ML12342A248
| ML12342A248 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/07/2012 |
| From: | Bessette P, Dennis W, Glew W, Kuyler R, O'Neill M, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23858, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12342A248 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) December 7, 2012 ENTERGYS ANSWER OPPOSING STATE OF NEW YORK MOTION FOR LEAVE TO FILE ADDITIONAL EXHIBITS CONCERNING CONTENTION NYS-8 I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(b), Entergy Nuclear Operations, Inc. (Entergy) files this Answer opposing the State of New York Motion for Leave to File Additional Exhibits Concerning Contention NYS-8 (Motion), dated December 6, 2012. Two business days before the hearings on the final set of Track 1 contentions, New York State (NYS) proffers four new exhibits that it asserts are relevant to its electrical transformers contention (NYS-8). The Atomic Safety and Licensing Board (Board) should reject the Motion under 10 C.F.R. § 2.337 because NYS has not met its burden to demonstrate that these late-filed proposed exhibits are relevant and material to the litigation of this contention.
Contention NYS-8 raises the question of whether or not electrical transformers should be subject to aging management review (AMR) under 10 C.F.R. Part 54.1 NYS claims that they should be, because they allegedly function without moving parts or without a change in configuration or properties.2 Entergys position is that this claim is a departure from established 1
See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 89 (2008).
2 See New York State Notice of Intention to Participate and Petition to Intervene at 103 (Nov. 30, 2007).
scientific principles and long-standing precedent, particularly because transformers are active components that undergo a change in state as they perform their intended function.3 Evidence proffered on this contention is admissible only if it is relevant and material with respect to this question.4 Because only relevant and material evidence is admissible, the Board may exclude exhibits that are outside the scope of the admitted contention or the proceeding.5 At this late stage of the proceeding, a firm application of these standards is appropriate.6 This is consistent with the Boards statements at the September 24 prehearing teleconference cited by NYS in its Motion, where the Board explained that the admissibility of late-filed exhibits will depend on the argument you make for relevance and why we should consider the document.7 In this case, NYS makes no such arguments in its Motion, and instead merely asserts that its new exhibits are relevant. This is not sufficient under applicable regulations or the clear standard articulated by the Board.
The first two proposed exhibits, NYS000468, NRC Bulletin 2012-01: Design Vulnerability in Electric Power System (July 27, 2012), and NYS000469, Letter from J. Ventosa, 3
See Applicants Statement of Position Regarding Contention NYS-8 (Electrical Transformers) at 2 (Mar. 28, 2012) (ENT000090); see also generally Testimony of Applicant Witnesses Roger Rucker, Steven Dobbs, John Craig, and Thomas McCaffrey Regarding Contention NYS-8 (Electrical Transformers) (Mar. 30, 2012)
(ENTR00091) .
4 See 10 C.F.R. § 2.337(a); see also 10 C.F.R. § 2.319(d) (stating that the presiding officer may strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative, or cumulative); id. § 2.319(e) (stating that the presiding officer may [r]estrict irrelevant, immaterial, unreliable, duplicative, or cumulative evidence and/or arguments).
5 See, e.g., S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), Licensing Board Memorandum and Order (Ruling on In Limine Motions) at 3-7 (Jan. 26, 2009) (unpublished) (granting in part motion to exclude testimony and exhibits outside the scope of the admitted contentions); Licensing Board Order (Denying Clearwaters Motion to Supplement the Record) (Dec. 5, 2012) (unpublished) (Dec. 5, 2012 Order).
6 See, e.g., Dec. 5, 2012 Order at 3 (applying the standards in Section 2.337 to reject immaterial and irrelevant evidence). Notably, two of NYSs new exhibits, NYS000468 and NYS000469, are five months and six weeks old, respectively. The Motion fails to show good cause (or provide any explanation) for the eleventh-hour submission of these long-available documents.
7 Official Transcript of Proceedings, Indian Point Units 2 and 3 License Renewal (Tr.) at 1220 (Sept. 24, 2012) (Judge McDade); see also id. (there will be a procedure for receiving and admitting additional exhibits if we believe theyre relevant) (emphasis added).
2
Entergy, to NRC Document Control Desk, 90-Day Response to Bulletin 2012-01, Design Vulnerability in Electric Power System (Oct. 25, 2012), do not speak to the contested issue of whether or not transformers are passive components that should be subject to AMR. NYS makes no attempt to demonstrate the relevance of these documents to this question. In fact, these documents provide no information about how transformers perform their intended function, and are irrelevant to this proceeding on their face. As the title of NYS000468 indicates, these documents discuss a design vulnerability, not an age-related problem.8 In addition, NRC Information Bulletins, such as NYS000468, address issues that are the subject of ongoing, current-term regulatory oversight by the NRC under 10 C.F.R. Part 50,9 and therefore address issues that are outside the scope of license renewal.10 NYS000468 and NYS000469 are therefore irrelevant, immaterial, and inadmissible.
Similarly, NYS makes no attempt to demonstrate the relevance of NYS00047011 and NYS00047112 to the scope of the admitted contention, and instead merely states that these documents discuss a transformer fire that took place at another Entergy facility.13 As with the other proposed exhibits, these documents provide no information about how transformers perform their intended function and are therefore irrelevant and inadmissible on their face. Just because a document mentions a transformer failure does not make it relevant to this contention.
8 See Entergy Nuclear Vt. Yankee, L.L.C. (Vt. Yankee Nuclear Power Station), LBP-08-25, 68 NRC 763,860, 864 (2008) (finding that design issues that are monitored and corrected under operational maintenance programs are outside the scope of an aging management program).
9 See NYS000468 at 7 (This information request is necessary to permit the NRC staff to verify compliance with the regulatory requirements and current licensing bases.).
10 See, e.g., Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,471, 22,475-476. (May 8, 1995) (NYS000016).
11 James A. Fitzpatrick Nuclear Power Plant Notification of Unusual Event Due to Fire in Main Transformer and Bus Ducting (Nov. 13, 2012).
12 Update: James A. Fitzpatrick Nuclear Power Plant Notification of Unusual Event Due to Fire in Main Transformer (Nov. 28, 2012).
13 See Motion at 3.
3
In addition, the transformer in question was approximately four years old, so the events discussed in NYS000470 and NYS000471 are unrelated to aging management in general.
For the reasons stated above, Entergy respectfully requests that the Board deny NYSs Motion to admit the proffered exhibits into evidence.
Respectfully submitted, Signed electronically by Raphael P. Kuyler William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.
William C. Dennis, Esq. Paul M. Bessette, Esq.
Entergy Nuclear Operations, Inc. Raphael P. Kuyler, Esq.
440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W.
Phone: (914) 272-3202 Washington, D.C. 20004 E-mail: wglew@entergy.com Phone: (202) 739-5738 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com Martin J. ONeill, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail: martin.oneill@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
Dated in Washington, D.C.,
this 7th day of December 2012 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) December 7, 2012 MOTION CERTIFICATION Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.
Executed in accord with 10 C.F.R. § 2.304(d)
Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5796 Fax: (202) 739-3001 E-mail: pbessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) December 7, 2012 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of Entergys Answer Opposing State of New York Motion for Leave to File Additional Exhibits Concerning Contention NYS-8 were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Raphael P. Kuyler Raphael P. Kuyler, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5146 Fax: (202) 739-3001 E-mail: rkuyler@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
DB1/ 72377505 1