ML081280606

Petitioner State of New York'S Reply to Entergy'S Answer and NRC Staff'S Response to New York'S Supplemental Contention No. 26-a (Metal Fatigue)

ML081280606
Person / Time
Site:	Indian Point
Issue date:	05/01/2008
From:	Matthews J, Sipos J State of NY, Dept of the Environment, State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-98
Download: ML081280606 (18)

Text

UNITED STATES OF-AMERICA NUCLEAR REGULATORY COMMISSION USNRC ATOMIC SAFETY AND LICENSING BOARD May 1,2008 (4:00pm)

............... ......... - .. OFFICEC OF-SECRETARYY RULEMAKINGS AND In theMatter of .*ADJUDICATIONS STAFF ENTERGY NUCLEAR INDIAN POINT 2, LLC, ENTERGY NUCLEAR. INDIAN POINT 3, LLC, and ENTERGY NUCLEAR OPERATIONS, INC. Docket Nos.

50-247-LR & 50-286-LR INDIAN POINT NUCLEAR GENERATING UNITS 2 & 3 ASLBP No.

Regarding the Renewal of Facility Operating Licenses 07-858-03-LR-BDO1 No. DPR-26 and No.- DPR-641fr anAdditional 20-year Period PETITIONER STATE OF NEW YORK'S REPLY TO ENTERGY'S ANSWER AND NRC STAFF'S RESPONSE TO NEW YORK'S SUPPLEMENTAL CONTENTION No. 26-A (Metal Fatigue)

Baackgrou'nd The essence of New York State Contention 26-A is a challenge to the manner in which Entergy intends to deal with the issue of metal fatigue for the two reactors at Indian Point (IP2 and IP3). A Cumulative Use. Factor (CUF) is used to determine where fatigue problems may occur. Once the CUF exceeds unity, i.e., 1.0, or is projected to exceed unity, the applicant is required .to take corrective action, which can include replacement of the parts for which CUFs in excess of unity are predicted. In its License Renewal Application (LRA), Entergy has recognized the problem:

Due to the factor of safety included in the ASME code, a CUF of greater than 1.0 does not indicate that fatigue cracking is expected; rather, it indicates that there is a higher potential for fatigui-cracking at locations having CUFs _exceeding 1.0. Tables 4.3-13 and 4.3-14 do not indicate that 40 year CUFs will exceed 1.0 because the EAF adjustment is not applied during the initial 40 years of operation. However, some of the CUFs will exceed 1.0 at the beginning of the period of extended operation when the EAF adjustment is added to the CUF calculation.

7t A/7-Pl A{Q,'2

-' - A.

LRA at p. 4.3-22.

However, rather -than determine how to deal with-the issue-of metal fatigue witha-specific

.program;-Entergy-simplyyptoposed-several.options, eachfof which-lacked -detail and- noneo0f -,

which provided any clear, unequivocal description of precisely what would .be done or how it would be done. LRA at pp. 4.3-22 and 23. Moreover, Entergy did not commit itself to any of the proposed options. In short, there was no wayfor any party-or this Board to determine whether Entergy was addressing the issue of metal fatigue correctly. Rather, parties to this proceeding and the Board were asked to trustthat Entergy may undertake some future, unspecified action and that the NRC Staff may undertake some future and unspecified oversight to address the problems identified in the LRA with Several key components whose predicted CUF values exceed unity, some of which exceed unity many times over.' The only calculation of CUF values presented in this case, one done by Entergy apparently using acceptedri6thodol6gies and submitted to the NRC as truthful and under penalty of perjury should it not be truthful (18 U:S.C. § 1001), has found CUF numbers far in excess of accepted values for some critical primary pressure boundary components. LRA Tables 4.3-13 and 4.3-14.

Entergy has now shifted its position from the original LRA and has chosen option one of the three options presented. LRA Amendment 2. Now Entergy says it will do recalculations, using an ASME-type code methodology, to show that the CUF values fall below unity, but it In its April 21, 2008, Answer (pp. 5-7), Entergy asserts that none of these calculations represent current conditions:. New .York State accurately noted that a number: of components are already "fatigue-limited." The high CUF predicted for these components in the next several years does "limit" th6e ability to use those components, Without modifications, for any period after the end of the current license term; Entergy concedes that if it uses the calculations identified in the LRA "some of the CUFs will exceed.l .0 at the beginning of the period of extended operation when the EAF adjustment is added to the CUF calculation." LRA at.4.3-22. In addition, since some of them have CUFs as high as 9 calculated for the end of the current license term, it is reasonable to assume that some CUF will be greater than 1.0 even before extended operations.

,4 does not disclose the assumptions it will use in doing the calculations, describe how it will

-ifihpl7-ffeit the--hth6dlO- fOf eJaCh-oftle Pa-ny'if ta- vid-- etail onb

-t--rIdi~b exactly what it-wil1 doif after ate-ltil i- exe--o-f uityi tEte.gy asserts that in a recalculation using less conservative assumptions, it expects that the resultant CUF numbers will be reduced. However, Entergy provides no specific analysis to. demonstrate that the previous assumptions were inappropriately conservative, i.e., that these bounding calculations do not appropriately reflect the:degree of uncertainty that exists. In fact, Entergy does not even, identify the specific conservative assumptions, that it believes need to be abandoned,. much less. the specific basis and support for the abandonment. Entergy instead chooses to make vague references to overly conservative analyses which were 'done at the time of the original licensing of IP2 and IP3 that it asserts (without disclosing any evidence on IP2 and IP3 pIlait operating histories to supp-ori it.s assertion) are no longer valid.

>:Nonetheless, Entergy asserts that it has done enough to demonstrate that. what it intends to do, i.e., to use certain calculational methodologies that have been approved by the ASME and the NRC Staff, and to use plant-specific operational history data, and that this is sufficient to form the basis for approval of its LRA without doing more at this time. Moreover, Entergy claims that any continued challenges to its general assertions about the recalculations arenot sufficiently precise to qualify for admissibility in this relicensing proceeding. In short, Entergy, by offering few details about exactly what it will do and how it will do it, claims that this Board should now reject New York State's contention because it does not include anything more than general challenges to Entergy's general assertion. This Board should reject Entergy's brazen "hide-the-ball" strategy.

.1 1 -. A The Vermont Yankee Metal Fatigue/CUF Experience

.......... *--T6-f~~v*-h-*d-drgt.*id~h~w-E~t-df*/............t.gpi~~~h~I*pi~~ .........

un..tenableit-is-ti e~e~-g to rvieW the his to*y f the-Licen-e Refiewai proceedi-i*nV--ig-i Vermont. Yankee, where Entergy is also the applicant and where a similar CUF issue has been raised. In Vermont Yankee, the Board has accepted a similar metal fatigue/CUF contention and will shortly hold an evidentiary hearing2 on the CUF issue where Entergy has twice offered recalculations. The manner in which Entergy conducted the recalculations and the assumptions that it used in the recalculation will be central issues in the evidentiary hearing.

In the Indian Point proceeding,.Entergy is striving to avoid a full hearing by this Board on how it will deal with metal fatigue during extended operation. Its new strategy is to avoid the

'.'mistake" of actually producing the new calculations but rather to allude to the type of

-,recalculations in a general way and to resist any contention based on this general disclosure on the basis that the contention lacks specificity. Unfortunately, the NRC Staff has apparently joined in this ploy to prevent a full and fair public airing of this vital aging management issue in the context of this relicensing proceeding.3 However, the record in the Vermont Yankee case provides compelling evidence that merely disclosing the type of recalculations that will be conducted at some future date masks a multitude of issues that arise when the assumptions used and actual recalculations are finally 2 The evidentiary hearing is scheduled for July 21-25, 2008.. In the Matter ofEntergy Nuclear

.Vermont Yankee, L.L. C.,andEntergy,Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station)

(March 25, 2008, Order Setting Date for'Evidentiary Hearing).

- What Entergy and the NRC Staff instead prefer is to treat this as an issue that does not require public participation or Board review and avoid the scrutiny inherent in a relicensing proceeding. This tactic is contrary to the process.going forward in the Vermont-Yankee relicensing proceeding. No reason exists for treating these two relicensing proceedings differently.

revealed. Thus, contrary to the assertions by Entergy and NRC Staff in their answers, the nature

-of the-contention that-can-be-filed-at-this-time* is:inh-ete-ntly-kes-s-spcifif:becaus-e,- as-thd-6ld-dag-e--

warns', "the devil is inlhe d. " . ...

In Vermont Yankee, as here, Entergy at first merely presented three options and, attempted to defend this approach by claiming that the options, whichever.was chosen; would adequately manage any fatigue-telated aging issues. Intervenor New England Coalition (NEC) claimed that merely.!isting options was not sufficient to "demonstrate". that the metal fatigue problem would be properly addressed. The Board agreed and held:

Efforts by.Entergy's attorneys to justf the options presentedt i the Applicatio*n.for example by -*camiingthatreanalyizingthe CUF factors is a feasible.option, fail to addres NEC's concer that the brief pre'sentation in the Application prpovides no information at all about how Entergy intends to reanalyze the CUF factors if it should become, necessary to. do so. Where such reanalysis does not Produce a CUF les'sthan 1, Entergy's'stafeiiieiif that it, W~ill-implement "managerment of fatigue at the affected locations by an inspection program that has beenhreviewed andyapproved by the NRC (e.g., periodic rion-destructive examiniationof the' affected locations at inspection intervals to be determined by a method acceptable to NRC)" is a bit vague..

In the Matter of Entergy Nuclear Vermont Yankee,. L.L. C.,and Entergy Nuclear Operations,Inc.

(Vermont Yankee Nuclear Power Station) LBP-06-20, 64 NRC at1 86787 (citations omitted, emphasis added).

Entergy then chose. the recalculation option, as it has done here, and went on to actually do the recalculation. Once the recalculation was completed, using the standard accepted formula for such recalculations, numerous issues arose which prompted the intervenor to file an amended contention that, as described by the Board in granting the amended contention, included a specific attack on how Entergy implemented. the recalculation methodology:

In support of this new contention, NEC subrnits the declaration of ani expert Dr. JoramrHopenfeld. According to Dr. Hopenfeld, the

...environrnyentally

. orrecte. cumtulative* uise factors.(CUFe.s)'that- -

Entry and its consultants caIalcatedi as part.of their Aiu,Vstt 3, 2007 ealyses reports'we "uraitialf~w" 9 :7 Among Dr. Hopenfeld's specific allegatioris are that Entergy failed to perform an error analysis to show the error range forteach variable.in the CUFen analyses, relied, on incorrect guidance when calciulatingý'enviromentalifatigue6 ýrrection factors, (Fens),failed to use sufficientciiare in adapting equationsderived from laboratory experiments to actual reactor cofpi onents, and "ýdidniotUse the equations properly at low oxygen and low temperatures." Id. ¶¶ 16-18. Dr. Hopenfeld also alleges that Entergy' s calculation of 60-year CUFs does notprovide sufficient information about'key asSUmption:s p to siubstarntiate the claim that the r'tesult is

"-conservaiive" or 'bounding." id.U ¶20. Dr. Hopenfeid-includes his own proposed recalculation of CUFePn *aues,:(Som e exceeding unity) based on.the CUF value gin allypresented in:the" Application and on what Dr. Hopenfeld asserts are appropriate "bounding" values for the Fens. Id..¶¶ 28-32 & Table 1.

In the Matter of Entergy Nuclear Vermont Yankee, L.L. C.,andEntergy Nuclear Operations,Inc.

...(Verm'ont Yankee Nuclear Power Station) LBP-07-15 at 7-8g Thus, as seen in Vermont Yankee, xmerely identifying an accepted methodology for doing the recalculation does not allow an intervenor or the Board to assess whether, when the formula is applied, it is applied correctly.

Many assumptions and options are available, and the choice' of those assumptions and options are where the dispute, if one exists, will occur.

Entergy's Change in Course- From Vermont Yankee to Indian Point Apparently applying the old adage "once burned, twice warned," Entergy is seeking to avoid the problem in which it' is embroiled in Vermont Yankee by limiting its amendment to the Indian Point LRA to a "commitment" that it will use theaccepted ASME-type methodology 4 Dr. Hopenfeld is an expert for, and addresses the CUF issue raised by, Riverkeeper in the Indian Point relicensing proceeding.

without actually doing the recalculation or disclosingthe assumptionsit will use and how it will

-conduct the-recalculation- -This-tactic-,-Entergy apparently-hopes;-will-avoid-interveno-rs-o-r the-......... :

-Board-assessing the-details of the recalculation methodology_--The essence-ofthe-opposition-t6.......

admissibility of Contention 26-A is well-summarized by the NRC Staff, which states in its

Response

An application may include a commitment to implement. an aging management program prior to the period of extended operation; it

,my not beneessary to execute the proposed prpgram:(in this case by recalculating pursuant to the fatigue monitoring prog'ram) prior t6 *pplyirig arene~wd license 'i'n order ito satisf*y 1 C.F.R: I§ 54.2 1(c)(1)(iii). The regulation states that the.application must deronstfate that-the effects of aging willbe (a op'posed to.

• cueti~ar~e).adeqfi~aeiy manjagedfor the6-period of extended' Operation. IdA.Therefrelogically, the Appican tmay make.

commitment to implement a proposed program at a future date and still satisfy 10 C.F.R. § 5421 (c)(1)(iii).

NRC Staff Response at 7 (emphasis in the originia). But that statment ignores the central

.question - to what specifically is Entergy committed? For example, even Entergy and NRC Staff

-,!,would not argue that a mere statement by an applicant. that the applicant is. committed to do whatever is required by NRC regulations to address aging management of critical plant components would satisfy therequirements of 10 C.F.R. §§ 54.21 and 54.29. Thus, it is not whether there is a commitment, but rather whether the level of detail provided in the commitment allows the Board to determine Whether the requirements of the regulations will be met. In short, thetest is a functional one..

In its response, Entergy demonstrates that there are many places where judgment, not the rote application of a well-established formula, must be employed:

The Fatigue Monitoring Program Description contained in LRA Section B. 1.12 (see LRA Amendment 2, Attachmuent 1 at 5-6) contains the information New. York claims is missing. It states that the. analysis methods used for determination Of stresses :and fatigue usage will be in accordance with an NRC-endorsed edition of the

~Americani Society of Mechanical Engineers ("ASME") Boiler and Pressure Vessel Code. The nu~mbers of cycles used for evaluation willbe based on the Aesign number of cycles and actual JPEc cycle counts projected out to the end of the license renewalperiod (60 years). Consistent with the GALL Report, Entergy will apply, to the existing fatigue analysis results, Fe, factors derivyed from the formulae in NTREG/CR-6583 '(carbon ard low-alloy* teels) anid in NUREG/CR-5704 (austenitic stainless. steels). Finally, all updated calculations will be governed by Entergy's established Part 50, Appendix B;,Quality Assurance program, whichwill "include design input verification and independent reviews ensuring that valid assumptions, transients,cycles,-external loadings, analysis methods, and environmentalfatigue ife correctionfactors will be used in thefatige analyses." Given these precise references and the detailed guidance contained within each reference, New York's allegation regarding lack'of any supporting detail'is,, once again, not founded in fact.

Entergy Response at 8 (footnotes omitted, emphasis added). The emphasized phrases are but two examples of how the real issues about managing metal fatigecan only be resolved once Entergy implements its proposed recalculation, and the associated assumptions used and judgments exercised are available for review by New York State and the Board.

It is indisputable that the obligation imposed by section 54.21 is that Entergy, "[f]or each structure and component identified in paragraph (a)(1). of this section, [must] demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent withthe CLB for the period of extended operation." 10 C.F.R. § 5421(a)(3) (emphasis added). The components at issue in Contention 26-A are included in the group for which adequate management is required. The CUF analysis that Entergy has performed for these critical components demonstrates that a number of them will have CUFs in excess of unity as of the end of the existing license. The issue here is whether the information provided by Entergy in its LRA Amendment demonstrates that these calculations, included in the

,. ý V, q LRA, are overly conservative or erroneous, and whether, in light of these calculations and Eft~rgy's commitment ntttolnmi do a icakulation, it hasdem sfif-d thtit mieets the requiirements of sections 54.21 and 54.29. New York State's expert, Dr. Lahey, describes i his declaration in support of Contention:26-A how Entergy has failed to make the necessarydemonstration because of the all-too-general nature of the commitment. The questions left unanswered include the following, identified by Dr., Lahey:

.. Entergy [does not] provide any details on the analytical method and approach that it will use forits "refined analysis." These details are critical since,-depending on the calculational m'ethod to be used, e.g_, a imnultidimensional FEM code,-and the assumptions made, an applicant can obtain almost any answer that it wishes.

... Entergy does not indicate how its new calculational method will be bench-marked to assure its validity. In particular, since Entergy has not provided any data that will be used to bench-mark their'new analytical model, neither New York State nor the NRC can be a'ssured that it is appropriate data and thatthee calculational method will be properly assessed.

LaheyDeclaration (4/7/08) at 3.

Entergy and Staff respond by observing that Entergy has committed to do a particular type of calculation in the future and that New York State fails to find a fault with the plan to use that type of calculation and thus has not met the specificity requirements of section 2.309(f)(1).

Entergy offers. no evidence to support the claim that by merelysaying itwill do the calculations approved by the ASME and NRC Staff it has demonstrated that it will have adequately managed aging related to metal fatigue. In fact, if all that was required were to make the general commitment now contained in the LRA Amendment, no reason would exist for NRC Staff to review what Entergy will be doing. As authorized by 10 C.F.R. § 2.309(f)(1)(vi), Contention 26-A is based upon the absence of specific information that is required by law to be included in the LRA. Such a contention cannot, bydefinition, identify the flaws inithe information not provided nily-th-tthte in orma ionits

---

t-uirdd.6'b1 efdpiiVidd Of course, there is ample reason flr NRC Staff reoVie*wbcause, just as Dr. Lahey has indicated in his Declaration and as Dr. Hopenfeld has shown in Vermont Yankee, Entergy's commitment, by itself, is insufficient to assure that the relevant key components will be adequately managed for metal fatigue. Neither Entergy nor NRC Staff are arguing that there is nothing more to be done to determine whether Entergy, even with the commitment, will in fact properly age-manage these critical corfiponents. Rather, they clearly waiiitall those determinations to be made Without any outside involvement.. ,Entergy and Staff want to deprive the public in general, New York State irn particular, and this Board of any role in reviewing how Entergy implements its commitment, and leave it all to the Staff and Entergy to work out these matters. among themselves at some later date and outside the glare of this telicensing proceeding.

- That position runs. directly contrary to the Atomic Energy Act and relevant precedents of the NRC. Only last year the ASLB quoted the pronouncements of NRC Commissioners affirming the importance and value of meaningful public participation in NRC decisions:

See, e.g.,.'A.Visiori of Tomorrow, A Plan for Today," a speech by former Commissioner Jeffrey'S. Mefrfifeld at the'NRC 2001 Regulatory Information Conference (Ma*r" 14-,2061, NRC News #

S)01- 005) ("TheiCommission has a significant responsibility to provide fair and meainingfuliopportunitiegsfor iblic inv01vement in our licensing proceedings"); ,'¶Perspectivees on' Nuclea'ar.

Regulation and the GlobahInterest in Nuiclear Energ, remarks of Commissioner Peter B. Lyons at the Trombay Colloquium (Mar.

27, 2006, NRC News # S-06-011) (in'speaking about'the "opportunity for public hearings," stressing how very.seriously the agency takeS its "responsibiiity for public participation" be*aiuse "when the public has an opportunity to .... participate in our decision-making process, nuclear.safety is enhanced and public confidence ýin-the NRC. as a fair, stable and strong nuclear regulator is strengthened").

In the Matter of Shaw-Areva MOX Services (Mixed Oxide Fuel Fabrication Facility), 66 N.R.C.

169, 2007 WL 4976933 (N.R.C.) n. 81 (hereinafter referred to as "MOX').

The issues in MOX are closely analogous to issues raised by Contention 26-A and several other New York State Contentions that are based on the failure of Entergy to; provide sufficient detail in the LRA to permit meaningful analysis and review. In MOX, intervenors were compelled to offer contentions for an operating license proceeding even before the Applicant had begun construction and, as here in many instances, were forced to base their claims on the omissions from the application rather'than substantive defects. In accepting such contentions and rejecting the claim that the contentions were speculative, the ASLB concluded, in language particularly relevant here:

But virtually any contention that Petitioners might have in mind at this juncture relating to safety aspects of the consftruction process as conducted; or of facility operation, would have to contain some element of speculation; given that construction had not yet begun and the design had not yet been completed. In this situation, and in any others where the'Notice of Hearing might be v'iewed as premature (see, e.g., note 89, below), the natural resultis that, facility proponents will argue that any safety contentions will likeWise be premature and/or' speculative.

If those arguments were to carry the day, however,' NRC-hearing opportunities could soon cometo be Viewed as chimerical . a resuit that would seem to be the opposite of wh atc Cmmissioners 'past andpreseit have said is theirgoal. For in' an'.'"eariyniotice" situation like this one, it-would ne6verbe possible for a petitioner to have a contention admitted if potentially legitimate safety concerS about actual construction practices, or u pcoming operational procedures, were automatically rejected, without recourse, because they were filed before construction had either commenced at all or proceeded any distance. It would be paradoxical to let that situation label the challenge, rather than the notice, as premature, thus ending the process and eliminating readY later opportunities to 1

,. 9a raise construction-practice matters freely.

-1d.-6"6,NRC-at202(homitteddy-,

..... ....Finaflly,the B'oard in .MOX feeogniz-eed-thrat-th-clý Cir 91 xpress-d-ab--a tth-at-;....................

proceeding could apply with equal force to proceedings involving license extensions:

It is notjust th is case in which this type of issue migt arise.. A.

.similar situation could develop with respect to proceedings invoing appications by holders of licen es td oper te nn4clear power:plants to renew or to extend the standard40-yearterm of those licensýesfor an additional 20years.. By rule and"decision, the Commission has mandated that any safety-related. Opposition to suich renew alcani be based only on mat ers steniniing frTom the

...aging :of the faciity.... .: Naturally, *such reneWal appications have t6 b-e filed some time'in advance of the expiration of the initial, 40-yedariicense ter,*both to:allow-,

aoeefortheepetd length of the proceeding and to provide the licenseethe -oppotuity to formulate alternative plans for serving electric demand were the requested renewal to be denied .... That situation would appear to

have the potential.to raise the same type 'ofquestion ýthat we-face:

w *h6eiafacility ha not yret aged to the point whe'r-cginig imnpacts were expected to be-felt, petitioners could have difficulty in raising certain types of contentions that would focus on the .impacts of aging on the specific facility before the proceeding's curtain is closed for want of a-valid contention.

Id. at n. 89 (citations omitted, emphasis added).

As did the NRC Staff and Applicant in the MOXproceeding, so do the NRC Staff and Applicant here seek to gain a strategic advantage because Entergy offered only the barest outline of a plan to address metal fatigue but has based their opposition to admission of a contention. on the claimed lack of specificity, which.by Entergy's design, is imlossible to povide.

Many decades ago, the United States, Supreme Court recognized that, pursuant to section 5 Because no decision has been reached on party status for New York State, postponing any contention until a later time When Entergy provides more detail about the recalculation methodology is

.unacceptable. The hurdles required to be met are all but insurmountable when a contention is sought to be filed by an entity that was not admitted as a party.

.182(a) of the Atomic Energy Act (42 U.S.C..§ 2232(a)), although definitive safety findings may not.......fg b ei:**-iii.r*db-5 foie -i-Ssih-ri*-ifa~st-i- rucisoi piermi t suc*-*h-de-ffinllv f!*find ing must b-e made ..

-before issuance o-f a~n-opebratir-g- licensie. 'Pow-e-rRe'acoDevlmez Coo _v.__n.t.ern-atibfo-na.IUnio---

of Elec., Radio and Mach. Workers, AFL-CIO, 367 U.S. 396, 397 (1961)("It is clear from this' provision that before licensing the operation. of PRDC's reactor, the AEC:Will have to make a positive finding that operation of the facility, will 'provide adequate protection to the' health and safety.of the public."'). What is at issue in this proceeding is the grant of a new operating license for IP2 and IP3 authorizing their operation for- an additional twenty years.

Because of the operation of 10 C.F.R. § 54.31, what Entergy would receive if its application were approved is a new operating license with a term equal to twenty years plus the remaining years on its existing licenses, and the existing licenses would end. Thus, this proceeding is really an operating license proceeding subject to aI the requirements applicable to operating license proceedings. Although the Commission has narrowed the scope of the issues that are to be resolved in relicensing proceedings, it has not loosened the obligation to make a definitive finding on all safety issues. What Entergy and NRC. Staff propose is that no such definitive finding is required for IP2 and IP3. Rather, they claim that all that is required is the assertion of a cOmmitment to take certain steps, not spelled out in any detail, that, if done properly, will result in adequate protection to the health and safety of thepublic. That "trust me" approa6h has long since been' found unacceptable by the Supreme Court. Moreover, When the safety-related stakes are as high as theyare for the Indian, Point plants, the old Russian saying -

"trust, but verify" - is the only responsible thing to do.

It is possible, but highly unlikely, that Entergy could so fUlly describe the recalculation process and all the assumptions that will be used (something it has not yet done in this case), that a . . tr_

the Board could resolve the adequacy of the proposed methodology for dealing with metal: fatigue

'.ith'6Ut rf qui-iiiig-thafthE ie"ldifi6fd6 aii-acfil b&'dde**d eH6e*e¥:the*pepience iiinVermont

..Yankee stronigly supports the view that onlyby doing the recalculations cantheadequacy-of the.

proposed aging management plan be evaluated.

For example, after Entergy produced itsfirst set of recalculations in Vermont Yankee, and they were subjected to the scrutiny of the intervenor and its expert, Entergy found it necessary to produce a second set of recalculations ("Entergy's Second CUFen Reanalysis") to attempt to address the problems identified with the.first set of calculations. See In the Matter of Entergy Nuclear Vermont Yankee, L.L. C., andEntergy NuclearOperations,Inc. (Vermont Yankee NuclearPower Station) ASLBP No. 06-849-03-LR (April 24, 2008) Order (Granting Motion to Amend NEC Contention 2A) at 1. This recent development in Vermont Yankee unders-ores how much further Entergy must go here' before it will have presented sufficient detaillto even allow a decision to be reached on whether it has demonstrated it will adequately-deal With aging of critical components subject to metal fatigue.

Finally, a theme repeated in the Entergy and NRC Staff responses on New York's Contention 26-A is that New York State does not really understand the CUF and metal fatigue issue and that the State and its expert are simply confused about the'relicensing process.

Actually, it is apparent that the misunderstandings are Entergy's and Staffs, who do not seem- to understand that under NRC regulations, mere promises to do the "right thing," without providing the important details so that intervenors and the Board may independently ascertain whether the "right thing" will be done correctly, are insufficient to meet the safety obligations imposed by the Atomic Energy Act.

~u t, *-v Albany, New York May 1, 2008 Respectfully submi.tted, ALEXANDER B. GRANNIS ANDREW M.'CUOMO Commissioner Attomey General for the State of New York New York State Departmenit of Environmental Conservation Senior Counsel for: Special Projects Assistant Attomey General New' York Sta*t Depaim6nt1t Office, offthe 'AtGomey General of Enviro nental: Conservation

,Office of General Counsel Alb 'IN York 12224 625 Broadway, ! 4 th Floor (518) 402-225 1:

Albany, -New.York 12233-5500 john.sipos@oag.state.nyus (518):402-9190 jlmatthe@gw.dec.state.ny.us JOHN L..,PARKER. JANICEMA. .DEAN Region 3 Attomey Assistant Atitorney General New York State Department Office of.the Attomey General of Environmental Conservation 120 Broadway.

Region 3 Headquarters NewYork,.NY 21 South Putt ComersRoad (212).416-845.9 New Paltz, NY 12561-1620 j anice.dean@oag.state.ny.us (845) 256-3037 jlparker@gw.dec.state.ny.us.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matterbof ENTERGY NUCLEAR*INDIAN POINT 2, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC, and ENTERGY NUCLEAR OPERATIONS, INC. Docket Nos.

50-247-LR & 50-286-LR INDIAN POINT NUCLEAR GENERATING UNITS 2 & 3 ASLBP No.

Regarding the Renewal of Facility Operating Licenses 07-858-03-LR-BDO1 No. DPR-26-anid No. DPR-64 for an Additional 20-year Period CERTIFICATE OFSERVICE Icertify that on May 1, 2008, copies of the foregoing State of New York's Reply to Entergy's Answer and NRC Staff's Response to New York's'Supplemental Contention 26-A were served on the following persons by regular first class mail and e-mail:

Lawrence G. McDade, Chair Kaye D. Lathrop

.Administrative Judge. Administrali~ve Judge Atomic Safety and Licensing Board Panel Atomic. Safety and.Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 190 Cedar Lani E.

TwoWhite Flint North Ridgway, CO 81432 11545 Rockville Pike Kaye.Lathrop(ynrc.gov Rockville, MD 208.52-2738

.Lawiernce.McDade@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Richard E. Wardwell Mailstop 3 F2.3 Administrative Judge Two White Flint North.

Atomic Safety and Licensing Board Panel 11545 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852-2738 Mailst6p 3 F23 Two White Flint North Marcia darpentier 11545 Rockvillle Pike Law Clerk Rockville, MD 20852-2738 Atomic Safety and Licensing Board Richard.Wai dwell@nrc.gov Mail Stop: T-3 E2B .

U.S:'Nucear*Regulatory Commission Zachary S. Kahn, Esq. Waýshington, DC'. 20555-0001.

Law Clerk Maicia.carpentier@nrc.gov.

Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory.Commission Office of Commission Appellate Adjudication Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 16 G4 11545 Rockville Pike One White Flint North Rockville, MD 20852-2738 11555 R'ckviile Pike Zachairy.Kahn@nrc.gov Rockv'ille, MD20852-2738 ocaamail@nrc.gov

, 'C *-C~

Office of the Secretary Justin D. Pruyne,.Esq.

Attn: Rulemaking and Adjudications Staff Assistant,.C , un'ty Attorney U.S. Nuciear Regulatory Commission Office of theVv Westchester County Attorney Washington, D.C. 20555-0001 Michlaliiin Office Building White-Plaihs, NýY.10601

---

Sherwin E.Turk,;Esq. . jdp3@wstchestergov.com-David E. Roth, Esq.

Lloyd B' Subin, Esq. Daniel Riesel, Esq.

• Beth N. Mizýno, Esq. Thomas F. Wood, Esq.

Christopher C. Chandler, Esq. Jessica Steinberg, J.D.

Kimerly, A. -Sxton, Esq.- Sive,, Paget & Riesel, P.C.

Office of the General Counsel 460 Park'ký6yehue U.S. Nucleari Regulatory Commission New York,.NY ,10022 Mailstop 15D21 driesel@sprlax'c~ m One White Flint North j steinberg@spilaw~com 11555 Rockville Pike Rockville, MD 20852-2738 Manna Jo Greene, Director set@nrc.gov Hudson River Sloop Clearwater, Inc.

-der@nrc:gov 112 LittleMarket St.

lb s3@nrc.go .v Poughk eseNY 12601 bnml@r6c.goy. Mannaj*@cl6arwater.org Christopher.Chandler@nrc.gov Kimberly. Sexton@nrc.gov StephenfC. Filler, Esq.

Board Member Kathryn.M. Sutton, Esq. Hudson River Sloop Clearwater, Inc.

Paul M. Bessette, Esq. 303 South Broadway Ma~rtinj. O'.Neill, Esq.- Suite 222 Mauri T. Lemroncelli, Esq. T anr-yi8own, NY 105 91 Morgan, Lewis & Bockius LLP sfillei@nylawline.com I111 Pennsylvania Avenue, NW Washington.n DC20004 Nancy Burton.

ksutton,morg .ilewis.com 147 Cross Higway pbessette@morganlewis.com Redding Ridge, CT 06876 rnartin.o'neill@morganlewis.com NancyBuirt6nCT@aol.com mlemoncelli@morganlewis.com Susan H. Shapiro, Esq-Elise N. Zoli, Esq. WeschesteroCiiizen' s Awareness Network Goodwin Procter, LLP (WestCan), Citizens'Awareness Network (CAN),etc.

.21 Peilifin D-rive :.

53 State Street Spring Valley, NY 10977 Boston, MA 02109 mbs @6ur rocklandoffice.com ezoli@goodwinprocter.com Richard L. Brodsky, Esq.

William C. Dennis, Esq. A sse6mblym:n Assistant General Counsel 5 West Main Street, Suite 205 Entergy Nuclear Operations, Inc. Elinsfofd, NY 10523-440 Hamilton Avenue ritchafdbrodsky@mnsn.com

-,White Plains, NY 10601 wderinis@eniergy.com

• Sarah L.Wagner, Esq.

Room 422 Robert D. Snook, Esq. Legislative Office Building Assistant Attorney General Albany,,NY 12248 Office of the Attorney General sarahwagne esq@gmail.com State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 robert.snook@po.state.ct.us

Diane Curran, Esq. Daniel E. O'Neill, Mayor Harmnbo, Curran, Speilberg & Eisenberg, LLP James. Seirmarcho, M.S.

Suite 600 Village of B,uchanan

.17261M Street, NW Mun icipal Bidg.

- Wah-iing-t6i-DC2 00 3 6 23-TateAveii dcu an@harmonicurran.com Bu*hanian,1NY 10511-1298

---vob@ bestw-eb-et . -------

Phillip Musegaas, Esq.

Victor Taflir, Esqw-, Mfichael J. Delaney, Esq.

Riverkeeper, Inc. Vice President - Energy Department 828 South Broadway New, York City Economic Development Corporation Tarrytown, NYA0591 (NYCEDC) phillip@riverkeeper.org 1io.William Street vtafui-@riverkeeper.,org NevwiYork, NY 10038 mdelaney@nycedc.com Arthur J: Kremer, Chairman New York Affordable Reliable El6ctricity Alliance 347TFifth Avenue, Suite 508 Newyork,NY., 100 16 kremer@area-alliance.org Johl LeKay FUSE USA 35.1 Dyckman Street Peekskill, NY 10566 fus-usa@yah~o'com J~n Liry Matt! ews