ML063470490
| ML063470490 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 12/13/2006 |
| From: | Elleman T, Karlin A, Richard Wardwell Atomic Safety and Licensing Board Panel |
| To: | |
| Byrdsong A T | |
| References | |
| 50-271-LR, ASLBP 06-849-03-LR, RAS 12671 | |
| Download: ML063470490 (9) | |
Text
1 Entergy's Motion for Reconsideration of the Board's Decision to Admit [NEC]'sContention 3 (Oct. 2, 2006) [Entergy Motion].
2 Vermont Yankee Nuclear Power Station License Renewal Application (Jan. 25, 2006),ADAMS Accession No. ML060300085 [Application]. UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONRAS 12671 DOCKETED 12/13/06ATOMIC SAFETY AND LICENSING BOARD SERVED 12/13/06Before Administrative Judges:Alex S. Karlin, ChairmanDr. Richard E. WardwellDr. Thomas S. EllemanIn the Matter ofENTERGY NUCLEAR VERMONT YANKEE,LLC, and ENTERGY NUCLEAR OPERATIONS, INC.(Vermont Yankee Nuclear Power Station)Docket No. 50-271-LRASLBP No. 06-849-03-LR December 13, 2006MEMORANDUM AND ORDER(Denying Entergy Motion for Leave to File Motion for Reconsideration of NEC Contention 3)Before the Licensing Board is a motion by Entergy Nuclear Vermont Yankee, LLC, andEntergy Nuclear Operations, Inc. (collectively, Entergy) for reconsideration of the Board's ruling on the third contention submitted by the New England Coalition (NEC), a petitioner in this proceeding.
1 For the reasons set forth below, this motion is denied.I. BACKGROUNDThis proceeding concerns Entergy's application to renew the operating license for theVermont Yankee Nuclear Power Station in Windham County, Vermont.
2 Entergy seeks toextend its license for an additional twenty years beyond the current expiration date of March 21, 2012. On March 27, 2006, the Commission published a notice of docketing of the Entergy renewal application and a notice of opportunity to request a hearing on the application. 71 Fed. 3 Petition for Leave to Intervene, Request for Hearing, and Contentions (May 26, 2006)[NEC Petition].
4 Entergy's Answer to [NEC's] Petition for Leave to Intervene, Request for Hearing, andContentions (June 22, 2006) [Entergy Answer to Petition]; NRC Staff Answer to Request for Hearing of [NEC] (June 22, 2006).
5 [NEC]'s Reply to Entergy and NRC Staff Answers to Petition for Leave to Intervene,Request for Hearing, and Contentions (June 29, 2006) [NEC Reply]. Reg. 15,220 (Mar. 27, 2006). On May 26, 2006, NEC filed a hearing request and petition tointervene, which included NEC Contention 3.
3 As submitted, the contention read:Entergy's License Renewal Application Does Not Include an Adequate Plan toMonitor and Manage Aging of the Steam Dryer During the License Renewal Proceeding.Id. at 17. On June 22, 2006, Entergy and the NRC Staff filed their respective answers to theNEC Petition, 4 and on June 29, 2006, NEC filed its reply.
5 On September 22, 2006, the Board ruled, inter alia, that NEC had standing to challengeEntergy's license renewal application and had presented four contentions that met the admissibility criteria of 10 C.F.R. § 2.309(f)(1). Entergy Nuclear Vermont Yankee, LLC, andEntergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) LBP-06-20, 64 NRC__ (2006). NEC Contention 3 was one of the four contentions admitted.On October 2, 2006, Entergy filed the motion for leave to file a motion forreconsideration that is now before the Board. Entergy argues that Contention 3 "does not challenge Entergy's specific program for managing the aging of the VY steam dryer" and therefore "raises no genuine dispute on a material issue of law or fact regarding the VY license renewal application." Entergy Motion at 1. In ruling to admit the contention, says Entergy, "the Board was apparently unaware that the basic premise of the contention . . . was demonstrably incorrect and therefore there is no 'genuine dispute' between the parties that warrants litigation of this contention." Id. at 3. Entergy then proceeds to take issue with the declaration provided 6 [NEC]'s Opposition to Entergy's Request for Leave to File Motion for Reconsiderationof NEC's Contention 3 (Oct. 12, 2006) at 1 [NEC Answer].
7 NRC Staff Response to Entergy's Motion for Leave to File Motion, and Motion, forReconsideration of Decision to Admit [NEC] Contention 3 (Oct. 13, 2006) at 1 [Staff Answer].by NEC at the time it filed its petition to intervene, arguing that the expert in question relied onthe wrong documents in preparing his declaration and that Entergy's actual plans for monitoring the steam dryer are not as NEC represents them to be. Id. at 3-4. Entergy then turns to afactual presentation regarding Entergy's steam dryer program, a presentation that includes extensive citation to the current licensing basis of the plant and to guidance documents issued by General Electric for the reactor type in question. Id. at 4-9. NEC opposes Entergy's motion for reconsideration, arguing first that Entergy merely"repeats an argument it made on Answer to Contention 3 that NEC makes factually incorrect assumptions about Entergy's aging management plan."
6 NEC's second argument is that thesteam dryer monitoring conditions imposed during the current licensing period are not sufficient to establish "a mandatory steam dryer aging management plan that will remain in effect throughout the proposed period of extended operation." Id. at 1-2. NEC then turns to factualpresentations alleging that Entergy has changed its position regarding the aging management program for the steam dryer and arguing that the guidance Entergy is using for the program is neither clear nor binding. Id. at 3-5. The NRC Staff opposes Entergy's motion for reconsideration on the ground that it failsto satisfy the regulatory requirements of 10 C.F.R. § 2.323(e).
7 According to the Staff, "[t]o besuccessful, a reconsideration motion cannot merely repeat prior arguments, but must provide a good reason for the adjudicator to change its mind." Id. at 3 (citing Louisiana Energy Serv.,L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622 (2004). Nor is a motion forreconsideration the place to present new arguments or evidence, according to the Staff, "unless 8 Final Rule, "Changes to the Adjudicatory Process," 69 Fed. Reg. 2182, 2207 (Jan. 14,2004). See also Staff Answer at 2-3.the moving party can show that the new material's availability could not reasonably have beenanticipated and its consideration demonstrates compelling circumstances, such as clear and material error that renders the decision invalid." Id. (citing Dominion Nuclear Connecticut, Inc.(Millstone Nuclear Power Station, Units 2 and 3), LBP-04-22, 60 NRC 379, 380-81, aff'd, CLI-04-36, 60 NRC 631, 641, 645 (2004). Entergy has failed to identify any new information or to show "why a 'manifest injustice' will result if reconsideration is not granted," the Staff argues, and has therefore failed to meet the threshold requirements for reconsideration of the Board's decision. Id. at 5. II. ANALYSISThe legal standard governing motions for reconsideration can be found in 10 C.F.R. §2.323(e), which states that such motions may be filed upon leave of the presiding officer "upon a showing of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have reasonably been anticipated, that renders the decision invalid."
As the NRC Staff correctly notes, this is a new standard put in place as part of the 2004 amendments to 10 C.F.R. Part 2 and designed to "permit reconsideration only where manifest injustice would occur in the absence of reconsideration."
8 Motions for reconsideration will beentertained only if a party "brings decisive new information" to the attention of the decision-maker or "demonstrates a fundamental . . . misunderstanding of a key point." LES, CLI-04-03,60 NRC at 622.Entergy's motion fails to satisfy this standard because it is merely an extension ofarguments that have already been made and rejected. In its answer to NEC's initial petition to intervene, Entergy presented several lengthy quotations from documents in the Vermont Yankee extended power uprate (EPU) proceeding as support for the argument that NEC's 9 Entergy Answer to Petition at 27-29 (citing Letter from G. Wallis, ACRS, to N. Diaz,Chairman, NRC (Jan. 4, 2006), ADAMS Accession No. ML060040431; Supplement 33 of EPU Application, ADAMS Accession No. ML052650122; Safety Evaluation by the Office of Nuclear Reactor Regulation Related to Amendment No. 229 to Facility Operating License No. DPR-28 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc., Vermont Yankee Nuclear Power Station Docket No. 50-271 (Mar. 2006), ADAMS Accession No.
10 Entergy has ignored, to its detriment, this Board's earlier request that parties cite andaddress regulatory requirements in their pleadings before us. See id. (slip op. at 60 n.62). expert witness declaration included a misinterpretation of Entergy's steam dryer agingmanagement program and therefore failed to provide a basis for Contention 3.
9 At the time,Entergy argued that NEC had not provided any "basis to dispute" the conclusions of these documents that steam dryer integrity would be maintained during operation at EPU conditions in the current licensing period. Id. at 29. In our September 22, 2006, ruling on contention admissibility, the Board did not attemptto evaluate either the accuracy of NEC's expert witness declaration or the factual validity of Entergy's challenge to it. Rather, we noted that "NEC is not required to prove its contention at this time" and ruled only that "NEC has identified sufficient ambiguity in Entergy's aging management plan for the steam dryer to meet the requirements for contention admissibility" contained in 10 C.F.R. § 2.309(f)(1). Vermont Yankee, LBP-06-20, 64 NRC at __ (slip op. at68-69). We also rejected the argument that resolution of steam dryer issues in the EPU time period shows that the issues have been resolved for any period of extended operation after 2012. Id. (slip op. at 66-67). The motion currently before the Board fails to address the regulatory requirementscontained in 10 C.F.R. § 2.323(e) 10 and instead continues to argue that NEC's expert isfactually incorrect in his representation of Entergy's commitments during the license renewal period. Entergy Motion at 4-8. Entergy has given us no sound reason to revisit our determination that NEC Contention 3 is admissible, and we decline Entergy's invitation to 11 For example, Entergy may have altered its position on the role of computer codes inits steam dryer aging management program between its first pleading and the current motion.
Originally, Entergy argued that computer codes would be used in addition to monitoring and inspection techniques. Entergy Answer to Petition at 28. Now, however, Entergy appears to be arguing that the program "does not depend" on computer models at all. Entergy Motion at 4-5.
This is a contradiction if the latter statement means that the program does not use the computer models in any way.
12 The prerequisite for the granting a motion for summary disposition is a showing "thatthere is no genuine issue as to any material fact and that the moving party is entitled to adecision as a matter of law." 10 C.F.R. § 2.710(d)(2), incorporated by reference into Subpart L procedures at 10 C.F.R. § 2.1205(c) (emphasis added). Motions for summary disposition are not the appropriate vehicles for battles of experts or resolution of ambiguous factual situations.litigate the merits of this contention now. Entergy has provided us with no evidence that there is a "clear and material error" in the Board's decision to admit Contention 3 "that renders the decision invalid." 10 C.F.R. § 2.323(e).
Nor has Entergy shown that a "manifest injustice would occur in the absence of reconsideration," 69 Fed. Reg. at 2207, of our decision to admit NEC Contention 3. Finally, Entergy has not presented us with any new material that "brings decisive new information" to the proceeding or "demonstrates a fundamental . . . misunderstanding of a key point." LES
,CLI-04-03, 60 NRC at 622. Rather, Entergy has repeated old arguments and, possibly, confused matters still further by introducing arguments that contradict those it relied on in the past.11In denying Entergy's motion for reconsideration, the Board takes no position on themerits either of NEC Contention 3 or of Entergy's aging management plan for the steam dryer -
whatever that is ultimately revealed to be. Nor do we necessarily endorse that Staff's suggestion that this contention involves no genuine issue as to any material fact and is thus appropriate for resolution by means of a motion for summary disposition.
12 Staff Answer at 5. We conclude only that Entergy's motion has not satisfied the requirements of 10 C. F. R. § 2.323(e). 13 Copies of this order were sent this date by Internet e-mail transmission to counsel or arepresentative for (1) applicant Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.; (2) petitioners the Department of Public Service of the State of Vermont and the New England Coalition; and (3) the NRC Staff.III. CONCLUSIONFor the reasons set forth above, Entergy's motion for leave to file a motion forreconsideration is denied. It is so ORDERED.THE ATOMIC SAFETY AND LICENSING BOARD 13/RA/ Alex S. Karlin, ChairmanADMINISTRATIVE JUDGE/RA/
Richard E. WardwellADMINISTRATIVE JUDGE/RA/
Thomas S. EllemanADMINISTRATIVE JUDGERockville, MarylandDecember 13, 2006 UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSIONIn 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 SERVICEI hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (DENYINGENTERGY MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION OF NEC CONTENTION 3) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeAlex S. Karlin, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeRichard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Administrative JudgeThomas S. Elleman Atomic Safety and Licensing Board Panel 5207 Creedmoor Rd., #101 Raleigh, NC 27612Mitzi A. Young, Esq.Steven C. Hamrick, Esq.
David E. Roth, Esq.
Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001Ronald A. Shems, Esq.Karen Tyler, Esq.
Shems Dunkiel Kassel & Saunders, PLLC 91 College Street Burlington, VT 05401 2Docket No. 50-271-LRLB MEMORANDUM AND ORDER (DENYING ENTERGY MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION OF NEC CONTENTION 3) Sarah Hofmann, Esq.Director for Public Advocacy Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601Anthony Z. Roisman, Esq.National Legal Scholars Law Firm 84 East Thetford Rd.
Lyme, NH 03768Matthew Brock, Esq.Assistant Attorney General Office of the Massachusetts Attorney General Environmental Protection Division One Ashburton Place, Room 1813 Boston, MA 02108-1598Diane Curran, Esq.Harmon, Curran, Spielberg,
& Eisenberg, L.L.P.
1726 M Street, NW, Suite 600 Washington, DC 20036Callie B. Newton, ChairGail MacArthur Lucy Gratwick Town of Marlboro SelectBoard P.O. Box 518 Marlboro, VT 05344Dan MacArthur, DirectorTown of Marlboro Emergency Management P.O. Box 30 Marlboro, VT 05344David R. Lewis, Esq.Matias F. Travieso-Diaz, Esq.
Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128Jennifer J. Patterson, Esq.Office of the New Hampshire Attorney General 33 Capitol Street Concord, NH 03301[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the CommissionDated at Rockville, Maryland,this 13 th day of December 2006