ML060900006

2006/03/30-Vermont Yankee - NRC Staff'S Answer to New England Coalition'S Brief on the Legal Scope of New England Coalition Contention 4

ML060900006
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	03/30/2006
From:	Hamrick S, Sherwin Turk NRC/OGC
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
50-271-OLA, ASLBP 04-832-02-OLA, RAS 11441
Download: ML060900006 (12)

Text

1 See "Order (Granting [NEC] Motion for Enlargement of Time Related to NEC Contention 4. . .)," dated March 23, 2006; "Order (Granting NRC Staff's Unopposed Motion for Extension of Time),"dated March 28, 2006. March 30, 2006UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBEFORE THE ATOMIC SAFETY AND LICENSING BOARDIn the Matter of)

)ENTERGY NUCLEAR VERMONT YANKEE,)Docket No. 50-271-OLA LLC and ENTERGY NUCLEAR) OPERATIONS, INC.)ASLBP No. 04-832-02-OLA

)(Vermont Yankee Nuclear Power Station))NRC STAFF'S ANSWER TO NEW ENGLAND COALITION'S BRIEFON THE LEGAL SCOPE OF NEW ENGLAND COALITION CONTENTION 4 INTRODUCTIONOn March 21, 2006, New England Coalition ("NEC") filed "New England Coalition's Briefon the Legal Scope of [NEC] Contention 4" ("NEC's Brief"), concerning the legal and regulatory seismic standard that applies to the alternate cooling system ("ACS") cooling tower cell at the Vermont Yankee Nuclear Power Station ("Vermont Yankee") under its extended power uprate("EPU") application. In accordance with the Licensing Board's "Order (Supplemental Schedule)" dated March 14, 2006, as modified by Orders dated March 23 and March 28, 2006, 1the NRC Staff ("Staff") hereby files its response to NEC's Brief. For the reasons set forth below, the Staff submits that NEC's Brief fails to comply withthe Licensing Board's Order requiring NEC to specify the legal and regulatory standard that applies to NEC Contention 4, and identify the specific portions of that standard which NECcontends have not been satisfied. Accordingly, the Staff respectfully submits that NEC shouldbe required to file a further brief in response to the Board's Order, and that other parties should be afforded an opportunity to respond thereto. 2 See "New England Coalition's Request for Leave to File A New Contention" ("NEC Request"),dated September 21, 2005.

3 Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (VermontYankee Nuclear Power Station), LBP-05-24, 62 NRC 429 (2005).

4 See Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (VermontYankee Nuclear Power Station), LBP-05-32, 62 NRC 813 (2005).

5 LBP-05-32, 62 NRC at 827; emphasis added. The language concerning the applicable legaland regulatory standard (emphasized in the text above), had appeared verbatim in the contention asfiled by NEC. See NEC Request at 1.BACKGROUND On September 21, 2005, NEC filed a request for admission of its revised Contention 4, 2following the Licensing Board's dismissal of NEC's initial Contention 4 on grounds of mootness.3 On December 2, 2005, the Licensing Board issued its decision in LBP-05-32,admitting revised NEC Contention 4.

4 As modified by the Board, NEC Contention 4 asserts:The Entergy Vermont Yankee [ENVY] license application(including all supplements) for an extended power uprate of 20%

over rated capacity is not in conformance with the plant specificoriginal licensing basis and/or 10 CFR Part 50, Appendix S,paragraph I(a), and/or 10 CFR Part 100, Appendix A, because itdoes not provide analyses that are adequate, accurate, and complete in all material respects to demonstrate that the Vermont Yankee Nuclear Power Station Alternate Cooling System [ACS] in its entirety, in its actual physical condition (or in the actual physical condition ENVY will effectuate prior to commencing operation atEPU), will be able to withstand the effects of an earthquake andother natural phenomena without loss of capability to perform itssafety functions in service at the requested increased plant power level.5 Following the Licensing Board's admission of revised NEC Contention 4, a disputearose between the parties as to the factual scope of the contention.

See Tr. 728-30, 765. OnMarch 10, 2006, the Licensing Board issued an oral decision, ruling that the factual scope ofNEC Contention 4 "is limited to the specific deficiencies alleged by NEC's expert, Dr. Ross B.

Landsman, as they relate to the seismic and structural condition of the cooling tower and two 6 See Entergy Nuclear Vermont Yankee L.L.C. and Entergy Nuclear Operations, Inc. (VermontYankee Nuclear Power Station), "Memorandum and Order (Clarifying the Factual Scope of NECContention 4 and Denying Untimely Motion for Enlargement of Time to File Reply Brief)," unpublished(March 24, 2006), at 1, citing Tr. 820-22. Cf. id., slip op. at 6.

7 "Order (Supplemental Schedule)," dated March 14, 2006, at 1-2; cf. Tr. 734-35, 788-92.

8 NEC also refers to "NEC Contention 9" and unspecified portions of certain unidentifiedpleadings which it filed in this proceeding. See NEC's Brief at 3. NEC's reference to NEC Contention 9appears to be a typographical error, as no such contention has been filed; further, its reference tounspecified statements in other pleadings is overly vague and should be disregarded.safety-related cooling tower cells of the [ACS] system, as analyzed in the ABS Report"; thisdecision was memorialized in a Memorandum and Order issued on March 24, 2006.

6 During a prehearing conference call held on January 24, 2006, the Licensing Boardobserved that NEC had not clearly identified the legal and regulatory standard which should beapplied to the issues raised in NEC Contention 4; the Board directed the parties to file briefsaddressing this question, taking into consideration the Board's ruling on the factual scope of the contention. Tr. 820-22. Specifically, the Licensing Board directed as follows:NEC Contention 4 alleges that certain deficiencies in the licenseapplication render the application "not in conformance with the plant specific original licensing basis and/or 10 C.F.R. Part 50,

[Appendix S,] paragraph I(a), and/or 10 C.F.R. Part 100, Appendix A." . . . NEC shall submit a statement or brief . . . thatidentifies which of these three legal standards are allegedly notsatisfied with regard to each of the deficiencies asserted by NEC. This statement or brief should also specify with more particularity,which provisions of the legal standards are allegedly not satisfied, e.g., which part of Appendix A of Part 100 or which part of theplant specific licensing basis are not met

.7NEC filed its brief in response to the Licensing Board's Order on March 21, 2006. Therein, rather than identify which of the three legal standards cited in its contention areapplicable, it asserts instead that "all" of those standards apply - and it asserts that other legalstandards also apply "that are not enumerated in the text of the contention but which areincluded in the bases argued for admission of the contention." NEC's Brief at 3.

8 Moreover,contrary to the Licensing Board's Order, NEC fails to identify any specific portions of thosestandards which it contends are not satisfied by the EPU application. See id., at 3-9. 9 "Safety Evaluation by the Office of Nuclear Reactor Regulation Related to AmendmentNo. 229to Facility Operating License No. DPR-28, Entergy Nuclear Vermont Yankee, LLC and Entergy NuclearOperations, Inc., Vermont Yankee Nuclear Power Station, Docket No. 50-271" (Mar. 2, 2006) (ADAMSAccession No. ML060050028 (non-proprietary version).

10 See "Vermont Yankee Nuclear Power Corp., Notice of Issuance of Facility OperatingLicense," 37 Fed. Reg. 6345 (Mar. 28, 1972) (ADAMS Accession No. ML011620261); "Vermont YankeeNuclear Power Corp., Notice of Issuance of Amendment to Facility Operating License," 38 Fed. Reg.6313 (Mar. 8, 1973) (ADAMS Accession No. ML011580230).

11 The SE further observes, inter alia, that "[t]he ACS is not classified as an engineeredsafeguards system and is not designed to accept the consequences of a design basis loss-of-coolantaccident (LOCA). It is also not designed to meet single failure criteria. . . . The ACS is designed toprovide adequate heat removal for these [specified] postulated events to achieve and maintain safeshutdown when the normal SW system (i.e., pumping from the Connecticut River) is lost." SE § 1.2,at 2. 12 SE § 1.2 at 1, referring to "Licensing of Production and Utilization Facilities, General DesignCriteria for Nuclear Power Plant Construction Permits," 32 Fed. Reg. 10,213 (July 11, 1967).

13 See "Part 50 - Licensing of Production and Utilization Facilities, General Design Criteria forNuclear Power Plants," 36 Fed. Reg. 3255 (Feb. 20, 1971).

DISCUSSIONThe Staff issued its Final Safety Evaluation ("SE") for the Vermont Yankee EPUamendment on March 2, 2006.

9 As noted therein, the Atomic Energy Commission ("AEC")issued the construction permit for the Vermont Yankee Nuclear Power Station on December 11, 1967. SE § 1.2, at 1. A low power operating license for the facility was issued on March 21,1972, and a full power operating license was issued on February 28, 1973.

Id.10 The ACS wasdesigned and implemented during "during the original plant licensing."

Id. at 2.11 As further stated in the SE, "the plant was designed and constructed based on theproposed General Design Criteria (GDC) published by the AEC in the Federal Register . . . onJuly 11, 1967."

12 The SE notes that the AEC published the final rule adding Appendix A to10 C.F.R. Part 50, "General Design Criteria for Nuclear Power Plants" (the "final GDC") on February 20, 1971.

13 However, the SE indicates that the Commission's publication of the finalGDC did not affect the applicability of the proposed GDC (the "Draft GDC") to the Vermont 14 Draft GDC 2 states as follows:Those systems and components of reactor facilities which are essentialto the prevention of accidents which could affect the public health andsafety or to mitigation of their consequences shall be designed,fabricated, and erected to performance standards that w ill enable thefacility to withstand, without loss of the capability to protect the public,the additional forces that might be imposed by natural phenomena suchas earthquakes, tornadoes, flooding conditions, winds, ice, and otherlocal site effects. The design bases so established shall reflect:(a) Appropriate consideration of the most severe of these naturalphenomena that have been recorded for the site and the surroundingarea and (b) an appropriate margin for withstanding forces greater thanthose recorded to reflect uncertainties about the historical data and theirsuitability as a basis for design.32 Fed. Reg. at 10,215. The Applicant has previously described the regulatory requirements for theVermont Yankee service water systems, including the ACS, indicating that draft GDC-2 applies. See"Design Basis Document for Service Water Systems," Rev. 1 (Feb. 4, 2004), § 2.2.1.1 at 13. NEC(continued

...)Yankee construction permit, and did not establish different criteria for the Vermont Yankeeoperating license. In this regard, the SE states:Differences between the draft GDC and final GDC included aconsolidation from 70 to 64 criteria. As discussed in the NRC Staff Requirements Memorandum for SECY-92-223, dated September 18, 1992 ([ADAMS] Accession No. ML003763736),

the Commission decided not to apply the final GDC to plants withconstruction permits issued prior to May 21, 1971. At the time ofpromulgation of Appendix A to 10 CFR Part 50, the Commission stressed that the final GDC were not new requirements and were promulgated to more clearly articulate the licensing requirements and practice in effect at that time. Each plant licensed before the final GDC were formally adopted was evaluated on a plant-specific basis, determined to be safe, and licensed by the Commission.SE § 1.2, at 1; emphasis added. As the above discussion indicates, the "plant specific original licensing basis" for thefacility, which is referred to in NEC Contention 4, was established by the Draft GDCs. WhileNEC refers to "the original licensing basis" for the facility (NEC's Brief at 4), it fails to identifywhich (if any) of the Draft GDCs established the seismic standard for the ACS. Further, while NEC elsewhere refers to two of the Draft GDCs in particular i.e., Draft GDC 2 14 and Draft 14(...conti nued)appears to cite a prior version of this document, but does not discuss this issue. See NEC Brief at 4 n.5.

15 Draft GDC 19 requires that "Protection systems shall be designed for high functional reliabilityand in-service testability commensurate with the safety functions to be performed. 32 Fed. Reg.at 10,216; emphasis added. It is unclear why NEC contends that Draft GDC 19 applies to NECContention 4, inasmuch as the ACS is not designated as a "protection system" at the facility. SeeVermont Yankee UFSAR § 7.1.1 ("Protection Systems"), at 7.1-3 of 10.

16 It is unclear why NEC contends that Appendix A to 10 C.F.R. Part 100 may apply. Appendix A was published in the Federal Register on November 13, 1973, and became effective onDecember 13, 1973 - after both the construction permit and operating license had been issued forVermont Yankee. In this regard, the Applicant has previously stated, "In response to discussions with the NRC staffregarding VYNPS' licensing basis relative to seismic criteria, VY confirms that VYNPS was licensed priorto Appendix A to 10CFR 100 becoming effective. Consequently, Appendix A to 10CFR100 is not part ofVYNPS' licensing basis." Letter from Jay K. Thayer (Entergy) to Document control desk (NRC), datedNovember 7, 2003 (ADAMS Accession No. ML0414901280), at 1.GDC 19, 15 it fails to state that either of these draft GDCs established the seismic licensing basisfor the ACS at the facility. See NEC's Brief at 7, 8. Further, NEC appears to argue that otherdraft GDCs, or some unspecified Final GDCs - or, "both Draft and General Design Criteria

" -may apply.

Id. at 8; emphasis added. These assertions fail to comply with the LicensingBoard's Order requiring it to specify which standard it contends has been violated by the EPUapplication with respect to the ACS, and which specific portion of the applicable regulatorystandard has not been satisfied. Similarly, NEC asserts that 10 C.F.R. Part 100, Appendix A may (or may not) establishthe regulatory standard for the Vermont Yankee ACS, stating that either the original licensingbasis "and/or 10 C.F.R. Part 100, Appendix A," and/or some other standard, may apply.

16 NEC's Brief at 7-8; emphasis added. These statements, like NEC's statements concerning theoriginal licensing basis, fail to comply with the Licensing Board's Order.Finally, NEC asserts that 10 C.F.R. Part 50, Appendix S may (or may not) apply, againusing the term "and/or" in referring to this regulation.

Id. at 7. In addition, NEC cites "selectedapplicable sections" of 10 C.F.R. Part 50, Appendix S.

Id. However, NEC fails to indicatewhether it contends that these "selected" provisions are the only portions of Appendix S that 17 NEC fails to explain why it believes this regulation may apply to the ACS, at all. Appendix Sto 10 C.F.R. Part 50 was adopted on December 11, 1996. See "Reactor Site Criteria Including Seismicand Earthquake Engineering Criteria for Nuclear Power Plants," 61 Fed. Reg. 65,157, 65,173 (Dec. 11,1996). As discussed in the "General Information" section of Appendix S, that Appendix "applies toapplicants for a design certification or combined license pursuant to [10 C.F.R.] Part 52 . . . or aconstruction permit or operating license pursuant to [10 C.F.R.] Part 50 . . . on or after January 10,1997." Further, the General Information section indicates that Appendix S does not apply to "anoperating license applicant or holder whose construction permit was issued prior to January 10, 1997 . . .." 18 The Board cited section 5.1.4 of NRC Regulatory Guide ("RG") 1.183, noting as follows: "[Under RG 1.183] prior design bases that are unrelated to the use ofthe AST or are unaffected by the AST, may continue as the facility'sdesign basis." In short, if there is an "incompatibility," it is permissible toreview and apply the current more restrictive standards, but if the othersystems are "unrelated" or "unaffected" it is impermissible."

21 21 We reject the State's argument that the backfit rule, which prohibitsthe NRC from ratcheting regulatory standards on a licensee, does notapply simply because the licensee has voluntarily requested anamendment to its license. . . . Here, Entergy has requested one change(continued

...)apply to the ACS or whether some other, unspecified portions of the regulation apply. Thesestatements, like NEC's statements concerning other standards discussed above, fail to comply with the Licensing Board's Order.

17 Moreover, it is unclear whether NEC believes that the original licensing basis for theACS has been supplanted by some other regulatory standard due to the EPU application. If NEC contends that the original licensing basis does not apply, it has failed to provide anysupport for that view - and it has altogether failed to address the relevant considerationsenunciated in the Licensing Board's prior decision in Entergy Nuclear Vermont Yankee L.L.C.and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28, 60 NRC 548, 564-66 (2004) (rejecting State Contention 3). Significantly, in LBP-04-28, the Licensing Board rejected the State's assertion that"because Entergy is voluntarily asking for a change to its design or current licensing basis, Entergy should be required to meet current, more restrictive licensing requirements on matters that are 'directly related' to the proposed change."

Id. at 564.

Id. at 565; footnote omitted.

18 18(...conti nued)(an EPU) and the State wants to impose another (modern seismicstandards). The first is voluntary, the second is not.

19 10 C.F.R. § 50.109 specifies the circumstances under which backfitting may (or must) berequired, and the necessary findings and procedural steps which must occur before backfit requirementsmay be imposed. The rule defines "backfitting," in pertinent part, as follows:. (a)(1) Backfitting is defined as the modification of or addition to systems,structures, components, or design of a facility; or the design approval ormanufacturing license for a facility; or the procedures or organizationrequired to design, construct or operate a facility; any of which mayresult from a new or amended provision in the Commission rules or theimposition of a regulatory staff position interpreting the Commissionrules that is either new or different from a previously applicable staffposition after:

. . . . (ii) Six months before the date of docketing of the operating licenseapplication for the facility for facilities having construction permits issuedbefore October 21, 1985; or (iii) The date of issuance of the operating license for the facility forfacilities having operating licenses; . . . .The Licensing Board considered the requirements of the backfit rule, 10 C.F.R. § 50.109, 19 andconcluded that new or different regulatory standards cannot be applied to a proposed licenseamendment unless there is an "unacceptable inconsistency" between the proposed amendmentand the existing design and licensing basis. As the Board observed:The "incompatibility" standard is a strict one. Under the backfitrule, the NRC is prohibited from imposing new or am endedlicensing standards on existing licensees except under limited circumstances, such as where the NRC does a "systematic anddocumented analysis" and determines "that there is a substantialincrease in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of the implementation for that facility are justified." 10 C.F.R. § 50.109(a)(2), (3). In contrast,the incompatibility standard is not a cost-benefit analysis. Nor canit be used to impose more stringent requirements merely because they seem like a "good idea" or are somehow "linked" or "related" to the proposed amendment. Instead, incompatibility requires thatthere be an unacceptable inconsistency between the proposed license amendment and other parts of the licensee's current design and licensing basis, such that approving the amendment must be conditioned on updating the relevant portion of the design or licensing basis in order to protect public safety and health. 20 Applying the incompatibility standard to State Contention 3, the Board rejected this portion ofthe contention as violative of 10 C.F.R. §§ 50.109 and 2.335, in that the State had "not proffered anybasis to support the proposition that Entergy's application for containment overpressure credit isincompatible with its current design and licensing basis relating to single failure." LBP-04-28, 60 NRCat 566.21 NEC also cites 10 C.F.R. § 50.9(a). NEC Brief at 8-9. That regulation, however, pertains tothe obligation of applicants and licensees to submit information which is complete and accurate in allmaterial respects; it does not establish seismic requirements.

Id., 60 NRC at 566.20 The Licensing Board then rejected the State's argument that newer, morestringent seismic standards should be applied to the EPU application:Likewise, with regard to the seismic issues raised by the State, wesee no incompatibility. We recognize that there is a relationshipbetween granting a credit for containment overpressure and seismic standards. Containment overpressure is dependent on the integrity of the containment system, which in turn is dependenton its ability to withstand seismic events. But a relationship is notan incompatibility. The Vermont Yankee plant is already subject tostringent seismic and structural standards and the State hasoffered nothing to suggest an incompatibility between them andthe proposed license amendment. Absent such an incompatibility,State Contention 3 is not admissible.

Id. at 567; footnote omitted, emphasis added. These considerations are nowhere addressed inNEC's Brief.In sum, NEC's Brief fails to clarify which regulatory standard it contends has not beensatisfied by the EPU application.

21 The Staff believes that NEC should be required to file afurther brief, in which it clearly delineates which regulatory or legal standard it believes is violated by the EPU application with respect to the Vermont Yankee ACS. Further, if NEC believes that some regulatory standard other than the original licensing basis applies to the ACS, it should identify the grounds for that assertion and address the considerations stated inLBP-04-28. CONCLUSIONFor the reasons set forth above, the Staff submits that NEC has failed to identify theregulatory or legal standard which it contends applies to the factual issues raised in NEC Contention 4, and it has not identified the specific portions of that standard which it believes areapplicable here. Accordingly, the Staff respectfully submits that NEC should be required to submit a further brief in response to the Board's Order, and that other parties should be afforded an opportunity to respond thereto.Respectfully submitted,/RA/Sherwin E. Turk Steven C. Hamrick Counsel for NRC StaffDated at Rockville, Marylandthis 30 th day of March, 2006 UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBEFORE THE ATOMIC SAFETY AND LICENSING BOARDIn the Matter of)

)ENTERGY NUCLEAR VERMONT YANKEE)Docket No. 50-271-OLA LLC and ENTERGY NUCLEAR) OPERATIONS, INC.)ASLBP No. 04-832-02-OLA

)(Vermont Yankee Nuclear Power Station))CERTIFICATE OF SERVICEI hereby certify that copies of "NRC STAFF'S ANSWER TO NEW ENGLAND COALITION'SBRIEF ON THE LEGAL SCOPE OF NEW ENGLAND COALITION CONTENTION 4, in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class; or as indicated by an asterisk (*), by deposit in the Nuclear Regulatory Commission's internal mail system; and by e-mail as indicated by a double asterisk (**), this 30 th day of March, 2005.Alex S. Karlin, Chair**Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ask2@nrc.govDr. Anthony J. Baratta**Administrative Judge Atomic Safety and Licensing Board Panel Mail Stop T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: ajb5@nrc.govLester S. Rubenstein**Administrative Judge Atomic Safety and Licensing Board Panel 4760 East Country Villa DriveTucson, AZ 85718 E-mail: lesrrr@comcast.netOffice of the Secretary**ATTN: Rulemaking and Adjudications Staff Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.govOffice of Commission Appellate Adjudication*

Mail Stop: O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Jonathan M. Rund, Esq.**Law Clerk Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: jmr3@nrc.gov

) Jered J. Lindsay, Esq.**Law Clerk Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: JJL5@nrc.gov

)Sarah Hofmann, Esq.**Special Counsel Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 E-mail: sarah.hofmann@state.vt.usJay E. Silberg, Esq.**Matias Travieso-Diaz, Esq.**

Pillsbury Winthrop Shaw Pittman, LLP 2300 N St., NW Washington, DC 20037-1128 E-mail: jay.silberg@pillsburylaw.com, and matias.travieso-diaz@pillsburylaw.comAnthony Z. Roisman, Esq.**National Legal Scholars Law Firm 84 East Thetford Rd.

Lyme, NH 03768 E-mail: aroisman@nationallegalscholars.comJohn M. Fulton, Esq.Assistant General Counsel Entergy Nuclear Operations, Inc.

440 Hamilton Avenue White Plains, NY 10601Raymond Shadis**Staff Technical Advisor New England Coalition

P.O. Box 98 Edgecomb, ME 04556 E-mail: shadis@prexar.com, shadis@ime.net/RA/ Sherwin E. TurkCounsel for NRC Staff