ML12198A548
| ML12198A548 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 07/16/2012 |
| From: | Sipos J, Brancato D State of NY, Office of the Attorney General, Riverkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23009, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12198A548 (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. July 16, 2012
x STATE OF NEW YORK AND RIVERKEEPERS JOINT ANSWER TO ENTERGYS MOTION IN LIMINE TO EXCLUDE PORTIONS OF INTERVENORS PREFILED DIRECT TESTIMONY, EXPERT REPORT, STATEMENT OF POSITION, AND EXHBIITS FOR CONTENTION NYS-38/RK-TC-5 Office of the Attorney General Riverkeeper, Inc.
for the State of New York 20 Secor Road The Captiol Ossining, New York 10562 State Street Albany, New York 12224
TABLE OF CONTENTS Page INTRODUCTION ...........................................................................................................................1 PROCEDURAL FACTS .................................................................................................................1 ARGUMENT...................................................................................................................................4 POINT I THE BOARD SHOULD REJECT ENTERGYS RENEWED ATTEMPT TO LIMIT THE SCOPE OF CONTENTION NYS-38 ...............................................................................................4 A. Entergy Is Factually Wrong .....................................................................................4 B. Entergy Is Legally Wrong........................................................................................8 POINT II ENTERGYS ATTACK ON DR. HOPENFELD AND RIVERKEEPERS EXHIBITS LACKS MERIT ....................................................13 CONCLUSION..............................................................................................................................15 i
INTRODUCTION Entergy seeks to restrict testimony related to Contention NYS-38/RK-TC-5 (NYS 38) by excising any reference to tube-to-tubesheet welds because, Entergy asserts, these locations were never referenced in the original contention or its bases. The Board should reject Entergys argument because (1) it is factually in error and (2) it is based on a distortion of the prevailing Commission law regarding the permissible scope of contentions and testimony.
Entergy also seeks to exclude exhibits presented by Riverkeeper and its expert Dr.
Hopenfeld. The Board should reject that request as well because those documents concern age-related degradation issues, (including fatigue crack formation, growth, and detection), associated with nuclear steam supply system (NSSS) components, such as steam generators. The matters discussed in these documents are directly relevant to fatigue analysis and fatigue management, and reflect Dr. Hopenfelds extensive experience with such issues, and thereby counter Entergys criticisms of Dr. Hopenfelds expertise with metal fatigue.
NRC Staff did not submit a motion in limine on these issues.
PROCEDURAL FACTS New York and Riverkeeper timely filed NYS-38/RK-TC-5 on September 30, 2011. State of New York and Riverkeepers New Joint Contention NYS-38/RK-TC-5, September 30, 2011 (Contention Filing) (in ADAMS package ML11273A190). The contention was based on the Supplemental Safety Evaluation Report issued by NRC Staff on August 30, 2011. Supplement to Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 (SSER) ML11243A109 . The core issue in NYS-38 was Entergys failure to provide sufficient details about how it would address a number of newly disclosed aging management problems to allow the Board to determine whether Entergy had demonstrated 1
compliance with 10 C.F.R. §§ 54.21(a)(3), (c)(1)(iii) and 54.29 in this proceeding before the Indian Point facilities received extended operating licenses and entered the 20-year period of extended operation - and NRCs acceptance of that proposed approach. The intervenors submission provided examples of this deficient practice. Contention Filing at 1-2 (The AMPs for which Entergy is proposing to taking future action, after completion of these hearings, include at least the following)
With regard to steam generator components and cracking, NYS-38 referred to primary water stress corrosion cracking (PWSCC) for the nickel alloy or nickel-alloy clad steam generator (SG) divider plates exposed to reactor coolant, a problem which could impact components directly relevant to plant safety. SSER at 3-18 to 3-19. Contention Filing at 2.
Entergy and Staff opposed admission of NYS-38. Applicants Opposition to New York States and Riverkeepers Joint Motion to Admit New Contention NYS-38/RK-TC-5, (Oct. 25, 2011)
(Entergy Opposition To Contention) (ML11298A380); NRC Staffs Answer to State of New York and Riverkeepers Joint Motion To File a New Contention and New Joint Contention NYS-38/RK-TC-5, (Oct. 25, 2011) (ML11298A379). The Board granted admission of NYS-38 holding that
[t]he Intervenors have broadly contended, 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 and that Intervenors, relying on their experts, claim that there is insufficient information in Entergys recent commitments . . . to determine whether it has an adequate AMP. Whether the Intervenors and their experts are correct is an issue to be determined on the merits at an evidentiary hearing.
Entergy Nuclear Operations, Inc. (Indian Point Generating Units 2 and 3), Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5) November 10, 2011 (ASLB Initial Admission Order) at pp. 10, 11-12. NYS-38 did not mention any Entergy Commitment by 2
number, but focused instead on the Entergy-proposed, and Staff-approved, approach to address the PWSCC problem for steam generator components with a future inspection plan or a future industry standard, the details of which were not to be revealed prior to NRC regulatory action on the requested extended operating license.
Subsequently, Entergy sought clarification of the Boards ruling admitting NYS-38.
Applicant's Motion For Clarification Of Licensing Board Memorandum And Order Admitting Contention NYS-38/RK-TC-5, November 21, 2011 (Entergy Clarification Motion),
(ML11325A433). Although the Board clarified its earlier ruling, it rejected Entergys substantive position. Entergy Nuclear Operations, Inc. (Indian Point Generating Units 2 and 3),
Order (Granting Entergys Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5) December 6, 2011 (Clarification Order). One focus of Entergys Clarification Motion (at 2-3) was the portion of NYS-38 that challenged the adequacy of Entergys proposal to address PWSCC for the nickel alloy or nickel-alloy clad steam generator (SG) divider plates exposed to reactor coolant, a problem which could impact components directly relevant to plant safety (Contention Filing at 2). With regard to this portion of NYS-38 Entergy asked that the Board confine the scope of the contention to Entergys Commitment 41. The Board clarified its earlier ruling, but ruled against Entergy on the merits. The Board held that:
[t]he language of our November 10, 2011 Memorandum and Order did not limit NYS-38/RK-TC-5 solely to Commitment 41. Rather, in finding NYS-38/RK-TC-5 admissible, we admitted the Intervenors broad contention, which relied on multiple bases including the claim that there is insufficient information in Entergys recent commitments that were addressed in the SSER.
Clarification Order at 3.
Entergys present Motion in Limine with regard to NYS-38 is essentially a reargument of 3
the same position it unsuccessfully urged in its Motion for Clarification, focusing again on an attempt to limit the testimony regarding NYS-38 and steam generator component cracking to Entergys Commitment 41. For the same reasons already articulated by the Board in its Clarification Order, the Motion in Limine should be denied.
ARGUMENT I. THE BOARD SHOULD REJECT ENTERGYS RENEWED ATTEMPT TO LIMIT THE SCOPE OF CONTENTION NYS-38 Entergys request to limit the intervenors testimony, evidence, and arguments is wrong on the facts and on the law.
A. Entergy Is Factually Wrong Entergys Motion in Limine is factually in error because the scope of NYS-38 is not limited to a challenge to Entergys Commitment 411 and encompasses all the proposed plans to address cracking in the steam generator that may cause cracks in safety related components where Entergy is not now providing the details of its proposed approaches. The bases for NYS-38 specifically reference the August 2011s SSER at pp. 3-18 to 3-19. Contention Filing at 2.2 That reference is provided in the context of the assertion that Entergy has failed to provide the 1
In its Motion in Limine Entergy focuses on the steam generator portion of NYS-38 as though it were only a challenge to a specific commitment. Entergy repeatedly frames NYS-38 and supporting reports and testimony as though they now, for the first time, seek to challenge Commitment 42. However, in its Attachment to the Motion in Limine, identifying the offending statements, Entergy does not identify a single reference to Commitment 42 in those documents. NYS-38 is not focused on what Entergy has agreed to do in its commitments, but rather on what Entergy has not agreed to do and will not do - i.e., it is has not agreed to make the details of its plan to address cracking in portions of the steam generators, including the propagation of those cracks into safety related components, prior to the conclusion of these hearings and the proposed commencement of an extended period of operation. It is Entergy, not New York, that keeps raising Commitment 42 and asserting that NYS-38 is limited to only challenging Commitment 41. This attempt by Entergy to create a narrow contention focused on a single Entergy commitment is not only inconsistent with NYS-38, which does not mention Commitment 41, but has already been rejected by the Board in its December 6, 2011 Clarification Order as discussed in more detail in this submission.
2 NYS-38 was necessarily focused on the SSER, not previously filed or amended Commitments by Entergy, since the trigger for the timely filing of that contention was the publication of the SSER and Staffs agreement in the SSER to accept Entergys proposed approach to delay providing the details of its plan to address PWSCC in steam generator components.
4
specifics regarding all of its plans to address the problem of cracking that begins with the divider plate assemblies and spreads. Those pages of the SSER demonstrate cracking of divider plate assemblies is a safety related concern because, inter alia, of the potential impact on tube-to-tubesheet welds.
The staff noted that, although these SG divider plate assembly cracks might not have a significant safety impact in and of themselves, these cracks could affect adjacent items that are part of the reactor coolant pressure boundary, such as the tubesheet and the channel head, if they propagate to the boundary with these items. The staff further noted that for the tubesheet, PWSCC cracks in the divider plate assemblies fabricated from Alloy 600 and its associated weld metals could propagate to the tubesheet cladding, with possible consequences to the integrity of the tube-to-tubesheet welds.
SSER at 18. Thus, when the bases for NYS-38 assert that Entergy has acknowledged a problem with primary water stress corrosion cracking (PWSCC) for the nickel alloy or nickel-alloy clad steam generator (SG) divider plates exposed to reactor coolant, a problem which could impact components directly relevant to plant safety. SSER at 3-18 to 3-19 (Contention filing at 2 (emphasis added)), the contention directly references the portion of the SSER that links problems with divider plates cracking and tube-to-tubesheet welds and the need to have disclosed plans for inspections of those components.
If NYS-38 had not made that linkage, i.e., if the problems with the divider plate welds did not implicate the tube-to-tubesheet welds, Entergy or Staff might have argued that NYS-38 was not admissible as it would not implicate a material safety issue. The SSER notes that these SG divider plate assembly cracks might not have a significant safety impact in and of themselves and it is only because they can propagate to safety significant components that there is any safety concern. SSER at 3-18.3 However, as NYS-38 points out, Entergys plan to address these safety 3
The State also presented evidence that the failure of the steam generator divider plate could also impede the heat transfer function of the steam generator and interfere with its heat sink function. See, e.g., Pre-filed Testimony of Dr. Richard T. Lahey at 20 (Exhibit NYS000374); Report of Dr. David Duquette at 11 (Exhibit NYS000373).
5
problems involves (1) waiting for an industry standard that has yet to be developed and (2) engaging in some undefined inspection program, the details of which are not to be provided for years, in order to ascertain whether SG divider plate assembly cracks are creating cracking of critical safety components, like tube-to-tubesheet welds.
Moreover, in his September 30, 2011 declaration, Dr. Lahey discussed both the divider plate assembly and the tube-to-tube sheet welds. Lahey Declaration at ¶¶ 5, 6 (available in ADAMS package ML11273A190) .
- 5. The details of the inspections for primary water stress corrosion cracking (PWSCC) in the steam generators divider plates will apparently not be available until well after extended operations are expected to begin.
- 6. Inspections of the steam generators tube-to-tubesheet welds in IP-2 for PWSCC will not be made until sometime between March 2020 and March 2024 (i.e., well after the proposed extended operation period has begun). This is particularly troubling since these welds form part of the primary systems pressure boundary, and if they fail radiation may be released to the secondary side and also to the environment.
Dr. Lahey was reinforcing the statement in NYS-38 and the SSER that the safety significance of divider plate assembly cracks is their potential to propagate to critical safety components like tube-to-tubesheet welds. Not only did Dr. Laheys supporting declaration specifically discuss this, but Entergys own Answer also acknowledged the tube-to-tubesheet weld issue. Entergy Opposition To Contention at 24, n. 94. While Entergy asserted in its opposition to NYS-38 that this statement by Dr. Lahey was outside the scope of the Contention (id.), it did not move to strike that portion of his declaration. Rather, it is clear Entergy comprehended the relevance of what Dr. Lahey was saying and its relation to NYS-38. On the preceding page of its Opposition, Entergy recognized that the thrust of NYS-38 was that cracks in the divider plates could impact critical components of the reactor that are attached to the divider plates, quoting from the 6
relevant portion of the Contention Filing. Entergy Opposition To Contention at 23, n. 88 (Industry experience as accumulated by EPRI and others has confirmed that water chemistry control is insufficient to prevent cracking in divider plates for steam generator tubes and that some of these divider plates are attached to components of the reactor that are critical for safety and that may be adversely affected by such cracking. New Contention at 7). In short, Entergy has known since NYS-38 was filed of the concern with cracking in the safety related components whose integrity could be affected by divider plate assemblies, components identified in the SSER pages referenced in the bases for the contention and that are referenced in both the Contention Filing and sought to be refuted in Entergys Opposition To Contention.
Entergy not only misreads the record of NYS-38 it also misreads this Boards rulings on the admissibility of NYS-38. In its initial ruling on NYS-38, the Board held that Intervenors have broadly contended, 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. Entergy Nuclear Operations, Inc. (Indian Point Generating Units 2 and 3), Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5)
November 10, 2011 (Initial Admission Order) at 10 (fn. omitted). The Board summarized the basis for NYS-38, focusing in part, as does NYS-38, on the proposed delayed development of an adequate inspection program.
These bases are that Entergy . . . has not adequately defined how it will manage 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.
Id. at 10-11, n. 47.
Were there any doubt that the Board intended to admit NYS-38 on the basis that it was a 7
broad challenge to all of Entergys deferred inspection programs as they relate to PWSCC and was not limited only to Commitment 41, which relates to inspections of steam generator divider plates exposed to reactor coolant, that doubt was resolved by the Boards December 6, 2011 Clarification Order. As it does here, Entergy there sought to limit NYS-38, as it relates to concerns with PWSCC, to Commitment 41. The Board clarified its earlier Order and ruled
[t]he language of our November 10, 2011 Memorandum and Order did not limit NYS-38/RK-TC-5 solely to Commitment 41. Rather, in finding NYS-38/RK-TC-5 admissible, we admitted the Intervenors broad contention, which relied on multiple bases including the claim that there is insufficient information in Entergys recent commitments that were addressed in the SSER.
Entergy Nuclear Operations, Inc. (Indian Point Generating Units 2 and 3), Clarification Order at
- 3. Entergy essentially ignores this ruling, a ruling it neither sought to have reconsidered nor sought to have reviewed by the Commission on an interlocutory basis. Essentially, the Motion in Limine is a thinly disguised challenge to a ruling the Board issued 7 months ago. For the same reasons already articulated by the Board, the Motion in Limine should be denied.
B. Entergy Is Legally Wrong The legal question raised by Entergys Motion is not whether testimony that is clearly outside the scope of an admitted contention and its bases should be stricken, but rather what standards should be used in deciding whether the testimony is outside the scope of an admitted contention and its bases. Entergys view of that legal question represents a gross distortion of Commission practice and would, if adopted, plunge NRC proceedings into the abyss of common law pleading technicalities that led to the 1937 modernization of the Federal Rules of Civil Procedure. According to Entergy, the fact that the scope of a contention is defined by its bases requires that the bases be examined with a fine toothed comb and that inferences that can be reasonably drawn from the bases as to their scope, should be ignored. Thus, although NYS-38 is 8
addressed to the inadequate detail in Entergys proposed approach to address PWSCC in steam generator components and identifies portions of the SSER that specifically link cracks in divider plates to crack propagation to safety related components like tube-to-tubesheet welds and specifically indicates that it is these propagation cracks in safety related components that are of concern, nonetheless NYS-38 should not be read to include a challenge to Commitment 42 which, with Commitment 41, addresses inspections of divider plates and tube-to-tubesheet welds. That kind of fly-specking has been rejected by the Federal Rules in favor of rules that are to be construed and administered to secure the just, speedy, and inexpensive determination of every action. Federal Rules of Civil Procedure (Fed. R. Civ. P.) Rule 1.
NRC frequently looks to the Federal Rules of Evidence and the Federal Rules of Civil Procedure (Fed.R.Civ.P.) for guidance. For example: Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site) Docket No. 52-008-ESP; ASLBP No.04-822 ESP, 2007 NRC LEXIS 51 (March 20, 2007) (referencing Rule 30(b)(6) of the Federal Rules of Civil Procedure to define the requirements for hearing witnesses); U.S. Department Of Energy (High Level Waste Repository: Pre-Application Matters) Docket No. PAPO-00; ASLBP No. 04-829-01-PAPO, 2007 NRC LEXIS 52 (April 19, 2007) (referencing Rule 26(b)(5) of the Federal Rules of Civil Procedure with regard to privilege logs); and Entergy Nuclear Vt. Yankee, Docket No. 50-271-LR; ASLBP No. 06-849-03-LR, 2007 NRC LEXIS 90 (August 10, 2007) (In general, the Commission applies the same standard that the federal courts apply when ruling on motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.); see also 69 Fed. Reg. 2182, 2187, Changes to Adjudicatory Process (January 14, 2004) (Although the Commission has not required the application of the Federal Rules of Evidence in NRC adjudicatory proceedings, presiding officers and Licensing Boards have always looked to the 9
Federal Rules for guidance in appropriate circumstances.).
The Federal Courts have had numerous occasions to pass on the criteria to be used in interpreting those rules.
The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Cf.
Maty v. Grasselli Chemical Co., 303 U.S. 197.
Conley v. Gibson, 355 U.S. 41, 48 (1957). Recent Supreme Court decisions, while increasing the obligation on a plaintiff to describe in some detail the basis for a claim, much as NRC has done with the its requirement for a brief explanation of the basis for a contention (10 C.F.R. § 2.309(f)(1)(ii)), continue to apply the practical standards adopted in Conley that judge the adequacy of a pleading by whether it will give the defendant fair notice of what the . . . claim is and the grounds upon which it rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
There is no doubt that Entergy knows, and has known ever since it objected to language appearing in the September 30, 2011 Declaration of Dr. Lahey linking NYS-38 to the propagation of cracks in divider plates to the tube-to-tubesheet welds (Entergy Opposition To Contention at 24, n. 94) and ever since it filed its Clarification Motion, that NYS-38 was concerned with this issue. Thus, its current Motion, in addition to merely rehashing arguments it already made and lost when it filed its Clarification Motion, is based on its attempt to turn the pleading requirements of the NRC into a game of skill rather than to facilitate a proper decision on the merits. Conley, 355 U.S. at 48.
Entergy will also find no support for its Motion in the long-standing principle that the contention requirements of Part 2 are strict by design. As the Commission made clear when it first articulated that concept, the purpose of the bases requirements is not to place a straightjacket 10
on legitimate issues raised by intervenors but to avoid speculative contentions and provide sufficient information to assure that an applicant is on notice of the concerns raised by the intervenors.
Our contention rule is strict by design. The Commission toughened it in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation. Oconee, 49 NRC at 334. . . . The Commission responded with the 1989 contention rule revisions, which insist upon some reasonably specific factual and legal basis for the contention. See Oconee, 49 NRC at 334; see also Final Rule, 54 Fed. Reg.
at 33,171. Under the rule, presiding officers may not admit open-ended or ill-defined contentions lacking in specificity or basis. See 10 C.F.R. § 2.714(b); see generally Final Rule, 54 Fed. Reg. 33,168. Petitioners must articulate at the outset the specific issues they wish to litigate as a prerequisite to gaining formal admission as parties. Oconee, 49 NRC at 388. See also Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998).
Dominion Nuclear Connecticut Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 54 N.R.C. 349, 358-59 (2001)(emphasis added). The State of New York notes that the Millstone proceeding involved an objection by citizen groups to the relocation of effluent controls from technical specifications to a manual, known by the acronym REMODCM. In rejecting the groups efforts to initiate a proceeding, the Commissioners found the petitioners allegations surely fall short of an admissible contention, for they fail to offer any specific explanation, factual or legal, for why the consequences they fear will occur if these particular technical specifications are transferred to the REMODCM and that their statements evince little familiarity with nuclear plant operations. 54 N.R.C. at 360 (emphasis added). In contrast, in Contention NYS-38 / RK-TC-5, the State has not sought review of inchoate, vague or speculative theories, but rather has presented a clearly explained contention and statements from nationally recognized engineering experts.
Finally, Entergys Motion in Limine is based on an interpretation of the standards for limiting testimony that are at odds with this Boards prior rulings on the proper use of in limine 11
motions. Contrary to those rulings Entergys Motion is based on reading NYS-38 and its bases as narrowly as possible, ignoring specific statements in the bases and ignoring the information contained in the cited references that would put any reader on notice that NYS-38 is concerned with the delay in the development of inspection plans for all aspects of the steam generator components that are vulnerable to PWSCC.
In assessing motions in limine in this proceeding, the Board has focused on the scope of the Contentions reasonably inferred bounds. Entergy Nuclear Operations, Inc. (Indian Point Generating Units 2 and 3), Order (Granting in Part and Denying in Part Applicants Motions in Limine) at 10 (Mar. 6, 2012) (unpublished) (March 6, 2012 Board Order). The Board noted that NRCs licensing process is dynamic. Id. at 3-4 (quoting Curators of the Univ. of Missouri (TRUMP-S Project), CLI-95-08, 41 N.R.C. 386, 395 (1995)). The Board recognized that, in evaluating motions in limine, the issue is whether distinctly new complaints [have been]
add[ed] . . . stretching the scope of admitted contentions beyond their reasonably inferred bounds. March 6, 2012 Board Order at 3-4 (quoting Entergy Nuclear Generation Co. &
Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. 287, 309 (2010) (emphasis added)). Rather than exclude evidence, the Board has generally opted to give all evidence its appropriate weight at evidentiary hearing in the context of evaluating the specific issue before [it]. March 6, 2012 Board Order at 20; see also id. at 24; cf. Licensing Board Order (Denying New Yorks Motion in Limine and Holding Riverkeepers Motion in Limine in Abeyance) at 6 (June 1, 2012) (unpublished) (While some of the testimony provided by Entergy and the NRC Staff might appear as statements of a witnesss opinion as to what the law requires, we are comfortable exercising our responsibility to interpret independently what the law is.).
12
II. ENTERGYS ATTACK ON DR. HOPENFELD AND RIVERKEEPERS EXHIBITS LACKS MERIT Entergy would prefer that the ASLB not review documents concerning Dr. Hopenfelds involvement with aging degradation of steam generators, reactor vessels, and other components.
At the same time Entergy questions Dr. Hopenfelds experience - experience gained while employed by the Nuclear Regulatory Commission and private sector. Entergy cannot have it both ways. Having decided to try to discredit Dr. Hopenfeld, it should not be allowed to preclude the introduction of documents into the record that support Dr. Hopenfeld experience.
At various junctures in this proceeding, Entergy has lodged sweeping criticisms about the ability of Dr. Hopenfeld to provide expert testimony in relation to the aging phenomenon of metal fatigue. For example, it is no secret that in January 2012 Entergy argued that Riverkeeper has not carried its burden of demonstrating that Dr. Hopenfeld holds any specialized knowledge in the field of metal fatigue analysis, such that he can assist the Board in understanding the evidence. March 6, 2012 Board Order at 14-15 (rejecting Entergys argument).4 Subsequently, in Entergys Statement of Position relating to Consolidated Contention NYS-26B/RK-TC-1B, Entergy once again took issue with Dr. Hopenfelds expertise on metal fatigue issues. Entergy again claimed that Dr. Hopenfeld held no specialized knowledge in the field of metal fatigue, and argued that, as a result, the Board should accord little or no weight to his testimony.
Entergys Statement of Position Regarding Contention NYS-26B/RK-TC-1B (Metal Fatigue)
(March 29, 2012) (ENT000182), at 28-29, ADAMS Accession No. ML12089A240.
4 Entergy has designated the entirety of its January 30, 2012 Motion in Limine as confidential. Riverkeeper respectfully refers the Board to Entergys Motion in Limine to Exclude Portions of Pre-Filed Direct Testimony, Expert Report, Exhibits, and Statement of Position for Contention NYS-26B/RK-TC-1B (Metal Fatigue) (January 30, 2012), at 7-9, for a discussion of Entergys litigation approach to Dr. Hopenfeld in this proceeding.
13
The exhibits Entergy now objects to speak directly to the ample expertise held by Dr.
Hopenfeld pertaining to relevant metal fatigue issues. In light of Entergys vehement and repeated attempts to refute Dr. Hopenfelds credibility and expertise, information demonstrating his ability to testify to such issues is highly relevant to joint contention NYS-26B/RK-TC-5, for which Dr. Hopenfeld testifies specifically in relation to metal fatigue.
There is simply no basis for Entergys claim that there is no apparent nexus between the documents provided as exhibits, and the admitted contention. To the contrary, Dr.
Hopenfelds testimony specifically explains how the relevant supporting documents relate to and demonstrate his expertise in metal fatigue related issues. See Pre-filed Written Testimony of Dr.
Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012) (RIV000102), at 2-4.
In particular, Exhibit RIV000103 (J. Hopenfeld et al., Small Sodium to Gas Leak Behavior in Relation to LMFBR Leak Detection, Intl Conference on Liquid Metal Tech. (May 1976)) relates to the effects of the leak environment on fatigue crack growth in sodium. Similarly, Exhibits RIV000104 (Memorandum from S. Collins (RES) to W. Travers (EDO), Steam Generator Action Plan Revision to Address Differing Professional Opinion on Steam Generator Tube Integrity (WITS ITEM 200100026) (May 11, 2001)) and RIV000105 (NUREG-1740, Voltage-Based Alternative Repair Criteria, A Report to the Advisory Committee on Reactor Safeguards by the Ad Hoc Subcommittee on a Differing Professional Opinion (March 2001)) relate to steam generator degradation issues that Dr. Hopenfeld was extensively involved in, including crack detection, and, as explained in Dr. Hopenfelds testimony, the subject of these documents, including crack formation and detection is directly related to fatigue analysis and fatigue management. Lastly, RIV000106 (Associated Press, Nuke inspectors focus on unusual wear on tubes, Fox News.com (Feb. 3, 2012)), also relates to and demonstrates Dr. Hopenfelds 14
experience, familiarity, and expertise with tube degradation issues, which, once again, relate to metal fatigue. See Pre-filed Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012) (RIV000102), at 2-4.
In sum, the exhibits which Entergy objects to were offered to, and in fact, elucidate the relevant experience and expertise that Dr. Hopenfeld holds with respect to metal fatigue related issues, and squarely supports Dr. Hopenfelds testimony on joint contention NYS-38/RK-TC-5.
Entergys attempt to exclude these exhibits is, thus, completely unfounded, especially in light of Entergys position relating to Dr. Hopenfelds expertise on such issues.
The ASLB should, therefore, deny Entergys request to exclude Riverkeeper Exhibits RIV000103, RIV000104, RIV000105, and RIV000106. Exclusion is particularly improper since the ASLB is well suited to afford the weight it deems necessary to such exhibits.5 CONCLUSION The State or New York and Riverkeeper request that the Atomic Safety and Licensing Board deny Entergys motion in limine.
5 See Amergen Energy Comp, LLC (Oyster Creek Nuclear Generating Station, Docket No. 50-0219-LR, ASLBP No.
06-844-01-LR, 2007 NRC LEXIS 120, *1 (Sept. 12, 2007) (explaining how licensing board chose to refrain from actually expunging [any] irrelevant material from the record [r]ather, to the extent we conclude that material is irrelevant or otherwise inadmissible, we will accord it no weight); Amergen Energy Comp., LLC, (License Renewal for Oyster Creek Nuclear Generating Station), Docket No. 50-0219-LR, ASLBP No. 06-844-01-LR, Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification), August 9, 2007, at 2, ADAMS Accession No. ML072210832; Nuclear Innovation North America, LLC, (South Texas Project Units 3 and 4), Docket Nos. 52-12-COL and 52-13-COL, ASLBP No. 09-885-08-COL-BD01, Order (Ruling on Motions in Limine), July 14, 2011, at 3, ADAMS Accession No. ML11195A093.
15
Respectfully submitted, Signed (electronically) by Signed (electronically) by John J. Sipos Kathryn Liberatore Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General for the State of New York for the State of New York The Capitol 120 Broadway Albany, New York 12227 New York, New York 10271 (518) 402-2251 (212) 416-8482 Signed (electronically) by Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, New York 10562 (914) 478-4501 July 16, 2012 16
10 C.F.R. § 2.323 Certification In accordance with the Boards Scheduling Order of July 1, 2010 (at 8-9) and 10 C.F.R. § 2.323(b), the undersigned counsel hereby certifies that counsel for the State of New York and Riverkeeper have participated in discussions initiated by Entergy Nuclear Operations, Inc.
(Entergy or the movant), with the movant and NRC Staff, concerning Entergys Motion in Limine to Exclude Portions of Intervenors Pre-Filed direct Testimony, Expert Report, Statement of Position, and Exhibits for Contention NYS-38/RK-TC-5, filed on July 6, 2012 in this matter, and has made a sincere effort to make themselves available to listen and respond to the movant and NRC Staff, and to resolve the factual and legal issues raised in the motions. The State of New York and Riverkeepers efforts to resolve the issues have been unsuccessful. During said consultation, NRC Staff informed the parties that it would not file a submission in connection with the motion.
Signed (electronically) by Signed (electronically) by John J. Sipos Deborah Brancato, Esq.
Assistant Attorney General Riverkeeper, Inc.
Office of the Attorney General 20 Secor Road for the State of New York Ossining, New York 10562 The Capitol (914) 478-4501 Albany, New York 12227 (518) 402-2251 July 16, 2012
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re: Docket Nos. 50-247-LR and 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. July 16, 2012
x CERTIFICATE OF SERVICE I hereby certify that on July 16, 2012, copies of the State of New York and Riverkeepers Joint Answer to Entergys Motion In Limine on Contention NYS-38/RK-TC-5 were served electronically via the Electronic Information Exchange on the following recipients:
Lawrence G. McDade, Chair Administrative Judge Michael F. Kennedy Atomic Safety and Licensing Board Panel Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 3 F23 11545 Rockville Pike Two White Flint North Rockville, MD 20852-2738 11545 Rockville Pike Lawrence.McDade@nrc.gov Rockville, MD 20852-2738 Michael.Kennedy@nrc.gov Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov 1
Shelbie Lewman, Esq. Law Clerk Kathryn M. Sutton, Esq.
Anne Siarnacki, Esq., Law Clerk Paul M. Bessette, Esq.
Atomic Safety and Licensing Board Panel Jonathan Rund, Esq.
U.S. Nuclear Regulatory Commission Raphael Kuyler, Esq.
Mailstop 3 F23 Morgan, Lewis & Bockius LLP Two White Flint North 1111 Pennsylvania Avenue, NW 11545 Rockville Pike Washington, DC 20004 Rockville, MD 20852-2738 ksutton@morganlewis.com Shelbie.Lewman@nrc.gov pbessette@morganlewis.com Anne.Siarnacki@nrc.gov jrund@morganlewis.com rkuyler@morganlewis.com Office of Commission Appellate Adjudication Martin J. ONeill, Esq.
U.S. Nuclear Regulatory Commission Morgan, Lewis & Bockius LLP Mailstop 16 G4 Suite 4000 One White Flint North 1000 Louisiana Street 11555 Rockville Pike Houston, TX 77002 Rockville, MD 20852-2738 martin.oneill@morganlewis.com ocaamail@nrc.gov Elise N. Zoli, Esq.
Office of the Secretary Goodwin Procter, LLP Attn: Rulemaking and Adjudications Staff Exchange Place U.S. Nuclear Regulatory Commission 53 State Street Mailstop 3 F23 Boston, MA 02109 Two White Flint North ezoli@goodwinprocter.com 11545 Rockville Pike Rockville, MD 20852-2738 William C. Dennis, Esq.
hearingdocket@nrc.gov Assistant General Counsel Entergy Nuclear Operations, Inc.
Sherwin E. Turk, Esq. 440 Hamilton Avenue David E. Roth, Esq. White Plains, NY 10601 Beth N. Mizuno, Esq. wdennis@entergy.com Brian G. Harris, Esq.
Anita Ghosh, Esq. Robert D. Snook, Esq.
Office of the General Counsel Assistant Attorney General U.S. Nuclear Regulatory Commission Office of the Attorney General Mailstop 15 D21 State of Connecticut One White Flint North 55 Elm Street 11555 Rockville Pike P.O. Box 120 Rockville, MD 20852-2738 Hartford, CT 06141-0120 sherwin.turk@nrc.gov robert.snook@ct.gov david.roth@nrc.gov beth.mizuno@nrc.gov brian.harris@nrc.gov anita.ghosh@nrc.gov 2
Melissa-Jean Rotini, Esq. Manna Jo Greene, Director Assistant County Attorney Karla Raimundi, Environmental Justice Office of the Westchester County Attorney Associate Michaelian Office Building Stephen Filler, Esq., Board Member 148 Martine Avenue, 6th Floor Hudson River Sloop Clearwater, Inc.
White Plains, NY 10601 724 Wolcott Avenue MJR1@westchestergov.com Beacon, NY 12508 Mannajo@clearwater.org Daniel E. ONeill, Mayor karla@clearwater.org James Seirmarco, M.S. stephenfiller@gmail.com Village of Buchanan Municipal Building Phillip Musegaas, Esq.
236 Tate Avenue Deborah Brancato, Esq.
Buchanan, NY 10511-1298 Riverkeeper, Inc.
vob@bestweb.net 20 Secor Road Ossining, NY 10562 Daniel Riesel, Esq. phillip@riverkeeper.org Thomas F. Wood, Esq. dbrancato@riverkeeper.org Victoria S. Treanor, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com Michael J. Delaney, Esq.
Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 (718) 595-3982 mdelaney@dep.nyc.gov Signed (electronically) by John J. Sipos Assistant Attorney General State of New York (518) 402-2251 Dated at Albany, New York this 16th day of July 2012 3