ML091270859

2009/05/01-Entergy's Opposition to New England Coalition'S Motion to Hold Action on Proposed Contention in Abeyance Until Issuance of NRC Staff Supplemental Safety Evaluation Report

ML091270859
Person / Time
Site:	Vermont Yankee
Issue date:	05/01/2009
From:	Travieso-Diaz M Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-417
Download: ML091270859 (5)

Text

DOCKETED USNRC May 1, 2009 (12:57pm)

May 1, 2009 OFFICE OF SECRETARY UNITED STATES OF AMERICA RULEMAKINGS AND ADJUDICATIONS STAFF NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ))Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271-LR and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR

)(Vermont Yankee Nuclear Power Station) )ENTERGY'S OPPOSITION TO NEW ENGLAND COALITION'S MOTION TO HOLD ACTION ON PROPOSED CONTENTION IN ABEYANCE UNTIL ISSUANCE OF NRC STAFF SUPPLEMENTAL SAFETY EVALUATION REPORT Pursuant to 10 C.F.R. § 2.323(c), Applicants Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (collectively "Entergy")

oppose the New England Coalition, Inc.'s ("NEC") "Motion to Hold in Abeyance Action on this Proposed Contention Until Issuance of NRC Staff Supplemental Safety Evaluation Report" ("NEC Motion to Hold Action in Abeyance").

The NEC Motion to Hold Action in Abeyance is part of NEC's filing dated April 24, 2009 entitled "New England Coalition, Inc.'s Motion for Leave to File a Timely New Contention and Motion to Hold in Abeyance Action on this Proposed Contention Until Issuance of NRC Staff Supplemental Safety Evaluation Report" ("NEC Motion"), which moves for the admission of a new contention challenging the "reanalysis of environmentally assisted metal fatigue for Recirculation Outlet (RO) and Core Spray (CS) nozzles" performed by Entergy in accordance with the Board's instructions.

NEC Motion at 1; Partial Initial Decision (Ruling on Contentions 2A, 2B, 3 and 4), LBP-08-25, 68 NRC _ (Nov. 24, 2008) ("LBP-08-25"), slip op.at 66-67.'In support of its Motion to Hold Action in Abeyance, NEC argues that the Audit Summary and Supplemental Safety Evaluation Report ("SSER") to be issued by the NRC Staff regarding the Staff's review of Entergy's confirmatory analyses of the RO and CS nozzles "will be helpful in both building a record in this docket and helpful to the Board and the Parties in evaluating the merits of NEC's proposed contention." NEC Motion at 7. NEC further argues that the Commission depends, and the Board relies on, the Staff "to assist in informing decisions regarding what should or should not go to hearing." Id. at 8.On April 30, 2009 the NRC Staff filed its "Answer in Opposition to NEC Motion to Hold in Abeyance Action on Proposed Contention until Issuance of NRC Staff Supplemental Safety Evaluation Report" ("Staff's Answer"), which provides a cogent explanation of the reasons why the NEC Motion to Hold Action in Abeyance should be denied. Entergy wholly agrees with and supports the Staff's Answer.NEC filed a very similar motion only a few weeks ago seeking an extension of time to file new contentions until fifteen days after the Staff issued its SSER and Audit Summary regarding the confirmatory analyses of the CS and RO nozzles. New England Coalition, Inc.(NEC) Motion to Alter or Amend the Schedule in the Above Captioned Proceeding (March 6, 2009). That motion was denied by the Board. March 9, 2009 Order at.4. As that decision and others by the Board have made clear, the reviews by the Staff of Entergy' s license renewal Entergy will file a separate response opposing admission of the new contention propounded in the NEC Motion because the contention fails to meet the general admissibility requirements in 10 C.F.R. §2.309(f)(1), the additional requirements set forth in 10 C.F.R. § 2.309(f)(2) for the admission of contentions submitted after the initiation of a proceeding, the provisions of 10 C.F.R. § 2.309(c) governing untimely filings, and the very specific requirements for the admissibility of contentions challenging the new RO and CS calculations set -by the Board in LBP-08-25 and in its March 9, 2009 Order (Clarifying Deadline for Filing New or Amended Contentions).

2 application are independent of the adjudicatory proceedings on the application and, after the issuance of the initial SER, the two proceed on separate schedules.

LBP-08-25 at 67; Order (Granting Entergy's Motion for Clarification) (December 22, 2008) (time for NEC and other intervenors to file new contentions based on Entergy's new calculations begins when they are provided to the other parties, not when the Staff's SSER addressing the calculations is issued).The Board's rulings are consistent with repeated Commission decisions emphasizing the separation between the Staff's review of a license application and the adjudicatory proceedings on the application.

See, AmerGen Energy Co. LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 N R.C. __ (Oct. 6, 2008), slip op. at 18; Dominion Nuclear Connecticut, Inc.(Millstone Power Station, Unit 3), CLI-08-17, 68 N.R.C. __ (2008), slip op. at 8; Pa'ina Hawaii, LLC, CLI-08-3, 67 N.R.C. 151, 168 n.73 (2008). Accordingly, there is no basis for the Staff s SSER schedule to affect the Board's disposition of NEC's Motion.Conclusion For the above stated reasons, the NEC Motion to Hold Action in Abeyance should be denied.Respectfully Submitted, David R. Lewis Matias F. Travieso-Diaz Blake J. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1122 Tel. (202) 663-8000 Counsel for Entergy Dated: May 1, 2009 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.(Vermont Yankee Nuclear Power Station)))))))Docket No. 50-271-LR ASLBP No. 06-849-03-LR CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "Entergy's Opposition to New England Coalition's Motion to Hold Action on Proposed Contention in Abeyance Until Issuance of NRC Staff Supplemental Safety Evaluation Report" 'were served on the persons listed below by deposit in the U.S. Mail, first class, postage prepaid, and where indicated by an asterisk by electronic mail, this 1 st day of May, 2009.*Administrative Judge Alex S. Karlin, Esq., Chairman Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 ask2@nrc.gov

• Administrative Judge William H. Reed 1819 Edgewood Lane Charlottesville, VA 22902 whrcvillegembarqmail.com

• Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 rew@nrc.gov

• Secretary Att'n: Rulemakings and Adjudications Staff Mail Stop 0-16 C I U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 hearingdocket(&nrc.gov Atomic Safety and Licensing Board Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001

• Office of Commission Appellate Adjudication Mail Stop 0-16 C1 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 OCAAmail@nrc.

gov

• Lloyd Subin, Esq.*Susan L. Uttal, Esq.*Maxwell C. Smith, Esq.Office of the General Counsel Mail Stop O-15-D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 LB S3 (@nrc.gov; susan.uttalanrc .gov;maxwell.smith(anrc.gov

• Anthony Z. Roisman, Esq.National Legal Scholars Law Firm 84 East Thetford Road Lyme, NH 03768 aroismanlnationallegalscholars.com

• Sarah Hofmann, Esq.Director of Public Advocacy Department of Public .Service 112 State Street -Drawer 20 Montpelier, VT 05620-2601 Sarah.hofmann(astate.vt.us

• Matthew Brock Assistant Attorney General Office of the Attorney General One Ashburton Place, 1 8 th Floor Boston, MA 01108 Matthew.Brock(&state.ma.us

• Peter L. Roth, Esq.Office of the New Hampshire Attorney General 33 Capitol Street Concord, NH 03301 Peter.roth(@doj.nh.gov Raymond Shadis New England Coalition Pro Se Representative Post Office Box 98 Edgecomb, Maine 04556 shadis@(prexar.com

• Zachary Kahn Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 zachary.katmh(nrc.gov

• Lauren Bregman Atomic Safety and Licensing Board Panel Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 lauren.bremnantnrc.

aov*& 4k44.Matias F. Travieso-Diaz 2