ML12122A222
| ML12122A222 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/30/2012 |
| From: | Brancato D Riverkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 22369, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12122A222 (11) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
Docket Nos.
)
50-247-LR Entergy Nuclear Operations, Inc.
)
and 50-286-LR (Indian Point Nuclear Generating
)
Units 2 and 3)
)
April 30, 2012
___________________________________________ )
RIVERKEEPER, INC. MOTION IN LIMINE TO EXCLUDE PORTIONS OF PRE-FILED TESTIMONY AND STATEMENT OF POSITION REGARDING RK-TC-2 (FLOW ACCELERATED CORROSION)
I.
INTRODUCTION In accordance with 10 CFR §§ 2.319, 2.323, 2.337, and pursuant to the Atomic Safety and Licensing Boards (ASLB) July 1, 2010 Order in the above-referenced proceeding,1 Riverkeeper, Inc. (Riverkeeper) hereby submits this Motion in Limine to exclude certain portions of the Entergy Nuclear Operations, Inc.s (Entergy) Testimony and Statement of Position filed on March 28, 2012 relating to Riverkeeper Contention TC Flow Accelerated Corrosion. Particular portions of Entergys filings must be excluded because they discuss information which the ASLB has determined cannot be relied upon in relation to Riverkeepers contention.
II.
APPLICABLE LEGAL STANDARD Nuclear Regulatory Commission (NRC) regulations pertaining the admissibility of evidence at an adjudicatory hearing indicate that [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible 1 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Scheduling Order (July 1, 2010), ¶ 4.
2 document will be segregated and excluded so far as is practicable.2 In accordance therewith, the ASLB may strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative, and restrict any evidence or arguments for the same reasons.3 III.
ARGUMENT A certain portion of the testimony of Entergys witnesses, Ian D. Mew, Nelson F.
Azevedo, and Robert M. Aleksick, as well as a portion of Entergys Statement of Position relating to Riverkeeper Contention TC-2 inappropriately relies upon to information which the ASLB has indicated Entergy cannot rely on. In particular, Entergys witnesses testify about CHECWORKS inspection data dating back to original development decades ago. For IP3, the earliest inspection data is from 3R8 in April 1992 while data collected prior to []outage [2R16]
is still reflected in the CHECWORKS model for IP2.4 Entergys witnesses testified about this information to rebut Riverkeepers witness, Dr. Hopenfelds position that the lack of CHECWORKS data available for Indian Point, in contrast to the more ample historical data available during the Vermont Yankee (VY) license renewal proceeding, demonstrates why an ASLBs determination in the VY proceeding that the CHECWORKS code did not require prolonged benchmarking, was inapposite in the instant proceeding.
In a discovery dispute earlier in the instant proceeding, Riverkeeper specifically sought from Entergy any data5 related to CHECWORKS modeling at Indian Point, in order to assess 2 10 C.F.R. § 2.337(a).
3 10 C.F.R. § 2.319(e).
4 Testimony of Entergy Witnesses Ian D. Mew, Alan B. Cox, Nelson F. Azevedo, Jeffrey S. Horowitz, and Robert M. Aleksick Regarding Contention RK-TC-2 (Flow-Accelerated Corrosion) at 93-94.
5 Notably, Entergys witnesses mischaracterize the scope of Riverkeepers Motion to Compel, by stating that Riverkeepers request sought disclosure of CHECWORKS reports in contrast to data. See Testimony of Entergy Witnesses Ian D. Mew, Alan B. Cox, Nelson F. Azevedo, Jeffrey S. Horowitz, and Robert M. Aleksick Regarding Contention RK-TC-2 (Flow-Accelerated Corrosion) at 93. However, Riverkeepers motion related to data, and in
3 how the model has behaved since it was implemented. In particular, Riverkeeper filed a Motion to Compel, which explained the following:
RK-TC-2 maintains, inter alia, that the CHECWORKS code is not properly calibrated in light of the power uprates and is, thus, not a proper tool to predict inspection scope and necessary maintenance during the entire proposed period of extended operation.
Accordingly, in order to assess the additional time that is required to calibrate the code before it can be used reliably, it is necessary to examine how long it took to calibrate previously, and how accurate the calibration was prior to the power uprates. Moreover, Entergy justifies its use of CHECWORKS based upon the premise that the calibration of the code is continuously improving as more and more data becomes available. Notably, most of the data on flow accelerated corrosion at Indian Point was generated prior the uprates, and is, therefore, critical toward fully understanding the CHECWORKS model which Entergy proposes to rely upon for an additional 20 years.6 In relation to Indian Point Unit 2, Entergy was never able to locate any CHECWORKS related documentation or data predating the year 2000, while in relation to Indian Point Unit 3, Entergy indicated it was too burdensome to produce the requested data and documentation predating approximately 2001.7 The ASLB ultimately denied Riverkeepers motion to compel the disclosure of historical CHECWORKS-related documentation that Entergy indicated existed but was too burdensome to produce. Importantly, the ASLBs order denying Riverkeepers motion stated the following:
The record reflects that Entergy does not have ready access to the data requested and thus has not, and cannot, rely on it to provide the track record for its AMP that Riverkeeper claims is lacking.
Nor, to the extent that Entergy must demonstrate that its use of fact any relevant documentation. See Riverkeeper, Inc. Motion to Compel Disclosure of Documents Relevant to Riverkeeper Contention TC-2 (August 3, 2010), at 6 (Riverkeeper respectfully submits that the ASLB compel Entergy to disclose any and all documentation related to the implementation of the CHECWORKS computer code heretofore undisclosed...).
6 Riverkeeper, Inc. Motion to Compel Disclosure of Documents Relevant to Riverkeeper Contention TC-2 (August 3, 2010), at 5-6.
7 See id. at 2-4.
4 CHECWORKS is adequately benchmarked, could this data which the Applicant has not reviewed be of practical use to either party in this proceeding.8 This explanation indicates the obvious implication of Entergys lack of disclosure of historical CHECWORKS data and documentation: Entergy cannot point to data that it has not reviewed or produced in order to demonstrate the adequacy of the benchmarking and track record of the CHECWORKS code at Indian Point. Riverkeeper explicitly raised this point in its Statement of Position pertaining to RK-TC-2.9 Yet, Entergys submissions attempt to do precisely that: Mr. Mew, Mr. Azevedo, and Mr.
Aleksicks testimony points to historic CHECWORKS data that is reflected in the later CHECWORKS modeling reports that were made available to Riverkeeper, to demonstrate that the finding of the VY ASLB is allegedly applicable to the Indian Point case, i.e., that prolonged benchmarking of the CHECWORKS code is not necessary because the ample data available assures adequate benchmarking of the code. However, in the instant proceeding, Riverkeepers expert witness has not had the benefit of reviewing such data in order to test the accuracy of 8 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Ruling on Riverkeepers Motion to Compel)
(November 4, 2010), at 5.
9 Riverkeeper Initial Statement of Position Regarding Contention RK-TC-2 (Flow Accelerated Corrosion (December 22, 2011), at 29-30 (Entergy indicated that CHECWORKS documentation related to Indian Point Unit 2 prior to 2000 does not exist, and refused to produce any CHECWORKS documentation related to Indian Point Unit 3 prior to 2001. Such information would be necessary in order to assess the adequacy of the benchmarking of the CHECWORKS model and/or its predecessor codes since the owners of the plants started using it (ostensibly since the 1980s). Accordingly, Entergy cannot rely upon any earlier data to demonstrate that CHECWORKS is adequately benchmarked, and certainly cannot support an assertion that the CHECWORKS model at Indian Point has been calibrated with decades of data, as the VY ASLB found in the VY license renewal proceeding. (citing In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Ruling on Riverkeepers Motion to Compel)
(November 4, 2010), at 5).
5 Entergys claims. Moreover, as the ASLB observes, because this information was too cumbersome to access and/or did not exist, Entergy did not review it either.10 Thus, any testimony related to Entergys reliance upon data dating from the inception of the use of CHECWORKS and its predecessors at Indian Point, is inappropriate, and contravenes the spirit and intent, as well as the plain language, of the ASLBs ruling on Riverkeepers earlier Motion to Compel. References to the alleged fact that the CHECWORKS model at Indian Point incorporates historical inspection data, ultimately in support of Entergys assertion that prolonged benchmarking of the code is not necessary, is not appropriate in light of the circumstances. Indeed, the testimony of Entergys witnesses pertaining to historic CHECWORKS data cannot be properly considered reliable, or for that matter, material or relevant, in light of the fact that, as the ASLB has explained, Entergy has not accessed, or reviewed such data.
IV.
PROPOSED PORTIONS OF ENTERGYS FILINGS TO BE EXCLUDED Based on the foregoing, Riverkeeper seeks exclusion of portions of Entergys witnesses answer number 129, which appears on pages 93 to 94 of Entergys Prefiled Testimony, as follows:
(IDM, NFA, RMA) Riverkeepers request sought disclosure of CHECWORKS reports. The inspection data collected during the outages has been incorporated into and remains available in the IPEC CHECWORKS models. Therefore, the current models include data from inspections, operating data, and chemistry data dating back to original development decades ago. For IP3, the earliest inspection data is from 3R8 in April 1992. This is clearly shown in the SFA model reports that Entergy disclosed to Riverkeeper. See, e.g., IP3 SFA Report 0705.100-01, at 21 (ENT000051); id. App. F (Section 5.5 discusses contents of Appendix F, Appendix F lists all inspections included in the 10 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Ruling on Riverkeepers Motion to Compel)
(November 4, 2010), at 5.
6 CHECWORKS model back to 3R8 in 1992). For IP2, the most recent SFA model reports list all inspections conducted since 2R16 in 2006. See IP2 SFA Report 0705.101-01, at 17 & App. F (ENT000050). Data collected prior to that outage, however, is still reflected in the CHECWORKS model for IP2. See Indian Point Unit 2, CHECWORKS SFA Model Calculation No. 050714b-01, Rev. 0, § 3 (July 5, 2005) (ENT000074) (The CHECWORKS model reflects plant design and operation through Refuel Outage
- 16. All historical records (i.e. inspections, replacements, water chemistry, power levels, etc.) through Refuel Outage 16 were included in this analysis.).
Similarly, Riverkeeper seeks exclusion of the following excerpt of Entergys Statement of Position pertaining to RK-TC-2 at pages 31-32:
As Energys experts explain, this distinction is incorrect because inspection data collected during those early outages have been incorporated into and remain a part of the IPEC CHECWORKS model. Therefore, while some CHECWORKS reports from this much earlier time period were unavailable, inspection data remain in the CHECWORKS model.11 V.
CONCLUSION For the foregoing reasons, the ASLB should exclude the portions of Entergys prefiled testimony and Statement of Position Statement pertaining to RK-TC-2, as identified.
11 This portion of Entergys Statement of Position that relies on inappropriate witness testimony may be stricken at the ASLBs discretion. See AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), Licensing Board Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification) at 2 (Aug. 9, 2007). Therefore, to the extent the ASLB grants this motion and excludes the testimony, the associated discussion in the Statement of Position should be excluded, or, in the alternative, accorded no weight in the ASLBs decision on this contention. Cf. Calvert Cliffs 3 Nuclear Project, LLC (Combined License Application for Calvert Cliffs Unit 3), Licensing Board Order (Granting in Part and Denying in Part NRC Staffs Motion in Limine) at 5 (Jan.17, 2012) (unpublished) (Calvert Cliffs Order) (We need not rule on the admissibility of statements of position because they will not be admitted as evidence, but will only be considered by the Board in its merits ruling to the extent they are based on admitted evidence.).
7 Respectfully submitted, Signed (electronically) by Deborah Brancato Deborah Brancato, Esq.
Phillip Musegaas, Esq.
Riverkeeper, Inc 20 Secor Road Ossining, NY 10562 914-478-4501 (ext. 230) dbrancato@riverkeeper.org phillip@riverkeeper.org
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
Docket Nos.
)
50-247-LR Entergy Nuclear Operations, Inc.
)
and 50-286-LR (Indian Point Nuclear Generating
)
Units 2 and 3)
)
April 30, 2012
___________________________________________ )
Certification Pursuant to 10 C.F.R. § 2.323(b)
Upon determining that Entergys filings contained information that Riverkeeper believed was improper in light of the ASLBs previous discovery order, I certify that I made a sincere effort to contact the other parties in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and I certify that my efforts have been unsuccessful. In particular, I engaged in a discussion with counsel for Entergy, Mr. Ray Kuyler and Mr. Jonathon Rund, after which they advised that Entergy anticipated opposing Riverkeepers motion; counsel for NRC Staff Mr. Sherwin Turk indicated that NRC Staff did not agree that the motion was founded and that NRC Staff would also oppose the motion.
Signed (electronically) by Deborah Brancato Deborah Brancato, Esq.
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
Docket Nos.
)
50-247-LR Entergy Nuclear Operations, Inc.
)
and 50-286-LR (Indian Point Nuclear Generating
)
Units 2 and 3)
)
April 30, 2012
____________________________________________ )
CERTIFICATE OF SERVICE I certify that on April 30, 2012, copies Riverkeeper, Inc. Motion in Limine to Exclude Portions of Pre-Filed Testimony and Statement of Position Regarding RK-TC-2 (Flow Accelerated Corrosion), were served on the following:
Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: Lawrence.McDade@nrc.gov Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board 190 Cedar Lane East Ridgeway, CO 81432 E-mail: Kaye.Lathrop@nrc.gov Richard E. Wardwell Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: Richard.Wardwell@nrc.gov Michael J. Delaney Department of Environmental Protection 59-17 Junction Boulevard Flushing NY 11373 E-mail: mdelaney@dep.nyc.gov (718) 595-3982 John J. Sipos, Esq.
Assistant Attorney General Office of the New York Attorney General for the State of New York The Capitol Albany, NY 12224 E-mail: John.Sipos@oag.state.ny.us Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Jonathan M. Rund, Esq.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Ave. N.W.
Washington, D.C. 20004 E-mail:
pbessette@morganlewis.com ksutton@morganlewis.com jrund@morganlewis.com
2 Josh Kirstein, Law Clerk Anne Siarnacki Law Clerk Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Josh.Kirstein@nrc.gov anne.siarnacki@nrc.gov Martin J. ONeill, Esq.
Morgan, Lewis & Bockius, LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 E-mail: martin.oneill@morganlewis.com Janice A. Dean, Esq.
Assistant Attorney General Office of the Attorney General 120 Broadway, 26th Floor New York, NY 10271 E-mail: Janice.dean@oag.state.ny.us Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: OCAAMAIL@nrc.gov Office of the Secretary Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 E-mail: HEARINGDOCKET@nrc.gov William C. Dennis, Esq.
Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 E-mail: wdennis@entergy.com Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave Beacon, New York 12508 E-mail: sfiller@nylawline.com Manna Jo Greene Karla Raimundi Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave Beacon, New York 12508 E-mail: Mannajo@clearwater.org karla@clearwater.org Melissa-Jean Rotini, of counsel Assistant County Attorney Office of Robert F. Meehan, Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-mail: MJR1@westchestergov.com Joan Leary Matthews, Esq.
Senior Attorney for Special Projects New York State Department of Environmental Conservation 625 Broadway, 14th floor Albany, New York 12233-5500 E-mail: jlmatthe@gw.dec.state.ny.us Elise N. Zoli, Esq.
Goodwin Procter, LLP 53 State Street Boston, MA 02109 E-mail: ezoli@goodwinprocter.com Thomas F. Wood, Esq.
Daniel Riesel, Esq.
Victoria Shiah Sive, Paget and Riesel, P.C.
460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com vshiah@sprlaw.com
3 Robert D. Snook, Esq.
Assistant Attorney General 55 Elm Street, P.O. Box 120 Hartford, CT 06141-0120 E-mail: Robert.Snook@po.state.ct.us John L. Parker, Esq.
Regional Attorney, Region 3 New York State Department of Environmental Conservation 21 South Putt Corners New Paltz, NY 12561 E-mail: jlparker@gw.dec.state.ny.us Sherwin E. Turk Beth N. Mizuno Brian G. Harris David E. Roth Andrea Z. Jones Office of General Counsel Mail Stop: 0-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail:
Sherwin.Turk@nrc.gov Beth.Mizuno@nrc.gov brian.harris@nrc.gov David.Roth@nrc.gov andrea.jones@nrc.gov Sean Murray, Mayor Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 E-mail: vob@bestweb.net, SMurray@villageofbuchanan.com, Administrator@villageofbuchanan.com Signed (electronically) by Deborah Brancato Deborah Brancato April 30 2012