ML103080994

2010/11/04-LB Memorandum and Order (Ruling on Entergy'S Motion for Summary Disposition of Riverkeeper TC-2 (Flow-Accelerated Corrosion))

ML103080994
Person / Time
Site:	Indian Point
Issue date:	11/04/2010
From:	Lawrence Mcdade Atomic Safety and Licensing Board Panel
To:
SEC RAS
References
ASLBP 07-858-03-LR-BD01, RAS E-419
Download: ML103080994 (13)

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 Docket Nos. 50-0247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) November 4, 2010 MEMORANDUM AND ORDER (Ruling on Entergys Motion for Summary Disposition of Riverkeeper TC-2 (Flow-Accelerated Corrosion))

Before the Board is a Motion filed by the Applicant, Entergy Nuclear Operations, Inc. (Entergy or the Applicant) for the summary disposition of Riverkeeper Technical Contention 2 -- Flow-Accelerated Corrosion (hereinafter RK-TC-2).1 The NRC Staff and Intervenor, Riverkeeper, Inc. (Riverkeeper), respectively, filed Answers supporting and opposing the Motion.2 The Board hereby denies Entergys Motion for Summary Disposition because genuine issues of material fact regarding the adequacy of the Applicants plan to manage the effects of flow-accelerated corrosion (FAC) during the proposed period of extended operation must be resolved on the merits after an evidentiary hearing.

1 Applicants Motion for Summary Disposition of Riverkeeper Technical Contention 2 (Flow-Accelerated Corrosion) (July 26, 2010) [hereinafter Entergy Motion].

2 NRC Staffs Answer to Applicants Motion for Summary Disposition of Riverkeeper Technical Contention 2 (Flow-Accelerated Corrosion) (Aug. 16, 2010) [hereinafter NRC Staff Answer]; Riverkeeper Opposition to Entergys Motion for Summary Disposition of Riverkeeper Technical Contention 2 (Flow-Accelerated Corrosion) (Aug. 16, 2010)

[hereinafter Riverkeeper Opposition].

I. Legal Standards for Summary Disposition We have reviewed the standards for ruling on motions for summary disposition on two prior instances,3 and thus do not repeat them in full here. Nevertheless, we note here that a Board may grant a motion for summary disposition only if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.4 In addition we note that when we consider a Motion for Summary Disposition submitted pursuant to either 10 C.F.R. §§ 2.1205 or 2.710, the moving party has the burden to demonstrate the absence of any genuine issue of material fact, and that any doubt as to the existence of a material fact must be resolved against the moving party.5 Accordingly,

[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.6 II. Entergys Motion for Summary Disposition of RK-TC-2 A. Riverkeeper TC-2 On July 31, 2008, the Board admitted RK-TC-2 insofar as it alleged that:

(1) Entergys [Aging Management Program] for components affected by FAC is deficient because it does not provide sufficient details (e.g.,

inspection method and frequency, criteria for component repair or 3

See Licensing Board Memorandum and Order (Denying Entergys Motion for the Summary Disposition of NYS Contention 17/17A) (Apr. 22, 2010) at 1-2 (unpublished);

Licensing Board Memorandum and Order (Ruling on Motions for Summary Disposition (Nov. 3, 2009) at 1-2 (unpublished).

4 10 C.F.R. § 2.710(d)(2) (emphasis added). This standard is found in Subpart G, but it applies when we are proceeding under both Subparts G and L. Cf. 10 C.F.R.

§ 2.1205(c).

5 See Entergy Nuclear Vermont Yankee LLC, & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-06-05, 63 NRC 116, 121 (2006).

6 Entergy Nuclear Generating Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC __, __ (slip op. at 13) (Mar. 26, 2011) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).

replacement) to demonstrate that the intended functions of the applicable components will be maintained during the extended period of operation; and (2) Entergys program relies on the results from CHECWORKS without benchmarking or a track record of performance at [Indian Point Energy Centers] power uprate levels.7 B. Summary of Entergys Motion Entergys Motion posits an absence of a genuine issue of material fact with regard to (1) the sufficiency of detail in its Aging Management Program (AMP) for components affected by FAC under Part 54 and (2) whether its utilization of the CHECWORKS computer code is sufficient to monitor FAC under NRC regulations. We summarize our understanding of each of these arguments below.

1. Entergys AMP for Components Affected by FAC Entergy argues that its AMP for components subject to FAC (FAC Program) complies with Part 54 because its FAC Program contains, with the requisite specificity, each of the ten factors found in the NRCs Generic Aging Lessons Learned (GALL)

Report,8 and the NRC Staffs Final Safety Evaluation Report9 confirms this assertion.10 Moreover, Entergy reasons that because its FAC Program is applied company-wide for its fleet of nuclear plants and, after an evidentiary hearing on an identical contention, the Vermont Yankee Licensing Board concluded that the company-wide plan was sufficient 7

LBP-08-13, 68 NRC 43, 177 (2008).

8 U.S. Nuclear Regulatory Commission, Generic Aging Lessons Learned (GALL)

Report, NUREG-1801, Rev. 1, Vol. 2, Tabulation of Results (Sept. 2005) (ADAMS Accession No. ML052780376) [hereinafter GALL Report].

9 U.S. Nuclear Regulatory Commission, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, Docket Nos. 50-247 and 50-286, Entergy Nuclear Operations, Inc., NUREG-1930, Vol. 2 (Nov. 2009)

(ADAMS Accession No. ML093170671) [hereinafter FSER].

10 Entergy Motion at 15-16 (citations omitted).

under Part 54, there is no genuine issue of fact to litigate at an evidentiary hearing for the license renewal of Indian Point Units 2 and 3.11

2. CHECWORKS At the outset, Entergy urges that even if one concedes that CHECWORKS is an inadequate program on its own to detect FAC, Entergy employs other tools independent of CHECWORKS to select the most critical FAC locations for plant inspections, such as consideration of industry and plant-specific experience, required re-inspections and recommendations from previous outages, susceptible piping locations not previously modeled, small bore piping program locations, and engineering judgment.12 Indeed, in its Motion for Summary Disposition, Entergy minimizes the centrality of its reliance on CHECWORKS to detect FAC because it represents that the components that are most likely to experience FAC are areas of high flow velocity and high turbulence that are already known.13 Further, Entergy represents that it uses actual inspection results to decide the need for repairs or replacement, and already has proactively replaced certain FAC-susceptible piping components with FAC-resistant materials.14 Nevertheless, Entergy defends its use of and reliance on CHECWORKS.

Entergy emphasizes that the benchmarking of CHECWORKS against plant-specific measured wear rates of components operating under [stretch power uprate] SPU conditions that Riverkeeper seeks is unnecessary because CHECWORKS has been benchmarked against measurements of wall thinning for components operating over a 11 Id. at 16-17 (citing inter alia Entergy Nuclear Vermont Yankee, LLC, & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-08-25, 68 NRC 763, 860, 864-93 (2008), revd and remanded on other grounds, CLI-10-17, 72 NRC __,

__ (slip op.) (July 8, 2010)).

12 Entergys Motion at 17-18 (citations omitted).

13 Id. at 18 (citations omitted).

14 Id. at 18-19 (citations omitted).

wide range of operating parameters.15 Moreover, given the larger magnitude of the power uprate at issue in Vermont Yankee than the power uprate at issue at Indian Point and the positive effect on CHECWORKS reliability from additional inspection data collected during future refueling outages, Entergy insists that the ten to fifteen years of additional benchmarking of CHECWORKS requested by Riverkeeper are excessive and wholly unnecessary.16 Entergy distinguishes those nuclear power plants that did have problems with FAC from those that have used CHECWORKS to identify FAC in its intended manner.

Specifically, Entergy maintains that those with FAC or CHECWORKS problems either did not have a FAC program at all or did not use CHECWORKS correctly. Therefore, Entergy insists that there is no genuine issue of material fact over the appropriateness of using CHECWORKS; rather, it is whether and how the program is implemented that matters.17 Finally, Entergy alleges that CHECWORKS has generally been successful in its deployment in nuclear power plants around the world and those plants have had a higher safety rate than plants in countries that have not used CHECWORKS.18 III. Board Decision In opposition to Entergys Motion, Riverkeeper presented a Counter-Statement of Material Facts19 that was supported by the Declaration of Dr. Joram Hopenfeld,20 who holds a Ph.D. in Engineering from the University of California at Los Angeles and, in 15 Id. at 19 (citations omitted).

16 Id. at 20-21 (citations omitted).

17 Id. at 22 (citations omitted).

18 Id. at 22-23 (citations omitted).

19 Riverkeeper Motion, Attach. 1, Counter-Statement of Material Facts.

20 Id., Attach. 2, Declaration of Dr. Joram Hopenfeld [hereinafter Hopenfeld Decl.].

addition, has more than forty-five years of professional experience, including approximately eighteen years as an employee of the Nuclear Regulatory Commission, which is directly relevant to the issues raised in RK-TC-2.21 Without question, Dr.

Hopenfeld is qualified, by virtue of his education and professional experience, to offer his expert opinion on the issues raised in Riverkeeper TC2.

In Dr. Hopenfelds professional opinion, CHECWORKS is not a viable and effective tool for selecting and prioritizing IPEC [Indian Point Energy Center] piping and piping component locations for inspection to detect and mitigate FAC during the period of extended operation.22 According to Dr. Hopenfeld, CHECWORKS is solely based on a collection of selective data which represents only a fraction of the total flow area and, therefore, it must be calibrated or benchmarked separately at each individual power plant and recalibrated when plant conditions change.23 Dr. Hopenfeld cites to the GALL Report at XI.M17 as support for his opinion that CHECWORKS must be properly benchmarked at each plant before [it] can be used as a management tool to control FAC.24 Riverkeepers engineering expert offered his opinion that CHECWORKS, as used at Indian Point, has not been properly benchmarked and, accordingly, that CHECWORKS predictions of wall thinning at Indian Point have been highly unreliable.25 Dr. Hopenfeld then went on in some detail to explain why, in his expert opinion, the use of CHECWORKS as a tool to manage the 21 Id., Attach. 3, Curriculum Vitae for Dr. Joram (Joe) Hopenfeld.

22 Hopenfeld Decl. ¶ 8.

23 Id. ¶ 9.

24 Id. ¶ 10.

25 Id. ¶¶ 11, 12.

effects of FAC at Indian Point is inadequate, particularly given that it has not been adequately benchmarked.26 In addition to his critique of Entergys use of CHECWORKS, Dr. Hopenfeld also explained why, in his expert opinion, the other tools that Entergy intends to rely on during the proposed period of extended operations are, taken alone or in conjunction with the use of CHECWORKS, inadequate to manage the effects of FAC at Indian Point.27 According to Dr. Hopenfeld, Entergy does not employ any meaningful tools that, separate and apart from CHECWORKS, would sufficiently manage the aging effects of FAC at Indian Point.28 In support of Entergys Motion,29 we are pointed to the Board decision in the Vermont Yankee proceeding in which Entergys FAC AMP was found to be acceptable30 and also to the NRC Staffs review of Entergys FAC AMP in its FSER that found the IPEC FAC program to be sufficient.31 Those decisions, however, are irrelevant to our decision here.

The Vermont Yankee decision related to a different type of reactor than that under review in this proceeding (boiling water instead of pressurized water) and a different size reactor (1912 MWth instead of 3200 MWth).32 But, the most significant difference between that decision and the one we make here is that the Vermont Yankee 26 Id. ¶¶ 13-18.

27 Id. ¶¶ 19-23.

28 Id. ¶ 24.

29 Entergy Motion at 16-18, 20; NRC Staff Answer at 5 & n.8.

30 Vermont Yankee, LBP-08-25, 68 NRC at 889.

31 FSER at 3-31.

32 Hopenfeld Decl. ¶ 28.

Board reached its decision after an evidentiary hearing and was, accordingly, able to weigh the evidence in reaching its conclusions. Here, in ruling on Entergys Motion for Summary Disposition, we do not and cannot weigh the evidence but rather we are required to decide not whether evidence unmistakably favors one side or the other, but whether there is sufficient evidence favoring the non-moving party for a reasonable trier of fact to find in favor of that party.33 Likewise, when the NRC Staff concluded that the IPEC FAC AMP was adequate to satisfy the requirements of Part 54, it did so after evaluating and weighing the facts presented. While the reasoning of the Vermont Yankee Board and/or the NRC Staff may (or may not) be helpful to this Board when we are called upon to evaluate the evidence relevant to Entergys FAC AMP that will be presented at the evidentiary hearing, it is of no value to us at this point in the proceeding when we are ruling on a Motion for Summary Disposition.

IV. Conclusion The detailed Declaration of Dr. Joram Hopenfeld demonstrates that there are genuine issues of material fact relating to whether (1) Entergys AMP for components affected by FAC is deficient because it does not provide sufficient details to demonstrate that the intended functions of the applicable components will be maintained during the extended period of operation; and (2) Entergys program relies on the results from CHECWORKS without adequate benchmarking or a track record of performance at IPECs power uprate levels.

33 Pilgrim, CLI-10-11, 71 NRC at __ (slip op. at 12-13).

Accordingly, Entergys Motion for Summary Disposition of Riverkeeper Technical Contention 2 -- Flow-Accelerated Corrosion is denied.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD34

/RA/

___________________________

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE

/RA, by Edward R. Hawkens for/

___________________________

Dr. Kaye D. Lathrop ADMINISTRATIVE JUDGE

/RA, by Edward R. Hawkens for/

___________________________

Dr. Richard E. Wardwell ADMINISTRATIVE JUDGE Rockville, Maryland November 4, 2010 34 Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for Riverkeeper, Inc.; (5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Sean Murray, the Representative for the Village of Buchanan; and (10) Counsel for the New York City Economic Development Corporation.

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

)

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

) 50-286-LR

)

(Indian Point Nuclear Generating Station, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Ruling on Entergys Motion for Summary Disposition of Riverkeeper TC-2 (Flow-Accelerated Corrosion)) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission Mail Stop O-7H4M Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop T-3F23 Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Sherwin E. Turk, Esq.

Administrative Judge Beth N. Mizuno, Esq.

Lawrence G. McDade, Chair David E. Roth, Esq.

Brian Harris, Esq.

Administrative Judge Andrea Z. Jones, Esq.

Richard E. Wardwell Michael G. Dreher, Esq.

Karl Farrar, Esq.

Administrative Judge Brian Newell, Paralegal Kaye D. Lathrop 190 Cedar Lane E.

Ridgway, CO 81432 Joshua A. Kirstein, Law Clerk

Docket Nos. 50-247-LR and 50-286-LR MEMORANDUM AND ORDER MEMORANDUM AND ORDER (Ruling on Entergys Motion for Summary Disposition of Riverkeeper TC-2 (Flow-Accelerated Corrosion))

William C. Dennis, Esq. Andrew M. Cuomo, Attorney General Assistant General Counsel John J. Sipos, Assistant Attorney General Entergy Nuclear Operations, Inc. Mylan L. Denerstein 440 Hamilton Avenue Deputy Assistant Attorney General White Plains, NY 10601 Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224 Kathryn M. Sutton, Esq. Joan Leary Matthews, Esq.

Paul M. Bessette, Esq. Senior Attorney for Special Projects Martin J. ONeill, Esq. New York State Department Counsel for Entergy Nuclear Operation, Inc. of Environmental Conservation Morgan, Lewis & Bockius, LLP 625 Broadway, 14th Floor 1111 Pennsylvania Avenue, NW Albany, New York 12233-5500 Washington, DC 20004 Michael J. Delaney Robert D. Snook, Esq.

Vice President, Energy Department Office of The Attorney General New York City Economic Development State of Connecticut Corporation (NYCEDC) 55 Elm Street 110 William Street P.O. Box 120 New York, NY 10038 Hartford, CT 06141-0120 Arthur J. Kremer, Chairman Stephen C. Filler, Board Member New York Affordable Reliable Electricity Hudson River Sloop Clearwater, Inc.

Alliance (AREA) 724 Wolcott Ave.

347 Fifth Avenue, Suite 508 Beacon, NY 12508 New York, NY 10016 2

Docket Nos. 50-247-LR and 50-286-LR MEMORANDUM AND ORDER MEMORANDUM AND ORDER (Ruling on Entergys Motion for Summary Disposition of Riverkeeper TC-2 (Flow-Accelerated Corrosion))

Sean Murray, Mayor Manna Jo Greene, Environmental Director Kevin Hay, Village Administrator Hudson River Sloop Clearwater, Inc.

Village of Buchanan 724 Wolcott Ave.

Municipal Building Beacon, New York 12508 236 Tate Avenue Buchanan, NY 10511-1298 Ross Gould, Board Member Hudson River Sloop Clearwater, Inc.

270 Route 308 Rhinebeck, NY 12572 Counsel for the Town of Cortlandt Nancy Burton, Esq.

Thomas F. Wood, Esq. Connecticut Residents Opposed Daniel Riesel, Esq. to Relicensing of Indian Point (CRORIP)

Jessica Steinberg, J.D. 147 Cross Highway Sive, Paget & Riesel, P.C. Redding Ridge, CT 06876 460 Park Avenue New York, NY 10022 Elise N. Zoli, Esq. Melissa-Jean Rotini, of counsel Goodwin Proctor, LLP Assistant County Attorney Exchange Place Office of Robert F. Meehan, 53 State Street Westchester County Attorney Boston, MA 02109 148 Martine Avenue, 6th Floor White Plains, NY 10601 FUSE USA Westchester Citizens Awareness Network John LeKay (WestCan), Citizens Awareness Network, Heather Ellsworth Burns-DeMelo (CAN), et al Remy Chevalier Susan H. Shapiro, Esq.

Bill Thomas 21 Pearlman Drive Belinda J. Jaques Spring Valley, NY 10977 351 Dyckman Street Peekskill, New York 10566 3

Docket Nos. 50-247-LR and 50-286-LR MEMORANDUM AND ORDER MEMORANDUM AND ORDER (Ruling on Entergys Motion for Summary Disposition of Riverkeeper TC-2 (Flow-Accelerated Corrosion))

Philip Musegaas, Esq. Richard L. Brodsky, Esq.

Deborah Brancato, Esq. Member of Assembly Riverkeeper, Inc. 92nd Assembly District, 20 Secor Road State of New York Ossining, NY 10562 5 West Main Street Suite 205 Elmsford, NY 10523 Sarah L. Wagner, Esq.

Legislative Office Building, Room 422 Albany, NY 12248

[Original signed by Christine M. Pierpoint]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 4th day of November, 2010.

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