ML102390117

Commission Memorandum and Order (CLI-10-22)

ML102390117
Person / Time
Site:	Pilgrim
Issue date:	08/27/2010
From:	Annette Vietti-Cook NRC/SECY
To:
SECY RAS
References
50-293-LR, ASLBP-06-848-02-LR, CLI-10-22, RAS J-263
Download: ML102390117 (12)

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

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In the Matter of

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ENTERGY NUCLEAR GENERATION

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Docket No.50-293-LR COMPANY and ENTERGY NUCLEAR

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OPERATIONS, INC.

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(Pilgrim Nuclear Power Station)

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___________________________________ )

CLI-10-22 MEMORANDUM AND ORDER Pursuant to 10 C.F.R. § 2.313(b)(2), Pilgrim Watch, the intervenor in this license renewal proceeding, moved for disqualification of Administrative Judge Paul B. Abramson.1 In a recent decision, Judge Abramson denied the motion.2 Under our regulations, if an Atomic Safety and Licensing Board member declines to grant a partys recusal motion, the motion is referred to the Commission to determine the sufficiency of the grounds alleged.3 Accordingly, we have 1 Motion on Behalf of Pilgrim Watch for Disqualification of Judge Paul B. Abramson in the Pilgrim Nuclear Power Station Relicensing Proceeding (May 14, 2010) (Pilgrim Watch Motion).

2 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Watch for My Self-Disqualification from the Remand Proceedings and Referring Motion to the Commission) (June 10, 2010) (unpublished)

(Decision).

3 See 10 C.F.R. § 2.313(b)(2).

reviewed Pilgrim Watchs motion, Judge Abramsons decision, and the parties related briefs.4 For the reasons outlined below, we agree that disqualification is not warranted.

DISCUSSION Pilgrim Watchs motion relies upon the disqualification standard for federal court justices, judges, and magistrates, found in 28 U.S.C. § 455. Specifically, Pilgrim Watch relies upon the following provisions of § 455:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding....

Judge Abramsons decision likewise refers to the § 455 standard. By its own terms, the disqualification standard under 28 U.S.C. § 455 is not directed to administrative judges, but the Commission and its adjudicatory boards have applied it in assessing a motion for disqualification under 10 C.F.R. § 2.313, and it provides a helpful framework for such an assessment.5 We apply the standard here, and find disqualification to be unwarranted.

Pilgrim Watch bases its motion for disqualification on two sentences spoken at a May 4, 2010, telephone conference. In requesting the resume of David Chanin, a Pilgrim Watch expert on the MACCS2 (MELCOR Accident Consequence Code System 2) code, Judge Abramson 4 Our rules do not contemplate additional briefing by the parties following a referral pursuant to Section 2.313(b)(2). Nonetheless, all three parties filed additional pleadings before us. As a matter of discretion we took these filings into account in making todays decision.

5 See Hydro Resources, Inc., CLI-98-9, 47 NRC 326, 331 (1998); Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363, 1365-67 (1982). See also Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562, 571 (D.C. Cir. 2007); Metro. Council of NAACP Branches v. FCC, 46 F.3d 1154, 1164-65 (D.C. Cir. 1995).

stated the following: Let me ask you to submit [Chanins] resume because I dont believe he wrote the code. I was involved with a lot of that personally.6 Pilgrim Watchs motion notes that the MACCS2 code was used to perform the Severe Accident Mitigation Alternatives (SAMA) analysis challenged in this proceeding, and that there are issues before the Board on remand that go to the adequacy of the codes straight-line Gaussian plume model as applied to the Pilgrim site.7 Pilgrim Watch argues that Judge Abramsons brief statement makes clear that he has personal knowledge of the MACCS2 code, and that he has (or at least reasonably appears likely to have) his personal views of its adequacy.8 Pilgrim Watch therefore stresses that Judge Abramson should disqualify himself because he... has personal knowledge of disputed evidentiary facts concerning the proceeding.9 Pilgrim Watch further claims that Judge Abramsons statement that he did not believe that Mr. Chanin wrote the code would clearly... cause a reasonable person to question Judge Abramsons impartiality and whether he has a personal bias or prejudice concerning Mr. Chanin, Pilgrim Watchs expert witness.10 In denying the recusal motion, Judge Abramson initially acknowledges that he can understand how [Pilgrim Watch] reached the conclusion that he was involved in developing the MACCS2 code.11 But he then goes on to clarify that in fact he had no personal involvement in the creation of the MACCS2 code and has no personal knowledge of disputed evidentiary 6 Transcript (May 4, 2010) at 665.

7 See Pilgrim Watch Motion at 3.

8 Id. at 4.

9 Id. at 4 (quoting 28 U.S.C. § 455(b)(1)).

10 Id.

11 Decision at 7.

facts concerning it.12 He explains that what he meant by the words a lot of that is that he worked earlier in his career as a scientist developing computer codes for accident analysis, including work modeling various phenomena and incorporating such models into nuclear reactor safety analysis codes.13 Judge Abramson emphasizes that he had absolutely nothing to do with the modeling or development of the MACCS2 code or any of its predecessor versions, and possesses no particular knowledge of the modeling or methods of MACCS2 beyond that which would be expected of any scientist reasonably knowledgeable in this area of nuclear science.14 Judge Abramson additionally states that under the Atomic Energy Act, the scientist members of the Licensing Board are expected, indeed required, to have technical or other qualifications... appropriate to the issues to be decided, and therefore any background that he may have in modeling or computer code mechanics would be fully consistent with the Congressional mandate regarding NRC adjudicatory hearings.15 Judge Abramson further explains that on remand the central issues concern the ability of the MACCS2 computer code to compute the effects of certain meteorological patterns, and whether there is significant error in the modeling of meteorology.16 He then says that he never had any involvement whatsoever with [the] modeling of meteorology, nor any prior knowledge of or experience with the entire MACCS2 code.17 Noting that the standard for disqualification under 28 U.S.C. § 455 is whether the reasonable person who know[s] all the circumstances, 12 Id.

13 Id.

14 Id. at 8-9 (emphasis in original).

15 Id. at 12-13 (referencing Atomic Energy Act and its history regarding establishment of the Atomic Safety and Licensing Board Panel).

16 See id. at 14.

17 See id. at 9,16 (emphasis added).

would harbor doubts about the judges impartiality,18 Judge Abramson concludes that there is nothing in his professional background that might lead an impartial observer, cognizant of all the circumstances, to reasonably believe that he has prejudged the capability (or, for that matter, any lack of such capability) of MACCS2 to predict the phenomena at issue in this proceeding.19 As to his request for Mr. Chanins resume, Judge Abramson explains that he did not single out Pilgrim Watch or Mr. Chanin, but requested all of the parties to provide the Board with the full credentials on their experts.20 He further explains that Pilgrim Watchs representative repeatedly stated that Mr. Chanin wrote the code, which implied to Judge Abramson that Mr.

Chanin was the sole author of the MACCS2 code.21 Because this bare implication of sole authorship was repeated many times by [Pilgrim Watch], Judge Abramson states that he wanted to better understand the extent of Mr. Chanins role in developing the code, given that there are many stages to code development, including developing and implementing models, organizing and supervising programming and computational methodology, and verifying and validating computations, and Pilgrim Watch appeared to be suggesting that Mr. Chanin personally and by himself performed all of these functions.22 Judge Abramson states that the information then in the record did not specify what roles Mr. Chanin had in developing the MACCS2 code, nor specified his particular areas of expertise. Because the core issue on remand involves meteorological modeling, Judge Abramson states that he appropriately wanted 18 Id. at 10 (quoting Shoreham Nuclear Power Station (Shoreham Nuclear Power Station, Unit 1), CLI-84-20, 20 NRC 1061, 1078 n.46 (1984) (citation omitted)).

19 Id.

20 Id. at 17-18 (quoting Tr. at 653).

21 Id. at 16, 18-19.

22 Id. at 18-19.

to elicit further information on Mr. Chanins involvement and knowledge of the meteorological model in the MACCS2 code. Judge Abramson states that he has not prejudged Mr. Chanins expertise and has no bias against him.

As Judge Abramson points out, the proper inquiry under 28 U.S.C. § 455 is made from the perspective of a reasonable person, knowing all the circumstances.23 That an unreasonable person, focusing on only one aspect of the story, might perceive a risk of bias is irrelevant.24 Section 455(a) requires a showing that would cause an objective, disinterested observer fully informed of the underlying facts [to] entertain significant doubt that justice would be done absent recusal.25 Judge Abramson has explained on the record the context in which his comments were made, and why they did not call for his disqualification. We agree with Judge Abramson. Given his explanation of his original remarks, an impartial observer, cognizant of the record, would find no reasonable factual basis to question his impartiality or question whether he has knowledge of disputed evidentiary facts going to the adequacy of the MACCS2 code.

Pilgrim Watch suggests that Judge Abramsons prior experience in modeling, creating and working with computer codes to predict accident scenarios itself constitutes extrajudicial knowledge of... disputed evidentiary facts.26 But mere experience or background in a relevant technical field does not imply knowledge of the specific disputed facts in a case. 27 23 Sao Paolo State of the Federative Republic of Brazil v. Am. Tobacco Co., Inc., 535 U.S. 232-33 (2002) (emphasis in original).

24 In re Sherwin-Williams Co., 607 F.3d 474, 477 (7th Cir. 2010).

25 In re Aguinda, 241 F.3d 194, 201 (2d Cir. 2001) (internal quotation omitted).

26 Pilgrim Watch Response to Judge Paul B. Abramson Decision On Recusal Motion (June 16, 2010) (Pilgrim Watch Response to Decision) at 11 (emphasis in original).

27 See, e.g., United States v. Bonds, 18 F.3d 1327, 1330-31 (6th Cir. 1994); In re Aguinda, 241 F.3d at 204-05; Clarkco Landfill Co. v. Clark Cty. Solid Waste Mgt. Dist., 20 F.Supp.2d 1185, 1191 (S.D. Ohio 1998).

Here, Judge Abramsons prior experience in accident modeling ended 26 years ago,28 and did not involve either the MACCS2 code or meteorological modeling of any kind. It would be purely speculative to assume that Judge Abramsons prior experience in the field of severe accident modeling (a field encompassing an array of topics) involved the specific modeling evidence or facts that may be material to the disposition of this proceeding on remand. Moreover, in this -

as in every NRC adjudicatory proceeding - Licensing Board judges remain under a continuing obligation to withdraw if a ground for disqualification arises.29 An additional aspect of Judge Abramsons decision warrants special comment. Going beyond the four corners of Pilgrim Watchs recusal motion, Judge Abramsons decision refers to fundamental disagreement over the scope of issues on remand.30 Moreover, the record reflects that there may be some confusion about the intent of our remand decision in CLI-10-11.

We therefore take this opportunity to clarify matters and perhaps simplify the proceeding on remand.

Judge Abramson correctly notes that the MACCS2 code contains a meteorological atmospheric dispersion module (called ATMOS) that uses a straight-line Gaussian plume dispersion model. The ATMOS module is used to predict the transport, dispersion, and deposition of radiologic material following a severe accident. Other modules in the MACCS2 code (called EARLY and CHRONC) use the ATMOS dispersion modeling results to calculate expected accident consequences (e.g., from radiological doses and land contamination) and complete the SAMA cost-benefit risk analysis. Judge Abramson is correct that the issue on remand focuses on the adequacy of the atmospheric dispersion modeling in the Pilgrim SAMA 28 See Decision at 8 n.18.

29 See 10 C.F.R. § 2.313(b).

30 See Decision at 2-4, 14-15.

analysis, not the methodology or underlying assumptions used for translating the atmospheric dispersion modeling results into economic costs.

Judge Abramson mistakenly assumes, however, that in CLI-10-11 we directed or otherwise required that the MACCS2 [code] computations be redone by varying the meteorological modeling in the code.31 In CLI-10-11, we found that material factual disputes remained, and therefore it had been inappropriate for the Board majority to dismiss Pilgrim Watchs dispersion modeling challenge.32 We also stressed that the mere fact that a plume model may not reflect all meteorological phenomena would not necessarily mean that the Pilgrim SAMA cost-benefit conclusions are incorrect.33 We noted that the record contained specific, potentially significant considerations going to whether Pilgrim Watchs meteorological claims could credibly have a material effect on the SAMA cost-benefit conclusions, but that the Board had not addressed any of these considerations.34 Judge Abramsons decision suggests that the remand should focus only on changing variables in the meteorological input and models used in the ATMOS module.35 He has encouraged the parties experts to discuss whether such an approach would be meaningful, but it is not clear that they will agree that varying inputs would produce meaningful results.36 This 31 See id. at 14 n.40.

32 See CLI-10-11, 71 NRC __ (slip op. at 18-23) (Mar. 26, 2010).

33 See id. at 21-23, 25-26.

34 Id. (referencing Entergys WSMS Report). We additionally noted in CLI-10-11 that it is NRC practice for SAMA analysis to utilize mean consequence values, which results in an averaging of potential consequences. See id. at 38-39. Because Pilgrim Watch apparently questions this practice, see, e.g., Tr. at 637, it would be appropriate for the Board on remand to consider whether the NRCs practice is reasonable for a SAMA analysis, and whether Pilgrim Watchs concerns are timely raised.

35 See Decision at 15.

36 See, e.g., Tr. at 618, 645 (opinion of Pilgrim Watch expert Dr. Bruce Egan that the sea breeze effect is three-dimensional and cannot be reflected by a straight-line plume model).

remains, therefore, a disputed question. Indeed, what Judge Abramson characterizes as a dispute over the scope of the remanded meteorological patterns issue appears at least partially to be a dispute over how to assess the remanded issue, for which there may not be one clear-cut answer.

Notably, there are practical constraints on the degree to which the meteorological modeling can be altered in the MACCS2 code, which is the most current, established code for NRC SAMA analysis. As Pilgrim Watch states, the straight-line Gaussian plume model is embedded in the MACCS2 code.37 Therefore, it is not possible simply to plug in and run a different atmospheric dispersion model in the MACCS2 code to see if the SAMA cost-benefit conclusions change. The three modules (ATMOS, EARLY, and CHRONC) in the MACCS2 code are integral parts of the code.

As we earlier emphasized, NEPA requirements are tempered by a practical rule of reason.38 An environmental impact statement is not intended to be a research document.39 If relevant or necessary meteorological data or modeling methodology prove to be unavailable, unreliable, inapplicable, or simply not adaptable for evaluating the SAMA analysis cost-benefit conclusions, there may be no way to assess, through mathematical or precise model-to-model comparisons, how alternate meteorological models would change the SAMA analysis results.

Some assessments may necessarily be qualitative, based simply on expert opinion.

Ultimately, NEPA requires the NRC to provide a reasonable mitigation alternatives analysis, containing reasonable estimates, including, where appropriate, full disclosures of any known shortcomings in available methodology, disclosure of incomplete or unavailable 37 See Pilgrim Watch Response to Decision at 4.

38 See Communities, Inc. v. Busey, 956 F.2d 619, 626 (6th Cir. 1992); CLI-10-11, 71 NRC __

(slip op. at 37). See also, e.g., Hells Canyon Alliance v. United States Forest Serv., 227 F.3d 1170, 1184-85 (9th Cir. 2000).

39 See Town of Winthrop v. FAA, 533 F.3d 1,13 (1st Cir. 2008).

information and significant uncertainties, and a reasoned evaluation of whether and to what extent these or other considerations credibly could or would alter the Pilgrim SAMA analysis conclusions on which SAMAs are cost-beneficial to implement.40 CONCLUSION For the reasons outlined in this decision, we agree with Judge Abramsons determination that Pilgrim Watchs motion does not provide any ground warranting his disqualification.

IT IS SO ORDERED.41 For the Commission

[NRC Seal]

/RA/

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland this 27th day of August, 2010.

40 See, e.g., Laguna Greenbelt, Inc. v. United States Dept. of Transp., 42 F.3d 517, 528 (9th Cir. 1994); Lands Council v. McNair, 537 F.3d 981, 1001-02 (9th Cir. 2008); Communities, 956 F.2d at 626; Or. Natural Res. Council Fund v. Goodman, 503 F.3d 884, 897 (9th Cir. 2007);

Village of Bensonville v. FAA, 457 F.3d 52, 71 (D.C. Cir. 2006); N.J. Dept. of Envtl Prot. v.

NRC, 561 F.3d 132, 144 (3d Cir. 2009); Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1358-60 (9th Cir. 1994); Sierra Club v. United States Dept. of Transp., 310 F.Supp.2d 1168, 1188 (D. Nev. 2004); San Francisco Baykeeper v. United States Army Corps of Engrs, 219 F.Supp.2d 1001, 1013-1016 (N.D. Calif. 2002).

41 Commissioner Apostolakis did not participate in this matter.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of

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ENTERGY NUCLEAR GENERATION CO. )

AND

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ENTERGY NUCLEAR OPERATIONS, INC. )

Docket No. 50-293-LR

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(Pilgrim Nuclear Power Station)

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-10-22) 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 Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 Washington, DC 20555-0001 Administrative Judge Ann Marshall Young, Chair E-mail: Ann.Young@nrc.gov Administrative Judge Richard F. Cole E-mail: Richard.Cole@nrc.gov Administrative Judge Paul B. Abramson E-mail: Paul.Abramson@nrc.gov Katherine Tucker, Law Clerk katie.tucker@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O-15 D21 Washington, DC 20555-0001 Susan L. Uttal, Esq.

E-mail: Susan.Uttall@nrc.gov Andrea Z. Jones, Esq.

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

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

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

Docket No. 50-293-LR COMMISSION MEMORANDUM AND ORDER (CLI-10-22) 2 U.S. Nuclear Regulatory Commission Office of Nuclear Reactor Regulation Mail Stop: O11-F1 Washington, DC 20555-0001 Lisa Regner Senior Project Manager Division of License Renewal E-mail: Lisa.Regner@nrc.gov Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N. Street, N.W.

Washington, DC 20037-1128 David R. Lewis, Esq.

E-mail: david.lewis@pillsburylaw.com Paul A. Gaukler, Esq.

E-mail: paul.gaukler@pillsburylaw.com Jason B. Parker, Esq.

E-mail: jason.parker@pillsburylaw.com Entergy Nuclear 1340 Echelon Parkway Mail Stop M-ECH-62 Jackson, MS 39213 Terence A. Burke, Esq.

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

E-mail: sshollis@duanemorris.com

[Original signed by Nancy Greathead]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 27th day of August 2010.