ML081980664

2008/07/16-LB Order (Rulings on Motions to Strike and Motions in Limine)

ML081980664
Person / Time
Site:	Vermont Yankee
Issue date:	07/16/2008
From:	Karlin A Atomic Safety and Licensing Board Panel
To:
SECY/RAS
References
06-849-03-LR, 50-271-LR, RAS M-130
Download: ML081980664 (71)

Text

{{#Wiki_filter:DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION July 16, 2008 (11:45am) ATOMIC SAFETY AND LICENSING BOARD OFFICE OF SECRETARY RULE MAKINGS AND Before Administrative Judges: ADJUDICATIONS STAFF Alex S. Karlin, Chairman SERVED July 16, 2008 Dr. Richard E. Wardwell Dr. William H. Reed In the Matter of Docket No. 50-271-LR ENTERGY NUCLEAR VERMONT YANKEE L.L.C., ASLBP No. 06-849-03-LR and ENTERGY NUCLEAR OPERATIONS INC. July 16, 2008 (Vermont Yankee Nuclear Power Station) ORDER (Rulings on Motions to Strike and Motions in Limine) Pursuant to the Board's initial scheduling order (ISO),1 the parties in this proceeding have filed a number of motions to strike, motions in limine, and associated motions. This order sets out the Board's rulings on these motions. I. BASIC EVIDENTIARY STANDARDS Evidentiary hearings under 10 C.F.R. Part 2 are not bound by the formal rules of evidence. See 10 C.F.R. § 2.319(d) (The "strict rules of evidence do not apply to written submissions" in hearings before Licensing Boards). Instead, the Commission has stated that although the rules of evidence provide guidance, Boards may proceed with greater flexibility: Although the Commission has not required the application of the Federal Rules of Evidence in NRC adjudicatory proceedings, presiding officers and Licensing Boards have always looked to the Federal Rules for guidance in appropriate circumstances. The Commission continues to believe that greater informality and flexibility in the presentation of evidence in hearings, rather than the inflexible use of the formal rules of evidence imposed in the Federal courts, can result in more effective and efficient issue resolution. 1Licensing Board Order (Initial Scheduling Order) (Nov. 17, 2006) at 11 (unpublished).

2 69 Fed. Reg. 2182, 2187 (Jan. 14,2004). This is the approach that we have used in evaluating the various motions to strike and motions in limine presented here today. In particular, with regard to challenges to purported expert testimony, we have consulted Rule 702 of the Federal Rules of Evidence (FRE) and find it to be a useful gUide. 2 II. ENTERGY MOTION 1 On June 12, 2008, Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (collectively, Entergy) filed a motion to strike certain testimony and exhibits filed by the New England Coalition, Inc. (NEC).3 The NRC Staff filed an answer supporting the motion." and NEC opposed i1. 5 Entergy Motion 1 raises a number of issues, and our rulings are as follows. A. Statements About Indian Point License Renewal Entergy moves to strike portions of NEC's rebuttal statement of position on Contentions 2A and 2B, the associated rebuttal testimony of Dr. Joram Hopenfeld, and NEC Exhibit NEC JH_67 that refer to the environmentally assisted fatigue program in the Indian Point (New York) license renewal proceeding. Entergy Motion 1 at 5-6. Entergy claims that these statements 2 "Rule 702. Testimony by Experts: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed. R. Evid. 702. 3 Entergy's Motion in Limine (June 12,2008) [Entergy Motion 1]. 4 NRC Staff's Answer in Support of Energy's Motion in Limine (June 19, 2008). 5 New England Coalition, Inc's Opposition to Entergy's Motion in Limine (June 19, 2008) [NEC Answer to Entergy Motion 1].

3 "are irrelevant to the issues raised in NEC Contentions 2A and 2B and must be excluded." & at 6. NEC claims that the challenged material addresses the policy question of whether Entergy is required to complete its environmentally assisted fatigue analysis at the license application stage, or whether it can put off this analysis until later. NEC Answer to Entergy Motion 1 at 3. The Board grants this portion of Entergy's motion. The factual status of the Indian Point license renewal proceeding and the strategies of the parties thereto are simply not relevant evidence in this proceeding. However, in granting this portion of the motion, we note that we have instructed the parties to brief the underlying legal issue of when the fatigue analysis must be completed." B. Rebuttal Testimony Concerning EPU Stress Analysis Entergy moves to strike portions of NEC's rebuttal testimony on Contention 3 that were submitted by Dr. Hopenfeld and that relate to the acceptability of the steam dryer stress analysis during the implementation of Vermont Yankee's extended power uprate (EPU). Entergy Motion 1 at 6-7. According to Entergy, the Board determined that this issue was outside the scope of Contention 3 in an earlier ruling on a Motion for Summary Disposition (MSD) on that contention." NEC argues that this portion of Dr. Hopenfeld's rebuttal testimony was responsive to direct testimony by Entergy's witness, Mr. John R. Hoffman. NEC Answer to Entergy Motion 1 at 4. According to NEC, Mr. Hoffman's testimony indicates that the stress analysis carried out as part of the EPU will be used as a basis for Entergy's aging management plan for the steam dryer. 19..:. 6 Licensing Board Order (Regarding Briefing of Certain Legal Issues) (June 27,2008) at 2-3. 7 kL. at 6 (citing Licensing Board Memorandum and Order (Ruling on Motion for Summary Disposition of NEC Contention 3) (Sept. 11, 2007) [Contention 3 MSD Order)).

4 The Board denies this portion of Entergy's motion. Rebuttal testimony by NEC's witness is responsive to points raised by Entergy's witness in his direct testimony. C. Hopenfeld Testimony Concerning IGSCC Cracks in the Steam Dryer Entergy moves to strike those portions of NEC's rebuttal statement of position on Contention 3, the associated rebuttal testimony of Dr. Joram Hopenfeld, and NEC Exhibit NEC JH_68 that discuss the possibility that intergranular stress corrosion cracks (IGSCCs) in the steam dryer may become fatigue cracks and lead to steam dryer failure. Entergy Motion 1 at 7

9. Entergy claims that Contention 3 is limited to cracks caused by fatigue, and that the IGSCC issue was raised for the first time in rebuttal testimony. kl at 7-8. Furthermore, Entergy says, NEC's testimony is based on a misleading reference to a draft document that has since been revised. kl at 8. NEC argues that Dr. Hopenfeld's statements are made in response to direct testimony by Entergy's witness, Mr. Larry D. Lukens. NEC Answer to Entergy Motion 1 at 6.

The Board denies this portion of Entergy's motion. Rebuttal testimony by NEC's witness addresses points that are similar to those raised by Entergy's witness in his direct testimony. D. Dr. Hopenfeld Testimony Regarding Whether CHECWORKS Has Been "Qualified" and Whether it Can Produce Accurate Results Entergy moves to strike those portions of Dr. Hopenfeld's rebuttal testimony on Contention 4 that raise a number of allegedly new questions about the CHECWORKS computer code. Entergy Motion 1 at 14-15. According to Enterqy, the CHECWORKS issue in Contention 4 is limited to the question of whether sufficient benchmarking data is available to permit the use of CHECWORKS in the flow-accelerated corrosion (FAG) program during the period of extended operations. 19..:. at 14. For that reason, Entergy says, questions that go beyond this issue are outside the scope of the admitted contention. kL. at 15. NEC argues that Dr. Hopenfeld's observations are relevant to his claim that "the CHECWORKS model is difficult

5 to use properly because it must be carefully calibrated to plant conditions." NEC Answer to Entergy Motion 1 at 8. The Board denies this portion of Entergy's motion. We acknowledge that the issues mentioned by Entergy are not the heart of Contention 4. However, we find them to be tangentially relevant and therefore admissible. E. Applicability and Appropriateness of NSAC-202L Entergy moves to strike those portions of NEC Exhibit NEC-JH_36 and of Dr. Hopenfeld's rebuttal testimony that criticize the Electric Power Research Institute's guidelines related to CHECWORKS in Nuclear Safety Analysis Center (NSAC)-202L. Entergy Motion 1 at

16. According to Entergy, claims related to the adequacy of NSAC-202L are outside the scope of Contention 4. & at 17. NEC argues that Dr. Hopenfeld's observations are relevant to his more general claims about CHECWORKS. NEC Answer to Entergy Motion 1 at 8.

The Board denies this portion of Entergy's motion. While the NSAC-202L issue is not central to Contention 4, it is tangentially relevant and therefore admissible. F. Definition of Flow Accelerated Corrosion Entergy moves to strike those portions of NEC's rebuttal statement of position and rebuttal testimony by Dr. Hopenfeld and Dr. Hausler that address the the definition of FAC. Entergy Motion 1 at 18-20. According to Entergy, NEC had not previously challenged the definition of FAC presented in the license renewal application (LRA or Application). ~ at 17. Therefore, Entergy argues, NEC's attempts to challenge the definition in rebuttal testimony are improper. ~ at 20. NEC argues that the issue is not being raised for the first time on rebuttal, but rather has been raised at the contention admissibility stage and in direct testimony. NEC Answer to Entergy Motion 1 at 7-8. Furthermore, NEC says, the discussion found in rebuttal testimony is a response to the direct testimony of an Entergy witness. ~ at 8.

6 The Board denies this portion of Entergy's motion. Contention 4 deals with "flow accelerated corrosion." We see no reason why we should automatically accept Entergy's definition of this term and exclude any other evidence or testimony on this point. G. Inclusion of "Susceptible Reactor Components" in FAC Program Entergy moves to strike those portions of Dr. Hopenfeld's rebuttal testimony that extend his FAC concerns to "susceptible reactor components." Entergy Motion 1 at 21. According to Entergy, Contention 4 extends only to the problem of FAC in the plant's carbon steel piping. .!fL. NEC does not reply to this part of the motion. The Board denies this portion of Entergy's motion. While we agree that Contention 4 focuses on piping, we do not see Dr. Hopenfeld's testimony as expanding the scope of the original contention. Rather, it deals with the same piping and associated components susceptible to FAC that the contention has addressed from the outset. H. Exclusion of Mr. Witte's Testimony Entergy moves to strike the direct testimony of Mr. Ulrich Witte on Contention 4, along with associated NEC Exhibit NEC-UW_03, in its entirety, on the ground that "Mr. Witte does not qualify as an expert on the issues raised by NEC Contention 4 by 'knowledge, skill, experience, training, or education.'" Entergy Motion 1 at 22. According to Entergy, Mr. Witte's curriculum vitae (CV) provides no indication that he is qualified to offer opinions on FAC programs . .!fL. at

23. Furthermore, Entergy says, Mr. Witte's allegations are not stated adequately or supported by sufficient evidence. kL. at 23- 25.

NEC replies that Mr. Witte's expertise is in "licensing and regulatory compliance of commercial nuclear facilities, which does qualify him to identify problems in Entergy's implementation of its FAC management program based on a review of program documentation." NEC Answer to Entergy Motion 1 at 9. According to NEC, he has extensive

7 experience evaluating "the compliance of nuclear facilities with regulatory requirements and industry guidance." ~ NEC notes that expert witnesses are not required to supply a citation for every statement made, and claims that Entergy's own experts would not meet that test. ~ at 11. However, NEC notes that Mr. Witte has identified some errors in his exhibits and has filed corrections. ~ The Board grants in part and denies in part this portion of Entergy's motion. First, as to factual matters, we are not willing to strike Mr. Witte's testimony as to events and activities that are primarily factual and otherwise historically verifiable in this proceeding. Indeed, all of the "expert" witnesses propounded by Entergy and the NRC Staff seem to offer hearsay testimony about factual matters that they apparently did not participate in or witness. In this respect, while we note that Mr. Witte has a penchant for qualifying his statements with phrases such as "it appears," we decline to throw out all of his testimony because of his cautious terminology. Mr. Witte's factual testimony is not without some support, and the degree of support he offers will go to the weight to be given to his testimony rather than to its admissibility. Second, as to his areas of expertise, and his ability to proffer expert opinions that might be helpful to the Board and acceptable under the standards of FRE 702, we segregate Mr. Witte's testimony into two categories. As to the category of configuration management issues, we find that Mr. Witte is qualified and his opinion testimony acceptable under FRE 702. This is in keeping with our previous decision to admit his testimony on Contention 3 at the MSD phase." However, as to the predictive accuracy of the CHECWORKS model, the requirements 8 Contention 3 MSD Order at 13 ("[T]he Board finds that [Mr. Witte's] background in the areas of configuration management, engineering design change controls, and licensing basis reconstitution provides him with the management-level capability to review results and assess whether there are apparent issues with the data that may raise concerns warranting further (continued ...)

8 necessary to benchmark it, and other technical aspects of predicting and modeling FAC, we see nothing in Mr. Witte's CV that would qualify him to offer expert opinions on these subjects. and we therefore grant this portion of Entergy's Motion 1. Those portions of Mr. Witte's direct testimony that are stricken are displayed on two attachments hereto: Attachment 1: NEC Exhibit NEC-UW_01 With Strike-Outs Attachment 2: NEC Exhibit NEC-UW_03 With Strike-Outs The remainder of Entergy Motion 1 with regard to Mr. Witte is denied, including specifically Entergy's request to strike Mr. Witte's CV, NEC-UW_02, and the other exhibits related to Mr. Witte's direct testimony, NEC-UW_04 to _22. I. Rulings on Entergy Motion 1 Exhibit 1 Entergy Motion 1 includes an exhibit 1 entitled "NEC Materials Subject to Exclusion Pursuant to Entergy's Motion in Limine." Attachment 3 hereto provides our rulings on each item listed on Entergy's exhibit, along with citations to the sections of this order in which the listed items are addressed. III. STAFF MOTION 1 On June 12, 2008, the NRC Staff filed a motion to strike certain testimony and exhibits filed by the NEC in this proceedinq.? Entergy filed an answer supporting this motion." and NEC 8(... continued) investigation and resolution.") 9 NRC Staff's Motion in Limine to Strike Testimony and Exhibits Filed by New England Coalition, Inc. (June 12, 2008) [Staff Motion 1]. 10 Entergy's Response in Support of Staff's Motion in Limine (June 19, 2008).

9 opposed it.11 Staff Motion 1 raises a number of issues, and our rulings are as follows." A. Testimony and Exhibits of Mr. Ulrich Witte, as Unsupported The NRC Staff moves to strike NEC witness Ulrich Witte's direct testimony in its entirety on the ground that large portions are allegedly "unsupported by facts or evidence." Staff Motion 1 at 5. As evidence for this claim, the Staff notes Mr. Witte's use of language such as "may have" and "apparently." .!.9..:. The Staff also argues that some of the exhibits Mr. Witte supplies in support of his testimony do not, in fact, stand for the propositions for which he cites them. .!.9..:. at 6. For these reasons, the Staff says, Mr. Witte's testimony "can only be of marginal use, if any, to the trier of fact." .!.9..:. NEC replies that Mr. Witte is not required to submit a citation for every statement he makes, and acknowledges and corrects certain citation errors in Mr. Witte's original submission. NEC Answer to Staff Motion 1 at 5. The Board denies this portion of the Staff's motion. As we noted in our ruling on Entergy Motion 1, Mr. Witte's testimony is not completely unsupported. The degree of support he offers and the qualifying language he employs go to the weight to be given to his testimony and do not render his factual testimony inadmissible. B. Mr. Witte's Testimony Regarding Entergy's "Commitments" The NRC Staff moves to strike Mr. Witte's testimony related to Entergy's "commitments." Staff Motion 1 at 6. The Staff says that Mr. Witte does not provide any exhibits or evidence to demonstrate the existence of these alleged commitments, and that he has 11 New England Coalition, Inc's Opposition to NRC Staff's Motion in Limine to Strike Testimony and Exhibits Filed by New England Coalition, Inc. (June 19, 2008) [NEC Answer to Staff Motion 1]. 12 The portions of Mr. Witte's testimony, and of associated exhibit NEC-UW_03, that have already been stricken are identified in Attachments 1 and 2 to this order.

10 identified certain things (such as generic letters issued by NRC) that cannot be licensee commitments. ~ at 6-7. NEC claims that the Staff moves to exclude this material because it disagrees with NEC's definition of "commitments." NEC Answer to Staff Motion 1 at 5. Mr. Witte has identified the materials he reviewed in evaluating Entergy's "commitments," NEC says, and his testimony should be considered. ~ The Board denies this portion of the Staff's motion. Any shortcomings in Mr. Witte's citations go to the weight of his testimony rather than its admissibility. C. Mr. Witte's Testimony Regarding Current Licensing Basis (CLB) Issues The Staff moves to exclude Mr. Witte's statements regarding compliance with the CLB on the ground that they are outside the scope of a license renewal proceeding. Staff Motion 1 at 7. NEC argues that some of these statements are admissible because they address aspects of Entergy's FAC program that will carry forward into the license renewal term. NEC Answer to Staff Motion 1 at 4. The Board grants in part and denies in part this portion of the Staff's motion. While a challenge to the CLB is outside the scope of a license renewal, the CLB itself is relevant to the extent that a plant's current practices will form part of its aging management program during the license renewal term. Additionally, past reductions in the safety margin of the CLB may be relevant to a reactor's ability to withstand an additional 20 years of operation. Thus, we are not willing to exclude evidence merely because it touches upon Entergy's CLB. On the other hand however, this is not an enforcement proceeding and allegations that Entergy is in violation of its CLB are outside the scope of this proceeding and must be stricken. D. Dr. Hopenfeld's Testimony in Response to Staff Witness Mr. Fair The Staff moves to strike statements by NEC witness Dr. Hopenfeld on the grounds that they are "commentary" on testimony offered by Staff witness Mr. John R. Fair. Staff Motion 1 at

11

9. NEC argues that Dr. Hopenfeld's statements merely indicate disagreement with Mr. Fair's testimony and should be admitted. NEC Answer to Staff Motion 1 at 3.

The Board denies this portion of the Staff's motion. While Dr. Hopenfeld's testimony on this point may be strongly stated, it is not inadmissible. E. Dr. Hopenfeld Testimony Regarding Requirements of ASME Code and of 10 C.F.R. § 54.21(c) The Staff moves to strike portions of Dr. Hopenfeld's testimony related to his assertions that the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code requires licensees to account for environmental conditions that are more aggressive than air, and that 10 C.F.R. § 54.21(c) requires licensees to demonstrate "that components will operate safely in a reactor environment." Staff Motion 1 at 9. The Staff argues that the ASME Code is non-mandatory quidance, not a regulatory requirement, and that 10 C.F.R. § 54.21(c) requires an evaluation of time-limited aging analyses and not the demonstration that Dr. Hopenfeld asserts. kl. NEC replies that the question of the ASME Code is an area of disagreement between the Staff and NEC, and that this disagreement is no reason to dismiss Dr. Hopenfeld's testimony. NEC Answer to Staff Motion 1 at 3. NEC does not reply to the portion of the Staff's motion that addresses the content of 10 C.F.R. § 54.21(c). The Board denies this portion of the Staff's motion. Witnesses for all parties seem to proffer their opinions on the law (~, what the relevant laws or regulations mean or require). The Board does not intend to be misled by such "evidence." The Board will rule on questions of law in this proceeding, guided by our own best lights and the legal briefs by the parties. We see no need to single out Dr. Hopenfeld and strike his occasional assertions on points of law. F. Dr. Hopenfeld's Assertion that Entergy Has Withheld Information The Staff moves to strike those portions of Dr. Hopenfeld's direct testimony that make claims that Entergy has failed to disclose necessary information, perhaps to thwart public

12 scrutiny of its methods. Staff Motion 1 at 10. According to the Staff, these statements are argumentative and speculative . .kh If NEC knows that Entergy is withholding specific information, the Staff says, then a motion to compel is the proper way to obtain the missing materials. kl. NEe replies that Dr. Hopenfeld's statements address the issue of whether Entergy has met its burden of proof. NEC Answer to Staff Motion 1 at 4. The Board grants this portion of the Staff's motion. Casting aspersions regarding alleged non-disclosures and strategies is not appropriate, and these statements will be stricken. G. Qualifications of Dr. Hopenfeld and Dr. Hausler The Staff moves to exclude the testimony of Dr. Hopenfeld with regard to Contentions 2A and 2B, and of Dr. Hausler with regard to Contention 4. Staff Motion 1 at 11. The Staff argues that Dr. Hopenfeld's qualifications lack specificity, and that Dr. Hausler has not demonstrated experience using CHECWORKS. kl NEC argues that the Staff's allegations regarding Dr. Hopenfeld are inconsistent in that the Staff actually admits that his qualifications are relevant to the subject matter of Contentions 2A and 2B. NEC Answer to Staff Motion 1 at

2. NEC also argues that Dr. Hausler's testimony deals with FAC in general and with data interpretation and analysis, areas that do not require direct experience using CHECWORKS.

.khat? The Board denies this portion of the Staff's motion. Both NEC witnesses appear to be qualified to speak in the areas for which they have submitted testimony, and the Board will evaluate their statements (like those of all witnesses) for what they are worth in ruling on the merits of the contentions in question. IV. NEC MOTION TO STRIKE Also on June 12, 2008, NEC filed a motion to strike the NRC Staff's rebuttal testimony concerning Contention 4, and associated exhibits, to the extent it responded to NEC's initial

13 statement of position." The NRC Staff filed an answer opposing NEC's motion." and Entergy did the same." In its motion, NEC argues that the Staff's rebuttal testimony responding to NEC should be stricken in its entirety because NEC believed that the staggered filing schedule for direct testimony necessarily implies that Staff and Entergy responses to NEC's direct testimony must only be made in their initial/direct testimony rather than in their rebuttal testimony. NEC Motion to Strike at 2. According to NEC, the NRC Staff should have limited its rebuttal testimony to responses to Entergy's direct testimony. .lit According to NEC, Entergy's rebuttal testimony follows this pattern . .lit Both the NRC Staff and Entergy argue that nothing in the ISO supports NEC's interpretation. Staff Answer to NEC Motion to Strike at 2-3; Entergy Answer to NEC Motion to Strike at 3. The Board denies this motion. While NEC's stated interpretation of the ISO is understandable (and apparently followed by Entergy), there is nothing in the letter of the ISO that restricts the Staff's rebuttal to responding to Entergy's direct testimony. Nor was such a restriction the Board's intent. The contentions that were admitted in this proceeding were stated very broadly. Allowing the Intervenor to file its statement of position and testimony first was meant to give the Intervenor the opportunity to better define the scope of its litigation position, and to reduce the need for the NRC Staff and Entergy to file testimony responding to matters that NEC did not intend to litigate. The Board provided only a short interval between 13 New England Coalition, Inc's Motion to Strike NRC Staff Rebuttal Testimony Concerning NEC Contention 4 (June 12,2008) [NEC Motion to Strike]. 14 NRC Staff's Response to NEC's Motion to Strike NRC Staff's Rebuttal Testimony Concerning NEC Contention 4 (June 19,2008) [Staff Answer to NEC Motion to Strike]. 15 Entergy's Response in Opposition to NEC's Motion to Strike Staff's Rebuttal Testimony (June 23, 2008) [Entergy Answer to Staff Motion to Strike].

14 the due date for NEC's initial testimony and the initial testimony of Entergy and the NRC Staff. This is because the former was merely intended to help scope the latter. V. NEC MOTION FOR LATE-FILED REBUTTAL TESTIMONY On June 6, 2008, NEC filed a motion requesting permission to file Ulrich Witte's rebuttal testimony late." An illness prevented Mr. Witte from completing his testimony on time, NEC said, and counsel for the organization was unaware of that fact until the deadline arrived. & at

1. NEC attached Mr. Witte's testimony to the motion as an exhibit. ~, Exh. 3. Entergy subsequently filed an answer opposing the untimely filinq." Both Entergy and the NRC Staff filed Motions addressing the content of this rebuttal testimony."

The Board grants NEC's motion to file Mr. Witte's rebuttal testimony late. We address the specific challenges to the content of this testimony in the following two sections. VI. ENTERGY MOTION 2 On June 23, 2008, Entergy filed a motion to exclude the rebuttal testimony of Ulrich Witte in its entirety, along with associated exhibits NEC-UW_24 to _26. 19 In this motion, Entergy argues that Mr. Witte's rebuttal testimony should be stricken because Mr. Witte is not an expert in the areas of Contentions 2A, 2B, and 4, and because he fails to provide any relevant factual support for his opinions. ~ at 2. NEC responds with the same argument it 16 New England Coalition, Inc's Motion to Late-File Rebuttal Testimony of Ulrich Witte (June 6, 2008). 17 Entergy's Response in Opposition to NEC Motion to File Untimely Rebuttal Testimony by Ulrich Witte (June 23, 2008). 18 See Sections VI and VII, infra. 19 Entergy's Motion in Limine to Exclude the Rebuttal Testimony of Ulrich Witte (June 23, 2008) [Entergy Motion 2].

15 uses in response to the motions challenging Mr. Witte's initial/direct testimony." The Board grants in part and denies in part Entergy's motion. We find no evidence that Mr. Witte is qualified to offer expert opinion on the subject matter of Contentions 2A and 2B, and we therefore strike those portions of his rebuttal testimony that address these contentions. (Mr. Witte did not submit direct testimony addressing these contentions.) However, we have previously found that Mr. Witte is qualified to offer expert testimony on some aspects of Contention 4, see Section II.H, supra, and we decline to strike his rebuttal testimony in its entirety for that reason. Those portions of Mr. Witte's rebuttal testimony that are stricken are reflected on hereto, NEC Pre-Filed Rebuttal Testimony of Ulrich Witte Regarding New England Coalition, Inc's Contentions 2A, 2B and 4 with Strike-Outs. VII. STAFF MOTION 2 Also on June 23, 2008, the NRC Staff filed a motion to strike the rebuttal testimony and associated exhibits of NEC witness Ulrich Witte. 21 With respect to Contentions 2A and 2B, the Staff argues that "[tjhrouqhout Mr. Witte's rebuttal testimony, there are discussions that are not relevant to the admitted contentions." kl at 4. In addition, the Staff says, much of Mr. Witte's rebuttal testimony is unsupported. kl at 4, 7. The bulk of the motion consists of a list of statements the Staff challenges as falling into one of these two categories. kl at 5-12. Finally, the Staff argues that Mr. Witte is not qualified to testify in the subject matter area of Contention

4. kl at 7. NEC responds with the same argument it uses in response to the motions 20 New England Coalition, Inc's Opposition to Entergy's and the NRC Staff's Motions in Limine to Exclude Rebuttal Testimony of Ulrich Witte (June 30,2008) [NEC Answer to Entergy Motion 2 and Staff Motion 2].

21 NRC Staff's Motion in Limine to Strike Late-Filed Rebuttal Testimony and Exhibits of NEC Witness Ulrich Witte (June 23,2008) [Staff Motion 2].

16 challenging Mr. Witte's direct testimony. NEC Answer to Entergy Motion 2 and Staff Motion 2 at 2-4. The Board grants in part and denies in part Staff Motion 2. In accordance with our decision on Entergy Motion 2 above, all of Mr. Witte's testimony on Contentions 2A and 2B has been stricken for reasons other than those proposed by the Staff. See Section VI, supra. Our reasoning regarding Mr. Witte's general qualification to offer testimony on Contention 4 is set forth in our ruling on Entergy Motion 1, and we decline to exclude the whole of Mr. Witte's rebuttal testimony on that contention. See Section II.H, supra. Rather, we strike only those portions of his Contention 4 rebuttal testimony that fall into those areas for which he was deemed unqualified to offer direct testimony. Those portions of Mr. Witte's rebuttal testimony that are stricken are displayed, along with those stricken in response to Entergy Motion 2, on Attachment 4 hereto, NEC Pre-Filed Rebuttal Testimony of Ulrich Witte Regarding New England Coalition, Inc's Contentions 2A, 2B and 4 with Strike-Outs.

17 VIII. CONCLUSIONS All parties are instructed to file their testimony and exhibits at the hearing in accordance with the above rulinqs. In so doing, the parties are instructed to assume that all materials not explicitly stricken in the text of this order or in the attachments hereto are admitted. It is so ORDERED. FOR THE ATOMIC SAFETY AND LICENSING BOARD 22 Alex S. Karlin ADMINISTRATIVE JUDGE Rockville, Maryland July 16, 2008 22 Copies of this order were sent this date by Internet e-mail transmission to counsel for (1) licensees Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc.; (2) intervenors Vermont Department of Public Service and New England Coalition of Brattleboro, Vermont; (3) the Staff; and (4) the State of New Hampshire and the Commonwealth of Massachusetts.

Attachment 1 UNITED STATES OF AMERICA NUCLEAR REGULATOR Y COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Alex S. Karlin, Chairman Dr. Richard E. Wardwell Dr. William H. Reed In the Matter of Docket No. 50-271-LR ENTERGY NUCLEAR VERMONT YANKEE, LLC, and ASLBP No. 06-849-03-LR ENTERGY NUCLEAR OPERATlONS, INC. (Vermont Yankee Nuclear Power Station) PRE-FILED DIRECT TESTIMONY OF ULRICH WITTE REGARDING NEC CONTENTION 4 Ql. Please state your name and address. Al. My name is Ulrich Witte. I reside on 71 Edgewood Way, Westville, Connecticut, 06515. Q2. What is your educational and professional background? Al. I obtained a BA in physics from the University of California, Berkeley in 1983. I have over twenty-six years of professional experience in engineering, licensing, and regulatory compliance of commercial nuclear facilities. I have considerable experience and expertise in the areas of configuration management, engineering design change controls, and licensing basis reconstitution. I have authored or contributed to two EPR! documents in the areas of finite element analysis, and engineering design control optimization programs. I have chaired the development of industry guidelines endorsed by the American National Standards Institute regarding configuration management programs for domestic nuclear power plants. My 26 years

of experience has generally focused on assisting nuclear plant owners in reestablishing fidelity of the licensing and design bases with the current plant design configuration, and with actual plant operations. In short, my expertise is in assisting problematic plants where the regulator found reason to require the owner to reestablish competence in safely operating the facility in accordance with regulatory requirements. My experience is further detailed on my curriculum vitae filed with this testimony as Exhibit NEC-UW_02. Q3. What is your understanding on NEC Contention 4 in this proceeding? A3. NEC Contention 4 asserts that Entcrgy's plan for managing flow-accelerated corrosion (FAC) in plant piping fails to meet the requirements of 10 C.F.R. § 54.21 (a)(3),

i. e., "fails to demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB during the period of extended operations."

Q4. Did you prepare a report regarding this contention? A4. Yes I did. My report is filed with this testimony as Exhibit NEC-UW_03. 'Ibis testimony and my report provide, to the best of my knowledge, true and accurate statements of the facts and my conclusions regarding the issues relevant to NEC's Contention 4. QS. What materials did you review in support of your report and testimony? AS. I reviewed the implemented FAC program and FAC inspection program, other inspection programs that Entergy has in place, and records and histories of these inspections. I also reviewed industry-wide standards for FAC programs, NRC data, information and reports, the CHECWORKS program and Entergy's commitments to 2

upgrade the CHECWORKS model to EPU design conditions, inspection reports, EPU parameters, Plant Quality Assurance audits, Condition Reports, Corrective Actions, NRC regulations, EPRl review of the VY plant, Cornerstone Rollup, examples from other plants, and Entergy's application and the record (including reports, proposed programs, and testimony to the NRC Advisory Committee on Reactor Safeguards Subcommittee on Plant License Renewal) provided by Entergy or others in support of its application, including pipe wall thinning structural evaluation. Further materials that 1 reviewed are specified in my attached report. These are materials that are regularly used by experts in my field to assess aging management programs and flow-accelerated corrosion. I applied these materials in a standard manner that is routine with experts in this field. Q6. Were these materials sufficient to allow you to form opinions and draw conclusions using your expertise? A6. Yes, I had sufficient information to formulate the assessment stated in my report and maintain standards that are widely accepted by experts in this field. The Applicant did not, however, produce complete information to NEC regarding its methodology. My report notes where the Applicant's materials fail to provide sufficient information. As I have explained in my report, the information the Applicant produced is insufficient to validate its aging management program. Q7. Please summarize your conclusions. /\7. In summary, I reached two conclusions: 3

ata collected under the current VYNPS FAC program~d!JJL*l.llg;-trre-p on of the curre .s insufficient ar CHECWORKS to VYNPS's post-EPU conditions./The Applicant states without ambiguity that the present program is sufficient not just for current operations and maintenance of the plant, but for the license renewal period as well. The record of a historical regulatory compliant program indicates otherwise.

     ~nt VYNPS FAC program~d~o~e~s1Jn~apJf)fflpri':ane:r:yYlilmTIPlplement industry guidance                                                                                 to FAC.

More specifically, my conclusions are:

• Contrary to EPRJ recommendations, from 1999-2006, Entergy apparently failed to update the CHECWORKS model in use at VYNPS with plant inspection data or information concerning plant modifications. This lengthy lapse may have si trending arid r . . t tty of the software, both during the lapse period and presently.

The update to incorporate EPU design data appears to still be in progress as of February 2008.

• Contrary to EPRJ recommendations, the VYNPS FAC program apparently used an outdated version of the CHECWORKS software during the years 2000-2006.
• In 2005, the CHECWORKS model predicted wall thinning close to or exceeding acceptable code .limits at several locations, but Entergy apparently produced no Condition Reports addressing these imminent potential pipe ruptures, or at least has not produced such reports to NEC in this proceeding.

4

• Numerous internal Entergy reports label the VYNPS FAC program unsatisfactory. The program was deemed unsatisfactory in the 2004, and the 2006 cornerstone report expressed concern about the program and specifically the continued slow progress in updating the CHECWORKS model.
• An FAC-related pipe rupture appears to have occurred during the third quarter of 2006.
• The 2006 refueling outage FAC inspection scope, planning, documentation and procedural analysis all appear to have been performed under a superseded program document, potentially invalidating the pre-EPU baseline for use of CHECWORKS.
• Entergy apparently reduced the number of FAC inspection data points by fifty percent (50%) between the 2005 refueling outage and the 2006 refueling outage, in violation of its commitment to increase inspection data points by fifty percent (50%).

Further detail and supporting information is in my attached report. I declare pursuant to 28 U.S.C. § 1746 under penalty of perjury that the foregoing is true and correct. Executed on April _ ' 2008 Ulrich Witte 5

I declare under penalty of perjury that the foregoing is true and correct. Ulrich Witte At hia/v; *- , Connecticut, this 2. "3.-,( day of April, 2008 personally appeared Ulrich Witte, and having subscribed his name acknowledges his signature to be his free act and deed.

                  ~~~vst
                             ~tiJjp4j;f;/>~

Notary Public My Commission Expires 8 - :3 I - 'J D .7 (

Attachment 2 ATTACHMENT A EVALUATION OF VERMONT YANKEE NUCLEAR POWER STATION LICENSE EXTENSION: PROPOSED AGING MANAGEMENT PROGRAM FOR FLOW ACCELERATED CORROSION NEC-UW_03 I. Introduction CORRECTED I submit the following commentsin supportof the NewEngland Coalition, Inc.ts REDACTED ("NEC")Contention 4. My comments concern the Applicant'sagingmanagement program, specifically addressing the fidelityofthe Flow-Accelerated Corrosion ("FAC") Program (NEC Contention 4). NEC assertsthat the application for LicenseRenewal submitted by Entergy for Vermont Yankeedoes not includean adequateplan to monitorand manage agingof plant equipment due to flow-accelerated corrosion("FAC") duringextended plant operation. The Applicant has represented that its F AC management program duringthe period of extended operation will be the same as its programunderthe currentoperating license, . and consistent with industry guidance, includingEPRINSAC202L R,3. The use of the CHECWORKS model is a centralelement in the Program implementation. In the Applicant'smotion for sununary disposition, the Applicant proffered a

                                                                     -

response that creditsthe its currentprogram for FAC management at the facility, and simply extends the current program for the renewalperiod,makingthe following statement: "furthermore, the FAC programthat will be implemented by Entergyis the sameprogram beingcarried out today, which has not been otherwise challenged by NEC, will meetall regulatoryguidance." Ref. Entergy Motion for Summary Disposition on NewEngland Coalition's Contention 4 (FlowAccelerated Corrosion), June 5,2007. at 3. Italics added. The Applicant has assertedthat it is in full compliance with its current licensing basisregarding its FAC program. The Applicantassertsthat the plans for monitoring flow

accelerated corrosion, including the FAC Program goal of preclusion includes appropriate procedures or administrative controls to assure that the structural steel integrity of all steel lines containing high-energy fluids is maintained. Id at 6. The applicant is argues that since the VY FAC program is based on EPRI guidelines and has been in effect since 1990, one could therefore conclude the applicant has established methodology so as to preclude of negative design margin or forestall an actual pipe rupture, and Entergy infers that it is technically adequate and is compliant with its licensing basis requirements. draw a different conclusion. Based 011 the implemenredprogram presently in e uacies necessary for effective implementation (including

                                             .,.,._~..".e substantial in program scope, application of modeling software, and finally necessary revisfd implemented as was promised to support the power up-rate. I am not alone in thiS conclusion.      ogram weaknesses and failures have been identified by others and form the basis of condition reports, the categorization as unsatisfactory in a Quality Assurance Audit dated November 11, 2004 1, and noted as "yellow" in a cornerstone roll-Up report circa 2006 2

• In addition, the NRC Project Manager made a recent inquiry into indications of an out-of-date program. J On Monday, April 21, 2008, I spoke by phone with NRC resident inspector Beth Sienel, and she confirmed that, even now, Entergy has not completed verification of the upgrade of the CHECWORKS model to EPU design conditions. This concern regarding deficiencies in implementation of the program brings I ExhibitNEC-UW_9. AuditNo.: QA-8*2004-VY-I, "Engineering Programs", page2. (NEC038S 141

] ExhibitNEC-UW_7, Cornerstone Rollup, Program: FlowAccelerated Corrosion, Quarter:3111, deted 10/0312.006, page NEC038~24, Open ActionItems, (includes All CR.CAs,ER post actionitemsand La* GAs,is shownas yellow, however,6 LO*CAs arc shown as open. By definition, "Red" includes2 or more CR*CAs and lor EIRpost action items(excluding Las action items)grealerthan one year. J ExhibitNEC*UW_14. 2

into question the results ofFAC inspection during RFO 25 and RFO 26, in which power up-rate design data apparently is as yet not incorporated. These program implementationdelays are substantive, and based upon the .infonnation provided to NEC appear to remain unresolved. These deficient conditions raise questions as to the fidelity of the entire license renewalapplication, Entergy's commitments for licenserenewal, management oversight, and the efficacy of the regulatory-requiredCorrective Action Program. If it is true that power up-rate parameters such as flow velocity were not incorporatedinto the FAC program model, these deficienciesappear to be substantive and without question warrant condition reports under the Entergy Corrective Action Program, in particular given that they appear to violate regulatorycommitments regarding the Flow Accelerated Corrosion Program. 10 CFR Part 50 Appendix B, "Quality Assurance Criteria for NUClear Power Plants and Fuel Reprocessing Plants," provides that a condition that is deficient is required to be identified, investigated,and remediated expeditiously," Promises to correct the deficient program at some point in .the future are not sufficient, unless all reasonable alternative methods for remediation are exhausted and the condition is shown to be safe in the interim. Lack of oversight and a single missed inspection point that remained unnoticed

• IOCFR Part50, AppendixB. XVI,"CorrectiveAction,"states:"Measures shall be established 10 assure that cenditicnsadverse 10 quality.such as failures, malfunctions, deficiencies, deviations, defective material andequipment, and non-conformances arc promptlyidcntifiedandcorrected. In lhe CllSC of significant conditions adverse to quality, the measuresshall assurethat the cause of the condition is determined and corrective actiontaken to preclude repetition. The identification of the significant condition adverseto quality, the causeof the condition, and the correctiveactiontakenshall be documented and reportedto appropriate levelsof management."

3

for yearsS led the Japanese Mihama Plant FAC pipe rupture in 2004, causing five fatalities. 6 As discussed in detail below, Vermont Yankee missed dozens of points. Identification of discrepancies and timely corrective action are the cornerstones of a well-managed plant. In my experience assisting problematic plants, change usually begins with a cultural shift toward proactive corrective action and away from a reactive mentality ofdelaying needed corrective actions to programs such as FAC that result in unresolved deficient conditions and unnecessarily narrowedsafety margins for longer periods oftime than are necessary. A common metric used by the regulator (for example in ROP reviews)and management is the volume ofthe backlog of open corrective actions and the number of open corrective actions that date further back than one year. two years or even three or more years, to establish the fidelity of the licensee's compliance with the terms of its operatinglicense and associated commitments. The metric is useful in evaluatingFlow Accelerated Corrosion management at Vermont Yankee. II. Summary Assessment BlJsedl-O!lLa'detailed review of the record provided to NEC regarding the Flow-AcceleratedCorrosion Program, my corrniC1tm.:lIU*U!th~at the FAC program appearsto have been in non-compliance with its licensing basis from about 1999 thro.liuigglNIehRl8:rx..~1 The failure to comply is evidenced by the licensee's own assessments, audits, and conditionreports, roll-up of numerous cornerstone reports, and focused self-assessments. Correctiveactions from approximately five Condition Reports ("CR") remained open for 5 ExhibltUW_20, Page 6 of 14ofVY FAC InspectionProgram PP7028,2005 refuelingoulage..!! NECq3}JQ9._ .. _.,., " ,_ ,. ." _... .. _.. .. .. , ..' .. -{ Deleted: 7 6 Kepco Ordered 10 Sillli Down Mihama Reactor. The Japan Times, September28, 2004. availableat hltp://s,arch.laoantimes, co.!,pImemhe'*/member. html?nnl004092896.htlll. 4

as much as four years. The last condition report regarding FAC,CR 2006-2699, was written on August 30, 2006. Although noted in the cornerstone report dated October of 20067, the condition reportapparently was never providedto NEC. The conditionreport aggregatedapproximately six corrective actions to the programthat had been ignored and the current status was then open and which is presentlyunknown to NEC. In addition, the most recent FAC inspection was performed under superseded procedures and the resultstherefore are of potentially no programmatic value8* Procedure ENN-DC-3 )5, was revised and in effect on March ), 2006, yet superseded on December l , 2006 by yet a new program level procedure. Close examination shows that the procedures prepared, approved and implementedby Entergy for implementing the FAC Program were substantially revised, yet were not used in the most recent flow-accelerated corrosion inspections after VY increased operatingpower by 20 percent in the March, 2006 EPU, nor were they available for RFO 25, the first outage after power up-rate. Required changes, includingboth a software upgradeand design parametersregardingthe substantialplant modification to uprate the plant to 120%power, were not incorporated for either outage, and were in fact still being implemented in February2008, when Staff inquired on this subject. 7 Exhibit NEC.UW_07 Cornerstone Rollup,Program: Flow Accelerated Corrosion, Program Infrastructure Cornerstone, Qulllter: 3n1, dated IO/03fl006, page NEC03§.1.!.9_t~<!.n:.e£l~v~ fLEtjo.n .Plll!1.tl?, c:.o.!"'p~e!e _o~__ . 0 ... o[ Deleted: J LO-CA tasks developed 10/0212006, (CR*2006-02699)"). See also po. NECOJ8422, NECOJ8424. '--~ ..J NEC038426-28-scc also foomote 3.

• Exhibit NEC~.\(( ~ip~1I f ~<; !o.slleEt.!l1.0 .!'! C?&!lI!'!.~~ l~!-_29QI~.fI!e!il.!&. Ql!t~...I!'SJl~CJij>J1 *. { Deleted: UW_20 Location WOI'kshec:tslMethods and Reasonsfor Component Selection,"April3. 2006, at I, NEC017888, '----------------'

5

  * * * * * * * * * * * * * * * * * * * * . The Feedwater System FAC review was run using 1999 Ultrasonic Test ("UT") data, yet the results were not used in the RFO 24 outage.

beaneven marginally predictive modeling tool, the, CHECWORKS model

                                                                                                                     * { Formatted: Highlight should have been kept     currff!r~~
                                                                                                                     . ( Formatted: Highlight 1999. The predictive capability of CHECWORKS was virtually               non-existenint"..;l~

period from 1999 forward. Although Entergy did incorporate the program, which depends heavily on trending of data of multiple outages, they incorporated in one plunge plant design conditions during the 3'" quarter 2006. The scoping document supporting selection of grid points collected essentially all the sins of the past, including, for example, stale predictive inspection data from the out-of-date version of CHECWORKS, and placed heavy reliance on engineering judgment. As provided under the 2005 seeping document I I ,

                                                                                                          ".. .' .'f Deleted:I
                                                                                                          , ".. -, Deleted: I

, ' , , .. - ~ Deleted: II ExhibitNEC-UW_20, PP7~;8-P-i;~:;;~ J~:~:t;o~ ~:o~~~;~~ ;n~t~o~ ~-e~~~s -f~r"2~5- - .. - .. - ", .. Formatted: Highfight RefuelingOutage, undated, NEC037099. Includeson pageNEC037I04, Inspection Locations and Reasons fOT component selection, dated 3/1105. Noteon page 2 of 14oflhis report.exclusions of inspection scope were basedupon cyclepredictions from 1999,and did not appearto includeUpratedesign changes, nor accountfor the EPR! modelnot being current, Many recommendations from 1999werenollo reinspecl unlil 2007--or 9 years. This approach appearsto be entirelyinconsistent with NSAC 202L. Newerexaminations 6

the rationale for selection of grid points relied on (I) length oftime since the lapsed inspections had ceased to examine a particular inspection point, (2) CHECWORKS User Groups, (CHUG) suspects found at other plants, (3) exclusion of components that were intended to be replaced based upon another regime or degraded condition. data from previous FAC inspections routinely been entered into

                             .__".~"",,of grid points and ranking would have provided a better outage. With the exception ofVY's strength in reactively             rep~eiA,u>

with FAC-resistant material during repairs or maintenance, the program itself w effective as a predictive modeling tool. Simply stated, once something ruptured or was found to be outside its design margin, it was replaced in a reactive management approach. Proactive management of the program to predict failures has been inadequate in the FAC Program, as referenced above. Even the most recent inspection completed for RFO 26 appears to have been structured around procedures that were superseded, seeping requirements to establish a new baseline of pipe geometryand as-found wall thickness were based on stale data, and the upper-tiered governing procedure that was used had not been revised since 200 I and was therefore void. 12 showedan trend of increasedfrequency ofreinspeetion. See NEC037106. Page4 of 14providesfor negativemargin.or no inspections for Feedwater System. Conclusions calledfor "assessingthe need" for inspections in 2007 outage.See page NECQ37 107. The condensation system showed one component witll negative time to Tmin, The ExtractionSteamSystemindicated three components with negativetime to code rr~~:~; ~~.~~~:~~~ci!ll"ranscrijit-ofProceedingS-ACRST:i397. Advisory Committee*on-Re3ctor- - . ",- -[....De_Ieted __:_7 -l Safeguards'Subcommittee on Plant LicenseRenewal, June 5, 2007, at page43, Entergy's Mr. Dreyfuss stated: ..... we did increasethe numberof FAC inspections by 50 percentfromwhat we typically do in outages. We did 63 inspections overall." It is also notedthai me averagenumberof pointsexamined by the domestic industryis 82-undcr a well managed program, witllout significant changes to tile modeJ-sucb as a poweruprate. 7

The current program-level procedure had been in existence since March 2006. Scoping was performed in May of2006 under the void procedure, and updating of CHECWORKS was not done until 3rd quarter 2006. 13 Grid points, scope selection, and small bore piping susceptibility do not appear to have been ranked under NSAC 202L guidance or in an orderly trending of data by CHECWORKS based upon repeated passes with new grid points and new rankings selected, Data input and passes by CHECWORKS were not accomplished on an outage-by-outage basis." With only 63 points examined in RFO 26 15, the baseline for the power up-rate conditions appears not to have been established. I found it troubling that RFO 26 results were provided to the Advisory Committee on Reactor Safeguards ("ACRS") on June 5, 2007, but apparently were not disclosed to NEC. VY is the first plant modified to achieve Constant Pressure Power Up-rate to 120% power and only one other plant out ofthe fleet of 104 was licensed to 120% increase in power in one step. Given the uniqueness ofthe design ofVY's power up-rate, CHECWORKS has little industry benchmarking data, and is of marginal use.

  ~-"H..J1Ul:Q!) ofthe one other up-rated power plant, Clinton Power Station, suggests the possibility of future problems at Station, including a review of the FAC program, after its up-rate in January 2003 and found the program to comply with its licensing basis, including NSAC 202L and the use f] ExhibitNEC;UW .Q7attffiCQ.3§424, " " '" .. " . " *..* '" ',. " ......         m       ... _..    .. ...... _ .' __ . . ., . . . .' "   0 o{ Deleted: 10 14 ExhibitNEC-J,LW-20,.'{,'( ~ipipg f ~~ .!n_spc_c~i'!.n_P..~~IIl..e~ 70~~-..2.lX):i. 'f~C 11l~Q!:ction Program _ .. __ "             0

• Deleted: - UW*20 Recordsfor 200S Refuelin~ Outageatl'{E_c,onlI2 -@~037129. .. _ .. __ ........ _ ...... _ .... _ .. .. _ .. "'\ ~ -,. Deleted: 7 I' ExhibitNEC-UW-II, Official Transcript of Proceedings ACRST-3397. AdvisoryCommitteeon Reactor '.': Deleted: 9, Safeguards Subcommittee on Plant License Renewal,June S, 2007. at page 43, Entergy's Mr, Dreyfuss Deleted: 0 t 7896 stated: ..... we did increasethenwnbcr ofFAC inspections by SOpcrcenl from what we typicallydo in outages. We did 63 inspections overall." It is also noted that the averagenumberof points examined by the domesticindustryis 82-under a well managedprogram,without significantchangesto the model-such .,

a poweruprate, 8

ofCHECWORKS. Program inputs were fully incorporated from previous inspection data and heat balance up-rate data. Wear rates were predicted to increase 8% because of up-rated power conditions. Although the increase was a concern to the regulator, the program was found to be adequate. Yet only nine months later, Clinton experienced a FAC rupture". It is relevant that this failure occurred approximately 16 years after Clinton received itsoperating license in I987-whiJe apparently complying with its CLB and the EPRl guidance. 17 Plant Surry, where a rupture due to FAC killed four people, failed after IS years of operation, and required 190 component replacements due to FAC. The accident led to unpredieted causal events outside the engineering design basis-including discharge of COz, seepage of the heavier than air gas into the control room, requiring reactor operators to don Scott air packs and with some operators exhibiting symptoms such as dizziness because of control room habitabilityls. Pleasant Prairie, a fossil plant with similar conditions, endured a catastrophic FAC failure at 13 years, causing two fatalities", and a Japanese plant failed without warning, killing five people, simply because ofa failure to inspect one component section due to an administrative oversight, repeatedly missed by program owners." The oversight was never noticed during quality control or quality assurance reviews, or spotted by the system engineers responsible for FAC at the plant.

                                                                                                 ._ - ...{ Deleted: UW-20 17 ExhibitNEC_UW-04; Exhibit NEC_UW-.Q.5 at §~!.I'411                                      ..      .. - *['-De_Ieled:_._o        -'

I. ExhibitNEC-UW_22 U.S. NRC NUREG 0933; Issue 139:thinningof Carbon Steel Piping in LWRs (Rev. 1)..Il..H. 19 ExhibitNEC_UW*2I, MilwaukeeSentinel, Marcil 9, 1995, zo ExhibitNEC_UW.20 at NEC037109... .. __ .....{ DeIeted:aI9,NECOI7896 9

These plants were not specifically using aging management tools, where as others, such as Clinton, did-but each FAC failure occurred well before the plants reached their engineeredend-of-Iifeof 40 years. The event at Mihama occurred due to nothing more than an administrativefailure to routinely inspect a known FAC-susceptible component. fully concur with NEC's consultant Dr. Joram Hopenfeldthat comprehensive failures typically begin to emerge, such as the op . al age of the S~ plant at the time ofFAC failure, or the Clinton Plant failure. III. Licensing basis for management of Dow-accelerated corrosion at VY and review of the program implementation I reviewed the FAC program in four parts: Part A, examiningthe current licensing basis; Part B, the implementation ofthe licensing basis; Part C, the Licensee's own record ofproblems with implementation; Part D, my independent observations based on the record provided to NEC, and the requirements for implementingan effective program under NRC-endorsed guidance. with which the Licensee has stated that it has complied. A. Tbe current licensing Basis and the proposed licensing basis for the Dow accelerated corrosion program: My review to establishthe current licensing basis and the current status of application for license renewal includes the following documents: I. NUREG 1801 Rev I, §XI-MI7, Flow Accelerated Corrosion

3. CHECWORKS EPRI procedures provided by the Applicant, including fleet procedure EN-DC-315, Rev. 0, "Flow-Accelerated Corrosion Program" effective December I, 2006.

4. Commitments made by the licensee including the following: 22

i. USNR generic letter 89-08, Erosion corrosion -induced pipe wall thinning;

u. Vermont Yankee Letter to USNRC; iii. Vermont Yankee letter to the USNRC, Vermont Yankee Response to NRC Bulletin No. 87-0]: Thinning of Pipe Walls in Nuclear Power Plants, dated September II, 1987; iv. Vermont Yankee letter to the USNRC, Supplement to Vermont Yankee Responseto NRC Bulletin No. 87-01: Thinning of Pipe Walls in Nuclear Power Plants, dated December 24, 1987; v, USNRC Generic Letter 90-05, Guidance for Performing Temporary Non Code Repair of ASME Code Class I, 2 and 3 Piping, dated June 15, )990; vi. Vermont Yankee letter to the USNRC, request from code relief for use of ASME Code Case N-597, as an alternative to analytical evaluation of wall thinning; vii. USNRC letter to Vermont Yankee, Vermont Yankee Nuclear Power Station--Reliefrequest for use of ASME code case N-597 as an Alternative Analytical Evaluation of wall thinning (TAC No. MB) 530) dated July 27, 200 I. NVY 0] -74; viii. VY memo: J.F Calchera to OEC (R. McCullough), subject: response to commitment item: ER-990876_01, Reevaluate Feedwater Heater Inspection Program to address Ownership, dated April 25, 2000.

Industry guidance and other records that were used for interpreting VY position regarding license renewal include: ix. Flow accelerated corrosion in power plants TR*10661) 'RI, published by EPRI in 1999;

x. Official Transcript Advisory Committee on Reactor Safeguards subcommittee on Power Uprates November 30, 2005; xi. RAI SPLB-A-I (LROOI576);

xii. Section 12-2 Wear rate analysis (Excerpt from an EPRI report); 21 Items i., ii, iii, iv, and viii listed as commitments were not provided to NEC but were only referenced in Entergy's program level documents, and therefore were not directly reviewed. They do not appear on Entcrgy's Appendix A, licensee renewal list ofcommitments, but are listed in program level documents that were valid until March 15,2006. No evidence of withdrawal, modification, or otherwise changes to these commitments was provided to NEC. II

xiii. VYNPS License renewal ProjectAging Management Program Evaluation Results. (NECOO I 13191) B. Implementation of the Flow Accelerated Program in accordance with the CLB. I reviewedthe following documentsto ensure the implementation ofthe FAC program in accordance with the CLB: xiv. ENN-DC-315, Rev. I, "Flow Accelerated Program;" xv. VY*PP7028, Piping Flow Accelerated CorrosionInspection Program; xvi. Vy -PP7028, FAC Inspection program PP 7028- 2007 Refuelingoutage; xvii, VY -PP7028, piping inspection program, FAC inspection records for 2005 refueling outage; xviii. ENN-CS-S-008, rev 0, effective 912812005, pipe wall thinningstructural evaluation; xix, DP-0072. C. Review of Inspection Histories, EPRI Reviews, Quality Assurance Reports, Comerstone Roll-ups, Focused Self assessments, Condition Reports, and Independent Assessments, and NRC Inspection Reports. In addition, J reviewed inspection histories,conditionreports, qualityassurance reports, and one cornerstonereport rollup on trending in the FAC Program(2003)- through October,2006), NRC Inspections, and various revisionsto VYLRP subsections and revisions. The list included the following: xx. Focused Self Assessment Report, Vermont Yankee Piping Flow Accelerated Corrosion inspection report, Condition ReportLD-VTYLO 2003-0327; xxi, Audit No. QA-8-2004-VYI, EngineeringPrograms,dated 1112212004; xxii, EPRl review ofVennont YankeeNuclear Power Flow-accelerated corrosion, dated February28, 2000; xxiii. CR - VTY-2005-02239; xxiv. CornerstoneRollup update last dated 1012312006;, 12

xxv, VYNPS License Renewal Project Aging management Program Evaluation Results.23 D. Current status of the FAC Program with respect to the licensing basis. I. The current licensing basis goal is to preclude negative design margin or pipe rupture due to Flow-Accelerated Corrosion and is centered around use ofEPRI document NSAC 202L. The guidance is specifically endorsed by the NRC under NUREG 1801, which calls for a three prong approach to minimize uncertainties: (l) Use of a model such as CHECWORKS {with precision in data collection, examination, and frequency]; (2) Use of sound engineering judgment in selecting inspection points that are independent of CHEC WORKS;,and (3) Use of indus tty events that have potential relevance to VY in material condition, design parameters, and operating history. There are numerous FAC-related failures throughout the industry. Examination of the OECD Pipe Failure Data Exchange Project (OPDE) database provides that infcrmancn."

2. To accomplish the licensing basis goal, the FAC Program needs explicitly to include each of the following ten elements under the specific Generic Aging Lessons Leamed (GALL) Report:

I. Scope

2. Preventative actions

3. Parameters monitored or inspected \

1J These documents wen: typically provided to NEe in fragments. with no title page, no document date, no record of whether the documents were current and had superseded others, and no signature or references to the author. 24Exhibit NEC.UW_I S, NucE 597D-Project I, Data Collection ofPipe FailurtOs occurring in Stainlcss Steel and Carbon SteelPiping. provides industry widedata on FAC failure. Pagr,~Q.i.Il£I,!d.!'l. aJ~il.!"'.!' !ale.f~.):i~.p~a.!1lS.,~ , - - - . prob8bilislicrisk assessment for BWR plant FAC failures is reported as JOE-S (highcr than reactor accidentlhreshold

                                                                                                                                  '.1 DDeelleteete~.: 'and30
                                                                                                                                -< >---u-.--------<

PRA for Dcsi&" Basis Accidents). '-- ~ 13

4. Detection of aging effects

5. Trending

6. Acceptance criteria

7. Corrective actions

8. Confirmation processes

9. Administrative processes lO. Operating experience'"

3. Implementation of these ten elements is accomplished under formal program-level procedures. Successful implementation requires actions in sequence that are constructive to yielding the highest predictability of wall thinning and the most certainty in ranking test points for inspection on a routine that collects wear data in a timely fashion, then adjusts the selection scope based upon multiple trending of data, along with incorporation of changes to the plant. 26 4.

• ements to achieve a successful FAC program and implemented its licensing bas.-=.;is.....-.-. __

_. "'-'""aware of the problematic state of the program for many years?S 2' ExhibitNEC-UW_06 at 1.52-157; Exhibit NEC-UW_08J!!.l. 26 ExhibitNEC-UW~_at~O _1)119_~Jl!Ii!,~ Pt:.0yi~CES )l!d.!l!try:,!i~1!. ~a!a_0!1 Y~.9 J!!itu!:c}._ I'!c_hlah !!!I~ ~( _ [ Deleted: 18 failure in BWR plants underscores the need for precision in implementing an FAC program. ". {>-Delet--ed-:-30------~ J7 Exhibit NEC..w..a.a! h~.,A;.l, _ _. _.. '" . Deleted: UW

                                                                                                                       .......

Deleted: 16

                                                                                                                                             -

Deleted:; ExhibilNEC'UW_16 114*1 Deleted: UW.o, 14

5. The self-identified deficiencies in Entergy's current VYNPS FAC Program are

                                                                                                                           . {Formatted: Highlight identified in multiple documents. * * * * * * * * * * * * * * * * * * *
 * * * * * * * * * * * * * * * * *

• 29 Entergy apparently ignored the More troubling is thatEntergy continued to be inn -

.-----' e years 1999-2006.IThiS deficiency was again noted in late 2004 under an internal quality assurance audit, and two Condition Reports were wrinen.3D Relevant data apparently was not entered into the CHECWORKS model until the of 2006. 3 1 The October 23, 2006 rolJup thus confirms that the model was not seven-year period and suggests that susceptible locations may not have been inspected during . time period. This lengthy lapse significantly weakened the trending capability of the softwar, oth during the lapse period and presently. It is also evident that EPU data was still being In

• Deleted: 10 29 Exhibit NEC*UW-08 at I. 4-4.. __ .... _. _. _. . . . H _ ** _ , ..

Deleted: II; Exhibit NEC*UW*12 JO Exhibit NEC-UW-Q&at 2. tlEC038S3! *NEC0385SS, ~CR*YIY-2004*0306r' and "~8' VTY*2QQ4* ' * '

• Deleted: 9 Ql.Qa::

                                                                                                                    , , , Deleted: len...

JI Exhibit NEC.UW-Q1.. ~.~C_O~~.4f~ r*!=~9~.QRJ<_S.m.o~e.J~ IlII.d wea~da!a _ll!Ja!~s!s upda~ed.wjtl1~lJ .,. ,'. ,,' :,' fot"miltted: Highlight previous inspections in 3 quarter 2006. "), , , Formatted: Highlight r '

~'?~------_::::~~:~

• Deleted: I Deleted: :

                                                                                                                           .. Formatted: Highlight 15

In spite ofEntergy's commitment, the required additional susceptibility scoping analysis is not apparent to NEC in information provided.

7. From 1999-2006, the plant was essentially operating in a state in which c wear was improperly trended and pipe conditions were actually un CHECWORKS for this time period for predicting .

proper trending, the predictability goal ofCHECWORKS is

8. During the years 2000-2006, the VYNPS FAC program apparently used an

                                                                                              , -{ Formatted: HlVhltght outdated version of the CHECWORKS software . * * * * * * * * *                          .

• • • • • • • • • • • • • • • • • • • • • • (~ .

                                                                     ~, ..
                                                                      \
                                                                                         . .. AFormatted: HIghHght

~. 35 Exhibit NEC-UW-O&,al 5-6; NEC-UW-~O_81 NE!;0371 03. . _ { Deleted: 10

                                                                                                 '------------'

16

operating cycles more difficult. 9.

                                                                    --

In 2004, at least four VYNPS components, including the condensate system and the extraction steam systems, were determined to have "negative time to Tmin," meaning that wall thinning was being predicted as beyond operability limits and should be considered unsafe with potential rupture at anytime. 36 "Negative cycles of operations," meaning wall thinning beyond acceptable code limits, were also predicted. The hours negative to the next inspection were substantial-predicting potential code violation or failure could have occurred 3000+ hours previously to October 23, 2006. It is surprising that the Licensee apparently did not write condition reports for this condition. I do not believe that NEC received any notice of Condition Reports relevant to this significant indication by CHECWORKS predicting substantial wall thinning beyond code limits to occur with negative margin of this magnitude. This issue is particularly troubling given that the equipment failure event is unpredictable, and catastrophic when wall thinning is beyond acceptable limits. Despite CHECWORKS' prediction of wall thinning, the plant continued to operate. I have not seen any inspection or audit discussion of this situation. It does, however, appear on the RFO 24 Inspection Plan,37 oddly with the same number of hours of negative time to Tmin, even with the plan including wear data observed ofJO% increase at Quad Cities and Dresden after the up-rate. 38 J6 Exhibit NEC*lli:.S!!I.~~o.l?~~. ~ee alsa twc.uw.29 al NE~037108 ....... _ .... _  ;>o:-e"':'Ieted: _ _U_W -<

                                                                                               . Oeleted: 05

]7 ElthibitNEC-JH_43 at,tlgc;;o2PA&9, . .. . . . . * . - . - -- - - " _ >-o-e-Ieted--:s-------< ]lId. atN<;;02.9L9]~ __ _ _ _ Oe_lete_d_:4_1 --J

                                                 . 17

10. The VYNPS FAC program was deemed unsatisfactory under quality assurance reviewdated November22, 2004, and two condition reports were written" On page 5,

[ Deleted:" the reportnotes the need for programmanagement to ensurenpdateof'sus..c~ptib.l~ p!p"iIlg

                                                                                                                                        , { Deleted: ..                ]

to be identified and modifications to be incorporated~~o.. !n_ ~<!.djtj~'!., J~~ r.ep!>!:l_n~~e..s ot!t~t.... 0 cross-discipline review required by procedurehad not been performed." II. The 2006 cornerstonereport shows a numberof indicators as yellow, with lists of openCR correctiveactions, and a new CR written in August30, 2006.42 The report lists six corrective actionsand four CRs that were written as early as 2003 that remain open.43 These include referencesto a number of progress indicators, but authors of the report continueto expressconcern over the programand the slow progressto updatethe CHECWORKS model. I reviewedseveral of the listed condition reports, some morethan four years old, and found no indication that correctiveactionsrecommended in these reports were completed.

12. In addition, in 2005 a sixth CR was written,CR-VTY-2005-02239, stating "CHECWORKS predictive model for Piping FAC inspection program was not updated per appendix D ofPP7028: r44 The first page of the CR includes a statementthat this condition had no impact on the RFO 25 inspectionscope- i.e., indicatingthat updating of CHECWORKS was not necessary for establishingscope ofRFO 25. This assertion is 39 Exhibit NEC-UW".Q2!1t.J.f~c.;:g~8?!4Joo " _..._ "" 0 **_ * *0 ' o( Deleted: 11 )

40 Exhibit NEC.UW-,Q2~~5_ (N:~lU8~1?)" .. o _ .. 0. __ _ ' ." * " {Deleted: II 1 41 Ji _.. _.. .. _ __ _ __ _.. __ _ ' .. - or Deleted: ExIu'bil NEC-\JW-II 1 42 Exhibit NEC-UW-OJ ~t.N:E~9~~.4J~,J',!E~oO~8.42~,. _ " . ' ...' 'f Deleted: 9 ) 43 Exhibit NEC*UW-QZ ~t-",!E.C.O~84.~~, .. oo 0 .. 0.. .,.' 0'0 0 o' .* " .{ Deleted: 9 I 44 Exhibit NEC.UW..I~!t.1~ _ .. " ........ __ .. "" __ _ _ .. _ .. ,. __ ...... __ '0 _ .......... _ .... " " ." " {Deleted: J )

                                                       ]8

another indicator that the VY FAC program was primafacie in noncompliance with its CLB.

13. A review ofa focused self-assessment was performed. This assessment was called for under one corrective action from a condition report LO-VTYLO-2003*00327. The report identifies numerous issues that required or require action to bring the FAC program into compliance with the CLB. For example, the program susceptibility review report for 2004 was not formal, and did not properly separate scope for ranking. 4 ' The report was not given an adequate review, nor placed in the document control system.

14. PP7028 notes plant modifications and inspection results as not updated since May 15,2000.46

15. Ranking of small-bore piping was not done. With no ranking, the basis for selection of high susceptibility points for small-bore piping is not evident." Procedural conflicts were identified with missing programmatic requirements."

16. A flow-accelerated corrosion related pipe break associated with a I" elbow, SSH (WO 06-6880), appears to have occurred in 3rd quarter 2006. 49

17. Entergy apparently reduced the number of FAC inspection data points between the 2005 refueling outage and the 2006 refueling outage, in violation of its commitment to increase inspection data points by 50%. The 2005 refueling outage inspection called for 4$ Exhibit NEC.JH 44 at 17.

461d. at 18. 47Id~, 41 1d. at 27~. 49 Exhibit NEC*UW..qz !t.NEC0384.f8.* ,__ .. " i'-D_e_leted_I_9 -' 19

137 large-bore inspection points. The 2006 refueling outage inspection, presented to the ACRS on JW1e 5, 2007, covered only 63 points. 50

18. The 2006 refueling outage FAC inspection scope, planning, documentation, and procedural analysis all appear to have been performed under a superseded program document. ENN-DC-315 Rev.l was effective March 15,2006, superseding the PP7028 Piping FAC Inspection Program. ,. Yet VY inspection plan for FAC Program PP7028 was approved on May ] ], 2006, almost two months after the PP7028 program document was superseded. 52 This error potentially invalidates the baseline requirement of HECWORKS, in accordance with NRC-endorsed guidance, to establish the as-found omponents and piping.53 The fundamental step of updating inputs is

• working to a_voidprocedure makes the results

                                                                                                                  , { Formatted: HlghllQht invalidll* * * * * * * * * * * * * * * * * * * * * * * * * *

• accurate inputs was necessary, and subsequent passes were necessary to e locations and high susceptibility inspection points.

30 ExhibitNEC.UW-11Jl!..ll...... _._ { DeJeledl4 1I Exhibit NEC*UW-l6.iI;.~-!?f::JJ~}..!J!l;_E2'!!il>i! ~g.J.~v!..J.2...{~P}Q~8L _ ~ _ . Deleted: 5

                                                                                                                 -. Deleted: 20 lZ Exhibit NEC-lli~.!'~ ~c;On~8~              _ ..           . _.          ., *. _ "

Deleted: UW l] ExhibitNEC*UW-06!L§ XI.MI7. Deleted: os ,. ExhibitNEC-.JH-J8 at 4.5~ .. _ .... .. _ .. .... .......... .. _ .. ...... _ .. __ .... " i,,-De_'eted: _ _UW_.()6 -J 20

19, No indication is provided that plant isometrics were updated as required as of I0/22/04. SS IV. Time needed to benchmark CHECWORKS for Post-EPU use at VYNPS I agree with the testimony of Dr. Joram Hopenfeld that CHECWORKS is an empirical model that must be updated with plant-specific data. NUREG 1801 does not specify the number of years' data necessary to benchmark CHECWORKS, but does advise that a baseline must be established as noted above:* * * *

                                        =:.0_'.'"   S reasonable given that each plant has unique '

cbaracterists;Hmo Separate industry guidance supports five to ten years of data trending." Trending to the high end of the range is appropriate where variables a ch as flow velocity, have significantly changed, as at VYNPS following the 120% power up-rate. deficiencies in the current VYNPS FAC program discussed in this statement, trending under the program is ofmarg'IlTlt~Ull.!LIYJ addition, substantial "negative margin" conditions were identified in seeping the 2005 FAC inspection-many of which were predicted because of the repeated missed inspections in previous outages (that, significantly, occurred prior to up-rate). "ExhibitNEC-JH_44 at 19.

                                                                                                    ..
                                                                                                       .-.'f Deleted:;

_ .. H .. Deleted: '7 ExhibitNEC-UW-13 at 38 ("In order to establisha baselinefor theplant's equipment performance and reliability, the operatinghistoryover the past 5 to 10years is reviewedand trended,"). 21

l"ttt'l~lt.a:~ee that a prolonged period of data collection is not necessary to use predictivealgorithms built into CHECWORKS are based on FAC datali'1lrn-tIRaJ~~ VYNPS is unique in its approach of Constant Pressure PowerUp-rateto 120%. Clinton is the only other plant to accomplish a one-step up-rateto 120%powerand is a very different plant from VY. To my knowledge, outof 104 operating plants only six have increasedoperatingpower by more than I 5%.~8 Of this group, at leastthree- Clinton, Dresden,and Quad Cities- appear to have FAC-related issues. ~9 The argument that CHECWORKS incorporates relevant industry data is difficultto accept when so few plants are operating under analogous conditions, and 50% of those have experienced FAC related problems. The need to extend the period of data collection is furtherevidenced by the fact WORKS model was not updated with plant-specific changesuntil after inference from an inquiryby the Staffprojeet managerto the o months ago, it appears the NRC was informed that the incomplete after two outages had passed since E implemented. The apparentfailure to updatethe program benchmarking done to date regardingthe CHECWORKS software, troubling failures by Entergyto adhere to their own procedural requirements honor commitments made to the regulator, for example, made to the ACRS in Novemb 51 Eidlibit NEC-UW_18, Unionof ConcernedScientists,"Power UprateHistory."July 12.2007. 39 ExhibitNEC.UW 2D 8t NEC037109 NECD)?)16: JH 42 at NECO I7894,NECD17897 NEC017898' m 43 at NEC020l96" .. ." ... [.....De_'ete_d:_U_W_-ll_S ----" 22

2005, regarding use of the tool and the applicant's intention to conduct benchmarking testing during RFO 25 and RFO 26. Based on the foregoing, it is my opinion that seven or more cycles wi necessary to establish a credible benchmarking of CHECWO rated operating conditions* * * * * * *

• IIJ**II*********
• * * * * * * * * * * * * * * *
• It is also my opinion that benchmarking ished after the current program deficiencies are corrected and a proper

Attachment 3 NEe Materials Subject to Exclusion Board Ruling on Entergy Motion Pursuant to Entergy's Motion in Limine

1. Pre-Filed Direct Testimony of Ulrich Witte Grant in part, deny in part (Order at § II.H &

Regarding NEC Contention 4, dated April 23, Attachment 1) 2008 (NEC Exhibit NEC-UW_01)

2. Mr. Witte's curriculum vitae (NEC Exhibit Deny (Order at § II.H)

NEC-UW_02)

3. Mr. Witte's report "Evaluation of Vermont Grant in part, deny in part (Order at § II.H &

Yankee Nuclear Power Station License Attachment 2) Extension: Proposed Aging Management Program for Flow Accelerated Corrosion (NEC Exhibit NEC-UW_03)

4. Exhibits cited in Mr. Witte's testimony and Deny (Order at § II.H) report (NEC Exhibits NEC-UW_04 through NEC-UW_22)

5. Exhibit NEC-..IH_67 Grant (Order at § II.A)

6. Exhibit NEC-JH_68 Deny (Order at § II.C) 7a. Portions of Review of License Renewal Deny (Order at § II.E)

Application for Vermont Yankee Nuclear Power Station: Program for Management of Flow-Accelerated Corrosion (NEC Exhibit NEC-JH_36) 7b. Portions of New England Coalition, Inc. Grant for objections on page 6. Deny for Rebuttal Statement of Position remainder. (Order at §§ II.A, II.C, & II.F) 7c. Portions of Pre-filed Rebuttal Testimony Grant for objections on page 15. Deny for of Dr. Joram Hopenfeld Regarding NEC remainder. (Order at §§ II.A-G) Contention 4 (NEC Exhibit NEC-JH_63) 7d. Portions of Pre-filed Rebuttal Testimony Deny (Order at II.F) of Dr. Rudolf Hausler Regarding NEC Contention 4 (NEC Exhibit NEC-RH_04) 7e. Portions of Flow Assisted Corrosion Deny (Order at II.F) (FAC) and Flow Induced Localized Corrosion: Comparison and Discussion (NEC Exhibit NEC-RH_05)

ATTACHMENT D Attachment 4 UNITED STATES NUCLEAR REGULATORY COMMISSION In the Matter of )

                                                             )

ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LR and ENTERGY NUCLEAR OPERATIONS, INC. ) ASLB No. 06-849-03-LR

                                                             )

Vermont Yankee Nuclear Power Station ) PRE-FILED REBUITAL TESTIMONY OF ULRICH WITTE REGARDING NEW ENGLAND COALITION, INC.'S CONTENTIONS 2A, 2B AND 4 Qt. Please state your name. AI. My name is Ulrich Witte. Q2. Have you previously provided testimony in this proceeding? A2. Yes. I provided direct testimony in support ofNew England Coalition, Inc.'s .(NEC) Initial Statement of Position, filed April 28, 2008. Q3. Have you revlewed the initi~) statements of positio~, direct testimony and exhibits concerning NEC's Contentions 2"'" and 2B filed by Entergy and the NRC Staff? A3. Yes. I have reviewed Entergy's Initial Statement ofPosition on New England Coalition Contentions (May 13, 2008), and the Joint Declaration of James C. Fitzpatrick and Gary L. Stevens on NEC Contention 2AJ2B- Environmentally-Assisted Fatigue (May 12,2008) and exhibits thereto. I have also reviewed the NRC Staff Initial Statement of Position on NEC Contentions 2A, 2B, 3, and 4, the Affidavit ofJohn R. Fair

Concerning NEC Contentions 2A & 2B (Metal Fatigue) (May 13,2008) and exhibits thereto, the Affidavit of Kenneth Chang Concerning NEC Contentions2A & 2B (Metal . Fatigue) (May 12,2008) and exhibits thereto, and the revised Affidavit of Dr. Chang provided on May 22, 2008. NEe's Contentions 2A and 2B - Environmental Assisted Metal Fati Please describe your qualifications to provlde testimony eoncernln A4. tensive experience in original stress analysis in qual" nents, and applicable ASME codes as w as ANSI B31.1 codes, analysis, construction, and qual' cation of Class 1 and 2 systems within the domestic n lear industry. This e rience includes, for example, other commercial anal~ical co . uter programs. der contract to EPRI, I conducted detailed correlation studie f'non-linear finite element int 1 Nuclear facility after the plant was c sed. The resul~ are published in EPRI Report N o you agree that Entergy's "confirmatory" CUF CII analysis of the ozzle fully incorporates thermal fatigue history for the feedwater nozzles? 2

5. No. The NRC questioned the Applicant's "simplified analysis" with respect to the water nozzle as part of Request for Additional Information (RAI) dated October 9, ing NRC LR Audit.. The Staff was unsatisfied with the responses by Enter ,

dated Octo r 19,2007 and November 14,2007. During a meeting with Staff 8, 2008, the Ap Iicant committed to performing refined analysis on the Fe water nozzle including the use 0 ctual operational thermal fatigue histories, as op sed to derived histories from the GE ecification, Incorporation of operatio Feedwaternozzle was mad formal commitment in'BVY 0 -008, dated February 5, 2008. An operational even~ that r yzed thermal transient to the reactor vessel is relevant and cannot simply be as licensees did for some period oftime. The event at Vermont Yankee (VY) was nsequences in terms of thermal shock is key. Owing the early years of pI t start-up and op ation there where many unplanned smooth running reactor. Three GE and the icensee did not fully predict all of the even in their shutdown estimates. He e, those that were outliers needed detailed analysis. to the 1990s this fact came to light starting with NUREG 0 9 and others.

       .onal events led to the need for careful and refined transient analysis. Th~
. plified method was shown to be overly dependent on skillful and experience engineering. New methods removed the uncertainties and doubts of'accuracy in C
                                        '.'

3

lJFen, Not just cycle counting but examination of derivative temperature changes reactor vessel, the associated safe end, and on, ofcourse, the feedwater n well. ow, because I was required immediately to notify the Technical S port Center response area assembling management to provide techni al support) for just such an eve occurred on December 26l!l, 1986, at 6am, which

                           , placing the plant under its emergency pl experience ofthe challenge ofm intaining nuclear p             t operational history beginning aI transients have likely not been incorporated into the operational history, particularly significant where the reactor unanalyzed transient that was outside        e engine ed design basis. Occurrence of these impact to specific comp       ent life is required following fidelity with the plant's design 0 is and is accompanied by additional fatigue an possibilities: (1) s ere damage has occurred to the nozzle or vessel ess likely), (2) no additional fati    e usage outside the GE Specifications has occurred (als

. some addi tonal usage outside the GE Specifications has occurred and there re the comp ent life is shortened (likely). Assessment and incorporation ofthe ass impacts into plant operating records is essential to providing a basis for effeCti 4

An example of an historical Vermont Yankee event with the potential to impact th

                                                        ,

usefulli of a number of systems, structures, and components occurred on Decembe , date, the reactor automatically scrammed when an internal fault 0 in a loss of offsite power. The emergency diesel generat d connected to their electrical buses. Thehigh pr I injection (HPCI) system ot an automatic start signal on high drywe pressure, but failed to start. The operators man . Iy started HPCI. Three relief valv s opened when reactor pressure increased to 1,130 po ds per square inch gauge. have opened, but failed to do so. e ofthe three relief roves that opened chattered on

                                                           . nt was significant as reflected by the fact that odds of a core melt from this sin More significant to the issue of fully r.ecove incorporating them in assessing remai . g fatigue ife is the assessment of wear, damage; and stress on each relevant compon t during each si           ificant transient event.

There are other example of transients that appear have not been incorporated as 73 through 1977, Vermont Yankee experienced 42 planned forced shutdowns. This is a 51 nificant number, and e fatigue life of the reactor vessel and feedwate t,JW-25. ese 42 forced shutdowns, in 1976 Vermont Yankee experience reactor crams. E~bit UW-24. One ofthese, on July 6,1976, occurred during illance testing when the air operator plunger on a relief valve did not move wh as applied. Two of the other three relief valves failed. The failures were trac~d to air 5

operator diaphragms damaged during excessiveheating. The damage was attributed im oper insulation in the proximity of the diaphragms and an extended operatin cycle. It frequency for this event was an astoundingly high number 6.25 E- . Exhibit UW-24. ~ ain, the event stressed a number of systems and impacted the I made a co parison of the EngineeringDesign Input doc Rev. 3 provided to NE by Entergy, to available records con ned in the following to the responses providedto r, Chang's questionscontained in Exhibit UW-26, "NRC Au 10/09/07, withrespo es provided ]0/18/07:' operational histories were not properl number ofReactor Thermal Cycles fi 60 yea . Purported added conservatisms remain Attachment I, Page 1 of 6, E -DC-141, Rev. 3. See Record, Environmental F gue Analysis for Vermont Y . Q6. Why 'Is this of c cern in assessing the validity ofEote 's CUFen reanalysis? A6. Refined fati e analysis fidelity l~gely turns on correct desi

                     's-Function method challenged by Staff on January 8, 008 and in other s essentially about uncertainty in assumptions and estimates.

is tha this particular design input is an ungroundedestimate, an assumption, a . al historical number; any conclusion stenuning from it, therefore.cannot be re . don without corroboration. Clearly, to proceed with estimatesbased on a flawed record 0 6

sient events is not appropriate. The rationale provided for not using actual transie ional cycles asfound in Exhibit UW-26 at sequential page no. 8 (Bates nu NECp69 4), is not valid in the event of a thermal transient event that was 0 side the basis. Entergy, has not shown that those events were in rporated. Second, th estimated transient ~istory - assumption - may r may not be bove, the plant experienced certain ercial operation, then uprate to ctual excursions, i particular those that appear to be n accounted for in the refined te contributing factors such as increased flow, component modification, inc d increased core heat and neutron y the plant beginning ith power escalation to 120% should be given more wei t in forecasting thermal transien ycles. There is no credible pplicant's analysis that justifies "thermal c years. ary, by using estimated histories as opposed to actual hist transien] that shorten the component fatigue life appear not to be acknowledg inc ded in the Applicants fatigue analysis, making the results including CUF co II. NEC's Contentign 4:" Flow Accelerated Corrosion Plan 7

• Q7. Have you reviewed the initial statements of position, direct testimony and exhibits concerning NEC'.s Contention 4 filed by Entergy and the NRC Staff?

A7. Yes. I have r~viewed Entergy's Initial Statement of Position on New England' Coalition Contentions (May] 3,2008)1 and the Joint Declaration of James C. Fitzpatrick and Dr. Jeffrey Horowitz on NEe Contention 4 - Flow Accelerated Corrosion (May 12, 2008) and exhibits thereto. I have also reviewed the NRC Staff Initial Statement of . Position on NEC Contentions 4, and the Affidavit ofKaihwa R. Hsu and jonathan G. RowleyConcerning NEC Contention 4 (Flow-Accelerated Corrosion) (May 13,2008), and exhibits thereto. Q8. Entergy contends that you have no experience or expertise relevant to the testimony you have provided concerning NEC's Contention 4. How do you respond? AS. I have extensive experience in development of engineering programs including controls for design change processes, configuration management programs and comprehensive initiatives in affecting operating nuclear power stations. These processes typically involve complex multifunction and multi-organization challenges. These programs are often mandated under federal regulations, or committed programs for a licensee to re-establish fidelity with its current design basis and license conditions. I have substantial experience in, for example, implementation and validation ofNUREG 0737, "Clarification ofTMI Action Plan Requirements," and was a principal manager in the successful restoration of Indian Point 3 from the NRC's Watch list, as well as Millstone Units 2 and 3. For the Tennessee Valley Authority, specifically the completion of the Watts Bar Nuclear Plant. I developed a program entitled "Program to Assure Completion and Quality." For Georgia Power's Plant Hatch, I developed and implemented a 8

Configuration Management Program, led in-house Safety System Functional Inspections, and an Electrical Distribution Function Inspection so as to prevent Plant Hatch from going on the NRC's watch list. For Northeast Utilities, I developed a multiple department and multi-function program to reestablish the fidelity of the design basis and licensing basis, including identifying, dispositioning and either eliminating or implementing over 30,000 regulatory commitments. My leadership in establishing and implementing these programs

 - successful initiatives - was well-received by the Licensee and well-received by the regulator. By their transparency to the community, they were generally accepted as improvements bythe Licensee inprotecting the health and safety of the public and minimizing risk to public assets.

As a seasoned engineer, manager, and problem solver, my expertise and track record demonstrate successfully implemented solutions to complex organizational, technical, or regulatory challenges in nuclear plant operations. Applying my expertise in Engineering Design Control Programs, I note that Entergy's proposed Flow Accelerated Corrosion management program is based on use of a predictive modeling tool derived from an empiric~ly based program with heavy reliance on engineering judgment; coupled with experience, oversight, and effective monitoring of FAC-related wear to certain vulnerable plant systems. My expertise in program management focuses on correct and effective implementation of the program and finding a record that is auditable, defendable against program requirements and transparent. To quote the NRC Staff's position regarding flow accelerated corrosion, "Corrosion is not an exact science. Due to epistemic and aleatory uncertainty, absolute wear rates cannot be determined...." NRC ~taffInitial Statement of Position at 20 9

illiiig"'aM.mft.imt~aining an effective FAC program must emphasize relianllliOl~~~1 engineering judgment, coupled with expene~n~cD:~q'tti{;.~an~d effective monitoring of While 1 do not purport to be intimately familiar with the empirically based CHECWORKS algorithm, I can attestto sufficient expertise in evaluating the fidelity of a comprehensive F~C program. I believe that the parties and witnesses are not in dispute that an effective flow accelerated program is highly dependent on sound engineering judgment and precise implementation, including the program goal of effective management ofthe predictive results, so as to preclude wall thinning beyond acceptance criteria during the license renewal period. A. Summary Rebuttal Do you believe that Entergy's Flow Accelerated Corresion Mana Progra

   .

as implemented . to date will be adequate for purposes of a . g management during the pe

• d of extended operation, as Eotergy and the N their initial stateme of position and direct testimony?

A9. No. Entergy asserts page 34,35, and 37 oft ir Intial Statement of Position to Staff underwrites this assertion as well on page 20 of the NRC Sta s Initial Statement 0 Coalition Contentions. significant concerns regarding the Flow-Accelerated a asserted that the application for License Renewal submitted by Enter* ont Yankee does not include an adequate plan to monitor and manage aging of plant 10

e iprnent due to flow-accelerated corrosion during extended plant operation. The respo es provided in summary disposition as well as Entergy's Reply and St 5S NEC's concerns and in fact raise troubling new concerns bond simply the sufficiency fthe Vermont Yankee flow-accelerated corrosion pr that it's present FAC pro 202L R.3 and that the use of the ECWORKS m el is a central element in the FAC at It is relying on its current program for FAC management for the license renewal will be implemented by Entergy is th ame pr ram being carried out today ... [and] will meet all regulatory guidance." S Entergy represents th it will rely on its current C management I program for ent during the license renewal pe '00. that no changes to this program are planne and that this program complies with EPR! . Entergy's Initi Statement of Position on New England Coalition Co entions at 34 (The CUITent F . . program, which will be used during the license renewal peri practice as reflected in NSAC-202L. .."). My review provided in pre ed t .mony shows that Entergy's .CUlTe11t program is not in compliance with EPRI Ql0. Entergy asserts on page 34 or its Initial Statement or Position that "the program has been reviewed, audited, and inspected with only minor, mostly 11

administrative issues identified," and discounts its own Quality Assurance audit, which declared the program "unsatisfactory." How do you respond? AIO. I believe that.these statements indicate that Entergy may have ignored or misconstrued the fundamental requirements of IOCFR,. Part 50, Appendix B, "Qual ity Assurance Requirements for Nuclear Power Plants." It appears that federal requirements for Quality Assurance (QA) are being set aside. Quality Assurance Division Audit No. QA-8-2004-VY-I declared the Flow Accelerated Program "unsatisfactory," submitted two Condition Reports, and found five findings and seven areas of improvement. See, Exhibit NEC-UW_09 at 2. Yet Entergy's Initial Statement of Position interprets the 38-page document as containing "only minor, mostly administrative issuels]." Entergy Initial Statement of Position at 34. Furthermore, the Entergy asserts this single analytical tool for predicting unacceptable wall thinning should, as policy, be set aside as it w~ for four components, See Exhibit NEC~UW_20 at 5 of 14. Thus the Entergy provides a second indicator where the Licenseeobliquely waived Appendix B requirements for Quality Assurance. See .Entergy Statement of Initial Position at 48. That again is misapplication of the requirements of Appendix B, which is particular. to the Flow Accelerated Program, where the Applicant's only defense to its failure to prepare condition reports associated with unacceptable wall thinning, a prediction derived from its own analysis, is somehow that this componentshown not to be meeting quality standards is deemed acceptable "as is" until the next outage. Therefore; there are two indications of a troubling and clearly deep-seated failure to properly implement the requirements of a compliant Quality Assurance Program. Appendix B to 12

10 CFR Part 50 requires among other things. Section III. "Design Control; and Section XVI, "Corrective Action" The latter section of the rule includes the following: Measures shall be established to assure that conditions adverse to quality, such as failures, malfunctions, deficiencies. deviations, defective material and equipment, and nonconfonnances are 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. The identification of the significant condition adverse to quality. the cause of the condition, and the corrective action taken shall be documented and reported to the appropriate levels ofmanagement. Quality Assurance requirements are not a practice that may. or may not be voluntarily implemented by the Licensee. but are .in fact are regulatory requirements promulgated under federal rules. The Applicant incorrectly asserts that a failure theoretically predicted by the CHECWORKS model ~s somehow treated differently than a failure predicted by actual inspection data. The Applicant is incorrect in assuming that a failure predicted by CHECWORKS does not meet the threshold for a condition report, with timely follow-up or corrective action. as.fundamentally required unde~ Appendix B. The Licensee has no regulatory grounds to escape a determination ofpotential failure by reason of its assertion that "if a planning .tool such as CHECWORKS ., ...determines a theoretical conclusion... as such no condition reports are required." See Entergy Statement of Initial position at 48. This improper rationale is essentially analogous to a Licensee ignoring a Technical Specification requirement calling for declaration of a component or system to be classified as inoperable and a Limiting Condition ofOperation started if a surveillance is missed. In the analogous situation. a component is administratively (theoretically) declared inoperable. although its actual functionality is unknown. 13

The consequences of the Licensee's apparent policy regarding Appendix B requirements, for Vermont Yankee's Flow Accelerated Corrosion Program are significant and have broad implications to multiple programs relied upon for renewal. Essentially, following the Licensee's logic every program can be viewed as theoretical when it is intended to be a predictive tool. Theimplications ofEntergy's statements are profound and raise questions regarding credibility of all the Aging Related Management Programs proposed and Entergy's actual intentions fOT monitoring, and maintaining the plant if the Q

• Has applicant provided in its response any reasonable assurance that pi thinning eyond code limits will not occur in the period between outages?

All. No. Qui to the contrary, the applicant has stated at page 48 of* s Initial ference to page 5 of 14 ofPP7028 Pi . g Inspection Program, Exhibit NEC-UW_20, that w upon Untilthe next outage, Based on limits prior to the next outage, upled with the decision to ot prepare condition reports of Appendix B), i . my opinion that reasonable assurance is not provide , neously concluded that the program is complete, correct and adeq , teo Therefore, my opinion is that the staff erroneously concluded that the program 14

Q.12 Does Entergy's Initial Statement oCPosition resolve the programmatic weaknesses you identified in your direet testimony, including open corrective actions, stale open action items from condition report'S, and the negative assessment of the program stated in the 2006 cornerstone roll up report? AU. No. Entergy characterizes the issues I have identified as shortcomings in the documentation paperwork with no substantive implications. I disagree. Anyone of the Quality Assurance findings are significant. For example, a classic indictor of a problematic program is age of open corrective actions. A second indicator is number of Condition Reports,

            .           and number of extensions planned and then   . postponed to implement necessary actions to maintain the program current. Data drawn was sometimes more than fifteen years old;"

Entergy expends much discussion, largely on a generic basis, on what ought to constitute a good PAC program. Entergy Statement ofInitial Position at 36. However, Entergy does not respond to or take into consideration the VY's actual repeated historical failures to implement the FAC program from 1999 to the present day, which I have identified in my report, filed in this proceeding as Exhibit NEC-UW-03. With few exceptions, these numerous programmatic failures go unchallenged by Entergy. Most significantly, successive implementation ofCHECWORKS to current plant design inputs is undisputed as a mandatory element of the program, as required under NSAC 202L rev. 2 and rev. 3. Entergy makes no claim that this was consistently done. Successive a o riate intervals, with scope selectg,uJ,...waJI"!"' operating conditions etc, taken into consid~e~1OIl~e-grljd-Blafct:tWon points, and trending of wear items. However, this obligation 15

was consistently ignored for many years and at best done in fragments for many outages. See Exhibit NEC-UW_03, "Evaluation of Vermont Yankee Nuclear Power Station License Extension." This approach places the reviewer in the untenable position of having to look a look at wear data for trends with only very limited data points and then speculate as to whether the data set is suffiCient.ri, Ol'PlOacb is h"a1i~ Detailed Review of Entergy and StafT Reply Q13. Do you take issue with the general merits of the approach to FAC management recommended in NSAC 202L? A13. No. My focus is strictly on the adequacy of the implementation ofNSAC 202L at VY. Q14~On Page 38 of its Initial Statement of Posftion, Entergy makes the following assertion regarding FAC Susceptibility review: "the only CHECWORKS inputs affecting FAC wear rate that need to be changed to model uprate conditions were the flow rate and the temperature. These were updated at VY upon implementation or the EPU." Do you agree that flow rate and temperature are the only inputs that were necessary to Incorporate into (he model? AI. entification of the added inputs results of all tibility analyses. Apparent y, done. First, Exhibit E4-32 is a copy of a susceptibility analysis performed by Entergy in 2005. This analysis was performed fully five years after the previous analysis was completed in 2000. This five year gap is found by examining the dates associated with the 2005 Susceptibility analysis. Numerous changes to the plant occurred between 2600 and 2005. For example, in 2003, the reactor recirculation and residual heat removal piping was replaced. See, Exhibit NE~-UW_27 at 6, Attachment 1. \geeeftd, opCIatimnd ftlcmrs (m1C11 as TI!CM 16

s uration changes, and material changes) should have tri ore e analysis per 0 In brief, beginning in 2004, substantial plant modifications were performed,

                         "                                                                .

including system modifications etc, yet a current Susceptibility Analysis was not

                                      'emlse-oYUllLonly flow rate and temperature input change were needed is not properly supported and incorrect.

It is apparent that Vermont Yankee's FAC program management was broken fro 28~ 2000 through October 25,2005 based upon lack of Susceptibility An ysis parison of program scope for piping inclusion, exclusion, smal ore, large bore, fluid type c, should have been incorporated into the FAC Pro plant modification, syste Based upon the Applicant's in 38 ofEntergy's Statement of 2, the susceptibility analysis was set aside for more than five years, losing bo have been evaluated and taken into con . Proper grid point selectio roper frequency and the consistent integration.ofnew data all.s by itself provides the impetus for "new baseline," especially in light ofthe fact at a current baseline is, for all practical purpo s, lacking. In ' 'conjunction . the relative uniqueness ofthe CPPU power uprate-c mistry changes, changes, and of course velocity changes, the need for a "new base' e" is lling, The strength of the CHECWORKS and the NSAC 202L methodolo 17

L Report, is in its successive passes with tight contro requisite in ut.v core elements have y ented. In 2005. Entergy relied on ancient susceptibility data fbr component selection points, such as small bore piping from data circa 1993. See Exhibit NEe-UW_20 at page 12 of 14. Five small bore points were selected that had never been inspected previously. indicating.loss of control of the program. \Entergy's defense of this methodology r . es

. ificant doubt as to the efficacy of the current program, and therefore th     AC program A lack of a . ely susceptible review can only serv wear points. An u* ated and inclusive Susceptibility was not.

plant modificatio ,and based upon the descoping of the inspectio

• ven after recomme mg by engineering judgment. to include certain points they were e EPU, the inspection s pe was a "total of 63 in ectlons:

rmed, including 9 large bore irispections mmitment to in . ease the scope of inspec on by 50%? AIS. No. It is parent on reviewing the cord that Entergy first re inspection sco e and then enlarged it, in the process offsetting any 'mcrease.~' A mirror' 18

alogy would be the retail store that raises its prices on certain goods, prior to off! ntergy's conunitment to increase the number ofinspection poi nse to an RAI, acknowledged in Entergy's Statement itment was tacitly fulfilled by increasing the points for RF<? 26 on after decreasing the number of insp .tion points (by descoping) for RFO 25. The Scoping ocument.for RFO 25 contain significantly more inspection points. See. Exhibit NEC-U _ O. "PP7028 Piping F: C Inspection Program FAC INSPECTION PROGRAM RECO . components at 1610cati<;lDs,,:[a]lso,any' or plant events that occur in the interim may necessitate an increase in the pi addition, criteria for inspection of components outside o(CHECW iculated to include points simply because of the length intervals since previous inspe Feedwater piping. and umber called for in the above seoping docume al number of large bore components reported to be in RFO 25, as' Exhibit E4-38, where the Applicant notes that it limited its inspe ion to 27 re points. The actual inspection of 63 large bore points f?f RFO 26 is about number ofplanned inspection points for RFO 25. not 50% mare. Q16. Entergy disagrees with your statement in direct testimony that "trending to the high end of the range [for bench marking] is appropriate where variables 19

affecting wear rate, such as flow velocity, have significantly changed, as at VYNPS following the 120% power up-rate***", How do you respond? A16. Entergy questions the relevance of the report brought forward in my direct testimony in support of this statement. The report in question is "Aging Management and Life Extension in the U.S. Nuclear Power Industry," Exhibit NEC-UW_13, or the "Chockie Report." Entergy asserts that this report does not support trending to the high . end of the range where variables such as flow velocity etc have significantly changed, because it 'is not industry guidance, but a report produced at the behest of the Petroleum Safety Authority ofNorway regarding aging management and life extension in the U.S. nuclear power industry. The Chockie Report most certainly assimilates industry guidance, including regulatory rules and implementation of those rules, and compiles aging programs strictly with respect to the United States domestic nuclear power plants. On page 38, it answers exactly what is required if there is no pre-existing baseline, as is the case for Vermont Yankee..The use of the report by the Norway Petroleum Safety Authority has no bearing on its content. The report is on point to Contention 4. The Chockie Report is applicable to the question of what constitutes an adequate baseline. Entergy assumes that its p'r'esent baseline is adequate

          ** v.~~the failure to adequat~e~mpifenie

\ implementation ofNSAC 2021.,including CHECWO Entergy's Application as well as the adequacy ofNRC Staff Review. 20

Q17 Do you agree with Entergy's statement contained in a single paragraph on page 45 of Entergy's Initial Statement of Position that the following eight claims you made in your direct testimony have no merit?

a. "that data from previous FAC inspections (prior to the EPU) were not entered into the CHECWORKS database (NEC-UW _03 at 2, 3, 6, 7-8, 15, 16, 17);"

b. "that CHECWORKS was not updated with the uprate parameters (id, at 5,23);

c. that, for the period 2000-2006, VY failed to use a current version of CHECWORKS (id. at 6,17);"

d. "that four components were predicted in 2004 to have wall thinning .

beyond operability limits (id, at 17-18, 22);"

e. "that open corrective actions identified in condition reports may not have been completed (id. at 3-4, 18-19);"

f. *"that"ranking of small bore piping was not done (id. at 8, 20);"

g. "~the numb~ inspection poi~ere reduced aft,prthe 2005 o~ge 1 ~d.al7,8,~and" /'_ ./ /'

h. "that the 2006 1 refueling outage inspection "scope, planning, documentation, and procedural analysis appear to have been performed under a superseded program document" (id, at 5,7,20-21)."

AI7. No. I disagree. Entergy states that these claims have no merit but does not actually refute them, .or specifically address the majority of the documents I cite in support of my direct testimony. Entergy's reply to my direct testimony consists primarily of conclusory denials. QI8. Does this conclude your rebuttal testimony? AIS. Yes 21

06/86/2888 14:48 2833896657 NORTHERN LIGHTS ENGI PAGE Ell I Ell I declare under penalty ofperjury that the foregoing is true and correct. Ulrich Witte At jtJ~./v)IU , Connecticut, this tsJh day of JW1e~ 2008 pexsonaUy appeared Ulrich Wittc~ and having subscribed his name acknowledges his signature to be his free ac1; and deed. Before me: Notary Public My Commission Expires _

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

                                                     )

ENTERGY NUCLEAR VERMONT YANKEE, LLC, )

                                                     )

and )

                                                     )

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-271-LR

                                                     )

(Vermont Yankee Nuclear Power Station) ) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB ORDER (RULINGS ON MOTIONS TO STRIKE AND MOTIONS IN LIMINE) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution. Office of Commission Appellate Administrative Judge Adjudication Alex S. Karlin, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Richard E. Wardwell William H. Reed Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 1819 Edgewood Lane U.S. Nuclear Regulatory Commission Charlottesville, VA 22902 Washington, DC 20555-0001 Lloyd B. Subin, Esq. Sarah Hofmann, Esq. David E. Roth, Esq. Director for Public Advocacy Mary C. Baty, Esq. Department of Public Service Jessica A. Bielecki, Esq. 112 State Street - Drawer 20 Susan L. Uttal, Esq. Montpelier, VT 05620-2601 Brian Newell, Paralegal Office of the General Counsel Mail Stop 15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket No. 50-271-LR LB ORDER (RULINGS ON MOTIONS TO STRIKE AND MOTIONS IN LIMINE) Matthew Brock Diane Curran, Esq. Assistant Attorney General Harmon, Curran, Spielberg, Environmental Protection Division & Eisenberg, L.L.P. Office of the Attorney General 1726 M Street, NW, Suite 600 One Ashburton Place, 18th Floor Washington, DC 20036 Boston, MA 02108 Callie B. Newton, Chair Dan MacArthur, Director Gail MacArthur Town of Marlboro Lucy Gratwick Emergency Management Town of Marlboro P.O. Box 30 SelectBoard Marlboro, VT 05344 P.O. Box 518 Marlboro, VT 05344 David R. Lewis, Esq. Peter C. L. Roth, Esq. Matias F. Travieso-Diaz, Esq. Senior Assistant Attorney General Elina Teplinsky, Esq. State of New Hampshire Blake J. Nelson, Esq. Office of the New Hampshire Pillsbury Winthrop Shaw Pittman LLP Attorney General 2300 N Street, NW 33 Capitol Street Washington, DC 20037-1128 Concord, NH 03301 Robert L. Stewart Alan A. Pemberton, Esq. New England Coalition Derron J. Blakely, Esq. 229.Kibbee Ext. Covington & Burling L.L.P. Brookfield, Vermont 05036 Counsel for Electric Power Research Institute (EPRI) 1201 Pennsylvania Avenue, NW Washington, DC 20004-2401 Anthony Z. Roisman, Esq. Ronald A. Shems, Esq. National Legal Scholars Law Firm Karen Tyler, Esq. 84 East Thetford Rd. Andrew Raubvogel, Esq. Lyme, NH 03768 Shems Dunkiel Kassel & Saunders, PLLC 91 College Street Burlington, VT 05401 cretary of the Commission Dated at Rockville, Maryland, this 16th day of July 2008}}