ML13017A562

From kanterella
Revision as of 00:12, 29 April 2019 by StriderTol (talk | contribs) (Created page by program invented by StriderTol)
Jump to navigation Jump to search
State of New York and Riverkeeper, Inc. Answer to January 7, 2013 Motions in Limine Filed by Entergy and NRC Staff to Strike Various Intervenors' Pre-Filed Submissions in Support of Contention NYS-38/RK-TC-5
ML13017A562
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 01/17/2013
From: Brancato D, Sipos J J
Riverkeeper, State of NY, Office of the Attorney General
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24026, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13017A562 (36)
v • d • e


Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

x In re: Docket Nos. 50-247-LR; 50-286-LR

License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01

Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 17, 2013

x

STATE OF NEW YORK AND RIVERKEEPER, INC.

ANSWER TO JANUARY 7, 2013 MOTIONS IN LIMINE FILED BY ENTERGY AND NRC STAFF TO STRIKE VARIOUS INTERVENORS' PRE-FILED SUBMISSIONS IN SUPPORT OF CONTENTION NYS-38/RK-TC-5

Office of the Attorney General Riverkeeper, Inc.

for the State of New York 20 Secor Road The Capitol Ossining, New York 10562

State Street

Albany, New York 12224 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT.....................................................................................................1

PROCEDURAL HISTORY.............................................................................................................

2 The ASLB's July 1, 2010 Scheduling Order.......................................................................2

Intervenors' September 30, 2011 Submissions....................................................................3

Entergy's November 2011 Motion for Reconsideration......................................................5

Intervenors' June 19, 2012 Initial Pre-Filed Submissions...................................................6

Entergy's July 2012 In Limine Motion................................................................................6

The § 2.323 Consultation on the January 7, 2013 In Limine Motions................................6

ARGUMENT

POINT I

CONTENTION NYS

-38/RK-TC-5 INCLUDES CONCERNS ABOUT ENGINEERING JUDGMENT, ASSUMPTIONS, AND USER INTERVENTION..........8 POINT II

ENTERGY AND STAFF'S OBJECTION TO DR. HOPENFELD'S TESTIMONYAND ASSOCIATED EXHIBITS SHOULD BE REJECTED.......................................................................................................................

.12 POINT III

ENTERGY'S ATTEMPT TO DELETE PO RTIONS OF INTERVENORS' STATEMENT OF POSITION IS MISPLACED AND SHOULD BE REJECTED.......................................................................................................................

.22

CONCLUSION.....................................................................................................................

.........30

2 1 PRELIMINARY STATEMENT Having unsuccessfully sought to defeat or limit Contention NYS-38/RK-TC-5 on three previous occasions, Entergy and NRC Staff have returned for a nother try. Two business days before the 60-day filing deadline, movants Entergy and NRC Staff initiated consultation efforts with intervenors State of New York and Riverkeeper on movants' desire to remove portions of intervenors' reply testimony and reply statement of position in support of Contention NYS-38/RK-TC-5. When the State and Riverkeeper did not agree to movants' request, Entergy and Staff filed two separate in limine motions necessitating this combined response. Entergy and NRC Staff's in limine motions differ from each other. Entergy's motion seeks to: exclude material beyond what was discu ssed in the consultation calls, reach back to intervenors' June 2012 submissions, and obtain a "do over" of its July 2012 in limine motion.

Entergy also seeks to strike portions of intervenors' statement of position, although this Board has ruled that such statements are not the subject of in limine motions. NRC Staff's motion has a narrower focus that seeks to exclude portions of Dr. Hopenfeld's November 2012 reply testimony.

1 The Board should reject Entergy and NRC Staff's combined efforts to limit the review of the broadly structured and well supported contention. Entergy's motion combines a factually inaccurate foundation, an incomplete recitation of the procedural history and chronology, and a disregard for the law of the case. Moreover, Entergy's motion seeks reli ef that goes well beyond the bounds of what Entergy counsel discussed du ring the belated § 2.323 consultation process.

1 In this submission, the citation "Entergy MIL" refers to Entergy's January 7, 2013 Motion To Strike Portions Of Intervenors' Revised Statement Of Position And Motion In Limine To Exclude Portions Of The Pre-Filed Rebuttal Testimony And Exhibits For Contention NYS-38/RK-TC-5 (Safety Commitments), and the citation "NRC Staff MIL" refers to NRC Staff's January 7, 2013 Motion In Limine To Exclude Portions Of The Prefiled Rebuttal Testimony Filed By Riverkeeper Concerning Contention NYS-38/RK-TC-5.

2 Entergy's motion mischaracterizes the testimon y of Intervenors' expert witnesses when it states: Intervenors' rebuttal testim ony raises general objections to the use of engineering judgment in the preparation of environmentally-assisted fatigue ("EAF") evaluations-arguments that Intervenors' witnesses acknowledge are unrelated to the SSER commitments challenged in this contention, but instead relate to the separate metal fatigue cont ention, NYS-26B/RK-TC-1B.

Entergy MIL at 2. Contrary to Entergy's repr esentation, Dr. Lahey and Dr. Hopenfeld did not acknowledge that their statements were unrelated to the SSER commitments. PROCEDURAL HISTORY Intervenors respectfully submit that a revi ew of the procedural history of Contention NYS-38/RK-TC-5 may be useful before turning to the contents of Entergy's current motion. A summary of the procedural history up to mid-June 2012 appears in Intervenors' June 19, 2012 Initial Statement of Position In Suppor t of Joint Contention NYS-38/RK-TC-5 , at 15-24 (NYS000371) ML12172A018; Interve nors' respectfully request that that document be incorporated here by reference.

The ASLB's July 1, 2010 Scheduling Order On July 1, 2010, the Atomic Safety and Licen sing Board issued a Scheduling Order that provides, among other things, the opportunity for parties to submit bona fide motions in limine in response to specific pre-filed evidentiary submissions. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Sc heduling Order, ¶ K.4 (July 1, 2010) ML101820387.

The Order stated: Motions In Limine or to Strike. No later than thirty (30) days after service of the materials submitted by intervenors and/or interested governmental entities

under paragraphs K.1 or K.3 or by Ente rgy and the NRC Staff under paragraph K.2, the parties shall file any motions in limine or motions to strike regarding the materials submitted under paragraphs K.1 through K.3. Answers shall be filed no

later than ten (10) days after service of such motions.

32 3____________

32 A Motion in limine or to strike regarding a submission made pursuant to Section K.1. must be file d within thirty (30) da ys after the Section K.1. submission is made. Likewise a Motion regarding a submission made pursuant to Section K.2. must be file d within thirty (30) da ys after the Section K.2. submission is made, etc.

ASLB July 1, 2010 Scheduling Order, ¶ K.4. T hus, the Scheduling Order provided Entergy and NRC with one opportunity to seek to strike intervenors' initial (¶ K.1) evidentiary submissions and a separate opportunity to seek to strike intervenors' revised (¶ K.3) evidentiary submissions. As is clear from the text of the motion and attached chart, the Entergy MIL violates the Scheduling Order by seeking to use the opportunity to strike the revised (¶ K.3) evidentiary submissions to also reach back and strike the inte rvenors' initial (¶ K.1) evidentiary submissions.

Intervenors' September 30, 2011 Submissions On September 30, 2011, the State of New York and Riverkeeper submitted proposed Joint Contention NYS38 / RK-TC-5. This contention alleged that Entergy's Aging Management Programs (AMP) are not in compliance with 10 C.

F.R. §§ 54.21(a)(3) and (c

)(1)(iii), as well as 42 U.S.C. §§ 2133(b, d) and 2232(a), because they fail to provide detailed plans as to the company's various AMPs at Indian Point, instead promising details in the future. This lack of detail, it was alleged, should resu lt in a denial of the requested licenses because the lack of that information threatens the "health and safety of the public," and does not provide the NRC with a sufficient record upon which to make a decision regarding plant safety.

State of New York and Riverkeeper's New Joint Contention NYS-38/RK-TC-5 , ¶ 19 (Sept. 30, 2011) (ML11273A196). Intervenors argued that, "because Entergy has, at most, promised to provide a demonstration in the future that it will meet the requirements of 10 C.F.R. §§ 54.21(a)(3) and (c)(1)(iii), but is not making that demonstration at this time, it has failed to meet the requirements of 10 C.F.R. § 4 54.29(a) and its application for a renewed license for Indian Point Units 2 and 3 should be denied." Id. at ¶ 5. In addition to the contention itself, New York and Riverkeeper submitted the declaration

of Dr. Richard T. Lahey, Jr., who stated that Entergy's submitted AMPs lacked the detail necessary for the NRC and New York State to conduc t a proper analysis.

In addition, he stated that as a result of Entergy's plans to wait until at least 2013 to finalize AMPs for its steam generators (based on EPRI's Steam Generator Management Program), critical tube-to-tubesheet welds in IP-2's steam generators would not be inspected until between March 2020 and March 2024 for IP-2 and March 2016 to March 2017 for IP-3.

Declaration of Dr. Richard T. Lahey, Jr., ¶ 6 (Sept. 30, 2011) (ML11273A192) (NYS000302). He also stated that Entergy's assumptions regarding metal fatigue analysis were unknown and will remain so until immediately before relicensing would take effect. As part of that submission, Dr. Lahey di scussed concerns about engineering assumptions and judgments and user intervention in fatigue calculations for limiting locations.

Id., at ¶¶ 7-11. New York and Riverkeeper also submitted the declaration of Dr. Joram Hopenfeld, in which he stated, among other things, that Entergy had made only a "vague commitment to perform necessary metal fatigue investigation and analysis in the future," and that it had not met its burden under 10 C.F.R. § 54.21(c).

Declaration of Dr. Joram Hopenfeld , LB 07-858-03, ¶ 14 (Sept. 30, 2011) (ML11273A194).

On November 10, 2011, the Atomic Safety and Licensing Board issued an opinion admitting Joint Contention NYS38 / RK-TC-5. Th e ASLB found the State of New York and Riverkeeper's Contention to be timely and reasoned that, based on New York State and Riverkeeper's arguments, there were adequate gr ounds to conduct an evid entiary hearing on the 5issue. According to the Board, "The Intervenors have broadly contended, relying on multiple bases, that Entergy's new commitments do not meet NRC regulations for having a program that will adequately manage the effects of aging during the period of extended operations."

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Admitting New C ontention NYS-38/RK-TC-5), slip op. at 10 (Nov. 10, 2011) (ML113114A211).

Entergy's November 2011 Motion for Reconsideration On November 21, 2011, Entergy filed a motion for clarification concerning the ASLB's decision to admit Contention NYS-38/RK-TC-5. Entergy specifically requested clarification on the scope of the contention and the schedule for filing evidence related to the contention. The company requested that the contention be limited to Entergy proposed Commitment 41 and its adequacy related to the AMP for detecting PWSCC in steam generator divider plate assemblies. Applicant's Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5 , at 3 (Nov. 21, 2011) (ML11325A433). On December 5, 2011 the Atomic Safety and Licensing Board granted Entergy's motion for clarification, but denied the substantive relief that Entergy sought, that of limiting the scope of the contention to Commitment 41. The Boar d agreed with the State of New York and Riverkeeper that Contention NYS-38/RK-TC-5 was "broad" in scope and re asserted its position in admitting the contention that Intervenors had raised "multiple bases" for their claims, which should be subject to furthe r evidentiary proceedings. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (G ranting Entergy's Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5), slip op. at 3 (Dec. 6, 2011) (ML11340A088).

6 Intervenors' June 19 2012 In itial Pre-Filed Submissions On June 19, 2012, Intervenors filed their Initial Statement of Position in support of Contention NYS-38/RK-TC-5 along with the pre-filed testimony of Drs. Lahey, Hopenfeld, and Duquette and supporting exhibits. Among other things, in his June 19, 2012 submission, Dr.

Lahey discussed concerns about engineering assumptions and judgments and user intervention in fatigue calculations for limiting locations.. NYS000374 at pp. 22-32 (submitted June 19, 2012). Dr. Hopenfeld's June 19, 2012 testimony included, among other things, statements concerning Entergy's failure to provide sufficient details regarding the methodology for determining the most limiting locations requiring metal fatigue analyses at Indian Point, and the appropriate considerations in making such a determination. RIV000102 (submitted June 19, 2012).

Entergy's July 2012 In Limine Motion Following the submission of intervenors' initial pre-filed testimony, exhibits, and Statement of Position, Entergy filed an in limine motion seeking to exclude portions of intervenors' pre-filed testimony and exhibits. Entergy's Motion In Limine to Exclude Portions of Intervenors' Prefiled Direct Testimony, Expert Report, Statement of Position, and Exhibits For Contention NYS-38/RK-TC-5 (Safety Commitments) (Jul. 6, 2012) ML12188A747. That motion, which Staff did not join in, sought to strike portions of Dr. Duquette and Dr. Lahey submissions and the Statement of Position concerning steam generators and various exhibits associated with Dr. Hopenfeld's testimony and Commitment 42. This Board rejected Entergy's challenge to the intervenors' initial pre-filed testimony and exhibits. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),Order (Denying Entergy's Motion in Limine Seeking to Exclude Portions of Intervenors' Direct Evidence Addressing Contention NYS-38/RK-TC-5) (Aug 16, 2012) ML12229A432.

7Entergy's current motion in limine once again attempts to limit the scope of NYS-38. In denying this motion we reiterate that NYS-38 is a broad contention, the scope of which is not limited to Entergy Commitments 30, 41, 43, and 44.

Instead it broadly encompasses the claim that there is insufficient information in Entergy's Commitments as addressed in the SSER. Accordingly, Entergy's instant Motion in limine is denied.

ASLB August 16, 2012 Order at 3-4 (emphasis in original).

The § 2.323 Consultation on the January 7, 2013 In Limine Motions On the afternoon of Thursday January 3, 2013, attorney Raphael Kuyler on behalf of Entergy notified counsel for intervenors that Entergy wished to consult in advance of filing a motion in limine in response to intervenors November 9, 2012 pre-filed "rebuttal" evidentiary submissions.

See Attachment 1 hereto (Jan. 3, 2012 1600h e-mail from R. Kuyler (Entergy counsel)). The parties held a conference call the next day Friday, January 4, 2013 to discuss Entergy's proposal. Counsel for NRC Staff also pa rticipated in the call and generally indicated Staff's intent to also file a motion in limine. The parties held a second consultation call on Monday, January 7, 2013. During that call, the parties did resolve one potential issue regarding a Nucleonics Week article(thereafter submitted as NYS000472). At no time during the consultation process did Entergy indicate that it would also seek to strike the Intervenors' initial pre-filed evidentiary submissions that had b een filed back in June 2012. The consultation discussions concerning Dr. Lahey's rebuttal submission centered on the second half of page 14 and page 15 of his rebuttal testimony. Moreover, movants' counsel did not identify Dr. Lahey's rebuttal testimony (p. 9) about the government's reactor sustainability program as a topic of an impending motion.

8 ARGUMENT POINT I CONTENTION NYS-38/RK-TC-5 INCLUDES CONCERNS ABOUT ENGINEERING JUDGMENT, ASSUMPTIONS AND USER INTERVENTION The scope of NYS-38/RK-TC-5 includes "c oncerns about the use of engineering judgment in fatigue calculations." Entergy's MIL at 5. In admitting NYS-38, the Board held that it is a broad contention with multiple bases.

2 The contention includes, as a basis, that Entergy "now - concedes that there may be more limiting locations but that the identification of the detailed process to be used to determine the most limiting locations for which CUF en calculations will be made and selection of those locations will not be disclosed prior to completion of the license review process."

State of New York and Ri verkeeper's New Joint Contention NYS-38/RK-TC-5 at ¶ 2. (Sept. 30, 2011) The cont ention itself includes, as a basis, that Entergy "now asserts that it will use user interventions (a reference for changes to the approved program made by the user to fit the us er's needs)" without di sclosing "what criteria will be used in deciding when such interventions can occur or what criteria will be used when creating these deviations."

Id., at ¶ 4; accord id., at ¶ 2. As noted above in the Procedural History section, Drs. Lahey and H openfeld have raised concerns about engineering judgment and assumptions and user intervention in the development of fatigue calculations for limiting locations. S ee, e.g., NYS000302 at ¶¶ 7-11; NYS000374 at pp. 22-32; RIV000102. As

2 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),Licensing Board Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5) at 10 (Nov. 10, 2011) (unpublished) ("Intervenors have broadly contended, relying on multiple bases, that Entergy's new commitments do not meet NRC regulations for having a program that will adequately manage the effects of aging during the period of extended operations."); Licensing Board Memorandum and Order (Granting Entergy's Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5) at 3 (Dec. 6, 2011) (unpublished) ("[W]e admitted the Intervenors' 'broad' contention, which relied on 'multiple bases' including the 'claim that there is insufficient information in Entergy's recent commitments' that were addressed in the SSER.").

9 intervenors' experts explain, both the selection of additional limiting locations for fatigue and the operation and application of the WESTEMS TM fatigue analysis involve engineering judgment and assumptions and user intervention. USNRC Staff has recently required Entergy to create records that document and justify any assumptions and engineering judgments developed and used in the CUF en calculations [SSER at 4-2]. Such assumptions and engineering judgments will affect the WESTEMS results. A systematic and methodical explanation of these assumptions and engineering judgments is essential in evaluating the adequacy of the CUF en calculations using WESTEMS, but they are not yet available. Indeed, the anticipated schedule of the availability of this information will likely not allow them to be considered in these ASLB proceedings.

Declaration of Dr. Richard T. Lahey, ¶ 9 (Sept. 30, 2011) (NYS000302) (emphasis added). Dr. Lahey elaborated that "[t]here is a difference between stating that one will develop a program that will comply with the parameters in GALL and actually disclosing the details, judgments, assumptions, and user interventions that underlay the program and the analyses (including computer codes such as WESTEMS) that are critical to the program."

Id. ¶ 11 (emphasis added). Entergy, however, appears to prefer using a narrower definition of the term "user intervention" by limiting it to "a specific adjustment made at a particular step in the WESTEMSŽ fatigue analysis process, where redundant stress peaks and valleys are removed, so they are not double-counted." Entergy MIL at 6, citing Testimony of Entergy Witnesses Nelson F. Azevedo, Alan B. Cox, Jack R. Strosn ider, Robert E. Nickell, and Mark A. Gray Regarding Contention NYS-26B/RK-TC-1B (Metal Fatigue) at A69 (Mar. 29, 2012). In his rebuttal testimony Dr. Lahey responded to Entergy and NRC Staff's pre-filed testimony and exhibits and expressed a diffe ring view of engineering judgm ent and assumptions and user intervention concerning the development of fatigue calculations for limiting locations for pressure boundary components. NYS000453 at pp.

14-17. The parties' differing views on the 10subject should be left to the Atomic Safety a nd Licensing Board to evaluate and decide after it has an opportunity to hear the testimony of the parties' respective experts on the matter. Similarly, Entergy improperly seeks the exclusion of Dr. Hopenfeld's testimony related to the use of engineering judgment. Entergy claims that Dr. Hopenfeld's rebuttal testimony (RIV000134), like Dr. Lahey's, raises improper "gen eral concerns about th e use of engineering judgment in fatigue calculations" that are "not limited to challenging Entergy's Commitments

" related to metal fatigue. Entergy's MIL at 5-6 (emphasis in original). However, Entergy's position is untenable. Dr. Hopenf eld's discussion of engineering judgment in fatigue evaluations is not outside the scope of the Contention NYS-38/RK-TC-5, because any such testimony relates directly to the adequacy of Entergy's commitments with respect to managing the aging effects of fatigue, an issue that is squarely relevant to Contention NYS-38/RK-TC-5, as admitted. Dr. Hopenfeld's discussion of engineering judgment in this context is directly relevant to the matters to be decided upon on the contention.

A specific review of the objected to testim ony on page 25 line 13 to page 26, line 5 of Dr. Hopenfeld's rebuttal testimony reveals that Dr. Hopenfeld's criticisms discussed the various inadequacies of Entergy's alle gedly refined fatigue analysis.

Dr. Hopenfeld's discussion of faulty assumptions in this context is entirely relevant to the question of the sufficiency of Entergy's commitments for managing metal fatigue at Indian Point during the proposed period of extended operation. Moreover, it was in direct response to Entergy's witnesses' testimony relating to the trustworthiness of its fatigue eval uations. Thus, there is simply no basis for the exclusion of this testimony. Likewise, Dr. Hopenfeld's discussion of the assumptions and judgment inherent in the use of WESTEMS TM , which Entergy also seeks the exclusion of (page 26 line 7 to page 27 line 29 of Dr.

Hopenfeld's rebuttal), is directly relevant to the question of 11the sufficiency of Entergy's commitment related to the details of WESTEMS TM "user intervention." Once again, Dr. Hopenfeld's testimony stems directly from Entergy's explanation regarding the alleged adequacy of Entergy's use of and reliance on WESTEMS TM. There is, thus, similarly, no basis to exclude this testimony either. As a result, Entergy's motion to exclude Dr. Hopenfeld's testimony related to hi s opinions on "engineering judgment" should be denied. In addition to seeking the ex clusion of certain portions of Dr. Hopenfeld's rebuttal testimony related to engineering judgment, Entergy also seeks the exclusion of certain testimony from Dr. Hopenfeld's direct initial testimony - testimony that was filed back in mid-June 2012 pursuant to ¶ K.1 of the ASLB's Scheduling Or der. This request is wholly unsupported and inappropriate. To begin with, Entergy failed to properly consult with Inte rvenors pursuant to 10 C.F.R. § 2.323(b) regarding its inte ntion to seek exclusion of porti ons Intervenors' experts initial testimony. During the telephone consultation calls had among the parties, this issue never came up. Entergy's failure to adequately consult constitutes sufficient grounds to deny Entergy's request. In addition, Entergy's request is untimely. The deadline for motions in limine related to intervenors' initial hearing submissions on Contention NYS-38/RK-TC-5 expired on July 19, 2012, i.e., 30 days after the submission of Intervenor s initial filings on th e contention on June 19, 2012. See ASLB Scheduling Order (July 1, 2010), at ¶ K.4 (Motions In Limine or to Strike. No later than thirty (30) days after service of the materials submitted by intervenors and/or interested governmental entities under paragraphs K.1 or K.3 or by Entergy and the NRC Staff under paragraph K.2, the parties shall file any motions in limine or motions to strike regarding the materials submitted under paragraphs K.1 through K.3). Entergy has not provided any 12justification for requesting the ex clusion of portions of Intervenors' initial filings on Contention NYS-38/RK-TC-5 so far past the established dead line for doing so. As a result, this request should be denied.

POINT II ENTERGY AND STAFF'S OBJECTION TO DR. HOPENFELD'S TESTIMONY AND ASSOCIATED EXHIBITS SHOULD BE REJECTED NRC Staff's Motion in Limi ne Erroneously Asserts that Riverkeeper has Raised "New" Issue s NRC Staff's Motion in Limine to Exclude Portions of the Prefiled Rebuttal Testimony Filed by Riverkeeper Concerning NYS-38/RK-TC-5, dated January 7, 2013, (hereinafter "NRC Staff MIL") incorrectly claims that the rebuttal testimony of Dr. Joram Hopenfeld relating to Contention NYS-38/RK-TC-5 includes "two new lines of evidence." NRC Staff MIL at 1.

First, NRC Staff asserts that "Dr. Hopenfeld impermissibly introduced statements, for the first time, concerning flow accelerated corrosion."

Id. at 1. NRC Staff alleges that Dr.

Hopenfeld's discussion regarding the "synergetic effects of stre ss corrosion cracking (SCC) and FAC on metal fatigue" was "not previously iden tified in Dr. Hopenfeld' s initial testimony" on Contention NYS-38/RK-TC-5.

Id. at 4. NRC Staff also claims that Dr. Hopenfeld's discussion regarding FAC is improper rebuttal because "Riverkeeper fails to show where the issue was raised in the Staff or Applicant's testimony."

Id. at 4-5. NRC Staff further claims that Dr.

Hopenfeld's discussion of the relevance of FAC in assessing metal fatigue is "new" since, allegedly, Dr. Hopenfeld only previously discusse d "erosion and wall thinni ng" in relation to his "experience and qualifications" and these statements "do not address the adequacy of Entergy's license renewal application based on any aspects of FAC, and since, "the single mention of wall thickness in his [initial] testimony . . . is not used in any discussion of FAC.

Id. at 5.

13NRC Staff's arguments lack merit, since Dr. Hopenfeld's statements related to FAC in his rebuttal testimony on Contention NYS-38/RK-T C-5 cannot properly be viewed as raising "new" issues or concerns. For example, Dr. Hopenfeld's initial testimony concerning Contention NYS-38/RK-TC-5 includes a discussion of the position that that an adequate analysis of limiting locations at Indian Point must consider, inter alia , synergistic effects of stress corrosion cracking, and component wall thickne sses and flow characteristics (including velocities) related to each component.

See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 12-13. In particular, Dr. Hopenfeld previ ously explained that in order to determine the most limiting locations requiring CUFen analysis at Indian Point, selected components must be screened a nd ranked with respect to their most vulnerable locations, considering parameters that are known to effect fatigue life. These include the ratios of the local heat transfer coefficient, the local material conductivity, wall thickness , fluid temperature, T, dissolved oxygen levels, flow velocities, number of transients, magnitude and cycling frequency of surface temperatures, (thermal striping in stratified flows) and loads, and surface discontinuities and flow discontinuities in each component.

Id. at 12 (emphasis added). The testimony to which NRC Staff now objects is a direct elaboration upon Dr. Hopenfeld's discussion of his opinions rela ted to the necessary steps, analyses, and considerations required to determine limiting metal fatigue locations at Indian Point. Thus, Dr. Hopenfeld's references to FAC in his rebuttal is a l ogical outgrowth of his initial testimony.

Moreover, contrary to NRC Staff's claims, Dr. Hopenfeld's statements related to FAC in his rebuttal testimony are in direct response to Entergy and NRC Staff's testimony regarding the adequacy of Entergy's methodology for selecting limiting locations. Thus, while Entergy and NRC Staff did not "raise" or di scuss FAC, this does not, and i ndeed should not, preclude Dr.

14Hopenfeld from fully responding to Entergy's w itnesses testimony about Entergy's explanation relating to how limiting locations will be selected at Indian Point.

3 In fact, such a full response implicated Entergy's failure to fully account for relevant parameters a nd factors that affect component susceptibility to me tal fatigue, including FAC.

Thus, NRC Staff's position th at Dr. Hopenfeld's referenc es to FAC in his rebuttal testimony are somehow entirely "new" is unfounded. Dr. Hope nfeld's initial testimony on Contention NYS-38/RK-TC-5 did not simply make reference to corrosion mechanisms in his discussion of his experience and qualifications. To the contrary, Dr. Hopenfeld clearly laid the foundation for his substantive con cerns relating to FAC in his in itial testimony, and his rebuttal testimony serves to elucidate his concerns in response to Entergy a nd NRC Staff's overly simplistic assessment of the steps required to fully and appropriately determine the most limiting metal fatigue locations at Indian Point. Furthermore, Dr. Hopenfeld's initial testimony on Contention NYS-38/RK-TC-5 expressly indicated that he had reviewed "all of the pleadings involving Riverkeeper Contentions TC-1, TC-1A, TC-1B," and used such documents to inform and derive his conclusions.

See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 5. Dr. Hope nfeld also indicated he was relying on the documents that had previously been submitted relating to Contention NYS-26B/RK-TC-1B, which relates to similar metal fatigue issues.

Id. Notably, in the context of explaining the inadequacies with Entergy's refined metal anal ysis in his initial testimony on Contention NYS-

3 For example, the objected to references to FAC came up in response to the following question: "Entergy's witnesses testify that the methodology for selecting limiting locations for additional fatigue analysis 'will consist of applying appropriate F ens to the existing CUFs and comparing the adjusted screening CUF en values on a common stress basis to determine limiting locations' and, '[i]f any of the screening CUF en values at the limiting locations exceed 1.0, then further evaluation of that component will be required.' Entergy's [Aug. 20, 2012] Testimony [Regarding Contention NYS-38/RK-TC-5] at A101. Do you have a response to this explanation?"

See Prefiled Rebuttal Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (November 9, 2012), Exhibit RIV000134, at 10-11.

15 26B/RK-TC-1B, Dr. Hopenfeld explains that a "factor that would lead to non-uniform stress distributions is preferential wall wear due to flow accelerated corrosion ("FAC") in low alloy steel components" and cites to "Entergy ultrasonic examination reports" which indicated "that in components where flow is not fully developed, co mponent wall thickness can vary by more than 400% at Indian Point." Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding NYS-26-B/RK-TC-1B - Metal Fatigue (December 22, 2011), Exhibit RIV000034, at 13:19-22. In his initial testimony on Contention NYS-38/RK-TC-5, Dr. Hopenfeld also expressly criticizes Entergy's approach to assessing metal fatigue by citing back to this earlier testimony related to Contention NYS-26B/RK-TC-1B.

See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 8:3-8; footnote 20). Moreover, one of the exhibits Dr. Hopenfeld indicates he was re lying on to support his initial testimony related to Contention NYS-38/RK-TC-5 was RIV000049, a schematic showing FAC wear and measurements. Thus, Dr. Hopenfeld's earlier testimony related to Contention NYS-26B/RK-TC-1B, which he squarely relies upon and essentially incorpor ates into his initial testimony on Contention NYS-38/RK-TC-5, explicitly raises concerns related to FAC. NRC Staff further alleges that Dr. Hope nfeld's rebuttal testimony on Contention NYS-38/RK-TC-5 "introduced new arguments concerning wall thickness measurements for performing cumulative usage factor (CUF) and environmentally-adjusted CUF (CUFen) calculations." NRC Staff MIL at 1. NRC Staff claims that Dr. Hopenfeld's concern related "what wall thickness is used during calculations" is a "new" issue that Dr. Hopenfeld has not previously raised.

Id. at 5-6. Once again, NRC Staff's posit ion is belied by the record and unsupported.

16 As cited above, Dr. Hopenfeld's initial testimony on Contention NYS-38/RK-TC-5 expressly indicates his position that component wall thickness is a factor in determining the most limiting locations for assessing metal fatigue.

See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-T C-5 (June 19, 2012), Exhibit RIV000102, at 12. The objected to testimony constitutes a disc ussion which, once again, elaborates upon Dr.

Hopenfeld's opinions related to the inadequacy of Entergy's methodologies related to screening and determining components for metal fatigue analysis. Dr. Hopenfeld's testimony simply provides additional details related to the appropriate methodology for screening components, which, in his opinion, includes a consideration of component wall thickness. Once again, this a logical outgrowth of Dr.

Hopenfeld's initial testim ony related to this issue. To be sure, Dr. Hopenfeld's discussion in his rebuttal testimony related to the relevance of component wall thicknesses in metal fatigue analyses was informed by information gleaned from the adjudicatory hearings held in the Indian Point license renewal proceeding in October 2012. However, it cannot properly be viewed as growing solely out of statements made at the hearings. To the contrary, Dr. Hopenfeld's testimony is direct rebu ttal to Entergy's witnesses' testimony related to Entergy's methodology for selecting limiting locations for additional fatigue analysis.

See Prefiled Rebuttal Testimony of Dr. Joram Hope nfeld Regarding Contention NYS-38/RK-TC-5 (November 9, 2012), Exhibit RIV000134, at 10-11.

Contrary to NRC Staff' s unfounded assertions, Dr. Hopenfeld's rebuttal testimony pertaining to Contention NYS-38/RK-TC-5 has not raised "new" issues for the first time. Dr.

Hopenfeld's initial testimony laid more than ade quate foundation for his concerns related to FAC and component wall thickness and his rebuttal testimony properly el aborated upon such concerns in direct response to the testimony proffered by Entergy and NRC Staff.

17Entergy's Motion in Limine Erroneously Asserts that Riverkeeper has raised CLB Issues Outside the Scope of the Proceeding and Contention Entergy's Motion to Strike Portions of Intervenors' Revised Statement of Position and Motion in Limine to Exclude Portions of the Pre-Filed Rebuttal Testimony and Exhibits for Contention NYS-38/RK-TC-5 (Safety Commitments), dated Ja nuary 7, 2013 (hereinafter "Entergy MIL") seeks to exclude portions of the Pre-filed Written Rebuttal Testimony of Riverkeeper' expert witness, Dr. Joram Hopenfel d, as well as relevant exhibits proffered by Riverkeeper in support of Contention NYS-38/RK-TC-5. Entergy claims that Dr. Hopenfeld has impermissibly testified that Entergy "must reconsider the Indian Point CLB as part of its FMP" and made a "new claim that Entergy should perform CUF en analyses for secondary plant components" that is "outside the scope of the proceeding and contention." Entergy MIL at 2, 7-10. However, Entergy's arguments are unavailing. Entergy improperly characterizes Dr. Hopenfeld's testimony as a challenge to the CL B and outside the scope of the proceeding and contention. Entergy mischaracterizes Dr. Hopenfeld's testimony, which cannot be properly characterized as "[c]hallenging the adequacy of the CLB."

Id. at 7. To the contrary, Dr. Hopenfeld's discussion stems directly from hi s position with regard to how Entergy should conduct an adequate analysis to determine the most limiting locations for metal fatigue analysis at Indian Point. This discussion relates directly to the adequacy of Entergy's commitment 43 relating to metal fatigue. Thus, Dr. Hopenfel d's opinions relating to the screening and consideration of components without existing CUFs is neit her outside the scope of the contention, or the proceeding.

Entergy's attempt, once again, to improperly limit the scope of the admitted contention raises arguments similar to those Entergy has raised in the past, which were ultimately and 18repeatedly rejected. For example, in motions in limine related to Contention NYS-26B/RK-TC-1B, Entergy also accused Dr. Hopenfeld of improperly challenging the CLB when he discussed original design basis CUF calculations for the reactor vessel inlet and outlet nozzles.

See, e.g., Entergy's Motion to Strike Portions of Intervenors' Revised Statement of Position for Contention NYS-26B/RK-TC-1B (Metal Fatigue), at 9-14. This argument ha s been rejected by the ASLB on several occasions. In one order, the ASLB explained that: specific CLB analyses define the current practices of the Applicant that relate to similar calculations that will be performed as part of Entergy's AMP for metal

fatigue. They are an appropriate subject for review in this license renewal proceeding. The degree of the relevance between the CLB analyses and those proposed in the Applicant's AMP is a merits question that can only be determined by weighing all the evidence on this topic. Resolution of th is question will be best served after all the testim ony has been filed and this issue is probed during the adjudicatory hearing.

See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Genera ting Units 2 and 3), Order (Granting in Part and Denying in Part Applicant's Motions in Limine) (March 6, 2012), at 15-16, (unpublished) ML12066A170. The same logic applies to Dr. Hopenfeld' s discussion of the necessity of screening components that do not have existing CUFs. Dr. Hopenfeld's testimony relates to the adequacy of Entergy's commitment to determine the most limiting locations in order ensure the adequate management of metal fatigue during the propos ed extended operating term. As such, the testimony cited in Entergy's motion is not an improper critique of the CLB. As Riverkeeper has explained several times in the context of previous motions in limine filed by Entergy, "[w]hile 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."

Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Docket Nos.

1950-271-LR, ASLBP No. 06-849-03-LR, Order (Ruling on Motions to Strike and Motions in Limine), at 10 (July 16, 2008). Licensing boards have not been "willing to exclude evidence merely because it touches upon Entergy's CLB."

See id. Entergy's mandate and commitment to determine the most limiting locations at Indian Point is unequivocally "part of its aging management program during the license renewal term,"

(id.) and Dr. Hopenfeld's discussion relating to the need to screen and consider components without existing CUFs directly informs that relevant determination about Entergy's AMP for metal fatigue at Indian Point. In other word s, Dr. Hopenfeld's testim ony related to components without existing CUFs is highly relevant for eval uating a critical featur e of Entergy's license renewal aging management program for metal fatigue, i.e., Entergy's commitment to determine the most limiting locations at the plant. This testimony stems from Dr. Hopenfeld's review and understanding of applicable obliga tions in light of Entergy's failu re to show that its previous analyses was adequately bounding for the plant.

See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 9-12. Simply because Dr. Hopenfeld's testimony included in opinions about the absence of design basis CUFs, and thereby "touches upon Entergy's CLB," does not mean that his testimony constitutes an impermissible challenge to the CLB.

In any event, this issue is best served by weighing all the evidence at an adjudicatory hearing. Entergy also claims that, in addition to allegedly being outside the scope of the proceeding, Dr. Hopenfeld's discussion of the need to consider components in balance-of-plant systems even though they do not have existing CUFs is a new assertion. Entergy's MIL at 9.

For the reasons discussed above, the objected to testimony is not outside the scope of the proceeding, since it relates directly to Entergy's commitment for managing metal fatigue during 20 the proposed period of extended operation and to th e adequacy of Entergy's AMP. In addition, the objected to testimony is also not a new issue, as Entergy's asserts.

To the contrary, the referenced testimony constitutes an express elaboration upon Dr. Hopenfeld's initial testimony, as indicated in a footnote.

See Prefiled Rebuttal Testimony of Dr. Joram Hopenfeld Regarding Contention NYS-38/RK-TC-5 (November 9, 20 12), Exhibit RIV000134, at footnote 39. Dr.

Hopenfeld's initial testimony disc ussed the need list "al l" components susceptible to fatigue, in order to determine the most limiti ng locations at Indian Point.

See Prefiled Written Testimony of Dr. Joram Hopenfeld Regarding Contenti on NYS-38/RK-TC-5 (June 19, 2012), Exhibit RIV000102, at 12. Moreover, Dr. Hopenfeld al so included a chart of components he recommended be considered in the analysis of determining the most limiting locations, which included secondary side components.

See id. at 13-15. Thus, Dr. Hopenfeld's discussion of the relevance of balance-of-plant components is clearly not "new" a nd has not been raised for the first time in rebuttal testimony. In sum, Entergy's request for the exclusion of certain testimony, as well as Exhibit RIV000139, as listed in Entergy's "Exclusion Char t," should be denied. Notably, Entergy's "Exclusion Chart" proposes that page 12, line 5 through page 15, line 21, be excluded because it allegedly argues that "the scope of fatigue an alyses should be expande d beyond CLB locations." Entergy's MIL at Attachment 1, page 1. Enterg y also seeks the exclusion of seven exhibits (RIV000130, RIV000132, RIV000133, RIV000135-RIV000138) th at are cited to in the objected to testimony.

Id. at Attachment 1, page 2. However, these references are inconsistent with Entergy's arguments. In partic ular, Entergy fails to explain or justify why Dr. Hopenfeld's testimony on pages 12 through 14, line 13, which discusses Dr. Hopenfeld's opinions with respect to screening a nd assessing components with existing CUFs, should be excluded. Indeed, 21Entergy's motion is solely focused on Dr. Hopenfeld's testimony related to components without existing CUFs.

In addition, Entergy seeks the exclusion of seven Riverkeeper exhi bits that support Dr. Hopenfeld's testimony related to the relevance of FAC and component wall thickness. To begin with, Dr. Hopenfeld cited to and explained these exhibits in the c ontext of assessing and screening components that have existing CUFs. Yet, Entergy's motion only makes allegations with respect to Dr. Hopenfeld's arguments about components without CUFs, and, what's more, offers no arguments related to Dr. Hopenfeld's discussion of the implications of FAC and wall thinning on metal fatigue assessments. Moreover, during consultations before the motion was filed, counsel for Entergy did not indicate that Entergy would request th e exclusion of these seven exhibits. Thus, the relief Entergy requests, i.e., that the exclusion of testimony and exhibits related to the process to be applied to screen compon ents that do have existing CUFs and the consideration of FAC, is unjustified. The ASLB shou ld, therefore, deny Entergy's request to exclude Riverkeeper E xhibits RIV000130, RIV000132, RIV000133, RIV000135-RIV000138. Exclusion is particularly improper si nce the ASLB is well suited to afford the weight it deems necessary to such exhibits.

4 4 See Amergen Energy Comp, LLC (Oyster Creek Nuclear Generating Station, Docket No. 50-0219-LR, ASLBP No. 06-844-01-LR, 2007 NRC LEXIS 120, *1 (Sept. 12, 2007) (explaining how licensing board chose to "refrain from actually expunging [any] irrelevant material from the record [r]ather, to the extent we conclude that material is irrelevant or otherwise inadmissible, we will accord it no weight"); Amergen Energy Comp., LLC, (License Renewal for Oyster Creek Nuclear Generating Station), Docket No. 50-0219-LR, ASLBP No. 06-844-01-LR, Memorandum and Order (Ruling on Motions in Limine and Motion for Clarification), August 9, 2007, at 2, ADAMS Accession No. ML072210832; Nuclear Innovation North America, LLC, (South Texas Project Units 3 and 4), Docket Nos. 52-12-COL and 52-13-COL, ASLBP No. 09-885-08-COL-BD01, Order (Ruling on Motions in Limine), July 14, 2011, at 3, ADAMS Accession No. ML11195A093.

22 POINT III ENTERGY'S ATTEMPT TO DELETE PORTIONS OF INTERVENORS' STATEMENT OF POSITION IS MISPLACED AND SHOULD BE REJECTED Entergy's Motion Ignores Previo us Rulings by this Board That Statements of Position Are Not Subject to Admissibility Standards This Board has already made clear on vari ous occasions that "r egarding - challenge[s] to - Initial Statement[s] of Position, this document is not evidence, but rather consists merely of attorney arguments. Any motion to strike "testimony" in this document is inappropriate."

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting in Part and Denying in Part Applicant's Motions in Limine) (Mar. 6, 2012)("Board Order") at 14; see also id. at 19 ("Statements of positions are not evidence. Thus, the admissibility standards of Section 2.337(a) do not apply and statements of positions are not subject to evidentiary challe nge.") While Entergy acknowle dges such rulings by the Board (Entergy MIL at 5 n. 13 citing AS LB' s March 6 Order), Entergy once again asks the Board to remove portions of an intervenor's Statement of Position. This Board's previous rulings that parties are permitted to present legal and factual arguments in their Statements of Position constitute the "law of the case" in this proceeding.

See Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), 59 N.R.C. 388, 2004 NR C LEXIS 133 at

  • 3 (2004). Accordingly, Entergy's attempt to expunge portions of Intervenors' Rebuttal SOP should be summarily rejected. Entergy repeated efforts over the past year to limit Intervenor SOPs under the label of the in limine procedure reflects an attempt to as obtain an additional reply opportunity to the State and Riverkeeper SOPs and Reply SOPs - something which is unauthorized under the Board's scheduling order.

23Arguments in Intervenors' Revised Statement Respond to, and are the Outgrowth of, Arguments Presented by

Movants in their August 2012 Submissions Entergy's final argument in support of its MIL asserts:

the Board should strike the portions of Intervenors' Revised SOP that request a legal interpretation of the term "no signi ficant hazards consid eration," as that phrase is used in 10 C.F.R. §§ 50.91(a) and 50.92, which are longstanding regulations governing the license amendmen t process for operating reactors. Any interpretation of these regulat ions is irrelevant to the question of the adequacy of Entergy's LRA under Part 54. Intervenors' argument effectively requests an advisory opinion from the Board on legal issues that are outside the Board's jurisdiction and immaterial to the resolution of any contested issue. This claim is also an entirely new argument and outside the scope of the admitted contention.

Entergy MIL at 10. The Board should reject these arguments because they misperceive the issue presented by Contention NYS38/RK-TC-5 and seek to shield from Board review an essential factor that Entergy is obligated to address if it is to meet its burden of proof. Entergy must demonstrate that if its aging management programs "have been or will be" implemented and that they will provide "reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's

regulations." 10 C.F.R. § 54.29(a).

NYS-38/RK-TC-5 is based on Entergy's failure to demonstrate that it has, or will, meet the requirements of 10 C.F.R. § 54.29. The esse nce of NYS 38/RK-TC-5 is captured in the Commission's own words: "[w]e do not simply take the applicant at its word".

Entergy Vt.

Yankee, L.L.C. (Vermont Yankee Nuclear Power Statio n), CLI-10-17, 72 N.R.C. 1, 37 (2010). Entergy has, on several occasions, given its word that the effects of aging will be adequately managed and that the suggestion th at Entergy will seek to relax its stewardship of the Indian Point power reactors in the future is simply wrong..

See generally Testimony of Entergy 24Witnesses Nelson F. Azevedo, Robert J. Dolansky, Alan B. Cox, Jack R. Strosnider, Robert E.

Nickell, and Mark A. Gray Regarding Contention NYS-38/RK-TC-5 (Safety Commitments) dated August 20, 2012 at 25, 27 (ENT000521).

Contention NYS-38/RK-TC-5 seeks assurances that Entergy means what Entergy says by insisting that Entergy provide the details of AMPs it plans to develop in the future with sufficient specificity that Entergy can demonstrate it "will" adequately manage aging and by insisting that Entergy demonstrate it has not left itself the ability, w ithout prior Board or public intervention, to "relax" the commitments upon which it asks this Board to rely in deciding whether it has met its obligations under 10 C.F.R. § 54.29(a).

In this Motion In Limine, Entergy seeks to avoid addressing the most widely used mechanism for it to "relax" its commitments, the license amendment procedure, and the way in which that amendment mechanism will operate should Entergy choose to use it. Entergy insists that while the Board is entitled to judge whether Entergy has meet its obligation to demonstrate that the effects of aging will be adequately managed, it is prohibited from evaluating the question of whether, assuming Entergy establishes such a program, Entergy will remain committed to the full implementation through the 20-year period of extended op eration authorized by the requested operating license at the center of this Atomic Ener gy Act § 189 proceeding. That question, Entergy asserts, is beyond the scope of a license renewal proceeding and beyond the scope of NYS-38/RK-TC-5. Entergy MIL at 10-

12. Yet Entergy also acknowledges that "the scope of safety issues under consideration [in a license renewal proceeding] is limited to identifying those actions necessary to maintain the current licensing basis ('CLB') during the period of extended operation." Entergy MIL at 1-2 (emphasis added). How can the Board make that determination if Entergy is free to "relax" the commitments it has made without providing 25 an opportunity for the parties and the Board to evaluate the proposed relaxation and determine whether it still meets the standards imposed by 10 C.F.R. § 54.29(a)?

Although Entergy will assert, as it has in other contexts, that the matter of what happens after the license is granted is a matter that is outside the scope of the hearing itself, that argument must be rejected. 10 C.F.R. § 54.29(a) requires the Board to determine that there "is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB."

Id. (emphasis added). Thus, Entergy must not only prove that what it commits to do today is adequate, but that what it commits to do "will continue to be" adequate in the future. While Entergy disagrees with this analysis, that issue is a matter for resolution by the Board, not a matter that should be excluded from Board consideration.

In addition, there is no basis for Entergy's as sertion that a Board determination regarding the operation of the "no significant hazards consideration" is beyond the scope of the issues raised in this Contention.

Entergy acknowledges that NYS-38/RK-TC-5 includes the argument that "the details of Entergy's AMPs must be in corporated as license c onditions into the Indian Point renewed operating license, such that no aspect of the AMPs can be changed in the future without an opportunity for a hearing on any proposed license amendment." Entergy MIL at 10 (footnote omitted). The "no significant hazards consideration" finding in 10 C.F.R. § 50.91(a)(4) is an integral part of the amendment hearing process. Resolution of how it will function should Entergy seek to "relax" one of the provisions of an AMP, upon which the Board relies in finding that Entergy has met its burden of proof under 10 C.F.R. § 54.29(a), is a necessary component of the arguments raised in NYS-38/RK-TC-5, particularly in light of Entergy's assertion that it will not "relax" its AMP commitments.

Entergy's argument is really about hearing ri ghts and whether it can freely change license 26 conditions without first affording an opportunity for a public hearing. See Entergy MIL at 11. Entergy's wish to resolve issues with NRC Staf f - without allowing public participation, without allowing a hearing, and without a llowing Board review - is a recurring theme in this proceeding and an issue which is most starkly presente d by NYS-38/RK-TC-5. But it is also part of Contention NYS-5 and NYS-6&7,. Intervenors will not speculate here on why Entergy is so concerned with having public participation and an independent board oversight of its license amendments.

5 However, NRC regulations make abundan tly clear that no license renewal can be approved without first providing for an opportunity for a public hearing. 10 C.F.R. § 54.27. Entergy has sought to exclude from the hearing consideration of numerous issues that New York and Riverkeeper argue must be addressed prior to a final decision on the license renewal application. To the extent New York and Riverkeeper arguments are ac cepted by the Board, the Board will have necessarily determined that those issues need to be resolved in a hearing and before final action is taken. If, however, modifications to the details of an AMP that a Board decision has concluded must be included in the FSAR, the Technical Spec ifications and/or the license can be made without a prior hearing, then the hearing ri ght granted by 10 C.F.R. § 54.27 will be meaningless. Following issuance of the licensing decision, NRC Staff and Entergy, both of which insist that the AMP details that New York and Riverkeeper believe must precede license renewal are unnecessary, will be free to modify those conditions without first holding a hearing.

The issue of whether the hearing must pr ecede or follow the requested action is of paramount importance. The right to a hearing prior to NRC action is guaranteed by the Atomic

5 Entergy asserts that it will not change license conditions if the result would be to relax plant safety. If Entergy is confident of its position, it can avoid a hearing by meeting with the interested parties and making its case to them. If Entergy is confident it is maintaining or enhancing plant safety, it should not assume it cannot demonstrate its point to the parties who might otherwise seek a hearing.

27Energy Act for any operating license amendment unless it involves a "no significant hazards consideration". 42 U.S.C. §2239. In Union of Concerned Scientists

v. United States Nuclear Regulatory Com., 735 F.2d 1437, 1442 (D.C. Cir. 1984) the Court held in rejecting arguments similar to those advanced by Entergy:

We address first the positi on of counsel for Intervenor, Arkansas Power & Light Company (Utility) - that evaluation of emergency preparedness exercises is part

of the NRC's ongoing monitoring function of operating power plants rather than part of its initial licensing responsibilities. The Utility argues that the monitoring function encompasses "licensing requirements" that are evaluated in a staff inspection prior to issuance (but after au thorization) of a license. Brief for Intervenor-Utility at 32. That argument is flawed, however, because the Commission itself says that it relies on its assessment of emergency exercises in deciding whether to issue a license. Clearly, then, those exercises cannot be viewed as falling outside of the licensing proceeding.

Id. (footnotes omitted). Thus, issues that are relied upon to make the initial decision in issuing a license, are necessarily issues that cannot be resolved w ithout first holding the statutorily required hearing for a license amendment. Hold ing the required heari ng, but then allowing the conditions imposed as a result of the hearing to be changed without first providing the opportunity for a new hearing, would make a mockery of the hearing-before-action requirements. However, Entergy asserts that even if this i ssue is within the scope of the contention it is not within the scope of the h earing and it would inappropriate ly involve the Board in an "advisory opinion" for which it has no authority.

Entergy MIL at 10. Wh at Entergy ignores is the fact that in making a finding on the issue of whether plant operations "will continue to be conducted in accordance with the CLB" the Board must make a finding about what will happen in the future. One of the future events that could arise - and almost certainly will arise given the CUF experience at Entergy's VY facility, the numerous "relief reque sts" filed by reactor operators with the NRC's document control desk each year, or and , is Entergy seeks to amend one of the commitments it has made and that th e Board has included in the FSAR, the Technical 28Specifications and/or the license. If the amendment seeks to change something that was relied upon by the Board in deciding that plant operations "will continue to be conducted in accordance with the CLB" then it must necessarily involve a significant hazard consideration because (1) it was important enough to a critical safety finding that the Board was asked to, and did, rely upon it and (2) its adequacy was addressed by the Board as a precondition to issuance of the license. If Entergy and NRC Staff are unsuccessful in their efforts to deprive the Board of the jurisdiction to address safety issues prior to a license renewal - essentially if they are unable to prevail in their arguments against NYS-38/RK-TC and are compelled to disclose the detailed AMPs prior to license renewal, the Board will necessarily have found that such details are essential to a critical safety finding. If, as Entergy argues, Entergy and NRC Staff can change those details without first providing for an opportunity for a public hearing, Entergy will have essentially eviscerated the Board's decision by making changes to those details immune from prior Board approval. This concern is not merely a worst case speculation, as has been demonstrated in the case of Vermont Yankee where Entergy not only made a change to a commitment, upon which the Board and parties we re asked to rely, before there was an opportunity for a hearing, but did so without any prior notice to NRC. See State of New York and Riverkeeper, Inc. Revised Statement of Position Joint Contention NYS-38/RK-TC-5 (Nov.

9, 2012) at 14-17 (NYS000451).

Finally, Entergy argues that this Board should not issue an opinion that includes its analysis of the meaning of the "no significant hazards consideration" la nguage in 10 C.F.R. § 50.91(a)(4) because intervenors are prohibited from challenging any finding made on that issue by NRC Staff. Entergy MIL at 11-12. However, that argument supports the position urged here by New York and Riverkeeper. Since a subsequent determination by NRC Staff on the issue of a 29"no significant hazards considerat ion" is incapable of being chal lenged, it is only in the hearing in which the license condition is imposed that a party can protect its ri ght to have a hearing before that license condition is changed. Si nce NRC Staff already opposes the view that the additional conditions which NYS-38/RK-TC-5 seeks to impose are essential for the required safety findings, it should come as no surprise that NRC Staff will almost certainly find that modifications to those conditions involve "no significant hazards considerations". However, for NRC Staff to reach that conclusion it would have to "overrule" the Board's contrary finding that these are conditions which must be met in order to assure that plant operations "will continue to be conducted in accordance with the CLB." NRC Staff does not have the authority to do that and, if it disagrees with the Board, its sole remedy, like that of any other pa rty, is to seek review by the Commission. 10 C.F.R. § 2.341; see also 10 C.F.R. § 2.341(e) making a Board decision immediately effective absent the grant of a stay.

Thus, the Board not only has the authority to interpret the meaning of regulat ions as part of its duties (see 10 C.F.R. §§ 2.319(o)-(r)) but also to resolve issues which will be binding on the parties in the future.

30 CONCLUSION For the above reasons, Intervenors respectfully request that the Atomic Safety and Licensing Board deny Entergy and NRC Staff's motions in limine in their entirety.

Respectfully submitted, Signed (electronically) by Signed (electronically) by John J. Sipos Janice Dean Kathryn Liberatore Assistant Attorneys General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251 Deborah Brancato, Esq.

Phillip Musegaas, Esq.

Riverkeeper, Inc.

20 Secor Road Ossining, New York 10562 (914) 478-4501 January 17, 2013

10 C.F.R. § 2.323 Certification In accordance with the Board's Scheduling Order of July 1, 2010 (at 8-9) and 10 C.F.R. § 2.323(b), the undersigned counsel he reby certifies that counsel fo r Riverkeeper, Inc. and the State of New York have, respectively, participat ed in discussions with the parties in this proceeding including Entergy Nuclear Operations, Inc. ("Entergy") a nd NRC Staff concerning Entergy's Motion To Strike Por tions Of Intervenors' Revised Statement Of Position And Motion In Limine To Exclude Portions Of The Pre-Filed Rebuttal Testimony And Exhibits For Contention NYS-38/RK-TC-5 and NRC Staff's Motion In Limine To Exclude Portions Of The Prefiled Rebuttal Testimony Filed By Riverk eeper Concerning Contention NYS-38/RK-TC-5, both filed on January 7, 2013 in this proceeding, and has made a sincere effort to make themselves available to listen and respond to Ente rgy and NRC Staff, and to resolve the factual and legal issues raised in the motions. Riverkeeper and the State of New York's efforts to resolve the issues have been unsuccessful, with the excepti on of a issue concerning a Nucleonics Week article, which was resolved.

Signed (electronically) by Signed (electronically) by Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road Ossining, New York 10562 (914) 478-4501 John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251

January 17, 2013

Attachment 1

State of New York and Rivekeeper, Inc.

Answer to Entergy and NRC Staff January 7, 2013 Motions In Limine to Strike Portions of Intervenors' Pre-Filed Submissions in Support of Contention NYS-38/RK-TC-5

John J. Sipos From: Kuyler, Raphael Philip [r kuyler@morganlewis.com]

Sent: Thursday, January 03, 2013 4:00 PMTo: John J. Sipos; Janice Dean; phillip

@riverkeeper.org; Deborah Brancato Cc: Roth(OGC), David; Harris, Brian; Turk, Sherwin; rwebster@publicjustice.net; 'karla@clearwater.org'; Sutton, Kathryn M.; Bessette, Paul M.

Subject:

IPEC License Renewal - Request for Consultation on Motion in Limine on NYS-38/RK-TC-5Page 1of 1 1/17/2013 John,Janice,Phillip,andDeborah,Goodafternoon.EntergyisconsideringfilingamotioninlimineconcerningspecificportionsofNewYorkandRiverkeeper'srebuttalfilingsonNYS38/RK TC 5(thesafetycommitmentscontention).Pleaseletmeknowyouravailabilitytomorrowmorningorearlyafternoontoconsultonthismotion.Ifyouarenotavailable,thenpleaseadviseastowhatothertimesmaywork.Thanksverymuchforyourcooperation.

Regards,Ray P. KuylerMorgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW l Washington, DC 20004 Direct: 202.739.5146 l Main: 202.739.3000 l Fax: 202.739.3001 rkuyler@morganlewis.com l www.morganlewis.comAssistant: Joyce A. Glover l 202.739.5949 l jglover@morganlewis.com DISCLAIMER This e-mail message is inte nded only for the personal use of the recipient(s) named abov

e. This message may be an attorney-client communication and as such privileged and confidential and/or it may in clude attorney work product.

If you are not an intended r ecipient, you may not review, copy or distribute this message. If you have received this communication in error, plea se notify us immediately by e-mail and delete the ori ginal messa g e.

Retrieved from "https://kanterella.com/w/index.php?title=ML13017A562&oldid=1544726"