ML15069A590
| ML15069A590 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/10/2015 |
| From: | Harris B, Roth D, Sherwin Turk NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 27354 | |
| Download: ML15069A590 (17) | |
Text
March 10, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
NRC STAFFS ANSWER TO (1) STATE OF NEW YORKS MOTION TO SUPPLEMENT CONTENTION NYS-25, AND (2) STATE OF NEW YORK AND RIVERKEEPER INC.S JOINT MOTION TO SUPPLEMENT CONTENTION NYS-38/RK-TC-5 INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1) and the Atomic Safety and Licensing Boards (Board) Revised Scheduling Order of December 9, 2014 (Scheduling Order), the NRC Staff (Staff) hereby responds to (1) State of New Yorks Motion for Leave to Supplement Previously-Admitted Contention NYS-25 (NYS-25 Motion), and (2) State of New York and Riverkeepers Joint Motion for Leave to Supplement Previously-Admitted Joint Contention NYS-38/RK-TC-5, (NYS-38 Motion), filed on February 13, 2015.1 For the reasons set forth below, the Staff does not oppose the State of New Yorks (New York) motion for leave to supplement Contention NYS-25, except in two limited respects.
The Staff, however, opposes New York and Riverkeeper, Inc.s (Riverkeeper) motion for leave to supplement Contention NYS-38/RK-TC-5 because that motion (a) unnecessarily duplicates and irreconcilably confuses the issues in this contention with the issues to be litigated in Contention NYS-25, thus causing substantial uncertainty as to which issues need to be 1
New York and Riverkeeper filed their motions on February 13, 2015, in accordance with the Boards Order granting their unopposed motion for a 4-day extension of time. See Order (Granting New York and Riverkeepers Motion) (Feb. 6, 2015).
addressed within the framework of each contention, and (b) impermissibly seeks to expand Contention NYS-38/RK-TC-5 beyond the reasonable scope of the contention as admitted by the Board.
DISCUSSION I. Applicable Legal Principles Governing the Admissibility of Contentions The Commission has established general requirements that govern the admissibility of contentions, as set forth in 10 C.F.R. § 2.309(f)(1). As stated therein, contentions must:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted, . . . ;
(ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely . . .; [and]
(vi) . . . [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. . . .
10 C.F.R § 2.309(f)(1)(i)-(vi).2 The Board in this proceeding has previously addressed these standards at length, in numerous Orders concerning contention admissibility.3 As the Board observed, sound legal and policy considerations underlie the Commissions requirements for contention admissibility:
2 Further, petitioners must base their contentions on existing documents or other information available at the time the petition is to be filed . . . 10 C.F.R. § 2.309(f)(2). This requirement places an ironclad obligation on petitioners to examine available information with sufficient care to enable them to uncover any information that could serve as the foundation of a contention. See Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).
3 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
LBP-08-13, 68 NRC 43 (2008); Id., Memorandum and Order (Denying the Village of Buchanans Hearing Request and Petition to Intervene) (Dec. 5, 2007), slip op. at 3; footnote omitted.
The purpose of the contention rule is to focus litigation on concrete issues and result in a clearer and more focused record for decision. The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. The Commission has emphasized that the rules on contention admissibility are strict by design. Failure to comply with any of these requirements is grounds for the dismissal of a contention.4 As the Board further observed, these requirements have been strictly applied in NRC proceedings. For example, in a license renewal proceeding, the Commission stated:
To intervene in a Commission proceeding, including a license renewal proceeding, a person . . . must proffer at least one admissible contention as required by 10 C.F.R. §§ 2.309(f)(1)(i)-
(vi). The requirements for admissibility set out in 10 C.F.R.
§§ 2.309(f)(1)(i)-(vi) are "strict by design," and we will reject any contention that does not satisfy these requirements. Our rules require "a clear statement as to the basis for the contentions and the submission of . . . supporting information and references to specific documents and sources that establish the validity of the contention." "Mere 'notice pleading' does not suffice." Contentions must fall within the scope of the proceeding - here, license renewal - in which intervention is sought.5 Moreover, contentions that are based on erroneous facts, misinterpretation, or misapprehension are also inadmissible.6 A petitioners imprecise reading of a reference document cannot serve to generate an issue suitable for litigation.7 Thus, in a proceeding where an intervenor asserted that mitigation measures were not addressed, when, in fact, they 4
Id., slip op. at 4; footnote omitted.
5 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-119 (2006) (footnotes omitted; emphasis added).
6 See, e.g., Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 136 (2004).
7 Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 NRC 281, 300 (1995).
were addressed in the applicants environmental report, the contention was ruled inadmissible for failure to raise a genuine dispute.8 Finally, it is well established that the purpose for the basis requirements is (1) to assure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) to establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) to put other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against or oppose.9 A contention must be rejected if:
(1) it constitutes an attack on applicable statutory requirements; (2) it challenges the basic structure of the Commissions regulatory process or is an attack on the regulations; (3) it is nothing more than a generalization regarding the petitioners view of what applicable policies ought to be; (4) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (5) it seeks to raise an issue which is not concrete or litigable.10 II. New Yorks Motion for Leave to Amend Contention NYS-25 Contention NYS-25, as admitted by the Board in LBP-08-13,11 challenged the sufficiency of the 2007 License Renewal Application (LRA) submitted by Entergy Nuclear Operations, Inc.
(Entergy or Applicant), alleging that Entergys commitment to submit an aging management program (AMP) that is consistent with industry programs at a later date, was inadequate to 8
Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 457 (2011). As the Board in another proceeding explained, [a]ny contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue will be dismissed. Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP-10-7, 71 NRC 391, 421 (2010); cf Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200, 247-48 (1993), review declined, CLI-94-2, 39 NRC 91 (1994).
9 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-91-19, 33 NRC 397, 400 (1991).
10 Peach Bottom, ALAB-216, 8 AEC at 20-21.
11 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 129-131 (2008).
address potential embrittlement of the reactor pressure vessels (RPVs) and associated reactor vessel internals (RVIs). In September 2011, the Board granted New Yorks motion to supplement the bases for Contention NYS-25,12 to challenge the adequacy of Entergys July 14, 2010 submittal of a plant-specific RVI AMP based upon the Electric Power Research Institutes (EPRI) Materials Reliability Program (MRP) 227 (MRP-227).13 New Yorks instant motion seeks to further supplement the bases for Contention NYS-25, to challenge the adequacy of Entergys revised RVI AMP, submitted on February 17, 2012, which Entergy based upon EPRIs recently revised report, MRP-227-A.14 In its Motion, New York observes that the Staff evaluated and approved Entergys revised AMP for RVIs, in Supplement 2 to the Safety Evaluation Report (SER) for license renewal of Indian Point Units 2 and 3, issued in November 201415 as further revised during the Staffs review.16 In support of its Motion, New York submitted a proposed Supplement to the contention,17 and the Declarations of Dr. Richard T. Lahey, Jr. and Lisa S. Kwong.18 12 State of New Yorks Motion for Leave to File Additional Bases for Previously-Admitted Contention NYS-25 in Response to Entergys July 14, 2010 Proposed Aging Management Program for Reactor Pressure Vessels and Internal Components (Sept. 15, 2010).
13 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Memorandum and Order Ruling on Pending Motions for Leave to File New and Amended Contentions (July 6, 2011), at 19-28 (unpublished). The Board admitted the additional bases proffered by New York without altering or amending the contention as written. Id. at 27.
14 NYS-25 Motion at 2.
15 Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, Supplement 2, NUREG-1930, Supp. 2 (Nov. 2014) (SER Supplement 2 or SSER2)
(ADAMS Accession No. ML14310A803).
16 NYS-25 Motion at 1, citing Revised Reactor Vessel Internals Program and Inspection Plan (NL-12-037) (Feb. 2012) (ADAMS Accession No. ML12060A312),
17 New York State February 2015 Supplement to Previously- Admitted Contention NYS-25 (NYS-25 Supplement) (Feb. 13, 2015).
18 See (1) Declaration of Dr. Richard T. Lahey, Jr. (Feb. 13, 2015) (Lahey Declaration); and (2) Declaration of Lisa S. Kwong (Feb. 13, 2015) (Kwong Declaration) and Attachments 1-3 thereto.
In its Motion, New York asserts as follows:
The contention, as supplemented by the State of New Yorks proposed additional bases, meets the requirements of former 10 C.F.R. § 2.309(f)(2) inasmuch as it is (1) based on information that was not previously available, (2) based on information that is materially different than information previously available, and (3) has been submitted in a timely fashion based on the availability of the subsequent information. As previously discussed, the additional bases are being submitted in accordance with the schedule established by the Board, and are therefore timely. The additional bases also meet the other requirements of the regulation and the Boards July 1, 2010 Scheduling Order.19 The Staff does not contest New Yorks request to supplement the bases for this contention to include the matters addressed in SSER 2.20 The Board has previously contemplated and authorized the filing of new and amended contentions arising from supplementation of the Staffs SER.21 A review of New Yorks proposed additional bases for Contention NYS 25 indicates that most of the matters sought to be raised are based upon Entergys revised AMP for RVIs or the Staffs evaluation thereof, as described in SSER 2.22 Accordingly, the Staff does not oppose the inclusion of those SSER 2-related matters as amended bases for Contention NYS-25.23 In two respects, however, the Staff opposes New Yorks Motion. In this regard, the Staff opposes the admission of ¶¶ 7.15 and 7.16 of New Yorks Supplement, in which New York 19 NYS-25 Motion, at 6.
20 The Staff expresses no views herein as to the merits of the Intervenors requests to amend the bases for Contentions NYS-25 and NYS-38/RK-TC-5, and reserves the right to address those matters, as appropriate, in the Staffs evidentiary filings concerning any amended bases that may be admitted by the Board.
21 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Revised Scheduling Order (Dec. 9, 2014), at 1; Amended Scheduling Order (June 7, 2011), at 2-3; and Scheduling Order (July 1, 2010), at 6, 11.
22 See NYS-27 Supplement, ¶ 3.6 at 1, and ¶¶ 7.10 - 7.14 at 4-7.
23 The Staff note, however, that the requirements for aging management of in-scope and screened components is set forth in 10 C.F.R. § 54.21(a)(3), rather than § 54.21(c)(1)(iii) as stated in NYS-25 Supplement ¶ 3.7.
seeks to introduce matters which have not been shown to be related to the adequacy of Entergys RVI AMP or the Staffs evaluation of that AMP in SSER 2.
First, in ¶ 7.15 of its Supplement, New York states as follows:
¶ 7.15. It is important to maintain safety margins when a reactor operates in a period of extended operation beyond its initial 40-year operating term. One reason safety margins should be maintained is to address unanticipated events or potential calculational or modeling mistakes. A recent recognition of a modeling mistake is the discovery that the Standard Review Plan (NUREG-0800) Branch Technical Position (BTP) 5-3 for estimating the initial fracture toughness of reactor vessel materials may be non-conservative for facilities that received their construction permits before 1973. See AAG Kwong Decl.,
Attachments 1, 2, 3.24 Paragraph 7.15 of the Supplement thus raises an issue concerning the potential lack of conservatism in the NRC Staffs Branch Technical Position (BTP) 5-3 pertaining to the fracture toughness of RPV materials for plants that received construction permits before 1973. New York, however, fails to point to any reason to believe that the alleged non-conservatism in BTP 5-3 affects the adequacy of Entergys AMP for RVIs, or that the Staff relied upon BTP 5-3 in approving Entergys revised RVI AMP. Accordingly, this proposed basis statement should be excluded from the matters to be litigated in this contention.
Second, in ¶ 7.16 of its Supplement, New York states:
¶ 7.16. Having now recognized the challenge posed by synergistic age related degradation mechanisms on light water reactor pressure vessel components, the federal government is spending considerable resources to investigate and understand these challenges. For example, NRCs 2016 Congressional Budget Justification lists research on materials degradation as one of the Commissions major activities (NUREG-1100, Vol. 31, at 20-21 (February 2015)) and the U.S. Department of Energy recently requested over $30 million in funding for the Light Water Reactor Sustainability Program as part of its Fiscal Year 2015 Congressional Budget Request (see USDOE FY 2015 24 Id., ¶¶ 7.15, at 7.
Congressional Budget Request, DOE/CF-0098, Vol. 3, at 425-426, 430 (March 2014)).25 Paragraph 7.16 of the Supplement presents generalized statements concerning NRC research cited in NUREG-1100 related to materials degradation,26 and U.S. Department of Energy research concerning light water reactors. New York, however, does not show that the matters addressed in this statement relate to the adequacy of any AMP for RPV or RVI embrittlement, or that they are in any way related to what New York unilaterally describes as synergistic age related degradation mechanisms on light water reactor pressure vessel components.27 In sum, New York has not shown that this information is relevant to the adequacy of Entergys revised RVI AMP or the issues that must be addressed by the parties and the Board concerning Contention NYS-25. Moreover, while New Yorks Motion specifically asserts that other portions of the Supplement are relevant to this contention, it nowhere discusses ¶ 7.16 of the Supplement or the information contained therein. Accordingly, this paragraph of the Supplement should be excluded from the bases for this contention.
25 NYS-25 Supplement, ¶ 7.16, at 7.
26 In fact, NUREG-1100 identifies the following major activities as the subject of NRC research -
among the many other major NRC activities listed:
Conduct research on: 1) the lessons learned evaluation of the Fukushima accident, 2) fire safety, 3) digital instrumentation and control and electrical systems, 4) materials degradation, 5) reactor safety code development and analysis, 6) radiation protection, 7) probabilistic risk assessment, 8) human factors and human reliability analysis, 9) environmental monitoring,
- 10) events analysis, and 11) evaluation of hazards from natural events.
NUREG-1100, 2016 Congressional Budget Justification, Vol. 31 (Feb. 2015), at 21.
27 NYS-25 Supplement, at 7.
III. New York and Riverkeepers Joint Motion for Leave to Amend Contention NYS-38/RK-TC-5 A. Contention NYS-38/RK-TC-5 Was Admitted as a Challenge to the Adequacy of Entergys Commitment to Develop an AMP in the Future, with Four Specific Bases.
Contention NYS-38/RK-TC-5 (hereinafter NYS-38) was jointly filed by New York and Riverkeeper on September 30, 2011,28 and was admitted by the Board on November 10, 2011.29 As the Board observed, this contention asserted that the Applicants commitments to develop certain AMPs in the future did not satisfy regulatory requirements:
In support of this contention, the Intervenors claim that Entergys AMPs are inadequate with regard to several safety-related systems and components because these AMPs merely commit to the future development of certain AMPs, rather than presenting existing plans for current review. Accordingly, Intervenors argue that it is impossible to evaluate at this time whether these AMPs meet NRC regulatory requirements or NRC Staff guidance like the Generic Aging Lessons Learned, NUREG 1801, Rev. 1 or Rev. 2 (GALL) guidance document.30 Further, the Board noted the Intervenors assertion that, in SER Supplement 1:31 NRC Staff both (1) made clear that Staff had concerns about various aspects of Entergys proposal and (2) disclosed that it accepted Entergys proposal to defer completion and disclosure of various details of its aging management program for various safety-related systems . . . [and intent to] obtain a renewed license based on several promises to develop AMPs for certain safety-28 See (1) State of New York and Riverkeepers Joint Motion for Leave to File a New Contention Concerning Entergys Failure to Demonstrate that it has all Programs that are Required to Effectively Manage the Effects of Aging of Critical Components or Systems (Sept. 30, 2011); and (2) State of New York and Riverkeepers New Joint Contention NYS-38/RK-TC-5 (Sept. 30, 2011).
29 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5 (Nov. 10, 2011) (Order Admitting NYS-38), as clarified, Order (Granting Entergys Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5 (Dec. 6, 2011) (Order Clarifying NYS-38).
30 Order Admitting NYS-38, at 2 (emphasis added; footnotes omitted).
31 Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, Supplement 1, NUREG-1930, Supp. 1 (Aug. 2011) (SER Supplement 1 or SSER 1)
(ADAMS Accession No. ML14310A803).
related systems and components rather than presenting those completed AMPs.32 In deciding to admit the contention, the Board carefully defined it as a challenge to Entergys commitment to develop an AMP in the future, framed by four specific bases:
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.47 . . . .
47 NYS-38/RK-TC-5 at 1-4. These bases are that Entergy (1) has deferred defining the methods used for determining the most limiting locations for metal fatigue calculations and the selection of those locations; (2) has not specified the criteria it will use and assumptions upon which it will rely for modifying the WESTEMS computer model for environmentally adjusted cumulative usage factors (CUFen) calculations; (3) has not adequately defined how it will manage primary water stress corrosion cracking (PWSCC) because it will not begin inspections until after entering the period of extended operations and Entergy has substituted a document, which will not be released until 2013, for its prior water chemistry program to manage PWSCC of the nickel alloy or nickel-alloy clad steam generator divider plates exposed to reactor coolant; and (4) does not adequately describe the contents of its AMP for reactor vessel internals, based on a revised version of the Materials Reliability 33 Program 227 (MRP-227) guidance document. See id. at 1-3.
As supported by these bases, the Board admitted Contention NYS-38/RK-TC-5, finding that the Intervenors claim that there is insufficient information in Entergys recent commitments, including its inspection plan submitted on September 28, 2011, to determine whether it has an adequate AMP had sufficiently raised a genuine dispute as to whether Entergys revised AMPs demonstrate the ability to manage aging.34 In sum, Contention NYS-38/RK-TC-5 was admitted as a contention challenging the sufficiency of Entergys reliance on commitments to develop an 32 Order Admitting NYS-38, at 3-4 (emphasis added; footnotes omitted) 33 Id. at 10-11 (other footnotes omitted).
34 Id. at 12.
aging management program that satisfies NRC regulatory requirements, with respect to the four specific basis statements that define the scope of the contention.35 B. New York and Riverkeepers New Filings Seek to Recast Contention NYS-38 as a Challenge to the Adequacy of Entergys Revised AMP.
While Contention NYS-38 was admitted as a contention challenging the regulatory sufficiency of Entergys commitment to develop an adequate AMP in the future, New York and Riverkeeper now seek to substantially re-cast the contention, by introducing a challenge to the adequacy of Entergys recent revision of the AMP. While such a challenge may well be appropriate for litigation in a license renewal proceeding -- and, indeed, as discussed above, the Staff does not oppose the introduction of such matters regarding Contention NYS-25 -- the Motion to supplement Contention NYS-38 is fundamentally flawed in two respects and should be rejected.
First, the Intervenors motion irreconcilably confuses the issues that must be litigated and resolved within the scope of Contention NYS-38, and expands the issues beyond the reasonable scope of the contention as admitted by the Board. The Intervenors recognize that
[t]he Amended and Revised RVI Plan substantially modified and replaced Entergys previously-35 As this Board has ruled, the requirement in 10 C.F.R. § 2.309(f)(1)(ii) that an intervenor provide a brief explanation of the basis for the contention, helps define the scope of a contention - the reach of a contention necessarily hinges upon its terms and its stated bases. Entergy Nuclear Operations, Inc.
(Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 61 (2008), citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 379 (2002), and Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988), aff'd sub nom. Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991), cert. denied, 502 U.S. 899 (1991). Thus, in Seabrook, the Appeal Board stated as follows:
The reach of a contention necessarily hinges upon its terms coupled with its stated bases. We have long held that one purpose of the requirement in 10 C.F.R. 2.714(b) that the bases of a contention be set forth with reasonable specificity is to put the other parties on notice as to what issues they will have to defend against or oppose. Thus, where a question arises as to the admissibility of a contention, we look to both the contention and its stated bases. Similarly, where, as here, the issue is the scope of a contention, there is no good reason not to construe the contention and its bases together in order to get a sense of what precise issue the party seeks to raise. . . .
Seabrook, ALAB-899, 28 NRC at 97 (footnotes omitted).
proposed approach relating to RVIs.36 While the Intervenors initially contended that Entergys commitment to develop an AMP in the future was insufficient to satisfy regulatory requirements; they now seek to leave those claims in place while also claiming that the newly revised AMP (which replaces Entergys previous commitments with specific AMP provisions), is inadequate.37 This presents an unworkable anomaly: In claiming that the provisions of the revised AMP are inadequate, the Intervenors have necessarily abandoned their previous assertions regarding the absence of any such provisions in the previous AMP. Accordingly, the Intervenors attempt to supplement this contention, while also maintaining their prior claims, should be rejected, inasmuch as their initial and current claims cannot both be litigated at the same time.
Second, the Intervenors apparently now seek to litigate the very same issues within the scope of two different contentions. In this regard, they have submitted the same Declaration (by Dr. Richard Lahey) to support the amendment of both Contention NYS-25 and NYS-38.
Dr. Lahey, however, does not distinguish between these two contentions in his Declaration, and he nowhere indicates which contention he is addressing therein; accordingly, it is impossible to understand which of his concerns he intended to apply to which contention. As a result, if the Intervenors Motion were to be granted, the same matters would have to be litigated within the scope of these two contentions. That result would be unworkable and contrary to the Commissions requirement that a contention (or a proposed amendment to an admitted contention) must put other parties sufficiently on notice of the issues so they will know generally what they will have to defend against or oppose.38 36 NYS-38 Motion, at 5.
37 See, e.g., NYS-38 Supplement ¶ 5.1 (Entergys Revised RVI Program fails to adequately consider and address the full array of aging management mechanisms), ¶ 5.2 (the calculation of CUFen values relies on inadequate assumptions and fails to consider the effects of radiation on metal fatigue),
and ¶ 5.3 (the revised RVI AMP relies on detection of fatigued or fractured components during periodic inspections, rather than pre-emptive part replacement).
38 Seabrook, ALAB-899, 28 NRC at 97; Peach Bottom, ALAB-216, 8 AEC at 20-21; Palo Verde, LBP-91-19, 38 NRC at 400.
Indeed, this Board has previously recognized that Contention NYS-38 raises many of the same concerns that appear in other contentions, and overlap those contentions, as discussed in its December 6, 2011 Order clarifying the scope of Contention NYS-38/RK-TC-5.39 Although that overlap may not have been problematic when Contention NYS-38 merely contested the Applicants reliance on commitments to take action in the future, that overlap is of critical importance now. Importantly, the Intervenors filing of Dr. Laheys Declaration in an undifferentiated attempt to amend two separate contentions, without clarifying which portions of his Declaration apply to which contention, and without explaining why the same information should be litigated in two separate contentions, introduces unnecessary confusion and substantial uncertainty as to the matters that must be addressed by the Board and parties to properly resolve each contention.
39 Order Clarifying NYS-38, at 5.
CONCLUSION For the reasons set forth above, the Staff does not oppose New Yorks supplementation of Contention NYS-25, except in two specific respects. The Staff, however, opposes New York and Riverkeepers proposed supplementation of Contention NYS-38/RK-TC-5 in its entirety, on the grounds that it unnecessarily duplicates and confuses the issues in this contention with the issues to be litigated in Contention NYS-25, and impermissibly seeks to expand Contention NYS-38/RK-TC-5 beyond the reasonable scope of the contention as admitted by the Board.
Respectfully submitted,
/Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov Dated at Rockville, MD this 10th day of March 2015 Executed in Accord with 10 C.F.R. 2.304(d)
Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Dated at Rockville, MD this 10th day of March 2015
Executed in Accord with 10 C.F.R. 2.304(d)
David E. Roth Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-2749 E-mail: david.roth@nrc.gov Dated at Rockville, MD this 10th day of March 2015
CERTIFICATION OF COUNSEL In accordance with 10 C.F.R. § 2.323(b) and the Board's Scheduling Order of July 1, 2010, I certify that I made a sincere effort to make myself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues were unsuccessful.
Respectfully submitted, Executed in Accord with 10 C.F.R. 2.304(d)
David E. Roth Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-2749 E-mail: david.roth@nrc.gov Dated at Rockville, MD this 10th day of March, 2015
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO (1) STATE OF NEW YORKS MOTION TO SUPPLEMENT CONTENTION NYS-25, AND (2) STATE OF NEW YORK AND RIVERKEEPER INC.S JOINT MOTION TO SUPPLEMENT CONTENTION NYS-38/
RK-TC-5, dated March 10, 2015, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above captioned proceeding, this 10th day of March 2015.
/Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov