ML12286A404

Entergy'S Answer Opposing Riverkeeper'S Motion for Leave to File Additional Exhibits Concerning Contention RK-TC-2 (Flow Accelerated Corrosion)

ML12286A404
Person / Time
Site:	Indian Point
Issue date:	10/12/2012
From:	Kuyler R Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23621, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12286A404 (12)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) October 12, 2012 ENTERGYS ANSWER OPPOSING RIVERKEEPERS MOTION FOR LEAVE TO FILE ADDITIONAL EXHIBITS CONCERNING CONTENTION RK-TC-2 (FLOW ACCELERATED CORROSION)

William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

ENTERGY NUCLEAR OPERATIONS, INC. Raphael P. Kuyler, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, NW Phone: (914) 272-3202 Washington, DC 20004 Fax: (914) 272-3205 Phone: (202) 739-3000 E-mail: wglew@entergy.com Fax: (202) 739-3001 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) October 12, 2012 ENTERGYS ANSWER OPPOSING RIVERKEEPERS MOTION FOR LEAVE TO FILE ADDITIONAL EXHIBITS CONCERNING CONTENTION RK-TC-2 (FLOW ACCELERATED CORROSION)

Pursuant to 10 C.F.R. § 2.323(c), Entergy Nuclear Operations, Inc. (Entergy) hereby opposes the Motion for Leave to File Additional Exhibits Concerning Contention RK-TC-2 (Flow Accelerated Corrosion) (Motion) filed by Riverkeeper, Inc. (Riverkeeper) on October 11, 2012. The Board should deny the Motion because it improperly seeks to augment Riverkeepers prefiled testimony in an untimely fashion, without good cause.

Nearly ten months after the deadline for prefiled direct testimony, more than three months after the deadline for pre-filed rebuttal testimony, and four days before the hearing, Riverkeeper now seeks to introduce five new highly technical documents into evidence.1 None of the five documents is less than nine years old.2 Thus, at the very latest, these documents should have been introduced with Dr. Hopenfelds pre-filed rebuttal testimony, which was due 1

The five new exhibits are: (1) Digby D. Macdonald, The Point Defect Model for the Passive State, J. of the Electrochemical Society, Vol. 139, Issue No. 12 (Dec. 1992) (RIV000127); (2) Bryan Poulson and Russel Robinson, The Use of A Corrosion Process to Obtain Mass Transfer Data, Science, Vol. 26, No.4, pp. 265-280 (1986) (RIV000128); G.J. Bignold, K. Garbett, R. Garnsey, & I.S. Woolsey, Erosion/Corrosion in Nuclear Steam Generators, in Water Chemistry of Nuclear Reactor Systems 5, Paper 1 (British Nuclear Engineering Society, 1980) (RIV000129); (4) Entergy Ultrasonic Examination Report, IPEC00020853 (Apr. 3, 2003)

(RIV000130); and (5) Jianrong Wang, Siamack A. Shirazi, A CFD based correlation for mass transfer coefficient in elbows, Intl J. of Heat and Mass Transfer 44 (2001) 1817-1822 (RIV000131).

2 Cf. Unopposed Motion by State of New York for Leave to File Additional Exhibits Concerning NYS-37 (Oct.

9, 2012) at 1 (seekingwithout oppositionto introduce additional exhibits that came into existence very recently).

on June 29, 2012.3 Now, on the eve of the hearing, these new exhibits are simply untimely.

Contrary to Riverkeepers representations,4 the consideration of these documents will clearly expand the scope of the hearing. And, as the Staff advised Riverkeeper during the consultations prior to the filing of this Motion, the introduction of a significant set of new exhibits at the eleventh hour prejudices the other parties.5 Although Riverkeeper states that Dr. Hopenfeld recently identified these documents as materials he intends to reference in his presentation on CHECWORKS,6 that presentation is simply not an opportunity to introduce new evidence into the record or otherwise bolster previously-submitted testimony. As the Board specified only two days ago, the requested presentations are not an opportunity to submit new exhibits and any new evidence will be in the form of oral expert witness testimony.7 The Motion, moreover, seeks to introduce one exhibit that Riverkeeper did not even raise in consultations. Specifically, as shown in Attachment 1, Riverkeeper consulted with the parties regarding proposed exhibits RIV000127-129, and RIV000131, but did not consult with the parties on new exhibit RIV000130. Riverkeepers request to admit RIV000130, therefore, must also be denied for this additional reason.

3 See Licensing Board Order (Granting Unopposed Extension of Time) (May, 16, 2012) (unpublished).

4 See Motion at 2.

5 See id., Certification Pursuant to 10 C.F.R. § 2.323(b).

6 See id. at 1.

7 E-mail from S. Lewman, Law Clerk, ASLB, CHECWORKS Presentation, (Oct. 10, 2012) (Clerks E-mail); see also Official Transcript of Proceedings, Indian Point Nuclear Generating Units 1 & 2 [sic2 & 3]

at 1227 (Sept. 24, 2012) (Tr.) at 1227 (the only way that you would comment to put it on the record would be through a witness). Although the Chair later stated that if Dr. Hopenfeld has . . . a specific document that he would want to make reference to during the course of explaining his perspective Riverkeeper should mark that as an exhibit and furnish that to the other parties and the Board, id. at 1228-29, Entergy does not understand this statement to open the door to voluminous new technical exhibits, particularly given the subsequent clarification in the Clerks E-mail.

Finally, Entergy notes that it is reviewing Dr. Hopenfelds presentation, which Riverkeeper filed today. From a preliminary review, it appears that the un-numbered pages 5 through 14 are not focused on how CHECWORKS is designed, or on how the program theoretically works at any facility.8 Instead, these slides rely extensively on Indian Point-specific information and exhibits, and seek to reargue a variety of issues raised in Riverkeepers testimony, directly contrary to the Boards explicit direction on this issue.9 Thus, Entergy reserves the right to address this issue at an appropriate opportunity at the hearing.10 For the foregoing reasons, the Board should deny Riverkeepers Motion.

Respectfully submitted, Signed electronically by Raphael P. Kuyler William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

Entergy Nuclear Operations, Inc. Raphael P. Kuyler, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W.

Phone: (914) 272-3202 Washington, D.C. 20004 E-mail: wglew@entergy.com Phone: (202) 739-5738 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

Dated in Washington, D.C.

this 12th day of October 2012 8

Clerks E-mail (emphasis added).

9 Tr. at 1227 (the idea is not to just simply repeat the prefiled testimony). In addition, some of the slides (slides 4, 8, and 9) rely on exhibits filed with the Motion, including Exhibit RIV000130.

10 Clerks E-mail (If the witnesses go beyond the limited focus of their presentations, the Board will terminate the presentations.).

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) October 12, 2012 MOTION CERTIFICATION Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving parties, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.

Signed electronically by Raphael P. Kuyler Raphael P. Kuyler, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5146 Fax: (202) 739-3001 E-mail: rkuyler@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

ENTERGYS ANSWER OPPOSING RIVERKEEPERS MOTION FOR LEAVE TO FILE ADDITIONAL EXHIBITS CONCERNING CONTENTION RK-TC-2 (FLOW ACCELERATED CORROSION)

ATTACHMENTS Attachment No.

E-mail from R. Kuyler dated October 10, 2012..............................................................................................................................................1

ENTERGYS ANSWER OPPOSING RIVERKEEPERS MOTION FOR LEAVE TO FILE ADDITIONAL EXHIBITS CONCERNING CONTENTION RK-TC-2 (FLOW ACCELERATED CORROSION)

ATTACHMENT 1 E-mail from R. Kuyler dated October 10, 2012

Escher, Lance A.

From: Kuyler, Raphael Philip Sent: Wednesday, October 10, 2012 7:23 PM To: Turk, Sherwin; Deborah Brancato; Roth(OGC), David; Janice Dean; Bessette, Paul M.;

Kathryn Liberatore; O'Neill, Martin; 'mannajo@clearwater.org'; 'karla@clearwater.org';

'Richard Webster'; Mizuno, Beth; Harris, Brian; John J. Sipos; Rund, Jonathan M.

Cc: Phillip Musegaas

Subject:

RE: Indian Point LRP - Consultation Regarding Riverkeeper's Motion for Leave to File Additional Exhibits Please note Entergys opposition as well, Deborah. Entergy agrees with the Staffs position and further notes that its understanding of todays e-mail from the clerk is that the requested presentations are not an opportunity to submit new exhibits and that any new evidence will be in the form of expert witness testimony.

Regards, Ray P. Kuyler Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004 Direct: 202.739.5146 l Main: 202.739.3000 l Fax: 202.739.3001 rkuyler@morganlewis.com l www.morganlewis.com Assistant: Joyce A. Glover l 202.739.5949 l jglover@morganlewis.com From: Turk, Sherwin [1]

Sent: Wednesday, October 10, 2012 7:20 PM To: Deborah Brancato; Roth(OGC), David; Janice Dean; Bessette, Paul M.; Kathryn Liberatore; O'Neill, Martin;

'mannajo@clearwater.org'; 'karla@clearwater.org'; 'Richard Webster'; Mizuno, Beth; Harris, Brian; John J. Sipos; Rund, Jonathan M.; Kuyler, Raphael Philip Cc: Phillip Musegaas

Subject:

RE: Indian Point LRP - Consultation Regarding Riverkeeper's Motion for Leave to File Additional Exhibits Deborah -

In Dave Roths absence, let me express the Staffs position -

Regardless of the contents of your newly proposed exhibits, the Staff opposes their proffer and admission at this time. The Board put in place, two years ago, a requirement that the parties present proposed evidence in accordance with clearly stated deadlines. Under the Boards scheduling Orders, Dr. Hopenfeld should have conducted his literature review before filing his initial testimony, 10 months ago. At best, he should have conducted that search 5 months ago, before filing his rebuttal testimony. It is far too late, extremely unfair, and highly irresponsible, for you to try to present these exhibits now, for the first time - especially since you claim that Riverkeeper has previously disclosed them. Please state the Staffs position as follows:

The Staff objects to Riverkeepers late filing of these lengthy and highly complex proposed exhibits on the eve of hearing, fully 10 months after they were required to be filed under the Boards Scheduling Orders.

Riverkeepers untimely identification of these documents as proposed exhibits contravenes the Boards Orders and would result in prejudice to the Staff and other parties, who have not had an adequate opportunity to study and address this proposed evidentiary material as had been contemplated in the Boards scheduling Orders.

Sherwin From: Deborah Brancato [2]

Sent: Wednesday, October 10, 2012 6:44 PM To: Roth(OGC), David; Janice Dean; 'Bessette, Paul M.'; Kathryn Liberatore; 'O'Neill, Martin'; 'mannajo@clearwater.org';

'karla@clearwater.org'; 'Richard Webster'; Turk, Sherwin; Mizuno, Beth; Harris, Brian; John J. Sipos; 'Jonathan M. Rund';

1

Kuyler, Raphael Philip Cc: Phillip Musegaas

Subject:

RE: Indian Point LRP - Consultation Regarding Riverkeeper's Motion for Leave to File Additional Exhibits David, Ray:

Thank you for your responses. As a brief explanation, in the course of preparing to respond to Entergys prospective presentation at that adjudicatory hearing, Dr. Hopenfeld conducted a review of relevant literature (including documents already disclosed to the parties), and determined the listed additional documents were relevant and could assist the ASLB.

Unless you have any further thoughts, I will indicate your opposition.

-Deborah From: Roth(OGC), David [3]

Sent: Wednesday, October 10, 2012 6:29 PM To: Deborah Brancato; Janice Dean; 'Bessette, Paul M.'; Kathryn Liberatore; 'O'Neill, Martin'; 'mannajo@clearwater.org';

'karla@clearwater.org'; 'Richard Webster'; Turk, Sherwin; Mizuno, Beth; Harris, Brian; John J. Sipos; 'Jonathan M. Rund';

Kuyler, Raphael Philip Cc: Phillip Musegaas; Roth(OGC), David

Subject:

RE: Indian Point LRP - Consultation Regarding Riverkeeper's Motion for Leave to File Additional Exhibits Good evening, As your e-mail indicated, the documents you are proposing to introduce are 10 years old and older. They are also highly technical, and currently not relied upon for Riverkeeper's testimony. With the hearing starting in just a few days, it would not be fair to the Staff to introduce these new technical exhibits, which the Staff would then need to review in-depth and be able to discuss during the hearing.

With respect to Dr. Joram Hopenfeld's Power Point presentation, the email from Shelbie R. Lewman, Law Clerk, Atomic Safety and Licensing Board Panel, dated Wed 10/10/2012 4:43 PM, addresses how the visual aid is to be treated.

Accordingly, the Staff would oppose a motion to add these as exhibits.

David Roth Counsel to the Staff From: Deborah Brancato [4]

Sent: Wednesday, October 10, 2012 5:25 PM To: Roth(OGC), David; Janice Dean; 'Bessette, Paul M.'; Kathryn Liberatore; 'O'Neill, Martin'; 'mannajo@clearwater.org';

'karla@clearwater.org'; 'Richard Webster'; Turk, Sherwin; Mizuno, Beth; Harris, Brian; John J. Sipos; 'Jonathan M. Rund';

Kuyler, Raphael Philip Cc: Phillip Musegaas

Subject:

RE: Indian Point LRP - Consultation Regarding Riverkeeper's Motion for Leave to File Additional Exhibits Sure David, see attached.

From: Roth(OGC), David [5]

Sent: Wednesday, October 10, 2012 3:28 PM To: Deborah Brancato; Janice Dean; 'Bessette, Paul M.'; Kathryn Liberatore; 'O'Neill, Martin'; 'mannajo@clearwater.org';

'karla@clearwater.org'; 'Richard Webster'; Turk, Sherwin; Mizuno, Beth; Harris, Brian; John J. Sipos; 'Jonathan M. Rund';

2

Kuyler, Raphael Philip Cc: Phillip Musegaas; Roth(OGC), David

Subject:

RE: Indian Point LRP - Consultation Regarding Riverkeeper's Motion for Leave to File Additional Exhibits Good afternoon, Are you able to provide access to the documents as part of your consultation?

David Roth From: Deborah Brancato [6]

Sent: Wednesday, October 10, 2012 12:59 PM To: Janice Dean; 'Bessette, Paul M.'; Kathryn Liberatore; 'O'Neill, Martin'; 'mannajo@clearwater.org';

'karla@clearwater.org'; 'Richard Webster'; Turk, Sherwin; Mizuno, Beth; Harris, Brian; John J. Sipos; 'Jonathan M. Rund';

Kuyler, Raphael Philip Cc: Phillip Musegaas

Subject:

Indian Point LRP - Consultation Regarding Riverkeeper's Motion for Leave to File Additional Exhibits

Dear Parties:

Riverkeeper plans on a filing a motion seeking leave to submit the following documents as exhibits and is circulating this email as part of the consultation process. These documents are relevant and have the potential to be discussed in the course of the evidentiary hearing on RK-TC-2 (Flow Accelerated Corrosion). Please let me know whether you oppose the motion and/or if you would like to discuss it. The documents, which have been previously disclosed to the parties (except for the prospective presentation of Dr. Hopenfeld), are:

1.) Digby D. Macdonald, The Point Defect Model for the Passive State, J. OF THE ELECTROCHEMICAL SOCIETY, Vol. 139, Issue No. 12 (Dec. 1992);

2.) G.J. Bignold, K. Garbett, R. Garnsey, & I.S. Woolsey, Erosion/Corrosion in Nuclear Steam Generators, in WATER CHEMISTRY OF NUCLEAR REACTOR SYSTEMS 5, Paper 1 (British Nuclear Engineering Society, 1980);

3.) Bryan Poulson and Russel Robinson, The Use of A Corrosion Process to Obtain Mass Transfer Data, SCIENCE, Vol.

26, No.4, pp. 265-280 (1986);

4.) Jianrong Wang, Siamack A. Shirazi, A CFD based correlation for mass transfer coefficient in elbows, INTL J. OF HEAT AND MASS TRANSFER, 44 (2001) 1817-1822; 5.) Power point presentation of Dr. Joram Hopenfeld to the ASLB in response to Entergy/Dr. Horowitz Presentation (prospective/ placeholder).

I am reachable today at the following phone number: 203-803-3778, should anyone wish to discuss this matter.

Thanks for your consideration.

Deborah Brancato, Esq.

Staff Attorney Riverkeeper, Inc.

20 Secor Road Ossining, New York 10562 P: (914) 478-4501 x230 F: (914) 478-4527 www.riverkeeper.org 3

This message contains information that may be confidential or privileged and is intended only for the individual or entity named above. No one else may disclose, copy, distribute or use the contents of this message. Unauthorized use, dissemination and duplication is strictly prohibited, and may be unlawful. All personal messages express views solely of the sender, which are not to be attributed to Riverkeeper, Inc. and may not be copied or distributed without this disclaimer. If you received this message in error, please notify us immediately at info@riverkeeper.org or call 914-478-4501.

4

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) October 12, 2012 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I hereby certify that, on this date, copies of Entergys Answer Opposing Riverkeepers Motion for Leave to File Additional Exhibits Concerning Contention RK-TC-2 (Flow Accelerated Corrosion) were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.

Signed (electronically) by Raphael P. Kuyler Raphael P. Kuyler, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5146 Fax: (202) 739-3001 E-mail: rkuyler@morganlewis.com DB1/ 71371898.2