ML12135A714
| ML12135A714 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/14/2012 |
| From: | Kuyler R Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 22441, 50-247-LR, 50-286-LR, ASBLP 07-858-03-LR-BD01 | |
| Download: ML12135A714 (27) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) May 14, 2012 ENTERGYS ANSWER OPPOSING RIVERKEEPER, INC. MOTION IN LIMINE TO EXCLUDE PORTIONS OF PRE-FILED TESTIMONY AND STATEMENT OF POSITION REGARDING RK-TC-2 (FLOW-ACCELERATED CORROSION)
I. INTRODUCTION In accordance with 10 C.F.R. §§ 2.1204, 2.319, 2.323, 2.337, the Atomic Safety and Licensing Boards (Boards) Scheduling Order of July 1, 2010 (Scheduling Order), and subsequent Order dated April 18, 2012,1 Entergy Nuclear Operations, Inc. (Entergy) hereby files this timely Answer opposing Riverkeeper, Inc. Motion in Limine to Exclude Portions of Pre-Filed Testimony and Statement of Position Regarding RK-TC-2 (Flow-Accelerated Corrosion) (Motion in Limine), filed on April 30, 2012.
Riverkeeper moves to exclude portions of Entergys expert witness testimony that it claims were based on data that Entergy has not reviewed or produced.2 First, as a threshold matter, the Motion in Limine should be denied because it is untimely and followed inadequate consultation with the opposing parties. Second, its claims of lack of disclosure are simply incorrectEntergys testimony is based on documents that Entergy disclosed, that Riverkeepers witness reviewed in the preparation of his pre-filed direct testimony, and that were not the subject 1
Licensing Board Order (Memorializing Items Discussed at April 16, 2012 Pre-Hearing Conference) at 1 (Apr.
18, 2012) (unpublished) (April 18 Order).
2 See Motion in Limine at 4.
of the dispute leading to Riverkeepers 2010 Motion to Compel.3 The Motion to Compel involved a dispute over certain older CHECWORKS-related documents that the Board found would be unduly burdensome for Entergy to produce to Riverkeepernot the documents that Entergys testimony relies upon. In this respect, the Motion in Limine mischaracterizes the parties filings regarding Riverkeepers 2010 Motion to Compel, the Boards Ruling on the Motion to Compel,4 and Entergys testimony.5 II. LEGAL STANDARDS U.S. Nuclear Regulatory Commission (NRC or Commission) regulations governing the admissibility of evidence provide that [o]nly relevant, material, and reliable evidence . . .
will be admitted. Immaterial and irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.6 Thus, pursuant to 10 C.F.R. § 2.319(d), the Board may strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative, and under Section 2.319(e) the Board may restrict evidence or arguments for the same reasons.7 3
Riverkeeper, Inc. Motion to Compel Disclosure of Documents Relevant to Riverkeeper Contention TC-2 (Aug.
3, 2010) (Motion to Compel), available at ADAMS Accession No. ML102250183.
4 Licensing Board Order (Ruling on Riverkeepers Motion to Compel) (Nov. 4, 2010) (unpublished) (Ruling on the Motion to Compel).
5 Testimony of Entergy Witnesses Ian D. Mew, Alan B. Cox, Nelson F. Azevedo, Jeffrey S. Horowitz, and Robert M. Aleksick Regarding Contention RK-TC-2 (Flow-Accelerated Corrosion) (Mar. 28, 2012)
(Entergys Testimony) (ENT000029).
6 10 C.F.R. § 2.337(a).
7 See also 10 C.F.R. § 2.333(b). Riverkeeper recently argued that motions in limine are generally inappropriate because no jury is involved in this proceeding. See Riverkeeper, Inc. Opposition to Entergys Motion in Limine to Exclude Portions of Pre-filed Testimony, Expert Report, Exhibits, and Statement of Position for Contention Riverkeeper TC-2 (Flow-Accelerated Corrosion) at 2-3 (Feb. 17, 2012) (Riverkeeper Opposition), available at ADAMS Accession No. ML12048B483. Riverkeeper has apparently changed its position on this issue.
III. RIVERKEEPERS MOTION SHOULD BE DENIED FOR PROCEDURAL DEFICIENCIES Riverkeepers Motion in Limine should be denied for two significant procedural deficiencies. First, it is untimely. Entergy filed its flow-accelerated corrosion (FAC) contention Statement of Position, Testimony, and exhibits on March 28, 2012.8 Under the Scheduling Order, motions in limine and motions to strike are due no later than thirty days after service of those documents.9 Accordingly, Riverkeepers motion was due thirty days after service on March 28, i.e., by April 27, 2012. The Motion in Limine contains no explanation for its lack of timeliness.10 Because it was not filed and served until April 30, 2012, three days after its due date, the Motion in Limine is untimely and should be denied.
Second, the Motion in Limine should be denied for inadequate consultation. Riverkeeper initiated consultation on its motion by e-mail at 4:46 p.m. on Monday, April 30, 2012.11 Even if Riverkeeper were excused from its obligation to timely file its motion, Riverkeeper failed to allow for appropriate consultation before filing, contrary to the Boards prior direction in this proceeding. Specifically, the Board has previously:
voiced its displeasure with the minimal efforts of New York and Riverkeeper to comply with the consultation requirements of 10 C.F.R. § 2.323(b). The parties were reminded that this is not merely a notice requirement but there must be a reasonable attempt to resolve the issue. The Board put all the parties on notice that if a motion is to be filed in the future, the Board expects a real effort on the part of the parties to resolve the issues presented before the 8
See Certificates of Service dated March 28, 2012 (Attachment 1 to this Answer).
9 Scheduling Order at 14. The Boards April 18 Order modifies the Scheduling Order, stating that [i]f Intervenors file motions in limine on or before April 30, 2012, responses thereto will be deemed timely if filed on or before May 14, 2012. April 18 Order at 1. Thus, the April 18 Order does not disturb the thirty-day deadline set in the Scheduling Order for Riverkeepers motion in limine.
10 Riverkeepers Motion in Limine does not even cite the April 18 Order, and instead, cites only generally to the Scheduling Order, without any justification of its own timeliness.
11 E-mail from D. Brancato, Riverkeeper, to P. Bessette, Morgan Lewis, et al., Consultation, (Apr. 30, 2012)
(Brancato E-mail) (Attachment 2 to this Answer).
motion is filed, not just simply a notice at the last minute that the motion is going to be filed.12 Riverkeepers consultation efforts did not represent a real effort to resolve the issues presented, and constituted the type of last minute notice that the Board has previously cautioned against.13 IV. RIVERKEEPERS MOTION PROVIDES NO BASIS TO EXCLUDE ENTERGYS TESTIMONY A. The Testimony Riverkeeper Seeks to Exclude Is Based on Documents Disclosed to Riverkeeper and Reviewed By Its Expert Riverkeeper seeks to exclude portions of Entergys testimony in response to Question 129 as well as a related excerpt of Entergys Statement of Position appearing on pages 31 to 32.14 The fundamental basis for the Motion in Limine is the assertion that the disputed excerpts are based on data that Riverkeepers expert, Dr. Hopenfeld has not had the benefit of reviewing.15 In the testimony in question, however, Entergys witnesses rely solely on documents that Entergy produced to Riverkeeper and to which Dr. Hopenfeld cites in his Report.16 Thus, Riverkeepers premise is flatly mistaken, and the Motion in Limine should be denied.
Dr. Hopenfelds testimony seeks to distinguish the FAC program at IPEC from the program at Vermont Yankee, which was subject to a similar contention in that plants license renewal proceeding.17 In his Report, Dr. Hopenfeld claims that, even though IPEC has produced 12 Licensing Board Memorandum and Order (Summarizing Pre-Hearing Conference) at 3 (Feb. 4, 2009)
(unpublished) (citations and quotations omitted).
13 Riverkeeper cited limited resources as the basis for its last-minute consultation, but provided no further details. Brancato E-mail (Attachment 2). As the Commission repeatedly has expressed, however, resource constraints, such as those resulting from a partys voluntary decision to participate in various judicial or administrative proceedings, do not provide cause for delay. See, e.g., Tenn. Valley Auth. (Bellefonte Nuclear Plant Units 1 & 2), CLI-10-26, 72 NRC __, slip op. at 3 (Sept. 29, 2010) (citing Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981)).
14 See Motion in Limine at 5-6.
15 Id. at 4.
16 Report of Dr. Joram Hopenfeld in Support of Riverkeeper Contention RK-TC Flow Accelerated Corrosion (Dec. 21, 2011) (RIV000005) (Hopenfeld Report).
17 See id. at 19-20.
CHECWORKS-related documentation for IP2 going back to 2000 and IP3 going back to 2001, no lengthy record is available to determine the adequacy of the CHECWORKS model at Indian Point.18 Dr. Hopenfeld further implies that the CHECWORKS model is blind to data from earlier than 2000-01, stating that such earlier data has been lost.19 In response to this claim, Entergys witnesses explain that the CHECWORKS model at Indian Point incorporates data from inspections, and other data dating back decades.20 This testimony, which Riverkeeper now claims is based on undisclosed documents, is supported by three documents produced to Riverkeeper and cited in both Riverkeepers and Entergys testimony:
First, the CHECWORKS SFA Model Calculation for IP3, No. 0705.100-01, Rev. 2 (Aug.
2, 2011) (IP3 SFA Report 0705.100-01) (ENT000051) demonstrates that UT inspection data since outage 3R8 in April 1992 is included in the IP3 CHECWORKS model. As stated in Section 5.5 of IP3 SFA Report 0705.100-01, Appendix F of that report contains a listing of all UT inspection data that has been imported into the IP3 CHECWORKS model.21 Appendix F (UT Inspection Data), in turn, provides 144 pages of ultrasonic testing (UT) inspection data, dating to 3R8 (R08). This appendix shows thousands of UT test results, including locations, thicknesses, wear data, and whether or not the results of each specific measurement is incorporated into the line correction factor (LCF) calculation in the current IP3 CHECWORKS model.22 At the time of the Motion to Compel, Entergy had already produced the then most-recent version of this report, showing essentially the same facts.23 Second, the CHECWORKS SFA Model Calculation for IP2 [IPEC Unit 2], No.
0705.101-01, Rev. 2 (July 8, 2010) (IP2 SFA Report 0705.101-01) (ENT000050) provides the same information for IP2, dating back to 2R16 in 2006.24 Appendix F (UT Inspection Data) of that document provides 47 pages of UT inspection data, again 18 Id. at 20.
19 Id. at 22.
20 Entergys Testimony at A129 (ENT000029).
21 IP3 SFA Report 0705.100-01 at 21 (ENT000051).
22 See id., App. F.
23 See CHECWORKS SFA Model Calculation for IP3, No. 0705.100-01, Rev. 1 at 21 (Feb. 26, 2010)
(ENT000080) (disclosed to Riverkeeper on July 1, 2010); id., App. F (showing 75 pages of UT inspection data dating back to 3R8).
24 See IP2 SFA Report 0705.101-01 at 18 (All UT inspection data used for analysis since Refuel Outage 16 . . .
is listed in Appendix F.) (ENT000050).
showing thousands of data points.25 At the time of the Motion to Compel, Entergy had already produced the then most-recent version of this report, showing essentially the same facts.26 Third, the IP2 CHECWORKS SFA Model Calculation No. 050714b-01, Rev. 0 (July 5, 2005) ((IP2 SFA Report 050714b-01) (ENT000074) demonstrates that the CHECWORKS model for IP2 includes data that precedes the 2R16 outage. As stated in Section 3 of that document, The CHECWORKS model reflects plant design and operation through Refuel Outage 16. All historical records (i.e. inspections, replacements, water chemistry, power levels, etc.) through Refuel Outage 16 were included in this analysis.27 Entergy produced this document to Riverkeeper on March 3, 2009.
Entergy produced all three of these documents to Riverkeeper under the mandatory disclosure process, and, as shown in Table 1 of Dr. Hopenfelds Report, Dr. Hopenfeld reviewed all three of these documents during the preparation of his prefiled direct testimony.28 Thus, Entergys testimony in response to Question 129 does not rely upon any undisclosed documents.
Notably, Riverkeeper does not (and could not) seek to strike the underlying exhibits that establish the facts discussed in Entergys Testimony.29 As a result, the motion to exclude Entergys Testimony is baseless and should be denied.
25 See id., App. F.
26 CHECWORKS SFA Model Calculation for IP2, No. 0705.101-01, Rev. 1 at 18 (Feb. 26, 2010) (ENT000077)
(disclosed to Riverkeeper on July 1, 2010) (showing 28 pages of UT inspection data).
27 IP2 SFA Report 050714b-01, § 3 (ENT000074).
28 See Hopenfeld Report at 9 (citing IP2 SFA Report 050714b-01 (ENT000074); IP2 SFA Report 0705.101-01 (ENT000050)); id. at 12 (citing IP3 SFA Report 0705.100-01 (ENT000051).)
29 Riverkeeper also seeks to exclude the discussion of similar information in Entergys Statement of Position.
See Motion in Limine at 6. But, as the Board has ruled in this proceeding, statements of position are not evidence, so any motion to strike a statement of position is inappropriate. Licensing Board Order (Granting in Part and Denying in Part Applicants Motions in Limine) at 14 (Mar. 6, 2012) (unpublished) (Ruling on Motions in Limine); see also id. at 24. In this respect, Riverkeepers Motion in Limine is also inconsistent with its own prior arguments that statements of position are not evidence. See Riverkeeper Opposition at 18.
In any event, the sentences at issue in Entergys Statement of Position are based on the same disclosed information, so there is no basis to strike.
B. Riverkeepers Motion Mischaracterizes the 2010 Motion to Compel and the Boards Ruling Denying that Motion
- 1.
Background:
the Motion to Compel Riverkeepers Motion in Limine portrays Entergy as refusing to produce certain data and then relying on the withheld data to support its statements in response to Question 129 in Entergys Testimony and on pages 31-32 of its Statement of Position. A brief review of the record shows that this is nonsense. On August 3, 2010, Riverkeeper filed a Motion to Compel to compel Entergy to disclose certain documents purportedly relevant to RK-TC-2.30 The Motion to Compel repeatedly and exclusively describes the issues in dispute as Riverkeepers requests for certain documents, documentation, or reports, not data.31 Specifically, Riverkeeper sought the disclosure of CHECWORKS documentation for Indian Point Energy Center (IPEC), Unit 3 (IP3) prior to 2001.32 Riverkeeper filed the Motion to Compel following extensive correspondence between the parties regarding Riverkeepers requests for CHECWORKS-related documents from Entergy.33 The only references to data in the Motion 30 Motion to Compel at 1.
31 See, e.g., id. (Entergy has heretofore failed to disclose certain documentation . . . [S]uch documentation is relevant . . .); id. at 2 (Riverkeepers initial review of the documentation provided revealed, inter alia, a limited and incomplete disclosure of reports related to the use of the CHECWORKS computer code. In particular, Entergys disclosures had not included any CHECWORKS related documentation . . . .); id. at 3 (Riverkeeper inquired about the apparently incomplete disclosure, and requested any such documents . . . .
Entergy responded, objecting to Riverkeepers request for documents . . . . Entergys letter maintained that such documents were not relevant to RK-TC-2. . . . Riverkeeper explained its position regarding the relevance of any CHECWORKS related documentation, and reiterated its request for such documents . . . .); id. at 4 (Entergys failure to disclose all available documentation for Unit 3 predating the 2001 timeframe has resulted in an impasse . . . .); id. at 6 (Riverkeeper respectfully submits that the ASLB compel Entergy to disclose any and all documentation related to the implementation of the CHECWORKS computer code heretofore undisclosed . . . .) (emphasis added).
32 Id. at 4.
33 See, e.g., id., Attach. A, Letter from D. Brancato, Riverkeeper, to K. Sutton, Morgan Lewis, at 2 (Apr. 2, 2010)
(If such reports or documentation do exist, Riverkeeper hereby requests copies of such documents . . . .); id.,
Attach. C, Letter from D. Brancato, Riverkeeper, to K. Sutton, Morgan Lewis at 2 (June 25, 1010) (if any CHECWORKS reports (or documentation with equivalent information) heretofore not provided exist, such documents must be disclosed . . . . Riverkeeper hereby reiterates our requests for copies of such documents . . .
.); id., Attach. D, E-mail from D. Brancato, Riverkeeper, to P. Bessette, Morgan Lewis at 1 (July 8, 1010)
to Compel are in a paragraph describing what Riverkeeper intended to do with the information it expected to find in the documents it requested.34 Entergy opposed the Motion to Compel on the grounds that Riverkeepers requests for additional historical documents were vague, irrelevant, overbroad, beyond the scope of this litigation, and unduly burdensome. Entergy pointed to the voluminous documentation relevant to RK-TC-2 already producedamounting to thousands of pagesincluding a large production of CHECWORKS documents and data covering all outages since 2R16 in 2004 and 3R13 in 2005, along with many documents that pre-dated those outages.35 The Board agreed with Entergy and denied Riverkeepers Motion to Compel, because:
(1) data generated during seven post-power uprate outages at IPEC was already available; and (2) Riverkeeper did not demonstrate how the potential value of the additional information it sought would outweigh the burden and expense of producing it.36
- 2. Riverkeeper Mischaracterizes the Motion to Compel and the Boards Ruling Riverkeepers Motion in Limine erroneously interprets the Boards Ruling on the Motion to Compel, leading Riverkeeper to request relief that lacks foundation in that decision. In its ruling, the Board stated that [t]he record reflects that Entergy does not have ready access to the (Riverkeeper, again, . . . maintains that any and all CHECWORKS reports that have been generated related to Indian Point Units 2 and 3 are relevant and within the scope of our contention.) (emphasis added).
34 See Motion to Compel at 6 (Entergy justifies its use of CHECWORKS based upon the premise that the calibration of the code is continuously improving as more and more data becomes available. Notably, most of the data on flow accelerated corrosion at Indian Point was generated prior the uprates, and is, therefore, critical toward fully understanding the CHECWORKS model which Entergy proposes to rely upon for an additional 20 years.).
35 See Entergys Answer to Riverkeeper, Inc.s Motion to Compel Disclosure of Documents at 3-4 (Aug. 13, 2010), available at ADAMS Accession No. ML102300146.
36 See Ruling on the Motion to Compel at 4-5. Since the Ruling on the Motion to Compel, in working with its experts on its pre-filed written testimony, Entergy identified numerous historical CHECWORKS reports that predated the 2004 and 2005 IPEC stretch power uprates (SPUs), and disclosed those additional documents to Riverkeeper on March 28, 2012 for completeness. See Letter from P. Bessette, Morgan Lewis, to D. Brancato, Riverkeeper (Mar. 28, 2012) (Attachment 3 to this Answer).
data requested, and thus has not, and cannot rely on it to provide the track record for its AMP . . .
.37 While Riverkeepers requests for previously-undisclosed documents, documentation, and reports were the subject of the Motion to Compel,38 Riverkeeper now claims that the Boards ruling prohibits Entergy from accurately describing the historical information that is incorporated into the CHECWORKS modelinformation fully disclosed in documents produced to Riverkeeper.39 This is false. The thrust of the Boards ruling was that Entergy may not rely on documents it has not produced to Riverkeeper, and Entergy has not done so. The Boards ruling does not constrain Entergy from accurately describing the CHECWORKS model in its Testimony or its Statement of Position.40 Most unreasonably, Riverkeeper seeks to strike testimony that exclusively refers to IP2 data collected since 2006.41 This information has indisputably long been available to Riverkeeper. In that respect, the Motion in Limine is inconsistent and grossly overbroad in the relief requested.
Finally, Riverkeeper asks the Board to strike references in Entergys Testimony to the alleged fact that the CHECWORKS model at Indian Point incorporates historical data,42 but Riverkeeper does not seek to strike the exhibits that establish those facts. Thus, even if the 37 Ruling on the Motion to Compel at 5.
38 See Motion to Compel at 1. Because the Motion to Compel focused on Riverkeepers request for previously undisclosed documents, regardless of how one reads the Boards ruling, Entergys experts are permitted to rely upon documents that Entergy disclosed to Riverkeeper.
39 See Motion in Limine at 5 (objecting to [r]eferences to the alleged fact that the CHECWORKS model at Indian Point incorporates historical inspection data).
40 Now that Entergy has corrected Riverkeepers and Dr. Hopenfelds longstanding apparent misconceptions regarding the availability of CHECWORKS-related data, Riverkeeper still has the opportunity to submit rebuttal testimony on this topic.
41 See Motion in Limine at 6 (seeking to strike the following testimony: For IP2, the most recent SFA model reports list all inspections conducted since 2R16 in 2006. See IP2 SFA Report 0705.101-01, at 17 & App. F (ENT000050).).
42 Motion in Limine at 5.
Motion in Limine is granted, the actual historical UT data collected at IPEC would still be in the record. Similarly, the fact that the historical data are incorporated into the IPEC CHECWORKS models would also be in the record. Thus, Riverkeepers motion is not only baseless, but essentially pointless, because granting the motion would not materially change the factual record in this proceeding.
V. CONCLUSION For the foregoing reasons, the Board should deny Riverkeepers Motion in Limine.
Respectfully submitted, Signed (electronically) by Raphael P. Kuyler Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Raphael P. Kuyler, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com William B. Glew, Esq.
William C. Dennis, Esq.
ENTERGY NUCLEAR OPERATIONS, Inc.
440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wglew@entergy.com E-mail: wdennis@entergy.com Counsel for Entergy Nuclear Operations, Inc.
Dated in Washington, D.C.
this 14th day of May 2012
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) May 14, 2012 MOTION CERTIFICATION Pursuant to 10 C.F.R. § 2.323(b), Counsel for Entergy certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.
Signed (electronically) by Raphael P. Kuyler Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Raphael P. Kuyler, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: rkuyler@morganlewis.com
TABLE ENTERGY ANSWER TO RIVERKEEPER MOTION IN LIMINE FOR RK-TC-2 ATTACHMENTS Attachment No.
Certificates of Service dated March 28, 2012..............................................................................................................................................1 E-mail from D. Brancato, Riverkeeper, to P. Bessette, Morgan Lewis, et al., Consultation, (Apr. 30, 2012).............................................................................................................................................. 2 Letter from P. Bessette, Morgan Lewis, to D. Brancato, Riverkeeper (Mar. 28, 2012)..........................................................................................................................................3
ENTERGYS ANSWER TO MOTION IN LIMINE FOR RK-TC-2 ATTACHMENT 1 Certificates of Service dated March 28, 2012
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) March 28, 2012 CERTIFICATE OF SERVICE I certify that, on March 28, 2012, a copy of Entergys Statement of Position Regarding Contention RK-TC-2 (Flow-Accelerated Corrosion), the Testimony of Entergy Witnesses Ian D. Mew, Alan B. Cox, Nelson F. Azevedo, Jeffrey S. Horowitz, and Robert M. Aleksick Regarding Contention RK-TC-2 (Flow-Accelerated Corrosion), and associated non-proprietary exhibits were served electronically with the Electronic Information Exchange on the following recipients:
Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.
U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: Kaye.Lathrop@nrc.gov)
(E-mail: Lawrence.McDade@nrc.gov)
Administrative Judge Office of the Secretary Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)
Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)
Office of Commission Appellate Adjudication Josh Kirstein, Law Clerk U.S. Nuclear Regulatory Commission Anne Siarnacki, Law Clerk Mail Stop: O-7H4M Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail.resource@nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)
(E-mail: Anne.Siarnacki@nrc.gov)
Sherwin E. Turk, Esq. Melissa-Jean Rotini, Esq.
Edward L. Williamson, Esq. Assistant County Attorney Beth N. Mizuno, Esq. Office of Robert F. Meehan, Esq.
David E. Roth, Esq. Westchester County Attorney Brian G. Harris, Esq. 148 Martine Avenue, 6th Floor Mary B. Spencer, Esq. White Plains, NY 10601 Anita Ghosh, Esq. (E-mail: MJR1@westchestergov.com)
Brian Newell, Paralegal Office of the General Counsel Mail Stop: O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)
(E-mail: Edward.Williamson@nrc.gov)
(E-mail: Beth.Mizuno@nrc.gov)
(E-mail: David.Roth@nrc.gov)
(E-mail: Brian.Harris@nrc.gov)
(E-mail: Mary.Spencer@nrc.gov)
(E-mail: Anita.Ghosh@nrc.gov)
(E-mail: Brian.Newell@nrc.gov)
Michael J. Delaney, Esq. Daniel Riesel, Esq.
Vice President -Energy Department Victoria Shiah, Esq.
New York City Economic Development Sive, Paget & Riesel, P.C.
Corporation (NYCDEC) 460 Park Avenue 110 William Street New York, NY 10038 New York, NY 10022 (E-mail: mdelaney@nycedc.com) (E-mail: driesel@sprlaw.com)
(E-mail: vshiah@sprlaw.com)
Joan Leary Matthews, Esq. John Louis Parker, Esq.
Associate Commissioner Office of General Counsel, Region 3 Hearings and Mediation Services NYS Dept. of Environmental Conservation New York State Department of 21 S. Putt Corners Road Environmental Conservation New Paltz, New York 12561-1620 625 Broadway, 14th Floor (E-mail: jlparker@gw.dec.state.ny.us)
Albany, NY 12233-1500 (E-mail: jlmatthe@gw.dec.state.ny.us)
John J. Sipos, Esq. Manna Jo Greene Charlie Donaldson Esq. Karla Raimundi Assistant Attorneys General Stephen Filler Office of the Attorney General Hudson River Sloop Clearwater, Inc.
of the State of New York 724 Wolcott Ave.
The Capitol Beacon, NY 12508 Albany, NY 12224-0341 (E-mail: mannajo@clearwater.org)
(E-mail: John.Sipos@ag.ny.gov) (E-mail: karla@clearwater.org)
(E-mail: Charlie.Donaldson@ag.ny.gov)
Sean Murray, Mayor Phillip Musegaas, Esq. Kevin Hay, Village Administrator Deborah Brancato, Esq. Village of Buchanan Riverkeeper, Inc. Municipal Building 20 Secor Road 236 Tate Avenue Ossining, NY 10562 Buchanan, NY 10511-1298 (E-mail: phillip@riverkeeper.org) (E-mail: smurray@villageofbuchanan.com)
(E-mail: dbrancato@riverkeeper.org) (E-mail:
Administrator@villageofbuchanan.com)
Robert D. Snook, Esq. Janice A. Dean, Esq.
Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General State of Connecticut of the State of New York 55 Elm Street 120 Broadway, 26th Floor P.O. Box 120 New York, New York 10271 Hartford, CT 06141-0120 (E-mail: Janice.Dean@ag.ny.gov)
(E-mail: Robert.Snook@po.state.ct.us)
Signed (electronically) by Raphael P. Kuyler Raphael P. Kuyler, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Phone: (202) 739-5146 Fax: (20) 739-3001 E-mail: rkuyler@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
DB1/ 68951173
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) March 28, 2012 CERTIFICATE OF SERVICE I certify that, on March 28, 2012, a copy of the proprietary exhibits to the Testimony of Entergy Witnesses Ian D. Mew, Alan B. Cox, Nelson F. Azevedo, Jeffrey S. Horowitz, and Robert M.
Aleksick Regarding Contention RK-TC-2 (Flow-Accelerated Corrosion), and Entergys Statement of Position Regarding Contention RK-TC-2 (Flow-Accelerated Corrosion) were served electronically with the Electronic Information Exchange on the following recipients:
Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.
U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: Kaye.Lathrop@nrc.gov)
(E-mail: Lawrence.McDade@nrc.gov)
Administrative Judge Office of the Secretary Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)
Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)
Office of Commission Appellate Adjudication Josh Kirstein, Law Clerk U.S. Nuclear Regulatory Commission Anne Siarnacki, Law Clerk Mail Stop: O-7H4M Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail.resource@nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)
(E-mail: Anne.Siarnacki@nrc.gov)
Sherwin E. Turk, Esq. Phillip Musegaas, Esq.
Edward L. Williamson, Esq. Deborah Brancato, Esq.
Beth N. Mizuno, Esq. Riverkeeper, Inc.
David E. Roth, Esq. 20 Secor Road Brian G. Harris, Esq. Ossining, NY 10562 Mary B. Spencer, Esq. (E-mail: phillip@riverkeeper.org)
Anita Ghosh, Esq. (E-mail: dbrancato@riverkeeper.org)
Brian Newell, Paralegal Office of the General Counsel Mail Stop: O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)
(E-mail: Edward.Williamson@nrc.gov)
(E-mail: Beth.Mizuno@nrc.gov)
(E-mail: David.Roth@nrc.gov)
(E-mail: Brian.Harris@nrc.gov)
(E-mail: Mary.Spencer@nrc.gov)
(E-mail: Anita.Ghosh@nrc.gov)
(E-mail: Brian.Newell@nrc.gov)
Manna Jo Greene Karla Raimundi Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave.
Beacon, NY 12508 (E-mail: mannajo@clearwater.org)
(E-mail: karla@clearwater.org)
Janice A. Dean, Esq. John J. Sipos, Esq.
Assistant Attorney General Assistant Attorneys General Teresa Manzi, Legal Assistant Anthony Roisman, Esq.
Office of the Attorney General Office of the Attorney General of the State of New York of the State of New York 120 Broadway, 26th Floor The Capitol New York, New York 10271 Albany, NY 12224-0341 (E-mail: Janice.Dean@ag.ny.gov) (E-mail: John.Sipos@ag.ny.gov)
(E-mail: teresa.manzi@ag.ny.gov)
Signed (electronically) by Raphael P. Kuyler Raphael P. Kuyler, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Phone: (202) 739-5146 Fax: (20) 739-3001 E-mail: rkuyler@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
DB1/ 69424847
ENTERGYS ANSWER TO MOTION IN LIMINE FOR RK-TC-2 ATTACHMENT 2 E-mail from D. Brancato, Riverkeeper, to P. Bessette, Morgan Lewis, et al., Consultation, (Apr. 30, 2012)
Rund, Jonathan M.
From: Deborah Brancato [DBrancato@riverkeeper.org]
Sent: Monday, April 30, 2012 4:46 PM To: Bessette, Paul M.; Sutton, Kathryn M.; Rund, Jonathan M.; Turk, Sherwin; Mizuno, Beth; Harris, Brian; Roth(OGC), David Cc: Phillip Musegaas
Subject:
Consultation Importance: High Counsel:
I greatly apologize for the late notice, however, Riverkeeper is contemplating filing a motion in limine today in relation to one particular aspect of the testimony proffered by Entergy on RK-TC-2. Specifically, we believe that Entergys references to historic data that is incorporated into the CHECWORKS model (see Entergys FAC testimony at page 93),
contravenes the ASLBs order (related to Riverkeepers motion to compel) dated Nov. 4, 2010, which stated that The record reflects that Entergy does not have ready access to the data requested and thus has not, and cannot, rely on it to provide the track record for its AMP that Riverkeeper claims is lacking.20 Nor, to the extent that Entergy must demonstrate that its use of CHECWORKS is adequately benchmarked, could this data which the Applicant has not reviewed be of practical use to either party in this proceeding.
Riverkeepers limited resources prevented us from determining this was an issue until today, so again, apologies for the late notice. However, if a representative is available from Entergy and NRC, could you please advise us of your position regarding this prospective motion?
Thank you, Deborah Brancato, Esq.
Staff Attorney Riverkeeper, Inc.
20 Secor Road Ossining, New York 10562 P: (914) 478-4501 x230 F: (914) 478-4527 www.riverkeeper.org This message contains information that may be confidential or privileged and is intended only for the individual or entity named above. No one else may disclose, copy, distribute or use the contents of this message.
Unauthorized use, dissemination and duplication is strictly prohibited, and may be unlawful. All personal messages express views solely of the sender, which are not to be attributed to Riverkeeper, Inc. and may not be copied or distributed without this disclaimer. If you received this message in error, please notify us immediately at info@riverkeeper.org or call 914-478-4501.
1
ENTERGYS ANSWER TO MOTION IN LIMINE FOR RK-TC-2 ATTACHMENT 3 Letter from P. Bessette, Morgan Lewis, to D. Brancato, Riverkeeper (Mar. 28, 2012)
Morgan, Lewwis & Bockius LLP 1111 Pennsyylvania Avenue, NWW Washington, DC 20004 Tel. 202.7399.3000 Fax: 202.7399.3001 www.morgannlewis.com Kathryn M.M Sutton Partner 202.739.5738 8 ksutton@MorganLewis.com Paul M. Be essette Partner 202.739.5796 6 pbessette@M MorganLewis.comm March 288, 2012 VIA ELE ECTRONIC C MAIL Deborah Brancato, Esq. E Staff Attoorney Riverkeeeper, Inc.
20 Secorr Road Ossiningg, New York 10562 R
Re: Entergrgy Nuclear Operations,, Inc. (Indiaan Point Nucclear Generrating Units 2 and 3), Docket D Nos. 50-247-LR R and 50-2866-LR ___
Dear Ms. Brancato:
T letter is to This t inform yoou that in Enntergys March 28, 2012 supplementtal disclosurees, Entergy identified i ad dditional doccuments relaated to the Inndian Point Energy E Centeer (IPEC)
Units 2 anda 3 (IP2 and IP3, respectively) r ) CHECWO ORKS modells, including certain histoorical documennts relating to o the periodss prior to thee stretch powwer uprates (SPU)
( refeerenced in RK-TC-2 (Flow-Acceleraated Corrosiion). These documents were w identifiied in the course of workking with Enteergys experrts in prepariing testimonny on RK-TC C-2. As noted in our lettter to you daated July 14, 2010, 2 and ass the Board ruled r in its November N 4, 2010 Orderr (Ruling on Riverkeeperrs Motion too Compel), Entergy E maiintains that CHECWORK C KS documenntation produuced prior too the SPUs at IP2 I and IP3 are not neceessarily relevvant to the addmitted conttention. Nevvertheless, out o of an abunddance of cauttion, we inclluded such documents d inn the supplem mental discloosure. At thhis DB1/ 693776533
Deborah Brancato, Esq.
March 28, 2012 Page 2 time, Entergy does not intend to reference the pre-SPU IPEC CHECWORKS documents included in the supplemental disclosure in its prefiled written testimony on RK-TC-2.
Sincerely, Signed (electronically) by Paul M. Bessette Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Counsel for Entergy Nuclear Operations, Inc.
cc: Sherwin Turk, Esq.
David Roth, Esq.
DB1/ 69377653
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and
) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3) )
) May 14, 2012 CERTIFICATE OF SERVICE I hereby certify that on May 14, 2012, a copy of the Entergys Answer Opposing Riverkeeper, Inc. Motion in Limine to Exclude Portions of Pre-Filed Testimony and Statement of Position Regarding RK-TC-2 (Flow-Accelerated Corrosion) was served electronically via the Electronic Information Exchange on the following recipients:
Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 (E-mail: Lawrence.McDade@nrc.gov) (E-mail: Michael.Kennedy@nrc.gov)
Administrative Judge Office of the Secretary Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)
Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)
Office of Commission Appellate Adjudication Josh Kirstein, Law Clerk U.S. Nuclear Regulatory Commission Anne Siarnacki, Law Clerk Mail Stop: O-7H4M Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail.resource@nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)
(E-mail: Anne.Siarnacki@nrc.gov)
Sherwin E. Turk, Esq. Melissa-Jean Rotini, Esq.
Edward L. Williamson, Esq. Assistant County Attorney Beth N. Mizuno, Esq. Office of Robert F. Meehan, Esq.
David E. Roth, Esq. Westchester County Attorney Brian G. Harris, Esq. 148 Martine Avenue, 6th Floor Mary B. Spencer, Esq. White Plains, NY 10601 Anita Ghosh, Esq. (E-mail: MJR1@westchestergov.com)
Brian Newell, Paralegal Office of the General Counsel Mail Stop: O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)
(E-mail: Edward.Williamson@nrc.gov)
(E-mail: Beth.Mizuno@nrc.gov)
(E-mail: David.Roth@nrc.gov)
(E-mail: Brian.Harris@nrc.gov)
(E-mail: Mary.Spencer@nrc.gov)
(E-mail: Anita.Ghosh@nrc.gov)
(E-mail: Brian.Newell@nrc.gov)
Michael J. Delaney, Esq. Daniel Riesel, Esq.
Vice President -Energy Department Victoria Shiah, Esq.
New York City Economic Development Sive, Paget & Riesel, P.C.
Corporation (NYCDEC) 460 Park Avenue 110 William Street New York, NY 10038 New York, NY 10022 (E-mail: mdelaney@nycedc.com) (E-mail: driesel@sprlaw.com)
(E-mail: vshiah@sprlaw.com)
Janice A. Dean, Esq. John Louis Parker, Esq.
Assistant Attorney General Office of General Counsel, Region 3 Office of the Attorney General NYS Dept. of Environmental Conservation of the State of New York 21 S. Putt Corners Road 120 Broadway, 26th Floor New Paltz, New York 12561-1620 New York, New York 10271 (E-mail: jlparker@gw.dec.state.ny.us)
(E-mail: Janice.Dean@ag.ny.gov)
John J. Sipos, Esq. Manna Jo Greene Charlie Donaldson Esq. Karla Raimundi Assistant Attorneys General Stephen Filler Office of the Attorney General Hudson River Sloop Clearwater, Inc.
of the State of New York 724 Wolcott Ave.
The Capitol Beacon, NY 12508 Albany, NY 12224-0341 (E-mail: mannajo@clearwater.org)
(E-mail: John.Sipos@ag.ny.gov) (E-mail: karla@clearwater.org)
(E-mail: Charlie.Donaldson@ag.ny.gov)
Sean Murray, Mayor Phillip Musegaas, Esq. Kevin Hay, Village Administrator Deborah Brancato, Esq. Village of Buchanan Riverkeeper, Inc. Municipal Building 20 Secor Road 236 Tate Avenue Ossining, NY 10562 Buchanan, NY 10511-1298 (E-mail: phillip@riverkeeper.org) (E-mail: smurray@villageofbuchanan.com)
(E-mail: dbrancato@riverkeeper.org) (E-mail:
Administrator@villageofbuchanan.com)
Robert D. Snook, Esq.
Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert.Snook@po.state.ct.us)
Signed (electronically) by Raphael P. Kuyler Raphael P. Kuyler, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Phone: (202) 739-5146 Fax: (20) 739-3001 E-mail: rkuyler@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
DB1/ 69704525