ML072890571
| ML072890571 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 10/09/2007 |
| From: | Tyler K New England Coalition, Shems, Dunkiel, Kassel, & Saunders, PLLC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-271-LR, ASLBP 06-849-03-LR, RAS 14447 | |
| Download: ML072890571 (9) | |
Text
DOCKETED-1
- A USNRC October 10, 2007 (12:00pm)
OFFICE OF SECRETARY UNITED STATES RULEMAKINGS AND ADJUDICATIONS STAFF NUCLEAR REGULATORY COMMISSION In the Matter of )
ENTERGY NUCLEAR VERMONT YANKEE, LLC ) Docket No. 50-271-LR and ENTERGY NUCLEAR OPERATIONS, INC. ) ASLB No. 06-849-03-LR Vermont Yankee Nuclear Power-Station )
NEW ENGLAND COALITION. INC.'S (NEC) REPLY TO ENTERGY'S ANSWER TO NEC'S MOTION TO FILE A TIMELY NEW OR AMENDED CONTENTION Pursuant to 10 C.F.R. § 2.309(h)(2) and the Initial Scheduling Order ¶ 5, New England Coalition, Inc. (NEC) submits the following reply to the Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (collectively, "Entergy")
Response to NEC's Motion to File A Timely New or Amended Contention, dated October 1, 2007 (the "Entergy Answer"). Entergy opposes admission of NEC's new or amended contention on the grounds that it is "impermissibly vague," and fails to identify "any specific errors or deficiencies in Entergy's final [environmentally-assisted fatigue]
calculations." Entergy Answer at 2. Entergy's position is contrary to that of the NRC Staff, which found that NEC's contention meets all requirements of 10 C.F.R. § 2.309(f)(2), and does not object to its admission. NRC Staff Answer to NEC Motion to File a Timely New or Amended Contention (October 1, 2007); NRC Staff Answer to NEC Motion to File a Timely New or Amended Contention (August 6, 2007).
Indeed, the Sixth Declaration of Dr. Joram Hopenfeld ("Sixth Hopenfeld Declaration") in support of NEC's new or amended contention makes the following specific criticisms of Entergy's CUFen Reanalysis:
-eL M--TtE- 3 J SC-C-Yoam-
- 1. Entergy failed to perform an error analysis to show the admissible range for each variable in calculating Fen and CUF values. Sixth Hopenfeld Declaration at ¶7 9, 18, 19, 21.
- 2. Entergy used outdated statistical equations to calculate Fen values, when it should have used equations and data published in NUREG/CR-6909 (February 2007). Id. at ¶15.
- 3. Entergy should have, but did not, obtain CUFen values by calculating the partial usage factor for each stress cycle, multiplying it by the corresponding Fen value, and then summing the individual products for all stress cycles. Id. at ¶ 27.
- 4. Entergy failed to specifically identify or justify assumptions made in its calculation of 60-year CUF values, and provides no explanation for certain anomalous results. Id. at ¶M 18, 20, 22.
- 5. Entergy did not use pipe wall dimensions from the latest in-service inspection measurements. Id. at ¶ 23.
- 6. Entergy improperly applied steady-state heat transfer coefficients to transient conditions. Id. at ¶ 24.
- 7. Entergy relies on the non-conservative assumption that the number of plant transients will vary linearly with time. Id. at ¶ 26.
Entergy's Answer totally ignores the majority of these specific criticisms, responding only to NEC's arguments concerning the omission of error analysis, failure to identify assumptions made in the calculation of 60-year CUF values, and the use of outdated equations to calculate Fen values.
Entergy's response to Dr. Hopenfeld's comments on the omission of error analysis is limited to an inapt analogy, comparing them to "a statement by an expert that he cannot tell whether a deficiency exists," which "does not support an allegation that the deficiency does exist." Entergy Answer at 3 (emphasis in original).' The omission of error analysis is itselfa major deficiency in Entergy's CUFen study. Without an error analysis or explanation of underlying assumptions (discussed below), there is no way for 2
NEC or the Board to assess the validity of Entergy's results or the degree of risk associated with acceptance of these results. As Dr. Hopenfeld explains: "In light of the fact that data scatter in fatigue studies often exceeds an order of magnitude, [Entergy's CUFen values] without an error band [have] little significance and impart[] little confidence that fatigue failure will not occur." Sixth Hopenfeld Declaration at ¶ 10.'
Entergy makes this same specious argument with respect to Dr. Hopenfeld's related comments concerning Entergy's failure to specify the assumptions underlying its 60-year CUF calculations. Entergy's apparent strategy of supplying incomplete information, and then faulting the intervenor for lack of specificity in response ignores the key fact that it is Entergy, the license renewal applicant, that bears the burden of proof regarding the validity of its CUFen Reanalysis. Entergy must either demonstrate that the reactor components listed in License Renewal Application Table 4.3-3 will not fail due to environmentally-assisted metal fatigue during the period of extended operation, or develop a program of inspection and/or repair or replacement to manage fatigue at these locations. 10 C.F.R. § 54.21(c)(1). According to Dr. Hopenfeld, the CUFen Reanalysis reports that Entergy has made available to NEC and the Board do not include the information necessary to meet Entergy's burden of proof.
Entergy also faults Dr. Hopenfeld for failing to identify a guidance document requiring the performance of error analysis. Whether or not NRC guidance calls for error analysis is irrelevant to the Board's decision to admit or deny NEC's new or amended contention. An intervenor may bring contentions that raise issues that are.not addressed by current NRC guidance or that challenge the validity of NRC guidance documents.
See, In the Matter ofPrivateFuel Storage, LLC, 57 NRC 69, 92 (2003) ("[A]n intervenor... is free to take issue with the terms of ... Staff guidance and thinking .... ); Kansas Gas and Electric Co. (Wolf Creek.
GeneratingStation, Unit 1), 49 NRC 441, 460 (1999), citing, Chevron USA, Inc. v. NaturalResources Defense Council, Inc., 467 U.S. 837, 863-64 (984) ("Agency interpretations and policies are not 'carved in stone' but must ratherbe subject to re-evaluation of their wisdom ona continuing basis.").
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In response to Dr. Hopenfeld's observation that Entergy used outdated statistical equations published in NUREG/CR-6583 and NUREG/CR-5704 to calculate Fen values, when it should have used revised equations and data published in NUREG/CR-6909 (February 2007),2 Entergy cites two NRC guidance documents. It notes that NUREG-1801, Vol. 1, which pre-dates NUREG/CR-6909, identifies use of NUREG/CR-6583 and NUREG/CR-5704 as an acceptable option for performing environmentally-assisted fatigue calculations, and that Regulatory Guide 1.207 recommends the NUREG/CR-6909 methods for fatigue analyses in new reactors.
These guidance documents are not legally binding regulatory requirements. The Summary and Introduction to NUREG-1801, Vol. 1 includes the following explanation of its legal status:
Legally binding regulatory requirements are stated only in laws; NRC regulations; licenses, including technical specifications; or orders, not in NUREG series publications.
The GALL report is a technical basis document to the SRP-LR, which provides the Staff with Guidance in reviewing a license renewal application .... The Staff should also review information that is not addressedin the GALL reportor is otherwise differentfrom that in the GALL report.
NUREG- 1801, Vol. 1, Summary, Introduction; Application of the GALL Report (emphasis added). Likewise, the face page to Regulatory Guide 1.207 states the following: "Regulatory Guides are not substitutes for regulations, and compliance with them is not required." Regulatory Guide 1.207; See also, In the Matter of International 2 Entergy notes that NUREG/CR-6909 was published after Entergy submitted its license renewal application, but does not contend that NUREG/CR-6909 was not available at the time Entergy's CUFen Reanalysis was performed.
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Uranium (USA) Corporation,51 NRC 9, 19 (2000) ("[NRC NUREGS, Regulatory Guides, and Guidance documents] are routine agency policy pronouncements that do not carry the binding effect of regulations...
Regardless of their content, NUREG- 1801, Vol. 1 and Regulatory Guide 1.207 do not preclude the Board from considering the question at the heart of NEC's proposed New or Amended Contention: What is the most appropriate method of calculating the effects of the environment on fatigue?
[T]he argument that [NUREGs and other guidance documents] are binding on licensing boards and bar contentions as attacks on a rule is unsound in law .... [NUREGs] do no rise to the level of regulatory requirements.
Neither do they constitute the only means of meeting applicable regulatory requirements .... Generally speaking,. . . such guidance is treated simply as evidence of legitimate means for complying with regulatory requirements, and the staff is required to demonstrate the validity of its guidance if it is called into question during the course of litigation.
In the Matter of CarolinaPower & Light Company and North CarolinaEastern Municipal PowerAgency (ShearonHarrisNuclear Power Plant), 23 NRC 294 (1986),
citing, Metropolitan Edison Co. (Three Mile IslandNuclear Station, Unit 1), 16 NRC 1290, 1298-99 (1982); See-also, In the Matter of Connecticut Yankee Atomic Power Company (HaddamNeck Point), 54 NRC 177, 184 (2001), citing,Long IslandLighting Co. (ShorehamNuclear Power Station, Unit 1), 28 NRC 288, 290 (1988)("NUREGs and similar documents are akin to 'regulatory guides.' That is, they provide guidance for the Staffs review, but set neither minimum nor maximum regulatory requirements."); In the Matter of PrivateFuel Storage,LLC, 57 NRC 69, 92 (2003)("[A]n intervenor, though not allowed to challenge duly promulgated Commission regulations in the hearing process...
is free to take issue with... NRC Staff guidance and thinking.... "); Kansas Gas and Electric Co. (Wolf Creek GeneratingStation, Unit 1), 49 NRC 441, 460 (1999), citing, 5
Chevron USA, Inc. v. NaturalResources Defense Council, Inc., 467. U.S. 837, 863-64
- (984) ("Agency interpretations and policies are not 'carved in stone' but must rather be subject to re-evaluation of their wisdom on a continuing basis.").
Finally, Entergy takes issue with Dr. Hopenfeld's CUFen recalculation using the design basis and generic CUF values reported in Entergy's License Renewal Application
.Table 4.3-3 and bounding Fen values taken from NUREG/CR 6909, and faults Dr.
Hopenfeld for not having performed his own comprehensive CUFen study. Again, it is*
Entergy's burden to prove the validity of its CUFen Reanalysis. NEC is not required, at the contention admission stage, to put forward its own comprehensive study. It is required only to make "a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate." In GulfState Utilities Co., 40 NRC 43, 51 (1994)(emphasis added). It has done so.
NEC respectfully requests that the Board grant NEC's Motion to File a Timely New or Amended Contention, and admit NEC's New or Amended Contention for adjudication in this proceeding. NEC also requests that the Board hold NEC's original Contention 2 in abeyance, pending the Board's decision to admit or deny NEC's New or Amended Contention, and ultimate decision regarding the validity of Entergy's CUFen Reanalysis. If the Board admits NEC's New or Amended Contention, and rejects Entergy's CUFen Reanalysis, the Board should then adjudicate NEC's original Contention 2:
The License Renewal Application (LRA) does not include any specific plan to monitor and manage reactor components identified in LRA Table 4.3-3 as vulnerable to environmentally-assisted fatigue failure during the license renewal period.
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October 9, 2007 New England Coalition by: 1~4 Andrew Raubvo Karen Tyler SHEMS DUNKIEL KASSEL & SAUNDERS PLLC For the firm Attorneys for NEC 7
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
Entergy Nuclear Vermont Yankee, LLC ) Docket No. 50-271-LR and Entergy Nuclear Operations, Inc. ) ASLBP No. 06-849-03-LR (Vermont Yankee Nuclear Power Station) )
CERTIFICATE OF SERVICE I, Michelle Cronin, hereby certify that copies of NEW ENGLAND COALITION, INC.'S REPLY TO ENTERGY'S ANSWER TO NEC'S MOTION TO FILE A TIMELY NEW OR AMENDED CONTENTION in the above-captioned proceeding were served on the persons listed below, by U.S. Mail, first class, postage prepaid; by Fed Ex overnight to Judge Elleman; and, where indicated by an e-mail address below, by electronic mail, on the 9th day of October, 2007.
Administrative Judge Office of the Secretary Alex S. Karlin, Esq., Chair Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Mail Stop: O-16C1 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: hearingdocketwnrc.gov E-mail: ask2@(aRrc.gov Sarah Hofmann, Esq.
Administrative Judge Director of Public Advocacy Thomas S. Elleman Department of Public Service Atomic Safety and Licensing Board Panel 112 State Street, Drawer 20 5207 Creedmoor Road, #101 Montpelier, VT 05620-2601 Raleigh, NC 27612 E-mail: sarah.hofmann@state.vt.us E-mail: elleman(aeos.ncsu.edu Lloyd B. Subin, Esq.
Office of Commission Appellate Adjudication Mary C. Baty, Esq.
Mail Stop: O-16C1 Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop 0-15 D21 Washington, DC 20555-0001. U.S. Nuclear Regulatory Commission E-mail: OCAAmailknrc.gov Washington, DC 20555-0001 E-mail: lbs3(@nrc.gov; mcb I @dnrc.gov Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Dan MacArthur, Director Mail Stop T-3 F23 Town of Marlboro U.S. Nuclear Regulatory Conmmission Emergency Management Washington, DC 20555-0001 P.O. Box 30 E-mail: rew na.nrc.gov Marlboro, VT 05344 E-mail: dmacartlur@igc.org
Marcia Carpentier, Esq. David R. Lewis, Esq.
Atomic Safety and Licensing Board Panel Matias F. Travieso-Diaz Mail Stop T-3 F23 Pillsbury Winthrop Shaw Pittman LLP U.S. Nuclear Regulatory Commission 2300 N Street NW Washington, DC 20555-0001 Washington, DC 20037-1128 E-mail mxcT(nrc.gov E-mail: david.lewis(cpil lsburylaw.com matias.travieso-diazc2pillsburylaw.coln Anthony Z. Roisman, Esq.
National Legal Scholars Law Firm Peter C. L. Roth, Esq.
84 East Thetford Road Office of the Attorney General Lyme, N14 03768 33 Capitol Street E-mail: aroisman(cnationallegalscholars.com Concord, NiH 03301 Peter.rothA~doj.nh.2ov Callie B. Newton, Chair Gail MacArthur Lucy Gratwick Marcia Hamilton Town of Marlboro Selectboard P.O. Box 518 Marlboro, VT 05344 E-mail: cbnewton(djsover.net; marcialynn(Thievl.net SHEMS DUNKIEL KASSEL & SAUNDERS, PLLC by:
Mich'elle C-ronin, for Andew Raubvogel, Esq. and Karen Tyler, Esq.
91 College Street Burlington, VT 05401 802 860 1003 802 860 1208 (fax) rshems(-P~sdkslaw.com ktyler asdkslaw.com for the firm Attorneys for New England Coalition, Inc.