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:	Lawrence Mcdade 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 Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) December 6, 2011 ORDER (Granting Entergys 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 Staffs Safety Evaluation Report (SSER) for Applicant Entergy Nuclear Operations, Inc.s (Entergys) License Renewal Application for Indian Point Units 2 and 3.1 NYS-38/RK-TC-5 challenges the adequacy of Entergys 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10, 2011) (unpublished) [hereinafter NYS-38/RK-TC-5 Admissibility Order].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 Entergys 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 contentions admission.7 We grant Entergys 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 Entergys AMPs are inadequate with regard to several safety-related systems and components because these 3

Applicants 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 Riverkeepers Joint Response to Entergys 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 Entergys 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 Entergys 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 Entergys 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 Yorks 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) Entergys 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

/RA/

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 Entergys 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 U.S. Nuclear Regulatory Commission Mail Stop O-7H4M Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Sherwin E. Turk, Esq.

Atomic Safety and Licensing Board Panel Edward L. Williamson, Esq.

Mail Stop T-3F23 Beth N. Mizuno, Esq.

Washington, DC 20555-0001 David E. Roth, Esq.

Brian Harris, Esq.

Lawrence G. McDade, Chair Andrea Z. Jones, Esq.

Administrative Judge Mary B. Spencer, Esq.

E-mail: lawrence.mcdade@nrc.gov Karl Farrar, Esq.

Brian Newell, Paralegal Richard E. Wardwell U.S. Nuclear Regulatory Commission Administrative Judge Office of the General Counsel E-mail: richard.wardwell@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 Kaye D. Lathrop E-mail:

Administrative Judge sherwin.turk@nrc.gov 190 Cedar Lane E. edward.williamson@nrc.gov Ridgway, CO 81432 beth.mizuno@nrc.gov E-mail: kaye.lathrop@nrc.gov brian.harris.@nrc.gov david.roth@nrc.gov Joshua A. Kirstein, Law Clerk andrea.jones@nrc.gov E-mail: josh.kirstein@nrc.gov mary.spencer@nrc.gov Anne Siarnacki, Law Clerk karl.farrar@nrc.gov E-mail: anne.siarnacki@nrc.gov brian.newell@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov

Docket Nos. 50-247-LR and 50-286-LR ORDER (Granting Entergys Motion For Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5)

William C. Dennis, Esq. Thomas F. Wood, Esq.

Assistant General Counsel Daniel Riesel, Esq.

Entergy Nuclear Operations, Inc. Victoria Shiah, Esq.

440 Hamilton Avenue Counsel for Town of Cortlandt White Plains, NY 10601 Sive, Paget & Riesel, P.C.

Email: wdennis@entergy.com 460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com vshiah@sprlaw.com Elise N. Zoli, Esq. Phillip Musegaas, Esq.

Goodwin Proctor, LLP Deborah Brancato, Esq.

Exchange Place Riverkeeper, Inc.

53 State Street 20 Secor Road Boston, MA 02109 Ossining, NY 10562 E-mail: ezoli@goodwinprocter.com E-mail: phillip@riverkeeper.org dbrancato@riverkeeper.org Kathryn M. Sutton, Esq. Melissa-Jean Rotini, Esq.

Paul M. Bessette, Esq. Assistant County Attorney Martin J. ONeill, Esq. Office of Robert F. Meehan, Raphael Kuyler, Esq. Westchester County Attorney Jonathan M. Rund, Esq. 148 Martine Avenue, 6th Floor Counsel for Entergy Nuclear Operation, Inc White Plains, NY 10601 Lena Michelle Long E-mail: MJR1@westchestergov.com 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.oneill@morganlewis.com rkuyler@morganlewis.com jrund@morganlewis.com llong@morganlewis.com mfreeze@morganlewis.com lrichardson@morganlewis.com Michael J. Delaney, Esq. Manna Jo Greene, Environmental Director Director, Energy Regulatory Affairs Steven C. Filler NYC Department of Environmental Protection Karla Raimundi 59-17 Junction Boulevard Hudson River Sloop Clearwater, Inc.

Flushing, NY 11373 724 Wolcott Ave.

E-mail: mdelaney@dep.nyc.gov Beacon, NY 12508 E-mail: mannajo@clearwater.org stephenfiller@gmail.com karla@clearwater.org 2

Docket Nos. 50-247-LR and 50-286-LR ORDER (Granting Entergys Motion For Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5)

Joan Leary Matthews, Esq. Robert D. Snook, Esq.

Senior Attorney for Special Projects Assistant Attorney General New York State Department Office of the Attorney General of Environmental Conservation State of Connecticut 625 Broadway, 14th Floor 55 Elm Street Albany, New York 12233-5500 P.O. Box 120 E-mail: jmatthe@gw.dec.state.ny.us Hartford, CT 06141-0120 E-mail: robert.snook@po.state.ct.us John Louis Parker, Esq. Sean Murray, Mayor Office of General Counsel, Region 3 Kevin Hay, Village Administrator New York State Department Village of Buchanan of Environmental Conservation Municipal Building 21 South Putt Corners Road 236 Tate Avenue New Paltz, NY 12561-1620 Buchanan, NY 10511-1298 E-mail: jlparker@gw.dec.state.ny.us 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, 26th 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 6th day of December 2011 3