ML083590028
| ML083590028 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 12/23/2008 |
| From: | Baty M, Jessica Bielecki, Subin L NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 06-849-03-LR, 50-271-LR, LBP-08-25, RAS m-382 | |
| Download: ML083590028 (7) | |
Text
December 23, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the Matter of )
) ENTERGY NUCLEAR VERMONT YANKEE, ) L.L.C., and ENTERGY NUCLEAR ) Docket No. 50-271-LR OPERATIONS, INC. ) ) (Vermont Yankee Nuclear Power Station) )
NRC STAFF'S REPLY TO VERMONT DEPARTMENT OF PUBLIC SERVICE'S ANSWER TO NRC STAFF'S PETITION FOR REVIEW OF LBP-08-25 INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b)(3), the staff of the U.S. Nuclear Regulatory Commission ("Staff") hereby responds to "Vermont Department of Public Service ["DPS"] Opposition to Petition for Review of Partial Initial Decision LBP-08-25" 1 (Dec. 19, 2008) ("Answer"). DPS' Answer asserts that Commission review of the Partial Initial Decision (Ruling on Contentions 2A, 2B, 3 and 4), LBP-08-25, 68 NRC ___ (Nov. 24, 2008) (slip op.) ("Decision" or "LBP-08-25") is not warranted because the Decision is correct. The Staff disagrees.
DISCUSSION In its Answer, DPS argues that Commission review of LBP-08-25 is not warranted.
2 DPS asserts that the Board's view of the "concepts" of time-limited aging analyses ("TLAA"), cumulative usage factors ("CUF") and environmentally adjusted cumulative usage factors 1 NRC Staff's Petition for Review of the Licensing Board's Partial Initial Decision, LBP-08-25 (Dec. 9, 2008) ("Petition").
2 DPS incorrectly asserts that the Staff is the only party to file a petition for review of LBP-08-25.
See Answer at 1. The State of Massachusetts filed, "Commonwealth of Massachusetts Petition for Review of LBP-08-25 and Request for Consolidated Ruling" (Dec. 2, 2008). Also, NEC has challenged the Decision, filing: [NEC] Motion for Reconsideration of the Licensing Board's Partial Initial Decision (Dec. 17, 2008), and [NEC] Motion to Extend Time to File Petition for Review (Dec. 8, 2008).
("CUFens") are "supported by the Staff's own writings and actions."
See Answer at 2. DPS also asserts that the Staff is now engaged in a "semantic squabble" in an attempt to "recant its own admissions of law and fact." Answer at 2, 6. This is incorrect for four reasons. First, the Staff is not attempting to recant its admissions with regard to the proper interpretation and application of 10 C.F.R. § 54.21(c)(1). The Staff's Petition is consistent with the statements and positions articulated in its Initial Statement of Position and July Briefs.
3 Second, as the Staff noted in its Petition: "regardless of the parties' characterizations of what the CUFen analyses are in the course of this litigation, the Board must focus on the proper interpretation of the regulations." Petition at 18 n.38. Third, the Staff did not change its position on the proper interpretation of 10 C.F.R. § 54.21(c)(1) during the course of review.
See Petition at 5 n.16, 16 n.37. Finally, DPS' assertion that the Staff is engaged in a "semantic squabble" ignores the Board's erroneous factual findings with respect to the contents of Entergy's license renewal application ("LRA"). Specifically, the Board failed to acknowledge that Entergy's LRA, as amended, includes an aging management program ("AMP"), which is consistent with GALL.
See Petition at 5, 19, 23. The CUFen calculations Entergy preformed are part of the AMP and do not eliminate the need for an AMP.
Id. at 14 n.35. Thus, DPS' arguments in opposition to Commission review are unpersuasive. DPS also argues that Commission review is not warranted because LBP-08-25 is consistent with the Commission's Oyster Creek 4 decision. Answer at 2-3.
Oyster Creek, 3 See NRC Staff Initial Statement of Position on NEC Contentions 2A, 2B, 3 and 4 (May 13, 2008) ("Staff Initial Position"); NRC Staff's Brief in Response to Board Order (July 9, 2008) ("Staff July 9 Brief"); NRC Staff's Reply Brief (July 15, 2008). The Staff's July Briefs were in response to the Board Order (Regarding the Briefing of Certain Legal Issues) (June 27, 2008) (unpublished).
4 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) et al., CLI-08-28, 68 NRC ___, slip op. (Nov. 6, 2008) ("Oyster Creek").
however, does not stand for the proposition that CUFen calculations must be completed prior to issuance of a renewed license. DPS fails to note the Commission's clear statement: "In addition to the regulatory requirement that the cumulative usage factor not exceed 1.0, the Staff guidance suggests that the cumulative usage factor be adjusted to account for the fact that the fatigue life of components in an operational environment . . . may be less than predicted by the ASME Code . . . ." Oyster Creek 68 NRC at __, slip op. at 8 (emphasis added).
5 As the Staff has noted, neither the Commission's regulations nor legal precedent require CUFen analyses.
See, e.g. Petition at 13.
6 Thus, DPS's assertion that LBP-08-25 is consistent with Oyster Creek is incorrect. Rather, LBP-08-25 is without precedent and thus Commission review is warranted.
7 In further opposition to Commission review, DPS incorrectly asserts that the Staff took out of context the Commission's statement: "if an application for license renewal is submitted, and if the applicant commits to follow the guidance in GALL, that will be sufficient evidence to establish reasonable assurance with the licensing requirements."
See Answer at 5. The Commission clearly stated that a "license renewal applicant's use of an aging management program identified in GALL constitutes reasonable assurance that it will manage the targeted 5 DPS also quotes a passage from the SRP to support is position. As the Staff previously explained, the SRP does not require CUFen calculations for license renewal.
See Petition at 13-14, 21-23. See also Staff Exh. 19 (NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants at 4.3-2 to 4.3-3 (Sept. 2005)).
6 DPS also states that the Commission has acknowledged that a "CUFen calculation is part of the analysis required by 10 C.F.R. § 54.21(c)(1)(ii)." Answer at 3. This is irrelevant because Entergy has selected the 10 C.F.R. § 54.21(c)(1)(iii) option.
See Petition at 5.
7 See Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-06-7, 63 NRC 165 (2006).
aging effect during the renewal period."
8 LBP-08-25 calls into question this Commission policy and precedent by completely dismissing Entergy's reliance on a GALL-consistent AMP.
9 By dismissing Entergy's reliance on an AMP, the Decision eliminates the 10 C.F.R. § 54.21(c)(1)(iii) option. See Petition at 18. Thus, contrary to DPS's assertion, LBP-08-25 questions Commission policy and precedent and Commission review of LBP-08-25 is warranted.
Next, DPS argues that LBP-08-25 is consistent with case law requiring that all "key safety issues" be resolved in a hearing. Answer at 7. DPS asserts that "metal fatigue of the reactor pressure boundary" is a key issue that, if challenged, must be resolved by the Board at hearing.
Id. at 10. This is incorrect. As explained in the Petition at 21-23, neither the Commission's regulations and policies nor the ASME code require calculation of CUFens. Instead, Staff guidance recommends that license renewal applicants consider CUFens when developing AMPs. In addition, the Commission's regulations allow a finding of reasonable assurance to be based on a licensee's commitments to perform future actions.
See Staff July 9 Brief at 7-8; Entergy July 9 Brief at 7. Further, DPS questions whether the Staff has standing to file a petition. DPS Answer at 11-12. 10 Section 2.341(b) states that a party may file a petition for review and does not 8 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station) et al., CLI-08-23, 68 NRC ___, slip op. (Oct. 6, 2008).
9 Staff guidance documents designed to assist with compliance with Commission regulations are entitled to "special weight." Private Fuel Storage, LLC. (Independent Spent Fuel Storage Installation), CLI-01-22, 54 NRC 255, 264 (2001). GALL, in particular, is entitled to special weight because it was developed at the direction of the Commission using procedures similar to those for rulemaking.
See Entergy's Answer to Licensing Board Questions (July 9, 2008) at 12 ("Entergy July 9 Brief"). Furthermore, the Commission-recognized purpose of GALL is to provide "predictability and efficiency in the license renewal process."
See id. LBP-08-25 undermines the purposes the Commission intended GALL to serve.
10 DPS asserts that the Petition is premature because the CUFen calculations required by LBP-08-05 will likely be completed before Commission disposition of the Petition. Answer at 12. These (continued. . .)
require a showing of injury. The Staff is a party.
11 DPS provides no authority to support its assertion that a showing of injury is required to file a petition for review pursuant to 10 C.F.R
§ 2.341(b). The case cited by DPS addresses party standing to intervene in a license transfer proceeding, not to file a petition for Commission review.
12 Finally, the fact that participants in other license renewal proceedings have submitted a motion to file an amicus brief clearly indicates the importance of the issues raised in the Staff's Petition.13 Thus, Commission review is warranted. CONCLUSION For the reasons stated above, the Staff again submits that Commission review of LBP-08-25 is warranted.
Respectfully submitted, /RA by Mary C. Baty/
Lloyd B. Subin Mary C. Baty Jessica A. Bielecki Counsel for NRC Staff
Dated at Rockville, Maryland this 23rd day of December, 2008
(. . .continued) calculations are, however, irrelevant to the Staff Petition's request for review of the clearly erroneous legal and factual findings in LBP-08-25.
11 DPS is only a "party" by virtue of its adoption of NEC Contentions 2, 3, and 4, but DPS never filed a motion to adopt NEC Contentions 2A and 2B.
See Notice of [DPS's] Intent to Adopt Contentions and Motion for Leave to Allowed to Do So (June 5, 2006) at "Certification of Counsel" ¶1.
12 See Answer at 11 (citing Entergy Nuclear Operating, Inc. and Entergy Nuclear Palisades, LLC (Palisades Nuclear Plant) et. al, CLI-08-19, 68 NRC ___ (Aug. 22, 2008)).
13 Motion for Leave to Submit Brief Amicus Curiae in Opposition to Staff's Petition for Review and In Support of Intervenors State of Vermont and the New England Coalition (Dec. 19, 2008).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
ENTERGY NUCLEAR VERMONT YANKEE, )
LLC and ENTERGY NUCLEAR ) Docket No. 50-271-LR OPERATIONS, INC. ) ) (Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S REPLY TO DEPARTMENT OF PUBLIC SERVICE'S ANSWER TO NRC STAFF'S PETITION FOR REVIEW OF LBP-08-25" in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commission's internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 23rd day of December, 2008.
Alex S. Karlin, Chair Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
E-mail: ask2@nrc.gov Office of the Secretary Attn: Rulemakings and Adjudications Staff
Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov William H. Reed*
Administrative Judge Atomic Safety and Licensing Board
1819 Edgewood Lane
Charlottesville, VA 22902
E-mail: whrcville@embarqmail.com Zachary Kahn, Law Clerk Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001
E-mail: zachary.kahn@nrc.gov Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: rew@nrc.gov Lauren Bregman, Law Clerk Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
Mail Stop: T-3 F23 Washington, D.C. 20555-0001 E-mail: lauren.bregman@nrc.gov Office of Commission Appellate
Adjudication
Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAmail@nrc.gov Peter C.L. Roth, Esq* Office of the Attorney General
33 Capitol Street
Concord, NH 3301 E-mail: peter.roth@doj.nh.gov
Raymond Shadis*
37 Shadis Road PO Box 98
Edgecomb, ME 04556
E-mail: shadis@prexar.com
Anthony Z. Roisman, Esq.* National Legal Scholars Law Firm
84 East Thetford Rd.
Lyme, NH 03768 E-mail: aroisman@nationallegalscholars.com David R. Lewis, Esq.*
Matias F. Travieso-Diaz, Esq Elina Teplinsky, Esq
Blake J. Nelson, Esq Pillsbury Winthrop Shaw Pittman LLP 2300 N Street, NW Washington, DC 20037-1128 E-mail: david.lewis@pillsburylaw.com matias.travieso-diaz@pillsburylaw.com elina.teplinsky@pillsburylaw.com
b lake.nelson@pillsburylaw.com Sarah Hofmann, Esq.* Director of Public Advocacy Department of Public Service 112 State Street - Drawer 20 Montpelier, VT 05620-2601 E-mail: sarah.hofmann@state.vt.us Matthew Brock* Assistant Attorney General, Chief Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us
_________/RA/_________________
Mary C. Baty Counsel for NRC Staff