ML13165A384
| ML13165A384 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/14/2013 |
| From: | Glew W, O'Neill M, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24689, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13165A384 (32) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-247-LR and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
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(Indian Point Nuclear Generating Units 2 and 3)
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June 14, 2013 APPLICANTS MOTION FOR RECONSIDERATION OF THE BOARDS DECISION TO ADMIT ADDITIONAL NEW YORK EXHIBITS CONCERNING CONTENTION NYS-5 I.
INTRODUCTION In accordance with 10 C.F.R. § 2.323(e), Entergy Nuclear Operations, Inc. (Entergy) hereby moves the Atomic Safety and Licensing Board (Board) to reconsider that part of its decision granting New York States (New York) recent motion for leave to submit four additional exhibits related to Contention NYS-5 and admitting new exhibits NYS000477, NYS000478, NYS000479, and NYS000480 into evidence.1 Entergy respectfully submits that the Board materially erred in finding that New York showed good cause for the admission of the four new exhibits before Entergy and the Staff had the opportunity to file written answers to New Yorks motion in accordance with the deadlines established in the Boards scheduling order and the Commissions regulations.2 As explained further below, New Yorks Motion does not support a finding of good cause because it inaccurately characterizes the evidentiary record and the four new documents on which New York relies. Accordingly, the Board should reverse its prior ruling and deny New Yorks Motion.
1 See Licensing Board Order (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions) at 3 (June 12, 2013) (unpublished) (Board Order); State of New York Motion for Leave to Submit Recently Disclosed Entergy Documents as Additional Exhibits Concerning Contention NYS-5 (June 10, 2013)
(New York Motion).
2 See 10 C.F.R. § 2.323(c); Licensing Board Scheduling Order at 6-8 (July 1, 2010) (unpublished) (generally applying provisions of 10 C.F.R. § 2.323 with respect to motions).
2 II.
RELEVANT FACTS On July 31, 2008, the Board admitted NYS-5 insofar as it alleges that Entergy lacks an adequate aging management program (AMP) for managing potential external corrosion of in-scope buried piping that contains or may contain radioactive fluids at Indian Point Energy Center (IPEC) during the period of extended operation.3 On December 10 and 11, 2012, the Board conducted an evidentiary hearing on Contention NYS-5 in Tarrytown, New York.4 The Board did not close the evidentiary record after the hearing, but indicated that it would do so at a later date.5 Thereafter, on March 22, 2013, New York, Entergy, and the Staff filed their proposed findings of fact and conclusions of law on NYS-5.6 The parties filed replies to each others proposed findings of fact and conclusions of law on May 3, 2013.7 Since the conclusion of the December 2012 hearing, Entergy has disclosed approximately four dozen additional documents as potentially relevant to NYS-5. These documents principally include recent revisions to Entergys corporate and IPEC-specific procedures as well as inspection and condition reports generated as part of Entergys ongoing implementation of the Buried Piping and Tanks Inspection Program (BPTIP)Entergys license renewal AMP for in-scope buried 3
See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 81 (2008). The parties subsequently filed statements of position, prefiled written testimony, and supporting exhibits in accordance with schedules established by the Board.
4 See Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 (Dec. 10, 2012) (Dec. 10, 2012 Tr.); Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 (Dec. 11, 2012) (Dec.
11, 2012 Tr.).
5 See Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 4484:12-4485:10 (Judge McDade) (Dec. 13, 2012).
6 See Entergys Proposed Findings of Fact and Conclusions of Law for Contention NYS-5 (Buried Piping) (Mar. 22, 2013) (Entergy Proposed Findings), available at ADAMS Accession No. ML13081A762; NRC Staffs Proposed Findings of Fact and Conclusions of Law Part 2: Contention NYS-5 (Buried Piping and Tanks) (Mar. 22, 2013),
available at ADAMS Accession No. ML13081A765; State of New Yorks Proposed Findings of Fact and Conclusions of Law Regarding the Adequacy of Entergys Aging Management Program for Buried Pipes and Tanks (Mar. 22, 2013), available at ADAMS Accession No. ML13081A747.
7 See Entergys Reply to New York States Proposed Findings of Fact and Conclusions of Law for Contention NYS-5 (May 3, 2013); NRC Staffs Reply Proposed Findings of Fact and Conclusions of Law on Contention NYS-5 (Buried Piping and Tanks) (May 3, 2013); State of New Yorks Reply to Entergy and NRC Staffs Proposed Findings of Fact and Conclusions of Law for Contention NYS-5 (May 3, 2013).
3 piping and tanks.8 On June 10, 2013, New York filed a motion for leave to submit, as additional exhibits, four of the fifteen documents disclosed by Entergy on May 30, 2013.9 During the 10 C.F.R. § 2.323(b) consultation process, Entergy expressed concern that its experts would have no opportunity to respond, on the record, to any additional substantive arguments made by New York that might be based on the new exhibits and address the adequacy of Entergys AMP.10 Both Entergy and the Staff further noted that the fundamental issue before the Board is the adequacy of Entergy AMP as judged under 10 C.F.R. Part 54, not the results of inspections conducted as part of the implementation of that AMP.11 New Yorks motion correctly states that Entergy and the NRC Staff opposed the motion, but did not include the substance of Entergys or the Staffs opposition.12 Two days later, on June 12, 2013and eight days before the due date for Entergys and the Staffs answers to New Yorks motionthe Board issued an Order in which it, among other things, granted New Yorks motion and admitted the four new exhibits into evidence.13 The Board found good cause for New Yorks motion, despite not having heard or considered the opposing views of Entergy and the Staff. The Board cited pages 1-3 of New Yorks Motion, but offered no explanation for its finding of good cause in its Order.14 8
See, e.g., Letter from K. Sutton and P. Bessette, Counsel for Entergy, to Counsel for Intervenors and NRC Staff, Fifty-second Update to Disclosures Pursuant to 10 C.F.R. § 2.336; Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR and 50-286-LR (June 5, 2013).
9 See generally New York Motion.
10 See E-mail from P. Bessette, Counsel for Entergy, to J. Sipos, Counsel for New York State, RE: NYS request for consultation (June 10, 2013); E-mail from S. Turk, Counsel for NRC Staff, to J. Sipos, Counsel for New York State (June 10, 2013). These e-mails are included in the e-mail chain appended as Attachment 1 to this Motion.
11 See id. As Entergy and Staff counsel noted, if New York had an unfettered right to supplement the record every time Entergy generated a new inspection report, there would appear to be no end to this proceeding on NYS-5. Id.
12 See New York Motion at 3 (stating that Entergy and NRC Staff oppose).
13 See Board Order at 3. 10 C.F.R. § 2.323(c) states: Within ten (10) days after service of a written motion, a party may file an answer in support of or in opposition to the motion, accompanied by affidavits or other evidence.
14 See id. (Good cause having been shown, the Board GRANTS New Yorks motion and exhibits NYS000477, NYS000478, NYS000479, and NYS000480 are admitted.).
4 III.
APPLICABLE LEGAL STANDARD To avoid manifest injustice, motions for reconsideration may be filed upon leave of the presiding officer upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid.15 Although the standard is a high one, reconsideration is appropriate where a party brings decisive new information to the decisionmakers attention or demonstrates a fundamental [ ] misunderstanding of a key point.16 Reconsideration motions ordinarily must be filed within 10 days of the action for which reconsideration is requested.17 IV.
ARGUMENT A.
Reconsideration is Warranted Because The Board Admitted the Four New Exhibits Based on Substantive Legal Arguments to Which Neither Entergy Nor the Staff Were Given the Opportunity to Respond on the Record The Board offered no explanation as to why it found good cause exists for admission of the four new exhibits, but it presumably did so based on arguments contained in New Yorks motion.
Those arguments include substantive legal arguments by New York counsel to which Entergy and the Staff had no opportunity to respond. As one Appeal Board observed, the cardinal rule, so far as fairness is concerned, is that each side must be heard.18 The Board did not follow that basic rule by forgoing consideration of Entergys and the Staffs opposing views on New Yorks motion. In Entergys view, this fact alone warrants reconsideration.
15 See 10 C.F.R. § 2.323(e); see also Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004); Licensing Board Order (Denying NRC Staffs Motion for Partial Reconsideration and State of New York/Riverkeepers Cross-Motion to NRC Staffs Motion for Reconsideration) at 3-4 (Apr. 23, 2013)
(unpublished).
16 La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004).
17 10 C.F.R. § 2.323(e).
18 Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-565, 10 NRC 521, 524 (1979) (citing Grannis v. Ordean, 234 U.S. 385, 394 (1914); United States v. Steel Tank Barge H 1651, 272 F.
Supp. 658, 659 n. 1 (E.D.La. 1967). Although the Appeal Board made this statement in the context of replying to objections to proposed contentions, it applies a fortiori to post-hearing attempts to supplement the evidentiary record with additional exhibits and substantive legal arguments based on those exhibits.
5 Further, the Board authorized supplementation of the evidentiary recordon which on the Boards merits decision will ultimately be basedregarding the technical merits of New Yorks arguments concerning backfill and coating quality, purported pipe corrosion, and the asserted need for cathodic protection. The Board did so without providing any opportunity for rebuttal, on the record, by Entergys and the Staffs technical experts. New Yorks motion was not purely ministerial in nature. Rather, it advanced substantive arguments, further to those otherwise set forth in the record, directed at the adequacy of Entergys AMP.19 Significantly, those arguments were proffered by New York counsel, not by New Yorks expert witness. New York submitted no affidavit by Dr. Duquette stating that he reviewed the documents in question, and that they supported his prior testimony. As a result of its ruling, the Board unfairly deprived the other parties experts of the opportunity to address the exhibits in question (within the context of the entire evidentiary record and other, recently-accrued operating experience) and the technical merits of New Yorks related arguments concerning backfill and coating quality, purported pipe corrosion, and the asserted need for cathodic protection.
B.
Contrary to the Boards Finding, New York Failed to Show Good Cause for the Admission of the Four New Exhibits In support of the motion, New Yorks counsel argued that: (1) the new exhibits support Dr.
Duquettes testimony that rocks are present in backfill at IPEC and contribute to cracked coating and corrosion, warranting the application of cathodic protection, and (2) neither Entergys nor the Staffs witnesses acknowledged the risk that rocks in backfill pose to coated buried pipes at Indian Point.20 Those arguments do not support a showing of good cause because they inaccurately and incompletely characterize the evidentiary record and the four new documents on which New York relies.
19 See New York Motion at 1-2.
20 Id.
6
- 1.
New Yorks Claim That the New Exhibits Provide Evidence of Cracked Coating and Corrosion Caused by Rocks in the Backfill Is Factually Incorrect First, New Yorks four new exhibits provide no factual basis for its claim that rocks found in excavation/backfill material during recent inspections contribute[d] to cracked coating and corrosion, warranting the application of cathodic protection.21 Exhibit NYS000477 is Condition Report (CR) CR-IP2-2012-05324, which Entergy initiated during an excavation and opportunistic buried piping inspection in the 22 Main Transformer (MT) Moat Area (an area in which Entergy has performed multiple excavations and inspections). As stated therein, direct visual inspection of an approximately 4-foot segment of IP2 Service Water Line 463 revealed some coating degradation and surface corrosion (i.e., rust).22 However, the CR does not refer to rocks in the backfill, much less identify coating degradation as being caused by rocks in the backfill.
Notably, New York ignores Entergys associated corrective actions, which are documented in the same exhibit and indicate that ultrasonic testing (UT) of Service Water Line 463 and two adjacent 8-inch City Water and Fire Protection lines (which also showed similar but lesser indications of degraded coating) confirmed that all three pipes had acceptable wall thicknesses.23 This fact underscores a fundamental flaw in New Yorks reasoning, as set forth in its motion; i.e.,
that degraded coating, whether attributable to rocks in the backfill or other causes, necessarily leads to corrosion and requires a cathodic protection system.24 However, as Entergys experts have explained, cathodic protection systems are required, or effective, only when supplemental corrosion 21 Id at 1.
22 CR-IP2-2012-05324, Condition Report Regarding Visual Inspection of 4 ft of Service Water Return Line at 1 (Sept. 11, 2012) (NYS000477).
23 See id. at 1 (Corrective Action No. 2). UT report IP2-UT-12-030 was disclosed to New York on April 5, 2013 but not included by New York as a proposed exhibit in its motion. Entergy has included IP2-UT-12-030 as Attachment 2 to this Motion for the Boards reference.
24 See New York Motion at 1 (The documents support Dr. Duquettes testimony that rocks are present in backfill at Indian Point and contribute to cracked coating and corrosion, warranting the application of cathodic protection.)
(emphasis added).
7 protection is needed at localized areas of coating degradation in corrosive soil environments.25 As summarized in Entergys proposed findings, the available data, including the soil resistivity and corrosion potential data, indicate that the soil at IPEC generally is non-corrosive.26 Exhibits NYS000478, ENT000479, and ENT000480 are buried piping direct visual inspection reports prepared in accordance with Entergy Engineering Standard EN-EP-S-002-MULTI, Rev. 1, Underground Piping and Tanks General Visual Inspection (Nov. 30, 2012)
(ENT000600) (including Attachment 7.2 thereto). New York selectively quotes NYS000478 and NYS000479 as stating Rocks were in contact with the wrap. However, the relevant passages state in full:
Description:
Oil containment MOAT Area. Rocks were in contact with the wrap but no damage was observed. The rocks were small (i.e., < 2.0 in diameter). There were no large rocks in contact with the pipe.27 As further stated in both inspection reports (NYS000478 and NYS000479), direct visual inspections of 10-foot segments of the excavated pipes (an 8-inch Fire Protection line and an 8-inch City Water line) showed no signs of coating degradation.28 NYS000480 also fails to support New Yorks claims. New York again selectively quotes the cited document and ignores other material information readily available to it. NYS000480 does state that some rocks were found in the backfill, but it further states that [n]o rocks were observed to be in contact with the pipe.29 Furthermore, as indicated in NYS000480, because localized cracking in the coating and indications of rust were observed, a UT examination of the 25 See Testimony of Entergy Witnesses Alan Cox, Ted Ivy, Nelson Azevedo, Robert Lee, Stephen Biagiotti, and Jon Cavallo Concerning Contention NYS-5 (Buried Piping and Tanks) at 44 (A61) (Dec. 6, 2012) (Entergy Testimony) (ENTR30373).
26 See Entergy Proposed Findings at 96-103 (¶¶ 187-99); see also Entergy Testimony at 119 (A133) (ENTR30373).
27 See NYS000478 at 1; NYS000479 at 1 (emphasis added).
28 See NYS000478 at 1 (The entire inspected length of piping had no signs of coating degradation. The coating was observed to be intact, with no voids in the coating, or blistering, peeling, flaking, separation, etc. Further, the coating was solid to the touch (no soft spots, air pockets).); NYS000479 at 1 (same).
29 NYS000480 at 1.
8 bare metal was performed.30 As documented in report IP2-UT-13-006, the UT examination confirmed the pipes wall thickness to be acceptable.31
- 2.
New Yorks Claim That Entergys and the Staffs Witnesses Have Not Acknowledged the Risks Posed by Rocks in Backfill Is Factually Incorrect New Yorks second argument, i.e., that Entergy and Staff have not acknowledged the risk posed by rocks in the backfill, also is factually groundless. Entergy has committed to perform a minimum of 94 total excavated direct visual inspections of in-scope buried piping, which exceeds the number recommended in NUREG-1801, Revision 2, AMP XI.M41 (as revised by Final LR-ISG-2011-03) for a two-unit site without site-wide cathodic protection and prior evidence of debris in the backfill and coating damage.32 Thus, as NRC Staff counsel noted during the parties consultations, Entergy already has augmented the BPTIP to include extensive excavated direct visual inspections in light of potentially deleterious backfill conditions.33 Additionally, due to the one instance in which non-conforming backfill was determined to be the likely cause of significant metal loss in a buried pipe (i.e., the 2009 leak from the IP2 condensate storage tank return line),
Entergy undertook numerous corrective actions that included the use of improved backfill specifications.34 And, as discussed at hearing, Entergy also has performed soil testing, guided wave 30 See id. at 2.
31 Report IP2-UT-13-006 was disclosed to New York on April 5, 2013 but not included by New York as a proposed exhibit in its motion. Entergy has included IP2-UT-13-006 as Attachment 3 to this Motion for the Boards reference.
32 For a two-unit site that does not have any cathodic protection and has plant-specific operating experience involving debris in the backfill and coating damage, Table 4a of NUREG-1801, Revision 2, AMP XI.M41 (NRC000162) recommends twenty-three (23) inspections in the ten years prior to the period of PEO, thirty (30) inspections in the first ten years of the PEO, and thirty-eight (38) inspections the second ten years of the PEO (a total of ninety-one (91) inspections). See Entergy Testimony at 109 (A122) (ENTR30373).
33 See Attach. 1 to this Motion.
34 See Entergy Testimony at 91-92 (A111) (ENTR30373); Dec. 11, 2012 Tr. at 3614:12-15 (Azevedo).
9 testing, and an APEC survey to further assess soil conditions, buried pipe coating condition, and corrosion potential at IPEC.35 In summary, New York did not show good cause for the admission of the four new exhibits in its motion. New Yorks claim of cracked coating and corrosion purportedly caused by rocks in backfill is not supported by the exhibits themselves. Similarly, New Yorks suggestion that Entergy and the Staff have ignored the risk posed by rocks in backfill overlooks that the robust inspection protocol required by the IPEC BPTIP already accounts for the absence of site-wide cathodic protection and the possible presence of rocks in buried piping backfill.
IV.
CONCLUSION For the above reasons, the Board should grant reconsideration and reverse its ruling admitting Exhibits NYS000477, NYS000478, NYS000479, and NYS000480. Entergy respectfully submits that the Board materially erred in finding that New York showed good cause for the admission of the four new exhibits before Entergy and the Staff had the opportunity to file written answers to the New Yorks motion. The arguments presented herein (which are presented for the first time in this Motion) constitute the decisive new information required by the NRCs reconsideration standard. If the Board declines to reverse its ruling, then Entergy intends to seek leave to supplement the evidentiary record to ensure a complete and balanced record.
35 See Entergy Testimony at 119 (A133) (ENTR30373).
10 Respectfully submitted, Signed electronically by Martin J. ONeill William B. Glew, Jr., Esq.
Kathryn M. Sutton, Esq.
William C. Dennis, Esq.
Paul M. Bessette, Esq.
Entergy Nuclear Operations, Inc.
MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, N.W.
White Plains, NY 10601 Washington, D.C. 20004 Phone: (914) 272-3202 Phone: (202) 739-5738 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@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 at Washington, DC this 14th day of June 2013
1 Consultation Emails
1 O'Neill, Martin From:
John J. Sipos [John.Sipos@ag.ny.gov]
Sent:
Monday, June 10, 2013 8:04 AM To:
Bessette, Paul M.
Cc:
Rund, Jonathan M.; Roth(OGC), David; Harris, Brian; Ghosh, Anita; O'Neill, Martin; karla@clearwater.org; 'rwebster@publicjustice.net'; 'PMusegaas@riverkeeper.org'; 'Deborah Brancato'; Janice Dean; Kathryn Liberatore; 'Turk, Sherwin'; Sutton, Kathryn M.
Subject:
RE: NYS request for consultation (NYS-5)
Good morning Paul:
Thank you for responding to the States request for consultation.
John John Sipos Assistant Attorney General tel. 518-402-2251 From: Bessette, Paul M. [1]
Sent: Monday, June 10, 2013 9:01 AM To: John J. Sipos Cc: Rund, Jonathan M.; Roth(OGC), David; Harris, Brian; Ghosh, Anita; O'Neill, Martin; karla@clearwater.org;
'rwebster@publicjustice.net'; 'PMusegaas@riverkeeper.org'; 'Deborah Brancato'; Janice Dean; Kathryn Liberatore; 'Turk, Sherwin'; Sutton, Kathryn M.
Subject:
RE: NYS request for consultation (NYS-5)
- John, Entergy also opposes the States request to further supplement the hearing record on NYS-5.
Entergys experts will have no opportunity to respond, on the record, to whatever arguments New York seeks to make based on the proposed new exhibits. It is clear from the exchange below that the States filing would not be purely ministerial in nature (e.g., updating or correcting previously-admitted exhibits). Rather, the State intends to make further substantive arguments aimed at the adequacy of Entergys AMP. Entergy does not view supplemental findingswhich are not on-the-record testimonyas an appropriate vehicle for responding to the States additional arguments. Furthermore, NYS-5 centers on a discrete issue; i.e., the adequacy of Entergy AMP as judged under Part 54, not the implementation of that AMP. In this regard, Entergy does not see the State as having an unfettered right to supplement its testimony every time a new inspection report is generated. The result would be an endless proceeding and further cluttering of an already voluminous record.
2 Paul M. Bessette Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004-2541 Direct: 202.739.5796 l Main: 202.739.3000 l Fax: 202.739.3001 pbessette@morganlewis.com l www.morganlewis.com Assistant: Lena M. Long l 202.739.5182 l llong@morganlewis.com From: John J. Sipos [2]
Sent: Friday, June 07, 2013 3:29 PM To: 'Turk, Sherwin' Cc: Rund, Jonathan M.; Roth(OGC), David; Harris, Brian; Ghosh, Anita; O'Neill, Martin; Bessette, Paul M.;
karla@clearwater.org; 'rwebster@publicjustice.net'; 'PMusegaas@riverkeeper.org'; 'Deborah Brancato'; Janice Dean; Kathryn Liberatore
Subject:
RE: NYS request for consultation (NYS-5)
Hi Sherwin:
Thanks for your email. In response to your observations and comments, the State believes that the documents are relevant to NYS-5 and supportive of the States position regarding the proposed AMP and merit inclusion in the record.
The State respectfully disagrees with what appears to be Staffs position regarding the proposed legal standard for admission (i.e., that documents now must be so significant before they are eligible for submission in the record ).
With respect to the Proposed FOF question that you pose, the State would not oppose tailored updates to the previously submitted PFOFs.
I think that the State and Staff have made their respective positions known to each other. It seems that there is a bona fide disagreement between the State and Staff on this issue and that - assuming that Staff does not have a change of view and is willing to consent to the proposed submission - there is no need to convene a phone conference between the State and Staff to further discuss this issue.
Wishing you a pleasant weekend, John John Sipos Assistant Attorney General tel. 518-402-2251 From: Turk, Sherwin [3]
Sent: Friday, June 07, 2013 1:22 PM To: John J. Sipos; 'pbessette@morganlewis.com'; martin.oneill@morganlewis.com Cc: Rund, Jonathan M.; Roth(OGC), David; Janice Dean; Kathryn Liberatore; martin.oneill@morganlewis.com; Harris, Brian; Ghosh, Anita
Subject:
RE: NYS requet for consultation (NYS-5)
Thanks, John.
Im willing to consult, but am likely to oppose your request to supplement. The question for the Board is whether the aging management program is adequate to manage the effects of aging, not what are the results
3 of inspections that are carried out in accordance with the program. The record already includes some evidence of backfill problems found during a previous inspection, evidence that the inspection program was augmented to account for the finding of deleterious materials in the backfill, and evidence concerning the Staffs ISG recommendations for sites without cathodic protection where backfill problems are found. These are summarized in the Staffs proposed findings.
Why are these inspection results so significant that they must be considered? Do you propose that the parties address the new information in supplemental proposed findings? Will we need to keep on filing supplemental proposed findings every tune new inspection results come out?
For the next several days, Ill be in and out of the office. Please propose a time you would like to consult, and Ill try to attend.
Thanks very much -
Sherwin From: John J. Sipos [4]
Sent: Friday, June 07, 2013 12:55 PM To: Turk, Sherwin; 'pbessette@morganlewis.com'; 'Deborah Brancato'; karla@clearwater.org; martin.oneill@morganlewis.com Cc: 'rwebster@publicjustice.net'; Rund, Jonathan M.; Roth(OGC), David; 'PMusegaas@riverkeeper.org'; Janice Dean; Kathryn Liberatore
Subject:
RE: NYS requet for consultation (NYS-5)
Hi Sherwin:
Yes. The documents report observations concerning pipes and backfill encountered during excavations and inspections and, we submit, support the States position regarding cathodic protection. They would tie into NYS Proposed FOFs concerning subsurface conditions and cathodic protection.
John From: Turk, Sherwin [5]
Sent: Friday, June 07, 2013 12:33 PM To: John J. Sipos; 'pbessette@morganlewis.com'; 'Deborah Brancato'; karla@clearwater.org; martin.oneill@morganlewis.com Cc: 'rwebster@publicjustice.net'; Rund, Jonathan M.; Roth(OGC), David; 'PMusegaas@riverkeeper.org'; Janice Dean; Kathryn Liberatore
Subject:
RE: NYS requet for consultation (NYS-5)
John -
These look to be inspection results. What is the relevance to the adequacy of the AMP? Where would these documents tie into the proposed findings?
Sherwin From: John J. Sipos [6]
Sent: Friday, June 07, 2013 12:10 PM To: 'pbessette@morganlewis.com'; Turk, Sherwin; 'Deborah Brancato'; karla@clearwater.org Cc: 'rwebster@publicjustice.net'; Rund, Jonathan M.; Roth(OGC), David; 'PMusegaas@riverkeeper.org'; Janice Dean; Kathryn Liberatore
Subject:
NYS requet for consultation (NYS-5)
Hello Paul, Sherwin, Karla, and Deborah:
4 Following up on a conversation this morning with Paul, that State of New York is interested in consulting with your clients about their views concerning a proposal by the State to submit various recently-disclosed documents as additional exhibits in connection with Contention NYS-5. The documents likely would include some or all of the following:
Entergy Log Number Document Title or Number 9512 CR-IP-2012-05324 9514 Visual Inspection 8 City Water Line 1502 (12/13/2012) 9517 Visual Inspection 8 City Water Line 1502 (10/10/2012) 9518 Visual Inspection 8 HP Fire Protection Line 9519 Visual Inspection 8 Service Water Line 463 9520 Visual Inspection 2 Instrument Air Line Please let me know your clients position concerning this proposal.
Thank you.
John John Sipos Assistant Attorney General tel. 518-402-2251 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.
If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
1 IP2-UT-12-030
1 IP2-UT-13-006
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-247-LR and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
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(Indian Point Nuclear Generating Units 2 and 3)
)
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June 14, 2013 CERTIFICATION OF COUNSEL In accordance with 10 C.F.R. § 2.323(b), counsel for Entergy certifies that he made a sincere effort to contact the other parties in this proceeding on June 14, 2013, to explain to them the factual and legal issues raised in this Motion, and to resolve those issues, and he certifies that his efforts to avoid the need for this Motion have been unsuccessful. New York and Riverkeeper do not oppose Entergys Motion for reconsideration insofar as it is based on grounds that Entergy should have had the opportunity to submit an answer to New Yorks motion. Clearwater stated that it takes no position on this Motion. The NRC Staff does not oppose this Motion and stated its intent to file its own motion for reconsideration next week.
Executed in accord with 10 C.F.R. § 2.304(d)
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.
1 DB1/ 74456514.2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-247-LR and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
)
)
(Indian Point Nuclear Generating Units 2 and 3)
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June 14, 2013 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of Applicants Motion For Reconsideration of the Boards Decision to Admit Additional New York Exhibits Concerning Contention NYS-5 were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Lance A. Escher Lance A. Escher, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5080 Fax: (202) 739-3001 E-mail: lescher@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.