ML16095A129
| ML16095A129 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/01/2016 |
| From: | Bessette P, O'Neill M Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Jeff Baran, Stephen Burns, Ostendorff W, Kristine Svinicki Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LA, ASLBP 15-942-06-LA-BD01, RAS 51047 | |
| Download: ML16095A129 (3) | |
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Paul M. Bessette Partner
+1.202.739.5796 Paul.bessette@morganlewis.com Martin J. ONeill Of Counsel
+1.713.890.5710 martin.oneill@morganlewis.com April 4, 2016 Chairman Stephen G. Burns Commissioner Kristine L. Svinicki Commissioner William C. Ostendorff Commissioner Jeff Baran U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Docket: Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Unit 2), Docket No. 50-247-LA (Re: Extension of Integrated Leak Rate Test Interval by 5 Years)
Re: Entergys Request to Disregard Unauthorized Filing by New York State
Dear Chairman Burns and Commissioners Svinicki,
Ostendorff, and Baran:
On April 1, 2016, New York State (the State) filed, on the electronic docket for this proceeding, a self-described Notice.1 The Commission should disregard the States eleventh-hour filing because it is procedurally unauthorized and goes beyond the bounds of a proper Notice.2 It also mischaracterizes the well-documented legal and technical bases for the license amendment at issue, as set forth in Entergys December 2014 license amendment request (LAR) and the NRC Staffs February 2016 Safety Evaluation supporting issuance of the subject license amendment.3 The Notice identifies no statutory, regulatory, or other legal basis for its submission. And there is none.
Moreover, the States suggestion that its Notice serves to inform the Commission of a new, relevant 1
State of New York Notice of Subsequent Event Concerning Pending Appeal of Atomic Safety and Licensing Board Decision LBP-15-26 and License Amendment for Entergy Indian Point Unit 2 to Delay the Containment Leak Rate Test for Five Years (Apr. 1, 2016) (Notice).
2 Authorized Commission and Licensing Board notifications of new material and relevant information are limited to statements of fact. See generally Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1359 (1984). They are not vehicles or opportunities for making additional arguments, as the State does here.
3 See Letter from Lawrence Coyle, Entergy, to NRC Document Control Desk, NL-14-128, Proposed License Amendment Regarding Extending the Containment Type A Leak Rate Testing Frequency to 15 years, Indian Point Unit Number 2, Docket No. 50-247, License No. DPR-26 (Dec. 9, 2014) (ML14353A015); Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment to Facility Operating License No. DPR-26, Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Operations, Inc., Docket No. 50-247, Indian Point Nuclear Generating Unit No. 2 (Feb. 23, 2016) (ML16057A552).
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 +1.202.739.3000 United States +1.202.739.3001
U.S. Nuclear Regulatory Commission April 4, 2016 Page 2 development is inconsistent with its explicit acknowledgment that the Commission already was aware of the information contained in the Notice.4 And the States Notice, which seeks to circumvent Entergys reliance on its duly authorized license amendment, comes only days before the Commissions scheduled issuance of a ruling on the States pending appeal of the Board decision (LBP-15-26) denying its petition to intervene in this proceeding. 5 Furthermore, the States Notice rests on a mischaracterization of Entergys LAR. The State suggests that an extension of the current outage may be relevant because the LAR notes, in passing, that the amendment could result in savings in radiation exposure to personnel, cost, and critical path time during future refueling outages.6 However, an applicants reasons or incentives for submitting a LAR have no bearing on the NRCs determination as to whether the requested action is technically justified and satisfies its regulatory requirements.7 Notably, in its original challenge to the LAR, the State similarly claimed that Entergy relied on reduced costs or outage times to justify the requested 5-year extension of the integrated leak rate test interval. The Board rejected that argument in LBP-15-26, which, as noted above, is still under Commission review.8 For the foregoing reasons, Entergy respectfully requests that the Commission disregard the States Notice.
Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d) Executed in accord with 10 C.F.R. § 2.304(d)
Martin J. ONeill, Esq. Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 1111 Pennsylvania Avenue, N.W.
Houston, TX 77002 Washington, D.C. 20004 Phone: (713) 890-5710 Phone: (202) 739-5796 Fax: (713) 890-5001 Fax: (202) 739-3001 E-mail: martin.oneill@morganlewis.com E-mail: paul.bessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
4 See Notice at 1 (The State understands that NRC Staff subsequently informed various senior assistants to the Commissioners of this development.).
5 Notably, prior to submitting its Notice, State counsel contacted Entergy counsel to query whether Entergy would be amenable to performing the integrated leak rate test during the current refueling outage, which is being extended in light of the recent baffle-former bolt inspection findings. Entergy counsel took the position that because the Commissions Affirmation Session concerning its ruling on the States pending appeal of LBP-15-26 is scheduled for next Tuesday, April 5, it would be prudent to wait for that decision and any related Commission guidance. See Nuclear Regulatory Commission, NRC-2016-0001, Sunshine Act Meeting Notice, 81 Fed. Reg. 18,651 (Mar. 31, 2016).
6 Notice at 1 n.3 (quoting Entergys LAR, Attachment 1, at 3).
7 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-22, 82 NRC __ (slip op. at 10) (Nov. 9, 2015) (If the Staff determines that the licensee has satisfied our regulatory requirements, it then issues the requested license amendment.). Indeed, the Staffs detailed Safety Evaluation for the instant license amendment focuses on Entergys compliance with the applicable safety regulations and NRC-approved guidance. Nowhere does it mention cost savings.
8 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station, Unit 2), LBP-15-26, 82 NRC __ (slip op.
at 16 n.32) (Sept. 25, 2015) (appeal pending) (noting that Entergy does not seek to justify its LAR on economic grounds).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of ) Docket Nos. 50-247-LA
)
ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Station, Unit 2) ) April 4, 2016
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I hereby certify that, on this date, copies of Entergys Request to Disregard Unauthorized Filing by New York State were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com DB1/ 87122352.1
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Paul M. Bessette Partner
+1.202.739.5796 Paul.bessette@morganlewis.com Martin J. ONeill Of Counsel
+1.713.890.5710 martin.oneill@morganlewis.com April 4, 2016 Chairman Stephen G. Burns Commissioner Kristine L. Svinicki Commissioner William C. Ostendorff Commissioner Jeff Baran U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Docket: Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Unit 2), Docket No. 50-247-LA (Re: Extension of Integrated Leak Rate Test Interval by 5 Years)
Re: Entergys Request to Disregard Unauthorized Filing by New York State
Dear Chairman Burns and Commissioners Svinicki,
Ostendorff, and Baran:
On April 1, 2016, New York State (the State) filed, on the electronic docket for this proceeding, a self-described Notice.1 The Commission should disregard the States eleventh-hour filing because it is procedurally unauthorized and goes beyond the bounds of a proper Notice.2 It also mischaracterizes the well-documented legal and technical bases for the license amendment at issue, as set forth in Entergys December 2014 license amendment request (LAR) and the NRC Staffs February 2016 Safety Evaluation supporting issuance of the subject license amendment.3 The Notice identifies no statutory, regulatory, or other legal basis for its submission. And there is none.
Moreover, the States suggestion that its Notice serves to inform the Commission of a new, relevant 1
State of New York Notice of Subsequent Event Concerning Pending Appeal of Atomic Safety and Licensing Board Decision LBP-15-26 and License Amendment for Entergy Indian Point Unit 2 to Delay the Containment Leak Rate Test for Five Years (Apr. 1, 2016) (Notice).
2 Authorized Commission and Licensing Board notifications of new material and relevant information are limited to statements of fact. See generally Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1359 (1984). They are not vehicles or opportunities for making additional arguments, as the State does here.
3 See Letter from Lawrence Coyle, Entergy, to NRC Document Control Desk, NL-14-128, Proposed License Amendment Regarding Extending the Containment Type A Leak Rate Testing Frequency to 15 years, Indian Point Unit Number 2, Docket No. 50-247, License No. DPR-26 (Dec. 9, 2014) (ML14353A015); Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment to Facility Operating License No. DPR-26, Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Operations, Inc., Docket No. 50-247, Indian Point Nuclear Generating Unit No. 2 (Feb. 23, 2016) (ML16057A552).
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 +1.202.739.3000 United States +1.202.739.3001
U.S. Nuclear Regulatory Commission April 4, 2016 Page 2 development is inconsistent with its explicit acknowledgment that the Commission already was aware of the information contained in the Notice.4 And the States Notice, which seeks to circumvent Entergys reliance on its duly authorized license amendment, comes only days before the Commissions scheduled issuance of a ruling on the States pending appeal of the Board decision (LBP-15-26) denying its petition to intervene in this proceeding. 5 Furthermore, the States Notice rests on a mischaracterization of Entergys LAR. The State suggests that an extension of the current outage may be relevant because the LAR notes, in passing, that the amendment could result in savings in radiation exposure to personnel, cost, and critical path time during future refueling outages.6 However, an applicants reasons or incentives for submitting a LAR have no bearing on the NRCs determination as to whether the requested action is technically justified and satisfies its regulatory requirements.7 Notably, in its original challenge to the LAR, the State similarly claimed that Entergy relied on reduced costs or outage times to justify the requested 5-year extension of the integrated leak rate test interval. The Board rejected that argument in LBP-15-26, which, as noted above, is still under Commission review.8 For the foregoing reasons, Entergy respectfully requests that the Commission disregard the States Notice.
Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d) Executed in accord with 10 C.F.R. § 2.304(d)
Martin J. ONeill, Esq. Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 1111 Pennsylvania Avenue, N.W.
Houston, TX 77002 Washington, D.C. 20004 Phone: (713) 890-5710 Phone: (202) 739-5796 Fax: (713) 890-5001 Fax: (202) 739-3001 E-mail: martin.oneill@morganlewis.com E-mail: paul.bessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
4 See Notice at 1 (The State understands that NRC Staff subsequently informed various senior assistants to the Commissioners of this development.).
5 Notably, prior to submitting its Notice, State counsel contacted Entergy counsel to query whether Entergy would be amenable to performing the integrated leak rate test during the current refueling outage, which is being extended in light of the recent baffle-former bolt inspection findings. Entergy counsel took the position that because the Commissions Affirmation Session concerning its ruling on the States pending appeal of LBP-15-26 is scheduled for next Tuesday, April 5, it would be prudent to wait for that decision and any related Commission guidance. See Nuclear Regulatory Commission, NRC-2016-0001, Sunshine Act Meeting Notice, 81 Fed. Reg. 18,651 (Mar. 31, 2016).
6 Notice at 1 n.3 (quoting Entergys LAR, Attachment 1, at 3).
7 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-22, 82 NRC __ (slip op. at 10) (Nov. 9, 2015) (If the Staff determines that the licensee has satisfied our regulatory requirements, it then issues the requested license amendment.). Indeed, the Staffs detailed Safety Evaluation for the instant license amendment focuses on Entergys compliance with the applicable safety regulations and NRC-approved guidance. Nowhere does it mention cost savings.
8 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station, Unit 2), LBP-15-26, 82 NRC __ (slip op.
at 16 n.32) (Sept. 25, 2015) (appeal pending) (noting that Entergy does not seek to justify its LAR on economic grounds).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of ) Docket Nos. 50-247-LA
)
ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Station, Unit 2) ) April 4, 2016
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I hereby certify that, on this date, copies of Entergys Request to Disregard Unauthorized Filing by New York State were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com DB1/ 87122352.1