ML12082A272

NRC Staff'S Motion for Partial Reconsideration And/Or Clarification of the Board'S Order of March 16, 2012

ML12082A272
Person / Time
Site:	Indian Point
Issue date:	03/22/2012
From:	Sherwin Turk NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22077, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12082A272 (9)

Text

March 22, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS MOTION FOR PARTIAL RECONSIDERATION AND/OR CLARIFICATION OF THE BOARDS ORDER OF MARCH 16, 2012 Pursuant to 10 C.F.R. § 2.323(c), the NRC Staff (Staff) hereby requests that the Atomic Safety and Licensing Board (Board) reconsider and/or clarify, in part, the Boards Order (Granting in Part and Denying in Part State of New York and Riverkeepers Motion to Compel (Order), issued on March 16, 2012, to the extent that the Board established a schedule for litigation of all portions of Contention NYS-38/RK-TC-5. In support of this request, the Staff states as follows:

1. In its Order of March 16, 2012, the Board resolved the motion to compel which had been filed by the State of New York (New York) and Riverkeeper, Inc. (Riverkeeper)

(collectively, Intervenors), seeking additional document disclosures by the Staff.1 The Staff does not seek reconsideration or clarification of the Boards ruling on that motion.

1 In accordance with the Boards Order, the Staff and its consultants are again reviewing the documents in their possession, to determine if any documents must be disclosed that have not been disclosed already. In the event that additional documents are identified, they will be filed as evidentiary exhibits along with the Staffs testimony and/or placed in the hearing file, as appropriate.

2. In addition, the Boards Order established a schedule for the filing of evidentiary presentations on Contention NYS-38/RK-TC-5 (Order at 12) by the Intervenors, Staff, and Entergy Nuclear Operations, Inc. (Entergy or Applicant), stating as follows:

Because we have resolved the discovery dispute regarding NYS-38/RK-TC-5, we lay out the following schedule for evidentiary submissions relating to this contention in order to bring the contention in line with the other contentions on track for the first round of the evidentiary hearing in this proceeding:

1. New York and Riverkeeper shall have forty-five (45) days after issuance of this Order to present their evidentiary submissions on this contention (April 30, 2012).

2. Entergy and the NRC Staff shall have thirty (30) days thereafter to present their evidentiary submission on this contention.

3. New York and Riverkeeper shall have ten (10) days thereafter to present their revised or rebuttal testimony on this contention.

4. All subsequent steps pursuant to the Boards July 1, 2010 Scheduling Order shall resume and follow the track and timing for other pending contentions in the first round of the evidentiary hearing.

Id.; emphasis added.

3. As the Board has recognized, Contention NYS-38/RK-TC-5 broadly contend[s],

relying on multiple bases, that Entergys new commitments do not meet NRC regulations for having a program that will adequately manage the effects of aging during the period of extended operations.2 As the Board further recognized, the Intervenors presented four bases in support of this contention:

These bases are that Entergy (1) has deferred defining the methods used for determining the most limiting locations for metal fatigue calculations and the selection of those locations; (2) has not specified the criteria it will use and assumptions upon which it will rely for modifying the WESTEMS computer model for environmentally adjusted cumulative usage factors (CUFen) calculations; (3) has not adequately defined how it will manage 2

Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5) (Nov. 10, 2011), at 10.

primary water stress corrosion cracking (PWSCC) because it will not begin inspections until after entering the period of extended operations and Entergy has substituted a document, which will not be released until 2013, for its prior water chemistry program to manage PWSCC of the nickel alloy or nickel-alloy clad steam generator divider plates exposed to reactor coolant; and (4) does not adequately describe the contents of its AMP for reactor vessel internals, based on a revised version of the Materials Reliability Program 227 (MRP-227) guidance document.3

4. Thus, as reflected in the Boards Order admitting Contention NYS-38/RK-TC-5, in litigating this contention the parties must address an issue related to the Applicants aging management program (AMP) for reactor vessel internals - which is also the subject of Contention NYS-25 (Reactor Vessel Internals).

5. The Board has previously deferred litigation of Contention NYS-25,4 in light of the Staffs reported determination that it will be unable to submit its evidentiary presentations on Contention NYS-25 until it has completed its review of additional information that it expected to receive from the Applicant on February 17, 2012, concerning its AMP for reactor vessel internals under the revised version of MRP 227.5

6. As stated in the Staffs March 1 Status Report, Entergy submitted the additional information concerning its Reactor Vessel Internals AMP and Inspection Plan, on February 17, 2012. As also stated in the Staff status report, the Staff is reviewing the information and has 3

Id. at 10-11 n.47; emphasis added, citation omitted.

4 Order (Granting NRC Staffs Unopposed Time Extension Motion and Directing the Filing of Status Updates) (Feb. 16, 2012), at 2.

5 See (1) NRC Staffs Status Report in Response to the Atomic Safety and Licensing Boards Order of February 16, 2012 (March 1, 2012), at 1-2 (March 1 Status Report); (2) NRC Staffs Statement in Response to the Atomic Safety and Licensing Boards Order of February 3, 2012 (Feb. 8, 2012), at 3; (3) NRC Staffs Unopposed Motion for Extension of Time for the Filing of Testimony, Exhibits and Statements of Position (Feb. 2, 2012), at 3; and (4) Letter from Sherwin E. Turk to the Board (Jan.

27, 2012).

determined that it will be unable to file its testimony on this issue until it completes its review -

which, the Staff reported, would affect the litigation of Contention NYS-38/RKTC-5:

By letter dated February 17, 2012, Entergy submitted that additional information to the Staff. The Staff is currently reviewing that information, and has determined that it is not able to file its testimony and state its position on Contention NYS-25 (Reactor Vessel Internals) at this time. The Staff will provide further information to the Board concerning this matter as soon as it is able to do so. As stated in the Staffs Statement of February 8, 2012, the Staff believes that a deferral of the Staffs filings on Contention NYS-25 would not affect the litigation of any admitted contention other than Contention NYS-25 and Contention NYS-38/RK TC-5 (presently deferred).6

7. The Staff has determined to issue a request for additional information (RAI), to seek further information from Entergy concerning its AMP for reactor vessel internals. The Staff presently expects to issue that RAI in April 2012. Depending upon Entergys responses, it is possible that the Staff will be able to take a position on this issue this summer; however, the Staff is unable to take a position now on this portion of Contention NYS-38/RK TC-5. Further, although the Staff cannot predict how other parties positions on this contention may be affected by Entergys response to the RAI, it is conceivable that their positions could be affected as well.

8. Accordingly, the Staff hereby requests that the Board modify the schedule for submission of evidentiary presentations on Contention NYS-38/RK TC-5 to defer the filing of evidentiary submissions on this contention insofar as it involves issues concerning Entergys AMP for reactor vessel internals, until litigation resumes on related Contention NYS-25.

6 March 1 Status Report, at 1-2; emphasis added. See also NRC Staffs Statement in Response to the Atomic Safety and Licensing Boards Order of February 3, 2012 (Feb. 8, 2012), at 2 ¶ 3(b) (If the Staff determines that it requires additional information from Entergy regarding its submittal, the Staff may find it necessary to defer filing its testimony and statement of position on Contention NYS-25 pending completion of its review of that matter; a deferral of the Staffs filings on Contention NYS-25 would not affect the litigation of any admitted contention other than Contention NYS-25 and Contention NYS-38/RKTC-5 (presently deferred).

9. In accordance with 10 C.F.R. § 2.323(b), Staff Counsel has contacted Counsel for New York, Riverkeeper, Clearwater, and Entergy. Counsel for New York, Riverkeeper and Entergy have authorized the Staff to state that those parties do not oppose the Staffs request; Counsel for Clearwater was not available as of the time of filing this motion.

WHEREFORE, the Staff respectfully requests that the Board reconsider and/or clarify its Order of March 16, 2012, to the extent that the Board established a schedule for litigation of Reactor Vessel Internals issues in Contention NYS-38/RK-TC-5.

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov Dated at Rockville, Maryland this 22nd day of March 2012

CERTIFICATION OF COUNSEL Pursuant to 10 C.F.R. § 2.323(b), the undersigned attorney hereby certifies that he has made a sincere effort to contact the other parties to this proceeding (Entergy, New York, Clearwater, and Riverkeeper), to resolve the issues raised in this Motion, and that his efforts to resolve this issue have been successful, in part.

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov Dated at Rockville, Maryland this 22nd day of March 2012

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS MOTION FOR PARTIAL RECONSIDERATION AND/OR CLARIFICATION OF THE BOARDS ORDER OF MARCH 16, 2012, dated March 22, 2012, in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 22nd day of March, 2012.

Lawrence G. McDade, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Lawrence.McDade@nrc.gov E-mail: OCAAMAIL.resource@nrc.gov Dr. Richard E. Wardwell Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Wardwell@nrc.gov E-mail: Hearing.Docket@nrc.gov Dr. Kaye D. Lathrop Josh Kirstein, Esq.

Atomic Safety and Licensing Board Panel Anne Siarnacki, Esq.

190 Cedar Lane E. Atomic Safety and Licensing Board Panel Ridgway, CO 81432 Mail Stop - T-3 F23 E-mail: Kaye.Lathrop@nrc.gov U. S, Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: Josh.Kirstein@nrc.gov E-mail: Anne.Siarnacki@nrc.gov

Atomic Safety and Licensing Board Panel Melissa-Jean Rotini, Esq.

U.S. Nuclear Regulatory Commission Assistant County Attorney Mail Stop: T-3 F23 Office of Robert F. Meehan, Esq.

Washington, DC 20555-0001 Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-mail: MJR1@westchestergov.com Kathryn M. Sutton, Esq. John J. Sipos, Esq.

Paul M. Bessette, Esq. Charlie Donaldson, Esq.

Jonathan Rund, Esq. Assistants Attorney General Raphael Kuyler, Esq. New York State Department of Law Morgan, Lewis & Bockius, LLP Environmental Protection Bureau 1111 Pennsylvania Avenue, NW The Capitol Washington, D.C. 20004 Albany, NY 12224 E-mail: ksutton@morganlewis.com E-mail: John.Sipos@ag.ny.gov E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com E-mail: rkuyler@morganlewis.com Janice A. Dean, Esq.

Martin J. ONeill, Esq. Assistant Attorney General, Morgan, Lewis & Bockius, LLP Office of the Attorney General 1000 Louisiana Street, Suite 4000 of the State of New York Houston, TX 77002 120 Broadway, 25th Floor E-mail: martin.o'neill@morganlewis.com New York, NY 10271 E-mail: Janice.Dean@ag.ny.gov Elise N. Zoli, Esq. Joan Leary Matthews, Esq.

Goodwin Procter, LLP Senior Attorney for Special Projects Exchange Place New York State Department of 53 State Street Environmental Conservation Boston, MA 02109 Office of the General Counsel E-mail: ezoli@goodwinprocter.com 625 Broadway, 14th Floor Albany, NY 12233-1500 E-mail: jlmatthe@gw.dec.state.ny.us William C. Dennis, Esq. John Louis Parker, Esq.

Assistant General Counsel Office of General Counsel, Region 3 Entergy Nuclear Operations, Inc. New York State Department of 440 Hamilton Avenue Environmental Conservation White Plains, NY 10601 21 South Putt Corners Road E-mail: wdennis@entergy.com New Paltz, NY 12561-1620 E-mail: jlparker@gw.dec.state.ny.us

Daniel E. ONeill, Mayor Manna Jo Greene James Seirmarco, M.S. Karla Raimundi Village of Buchanan Hudson River Sloop Clearwater, Inc.

Municipal Building 724 Wolcott Avenue Buchanan, NY 10511-1298 Beacon, NY 12508 E-mail: vob@bestweb.net E-mail: mannajo@clearwater.org E-mail: smurray@villageofbuchanan.com E-mail: karla@clearwater.org Robert Snook, Esq. Daniel Riesel, Esq.

Office of the Attorney General Thomas F. Wood, Esq.

State of Connecticut Victoria Shiah, Esq.

55 Elm Street Sive, Paget & Riesel, P.C.

P.O. Box 120 460 Park Avenue Hartford, CT 06141-0120 New York, NY 10022 E-mail: robert.snook@ct.gov E-mail: driesel@sprlaw.com E-mail: vshiah@sprlaw.com Phillip Musegaas, Esq. Michael J. Delaney, Esq.

Deborah Brancato, Esq. Director, Energy Regulatory Affairs Riverkeeper, Inc. New York City Department of Environmental 20 Secor Road Protection Ossining, NY 10562 59-17 Junction Boulevard E-mail: phillip@riverkeeper.org Flushing, NY 11373 E-mail: dbrancato@riverkeeper.org E-mail: mdelaney@dep.nyc.gov

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov