ML13017A562
| ML13017A562 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/17/2013 |
| From: | Brancato D, Sipos J Riverkeeper, State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24026, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13017A562 (36) | |
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. January 17, 2013
x STATE OF NEW YORK AND RIVERKEEPER, INC.
ANSWER TO JANUARY 7, 2013 MOTIONS IN LIMINE FILED BY ENTERGY AND NRC STAFF TO STRIKE VARIOUS INTERVENORS PRE-FILED SUBMISSIONS IN SUPPORT OF CONTENTION NYS-38/RK-TC-5 Office of the Attorney General Riverkeeper, Inc.
for the State of New York 20 Secor Road The Capitol Ossining, New York 10562 State Street Albany, New York 12224
TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 PROCEDURAL HISTORY.............................................................................................................2 The ASLBs July 1, 2010 Scheduling Order .......................................................................2 Intervenors September 30, 2011 Submissions....................................................................3 Entergys November 2011 Motion for Reconsideration......................................................5 Intervenors June 19, 2012 Initial Pre-Filed Submissions ...................................................6 Entergys July 2012 In Limine Motion................................................................................6 The § 2.323 Consultation on the January 7, 2013 In Limine Motions ................................6 ARGUMENT POINT I CONTENTION NYS-38/RK-TC-5 INCLUDES CONCERNS ABOUT ENGINEERING JUDGMENT, ASSUMPTIONS, AND USER INTERVENTION..........8 POINT II ENTERGY AND STAFFS OBJECTION TO DR. HOPENFELDS TESTIMONYAND ASSOCIATED EXHIBITS SHOULD BE REJECTED ........................................................................................................................12 POINT III ENTERGYS ATTEMPT TO DELETE PORTIONS OF INTERVENORS STATEMENT OF POSITION IS MISPLACED AND SHOULD BE REJECTED ........................................................................................................................22 CONCLUSION..............................................................................................................................30 i
2 PRELIMINARY STATEMENT Having unsuccessfully sought to defeat or limit Contention NYS-38/RK-TC-5 on three previous occasions, Entergy and NRC Staff have returned for another try. Two business days before the 60-day filing deadline, movants Entergy and NRC Staff initiated consultation efforts with intervenors State of New York and Riverkeeper on movants desire to remove portions of intervenors reply testimony and reply statement of position in support of Contention NYS-38/RK-TC-5. When the State and Riverkeeper did not agree to movants request, Entergy and Staff filed two separate in limine motions necessitating this combined response.
Entergy and NRC Staffs in limine motions differ from each other. Entergys motion seeks to: exclude material beyond what was discussed in the consultation calls, reach back to intervenors June 2012 submissions, and obtain a do over of its July 2012 in limine motion.
Entergy also seeks to strike portions of intervenors statement of position, although this Board has ruled that such statements are not the subject of in limine motions. NRC Staffs motion has a narrower focus that seeks to exclude portions of Dr. Hopenfelds November 2012 reply testimony.1 The Board should reject Entergy and NRC Staffs combined efforts to limit the review of the broadly structured and well supported contention. Entergys motion combines a factually inaccurate foundation, an incomplete recitation of the procedural history and chronology, and a disregard for the law of the case. Moreover, Entergys motion seeks relief that goes well beyond the bounds of what Entergy counsel discussed during the belated § 2.323 consultation process.
1 In this submission, the citation Entergy MIL refers to Entergys January 7, 2013 Motion To Strike Portions Of Intervenors Revised Statement Of Position And Motion In Limine To Exclude Portions Of The Pre-Filed Rebuttal Testimony And Exhibits For Contention NYS-38/RK-TC-5 (Safety Commitments), and the citation NRC Staff MIL refers to NRC Staffs January 7, 2013 Motion In Limine To Exclude Portions Of The Prefiled Rebuttal Testimony Filed By Riverkeeper Concerning Contention NYS-38/RK-TC-5.
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Entergys motion mischaracterizes the testimony of Intervenors expert witnesses when it states:
Intervenors rebuttal testimony raises general objections to the use of engineering judgment in the preparation of environmentally-assisted fatigue (EAF) evaluationsarguments that Intervenors witnesses acknowledge are unrelated to the SSER commitments challenged in this contention, but instead relate to the separate metal fatigue contention, NYS-26B/RK-TC-1B.
Entergy MIL at 2. Contrary to Entergys representation, Dr. Lahey and Dr. Hopenfeld did not acknowledge that their statements were unrelated to the SSER commitments.
PROCEDURAL HISTORY Intervenors respectfully submit that a review of the procedural history of Contention NYS-38/RK-TC-5 may be useful before turning to the contents of Entergys current motion. A summary of the procedural history up to mid-June 2012 appears in Intervenors June 19, 2012 Initial Statement of Position In Support of Joint Contention NYS-38/RK-TC-5, at 15-24 (NYS000371) ML12172A018; Intervenors respectfully request that that document be incorporated here by reference.
The ASLBs July 1, 2010 Scheduling Order On July 1, 2010, the Atomic Safety and Licensing Board issued a Scheduling Order that provides, among other things, the opportunity for parties to submit bona fide motions in limine in response to specific pre-filed evidentiary submissions. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Scheduling Order, ¶ K.4 (July 1, 2010) ML101820387.
The Order stated:
Motions In Limine or to Strike. No later than thirty (30) days after service of the materials submitted by intervenors and/or interested governmental entities under paragraphs K.1 or K.3 or by Entergy and the NRC Staff under paragraph K.2, the parties shall file any motions in limine or motions to strike regarding the materials submitted under paragraphs K.1 through K.3. Answers shall be filed no later than ten (10) days after service of such motions.32 2
32 A Motion in limine or to strike regarding a submission made pursuant to Section K.1. must be filed within thirty (30) days after the Section K.1.
submission is made. Likewise a Motion regarding a submission made pursuant to Section K.2. must be filed within thirty (30) days after the Section K.2.
submission is made, etc.
ASLB July 1, 2010 Scheduling Order, ¶ K.4. Thus, the Scheduling Order provided Entergy and NRC with one opportunity to seek to strike intervenors initial (¶ K.1) evidentiary submissions and a separate opportunity to seek to strike intervenors revised (¶ K.3) evidentiary submissions.
As is clear from the text of the motion and attached chart, the Entergy MIL violates the Scheduling Order by seeking to use the opportunity to strike the revised (¶ K.3) evidentiary submissions to also reach back and strike the intervenors initial (¶ K.1) evidentiary submissions.
Intervenors September 30, 2011 Submissions On September 30, 2011, the State of New York and Riverkeeper submitted proposed Joint Contention NYS38 / RK-TC-5. This contention alleged that Entergys Aging Management Programs (AMP) are not in compliance with 10 C.F.R. §§ 54.21(a)(3) and (c)(1)(iii), as well as 42 U.S.C. §§ 2133(b, d) and 2232(a), because they fail to provide detailed plans as to the companys various AMPs at Indian Point, instead promising details in the future. This lack of detail, it was alleged, should result in a denial of the requested licenses because the lack of that information threatens the health and safety of the public, and does not provide the NRC with a sufficient record upon which to make a decision regarding plant safety. State of New York and Riverkeepers New Joint Contention NYS-38/RK-TC-5, ¶ 19 (Sept. 30, 2011) (ML11273A196).
Intervenors argued that, because Entergy has, at most, promised to provide a demonstration in the future that it will meet the requirements of 10 C.F.R. §§ 54.21(a)(3) and (c)(1)(iii), but is not making that demonstration at this time, it has failed to meet the requirements of 10 C.F.R. § 3
54.29(a) and its application for a renewed license for Indian Point Units 2 and 3 should be denied. Id. at ¶ 5.
In addition to the contention itself, New York and Riverkeeper submitted the declaration of Dr. Richard T. Lahey, Jr., who stated that Entergys submitted AMPs lacked the detail necessary for the NRC and New York State to conduct a proper analysis. In addition, he stated that as a result of Entergys plans to wait until at least 2013 to finalize AMPs for its steam generators (based on EPRIs Steam Generator Management Program), critical tube-to-tubesheet welds in IP-2s steam generators would not be inspected until between March 2020 and March 2024 for IP-2 and March 2016 to March 2017 for IP-3. Declaration of Dr. Richard T. Lahey, Jr.,
¶ 6 (Sept. 30, 2011) (ML11273A192) (NYS000302). He also stated that Entergy's assumptions regarding metal fatigue analysis were unknown and will remain so until immediately before relicensing would take effect. As part of that submission, Dr. Lahey discussed concerns about engineering assumptions and judgments and user intervention in fatigue calculations for limiting locations. Id., at ¶¶ 7-11.
New York and Riverkeeper also submitted the declaration of Dr. Joram Hopenfeld, in which he stated, among other things, that Entergy had made only a vague commitment to perform necessary metal fatigue investigation and analysis in the future, and that it had not met its burden under 10 C.F.R. § 54.21(c). Declaration of Dr. Joram Hopenfeld, LB 07-858-03, ¶ 14 (Sept. 30, 2011) (ML11273A194).
On November 10, 2011, the Atomic Safety and Licensing Board issued an opinion admitting Joint Contention NYS38 / RK-TC-5. The ASLB found the State of New York and Riverkeepers Contention to be timely and reasoned that, based on New York State and Riverkeepers arguments, there were adequate grounds to conduct an evidentiary hearing on the 4
issue. According to the Board, The 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 Nuclear Generating Units 2 and 3), Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5), slip op. at 10 (Nov. 10, 2011)
(ML113114A211).
Entergys November 2011 Motion for Reconsideration On November 21, 2011, Entergy filed a motion for clarification concerning the ASLBs decision to admit Contention NYS-38/RK-TC-5. Entergy specifically requested clarification on the scope of the contention and the schedule for filing evidence related to the contention. The company requested that the contention be limited to Entergy proposed Commitment 41 and its adequacy related to the AMP for detecting PWSCC in steam generator divider plate assemblies.
Applicants Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5, at 3 (Nov. 21, 2011) (ML11325A433).
On December 5, 2011 the Atomic Safety and Licensing Board granted Entergys motion for clarification, but denied the substantive relief that Entergy sought, that of limiting the scope of the contention to Commitment 41. The Board agreed with the State of New York and Riverkeeper that Contention NYS-38/RK-TC-5 was broad in scope and reasserted its position in admitting the contention that Intervenors had raised multiple bases for their claims, which should be subject to further evidentiary proceedings. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting Entergys Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5), slip op. at 3 (Dec. 6, 2011) (ML11340A088).
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Intervenors June 19 2012 Initial Pre-Filed Submissions On June 19, 2012, Intervenors filed their Initial Statement of Position in support of Contention NYS-38/RK-TC-5 along with the pre-filed testimony of Drs. Lahey, Hopenfeld, and Duquette and supporting exhibits. Among other things, in his June 19, 2012 submission, Dr.
Lahey discussed concerns about engineering assumptions and judgments and user intervention in fatigue calculations for limiting locations.. NYS000374 at pp. 22-32 (submitted June 19, 2012).
Dr. Hopenfelds June 19, 2012 testimony included, among other things, statements concerning Entergys failure to provide sufficient details regarding the methodology for determining the most limiting locations requiring metal fatigue analyses at Indian Point, and the appropriate considerations in making such a determination. RIV000102 (submitted June 19, 2012).
Entergys July 2012 In Limine Motion Following the submission of intervenors initial pre-filed testimony, exhibits, and Statement of Position, Entergy filed an in limine motion seeking to exclude portions of intervenors pre-filed testimony and exhibits. Entergys Motion In Limine to Exclude Portions of Intervenors Prefiled Direct Testimony, Expert Report, Statement of Position, and Exhibits For Contention NYS-38/RK-TC-5 (Safety Commitments) (Jul. 6, 2012) ML12188A747. That motion, which Staff did not join in, sought to strike portions of Dr. Duquette and Dr. Lahey submissions and the Statement of Position concerning steam generators and various exhibits associated with Dr. Hopenfelds testimony and Commitment 42.
This Board rejected Entergys challenge to the intervenors initial pre-filed testimony and exhibits. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),Order (Denying Entergys Motion in Limine Seeking to Exclude Portions of Intervenors Direct Evidence Addressing Contention NYS-38/RK-TC-5) (Aug 16, 2012) ML12229A432.
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Entergys current motion in limine once again attempts to limit the scope of NYS-
- 38. In denying this motion we reiterate that NYS-38 is a broad contention, the scope of which is not limited to Entergy Commitments 30, 41, 43, and 44.
Instead it broadly encompasses the claim that there is insufficient information in Entergys Commitments as addressed in the SSER. Accordingly, Entergys instant Motion in limine is denied.
ASLB August 16, 2012 Order at 3-4 (emphasis in original).
The § 2.323 Consultation on the January 7, 2013 In Limine Motions On the afternoon of Thursday January 3, 2013, attorney Raphael Kuyler on behalf of Entergy notified counsel for intervenors that Entergy wished to consult in advance of filing a motion in limine in response to intervenors November 9, 2012 pre-filed rebuttal evidentiary submissions. See Attachment 1 hereto (Jan. 3, 2012 1600h e-mail from R. Kuyler (Entergy counsel)). The parties held a conference call the next day Friday, January 4, 2013 to discuss Entergys proposal. Counsel for NRC Staff also participated in the call and generally indicated Staffs intent to also file a motion in limine. The parties held a second consultation call on Monday, January 7, 2013. During that call, the parties did resolve one potential issue regarding a Nucleonics Week article(thereafter submitted as NYS000472). At no time during the consultation process did Entergy indicate that it would also seek to strike the Intervenors initial pre-filed evidentiary submissions that had been filed back in June 2012. The consultation discussions concerning Dr. Laheys rebuttal submission centered on the second half of page 14 and page 15 of his rebuttal testimony. Moreover, movants counsel did not identify Dr. Laheys rebuttal testimony (p. 9) about the governments reactor sustainability program as a topic of an impending motion.
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ARGUMENT POINT I CONTENTION NYS-38/RK-TC-5 INCLUDES CONCERNS ABOUT ENGINEERING JUDGMENT, ASSUMPTIONS AND USER INTERVENTION The scope of NYS-38/RK-TC-5 includes concerns about the use of engineering judgment in fatigue calculations. Entergys MIL at 5. In admitting NYS-38, the Board held that it is a broad contention with multiple bases.2 The contention includes, as a basis, that Entergy now concedes that there may be more limiting locations but that the identification of the detailed process to be used to determine the most limiting locations for which CUFen calculations will be made and selection of those locations will not be disclosed prior to completion of the license review process. State of New York and Riverkeepers New Joint Contention NYS-38/RK-TC-5 at ¶ 2. (Sept. 30, 2011) The contention itself includes, as a basis, that Entergy now asserts that it will use user interventions (a reference for changes to the approved program made by the user to fit the users needs) without disclosing what criteria will be used in deciding when such interventions can occur or what criteria will be used when creating these deviations. Id., at ¶ 4; accord id., at ¶ 2. As noted above in the Procedural History section, Drs. Lahey and Hopenfeld have raised concerns about engineering judgment and assumptions and user intervention in the development of fatigue calculations for limiting locations. See, e.g., NYS000302 at ¶¶ 7-11; NYS000374 at pp. 22-32; RIV000102. As 2
See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),Licensing Board Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5) at 10 (Nov. 10, 2011) (unpublished)
(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.); Licensing Board Memorandum and Order (Granting Entergys Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5) at 3 (Dec. 6, 2011) (unpublished) ([W]e 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.).
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intervenors experts explain, both the selection of additional limiting locations for fatigue and the operation and application of the WESTEMSTM fatigue analysis involve engineering judgment and assumptions and user intervention.
USNRC Staff has recently required Entergy to create records that document and justify any assumptions and engineering judgments developed and used in the CUFen calculations [SSER at 4-2]. Such assumptions and engineering judgments will affect the WESTEMS results. A systematic and methodical explanation of these assumptions and engineering judgments is essential in evaluating the adequacy of the CUFen calculations using WESTEMS, but they are not yet available. Indeed, the anticipated schedule of the availability of this information will likely not allow them to be considered in these ASLB proceedings.
Declaration of Dr. Richard T. Lahey, ¶ 9 (Sept. 30, 2011) (NYS000302) (emphasis added). Dr.
Lahey elaborated that [t]here is a difference between stating that one will develop a program that will comply with the parameters in GALL and actually disclosing the details, judgments, assumptions, and user interventions that underlay the program and the analyses (including computer codes such as WESTEMS) that are critical to the program. Id. ¶ 11 (emphasis added).
Entergy, however, appears to prefer using a narrower definition of the term user intervention by limiting it to a specific adjustment made at a particular step in the WESTEMS' fatigue analysis process, where redundant stress peaks and valleys are removed, so they are not double-counted. Entergy MIL at 6, citing Testimony of Entergy Witnesses Nelson F. Azevedo, Alan B. Cox, Jack R. Strosnider, Robert E. Nickell, and Mark A. Gray Regarding Contention NYS-26B/RK-TC-1B (Metal Fatigue) at A69 (Mar. 29, 2012). In his rebuttal testimony Dr. Lahey responded to Entergy and NRC Staffs pre-filed testimony and exhibits and expressed a differing view of engineering judgment and assumptions and user intervention concerning the development of fatigue calculations for limiting locations for pressure boundary components. NYS000453 at pp. 14-17. The parties differing views on the 9
subject should be left to the Atomic Safety and Licensing Board to evaluate and decide after it has an opportunity to hear the testimony of the parties respective experts on the matter.
Similarly, Entergy improperly seeks the exclusion of Dr. Hopenfelds testimony related to the use of engineering judgment. Entergy claims that Dr. Hopenfelds rebuttal testimony (RIV000134), like Dr. Laheys, raises improper general concerns about the use of engineering judgment in fatigue calculations that are not limited to challenging Entergys Commitments related to metal fatigue. Entergys MIL at 5-6 (emphasis in original). However, Entergys position is untenable. Dr. Hopenfelds discussion of engineering judgment in fatigue evaluations is not outside the scope of the Contention NYS-38/RK-TC-5, because any such testimony relates directly to the adequacy of Entergys commitments with respect to managing the aging effects of fatigue, an issue that is squarely relevant to Contention NYS-38/RK-TC-5, as admitted. Dr.
Hopenfelds discussion of engineering judgment in this context is directly relevant to the matters to be decided upon on the contention.
A specific review of the objected to testimony on page 25 line 13 to page 26, line 5 of Dr.
Hopenfelds rebuttal testimony reveals that Dr. Hopenfelds criticisms discussed the various inadequacies of Entergys allegedly refined fatigue analysis. Dr. Hopenfelds discussion of faulty assumptions in this context is entirely relevant to the question of the sufficiency of Entergys commitments for managing metal fatigue at Indian Point during the proposed period of extended operation. Moreover, it was in direct response to Entergys witnesses testimony relating to the trustworthiness of its fatigue evaluations. Thus, there is simply no basis for the exclusion of this testimony. Likewise, Dr. Hopenfelds discussion of the assumptions and judgment inherent in the use of WESTEMSTM, which Entergy also seeks the exclusion of (page 26 line 7 to page 27 line 29 of Dr. Hopenfelds rebuttal), is directly relevant to the question of 10
the sufficiency of Entergys commitment related to the details of WESTEMSTM user intervention. Once again, Dr. Hopenfelds testimony stems directly from Entergys explanation regarding the alleged adequacy of Entergys use of and reliance on WESTEMSTM. There is, thus, similarly, no basis to exclude this testimony either. As a result, Entergys motion to exclude Dr. Hopenfelds testimony related to his opinions on engineering judgment should be denied.
In addition to seeking the exclusion of certain portions of Dr. Hopenfelds rebuttal testimony related to engineering judgment, Entergy also seeks the exclusion of certain testimony from Dr. Hopenfelds direct initial testimony - testimony that was filed back in mid-June 2012 pursuant to ¶ K.1 of the ASLBs Scheduling Order. This request is wholly unsupported and inappropriate. To begin with, Entergy failed to properly consult with Intervenors pursuant to 10 C.F.R. § 2.323(b) regarding its intention to seek exclusion of portions Intervenors experts initial testimony. During the telephone consultation calls had among the parties, this issue never came up. Entergys failure to adequately consult constitutes sufficient grounds to deny Entergys request.
In addition, Entergys request is untimely. The deadline for motions in limine related to intervenors initial hearing submissions on Contention NYS-38/RK-TC-5 expired on July 19, 2012, i.e., 30 days after the submission of Intervenors initial filings on the contention on June 19, 2012. See ASLB Scheduling Order (July 1, 2010), at ¶ K.4 (Motions In Limine or to Strike. No later than thirty (30) days after service of the materials submitted by intervenors and/or interested governmental entities under paragraphs K.1 or K.3 or by Entergy and the NRC Staff under paragraph K.2, the parties shall file any motions in limine or motions to strike regarding the materials submitted under paragraphs K.1 through K.3). Entergy has not provided any 11
justification for requesting the exclusion of portions of Intervenors initial filings on Contention NYS-38/RK-TC-5 so far past the established deadline for doing so. As a result, this request should be denied.
POINT II ENTERGY AND STAFFS OBJECTION TO DR. HOPENFELDS TESTIMONY AND ASSOCIATED EXHIBITS SHOULD BE REJECTED NRC Staffs Motion in Limine Erroneously Asserts that Riverkeeper has Raised New Issues NRC Staffs Motion in Limine to Exclude Portions of the Prefiled Rebuttal Testimony Filed by Riverkeeper Concerning NYS-38/RK-TC-5, dated January 7, 2013, (hereinafter NRC Staff MIL) incorrectly claims that the rebuttal testimony of Dr. Joram Hopenfeld relating to Contention NYS-38/RK-TC-5 includes two new lines of evidence. NRC Staff MIL at 1.
First, NRC Staff asserts that Dr. Hopenfeld impermissibly introduced statements, for the first time, concerning flow accelerated corrosion. Id. at 1. NRC Staff alleges that Dr.
Hopenfelds discussion regarding the synergetic effects of stress corrosion cracking (SCC) and FAC on metal fatigue was not previously identified in Dr. Hopenfelds initial testimony on Contention NYS-38/RK-TC-5. Id. at 4. NRC Staff also claims that Dr. Hopenfelds discussion regarding FAC is improper rebuttal because Riverkeeper fails to show where the issue was raised in the Staff or Applicants testimony. Id. at 4-5. NRC Staff further claims that Dr.
Hopenfelds discussion of the relevance of FAC in assessing metal fatigue is new since, allegedly, Dr. Hopenfeld only previously discussed erosion and wall thinning in relation to his experience and qualifications and these statements do not address the adequacy of Entergys license renewal application based on any aspects of FAC, and since, the single mention of wall thickness in his [initial] testimony . . . is not used in any discussion of FAC. Id. at 5.
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NRC Staffs arguments lack merit, since Dr. Hopenfelds statements related to FAC in his rebuttal testimony on Contention NYS-38/RK-TC-5 cannot properly be viewed as raising new issues or concerns. For example, Dr. Hopenfelds initial testimony concerning Contention NYS-38/RK-TC-5 includes a discussion of the position that that an adequate analysis of limiting locations at Indian Point must consider, inter alia, synergistic effects of stress corrosion cracking, and component wall thicknesses and flow characteristics (including velocities) related to each component. See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 12-13. In particular, Dr. Hopenfeld previously explained that in order to determine the most limiting locations requiring CUFen analysis at Indian Point, selected components must be screened and ranked with respect to their most vulnerable locations, considering parameters that are known to effect fatigue life.
These include the ratios of the local heat transfer coefficient, the local material conductivity, wall thickness, fluid temperature, T, dissolved oxygen levels, flow velocities, number of transients, magnitude and cycling frequency of surface temperatures, (thermal striping in stratified flows) and loads, and surface discontinuities and flow discontinuities in each component.
Id. at 12 (emphasis added). The testimony to which NRC Staff now objects is a direct elaboration upon Dr. Hopenfelds discussion of his opinions related to the necessary steps, analyses, and considerations required to determine limiting metal fatigue locations at Indian Point. Thus, Dr. Hopenfelds references to FAC in his rebuttal is a logical outgrowth of his initial testimony.
Moreover, contrary to NRC Staffs claims, Dr. Hopenfelds statements related to FAC in his rebuttal testimony are in direct response to Entergy and NRC Staffs testimony regarding the adequacy of Entergys methodology for selecting limiting locations. Thus, while Entergy and NRC Staff did not raise or discuss FAC, this does not, and indeed should not, preclude Dr.
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Hopenfeld from fully responding to Entergys witnesses testimony about Entergys explanation relating to how limiting locations will be selected at Indian Point.3 In fact, such a full response implicated Entergys failure to fully account for relevant parameters and factors that affect component susceptibility to metal fatigue, including FAC.
Thus, NRC Staffs position that Dr. Hopenfelds references to FAC in his rebuttal testimony are somehow entirely new is unfounded. Dr. Hopenfelds initial testimony on Contention NYS-38/RK-TC-5 did not simply make reference to corrosion mechanisms in his discussion of his experience and qualifications. To the contrary, Dr. Hopenfeld clearly laid the foundation for his substantive concerns relating to FAC in his initial testimony, and his rebuttal testimony serves to elucidate his concerns in response to Entergy and NRC Staffs overly simplistic assessment of the steps required to fully and appropriately determine the most limiting metal fatigue locations at Indian Point.
Furthermore, Dr. Hopenfelds initial testimony on Contention NYS-38/RK-TC-5 expressly indicated that he had reviewed all of the pleadings involving Riverkeeper Contentions TC-1, TC-1A, TC-1B, and used such documents to inform and derive his conclusions. See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 5. Dr. Hopenfeld also indicated he was relying on the documents that had previously been submitted relating to Contention NYS-26B/RK-TC-1B, which relates to similar metal fatigue issues. Id. Notably, in the context of explaining the inadequacies with Entergys refined metal analysis in his initial testimony on Contention NYS-3 For example, the objected to references to FAC came up in response to the following question: Entergys witnesses testify that the methodology for selecting limiting locations for additional fatigue analysis will consist of applying appropriate Fens to the existing CUFs and comparing the adjusted screening CUFen values on a common stress basis to determine limiting locations and, [i]f any of the screening CUFen values at the limiting locations exceed 1.0, then further evaluation of that component will be required. Entergys [Aug. 20, 2012] Testimony
[Regarding Contention NYS-38/RK-TC-5] at A101. Do you have a response to this explanation? See Prefiled Rebuttal Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (November 9, 2012), Exhibit RIV000134, at 10-11.
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26B/RK-TC-1B, Dr. Hopenfeld explains that a factor that would lead to non-uniform stress distributions is preferential wall wear due to flow accelerated corrosion (FAC) in low alloy steel components and cites to Entergy ultrasonic examination reports which indicated that in components where flow is not fully developed, component wall thickness can vary by more than 400% at Indian Point. Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding NYS B/RK-TC-1B - Metal Fatigue (December 22, 2011), Exhibit RIV000034, at 13:19-22. In his initial testimony on Contention NYS-38/RK-TC-5, Dr. Hopenfeld also expressly criticizes Entergys approach to assessing metal fatigue by citing back to this earlier testimony related to Contention NYS-26B/RK-TC-1B. See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 8:3-8; footnote 20). Moreover, one of the exhibits Dr. Hopenfeld indicates he was relying on to support his initial testimony related to Contention NYS-38/RK-TC-5 was RIV000049, a schematic showing FAC wear and measurements. Thus, Dr. Hopenfelds earlier testimony related to Contention NYS-26B/RK-TC-1B, which he squarely relies upon and essentially incorporates into his initial testimony on Contention NYS-38/RK-TC-5, explicitly raises concerns related to FAC.
NRC Staff further alleges that Dr. Hopenfelds rebuttal testimony on Contention NYS-38/RK-TC-5 introduced new arguments concerning wall thickness measurements for performing cumulative usage factor (CUF) and environmentally-adjusted CUF (CUFen) calculations. NRC Staff MIL at 1. NRC Staff claims that Dr. Hopenfelds concern related what wall thickness is used during calculations is a new issue that Dr. Hopenfeld has not previously raised. Id. at 5-6. Once again, NRC Staffs position is belied by the record and unsupported.
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As cited above, Dr. Hopenfelds initial testimony on Contention NYS-38/RK-TC-5 expressly indicates his position that component wall thickness is a factor in determining the most limiting locations for assessing metal fatigue. See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 12.
The objected to testimony constitutes a discussion which, once again, elaborates upon Dr.
Hopenfelds opinions related to the inadequacy of Entergys methodologies related to screening and determining components for metal fatigue analysis. Dr. Hopenfelds testimony simply provides additional details related to the appropriate methodology for screening components, which, in his opinion, includes a consideration of component wall thickness. Once again, this a logical outgrowth of Dr. Hopenfelds initial testimony related to this issue. To be sure, Dr.
Hopenfelds discussion in his rebuttal testimony related to the relevance of component wall thicknesses in metal fatigue analyses was informed by information gleaned from the adjudicatory hearings held in the Indian Point license renewal proceeding in October 2012. However, it cannot properly be viewed as growing solely out of statements made at the hearings. To the contrary, Dr. Hopenfelds testimony is direct rebuttal to Entergys witnesses testimony related to Entergys methodology for selecting limiting locations for additional fatigue analysis. See Prefiled Rebuttal Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (November 9, 2012), Exhibit RIV000134, at 10-11.
Contrary to NRC Staffs unfounded assertions, Dr. Hopenfelds rebuttal testimony pertaining to Contention NYS-38/RK-TC-5 has not raised new issues for the first time. Dr.
Hopenfelds initial testimony laid more than adequate foundation for his concerns related to FAC and component wall thickness and his rebuttal testimony properly elaborated upon such concerns in direct response to the testimony proffered by Entergy and NRC Staff.
16
Entergys Motion in Limine Erroneously Asserts that Riverkeeper has raised CLB Issues Outside the Scope of the Proceeding and Contention Entergys Motion to Strike Portions of Intervenors Revised Statement of Position and Motion in Limine to Exclude Portions of the Pre-Filed Rebuttal Testimony and Exhibits for Contention NYS-38/RK-TC-5 (Safety Commitments), dated January 7, 2013 (hereinafter Entergy MIL) seeks to exclude portions of the Pre-filed Written Rebuttal Testimony of Riverkeeper expert witness, Dr. Joram Hopenfeld, as well as relevant exhibits proffered by Riverkeeper in support of Contention NYS-38/RK-TC-5. Entergy claims that Dr. Hopenfeld has impermissibly testified that Entergy must reconsider the Indian Point CLB as part of its FMP and made a new claim that Entergy should perform CUFen analyses for secondary plant components that is outside the scope of the proceeding and contention. Entergy MIL at 2, 7-
- 10. However, Entergys arguments are unavailing. Entergy improperly characterizes Dr.
Hopenfelds testimony as a challenge to the CLB and outside the scope of the proceeding and contention.
Entergy mischaracterizes Dr. Hopenfelds testimony, which cannot be properly characterized as [c]hallenging the adequacy of the CLB. Id. at 7. To the contrary, Dr.
Hopenfelds discussion stems directly from his position with regard to how Entergy should conduct an adequate analysis to determine the most limiting locations for metal fatigue analysis at Indian Point. This discussion relates directly to the adequacy of Entergys commitment 43 relating to metal fatigue. Thus, Dr. Hopenfelds opinions relating to the screening and consideration of components without existing CUFs is neither outside the scope of the contention, or the proceeding.
Entergys attempt, once again, to improperly limit the scope of the admitted contention raises arguments similar to those Entergy has raised in the past, which were ultimately and 17
repeatedly rejected. For example, in motions in limine related to Contention NYS-26B/RK-TC-1B, Entergy also accused Dr. Hopenfeld of improperly challenging the CLB when he discussed original design basis CUF calculations for the reactor vessel inlet and outlet nozzles. See, e.g.,
Entergys Motion to Strike Portions of Intervenors Revised Statement of Position for Contention NYS-26B/RK-TC-1B (Metal Fatigue), at 9-14. This argument has been rejected by the ASLB on several occasions. In one order, the ASLB explained that:
specific CLB analyses define the current practices of the Applicant that relate to similar calculations that will be performed as part of Entergys AMP for metal fatigue. They are an appropriate subject for review in this license renewal proceeding. The degree of the relevance between the CLB analyses and those proposed in the Applicants AMP is a merits question that can only be determined by weighing all the evidence on this topic. Resolution of this question will be best served after all the testimony has been filed and this issue is probed during the adjudicatory hearing.
See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting in Part and Denying in Part Applicants Motions in Limine) (March 6, 2012), at 15-16, (unpublished) ML12066A170.
The same logic applies to Dr. Hopenfelds discussion of the necessity of screening components that do not have existing CUFs. Dr. Hopenfelds testimony relates to the adequacy of Entergys commitment to determine the most limiting locations in order ensure the adequate management of metal fatigue during the proposed extended operating term. As such, the testimony cited in Entergys motion is not an improper critique of the CLB.
As Riverkeeper has explained several times in the context of previous motions in limine filed by Entergy, [w]hile a challenge to the CLB is outside the scope of a license renewal, the CLB itself is relevant to the extent that a plants current practices will form part of its aging management program during the license renewal term. Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Docket Nos.
18
50-271-LR, ASLBP No. 06-849-03-LR, Order (Ruling on Motions to Strike and Motions in Limine), at 10 (July 16, 2008). Licensing boards have not been willing to exclude evidence merely because it touches upon Entergys CLB. See id.
Entergys mandate and commitment to determine the most limiting locations at Indian Point is unequivocally part of its aging management program during the license renewal term, (id.) and Dr. Hopenfelds discussion relating to the need to screen and consider components without existing CUFs directly informs that relevant determination about Entergys AMP for metal fatigue at Indian Point. In other words, Dr. Hopenfelds testimony related to components without existing CUFs is highly relevant for evaluating a critical feature of Entergys license renewal aging management program for metal fatigue, i.e., Entergys commitment to determine the most limiting locations at the plant. This testimony stems from Dr. Hopenfelds review and understanding of applicable obligations in light of Entergys failure to show that its previous analyses was adequately bounding for the plant. See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 9-
- 12. Simply because Dr. Hopenfelds testimony included in opinions about the absence of design basis CUFs, and thereby touches upon Entergys CLB, does not mean that his testimony constitutes an impermissible challenge to the CLB. In any event, this issue is best served by weighing all the evidence at an adjudicatory hearing.
Entergy also claims that, in addition to allegedly being outside the scope of the proceeding, Dr. Hopenfelds discussion of the need to consider components in balance-of-plant systems even though they do not have existing CUFs is a new assertion. Entergys MIL at 9.
For the reasons discussed above, the objected to testimony is not outside the scope of the proceeding, since it relates directly to Entergys commitment for managing metal fatigue during 19
the proposed period of extended operation and to the adequacy of Entergys AMP. In addition, the objected to testimony is also not a new issue, as Entergys asserts. To the contrary, the referenced testimony constitutes an express elaboration upon Dr. Hopenfelds initial testimony, as indicated in a footnote. See Prefiled Rebuttal Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (November 9, 2012), Exhibit RIV000134, at footnote 39. Dr.
Hopenfelds initial testimony discussed the need list all components susceptible to fatigue, in order to determine the most limiting locations at Indian Point. See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 12. Moreover, Dr. Hopenfeld also included a chart of components he recommended be considered in the analysis of determining the most limiting locations, which included secondary side components. See id. at 13-15. Thus, Dr. Hopenfelds discussion of the relevance of balance-of-plant components is clearly not new and has not been raised for the first time in rebuttal testimony.
In sum, Entergys request for the exclusion of certain testimony, as well as Exhibit RIV000139, as listed in Entergys Exclusion Chart, should be denied. Notably, Entergys Exclusion Chart proposes that page 12, line 5 through page 15, line 21, be excluded because it allegedly argues that the scope of fatigue analyses should be expanded beyond CLB locations.
Entergys MIL at Attachment 1, page 1. Entergy also seeks the exclusion of seven exhibits (RIV000130, RIV000132, RIV000133, RIV000135-RIV000138) that are cited to in the objected to testimony. Id. at Attachment 1, page 2. However, these references are inconsistent with Entergys arguments. In particular, Entergy fails to explain or justify why Dr. Hopenfelds testimony on pages 12 through 14, line 13, which discusses Dr. Hopenfelds opinions with respect to screening and assessing components with existing CUFs, should be excluded. Indeed, 20
Entergys motion is solely focused on Dr. Hopenfelds testimony related to components without existing CUFs.
In addition, Entergy seeks the exclusion of seven Riverkeeper exhibits that support Dr.
Hopenfelds testimony related to the relevance of FAC and component wall thickness. To begin with, Dr. Hopenfeld cited to and explained these exhibits in the context of assessing and screening components that have existing CUFs. Yet, Entergys motion only makes allegations with respect to Dr. Hopenfelds arguments about components without CUFs, and, whats more, offers no arguments related to Dr. Hopenfelds discussion of the implications of FAC and wall thinning on metal fatigue assessments. Moreover, during consultations before the motion was filed, counsel for Entergy did not indicate that Entergy would request the exclusion of these seven exhibits. Thus, the relief Entergy requests, i.e., that the exclusion of testimony and exhibits related to the process to be applied to screen components that do have existing CUFs and the consideration of FAC, is unjustified. The ASLB should, therefore, deny Entergys request to exclude Riverkeeper Exhibits RIV000130, RIV000132, RIV000133, RIV000135-RIV000138. Exclusion is particularly improper since the ASLB is well suited to afford the weight it deems necessary to such exhibits.4 4
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.
21
POINT III ENTERGYS ATTEMPT TO DELETE PORTIONS OF INTERVENORS STATEMENT OF POSITION IS MISPLACED AND SHOULD BE REJECTED Entergys Motion Ignores Previous Rulings by this Board That Statements of Position Are Not Subject to Admissibility Standards This Board has already made clear on various occasions that regarding challenge[s]
to Initial Statement[s] of Position, this document is not evidence, but rather consists merely of attorney arguments. Any motion to strike testimony in this document is inappropriate.
Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting in Part and Denying in Part Applicants Motions in Limine) (Mar. 6, 2012)(Board Order) at 14; see also id. at 19 (Statements of positions are not evidence. Thus, the admissibility standards of Section 2.337(a) do not apply and statements of positions are not subject to evidentiary challenge.) While Entergy acknowledges such rulings by the Board (Entergy MIL at 5 n. 13 citing ASLB s March 6 Order), Entergy once again asks the Board to remove portions of an intervenors Statement of Position. This Boards previous rulings that parties are permitted to present legal and factual arguments in their Statements of Position constitute the law of the case in this proceeding. See Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), 59 N.R.C. 388, 2004 NRC LEXIS 133 at
- 3 (2004). Accordingly, Entergys attempt to expunge portions of Intervenors Rebuttal SOP should be summarily rejected. Entergy repeated efforts over the past year to limit Intervenor SOPs under the label of the in limine procedure reflects an attempt to as obtain an additional reply opportunity to the State and Riverkeeper SOPs and Reply SOPs - something which is unauthorized under the Boards scheduling order.
22
Arguments in Intervenors Revised Statement Respond to, and are the Outgrowth of, Arguments Presented by Movants in their August 2012 Submissions Entergys final argument in support of its MIL asserts:
the Board should strike the portions of Intervenors Revised SOP that request a legal interpretation of the term no significant hazards consideration, as that phrase is used in 10 C.F.R. §§ 50.91(a) and 50.92, which are longstanding regulations governing the license amendment process for operating reactors. Any interpretation of these regulations is irrelevant to the question of the adequacy of Entergys LRA under Part 54. Intervenors argument effectively requests an advisory opinion from the Board on legal issues that are outside the Boards jurisdiction and immaterial to the resolution of any contested issue. This claim is also an entirely new argument and outside the scope of the admitted contention.
Entergy MIL at 10. The Board should reject these arguments because they misperceive the issue presented by Contention NYS38/RK-TC-5 and seek to shield from Board review an essential factor that Entergy is obligated to address if it is to meet its burden of proof. Entergy must demonstrate that if its aging management programs have been or will be implemented and that they will provide reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations. 10 C.F.R. § 54.29(a).
NYS-38/RK-TC-5 is based on Entergys failure to demonstrate that it has, or will, meet the requirements of 10 C.F.R. § 54.29. The essence of NYS 38/RK-TC-5 is captured in the Commissions own words: [w]e do not simply take the applicant at its word. Entergy Vt.
Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 N.R.C. 1, 37 (2010).
Entergy has, on several occasions, given its word that the effects of aging will be adequately managed and that the suggestion that Entergy will seek to relax its stewardship of the Indian Point power reactors in the future is simply wrong.. See generally Testimony of Entergy 23
Witnesses Nelson F. Azevedo, Robert J. Dolansky, Alan B. Cox, Jack R. Strosnider, Robert E.
Nickell, and Mark A. Gray Regarding Contention NYS-38/RK-TC-5 (Safety Commitments) dated August 20, 2012 at 25, 27 (ENT000521).
Contention NYS-38/RK-TC-5 seeks assurances that Entergy means what Entergy says by insisting that Entergy provide the details of AMPs it plans to develop in the future with sufficient specificity that Entergy can demonstrate it will adequately manage aging and by insisting that Entergy demonstrate it has not left itself the ability, without prior Board or public intervention, to relax the commitments upon which it asks this Board to rely in deciding whether it has met its obligations under 10 C.F.R. § 54.29(a).
In this Motion In Limine, Entergy seeks to avoid addressing the most widely used mechanism for it to relax its commitments, the license amendment procedure, and the way in which that amendment mechanism will operate should Entergy choose to use it. Entergy insists that while the Board is entitled to judge whether Entergy has meet its obligation to demonstrate that the effects of aging will be adequately managed, it is prohibited from evaluating the question of whether, assuming Entergy establishes such a program, Entergy will remain committed to the full implementation through the 20-year period of extended operation authorized by the requested operating license at the center of this Atomic Energy Act § 189 proceeding. That question, Entergy asserts, is beyond the scope of a license renewal proceeding and beyond the scope of NYS-38/RK-TC-5. Entergy MIL at 10-12. Yet Entergy also acknowledges that the scope of safety issues under consideration [in a license renewal proceeding] is limited to identifying those actions necessary to maintain the current licensing basis (CLB) during the period of extended operation. Entergy MIL at 1-2 (emphasis added). How can the Board make that determination if Entergy is free to relax the commitments it has made without providing 24
an opportunity for the parties and the Board to evaluate the proposed relaxation and determine whether it still meets the standards imposed by 10 C.F.R. § 54.29(a)?
Although Entergy will assert, as it has in other contexts, that the matter of what happens after the license is granted is a matter that is outside the scope of the hearing itself, that argument must be rejected. 10 C.F.R. § 54.29(a) requires the Board to determine that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB. Id. (emphasis added). Thus, Entergy must not only prove that what it commits to do today is adequate, but that what it commits to do will continue to be adequate in the future. While Entergy disagrees with this analysis, that issue is a matter for resolution by the Board, not a matter that should be excluded from Board consideration.
In addition, there is no basis for Entergys assertion that a Board determination regarding the operation of the no significant hazards consideration is beyond the scope of the issues raised in this Contention. Entergy acknowledges that NYS-38/RK-TC-5 includes the argument that the details of Entergys AMPs must be incorporated as license conditions into the Indian Point renewed operating license, such that no aspect of the AMPs can be changed in the future without an opportunity for a hearing on any proposed license amendment. Entergy MIL at 10 (footnote omitted). The no significant hazards consideration finding in 10 C.F.R. § 50.91(a)(4) is an integral part of the amendment hearing process. Resolution of how it will function should Entergy seek to relax one of the provisions of an AMP, upon which the Board relies in finding that Entergy has met its burden of proof under 10 C.F.R. § 54.29(a), is a necessary component of the arguments raised in NYS-38/RK-TC-5, particularly in light of Entergys assertion that it will not relax its AMP commitments.
Entergys argument is really about hearing rights and whether it can freely change license 25
conditions without first affording an opportunity for a public hearing. See Entergy MIL at 11.
Entergys wish to resolve issues with NRC Staff - without allowing public participation, without allowing a hearing, and without allowing Board review - is a recurring theme in this proceeding and an issue which is most starkly presented by NYS-38/RK-TC-5. But it is also part of Contention NYS-5 and NYS-6&7,. Intervenors will not speculate here on why Entergy is so concerned with having public participation and an independent board oversight of its license amendments.5 However, NRC regulations make abundantly clear that no license renewal can be approved without first providing for an opportunity for a public hearing. 10 C.F.R. § 54.27.
Entergy has sought to exclude from the hearing consideration of numerous issues that New York and Riverkeeper argue must be addressed prior to a final decision on the license renewal application. To the extent New York and Riverkeeper arguments are accepted by the Board, the Board will have necessarily determined that those issues need to be resolved in a hearing and before final action is taken. If, however, modifications to the details of an AMP that a Board decision has concluded must be included in the FSAR, the Technical Specifications and/or the license can be made without a prior hearing, then the hearing right granted by 10 C.F.R. § 54.27 will be meaningless. Following issuance of the licensing decision, NRC Staff and Entergy, both of which insist that the AMP details that New York and Riverkeeper believe must precede license renewal are unnecessary, will be free to modify those conditions without first holding a hearing.
The issue of whether the hearing must precede or follow the requested action is of paramount importance. The right to a hearing prior to NRC action is guaranteed by the Atomic 5
Entergy asserts that it will not change license conditions if the result would be to relax plant safety. If Entergy is confident of its position, it can avoid a hearing by meeting with the interested parties and making its case to them. If Entergy is confident it is maintaining or enhancing plant safety, it should not assume it cannot demonstrate its point to the parties who might otherwise seek a hearing.
26
Energy Act for any operating license amendment unless it involves a no significant hazards consideration. 42 U.S.C. §2239. In Union of Concerned Scientists v. United States Nuclear Regulatory Com., 735 F.2d 1437, 1442 (D.C. Cir. 1984) the Court held in rejecting arguments similar to those advanced by Entergy:
We address first the position of counsel for Intervenor, Arkansas Power & Light Company (Utility) - that evaluation of emergency preparedness exercises is part of the NRC's ongoing monitoring function of operating power plants rather than part of its initial licensing responsibilities. The Utility argues that the monitoring function encompasses "licensing requirements" that are evaluated in a staff inspection prior to issuance (but after authorization) of a license. Brief for Intervenor-Utility at 32. That argument is flawed, however, because the Commission itself says that it relies on its assessment of emergency exercises in deciding whether to issue a license. Clearly, then, those exercises cannot be viewed as falling outside of the licensing proceeding.
Id. (footnotes omitted). Thus, issues that are relied upon to make the initial decision in issuing a license, are necessarily issues that cannot be resolved without first holding the statutorily required hearing for a license amendment. Holding the required hearing, but then allowing the conditions imposed as a result of the hearing to be changed without first providing the opportunity for a new hearing, would make a mockery of the hearing-before-action requirements.
However, Entergy asserts that even if this issue is within the scope of the contention it is not within the scope of the hearing and it would inappropriately involve the Board in an advisory opinion for which it has no authority. Entergy MIL at 10. What Entergy ignores is the fact that in making a finding on the issue of whether plant operations will continue to be conducted in accordance with the CLB the Board must make a finding about what will happen in the future. One of the future events that could arise - and almost certainly will arise given the CUF experience at Entergys VY facility, the numerous relief requests filed by reactor operators with the NRCs document control desk each year, or and , is Entergy seeks to amend one of the commitments it has made and that the Board has included in the FSAR, the Technical 27
Specifications and/or the license. If the amendment seeks to change something that was relied upon by the Board in deciding that plant operations will continue to be conducted in accordance with the CLB then it must necessarily involve a significant hazard consideration because (1) it was important enough to a critical safety finding that the Board was asked to, and did, rely upon it and (2) its adequacy was addressed by the Board as a precondition to issuance of the license.
If Entergy and NRC Staff are unsuccessful in their efforts to deprive the Board of the jurisdiction to address safety issues prior to a license renewal - essentially if they are unable to prevail in their arguments against NYS-38/RK-TC and are compelled to disclose the detailed AMPs prior to license renewal, the Board will necessarily have found that such details are essential to a critical safety finding. If, as Entergy argues, Entergy and NRC Staff can change those details without first providing for an opportunity for a public hearing, Entergy will have essentially eviscerated the Boards decision by making changes to those details immune from prior Board approval. This concern is not merely a worst case speculation, as has been demonstrated in the case of Vermont Yankee where Entergy not only made a change to a commitment, upon which the Board and parties were asked to rely, before there was an opportunity for a hearing, but did so without any prior notice to NRC. See State of New York and Riverkeeper, Inc. Revised Statement of Position Joint Contention NYS-38/RK-TC-5 (Nov.
9, 2012) at 14-17 (NYS000451).
Finally, Entergy argues that this Board should not issue an opinion that includes its analysis of the meaning of the no significant hazards consideration language in 10 C.F.R. § 50.91(a)(4) because intervenors are prohibited from challenging any finding made on that issue by NRC Staff. Entergy MIL at 11-12. However, that argument supports the position urged here by New York and Riverkeeper. Since a subsequent determination by NRC Staff on the issue of a 28
no significant hazards consideration is incapable of being challenged, it is only in the hearing in which the license condition is imposed that a party can protect its right to have a hearing before that license condition is changed. Since NRC Staff already opposes the view that the additional conditions which NYS-38/RK-TC-5 seeks to impose are essential for the required safety findings, it should come as no surprise that NRC Staff will almost certainly find that modifications to those conditions involve no significant hazards considerations. However, for NRC Staff to reach that conclusion it would have to overrule the Boards contrary finding that these are conditions which must be met in order to assure that plant operations will continue to be conducted in accordance with the CLB. NRC Staff does not have the authority to do that and, if it disagrees with the Board, its sole remedy, like that of any other party, is to seek review by the Commission. 10 C.F.R. § 2.341; see also 10 C.F.R. § 2.341(e) making a Board decision immediately effective absent the grant of a stay. Thus, the Board not only has the authority to interpret the meaning of regulations as part of its duties (see 10 C.F.R. §§ 2.319(o)-(r)) but also to resolve issues which will be binding on the parties in the future.
29
CONCLUSION For the above reasons, Intervenors respectfully request that the Atomic Safety and Licensing Board deny Entergy and NRC Staffs motions in limine in their entirety.
Respectfully submitted, Signed (electronically) by Signed (electronically) by John J. Sipos Deborah Brancato, Esq.
Janice Dean Phillip Musegaas, Esq.
Kathryn Liberatore Riverkeeper, Inc.
Assistant Attorneys General 20 Secor Road Office of the Attorney General Ossining, New York 10562 for the State of New York (914) 478-4501 The Capitol Albany, New York 12224 (518) 402-2251 January 17, 2013 30
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 Riverkeeper, Inc. and the State of New York have, respectively, participated in discussions with the parties in this proceeding including Entergy Nuclear Operations, Inc. (Entergy) and NRC Staff concerning Entergys Motion To Strike Portions Of Intervenors Revised Statement Of Position And Motion In Limine To Exclude Portions Of The Pre-Filed Rebuttal Testimony And Exhibits For Contention NYS-38/RK-TC-5 and NRC Staffs Motion In Limine To Exclude Portions Of The Prefiled Rebuttal Testimony Filed By Riverkeeper Concerning Contention NYS-38/RK-TC-5, both filed on January 7, 2013 in this proceeding, and has made a sincere effort to make themselves available to listen and respond to Entergy and NRC Staff, and to resolve the factual and legal issues raised in the motions. Riverkeeper and the State of New Yorks efforts to resolve the issues have been unsuccessful, with the exception of a issue concerning a Nucleonics Week article, which was resolved.
Signed (electronically) by Signed (electronically) by Deborah Brancato, Esq. John J. Sipos Riverkeeper, Inc. Assistant Attorney General 20 Secor Road Office of the Attorney General Ossining, New York 10562 for the State of New York (914) 478-4501 The Capitol Albany, New York 12224 (518) 402-2251 January 17, 2013 State of New York and Rivekeeper, Inc.
Answer to Entergy and NRC Staff January 7, 2013 Motions In Limine to Strike Portions of Intervenors Pre-Filed Submissions in Support of Contention NYS-38/RK-TC-5
Page 1 of 1 John J. Sipos From: Kuyler, Raphael Philip [rkuyler@morganlewis.com]
Sent: Thursday, January 03, 2013 4:00 PM To: John J. Sipos; Janice Dean; phillip@riverkeeper.org; Deborah Brancato Cc: Roth(OGC), David; Harris, Brian; Turk, Sherwin; rwebster@publicjustice.net;
'karla@clearwater.org'; Sutton, Kathryn M.; Bessette, Paul M.
Subject:
IPEC License Renewal - Request for Consultation on Motion in Limine on NYS-38/RK-TC-5 John, Janice, Phillip, and Deborah, Good afternoon. Entergy is considering filing a motion in limine concerning specific portions of New York and Riverkeepers rebuttal filings on NYS38/RKTC5 (the safety commitments contention). Please let me know your availability tomorrow morning or early afternoon to consult on this motion. If you are not available, then please advise as to what other times may work. Thanks very much for your cooperation.
- Regards, Ray P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004 Direct: 202.739.5146 l Main: 202.739.3000 l Fax: 202.739.3001 rkuyler@morganlewis.com l www.morganlewis.com Assistant: Joyce A. Glover l 202.739.5949 l jglover@morganlewis.com DISCLAIMER This e-mail message is intended only for the personal use of the recipient(s) named above. This message may be an attorney-client communication and as such privileged and confidential and/or it may include attorney work product.
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1/17/2013