View source for Information Notice 2010-26, New England Coalition'S Motion for Leave to Reply to NRC Staff'S Objection to Nec'S Notification of Information Notice 2010-26 and Entergy'S Response to the Supplement to Nec'S Petition for Commission Review of LBP-10-

{{Adams
| number = ML110120195
| issue date = 12/30/2010
| title = New England Coalition'S Motion for Leave to Reply to NRC Staff'S Objection to Nec'S Notification of Information Notice 2010-26 and Entergy'S Response to the Supplement to Nec'S Petition for Commission Review of LBP-10-19
| author name = Shadis R
| author affiliation = New England Coalition, Inc, Friends of the Coast
| addressee name = 
| addressee affiliation = NRC/ASLBP, NRC/OCM
| docket = 05000271
| license number = 
| contact person = SECY RAS
| case reference number = 50-271-LR, RAS M-458, ASLBP 06-849-03-LR, LBP-10-19
| document type = Legal-Motion
| page count = 15
}}
{{#Wiki_filter:DOCKETED December 30, 2010 (10:37p.m.)
OFFICE OF SECRETARY RULEMAKINGS

AND ADJUDICATIONS

STAFF'2.AS ~qs~-V December 30, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY

COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING

===BOARD BEFORE THE COMMISSION===
In the Matter of Docket No. 50-271-LR Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc.(Vermont Yankee Nuclear Power Station)NEW ENGLAND COALITION'S

MOTION FOR LEAVE TO REPLY TO V, NRC STAFF'S OBJECTION

TO NEC'S NOTIFICATION

===OF INFORMATION===
NOTICE 2010-26 AND ENTERGY'S

===RESPONSE TO THE SUPPLEMENT===
TO NEC'S PETITION FOR COMMISSION

REVIEW OF LBP-10-19 Submitted

by: Raymond Shadis Pro se Representative

Friends of the Coast New England Coalition J"V#&#xfd;4Z4-e&#xfd; 
-0 q/ 
4.December 30, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY

COMMISSION

===BEFORE THE COMMISSION===
In the Matter of Docket No. 50-271-LR Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc.(Vermont Yankee Nuclear Power Station)NEW ENGLAND COALITION'S

MOTION FOR LEAVE TO REPLY TO NRC STAFF'S OBJECTION

TO NEC'S NOTIFICATION

===OF INFORMATION===
NOTICE 2010-26 AND ENTERGY'S

===RESPONSE TO THE SUPPLEMENT===
TO NEC'S PETITION FOR COMMISSION

REVIEW OF LBP-10-19 New England Coalition

("NEC") hereby respectfully

moves for (requests) 
leave to reply to the NRC Staffs Objection

to NEC's Notification

of Information

Notice 2010-26 and Entergy's

Rsponse to the Supplement

to NEC's Petition for Commission

Review of LBP-10-19.

I. MOTION FOR LEAVE TO REPLY IS NECESSARY.

This Motion for Leave to Reply is necessary

because the Board's permission (leave) to file a reply is required.The Commission's

regulations

do not contemplate

the filing of replies under the present circumstances, that is, in reply to objections.

Even if, for the sake of argument, NEC's Petition Supplement, transmitting

material new information, were taken as a petition amendment, there is no provision

for reply without the permission

of the Commission, as under 10 C.F.R. &sect; 2.323(c).2 r,-9 II. REPLY IS WARRANTED

BY UNFORESEEABLE

===AND COMPELLING===
CIRCUMSTANCES

-NEC respectfully

submits that Leave to Reply should be granted because this situation

presents the type of "unforeseeable" and "compelling

circumstances" which warrant a reply.A. NEC could not have anticipated

NRC Staff and NextEra's

baseless and erroneous

assertions

that the information

cited by NEC in NRC Information

Notice 2010-26 "Submergence

of Electrical

Cables" (IN) is irrelevant

and immaterial

when, in fact, it is clear that the IN is relevant because it speaks directly to aging management

of below grade and inaccessible

electrical

cables, a requisite

element of all License Renewal applications.

Further, the IN is material because it serves to inform the requested

Commission

review regarding

the"materially-different" outcome threshold

criterion

for late contention

acceptance

(10 CFR &sect; 2.326(a)(3) 
). Conclusions

in the IN are in agreement

with concerns raised by NEC in its late-filed

contention

and thus support the likelihood

that NEC would prevail at hearing, the consequence

of which would mean, with close to certainty, a materially

different

outcome.B. NEC could not have foreseen the NRC Staff counsel's

claim that the IN, published

December 12, 2010, is not new information

when NRC Staff conclusions

regarding

the efficacy of certain testing procedures (for degradation

or aging of electrical

insulation) 
are to found in no preceding

Generic Letter or Information

Notice that NEC can discover.C. NEC could not have foreseen NRC Staff counsel's

brazen assertion, based on the foregoing

false claims, that it was under no obligation, legal, ethical, or 3 otherwise, to lay the newly generated

on-topic staff report before the Commission.

III. CONCLUSION

-NEC respectfully

submits, for all of the good reasons above, that the Commission

should allow a reply.In keeping with ordinary practice, and with respect for NRC's goals of orderly and timely adjudication, NEC has attached its proposed Reply for the Commission

to consider without delay if it grants the Motion or reject if it does not.4 IV. CERTIFICATE

OF COUNSEL Pro Se Representative

for NEC hereby certifies

that in conformance

with 10 C.F.R.&sect;2.323, NEC made a sincere attempt to obtain the consent of Entergy and NRC Staff to the filing of the foregoing

Motion for Leave to Relay and by extension

the attached Reply, but consent was denied.Respectfully

submitted, R Ad Shadis Pro se representative

New England Coalition Post Office Box 98 Edgecomb, Maine 04556 207-882-7801 Shadis@prexar.com

5 
/December 30, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY

COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING

===BOARD BEFORE THE COMMISSION===
In the Matter of Docket No. 50-271-LR Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc.(Vermont Yankee Nuclear Power Station)NEW ENGLAND COALITION'S

REPLY TO NRC STAFF'S OBJECTION

TO NEC'S NOTIFICATION

OF INFORMATION

NOTICE 2010-26 AND ENTERGY'S

RESPONSE TO THE SUPPLEMENT

TO NEC'S PETITION FOR COMMISSION

REVIEW OF LBP-10-19 Submitted

by: Raymond Shadis Pro se Representative

New England Coalition

December 30, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY

COMMISSION

===BEFORE THE COMMISSION===
In the Matter of Docket No. 50-271-LR Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc.(Vermont Yankee Nuclear Power Station)NEW ENGLAND COALITION'S

REPLY TO NRC STAFF'S OBJECTION

TO NEC'S NOTIFICATION

OF INFORMATION

NOTICE 2010-26 AND ENTERGY'S

RESPONSE TO THE SUPPLEMENT

TO NEC'S PETITION FOR COMMISSION

REVIEW OF LBP-10-19 I. INTRODUCTION

New England Coalition

("NEC ") hereby replies to NRC Staffs Objection

to NEC's Notification

of Information

Notice 2010-26 and Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc.'s ("Entergy") 
Response to the Supplement

to NEC's Petition for Commission

Review of LBP-10-19.

NRC Staffs "Objection" was filed on December 21, 2010 and Entergy's "Response" was filed on December 23, 2010.II.

==BACKGROUND==
Pending before the Commission

is NEC's November 12, 2010 Petition for Commission

Review of ASLBP Memorandum

and Order (LBP-10-19) (October 28, 2010) denying NEC's Motion to reopen the record in the Entergy Vermont Yankee license renewal proceeding

and add a new contention

on aging management

of electric 2 cables not qualified

for service in the environments

to which they are subjected, namely prolonged

wetting and submergence.

The Board held that NEC's proposed contention

failed on two threshold acceptance

criteria to reopen the proceeding

of 10 C.F.R. 2.326(a)(1) 
and (3); the timeliness

and "materially-different" outcome. The Board also considered

whether the issue raised in the proposed contention

was a safety concern of such sufficient

gravity as to allow by-pass of the timeliness

criterion

and decided it was not.On December 2, 2010, the NRC Staff issued Information

Notice 2010-26;'Submergence

of Electrical

Cables" ("IN").On December 13, 2010, NEC filed a "Supplement

to New England Coalition's

Petition for Commission

Review of ASLBP Memorandum

and Order." On December 21, 2010, NRC Staff filed its "Objection." On December 23, 2010, Entergy filed its "Response." III.

==DISCUSSION==
A. NRC Staff claims that the IN contains no new or material information.

NRC Staff is in error. The IN contains information

that is both new and material to the Petition for Review now before the Commission.

1. The IN contains information

that is new in every respect. NEC could nowhere in a search of the preceding

Generic Letters or Information

Notices on cable issues (that NRC Staff cited) find the following

quote (or anything in paraphrase) 
from the IN at Page 61: NRC Staff did not discuss this quote in its Objection.

3 Cables are not typically

designed or qualified

for submergence

u nless they are procured as submarine

cables. Demonstration

that a cable is designed or qualified

for long-term submergence (i.e., submerged

in water continuously

or for extended periods of time) requires a qualification

test report or certification

from the cable vendor. The industry's

previously

conducted

post-loss-of-coolant

accident cable submergence

tests do not demonstrate

qualification

for long-term

cable submergence, and the use of the Arrhenius methodology

by some licensees

to demonstrate

qualification

for long-term

cable submergence

is invalid. For areas in which cables could be submerged, the licensee should identify and demonstrate

that these cables are designed or qualified

by documented

testing for the required duration. (emphasis

added)The quoted paragraph

goes to the heart of NEC's Contention.

The license renewal application's

aging-management

plan of dewatering

and surveillance, proposed by the Entergy Vermont Yankee and demonstrated

by Entergy Vermont Yankee (as first reported in the May 10, 2012 NRC Inspection

report), is largely ineffective

at addressing

either aging management

or compliance

with design criteria.As former NRC Chairman Shirley Jackson once famously said (in NEC's presence) "Safety is compliance; 
compliance

is safety." Something

similar might be said, as a kind of corollary, of aging management

and compliance

with design criteria.

Aging management

should not be a workaround

for non-compliance

with design criteria.2. If NRC Staff Counsel, the Commission, the Intervenors

and the public did not know what NRC Staff would write in their IN, then it matters not whether it is cut and pasted, or lifted verbatim from earlier letters and notices; it is new to us as a statement

of NRC's position and perspectives

as of December 2, 2010. That fact, of itself, is "new'information.

The Commission

is entitled to be informed, for purposes of their deliberations

regarding

the possibility

of a "materially-different" outcome, that NRC Staff has, following

NEC's Motion to Reopen and its Petition for Review, reiterated

supporting

or complimenting

positions

and perspectives.

4 B. Both NRC Staff and Entergy argue that the information

in Information

Notice 2010-26 "Submergence

of Electrical

Cables" (IN) is neither relevant nor material.

They are in error. It is both.1. As discussed

above, information

contained

in the IN is material to the Commission's

review of the criterion

regarding

potential

for a "materially

different" outcome because, as in the quotation

from IN Page 6, the new information

goes straight to the heart of NEC's proposed contention, and more pointedly

to the question of whether or not, given a hearing, NEC is likely to prevail.2. NRC Staff and Entergy say that the IN is irrelevant

and not material because it concerns itself with current operations

and the current licensing

basis; and not with license renewal. This argument is both inaccurate

and specious.The IN speaks directly to "managing

the effects of age-related

degradation" (NRC Staff at 4). Further, all should recognize

that, though the regulations

regarding

aging management

may change, the physics of aging management

does not; if anything, what may or may not work now is even less likely to work as aging progresses

during the period of extended operation

("PEO").Therefore, the NRC's observations

regarding

aging-phenomena

at operating plants are totally relevant to considerations

of how to effectively

manage these phenomena

during the PEO. It is, in NEC's view, terminally

obtuse to suggest, as NRC Staff and Entergy seem to, that lessons-learned

while ambulatory

should not be carried into life-support.

5 More to the matter before the Commission, comparison

of NRC Staff's observations

with those of NEC in bringing its contention

is ready, relevant and material grist for deliberation

regarding

the gravity of submergence

of unqualified

cables as a safety issue; and the likelihood

that hearing on NEC's cable contention

would likely result in a materially

different

outcome.IV. CONCLUSION

-The Commission

should take notice of Information

Notice 2010-26 "Submergence

of Electrical

Cables" as well as NUREG/CR-7000, Generic Letter 2007-01 and the 2007-01 Summary Report 2 and include consideration

of their contents and applicability

when deliberating

on NEC's Petition for Review.NRC Staff says at 4 that "the issue before the Commission

is whether the Board properly denied NEC's Motion for failure to satisfy 10 C.F.R. &sect; 2.326(a)(I) 
and (3), not whether NEC's proposed new contention

satisfied

the contention

admissibility

requirements

of &sect; 2.309." NEC agrees with this statement.

However, for all of the good reasons stated above, NEC affirms that the information

in the IN is timely and both relevant and material to the issue before the Commission.(IV) CERTIFICATE

OF COUNSEL Pro Se Representative

for NEC hereby certifies

that in conformance

with 10 C.F.R.&sect;2.323, NEC made a sincere attempt to obtain the consent of Entergy and NRC Staff to 2 Generic Letter 2007-01 "Inaccessible

or Underground

Power Cable Failures That Disable Accident Mitigation

Systems or Cause Plant Transients," (Feb. 7, 2007) (ADAMS Accession

No. ML07360665);
GL 2007-01 "Inaccessible

or Underground

Power Cable Failures That Disable Accident Mitigation

Systems or Cause Plant Transient: 
Summary Report" (Nov. 12, 2008) (ADAMS Accession

No.ML082760385);
NUREG/CR 7000 "Essential

Elements of an Electric Cable Monitoring

Program (January 2010) (available

At www.nrc/electronicreading

room/doc.collect/nuregs/contractiNuregCR7000.

6 the filing of the foregoing

Motion for Leave to Reply and by extension

the attached Reply, but consent was denied.Respectfully

submitted,/s/" Raymo Shadis-Pro se representative

New England Coalition Post Office Box 98 Edgecomb, Maine 04556 207-882-7801 Shadis@prexar.com

7 UNITED STATES OF AMERICA NUCLEAR REGULATORY

COMMISSION

===BEFORE THE COMMISSION===
In the Matter of ENTERGY NUCLEAR VERMONT YANKEE, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.(Vermont Yankee Nuclear Power Station))December 30, 2010 Docket No. 50-271-LR ASLBP No. 06-849-03-LR

CERTIFICATE

OF SERVICE I hereby certify that copies of New England Coalition's

Motion For Leave To Reply and Reply To NRC Staff s Objection

To NEC's Notification

of Information

Notice 2010-26 And Entergy's

Response to The Supplement

to NEC's Petition For Commission

Review of LI3P- 10-19 in the above-captioned

proceeding

have been served on the following

as indicated by an asterisk, by electronic

mail, with copies by U.S. mail, first class, this 30th day of December 2010, Alex S. Karlin, Chair Administrative

Judge Atomic Safety and Licensing

Board U.S. Nuclear Regulatory

Commission

Washington, DC 20555-0001 E-mail: ask2@nrc.gov

Office of the Secretary Attn: Rulemakings

and Adjudications

Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory

Commission

Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov

William H. Reed*Administrative

Judge Atomic Safety and Licensing

Board 1819 Edgewood Lane Charlottesville, VA 22902 E-mail: whrcville@embarqmail.com

Ann Hove, Law Clerk Atomic Safety and Licensing

Board Mail Stop: T-3F23 U.S. Nuclear Regulatory

Commission

Washington, DC 20555-0001 E-mail: ann.hove@nrc.gov

Office of Commission

===Appellate Adjudication===
Mail Stop: O-16G4 U.S. Nuclear Regulatory

Commission

Washington, DC 20555-0001 E-mail: OCAAmail@nrc.gov

Peter C.L. Roth, Esq*Office of the Attorney General 33 Capitol Street Concord, NH 3301 E-mail: peter.roth@doj.nh.gov

Anthony Z. Roisman, Esq.*National Legal Scholars Law Firm 84 East Thetford Rd.Lyme, NH 03768 E-mail: aroisman@nationallegalscholars.com

Sarah Hofmann, Esq.*Director of Public Advocacy Department

of Public Service 112 State Street -Drawer 20 Montpelier, VT 05620-2601 E-mail: sarah.hofmann@state.vt.us

David R. Lewis, Esq.*Matias F. Travieso-Diaz, Esq Elina Teplinsky, Esq Blake J. Nelson, Esq Pillsbury

Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com

matias.travieso-diaz@pillsburylaw .com elina.teplinsky@pillsburylaw.com

blake.nelson@pillsburylaw.com

Matthew Brock*Assistant

Attorney General, Chief Environmental

Protection

Division Office of the Attorney General One Ashburton

Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us

Mary B. Spencer Counsel for NRC Staff U.S. Nuclear Regulatory

Commission

Mail Stop O-15D21 Washington, DC 20555-0001 Maly. Spencer@nrc.gov

Ramond Shadis New England Coalition Post Office Box 98 Edgecomb, Maine 04556 shadis@prexar.com

New England Coalition VT NH ME MA RI CT NY POST OFFICE BOX 545, BRATTLEBORO, VERMONT o5302 December 30 , 2010 Office of the Secretary Attn: Rulemaking

and Adjudications

Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory

Commission

Washington, DC 20555-0001 RE: Docket No. 50-271-LR, ASLBP No. 06-849-03-LR, Vermont Yankee Nuclear Power Station (Petition

for Commission

Review)Dear rulemaking

and Adjudications

Staff, Please find attached for filing in the above captioned

matter, New England Coalition's

Motion For Leave To Reply and Reply To NRC Staffs Objection

To NEC's Notification

of Information

Notice 2010-26 And Entergy's

Response to The Supplement

to NEC's Petition For Commission

Review of LBP- 10-19.Thank you for your help with.this

filing,/RS-Coalition, Inc.Raymond Shadis Pro Se Representative

Post Office Box 98 Edgecomb, Maine 04556 207-882-7801 shadis@prexar.com}}

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