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| issue date = 04/10/2015
| issue date = 04/10/2015
| title = Petitioners Reply in Support of Petition to Intervene on Entergy License Amendment Request for Approval of 10 CFR Part 50 Appendix G Equivalent Margins Analysis
| title = Petitioners Reply in Support of Petition to Intervene on Entergy License Amendment Request for Approval of 10 CFR Part 50 Appendix G Equivalent Margins Analysis
| author name = Lodge T J
| author name = Lodge T
| author affiliation = Beyond Nuclear, Don't Waste Michigan, Michigan Safe Energy Future - Shoreline Chapter (MSEF), Nuclear Energy Services, Inc
| author affiliation = Beyond Nuclear, Don't Waste Michigan, Michigan Safe Energy Future - Shoreline Chapter (MSEF), Nuclear Energy Services, Inc
| addressee name =  
| addressee name =  
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| document type = Legal-Petition To Intervene/Request for Hearing
| document type = Legal-Petition To Intervene/Request for Hearing
| page count = 9
| page count = 9
| project =
| stage = Request
}}
}}


=Text=
=Text=
{{#Wiki_filter:UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBefore the Atomic Safety and Licensing BoardIn the Matter of:
{{#Wiki_filter:UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of:                                     )      Docket No. 50-255-LA2 Entergy Nuclear Operations, Inc.                     )
Entergy Nuclear Operations, Inc.
(Palisades Nuclear Plant)
(Palisades Nuclear Plant)
Operating License Amendment Request)   Docket No. 50-255-LA2
                                                      )       April 10, 2015 Operating License Amendment Request
 
                                                      )
)
PETITIONERS REPLY IN SUPPORT OF PETITION TO INTERVENE ON ENTERGY LICENSE AMENDMENT REQUEST FOR APPROVAL OF 10 CFR PART 50 APPENDIX G EQUIVALENT MARGINS ANALYSIS Now come Beyond Nuclear (BN), Dont Waste Michigan (DWM), Michigan Safe Energy Future - Shoreline Chapter (MSEF), and the Nuclear Energy Information Service (NEIS) (hereafter collectively called Petitioners), and reply in support of their Petition to Intervene and for a Public Adjudication Hearing of Entergy License Amendment Request for Approval of 10 CFR Part 50 Appendix G Equivalent Margins Analysis. Petitioners respond in opposition to Entergys Answer Opposing Petition to Intervene and Request for Hearing (Entergy Answer) and the NRC Staff Answer to Petition to Intervene and Request for a Hearing Filed by Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future-Shoreline Chapter, and the Nuclear Energy Information Service (NRC Answer).
)          April 10, 2015
I. Unbridled Discretion Over Acceptance Criteria For RPV Metal Ductility and Rupture Propensity At The Hot Extreme, And Over Embrittlement Deterioration At The Cold Extreme, Of RPV Operation
)
: a. The Staff Is Abusing Its Regulatory Discretion As detailed below, instead of bright-line rules for determining how much loss of fracture toughness and how much of an increase in metallurgical embrittlement are too much, the NRC Staff has considerable discretion to determine what those standards are, on a Palisades-specific basis. Discretionary regulatory steps have produced the ad hoc regulation at Palisades which Petitioners justifiably have named Palisades rules.
    *****PETITIONERS' REPLY IN SUPPORT OF PETITION TO INTERVENEON ENTERGY LICENSE AMENDMENT REQUEST FOR APPROVALOF 10 CFR PART 50 APPENDIX G EQUIVALENT MARGINS ANALYSISNow come Beyond Nuclear ("BN"), Don't Waste Michigan ("DWM"), Michigan SafeEnergy Future - Shoreline Chapter ("MSEF"), and the Nuclear Energy Information Service
The ultimate problems at Palisades are severe and ongoing deterioration of metallurgical properties of the metals and welds of the RPV, both in terms of the vessels ability to withstand a rapid cooldown (embrittlement), or a rapid surge in heat during operations (fracture toughness/
("NEIS") (hereafter collectively called "Petitioners"), and reply in support of their "Petition to Intervene and for a Public Adjudication Hearing of Entergy License Amendment Request for Approval of 10 CFR Part 50 Appendix G Equivalent Margins Analysis."  Petitioners respond in opposition to "Entergy's Answer Opposing Petition to Intervene and Request for Hearing"
ductile tearing). At Palisades, those temperature extremes are moving closer together, such that there is an increasingly narrow range of operating temperatures which can be afforded to Entergy as it runs the reactor.
("Entergy Answer") and the "NRC Staff Answer to Petition to Intervene and Request for a Hearing Filed by Beyond Nuclear, Don't Waste Michigan, Michigan Safe Energy Future-Shoreline Chapter, and the Nuclear Energy Information Service" ("NRC Answer").I. Unbridled Discretion Over Acceptance Criteria For RPV MetalDuctility and Rupture Propensity At The Hot Extreme, And OverEmbrittlement Deterioration At The Cold Extreme, Of RPV Operationa. The Staff Is Abusing Its Regulatory Discretion As detailed below, instead of bright-line rules for determining how much loss of fracture toughness and how much of an increase in metallurgical embrittlement are too much, the NRC Staff has considerable discretion to determine what those standards are, on a Palisades-specific basis. Discretionary regulatory steps have produced the ad hoc regulation at Palisades whichPetitioners justifiably have named "Palisades rules." The ultimate problems at Palisades are severe and ongoing deterioration of metallurgicalproperties of the metals and welds of the RPV, both in terms of the vessel's ability to withstand a rapid cooldown (embrittlement), or a rapid surge in heat during operations (fracture toughness/
Contrary to what the Staff and Entergy maintain, the issue before the Atomic Safety and Licensing Board is not simply to discern whether a checklist of estimates and calculations has been properly completed as to embrittlement or fracture toughness; the task before the ASLB is to review the unbridled discretionary guesses and assumptions of the Staff from the standpoint of whether they comprise abuses of administrative discretion. Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment. Tahfs v.
ductile tearing). At Palisades, those temperature extremes are moving closer together, such that there is an increasingly narrow range of operating temperatures which can be afforded to Entergy as it runs the reactor. Contrary to what the Staff and Entergy maintain, the issue before the Atomic Safety andLicensing Board is not simply to discern whether a checklist of estimates and calculations has been properly completed as to embrittlement or fracture toughness; the task before the ASLB is to review the unbridled discretionary guesses and assumptions of the Staff from the standpoint of whether they comprise abuses of administrative discretion. "Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment."
Proctor, 316 F.3d 584, 593 (6th Cir. 2003) (quoting Amerinational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991)). Abuse of discretion has also been defined as an arbitrary, capricious, whimsical, or manifestly unreasonable judgment. FDIC v.
Tahfs v.Proctor, 316 F.3d 584, 593 (6th Cir. 2003) (quoting Amerinational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991)). Abuse of discretion has also been defined as"'an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.'"
Oldenburg, 34 F.3d 1529, 1555 (10th Cir.1994) (quoting United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir.1991)). There is abuse of discretion in a decision that provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements. Gurung v. Ashcroft, 371 F.3d 718, 720-21 (10th Cir. 2004) (internal quotation marks omitted).
FDIC v.Oldenburg, 34 F.3d 1529, 1555 (10th Cir.1994) (quoting United States v. Hernandez-Herrera
Petitioners demonstrate below the crucial points where the NRC Staff substitutes the power of discretionary calculations and projections of the state of the Palisades RPV for physical testing of the coupons in the RPV. Despite the Staffs insistence that no one and no regulation requires that physical testing take place, the evidence shows that Petitioners should be granted a hearing to demonstrate that the Staff choices here are arbitrary, manifestly unreasonable and irrational.
,952 F.2d 342, 343 (10th Cir.1991)). There is abuse of discretion in a decision that "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements."  Gurung v. Ashcroft, 371 F.3d 718, 720-21(10th Cir. 2004) (internal quotation marks omitted). Petitioners demonstrate below the crucial points where the NRC Staff substitutes thepower of discretionary calculations and projections of the state of the Palisades RPV for physical testing of the coupons in the RPV. Despite the Staff's insistence that no one and no regulation requires that physical testing take place, the evidence shows that Petitioners should be granted a hearing to demonstrate that the Staff choices here are arbitrary, manifestly unreasonable and irrational. b. Fracture ToughnessThe NRC Staff ("Staff") acknowledges (NRC Answer at 9) that regulation via 10 C.F.R.Part 50, Appendix G "does not contain specific requirements for demonstrating equivalent margins of safety when reactor beltline material Charpy upper-shelf energy falls below 50 ft-lbs."  To compensate for this void of explicit regulation, the NRC Staff utilizes Regulatory Guide 1.161, "Evaluation of Reactor Pressure Vessels with Charpy Upper-Shelf Energy Less than 50 ft-lb" to describe methods acceptable to the Staff for licensees to perform an EMA. NRC Answer at
: b. Fracture Toughness The NRC Staff (Staff) acknowledges (NRC Answer at 9) that regulation via 10 C.F.R.
: 9. The methods of analysis in RG 1.161 are based, in part, on the methods developed for the ASME Code, Section XI, Appendix K.
Part 50, Appendix G does not contain specific requirements for demonstrating equivalent margins of safety when reactor beltline material Charpy upper-shelf energy falls below 50 ft-lbs. To compensate for this void of explicit regulation, the NRC Staff utilizes Regulatory Guide 1.161, Evaluation of Reactor Pressure Vessels with Charpy Upper-Shelf Energy Less than 50 ft-lb to describe methods acceptable to the Staff for licensees to perform an EMA. NRC Answer at
Id. However, the Staff has determined that the methodsof Appendix K "are technically acceptable but not complete."
: 9. The methods of analysis in RG 1.161 are based, in part, on the methods developed for the ASME Code, Section XI, Appendix K. Id. However, the Staff has determined that the methods of Appendix K are technically acceptable but not complete. Id.
Id. Regulatory Guide 1.161, then is supposed to be "more accurate than the 50 ft-lb screeninglimit" while retaining "significant conservatisms."
Regulatory Guide 1.161, then is supposed to be more accurate than the 50 ft-lb screening limit while retaining significant conservatisms. Id. at 9-10. One such conservatism is to apply the assumption that flaws in the beltline material [are] significantly larger than have been observed in any nuclear RPV. NRC Answer at 10. In other words, although there are untested physical specimens at hand inside the Palisades RPV which could settle the question of whether PNP possesses unprecedented beltline flaws, or not, the Staff prefers to protect public health and safety by assuming flaws are there. Given the highly unique circumstances of Palisades, the Staff simply cannot tell whether its assumptions concerning flaws in the beltline are conservative estimates, or estimates which might not be at all conservative.
Id. at 9-10. One such "conservatism" is toapply the assumption that "flaws in the beltline material [are] significantly larger than have been observed in any nuclear RPV."  NRC Answer at 10. In other words, although there are untested physical specimens at hand inside the Palisades RPV which could settle the question of whether PNP possesses unprecedented beltline flaws, or not, the Staff prefers to protect public health and safety by assuming flaws are there. Given the highly unique circumstances of Palisades, the Staff simply cannot tell whether its assumptions concerning flaws in the beltline are "conservative estimates," or estimates which might not be at all "conservative."  Thus at Palisades, the Staff is indulging a sorely-untested hypothesis which is combinedwith considerable discretion respecting acceptance criteria. This situation recalls Arnold Gundersen's pronouncement that the continued operation of Palisades is a vast experiment.
Thus at Palisades, the Staff is indulging a sorely-untested hypothesis which is combined with considerable discretion respecting acceptance criteria. This situation recalls Arnold Gundersens pronouncement that the continued operation of Palisades is a vast experiment.
Declaration of Arnold Gundersen, hereafter "Gundersen Declaration" (attached to the original Petition) at p. 7, ¶ 19. While the Staff maintains that there is no compulsory examination required of the metal coupons remaining in the Palisades RPV, NRC Answer at 15, the abuse of discretion under the circumstances is manifest. Petitioners quoted Arnold Gundersen in their March 9 petition as follows:Basically, Entergy is proposing to operate its Palisades NPP well outside the normby proposing to reanalyze the deteriorating metallurgical conditions without using the readily available physical samples that are designed specifically for this purpose.
Declaration of Arnold Gundersen, hereafter Gundersen Declaration (attached to the original Petition) at p. 7, ¶ 19. While the Staff maintains that there is no compulsory examination required of the metal coupons remaining in the Palisades RPV, NRC Answer at 15, the abuse of discretion under the circumstances is manifest. Petitioners quoted Arnold Gundersen in their March 9 petition as follows:
(Emphasis added)Gundersen Declaration, ¶ 48.
Basically, Entergy is proposing to operate its Palisades NPP well outside the norm by proposing to reanalyze the deteriorating metallurgical conditions without using the readily available physical samples that are designed specifically for this purpose.
: c. Unfettered Discretion In Regulating Embrittlement Under 10 C.F.R. § 50.61aIn their Answers, Entergy and the NRC Staff repeatedly insist that Petitioners areimproperly raising challenges based, not upon EMA/Charpy USE/Appendix G issues, but are arguing matters related to the alternate embrittlement rule, 10 C.F.R. § 50.61a. However, Entergy stated the following in its 11/12/14" License Amendment Request for Approval of Palisades Nuclear Plant 10 CFR 50 Appendix G Equivalent Margins Analysis," Attachment 1  
(Emphasis added)
("Description and Assessment of Requested Change," at p.3/8 of .pdf, first paragraph, 6th line down [ML14316A193]):.. . The evaluation of these regions concluded that the materials are predicted toremain below the pressurized thermal shock screening criteria and the traditional beltline materials remain limiting.Obviously, pressurized thermal shock is very much within the scope of the instant proceeding, given Entergy's purposeful conclusion. The alternate embrittlement standard, 10 C.F.R. § 50.61a, at subsetion (d)(5) contains atroubling discretionary loophole for the NRC Staff in its regulatory decision-making:After consideration of the licensee's analyses, including effects of proposedcorrective actions, if any, submitted under paragraphs (d)(3) and (d)(4) of this section, theDirector may, on a case-by-case basis, approve operation of the facility with RTMAX-X values in excess of the PTS screening criteria. The Director will consider factorssignificantly affecting the potential for failure of the reactor vessel in reaching a decision.
Gundersen Declaration, ¶ 48.
The Director shall impose the modifications to equipment, systems and operations described to meet paragraph (d)(4) of this section. (Emphasis added)
: c. Unfettered Discretion In Regulating Embrittlement Under 10 C.F.R. § 50.61a In their Answers, Entergy and the NRC Staff repeatedly insist that Petitioners are improperly raising challenges based, not upon EMA/Charpy USE/Appendix G issues, but are arguing matters related to the alternate embrittlement rule, 10 C.F.R. § 50.61a. However, Entergy stated the following in its 11/12/14" License Amendment Request for Approval of Palisades Nuclear Plant 10 CFR 50 Appendix G Equivalent Margins Analysis, Attachment 1 (Description and Assessment of Requested Change, at p.3/8 of .pdf, first paragraph, 6th line down [ML14316A193]):
In a 2014 slideshow presented at the 619th Meeting of the Advisory Committee onReactor Safeguards, Mark Kirk of the NRC's Office of Nuclear Regulatory Research, and the principal author of 10 C.F.R. § 50.61a, presented a slide show entitled "Technical Brief on Regulatory Guidance on the Alternative PTS Rule (10 C.F.R. § 50.61a)."
                .. . The evaluation of these regions concluded that the materials are predicted to remain below the pressurized thermal shock screening criteria and the traditional beltline materials remain limiting.
See Official Transcriptof Proceedings, ADAMS No. ML14321A542, commencing at p. 202/268 of .pdf. The slide at p.
Obviously, pressurized thermal shock is very much within the scope of the instant proceeding, given Entergys purposeful conclusion.
242 of the transcript contains the following information:Use of 10 CFR 50.61a PTS screening criteria requires submittal for review andapproval by Director, NRR.For plants that do not satisfy PTS Screening Criteria, plant-specific PTSassessment is required.Must be submitted for review and approval by Director, NRR.
The alternate embrittlement standard, 10 C.F.R. § 50.61a, at subsetion (d)(5) contains a troubling discretionary loophole for the NRC Staff in its regulatory decision-making:
Guidance is not provided for this case Subsequent requirements (i.e., after submittal) are defined in paragraph (d) of 10CFR 50.61a. (Emphasis added).  
After consideration of the licensees analyses, including effects of proposed corrective actions, if any, submitted under paragraphs (d)(3) and (d)(4) of this section, the Director may, on a case-by-case basis, approve operation of the facility with RTMAX-X values in excess of the PTS screening criteria. The Director will consider factors significantly affecting the potential for failure of the reactor vessel in reaching a decision.
(Copy of above slide attached to this memorandum). For the one-of-a-kind Palisades, then, 10 C.F.R. § 50.61a affords an obscure bypass provision whereby the NRC Director of NRR may allow operations which actually exceed the PTS screening criteria , without adequate safety analysis, based on a "black box," arbitrary and capricious review, applying standards which are not publicly-disclosed until, at best, after the decision has been made.II. ArgumentThe Palisades RPV may be used within this permissive, narrowing temperature range,which contains increasing danger. Oddly, more than at any time in the 44-year life of the plant, the NRC Staff retains enormous discretion to authorize Palisades' continued operations despite ever more dangerous metallurgical conditions. The Staff and Entergy assail Petitioners' arguments as impermissible attacks on NRCregulations, and they marginalize Petitioners' concerns that the "conservative estimates" of the equivalent margin analysis (which might be "liberal" instead) are disingenuous. And they uphold the theoretical constructs of the EMA as superior to the scientific assurance that might be had from objective physical testing of Palisades' RPV metal coupons. Petitions urge that the broad discretion accorded the Staff to set acceptable "hot" and"cold" limits for Palisades has been abused in the EMA license amendment request. The ASLB must follow through with its responsibility to review the discretion exercised by the Staff on this matter; to decline to do so arguably amounts to improper delegation of discretionary responsibil-ity to the Staff. A Licensing Board may not delegate its obligation to decide controversies to the Staff. Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-298, 2 NRC 730, 737 (1975);
The Director shall impose the modifications to equipment, systems and operations described to meet paragraph (d)(4) of this section. (Emphasis added)
Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2),
In a 2014 slideshow presented at the 619th Meeting of the Advisory Committee on Reactor Safeguards, Mark Kirk of the NRCs Office of Nuclear Regulatory Research, and the principal author of 10 C.F.R. § 50.61a, presented a slide show entitled Technical Brief on Regulatory Guidance on the Alternative PTS Rule (10 C.F.R. § 50.61a). See Official Transcript of Proceedings, ADAMS No. ML14321A542, commencing at p. 202/268 of .pdf. The slide at p.
LBP-84-2, 19 NRC 36, 210 (1984), rev'd on other grounds, ALAB-793, 20 NRC 1591, 1627(1984), citing Perry, ALAB-298, 2 NRC at 737. If the Staff's underlying technical or factual findings are incomplete, or the record doesnot sufficiently explain those findings, the ASLB is free to second-guess them. DominionNuclear North Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-05-17, 62 NRC 5, 45 (2005);
242 of the transcript contains the following information:
USEC, Inc. (Am. Centrifuge Plant), LBP-07-6, 65 NRC 429, 438 (2007).The Staff and Entergy insist that compliance with the EMA rule of 10 C.F.R. Part 50,Appendix G is merely a computational matter, and that the ASLB need only assure itself that the numbers have been crunched. Petitioners submit that the issue for hearing is not the bare issue of whether a checklist of computations has been discharged; it is instead the question of whether Entergy's resort to 10 C.F.R. § 50.61a and provision of an equivalent margins analysis are rational, justifiable, non-arbitrary regulatory actions respecting the disturbingly unique Palisades reactor pressure vessel. Petitioners have demonstrated an issue of fact and a valid controversy with the proposed license amendment, and should be accorded a hearing thereon.Respectfully,               /s/ Terry J. Lodge           Terry J. Lodge (OH #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-7552 Tjlodge50@yahoo.com Counsel for Petitioners UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONBefore the Atomic Safety and Licensing BoardIn the Matter of:
Use of 10 CFR 50.61a PTS screening criteria requires submittal for review and approval by Director, NRR.
Entergy Nuclear Operations, Inc.
For plants that do not satisfy PTS Screening Criteria, plant-specific PTS assessment is required.
Must be submitted for review and approval by Director, NRR.
Guidance is not provided for this case Subsequent requirements (i.e., after submittal) are defined in paragraph (d) of 10 CFR 50.61a. (Emphasis added).
(Copy of above slide attached to this memorandum). For the one-of-a-kind Palisades, then, 10 C.F.R. § 50.61a affords an obscure bypass provision whereby the NRC Director of NRR may allow operations which actually exceed the PTS screening criteria , without adequate safety analysis, based on a "black box," arbitrary and capricious review, applying standards which are not publicly-disclosed until, at best, after the decision has been made.
II. Argument The Palisades RPV may be used within this permissive, narrowing temperature range, which contains increasing danger. Oddly, more than at any time in the 44-year life of the plant, the NRC Staff retains enormous discretion to authorize Palisades continued operations despite ever more dangerous metallurgical conditions.
The Staff and Entergy assail Petitioners arguments as impermissible attacks on NRC regulations, and they marginalize Petitioners concerns that the conservative estimates of the equivalent margin analysis (which might be liberal instead) are disingenuous. And they uphold the theoretical constructs of the EMA as superior to the scientific assurance that might be had from objective physical testing of Palisades RPV metal coupons.
Petitions urge that the broad discretion accorded the Staff to set acceptable hot and cold limits for Palisades has been abused in the EMA license amendment request. The ASLB must follow through with its responsibility to review the discretion exercised by the Staff on this matter; to decline to do so arguably amounts to improper delegation of discretionary responsibil-ity to the Staff. A Licensing Board may not delegate its obligation to decide controversies to the Staff. Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-298, 2 NRC 730, 737 (1975); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2),
LBP-84-2, 19 NRC 36, 210 (1984), revd on other grounds, ALAB-793, 20 NRC 1591, 1627 (1984), citing Perry, ALAB-298, 2 NRC at 737.
If the Staffs underlying technical or factual findings are incomplete, or the record does not sufficiently explain those findings, the ASLB is free to second-guess them. Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-05-17, 62 NRC 5, 45 (2005); USEC, Inc. (Am. Centrifuge Plant), LBP-07-6, 65 NRC 429, 438 (2007).
The Staff and Entergy insist that compliance with the EMA rule of 10 C.F.R. Part 50, Appendix G is merely a computational matter, and that the ASLB need only assure itself that the numbers have been crunched. Petitioners submit that the issue for hearing is not the bare issue of whether a checklist of computations has been discharged; it is instead the question of whether Entergys resort to 10 C.F.R. § 50.61a and provision of an equivalent margins analysis are rational, justifiable, non-arbitrary regulatory actions respecting the disturbingly unique Palisades reactor pressure vessel. Petitioners have demonstrated an issue of fact and a valid controversy with the proposed license amendment, and should be accorded a hearing thereon.
Respectfully,
                                                  /s/ Terry J. Lodge Terry J. Lodge (OH #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-7552 Tjlodge50@yahoo.com Counsel for Petitioners UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of:                                       )      Docket No. 50-255-LA2 Entergy Nuclear Operations, Inc.                       )
(Palisades Nuclear Plant)
(Palisades Nuclear Plant)
Operating License Amendment Request)  Docket No. 50-255-LA2
                                                        )       April 10, 2015 Operating License Amendment Request
 
                                                        )
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing PETITIONERS REPLY IN SUPPORT OF PETITION TO INTERVENE ON ENTERGY LICENSE AMENDMENT REQUEST FOR APPROVAL OF 10 CFR PART 50 APPENDIX G EQUIVALENT MARGINS ANALYSIS was served by me upon the parties to this proceeding via the NRCs Electronic Information Exchange system this 10th day of April, 2015.
)           April 10, 2015
                                                  /s/ Terry J. Lodge Terry J. Lodge (OH #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-7552 Tjlodge50@yahoo.com Counsel for Petitioners NDE Results Evaluation Steps J and K - Submittals
)
* Use of 10 CFR 50.61a PTS screening criteria requires submittal for review and approval by Director, NRR
    *****CERTIFICATE OF SERVICEI hereby certify that copies of the foregoing "PETITIONERS' REPLY IN SUPPORT OFPETITION  TO INTERVENE ON ENTERGY LICENSE AMENDMENT REQUEST FOR APPROVAL OF 10 CFR PART 50 APPENDIX G EQUIVALENT MARGINS ANALYSIS" was served by me upon the parties to this proceeding via the NRC's Electronic Information Exchange system this 10th day of April, 2015.   /s/ Terry J. Lodge Terry J. Lodge (OH #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-7552 Tjlodge50@yahoo.com Counsel for Petitioners 41*Use of 10 CFR 50.61a PTS screening criteria requires submittal for review and approval by Director, NRR
* For plants that do not satisfy PTS Screening Criteria, plant-specific PTS assessment is required
*For plants that do not satisfy PTS Screening Criteria, plant-specific PTS assessment is required
      - Must be submitted for review and approval by Director, NRR
-Must be submitted for review and approval by Director, NRR-Guidance is not provided for this case
      - Guidance is not provided for this case
*Subsequent requirements (i.e., after submittal) are defined in paragraph (d) of 10 CFR 50.61aNDE Results Evaluation Steps J and K -Submittals}}
* Subsequent requirements (i.e., after submittal) are defined in paragraph (d) of 10 CFR 50.61a 41}}

Latest revision as of 12:50, 5 February 2020

Petitioners Reply in Support of Petition to Intervene on Entergy License Amendment Request for Approval of 10 CFR Part 50 Appendix G Equivalent Margins Analysis
ML15100A446
Person / Time
Site: Palisades Entergy icon.png
Issue date: 04/10/2015
From: Lodge T
Beyond Nuclear, Don't Waste Michigan, Michigan Safe Energy Future - Shoreline Chapter (MSEF), Nuclear Energy Services
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-255-LA-2, ASLBP 15-939-04-LA-BD01, RAS 27499
Download: ML15100A446 (9)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of: ) Docket No. 50-255-LA2 Entergy Nuclear Operations, Inc. )

(Palisades Nuclear Plant)

) April 10, 2015 Operating License Amendment Request

)

PETITIONERS REPLY IN SUPPORT OF PETITION TO INTERVENE ON ENTERGY LICENSE AMENDMENT REQUEST FOR APPROVAL OF 10 CFR PART 50 APPENDIX G EQUIVALENT MARGINS ANALYSIS Now come Beyond Nuclear (BN), Dont Waste Michigan (DWM), Michigan Safe Energy Future - Shoreline Chapter (MSEF), and the Nuclear Energy Information Service (NEIS) (hereafter collectively called Petitioners), and reply in support of their Petition to Intervene and for a Public Adjudication Hearing of Entergy License Amendment Request for Approval of 10 CFR Part 50 Appendix G Equivalent Margins Analysis. Petitioners respond in opposition to Entergys Answer Opposing Petition to Intervene and Request for Hearing (Entergy Answer) and the NRC Staff Answer to Petition to Intervene and Request for a Hearing Filed by Beyond Nuclear, Dont Waste Michigan, Michigan Safe Energy Future-Shoreline Chapter, and the Nuclear Energy Information Service (NRC Answer).

I. Unbridled Discretion Over Acceptance Criteria For RPV Metal Ductility and Rupture Propensity At The Hot Extreme, And Over Embrittlement Deterioration At The Cold Extreme, Of RPV Operation

a. The Staff Is Abusing Its Regulatory Discretion As detailed below, instead of bright-line rules for determining how much loss of fracture toughness and how much of an increase in metallurgical embrittlement are too much, the NRC Staff has considerable discretion to determine what those standards are, on a Palisades-specific basis. Discretionary regulatory steps have produced the ad hoc regulation at Palisades which Petitioners justifiably have named Palisades rules.

The ultimate problems at Palisades are severe and ongoing deterioration of metallurgical properties of the metals and welds of the RPV, both in terms of the vessels ability to withstand a rapid cooldown (embrittlement), or a rapid surge in heat during operations (fracture toughness/

ductile tearing). At Palisades, those temperature extremes are moving closer together, such that there is an increasingly narrow range of operating temperatures which can be afforded to Entergy as it runs the reactor.

Contrary to what the Staff and Entergy maintain, the issue before the Atomic Safety and Licensing Board is not simply to discern whether a checklist of estimates and calculations has been properly completed as to embrittlement or fracture toughness; the task before the ASLB is to review the unbridled discretionary guesses and assumptions of the Staff from the standpoint of whether they comprise abuses of administrative discretion. Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment. Tahfs v.

Proctor, 316 F.3d 584, 593 (6th Cir. 2003) (quoting Amerinational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991)). Abuse of discretion has also been defined as an arbitrary, capricious, whimsical, or manifestly unreasonable judgment. FDIC v.

Oldenburg, 34 F.3d 1529, 1555 (10th Cir.1994) (quoting United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir.1991)). There is abuse of discretion in a decision that provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements. Gurung v. Ashcroft, 371 F.3d 718, 720-21 (10th Cir. 2004) (internal quotation marks omitted).

Petitioners demonstrate below the crucial points where the NRC Staff substitutes the power of discretionary calculations and projections of the state of the Palisades RPV for physical testing of the coupons in the RPV. Despite the Staffs insistence that no one and no regulation requires that physical testing take place, the evidence shows that Petitioners should be granted a hearing to demonstrate that the Staff choices here are arbitrary, manifestly unreasonable and irrational.

b. Fracture Toughness The NRC Staff (Staff) acknowledges (NRC Answer at 9) that regulation via 10 C.F.R. Part 50, Appendix G does not contain specific requirements for demonstrating equivalent margins of safety when reactor beltline material Charpy upper-shelf energy falls below 50 ft-lbs. To compensate for this void of explicit regulation, the NRC Staff utilizes Regulatory Guide 1.161, Evaluation of Reactor Pressure Vessels with Charpy Upper-Shelf Energy Less than 50 ft-lb to describe methods acceptable to the Staff for licensees to perform an EMA. NRC Answer at
9. The methods of analysis in RG 1.161 are based, in part, on the methods developed for the ASME Code,Section XI, Appendix K. Id. However, the Staff has determined that the methods of Appendix K are technically acceptable but not complete. Id.

Regulatory Guide 1.161, then is supposed to be more accurate than the 50 ft-lb screening limit while retaining significant conservatisms. Id. at 9-10. One such conservatism is to apply the assumption that flaws in the beltline material [are] significantly larger than have been observed in any nuclear RPV. NRC Answer at 10. In other words, although there are untested physical specimens at hand inside the Palisades RPV which could settle the question of whether PNP possesses unprecedented beltline flaws, or not, the Staff prefers to protect public health and safety by assuming flaws are there. Given the highly unique circumstances of Palisades, the Staff simply cannot tell whether its assumptions concerning flaws in the beltline are conservative estimates, or estimates which might not be at all conservative.

Thus at Palisades, the Staff is indulging a sorely-untested hypothesis which is combined with considerable discretion respecting acceptance criteria. This situation recalls Arnold Gundersens pronouncement that the continued operation of Palisades is a vast experiment.

Declaration of Arnold Gundersen, hereafter Gundersen Declaration (attached to the original Petition) at p. 7, ¶ 19. While the Staff maintains that there is no compulsory examination required of the metal coupons remaining in the Palisades RPV, NRC Answer at 15, the abuse of discretion under the circumstances is manifest. Petitioners quoted Arnold Gundersen in their March 9 petition as follows:

Basically, Entergy is proposing to operate its Palisades NPP well outside the norm by proposing to reanalyze the deteriorating metallurgical conditions without using the readily available physical samples that are designed specifically for this purpose.

(Emphasis added)

Gundersen Declaration, ¶ 48.

c. Unfettered Discretion In Regulating Embrittlement Under 10 C.F.R. § 50.61a In their Answers, Entergy and the NRC Staff repeatedly insist that Petitioners are improperly raising challenges based, not upon EMA/Charpy USE/Appendix G issues, but are arguing matters related to the alternate embrittlement rule, 10 C.F.R. § 50.61a. However, Entergy stated the following in its 11/12/14" License Amendment Request for Approval of Palisades Nuclear Plant 10 CFR 50 Appendix G Equivalent Margins Analysis, Attachment 1 (Description and Assessment of Requested Change, at p.3/8 of .pdf, first paragraph, 6th line down [ML14316A193]):

.. . The evaluation of these regions concluded that the materials are predicted to remain below the pressurized thermal shock screening criteria and the traditional beltline materials remain limiting.

Obviously, pressurized thermal shock is very much within the scope of the instant proceeding, given Entergys purposeful conclusion.

The alternate embrittlement standard, 10 C.F.R. § 50.61a, at subsetion (d)(5) contains a troubling discretionary loophole for the NRC Staff in its regulatory decision-making:

After consideration of the licensees analyses, including effects of proposed corrective actions, if any, submitted under paragraphs (d)(3) and (d)(4) of this section, the Director may, on a case-by-case basis, approve operation of the facility with RTMAX-X values in excess of the PTS screening criteria. The Director will consider factors significantly affecting the potential for failure of the reactor vessel in reaching a decision.

The Director shall impose the modifications to equipment, systems and operations described to meet paragraph (d)(4) of this section. (Emphasis added)

In a 2014 slideshow presented at the 619th Meeting of the Advisory Committee on Reactor Safeguards, Mark Kirk of the NRCs Office of Nuclear Regulatory Research, and the principal author of 10 C.F.R. § 50.61a, presented a slide show entitled Technical Brief on Regulatory Guidance on the Alternative PTS Rule (10 C.F.R. § 50.61a). See Official Transcript of Proceedings, ADAMS No. ML14321A542, commencing at p. 202/268 of .pdf. The slide at p.

242 of the transcript contains the following information:

Use of 10 CFR 50.61a PTS screening criteria requires submittal for review and approval by Director, NRR.

For plants that do not satisfy PTS Screening Criteria, plant-specific PTS assessment is required.

Must be submitted for review and approval by Director, NRR.

Guidance is not provided for this case Subsequent requirements (i.e., after submittal) are defined in paragraph (d) of 10 CFR 50.61a. (Emphasis added).

(Copy of above slide attached to this memorandum). For the one-of-a-kind Palisades, then, 10 C.F.R. § 50.61a affords an obscure bypass provision whereby the NRC Director of NRR may allow operations which actually exceed the PTS screening criteria , without adequate safety analysis, based on a "black box," arbitrary and capricious review, applying standards which are not publicly-disclosed until, at best, after the decision has been made.

II. Argument The Palisades RPV may be used within this permissive, narrowing temperature range, which contains increasing danger. Oddly, more than at any time in the 44-year life of the plant, the NRC Staff retains enormous discretion to authorize Palisades continued operations despite ever more dangerous metallurgical conditions.

The Staff and Entergy assail Petitioners arguments as impermissible attacks on NRC regulations, and they marginalize Petitioners concerns that the conservative estimates of the equivalent margin analysis (which might be liberal instead) are disingenuous. And they uphold the theoretical constructs of the EMA as superior to the scientific assurance that might be had from objective physical testing of Palisades RPV metal coupons.

Petitions urge that the broad discretion accorded the Staff to set acceptable hot and cold limits for Palisades has been abused in the EMA license amendment request. The ASLB must follow through with its responsibility to review the discretion exercised by the Staff on this matter; to decline to do so arguably amounts to improper delegation of discretionary responsibil-ity to the Staff. A Licensing Board may not delegate its obligation to decide controversies to the Staff. Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), ALAB-298, 2 NRC 730, 737 (1975); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 & 2),

LBP-84-2, 19 NRC 36, 210 (1984), revd on other grounds, ALAB-793, 20 NRC 1591, 1627 (1984), citing Perry, ALAB-298, 2 NRC at 737.

If the Staffs underlying technical or factual findings are incomplete, or the record does not sufficiently explain those findings, the ASLB is free to second-guess them. Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-05-17, 62 NRC 5, 45 (2005); USEC, Inc. (Am. Centrifuge Plant), LBP-07-6, 65 NRC 429, 438 (2007).

The Staff and Entergy insist that compliance with the EMA rule of 10 C.F.R. Part 50, Appendix G is merely a computational matter, and that the ASLB need only assure itself that the numbers have been crunched. Petitioners submit that the issue for hearing is not the bare issue of whether a checklist of computations has been discharged; it is instead the question of whether Entergys resort to 10 C.F.R. § 50.61a and provision of an equivalent margins analysis are rational, justifiable, non-arbitrary regulatory actions respecting the disturbingly unique Palisades reactor pressure vessel. Petitioners have demonstrated an issue of fact and a valid controversy with the proposed license amendment, and should be accorded a hearing thereon.

Respectfully,

/s/ Terry J. Lodge Terry J. Lodge (OH #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-7552 Tjlodge50@yahoo.com Counsel for Petitioners UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of: ) Docket No. 50-255-LA2 Entergy Nuclear Operations, Inc. )

(Palisades Nuclear Plant)

) April 10, 2015 Operating License Amendment Request

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing PETITIONERS REPLY IN SUPPORT OF PETITION TO INTERVENE ON ENTERGY LICENSE AMENDMENT REQUEST FOR APPROVAL OF 10 CFR PART 50 APPENDIX G EQUIVALENT MARGINS ANALYSIS was served by me upon the parties to this proceeding via the NRCs Electronic Information Exchange system this 10th day of April, 2015.

/s/ Terry J. Lodge Terry J. Lodge (OH #0029271) 316 N. Michigan St., Ste. 520 Toledo, OH 43604-5627 (419) 255-7552 Fax (419) 255-7552 Tjlodge50@yahoo.com Counsel for Petitioners NDE Results Evaluation Steps J and K - Submittals

  • Use of 10 CFR 50.61a PTS screening criteria requires submittal for review and approval by Director, NRR
  • For plants that do not satisfy PTS Screening Criteria, plant-specific PTS assessment is required

- Must be submitted for review and approval by Director, NRR

- Guidance is not provided for this case

  • Subsequent requirements (i.e., after submittal) are defined in paragraph (d) of 10 CFR 50.61a 41
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