ML101380085

NRC Staffs Reply to Pilgrim Watch Response to Boards May 5, 2010 Order

ML101380085
Person / Time
Site:	Pilgrim
Issue date:	05/17/2010
From:	Dreher M, Harris B, Uttal S NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY/RAS
References
50-293-LR, ASLB-06-848-02-LR, RAS J-229
Download: ML101380085 (7)

Text

UNITED UNITED STATES STATES OF OF AMERICA AMERICA NUCLEAR NUCLEAR REGULATORY REGULATORY COMMISSION COMMISSION BEFORE BEFORE THE THE ATOMIC ATOMIC SAFETYSAFETY AND AND LICENSING LICENSING BOARD BOARD In the In the Matter Matter of of )

))

ENTERGY NUCLEAR ENTERGY NUCLEAR GENERATION GENERATION )

COMPANYAND COMPANY AND ENTERGY ENTERGY NUCLEAR NUCLEAR )1 Docket No.

Docket No. 50-293-LR 50-293-LR OPERATIONS, INC.

OPERATIONS, INC. )

)

(Pilgrim Nuclear (Pilgrim Nuclear Power Power Station)

Station) )

NRC NRC STAFF'S STAFF'S REPLYREPLY TO TO PILGRIM PII-GRIM WATCH WATCH

RESPONSE

RESPONSE BOARD'S BOARD'S MAY MAY 5, 2010 ORDER 5,2010 ORDER INTRODUCTION INTRODUCTION Pursuant to Pursuant to the the Atomic Atomic Safety Safety andand Licensing Licensing Board's Board's ("Board")

("Board") Order Order (Regarding (Regarding Deadlines Submissions of Deadlines for Submissions of Parties)

Parties) of of May May 5,5, 2010 2010 ("Board's

("Board's Order"),

Order"), the the staff staff of the the U.S.

U.S.

Nuclear Nuclear Regulatory Regulatory Commission Commission ("Staff")

("Staff') hereby hereby submits submits this this reply reply to to Pilgrim Pilgrim Watch Watch ("PW")

("PW")

Response to Response ASLB's May to ASLB's May 5, 5, 2010 2010 Order Order ("PW's

("PW's Response").

Response").

The Commission The Commission explicitly explicitly limited limited the the scope scope of the the remanded remanded contention contention to to the the effects effects of additional meteorological additional meteorological data data or or alternative alternative meteorological meteorological models models on on the the conclusions conclusions of the the Pilgrim Nuclear Pilgrim Nuclear Power Power Station's Station's ("Pilgrim")

("Pilgrim1')Severe Severe Accident Accident Mitigation Mitigation Analysis Analysis ("SAMA").

("SAMA).

Specifically, they Specifically, they affirmed affirmed most most of thethe Board's Board's majority majority opinion opinion including including the the holding holding thatthat PW PW failed to failed to establish establish that that a genuine genuine issue issue of material material dispute dispute existed existed with with respect respect toto evacuation evacuation times and times and economic costs.costs. Moreover, Moreover, the the Commission Commission carefully carefully explained explained that PW PW impermissibly challenged impermissibly challenged thethe regulations regulations by by challenging challenging probabilistic probabilistic risk risk analysis analysis ("PRA").

("PRA"). PW PW now argues now argues that that the the Commission's Commission's Order Order essentially essentially remanded remanded Contention Contention 33 without without limitation.

limitation.

The arguments The arguments PW PW seeks seeks to to advance advance include include economic economic costs, costs, evacuation evacuation times, times, andand PRA PRA among others.

among others. PW's PW's Response Response seeks seeks to to bypass bypass the the Commission's Commission's OrderOrder byby ignoring ignoring the the clear instructions of the instructions the Commission Commission to first determine to first determine if PW'sPW's meteorological meteorological concerns concerns would would result result in in the identification the identification of aa newly newly cost-beneficial cost-beneficial SAMA.SAMA. Only Only if the the Board Board decides decides for PW PW in in this this first first

instance, will it need instance, need to look at the second issue: issue: the effect of changes to the meteorological inputs or meteorological models on economic costs. costs.

DISCUSSION DISCUSSION First, PW's Response essentially argues that PW must be First, be allowed allowed to challenge all all aspects of Pilgrim's SAMA analysis because the Board Board will not be be able to determine if any particular issue would be be material.

material. Second, Second, PW argues, argues, despite the Commission's clear instructions, that it must be instructions, be allowed allowed to present evidence regarding regarding the clean-up costs and and 1

increasing the regulatory area of analysis. analysis.' Finally, Finally, PW argues that the Board Board cannot separate PW's meteorological concerns from the concerns concerns about the economic costs and evacuation time. Each time. Each of PW's arguments ignores the Commission's Commission's instructions for the proper conduct of p r ~ c e e d i n2g . ~

remanded proceeding.

the remanded I.I. Remanded Contention Excludes The Remanded Excludes Separate and and Distinct Challenges to Pilgrim's SAMAs SAMAs Based on Economic Costs and Evacuation Based Evacuation Timing Timinq The Commission plainly excluded excluded challenges to Pilgrim's Pilgrim's SAMA analysis based based directly on economic costs, costs, evacuation times, times, the size of the affected affected area, area, economic infrastructure, infrastructure, and and costs.3 The Commission clean-up costS.3 Commission statedstated that PW's PW's arguments were "insufficient to demonstrate a genuine material dispute with the Pilgrim Pilgrim SAMA analysis's current overall overall cost-benefit conclusions .... . . .."4 Similarly, the Commission

,,4 Similarly, Commission heldheld that PW "failed "failed to present significantly probative evidence countering the Entergy expert evidence and supplemental analysis on cost^."^ But, economic costS."5 But, now, now, PW seeks to expandexpand the scope of its contention as originally plead, plead, as admitted by this Board, Board, and as further limited limited by the Commission, Commission, by not limiting limiting its its 1

1 Response at 4.

PW's Response 2

2 Id.

Id.

3 3 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Operations, Inc.

Inc. (Pilgrim (Pilgrim Nuclear Power Station),

Station), CLI-10-11 CLI-10-11 ("Commission's Order"),

Order"), 71 71 NRC - (March 26,

_ (March 26, 2010) (slip op.

op. at 25,27,36).

25, 27, 36).

4 4 Id. at 36.

Id. 36 5

5 Id.

Id.

challenges to the potential challenges potential effects effects of altering altering the meteorological meteorological inputs inputs to the MACCS2 MACCS2 codecode or using alternative using alternative meteorological meteorological models.

models. PW asserts, asserts, without basis, basis, that it may challenge challenge a "wide range" "wide range" of inputs inputs including including the size of the impacted impacted area,area, damages damages to economic infrastructure other than loss infrastructure loss of tourism tourism and and business business value,value, clean-up clean-up costs, costs, and PRA'6 among and PRA among others.

others.

However, the Commission However, Commission addressed addressed each each of these issuesissues inin detail.

detail. The Board Board is required to determine if any newly cost-beneficial required cost-beneficial SAMAs would result from the use of additional would result additional meteorological data or alternative meteorological meteorological meteorological models,models, before before looking looking at the effects effects on on the loss of tourism.

loss tourism. PW,PW, in in effect, effect, attempts attempts to avoid avoid this limitation limitation by essentially arguing that any change is material change material regardless regardless of its effect on Pilgrim's Pilgrim's SAMA analysisanalysis or that the Board Board is incapable of determining the materiality of the PW's meteorological incapable meteorological challenges challenges without analyzing analyzing all its all its other unrelated unrelated issues.

issues. Nonetheless, Nonetheless, the Commission Commission excluded excluded clean-up clean-up costs, costs, new challenges to the economic costs challenges costs not previously previously raised, raised, and and challenges challenges to economic costs, costs, and until except and until PW proves proves that a materially materially different resultresult of the SAMA analysis necessarily results from the meteorological results meteorological changes.

changes. PW, PW, also, also, suggests suggests expanding expanding the size of the impacted area, impacted area, even even though an an area with a 50-mile 50-mile radius radius is normally normally analyzed.

analyzed. This change change precludes resolving precludes resolving the contention contention by preventing preventing a valid comparison comparison of potentially cost-beneficial SAMAs.

beneficial SAMAs. As such,such, PW should should not be be allowed allowed to unfairly expand expand the scope of the contention as though no litigation contention litigation or decisions have have occurred.

occurred. Further, Further, the Board Board should should limit limit PW's arguments PW's arguments to the sole sole remaining remaining dispute, dispute, namely:

namely: will the use use of additional additional meteorological meteorological meteorological rnodels data or alternative meteorological rnodels identify newly cost-beneficial cost-beneficial SAMAs.

SAMAs.

II. The Commission II. Commission Held Held That PW's PW's Challenges Challenqes of PRA Are Impermissible Impermissible probabilistic risk analysis PW argues that the probabilistic analysis is not required required and and that other types of statistical analysis should statistical should be used.7 The Commission be used.? Commission held held that challenges challenges to PRA were outside outside 6

6 PRA is addressed more fully in in section II, II, infra.

infra.

? PW'S Response PW's Response at 2-3. questions whether PRA is even required 2-3. PW questions required by regulation.

regulation. Id.

Id. Under

license renewal the scope of license renewal proceedings proceedings and and could could not bebe asserted by PW. PW.'8 The Commission Commission stated that U[PRA]

stated "[PRA] claims claims fall beyond beyond the scope of [the] [the] NRC SAMA analysis and and impermissibly impermissibly challenge our regulations."g challenge regu~ations."~ Similarly, PW wishes to challenge Similarly, challenge the sizesize of the area to be be analyzed by Pilgrim's SAMA.

analyzed SAMA. Again, Commission explained, Again, as the Commission explained, challenges challenges to regulations regulations hearing.10 If PW wishes to challenge the use are not within the scope of this hearing. use of PRA techniques techniques for SAMA analysis or the size of the analyzedanalyzed area, area, it must, must, instead, instead, petition petition the Commission Commission for rulemaking. Since PW is precluded rulemaking. precluded from raising raising the issue of the use of PRA in in the Pilgrim Pilgrim license renewal license renewal hearing, hearing, the scope of the remanded remanded contention contention should should exclude any challenge challenge to and any other challenge PW raises PRA and raises regarding regarding the regulations regulations governing governing Pilgrim's Pilgrim's SAMA analysis.

analysis.

Ill. The Commission's III. Commission's Order Reguires Requires the BoardBoard to First First Determine Determine If the Effects Effects of PW's PW's Meteorological Concerns Meteorological Concerns on Pilgrim's Pilarim's SAMAAnalysis Would Result Result inin The Identification Identification of Cost-Beneficial SAMAs Newly Cost-Beneficial PW urges this Board Board to collapse collapse the inquiry directed directed by the Commission Commission into a single hearing covering issue for hearing arguments."11 But the Commission covering essentially any aspect of the arguments. Commission was Board must first resolve clear that the Board resolve whether PW's PW's additional additional meteorological meteorological data or meteorological models alternative meteorological models would materially alter the conclusions conclusions of Pilgrim's Pilgrim's SAMA analysis.12 Absent a conclusion analysis. conclusion that newly newly identified SAMAs result identified SAMAs result from PW's PW's meteorological meteorological challenges, the Board challenges, Board need need not consider or resolve resolve the effects effects of the meteorology meteorology on any 13 costs.13 To do otherwise economic costS. otherwise would fail to resolve resolve the Commission's Commission's stated issue -

stated issue-10 C.F.R. § 10 9 50.54(f), the Commission required required plants including Pilgrim Pilgrim to conduct systemic risk assessments with PRA being being an approved approved method.

method. See, e.g.,

e.g., Generic Letter No.

No. 88-20, 88-20, "Individual "Individual Plant Examination for Severe Accident Vulnerabilities -10 Examination - 10 CFR §50.54(f)," (November 23,1988).

23, 1988).

' Commission's 8 Commission~sOrder at 36-37.

36-37.

9 9 'd.

Id. at 33.

33.

10 10 'd.

Id. at 36-37.

36-37.

11 11 PW's PW's Response Response at 6-8.

6-8.

12 l2 Commission's Order at 27, 27, 35, 35, 37.

37.

13 l3 'd.

Id.

Pilgrim SAMA analysis "whether the Pilgrim analysis resulted resulted in in an an erroneous erroneous conclusion conclusion on the SAMAs SAMAs found found to be cost-beneficial be cost-beneficial to implement" implement" because because of the use use of the Gaussian Gaussian plume plume model model incorporated incorporated 14 in the ATMOS module in MACCS2 code.

module to the MACCS2 code.14 Because any inquiry into the effects Because effects of meteorological challenges meteorological challenges on economic economic costs costs are conditioned conditioned on the Board's Board's findings of material effects on the Pilgrim's material Pilgrim's SAMA analysis, analysis, conducting conducting an an evidentiary hearing hearing on issues issues material to the resolution that are not material resolution of that issue issue would would undermine undermine the intent intent of the Commission for a limited Commission limited hearing hearing on remand.

remand.

CONCLUSION CONCLUSION Because the Commission Because Commission limited limited the scope of the remanded remanded contention contention to additional additional meteorological data or alternative meteorological alternative meteorological meteorological modelsmodels and and the Board Board is capable capable of resolving resolving limited issues would result if these limited result in in the identification identification of newly cost-beneficial cost-beneficial SAMAs, SAMAs, the Board should Board should limit the scope of the hearing hearing to issues issues remanded remanded by the Commission.

Commission. Only if the Board determines that the meteorological Board meteorological issues issues would result result in in newly identified identified SAMAs, SAMAs, should should Board allow PW to present evidence the Board evidence regarding regarding how meteorological meteorological challenges challenges affect the costs. Thus, the use of a single economic costs. single hearing hearing limited limited to whether PW's meteorological meteorological issues are material issues material to Pilgrim's Pilgrim's SAMA analysis analysis would result in would result in the most efficient use use of resources and resources and clearest record record for the Board's decision.

decision.

Respectfully submitted, A

Susan L.

Susan L. Uttal Uttal Brian G.

Brian G. Harris Harris Michael G.

Michael G. Dreher Counsel for NRC Counsel NRC Staff Dated at Rockville, Dated Rockville, Maryland Maryland 17th day of May, This 17th May, 2010 2010 14 14 See Commission's Commission's Order at 36-37.

36-37.

UNITED STATES UNITED STATES OF AMERICA NUCLEAR REGULATORY NUCLEAR REGULATORY COMMISSION COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BEFORE LICENSING BOARD BOARD In the Matter of In )

)i ENTERGY NUCLEAR GENERATION GENERATION )1 COMPANY AND ENTERGY NUCLEAR COMPANY NUCLEAR )Docket No.

)Docket No. 50-293-LR OPERATIONS, INC.

OPERATIONS, INC. )1

)1 (Pilgrim Nuclear Generating (Pilgrim Generating Station)

Station) )1 CERTIFICATE OF SERVICE CERTIFICATE SERVICE hereby certify that copies I hereby copies of "NRC Staff's Reply Reply To Pilgrim Pilgrim Watch Watch Response Response Board's Board's May 5,5, Order" in 2010 Order" in the above-captioned above-captioned proceeding proceeding have have been been served served on the following following by electronic electronic mail and mail and by deposit inin the U.S.

U.S. Nuclear Regulatory Regulatory Commission's Commission's internal internal mail mail system, system, or, or, as indicated by an asterisk (*),

indicated mail and

(*), by electronic mail and by deposit in in the U.S.

U.S. Mail system this 1th Mail system 7'~

May, 2010.

day of May, 2010.

Administrative Administrative Judge Administrative Administrative Judge Richard F.

Richard F. Cole Paul B.

Paul B. Abramson Abramson Atomic Safety andand Licensing Licensing Board Board Panel Panel Atomic Safety andand Licensing Licensing Board Board Panel Panel Mail Stop:

Mail Stop: T-3F23 Mail Stop:

Mail Stop: T-3F23 T-3F23 U.S. Nuclear U.S. Nuclear Regulatory Commission Commission U.S. Nuclear Regulatory U.S. Regulatory Commission Commission Washington, DC Washington, DC 20555-0001 20555-0001 Washington, DC Washington, DC 20555-0001 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Richard.Cole@nrc.gov E-mail: PauI.Abramson@nrc.gov E-mail: Paul.Abramson@nrc.qov Administrative Judge Office of Commission Office Commission Appellate Appellate Ann Marshall Marshall Young, Chair Adjudication Adjudication Atomic Safety andand Licensing Licensing Board Board Panel Panel Mail Stop:

Mail Stop: 0-16G4 Mail Stop:

Mail Stop: T-3F23 T-3F23 U.S. Nuclear Regulatory U.S. Regulatory Commission Commission U.S. Nuclear Regulatory Commission U.S. Commission Washington, DC Washington, DC 20555-0001 20555-0001 Washington, DC Washington, DC 20555-0001 20555-0001 OCAAMAIL.Resource@nrc.sov E-mail: OCAAMAIL.Resource@nrc.gov E-mail:

E-mail: Ann.Younq@nrc.nov E-mail: Ann.Young@nrc.gov Atomic Safety andand Licensing Licensing Board Board Office of the Secretary Office Secretary Mail Stop:

Mail Stop: T-3F23 Attn: Rulemakings and Attn: Rulemakings and Adjudications Adjudications Staff U.S. Nuclear Regulatory U.S. Regulatory Commission Commission Mail Stop:

Mail Stop: 0-16G4 Washington, DC Washington, DC 20555-0001 20555-0001 U.S. Nuclear Regulatory U.S. Regulatory Commission Commission INTERNAL MAIL ONLY)

(VIA INTERNAL ONLY) Washington, DC Washington, DC 20555-0001 20555-0001 E-mail: Hearing.Docket@nrc.gov E-mail: Hearinq.Docket@nrc.qov

Sheila Slocum Sheila Slocum Hollis*

Hollis* Terence A.

Terence Burke, Esq.*

A. Burke, Esq.*

Duane Morris Duane Morris LLP LLP Entergy Nuclear Entergy 1667 K Street, 1667 Street, NW, NW, Suite 700 1340 Echelon 1340 Echelon Parkway Parkway Washington, DC Washington, DC 20006 Mail Stop:

Mail Stop: M-ECH-62 M-ECH-62 E-mail: sshollis@duanemorris.com E-mail: sshollis@duanemorris.com Jackson, MS Jackson, MS 39213 39213 tburke@enterqy.com E-mail: tburke@entergy.com E-mail:

Lampert*

Mary Lampert* David R.

David R. Lewis, Lewis, Esq*.

Esq*.

148 Washington 148 Washington Street Paul A. Gaukler, Paul Gaukler, Esq.

Esq.

Duxbury, MA 02332 Duxbury, Pillsbury, Winthrop, Pillsbury, Winthrop, Shaw, Shaw, Pittman, Pittman, LLP LLP E- mail: mary.lampert@comcast.net E-mail: 2300 N Street,Street, NW Washington, DC Washington, DC 20037-1137 20037-1137 david.lewis@pillsburylaw.com E-mail: david.lewis@pillsburylaw.com E-mail:

paul.gaukler@pillsburvlaw.com Kevin M.

Chief Kevin M. Nord* Town Manager*

Town Manager*

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

668 Tremont Street Plymouth, MA 02360 Plymouth, Duxbury, MA 02332 Duxbury, E-mail: marrighi@townhalI.~lymouth.ma.us E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxburv.ma.us E-mail: nord@town.duxbury.ma.us Richard R.

Richard R. MacDonald*

MacDonald* Matthew Brock, Matthew Brock, Esq.

Esq.**

Town Manager Assistant Attorney General, General, Chief 878 Tremont Street Environmental Protection Environmental Protection Division Division Duxbury, MA 02332 Duxbury, Office of the Attorney GeneralGeneral E-mail: macdonald@town.duxbury.ma.us E-mail: macdonald@town.duxbur~. ma.us One Ashburton 18th Floor Place, 18th Ashburton Place, Boston, MA 02108 Boston, 02108 E-mail: matthew.brock@state.ma.us E-mail:

.. _OJ

.vk" 0

/' c

/'

Brian G. s Counsel for the NRC Staff Counsel