ML073180451

2007/11/14 LB Memorandum and Order (Ruling on Entergy'S Motion for Reconsideration of (LBP)-07-12)

ML073180451
Person / Time
Site:	Pilgrim
Issue date:	11/14/2007
From:	Abramson P, Cole R, Austin Young Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
06-848-02-LR, 50-293-LR, RAS 14648
Download: ML073180451 (7)

Text

UNITED STATES OF AMERICA DOCKETED 11/14/07 NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL SERVED 11/14/07 Before Administrative Judges:

Ann Marshall Young, Chair Dr. Paul B. Abramson Dr. Richard F. Cole In the Matter of: Docket No. 50-293-LR ENTERGY NUCLEAR GENERATION ASLBP No. 06-848-02-LR COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC.

(Pilgrim Nuclear Power Station) November 14, 2007 MEMORANDUM AND ORDER (Ruling on Entergys Motion for Reconsideraton of [LBP]-07-12)

In this memorandum and order we rule on Entergys motion1 that we reconsider our ruling in LBP-07-12, in which we denied its motion for summary disposition of Pilgrim Watch Contention 1. Entergy requests leave to file its motion pursuant to 10 C.F.R. § 2.323(e),

asserting a clear and material error of law in our earlier decision.2 The Applicant contends that:

[s]ince Pilgrim Watch did not proffer any expert affidavit, or any other competent evidence, controverting the adequacy of Entergys aging management program for buried tanks and piping, the Board was required as a matter of law to grant Entergys summary disposition [sic] and resolve PW-1 in Entergys favor.3 Moreover, Entergy urges this Licensing Board to accept [Entergys] conformance with the GALL Report [NUREG-1801, Generic Aging Lessons Learned Report (July 2001)], as 1

Entergys Motion for Reconsideration of LPB-07-12 [sic] (Oct. 29, 2007) [hereinafter Entergy Motion].

2 Id. at 1.

3 Id. at 1-2.

substantial evidence that an aging management program is adequate, and that we should permit litigation of the adequacy of such programs only when it is disputed by substantial, competent and probative evidence.4 Citing various case law relating to motions for summary disposition, Entergy lauds its own expert and challenges the expertise, in the field of aging management programs at nuclear plants,5 of Intervenors expert, David Ahlfeld, Ph.D., Professor at the University of Massachusetts in the Department of Civil and Environmental Engineering, asserting further that Dr. Ahlfeld also did not address or rebut the adequacy of Entergys aging management programs.6 Staff Response to Motion The Staff supports Entergys motion, agreeing that Pilgrim Watch provided no competent evidence that refuted the Staffs and Entergys evidence that the AMP [aging management program] is adequate and consistent with GALL.7 Staff also argues, essentially repeating its original arguments against Contention 1, that monitoring for radioactive leaks in the underground pipes and tanks is [not] within the scope of license renewal.8 Pilgrim Watch Response to Motion Pilgrim Watch argues that Entergy has not met the Commissions strict compelling circumstances standard for reconsideration, citing, inter alia, Pacific Gas & Electri. Co. (Diablo Canyon Power Plant Independent Fuel Storage Installation), CLI-06-27, 64 NRC __, __ (slip op.

4 Id. at 2.

5 Id. at 6.

6 Id. at 5.

7 NRC Staff Response to [Entergy Motion] at 6 (Nov. 8, 2007).

8 Id. at 8.

at 2) (Nov. 9, 2006).9 Intervenors also challenge Entergys argument that compliance with the GALL report should be taken to show the adequacy of its aging management programs.10 They argue that Dr. Ahlfeld is a qualified expert in the area of groundwater flow and contaminant transport in the subsurface . . . with extensive experience in monitoring programs, whose testimony should be heard and not weighed in ruling on a motion for summary disposition.11 They contend that they did present evidence, through Dr. Ahlfeld and references to NRC and industry documents, that constitutes more than mere allegations and denials.12 Licensing Board Ruling As we stated in LBP-07-12:

[Intervenors expert] Prof. Ahlfeld states that radioactive contaminants could leak from the condensate storage system, offgas system piping, and the salt service water system. He notes that, while Entergy describes the several methods they use to prevent leaks from occurring, it has not demonstrated that [the plant has]

sufficient means of detecting leaks if they occur. Noting that leaks can and do occur, at various rates, Prof. Ahlfeld indicates among other things that such leaks are virtually impossible to detect without the use of direct sampling methods such as monitoring wells.13 Based on this and other reasoned statements of Intervenors and their expert, the Licensing Board concluded, among other things:

We find there is a genuine dispute on the central and material issue of whether those Pilgrim aging management programs, or AMPs, that relate to relevant buried pipes and tanks are adequate on their own, without need of any leak 9

Pilgrim Watchs Reply to [Entergy Motion] at 1-3 (Nov. 6, 2007).

10 Id. at 3-6.

11 Id. at 6-7.

12 Id. at 8.

13 Entergy Nuclear Generation Co. And Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-12, 65 NRC ___, ___ (Oct. 17, 2007) (slip op. at 8) (citing Declaration of David Ahlfeld, PhD, PE In Support of Pilgrim Watchs Response Opposing Entergys Motion for Summary Disposition of Pilgrim Watch Contention 1 at 1 (June 18, 2007)

[hereinafter Ahlfeld Declaration]).

detection devices (Intervenors propose monitoring wells), to assure that the pipes and tanks in question will perform their intended functions and thereby protect public health and safety.14 We find no reason let alone compelling circumstances to reconsider this ruling.

First, it is clear that guidance documents such as the GALL Report do not constitute reguatory requirements and are not binding.15 Second, although Entergy would have us construe the requirement of appropriate support in opposition to a motion for summary disposition very narrowly, it is clear that Prof. Ahlfeld, an engineer himself, has appropriate expertise to speak to the subjects on which he provided his opinion in support of Pilgrim Watchs opposition to Entergys summary disposition motion.16 There is clearly a genuine dispute on a material issue of fact and law regarding whether Entergy's aging management program has leak detection provisions sufficient to prevent the subject buried pipes and tanks from failing to satisfy their intended safety function (which the Applicant in its motion describes as delivering water17). Pilgrim Watchs contention, which is essentially a contention of omission, is that Entergys aging management plan is inadequate 14 Id. at 16.

15 See Curators of the Univ. of Mo., CLI-95-1, 41 NRC 71, 98, 100 (1995); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), ALAB-852, 24 NRC 532, 544-45 (1986).

16 We find Entergys additional argument concerning allocation of resources for litigation, see Entergy Motion at 2-3, to be completely unrelated to any standards for reconsideration, and void of legal support. In light of its obvious lack of merit, we have not addressed it further herein.

17 Entergy Motion at 6.

because it does not contain any provision for detecting such leakage, and that monitoring wells are therefore necessary to fulfil this function.

The motion to reconsider of Entergy is therefore DENIED.

THE ATOMIC SAFETY AND LICENSING BOARD

________/RA/_____________________

Ann Marshall Young, Chair ADMINISTRATIVE JUDGE

________/RA/_____________________

Dr. Paul B. Abramson ADMINISTRATIVE JUDGE

________/RA/_____________________

Dr. Richard F. Cole ADMINISTRATIVE JUDGE Rockville, Maryland November 14, 200718 18 Copies of this Memorandum and Order were sent this date by Internet e-mail transmission to all counsel or representatives for parties.

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

)

ENTERGY NUCLEAR GENERATION CO. )

AND )

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR

)

)

(Pilgrim Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (RULING ON ENTERGYS MOTION FOR RECONSIDERATION OF [LBP] 07-12) 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 Ann Marshall Young, 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 F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Susan L. Uttal, Esq. David R. Lewis, Esq.

David Roth, Esq. Paul A. Gaukler, Esq.

Andrea L. Silvia, Esq. Pillsbury, Winthrop, Shaw, Pittman, LLP Kimberly Sexton, Esq. 2300 N. Street, N.W.

Office of the General Counsel Washington, DC 20037-1128 Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket No. 50-293-LR LB MEMORANDUM AND ORDER (RULING ON ENTERGYS MOTION FOR RECONSIDERATION OF [LBP] 07-12)

Perry H. Buckberg, Project Manager Mary Lampert, Director Plant Licensing Branch I-I Pilgrim Watch Division of Operating Reactor Licensing 148 Washington Street Office of Nuclear Reactor Regulation Duxbury, MA 02332 U.S. Nuclear Regulatory Commission Mail Stop O11-F1 Washington, DC 20555-0001 Sheila Slocum Hollis, Esq. Mark D. Sylvia, Town Manager Town of Plymouth MA Town Managers Office Duane Morris, LLP 11 Lincoln Street 1667 K. Street, N.W. Plymouth, MA 02360 Suite 700 Washington, D.C. 20006 Terrence A. Burke, Esq Chief Kevin M. Nord Entergy Nuclear Fire Chief & Director Duxbury Emergency 1340 Echelon Parkway Management Agency Mail Stop: M-ECH-62 668 Tremont Street Jackson, MS 39213 Duxbury, MA 02332

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 14th day of November 2007