ML073180451
| 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
1 Entergy's Motion for Reconsideration of LPB-07-12 [sic] (Oct. 29, 2007) [hereinafter Entergy Motion].
2 Id. at 1.3 Id. at 1-2.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:
ENTERGY NUCLEAR GENERATION COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC.
(Pilgrim Nuclear Power Station)
Docket No. 50-293-LR ASLBP No. 06-848-02-LR November 14, 2007 MEMORANDUM AND ORDER(Ruling on Entergy's Motion for Reconsideraton of [LBP]-07-12
)In this memorandum and order we rule on Entergy's motion 1 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 Entergy's aging management program for buried tanks and piping, the Board was required as a matter of law to grant
Entergy's summary disposition [sic] and resolve PW-1 in Entergy's favor.
3 Moreover, Entergy urges this Licensing Board to "accept [Entergy's] conformance with the GALL Report [NUREG-1801, Generic Aging Lessons Learned Report (July 2001)], as 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.-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 Entergy's aging management
programs."
6 Staff Response to Motion The Staff supports Entergy's motion, agreeing that Pilgrim Watch provided no "competent evidence that refuted the Staff's and Entergy's 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 Commission's 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.
9 Pilgrim Watch's 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 Watch's Response Opposing Entergy's Motion for Summary Disposition of Pilgrim Watch Contention 1 at 1 (June 18, 2007)
[hereinafter Ahlfeld Declaration]). at 2) (Nov. 9, 2006).
9 Intervenors also challenge Entergy's 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 extens ive 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 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 Entergy's 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. 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 Watch's opposition to
Entergy's 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 detec tion 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 water" 17). Pilgrim Watch's contention, which is essentially a contention of omission, is that Entergy's aging management plan is inadequate 18 Copies of this Memorandum and Order were sent this date by Internet e-mail transmission to all counsel or representatives for parties. 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, 2007 18 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIONIn 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 ENTERGY'S MOTION FOR RECONSIDERATIO N 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 Adjudication
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001 Administrative Judge Ann Marshall Young, Chair
Atomic Safety and Licensing Board Panel
Mail Stop - T-3 F23
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001 Administrative Judge Richard F. Cole
Atomic Safety and Licensing Board Panel
Mail Stop - T-3 F23
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001 Administrative Judge Paul B. Abramson
Atomic Safety and Licensing Board Panel
Mail Stop - T-3 F23
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001 Susan L. Uttal, Esq.
David Roth, Esq.
Andrea L. Silvia, Esq.
Kimberly Sexton, Esq.
Office of the General Counsel
Mail Stop - O-15 D21
U.S. Nuclear Regulatory Commission
Washington, DC 20555-0001 David R. Lewis, Esq.
Paul A. Gaukler, Esq.
Pillsbury, Winthrop, Shaw, Pittman, LLP
2300 N. Street, N.W.
Washington, DC 20037-1128 2 Docket No. 50-293-LR LB MEMORANDUM AND ORDER (RULING ON ENTERGY'S
MOTION FOR RECONSIDERATION OF [LBP] 07-12)
Perry H. Buckberg, Project Manager Plant Licensing Branch I-I
Division of Operating Reactor Licensing
Office of Nuclear Reactor Regulation
U.S. Nuclear Regulatory Commission
Mail Stop O11-F1
Washington, DC 20555-0001 Mary Lampert, Director Pilgrim Watch
148 Washington Street
Duxbury, MA 02332 Sheila Slocum Hollis, Esq.
Town of Plymouth MA
Duane Morris, LLP
1667 K. Street, N.W.
Suite 700 Washington, D.C. 20006 Mark D. Sylvia, Town Manager Town Manager's Office
11 Lincoln Street
Plymouth, MA 02360 Terrence A. Burke, Esq Entergy Nuclear
1340 Echelon Parkway
Mail Stop: M-ECH-62
Jackson, MS 39213 Chief Kevin M. Nord Fire Chief & Director Duxbury Emergency
Management Agency
668 Tremont Street
Duxbury, MA 02332
[Original signed by Evangeline S. Ngbea]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 14 th day of November 2007