ML101680374

Commission Memorandum and Order (CLI-10-15)

ML101680374
Person / Time
Site:	Pilgrim
Issue date:	06/17/2010
From:	Annette Vietti-Cook NRC/SECY
To:
SECY/RAS
References
50-293-LR, ASLB 06-848-02-LR, CLI-10-15, RAS J-248
Download: ML101680374 (11)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Gregory B. Jaczko, Chairman Kristine L. Svinicki George Apostolakis William D. Magwood, IV William C. Ostendorff

)

In the Matter of )

)

ENTERGY NUCLEAR GENERATION )

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

)

(Pilgrim Nuclear Power Station) )

___________________________________ )

CLI-10-15 MEMORANDUM AND ORDER Pilgrim Watch, the intervenor in this license renewal proceeding, has filed a motion for reconsideration of our decision in CLI-10-11, 71 NRC ___ (Mar. 26, 2010)

(slip op.).1 Both the NRC Staff and the applicants, Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (together, Entergy) oppose the motion.

We will grant a petition for reconsideration only upon a showing of compelling circumstances, such as a clear and material error, which could not have been reasonably anticipated and that renders the decision invalid.2 Pilgrim Watchs motion sets forth its disagreement with portions of our ruling in CLI-10-11, but does not 1

Pilgrim Watch Motion for Reconsideration of CLI-10-11 (Apr. 5, 2010) (Motion).

2 See 10 C.F.R. § 2.341(d) (referencing the standard found in § 2.323(e)).

demonstrate any material error or fundamental misunderstanding on our part. We therefore deny the motion.

The issue before us in CLI-10-11 was whether the Atomic Safety and Licensing Board erred in granting summary disposition of Pilgrim Watchs Contention 3, a contention challenging the Severe Accident Mitigation Alternatives (SAMA) analysis in Entergys Environmental Report. In LBP-07-13, a Board majority agreed with Entergy that, based upon new sensitivity studies, no genuine material dispute remained over any of the admitted issues regarding three aspects of the SAMA analysis: evacuation times, economic impact, and meteorological patterns.3 The majority therefore dismissed Contention 3 in its entirety, with one judge dissenting.4 In CLI-10-11, we agreed with Pilgrim Watch that the majority erred in declaring that no genuine material dispute remained on Contention 3s meteorological patterns claims.5 We therefore reversed the Boards summary disposition ruling in part, and remanded the meteorological patterns issue to the Board for hearing. But we agreed with the majority that Pilgrim Watch failed to raise any genuine material dispute for hearing on the evacuation timing and economic cost analysis issues.6 In its motion for reconsideration, Pilgrim Watch does not contest our conclusions on the remanded meteorological patterns issue or the evacuation timing issue, but argues that we improperly rewrote Contention 3 to limit the scope of issues that were part of the economic consequences portion of Contention 3.7 Specifically, Pilgrim 3

See LBP-07-13, 66 NRC 131, 141-46 (2007).

4 Id. at 156-68.

5 See CLI-10-11, 71 NRC __ (slip op. at 14-26).

6 See id. (slip op. at 27-36).

7 See Motion at 2.

Watch argues that we rewrote Contention 3 . . . to exclude any input data concerning the effects of a spent fuel accident; and . . . to exclude inputs concerning decontamination/interdiction clean-up costs and health costs.8 Pilgrim Watch claims that these issues were all part of Contention 3 as originally submitted, and that Pilgrim Watch did not add anything to expand the scope of the contention beyond what was accepted by the Board, recognized by Entergy and the Staff, and already of record throughout the filings.9 Pilgrim Watchs argument that we rewrote Contention 3 to exclude input data claims involving the effects of a spent fuel accident lacks any basis in fact. The full Board in its contention admissibility decision rejected Pilgrim Watchs spent fuel pool SAMA claims (raised in a separate contention, Contention 4) as an impermissible challenge to our license renewal regulations, and as beyond the scope of NRC SAMA analysis, which focuses upon reactor accidents.10 The majoritys decision on summary disposition accordingly rejected the Pilgrim Watch arguments on spent fuel pool fires as outside the scope of Contention 3 and of NRC SAMA analysis,11 a conclusion we confirmed in CLI-10-11.12 The admitted Contention 3 never included spent fuel pool accident risk claims.

8 See id.

9 See id. at 5.

10 See LBP-06-23, 64 NRC at 280-300. In Contention 4, Pilgrim Watch argued that Entergys Environmental Report was deficient because it did not analyze the environmental impacts of onsite spent fuel pool storage, and did not provide a SAMA analysis of spent fuel pool accidents. See id. at 281-82.

11 See LBP-07-13, 66 NRC at 147-48 (referring to rejected spent fuel pool contentions submitted in this proceeding by Pilgrim Watch and the Massachusetts Attorney General).

12 See CLI-10-11, 71 NRC __ (slip op. at 33-34). We noted, additionally, that we would further address Pilgrim Watchs spent fuel pool arguments in a separate decision addressing Pilgrim Watchs petition for review of LBP-06-23, the Board decision that (continued . . .)

We likewise did not rewrite Contention 3 to exclude health cost claims. The majority repeatedly stressed that Pilgrim Watchs opposition to summary disposition inappropriately raised various new health cost arguments, which were simply not reasonably inferable as part of Contention 3s admitted economic cost analysis challenges.13 We agreed that the new health cost arguments were never a part of Contention 3s admitted economic cost analysis challenges, and further noted that some of the new health claims are not even cognizable under the National Environmental Policy Act (NEPA).14 Under our rules, petitioners must set forth their contentions with particularity:15 The scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases, unless the contention is satisfactorily amended in accordance with our rules. . . . . Parties and licensing boards must be on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing. Our procedural rules are designed to ensure focused and fair proceedings.16 It should not be necessary to speculate about what a pleading is supposed to mean, and petitioners bear the responsibility for setting forth their grievances clearly.17 rejected Contention 4 as inadmissible. See id. at 34. In a separate Memorandum and Order issued today, we affirmed the Boards decision. See CLI-10-14, 71 NRC __ (slip op. June 17, 2010).

13 See LBP-07-13, 66 NRC at 148; see also id. at 143-44, 145-46.

14 See CLI-10-11, 71 NRC __ (slip op. at 29-31).

15 10 C.F.R. § 2.309(f)(1). It is simply insufficient, for example, for a petitioner to point to an Internet web site or article and expect the Board on its own to discern what particular issue a petitioner is raising . . . and why. USEC, Inc. (American Centrifuge Plant),

CLI-06-10, 63 NRC 451, 457 (2006) (emphasis added).

16 Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 70 NRC ___ (Jan. 7, 2010) (slip op. at 14) (emphasis added). See also, e.g., Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 359 (2001).

17 See Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),

CLI-99-4, 49 NRC 185, 194 (1999) (citation omitted).

Our contention standards . . . require petitioners to plead specific grievances, not simply to provide general notice pleadings.18 Accordingly, under longstanding NRC practice, if a question arises over the scope of an admitted contention, the Board or Commission will refer back to the bases set forth in support of the contention.19 Here, Contention 3 specifically described a failure to account for the loss of economic activity in Plymouth County, such as lost business value, [t]he fact that the business is an on-going business with inventory, equipment, and income generation capability, and losses associated with impacts to the tourism sector.20 Contention 3 did not include, for example, a challenge to the underlying conversion factor (dollar value per rem of exposure) used to compute health exposure costs, even though Entergys Environmental Report clearly and repeatedly had specified the conversion factor that was used - a standard factor from NRC guidance documents.21 In short, we did not 18 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 428-29 (2003).

19 See, e.g., Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 379, 386 (2002) (citing Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988), affd sub nom. Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991));

Crow Butte Resources, Inc. (North Trend Expansion Area), CLI-09-12, 69 NRC 535, 543, 553 (2009); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155 (1991).

20 Request for Hearing and Petition to Intervene By Pilgrim Watch (May 25, 2006)

(Petition for Hearing) at 44-45.

21 See, e.g., License Renewal Application (Pilgrim Nuclear Power Station), Appendix E, Environmental Report at 4-32, 4-36, 4-45. See also NUREG/BR-0184, Regulatory Analysis Technical Handbook, Final Report (June 1997) at 5.26.

Moreover, as the majority stressed, the challenged off-site economic costs portion of the SAMA analysis did not encompass the valuation of health consequences from dose exposure. See CLI-10-11, 71 NRC __ (slip op. at 30 n.118 (citing LBP-07-13, 66 NRC at 145-46)). The Pilgrim SAMA analysis separately assessed the monetary value of health consequences to off-site population in an off-site exposure costs analysis. See also, e.g., Environmental Report at 4-32, 4-36, 4-43. The only obvious arguments bearing on health and dose exposure in Contention 3 went to the accuracy of atmospheric (continued . . .)

remove any health cost claims from the scope of Contention 3, but agreed with the majority that Pilgrim Watch improperly sought to oppose summary disposition with various distinctly new economic cost analysis challenges never proffered, supported, or admitted as part of Contention 3s economic cost claims.

We also noted that Pilgrim Watchs opposition to summary disposition raised particular new challenges that decontamination or clean-up costs had been dramatically underestimated in the SAMA analysis.22 Again, these were claims nowhere intimated by Contention 3 as proffered or admitted, as both Entergy and the Staff argued.23 More significantly, quite apart from any timeliness or contention scope issues dispersion modeling (which depicts the projected plume trajectory and related radionuclude deposition), the meteorological patterns issue we remanded for hearing.

22 CLI-10-11, 71 NRC __ (slip op. at 30-31).

23 See id. & n.119. The specific decontamination arguments found beyond the scope of Contention 3 were that the economic cost analysis fundamentally mischaracterized decontamination costs because its underlying decontamination assumptions are based on a radiological weapon event where particulates are relatively large and swept up with a broom (an argument never specifically raised in the opposition to summary disposition and therefore waived), and a claim that the analysis failed to account for the difficulty of conducting ecological restoration. See id. (slip op. at 30).

Pilgrim Watch appears to believe that, because its contention broadly referred to economic infrastructure and economic activity, it was free to add at will all manner of distinctly new claims simply by labeling these as issues falling within the infinitely broad umbrella of economic activity, regardless of whether Contention 3 gave adequate notice of the challenges, or provided the necessary support for their admission. See Motion at 5-6. But as we have stressed, NRC contention standards do not allow for general notice pleading[s], with details to be filled in later. Millstone, CLI-01-24, 54 NRC at 363 (citation omitted). Pilgrim Watchs motion now sets forth an expansive definition of what it states it meant by economic infrastructure, asserting a litany of matters neither outlined in its contention, nor even identified or argued before the Board in Pilgrim Watchs opposition to summary disposition. See Motion at 5-6.

Pilgrim Watch is correct that NRC SAMA analyses routinely account for decontamination costs, as Entergy documents properly described. See Motion at 4-5.

Contention 3 acknowledged that SAMA economic cost calculations include decontamination costs, an undisputed point. See Petition for Hearing at 43-44; CLI 11, 71 NRC at __ (slip op. at 31 n.119). That all parties were aware that decontamination costs are part of SAMA analysis has no bearing on the timeliness of the particular (continued . . .)

bearing on the decontamination/cleanup arguments, we considered all of Pilgrim Watchs economic cost arguments on summary disposition, but agreed with the Board majority that Pilgrim Watch failed to present any significantly probative evidence of a genuine material dispute on any of its economic cost input claims.24 Whether within the scope of Contention 3 or not, none of Pilgrim Watchs economic cost arguments raised a genuine material dispute for hearing. Pilgrim Watch provides us with no reason to revisit that conclusion.

Building off of its initial claim, Pilgrim Watch additionally argues that we applied the incorrect standard of review in considering the Boards grant of summary disposition, and thereby improperly limit[ed] the evidence that Pilgrim Watch may present at the remand hearing. Pilgrim Watch suggests that, absent the Boards error in granting summary disposition and our subsequent error in reviewing that decision, Pilgrim Watch later would have assembled and submitted more evidence to support Contention 3 on inputs relating to economic consequences, including evidence on spent fuel pool accident consequences, decontamination, and health costs.25 This argument is without merit. The premise of Pilgrim Watchs argument depends on the viability of its position that we improperly limited the scope of Contention

3. However, as we explained above, the scope of Contention 3 was dictated by Pilgrim Watch in its original pleading, not by our decision in CLI-10-11. With regard to summary disposition, while Pilgrim Watch certainly was not required to present all of its supporting decontamination claims Pilgrim Watch later sought to introduce to oppose summary disposition. Simply put, Contention 3 neither challenged underlying assumptions regarding how decontamination costs are computed, nor asserted ecological restoration claims. Moreover, even if timely, Pilgrim Watchs opposition to summary disposition raised no supported, genuine material dispute on these claims.

24 CLI-10-11, 71 NRC __ (slip op. at 31 & n.121).

25 Motion at 7-8.

evidence at the summary disposition stage, it was incumbent upon it to provide some significantly probative evidence of a genuine material dispute to counter Entergys motion for summary disposition, which addressed the three parts of Contention 3:

meteorological patterns, evacuation timing inputs, and economic cost analysis.

At the summary disposition stage, the quality of evidentiary support is expected to be of a higher level than that at the contention filing stage.26 Because Pilgrim Watch failed to provide significantly probative evidence of a genuine material dispute for hearing on the evacuation inputs and economic cost issues, we affirmed the Board majoritys conclusion that no material dispute remained on those portions of the contention. Pilgrim Watch therefore cannot now insist that it is free to present evidence on remand challenging the inputs in the Pilgrim SAMA off-site economic costs analysis, to the extent that such evidence is not within the scope of the remanded meteorological patterns issue, as explained in CLI-10-11.27 In CLI-10-11, we gave careful and generous consideration to all of Pilgrim Watchs arguments challenging the Board majoritys dismissal of Contention 3. Pilgrim Watchs motion for reconsideration points to no compelling circumstances such as clear and material error or oversight that would render the Commissions decision invalid and 26 CLI-10-11, 71 NRC __ (slip op. at 36) (quoting Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, Final Rule, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989)).

27 We also note that Pilgrim Watchs motion closes with the suggestion that we have prejudged the SAMA analysis issue because in CLI-10-11 we noted that the GEIS concludes, based on an extensive and bounding analysis, the probability-weighted consequences of a severe accident are small for all plants. Motion at 9 See also CLI-10-11, 71 NRC ___ (slip op. at 37, 39). We have not prejudged the issue. Pilgrim Watch itself acknowledged the distinction between the GEISs generic severe accident consequences finding and the requirement for a site-specific SAMA analysis: even though the probability of a severe accident is so low that the impacts can be considered small, all plants must still individually consider alternatives to mitigate the consequences of those accidents. Petition for Hearing at 29 (emphasis in original).

therefore is denied. Finally, we encourage the Boards continued progress in establishing the schedule for the remainder of the proceeding and achieving its timely conclusion.28 IT IS SO ORDERED.29 For the Commission

[NRC SEAL] /RA/

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland this 17th day of June, 2010.

28 Late last week, Judge Abramson issued a decision denying a motion by Pilgrim Watch requesting that he recuse himself from this proceeding. See Decision (Denying Motion on Behalf of Pilgrim Watch for My Self-Disqualification from the Remand Proceedings and Referring Motion to the Commission) (June 10, 2010). Judge Abramson has referred the matter to us pursuant to 10 C.F.R. § 2.313(b)(2). We will address the referral in the near term.

29 Commissioner Apostolakis did not participate in this matter.

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

)

ENTERGY NUCLEAR GENERATION CO. )

AND )

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

)

(Pilgrim Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-10-15) in the above captioned proceeding have been served upon the following persons by electronic mail this date, followed by deposit of paper copies in the U.S. mail, first class, and NRC internal mail.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop - T-3 F23 Mail Stop: O-15 D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Administrative Judge Susan L. Uttal, Esq.

Ann Marshall Young, Chair E-mail: Susan.Uttall@nrc.gov E-mail: Ann.Young@nrc.gov David Roth, Esq.

E-mail: David.Roth@nrc.gov Administrative Judge Andrea Z. Jones, Esq.

Richard F. Cole E-mail: Andrea.Jones@nrc.gov E-mail: Richard.Cole@nrc.gov Brian G. Harris, Esq.

brian.harris@nrc.gov Administrative Judge Michael G. Dreher, Esq.

Paul B. Abramson E-mail: Michael.Dreher@nrc.gov E-mail: Paul.Abramson@nrc.gov Brian Newell, Paralegal E-mail: Brian.Newell@nrc.gov Katherine Tucker, Law Clerk katie.tucker@nrc.gov E-mail: OGCMailCenter.Resource@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of Secretary of the Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMail.Resource@nrc.gov E-mail: hearingdocket@nrc.gov

2 Docket No. 50-293-LR COMMISSION MEMORANDUM AND ORDER (CLI-10-15)

U.S. Nuclear Regulatory Commission Pillsbury, Winthrop, Shaw, Pittman, LLP Office of Nuclear Reactor Regulation 2300 N. Street, N.W.

Mail Stop: O11-F1 Washington, DC 20037-1128 Washington, DC 20555-0001 David R. Lewis, Esq.

Lisa Regner E-mail: david.lewis@pillsburylaw.com Senior Project Manager Paul A. Gaukler, Esq.

Division of License Renewal E-mail: paul.gaukler@pillsburylaw.com E-mail: Lisa.Regner@nrc.gov Jason B. Parker, Esq.

E-mail: jason.parker@pillsburylaw.com Entergy Nuclear Office of the Attorney General 1340 Echelon Parkway Environmental Protection Division Mail Stop M-ECH-62 One Ashburton Place, 18th Floor Jackson, MS 39213 Boston, MA 02108 Terence A. Burke, Esq. Matthew Brock, Assistant Attorney General E-mail: tburke@entergy.com E-mail: matthew.brock@ago.state.ma.us Duxbury Emergency Management Agency Town of Plymouth MA 668 Tremont Street Town Managers Office Duxbury, MA 02332 11 Lincoln Street Plymouth, MA 02360 Kevin M. Nord, Fire Chief & Director E-mail: nord@town.duxbury.ma.us Melissa Arrighi, ActingTown Manager E-mail: marrighi@townhall.plymouth.ma.us Duane Morris, LLP Pilgrim Watch Town of Plymouth MA 148 Washington Street 505 9th Street, NW, Suite 1000 Duxbury, MA 02332 Washington, DC 20004-2166 Mary E. Lampert, Director Sheila Slocum Hollis, Esq.

E-mail: mary.lampert@comcast.net E-mail: sshollis@duanemorris.com

[Original signed by Nancy Greathead]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 17th day of June 2010