Building Ossining, NY 10562 236 Tate Avenue (E-mail: phillip@riverkeeper.org) Buchanan, NY 10511-1298 (E-mail: dbrancato@riverkeeper.org) (E-mail: vob@bestweb.net)
(E-mail: smurray@villageofbuchanan.com)
Robert D. Snook, Esq. Janice A. Dean, Esq.
Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General State of Connecticut of the State of New York 55 Elm Street 120 Broadway, 26th Floor P.O. Box 120 New York, New York 10271 Hartford, CT 06141-0120 (E-mail: Janice.Dean@ag.ny.gov)
(E-mail: Robert.Snook@po.state.ct.us)
Signed (electronically) by Martin J. ONeill Martin J. ONeill, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana St., Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 739-5001 E-mail: martin.oneill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
DB1/ 68543084.1 3