ML072010128
| ML072010128 | |
| Person / Time | |
|---|---|
| Site: | Pilgrim |
| Issue date: | 07/19/2007 |
| From: | Uttal S NRC/OGC |
| To: | |
| S L Uttal, NRC/OGC, 301-415-1582 | |
| References | |
| 50-293-LR, ASLBP 06-848-02-LR, RAS 13898 | |
| Download: ML072010128 (6) | |
Text
July 19, 2007 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR GENERATION CO. )
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR
)
(Pilgrim Nuclear Power Station) )
)
)
) ASLBP No. 06-848-02-LR
)
NRC STAFF RESPONSE IN SUPPORT OF ENTERGYS MOTION TO STRIKE PORTIONS OF PILGRIM WATCHS OPPOSITION TO MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 3 INTRODUCTION On July 9, 2007, Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.,
(collectively, Entergy), filed a motion to strike portions of intervenor, Pilgrim Watchs Answer Opposing Entergys motion for summary disposition of Pilgrim Watch Contention 3.1 The Motion to Strike argues that substantial portions of Pilgrim Watchs Answer Opposing Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3 (Summary Disposition Answer), filed on June 29, 2007, are beyond the scope of Contention 3, as admitted; concern claims rejected by the Atomic Safety and Licensing Board (Board); or, are not supported by a qualified expert.
Motion to Strike at 1. Pursuant to 10 C.F.R. § 2.323, the NRC staff (Staff) hereby files its response in support of Entergys Motion to Strike. The Staff submits that the portions of the Summary Disposition Answer that Entergy seeks to have stricken should be stricken, or in the 1
See Entergys Motion to Strike Portions of Pilgrim Watchs Answer Opposing Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3 (July 9, 2007) (Motion to Strike).
alternative, should not be considered by the Board because they are either outside the scope of Contention 3, were previously rejected by the Board, or are not supported by a qualified expert.
BACKGROUND Pilgrim Watch Contention 3, as narrowed and admitted by the Board, reads:
Applicants SAMA analysis for the Pilgrim plant is deficient in that the input data concerning (1) evacuation times, (2) economic consequences, and (3) meteorological patterns are incorrect, resulting in incorrect conclusions about the costs versus benefits of possible mitigation alternatives, such that further analysis is called for.2 As originally submitted, Contention 3 included an attack on the use of probabilistic modeling (i.e. PRA) in SAMA analysis3 and on portions of the Pilgrim Emergency Plan.4 The Board specifically excluded those issues. See Order at 100.
In admitting the Contention, the Board limited it to questions about certain specific input data to the SAMA analysis which it felt Pilgrim Watch had supported with sufficient basis for admission. These were: evacuation time estimates, meteorological data that govern movement of the plume and economic impact data. Id. At 98. But the Board did not find that Pilgrim Watch had carried its burden as to all input data. Id. At 99.
DISCUSSION A contention is limited not only by its terms but also by its bases. See e.g. Public Service Co. of New Hampshire ( Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988),
aff'd sub nom, Massachusetts v. NRC, 924 F. 2d 311 (D.C. Cir. 1991), cert. denied, 502 U.S.
2 See Memorandum and Order (Ruling on Standing and Contentions of Petitioners Massachusetts Attorney General and Pilgrim Watch), LBP-06-23, 64 NRC 257, 341 (2006) (Order).
3 See Order at 78.
4 See Request for Hearing and Petition to Intervene by Pilgrim Watch, (May 25, 2006) (Petition) at 40 (False assumptions were used in the Pilgrim Station Evacuation Time Estimates and Traffic Management Plan Update, Rev. 5 resulting in low evacuation time estimates).
899 (1991) (The reach of a contention necessarily hinges upon its terms coupled with its stated bases.). See also Duke Energy Corp.(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 379 (2002); Entergy Nuclear Vermont Yankee, L.L.C., and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),
LBP-04-28, 60 NRC 548, 556 (2004). Thus, in this case, the scope of Contention 3 is limited by those facts alleged in the bases that were found to be sufficient by the Board.
In its response to the Motion to Strike, Pilgrim Watch alleges that Entergy has mischaracterized the Order in an attempt to limit the scope of the Contention.5 The Staff disagrees. In fact, it is Pilgrim Watch that has attempted to broaden the scope of the Contention by focusing solely on the words of the contention and ignoring the Boards discussion of its rationale for admitting the Contention (Order at 98-101) and the facts that the Board considered in its analysis of the admissibility of the Contention (Order at 77-81). The Contention does not encompass every item raised by Pilgrim Watch, but is limited to the issues that the Board indicated were supported by sufficient facts and expert studies and reports. Moreover, the fact that Pilgrim Watch challenged some of the inputs to the MACCS2 code and the SAMA analysis in its intervention petition, does not open up the entire spectrum of inputs to challenge. If Pilgrim Watch had wanted to challenge additional alleged omissions in the SAMA analysis, they should have raised them, with sufficient support, in the Petition, or should have timely moved to add additional bases to the Contention.6 As the Board repeatedly stated, Pilgrim Watch provided sufficient basis for some of the facts cited in its petition, but certainly not all of them.
5 See Pilgrim Watchs Answer Opposing Entergys Motion to Strike Portions of Pilgrim Watchs Answer Opposing Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3 at 2 (July 17, 2007).
6 See, e.g., Georgia Power Co.(Vogtle Electric Generating Plant, Units 1 and 2), LBP-94-22, 40 NRC 37, 39 (1994) (holding that the decision whether to permit litigation of a new basis for a contention is based on whether it is timely to consider the new basis, in light of its seriousness and of the timeliness
So, for example, since the only input challenged relating to economic loss was the failure to consider loss of tourism dollars, Pilgrim Watch is limited to that issue in the area of economic loss.
Although in admitting the Contention, the Board did not specifically point out which facts it found to be sufficient with in the three admitted areas, it did discuss the relevant facts presented by Pilgrim Watch in its Petition. See Order at 77-81. It seems clear that the facts discussed by the Board in the Order must form the basis for its admission of the Contention. In that regard, the Board mentions the several specific categories of data inputs that Pilgrim Watch alleged were incorrect. Id. at 79-81. These are: wind speed, wind direction changes, dispersion, sea breeze phenomenon, coastal topography, evacuation delay time, and evacuation speed. Id. at 79. Also, shadow evacuation, sheltering in place, special events such as July 4th, and consideration of a larger, more inclusive population in calculating off-site dose costs. Id. at 80. Finally, Pilgrim Watch the sole issue raised concerning economic loss - loss of tourism. Id. at 81. Therefore, based on the Boards limitation of the Contention to facts that it deemed to be sufficiently supported in the three admitted areas of dispute, Pilgrim Watch has, in its Summary Disposition Answer, improperly expanded the scope of Contention 3 far beyond what was admitted by the Board. In addition, Pilgrim Watch has attempted to resurrect its attack on the use of PRA7 and has mounted a further attack on the Emergency Plan. See Summary Disposition Response at 23 (Pilgrim Watch denies . . . that the assumptions behind the KLD Time Estimates relied upon by Entergy for evacuation time estimates are valid.), 24 (we assert that the KLD estimates on which [the inputs and estimates] are based utilized with which it has been raised.). In the instant case, the new bases have not been raised in a timely manner, since they should have been apparent to Pilgrim Watch at the time the Petition was filed.
7 See Summary Disposition Answer at 33-35.
incorrect assumptions). The attempt to reinsert these two inadmissible issues should be rejected by the Board.
In the Motion to Strike, Entergy has discussed, in detail, the multiple instances of Pilgrim Watchs attempts to expand the scope of Contention 3 beyond what was admitted by the Board.
It also specifies the portions of the Summary Disposition Answer that are not supported by a qualified expert. The Staff agrees with Entergy that those portions of the Summary Disposition Answer should be stricken. In the alternative, they should not be considered by the Board.
CONCLUSION Based on the foregoing, the Staff submits that Entergys Motion to Strike should be granted. In the alternative, the staff request that the Board not consider the portions of Pilgrim Watchs Summary Disposition Answer that are beyond the scope of Contention 3, as admitted, or seek to raise issues previously rejected by the Board, or are not supported by qualified expert opinion.
Respectfully submitted,
/RA/
Susan L. Uttal Counsel for NRC staff Dated at Rockville, Maryland This 19th day of July, 2007
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-293-LR
)
(Pilgrim Nuclear Power Station) ) ASLBP No. 06-848-02-LR
)
CERTIFICATE OF SERVICE I hereby certify that copies of the NRC STAFF RESPONSE IN SUPPORT OF ENTERGYS MOTION TO STRIKE PORTIONS OF PILGRIM WATCHS OPPOSITION TO MOTION FOR
SUMMARY
DISPOSITION OF CONTENTION 3 in the above-captioned proceeding has been served on the following by electronic mail and deposit in the U.S. Mail Service or deposit in the U.S. Nuclear Regulatory Commission=s internal mail system, or by deposit in the U.S. mail system or the U.S. Nuclear Regulatory Commissions internal mail system, as indicated by a single asterisk (*), this 19th day of July 2007.
Richard F. Cole Paul B Abramson Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: rfc1@nrc.gov E-mail: pba@nrc.gov Ann Marshall Young, Chair Office of Commission Appellate Administrative Judge Adjudication Atomic Safety and Licensing Board Mail Stop: O-16C1 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMail@nrc.gov E-mail: amy@nrc.gov Office of the Secretary Sheila Slocum Hollis Attn: Rulemaking and Adjudications Staff Duane Morris LLP Mail Stop: O-16C1 1667 K Street, NW, Suite 700 U.S. Nuclear Regulatory Commission Washington, DC 20006 Washington, DC 20555-0001 E-mail: sshollis@duanemorris.com E-mail: hearingdocket@nrc.gov
Atomic Safety and Licensing Board* Terence A. Burke, Esq.*
Mail Stop: T-3 F23 Entergy Nuclear U.S. Nuclear Regulatory Commission 1340 Echelon Parkway Washington, DC 20555-0001 Mail Stop: M-ECH-62 Jackson, MS 39213 Mary Lampert Pilgrim Watch David R. Lewis, Esq.
148 Washington Street Paul A. Gaukler, Esq.
Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E-mail: mary.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1137 Chief Kevin M. Nord E-mail: david.lewis@pillsburylaw.com Fire Chief & Director Duxbury Emergency paul.gaukler@pillsburylaw.com Management Agency 668 Tremont Street Town Manager Duxbury, MA 02332 Town of Plymouth E-mail: nord@town.duxbury.ma.us 11 Lincoln St.
Fax: 781-934-6530 Plymouth, MA 02360 E-mail: msylvia@townhall.plymouth.ma.us
/RA/
Susan L. Uttal Counsel for NRC Staff