ML091770296

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Pilgrim - NRC Staff'S Initial Brief in Response to CLI-09-11 (Memorandum and Order (Request for Additional Briefing))
ML091770296
Person / Time
Site: Pilgrim
Issue date: 06/25/2009
From: Harris B, Andrea Jones, Uttal S
NRC/OGC
To:
NRC/OCM
SECY RAS
References
50-293-LR, ASLB-06-848-02-LR, CLI-09-11, RAS J-195
Download: ML091770296 (28)
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Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

j ENTERGY NUCLEAR GENERATION )

COMPANY AND ENTERGY NUCLEAR ) Docket No. 50-293-LR OPERATIONS, INC. )

)

(Pilgrim Nuclear Power Station) )

NRC STAFF'S INITIAL BRIEF IN RESPONSE TO CLI-09-11 (MEMORANDUM AND ORDER (REQUEST FOR ADDITIONAL BRIEFING))

Susan L. Uttal Brian G. Harris Andrea' Z. Jones Counsel for NRC Staff June 25,2009

TABLE OF CONTENTS BACKGROUND ..................................................................................................................... DISCUSSION ........................................................................................................................ I. The Board Majority's Exclusion of Particular Methodologies Was Well Founded and Appropriate. .................................................................................. A. Contention Admissibility Standards .......................................................................... 6. PW Failed to Adequately Support Its Challenges to Entergy's SAMA Methodologies in Contention 3 ...................................................... C. The Board Admitted Contention 3 Limited to the lnput Data Discussed in PW's Petition ...................................................................................... D. The Gaussian Model is Not an Input to the MACCS2 Code ................................... E. The Board Properly Excluded Challenges to the MACCS2 Code for Determining Economic Costs ................................................................................. II. PW Failed to Present a Genuine Issue of Material Fact That Would Affect the SAMA Analysis ...................................................................... A. Entergy's Motion for Summary Disposition of Contention 3 .................................... B. PW Failed to Controvert the Statement of Material Facts Not in Dispute Regarding Conservatisms in the MACCS2 Code and the Gaussian Plume Model as Applied in Entergy's SAMA Analysis ...................... C. A Variable Trajectory Model Would Not Alter the SAMA Cost-Benefit Analysis ...... D. Other Reasonable Meteorological Patterns Would Have Little Effect on the SAMA Cost-Benefit Analysis ..................................................... CONCLUSION .....................................................................................................................

TABLE OF AUTHORITIES Pa~e JUDICIAL DECISIONS Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................................. . I 3 Reich v. John Alden Life Insurance Company, 126 F.3d 1 (1st Cir. 1997)........................... 17, 18 United Paperworkers lnternational Union, Local 14, AFL-C/O-CLC, et al., v.

International Paper Co., 64 F.3d 28 ( I st Cir. 1995) .................................................................. 17 ADMINISTRATIVE DECISIONS Commission:

Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 40441),

CLI-93-33, 38 NRC 98 (1993) ............................................................................................. 16, 17 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006) ................................................................................................... 5 Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 314 (2006) ..................................................................................................................... 6 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation),

CLI-04-22, 60 NRC 22 (2004) .................................................................................................... .6 Atomic Safety and I-icensinq Appeal Board Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974) ............................................................................................................................ 5 Atomic Safety and Licensinq Board:

Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3),

LBP-91-19, 33 NRC 397 (1991) .................................................................................................. 5 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),

LBP-05-04, 61 NRC 71 (2005) .................................................................................................. 16 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC 131 (2007) ...........................................................................p assim Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257 (2006) ...........................................................................p assim

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June 25, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

1 ENTERGY NlJCLEAR GENERATION )

COMPANY AND ENTERGY NUCLEAR 1 Docket No. 50-293-LR OPERATIONS, INC. 1 1

(Pilgrim Nuclear Power Station) 1 NRC STAFF'S INITIAL BRIEF IN RESPONSE TO CLI-09-11

{MEMORANDUM AND ORDER (REQUEST FOR ADDITIONAL BRIEFING))

INTRODUCTION Pursuant to the Commission's Memorandum and Order (Requesting Additional Briefing) of June 4, 2009 ("Commission's Order"), the staff of the U.S. Nuclear Regulatory Commission

("Staff') hereby responds to the Commission's questions regarding the Atomic Safety and Licensing Board's ("Board") decision granting summary disposition of Pilgrim Watch's ("PW")

Contention 3.' As more fully set forth below, the Staff submits that the Board majority's summary disposition of PW Contention 3 was proper, because the contention had previously and correctly been limited to challenges concerning the input data to the MELCOR Accident Consequence Code System 2 ("MACCS2 code"), and Pilgrim Watch did not raise any genuine issue of material fact that would affect the conclusion of Entergy's Severe Accident Mitigation Analysis ("SAMA). Accordingly, the Board's Order should be affirmed.

1 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-07-13 ("Board's Order" or "LBP-07-13"), 66 NRC 131 (2007).

BACKGROUND This proceeding concerns Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.'s (collectively "Entergy") application to renew the operating license for the Pilgrim Nuclear Power Station ("Pilgrim"). On May 25, 2006, PW filed a petition to intervene in this matter, submitting five contentions for consideration by the ~ o a r d The. ~ Board granted the petition, admitting PW's Contentions 1 and 3.3 Contention 3 was limited by the Board, and was admitted in the following form:

Applicant's SAMA analysis for the Pilgrim plant is deficient in that the input data concerning ( I ) 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.4 On May 17, 2007, Entergy moved for summary disposition of Contention 3.5 On June 29, 2007, the Staff and PW filed their responses to Entergy's Motion."n July 9, 2007, PW filed a reply to the Staff's ~ e s ~ o n s One . ~October 30, 2007, the Board granted the motion for summary disposition of Contention 3, in LBP-07-13.'

2 Request for Hearing and Petition to Intervene by Pilgrim Watch ("PW's Petition") (May 25, 2006).

3 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP-06-23 ("LBP-06-23"), 64 NRC 257, 341 (2006).

4 LBP-06-23, 64 NRC at 341 (emphasis added).

Entergy's Motion for Summary Disposition of Pilgrim Watch Contention 3 ("Entergy's Motion")

(May 17, 2007).

NRC Staff Response to Entergy's Motion for Summary Disposition of Pilgrim Watch Contention 3 ("Staff Response") (June, 29, 2007); Pilgrim Watch's Answer Opposing Entergy's Motion for Summary Disposition of Pilgrim Watch Contention 3 ("PW's Opposition") (June 29, 2007).

Pilgrim Watch's Answer to NRC Staff Response to Entergy's Motion For Summary Disposition Of Pilgrim Watch Contention 3 (July 9, 2007).

' LBP-07-13, 66 NRC 131 (2007). Judge Young dissented from the Board's Order. Id. at 156.

On October 30, 2008, a majority of the Board issued its Initial Decision, LBP-08-22, on Contention 1 (the sole remaining contention), and on October 31, 2008, Judge Young issued a Concurring Opinion.

On November 12, 2008, PW filed its petition for review of LBP-08-22, LBP-07-13, LBP-06-23, and other interlocutory decision^.^ On November 24, 2008, Entergy and the Staff filed their responses to PW's Petition for Review. On June 4, 2009, the Commission issued its Order requesting further briefing by the parties on the Board's resolution of Contention 3.

As set forth below, the Commission's Order directed the parties to address two issues regarding the Board majority's grant of summary disposition of PW's Contention 3.

(1) In granting summary disposition, was it appropriate for the Board majority to exclude challenges to the use of particular methodologies, such as the use of the straight-line Gaussian plume model to predict the atmospheric dispersion of radionuclides, or the use of the MACCS2 code for determining economic costs?

(2) Did [PW] present a supported, genuine dispute that could materially affect the ultimate conclusions of the SAMA cost-benefit analysis? For example, discuss the evidence or testimony presented on (1) whether the use of a variable trajectory model could materially affect whether any additional SAMA may be cost-beneficial; (2) the conservatism of the Gaussian plume model and the MACCS2 code (including the economic model) as applied in the cost-benefit analysis; and (3) whether the cost-benefit analysis "subsumes all reasonably possible meteorological patterns.""

The Staff addresses these questions seriatim in the discussion below.

Pilgrim Watch's Petition for Review of LBP-08-22, LBP-07-13, LBP-06-23 and the Interlocutory Decisions in the Pilgrim Nuclear Power Station Proceeding ("PW's Petition for Review") (Nov. 12, 2008) at 11. In its request for review of LBP-06-23, PW limited its appeal to the Board's denial of admission of its proposed Contention 4. PW did not appeal the Board's limited admission of Contention 3. See Id. at 12 - 13 (challenging the Board's interpretation of its decision but not the decision itself or the language of Contention 3, as admitted).

10 Entergy's Answer Opposing Pilgrim Watch's Petition For Review (Nov. 12, 2008); NRC Staff's Answer in Opposition to Pilgrim Watch's Petition For Review of LBP-08-22, LBP-07-13, LBP-06-23 and Interlocutory Decisions (Nov. 12, 2008).

11 Commission's Order at 7(internal citations omitted).

DISCUSSION I. The Board Maioritv's Exclusion of Particular Methodoloqies Was Well Founded and Appropriate.

In the Commission's Order, the Commission requested the parties' views as to whether it was appropriate for the Board majority, in its ruling on summary disposition, "to exclude challenges to the use of particular methodologies, such as the use of the straight-line Gaussian plume model to predict the atmospheric dispersion of radionuclides, or the use of the MACCS2 code for determining economic cost^?"'^ The Staff submits that it was entirely appropriate for the Board majority to do so.

In granting summary disposition of PW Contention 3, the Board majority determined that certain issues raised by PW in its opposition to Entergy's summary disposition motion (involving challenges to Entergy's SAMA methodologies) were beyond the scope of Contention 3 as admitted, and that those challenges therefore failed to present a valid basis for denying the Applicant's motion.13 In order to understand why the Board's Order granting summary disposition of Pilgrim Watch's Contention 3 properly excluded challenges to the use of particular methodologies within the framework of PW's Contention 3, it is necessary to compare what PW originally asserted to what the Board admitted as Contention 3. It also must be emphasized that PW did not file any appeal from the Board's admission of Contention 3, as modified and restated by the Board.14 Accordingly, PW cannot now proffer assertions or information that are beyond the scope of that contention, as admitted. As set forth below, based on the Board's explicit and uncontested limitation on the admitted scope of Contention 3, the Board properly rejected PW's subsequent assertion of "genuine issues of material dispute" that were based on l2 Id. at 7.

l3 See LBP-07-13,66 NRC at 148 - 52.

l4 See supra note 9.

the use of a straight-line Gaussian plume model ("Gaussian Model") and on the use of the MACCS2 code for determining economic costs, as matters outside the scope of the contention as admitted.

A. Contention Admissibility Standards The legal requirements governing the admissibility of contentions are well-established and set forth in 10 C.F.R. 5 2.309(f) of the Commission's Rules of Practice (formerly 5 2.714(b)).

The requirements governing the admissibility of contentions have been strictly applied in NRC adjudicatory proceedings, including license renewal proceedings. For example, in a recent decision involving license renewal, the Commission stated:

The requirements for admissibility [of contentions] set out in 10 C.F.R. 5 2.309(f)(l)(i)-(vi) are "strict by design," and we will reject any contention that does not satisfy these requirements.

Our rules require "a clear statement as to the basis for the contentions and the submission of ... supporting information and references to specific documents and sources that establish the validity of the contention." Mere "notice pleading" does not suffice.

Contentior~smust fall within the scope of the proceeding - here, license renewal - in which intervention is sought.15 These requirements serve ( I ) to assure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) to establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) to put other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against or oppose.'"

An expert's affidavit is not required to support every contention. The regulation governing admissibility requires an intervenor to present "a concise statement of the alleged facts or expert opinion" supporting his contention and "references to the specific sources and 15 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006) (footnotes omitted).

'"hiladelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974); Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3),

LBP-91-19,33 NRC 397,400 (1991 ).

documents on which [he] intends to rely".17 For some contentions, materiality, specificity, and concreteness can be demonstrated by factual analysis or documentary evidence and no expert affidavit is required. However, where a contention is based on a conclusory allegation, speculation or opinion, and the allegation, speculation, or opinion is not supported by an expert's affidavit, Boards have ruled those contentions inadmissible." Similarly, where a contention seeks to connect a set of facts with a specific result and that result is not self-evident, expert analysis is needed to bridge the gap. And that analysis must be provided at the time the petition is filed.

rr]he mere possibility ... that Petitioner might in the future find an expert who could provide the assistance necessary to define clearly the issues in question and effectively litigate them, does not warrant admitting the contention at this stage of the proceeding, when we must rule on such questions of admissibility based on what has been provided to this point.20

6. PW Failed to Adequately Support Its Challenqes to Enterqy's SAMA Methodoloaies in Contention 3 PW's original Contention 3, as filed, asserted a wide-ranging number of issues regarding the SAMAs performed by Entergy. As originally drafted, PW's Contention 3 stated that:

The Environmental Report is inadequate because it ignores the true off-site radiological and economic consequences at Pilgrim in its Severe Accident Mitigation Alternative (SAMA) analysi~.'~

l710 C.F.R. § 2.309.

l8See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-04-22, 60 NRC 125, 138-140 (2004).

l9Nuclear Management Co., LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 352, aff'd CLI-06-17, 63 NRC 727 (2006); Private Fuel Storage, CLI-04-22, 60 NRC at 139-40.

O' Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 314, 352 n.152 (2006).

'I PW'S Petition at 3.

PW's Contention 3, as filed and proposed, was separated into distinct sections setting forth the underlying bases of PW's dispute with Entergy's SAMA analysis. In proposed Contention 3, PW's challenge to Entergy's SAMAs asserted that (I) "[p]robabilistic modeling can underestimate the true consequences of a severe accident,"22(2) "Entergy used an outdated version of the MACCS2 Code and MACCS2 User Guide, and ignored warnings about the limitation of this (3) "Entergy used incorrect input data to analyze severe accident consequence^,"^^ and (4) "[tlhe faulty SAMA analysis used by Entergy in the Environmental Report caused it to wrongly dismiss mitigation alternative such as adding a filter to the Direct Torus Vent."'= PW subdivided its allegations regarding the SAMA input data into four categories: (I) meteorological data,26(2) demographic data,27(3) emergency response data,

and (4) economic data."

In response to PW's Petition, Entergy asserted that PW Contention 3 impermissibly challenged the Commission's regulations and failed to provide any basis which could establish a 22 Id. at 29 - 31.

23 Id. at 31 - 34.

24 Id. at 34 - 45 (emphasis added).

25 Id. at 45 - 48.

26 See PW's Petition at 34. PW asserted that Entergy's input data for wind speed, wind direction, and dispersion were "incomplete, incorrect or out of date." Id. at 34, 36 - 37.

27 See id. at 38. Although labeled as a dispute with the demographic data, PW's dispute actually concerned whether the population should be divided into directional sectors for determining off-site dose estimates or if the entire population should be considered solely based on distances from Pilgrim. See id.

See id. at 39. PW subdivided emergency response data into evacuation delay time and evacuation speed. Id. at 41 - 42.

29 Id. at 43. PW asserted that the MACCS2 code did not account for the loss of economic activity (especially tourism) and business value. Id. at 44 - 45.

material dispute of fact regarding the adequacy of the SAMA analysis.30The Staff, in its response to the contention, averred that PW had failed to support its assertions with sufficient facts and necessary expert opinion for this highly technical analysis - i.e., PW had failed to meet the basis and specificity requirements set forth in 10 C.F.R. 5 2.309(f)(l )(i) - ( ~ i ) . ~ '

In PW's reply to Entergy's response to its contention, the intervener argued that Contention 3 had been misconstrued by ~ n t e r g y . ~In' clarifying Contention 3, PW asserted that "by inputting incorrect and incomplete data into the accident modeling software, [Entergy] has underestimated the true consequences of a severe accident at Pilgrim and this may have caused it to dismiss mitigation alternatives that are cost benefi~ial."~~ PW continued its clarification stating that the limitations of a probabilistic risk assessment are "not central to Petitioners' Contention, which focuses mainly on the input parameters used in the accident modeling PW further stated that it forewent expert opinion related to technical issues and chose to rely on information "gleaned from scientific, technical, public policy and government reports."35Thus, PW chose to limit Contention 3 to the data entered into the MACCS2 code (i.e. the input data) rather than presenting expert opinion to support a challenge to the Gaussian plume model and use of the MACCS2 Code.

30 Entergy's Answer to the Request for Hearing and Petition to lntervene by Pilgrim Watch and Notice of Adoption of Contention (Entergy's Answer") (June 26, 2006). See also LBP-06-23, 64 NRC at 326.

31 NRC Staff's Response to Request for Hearing and Petition to lntervene Filed by Pilgrim Watch (June 19, 2006). See also LBP-06-23, 64 NRC at 331 - 32.

32 Pilgrim Watch Reply to Entergy Answer to Request for Hearing and Petition to lntervene by Pilgrim Watch ("PW's Reply") at 12 (July 3, 2006).

33 PW's Reply at 12.

34 Id. at 14 (emphasis added). PW also stated that "[tlhe bulk of our Contention [3] highlights input data that were incorrect, incomplete or inadequate." Id. at 16.

35 Id. at 4.

C. The Board Admitted Contention 3 Limited to the Input Data Discussed in PW's Petition In its decision rulirrg on the admissibility of Contention 3,36the Board found that the only adequate support that PW had supplied for its call for further analysis was via its "relevant and significant questions about the input data that appears to have been used in the Pilgrim SAMA analysis regarding (1) the evacuation time estimates, (2) the meteorological data that govern the movement of the plume, and (3) the economic data . ..."37 The Board observed:

... [A]s PW points out in its Reply to Entergy, the focus of the contention, and that part that we admit, is on what input data should be utilized in the SAMA analysis with regard to evacuation times, economic realities, and meteorological patterns, and whether the input data used by the Applicant accurately reflect the respective conditions at issue.38 The Board observed that PW had not "raised admissible challenges as to all input data."39 The Board further recognized that the allowable scope of PW's challenge related to meteorological data was significantly less than the evacuation and economic bases4' The Board emphasized that "any part of the contention or basis [that] may be construed as challenging on a generic basis the use of probabilistic techniques that evaluate risk is inadmi~sible."~~ In order to assure that its ruling was clear, the Board "admitted that part of 36 LBP-06-23, 64 NRC at 338-41.

37 Id. at 338 (emphasis added).

38 Id. at 340.

39 Id. at 339 (emphasis in original). The Board clearly rejected PW assertion that off-site dose estimates be based solely on the person's distance to the plant instead of directional sectors. Id.

40 Id. at 339 - 40. The Board stated that "the evacuation and economic information provided by

[PW] would seem reasonable to indicate different results might have been reached in the SAMA analysis, and the same applies, to an extent, to the meteorological data." Id. (emphasis added).

41 Id. at 340.

Contention 3 having to do with the input data for evacuation, economic, and meteorological inf~rmation,"~' and continued, "[als so limited, the admitted contention reads as follows":

Applicant's 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 cost versus benefits of possible mitigation alternatives, such that further analysis is called for.43 Significantly, the Board omitted from this revision of the contention any challenge to Er~tergy's use of the MACCS2 code or any of the methodologies employed in its SAMA analysis which are incorporated in the MACCS2 code.

D. The Gaussian Model is Not an Input to the MACCS2 Code The Commission's Order inquires, in particular, whether the Board majority properly granted summary disposition with respect to PW's challenges to the use of the straight-line Gaussian plume model to predict the atmospheric dispersion of radionuc~ides.~~ As discussed infra, Contention 3, as admitted, was limited to challenges to Entergy's data inputs into the MACCS2 code.45 Any other issues are, thus, beyond the scope of the contention. PW's Petition to Intervene made it clear that the Gaussian Model is not an input to WIACCS2 Code but, rather, is a methodology incorporated in that code.46 Since the contention was limited to challenges to the input data (i.e., the specific data that were input into the MACCS2 code) and did not extend to challenges to the code or any of its constituent parts (such as the Gaussian 42 Id. at 341 (emphasis added).

43 Id.

44 Commission's Order at 7.

45 See discussion at Section I.C, infra. See also LBP-06-23, 64 NRC at 340 (". .. we admit that part of Contention 3 having to do with the input data for evacuation, economic, and meteorological information.").

46 PW explained that "[tlhe MACCS2 class of atmospheric dispersion codes is based on the Gaussian model of dispersion." PW's Petition at 33 n. 14.

Model) PW's opposition to the motion for summary disposition based on the use of the Gaussian Model, was not within the admitted scope of the contention.

Administrative Judge Young, in her dissent from the Board's Order, asserted that challenges to Gaussian Model were not excluded from the ~ontention.~'However, the dissent recognized that the Gaussian Model is technically a component part of the MACCS2 Code, rather than "input per se in the technical sense."48Similarly, as stated above, PW's Petition for Review explained that "[tlhe MACCS2 class of atmospheric dispersion codes is based on the Gaussian model of d i s p e r ~ i o n . "Entergy

~~ also explained that "MACCS2 is a Gaussian plume model for calculation of radiological atmospheric dispersion and consequence^."^^ Thus, the parties, the Board majority, and the dissent all agreed that the Gaussian Model is not "input data," and, as such, it was beyond the scope of the Contention 3 as admitted. Accordingly, this issue was properly excluded by the Board's Order on summary disp~sition.~'

E. The Board Properlv Excluded Challenges to the MACCS2 Code for Determining Economic Costs The Commission's Order inquires whether the Board majority properly granted summary disposition with respect to PW's challenges to the use of the MACCS2 code for determining 47 LBP-07-13, 66 NRC at 161.

48 Id. The dissent states that "[tlhe [Gaussian Model], while not 'input' per se in the technical sense, is implicitly part of what is 'put in' to the MACCS2 code to produce results about meteorological patterns." Id.

49 PW1sPetition at 33 n. 14.

50 Declaration of Kevin R. O'Kula ("O'Kula Declaration") (May 16, 2007), Exhibit 2, Washington Safety Management Solutions LLC, "Radiological Dispersion and Consequence Analysis Supporting Pigrim Nuclear Power Station Sever Accident Mitigation Alternative Analysis," ("SAMA Report") at 4 (May 2007). Entergy further explained that the MACCS2 Code generally executes in three steps and that the first step, ATMOS, "calculates air and ground concentrations, plume size, and timing information for all plume segments as a function of downwind distance." Id.

5' Further, PW's reference to the Gaussian plume model could not support a genuine dispute of material fact for opposing Entergy's Motion, as discussed infra in Section II.

economic AS stated above, PW's Contention 3 as admitted by the Board, did not include any challenge to the use of the MACCS2 code, itself, to determine economic costs; the only issues admitted in this contention involved the input data used in the analysis, and no issue was admitted concerning Entergy's use of the MACCS2 code i t ~ e 1 . I PW's . ~ ~ Petition argued that Entergy's SAMA analysis was flawed because the economic data were inaccurate and incomplete54and that Entergy failed to properly account for the loss of economic activity (especially from tourism).55 However, none of these assertions challenged Entergy's use of the MACCS2 code.56 Rather, the assertions challenged the data used in Entergy's SAMA analysis, which, as discussed above, were the only challenges permitted under Contention 3. PW did not assert that the MACCS2 Code would fail to properly determine economic costs if it utilized different economic data sets; rather, PW merely asserted that different data should have been used. Thus, any challenge to Entergy's use of the MACCS2 Code was beyond the scope of the contention and was properly rejected by the Board majority.

II. PW Failed to Present a Genuine Issue of Material Fact That Would Affect the SAMA Analysis In CLI-09-11, the Commission requested that the parties address a second question, as to whether PW had presented "a supported, genuine dispute that could materially affect the ultimate conclusions of the SAMA cost benefit analysis?"57 In this regard, the Commission 52 Commission's Order at 7.

53 LBP-06-23, 64 NRC at 338.

54 PWPsPetition at 44.

55 Id.

56 PW supported this dispute regarding the proper economic input data with specific examples of tourism based contributions to Massachusetts and counties located near Pilgrim. Id. PW states that "the SAMA analysis does not account for the true economic costs, including the loss of economic activity, such as the business value of property or tourism . ..." PW's Reply at 24.

57 Commission's Order at 7

requested that the parties address the evidence presented on "(1) whether the use of a variable trajectory model could materially affect whether any additional SAMA may be cost-beneficial; (2) the conservatism of the Gaussian plume model and the MACCS2 code (including the economic model) as applied in the cost-benefit analysis; and (3) whether the cost-benefit analysis "subsumes all reasonably possible meteorological pattern^."^'

The Staff submits that with respect to each of these issues, PW did not present a genuine dispute of material fact, and the Board majority's ruling on summary disposition was appropriate. In this regard, the Staff notes that the majority of PW's articulated disputes with Entergy's SAMA analysis were decided by the Board's previous ruling on the contention's admissibility, which PW has not petitioned the Commission to review.59The Board's limitation of Contention 3, defined the scope of the contention; as a result, the dispute of material facts was limited to the scope of the adrr~ittedcontention. Thus, PW could not properly raise issues in response to a summary disposition motion that were not raised in Contention 3, as admitted.60 Similarly, inasmuch as PW has not appealed from the Board's limitation of the contention's scope, it cannot raise such issues now as a challenge to summary disposition. Here, the Board's decision admitting Contention 3 is clear, and it excluded all disputes except for those involving the data that were input into the SAMA analysis. As discussed above, PW's disputes regarding the use of variable trajectory plume models and the conservatisms of the Gaussian 58 Id.

59 In fact, PW appears to expressly adopt the Board's decision on Contention 3 but argues that Board failed to interpret its own order correctly. See PW's Petition for Review at 11.

60 See Safety Light Corp. (Bloomberg Site Decommission and License Renewal Denials) LBP-95-9, 41 NRC 41 2, 449 n. 167 (1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Plume model are outside the scope of Contention 3 as admitted and cannot now be properly considered as a basis for appeaL6l A. Enterqv's Motion for Summary Disposition of Contention 3 Entergy's motion for summary disposition of Contention 3 was supported by a statement of material facts that were not in issue, declarations by Dr. Thomas Sowdon, Dr. Fred Mogolesko, Dr. Kevin O'Kula, a report by Washington Safety Management Solutions LLC, and a series of sensitivity Entergy's sensitivity studies were performed in order to bound PW's assertions regarding Contention 3, as admitted.63The sensitivity studies included increased evacuation delay time, decreased evacuation speed, effect of wind direction, effect of terrain, distance to evacuate, sheltering-in-place, no emergency actions by the public, and increased economic valuations." Entergy also submitted a Statement of Material Facts detailing 59 facts which it contended were not in dispute.65 However, even assuming that the Board could have considered arguments outside the scope of PW's Contention 3, the application of a variable trajectory plume would have no effect of the ultimate conclusions of the SAMA cost-benefit analysis, as discussed infra at Section 1I.B - 1I.C .

62 Entergy's Motion at 1 - 2. See also Declaration of Thomas Sowdon ("Sowdon Declaration")

(May 15, 2007); Declaration Fred Mogolesko ("Mogolesko Declaration") (May 16, 2007); Declaration Kevin O'Kula ("O'Kula Declaration") (May 16, 2007); O'Kula Declaration, Exhibit 2, Washington Safety Management Solutions LLC, "Radiological Dispersion and Consequence analysis Supporting Pilgrim Nuclear Power Station Severe Accident Mitigation Alternative Analysis ("Pilgrim Report") (May 2007).

63 AS discussed above in Section I, the Board expressly limited Contention 3 to the input data for evacuation times, economic consequences, and meteorological patterns.

64 See O'Kula Declaration, Exhibit 2 at 37 - 38. As evacuation time was not addressed by the Commission's Order, the Staff's discussion of Entergy's Motion and PW's Opposition will not address any issue related to the evacuation time. However, it is important to note that one of the sensitivity studies modeled the effect on personal dose risk ("PDR") and off-site economic risk ("OECR") if no one evacuated or sheltered-in-place. Id. at 27 - 28.

65 Statement of Material Facts (May 17, 2007). The facts were numbered from 1 to 58; however, number 7 appeared twice.

In response to the Applicant's motion, the Staff indicated it was in substantial agreement with the Applicant's statement of material facts.@

In contrast, PW asserted that disputes continued to exist for all 59 facts.67 However, the majority of PW's articulated disputes failed to present alternative input data, but instead repeated a claim that had been previously excluded by the Board, that "the impacts of a severe accident have been drastically minimized by using probabilistic modeling which makes the costs of all severe accidents appear neg~igible."~'In addition to the alleged dispute regarding the MACCS2 Code and Gaussian plume model, PW asserted other disputes which were also outside the scope of Contention 3 as admitted.69 Therefore, because the issues raised by PW in its response to Entergy's motion for summary disposition were insufficiently supported andlor outside the scope of Contention 3, PW did not provide a sufficient basis for the Board to deny the motion for summary disposition, and the Board properly granted the motion.

B. PW Did Not Controvert Entergy's Declarations Renardinq Conservatisms in the MACCS2 Code and the Gaussian Plume Model as Applied in Entergy's SAMA Analysis In its motion for summary disposition, Entergy provided expert opinion showing that varying the input data used in its analysis would not affect its SAMA analysis results, due to the conservative nature of the MACCS2 Code including the Gaussian plume model.70 66 The Staff agreed with Entergy's material facts apart from minor disagreements with 12 material facts See Staff's Statement of Material Facts, Nos. 10, 12, 16, 19, 21, 29, 30, 40, 46, 47, 49, and 50; Affidavit of Joseph A. Jones and Dr. Nathan Bixler Concerning Entergy's Motion for Summary Disposition of Pilgrim Watch Contention 3, 77 7-14 and 16-19.

67 PW's Opposition at 5 - 49.

See LBP-06-23, 64 NRC at 340; PW's Opposition at 6, 7, 8, 31, 32, 33, 34, 35, 45, 48, and 49.

69 See, e.g., PW's Opposition at 44 (arguing for increased cancer risks). This argument forms the basis for PW's Contention 5, which was rejected in its entirety by the Board. LBP-06-23, 64 NRC at 347 - 48.

70 O'Kula Declaration at 7 26, Exhibit 2 at 25 - 28 and 37 - 38.

An examination of PW's disputes with Entergy's statement of material facts shows that PW did not controvert any material fact with more than bare denials and general assertions concerning the issues which were properly before the Board as part of Contention 3. PW stated that "[tlhe MACCS2 Gaussian plume model results may be as stated, I... in good agreement with and generally more conservative than, those obtained by more sophisticated models that address variable meteorological and terrain effects,' but, and this is the important point, those studies were not performed in coastal locations so that is an irrelevant statement - an apple to oranges compari~on."~' Although PW argued that Gaussian plume model is inappropriate, PW's experts did not disagree that it produces conservative results.72 In this regard, the Board took particular note that Dr. Egan, PW's expert, "did not . .. challenge the statements by Entergy that the results of its SANlA analyses are cor~servative."~~ Similarly, PW's other experts failed to articulate actual disputes. PW offered its attorney's argument that the MACCS2 Code severely underestimates the resulting costs if you assume that the winds would equally expose the entire surrounding population 10, 20, and 50 miles.74Mr. Chanin, another proffered PW expert, simply denied that MACCS2 Code could estimate cost.75Thus, the Board correctly concluded that Mr.

Chanin did not "identify any specific error or flaw in MACCS2 or any input or assumptions made by [Entergy] in its use in this pr~ceeding."~"

It is well established that a party opposing a motion for summary disposition cannot rely on mere allegations or denials of the moving party's facts; rather, the non-moving party must set 71 See, e.g., PW's Opposition at 14.

72 Id. at 13.

73 LBP-07-13, 66 NRC at 151 n. 21.

74 PW's Opposition at 43. This assumption is simply impossible.

75 Id. at 36.

76 LBP-07-13, 66 NRC at 149.

forth specific facts demonstrating that a genuine issue of material fact exists.77 Bare assertions and general denials, ever1 by an expert, are insufficient to oppose a properly supported motion for summary d i s p ~ s i t i o n .Although

~~ the burden is on the moving party to show there is no genuine issue of material fact, the non-moving party must controvert any material fact proffered by the moving party or that fact will be deemed admitted.79 In its ruling on summary disposition, the Board recounted each affidavit and document offered by PW to establish its claim that a genuine dispute of a material fact existed with regard to Contention 3. The Board concluded (without weighing the evidence or credibility of the witnesses) that PW failed to provide any evidence that controverted Entergy's material fact assertions. In sum, the Board did not require PW to prove its case and it did not improperly weigh evidence." Because PW did not effectively controvert any of the material .l:acts in Entergy's Statement of Material Facts, those facts may be deemed to be admitted." Further, because PW failed to show that a material fact remained in dispute, the Board properly granted 77 See 10 C.F.R. §§ 2.710(b), 2.1205; Advanced Medical Sys., CLI-93-33, 38 NRC 98, 102 (1993).

78 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-05-04, 61 NRC 71, 81 (2005).

79 Advanced Medical Sys., CLI-93-33, 38 NRC at 102-03.

80 The dissent relied on federal appellate cases that discuss situations in which it is appropriate for a fact-finder to draw factual inferences to support their view. See LBP-07-13, 66 NRC at 154 (citing United Paperworkers lnternational Union, Local 14, AFL-C/O-CLC, et al., v. International Paper Co., 64 F.3d 28, 33-4 (1st Cir. 1995) (factual inferences of district court not legal error because the Union could not show facts that parties intended recall agreement to expire); Reich v. John Alden Life Ins. Co., 126 F.3d 1 , 6 ( I st Cir. 1997) (the district court did not err in conducting some differential fact-finding in granting summary judgment where parties submitted the case on cross motion with stipulated facts, and only a question of law remained). The Board did not draw any improper factual inferences but, instead, found that PW failed to controvert the facts presented by Entergy. Board's Order at 154.

81 Advanced Medical Sys., CLI-93-33, 38 NRC at 102-03.

Entergy's motion.82 Under 10 C.F.R. § 2.710(d)(2), PW's failure to meet its burden warranted the granting of Entergy's motion as a matter of law.

C. PW Did Not Show That A Variable Traiectorv Model Would Alter the SAMA Cost-Benefit Analvsis In support of its motion for summary disposition of Contention 3, Entergy provided a series of bounding analyses that PW failed to contradict with any specific facts to show that the application of different meteorological models would result in altered conclusions regarding the SAMA cost-benefit analysis. Instead, PW simply asserted that Entergy should have used a multi-trajectory plume model instead of the straight-line Gaussian model built into the MACCS2 code - but it failed to support this general assertion with any showing that the use of such a model would produce different SAMA analysis conclusion^.^^ Thus, PW did not meet its burden to set forth specific facts demonstrating that a genuine issue of material fact exists.84 Further, Entergy ran two sensitivity studies to determine the effect of wind direction variation on slow release events, and the effects of variations in the altitude of the radioactive release.85 Both studies showed only marginal changes in the population dose risk ("PDR) and 82 Board's Order at 154.

83 PW's continued recitation of its claim that a multi-trajectory plume model should be used demonstrates a misunderstanding of the methodology of a SAMA analysis. A SAMA analysis is a probabilistic assessment of multiple postulated events, which models the frequency weighted average of unknown events occurring at unknown times in the future with unknown environmental conditions. O'Kula Declaration, Exhibit 2 at 16. In place of the Applicant's approach, PW wishes to use a multi-trajectory plume model in order to better predict a specific event and provide additional warning and direction to the potentially affected population. PW states that "By relying on the steady-state, straight-l~neGaussian model to construct a 'key hole' planners are likely to make the wrong call - send citizens into a plume; tell folks to stay put when they should evacuate; or tell them to evacuate when they should shelter." PW's Petition, Exhibit C at 33. The purpose of a SAMA analysis, however, is not to provide the appropriate protective response recommendation for a specific emergency situation, but to assist in understanding whether additional mitigative measures may be cost effective for a facility.

84 See 10 C.F.R. §§ 2.71 0(b), 2.1 205; Advanced Medical, CLI-93-33, 38 NRC at 102.

O'Kula Declaration at 719.

the offsite economic cost risk ("OECR).86 In sum, the meteorological weather patterns showed little effect on the consequences of a severe a~cident,'~ consistent with Entergy's assertions that the Gaussian model produced conservative results for the SAMA cost-benefit analysis." Thus, because the Gaussian model produces conservative results, Entergy showed that the use of a variable trajectory plume would not alter whether any SAMA is determined to be cost-beneficiaLBgPW failed to provide any specific facts or expert opinion on this issue; to the contrary, PW readily acknowledged that it "cannot prove that the deficiencies in meteorological data used in the MACCS2 would, by themselves, materially affect the results of the analysis ...."" Thus, PW did not demonstrate any basis for denying summary disposition on this issue.

D. The Evidence Showed That Other Reasonable Meteorolonical Patterns Would Have Little Effect on the SAMA Cost-Benefit Analvsis.

A close reading of Entergy's summary disposition motion, demonstrates that the cost-benefit analysis (including the conservatisms in the economic model of the MACCS2 code as 86 Id.

87 See id.

See PW's Opposition at 13. PW's own experts agree that the straight-line Gaussian model produces conservative results. Id. Dr. Egan, PW expert, did not dispute the conservative results. One PW's experts utilized the MACCS2 code model for their analysis of spent fuel pool fires and even compared results to a simpler model to the MACCS2 code model as a validation. Id.

O'Kula Declaration at 7 17.

PW's Reply at 22 (emphasis in original). PW stated that "the use of better weather monitoring for the purposes of SAMA would also allow better predictions of plume dispersion and emergency planning in the event of an actual severe accident and as such would be a reasonable economic investment." Id. As stated above, however, the purpose of a SAMA analysis is not to fashion a response to an actual emergency, but to assist in assessing in advance, the cost-effectiveness of any additional mitigation measures.

implemented by Entergy) in this case substantially reduces any effect resulting from other reasonably possible meteorological patterns and models.g1 For its part, PW argued that the effects of using a variable trajectory model would alter the cost benefit analysis.92This claim was not supported by PW's experts. Rather, PW assumed that the entire population within a known radius of the plant, i.e. 10, 20, and 50 miles, was equally affected by the modeled accident. PW assumed that the entire population is exposed to same concentrated accident plume regardless of location, wind direction, and it ignored the effects of radioactive decay, dispersion, and dilution.93 Because this assumption was not based on any statement made by PW's experts and was not shown to be plausible, it could not provide any basis to controvert Entergy's statement of material facts.

Moreover, Entergy's experts showed that "[tlhe average contribution from long term dose, i.e. from 8 days to 30 years, to the total population dose is approximately 83%."94 The majority of the population dose risk ("PDR) results occur long after any meteorological effects have subsided for the purpose of a SAMA A n a l y ~ i s .PW ~ ~ did not provided any evidence contradicting or disputing this fact. Similarly, Entergy's experts showed that the major factors for off-site economic risk ("OECR) are also controlled by parameters affecting the long-term phase of the accident, i.e. long after the accident has o~curred.'~PW's experts did not dispute 91 See discussion supra at Section 1I.B - 1I.C.

92 PW's Opposition at 43.

93 Compare PW's Opposition at 43.

94 O'Kula Declaration, Exhibit 2 at 8 (emphasis added).

95 O'Kula Declaration, Exhibit 2 at 8.

96 Id. at 11. Entergy's expert concluded that "[flor population dose and off-site economic costs, the major factors are the size of the source term (i.e., amount of radioactivity released), the parameters controlling the long term phase after the accident, and the population levels impacted in the 20 mile to 50 mile spatial region. Early or emergency phase effects and effects to the close-in population (within 20 (continued. . .)

this fact in response to Entergy's motion. Similarly, Entergy's sensitivity studiesg7showed that the largest change to population dose risk ("PDR"), which was produced by eliminating evacuation and sheltering in place, resulted in a nominal increase of 6% to the PDR." Because the PDR only accounts for 33% of the overall costs, the overall cost only increased by 2%." In order for the next mitigating alternative to become cost beneficial, the overall benefit would have had to increase by 1 0 0 % . ' ~ ~

Finally, Entergy also conducted sensitivity studies which substantially increased economic valuations based on the gross county product, which captures intangible assets and income produced by the real property. These substantial changes in economic input parameters only showed changes to the cost-benefit analysis of less than 2%.1°' PW did not controvert the findings or contradict the input parameters. Rather, PW only provided certified tables of assessed property values, which were accounted for in Entergy's base case analysis and sensitivity studies.'02 Because PW failed to controvert the conservatisms of the Gaussian model, Entergy's sensitivity studies showed that the SAMA cost beneficial analysis are insensitive to large miles of the PNPS ("Pilgrim Nuclear Power Station") can be changed by assumptions and parameter values in the early phase but their contribution to the overall PDR and OECR is likely to be small." Id.

97 Sensitivity studies are used to determine which input data has the largest effect on the cost-benefit analysis, among other uses.

O'Kula Declaration at 7 26, Exhibit 2 at 25 - 28.

99 O'Kula Declaration at 7 26.

loo Id. "For the SAMA that is closest to becoming potentially cost effective, ... the baseline benefit for this SAMA ($2,405,508) is less than half of the estimated cost of implementing the SAMA

(>$5,000,000). Accordingly, the baseline benefit, or the total cost avoided, would have to increase by more than 100% before [it] would become cost beneficial." Id. at 7 44.

lo' See O'Kula Declaration, Exhibit 2 at 37 - 38 lo* LBP-07-13, 66 NRC at 153.

changes in the input data including changes in meteorological, economic, and evacuation time inputs. The use of a different meteorological model in place of the Gaussian model for the SAMA analysis would not result in different conclusions regarding whether any SAMA is cost beneficial. Thus, PW did not meet its burden of demonstrating that there remained a material fact in issue and the Board properly granted Entergy's motion for summary disposition on this contention.

CONCLUSION For the reasons articulated by the Board's ruling on the admissibility of contentions in LBP-06-23, and the Board majority's decision in LBP-07-13 granting summary disposition, and as set forth above, the Commission should affirm the Board's rulings on PW's Contention 3.

Respectfully submitted, Susan Uttal Brian G. Harris Andrea' Z. Jones Counsel for NRC Staff Dated at Rockville, Maryland This 25th day of June, 2009

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ENTERGY NUCLEAR GENERATION COMPANY AND ENTERGY NUCLEAR Docket No. 50-293-LR OPERATIONS, INC. )

(Pilgrim Nuclear Generating Station)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S INITIAL BRIEF IN RESPONSE TO CLI-09-11 (MEMORANDUM AND ORDER (REQUEST FOR ADDITIONAL BRIEFING))" 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 25'h day of June, 2009.

Administrative Judge Administrative Judge Richard F. Cole Paul 6. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 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: Richard.Cole@nrc.qov E-mail: Paul.Abramson@nrc.gov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: 0-16G4 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.Resource@nrc.~v E-mail: Ann.Younq@nrc.qov Atomic Safety and Licensing Board Office of the Secretary Mail Stop: T-3F23 Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: 0-16G4 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission (VIA INTERNAL MAIL ONLY) Washington, DC 20555-0001 E-mail: Hearinn.Docket@nrc.qov

Sheila Slocum Hollis* Terence A. Burke, Esq.*

Duane Morris LLP Entergy Nuclear 1667 K Street, NW, Suite 700 1340 Echelon Parkway Washington, DC 20006 Mail Stop: M-ECH-62 E-mail: sshollis@duanemorris.com Jackson, MS 39213 E-mail: tburke@enterqy.com Mary Lampert* David R. Lewis, Esq*.

148 Washington Street Paul A. Gaukler, Esq.

Duxbury, MA 02332 Pillsbury, Winthrop, Shaw, Pittman, LLP E- mail: marv.lampert@comcast.net 2300 N Street, NW Washington, DC 20037-1 137 E-mail: david.lewis@pillsburvlaw.com paul.qaukler@pillsburvlaw.com Chief Kevin M. Nord* Town Manager*

Fire Chief & Director Duxbury Emergency Town of Plymouth Management Agency 11 Lincoln St.

668 Tremont Street Plymouth, MA 02360 Duxbury, MA 02332 E-mail: msylvia@,townhall.plvmouth.ma.us E-mail: nord@town.duxburv.ma.us Richard R. MacDonald* Matthew Brock, Esq.*

Town Manager Assistant Attorney General, Chief 878 Tremont Street Environmental Protection Division Duxburv. MA 02332 Office of the Attorney General E-mail: - macdonald@town.duxburv.ma.us One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us Counsel for the NRC Staff

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