ML11340A088

Licensing Board - Order (Granting Entergys Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5)

ML11340A088
Person / Time
Site:	Indian Point
Issue date:	12/06/2011
From:	McDade L G Atomic Safety and Licensing Board Panel
To:	Entergy Nuclear Operations
SECY RAS
References
RAS 21507, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NYS-38/RK-TC-5
Download: ML11340A088 (9)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of ENTERGY NUCLEAR OPERATIONS, INC.

(Indian Point Nuclear Generating Units 2 and 3)

Docket Nos. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BD01

December 6, 2011 ORDER (Granting Entergy's Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5)

On November 10, 2011, we admitted Contention NYS-38/RK-TC-5, arising out of the issuance of Supplement 1 to the NRC Staff's Safety Evaluation Report (SSER) for Applicant Entergy Nuclear Operations, Inc.'s (Entergy's) License Renewal Application for Indian Point Units 2 and 3.

1 NYS-38/RK-TC-5 challenges the adequacy of Entergy's Aging Management Plans (AMPs) for several safety-related systems and components in light of these AMPs' commitment to the future development of certain AMPs rather than presenting existing plans for

review.2 On November 21, 2011, Entergy moved for "clarification regarding the scope of NYS-38/RK-TC-5 insofar as it pertains to managing the potential aging effect of primary water stress corrosion cracking ('PWSCC') in steam generator divider plate assemblies," as well as clarification regarding the schedule for filing evidentiary submissions on the newly admitted 1 Licensing Board Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5) (Nov. 10, 2011) (unpublished) [hereinafter NYS-38/RK-TC-5 Admissibility Order].

2 Id. at 2. contention.

3 Intervenors the State of New York and Riverkeeper, Inc. (collectively, Intervenors) filed a Joint Response.

4 To the extent explained below, we grant Entergy's Motion for Clarification of our November 10, 2011 Memorandum and Order. I. SCOPE OF CONTENTION Entergy first requests clarification regarding the scope of NYS-38/RK-TC-5 as it relates to managing the potential aging effect of PWSCC in steam generator divider plate assemblies.

5 Entergy "seeks confirmation that the new contention is limited to the adequacy of Commitment 41 as an additional action that Entergy will take to address a specific issue raised by the Staff as a result of recent foreign operating experience."

6 Intervenors respond that the Motion for Clarification is a thinly guised attempt to restrict NYS-38/RK-TC-5, which Entergy failed to do in its arguments against the contention's admission.

7 We grant Entergy's Motion and clarify our decision as follows. NYS-38/RK-TC-5 is a broadly worded contention questioning whether Entergy "has a program that will manage the affects of aging of several critical components or systems" and whether the proffered programs provide an adequate "record and rational basis [to the NRC] upon which it can determine whether to grant a renewed license to Entergy."

8 Our November 10, 2011 Memorandum and Order observed that "[i]n support of this contention, the Intervenors claim that Entergy's AMPs are inadequate with regard to several safety-related systems and components because these 3 Applicant's Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5 (Nov. 21, 2011) at 1-4 [hereinafter Entergy Motion for Clarification].

4 State of New York and Riverkeeper's Joint Response to Entergy's Motion for Clarification About Contention NYS-38/RK-TC-5 (Dec. 1, 2011) [hereinafter Intervenors Response].

5 Id. at 2. 6 Id. 7 Intervenors Response at 2.

8 NYS-38/RK-TC-5 Admissibility Order at 2.

AMPs merely commit to the future development of certain AMPs, rather than presenting existing plans for current review."

9 And we noted that, "[a]s bases, the Intervenors highlight[ed] several programs that, they assert[ed], Entergy plans to develop after its license would be renewed."

10 Our November 10, 2011 Memorandum and Order admitted the Intervenors' broad allegations. We stated that "[t]he Intervenors have broadly contended, relying on multiple bases, that Entergy's 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."

11 We further stated that "Intervenors, relying on their experts, claim that there is insufficient

information in Entergy's recent commitments . . . to determine whether it has an adequate AMP. Whether the Intervenors and their experts are correct is an issue to be determined on the merits at an evidentiary hearing."

12 We agree with the Intervenors. The language of our November 10, 2011 Memorandum and Order did not limit NYS-38/RK-TC-5 solely to Commitment 41. Rather, in finding NYS-38/RK-TC-5 admissible, we admitted the Intervenors' "broad" contention, which relied on "multiple bases" including the "claim that there is insufficient information in Entergy's recent commitments" that were addressed in the SSER.

9 Id. 10 Id. at 3. 11 Id. at 10 (emphasis added).

12 Id. at 11-12 (emphasis added).

II. TIMING OF EVIDENTIARY SUBMISSIONS RELATED TO NYS-38/RK-TC-5 Entergy seeks confirmation that any evidentiary filings on NYS-38/RK-TC-5 are to be submitted in accordance with our November 17, 2011 Amended Scheduling Order.

13 Intervenors contest this deadline, arguing that there have yet to be adequate mandatory disclosures for NYS-38/RK-TC-5.

14 Our November 17, 2011 Amended Scheduling Order extended the deadline for Intervenors to submit written statements of position, written direct testimony with supporting affidavits, and exhibits to December 22, 2011.

15 The deadline for Entergy and the NRC Staff to file motions in limine and motions to strike relating to these submissions was extended to January 30, 2012, and the deadline for these parties to file written statements of position, written direct testimony with supporting affidavits, and exhibits was extended to February 29, 2012.

16 In light of these facts, this issue will be best resolved by status conference, as suggested by our October 7, 2011 Order.

17 We will address this issue in a status conference to be held today.

13 Entergy Motion for Clarification at 3.

14 Intervenors Response at 8.

15 Licensing Board Order (Granting Unopposed Motion by the State of New York and Riverkeeper, Inc. to Amend the Scheduling Order) (Nov. 17, 2011) at 1 (unpublished).

16 Id. 17 See Licensing Board Order (Denying New York's Motion for an Extension of Time) (Oct. 7, 2011) at 5 n.17 (unpublished).

III. TIMING OF RELATED EVIDENTIARY SUBMISSIONS Entergy asks for confirmation that any evidentiary filings addressing (1) the identification of the most limiting locations for environmentally-assisted metal fatigue evaluations, (2) the nature of user intervention permitted by the WESTEMS computer code, and (3) Entergy's reliance on guidance in Electric Power Research Institute report Materials Reliability Program-227, "Pressurized Water Reactor Internals Inspection and Evaluation Guidelines," should be filed with the evidence for NYS-25 and NYS-26B/RK-TC-1B, rather than with the evidence for NYS-38/RK-TC-5, to avoid duplicative filings.

18 Entergy also calls for confirmation that these filings are expected to follow the schedule outlined in our November 17, 2011 Order.

19 NYS-38/RK-TC-5 stands as an independent contention and has not been consolidated with NYS-25 or NYS-26B/RK-TC-1B. While some of the issues raised across these contentions might overlap, many do not, and thus we find consolidation of these contentions inappropriate.

To the extent that such evidence is identical, parties should first file evidence as it relates to either NYS-25 and NYS-26B/RK-TC-1B and, if relevant, reference those filings in their NYS-38/RK-TC-5 materials.

20 Our October 7, 2011 Order regarding Procedures for Evidentiary Filings dictates that "[o]nly one copy of each document should be offered into evidence as an

exhibit."21 Thus, if an exhibit is offered into evidence relating to NYS-25, no party or parties should re-introduce the same piece of evidence, unaltered, with its NYS-26B/RK-TC-1B or NYS-38/RK-TC-5 materials. Rather, the party or parties should refer to the exhibit number used in the NYS-25 filing. However, if NYS-26B/RK-TC-1B or NYS-38/RK-TC-5 calls for introduction of 18 Entergy Motion for Clarification at 4.

19 Id. 20 Licensing Board Order (Procedures for Evidentiary Filings) (Oct. 7, 2011) at 3 (unpublished).

21 Id. at 3. a "separate" or altered portion of the same exhibit as another contention, the party introducing it shall submit it as a separate exhibit.

22 It is so ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD

___________________________

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland December 6, 2011 22 See id. ("If participants rely on different portions of the same exhibit, they shall submit separate portions as separate exhibits.").

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of ) )

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR

) and 50-286-LR (Indian Point Nuclear Generating Station, )

Units 2 and 3) )

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing ORDER (Granting Entergy's Motion For Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5) have been served upon the following persons by Electronic Information Exchange.

Office of Commission Appellate Adjudication Mail Stop O-7H4M U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission

Mail Stop O-16C1 Washington, DC 20555-0001 Hearing Docket E-mail: hearingdocket@nrc.gov

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel

Mail Stop T-3F23 Washington, DC 20555-0001

Lawrence G. McDade, Chair

Administrative Judge

E-mail: lawrence.mcdade@nrc.gov Richard E. Wardwell

Administrative Judge

E-mail: richard.wardwell@nrc.gov

Kaye D. Lathrop Administrative Judge 190 Cedar Lane E.

Ridgway, CO 81432

E-mail: kaye.lathrop@nrc.gov Joshua A. Kirstein, Law Clerk E-mail: josh.kirstein@nrc.gov Anne Siarnacki, Law Clerk

E-mail: anne.siarnacki@nrc.gov Sherwin E. Turk, Esq.

Edward L. Williamson, Esq.

Beth N. Mizuno, Esq. David E. Roth, Esq.

Brian Harris, Esq.

Andrea Z. Jones, Esq.

Mary B. Spencer, Esq.

Karl Farrar, Esq.

Brian Newell, Paralegal U.S. Nuclear Regulatory Commission Office of the General Counsel

Mail Stop O-15D21 Washington, DC 20555-0001

E-mail: sherwin.turk@nrc.gov edward.williamson@nrc.gov beth.mizuno@nrc.gov brian.harris.@nrc.gov david.roth@nrc.gov andrea.jones@nrc.gov mary.spencer@nrc.gov karl.farrar@nrc.gov brian.newell@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov

Docket Nos. 50-247-LR and 50-286-LR ORDER (Granting Entergy's Motion For Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5) 2 William C. Dennis, Esq.

Assistant General Counsel Entergy Nuclear Operations, Inc.

440 Hamilton Avenue White Plains, NY 10601 Email: wdennis@entergy.com Thomas F. Wood, Esq.

Daniel Riesel, Esq.

Victoria Shiah, Esq.

Counsel for Town of Cortlandt Sive, Paget & Riesel, P.C.

460 Park Avenue

New York, NY 10022

E-mail: driesel@sprlaw.com vshiah@sprlaw.com Elise N. Zoli, Esq.

Goodwin Proctor, LLP Exchange Place

53 State Street Boston, MA 02109 E-mail: ezoli@goodwinprocter.com Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road Ossining, NY 10562 E-mail: phillip@riverkeeper.org dbrancato@riverkeeper.org

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq. Martin J. O'Neill, Esq.

Raphael Kuyler, Esq.

Jonathan M. Rund, Esq.

Counsel for Entergy Nuclear Operation, Inc Lena Michelle Long Mary Freeze, Legal Secretary Lesa Williams-Richardson, Legal Secretary

Morgan, Lewis & Bockius, LLP

1111 Pennsylvania Avenue, NW Washington, DC 20004

E-mail: ksutton@morganlewis.com pbessette@morganlewis.com martin.o'neill@morganlewis.com rkuyler@morganlewis.com jrund@morganlewis.com llong@morganlewis.com mfreeze@morganlewis.com lrichardson@morganlewis.com Melissa-Jean Rotini, Esq. Assistant County Attorney Office of Robert F. Meehan, Westchester County Attorney

148 Martine Avenue, 6 th Floor White Plains, NY 10601

E-mail: MJR1@westchestergov.com

Michael J. Delaney, Esq.

Director, Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373

E-mail: mdelaney@dep.nyc.gov Manna Jo Greene, Environmental Director Steven C. Filler Karla Raimundi Hudson River Sloop Clearwater, Inc.

724 Wolcott Ave.

Beacon, NY 12508

E-mail: mannajo@clearwater.org stephenfiller@gmail.com karla@clearwater.org

Docket Nos. 50-247-LR and 50-286-LR ORDER (Granting Entergy's Motion For Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5) 3 Joan Leary Matthews, Esq.

Senior Attorney for Special Projects New York State Department

of Environmental Conservation 625 Broadway, 14 th Floor Albany, New York 12233-5500

E-mail: jmatthe@gw.dec.state.ny.us Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120

Hartford, CT 06141-0120

E-mail: robert.snook@po.state.ct.us John Louis Parker, Esq. Office of General Counsel, Region 3 New York State Department

of Environmental Conservation

21 South Putt Corners Road New Paltz, NY 12561-1620 E-mail: jlparker@gw.dec.state.ny.us Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building

236 Tate Avenue Buchanan, NY 10511-1298 E-mail: SMurray@villageofbuchanan.com Administrator@villageofbuchanan.com

John J. Sipos, Esq. Charles Donaldson, Esq. Assistant Attorneys General Office of the Attorney General of the State of New York

The Capitol

State Street Albany, New York 12224 E-mail: John.Sipos@ag.ny.gov charlie.donaldson@ag.ny.gov Janice A. Dean, Esq.

Assistant Attorney General Office of the Attorney General of the State of New York

120 Broadway, 26 th Floor New York, New York 10271

E-mail: Janice.Dean@ag.ny.gov

[Original signed by Christine M. Pierpoint] Office of the Secretary of the Commission Dated at Rockville, Maryland

this 6 th day of December 2011