ML093070521

LB Memorandum and Order (Ruling on Motions for Summary Disposition)

ML093070521
Person / Time
Site:	Indian Point
Issue date:	11/03/2009
From:	Lawrence Mcdade Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
07-858-03-LR-BD01, Indian Point 2 and 3, RAS E-297
Download: ML093070521 (19)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of ENTERGY NUCLEAR OPERATIONS, INC.

(Indian Point Nuclear Generating Units 2 and 3)

Docket Nos. 50-0247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BD01 November 3, 2009 Memorandum and Order (Ruling on Motions for Summary Disposition)

Before this Licensing Board are two separate motions for summary disposition, one filed by the Applicant, Entergy Nuclear Operations, Inc. (Entergy) on August 14, 2009, seeking the summary disposition of New York State Contention 8 (NYS-8), and the other filed by the State of New York (New York) on August 28, 2009, seeking the summary disposition of New York State Contention 16/16A (NYS-16/16A). The Board hereby denies each motion because each movant has failed to establish that there are no genuine issues of material fact remaining.

Instead, each contention presents a battle of the experts requiring the Board to weigh opposing expert testimony at an evidentiary hearing. The Boards decision is explained below.

I.

Legal Standards for Summary Disposition In Subpart L proceedings, Licensing Boards are directed to apply the standards for summary disposition set forth in Subpart G,1 which require the moving party to demonstrate there is no genuine issue as to any material fact and that it is entitled to a decision as a matter of law.2 1 10 C.F.R. § 2.1205(c).

2 Id. § 2.710(d)(2).

In a motion for summary disposition, the moving party bears the burden to demonstrate the absence of a genuine issue as to any material fact.3 Further, the Board must view the record in the light most favorable to the party opposing such a motion.4 In turn, the non-moving party may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue.5 Nevertheless, the non-moving party need not show likelihood of success on the merits - only that there is a genuine issue of fact to be evaluated at the evidentiary hearing.6 When the crux of the factual disagreement is a battle of the experts, summary disposition is unsuitable.7 More precisely, [r]egardless of the level of the dispute, at the summary disposition stage, it is not proper for a Board to choose which expert has the better of the argument.8 II.

Entergys Motion for Summary Disposition of New York States Contention 8 A. Procedural

Background

On July 31, 2008, this Licensing Board admitted NYS-8 insofar as it alleges that:

Entergy has not proposed an AMP [Aging Management Plan] for each electrical transformer in IP2 [Indian Point 2] and IP3 [Indian Point 3] required for compliance with 10 C.F.R. §§ 50.48 and 50.63. This does not include transformer support structures.9 On August 14, 2009, Entergy filed a motion for summary disposition of NYS-8.10 The NRC Staff 3 Id. § 2.325; Advanced Med. Sys., Inc. (One Factory Row, Geneva, Ohio, 44041), CLI-93-22, 38 NRC 98, 102 (1993).

4 Advanced Med. Sys., CLI-93-22, 38 NRC at 102 (citing Poller v. Columbia Broadcasting Sys.,

Inc., 368 U.S. 464, 473 (1962)).

5 Id.

6 Id.

7 See Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-06-5, 63 NRC 116, 122 (2006) (citing Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005)).

8 Id. (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP 39, 54 NRC 497, 510 (2001)).

9 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 218 (2008).

10 Applicants Motion for Summary Disposition of New York States Contention 8 (Electrical Transformers) (Aug. 14, 2009) [Entergy MSD NYS-8].

filed an answer supporting Entergys motion on September 14, 2009.11 New York filed its response, opposing the motion, on September 23, 2009.12 B.

Entergys Motion Relying on its Statement of Material Facts and declarations by its experts as factual support for its motion,13 Entergy argues that summary disposition is appropriate here because there is no genuine issue of material fact, and that Entergy is entitled as a decision in its favor as a matter of law.14 According to Entergy, 10 C.F.R. § 54.21(a)(1)(i) excludes from aging management review (AMR) those plant-specific systems, structures, and components that perform their intended functions through a change in configuration properties.15 Entergy reasons that since all transformers perform their intended functions through changes in their voltage and current properties; i.e., a change in state,.... they are properly excluded fro AMR requirements in Part 54, and [thus] no AMP is required.

m the out 16 Entergy alleges that New York has not provided sufficient information to support its claims that transformers function with moving parts or without a change in configuration or properties and therefore require an AMP under 10 C.F.R. Part 54.17 Moreover, Entergy contends, the exclusion of transformers from AMR under Part 54 is a settled and long-standing NRC Staff position, and consistent with the regulatory intent of the License Renewal Rule and directly apposite Commission guidance.18 Specifically, Entergy points to the Commissions Statement of Consideration for the revisions to Part 54, which 11 NRC Staffs Answer to Applicants Motion for Summary Disposition of New York Contention 8 (Sept. 14, 2009) [NRC Staff Answer NYS-8].

12 Response of the State of New York to Entergys Summary Disposition Motion and NRC Staffs Supporting Answer (Sept. 23, 2009) [New York Response].

13 See Statement of Material Facts (Aug. 14, 2009) [Entergy Statement of Material Facts];

Declaration of Dr. Steven E. Dobbs in Support of Entergys Motion for Summary Disposition of New York State Contention 8 (Aug. 12, 2009) [Dobbs Decl.]; Declaration of John W. Craig in Support of Entergys Motion for Summary Disposition of New York State Contention 8 (Aug. 12, 2009) [Craig Decl.]; Declaration of Roger B. Rucker in Support of Entergys Motion for Summary Disposition of New York State Contention 8 (Aug. 12, 2009) [Rucker Decl.].

14 Entergy MSD NYS-8 at 1-2.

15 Id. at 2.

16 Id.

17 Id.

18 Id.

declared that plant structures and components that have passive functions generally do not have performance and condition characteristics that are as readily monitorable as those that perform active functions.19 Thus, Entergy asserts that AMR is required under the License Renewal Rule for plant structures and components with passive intended functions but not those with active intended functions.20 Entergy and its experts construe transformers as active rather than passive components because the voltages and currents associated with a transformer are integral properties of a transformer, the voltages, currents, and the associated magnetic field all must vary in time to achieve transformer operation, and the voltage and currents vary whenever load conditions change.21 Therefore, according to Entergy, all transformers perform their intended functions through a change in state.22 According to the Applicant, since the NRC Staff has excluded transformers from AMR in License Renewal Applications over the last decade, and met no disapproval from the Commission along the way, Entergys interpretation that transformers need no AMR is correct.23 Furthermore, Entergy likens transformers to plant components like transistors that are not subject to an AMP under 10 C.F.R. Part 54 since [t]he ability of these items to perform their intended functions is directly indicated by one or more measurable properties, and their serviceability is determined by making direct measurements while the items perform their intended function.24 19 60 Fed. Reg. 22,461, 22,477 (May 8, 1995).

20 See Entergy MSD NYS-8 at 17-19; Dobbs Decl. ¶¶ 36-42; Craig Decl. ¶ 9.

21 Entergy Statement of Material Facts ¶ 6 (citing Dobbs Decl. ¶¶ 16, 21-22).

22 Id. (citing Dobbs Decl. ¶ 52).

23 Entergy MSD NYS-8 at 28 (citing Craig Decl. ¶¶ 28-31; SECY-01-0157, Rulemaking Issue (Negative Consent), License Renewal Rulemaking (Aug. 17, 2001) (ADAMS Accession No. ML011990176); SRM-SECY-01-0157, Staff Requirements Memorandum, SECY-01-0157, License Renewal Rulemaking (Sept. 5, 2001) (ADAMS Accession No. ML012480330); NUREG-1705, Safety Evaluation Report Related to the License Renewal of Calvert Cliffs Units 1 and 2, Docket Nos. 50-317 and 50-318, at 2-92, 2-98, 2-102 (Dec. 1999) (ADAMS Accession No. ML003674053); Status of License Renewal Applications and Industry Initiatives, available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications.html).

24 Entergy MSD NYS-8 at 22 (citing 10 C.F.R. § 54.21(a)(1)(i); Dobbs Decl. ¶¶ 31-35, 49-51; Craig Decl. ¶ 16).

C.

NRC Staffs Answer The NRC Staff agrees with Entergys position that transformers are active plant components and thus do not require an AMP pursuant to 10 C.F.R. Part 54.25 The NRC Staff bases its concurrence with Entergy on expert affidavits regarding the Commissions regulations and long-standing regulatory guidance.26 D.

New Yorks Answer New York argues that the Board should deny Entergys motion because there is a genuine issue of material fact regarding whether transformers are indeed passive or active plant components subject to AMR.27 Like Entergy, New York explains its own interpretation of whether transformers are the type of component requiring an AMP under 10 C.F.R. § 54.21.28 Specifically, New Yorks expert Paul Blanch states that while the voltage and currents in a transformer may change during operation, a transformer itself does not change when it is in operation, nor does a transformer contain any moving parts for its basic function.29 New York finds further support for its classification of transformers as passive or static (rather than active) in several leading authorities on electrical components.30 Moreover, Mr. Blanch takes issue with Entergys assertion that monitoring programs (in lieu of AMPs) can effectively address the effects of aging over time, declaring instead that with the passage of time transformers age and can experience failure and that aging degradation of some constituent parts of transformers is not detected by performance monitoring.31 Examples cited of such failure include: deterioration of insulation, development of internal shorts, collection of moisture in the components, loosening of connections, and loss of coolant, an accumulation of oil, dirt, 25 NRC Staff Answer NYS-8 at 7-9.

26 Id. at 8.

27 See New York Response at 1.

28 See id. at 9.

29 Id. at 11 (citing Declaration of Paul Blanch ¶¶ 17, 18, 32, 33 (Sept. 22, 2009) [Blanch Decl.]).

30 Id. at 12 (referencing Harlow, Electric Power Transformer Engineering 2-1 (2d ed. 2007);

IEEE Standard Dictionary of Electrical and Electronic Terms 1131 (6th ed. 1996)).

31 Id. at 17-18 (citing Blanch Decl. ¶¶ 50, 51).

or salt spray, or corrosion.32 Furthermore, New York maintains that the NRC Staffs opinions and practices are not binding in deciding whether an AMP is required.33 Thus, New York reasons that transformers are the type of plant component for which 10 C.F.R. Part 54 mandates an AMP.34 New York presents such interpretations of Part 54s applicability to transformers as the existence of a dispute over a material fact for which granting summary disposition is unwarranted.35 E. Board Decision The Board denies Entergys motion for summary disposition because, based on the declarations submitted by the parties, there remains a genuine issue of material fact - whether the electrical transformers within the scope of this license renewal proceeding36 perform their function without a change in their configuration or properties.

The Board notes several differences in the competing expert opinions submitted by the parties. For example, citing their own experts, NRC Regulatory Guides, NRC Staff correspondence, and Nuclear Energy Institute documents, Entergy and the NRC Staff allege that transformers change in voltage and current render them active components capable of monitoring and thus exempt from AMR.37 New Yorks expert asserts, however, that a transformer is the type of plant component that does not change its state to qualify it as an active component exempt from AMR.38 Moreover, New York counters Entergys citation of NRC Regulatory Guides, NRC Staff correspondence, and Nuclear Energy Institute documents by arguing that such documents are not binding.39 32 Id. (citing Blanch Decl. ¶ 50).

33 Id. at 20-24.

34 Id. at 19-20.

35 Id. at 1.

36 Structures and components that are safety-related or whose failure could affect safety-related functions. 10 C.F.R. § 54.4.

37 See Entergy Statement of Material Facts ¶¶ 6-11, 23-35 (citations omitted); NRC Staff Answer NYS-8, Affidavit of Kimberly J. Green and Roy K. Mathew ¶¶ 7-8 (Sept. 14, 2009).

38 New York Response at 9-20.

39 Id. at 20-24.

In ruling on this motion the Board may not weigh the evidence, and must view the record in the light most favorable to the party opposing such a motion.40 Here, New York submitted a declaration from Paul Blanch, a qualified expert in electrical engineering, who has more than thirty-five years of experience in the construction and operation of nuclear power plants.41 He describes transformers as static electrical devices that do not contain moving parts and operate without a change in their configuration or properties.42 Mr. Blanch also explains why, in his expert opinion, transformers are more similar to the category of components that are expressly listed in 10 C.F.R. § 54.21(a)(1)(i) as requiring AMPs such as heat exchangers, steam generators, reactor vessel and containment,43 than they are to those components that are expressly excluded from this requirement such as transistors.44 In support of its motion, Entergy presented detailed declarations from qualified engineers, Dr. Dobbs, Mr. Craig, and Mr. Rucker, who explain why, in their opinion, transformers perform their intended function with a change in properties,45 why transformers are more similar to the category of components that are expressly listed in 10 C.F.R.

§ 54.21(a)(1)(i) as excluded from AMPs,46 and why AMPs should not be required for transformers.47 These declarations are directly in conflict with the statements of New Yorks expert and, if accepted, would support judgment for the Applicant.

As explained above, when the Board is presented with a battle of the experts, summary disposition is unsuitable.48 [A]t the summary disposition stage, it is not proper for a Board to choose which expert has the better of the argument.49 Accordingly, without any 40 Advanced Med. Sys., CLI-93-22, 38 NRC at 102 (citing Poller, 368 U.S. at 473).

41 Blanch Decl. ¶¶ 3-11.

42 Id. ¶¶ 17-18, 25.

43 Id. ¶¶ 27-32.

44 Id. ¶¶ 36-40.

45 See Dobbs Decl. ¶ 31.

46 Id. ¶¶ 31-35; Craig Decl. ¶ 16.

47 Dobbs Decl. ¶¶ 43-47; Craig Decl. ¶¶ 20-34; Rucker Decl. ¶¶ 17-21.

48 See Vermont Yankee, LBP-06-5, 63 NRC at 122 (citing Phillips, 400 F.3d at 399).

49 Id. (citing Private Fuel Storage, LBP-01-39, 54 NRC at 510).

evaluation of the relative strength of either partys argument, based on the record before us, the Board denies Entergys motion seeking the summary disposition of NYS-8.

III.

New Yorks Motion for Summary Disposition of New York States Contention 16/16A A. Procedural

Background

On July 31, 2008, this Licensing Board admitted NYS-16 to the extent that it addresses the adequacy of the atmospheric transport and dispersion (ATD) model used in the Indian Point SAMA analysis by challenging:

whether the population projections used by Entergy are underestimated. And also, within the framework of the bounding assumptions and conservative inputs used in MACCS2 SAMA analyses,... to the extent that it challenges whether the ATMOS module in MACCS2 is being used beyond its range of validity -

beyond 31 miles (50 kilometers) - and, whether use of MACCS2 with the ATMOS module leads to non-conservative geographical distribution of radioactive dose within a 50-mile radius of [Indian Point].50 Following the NRC Staffs release of the Draft Supplemental Environment Impact Statement (Draft SEIS), New York submitted NYS-16A, asserting that the Draft SEIS improperly accepted Entergys population dose estimates of radiation released in a severe accident, even though the Board admitted NYS-16.51 The Board subsequently admitted NYS-16A and consolidated it with NYS-16.52 On August 28, 2009, New York filed a motion for summary disposition of NYS-16/16A.53 Entergy submitted its answer opposing New Yorks motion on September 21, 2009.54 The NRC Staff submitted its response, opposing the motion, on October 13, 2009.55 50 Indian Point, LBP-08-13, 68 NRC at 112.

51 State of New York Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement at 9 (Feb. 27, 2009).

52 Licensing Board Order (Ruling on New York States New and Amended Contentions) (June 16, 2009) at 6-7 (unpublished).

53 State of New Yorks Motion for Summary Disposition On Use of Straight-line Gaussian Air Dispersion Model for the Environmental Impact Analysis of Significant Radiological Accidents at Indian Point and NYS Contention 16/16A (Aug. 28, 2009) [New York MSD NYS-16/16A].

54 Applicants Answer Opposing New York States Motion for Summary Disposition on Contention NYS-16/16A (Regarding Use of ATMOS Module of MACCS2 in SAMA Analyses)

(Sept. 21, 2009) [Entergy Answer NYS-16/16A].

55 NRC Staffs Response in Opposition to State of New Yorks Motion for Partial Summary Disposition of NYS Contention 16/16A (Oct. 13, 2009) [NRC Staff Response NYS-16/16A].

B.

New Yorks Motion New York asserts that summary disposition should be granted regarding the issue of whether ATMOS is a reliable air dispersion model for use in the MACCS2 SAMA analysis for Indian Point.56 New York, with the support of its expert, Dr. Bruce Egan,57 argues that a one-dimensional, straight-line Gaussian ATD model like ATMOS, cannot accurately model the impacts of the complex terrain features surrounding Indian Point to calculate the movement of the plume of radiation from a hypothetical severe accident.58 New Yorks basic argument is that the ATMOS module incorporated into the MACCS2 code is not adequate for the SAMA analysis conducted at Indian Point, because it uses an archaic, outdated, and a too-simplistic representation for air dispersion in its assessment. New York suggests that this can lead to a substantial difference in the number of people exposed if there is an accident.59 The key to New Yorks motion is its assertion that it is a universally accepted fact that a straight-line Gaussian plume model, like ATMOS, cannot reliably model air dispersion where there are complex terrain features.60 New York cites to a presentation given by the NRC Staff that reached the same conclusion,61 thereby demonstrating that summary disposition is appropriate, according to New York, because an admission by a party is admissible evidence against that party.62 Beyond the recent presentation, New York also discusses other instances where the Department of Energy, the NRC, and the Environmental Protection Agency (EPA) have recognized the inappropriateness of using a straight-line Gaussian model like ATMOS for 56 New York MSD NYS-16/16A at 25.

57 Declaration of Bruce A. Egan, Sc.D. (Aug. 28, 2009) [Egan Decl.]. New York also included a Statement of Material Facts Not in Dispute.

58 New York MSD NYS-16/16A at 9-10; Egan Decl. ¶¶ 18-42.

59 New York MSD NYS-16/16A at 11.

60 Id. at 13. See also Egan Decl. ¶¶ 35-59.

61 New York MSD NYS-16/16A at 13 (citing Stephen F. LaVie, Senior Emergency Preparedness Specialist, U.S. NRC, Power Point Presentation: Whats in the Black Box Known as Emergency Dose Assessment?, prepared for the 2009 National Radiological Emergency Planning Conference Dose Assessment Workshop, Part 2, Dispersion (ADAMS Accession No. ML091050257).

62 Id. at 14 (citing Rule 801(d)(2) of the Fed. R. of Evid.).

complex terrain sites like Indian Point.63 Finally, New York and Dr. Egan discuss other models that they assert would be more reliable than ATMOS for modeling the dispersion of air discharges from Indian Point.64 New York contends that the NRC Staff must select a different model than ATMOS in order to meet its obligation to conduct a reliable analysis of severe accident mitigation alternatives.65 C.

Entergys Answer Entergy opposes New Yorks motion for summary disposition. Entergy asserts that the purpose of SAMA analysis is to assist in understanding whether additional mitigation measures may be cost-effective for a facility, based on regionally - and time - averaged quantities, and that MACCS2 provides results in terms of offsite population dose and offsite economic cost that are used to compute the offsite risk categories.66 Entergy counters New Yorks arguments by saying that the approach used in the Applicants Environmental Report (ER) and in the NRC Staffs Draft SEIS is sufficient because a SAMA does not require the degree of sophistication and precision for environmental impact statements that is provided by modern, three-dimensional ATD models.67 While arguably lacking site-specific comparisons, Entergy claims that the use of ATMOS for the SAMA generally results in an accuracy that is equivalent to the alternative models suggested by New York, and that the results would not be improved by the substitution of these meteorological models into the analysis for Indian Point.68 The Applicant points out that the SAMA analyses for Indian Point followed the recommendations found in NEI 05 guidance that has been approved by the NRC69 - and that the nuclear industry has accepted the straight-line Gaussian plume model used in MACCS2 as a reasonable analytical approach for SAMA analysis.70 MACCS2, according to Entergy, is unique in its ability to model 63 See id. at 15-22 (internal citations omitted).

64 Id. at 22-24; Egan Decl. ¶¶ 24-30.

65 New York MSD NYS-16/16A at 24.

66 Entergy Answer NYS-16/16A at 9.

67 Id. at 9-11.

68 Id. at 21-23.

69 Id. at 9.

70 Id. at 10.

the many attributes of interest for reactor accident risk studies and is the only program capable of meeting all of the analytical requirements of a SAMA analysis, while the other models are used for other regulatory purposes and are not suitable for SAMA analysis.71 Entergy argues that the motion should be denied because: (1) New York ignores the scope of the contention as admitted by the Board; (2) New York fails to demonstrate that using a different code would have a material effect on the results of the SAMA analysis; and (3) material facts remain in dispute.72 Entergy maintains that New York is trying to force Entergy and the NRC Staff to undertake new SAMA analyses that deploy an EPA-approved, variable trajectory plume dispersion model in place of ATMOS, a form of relief that Entergy asserts is beyond the scope of the admitted contention, which was limited to the bounding assumptions and conservative inputs used in the SAMA analyses.73 Further, citing the standard articulated in Pilgrim,74 Entergy argues that the motion should be dismissed because New York did no address the question of whether any additional SAMA should have been identified as potentially cost-beneficial.

t 75 Finally, Entergy details the numerous material factual disputes that it contends remain regarding NYS-16/16A. First, Entergy asserts that the straight-line Gaussian plume dispersion model has not been universally rejected by the regulatory and scientific communities.76 Entergy disputes New Yorks reliance on a NRC presentation for the conclusion that the NRC Staff has admitted that ATMOS is unsuitable for Indian Point. According to Entergys experts, Dr. Kevin OKula and Grant Teagarden, the presentation is not relevant to the use of ATMOS in SAMA cost-benefit applications.77 Second, Entergy argues that New Yorks claim that ATMOS 71 Id. at 11.

72 Id. at 2-3.

73 Id. at 15.

74 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC __, __ (slip op. at 6-7) (June 4, 2009).

75 Entergy Answer NYS-16/16A at 16.

76 Id. at 18-21.

77 Id. at 20; Joint Declaration of Kevin OKula and Grant Teagarden in Support of Entergys Answer Opposing New York States Motion for Summary Disposition of Contention NYS-16/16A

¶¶ 65-66 (Sept. 18, 2009) [OKula/Teagarden Decl.].

has been rejected as scientifically unreliable is baseless and that MACCS2 continues to be used by the nuclear industry to support SAMA analyses.78 Third, Entergy posits that population size and the complex terrain at Indian Point will not have a material impact on the outcome of Indian Points SAMA analysis.79 Finally, Entergy disputes New Yorks inference that other models are better alternatives than ATMOS for use in SAMA analysis, arguing that none of the codes cited by New York have been accepted for SAMA analysis applications and that each was designed to meet different regulatory objectives.80 The Applicant repeatedly states that one of the principle advantages of ATMOS lies in its computational efficiency.81 Further, Entergy clarifies that the ATMOS module of the MACCS2 code is not an interchangeable pie and removing it would require major revisions to the MACCS2 code that are not necessary feasible at this point.

ce or 82 D.

NRC Staff Answer The NRC Staff also opposes New Yorks motion, arguing that New York has not met its burden of showing that no genuine dispute as to material facts exists.83 Further, the NRC Staff asserts that New York admits in its motion that the contention is not ripe for resolution because New York could not address whether the SAMA analysis would change based on New Yorks concerns.84 Like Entergy, the NRC Staff asserts that the models proposed by New York are not better for SAMA purposes than the ATMOS model.85 The NRC Staff also argues that, contrary to New Yorks assertion, the terrain surrounding Indian Point only has a minimal impact on SAMA analysis.86 The NRC Staff maintains that New York does not understand how the MACCS2 code utilizes hundreds of weather trials under varying conditions, which together 78 Entergy Answer NYS-16/16A at 21-23.

79 Id. at 24-26.

80 Id. at 26-27.

81 Id. at 11, 21, 22; Entergy Nuclear Operations, Inc. Response to the State of New Yorks Statement of Material Facts Not in Dispute at 18, 25 (Sept. 21, 2009).

82 Entergy Answer NYS-16/16A at 27; OKula/Teagarden Decl. ¶ 95.

83 NRC Staff Response NYS-16/16A at 6.

84 Id.

85 Id. at 7-12.

86 Id. at 12.

adequately account for the terrain near the Indian Point site.87 Finally, the NRC Staff asserts that New Yorks motion should fail as a matter of law because New York did not identify a potentially cost-beneficial SAMA that the NRC Staff overlooked.88 E.

Board Decision The Board denies New Yorks motion for summary disposition of NYS-16/16A, finding that New York has failed to demonstrate the absence of a genuine issue of material fact. It is clear from the testimony submitted that a genuine dispute exists between the parties experts on the adequacy of the ATMOS ATD model for the SAMA analysis performed for Indian Point.

This battle of the experts requires that the motion for summary disposition be denied and the issue be resolved at an evidentiary hearing.

As mentioned above, the Board admitted NYS-16 to the extent that it challenges whether: (1) the population projections used by Entergy are underestimated, (2) the ATMOS module in MACCS2 is being used beyond its range of validity within the framework of the bounding assumptions and conservative inputs used in a MACCS2 SAMA analysis, and (3) the use of MACCS2 with the ATMOS module leads to a non-conservative geographical distribution of radioactive dose within a fifty-mile radius of Indian Point. The Board found that allegations concerning the appropriateness of using a one-dimensional straight-line Gaussian plume ATD model that does not adequately consider terrain variations falls within the constraints placed by the Board on this contention. It seems clear to this Board that the allegations presented by New York against the use of ATMOS have a direct link to the number of people that may be affected by radiological releases at Indian Point.

But what remains at issue, as accurately asserted by both Entergy and the NRC Staff, is whether more complex ATD models are required for the Indian Point SAMA analysis. The issue of whether the ATMOS model that incorporates the one-dimensional Gaussian dissipation algorithm is adequate for the needs addressed in a SAMA analysis, or is too simplistic to 87 Id.

88 Id. at 15-16.

sufficiently represent the terrain conditions at Indian Point in consideration of the size and variable distribution of population surrounding the site, is best left to resolution at an evidentiary hearing. New York discusses several three-dimensional ATD models that are available and, allegedly, frequently used for dispersion modeling. New York never contends that ATMOS must be replaced with these models. Rather, in the Boards opinion, New York merely presented them as evidence that newer models are available and currently used by practitioners in analyzing air dispersion. Absent this, New York could be justifiably criticized for not demonstrating that alternative ATD models to ATMOS are available. Regardless, the question as to the degree, if any, that the use of alternative models would materially affect the outcome, i.e., whether any additional SAMA would have been identified as potentially cost-beneficial, remains for hearing.

In conclusion, the Board notes several differences in the competing expert opinions submitted by the parties. Specifically, New York alleges that ATMOS is an inappropriate dispersion model given the complex terrain near Indian Point,89 while the experts for both the NRC Staff and Entergy dispute this assertion for a variety of reasons.90 In addition, Entergy disputes any implication by New York that other, more complex ATD models than ATMOS could or should be used for the Indian Point SAMA analysis.91 Finally, both the NRC Staff and Entergy also dispute New Yorks assertions regarding the presentation given by the NRC Staff and its significance.92 Based on these conflicting expert opinions, the Board denies New Yorks motion for summary disposition of NYS-16/16A.

89 See Statement of Material Facts Not in Dispute ¶¶ 21-35 (Aug. 28, 2009) [New York Material Facts].

90 See NRC Staffs Response to the State of New Yorks Statement of Material Facts Not in Dispute at 9-14 (Oct. 13. 2009) [NRC Staff Material Facts Response]; Entergy Nuclear Operations, Inc. Response to the State of New Yorks Statement of Material Facts Not in Dispute at 8-12 (Sept. 21. 2009) [Entergy Material Facts Response].

91 Entergy Material Facts Response at 14-18.

92 New York Material Facts ¶¶ 51-55; NRC Staff Material Facts Response at 21-24; Entergy Material Facts Response at 17-19.

IV. Conclusion For the foregoing reasons, the Board denies Entergys motion for the summary disposition of NYS-8, as well as New Yorks motion for the summary disposition of NYS-16/16A.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD93

/RA/

Lawrence G. McDade, Chairman ADMI NISTRATIVE JUDGE

/RA, by Edward R. Hawkens, for/

Dr.

Kaye D. Lathrop ADMI NISTRATIVE JUDGE

/RA/

Dr. Richard E. Wardwell ADMI NISTRATIVE JUDGE Rockville, Maryland November 3, 2009 93 Copies of this Order were sent this date by Internet e-mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for Riverkeeper, Inc.; (5) Manna Jo Green, the Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for Westchester County; (8) Counsel for the Town of Cortlandt; (9) Mayor Alfred J. Donahue, the Representative for the Village of Buchanan; and (10) Counsel for the New York City Economic Development Corporation.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

)

)

ENTERGY NUCLEAR OPERATIONS, INC.

)

Docket Nos. 50-247-LR

)

50-286-LR

)

(Indian Point Nuclear Generating Station,

)

Units 2 and 3)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (RULIING ON MOTIONS FOR

SUMMARY

DISPOSITION) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-16C1 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission.

Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Washington, DC 20555-0001 Administrative Judge Lawrence G. McDade, Chair Administrative Judge Richard E. Wardwell Administrative Judge Kaye D. Lathrop 190 Cedar Lane E.

Ridgway, CO 81432 Zachary S. Kahn, Law Clerk Joshua A. Kirstein, Law Clerk U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001 Sherwin E. Turk, Esq.

Beth N. Mizuno, Esq.

David E. Roth, Esq.

Brian Harris, Esq.

Andrea Z. Jones, Esq.

Karl Farrar, Esq.

Brian Newell, Paralegal

2 Docket Nos. 50-247-LR and 50-286-LR MEMORANDUM AND ORDER (RULIING ON MOTIONS FOR

SUMMARY

DISPOSITION)

William C. Dennis, Esq.

Assistant General Counsel Entergy Nuclear Operations, Inc.

440 Hamilton Avenue White Plains, NY 10601 Andrew M. Cuomo, Attorney General John J. Sipos, Assistant Attorney General Mylan L. Denerstein Deputy Assistant Attorney General Division of Social Justice Janice A. Dean Assistant Attorney General Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224 Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. ONeill, Esq.

Mauri T. Lemoncelli, Esq.

Counsel for Entergy Nuclear Operation, Inc.

Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Joan Leary Matthews, Esq.

Senior Attorney for Special Projects New York State Department of Environmental Conservation 625 Broadway, 14th Floor Albany, New York 12233-5500 Michael J. Delaney Vice President, Energy Department New York City Economic Development Corporation (NYCEDC) 110 William Street New York, NY 10038 Robert D. Snook, Esq.

Office of The Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 Arthur J. Kremer, Chairman New York Affordable Reliable Electricity Alliance (AREA) 347 Fifth Avenue, Suite 508 New York, NY 10016 Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.

303 South Broadway, Suite 222 Tarrytown, NY 10591

Docket Nos. 50-247-LR and 50-286-LR MEMORANDUM AND ORDER (RULIING ON MOTIONS FOR

SUMMARY

DISPOSITION) 3 Daniel E ONeill, Mayor James Siermarco, M.S.

Liaison to Indian Point Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 Manna Jo Greene, Environmental Director Hudson River Sloop Clearwater 112 Little Markey Street Poughkeepsie, NY 12601 Thomas F. Wood, Esq.

Town of Cortlandt Daniel Riesel, Esq.

Jessica Steinberg, J.D.

Counsel for the Town of Cortlandt Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 Nancy Burton, Esq.

Connecticut Residents Opposed to Relicensing of Indian Point (CRORIP) 147 Cross Highway Redding Ridge, CT 06876 Elise N. Zoli, Esq.

Goodwin Proctor, LLP Exchange Place 53 State Street Boston, MA 02109 Justin D. Pruyne Assistant County Attorney, Litigation Bureau Of Counsel to Charlene M. Indelicato, Esq.

Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 FUSE USA John LeKay Heather Ellsworth Burns-DeMelo Remy Chevalier Bill Thomas Belinda J. Jaques 351 Dyckman Street Peekskill, New York 10566 Westchester Citizens Awareness Network (WestCan), Citizens Awareness Network, (CAN), et al Susan H. Shapiro, Esq.

21 Pearlman Drive Spring Valley, NY 10977 Philip Musegaas, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

828 South Broadway Tarrytown, NY 10591 Richard L. Brodsky Assemblyman 5 West Main Street Suite 205 Elmsford, NY 10523

4 Docket Nos. 50-247-LR and 50-286-LR MEMORANDUM AND ORDER (RULIING ON MOTIONS FOR

SUMMARY

DISPOSITION)

Sarah L. Wagner, Esq.

Legislative Office Building, Room 422 Albany, NY 12248

[Original signed by Christine M. Pierpoint]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 3rd day of November 2009