ML102580009

2010/09/14-NRC Staff'S Opposition to New England Coalition'S Motion to Reopen the Hearing and Answer to Proposed New Contention and Affidavit of Roy K. Mathew

ML102580009
Person / Time
Site:	Vermont Yankee File:NorthStar Vermont Yankee icon.png
Issue date:	09/14/2010
From:	Matthew Smith, Mary Spencer, Subin L NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-271-LR, ASLBP 06-849-03-LR, RAS M-444
Download: ML102580009 (52)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LR AND ENTERGY NUCLEAR OPERATIONS, INC. )

) ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) )

NRC STAFFS OPPOSITION TO THE NEW ENGLAND COALITIONS MOTION TO REOPEN THE HEARING AND ANSWER TO PROPOSED NEW CONTENTION Mary B. Spencer Lloyd B. Subin Maxwell C. Smith Counsel for NRC Staff September 14, 2010

TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 DISCUSSION ................................................................................................................................ 3 I. NECs Motion Does Not Satisfy the Commissions Requirements for Reopening the Record ......................................................................................................................... 3 A. NECs Motion to Reopen Does Not Address a Significant Safety Issue ............... 5 B. NECs Motion to Reopen is Not Timely ................................................................. 8 C. NEC Has Not Demonstrated that a Materially Different Result is Likely ............. 12 II. NEC Has Not Met the Eight-Factor Balancing Test of 10 C.F.R. § 2.309(c) ................... 14 A. NEC Has Not Demonstrated Good Cause for Failure to File a New Contention on Time ............................................................................................. 15 B. Granting NECs Motion to File a New Contention Will Broaden the Issues And Delay the Proceedings ................................................................................. 16 III. NECs New Contention is Inadmissible ........................................................................... 17 A. NECs New Contention Does Not Meet 10 C.F.R. §2.341(f)(1)(iii) Because It Raises Ongoing Compliance Issues Not Subject to Resolution in a License Renewal Hearing ................................................................................... 18

1. Scope of Part 54 License Renewal Proceedings..................................... 18

2. NECs New Contention is Outside the Scope of Part 54 License Renewal ................................................................................................... 20 B. NECs New Contention Does Not Meet the Requirements of 10 C.F.R.

§ 2.309(f)(1)(v) Because It Does Not Contain a Sufficient Factual Basis ............ 24

1. Admissible Contentions Must Contain an Adequate Factual Basis ......... 24

2. NECs New Contention Lacks an Adequate Factual Basis...................... 25

i. The Vermont Yankee LRA Contains AMPs that Address Low and Medium Voltage Cables ................................................ 25 ii. NEC Has Not Demonstrated that the AMPs in the LRA are Inadequate to Manage the Effects of Aging ................................. 27

ii iii. The LRA Relies on Adequate Tests to Ensure that Entergy Will Adequately Manage the Effects of Age Related Degradation ................................................................................. 29 CONCLUSION ............................................................................................................................ 31

September 14, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LR AND ENTERGY NUCLEAR OPERATIONS, INC. )

) ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) )

NRC STAFFS OPPOSITION TO THE NEW ENGLAND COALITIONS MOTION TO REOPEN THE HEARING AND ANSWER TO PROPOSED NEW CONTENTION1 INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the Atomic Safety and Licensing Boards (Board)

July 12, 2010 Order (Setting Schedule for Remand Filings), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to New England Coalitions Motion to Reopen the Hearing and for the Admission of New Contentions (Motion) dated August 20, 2010.2 As explained below, NECs Motion does not satisfy the requirements of 10 C.F.R.

§ 2.326 for reopening the record and adding a new contention. Specifically, NECs Motion should be denied because it fails to identify a significant safety issue, is untimely, and is not likely to materially affect the outcome of the proceeding. Furthermore, NECs new contention does not meet the requirements of 10 C.F.R. §§ 2.309(c) and 2.309(f)(1). Because NEC has chosen not to submit a revised Contention 2 challenging the adequacy of Vermont Yankees 1

The title of NECs filing refers to contentions in the plural, but the filing itself contains only one proposed new contention.

2 Attached to NECs Motion was the Declaration and Affidavit of Paul Blanch (Aug. 20, 2010)

(Blanch Affidavit).

aging management program for metal fatigue and the instant Motion is unsupported, this proceeding should be terminated.

BACKGROUND By letter dated January 25, 2006, Entergy submitted to the U.S. Nuclear Regulatory Commission (NRC or Commission) an application for license renewal (LRA),3 pursuant to 10 C.F.R. Part 54, of Operating License No. DPR-28 for the Vermont Yankee Nuclear Power Station (Vermont Yankee). The current operating license expires on March 21, 2012.

As relevant to addressing the instant Motion, on July 8, 2010, the Commission issued an Order granting the Staffs petition for review of Entergy Nuclear Vermont Yankee, LLC. &

Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-08-25, 68 NRC 763 (2008). Entergy Nuclear Vermont Yankee, LLC. & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC ___ (Jul. 8, 2010)(slip op.). The Commission reversed the Boards decision in LBP-08-25 on Contentions 2A and 2B, which challenged the adequacy of environmentally adjusted cumulative usage factor (CUFen) analyses for certain reactor components. Because NEC had originally submitted a contention (Contention 2) challenging the adequacy of Vermont Yankees fatigue monitoring aging management program, and Vermont Yankees CUFen analyses are part of that program, the Commission ruled that NEC should have an opportunity to submit a revised version of original Contention 2 challenging the adequacy of aspects of Vermont Yankees program other than the CUFen analyses. See Vermont Yankee, CLI-10-17, 72 NRC at __ (slip op. at 40-41, 51-52).

The Commission, therefore, remanded the proceeding to the Board for the limited purpose of giving NEC and the State of Vermont (who adopted NECs contention) the opportunity to submit 3

Vermont Yankee Nuclear Power Station License Renewal Application (Jan. 25, 2006) (ADAMS Accession No. ML060300085). Entergy has since supplemented and amended its application several times.

a revised Contention 2. Id. at 69. In so doing, the Commission gave the Board jurisdiction over motions to reopen that might be submitted while the proceeding was on remand to the Board.

Id. at n.37.

On July 12, 2010, the Board issued an Order (Setting Schedule for Remand Filings)

(July 12 Order). Therein the Board established a deadline of August 20, 2010 for NEC and Vermont to file a revised Contention 2. The Board further established a deadline of August 20, 2010 for NEC and Vermont to file motions to reopen before the Board.

On August 20, 2010, NEC filed the instant Motion. NECs Motion does not seek to further contest or revise Contention 2. See Motion at 4. Instead, NECs Motion seeks reopening of the Vermont Yankee license renewal proceeding for purposes of admission of the following new contention:

[The] [a]pplicant has not demonstrated adequate aging management review and/or time-limited aging analysis nor does the applicant have in place an adequate aging management program to address the effects of moist or wet environments on buried, below grade, underground, or hard-to-access safety-related electric cables, thus the applicant does not comply with NRC regulation (10 C.F.R. § 54.21(a) and guidance and/or provide adequate assurance of protection of public health and safety (54.29(a)[)].

Motion at 8.

DISCUSSION I. NECs Motion Does Not Satisfy the Commissions Requirements for Reopening the Record NEC has failed to meet the requirements it must satisfy in order to reopen the record in this proceeding and gain admission of its proposed new contention. Pursuant to 10 C.F.R.

§ 2.326(a), a motion to reopen a closed record to consider additional evidence will not be granted unless all of the following criteria are satisfied:

(1) The motion must be timely, except that an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented.

(2) The motion must address a significant safety issue.

(3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

10 C.F.R. § 2.326(a); AmerGen Energy Co., LLC. (Oyster Creek Nuclear Generating Station),

CLI-08-28, 68 NRC 658, 668 (2008) (Oyster Creek I). In addition to the standards of 10 C.F.R.

§ 2.326(a), the motion must be accompanied by one or more affidavitsgiven by competent individuals with knowledge of the facts alleged or by experts in the appropriate disciplines which set forth the factual or technical bases, or both, for the movant's claims. 10 C.F.R.

§ 2.326(b). See also AmerGen Energy Co., LLC. (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235, 286, 291 (2009) (Oyster Creek II). The affidavit must address each of the criteria in § 2.326(a) and provide a specific explanation of why each criteria is met. 10 C.F.R. § 2.326(b); Oyster Creek I, CLI-08-28, 68 NRC at 672. The moving party bears the heavy burden of demonstrating that it meets all of the requirements of § 2.326. Id.

The new material in support of a motion to reopen must be set forth with a degree of particularity in excess of the basis and specificity requirements contained in 10 C.F.R. § 2.309(f) for admissible contentions. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-775, 19 NRC 1361, 1366 (1984), aff'd sub. nom.; San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), aff'd on reh'g en banc, 789 F. 2d 26 (D.C. Cir. 1986). Neither speculation, a showing of a possible violation of a regulatory requirement, nor a showing that a component is safety-related, is enough to demonstrate a significant safety issue. See Oyster Creek I, CLI-08-28, 68 NRC at 672. The evidence supporting a motion to reopen must not only be new, it must satisfy the Commissions admissibility standards set forth in 10 C.F.R. § 2.337(a)it must be "relevant, material, and reliable. Id. In other words, for a Board to grant a motion to reopen, the moving papers must be strong enough, in the light of any opposing filings, to avoid summary disposition. Private Fuel Storage, LLC. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005). In determining whether the evidence presented warrants reopening, the Board properly

evaluates the evidence submitted by the parties and weighs competing evidence to determine whether reopening of the record is warranted. AmerGen Energy Co., LLC. (Oyster Creek Nuclear Generating Station), LBP-08-12, 68 NRC 5, 16 (2008), affd Oyster Creek I, CLI-08-28, 68 NRC 658.

The standard for admitting a new contention after the record is closed is higher than the standard for ordinary late-filed contentions. Oyster Creek I, CLI-08-28, 68 NRC at 668.

Section 2.326(d) expressly requires that any motion to reopen that addresses a new contention must satisfy the requirements for nontimely contentions in § 2.309(c). This heavy burden created by the regulations is intentional. See Final Rule, Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,538 (May 30, 1986). 4 As a result, even if a contention meets the ordinary requirements for contention admissibility, that contention will be inadmissible if the proponent fails to satisfy the stricter requirements for admission of new contentions after the record has closed. Private Fuel Storage, CLI-05-12, 61 NRC at 350.

A. NECs Motion to Reopen Does Not Address a Significant Safety Issue NECs Motion does not satisfy the requirements of 10 C.F.R. §§ 2.326(a)(2) and (b) because the Motion doesnt raise a significant safety issue and is not accompanied by affidavits setting forth factual or technical bases for its assertion that the issue raised by the Motion is a significant safety issue. The Commission has stated that the expert affidavit accompanying the motion must articulate the factual and/or technical basis for the claim that the motion raises a 4

The Board and the Atomic Safety and Licensing Appeal Board (Appeal Board) have also noted that the reopening requirements apply to all issues for which reopening is sought, meaning that the reopened record is open solely to those matters which have been found to satisfy the § 2.326 reopening requirements. Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-85-19, 21 NRC 1707, 1720 (1985) (citing Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 2),

ALAB-486, 8 NRC 9, 22 (1978)). Thus, if the Board grants this motion, the record would only be reopened to allow additional evidence on the issue raised by NECs Motion. If NEC sought to raise any other issues, it would have to satisfy § 2.326 as to those issues as well.

significant safety issue. Oyster Creek I, CLI-08-28, 68 NRC at 670. This is because the most important of the three [§ 2.326(a) elements] to be addressed is that the motion raises a safety (or environmental) issue that is significant. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-940, 32 NRC 225, 243-44 (1990).5 Mr. Blanchs affidavit does not support NECs claim that its motion raises a significant safety issue. Mr. Blanchs affidavit does not state or explain the factual/technical bases for NECs claim. Instead, Mr. Blanchs affidavit focuses on the requirements of 10 C.F.R.

§ 2.309(f)(1). Thus, it appears that instead of providing an expert affidavit to present the factual and technical basis for its claim that its motion raises a significant safety issue, NEC relies upon NRC Inspection Report 05000271/2010002 (May 10, 2010) (ADAMS Access No.

ML101300363) (Inspection Report), an excerpt from an Electric Power Research Institute (EPRI) document dated June 2010,6 and NUREG/CR 7000 Essential Elements of an Electric Cable Monitoring Program (January 2010) (available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/contract/cr7000/cr7000.pdf) to demonstrate a significant safety issue. See Motion at 6.

5 This case interpreted the former 10 C.F.R. § 2.734, which contained the same three factors, in substantially identical form, that are now found at 10 C.F.R. § 2.326(a). The only difference between the two sets of factors is a minor grammatical change that broke up the one sentence-long 10 C.F.R.

§ 2.734(a)(1) into two sentences to form the current § 2.326(a)(1). Compare 51 Fed. Reg. at 19,539 (containing text of § 2.734(a)(1)) with 10 C.F.R. § 2.326(a)(1).

6 NEC did not provide an ADAMS Accession number, attach a copy, or provide a web-address for this document. The Staff believes that it has located the correct documents on EPRIs website. That document is Plant Support Engineering: Aging Management Program Guidance for Medium-Voltage Cable Systems for Nuclear Power Plants (June 2010) (available at http://my.epri.com/portal/server.pt?space=CommunityPage&cached=true&parentname=ObjMgr&parentid

=2&control=SetCommunity&CommunityID=404&RaiseDocID=000000000001020805&RaiseDocType=Ab stract_id). Nonetheless, the Staff objects to having to make guesses and assumptions as to the identity of the document the Motion is attempting to rely upon. See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 383 (2001) (We deem waived any arguments . . . not clearly articulated in the petition for review.)

These documents do not explain the factual/technical bases for NECs claim i.e., that Vermont Yankees LRA is deficient because it lacks an adequate TLAA or aging management program for safety-related electrical cables susceptible to wetting or submergence and this deficiency is a significant safety issue. Moreover the document NEC appears to rely upon the most, the Inspection Report, fails to support NECs claim. The Inspection Reports finding with respect to the cables was of very low safety significance, and no loss of operability or functionality was found. Inspection Report at 4. Neither NECs Motion nor Mr. Blanchs affidavit contests the NRCs conclusion of that the finding in the Inspection Report was of very low safety significance. Thus, the Inspection Report fails to support NECs claim. Because NECs Motion does not raise a significant safety issue, it should be denied.

Not only do NECs Motion and the attached Blanch Affidavit fail to demonstrate a significant safety issue, the attached Affidavit of Roy K. Mathew (Mathew Affidavit) explains that submergence of safety-related electric cables at Vermont Yankee is not a significant safety issue. Mathew Affidavit at ¶4-5. Mr. Mathew explains that 10 C.F.R. Part 50 requires licensees to test and maintain safety-related electric cables to ensure that they can perform their intended functions, and the NRCs ongoing oversight of licensee operations verifies licensee compliance.

Id. at ¶7. He states that the NRC has taken actions to better ensure licensee compliance with the requirements of 10 CFR Part 50 for inspection/maintenance and testing of electric cables, including issuance of NUREG/CR 7000, inspection procedures, and a draft regulatory guide. Id.

at ¶11. In addition, Mr. Mathew explains that Vermont Yankee included safety-related electric cables within the scope of license renewal review and will implement new aging management programs. Id. at ¶9-10. Mr. Mathew further notes that Vermont Yankee recently expanded the scope of one of those new aging management programs (the non-environmentally qualified inaccessible medium voltage cable program) to include inaccessible low-voltage cables (480V to 2kV) regardless of whether cable is subject to significant voltage, i.e., subject to system voltage more than 25% of the time. Id. at ¶12. See also Letter from Entergy to USNRC Re:

License Renewal Application Supplemental Information (Sept. 3, 2010) (ADAMS Accession No.

ML102500065) (September 2010 LRA Supplement Letter). Thus, NECs Motion does not raise a significant safety issue and should thus be denied.

B. NECs Motion to Reopen is Not Timely NECs Motion is not timely, and it does not present the sort of exceptionally grave issue that could exempt it from the timeliness requirements applicable to reopening records.

Accordingly, it does not satisfy 10 C.F.R. § 2.326(a)(1).

[F]or a reopening motion to be timely presented, the movant must show that the issue sought to be raised could not have been raised earlier. Diablo Canyon, ALAB-775, 19 NRC at 1366. See also Public Serv. Co. of New Hampshire (Seabrook Stations Units 1 & 2), CLI-09-06, 31 NRC 483, 487 (1990) (stating that [t]he Commission reasonably demands that contentions filed after the hearing is underwaylet alone concludedbe filed promptly after the receipt of information needed to frame these contentions). In addition, parties to NRC proceedings have an ironclad obligation to examine the application, and other publicly available documents, with sufficient care to uncover any information which could serve as the foundation for a contention.

Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 338 (1999). Although the Commissions regulations do not define timeliness, new or amended contention and motions are generally deemed timely if filed within 30 days of the availability of the new information supporting the new or amended contention or motion to reopen. See, e.g.,

Oyster Creek I, CLI-08-28, 68 NRC at 669-70 n.44 (finding motion to reopen and add new contention filed within 30 days of new information timely); Oyster Creek II, CLI-90-7, 69 NRC 288 (finding motion to reopen filed within 30 days of new information timely); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) et al., CLI-08-23, 68 NRC 461, 485-68 (2008) (Oyster et al.) (finding motion to reopen based on document that had been available for four months untimely). In addition, this Boards initial scheduling order for this proceeding establishes that new or amend contentions filed within 30 days of the date when the new and

material information on which it is based first became available will be deemed timely. Initial Scheduling Order (Nov. 17, 2006) (unpublished) (ADAMS Accession No. ML063210212) (Initial Scheduling Order) at 7.

NEC asserts that it has brought the instant Motion in accordance with the Commissions July 8, 2010 Order. NEC goes on to explain that its Motion is timely because at the time the Inspection Report was issued, [the] litigants were still waiting the Commissions decision on NEC and Staff Motion[s] for Review and since issuance of the Inspection Report, NEC has diligently pursued additional evidence concerning Entergys approach to addressing the problem of aging acceleration due to wetting and submergence of safety-related electrical cables . . . . . Motion at 5. These assertions, however, do not demonstrate that the instant Motion is timely.

First, contrary to NECs suggestion, the pendency of petitions for Commission review does not absolve litigants of their responsibility of ensuring that motions to reopen are filed promptly when new information becomes available. Commission case law requires that motions to reopen closed proceedings and add new contentions must be timely filed. Furthermore, motions to reopen and add new contentions as well as motions simply to reopen have been filed notwithstanding the pendency of petitions for Commission review. See, e.g., Oyster Creek I, CLI-08-27, 68 NRC at 661 & n.7 (addressing a motion to reopen and add a new contention on metal fatigue notwithstanding pending petition for review of the Licensing Boards initial decision on sole admitted contention in AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) LBP-07-17, 66 NRC 327 (2007); Oyster Creek II, CLI-09-7, 69 NRC at 286-295 (addressing a motion to reopen based upon an NRC inspection report which allegedly invalidated the Boards decision in LBP-07-17 filed while a petition for review of LBP-07-17 was pending before the Commission); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) et. al., CLI-08-23, 68 NRC 461, 485-68 (2008) (addressing a motion to reopen included in a petition (to which NEC was a party) for suspension of the Oyster Creek, Indian Point,

Pilgrim, and Vermont Yankee license renewal proceedings and finding the motion to reopen untimely because the document supporting the motion had been available for four months). In Oyster Creek I and Oyster Creek II, motions to reopen were treated as timely because they were filed within 30 days of the availability of new information. Oyster Creek I, CLI-08-28, 68 NRC at 669-70 n.44; Oyster Creek II, CLI-09-7, 69 NRC 288. See also Initial Scheduling Order at 7 (establishing a 30-day deadline for new or amended contentions). Even under the most generous interpretation, NECs Motion is late because the most recent document cited by NEC, the EPRI document, was available more than 30 days before NEC filed the instant Motion.

Second, neither the Commissions July 8, 2010 Order nor the Boards July 12, 2010 Order absolved NEC of its obligation to act promptly on new information. The Commission simply observed that NEC and Vermont are free to file motions to reopen pursuant 10 C.F.R.

§ 2.326. The purpose of this statement was to give the Board jurisdiction to consider motions to reopen while the case is on remand to the Board.7 The statement in no way means that NEC and Vermont were not free to file motions to reopen prior to the Commissions order. In fact, the Commission has stated that motions to reopen may be filed up until a license is actually issued.

Private Fuel Storage, LLC. (Independent Spent Fuel Storage Installation), CLI-06-3, 63 NRC 19, 23-24 (2006). Similarly, the Boards July 12 Order did not change NECs obligations with respect to timeliness of motions to reopen. The Order established a schedule for NEC or Vermont to file a revised Contention 2 and established a deadline for filing motions to reopen before the Board.

7 This statement was necessary because once a petition for Commission review is filed, jurisdiction passes from the Board to the Commission. Therefore, a motion to reopen filed while a petition for review is pending should be filed before the Commission, not the presiding Board. Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-00-25, 52 NRC 355, 357 n.3 (2000).

Third, NEC has long had sufficient information to file this Motion and contention. NEC claims the first document indicating that the subject of [NECs] proposed new contention might be an issue at Vermont Yankee was . . .[the Inspection Report] . . . which was published on May 10, 2010 . . . . Motion at 5. However, NEC references documents that have been available since the beginning of this proceeding as bases for its contention: Information Notice 1989-63 (September 1989) and Information Notice 2002-12 (March 2002). Motion at 14. NEC also references as bases for its contention documents that, although not available at the time contentions were initially due, have been available for one and half to three years: Generic Letter 2007-01(February 2007); the Staffs SER (February 2008)8; and Generic Letter 2007-01 (Summary Report) (November 2008). Motion at 14. These documents, NEC asserts, gave Entergy ample notice of issues with submergence of electric cables and yet Entergy did not consider them in developing its aging management programs. Motion at 14. If these documents gave Entergy ample notice of this issue, then they also gave NEC ample notice of this issue for at least a year and a half, making NECs new contention untimely.

Further support for the proposition that NEC had sufficient information to submit this Motion and contention some time ago is the fact that the State of New York filed similar contentions challenging the adequacy of Indian Points aging management programs for electric cables in the Indian Point license renewal proceeding in 2007. See New York State Notice of Intent to Participate and Petition to Intervene (November 30, 2007) (ADAMS Accession No.

ML073400187).

8 NUREG-1907, Vol. 1 & 2, Safety Evaluation Report Related to the License Renewal of Vermont Yankee Nuclear Power Station (May 2008) (ADAMS Accession Nos. ML081430057 (Vol 1) and ML081430109 (Vol. 2)) (SER).

Finally, even assuming for the sake of argument that NEC did not have sufficient information to formulate a contention on submergence of electric cables until the May 10, 2010 Inspection Report, NECs Motion should have been filed in June instead of August.

Because NECs Motion is not timely, a motion to reopen should not granted unless, in the discretion of the presiding officer, the issue presented is exceptionally grave. See 10 C.F.R.

§ 2.326(a)(1). As explained above in Section I.A, NECs Motion does not raise a significant safety issue. Therefore, it cannot reasonably qualify as an exceptionally grave issue.

Consequently, NECs Motion should be denied because it does not satisfy 10 C.F.R.

§ 2.326(a)(1).

C. NEC Has Not Demonstrated that a Materially Different Result is Likely NECs Motion further fails to satisfy § 2.326(b) because it fails to demonstrate via affidavit that the proposed contention would likely lead to a materially different result in the Vermont Yankee license renewal proceeding, as is required under § 2.326(a)(3). To satisfy

§ 2.326(a)(3), the evidence supporting NECs new contention must show a likelihood that the contention would be resolved in NECs favor such that Vermont Yankees LRA would be conditioned or denied. Oyster Creek, LBP-08-12, 68 NRC at 22, affd Oyster Creek I, CLI 28, 68 NRC at 658. NEC asserts that it is reasonable to assume, based on the weight of the evidence and the safety significance of the issue that the Board would have rejected Entergys LRA . . . . Motion at 7. NEC then refers to the EPRI document quoted on page 6 of its Motion, the Inspection Report, and Mr. Blanchs affidavit. Motion at 7. Contrary to NECs assertion, the weight of the evidence does not demonstrate that a materially different result is likely. Neither NECs Motion nor Mr. Blanchs affidavit explains how NECs evidence demonstrates that NEC would likely prevail on its new proposed contention. Moreover, as explained in Section I.A above, NECs Motion and the attached Blanch Affidavit do not raise a significant safety issue.

The Inspection Reports Green, very low safety significance finding does not demonstrate that Vermont Yankees AMPs for electric cables are inadequate,9 and therefore NEC is not likely to prevail on its contention. This is particularly the case because the inspection was not conducted to review the adequacy of Vermont Yankees aging management programs, and the report does not mention aging management, AMP, or license renewal.

Rather the Inspection Report provides the results of the NRCs on-going oversight of Vermont Yankee in accordance with the Reactor Oversight Process for the first quarter of 2010. See Inspection Report at 3; Mathew Affidavit at ¶3, ¶5.

The portion of the EPRI document quoted on page 4 of NECs Motion on its own is insufficient to demonstrate that NEC is likely to prevail on its new contention. Neither NECs Motion nor Mr. Blanchs affidavit explains how the quoted passage of the EPRI document is relevant to the adequacy of Vermont Yankees license renewal AMPs, let alone how the document demonstrates that Vermont Yankees electric cable AMPs are inadequate. In fact, Mr. Blanch does not even mention the EPRI document in his affidavit. Parties to NRC proceedings have an obligation to set forth clear and coherent arguments such that it is unnecessary to speculate as to what a pleading is supposed to mean. Oyster Creek II, CLI 7, 69 NRC at 277 & n. 240. NECs failure to set forth a clear and coherent argument precludes a conclusion that NEC would likely prevail on its new contention.

Similarly, Mr. Blanchs affidavit does not demonstrate that NEC would likely prevail on this new contention because his affidavit does not acknowledge the aging management programs for electric cables in Vermont Yankees LRA or explain why the periodic monitoring and testing included in those programs during the period of extended operation in addition to on-going maintenance requirements under Part 50 are inadequate to ensure that safety-related 9

See Mathew Affidavit at ¶4.

electric cables can perform their intended functions. Vermont Yankee will implement three new aging management programs for non-environmentally qualified electric cables prior to the period of extended operation. These programs are discussed in Sections 3.0.3.1.3, 3.0.3.1.4, and 3.0.3.1.5 of the Staffs SER and include periodic testing and inspection of accessible and inaccessible electric cables that may be subject to adverse environments, including submergence. Vermont Yankee recently amended its license renewal application to expand the scope of the program described in SER Section 3.0.3.1.3 to include low voltage (480V to 2kV) cables. See September 2010 LRA Supplement Letter. In addition to these aging management programs, Vermont Yankee is required by 10 C.F.R. § 50.63(a)(1) to monitor the performance or condition of structures, systems, or components . . . in a manner sufficient to provide reasonable assurance that such structures, systems, and components . . . are capable of fulfilling their intended functions. Furthermore, Mr. Blanch does not to support his assertion that an effective aging management program for electric cables must preclude submergence.

Instead, Mr. Blanch proceeds to quote extensively from NUREG/CR 7000. See Blanch Affidavit at ¶31-33 (pages 10-13). The quoted passages do not demonstrate that it is necessary to preclude the possibility of submergence to ensure that safety-related cables can perform their intended functions. Mathew Affidavit at ¶8. Consequently, NEC has failed to demonstrate that a materially different result is likely if its Motion is granted.

II. NEC Has Not Met the Eight-Factor Balancing Test of 10 C.F.R. § 2.309(c)

As noted in the Boards July 12, 2010 Order, 10 C.F.R. § 2.326(d) states that [a] motion to reopen which relates to a contention not previously in controversy among the parties must also satisfy the requirements for nontimely contentions in § 2.309(c). See also, Oyster Creek I, CLI-08-29, 68 NRC at 668 (stating, [a]s subsection (d) makes clear, where a motion to reopen proposes a contention not previously part of the proceeding, the requirements for late-filed contentions set out in 10 C.F.R. § 2.309(c) must also be satisfied.)

The eight factors of § 2.309(c)(1) are:

(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record.

10 C.F.R. § 2.309(c)(1). While petitioners must show favorable balance among the [eight]

factors, the first factor is given the most weight.10 If a petitioner cannot show good cause, the balance of the other factors must be compelling. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 565 (2005).

Although NEC has addressed each of the eight factors, the Motion should be denied because the requirements do not balance in favor of admission.11 10 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-05-32, 62 NRC 813 (2005) (citing State of New Jersey (Department of Law and Public Safety), CLI-93-25, 38 NRC 289, 296 (1993)); Vermont Yankee LBP-06-14, 63 NRC at 581.

11 The Staff does not contest NECs arguments regarding 10 C.F.R. § 2.309(c)(1)(ii)-(iv) requirements as Boards have previously found these criteria to be not particularly applicable given that they focus on the status of the requestor/petitioner seeking admission to a proceeding (e.g., standing, nature of the requestor/petitioners affected interest) rather than on new contentions submitted by admitted parties. Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.

(continued. . .)

A. NEC Has Not Demonstrated Good Cause for Failure to File a New Contention on Time NEC claims good cause by stating that the information supporting its Motion was not manifest until recently . . . . Motion at 23. As explained above in Section I.B., NEC has had sufficient information to put it on notice of the issue of submergence of electric cables and the contents of Vermont Yankees AMPs for electric cables for some time and at the very latest should have file the instant Motion promptly after the May 10, 2010 Inspection Report. NEC has not shown good cause for delaying until August 20, 2010, to file the instant Motion.

B. Granting NECs Motion to File a New Contention Will Broaden the Issues and Delay the Proceedings Although the Commission does not afford 10 C.F.R. § 2.309(c)(1)(vii) the same amount of weight as the good cause factor, the Commission has placed a significant amount of weight on this factor due to the policy of expediting the handling of license renewal applications -

which rests on the lengthy lead time necessary to plan available sources of electricity.

Millstone, CLI-05-24, 62 NRC at 566-67. Where the granting of a petition to reopen the record and add a new contention would necessarily broaden the issues . . . and delay the proceeding thus requiring the reopening [of] a closed administrative adjudicatory record the Commission has found § 2.309(c)(1)(vii) to weigh against the petitioner. Id. at 566. Further, the Board presiding over the hearing on Vermont Yankees extended power uprate license amendment expanded on this idea when it declined to admit a new, late-filed contention even before the hearing had begun, stating:

Among the remaining factors, NEC's greatest stumbling block is 10 C.F.R. § 2.309(c)(1)(vii) - the fact that admission of this

(. . .continued)

(Vermont Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 581 (2006). Further, the Staff does not contest NEC on § 2.309(c)(1)(vi) because it has shown that its interests are not adequately represented by the other parties since it is the only intervenor remaining in the proceeding. Id.

nontimely contention at this late date will substantially broaden and delay this proceeding. If NEC Contention 5 were admitted, the Board either would be forced to significantly delay the litigation and hearing on the admitted contentions, or would need to set a second, later schedule for the litigation of Contention 5. NEC's suggestion that the new contentions could be admitted without substantially disrupting the existing schedule is plainly wrong.

Vermont Yankee, LBP-06-14, 63 NRC at 581 (internal citations omitted).

NECs assertion that this single new contention will not delay or broaden the scope of this proceeding because it is focused on one aspect of aging management of components and is not highly technical in nature is inapposite. NECs contention, however, clearly raises a new issue that has not been previously addressed by the parties. As explained above, NECs Motion is not timely. NEC had sufficient information to raise the issue presented by its Motion long ago. Allowing NEC to belatedly litigate this issue now would thus delay this proceeding because, but-for NECs submission of this Motion, this proceeding would be terminated.

Although NEC expresses a willingness to discuss settlement and/or work towards a near-term resolution of the new contention (Motion at 24), nothing binds NEC to its current statement nor guarantees that a proceeding on NECs new contention could be conducted expeditiously.

Thus, the addition of this contention would broaden the issues and delay the proceeding.

Therefore, by failing to first meet the good cause requirement and then to demonstrate a compelling balance of the other factors, Millstone, CLI-05-24, 62 NRC at 565, NEC has not satisfactorily met the eight-factor balancing test.

III. NECs New Contention Is Inadmissible In order to be admissible, NECs contention must satisfy the requirements not only of

§ 2.309(c), in accordance with § 2.326(d), but also of 10 C.F.R. § 2.309(f)(1).12 In addition, 12 Section 2.309(f)(1) requires a petition to file a new contention to:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (continued. . .)

because the record in this proceeding is closed, NEC must set forth the basis of its new contention with a degree of particularity in excess of the basis and specificity requirements contained in 10 C.F.R. § 2.714(b) [now § 2.309(f)(1)] for admissible contentions. Diablo Canyon, ALAB-775, 19 NRC at 1366. See also Oyster Creek I, CLI-08-28, 68 NRC at 668 (

Commission practice holds that the standard for admitting a new contention after the record is closed is higher than for an ordinary late-filed contention.). Evidence in support of NECs new contention must be more than mere allegations; it must be tantamount to evidence. Diablo Canyon, ALAB-775, 19 NRC at 1366. In other words, the evidence must comport with the requirements for admissible evidence at hearing in § 2.337it must be relevant, material, and reliable. See id at 1366-67.

As explained, below, NECs new contention does not satisfy the requirements of 10 C.F.R. §§ 2.309(f)(1)(iii) and (v). That is, NEC contention is not within the scope of the proceeding and does not have an adequate factual basis.

A. NECs New Contention Does not Meet 10 C.F.R. § 2.341(f)(1)(iii) Because It Raises Ongoing Compliance Issues Not Subject to Resolution in a License Renewal Hearing

1. Scope of Part 54 License Renewal Proceedings The scope of Part 54 license renewal is delineated by 10 C.F.R. § 54.29(a)(1). That

(. . .continued)

(ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.

section reads:

A renewed license may be issued by the Commission up to the full term authorized by § 54.31 if the Commission finds that:

(a) Actions have been identified and have been or will be taken with respect to the matters identified in Paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations. These matters are:

(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under § 54.21(a)(1); and (2) time-limited aging analyses that have been identified to require review under

§ 54.21(c).

The Commission has noted, Part 54 centers the license renewal reviews on the most significant overall safety concern posed by extended reactor operation - the detrimental effects of aging. Florida Power & Light Company (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 7 (2001). In contrast, other safety issues were thoroughly reviewed when the facility was first licensed, and now are routinely monitored and assessed by ongoing agency oversight and agency-mandated licensee programs. To require a full reassessment of these issues at the license renewal stage, the Commission found, would be both unnecessary and wasteful. Id. Therefore, the Commission stated, License renewal reviews are not intended to duplicate the Commission's ongoing review of operating reactors. Id. (quoting Final Rule; Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,946 (Dec. 13, 1991). Consequently, the Commission concluded that the decision to issue a renewed operating license need not involve a licensing review of the adequacy of or compliance with a plants current licensing basis (CLB). 56 Fed. Reg. at 64,960.

The Commission embodied this determination in 10 C.F.R. § 54.30, which states:

(a) If the reviews required by § 54.21 (a) or (c) show that there is not reasonable assurance during the current license term that licensed activities will be conducted in accordance with the CLB, then the licensee shall take measures under its current license, as appropriate, to ensure that the intended function of

those systems, structures or components will be maintained in accordance with the CLB throughout the term of its current license.

(b) The licensee's compliance with the obligation under Paragraph (a) of this section to take measures under its current license is not within the scope of the license renewal review.

Consequently, the appropriate focus for license renewal proceedings is aging management, not questions already subject to the NRCs ongoing oversight of operating reactors. 56 Fed. Reg.

at 64,946. The Commission and Licensing Boards have routinely recognized this view of the scope of license renewal. E.g. Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC __ (Jun. 17, 2010)(slip.

op. at 4-5); Entergy Nuclear Operations, Inc.(Indian Point , Units 2 and 3), LBP-08-13, 68 NRC 43, 67-68, 73, 75-76 (2008). As the Board pointed out in Indian Point, the CLB is not subject to attack in a license renewal proceeding. Indian Point, LBP-08-13, 68 NRC at 68. Finally, adjudicatory proceedings on license renewal applications share the same scope as the NRCs review, described above. Turkey Point, CLI-01-17, 54 NRC at 10.

2. NECs New Contention is Outside the Scope of Part 54 License Renewal NECs New Contention reads:

Applicant has not demonstrated adequate aging management review and/or time-limited aging analysis nor does the applicant have in place an adequate aging management program to address the effects of moist or wet environments on buried, below grade, underground, or hard-to-access safety-related electrical cables, thus the applicant does not comply with NRC regulation (10 CFR §54.21 (a) and guidance and/or provide adequate assurance of protection of public health and safety (54.29(a)[)].

Motion at 8. NEC states, This contention is based on the fact that the applicant has recently discovered safety related electrical cables, not qualified for wet conditions, submerged in water, thus providing a challenge to the integrity of cable insulation and cable operability. Id. at 9.13 13 The Staff notes that whether an electric cable is designed for a particular environment (wet or submerged) is not the same as whether a cable must be environmentally qualified for harsh, accident (continued. . .)

NEC asserts that the applicants aging management plan as provided in the LRA does not address deficiencies now apparent in their current wholly inadequate monitoring program. Id.

NEC contends that the new contention is within the scope of license renewal because 10 C.F.R. § 54.21(a) requires the applicant to perform an aging management review for electrical cables and connections. The NRC Staff agrees that safety-related electrical cables and connections are within the scope of license renewal and are subject to aging management review per 10 C.F.R. § 54.4 and 54.21. Mathew Affidavit at ¶9. Consequently, Entergy has already proposed adequate AMPs to address the effects of aging on medium and low voltage non-environmentally qualified electric cables. LRA Section B.1.17 describes an AMP that is consistent with the GALL AMP XI.E3 (XI.E3). SER at 3-17. That AMP requires the Applicant to undertake periodic actions like inspecting for water collection in cable manholes and conduit and draining water as needed . . . to prevent cable exposure to significant moisture. In-scope low and medium-voltage cables exposed to significant moisture and voltage will be tested for an indication of the condition of the conductor insulation. Id. at 3-18; September 2010 LRA Supplement Letter.

In addition, LRA Section B.1.19 describes an AMP that is consistent with the GALL AMP XI.E1 (XI.E1). That AMP will assure maintenance of the intended functions of insulated cables and connections exposed to adverse environments of heat, radiation, and moisture consistent with the CLB through the period of extended operation. Id. at 3-26. Pursuant to XI.E1, A representative sample of accessible insulated cables and connections within the scope of license renewal will be inspected visually for such cable and connection jacket surface anomalies as embrittlement, discoloration, cracking, or surface contamination. Id. at 3 3-(. . .continued) conditions in accordance 10 C.F.R. § 50.49. Mathew Affidavit at 6. The requirements of 10 C.F.R.

§ 50.49 do not apply to the cables discussed in either NECs Motion or the Blanch Affidavit. Id.

27. If an unacceptable condition or situation is identified for a cable or connection in the inspection sample, a determination is made as to whether the same condition or situation is applicable to other accessible or inaccessible cables or connections. Id. at 3-27. Corrective actions may include, but are not limited to, testing, shielding or otherwise changing the environment, or relocation or replacement of the affected cable or connection. NUREG-1801, Vol. 2, Rev. 1, Generic Aging Lessons Learned (GALL) Report, Tabulation of Results, at XI E-2 (September 2005) (ADAMS Accession No. ML052110006). Consequently, the LRA addresses the effects of aging management on electrical cables and connections.

NECs contention claims that the Applicant has failed to propose a license condition that would encompass the newly discovered vulnerability of its safety-related cables to wetting, submergence and a resulting increased rate of aging. Motion at 13. But, the Inspection Report NEC relies on to show the newly discovered vulnerability demonstrates that this issue is already incorporated into the Vermont Yankee CLB and subject to the NRCs ongoing oversight process. Specifically, the provisions of the Commission regulations referenced by NEC in support of its new contention illustrate that maintenance of safety-related electric cables is already part of Vermont Yankees CLB and will, by operation of 10 C.F.R. 54.33, continue to be part of Vermont Yankees CLB during any period of extended operation. See Motion at 9-10 referring to 10 C.F.R. §§ 50.4914 and 50.65, 10 C.F.R. Part 50 Appendix A General Design Criteria 2, 4, 17, and 1815, and 10 C.F.R. Part 50 Appendix B Criteria II, V, XI, and XVI.

14 The cables discussed in the Inspection Report and within the scope of GALL AMPs XI.E1-E3 are not subject to the environmental qualification requirements of 10 C.F.R. § 50.49. See Mathews Affidavit at ¶6, ¶10. Vermont Yankees AMP for environmental qualification is in Section 3.0.3.1.1 of the Staffs SER was reviewed for consistency with GALL AMP X.E1. Id. at ¶10.

15 The construction permit for Vermont Yankee was issued by the Atomic Energy Commission (AEC) on December 11, 1967 and the plant was designed and constructed based on the proposed General Design Criteria (draft GDCs) published in the Federal Register by the AEC on July 11, 1967 (32 Fed. Reg. 10213). In SRM-SECY-92-223 Resolution of Deviations Identified during the System Evaluation Program (Sept. 18, 1992) (ADAMS Accession No. ML003763736), the Commission decided (continued. . .)

Similarly the documents NEC relies upon in support of its new contention illustrate that Vermont Yankees maintenance of electric cable is subject to ongoing NRC oversight. See Motion at 14 (referencing, in addition to the Inspection Report, which is part of on-going NRC oversight, Information Notice 1989-63, Information Notice 2002-12 and Generic Letter 2007-01). Because NECs new contention claims that the LRA is inadequate in light of the issue identified by the Inspection Report, it is a challenge to the Vermont Yankee CLB and therefore outside the scope of this proceeding.

The Inspection Report found a violation of very low safety significance because Entergy did not select and review safety-related cables suitable for . . . continu[ed] submergence and failed to demonstrate that the cables would remain operable. Inspection Report at 19. The violation arose from an inspection conducted by Entergy of underground cable access points to look for evidence of water intrusion. Id. at 20. Entergy inspected 57 manholes or handholes and found 12 contained submerged cables. Id. Two of these manholes, MH 32(SII) and MH 33(SII) contained submerged safety-related cables. Id. These cables were control cables for the [Emergency Diesel Generators (EDG)], and control and power cables for the EDG fuel oil transfer pumps. Id. Neither MH 32(SII) nor MH 33(SII) contained sump pumps or other de-watering devices. Id.

The NRC determined that the cables were designed for wet or dry conditions, not continuous submersion. Id. at 21; see also Mathew Affidavit at ¶5 (explaining wet as opposed to submerged environments). But, 10 C.F.R. Part 50, Appendix B, Criterion III, Design Control, requires licensees to select and review for suitability of application of materials, parts,

(. . .continued) not to apply the General Design Criteria in 10 C.F.R. Part 50 Appendix A to plants with construction permits issued prior to May 21, 1971. The Commission so concluded because the final GDC were not new requirements, were established to more clearly articulate the licensing requirements and practice in effect at that time, and imposing the GDCs on plants licensed to the draft GDCs would provide little or no safety benefit while requiring an extensive commitment of resources.

equipment, and processes that are essential to the safety-related functions of the structures, systems and components. Thus, the NRC found a violation of this provision, because the cables in MH 32(SII) and MH 33(SII) were not selected for suitability of application for the submerged environment in which they were found. Inspection Report at 21. In response to the violation, Entergy took corrective actions, specifically ordering the dewatering of the manholes and developing a preventative maintenance frequency for subsequent pump downs. Id.

Consequently, Entergys obligation to ensure that cables and connections are environmentally suitable for the environment to which they will be exposed is clearly part of its CLB. The CLB includes the NRC regulations contained in [10 C.F.R. Part 50]. As discussed in the Inspection Report, 10 C.F.R. Part 50, Appendix B, Criterion III, Design Control, requires Entergy to ensure that its cables are suitable for all environments they will be exposed to, including submersion. Inspection Report at 21. Therefore, NECs new contention is an attack on the Vermont Yankee CLB, which is not permitted by Commission precedent and not within the scope of this proceeding.

Rather, the concern raised by NECs new contention, that submerged cables at Vermont Yankee may not be designed for that condition, is already addressed by the Vermont Yankee CLB. The Inspection Report, relied on by NEC, demonstrates that the NRCs ongoing oversight process sufficiently addresses this issue. See also Mathew Affidavit at ¶3, ¶4. Entergy identified the cables that were not designed for submersion, and the NRC analyzed the finding and assigned a violation. As a result of the oversight process, Entergy is taking the appropriate actions to address the problem. Id. In other words, this is precisely the type of issue the Commission contemplated would not be within the scope of license renewal. The CLB for Vermont Yankee requires cables to be designed for the condition in which they will be deployed, the NRCs oversight process is sufficient to identify non-compliances, and Entergy is obliged to correct the situation now, without waiting for the license renewal review. Modifying an AMP to also address this situation would be redundant with the CLB and wasteful of Commission

resources. Therefore, NECs new contention is outside the scope of this proceeding and consequently inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(iii).

B. NECs New Contention Does Not Meet the Requirements of 10 C.F.R.

§ 2.309(f)(1)(v) Because It Does Not Contain a Sufficient Factual Basis

1. Admissible Contentions Must Contain an Adequate Factual Basis For each contention a petitioner seeks to admit, the petitioner must provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue. 10 C.F.R. § 2.309(f)(1)(v). The Commission has concluded, [m]ere notice pleading is insufficient under these standards. Fansteel, Inc.(Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003). [B]are assertions and speculation [are] not enough to trigger an adversary hearing . . . . GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000). Thus, [a] petitioners issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, [or] no substantive affidavits. Fansteel, Inc., CLI-03-13, 58 NRC at 203 (quoting Oyster Creek, CLI-00-5, 51 NRC at 207). Rather, a petitioner may meet its pleading burden by providing plausible and adequately supported claims. Id. While the Commission does not expect a petitioner to prove its contention at the pleading stage, the Commission does require a petitioner to show a genuine dispute warranting a hearing. Private Fuel Storage, CLI-04-22, 60 NRC at 139. Thus, a petitioner must demonstrate how the facts upon which it relies support its contention. Id.

(rejecting a contention that an environmental report failed to adequately evaluate the health impacts of a defective spent-fuel storage canister at a storage site when the petitioner failed to demonstrate how a canister could become so contaminated that it would be harmful to workers at the storage site).

The Commission has explained that it toughened its contention rule in a conscious effort to obviate serious hearing delays caused in the past by poorly defined or supported contentions. Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49

NRC 328, 334 (1999). The Commission observed that prior to the revision of the rule

[l]icensing Boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation. Id. As the Board in Georgia Tech recognized, it is the petitioner who is obligated to provide the analyses and expert opinion showing why its bases support its contention. Georgia Institute of Technology (Georgia Tech Research Reactor),

LBP-95-6, 41 NRC 281, 305 (1995).

Furthermore, as stated above, because the record in this proceeding is closed, NEC faces a greater burden and must set forth the basis of its contention with greater particularity than is normally required by 10 C.F.R. § 2.309(f)(1), and evidence submitted in support of the contention evidence must comport with the requirements for admissible evidence at hearing in

§ 2.337. See Diablo Canyon, ALAB-775, 19 NRC at 1366-76. See also Oyster Creek I, CLI 28, 68 NRC at 668.

2. NECs New Contention Lacks an Adequate Factual Basis

i. The Vermont Yankee LRA Contains AMPs that Address Low and Medium Voltage Cables NEC notes that, pursuant to 10 C.F.R. § 54.21(a)(1), electrical cables are included within the scope of [Part 54] irrespective of the design of or the applied voltage. Motion at 19.

But, NECs expert claims A diligent review of the LRA and the NRC Staffs SER finds no such Time Limited Aging Analysis (TLAA) or Aging Management Program (AMP). Id. NECs expert asserts that Entergy has not proposed any methodology to preclude or detect the submergence of Medium Voltage Cables. Id. at 20. Moreover, NEC contends that the LRA does contain any aging management plan for low voltage cables. Id. Consequently, NEC concludes that the LRA is incomplete. Id. at 19.

But, as discussed above and in the attached affidavit of Mr. Mathew, the LRA actually includes AMPs that address low and medium voltage cables. See supra at III.A.2 The AMP that is consistent with GALL Report AMP XI.E.1 requires Entergy to inspect cables and

connection in accessible areas, regardless of voltage. SER at Section 3.0.3.1.5. The inspected cables must represent all cables and connections, accessible and inaccessible, in adverse localized environments. Id. Thus, AMP XI.E.1 is similar to a sampling program. Id. If the inspection uncovers an unacceptable situation or condition in the sample of inspected cables and connections, then Entergy must determine whether inaccessible cables and connections could be exposed to that same condition. Id. Consistent with the GALL Report [c]orrective actions may include, but are not limited to, testing, shielding or otherwise changing the environment, or relocation or replacement of the affected cable or connection. GALL Report at XI E-2.

Additionally, the LRA contains an AMP that is consistent with GALL Report AMP XI.E.3.

SER at 3.0.3.1.3. This AMP requires Entergy to periodically inspect for water collection to prevent medium voltage cable exposure to significant moisture. Id. As described in the attached affidavit, Entergy recently expanded the scope of AMP XI.E.3. to specifically include low voltage cables (480 V to 2kV) in addition to medium voltage cables (2kV to 35Kv). Mathew Affidavit at ¶12. See also September 2010 LRA Supplement Letter.

Accordingly, if Entergy discovers a medium or low voltage cable that has been exposed to significant moisture, it must conduct a test to determine the sufficiency of the conductor insulation. The specific type of test performed will be determined prior to the initial test, and is to be a proven test for detecting deterioration of the insulation system due to wetting. GALL Report at XI E3-1.

Consequently, the LRA application does contain AMPs that address low voltage cables and medium voltage cables susceptible to wetting or submergence. Contrary to NECs assertions these programs can identify submerged cables. AMP XI.E3 specifically looks for submerged low and medium-voltage cables, and XI.E1 inspects a sample of all cables, and based on the results of that inspection, determines whether additional actions are needed. As a result, NECs assertion that the LRA is incomplete because it does not contain AMPs for low

and medium voltage cables is simply incorrect. Consequently, it cannot provide an adequate basis for NECs New Contention under 10 C.F.R. § 2.309(f)(v).

ii. NEC Has Not Demonstrated that the AMPs in the LRA are Inadequate to Manage the Effects of Aging NEC contends that the Inspection Report, discussed above, demonstrates that the LRA is not adequate to prevent repetition of submergence nor is it adequate to detect wetted conditions elsewhere. NEC Motion at 17. NEC believes that the current inspection program at Vermont Yankee, of which the AMP is a simple continuance, is not intended to prevent flood, has no in place sump pumps or monitors, and features inspections conducted at such long intervals as to challenge workers memory. Id. at 22. According to NEC, Entergy should amend its AMP to reflect the issues raised by the NRC Inspection Report. Id. at 17. NEC believes that a complete AMP would take into account the physical degradation effects of submergence in water on those electrical cables and components which are susceptible to flooding but which have not been environmentally qualified for submergence. NEC Motion at 20. NEC implies that Entergy should amend its LRA to include an AMP that would include a review of cable environment qualification, an inventory of cable[s] susceptible to wet or submerged conditions, or a schedule of preventative inspection, testing, maintenance, or systematic replacement. Id.

at 13.

NECs belief that the Vermont Yankees AMPs for electric cables in the LRA are simply a continuance of existing programs is not correct. Rather AMPS for electric cables in Vermont Yankees LRA are new programs and are consistent with GALL AMPs XI.E1 and XI.E3. SER at 3-20, 3-28. Consequently, the events described in the Inspection Report hardly represent a failure of those AMPs. Indeed, as discussed above, the Inspection Report actually demonstrates that the NRCs current regulatory activities are sufficient to identify submerged cables that are not designed for that environment and ensure that Entergy takes appropriate corrective action. The inspection programs described in those AMPs, consistent with GALL

AMPs XI.E1 and XI.E3, should provide further assurance that Entergys inspections will identify such situations and take appropriate actions.

NEC relies on little more than assertion to support its claims of what AMPs it believes the LRA should contain. NEC asserts that AMPs in the LRA are not adequate to prevent wetting or to detect wetting elsewhere. NEC claims that an adequate AMP must specifically address the issues identified in the NRC Inspection Report. But, NEC has not demonstrated how these alleged failures will prohibit the AMPs at issue from successfully managing aging during the proposed period of extended operation. As noted above, the Commission has stated that bare assertions and speculation [are] not enough to trigger an adversary hearing . . . .

Oyster Creek, CLI-00-6, 51 NRC at 208. Consequently, because NEC has only asserted that the AMPs in the LRA are inadequate, without any further explanation, NEC has not provided a sufficient basis for the New Contention.

Furthermore, the contents of the LRA appear to address the concerns identified by NEC.

As discussed above, the AMP that is consistent with GALL AMP XI.E3, addresses NECs concern that an adequate aging management program should account for the aging effects on submerged cables that have not been designed for that environment. That AMP requires Entergy to inspect for such conditions, and, when it finds those conditions, to conduct appropriate tests to ensure that the cable insulation has not degraded. Therefore, NECs New Contention rests on challenges to the LRA that are not based on an accurate reading of that document, are only supported by speculation and assertions, and appear to actually be addressed by that document. Consequently, the New Contention does not meet the requirements of 10 C.F.R. § 2.309(f)(1)(v).

iii. The LRA Relies on Adequate Tests to Ensure that Entergy Will Adequately Manage the Effects of Age Related Degradation Finally, NECs expert extensively discusses a recent NRC publication, Essential Elements of an Electric Cable Condition Monitoring Program, NUREG/CR-7000. According to

NEC, NUREG/CR-7000 notes that the integrity and function of power and instrumentation and control (I&C) cables are monitored indirectly through the performance of in-service testing of safety related systems and components. NEC Motion at 21. These tests can demonstrate the function of the cables under test conditions, but they do not provide reasonable assurance that they will continue to perform successfully when they are called upon to operate fully loaded for extended periods as they would under normal service operating conditions. Id. NEC cites NUREG/CR-7000 for the proposition that in-service testing is inadequate because it does not directly test the physical integrity of the insulation materials. Id. As a result, a cable with degraded insulation could pass an in-service test but fail under normal operating conditions. Id.

As discussed above, however, the AMPs in Entergys LRA for Vermont Yankee do not rely on in-service testing to assess the condition of medium and low-voltage cables. Rather, the AMP that is consistent with GALL Report AMP XI.E1 relies on visual inspections to detect surface anomalies, such as embrittlement, discoloration, cracking, melting, swelling or surface contamination. GALL Report at page XI E-2. The AMP that is consistent with GALL Report AMP XI.E.3 also relies on inspections to determine if low and medium voltage cables have been exposed to significant moisture. Id. at page XI E-7; September 2010 LRA Supplement Letter. If so, then the AMP directs Entergy to conduct a test specifically designed to provide an indication of the condition of the conductor insulation. GALL at page XI E-7. These tests include power factor, partial discharge, or polarization index, as described in EPRI TR-103834-P1-2, or other testing that is state-of-the-art at the time the test is performed. Id.

Therefore, the conclusions in NUREG/CR-7000, relied on by NEC, do not appear to address the types of tests contemplated in the AMPs. NUREG/CR-7000 provides a critique of in-service testing for I&C cables because in-service tests do not necessarily assess the condition of a cables insulation. But, the tests contemplated in the AMPs that are consistent with GALL Report AMPs XI.E1 and XI.E3 do not rely on in-service testing. Rather, they incorporate testing methods, such as visual inspection, that directly assess the condition of a

cables insulation. Therefore, NECs citation to NUREG/CR 7000 does not provide a sufficient basis to demonstrate a failing in Entergys AMPs. On the contrary, it suggests that the AMPs are focused on the proper component of a cable to prevent age-related degradation.

Furthermore, Mr. Mathew explains that the purpose of the NUREG/CR 7000 research study was to develop a comprehensive program for licensee compliance with the requirements of 10 CFR Part 50. Mathew Affidavit at ¶8. The recommendations in NUREG/CR 7000 are not requirements either for on-going operation or license renewal. Id. Consequently, NUREG/CR 7000 does not provide a sufficient basis to meet the requirement of 10 C.F.R. § 2.309(f)(1)(v).

To the extent Entergys existing programs rely on in-service testing, a challenge to those programs would be outside the scope of license renewal. See Supra III.A.1. Nonetheless, NEC is not without remedy for its concerns regarding in-service testing. If NEC wishes to challenge those programs use of in-service testing to monitor the effectiveness of I&C cables, NEC must file a petition for enforcement action under 10 C.F.R. § 2.206 or file a petition for rulemaking under 10 C.F.R. § 2.802.

For the foregoing reasons, NECs new contention does not satisfy the requirements for an admissible contention under 10 C.F.R. §§ 2.309(f)(1)(iii) or (v). The new contention attempts to require Entergys AMPs to address matters that are already adequately covered by the NRCs ongoing regulatory oversight process. Moreover, NEC has not provided a sufficient basis, beyond mere assertion, to demonstrate any deficiency in the AMPs. On the contrary, it appears that many of NECs concerns are actually already addressed by the AMPs.

CONCLUSION NECs Motion does not satisfy the requirements of 10 C.F.R. § 2.326. NEC has not demonstrated that its Motion raises a significant safety issue, is timely, or that materially different result would be likely if the proposed new contention is considered. Furthermore, NECs new contention does not satisfy the requirements of 10 C.F.R. §§ 2.309(c) and 2.309(f)(1). Consequently, the Board should deny NECs Motion and terminate this proceeding.

Respectfully submitted,

__/RA/__________________

Mary B. Spencer Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1324 Mary.Spencer@nrc.gov Dated at Rockville, Maryland this 14th day of September 2010

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LR AND ENTERGY NUCLEAR OPERATIONS, INC. )

) ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) )

AFFIDAVIT OF ROY K. MATHEW I do hereby declare under penalty of perjury that the following statements are true and correct to the best of my knowledge and belief:

1. My name is Roy K. Mathew. I am employed by the U.S. Nuclear Regulatory Commission (NRC) as a Team Leader, Electrical Engineering Branch in the Office of Nuclear Reactor Regulations Division of Engineering. A statement of my professional qualifications is attached.

2. I have read New England Coalitions Motion to Reopen the Hearing and For the Admission of New Contentions dated August 20, 2010 (Motion) and the attached Declaration and Affidavit of Paul Blanch (Blanch Affidavit).

3. The purpose of this affidavit is to respond to the New England Coalitions (NEC) Motion and the attached Blanch Affidavit. In this affidavit, I will explain the basis for the NRC Staffs position that submergence of safety-related electric cables is not a significant safety issue either currently or during the period of extended operations because the appropriate level of licensee response is being taken to address the deficient condition. In so doing, this affidavit will address the following topics.

A. Why the Green Finding in Vermont Yankee Nuclear Power Station-NRC Integrated Inspection Report 05000271/2010002 dated May 10, 2010 (ADAMS Accession No.

ML101300363) (Inspection Report) does not demonstrate a significant safety issue with respect to aging management of safety-related electric cables at Vermont Yankee.

B. The requirements in 10 CFR Part 50 for inspection/maintenance and testing of safety-related electric cables apply to operating plants regardless of license renewal status.

C. Actions the NRC is taking to better ensure licensee compliance with the requirements of 10 CFR Part 50 for inspection/maintenance and testing of electric cables. In explaining these actions, I will address NECs claims based on NUREG/CR-7000 Essential Elements of an Electric Cable Condition Monitoring Program (January 2010).

D. Which cables are within the scope of 10 CFR §§ 54.4 and 54.21 and which cables Vermont Yankee included in its license renewal application.

E. Vermont Yankees aging management programs for electric cables, particularly which cables are within the scope of each program.

4. The Green finding in the Inspection Report does not demonstrate a significant safety issue with respect to aging management of safety-related electric cables at Vermont Yankee.

The significance of an inspection finding is determined by the NRC Reactor Oversight Significance Determination Process. The levels of findings are: Green (very low safety significance), White (moderate safety significance), Yellow (substantial safety significance) and Red (high safety significance) based on NRC Inspection Manual Chapter (IMC) 0609, Significance Determination Process (ADAMS Accession No. ML080730040). As discussed in the Inspection Report, the inspectors determined the significance of the finding regarding submergence of safety-related electric cables at Vermont Yankee IMC 0609.04, "Phase 1 -Initial Screening and Characterization of Findings" (ADAMS Accession No. ML063060347). The finding was determined to be of very low safety significance (Green) because it was a design or qualification deficiency which was confirmed to have not resulted in a loss of operability or functionality. Specifically, the continuously submerged cables were not designed for that environment but were still capable of performing their design functions. The inspectors also identified a violation of 10 CFR Part 50, Appendix B, Criterion III, "Design Control," because Entergy had not established measures to select and review for suitability of application of parts and materials that were essential to the safety-related functions of control and power cables for the Emergency

Diesel Generators (EDGs). Because this violation was of very low safety significance and was entered into Entergy's corrective action program (CR-VTY-2009-04142 and CR-VTY-2010-01422) to correct the performance issue, this violation was treated as a non-cited violation, consistent with Section VI.A.1 of the NRC Enforcement Policy. Therefore, the staff concluded that submergence of safety-related electric cables at Vermont Yankee was not a significant safety issue requiring immediate attention but an item to be addressed for long term operation under the provisions of 10 CFR Part 50. The licensee is addressing the current operating issue through their corrective action program, and the NRC has taken actions to address the licensees performance issue.

5. Submergence/Submerged (environment) is defined in Appendix B of NUREG/CR-7000 as an operating environment in which an electric cable is submerged in water continuously or for extended periods of time. A wetting/wetted (environment) is defined in Appendix B of NUREG/CR-7000 as an operating environment in which an electric cable is exposed to moisture and high humidity for limited periods of time. Cables are typically designed and procured for wet environment. Cables are not designed for submergence unless they are specifically designed and procured for submergence such as the submarine cables. If the cables are subjected to a different environment than they are designed for, then the ability of the cables to perform their intended function during the operating period may not be assured. Operating experience and Generic Letter (GL) 2007-01 data indicate that cables do not fail immediately when they are subjected to a wet or submerged environment, but they should be monitored for degradation (loss of dielectric or insulation property) if they are subjected to a wet or submerged environment.

6. Whether a cable is designed for a particular environment is the not the same as environmental qualification under 10 CFR 50.49. Environmental Qualification as discussed in 10 CFR 50.49 is for harsh environments (accident environments). Therefore, the

requirements of 50.49 do not apply to the cables discussed in NECs Motion and the Blanch Affidavit.

7. 10 CFR Part 50 contains requirements for maintenance and testing of electric cables at operating reactors regardless of license renewal status. The NRC requires that cables that are inaccessible or routed underground be capable of performing their intended function when subjected to anticipated environmental conditions, such as moisture or flooding. 10 CFR Part 50 further requires that the reactors design should minimize the probability of power interruption when transferring power between sources. Licensees are expected to demonstrate that cables whose failures could disable risk-significant equipment can perform their safety function when needed during the current operating period and the requirements will be carried forward to the extended period of operation under the current licensing basis in accordance with 10 CFR 54.33.

10 CFR 50.65(a)(1) states that [e]ach holder of a license to operate a nuclear power plantshall monitor the performance or condition of structures, systems, or componentsin a manner sufficient to provide reasonable assurance that such structures, systems, and componentsare capable of fulfilling their intended functions.

Criterion XI, Test Control, of Appendix B to 10 CFR Part 50 states that [a] test program shall be established to assure that all testing required to demonstrate thatcomponents will perform satisfactorily in service is identified and performed.

Criterion XVI, Corrective Action, of Appendix B to 10 CFR Part 50 states that

[m]easures shall be established to assure that conditions adverse to qualityare promptly identified and corrected. In the case of significant conditions adverse to quality, the measures shall assure that the cause of the condition is determined and corrective action taken to preclude repetition.

In sum, these requirements mandate that operating reactors, regardless of licensee renewal status, inspect/maintain and test electric cables to ensure that cables can perform their intended functions.

8. The NRCs ongoing oversight of nuclear reactor operations includes actions to ensure licensee compliance with the requirements of 10 CFR Part 50 for maintenance/inspection and testing of electric cables. The NRC inspection program under the Reactor Oversight Process (ROP) verifies licensees compliance with applicable regulations during the current operating period and the extended period of operation. The 10 CFR Part 50 regulations require licensees to assess the condition of their components, to monitor the performance or condition of components such as cables in a manner sufficient to provide reasonable assurance that they are capable of fulfilling their intended functions, and to establish a test program to ensure that all testing required to demonstrate that components will perform satisfactorily in service is identified and performed. The diagnostic cable testing methods to assess cable condition as required by the maintenance rule should be established during the current operating period. The objective of the NUREG research study (NUREG/CR-7000) referenced by NEC was to identify a comprehensive electric cable condition monitoring (CM) program that will consolidate a core program of periodic CM inspections and tests, together with the results of in-service testing, environmental monitoring and management activities, and the incorporation of cable-related operating experience. The NUREG is not a regulatory requirement. Furthermore, implementation of recommendations in NUREG/CR 7000 is not a requirement for license renewal. Rather, the NUREG discusses a program for compliance with 10 CFR Part 50 requirements. Thus, the NUREG does not demonstrate either a significant safety issue or that Vermont Yankees aging management programs for electric cables are inadequate to provide reasonable assurance of compliance with the current licensing basis during the proposed period of extended operation.

9. Vermont Yankees license renewal application included scoped electric cables in accordance with 10 CFR 54.4. Cables scoped in the Vermont Yankees license renewal programs meet the following requirements:

(1) Safety-related cables which are relied upon to remain functional during and following design-basis events (as defined in 10 CFR 50.49 (b)(1)) to ensure the following functions.

(i) The integrity of the reactor coolant pressure boundary; (ii) The capability to shut down the reactor and maintain it in a safe shutdown condition; or (iii) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in § 50.34(a)(1), § 50.67(b)(2), or § 100.11 of this chapter, as applicable.

(2) All nonsafety-related cables whose failure could prevent satisfactory accomplishment of any of the functions identified in paragraphs (a)(1)(i), (ii), or (iii) of this section.

(3) All cables relied on in safety analyses or plant evaluations to perform a function that demonstrates compliance with the Commission's regulations for fire protection (10 CFR 50.48), environmental qualification (10 CFR 50.49), pressurized thermal shock (10 CFR 50.61), anticipated transients without scram (10 CFR 50.62), and station blackout (10 CFR 50.63).

In the NRC safety evaluation (NUREG 1907) of Vermont Yankees license renewal application, the staff concludes that the scoping of electrical and instrumentation components are in accordance with 10 CFR §§ 54.4 and 54.21. Specifically, the SER states:

The staff reviewed the LRA Section 2.5, the UFSAR, and the supplemental information provided by the applicant in its letters dated September 5, 2006, and January 4, 2007, to determine whether any SSCs that should be within the scope of license renewal or subject to an AMR had not been identified by the applicant. No omissions were identified by the staff. On the basis of its review, the staff concludes that there is reasonable assurance that the applicant had adequately identified the electrical commodity group components which includes cables that are within the scope of license renewal, as required by 10 CFR 54.4(a), and that are subject to an AMR, as required by 10 CFR 54.21 (a)(1).

Thus, all electric cables at Vermont Yankee were scoped and screened in accordance with 10 CFR 54.4 and 54.21.

10. The NRC reviewed Vermont Yankees scoping and screening of electric cables and the adequacy of Vermont Yankees proposed aging management programs in its SER. In Section 3.6 of the SER (NUREG 1907) the staff concluded that the applicant provided sufficient information to demonstrate that the effects of aging for the electrical and instrumentation and control (I&C) system components within the scope of license renewal and subject to an AMR will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation, as required by 10 CFR 54.21(a)(3).

The following aging management programs are identified for managing the aging effects of electric cables at Vermont Yankee:

(1) Environmental Qualification of Electric Components Program (SER Section 3.0.3.1.1)

(2) Non-Environmental Qualification Inaccessible Medium-Voltage Cable Program (SER Section 3.0.3.1.3)

(3) Non-Environmental Qualification Instrumentation Circuits Test Review Program (SER Section 3.0.3.1.4)

(4) Non-Environmental Qualification Insulated Cables and Connections Program (SER Section 3.0.3.1.5)

The staff reviewed items 1-4 above for consistency with GALL AMPS X.E1 Environmental Qualification of Electric Components, XI.E3, Inaccessible Medium-Voltage Cables Not Subject to 10 CFR 50.49 Environmental Qualification Requirements, XI.E2 Electric Cables and Connections Not Subject to 10 CFR 50.49 Environmental Qualification Requirements Used in Instrumentation Circuits, and XI.E1 Electric Cables and Connections Not Subject to 10 CFR 50.49 Environmental Qualification Requirements respectively. The staff concluded that each program was consistent with the GALL AMP.

11. The NRC has taken the following actions with respect to cable submergence issue at operating reactors, regardless of license renewal status:

(1) Issued NUREG/CR-7000, Essential Elements of an Electric Cable Condition Monitoring Program, that identifies the different testing methods to potentially include in an electrical cable monitoring program.

(2) Worked with industry through the Regulatory Issues Resolution Protocol (RIRP) and public workshop to address the issues associated with underground cables.

(3) Focused inspection resources in the ROP baseline inspection (71111.06, Flooding) to identify and resolve compliance issues associated with environmental factors that challenge cable functions.

(4) Issued Draft Regulatory Guide (RG) DG 1240 Essential Elements of an Electric Cable Condition Monitoring Program, (ADAMS Accession No.

ML100760364) for public comment. 75 FR 33853 (June 15, 2010). The comment period ended August 13, 2010. The Staff expects to issue the final RG by January 2011.

12. On September 3, 2010, Vermont Yankee submitted a letter providing supplemental information to its LRA to address issues related to non-environmentally qualified inaccessible cables low-voltage cables. (ADAMS Accession No. ML102500065) Therein, Vermont Yankee revised its Non-Environmental Qualification Inaccessible Medium-Voltage Cable Program to include inaccessible low-voltage cables (cables with operating voltage from 480V to 2kV). Vermont Yankee also revised the program to test medium voltage cables regardless of whether the cables are subject to significant voltage, i.e., subjected to system voltage for more than 25% of the time.

13. In conclusion, the finding related to submerged safety-related cables at Vermont Yankee described in the May 10, 2010 NRC Inspection Report does not present a significant safety issue. The staffs inspection finding is based on licensees compliance with 10 CFR Part 50 regulatory requirements.

This affidavit was executed this 14th day of September, 2010, at Rockville, Maryland.

_ Executed in Accordance with 10 CFR § 2.304(d)

Roy K Mathew, Team Leader Electrical Engineering Branch Division of Engineering Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Mailstop O-12H2 Washington, DC 20555-0001 (301) 415-2965 Roy.Mathew@nrc.gov

Roy K. Mathew, Statement of Professional Qualifications Current Position:

Team Leader Electrical Engineering Branch, Division of Engineering, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission Education:

B.S. Electrical Engineering, University of Kerala, India Summary Mr. Mathew has 29 years of experience in the nuclear power industry, including 22 years at the NRC. Through his educational experience, training, and years of work experience in the nuclear power industry, Mr. Mathew has acquired extensive knowledge and experience in several engineering disciplines, particularly in electrical engineering (including nuclear reactor theory, principles and practices); reactor design, construction, testing, startup and operations; regulation of the nuclear power industry; maintenance; inspection; and licensing. In the course of his NRC career, Mr. Mathew has working both in the NRCs Region I Office, where he worked as a Qualified Reactor Engineer performing various inspections, and NRC Headquarters where he has worked as an Operations Engineer in the Special Inspections Branch and Inspection Program Branch (IIPB) conducting various engineering and design inspections, as a Team Leader, as a Senior Reactor Systems Engineer, and as a Senior Electrical Engineer in the Division of Engineering (DE) and Division of License Renewal (DLR).

As a Team Leader in DE and DLR, Mr. Mathew has been responsible for various significant reviews and programs, including: developing Interim Staff Guidance for License Renewal programs; performing safety reviews for license renewal applications; leading NRC audit teams conducting license renewal safety reviews at several facilities; reviewing operating experience issues and issuing appropriate generic communications; and supporting review of license amendment requests. He has an extensive knowledge of NRC regulations and guidance documents, as well as industry codes and standards.

Mr. Mathew is presently the Acting Chief of Electrical Engineering Branch, Division of Engineering, Nuclear Reactor Regulation. His Branch is responsible for the following: reviews of design and operation of offsite power grid systems with regard to interrelationships between the nuclear unit, the utility grid, and interconnecting grids; reviews and evaluations of functional performance requirements, design, and operation of onsite power systems and the interface between the offsite and onsite power systems under the full range of normal operation, transient and accident conditions; reviews of environmental qualification of electrical equipment important to safety.

Experience:

U.S. Nuclear Regulatory Commission, 1988-Present 2005-Present Electrical Engineering Branch, Division of Engineering, Office of Nuclear Reactor Regulation Reviewed and approved several staff safety evaluations for license amendment requests and license renewal applications.

Responsible for reviewing operating experience in the electrical area annually and issuing a summary report and appropriate generic communications.

Reviewed large power transformer failures in the industry for the last several years and issued an Information Notice 2009-010, Transformer Failures -

Recent Operating Experience, to inform the licensees to review the information for applicability to their facilities and consider actions, as appropriate, to avoid similar problems.

Led audit teams and conducted safety review audits consisting of nine technical reviewers including contractors for preparing the safety evaluation inputs for the license renewal applications submitted by the applicants for Oyster Creek, Fitzpatrick, Vogtle, and Shearon Harris power plants. Conducted public exit briefing for staff's safety audits for Oyster Creek. Participated in the staff presentations at the ACRS sub-committee and full committee meetings on license renewal applications. Developed interim staff guidance for certain aging management programs and prepared safety review audit guidance.

Provided inputs and participated in International Atomic Energy Agency (IAEA) technical meetings on Electric Grid Reliability and Interface with Nuclear Power Plants on August 4-6, 2009. Participated in the development of an IAEA Safety Guide for Electrical Power Systems Important to Safety on August 3-7, 2009, at IAEA Headquarters, Vienna, Austria.

Reviewed and issued summary report for Generic Letter 2007-01, Inaccessible or Underground Power Cable Failures That Disable Accident Mitigation Systems or Cause Plant Transients, and participated in public workshops and meetings to discuss the results of the cable performance and degradation issues and proposed NRC actions with the industry. Lead the NRC team addressing the cable submergence issue with the industry through the Regulatory Issue Resolution Protocol.

1993-2005 Operations Engineer, USNRC Headquarters Developed and monitored implementation of Reactor Safety Strategic Performance Area inspection procedures such as Surveillance Testing; Maintenance Effectiveness; Inservice Testing; Heat Sink Operability; Equipment Alignment; Maintenance Risk Assessment and Risk Management; Temporary Modification; Evaluation of Changes, Tests, or Experiments; Permanent Plant

Modifications; and Safety System Design and Performance Capability.

Responsible for updating various Inspection Manual Chapters (IMC), and providing policy direction to NEC regional staff. Performed annual assessment of inspection program and provided inspection program assessment inputs to the annual Reactor Oversight Process (ROP) Commission paper. Developed and issued Significance Determination Process (IMC 0609, Appendix K) and technical basis document for assessing significance of performance issues associated with licensees implementation of maintenance rule (10 CFR 50.65 (a)(4)). In addition, prepared and provided the required training for implementing the Significance Determination Process.

Developed policy and program guidance for providing inspection credit for IAEAs Operational Safety Review Team (OSART) inspections. Provided several briefings to international agency representatives regarding the NRCs inspection oversight and inspection practices.

Coordinated and provided responses to several IAEA Committee on Nuclear Regulatory Activities (CNRA) Working Group on Inspection Practices (WGIP) questionnaires and requests. Participated in and represented NRC at the CNRA/

WGIP seminar in Veracruz, Mexico.

As a Project Manager, responsible for the review, upkeep and maintenance of various technical guidance documents such as Part 9900 for 10 CFRs, Technical Specifications, Codes and Standards, and Regulatory Guides.

As a Technical Lead, interfaced with several NRR technical branches and issued Temporary Instructions (TIs) to verify implementation of NRC Orders, Bulletins, and Generic Letters. TI issued include: Performance Indicator Data Collection, Follow up of Generic Letter 89-13: Service Water System Problems Affecting Safety-Related Equipment, Reactor Pressure Vessel Head and Vessel Head Penetration Nozzles, Reactor Pressure Vessel Lower Head Penetration Nozzles, Reactor Containment Sump Blockage, Offsite Power System Operational Readiness, and Pressurizer Penetration Nozzles and Steam Space Piping Connections. Coordinated with NRR technical branches to resolve policy and program issues associated with Generic Safety Issues. Resolved several high priority Davis-Besse lessons learned action items pertaining to barrier integrity, boric acid corrosion, surveillance, RCS leakage monitoring, and inservice inspections. Developed a statistical tool to aid inspectors in independently determining whether an adverse trend exists with licensees RCS unidentified leakage rate data obtained during steady state power operation and action level criteria to assess licensee actions in response to increasing levels of unidentified RCS leakage that could indicate RCPB degradation. Lead IIPB technical reviewer for 10 CFR 50.69 rule making effort and Risk Management Technical Specifications Activities.

As Reactor Oversight Program (ROP) Inspection Report Audit Team Leader:

Established procedure for auditing inspection reports to ensure that inspection reports are written in accordance with NRR program documents. Conducted

annual audits of inspection reports, and managed several audit team members to complete the audits in calendar years 2001, 2002, and 2003. The results of the audits were communicated to the regional management and also captured in the annual ROP self-assessment Commission paper.

As Region III Coordinator, resolved regional questions on program implementation, performed periodic site visits to monitor implementation of the ROP, and observed regional assessment and planning meetings and provided feedback to the Regional management. Solicited NRC staff and licensee management feedback on program effectiveness and incorporated those comments in ROP initial implementation program Commission paper and applicable ROP program documents. Resolved several ROP pilot and initial implementation issues.

As Technical Assistant, Coordinated resolution of technical issues, prepared presentation materials for NRR Executive Team (ET), monitored Davis-Besse lessons learned action items, provided project management support, coordinated research activities, coordinated NRR action items with Executive Director of Operations (EDO's) office, and provided status to ET regarding the resolution of significant NRR action items. Developed various report inputs such as monthly congressional report, plan of the week, EDO daily, two-week look ahead items, Research user-needs, and monthly ET Significant Items. Provided responses to intra-government inquiries.

Worked as a Team Leader for several Architect Engineering (AE) inspections for BWR and PWR plants to review design and licensing bases issues. Supervised 6-8 contractor engineers and conducted several public exit meetings. Identified numerous complex design and licensing bases issues during these inspections.

Responsible for Inspections, Tests, Analyses, and Acceptance Criteria (ITAAC) review of Advanced Boiling Water Reactor (ABWR) and CE System 80+

electrical/ system design. Team leader for station blackout team inspections at Palo Verde Stations (Units 1, 2, and 3) and Beaver Valley. Worked as a group lead for integrated design inspection (IDI), operational readiness assessment team inspection (ORAT) and led Engineering and Maintenance team inspections at numerous operating plants. Identified several design and licensing bases issues. Participated/developed IPAP inspections to review licensees performance issues. Responsible for developing inspection procedures to implement inspection requirements for station black out (SBO), anticipated transient with out scram (ATWS), safety parameter display (SPDS) and Regulatory Guide 1.97 instruments. Responsible for publishing a final information notice to identify all significant electrical issues for Electrical Distribution Functional Inspections. Conducted Fundamentals of Inspections training course, provided presentations for the Atomic Energy Control Board of Canada regarding NRC Electrical Inspections, and participated as a panel member for the Regulatory Information Conference for AE inspections.

1988-1993: Reactor Engineer, USNRC Region 1

Worked as a team leader for the Electrical Distribution System Functional Inspection (EDSFI) team inspections at various plants. Participated in many EDSFI and safety system functional inspection (SSFI) inspections. Responsible for writing the engineering/technical support areas for the Systematic Assessment of Licensee Performance (SALP) of several licensees. Performed several motor operated valve inspections for the implementation of NRC Inspection and Enforcement Bulletin 85-03 "Motor-Operated Valve Common Mode Failures During Plant Transients Due To Improper Switch Settings" that resulted in identifying many safety significant concerns. Responded to plant events to address concerns in electrical and plant systems including Augmented Inspection Teams (AITs) at Pilgrim, Susquehanna, and Salem. Conducted engineering inspections to assess the licensee performance in the engineering/technical support area for SALP data. Conducted a team inspection at Nine Mile Unit 1 to resolve Regulatory Guide 1.97 "Instrumentation For Light-Water-Cooled Nuclear Power Plants To Assess Plant And Environs Conditions During And Following An Accident" restart issues. Participated in the special I&C inspection at Indian Point 3 to review the design basis, set points, logic control systems and maintenance of instruments. Assumed lead responsibility for engineering, fire protection and environmental qualification inspections at sites including Calvert Cliffs and Main Yankee.

1987-1988 Field Engineer/Design Engineer, Bechtel Construction, Inc.

(Limerick Nuclear Generating Station)

Responsible for implementing design modifications to safety related equipment to ensure compliance with regulatory requirements and safety analysis commitments. Performed design changes to Nuclear Steam Supply System (NSSS) elementary, schematic and connection drawings and prepared design specifications for control room and remote shutdown panels for Limerick Unit 2.

Coordinated with General Electric and the utility to resolve engineering design conflicts. Performed design reviews and implemented electrical separation commitments in accordance with Institute of Electrical and Electronics Engineers (IEEE) standards and the Final Safety Analysis Report (FSAR) for all safety related equipment at Limerick 2.

1981-1987 Field Engineer/Design Engineer, Bechtel Construction, Inc.

(Palo Verde Nuclear Generating Station)

Responsible for the design changes, installation and inspection of cables, transformers, switchgears, and electrical terminations for nuclear steam supply systems, and safety related systems. Reviewed design drawings and specifications for instrumentation systems and provided technical support to resolve construction problems for instrument installations. Coordinated implementation of Three Mile Island Task Action items and human factor study modifications for the control room per NRC requirements. Performed design review and implementation of design changes and modifications for reactor coolant systems, safety injection systems and 4.16kV Class 1E power systems.

Performed design review to verify electrical protection and coordination, load growth and electrical system stability analysis for Palo Verde 3.

As Start-up Group Supervisor, completed startup modifications on electrical and nuclear steam supply systems for Palo Verde Unit 3. Responsible for the installation and pre-operational testing of major electrical equipment at Palo Verde 3. Prepared several surveillance, maintenance and operating procedures for safety-related systems. Provided support for startup testing of 500kV switchyard protective equipment, transformers, and relays and also onsite major components like MCC, load centers, and 125Vdc Class 1E systems.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LR AND ENTERGY NUCLEAR OPERATIONS, INC. )

) ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFFS OPPOSITION TO NECS MOTION TO REOPEN THE HEARING AND ANSWER TO NEW CONTENTION and AFFIDAVIT OF ROY K.

MATHEW in the above-captioned proceeding have been served on the following by electronic mail with copies by deposit in the NRCs internal mail system or, as indicated by an asterisk, by electronic mail, with copies by U.S. mail, first class, this 14th day of September 2010.

Alex S. Karlin, Chair Office of the Secretary Administrative Judge Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ask2@nrc.gov E-mail: hearingdocket@nrc.gov William H. Reed* Ann Hove, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 1819 Edgewood Lane U.S. Nuclear Regulatory Commission Charlottesville, VA 22902 Washington, DC 20555-0001 E-mail: whrcville@embarqmail.com E-mail: ann.hove@nrc.gov Office of Commission Appellate Peter C.L. Roth, Esq*

Adjudication Office of the Attorney General Mail Stop: O-16G4 33 Capitol Street U.S. Nuclear Regulatory Commission Concord, NH 3301 Washington, DC 20555-0001 E-mail: peter.roth@doj.nh.gov E-mail: OCAAmail@nrc.gov Raymond Shadis* Anthony Z. Roisman, Esq.*

37 Shadis Road National Legal Scholars Law Firm PO Box 98 84 East Thetford Rd.

Edgecomb, ME 04556 Lyme, NH 03768 E-mail: shadis@prexar.com E-mail: aroisman@nationallegalscholars.com

2 David R. Lewis, Esq.* Sarah Hofmann, Esq.*

Matias F. Travieso-Diaz, Esq Director of Public Advocacy Elina Teplinsky, Esq Department of Public Service Blake J. Nelson, Esq 112 State Street - Drawer 20 Pillsbury Winthrop Shaw Pittman LLP Montpelier, VT 05620-2601 2300 N Street, NW E-mail: sarah.hofmann@state.vt.us Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com elina.teplinsky@pillsburylaw.com blake.nelson@pillsburylaw.com Matthew Brock*

Assistant Attorney General, Chief Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us

______/RA/____________

Mary B. Spencer Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1324 Mary.Spencer@nrc.gov