ML100210550
| ML100210550 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 01/15/2010 |
| From: | Sipos J State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-318 | |
| Download: ML100210550 (91) | |
Text
AftS r--31R DOCKETED USNRC January 15, 2010 (4:00pm)
OFFICE OF SECRETARY RULEMAKINGS AND ADJUDICATIONS STAFF UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD x
In re:
Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
ASLBP No. 07-858-03-LR-BDO1 DPR-26, DPR-64 January 15, 2010 x
STATE OF NEW YORK'S MOTION TO COMPEL NRC STAFF TO PRODUCE THE MACCS2 CODE ABSENT A FEE IN COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT AND NRC DISCLOSURE REGULATIONS Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12225 fre AT6A cŽ4 b cK03
4 TABLE OF CONTENTS Page PR ELIM IN A R Y STA TEM EN T.....................................................................................................
1 FACTUAL BACKGROUND...............................................
2 STATUTORY AND REGULATORY FRAMEWORK...........................................................
9 A.
The N ational Environm ental Policy Act.......................................................................
9 B.
NRC's Disclosure Regulations..............................
10 A R G U M E N T................................................................................................................................
12 I.
NRC REGULATIONS OBLIGATE NRC STAFF TO PROVIDE THE M ACCS2 CODE.........................................................................
12 II.
THE PURPORTED $1,000 FEE TO OBTAIN MACCS2 DOES NOT APPLY EITHER TO THIS LICENSING PROCEEDING OR TO THE STATE OF NEW YORK.............................................
15 III.
INTERVENOR FUNDING IS NOT IMPLICATED BY THE FEE ISSUE................ 18 IV.
THE FEE FRUSTRATES NEPA'S PURPOSE AND DEPRIVES INTERVENORS OF PUBLIC PARTICIPATION RIGHTS.....................................
20 C O N C L U S IO N..............................................................................................................................
22 10 C.F.R. § 2.323(b) Certification 23 i
The State of New York moves to compel NRC Staff to comply with its obligations under NRC disclosure regulations and the National Environmental Policy Act ("NEPA") to produce the
'MACCS2 computer code without imposing a $1,000 user fee. The MACCS2 code is an integral part of the Staff s NEPA analysis and Entergy'.s Environmental Report and as such, must be made available to the public (here, the State of New York) without obstacle.
PRELIMINARY STATEMENT To comply with the NEPA, federal court case law and NRC regulations require NRC Staff to examine means to mitigate the environmental impacts that could result from a significant accident at a reactor, referred to a significant accident mitigation alternatives ("SAMA")
analysis. In addition, in this adjudicatory proceeding, the Atomic Safety and Licensing Board has admitted contentions presented by the State of New York that implicate the significant accident mitigation alternatives analysis (NYS-12, 12A, 16, and 16A) and the MACCS2 code.
The MACCS2 computer code forms an important part of NRC Staff's analysis of the environmental impacts associated with a request to renew a power reactor's operating license and potential alternatives to mitigate such impacts pursuant to NEPA. The State understands that the computer code is available in two formats - via a compact disc or via a download from the Internet. Apparently, the code can fit on a single compact disc. NRC Staff has refused to provide the State of New York with a copy of the code or access to the code without first obtaining a $ 1,000 "fee." Given the relevance of the code to this adjudicatory proceeding and NRC Staff's environmental impact review under NEPA, the State submits that NRC should produce the code to the State without charge.
As illustrated in the accompanying exhibits, for some time, counsel for the State of New York have attempted to determine from NRC the regulatory source of the asserted requirement that the State first pay $1,000. before the State could access the MACCS2 code and/or one of its versions known as WinMACCS. Counsel for the State of New York also sought to determine whether there were any criteria to waive the fee, assuming that the requested fee in fact had a regulatory basis. On January 5, 2010 NRC Staff sent the State of New York an email in which NRC Staff provided a source for the $1,000 payment pre-condition. This January 5, 2010 email marked the first time that NRC Staff provided a source for their insistence that the State of New York pay a fee for the MACCS2 computer code. During a § 2.323 conference held on January 13, 2010, counsel for NRC Staff informed the State that the January 5, 2010 email represented NRC Staffs final position and decision on the issue. Given the impasse over the issue, the State seeks the Board's resolution of the dispute.
FACTUAL BACKGROUND The State of New York wishes to obtain the MACCS2 code and has sought to determine the basis for NRC Staff's position that the State must first pay $1,000 before it may receive the code.
On December 18, 2008, the Board scheduled apre-hearing conference for January 14, 2009. See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Order (Dec. 18, 2009). The Board requested that parties commence mandatory disclosures and submit a letter indicating topics for discussion during the January 14 conference. Id. Following the Board's order and in anticipation of the pre-hearing conference, parties held conference calls on December 28, 2008 and January 5, 2009 to discuss mandatory disclosures. During these calls, the State expressed its interest in obtaining the MACCS2 code; counsel for NRC Staff Mr.
Sherwin Turk stated that "It's not my code" (presumably meaning not the NRC's) and also indicated that the code may be proprietary. On January 7, 2009, Assistant Attorney General John Sipos wrote a letter to the Atomic Safety and Licensing Board explaining the status of the State's request. Among other things, the letter indicated that Sandia National Laboratories, a government-owned/contractor operated ("GOCO") facility, created the code. A copy of this letter is attached as Exhibit A to the Declaration of John Sipos ("Sipos Decl."). NRC Staff has not subsequently asserted that the code is proprietary.
On January 14, 2009, in a telephonic pre-hearing conference call held with the applicant, NRC Staff, party-intervenors and the Board, Mr. Turk confirmed that Sandia created the code for the NRC. Enterg-y Nuclear. Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Pre-hearing Conference Transcript (Jan. 14, 2009)("Tr.") 789:10-12. Mr. Turk, in this conference call, stated his belief that a $1,000 fee accompanies code requests, which he said NRC charges users and pays to Sandia. Tr. 789:12-16. The Board subsequently issued an order summarizing this pre-hearing conference, directing the State, acting on behalf of the intervenors, to "discuss this issue in greater detail with the NRC Staff and Entergy to try to work out an agreement that would make available needed information." Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3),'Order (Feb. 4, 2009) at 4-5. The State was required to notify the Board if no agreement could be reached, and was requested to file a status report on the issue by March 4, 2009. Id. In its March 2, 2009 status report, the State reported that the parties had had a conference about the code and were working cooperatively on the matter, See Letter, John Sipos to ASLB Judges McDade, Wardwell, and Lathrop (Mar. 2, 2009)
(Sipos Decl., Ex. B). The State also noted that NRC Staff stated that the State's use of the code would require a non-disclosure agreement and a user fee. Id.
Subsequently in March, NRC Staff circulated a draft non-disclosure agreement. See Email, Beth Mizuno to John Sipos, Re: Mr. Sipos, (Mar. 6, 2009, 2:51 p.m.) (Sipos Decl., Ex.
C). Ultimately, NRC Staff and the State agreed to add two clauses, one clarifying that the State could transmit the code to its experts and one clarifying that the State could transmit the code between its own offices in different parts of the State. At the insistence of NRC Staff, the agreement limited the State's use of the code to Indian Point license renewal proceeding.
Counsel for the State executed this non-disclosure agreement on or around the 2 0 th of October, 2009 and sent the agreement to Ms. Jennifer Uhle at the NRC in hard copy and transmitted it electronically to Mr. Carlos Navarro.' See Email, Janice Dean to Carlos Navarro, State of New York: executed NDA (Oct. 6, 2009)(Sipos Decl., Ex. D). The agreement made no mention of a user fee.
On November 24, 2009, after receiving no response from Ms. Uhle, Assistant Attorney General Janice Dean contacted Mr. Turk via email to ascertain the status of the State's MACCS2 request. See Email, Janice Deanto Sherwin Turk, Re: Indian Point, MACCS2 (Nov. 24, 2009, 4:43 p.m.) (Sipos Decl., Ex. E). Mr. Turk inquired if the State had submitted its $1,000 user fee.
See Email, Sherwin Turk to Janice Dean, Re: Indian Point, MACCS2 (Nov. 24, 2009, 4:51 p.m.)
(Sipos Decl., Ex. F). AAG Dean responded that the licensing agreement prepared by NRC Staff did not mention the user fee, and conditioned receipt of the code only on agreeing to the agreement's terms, and that at the insistence of NRC Staff, the licensing agreement restricts the use of the code to this administrative proceeding and is not a general-use agreement that might warrant that type of fee. See Email, Janice Dean to Sherwin Turk, Re: Indian Point, MACCS2 (Nov. 24, 2009, 5:43 p.m.) (Sipos Decl., Ex. G). Mr. Turk responded that he was "informed that the fee is waived only rarely, and then only for non-profit organizations" and that the NRC Staff The agreement, although properly addressed, was returned marked "Return to Sender"; counsel for the State promptly put it in the mail again, this time to Mr. Turk.
could not "fund or subsidize intervention in our adjudicatory proceedings" so the fee could not be waived. See Email, Sherwin Turk to Janice Dean, Re: Indian Point, MACCS2 (Nov. 30, 2009, 9:23 p.m.) (Sipos Decl., Ex. H).
On December 2, 2009, AAG Dean contacted Mr. Turk to request the feewaiver criteria he referenced in his email of November 30. See Email, Janice Dean to Sherwin Turk and Beth Mizuno, Re: Indian Point, MACCS2 (Dec. 2, 2009, 3:29 p.m.) (Sipos Decl., Ex. I). AAG Dean received no response.
During that same week, on December 1, 2009, AAG Dean was carbon copied on an email between Mr. Carlos Navarro at the NRC and Mr. Nathan Bixler of Sandia National Laboratories indicating that he had attached the State's executed non-disclosure agreement (in fact nothing was attached to the email) and requesting that Mr. Bixler "provide the Office of the New York State Attorney General with a copy of the MACCS2/WinMACCS codes and available documentation." See Email, Carlos Navarro to Nathan Bixler, Re: MACCS2/ WinMACCS Distribution (Dec. 1, 2009, 9:37 a.m.) (Sipos Deci., Ex. J). Mr. Navarro (at NRC) instructed Mr.
Bixler (at Sandia) to assess a one-time $1,000 "shipping and handling fee" since the Office of the Attorney General had provided "no acceptable justification for a fee waiver." Id. At the time of Mr. Navarro's email to Mr. Bixler, no one at the NRC had notified the State of the regulatory basis for the fee, what it should be used for, to whom it would be paid, or of any fee waiver criteria.
On December 7, 2009, Ms. Sheila Nelson of Sandia National Laboratories sent AAG Dean an email requesting the State's completion of a Participant Data Sheet for internal Sandia use only. See Email, Sheila Nelson to Janice Dean, Re: License Request (Dec. 7, 2009, 4:01 p.m.) (Sipos Decl., Ex. K). The Participant Data Sheet contained a section regarding payment of funds. On that same day, AAG Dean contacted Ms. Nelson seeking the fee schedule for codes, and asking Ms. Nelson to confirm if there is a fee for this code. See Email, Janice Dean to Sheila Nelson, Re: License Request (Dec. 7, 4:33 p.m.) (Sipos Deol., Ex. L). AAG Dean asked Ms.
Nelson to direct her to any fee waiver provisions that may exist, indicating that New York is an Agreement State seeking access to the code for purposes of an adjudicatory provision. Id. Mr.
Nathan Bixler of Sandia National Laboratories responded to AAG Dean's email later that day, stating that "[t]he decision on whether to waive the license fee is made by the NRC, not by Sandia" and requesting that AAG Dean contact Mr. Carlos Navarro of the NRC "providing a justification for exclusion from the normal license fee requirement" and indicating that "[i]f the NRC agrees with your justification, we (Sandia) will be instructed by the NRC to send you WinMACCS without having to go through the licensing process." See Email, Nathan Bixler to Janice Dean, Re: License Request (Dec. 7, 6:33 p.m.) (Sipos Decl., Ex. M).
Following Mr. Bixler's December 7, 2009 instruction, AAG Dean sent an email to Carlos Navarro indicating that Sandia National Laboratories staff had requested that she contact him concerning a fee waiver, and that the State had been unable to locate the regulatory basis for the
$1,000 fee or any fee waiver criteria which may be applied. See Email, Janice Dean to Carlos Navarro, Re: State of New York request for MACCS2 (Dec. 8, 2009, 12:45 p.m.) (Sipos Decl.,
Ex. N). Although neither Sandia nor NRC had provided criteria for a fee waiver, AAG Dean's email nevertheless listed six reasons why the MACCS2 code should be provided to the State without a fee and again requested that the NRC waive the fee. Id. AAG Dean received no response to her email of December 8.
On December 17, 2009, Mr. John Reynolds of Sandia National Laboratories sent an e-mail to AAG Sipos stating that the WinMACCS code could be downloaded directly from Sandia's web site. See Email, John Reynolds to John Sipos, Re: Your MACCS Download Account (Dec. 17, 10:31 a.m.) (Sipos Decl., Ex. 0). "You have been issued an Account to download Win MACCS." The email provided the means to access the Sandia system (at http://melcor.sandia.gov) and went on to describe a few simple steps to download the WinMACCS code. Thereafter, Sandia sent another email stating AAG Sipos could not yet use the account. See Email, John Reynolds to John Sipos, Re: Your MACCS Download Account (Dec. 17, 12:10 p.m.) (Sipos Decl., Ex. P).
On January 5, 2010, AAG Dean again emailed Mr. Navarro, this time carbon copying Mr. Turk, inquiring as to the status of her fee waiver request and asking Mr. Navarro to direct her to the origin of the $1,000 fee, and to any fee waiver criteria that may exist. See Email, Janice Dean to Carlos.Navarro, Fwd: State of New York request for MACCS2 (Jan. 5, 2010, 3:55 p.m.) (Sipos Decl., Ex. Q).
On January 5, 2010, Mr. Turk responded to AAG Dean's email to Mr. Navarro. Email, Sherwin Turk to Janice Dean, Re: State of New York request for MACCS2 (Jan. 5, 2010, 6:20 p.m.) (Sipos Decl., Ex. R). In that email, NRC Staff finally, months after the State originally sought information on the fee, provided the State with two websites on which information about NRC codes can be found: http://spot.infosyslabs.com:8080/nrccodes/how to obtain.html and www.nrccodes.com (Sipos Decl., Ex. S and T respectively). The latter site appears to be accessible primarily to persons who have a user name and password and indicates to others that they are not "logged in." These websites indicate that the $1,000 fee is for "shipping and handling." See www.nrccodes.com at the "obtaining the codes" link. However, Mr. Turk explained the basis for the fee as follows:
The MACCS2 code was developed at considerable expense, and is maintained and administered at additional expense, by Sandia National Laboratories, in conjunction with NRC Staff employees.
Sandia developed the MACCS2 code for the NRC, maintains it, and assumes administrative responsibility for its distribution, handling, and related communications. A standard user fee is charged to recoup or help defray these costs.
Email, Sherwin Turk to Janice Dean, Re: State of New York request for MACCS2 (Jan. 5, 2010, 6:20 p.m.) (Sipos Decl. Ex. R). Mr. Turk indicated that the code is given out to certain users for free, but that licensees, applicants, intervenors, members of the public, and state governments must pay a fee. Id. The websites to which NRC Staff referred tlhe State do not substantiate this statement, and in fact make no reference to state governments or intervenors but indicate only that commercial enterprises must pay the fee, while the identified governmental units (international governments) may obtain the code without cost. See www.nrccodes.com. Despite stating on more than one occasion that the fee is returned to Sandia and not kept by the NRC and that Sandia has indicated the fee obligation is one imposed by the NRC and not that it is Sandia's decision that it must receive a fee to provide a copy of a code developed by it with taxpayer funding, NRC Staff argued in the email of January 5 that to waive the fee would violate NRC Staff's prohibition on providing funding to intervenors. Email, Sherwin Turk to Janice Dean, RE: State of Ne w-York request for MACCS2 (Jan. 5, 2010, 6:20 p.m.).
Pursuant to 10 C.F.R. § 2.323(b) AAG Sipos conferred with NRC Staff Attorneys Sherwin Turk and Beth Mizuno on the morning of January 13, 2010 to determine whether the State and NRC Staff could, resolve this dispute. NRC declined to withdraw its insistence that the State pay a fee for the MACCS code. NRC Counsel stated that they could not provide the State any relief on this issue and that the January 5, 2010 email represented NRC Staff's final position and decision.
STATUTORY AND REGULATORY FRAMEWORK A. The National Environmental Policy Act The National Environmental Policy Act ("NEPA") requires every federal agency to examine the environmental impacts of its decisions and to inform the public that it has considered environmental concerns in its decision-making. See, e.g., Marsh v. Or. Natural Res.
Council, 490 U.S. 360 (1989). NEPA requires federal agencies to prepare an environmental impact statement for all major federal actions significantly affecting the environment. 42 U.S.C.
§ 4332(2)(C). As NRC itself has recognized, the decision to extend the operating term of a nuclear power plant is a major federal action that entails significant environmental impacts, and NEPA requires the discussion of such impacts in an Environmental Impact Statement. 10 C.F.R.
§ 51.20(a),(b)(2); 10 C.F.R. § 51.95(c). 2 In 1989, the United Stated Court of Appeals for the Third Circuit rejected NRC's ad hoc policy of examining severe accidents and instead ordered NRC to carefully evaluatethe environmental impacts that could result from severe accidents and the means to mitigate such impacts in order to comply with NEPA. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3rd Cir. 1989). The Third Circuit noted that NRC did not find that risks from a severe accident were remote and speculative, and held that NRC's severe accident policy did not represent the
- requisite careful consideration of the environmental consequences required under NEPA. 869 F.2d at 723. Following the Limerick ruling, NRC promulgated regulations that now require applicants and NRC Staff to conduct-a severe accident mitigation alternatives (SAMA) analysis 2 See also 61 Fed. Reg. at 28483 (in which the NRC, in its 1996 Statement of Considerations, recognized that renewal of an operating license is a major plant licensing action);
see also Proposed Revised Generic Environmental Impact Statement for License Renewal of Nuclear Plants at p. S-1.
as part of its review under NEPA. 10 C.F.R. § 51.53(c)(3)(ii)(L). MACCS2 is the principal program used to undertake the SAMA analyses required by the Limerick decision.
B.
NRC's Disclosure Regulations Mandatory discovery is imposed on NRC Staff by, among other provisions, 10 C.F.R.
§ 2.336(b) which states that:
the NRC staff shall, within thirty (30) days of the issuance of the order granting a request for hearing or petition to intervene and without further order or request from any party, disclose and/or provide, to the extent available (but excluding those documents for which there is a claim of privilege or protected status):
(1) The application and/or applicant/licensee requests associated with the application or proposed action that is the subject of the proceeding; (2) NRC correspondence with the applicant or licensee associated with the application or proposed action that is the subject of the proceeding; (3) All documents (including documents that provide support for, or opposition to, the application or proposed action) supporting the NRC staff's review of the.
application or proposed action that is the subject of the proceeding;*
(4) Any NRC staff documents (except those documents for which there is a claim of privilege or protected status) representing the NRC staff s determination on the application or proposal that is the subject of the proceeding; and (5) A list of all otherwise-discoverable documents for which a claim of privilege or protected status is being made, together with sufficient information for assessing the claim of privilege or protected status of the documents.
10 C.F.R. § 2.336(b). Staff is also required to comply with 10 C.F.R. § 2.1203:
(a)(1) Within thirty (30) days of the issuance of the order granting requests for hearing/petitions to intervene and admitting contentions, the NRC staff shall file in the docket, present to the presiding officer, and make available to the parties to the proceeding a hearing file....
(b) The hearing file consists of the application, if any, and any amendment to the application, and, when available, any NRC environmental impact statement or assessment and any NRC report related to the proposed action, as well as any correspondence between the applicant/licensee and the NRC that is relevant to the proposed action. Hearing file documents already available at the NRC Web site and/or the NRC Public Document Room when the hearing request/petition to intervene is granted may be incorporated into the hearing file at those locations by a reference indicating where at those locations the documents can be found.
The presiding officer shall rule upon any issue regarding the appropriate materials for the hearing file.
(c) The NRC staff has a continuing duty to keep the hearing file up to date with respect to the materials set forth in paragraph (b) of this section and to provide those materials as required in paragraphs (a) and (b) of this section.
Id. (emphasis added). As the NRC made clear in its Statement of Considerations for Part 2 regulations, "the Commission believes that in all hearing tracks the parties will have sufficient information available to prepare their cases." 69 Fed. Reg. 2188. Staff is obligated to turn over reports as well as tools necessary for analyzing, verifying, or challenging NRC's review of the application (e.g., tools, like MACCS2, which are necessary to examine the applicant and NRC Staff s analysis during license renewal). As discussed below, NRC Staff concedes that the code must be produced, but has frustrated the State's attempts to readily obtain it by assessing a fee which, if assessed, would be in violation of NEPA and the NRC's disclosure regulations.
ARGUMENT I.
NRC REGULATIONS OBLIGATE NRC STAFF TO PROVIDE THE MACCS2 CODE The NRC Staff is obligated by 10 C.F.R. § 2.336(b)(3) to produce:
All documents (including documents that provide support for, or opposition to, the application or proposed action) supporting the NRC staff s review of the application Id. MACCS2 is a document3 that was used by Entergy in preparing its Environmental Report
("ER"), and was used by NRC Staff as part of its review of the ER (DSEIS, Vol. 2, Appendix G at G-1), thus it "provides support for" the proposed action, and "support[s] the NRC staff's review" of the application. MACCS2 is a central document used by Applicants and NRC Staff to demonstrate compliance with the requirements of 10 C.F.R. § 51.53 (c)(3)(ii)(L) to provide "consideration of alternatives to mitigate severe accidents." 10 C.F.R. § 2.336(b)(3) clearly provides for its production.
As noted above, NRC Staff has refused to produce the requested document at no cost to the State and disregarded numerous requests by the State to ascertain the basis for the fee and has, instead, insisted that the document will only be produced upon the payment of $1,000 fee which NRC Staff has inconsistently described as either a very substantial "shipping and handling" fee (see Email, Carlos Navarro to Nathan Bixler, Re: MACCS2/WinMACCS Distribution (Dec. 1, 2009, 9:37 a.m.) (Sipos Decl. Ex. J) or a payment to "help defray" the "considerable expense" incurred by Sandia Laboratories in developing and administering MACCS2. Email, Sherwin Turk to Janice Dean, (Jan. 5, 2010, 6:20 p.m.) (Sipos Decl. Ex. R).
3 Staff does not dispute that the MACCS2 code is discoverable under its disclosure regulations.
Sandia National Laboratories is described on its website as "government-owned/contractor operated (GOCO) facility" which is operated by Sandia Corporation, "a Lockheed Martin company, [that] manages Sandia for the U.S. Department of Energy's National Nuclear Security Administration." See http://www.sandia.gov/about/index.html. Thus, any fee paid for access to MACCS2 provides funding to a GOCO that has already been paid for developing MACCS2 by NRC using taxpayer money. There is no provision in any NRC regulation which requires that intervening parties to licensing proceedings must pay for the cost of developing and administering various documents in order to have access to them. The user fee, to which NRC Staff makes reference, does not appear in any Commission regulation. Indeed, it does not even appear on NRC's ".gov" website. See Sipos Decl., Ex. T (.com website). As noted below, even this website reference does not purport to apply to licensing proceedings or non-commercial entities such as private intervenors or sovereign state governments.
The regulatory history of 10 C.F.R. Part 2 confirms that imposing a substantial financial barrier to access to documents upon which an Applicant and NRC Staff rely in order to meet the requirements of 10 C.F.R. § 51.53(c) is prohibited. When the Commission adopted the current version of Part 2 it essentially eliminated all traditional adjudicatory forms of discovery in favor of the current system which imposes disclosure obligations on NRC Staff and all parties to a licensing proceeding and disclosure rights to the public and sovereign states, pursuant to 10 C.F.R. §§ 2.336, 2.1203 and 2.390. In justifying this drastic modification in the pre-existing discovery the Commission made clear that the new regulations would assure any party to a licensing proceeding it would receive all the documents needed to effectively pursue its claims:
in view of the general availability of licensing and regulatory documents under NRC regulatory practice, it is not clear that discovery is needed in most NRC adjudications beyond the
-13
mandatory disclosures required by Subpart C and the broad public accessibility to documents provided by § 2.390 (former § 2.790).
Statement of Considerations, Changes to Adjudicatory Process (69 Fed. Reg. 2182)("SOC") at 2194; see also SOC, 69 Fed. Reg. at 2188 ("the parties will have sufficient information available.
to prepare their cases").
The Commission also declared the hearing file obligations imposed on NRC Staff pursuant to 10 C.F.R. § 2.1203 were an additional basis for requiring all documents relevant to the licensing process be produced by NRC Staff. Id. 69 Fed Reg. at 2194-95. NRC Staff is obligated under § 2.1203 to produce "any NRC report related to the proceeding". Unless this imposes the duty to produce not only the DSEIS and FSEIS, but the critical documents upon which those reports rely and whose output is critical to the conclusions reached in the reports, the production obligation is meaningless. The DSEIS describes the principal reliance placed on MACCS2 in conducting the Severe Accident Mitigation Alternatives ("SAMA") analysis:
Entergy Nuclear Operations, Inc. (Entergy) submitted an assessment of severe accident mitigation alternatives (SAMAs) for Indian Point Nuclear Generating Unit Nos. 2, and 3 (IP2 and IP3) as part of the environmental report (ER) (Entergy 2007). Entergy based its assessment on the most recent probabilistic safety assessment (PSA) for IP2 and IP3 (a site-specific offsite consequence analysis performed using the MELCOR Accident Consequence Code System 2 (MACCS2) computer code), and on insights from the Individual Plant Examination (IPE) (Con Ed 1992 and NYPA 1994) and the Individual Plant Examination of External Events (IPEEE) (Con Ed 1995 and NYPA 1997) for each unit.
DSEIS, Vol. 2, Appendix G at G-1. The DSEIS also describes how the NRC Staff used MACCS2 and input data related to it as an integral part of its review:
Based on a review of the SAMA assessment, the U.S. Nuclear Regulatory Commission (NRC) issued requests for additional information (RAIs) to Entergy by letters dated December 7, 2007 (NRC 2007), and April 2, 2008 (NRC 2008). Key'questions concerned major changes to the internal flood model in each of the PSA updates; PSA peer review comments and their resolution; MA CCS2 input data and assumptions (including core inventory, evacuation modeling, and offsite economic costs); assumptions used to quantify the benefits for certain SAMAs; reasons for unit-to-unit differences for certain risk contributors and estimated SAMA benefits; and further information on several specific candidate SAMAs and low-cost alternatives, including SAMAs related to steam generator tube rupture (SGTR) events.
Id. (emphasis added). Thus, NRC Staff s DSEIS relied extensively on MACCS2, as it would need to if it were carrying out the duties imposed on NRC Staff to conduct a thorough review of the Application. 10 C.F.R. § 51.70(b)("The NRC staff will independently evaluate and be responsible for the reliability of all information used in the draft environmental impact statement"). NRC Staff cannot avoid its duty to produce all documents relevant to its review by leaving out of the DSEIS the actual MACCS2 document upon which it placed principal reliance in evaluating Entergy's SAMA analysis and its compliance with § 51.53(c)(3)(ii)(L).
In sum, Commission regulations impose an obligation on NRC Staff to produce, without imposing a fee to help defray development costs or for any other reason, any document, like MACCS2, upon which it placed principal reliance in conducting its statutorily mandated environmental review.
II.
THE PURPORTED $1,000 FEE TO OBTAIN MACCS2 DOES NOT APPLY EITHER TO THIS LICENSING PROCEEDING OR TO THE STATE OF NEW YORK NRC Staff asserts that basis for its fee is this website: http://spot.infosyslabs.com:
8080/nrccodes/how to obtain.html. See Email, Sherwin Turk to Janice Dean (Jan. 5, 2010, 6:20 p.m.) (Sipos Decl. Exs. R, S). However, an examination of the website discloses that the fee is neither applicable to licensing proceedings nor to non-commercial entities like the sovereign State of New York, and the website does not mention MACCS at all. Since the website is the sole basis upon which NRC Staff asserts that such a fee is due, its inapplicability to this proceeding and to New York State disposes of NRC Staff's claim for a $1,000 fee.
The website defines the intended scope of its applicability in the opening paragraph:
In general, the NRC allows distribution of its reactor safety codes and tools to domestic organizations (utilities, vendors, academic institutions, commercial enterprises) and international organizations located in countries that participate in the Code Applications and Maintenance Program (CAMP) or Cooperative Severe Accident Research Program (CSARP).
http://spot.infosyslabs.com: 8080/nrccodes/how to obtain.html. No mention is made of the general public or of sovereign states. Rather it appears the purpose of the site is to establish a fee for entities that are intending to use the requested codes for either commercial or educational purposes.
In addition, access to this website is obtained through another website, not directly linked to the NRC public website. The other website is: http://www.nrccodes.com/. (Sipos Decl. Ex.
T). It provides the following information about those to whom the site is applicable under the heading "NRC Reactor Safety Code User Information Exchange":
Welcome to the NRC Reactor Safety Code User Information Exchange. This site provides a web-based information and support site for the Office of Research's reactor safety codes. This system is intended for use by CAMP members, domestic users and the NRC staff only.
See http://www.nrccodes.com/. The State of New York in particular and intervenors in licensing proceedings in general are not "users" of MACCS2 code in that they do not use the code but only review the code and applicants' or NRC Staff s use of that code to meet obligations under 10 C.F.R. § 51.53(c)(3)(ii)(L). The site through which access is provided to MACCS2 is geared toward entities that will use and exchange information about the available codes. Clearly, NRC Staff does not view the State of New York as an entity from which it is seeking an exchange of information geared to improving the use of MACCS2, but rather as an adversary in an adjudicatory proceeding.
The website which lists a fee includes only one segment that NRC Staff might conceivably argue could apply to MACCS2: under the heading "Melcor," the Site says that domestic commercial organizations must submit a $1,000 one time fee for shipping and handling. Notably, the website does not require the fee of domestic academic institutions, NRC contractors, international governmental organizations located in a CSARP member country, international non-governmental organizations located in a CSARP member country, or international organizations located in a non-member country. See http://spot. infosvslabs
.com:8080/nrccodes/how to obtain.html (Sipos Decl. Ex. S). Moreover, nowhere does this site discuss the MACCS2 code; it refers to "Melcor," but Melcor is different from MACCS2.
Since the State of New York is not a domestic commercial organization, and since State governments, although not referenced at all on the site, are more like the governmental organizations which are not required to pay the fee than like commercial organizations using the code for financial gain, the fee requirement should not be applicable to the State. 5 4 Nowhere does the site identify MACCS2; it refers only to MELCOR. The State notes that during the January 14, 2009 conference with the Board, NRC Staff Counsel maintained that MELCOR and MACCS2 were different programs and that counsel for the State was misinformed when the State asserted that it wished to obtain MELCOR. Tr. 788:19-25, 789:2-12.
In light of NRC Staff s January 2009 assertion, the website is totally irrelevant to this proceeding since it never mentions MACCS2.
5 Since, as the previous discussion demonstrates, the source of the State's right to obtain MACCS2 is its status as a party to this proceeding and the provisions of 10 C.F.R. §§ 2.336(b)(3) and 2.1203(b), the fact that the website does not identified entities like the State -
Finally, even if the fee were applicable to the State, the amount of the fee for "shipping and handling" is, on its face, without any rational basis. To begin with, Sandia has the means to allow the State to download the WinMACCS code directly from the Sandia site where the code resides. See Email John Reynolds to John Sipos Re: Your MACCS Download Account (Dec.
17, 10:31 a.m.) (Sipos Decl. Ex. 0). It is clear from Sandia's communication that the code can, in some form, be downloaded free of any shipping costs. In addition, the amount of the "shipping and handling" charge seems substantially out of line with what commonsense would indicate is a reasonable cost. Indeed, based on statements in NRC's NUREG/CR-6613 it would appear that the MACCS2 code is quite compact in terms of size and could fit on one compact disc. See Sipos Decl. at ¶ 4 and Ex. U (excerpt of Code Manual for MACCS2: Volume 1, User's Guide, NUREG/CR-6613, SAND97-0594, at pp. 4-1, xi)
III.
INTERVENOR FUNDING IS NOT IMPLICATED BY THE FEE ISSUE NRC Staff insist the State must pay a fee for the code because not requiring the State to pay the fee would violate NRC's prohibition on providing intervenor funding. The provision of the relevant appropriations act that purportedly sets a limit on "intervenor funding" provides:
SEC. 502. None of the funds in this Act or subsequent Energy and Water Development Appropriations Acts shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such Acts.
106 Stat. 1315, 1342. The State of New York is not seeking to have anyone pay any of its expenses. Rather, it seeks to obtain a document which NRC Staff is obligated to produce without having to incur an expense that NRC Staff has created in the form of fee which is not i.e., intervenors in a licensing proceeding and/or sovereign states - does not diminish the State's absolute right to have MACCS2 produced to it without obstacle or cost.
authorized by statute, regulation or otherwise. In addition, the fee would be paid to a private corporation, Sandia Corporation which, as noted above, is a subsidiary of Lockheed Martin, and not to the NRC. Only if the fee is imposed, would there be "intervenor funding," but it would be the intervenor who would be required to provide funds. There is no legal authority for this "pay to play" concept that NRC Staff seeks to impose on the State of New York.
In the only case in which a challenge to fees for documents was presented, a case which is factually inapposite, the Commission explicitly refused to address the issue of whether waiving fees would be the equivalent of intervenor funding:
In addition, Petitioners ask for "a blanket waiver of the $191 fee required for seeking access to these SUNSI and SGI documents."
To be clear, the order only assesses the fee for requests for access to SGI. The Commission uses the access fee to pay the costs it incurs in determining whether the individual should be granted access to SGI. These costs include a fee to the Federal Bureau of Investigation as part of the background check. The statutory ban on paying the expenses of or otherwise compensating intervening in the Commission'sproceedings may preclude the Commission from granting this request. But, the Commission need not reach that issue. Even assuming the Commission could grant this request, Petitioners have not presented a compelling reason, unique to their circumstances, to do so.
Detroit Edison Co. (Fermi Unit 3) 69 N.R.C. 80, 82-83 (2009)(footnotes omitted, emphasis added). Unlike this case, the fee in question in Detroit Edison was imposed by Commission Order and represented an actual out of pocket expense the Commission would pay to a third party to conduct a necessary security investigation before the documents in question could be produced to the requesting party. See Detroit Edison: Notice of Hearing, and Opportunity to Petition for Leave to Intervene and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation on a Combined License for Fermi 3 (74 Fed. Reg. 836, 838 (Jan. 8, 2009)). Because no such fee order was issued in this case and no specific cost directly tied to the productionof MACCS2 in response to the State's request has been identified, none is applicable.
NRC Staff rightly did not request payment of a fee for the paper copy of either the December 2008 Draft Environmental Impact Statement (NUREG-1437, Supp. 38), which discussed the applicant's initial SAMA and MACCS2 analysis, or the November 2009 Safety Evaluation Report (NUREG-1930). Taking Staff's present argument to its logical conclusion, every document provided at no cost would constitute "intervenor funding." This is simply not the case, and intervenor funding is not implicated by the State's argument involving the fee that NRC Staff seeks to impose.
IV.
THE FEE FRUSTRATES NEPA'S PURPOSE AND DEPRIVES INTERVENORS OF PUBLIC PARTICIPATION RIGHTS Public participation is one of NEPA's cornerstones. As the Commission has observed, public participation "is a vital ingredient to the open and full consideration of licensing issues and in establishing public confidence in the sound discharge of the important duties which have been entrusted" to the Commission. N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-75-1, 1 NRC 1, 2 (1975). By selectively charging a $1,000 fee for access to software without which the public cannot evaluate the Staffs NEPA analysis, NRC Staff disregards NEPA's plain language and the Commission's own commitment to transparency.
The importance of facilitating public participation in NEPA to assist the agency in reaching its final decision has been emphasized in numerous court decisions:
The statutory requirement that a federal agency contemplating a major action prepare such an environmental impact statement serves NEPA's "action-forcing" purpose in two important respects.
See Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 2252,76 L.Ed.2d 437 (1983); Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 143, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981). It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.
Robertson v. Methow Valley Citizens Council, 490 U.S. 3.32, 349 (1989)(emphasis added). See also South Fork Band Council of Western Shoshone of Nevada v. US. Dept. of Interior, 588 F.3d 718, 725 (9th Cir. 2009)("An adequate EIS is essential to informed agency decision-making and informed public participation, without which the environmental objectives of NEPA cannot be achieved"); State of California v. Block, 690 F.2d 753, 761 (9th Cir. 1982)(emphasizing NEPA's obligation to "foster... informed public participation").
In its regulations, the President's Council on Environmental Quality ("CEQ") requires that all federal agencies, to "the fullest extent possible... [e]ncourage and facilitate public involvement in decisions which affect the quality of the human environment." 40 C.F.R.
§ 1500.2(d)6. To this end, CEQ prohibits an agency from charging fees, beyond the cost for copying, for any underlying documents used in the NEPA process:
6 The Supreme Court has recognized that CEQ regulations are entitled to substantial deference in evaluating agency compliance with NEPA. "In Andrus v. Sierra Club, 442 U.S., at 358, 99 S.Ct., at 2341, we held that CEQ regulations are entitled to substantial deference."
Robertson v. Methow Valley Citizens Council, 490 U.S. at 355. NRC's regulations reflect the agency's obligation to take account of CEQ regulations.. See 10 C.F.R. § 51.10(a). The Third Circuit has also recognized that "[t]he NRC has acknowledged its obligation to comply with NEPA... by issuing regulations governing the consideration of the environmental impact of the licensing and regulatory actions of the agency." Limerick, 869 F.2d at 725 (citing 10 C.F.R. §§ 51.1 (1988)).
Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552),
without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed action. Materials to be made available to the public shall be provided to the public without charge to the extent practicable, or at. afee which is not more than the actual costs of reproducing copies required to be sent to other Federal agencies, including the Council.
40 C.F.R. § 1506.6(f)(emphasis added).
NRC Staff s attempt to impose a $1,000 user fee for "shipping and handling" as a pre-condition to access to MACCS2, a critical document in the NEPA process, directly conflicts with its obligations under NEPA, as recognized by federal courts and imposed by CEQ regulations.
CONCLUSION For the reasons stated above, the State of New York respectfully requests that the Board require the production of the MACCS2 code and WinMACCS free of cost.
Dated: January 15, 2010 Respectfully submitted, Jon J. Sipos Janice A. Dean Assistant Attorneys General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 Telephone: (518) 402-2251 10 C.F.R. § 2.323(b) Certification As illustrated in the accompanying exhibits, counsel for the State of New York have attempted to determine from NRC the regulatory source of the asserted requirement that the State first pay $1,000 before the State could access the MACCS2 code and/or WinMACCS.
Counsel for the State of New York also sought to determine whether there were any criteria to waive the fee, assuming that the requested fee in fact had a regulatory basis.
The January 5, 2010 email from NRC Staff was the first time that NRC Staff identified a source for the $1,000 payment pre-condition.
Pursuant to 10 C.F.R. § 2.323(b) AAG Sipos conferred with NRC Staff Attorneys Sherwin Turk and Beth Mizuno on the morning of January 13, 2010 to determine whether the State and NRC Staff could resolve this dispute. NRC declined to withdraw its insistence that the State pay a fee for the MACCS code. NRC Counsel stated that they could not provide the State any relief on this issue and that the January 5, 2010 email represented NRC Staff s final position and decision.
John J. Sipos Assistant Attorney General State of New York I
UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In re:
Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO0 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
January 15, 2010
.x DECLARATION OF JOHN J. SIPOS Pursuant to 28 U.S.C. § 1746, John J. Sipos hereby declares as follows:.
- 1.
I serve as an Assistant Attorney General for the State of New York, counsel for petitioner-intervenor State of New York in this proceeding. I submit this declaration and accompanying exhibits in support of the State of New York's motion to compel the production of the MACCS2 and WinMACCS computer code without the condition that any fee be paid.
- 2.
To comply with the National Environmental Policy Act (NEPA), federal court case law and NRC regulations requireNRC Staff to examine means to mitigate the environmental impacts that could result from a significant accident at a reactor, referred to a significant accident mitigation alternatives (SAMA) analysis. In addition, in this adjudicatory proceeding, the. Atomic' Safety and Licensing Board has admitted contentions presented by the State of New York that implicate the significant accident mitigation alternatives analysis (NYS 12 12A, 16, and 16A). The MACCS2 computer code forms an important part of NRC Staff's analysis of the environmental impacts associated with a request to renew a power reactor's operating license and potential alternatives to mitigate such impacts pursuant to NEPA. The State understands that the computer code is available in two formats - via a compact disc or via a download from the internet. Given the relevance of the code to this adjudicatory proceeding and NRC Staff s environmental impact review under NEPA, the State submits that NRC should produce the code to the State without charge. NRC Staff has refused to provide the State of New York with a copy of the code or access to the code without first obtaining a $1,000 "fee".
- 3.
As illustrated in.the accompanying exhibits, for some time, counsel for the State of New York have attempted to determine from NRC the regulatory source of the asserted requirement that the State first pay $1,000 before the State could access the MACCS2 code and/or WinMACCS. Counsel for the State of New York also sought to determine whether there were any criteria to waive the fee, assuming that the requested fee in fact had a regulatory basis.
On January 5, 2010 NRC Staff sent the State of New York an email in which NRC Staff provided a source for the $1,000 payment pre-condition. This January 5, 2010 email marked the first time that NRC Staff provided a source for their insistence that the State of New York pay a fee for the MACCS2 computer code. During a.§ 2.323 conference held on January 13, 2010, counsel for NRC Staff informed me that the January 5, 2010 email represented NRC Staff's final position and decision on the issue.
- 4.
According to NRC documents, it appears that MACCS2 is a relatively compact computer code in terms of size. Publicly available information found in a NRC document states:
MACCS2 requires an IBM-compatible 486 or Pentium PC with 8 MB of RAM and approximately 30 MB of free disk space for installation of the entire software package.
Code Manual for MACCS2: Volume 1, User's Guide, NUREG/CR-6613, SAND97-0594, at pp.
4-1, xi (Ex. U). By comparison, a typical single compact disc can hold 720 MB of information.
As set forth in a'communication from Sandia National Laboratory, the WinMACCS version of MACCS2 can be downloaded from Sandia (Ex. 0).
- 5.
The accompanying exhibits are discussed inmore detail in the State's motion.
- 6.
Attached to this declaration as Exhibit A is a true and correct copy of a letter I 7-sent to ASLB Judges McDade, Wardwell, and Lathrop dated January 7, 2009.
- 7.
Attached to this declaration as Exhibit B is a true and correct copy of a letter I sent to ASLB Judges McDade, Wardwell, and Lathrop dated March 2, 2009.
- 8.
Attached to this declaration as Exhibit C is a true and correct copy of an email from Beth Mizuno to John Sipos, received March 6, 2009 at 2:51 p.m. enclosing a proposed non disclosure agreement (or NDA)I
- 9.
Attached to this declaration as Exhibit D is a true and correct copy of an email from Janice Dean to Carlos Navarro sent October 6, 2009 and the enclosed signed non disclosure agreement.
10:
Attached to this declaration as Exhibit E is a true and correct copy of an email from Janice Dean to Sherwin Turk, Re: Indian Point, MACCS2, sent November 24, 2009, at 4:43 p.m.
- 11.
Attached to this declaration as Exhibit F is a true and correct copy of an email from Sherwin Turk to Janice Dean, Re: Indian Point, MACCS2, received November 24, 2009, at 4:51 p.m.
- 12.
Attached to this declaration as Exhibit G is a true and correct copy of an email from Janice Dean to Sherwin Turk, Re: Indian Point, MACCS2, sent November 24, 2009, at 5:43 p.m.
- 13.
'Attached to this declaration as Exhibit H is. a true and correct copy of an email from Sherwin Turk to Janice Dean, Re: Indian Point, MACCS2, received November 30, 2009, at 9:23 p.m.
- 14.
Attached to this declaration as Exhibit I is a true and correct copy of an email from Janice Dean to Sherwin Turk and Beth Mizuno, Re: Indian Point, MACCS2 sent December 2, 2009, at 3:29 p.m.
- 15.
Attached to this declaration as Exhibit J is'a true and correct copy of an email from Carlos Navarro to Nathan Bixler, Re: MACCS2/WinMACCS Distribution, sent December 1, 2009, at 9:37 a.m.
- 16.
Attached to this declaration as Exhibit K is a true and correct copy of an email from Sheila Nelson to Janice Dean, Re: License Request, received December 7, 2009, at 4:01 p.m.
- 17.
Attached to this declaration as Exhibit L is a true and correct copy of an email from Janice Dean to Sheila Nelson, Re: License Request, sent December 7, at 4:33 p.m.
- 18.
Attached to this declaration as Exhibit M is a true and correct copy of an, email
.from Nathan Bixler to Janice Dean received December 7 at 6:33 p.m.
- 19.
Attached to'thiS declaration as Exhibit N is a true and correct copy of an email from Janice Dean to Carlos Navarro, Re: State of New York request for MACCS2, sent December 8, 2009, at 12:45 p.m.
- 20.
Attached to this declaration as Exhibit 0 is a true and correct copy of an email
- from John Reynolds.to John Sipos, Re: Your MACCS Download Account, received December1 7 at 10:31 a.m. The access codes have been redacted in the attached exhibit.
- 21.
Attached to this declaration as Exhibit P is a true and correct copy of an email from John Reynolds to John Sipos, Re: Your MACCS Download Account, received December 17 at-12:10 p.m.
- 22.
Attached to this declaration as Exhibit Q is a true and correct copy of an email from Janice Dean to Carlos Navarro, Fwd: State of New York request for MACCS2, sent.
January 5, 2010, 3:55 p.m..
- 23.
Attached to this declaration as Exhibit R is a true and correct copy of an email from Sherwin Turk to Janice Dean, Re: State of New York request for MACCS2, received January 5, 2010, at 6:20 p.m. Among other things,.that email referenced two web sites:
http://spot.infosyslabs.com:8080/nrccodes/how to obtain.html. and www.nrccodes.com.
- 24.
Attached as Exhibit S is a true and correct printout of http://spot.infosyslabs.
com:8080/nrccodes/how to obtain.html as it appeared on January 12, 2010.
- 25.
Attached as Exhibit T is a true and correct printout of www.nrccodes.com. as it appeared on January 12, 2010. The suffix of this website is ".com", instead of the ".g__"
suffix associated with NRC's website.
- 26.
Attached as Exhibit U is an excerpt of Code Manualfor MACCS2: Volume 1,
'User's Guide, NUREG/CR-6613, SAND97-0594 containing pages 4-1 and.xi; the entire' document is available at http://www:doeal.gov/SWEIS/Othe'Documents/ 481%20MACCS2
%20Vol%201.pdf.
- 27.
1 declare under penalty of perjury that the foregoing is true and correct.
Executed on January 15, 2010 J4 J. Sipos:
/1 EXHIBIT A
STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ANDREW M. CuoMo ATTORNEY GENERAL DivisioN OF.SOCIAL JUSTICE ENVIRONMENTAL PROTECTION BUREAU January 7, 2009 Lawrence G. McDade, Chair Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Two White FlintNorth 1i545 Rockville Pike Rockville, MD 20852-2738 Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission
.Mail Stop - T-3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738i Dr. Kaye D. Lathrop Administrative Judge, Atomic Safety and Licensing Board 190 Cedar Lane E.
Ridgway, CO 81432 Re:
January 14, 2009 Prehearing Telephone Conference Entergy Indian Point Unit 2, LLC, Entergy Indian Point Unit 3, LLC, and Entergy Nuclear Operations, Inc.
Indian Point Nuclear Generating Station, Unit 2 and Unit 3 Docket Nos. 50-247-LR/50-286-LR: ASLBP No. 07-858-03-LR-BD0I
Dear Administrative Judges:
The State of New York respectfully submits this letter in response to the Atomic Safety and Licensing Board's December 18, 2008 ruling that scheduled a prehearing conference and ruled on New York's Motion Requesting Consideration of Additional Matters.
NeW York agrees with the proposed list of issues for discussion at the January 14, 2009 prehearing telephone conference that Riverkeeper has submitted; for the sake of brevity, the State will not repeat those issues here.
New York wishes to provide additional information concerning the first listed item..
Discovery and Production of Computer Codes, Results of Computer Program Runs, and Site Specific Inputs, all in Native Format - The extent to which relevant computer codes together with site-specific inputs, will be made available to appropriate parties making such requests.
New York wishes to obtain the Melcor Accident Consequence Code System (MACCS) code and the site specific'inputs used by NRC and Entergy for the license renewal applications for the Indian Point reactors. MACCS is used as part of the Significant Accident Mitigation Alternatives (SAMA) Analysis that, in turn, is part of the mandatory environmental review process that takes place under the National Environmental Policy Act (NEPA). The State of New York understands that the MACCS family of programs was developed by Sandia National Laboratories for the Nuclear Regulatory Commission.
The Capitol, Albany, NY 12224 0.(518) 474-8096 0 Fax (518) 473-2534 (Not for Service of Papers)
During a recent conference among the parties, NRC Staff indicated confusion about MACCS and suggested that it was "not my code" and that it might even be proprietary. In response, New York provides the following additional information:
According to the Sandia National Laboratories web site: "MELCOR is developed at Sandia National Laboratories for the U.S. Nuclear Regulatory Commission."' "Sandia is a government-owned/contractor operated (GOCO) facility. Sandia Corporation, a Lockheed Martin company, manages Sandia for the U.S. Department of Energy's National Nuclear Security Administration."2 Thus, MACCS was paid for by American taxpayers and cannot be said to be proprietary.
"MELCOR is a fully integrated, engineering-level computer code that models the progression of severe accidents in light-water reactor nuclear power plants... A broad spectrum of severe accident phenomena in both boiling and pressurized water reactors is treated in MELCOR in a unified framework." 3 Since MACCS was developed for the NRC, New York and other governmental entities and parties in this proceeding are entitled to the MACCS code and the site-specific inputs for the Indian Point reactors and the surrounding areas that are part of the NEPA review for this major federal action.
New York also wishes to raise a housekeeping issue:
Update of Active Parties List - On a going-forward basis, we seek an identification of.which parties, individuals, and counsel need to be served with submissions to the ASLB.
Respectfully submitted, s/
John J. Sipos Assistant Attorney General Office oftheAttorney General The Capitol Albany, NY 12224 (518) 402-2251 John.Sipos@oag.state.ny.us cc:
Service List Available at http://melcor.sandia.gov/ (last visited on January 7, 2009).
3 Available at http://www.sandia.gov/about/index.html (last visited on January 7, 2009).
Available athttp:/imelcbr.sandia.gov/.
EXHIBIT B
STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ANDREW M. CUOMO ATTORNEY GENERAL DIVISION OF SOCIAL JUSTICE ENVIRONMENTAL PROTECTION BUREAU March 2, 2009 Lawrence G. McDade,. Chair '
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop - T-3_F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Richard E. Wardwell Dr. Kaye D. Lathrop Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission 190 Cedar Lane E.
Mail Stop - T-3 F23 Ridgway, CO 81432 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738
- Re:
Status report regarding MACCS/MACCS2 discovery License Renewal Application submitted by Entergy Indian Point Unit 2, LLC, Entergy Indian Point Unit 3, LLC, and Entergy Nuclear Operations, Inc.
Indian Point Nuclear Generating Station, Unit 2 and Unit 3 Docket Nos. 50-247-LR/50-286-LR: ASLBP No. 07-858-03-LR-BDOI
Dear Administrative Judges:
'In accordance with the Board's Memorandum and Order (Summarizing Pre-Hearing Conference), dated February 4, 2009, I am writing to provide you with a status update on theState of New York's negotiations with counsel for Entergy and NRC Staff regarding the State's" request to obtain the version of the MELCOR Accident Consequence Code System (MACCS/MACCS2) that Entergy used in preparing its license renewal application and SAMA analysis.'
Through previou' e-mail exchanges and a conference call held earlier today (March 2, 2009), the State, NRC Staff, and Entergy have made~good progress towards the exchange of the MACCS2 code and its affiliated modules and inputs. Parties have identified the version of the code used by Entergy in its SAMA analysis, and NRC Staff has identified a means by which the State can obtain the code from the federal government, involving a user fee and a non-disclosure agreement that may be a condition requested by the NRC or Sandia National Laboratories. Staff will provide that agreement to the State shortly.
At this stage, negotiations are ongoing and have been productive; the parties and counsel are working in a cooperative manner to resolve this issue. The State will keep the Board apprised of any problems that may arise requiring the Board's intervention.
The Capitol, Albany, NY 12224 0 (518) 474-8096 0 Fax (518) 473-2534 (Not for Service of Papers)
Respectfully submitted, s/
Janice A. Dean John J. Sipos Assistant Attorneys General Office of the Attorney General The Capitol' Albany, NY 12224 518-402-2251 janice.dean@oag.state.ny.us john.sipos@oag.state.ny.us cc:
Service List
/
[I The Capitol, Albany, NY 12224 0 (518) 474-8096 0.Fax (518) 473-2534 (Not for Service of Papers) O http://www.oag.state.ny.us
EXHIBIT C
From:
Beth Mizuno <Beth.Mizuno@nrc.gov>
To:
John.Sipos@oag.state. ny.us CC:
Carlos.Navarro@nrc.gov; Sherwin.Turk@nrc.gov Date:
3/6/2009 2:51 PM
Subject:
Mr. Sipos, Attachments:
NDA 11-25-08 (2).doc Mr. SipQs, Attached please find a form Non-Disclosure Agreement (NDA) for the MACCS2/WinMACCS Codes.
Every entity (e.g. agency, company) that uses the codes must fill out and sign a NDA and list all individuals who are expected to use the codes. If the codes are being used by an entity at multiple sites, a separate NDA is required for each site. Please send the original signed forms to Jennifer Uhle. Her address is at the top of the form. Please scan the completed forms and send pdf versions of them to Carlos Navarro at carlos.navarro@nrc.gov<mailto:carlos.navarro@nrc.gov>.
He will process the forms and instruct Sandia National Laboratories (SNL) to release the code to the individual you designate as the contact point for purposes of the release. Please let Mr. Navarro know who your point of contact will be. Mr. Navarro can be reached at (301) 251-7485. SNL will be sending you an invoice for the $1,000 fee for the codes with instructions for payment. Please call me if you have any questions. I can be reached at (301) 415-3122.
Beth Mizuno
EXHIBIT D
(ill
_/21
) anice Dean - State of New York: executed NDA Pgei From:
Janice Dean To:
carlos.navarro@nrc.gov CC:
Mizuno, Beth; Sipos, John; Turk, Sherwin Date:
10/6/2009 10:50 AM
Subject:
State of New York: executed NDA Attachments: 2009 10 06 NYS NDA.pdf Mr. Navarro, Attached please find an executed version of the NDA for the MACCS2 code for the State of New York.
The original has been mailed to Ms. Jennifer Uhle per the instructions on the form, as confirmed by Beth Mizuno. Please notify me if you have any questions concerning this request. The code may be sent to me at the below address, which is reflected in the agreement.
Thank you, Janice Dean Janice A. Dean Assistant Attorney General Environmental Protection Bureau Office of the New York State Attorney General 120 Broadway, 26th Floor New York, NY 10271 (212) 416-8459 (voice)
(212) 416-6007 (fax) janice.dean@oag.state.ny.us
j(1/13/201),, Jaice Dean, - 2009 10 06 NYSNDA pdf Pagje 1 Non-Disclosure Agreement for a Computer Code of the US. Nuclear Regulatory Commission (NRC)
Dr. Jennifer Uhle, Director Division of Systems Analysis Office of Nuclear Regulatory Research U.S. Nuclear Regulatory Commission 21 Church Street Mail Stop: C3-AO7M Rockville, MD 20850
Dear Dr. Uhle:
On behalf of the Office of the New York State Attorney General, I would like to request a copy of the NRC's MACCS2 code and code documentation. I understand that the conditions for receiving this code are as follows:
- 1.
The Office of the New York State Attorney General understands that the above stated code is the result of work'sponsored byan agency of the United States Government and recognizes that neither the United States Government nor any agency thereof, nor any of their employees makes any warranty, expressed or implied, or assumes any legal liability or responsibility for any third party's use, or the results~of such use, or of any information, product, or process included in or calculated by this code, or represents that the use by such third party would not infringe privately-owned rights.
- 2.
The Office of the New York State Attorney General shall not release this code to any third party without obtaining prior written permission from the NRC, and the third party must also obtain in advance written permission from the NRC. Office of the New York S state Attorney General employees, consultants, and witnesses involved in the Indian Point license renewal adjudicatory proceeding who require access to the MACCS2 code and documentation for purposes of the State of New York's participation in this proceeding are not considered third parties for the purposes of this agreement, but the Office of the New York State Attorney General (a) shall identify such persons to the NRC as "expected users" and (b) for persons who are not employees of the Office of the, New York State Attorney General shall transmit to the NRC a copy of the executed acceptance of this agreement in the manner set forth below, prior to releasing the code to-such persons. Nothing herein prevents the Office of the New York State Attorney "
General from discussing the MAACS2 code or its results with federal or state officials or tribunals. The Office of the New York State Attorney General agrees that it will not provide access to the MACCS2 code to any persons who are not U.S. citizens.
- 3.
The Office of the New York State Attorney General shall notify the NRC of any r eactor safety problem which may be uncovered through the use of this code.
- 4.
The Office of the New York State Attorney General shall communicate any code errors to the NRC..
- 5.
The Office of the New York State Attorney General shall provide the NRC with any nonproprietary improvements or modifications made to this code.
1
[(1I 3123010)_Janice Dean.- 2009 1006 NYSNDA.pdf
.ge]
- 6.
The Office of the New York State Attomey General shall provide the NRC with a nonproprietary summary of any proprietary modifications made to this code, including a summary of the impact on representative code calculations.
- 7.
The Office of the New York State Attorney General shall identify its modified version of the NRC code with a somewhat different name (e.g., TRACE-NYS is a NYS-modified version of the NRC's TRACE code).
- 8.
The Office of the New York State Attorney General is solely responsible for obtaining any assistance needed to implement or use this code:
- 9.
Is the Office of the New York State Attorney General a foreign entity (defined as an entity where 75 percent or more of the voting interest is owned by non-U.S. citizens)?
Yes ___;No X
- 10.
Employees or other persons to whom the code is released shall not remove a copy of the software from the workplace where the code is being used for its intended purpose as stated above in paragraph 2, and the software is not for the personal use of the employee or other person. Nothing in this paragraph is intended to limit the ability of Office of the New York State Attorney General employees to convey the code between..
employees of the Office of the New York State Attorney General. Similarly, nothing in.
the paragraph is intended to limit the ability of the Office of the Attorney General of the State of New York to convey the code to consultants or witnesses involved in the Indian Point license renewal adjudicatory proceeding who require access to the MACCS2 code for purposes of.the State of New York's participation in the Indian Point license renewal proceeding, so long as they have executed this agreement.
- 11.
'In no event shall the NRC or the Office of the New York State Attorney General be liable for consequential, indirect, incidental, or special damages.
My signature below indicates the Office of the New York State Attorney General's acceptance of these conditions.
74-7ý7_A.
October 6.2009 S tuire
.Date United States citizen Citizenship (for non-U.S. citizen, also list here if you are a U.S. permanent resident)
Janice A. Dean Assistant Attorney General Printed Name Title (Position) ia nice. dean(,oaoq.state.nV.us (212) 416-8459 E-mail Address Phone Number 120 Broadway, 26e Floor, New York, New York 10271 2
yI-injizu3)
Janice yean-2009 10 06 NYS NDA.pdf Pg Mailing Street Address www.oaaq.state.ny.us Website Address of the Company (if available)
Please enter the following information for the expected users of the NRC code and add more names as necessary.
Point of Contact/Name of Code User 1: John Sipos, Assistant Attorney General Citizenship (also list here if you are a U.S. permanent resident): United States citizen Phone Number E-mail Address:'
(518) 402-2251 iohn.siposCcoaq.state.ny.us Planned Use of the NRC Code: In support of the State's challenge to the Severe Accident Mitigation Analysis performed by the Applicant for relicensing of the Indian Point nuclear
.generating station Units 2 and 3.
Mailing Street Address (if different from the address above):
Name of Code User 2: Janice A. Dean, Assistant Attorney General Citizenship: United States citizen Phone Number. (212)416-8459 E-mailAddress: janice.dean@oag.state.ny.us Planned Use of the NRC Code, If Different than the Above:
Mailing Street Address (if different from the address above):
Name of Code User 3: Lisa Feiner, Assistant Attorney General Citizenship: United States citizen Phone Number.; (212) 416-8479 E-mail Address: lisa.feiner@oag.state.ny.us Planned Use of the NRC Code, If Different than the-Above:
Mailinq Street Address (if different from the address above):
3
JaieVa 2009 100 Op NA.d Pa.
Name of Code User 4:
Citizenship:
Phone Number E-mail Address:
Planned Use of the NRC Code, If Different than the Above:
Mailinq Street Address (if different from the address above):
Name of Code User 5:
Citizenship:
Phone Number:
E-mail Address:
Planned Use of the NRC Code, If Different than the Above:
Mailing Street Address (if different from the address above):
Name of Code User 6:
Citizenship:
Phone Number:
E-mail Address:
Planned Use of the NRC Code, If Different than the Above:
Mailing Street Address (if different from the address above):
4
EXHIBIT E
(1*/6/2010) Janice Dean - Indian Point, MACCS2....
Page 1 From:
Janice Dean To:
Turk, Sherwin
.Date:
11/24/2009 4:43 PM
Subject:
Indian Point, MACCS2 Hello Sherwin, We have not received a copy 6f MACCS2 or any communication from Jennifer Uhle since submitting our application to her (through you) on or around the 20th of October. Would you like me to contact Ms.
Uhle directly, or would. you prefer to inquire about the 'status of our code request?
Thank you, Janice Janice A. Dean Assistant Attorney General Environmental Protection Bureau Office of the New York State Attorney General 120 Broadway, 26th Floor NewYork, NY 10271 (212) 416-8459 (voice)
(212) 416-6007 (fax) janice.dean@oag.state.ny. us
EXHIBIT F
(1/1 3/201,0Janice Dean - RE: Indian Point, MACC2 ag Page, 1 From:
"Turk, Sherwin" <Sherwin.Turk@nrc.gov>
To:
Janice. Dean@oag, state. ny. us CC:
Beth.Mizuno@nrc.gov Date:,
11/24/2009 4:51 PM
Subject:
RE: Indian Point, MACCS2 Janice -
I forwarded your signed agreement to Dr. Uhle weeks ago, after receiving it from you. I have not heard from either of you since then, so I assumed you had made final arrangements with her. Have you spoken with her at all? Have you arranged to send in the $1,000 user fee?
Upon receiving your message a few minutes ago, I called Dr. Uhle's office but received her voice mail. I left her a message to call me as soon as she gets my message, to let me know the status of your request. I'll call you tomorrow to give you an update.
Sherwin
Original Message----
From: Janice Dean [1]
Sent: Tuesday, November 24, 2009 4:43 PM To: Turk, Sherwin
.Subject-Indian Point, MACCS2 Hello Sherwin, We have not received a copy of MACCS2 or any communication from Jennifer Uhle since submitting our application to her (through you) on or around the 20th of October. Would you like me to contact Ms, Uhle directly, or' would you prefer to inquire about the status of our code request?
Thank you, Janice Janice A. Dean Assistant Attorney General Environmental Protection Bureau Office of the New York State Attorney General 120 Broadway, 26th Floor New York, NY 10271.
(212) 416-8459 (voice)
(212),416-6007 (fax) jan ice. dean@oag. state. ny. us
EXHIBIT G
(*16/2J:10)aani~ce Dean-RE: Indian Point, MACCS2 From:
Janice Dean To:
Turk, Sherwin CC:
Mizuno, Beth Date:
11/24/2009 5:43 PM
Subject:
RE: Indian Point, MACCS2
- Sherwin, I will be out tomorrow and Friday but will look forward to speaking with you about this on Monday. The licensing agreement prepared by NRC Staff did not mention the user fee, and conditioned receipt of the code only on agreeing-to the agreement's terms: At the insistence of NRC Staff, the licensing agreement restricts the use of the code to this administrative proceeding and is not a general-use agreement that might warrant that type of fee. Because the licensing fee restricts our use of the code and'did not mention any fee, the State understood that receipt of the MACCS2 code in this proceeding was not contingent upon payment of a user fee.
Receipt of this MACCS2 computer code is important to the State given its centrality to more than one of the contentions going to hearing as well as the statutory, regulatory, and judicial requirements concerning environmental impacts. It remains our position that thiscomputer code (which, as we've noted previously, was developed by federal governmental agencies in consultation with NRC and is used by NRC Staff to review compliance with NEPA in license renewals) should have been produced by NRC Staff as a routine matter as it relates directly' to admitted contentions.
That said, is-there a regulation that conditions production of a NRC staff computer code in a contested Part 2 proceeding upon payment of the fee? I'd also be interested to know if NRC Staff has insisted on intervenors paying a user fee in any of the other license renewal proceedings before Staff has produced this computer code, or if other Agreement States have paid the fee.
Thank you very much, Janice
>>> 'Turk, Sherwin" <Sherwin.Turk~nrc.qov> 11/24/2009 4:51 PM >>>
Janice -
I forwarded your signed agreement to Dr. Uhle weeks ago, after receiving it from you. I have not heard from either of you since then, so I assumed you had made final arrangements with her.. Have you spoken with her at all? Have you arranged to send in the $1,000 user fee?
Upon receiving your message a few minutes ago, I called Dr. Uhle's office but received her voice mail. I left her a message to call me as soon as she gets my message, to let me know the status of your request. I'll call you tomorrow to give you an update.
Sherwin.
Original Message -----
From: Janice Dean rmailto:JaniceDean @oaq. state. ny. us]
Sent: Tuesday, November 24, 2009 4:43 PM To: Turk, Sherwin
Subject:
Indian Point, MACCS2, 2
1(i6/00 Jan i6e Den REndian Point, MACCS2 Pg Hello Sherwin, We have not received a copy of MACCS2 or any communication from Jennifer Uhle since submitting our application to her (through you) on or around the 20th of October. Would you like me to contact Ms.
Uhle directly, or would you prefer to inquire about the status of our code request?
Thank you, Janice Janice A.. Dean Assistant Attorney General Environmental Protection Bureau' Office of the New York StateAttorney General 120 Broadway, 26th Floor New York, NY 10271 (212) 416-8459 (voice)
(212) 416-6007 (fax) ianice. dea nmoaq, state. ny. us
EXHIBIT H
(/3/2010) Janice Dean - RE-Indian Point, MVACCS2 From:
"Turk, Sherwin" <Sherwin.Turk@nrc.gov>
To:
Janice Dean <Janice.Dean@oag.state.ny.us>
CC:
iMizuno, Beth" <Beth.Mizuno@nrc.gov>, "Uhle, Jennifer' <Jennifer.Uhle@nr...
.Date:
11/30/2009 9:23 PM
Subject:
RE:.Indian Point, MACCS2 Janice - I contacted Dr. Uhle, and understand that the approval will be issued this week, subject to receipt of the required $1,000 fee. I am informed that the fee is waived only rarely, and then only for non-profit organizations. Also, the NRC is not permitted to fund or subsidize intervention in our adjudicatory proceedings. In sum, we will not be able to waive the fee for you.
I will be out of the office most of the day tomorrow; if you need to contact my office, please call Beth Mizuno at 301-415-3122.
Thanks very much.
Sherwin
Original Message--
From: Janice Dean Dean@oag.state.ny.us
Sent: Monday, November 30, 2009 11:52 AM To: Turk, Sherwin Cc: Mizunoý Beth
Subject:
RE: Indian Point, MACCS2 Sherwin, I am back in the office and available to discuss the MACCS2 issue if you have an update from Dr. Uhle. Thank you.
Janice
>>> "Turk, Sherwin" <Sherwin.Turk@nrc.gov> 11/24/2009 4:51 PM >>
Janice-I forwarded your signed agreement to Dr. Uhle weeks ago,. after receiving it from you, I have not heard from either of you since then, so I assumed you had made final arrangements with her. Have you spoken with her at all? Have you arranged to send in the $1,000 user fee?
Upon receiving your message a few minutes ago, I called Dr. Uhle's office but received her voice mail. I left her a message to call me as soon as she gets my message, to let me know the status of your request. I'll call you tomorrow to give you an update.
Sherwin
Original Message----
From: Janice Dean [2]
Sent: Tuesday, November 24, 2009 4:43 PM TO: Turk, Sherwin
Subject:
Indian Point, MACCS2 Hello Sherwin, We have not received a copy of MACCS2 or any communication from Jennifer Uhle since submitting our
1(ill3/201 0) Janice Dean - RE: Indian Point, MACCS2 Page2~
application to her (through you) on or around the 20th of October. Would you like me to contact Ms. Uhle directly, or would you prefer to inquire about the status of our code request?
Thank you, Janice Janice A. Dean Assistant Attorney General*
Environmental Protection Bureau Office of the New York StateAttorney General 120 Broadway, 26th Floor New York, NY 10271 (212) 416-8459 (voice)
(212) 416-6007 (fax) janice.dean@oag.state.ny.us I.
EXHIBIT I
1/210) Janice Dean - RE: Indian Point, MACCS2.
From:.
Janice Dean To:
Turk, Sherwin'*
CC:
Mizuno, Beth; Navarro; Carlos; Uhle, Jennifer
'Date:
12/2/2009 3:29 PMI,
Subject:
RE: Indian Point, MACCS2 Sherwin and Beth, Can you please direct me to the fee waiver criteria you reference below? I understand that you do not feel it is applicable to states. Also, Mr. Navarro's emails sent subsequent to the below email indicate that the fee covers MACCS2 and WinMACCS. I understood that the fee was for MACCS2 only as that is what we had requested; is there no fee for WinMACCS?
Thank you, Janice
>>> 'Turk, Sherwin1' <Sherwin.Turk@nrc.oov> 11/30/2009 9:23 PM >>>
Janice - I contacted Dr. Uhle, and understand that the approval will be issued this week, subject to receipt of the required $1,000 fee. I am informed that the fee is waived only rarely, and then only for non-profit organizations. Also, the NRC is not permitted to fund or subsidize intervention in our adjudicatory proceedings. In sum, we will not be able to waive the fee for you.
I will be out of the office most of the day tomorrow; if you need.to contact my office, please call Beth Mizuno at 301-415-3122.
Thanks very much.
Sherwin
Original Message----,-
From: Janice Dean [mailto:Janice.Dean~oaq.state.ny.usl Sent: Monday, November 30, 2009 11:52 AM To: Turk, Sherwin Cc: Mizuno, Beth
Subject:
RE: Indian Point, MACCS2 Sherwin, I am back in, the office and available to discuss the MACCS2 issue if you have an update from Dr. Uhle. Thank you.-
Janice
>>> 'Turk, Sherwin" <Sherwin.Turk@nrc.qov> 11/24/2009 4:51 PM >>>
Janice -
I forwarded your signed agreement to Dr. Uhle weeks ago, after receiving it from you. I have not-heard from either of you since then, so I assumed you. had made final arrangements with her. Have you spoken with her at all? Have you arranged to send in the $1,000 user fee?
Upon receiving your message-a few minutes ago, I called Dr. Uhle's office but received her voice mail. I left her a message to call me as soon as she gets my message, to let me know the status of your request. I'll call you tomorrow to give you an update.
(i16/2010) Janice Dean - RE: Indian PointMACCS2 P.ge.
Sherwin Original Message -----
From: Janice Dean rmailto:Janice. Deandoaq.state. ny.us]
Sent:. Tuesday, November 24, 2009 4:43 PM To: Turk, Sherwin
Subject:
Indian Point, MACCS2 Hello Sherwin, We have not received a copy of MACCS2 or any communication from Jennifer Uhle since submitting our application to her (through you) on or around the 20th of October. Would you like me to contact Ms.
Uhle directly, or would you prefer to inquire about the status of our code request?
Thank you, Janice Janice A. Dean Assistant Attorney General Environmental Protection Bureau Office of the jNew York State Attorney General 120 Broadway, 26th Floor New York, NY 10271 (212) 416-8459 (voice)
(212) 416-6007 (fax) ianice.dean@oaq.state.ny.us
f EXHIBIT J
Page 1 of I
Dear Dr. Nathan Bixler,
Attached please find a copy of a signed Non-Disclosure Agreement (NDA) for the MACCS2/WinMACCS codes for the Office of the New York State Attorney General.
Please provide the Office of the New York State Attorney General with a copy of the MACCS2/WinMACCS codes and available documentation: A $1,000.00 one time fee for shipping and handling should be charged to the Office of the New York State Attorney General as a pre-condition for granting this request, as no acceptable justification for a fee waiver has been provided.
Please add all three users listed in the NDA to the MACCS Users List.
Although the contact person for this request is Mr. John Sipos, you should handle this request with the Assistant Attorney General, Janice A. Dean.
Janice A. Dean Assistant Attorney General Office of the New York State Attorney General 120 Broadway, 26th Floor New York, NY 10271 (212) 416-8459 (voice)
(2.12) 416-6007 (fax) janice.dean@oag.state.ny.us I would remind the Office of the State of New York Attorney General of their responsibility as agreed in the signed NDA.
Please contact Mr. Sherwin Turk (301-415-1533) or Ms.- Beth Mizuno (301-415-3122) if any questions arise regarding this NDA or your receipt of the referenced codes and documentation.
- Thanks,
~Re
- QC%
4 Cw1a*anzuu O~ke a#Nue.w eqdiary Reseinch D iusim cd &j Anlp file://C:\\Documents and Settings\\JDean\\Local Settings\\Temp\\XPgrpwise\\4B I 4E3E9NEW...
1/6/2010
"I EXHIBIT K
Page 1 of I Janice Dean - License Request From:
"Nelson, Sheila D" <snelson@sAndia.gov>
To:
"'janice.dean@oag.state.riy.us'" <janice.dean@oag.state.ny.us>
Date:
12/7/2009 4:01, PM
Subject:
License Request CC:
"Ek, Sally".<sjek@sandia.gov>
Attachments: Participant Data Sheet.doc
.=..
.. i.........
Ms. Dean, Your request for the MACCS2/WinMACCS codes has been forwarded to Licensing by Sally Ek.
In order to initiate a Limited Use Access Agreement, we ask all requesters to complete the attached Participant Data Sheet. This provides licensee information for database and reporting use (for Sandia internal use only).
Please return the PDS to me via fax, or as an email attachment. Upon receipt of this information, an agreement will be processed for your signature. Upon receipt of a signed agreement, We will notify Sally ER so the codes can be forwarded. to you.
Sheila Nelson IP Management, Alliances & Licensing Phone 505.844.0236 Fax 505.844.8011 file://CADocuments and Settings\\JDean\\Local Settings\\Temp\\XPgrpwise\\4B I D26DENEW...
1/13/2010
EXHIBIT L
(1/6/2010) Janice Dean - Re License Re-uest, P
1 From:
Janice Dean To:
Nelson, Sheila D CC:
Ek, Sally Date:
12/7/2009 4:33 PM
Subject:
Re: License Request
- Sheila, Can you direct me to the fee schedule for codes, and confirm if there is a fee for this code? If so, please also direct meto any fee waiver provisions that may exist. New York is an Agreement State and we seek.
this code in discovery in an adjudicatory proceeding, not for any other purpose.
Thank you, Janice Dean Janice A. Dean Assistant Attorney General Environmental Protection Bureau Office of the New York State Attorney General 120 Broadway, 26th Floor New York, NY 10271 (212) 416-8459 (voice)
(212) 416-6007 (fax) janice.dean@oag.state.ny.us
>>> "Nelson, Sheila D" <snelsonasandia.Qov> 12/7/2009 4:01 PM >>>
Ms. Dean; Your request for the MACCS2/WinMACCS codes has been forwarded to Licensing by Sally Ek.
In order to initiate a Limited Use Access Agreement, we ask all requesters to complete the attached Participant Data Sheet. This provides licensee information for database and reporting use (for Sandia internal use only).
Please return the PDS to me via fax, or as an email attachment. Upon receipt of this information, an agreement will be processed for your signature. Upon receipt of a signed agreement, we will notify Sally Ek so the codes can be forwarded to you.
Sheila Nelson IP Management, Alliances & Licensing Phone 505.844.0236 Fax 505.844.8011
EXHIBIT M
(16210) Janice Dean -R:License Request Pae11' From:
"Bixler, Nathan E" <nbixler@sandia.gov>
To:
"janice.dean@oag.state.ny.us" <janice.dean@oag.state. ny. us>
CC:
"Ek, Sally" <sjek@sandia.gov>, "Gauntt, Randall 0" <rogaunt@sandia.gov>....
Date:
12/7/2009 6:36 PM
Subject:
RE: License Request
- Janice, The decision on whether to waive the license fee is made by the NRC, not by Sandia. Please send a
- request to Carlos Navarro (inclhded as a CCon this email) providing a justification for exclusion from the normal license fee requirement. If the NRC agrees with your justification, we (Sandia) will be instructed by the NRC to send you WinMACCS without having to go through the licensing process.
- Thanks, Nate Bixler
Original Message----
From: Ek, Sally Sent: Monday, December 07, 2009 2:41 PM To: Gauntt, Randall 0; Bixler, Nathan E
Subject:
FW: License Request Please respond.
Original Message--
From: Nelson, Sheila D Sent: Monday, December 07, 2009 2:36 PM To: 'Janice Dean'; Ek, Sally
Subject:
RE: License Request
./
- Janice, There is a $1,000 fee but I will let Sally respond as to whether it can be waived.
Sheila Nelson IP Management, Alliances & Licensing Phone 505.844.0236 Fax 505.844.80111
Original Message-----,
From: Janice Dean.[3]
Sent: Monday, December 07, 2009 2:33 PM To: Nelson, Sheila D Cc: Ek, Sally
Subject:
Re: License Request
- Sheila, Can you direct me to the fee schedule for codes, and confirm if there is a fee for this code? If so, please also direct me to any fee waiver provisions that may exist.' New York is an Agreement State and we seek this code in discovery in an adjudicatory proceeding, not for any other purpose.
Thank you, Janice Dean
(1/6/2o10) Janice Dean - RE: License Request, Pi -I e,
Janice A. Dean, Assistant Attorney General Environmental Protection Bureau Office of the New York State Attorney General 120 Broadway, 26th Floor New York, NY 10271 (212) 416-8459 (voice)
(212) 416-6007 (fax) janice.dean@oag.state.ny.us
>>> "Nelson, Sheila D" <snelson@sandia.gov> 12/7/2009 4:01 PM >>>
Ms. Dean, Your request for the MACCS2/VVinMACCS codes has been forwarded to. Licensing by Sally Ek.
In order to initiate a Limited Use Access Agreement, we ask all requesters to complete the~attached Participant Data Sheet. This provides licensee information for database and reporting use (for Sandia internal use only).
Please return the PDS to me via-fax, or as an email attachment. Upon receipt of this information, an agreement will be processed for your signature. Upon receipt of a signed agreement, we will notify Sally Ek so the codes can be forwarded to you.
Sheila Nelson IP Management, Alliances & Licensing Phone 505.844.0236 Fax 505.844.8011
EXHIBIT N
1(16/210)Janice Dean,- State of New York re'quest for MACCS2 a ~ i From:
Janice Dean To:
carlos.navarro@nrc.gov CC:
Sipos, John Date:
12/8/2009 12:45 PM
Subject:
State of New York request for MACCS2
I write to you as a result of recent communications with federal officials at Sandia National Laboratories on which you were cc'd. As you may know, the State of New York was admitted to the relicensing proceeding for Indian Point facilities as a party-intervenor. More than one of the State's admitted contentions involves the use of the MACCS2 code with regard.to the Indian Point reactors. Given the use of the MACCS2 code, the State believes that it is entitled to the code as part of discovery under the Part 2 regulations.
As requested by NRC Staff, representatives from the State have executed the NRCs nondisclosure agreement. In addition, at NRC Staffs request, the State agreed to limit the State's use of the code to use during the Indian Point relicensing proceeding only. The State was not granted unrestricted use of the code, but is entitled to the code'through discovery in this administrative proceedingunder the Part 2 regulations.
Although the license / nondisclosure agreement does not mention any fee, on certain occasions NRC Staff has mentioned that it would like to receive payment of $1,000 in exchange for the code. The State has attempted to locate the source of this fee request and has been unable to locate it in NRC regulations or DOE regulations. In any event, we have also asked that the fee -- whatever its regulatory source -- be Waived, given the public use that the code is sought.
,In an attempt to obtain such a fee waiver, we have recently communicated with representatives from Sandia National Laboratories. The Sandia representatives indicted that the decision to waive the $1,000 fee rested not with Sandia, but with NRC Staff. Hence, I am writing to the NRC again. Although we have been unable to locate the regulatory provision permitting the assessment of the $1,000 fee, the State of New York hereby requests that NRC waive the fee for the following reasons:
(1) NRC has restricted the State's use of the code to the current relicensing proceeding; (2) the code is relevant to the current relicensing proceeding, the applicants' Environmental Report, and the Staffs review; (3) the code is relevant to the State's admitted contentions;.
(4) the State performs certain governmental functions within the federal system and seeks to use the code for a publicr" purpose; (5) the code has been used to evaluate federally-licensed facilities that are located within the State of New York and as such principles of comity and federalism would seem to supportthe State's ability to review the code without charge; (6) the NRC has recognized the State is an Agreement state.
Because the State's use of the code is narrow, relates only to this relicensing proceeding, and since the State is entitled to the code through the NRC's disclosure regulations, the State requests that the NRC waive the $1,000 fee which may accompany an unrestricted commercial license to use the code.
Thank you.
Janice Dean Janice A. Dean Assistant Attorney General Environmental Protection Bureau Office of the New York State Attorney General 120 Broadway, 26th Floor New York, NY 10271 (212) 416-8459 (voice)
(212) 416-6007 (fax) janice.dean@oag.state.ny.us
I-"
EXHIBIT 0
,(,1/12/2010)QJohn Sipoý -Your MACCS Download Account From:
"John Reynolds" <jreyno@sandia.gov>
To:
<john.sipos@oag.state.ny.us>
Date:
12/,17/2009 10:31 AM
Subject:
Your MACCS Download Account
Dear WinMACCS User,
You have been issued an Account to download WinMACCS. To access the system, direct your browser to http://melcor.sandia.gov and click on "Downloads."
PROPRIETARY SOFTWARE NOTICE: The US Nuclear Regulatory Commission considers the code referenced herein to beprivileged information. It is furnished in confidence and the receiving person shall not disseminate it further without prior written approval of the NRC. This notice will be marked on any reproduction theredf, in whole or in part. This limitation will automatically terminate if the privileged information is disclosed by the NRC without restriction.
Login ID Pass word10 To download WinMaccs,
- Log into the system.
- Once you have logged in, click on the Downloads link.
- Next, click on "WinMaccs"
- 4 download links will be displayed. The first link repeats these instructions. The next three links are the three separate parts of the WinMACCS release. Please download all three archives.
- After you have downloaded WinMACCS, you'll need to contact Nathan Bixler (nbixler@sandia.gov) via email about receiving your installation key.
If you have any questions about the downloading the software, please feel free to call the number below or reply to this email. If you have questions about WinMACCS, please email Nathan Bixler (nbixler@sandia.gov).
Sincerelyj John Reynolds MELCOR Configuration Manager and Support Software Developer Global Analytic IT Services (GAITS) jreyno@sandia.gov (505) 284-2208
(
)
EXHIBIT P ý
Page 1 of I John'Sipos - RE: Your MACCS Download Account From:
"Reynolds, John" <jreyno@sandia.gov>
To:
"Iisa.feiner@oag.state.ny'us" <lisa.feiner@oag.state.ny.us>, "john.sipos@oag.state.ny.us"
<john.sipos@oag.state.ny.us>, "janice.dean@oag.state.ny.us" <janice.dean@oag.state.ny.us>
Date:
12/17/2009 12:10 PM
Subject:
RE: Your MACCS Download Account CC:
"Bixler, Nathan E" <nbixler@sandia.gov>
Dear MACCSUser,
I'm very sorry to inform you that your MACCS download account was created in error..1 have not yet been approved to provide you with download privileges.
Your account will remain active, but with no privileges. When I have been given authorization to provide you with download privileges for WinMACCS, I will update your account and send you another email.
Please accept my apologies for the mistake.
John Reynolds MELCOR Configuration Manager and Support Software Developer Sandia National Laboratories file://C :\\Documents and Settings\\epajzs\\Loca! Settings\\Temp\\XPgrpwise\\4B2A I FBDALB...
1I /13/2010
(,
-I EXHIBIT Q
11(VqP0nJance ean-wd: State of, New York reqyeýýt f9irM,ýCCS2*
(116/2019) Janice Dean'- Fwd: State of New York request for MA~CbS~
Page 1 1 From:
To:
CC:
Date:
Subject:
Attachments:
Janice Dean carlos.navarro@nrc.gov Sipos, John; Turk, Sherwin 1/5/2010 3:55 PM Fwd-State of New York request for MACCS2 State of New York request for MACCS2.
I received no response to the attached communication of a month ago concerning fee waiver criteria applicable to the MACCS2 code. I.cc Mr. Sherwin Turk, who is representing NRC Staff in the Indian Point relicensing matter, to keep him apprised of the State's ongoing attempt to obtain the code and to ascertain the regulatory basis for the $1,000 fee. As I indicated below, the'code plays a role in the Indian Point relicensing proceeding as part of Staffs NEPA obligation and is.
central to more than one of the State's admitted contentions..
Kindly direct me tothe origin of the $1,000 fee, and to any fee waiver criteria that may exist, at your earliest convenience.
Thank you, Janice Dean Janice A. Dean Assistant Attorney General Environmental Protection Bureau Office of the New York State Attorney General 120 Broadway, 26th Floor
.New York, NY 10271 (212) 416-8459 (voice)
(212) 416-6007 (fax)
Please note new email address:
janice.dean@ag.ny.gov
S.
EXHIBIT R
(1/6/2010) Janice Dean - RE: State of New York request for MACCS2
,ag From:
"Turk, Sherwin" <Sherwin.Turk@nrc.gov>
To:
Janice Dean <Janice.Dean@ag.ny.gov>, John Sipos <John.Sipos@ag.ny.gov>
CC:
"Navarro, Carlos" <Carlos.Navarro@nrc.gov>, "Uhle, Jennifer, <Jennifer.U...
Date:
1/5/2010 6:20 PM
Subject:
RE: State of. New York request for MACCS2 Dear Janice and John -
I am writing in response to your request for a waiver of the $1,000 user fee, which is required for your office to obtain access to the MACCS2 code. Upon consideration of your request, the NRCStaff has determined that your request must be denied.
Information concerning the NRC's policies regarding access to its computer codes (including information regarding non-disclosure agreements and fees) may be viewed on the NRC's website, at www.nrccodes.com. As I informed you by E-mail on numerous occasions over the past many'months, a standard $1,000 user fee is charged for access to the MACCS2 code. In particular, information concerning the $1,000 user fee for access to the MACCS2 code can be viewed at:
http://spot.infosyslabs.com:8080/nrccodes/how-to-obtain.html.
The MACCS2 code was developed at considerable expense, and is maintained and administered at additional expense, by Sandia National Laboratories, in conjunction with NRC Staff employees. Sandia developed the MACCS2 code for the NRC, maintains it, and assumes administrative responsibility, for its distribution, handling, and related communications. A standard user fee is charged to recoup or help defray these costs. Sandia provides a free copy of the code to the NRC staff, NRC contractors, the U.S.
Department of Energy, and certain other entities, but all other requestors are charged a standard $1,000 user fee for access to the code. This fee applies to licensees, applicants, intervenors, members of the public, and state governments. No showing has been made by the State of New York to support a waiver of the standard user fee, to allow the State to obtain free access to the code in the Indian Point license renewal proceeding.
Moreover, as I have further informed you, the NRC is. prohibited by law from providing funding to intervenors involved in NRC adjudicatory proceedings.. Waiver of the user fee would likely violate the prohibition on intervenor funding, since the State of New York is an-intervenor in the Indian Point license renewal proceeding, and its need for the code, as clearly stated in your E-mail messages, 'relates exclusively to the State's proposed use of the code as an intervenor in the Indian Point proceeding.
In this regard, you may wish to consider, inter alia, the following: (1) 5 U:S.C. § 504 ("Costs and fees of parties") Note ("None of the funds in this Act or subsequent Energy and Water Development Appropriations Acts shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such Acts"), 1993 Energy and Water Development Appropriations Act, P.L. 102-377, Title V, § 502, 106 Stat. 1315, 1342 (Oct. 2, 1992); (2) Detroit Edison Co. (Fermi Unit 3), CLI-09-04,-69 NRC 80, 82-83 (2009) (rejecting the request of numerous public interest groups and other intervenors for consultation fees and for a waiver of the fee for access to SUNSI and SGI documents); and (3) Babcock and Wilcox (Apollo, Pennsylvania Fuel-Fabrication Facility --
Decommissioning Plan), LBP-93-4, 37 NRC 72, 94 n.65 (1993) ("[t]he Commission... is precluded by statutory directive from providing any funding to those who wish to intervene in agency adjudicatory or.
regulatory proceedings. See Energy and Water Development Appropriations Act, 1993, Pub. L. No.
102-377, § 502, 106 Stat. 1315, 1342 (1992) (covering fiscal year 1993)")i In sum, the standard user fee requirement and the statutory prohibition on intervenor funding preclude the NRC Staff from granting your request for a waiver of the required user fee for access to the MACCS2 code. Further, any waiver of the fee in this instance would set an unacceptable precedent for future instances in which an intervenor might seek waiver of a required user fee. Accordingly, we regret that we are unable to accommodate your request for a fee waiver.
The NRC Staff remains ready and willing to provide a copy of the MACCS2 code to you, upon payment of the required fee. The NRC Staff and Sandia have accommodated your previous request for modification
(1/6/2010) Janice Dean-RE: State of New York re'Ou6es'for MACCS2P age of the NRC's standard non-disclosure agreement, at considerable time and expense to us., I am pleased' that we were ableto accommodate your request to modify theterms of that agreement; but regret that we are unable to accommodate your current request for a waiver of the required user fee. If you wish to obtain a copy of the MACCS2 code, under the terms of the non-disclosure agreement which you have executed, please remit the required payment to me; I will then forward your payment to the appropriate office, and will arrange for a copy of the code to be provided to you.
Please note that any further communications regarding this matter should be directed to me or, in my absence, to Beth Mizuno of this office.
With best wishes for the New Year, Sincerely,
.Sherwin E. Turk Counsel for NRC Staff (301) 415-1533
-I EXHIBIT S
NRC Reactor Safety Code User Information Exchange Page I of 3
/
U.S. Nuclear Reg ulatory Comrmission Links How to Obtain NRC-Developed Computer Codes TRACE RELAP5In general, the NRC allows distribution of its reactor safety codes and tools to domestic PARCS organizations (utilities, vendors, academic institutions, commercial enterprises) and SNAP international organizations located in countries that participate in the Code Applications and FRAPCON/FRAPTRAN Maintenance Program (CAMP)or Cooperative Severe Accident Research Program (CSARP).
MELCOR ACGrace Specific procedures for obtaining NRC codes are as follows:
Request Site Access TRACE/RELAP5 Obtaining the Codes
- Retum to the Main Page If you are a domestic commercial organization:
- Fill out, sign and return this non-disclosure aqreement. When complete, you may fax or email it to Antony Calvo at 301-251-7423 or Antonyalv@nrc.gov e There are 2 levels of support provided:
o $5,000/year. The user-becomes a member of the domestic user group and is granted technical support and periodic code updates, o $1,000 one time fee for shipping and handling. Theeuser isentitled to installation assistance only.
o Code distribution and all payment transactions will be handled by the NRC contractor responsible for code distribution (in this case, Information System Laboratories, Inc).
If you are a domestic academic institution or NRC contractor:
Fill out, sign and return this non-disclosure agreement. When complete, you may fax or email it to Antony Calvo at 301-251-7423 or AtQ!.C.y
.o_.,_rggy
- The code is provided for no fee, although no technical assistance is provided.
If you -are an international governmental organization located'in a CAMP member country:
- Access to the code is provided through your -country's CAMP representative.
If you are an international non-governmental organization located in a CAMP member country:
- Access to the code is provided through your country's CAMP representative..
- ,In addition, you are, required to fill out, sign and return this nonn-*diisclosure agreement.
If you are an international organization located in a non-member countryi e You may request the code through the NRC's Office of International Programs.
PARCS PARCS exists'both as a stand-alone program and as a coupled version to both RELAP5 and TRACE. In general, distribution of the stand-alone version and the RELAPS-coupled version is handled directly by Purdue. University. The TRACE-coupled version is bundled directly into the TRACE distribution package so access to PARCS is automatic when requests for TRACE are made.
SNAP SNAP is developed and maintained by the NRC's contractor, Applied Programming Technology, Inc. (APT). You can download the code directly from http.:/www.*nr.,cnap.com, but access to the site is by registration only. You must fill out, sign and return this non-disclosure agreement. When complete, you may fax or email it to -Antony Calvo at 301-251--
http://spot.infosyslabs.com:8080/nrccodes/how-to obtain.html 1./12/2010
iKt-Keactor maiety Lode User Intormation Exchange
'Page 2 of 3 7423 or Antony.Calvo)n rc.gov. At this point, there is no charge to domestic users for obtaining the code, although this will most likely 'change (to a cost structure much like that of TRACE and RELAP5) in the future. Users are encouranged to provide feedback and submit bug reports. For CAMP member country organizations, SNAP is supported and maintained like TRACE and RELAP5.
MELCOR If you are a domestic commercial organization:
- Fill out, sign and return this non-discl osure agreemenit. When complete, you may fax or email it to Hossein Esmali at 301-251-7423 or Hossein.Esmali@nrc.gov
- $1,000 one time fee for shipping and handling..The user is entitled to installation assistance only.
- Code distribution and all payment transactions are handled by the NRC contractor responsible for code distribution (in this case, Sandia National Laboratory). Code requests can also be made directly from the MELCOR website.
If you are a domestic academic institution or NRC contractor:
- Fill out, sign and return this non-.disclosure agreement. When complete, you may fax or email it to Hossein Esmali'at 301-251-7423 or Hossein.Esmalianrc.gov
- The code is provided for no fee, although no technical assistance is provided.
If you are an international governmental organization located in a CSARP member country:
A Access to the code is providedthrough your country's CSARP representative.
If you are an international non-governmental organization located in a CSARP member country:,
- Access to the code is provided through your country's CSARP representative.
e In addition, you are required to fill out, sign and return this non-disclosure agreem~ent; If you are an international organization located in a non-member country:
- You may request the code through the NRC's Office of International Programs.
FRAPCON/FRAPTRAN Distribution of FRAPTRAN and FRAPCON are handled by NRC's contractor, (Pacific Northwest National Laboratory. Requests for obtaining the codes can be made from the FRAPCON websife. You will need to fill out, sign, and return this non-disclosureagreement.
SAPHIRE If you are a domestic organization or user:
, Fill out, sign and return this n on-_dJisclosu reeagre~emen.t. The code is provided for no fee, although no technical assistance is provided
- Technical assistance can be obtained from the NRC contractor.responsible for code distribution, the Idaho National Laboratory, by joining the SA.P-HI.IRE Users Gro$p.
If you are an international organization or user:
- You may request the code through the NRC's Office of International Programs.
ACGrace & APTPIot ACGrace and APTPIot are distributed under the GNU public license by Applied Programming Technology; Inc. They can be downloaded directly'from http://www.appliedprog.com without any restrictions.
)
http ://spot.infosyslabs.corm:8080/nrccodes/how tO obtainjlitmi
/2/0 0
iN,'(X. meactor !aiety t-oae user intormation ixcnange Page 3 of 3 I..
Access to some of the NRC's older archival versions of"RELAP5, TRAC-P, and TRAC-B is available via the Radiation Safety Information Computational Center at the Oak Ridge National Laboratory.
For questions regarding our code distribution procedures or if you would like to request a
'particular code, please contact Antony.Calvo at Antony.Calvo@nrc.gov http:i/spot.infosyslabs.com:8080/nrccodes/how-to obtain.html 1/12/2010
K EXHIBIT T
NRC Reactor Safety Code User Information Exchange Page I of 2 You are not logged in. Username Password Lo lFReseit U.S. Nuclear Regulatory Commission Links TRACE RELAP5 PARCS SNAP FRAPCON/FRAPTRAN MELCOR ACGrace Request Site Access Obtaining the Codes Home NRC Reactor Safety Code User Information Exchange Welcome to the NRC Reactor Safety Code User Information Exchange.-This site provides a web-based information and support site for the Office of Research's reactor'safety codes.
This system is intended for use by CAMP members, domestic users and the NRC staff only.
The NRC uses computer codes to perform probabilistic risk assessments and evaluate thermal-hydraulic conditions, severe accidents, fuel behavior, and reactor kinetics during various operating and postulated accident conditions. Results from applying the codes to these scenarios support decision-making for risk-informed activities, the review of licensees' codes and performance of audit calculations, and the resolution of other technical issues. Code development is directed 'toward improving the realism and reliability of code results and making the codes easier to use.
The NRC and countries in the international nuclear community have agreed to exchange technical information on thermal-hydrabulic safety issues related, to reactor and plant systems. Under the terms of their agreements, the NRC provides these member countries with the latest versions of its thermal-hydraulic systems analysis computer codes to help evaluate the safety of planned or operating plants in each member's country.
To help ensure these analysis tools are of the highest quality and can be used with confidence, the international partners perform and document assessments of the codes for a wide range of applications, including Identification of code improvements and error corrections. Thermal hydraulics codes are used to analyze loss-of-coolant accidents, (LOCAs), and system
-transients in light water nuclear reactors.
The NRC currently develops and maintains the following codes:
TRACE: The TRAC/RELAP Advanced Computational Engine. A modernized thermal-hydraulics code designed to consolidate the capabilities of NRC's 3 legacy safety codes - TRAC-P, TRAC-B and RELAP.
It is able to analyze large/small break LOCAs and system transients in both PWRs and BWRs. The capability also exists to model thermal hydraulic phenomena in both 1-D and 3-D space. This is NRC's flagship http://spot.iiifosysiabs.com:8080/nrccodes/nrc-codes.html1//20 1/12/2010
-I NRC Reactor Safety Code User Information Exchange Page 2.of 2 thermal-hydraulics analysis tool.
has the capability to model thermal hydraulic phenomena in 1-D components.
- Purdue Advanced Reactor Core Simulator for reactor kinetics simulation.
The Purdue Advanced Reactor Core Simulator, (PARCS) is a computer'code that solves the time-dependent two-group neutron diffusion equation in three-dimensional Cartesian geometry using nodal methods to obtain the transient neutron flux distribution. The code may be used in the analysis of reactivity-initiated accidents in light water reactors where spatial effects may be important. It may be run in the stand-alone mode or coupled to other NRC thermal-hydraulic codes such as RELAPS and TRACE. Through coupling with TRACE, the capabilities for RAMONA, NRC's legacy kinetics c6de are recovered.
- S!A.P: Symbolic Nuclear Analysis Package, SNAP, is a graphical user environment designed to assistthe NRC code user in all aspects of input model development.
This involves such tasks as the 1) the actual development of code input decks, 2) executing the models that have been developed, 3) visualizing the code output, and
- 4) managing the history of new and.old legacy models alike.
- FRAPCON/FRAPTRAN: FRAPCON is a computer code used for steady-state and mild transientanalysis of the behavior of a single fuel rod under near-normal reactor operating conditions. FRAPTRAN is a computer code used for transient and design basis accident analysis of the behavior of a single fuel rod under off-normal reactor operation conditions.
e MELC.!OR: Integral Severe Accident Analysis Code: Fast Running, parametric models
- ACiramce - formerly called Xmgr5, this program is used for plotting graphics for all NRC's major safety codes.
SSA.PHIRE - Systems Analysis Prog http://spot.infosyslabs.com:8080/nrccodes/nlrc-codes.html 11/01 1/12/2010
r EXHIBIT U
NUREG/CR-6613 SAND97-0594 Vol. 1 Code Manual for MACCS2:
Volume 1, User's Guide Manuscript Completed: March 1997 Date Published: May 1998 Prepared by D. Chanin Technadyne Engineering Albuquerque, NM 87112 M.L. Young Sandia National Laboratories Albuquerque, NM 87185 J. Randall, NRC Project Manager K. Jamali, DOE Project Manager Division of Systems Technology Office of Nuclear Regulatory Research U.S. Nuclear Regulatory Commission Washington, DC 20555 NRC JC W6231 Prepared for Office of Technical and Environmental Support Defense Programs U.S. Department of Energy Washington, DC 20585 US DOE Contract DE-AC04-94AL85000
ABSTRACT This report describes the use of the MACCS2 code. The document is primarily a user's guide, though some model description information is included.
MACCS2 represents a major enhancement of its predecessor MACCS, the MELCOR Accident Consequence Code System.
MACCS, distributed by government code centers since 1990, was developed to evaluate the impacts.- of severe accidents at nuclear power plants on the surrounding public.
The principal phenomena considered are atmospheric transport and deposition under time-variant meteorology, short-and long-term mitigative actions and~exposure pathways, deterministic and stochastic health effects, and economic costs. No other U.S. code that is publicly available at present offers all these capabilities. MACCS2 was developed as a, general-purpose tool applicable to diverse reactor and nonreactor facilities licensed by the Nuclear Regulatory Commission or operated by the Department of Energy or the Department of Defense.
The MACCS2 package includes three primary enhancements: (1) a more flexible emergency-response model, (2) an expanded library of radionuclides, and (3) a semidynamic food-chain model. Other improvements are in the areas of phenomenological modeling and new output options. Initial installation of the code, written in FORTRAN 77, requires a 486 or higher IBM-compatible PC with 8 MB of RAM.
iii
-NUREG/CR-6613
Preface This report describes the MACCS2 code; it is composed of two volumes. Volume 1 is based on the MACCS User's Guide, NUREG/CR-4691, Vol. 1 (Chanin et al. 1990). It is intended to allow experienced users of MACCS or other consequence codes to prepare input files and interpret code results.
The MACCS2 documentation does not duplicate information already contained in the MACCS Model Description, NUREG/CR-469 1, Vol. 2 (Jow et al. 1990). It is thus essential that the MACCS Model Description be available to the reader.
The companion to this report, Volume 2, (Chanin and Young, 1997-draft) describes the' MACCS2 preprocessor codes COMIDA2, FGRDCF, and IDCF2. COMIDA2 is a food pathway model that calculates food-chain doses per unit of deposited activity from multiple radionuclides.
FGRDCF and IDCF2 generate dose conversion factors (DCFs) that can be used by MACCS2.
DOSFAC2, an additional DCF preprocessor provided in the MACCS2 package, is described in a separate draft document, the DOSFAC2 User's Guide (Young, Chanin, and Banjac 1997-draft).
Sample files generated by these preprocessors for use by MACCS2 are provided as partof the distribution package. Operation of the MACCS2 sample problems requires that those files be installed on the host system, but all features of MACCS2 can be exercised without the need to actually run the preprocessor programs. The preprocessors are provided for those users who wish to generate DCF or food pathway data based on assumptions other than those used to generate the data in the, DCF and COMIDA2 files provided with the MACCS2 sample problems.
The distribution package includes both FORTRAN source code and PC executables. To the greatest possible extent, MACCS2 and its preprocessors comply with American National Standards Institute standard FORTRAN, making only !imited use of FORTRAN 90 extensions to the FORTRAN 77 language standard.
Installation of the complete software package requires a 486 PC' or higher processor, 8 MB of RAM, and approximately 30 MB of hard disk space. The executables provided were developed in a DOS environment. Additional software, such as proprietary memory managers for DOS, are not required, but some of these may facilitate the use'of the code. Guidance is'provided in regard to DOS memory managers and the installation of the package on other computer systems.
Xi NIUREG/CR-6613
4.0 Installing, and Running MACCS2 4.1 Introduction Installation instructions and system requirements for the MACCS2 package are provided in the' READMAC2.TXT file, listed in Appendix B of this document and distributed with the.MACCS2 package ZIP files. This file provides additional information not included in this section. It is recommended that. the user review this file before'exercising MACCS2.
Fourteen sample problems are included in the MACCS2 package. These may be exercised to ensure that the code has been correctly installed. The sample problems also provide example applications of various features of the code and are briefly described in this section.
4.2 Hardware Requirements
'MACCS2 requires an IBM-compatible/486 or Pentium PC with 8 MB of RAM and approximately30 MB of free disk space for installation of the entire software package. The use of MACCS2 on non-PC platforms will require a recompilation of the source code. The READMAC2.TXT file included in the bode package provides information for users who need to exercise MACCS2 on a non-PC platform.
When MACCS2 is installed on other computers, the numeric output values by and large should be identical'or very close to identical. The only significant deviation might lie in the probabilities of nonzero and peak value consequences since the precision of arithmetic and the handling of underflow, can vary on different computer systems.
4.3 Running MACCS2 A MACCS2 run is generated by calling the RUNMAX2.BAT file. Six filenames may be specified along with the RUNMAX2.BAT filename. MACCS2 sample problem A, for example, is executed as follows:
RUNMAX2 IN1A IN2A IN3A METSUR SURSIT LISTA Unless specified as null parameter (indicated by the use of" "), each of the first five filenames specified must be a valid.pathname to a previously created file to which the user has read access.
The input sequence of the six filenames and a brief description of the files is as follows:
- 1. ATMOS User Input File: INlA This parameter is always required and a null parameter is not allowed.
4-1 NUREG/CR-6613
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD X
In re:
Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
ASLBP No. 07-858-03-LR-BD01 DPR-26, DPR-64 January 15, 2010 x
CERTIFICATE OF SERVICE I hereby certify that on January 15, 2010, copies of the State of New York's motion to compel NRC staff to produce the MACCS2 code absent a fee in compliance with the National Environmental Policy Act and NRC disclosure regulations, were served upon the following persons via U.S. Mail and e-mail at the following addresses:
Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov Kaye D. Lathrop Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 190 Cedar Lane E.
Ridgway, CO 81432 Kaye.Lathrop@nrc. gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Zachary S. Kahn, Esq. &
Josh Kirstein, Esq., Law Clerks Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Zachary.Kahn@nrc.gov Josh.Kirstein@nrc.gov 1
Daniel Riesel, Esq.
Thomas F. Wood, Esq.
Jessica Steinberg, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York,. NY 10022 driesel@sprlaw.com j steinberg@sprlaw.com Michael J. Delaney, Esq.
Vice President - Energy Department New York City Economic Development Corporation (NYCEDC) 110 William Street New York, NY 10038 mdelaney@nycedc.com Manna Jo Greene, Director Hudson River Sloop Clearwater, Inc.
112 Little Market St.
Poughkeepsie, NY 12601 Mannaj o@clearwater.org Stephen Filler, Esq.
Board Member Hudson River Sloop Clearwater, Inc.
Suite 222 303 South Broadway Tarrytown, NY 10591 sfiller@nylawline.com Ross H. Gould Member Hudson River Sloop Clearwater, Inc.
10 Park Ave, #5L New York, NY 10016 rgouldesq@gmail.com Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
828 South Broadway Tarrytown, NY 10591 phillip@riverkeeper.org dbrancato@riverkeeper.org v\\
Teresa Fountain Dated at Albany, New York this 15th day of January 2010 3