ML12114A248
| ML12114A248 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/23/2012 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | NRC/OGC, Riverkeeper, State of NY |
| SECY RAS | |
| References | |
| RAS 22301, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12114A248 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) April 23, 2012 ORDER (Denying NRC Staffs Motion for Partial Reconsideration and State of New York/Riverkeepers Cross-Motion to NRC Staffs Motion for Reconsideration)
On March 16, 2012, the Board issued an order granting in part and denying in part the State of New Yorks (New Yorks) and Riverkeeper, Inc.s (Riverkeepers) (collectively, the Intervenors) motion to compel the NRC Staff to comply with disclosure obligations associated with Contention NYS-38/RK-TC-5 and, with the resolution of that discovery dispute, laid out a schedule for evidentiary submissions relating to the aforementioned contention.1 On March 22, 2012, the NRC Staff filed a Motion for Partial Reconsideration and/or Clarification of our order, questioning whether the Board intended to establish a schedule for litigation of all portions of Contention NYS-38/RK-TC-5 or intended to exclude the portions that relate to Contention NYS-252 - a contention that has been delayed pending the NRC Staffs issuance of the second 1
Licensing Board Order (Granting in Part and Denying in Part State of New York and Riverkeepers Motion to Compel) (Mar. 16, 2012) at 12 (unpublished).
2 NRCs Staffs Motion for Partial Reconsideration and/or Clarification of the Boards Order of March 16, 2012 (Mar. 22, 2012) at 1, 4 [hereinafter NRC Staff Motion].
supplement to its Final Safety Evaluation Report (FSER) for the license renewal of Indian Point Units 2 and 3.
While no party objected to the NRC Staffs motion to defer the portion of NYS-38/RK-TC-5 that relates to NYS-25, the Intervenors filed a cross-motion on April 2, 2012, seeking the placement of Contention NYS-26[B]/RK-TC-1[B] and the remainder of Contention NYS-38/RK-TC-5 on to the second hearing track that exists for Contention NYS-25.3 Both Entergy Nuclear Operations, Inc. (Entergy) and the NRC Staff oppose the cross-motion because they allege that, inter alia, it is untimely, the technical issues in NYS-26B/RK-TC-1B have little relation to those in NYS-25, and all of the issues raised in NYS-26B/RK-TC-1B and the remaining issues in NYS-38/RK-TC-5 are ripe for litigation.4 For the reasons discussed below, we deny NRC Staffs Motion for Reconsideration and Intervenors Cross-Motion for Reconsideration, but clarify the hearing schedule applicable to NYS-38/RK-TC-5. We set a new schedule for the resolution of this contention that considers the lapse in time between orders and the increased hearing activity that will occur over the next few months.
I. BACKGROUND On November 10, 2011, we admitted Contention NYS-38/RK-TC-5, which alleges that Entergy is not in compliance with the applicable regulations because it has not demonstrated 3
State of New Yorks and Riverkeepers Response and Cross-Motion to NRC Staffs Motion for Partial Reconsideration of the Boards March 16, 2012 Order (Apr. 2, 2012) at 1 [hereinafter New York/Riverkeeper Cross-Motion].
4 Entergys Opposition to the State of New Yorks and Riverkeepers Response and Cross-Motion to NRC Staffs Motion for Partial Reconsideration of the Boards March 16, 2012 Order (Apr. 9, 2012) at 5-8 [hereinafter Entergy Opposition]; NRC Staffs Answer to State of New Yorks and Riverkeepers Response and Cross-Motion to NRC Staffs Motion for Partial Reconsideration of the Boards March 16, 2012 Order (Apr. 12, 2012) at 4-10 [hereinafter NRC Staff Opposition].
that it will adequately manage the effects of aging during the period of extended operations.5 This contention claims that Entergys Aging Management Programs (AMPs) are inadequate with regard to several safety-related systems and components because these AMPs merely commit to the future development of certain AMPs, rather than present specific plans for current review.6 Under the umbrella of this general contention, the Intervenors have proffered several specific bases7 in support of their allegations that, as a result of Entergys failures, the NRC does not have an adequate record to develop a rational basis upon which it can determine whether to grant a renewed license.8 II. LEGAL STANDARDS A motion for reconsideration must meet the strict requirements of 10 C.F.R. § 2.323(e),
which states that such motions may not be filed except upon leave of the presiding officer or the Commission, upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, that renders 5
Licensing Board Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5) (Nov.
10, 2011) at 10 (unpublished) [hereinafter Nov. 10, 2011 Order].
6 State of New York and Riverkeepers New Joint Contention NYS-38/RK-TC-5 (Sep. 30, 2011) at 1 [hereinafter NYS-38/RK-TC-5].
7 These issues 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 primary water stress corrosion cracking (PWSCC) . . . , 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.
Nov. 10, 2011 Order at 10-11 n.47 (referencing NYS-38/RK-TC-5 at 1-3).
8 Id. at 2.
the decision invalid.9 When the Commission revised its hearing procedures in 2004, it heightened this standard, stating:
This standard, which is a higher standard than the existing case law, is intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration, and the claim could not have been raised earlier. In the Commissions view, reconsideration should be an extraordinary action and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier.10 The Commission has repeatedly stated that the reconsideration standard is to be applied strictly, and reconsideration should only be allowed when there is decisive new information or a fundamental . . . misunderstanding of a key point.11 III. ANALYSIS Viewing the Motion for Reconsideration in light of these requirements, the Board denies both NRC Staffs and the Intervenors requests. Both parties fail to provide any decisive new information or point to any fundamental misunderstanding of law or fact on the part of the Board that could not have been reasonably anticipated.
On the contrary, the NRC Staff presents a simple request 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-9 10 C.F.R. § 2.323(e).
10 Virginia Elec. & Power Co. d/b/a Dominion Virginia Power & Old Dominion Elec. Coop. (North Anna Power Station, Unit 3), LBP-08-23, 68 NRC 679, 681 (2008) (citing Final Rule: Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004)).
11 See Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004); Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-06-27, 64 NRC 399, 400-01 (2006).
25.12 Because the NRC Staffs petition to reconsider does not rise to the level required by the regulations for a motion for reconsideration, it is deficient and must be denied.
In lieu of reconsideration, the NRC Staff has requested clarification of the schedule for litigation of the portion of NYS-38/RK-TC-5 regarding reactor vessel internal (RVI) issues.13 Specifically, in order to reflect the timing of NYS-25, the NRC Staff requests deferral of those aspects of NYS-38/RK-TC-5 that allege Entergy has not adequately described the contents of its AMP for RVIs in light of a revised version of the Materials Reliability Program 227 (MRP-227) guidance document.14 Because that was our original intent, we confirm that NYS-38/RK-TC-5 shall move forward at this time inasmuch as it addresses those issues unrelated to NYS-25, and those aspects of NYS-38/RK-TC-5 that pertain to RVIs shall be addressed in the same hearing schedule as NYS-25.
New York and Riverkeeper have jointly submitted a Cross-Motion asking the Board to defer the schedule for all of Contention NYS-38/RK-TC-5 as well as Contention NYS-26[B]/RK-TC-1[B] until the presently-deferred Contention NYS-25 is ready to proceed.15 The Intervenors base their request on: (1) a posited synergism between age-related degradation mechanisms that they allege exists between the embrittlement issues raised in NYS-25 and the fatigue issues raised in NYS-26B/RK-TC-1B; (2) the need to have a full picture of all the issues raised by NYS-38/RK-TC-5 evidence at one time; and (3) the waste of resources that ill-serve judicial economy by requiring the Intervenors witness to prepare and to travel for multiple hearings.16 12 NRC Staff Motion at 4. As the hearing date approaches, we suggest that, in future situations when 10 C.F.R. § 2.323(b) conferences have failed, routine procedural disputes or questions be addressed by requesting a teleconference to resolve the issue in a timely and labor-efficient manner.
13 NRC Staff Motion at 1, 5.
14 Id. at 5.
15 New York/Riverkeeper Cross-Motion at 1.
16 Id. at 4-6.
Entergy points out that the effects of aging due to metal fatigue (which are the focus of NYS-26B/RK-TC-1B) apply to key components of the reactor coolant pressure boundary, while the RVIs that are the focus of NYS-25 are not part of the reactor coolant pressure boundary, and the effects of aging on those components are managed through an entirely different program.17 NYS-26B/RK-TC-1B addresses separate reactor systems and components and it is not apparent that the analysis used to estimate metal fatigue is directly influenced by embrittlement. NYS-25 and those aspects of NYS-38/RK-TC-5 are deferred because the NRC Staffs ongoing review of Entergys final preparation of an AMP for this issue has not been completed. No such situation constrains the testimony for NYS-26B/RK-TC-1B. The issues in NYS-26B/RK-TC-1B are ripe for adjudication at this time, and the hearing for this contention should proceed as currently scheduled.
Contention NYS-38/RK-TC-5 contains general allegations relating to the adequacy of an AMP that promises to develop action plans in accordance with program elements (e.g., those contained in the Generic Aging Lessons Learned Report (GALL)), rather than develop specific plans for review during the license renewal hearing process. This contention also discusses selected topics that deal with the aspects of the metal fatigue calculations, primary water stress corrosion cracking of the steam generator divider plate assemblies, and the evaluation of aging for RVIs. With our clarification herein that the schedule for addressing the RVI aspects of NYS-38/RK-TC-5 is to match the postponed timing for NYS-25, there is no reason that the testimony on the remaining issues in NYS-38/RK-TC-5 cannot be prepared and the contention heard with the Track 1 Contentions.
The Board is sensitive to judicial efficiency and any waste in parties resources. With regard to New Yorks and Riverkeepers Cross-Motion, however, the Board does not find compelling the argument that separating the hearing track for NYS-25 and portions of NYS-17 Entergy Opposition at 7 (emphasis in original).
38/RK-TC-5 would place an undue burden on New York and Riverkeeper or their witness, Dr.
Lahey. While separate trips to multiple hearings will likely be required, the impact is minimal due to the close proximity of Troy, New York, where Dr. Lahey works,18 to the region near Indian Point where the hearing will take place.
In summary, to ensure clarity, all aspects of NYS-38/RK-TC-5 that relate to NYS-25 have been deferred until the NRC Staff releases the second supplement to its FSER and litigation resumes on NYS-25. All other portions of NYS-38/RK-TC-5 are ripe for hearing with the Track 1 contentions. Thus, the Intervenors Cross-Motion to defer all aspects of NYS-38/RK-TC-5 and NYS-26B/RK-TC-1B is denied.
Because we have resolved that the remainder of NYS-38/RK-TC-5 is ripe for hearing, we lay out the following schedule for evidentiary submissions relating to this contention in order to bring this part of NYS-38/RK-TC-5 in line with the other contentions in Track 1 of the evidentiary hearing for this proceeding. In consideration of the other hearing activities now underway, we have allowed additional time for the Intervenors initial testimony by revising the schedule as follows:
- 1. New York and Riverkeeper shall submit their evidentiary submissions on this contention on or before June 19, 2012;
- 2. Entergy and the NRC Staff shall have thirty (30) days thereafter to present their evidentiary submissions on this contention; and
- 3. New York and Riverkeeper and any interested governmental bodies shall have ten (10) days thereafter to present their respective rebuttal and initial evidentiary submissions.
18 See, e.g., Exh. NYS000294 at 1; Exh. NYSR00344 at 1 (describing Dr. Lahey as a Professor Emeritus of Engineering at Rensselaer Polytechnic Institute in Troy, New York).
All other provisions of the Boards July 1, 2010 Scheduling Order remain in effect regarding this and the other pending contentions in the first round of the evidentiary hearing.19 IV. CONCLUSION For the reasons stated above, we deny the NRC Staffs Motion for Reconsideration and New Yorks and Riverkeepers Cross-Motion, but clarify that those aspects of Contention NYS-38/RK-TC-5 relating to Contention NYS-25 are deferred until evidentiary submissions begin on the latter contention. The rest of Contention NYS-38/RK-TC-5 shall proceed pursuant to the schedule prescribed in Part III supra.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland April 23, 2012 19 Consistent with our July 1, 2010 Scheduling Order, the deadline for the Intervenors to submit rebuttal testimony on NYS-26B/RK-TC-1B has not changed from their current deadline of May 29, 2012. See Licensing Board Scheduling Order (July 1, 2010) at 14-15 (unpublished).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR
) and 50-286-LR (Indian Point Nuclear Generating Station, )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying NRC Staffs Motion for Partial Reconsideration and State of New York/Riverkeepers Cross-Motion to NRC Staffs Motion for Reconsideration) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop O-7H4M Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Sherwin E. Turk, Esq.
Atomic Safety and Licensing Board Panel Edward L. Williamson, Esq.
Mail Stop T-3F23 Beth N. Mizuno, Esq.
Washington, DC 20555-0001 David E. Roth, Esq.
Brian Harris, Esq.
Lawrence G. McDade, Chair Mary B. Spencer, Esq.
Administrative Judge Anita Ghosh, Esq.
E-mail: lawrence.mcdade@nrc.gov Karl Farrar, Esq.
Brian Newell, Paralegal Richard E. Wardwell U.S. Nuclear Regulatory Commission Administrative Judge Office of the General Counsel E-mail: richard.wardwell@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 Kaye D. Lathrop E-mail:
Administrative Judge sherwin.turk@nrc.gov 190 Cedar Lane E. edward.williamson@nrc.gov Ridgway, CO 81432 beth.mizuno@nrc.gov E-mail: kaye.lathrop@nrc.gov brian.harris.@nrc.gov david.roth@nrc.gov Joshua A. Kirstein, Law Clerk mary.spencer@nrc.gov E-mail: josh.kirstein@nrc.gov anita.ghosh@nrc.gov Anne Siarnacki, Law Clerk karl.farrar@nrc.gov E-mail: anne.siarnacki@nrc.gov brian.newell@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov
Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying NRC Staffs Motion for Partial Reconsideration and State of New York/Riverkeepers Cross-Motion to NRC Staffs Motion for Reconsideration)
William C. Dennis, Esq. Thomas F. Wood, Esq.
Assistant General Counsel Daniel Riesel, Esq.
Entergy Nuclear Operations, Inc. Victoria Shiah, Esq.
440 Hamilton Avenue Adam Stolorow, Esq.
White Plains, NY 10601 Jwala Gandhi, Paralegal Email: wdennis@entergy.com Counsel for Town of Cortlandt Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com vshiah@sprlaw.com astolorow@sprlaw.com jgandhi@sprlaw.com Elise N. Zoli, Esq. Phillip Musegaas, Esq.
Goodwin Proctor, LLP Deborah Brancato, Esq.
Exchange Place Ramona Cearley, Secretary 53 State Street Riverkeeper, Inc.
Boston, MA 02109 20 Secor Road E-mail: ezoli@goodwinprocter.com Ossining, NY 10562 E-mail: phillip@riverkeeper.org dbrancato@riverkeeper.org rcearley@riverkeeper.org Kathryn M. Sutton, Esq. Melissa-Jean Rotini, Esq.
Paul M. Bessette, Esq. Assistant County Attorney Martin J. ONeill, Esq. Office of Robert F. Meehan, Raphael Kuyler, Esq. Westchester County Attorney Jonathan M. Rund, Esq. 148 Martine Avenue, 6th Floor Lena Michelle Long, Esq. White Plains, NY 10601 Laura Swett, Esq. E-mail: MJR1@westchestergov.com Lance Escher, Esq.
Mary Freeze, Legal Secretary Manna Jo Greene, Environmental Director Antoinette Walker, Legal Secretary Steven C. Filler Morgan, Lewis & Bockius, LLP Karla Raimundi 1111 Pennsylvania Avenue, NW Hudson River Sloop Clearwater, Inc.
Washington, DC 20004 724 Wolcott Ave.
E-mail: ksutton@morganlewis.com Beacon, NY 12508 pbessette@morganlewis.com E-mail: mannajo@clearwater.org martin.oneill@morganlewis.com stephenfiller@gmail.com rkuyler@morganlewis.com karla@clearwater.org jrund@morganlewis.com llong@morganlewis.com lswett@morganlewis.com 2
Docket Nos. 50-247-LR and 50-286-LR ORDER (Denying NRC Staffs Motion for Partial Reconsideration and State of New York/Riverkeepers Cross-Motion to NRC Staffs Motion for Reconsideration) lescher@morganlewis.com Michael J. Delaney, Esq.
mfreeze@morganlewis.com Director, Energy Regulatory Affairs awalker@morganlewis.com NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 E-mail: mdelaney@dep.nyc.gov Joan Leary Matthews, Esq. Robert D. Snook, Esq.
Senior Attorney for Special Projects Assistant Attorney General New York State Department Office of the Attorney General of Environmental Conservation State of Connecticut 625 Broadway, 14th Floor 55 Elm Street Albany, New York 12233-5500 P.O. Box 120 E-mail: jmatthe@gw.dec.state.ny.us Hartford, CT 06141-0120 E-mail: robert.snook@po.state.ct.us John Louis Parker, Esq. Sean Murray, Mayor Office of General Counsel, Region 3 Kevin Hay, Village Administrator New York State Department Village of Buchanan of Environmental Conservation Municipal Building 21 South Putt Corners Road 236 Tate Avenue New Paltz, NY 12561-1620 Buchanan, NY 10511-1298 E-mail: jlparker@gw.dec.state.ny.us E-mail: SMurray@villageofbuchanan.com Administrator@villageofbuchanan.com John J. Sipos, Esq. Janice A. Dean, Esq.
Charles Donaldson, Esq. Assistant Attorney General Assistant Attorneys General Kathryn Liberatore, Esq.
Office of the Attorney General Office of the Attorney General of the State of New York of the State of New York The Capitol 120 Broadway, 26th Floor State Street New York, New York 10271 Albany, New York 12224 E-mail: janice.dean@ag.ny.gov E-mail: John.Sipos@ag.ny.gov kathryn.liberatore@ag.ny.gov charlie.donaldson@ag.ny.gov
[Original signed by Christine M. Pierpoint]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 23rd day of April 2012 3