ML15266A541
| ML15266A541 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 09/23/2015 |
| From: | Sipos J State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-275-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 28315 | |
| Download: ML15266A541 (15) | |
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. September 23, 2015
x STATE OF NEW YORK MOTION FOR LEAVE TO FILE TWO NRC DOCUMENTS AS ADDITIONAL EXHIBITS ALONG WITH PRE-FILED SUPPLEMENTAL TESTIMONY Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224
TABLE OF CONTENTS PAGE INTRODUCTION ...........................................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................2 ARGUMENT I. GOOD CAUSE EXISTS FOR ALLOWING THE STATE TO FILE THE TWO NRC REPORTS AS ADDITIONAL EXHIBITS .............................................5 A. The NRC ReportsWhich Include Information Supporting the States Position on the Track 2 ContentionsAre Relevant ...............................................5 B. The Two NRC Reports Are Necessary to Develop a Sound Hearing Record and to Determine the Reliability of the Evidence Presented by Staff and Entergy .....................................................................................................5 C. Submission of the Two NRC Reports Will Not Cause Prejudice or Delay the Proceeding ..........................................................................................................6 D. The State Has Presented this Motion in a Timely Fashion ......................................7 II. GOOD CAUSE EXISTS FOR ALLOWING THE STATE TO FILE THE ACCOMPANYING BRIEF STATEMENT OF DR. LAHEY AS AN ADDITIONAL EXHIBIT .......................................................................................8 CONCLUSION ................................................................................................................................9 i
INTRODUCTION Pursuant to 10 C.F.R. § 2.323(a), the State of New York respectfully requests leave to file three additional exhibits - two NRC reports and supplemental testimony by Dr. Richard Lahey discussing those reports - in support of Contentions NYS-25, NYS-26B/RK-TC-1B, and NYS-38/RK-TC-5. The two NRC reports were prepared by Argonne National Laboratories in concert with NRC Staff and discuss various aspects of age-related degradation on reactor materials and components as well as the potential synergies among such degradation mechanisms. NRC published the reports in July 2015.
The two NRC documents are:
- 1. NUREG-CR-7184, ANL-12/56, CRACK GROWTH RATE AND FRACTURE TOUGHNESS TESTS ON IRRADIATED CAST STAINLESS STEELS, Chen, Y., Rao, A. S., 181 pages (July 2015), and
- 2. NUREG/CR-7185, ANL-14/10, EFFECT OF THERMAL AGING AND NEUTRON IRRADIATION ON CRACK GROWTH RATE AND FRACTURE TOUGHNESS OF CAST STAINLESS STEELS AND AUSTENITIC STAINLESS STEEL WELDS, Chopra, O. K., Rao, A. S., 173 pages (July 2015).
Also, the first report is a subsequent version of a document previously presented by the State (NYS000488). The accompanying 8-page pre-filed supplemental testimony of Dr. Lahey briefly summarizes the two reports and explains their link to the States contentions.
Good cause exists for allowing the State to file these additional exhibits because the NRC reports are relevant to the Track 2 contentions and likely to be discussed in the course of the upcoming evidentiary hearing. Furthermore, the submission of such exhibits at this time will support the establishment of a sound hearing record, allow for a more streamlined, efficient hearing process, will not cause any delay in the proceeding or prejudice other parties, and is otherwise in the public interest.
Entergy and NRC Staff oppose the submission of the NRC reports and a brief pre-filed statement by Dr. Lahey. Riverkeeper and Clearwater support the States motion.
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FACTUAL BACKGROUND The States expert witness, Dr. Richard Lahey, recently reviewed the two NRC reports and on September 14, 2015 informed the State that, in his opinion, the documents are relevant to the Track 2 contentions, supportive of his opinions and the States case, and contrary to Entergy and Staffs litigation position in this proceeding. The same day that the State received this information, the State promptly consulted with the parties as to whether they would consent to a motion for leave to submit the reports and a brief pre-filed supplemental statement by Dr. Lahey.
The State acknowledges that Entergy disclosed the documents in August and September and that the State did not include the reports in its recent submission of pre-filed exhibits on September 9. On August 3, Entergy identified one of the NRC reports as relevant to Contentions NYS-25, NYS-26B/RK-TC-1B, and NYS-38/RK-TC-5:
Entergy Aug. 3, 2015 disclosure, p. 14/14. On September 1, 2015, Entergy disclosed both NRC reports as relevant to NYS Contentions NYS-25 and NYS-38/RK-TC-5:
Entergy Sept. 1, 2015 disclosure, p. 11/11.1 Neither Entergy nor Staff introduced these documents as exhibits in their August submissions.
1 NRC Staff did not disclose the two NRC documents.
2
At the time that Entergy made the disclosures, the State and Riverkeeper were diligently working preparing to meet the September 9 deadline for submission of supplemental pre-filed testimony and exhibits in responses to NRC Staff and Entergys numerous August 10 submissions on the Track 2 contentions.2 On that date, NRC submitted 68 documents, and Entergy submitted 111 documents. Notably, this was the first time in the proceeding that those parties had submitted testimony and position statements concerning Contention NYS-25.3 Towards the end of the intervenors 30-day reply period, the States expert witness on Contentions NYS-25 and 26B was essentially unavailable from September 7 - 10 due to another commitment. Following Dr. Laheys return to the Capitol District, he reviewed the two NRC reports over the weekend of September 12-13. On Monday, September 14, he communicated his analysis of the NRC documents to the State. In turn, on the same day, the State promptly initiated consultations with the parties about the States proposal to submit the NRC reports as exhibits.
The first NRC document, "Crack Growth Rate and Fracture Toughness Tests on Irradiated Cast Stainless Steels" [NUREG/CR-7184, proposed NYS000574], reports, among other things, that: for cast austenitic stainless steel (or CASS) materials synergies exist between thermal embrittlement and irradiation embrittlement; and transgranular brittle cleavage was observed for embrittled materials, in particular in tests of CASS, as was ductile tearing. Pre-filed Supplemental Testimony of Dr. Lahey at 6-7 (dated Sept. 23, 2015) (hereinafter Lahey Sept. 23 Test.). Furthermore, as Dr. Lahey notes, it appears that this NRC document is a final report of 2
The States efforts in preparing its supplemental responses were complicated by the fact that Entergy did not disclose until late July and early August a number of Westinghouse documents and other information from 2014 or earlier in 2015.
3 In early 2012, Contention NYS-25 was placed into Track 2 and Entergy and NRC Staffs obligations to present pre-filed testimony, statements of position, and exhibits were deferred.
3
an earlier revised manuscript that the State previously submitted (as Exhibit 488A-B) and that Dr. Lahey referred to in his previous testimony (e.g., NYS000482). Lahey Sept. 23 Test. at 7-8.
The second NRC document, "Effects of Thermal Aging and Neutron Irradiation on Crack Growth Rate and Fracture Toughness of Cast Stainless Steels and Austenitic Stainless Steel Welds [NUREG/CR-7185, proposed NYS000575], reports, among other things, that: cast austenitic stainless steel and austenitic stainless steel welds have a duplex structure and may experience thermal embrittlement; this degradation mechanism applies to CASS structures, components, and fittings and the stainless steel welds for reactor vessel internals; thermal embrittlement may decrease ductility, fracture toughness, and impact strength (i.e., due to significant shock loads) of CASS, its welds, and the welds of austenitic stainless steel; irradiation embrittlement can affect these components and make them more susceptible to irradiation-assisted stress corrosion cracking (or IASCC); IASCC can increase the crack growth rate of stress corrosion cracks; and that possible synergies occur between thermal embrittlement and irradiation embrittlement. Lahey Sept. 23 Test. at 4-5. According to Dr. Lahey, this report is significant and contains information that has not been included in previous NRC reports. Id. at 5-6, 7.
Dr. Lahey observes that the two NRC reports support the opinions and testimony that he has presented in this proceeding concerning the States Track 2 contentions. Lahey Sept. 23 Test. at 3-7.
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ARGUMENT I. GOOD CAUSE EXISTS FOR ALLOWING THE STATE TO FILE THE TWO NRC REPORTS AS ADDITIONAL EXHIBITS A. The NRC ReportsWhich Include Information Supporting the States Position on the Track 2 ContentionsAre Relevant As set forth in the accompanying statement of Dr. Lahey, both NRC reports are highly relevant to the proceeding and support the States position on the Track 2 contentions. NRC report NUREG/CR-7185 reports that, given the structure of cast austenitic stainless steel and austenitic stainless steel welds, both types of components may experience thermal embrittlement which in turn can reduce their ductility, fracture toughness, and impact strength. This NRC report also acknowledges that irradiation embrittlement can affect such components and make them more susceptible to irradiation-assisted stress corrosion cracking. Additionally, the reports observe that transgranular cleavage was observed for embrittled materials and that synergies can occur between thermal embrittlement and irradiation embrittlement. Lahey Sept. 23 Test. at 3-7.
Since the two NRC reports support the States position, they are relevant and thus, good cause exists to allow the State to file them as exhibits.
B. The Two NRC Reports Are Necessary to Develop a Sound Hearing Record and to Determine the Reliability of the Evidence Presented by Staff and Entergy The Board should also grant the States request for leave to file the exhibits to ensure that the ultimate decision on relicensing is based on a complete record. It is of the utmost importance that the Board has a full record of all material and relevant evidence when rendering its relicensing decision. See Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-580, 11 N.R.C. 227, 230 (Appeal Board 1980) (No conceivable good is served by making empty findings in the absence of essential evidence.). One of the NRC reports, NUREG/CR-7184, is a final version of a report that the State previously presented.
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Lahey Sept. 23 Test. at 7-8. The other NRC report, NUREG/CR-7185, discusses the synergies of degradation mechanisms on components and welds in pressure vessels. Furthermore, the States expert describes this new report as significant and as containing information not included in previous NRC reports. Lahey Sept. 23 Test. at 5-6, 6-7. Thus, contrary to Staffs position during the consultation process, the documents are not redundant. The two reports meet all the criteria of admissibility under 10 C.F.R. § 2.337(a). Consequently, good cause exists to allow their filing for the Boards consideration at the hearing.
C. Submission of the Two NRC Reports Will Not Cause Prejudice or Delay the Proceeding Five days after the State submitted its supplemental pre-filed testimony and exhibits, the States expert informed State of the significance of NUREG/CR-7184 and NUREG/CR-7185 to the Track 2 contentions. The same day (September 14), the State promptly alerted the parties about the two NRC reports and the States interest in introducing them as exhibits.
Neither Entergy nor Staff can be prejudiced by the introduction of the two reports. First and foremost, NUREG/CR-7184 and NUREG/CR-7185 are NRC documents, which NRC Staff and Entergy already possessed. NRC Staff cannot be prejudiced by the introduction of its own documents. Nor can Entergy be surprised or prejudiced, since its disclosures show that it possessed the reports in August.
Additionally, the introduction now - two months before the start of the hearing - of the reports as pre-filed exhibits will not delay the hearing. The State has expeditiously sought consent and permission to introduce the exhibits. The reports squarely address Staff and Entergys position on central issues in Track 2, including embrittlement of reactor pressure vessels and internal components as well as synergistic effects of age-related degradation mechanisms. These issues were likely already hearing topics, and, thus, the introduction of the reports will not expand the scope of the hearing, delay the hearing, or have any adverse effect on 6
the proceeding. Cf. Entergy Nuclear Vermont Yankee and Entergy Nuclear Operations, Inc.,
(Vermont Yankee Nuclear Power Station), Entergys Answer in Support of Staffs Motion for Leave to Introduce Two Additional Exhibits (Aug. 24, 2006) (ML062430029) at 2 (supporting Staffs August 23, 2006 motion4 to introduce two 25-year-old documents it had recently located on ADAMS as additional exhibits at an ASLB hearing scheduled for September 13-15, 2006 because [t]here would be no significant impacts on any party as a result of the admission of these clearly relevant documents[,] . . . . they do not represent a change in position by the Staff, nor raise issues that have not been previously addressed[,] . . . . [and] [t]heir admission would not delay or expand the hearing or require the Board to address matters that it would not have otherwise been considered.). To ensure these documents are available at the hearing and properly labeled, the State respectfully requests that the Board accept these additional exhibits.
In sum, no prejudice or delay weighs against allowing the State to file NUREG/CR-7184 and NUREG/CR-7185 as exhibits at this juncture in the proceeding.
D. The State Has Presented this Motion in a Timely Fashion During August and early September, the State focused on preparing responses to the many filings Entergy and Staffs made on August 10. See above at 3. The State acknowledges that ideally it should have presented the reports as part of its September 9 supplemental submissions - and that it could have done so as of right at that time. However, once it discovered this oversight, the State has promptly moved for consent from the parties, and now seeks permission from the Board, to submit the reports (and a brief statement by Dr. Lahey).
The State is submitting NUREG/CR-7184 and NUREG/CR-7185 to the Board ten days after the 4
Entergy Nuclear Vermont Yankee and Entergy Nuclear Operations, Inc., (Vermont Yankee Nuclear Power Station), NRC Staffs Motion for Leave to Introduce Two Additional Hearing Exhibits (Aug. 23, 2006) (ML062360102).
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States expert informed its attorneys of the reports significance. Given the role of experts in the review and preparation for pre-trial submissions as well as the time required to draft this motion and consult with other parties on this motion, the States submission is timely and shows good faith on the part of the State.
The State further notes that the applicant and Staff from time to time have updated or corrected its pre-filed submissions as well as requested permission from the Board to submit additional exhibits after the submission pre-filed exhibits. See, e.g., May 9, 2012 Applicants Notice of Correction (which submitted revised pre-filed testimony as well as additional exhibits ENT000402, ENT000403, ENTR00422 in connection with Contention NYS-5) ML12130A504; May 9, 2012 Entergy letter to ASLB (same) ML12130A518; October 2, 2012 Entergy Unopposed Motion for Leave to File Additional Exhibits (submitting fifteen exhibits, which it asserted were relevant and likely to be discussed at the October 2012 evidentiary hearing)
ML12276A482.5 The State respectfully suggests that these referenced filings provide a useful path to resolve this current motion.
II. GOOD CAUSE EXISTS FOR ALLOWING THE STATE TO FILE THE ACCOMPANYING BRIEF STATEMENT OF DR. LAHEY AS AN ADDITIONAL EXHIBIT Similar reasons support the States request to submit the accompanying 8 pages of supplemental testimony of Dr. Lahey as an exhibit (proposed NYS000576). The statement briefly summarizes the two NRC reports and their relevance and significance to the Track 2 contentions. As such, the statement informs the parties and the Board of Dr. Laheys views regarding the documents. The statement is therefore relevant and also augments the record before the Board. The submission of an 8-page supplemental statement two months before the 5
As indicated, NRC Staff, Riverkeeper, and the State did not oppose this motion by Entergy.
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start of the evidentiary hearing will not delay the hearing or prejudice the applicant or Staff.
CONCLUSION For the above reasons, the State respectfully requests that the Board grant the State of New York leave to file (1) NUREG-CR-7184 - ANL-12/56, (2) NUREG/CR-7185 - ANL-14/10, and (3) the accompanying supplemental testimonial statement by Dr. Lahey as exhibits NYS000574, NYS000575, and NYS000576, respectively.
Respectfully submitted, Signed (electronically) by John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12227 (518) 776-2380 john.sipos@ag.ny.gov Dated: September 23, 2015 9
Certificate Pursuant to 10 C.F.R. § 2.323 In accordance with the Boards Scheduling Order of July 1, 2010 (at 8-9) and 10 C.F.R. § 2.323(b), the undersigned counsel hereby certifies that counsel for the State of New York has made a sincere effort to contact other parties in the proceeding and resolve the issues raised in the motion. The State of New Yorks efforts to resolve the issues with NRC Staff and Entergy have been unsuccessful, and NRC Staff and Entergy oppose this motion. Riverkeeper and Clearwater support the motion.
Signed (electronically) by John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224 (518) 776-2380 September 23, 2015
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. September 23, 2015
x CERTIFICATE OF SERVICE I hereby certify that on September 23, 2015, copies of the State of New York Motion For Leave to File Two NRC Documents as Additional Exhibits Along With Pre-Filed Supplemental Testimony were served electronically via the NRCs Electronic Information Exchange public submission portal on the following recipients:
Lawrence G. McDade, Chair Kathleen Schroeder, Law Clerk Richard E. Wardwell, Administrative Judge Alana Wase, Law Clerk Michael F. Kennedy, Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Kathleen.Schroeder@nrc.gov Lawrence.McDade@nrc.gov Alana.Wase@nrc.gov Richard.Wardwell@nrc.gov Michael.Kennedy@nrc.gov Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 16 G4 Mailstop 3 F23 One White Flint North Two White Flint North 11555 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 ocaamail@nrc.gov 2
Office of the Secretary William B. Glew, Jr., Esq.
Attn: Rulemaking and Adjudications Staff Entergy Nuclear Operations, Inc.
U.S. Nuclear Regulatory Commission 440 Hamilton Avenue Mailstop 3 F23 White Plains, NY 10601 Two White Flint North wglew@emtergy.com 11545 Rockville Pike Rockville, MD 20852-2738 Mark Churchill, Esq.
hearingdocket@nrc.gov Matthew M. Leland, Esq.
brian.newell@nrc.gov McDermott Will & Emery LLC 600 13th Street, NW Sherwin E. Turk, Esq. Washington, DC 20005-3096 David E. Roth, Esq. mchurchill@mwe.com Beth N. Mizuno, Esq. mleland@mwe.com Brian G. Harris, Esq.
Anita Ghosh, Esq. Emre N. Ilter, Esq.
Office of the General Counsel McDermott Will & Emery LLC U.S. Nuclear Regulatory Commission 500 North Capitol Street, NW Mailstop 15 D21 Washington, DC 20001 One White Flint North eilter@nwe.com 11555 Rockville Pike Rockville, MD 20852-2738 Elise N. Zoli, Esq.
sherwin.turk@nrc.gov Goodwin Procter, LLP david.roth@nrc.gov Exchange Place beth.mizuno@nrc.gov 53 State Street brian.harris@nrc.gov Boston, MA 02109 anita.ghosh@nrc.gov ezoli@goodwinprocter.com Kathryn M. Sutton, Esq. Robert D. Snook, Esq.
Paul M. Bessette, Esq. Assistant Attorney General Raphael Kuyler, Esq. Office of the Attorney General Grant W. Eskelsen, Esq. State of Connecticut Morgan, Lewis & Bockius LLP 55 Elm Street 1111 Pennsylvania Avenue, NW P.O. Box 120 Washington, DC 20004 Hartford, CT 06141-0120 ksutton@morganlewis.com robert.snook@ct.gov pbessette@morganlewis.com rkuyler@morganlewis.com geskelsen@morganlewis.com Martin J. ONeill, Esq.
Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com 2
Melissa-Jean Rotini, Esq. Richard Webster, Esq.
Assistant County Attorney Public Justice, P.C.
Office of the Westchester County Attorney Suite 200 Michaelian Office Building 1825 K Street, NW 148 Martine Avenue, 6th Floor Washington, DC 20006 White Plains, NY 10601 rwebster@publicjustice.net MJR1@westchestergov.com Andrew B. Reid, Esq.
Theresa Knickerbocker, Mayor Springer & Steinberg, P.C.
Kevin Hay, Village Administrator 1600 Broadway, Suite 1200 Village of Buchanan Denver, CO 80202 Municipal Building areid@springersteinberg.com 236 Tate Avenue Buchanan, NY 10511-1298 Peter A. Gross Administrator@villageofbuchanan.com Executive Director theresak@villageofbuchanan.com Hudson River Sloop Clearwater, Inc.
724 Wolcott Avenue Daniel Riesel, Esq. Beacon, NY 12508 Thomas F. Wood, Esq. peter@clearwater.org Victoria S. Treanor, Esq.
Sive, Paget & Riesel, P.C. David A. Repka, Esq.
460 Park Avenue Counsel for New York, NY 10022 Westinghouse Electric Company LLC driesel@sprlaw.com Winston & Strawn LLP vtreanor@sprlaw.com 1700 K Street, NW Washington, DC 20006-3817 Michael J. Delaney, Esq. drepka@winston.com Director Energy Regulatory Affairs Deborah Brancato, Esq.
NYC Department of Environmental Riverkeeper, Inc.
Protection 20 Secor Road 59-17 Junction Boulevard Ossining, NY 10562 Flushing, NY 11373 dbrancato@riverkeeper.org mdelaney@dep.nyc.gov Signed (electronically) by Dated at New York, New York ____________________________________
this 23rd day of September 2015 John J. Sipos Assistant Attorney General State of New York (212) 776-2380 john.sipos@ag.ny.gov 3