ML110620363

Memorandum and Order (Ruling on Timeliness of Mean Consequence Values Issue)

ML110620363
Person / Time
Site:	Pilgrim
Issue date:	03/03/2011
From:	Abramson P, Cole R Atomic Safety and Licensing Board Panel
To:	Pilgrim Watch
SECY RAS
References
50-293-LR, ASLBP 06-848-02-LR, RAS 19742
Download: ML110620363 (34)

Text

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

Ann Marshall Young, Chair Dr. Paul B. Abramson Dr. Richard F. Cole In the Matter of: Docket No. 50-293-LR ENTERGY NUCLEAR GENERATION ASLBP No. 06-848-02-LR COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC.

(Pilgrim Nuclear Power Station) March 3, 2011 MEMORANDUM AND ORDER (Ruling on Timeliness of Mean Consequence Values Issue)

In this proceeding, Pilgrim Watch, a non-profit citizens organization, participating pro se, challenges the application of Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Entergy) to renew its operating license for the Pilgrim Nuclear Power Station.

Before the Board is an issue the Commission has directed us to consider: that is, whether Pilgrim Watch timely raised its concern regarding the reasonableness of the NRC practice for SAMA analysis to utilize mean consequence values, which results in an averaging of potential consequences.1 For the reasons discussed below, a Majority of the Board2 has determined that this matter (which our colleague and the parties refer to as the mean consequence values issue) was not timely raised.3 1

CLI-10-22, 72 NRC __, __ (slip op. at 8 n.34) (Aug. 27, 2010).

2 This decision represents the views of Judges Abramson and Cole. Judge Young dissents.

See Separate Statement of Administrative Judge Ann Marshall Young [hereinafter Young March Separate Statement].

3 As presaged in our November 23, 2010 Order, this instant Order sets forth the Boards analysis on the timeliness issue. See Licensing Board Order (Ruling on Timeliness of Mean Consequence Issue) at 2 (Nov. 23. 2010) (unpublished). Since issuing our November 23rd Order, Pilgrim Watch has filed a new contention which alleges, in part, that Entergys use of the mean consequence value in its SAMA analysis is inadequate because responsibility for the

I. Background On January 25, 2006, Entergy filed its operating license renewal application for the Pilgrim Nuclear Power Plant.4 Pilgrim Watch filed a petition to intervene and request for hearing challenging that application.5 On October 16, 2006, the Board granted Pilgrim Watchs intervention petition, admitting two of Pilgrim Watchs originally proffered contentions, including Contention 3, which is the subject of the instant dispute.6 As originally pled, Contention 3 stated:

The Environmental Report inadequately accounts for off-site health exposure and economic costs in its SAMA analysis of severe accidents. By using probabilistic modeling and incorrectly inputting certain parameters into the modeling software, Entergy has downplayed the consequences of a severe accident at Pilgrim and this has caused it to draw incorrect conclusions about the costs versus benefits of possible mitigation alternatives.7 In admitting Contention 3, the Board excluded the portion of the contention that challenged the use of probabilistic modeling, thereby limiting its scope to the following:

Applicants SAMA analysis for the Pilgrim plant is deficient in that the input data concerning (1) evacuation times, (2) economic consequences, and (3) meteorological patterns are incorrect, resulting in incorrect conclusions about the costs versus benefits of possible mitigation alternatives, such that further analysis is called for.8 cleanup after a severe accident at the Pilgrim Station is not sufficiently allocated. See Pilgrim Watch Request for Hearing on a New Contention at 5 (Nov. 29, 2010).

4 See 71 Fed. Reg. 15,222, 15,222 (Mar. 27, 2006).

5 See Request for Hearing and Petition to Intervene by Pilgrim Watch (May 25, 2006)

[hereinafter PW Intervention Petition].

6 LBP-06-23, 64 NRC 257 (2006).

7 PW Intervention Petition at 26.

8 LBP-06-23, 64 NRC at 341.

On October 30, 2007, a Majority of the Board granted Entergys motion for summary disposition of Contention 3.9 Pilgrim Watch filed a petition for review of that decision, and on March 26, 2010, the Commission remanded portions of Contention 3 to the Board for hearing.10 The Board framed the scope of remanded Contention 3 as having the following threshold issue:

whether the meteorological modeling in the Pilgrim SAMA analysis is adequate and reasonable to satisfy NEPA, and whether accounting for the meteorological patterns/issues of concern to Pilgrim Watch could, on its own, credibly alter the Pilgrim SAMA analysis conclusions on which SAMAs are cost-beneficial to implement.11 Further, we stated that if the threshold issue is decided in favor of Pilgrim Watch, the Board will determine whether and the extent to which the admitted evacuation and economic cost issues should thereafter be adjudicated.12 On August 27, 2010, the Commission provided the Board with additional guidance in this proceeding.13 Because the Commission apparently believed that Pilgrim Watch might have called into question the NRC practice of using the mean consequence values in SAMA analysis, the Commission also directed the Board to consider whether the NRCs practice is reasonable for a SAMA analysis, and whether Pilgrim Watchs concerns are timely raised.14 9

LBP-07-13, 66 NRC 131, 154 (2007).

10 CLI-10-11, 71 NRC __ (slip op.) (Mar. 26, 2010).

11 Licensing Board Order (Confirming Matters Addressed at September 15, 2010, Telephone Conference) (Sept. 23, 2010) at 1 (unpublished) [hereinafter Order Confirming Teleconference Matters].

12 Id. at 3.

13 See CLI-10-22, 72 NRC __ (slip op.) (Aug. 27, 2010).

14 CLI-10-22, 72 NRC at __ (slip op. at 8 n.34). Consistent with NRC practice, we believe that the Commission directed us to determine first whether the issue was timely raised, and if so, to consider the merits of the issue at hearing. See Licensing Board Order (Questions from Board Majority Regarding the Mechanics of Computing Mean Consequences in SAMA Analyses)

(Oct. 26, 2010) at 2 n.4 (unpublished) [hereinafter Board Majority Questions Order].

Accordingly, the Board instructed the parties to brief whether Pilgrim Watch either explicitly or implicitly raised concerns regarding the NRCs practice of using mean consequence values in SAMA analysis when it proffered original Contention 3, and if not, whether Pilgrim Watchs concerns are timely raised.15 The Board also instructed the parties to cite specific portions and language in the original Contention 3 and related filings where such concerns were or should have been discussed, and clearly explain how the concerns were or were not raised in the cited portions and language.16 Pilgrim Watch, Entergy, and the NRC Staff filed briefs and responses on October 1, 2010, and October 8, 2010.17 In briefing the timeliness issue, the parties differed in their interpretation of what the Commission meant by mean consequence values as it pertains to the SAMA analysis. To resolve this discrepancy, the Majority of the Board called upon the parties to submit expert affidavits explaining certain aspects of the MACCS2 code as it relates to mean consequence values.18 The parties filed their responsive affidavits by November 22, 2010.19 15 See Order Confirming Teleconference Matters at 2.

16 Id.

17 See Pilgrim Watchs Brief: Petitioner Timely Raised Issue of NRCs Practice to Use Mean Consequence Values in SAMA Analyses (Oct. 1, 2010) [hereinafter PW Timeliness Brief];

Entergys Brief on Untimeliness of Pilgrim Watch Concerns Regarding Use of Mean Values (Oct. 1, 2010); NRC Staff Brief Regarding Timeliness of Pilgrim Watchs Raising of Mean Consequence Concerns (Oct. 1, 2010); Pilgrim Watch Reply to Entergys and NRC Staffs Briefs Regarding Timeliness of Pilgrim Watchs Raising Averaging Practice Concerns (Oct. 8, 2010)

[hereinafter PW Timeliness Reply]; Entergys Reply Brief on the Untimeliness of Pilgrim Watch Concerns Regarding the Use of Mean Values (Oct. 8, 2010) [hereinafter Entergy Reply Brief];

NRC Staff Reply to Pilgrim Watchs Brief (Oct. 8, 2010) [hereinafter Staff Reply Brief].

18 See Board Majority Questions Order at 4-5.

19 See Affidavit of Dr. Nathan E. Bixler Concerning the Boards Questions from Board Majority Regarding the Mechanics of Computing Mean Consequences in SAMA Analyses (Nov. 18, 2010) [hereinafter Bixler Aff.]; Entergys Notice of Filing Affidavit (Nov. 22, 2010) [hereinafter OKula Aff.]; Pilgrim Watch Reply to Order (October 26, 2010) - Questions from Board Majority Regarding the Mechanics of Computing Mean Consequences (Nov. 22, 2010) [hereinafter Lyman Aff.].

To understand precisely what the mean consequence values issue involves, we must define the meaning of the Commission practice of using mean consequences in SAMA analysis. As our colleague notes,20 the practice is explained by Pilgrim Watchs expert Dr.

Lyman , who described the issue as whether it is appropriate to use the statistical input parameter of a mean, as opposed to using a median or 95th percentile, for example . . . .21 By noting that this practice results in an averaging of potential consequences, the Commission made plain that it was concerned with a challenge to whether it is reasonable to use the mean of the distribution as opposed to some other representative measure of the large number of consequences computed for the variety of potential accident scenarios analyzed. Based on the expert affidavits, we briefly summarize the MAACS2 code and the mean consequence values issue.

Each of the three affiants (Dr. Nathan E. Bixler for the Staff; Dr. Edwin S. Lyman for Pilgrim Watch; and Dr. Kevin R. OKula for Entergy) describe the MACCS2 code as consisting of three modules (ATMOS, EARLY and CHRONC) that analyze given input to develop, calculate, and evaluate the offsite population dose and the offsite economic costs consequences resulting from a range of potential accident scenarios.22 The ATMOS module contains a meteorological model that utilizes various input data, including a full year of hourly meteorological measurements (wind direction, wind velocity, precipitation, and stability class), surface roughness, source term describing the release of radioactive isotopes, particulate size corresponding to a deposition velocity, release point, and a spatial grid of the 50-mile region surrounding the Pilgrim Plant.23 Based upon the input and its 20 Young March Separate Statement at 1-2.

21 Declaration of Edwin S. Lyman (Nov. 22, 2010) 22 See Bixler Aff. ¶¶ 3, 10; Lyman Aff. ¶ 5(a); OKula Aff. ¶ 2.

23 See Bixler Aff. ¶ 4.

internal models, the ATMOS module determines the transportation and deposition of contamination within the 50-mile area surrounding Pilgrim.24 Pilgrims SAMA analysis used meteorological input data taken near the site and nineteen different accident scenarios (source terms) each with distinct release characteristics.25 The primary output of ATMOS are air concentrations and ground deposition of radioactive material for each grid location, for each weather sequence and each accident scenario.26 EARLY and CHRONC use the information developed by ATMOS along with additional input data to determine the doses and other consequences for separate temporal portions of the response.27 EARLY computes the radiological doses and costs of the accident related to the initial response through the first seven days. CHRONC computes the doses and costs of the accident from seven days through thirty years.28 The MACCS2 code then records the output of the EARLY and CHRONC modules for each of the 2560 weather conditions to obtain the total consequences of the radiological release for the emergency, intermediate, and long-term phases for that source term.29 The 2560 different consequences are then examined and mean consequences are computed from those results for each of the nineteen postulated source terms.30 24 See Bixler Aff. ¶ 4; Lyman Aff. ¶ 5(a)(i); OKula Aff. ¶ 3.

25 See OKula Aff. ¶ 8.

26 See Bixler Aff. ¶ 4.

27 See id. ¶ 5.

28 Id.

29 Lyman Aff. ¶ 5(a)(1)(iii).

30 See OKula Aff. ¶¶ 7-8.

Dr. OKula describes the general process of determining consequences from each particular postulated release as the following three-step process:

1. Execution of the three MACCS2 computations modules: ATMOS, EARLY, and CHRONC are run for a specific set of weather conditions, i.e., a weather sequence, to produce a single value of population dose and economic cost for each postulated release.

2. Simulation of each postulated release for multiple weather sequences: A total of 160 sets of randomly selected weather sequences, postulated to occur in 16 principal compass sector directions, are analyzed. This results in a total of 2,560 individual consequence results for each postulated release.

3. Determination of the mean or expected value: The mean population dose and economic cost consequence from the 2,560 sets of calculated consequence values and their corresponding probabilities are calculated by applying a mathematical formula for determining the mean of a statistical distribution. Statistically, these are the expected or mean consequence values for the postulated release being modeled.31 Based on the consistent testimony of the three affiants, we conclude that the Commission directed us to consider whether Pilgrim Watch timely challenged this NRC practice of using the mean of the statistical distribution (as described by Dr. OKula in the final step of the process), as opposed to the use of some other statistical measure of the consequences.

II. Discussion As explained above, we will not consider the merits of the mean consequence values issue unless we first determine that the issue either falls within the scope of Contention 3, or otherwise meets the Commissions timeliness standards.

a) The Scope of Original Contention 3 did not Encompass the Mean Consequence Values Issue In order to determine the proper scope of a contention, NRC opinion has long referred back to the bases set forth in support of the contention.32 The reach of a contention 31 OKula Aff. ¶ 14.

32 See CLI-10-11, 71 NRC at __ (slip op. at 28) (internal quotation marks omitted) (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2),

CLI-02-28, 56 NRC 373, 379 (2002)).

necessarily hinges upon its terms coupled with its stated bases.33 The Commission has indicated that a contentions scope is also based on the boards discussion when admitting it.34 And while the Commission allows for amendments of admitted contentions, it does not permit distinctly new complaints to be added at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds.35 Pilgrim Watch contends that it first raised the mean consequence values issue when it proffered Contention 3 in its intervention petition.36 Specifically, Pilgrim Watch argues that because Contention 3 alleged that Entergys SAMA analysis used incorrect input parameters, including meteorology, emergency response, and economic data,37 the contention also challenged the use of the mean consequence values.38 Pilgrim Watch reasons that the mean consequence value is an input parameter because the definition of parameter is well understood to encompass averaging practice concerns.39 Pilgrim Watch further explains that a parameter is perhaps an average computed from all scores (data),40 and that input data is commonly understood to mean that which is put in and includes a quantity such as a mean.41 Based on these apparent definitions, Pilgrim Watch argues that input parameter necessarily 33 CLI-10-11, 71 NRC at __ (slip op. at 28); see, e.g., Public Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-889, 28 NRC 93, 97 (1988).

34 See CLI-10-11, 71 NRC at __ (slip op. at 13-16).

35 CLI-10-11, 71 NRC at __ (slip op. at 28).

36 PW Timeliness Brief at 1.

37 Id. at 3.

38 Id. at 5.

39 Id. at 3.

40 Id. at 4 (quoting [1]).

41 Id.

includes the mean, and that by challenging certain MACCS2 code input parameters, it also challenged averaging practices.42 By that logic, Pilgrim Watch concludes that:

The record shows that Pilgrim Watchs contention as originally pleaded indeed assured that other parties (were) sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose because the Board, NRC Staff and Entergy all explicitly recognized that Contention 3 included the averaging issue.43 In response, Entergy asserts that the mean consequence values refer to [m]ean consequence population dose and off-site economic costs [which] are outputs of the MACCS2 code analysis, and not input data or input parameters as repeatedly suggested by Pilgrim Watch.44 Similarly, the NRC Staff states that mean consequence values are: (1) an output of the MACCS2 code, not an input into the code, (2) a mathematical technique used to provide a representative value for a set of outputs, (3) a characteristic necessitated by the rigorous statistical modeling used in the SAMA analysis, i.e., the technique is the same regardless of the plant being analyzed.45 We agree with Entergy and the NRC Staff.

We are not persuaded by Pilgrim Watchs argument that by challenging certain MACCS2 code input parameters, it was challenging the NRC practice of using the mean consequence values in SAMA analysis. 46 These are two completely distinct matters.47 42 Id. at 13.

43 Id. at 5 (emphasis in original).

44 Entergy Reply Brief at 4 (emphasis in original).

45 Staff Reply Brief at 9.

46 As the Staff aptly notes:

After more than four years of litigation, [Pilgrim Watch] can only point to two isolated sentences in its original contention, which use the terms input parameter and parameter, and a title to a subsection of its original contention, which used the term input data as bases for its claim regarding the mean consequence values. . . . In order to overcome the paucity of evidence, [Pilgrim Watch] asserts that everyone knows that the term parameter means averaging cost concerns.

In the first step of a SAMA analysis, each separate computation incorporates a specific set of input and models and results in a specific computed total economic impact.48 We agree that Pilgrim Watch challenged three of those input in Contention 3.49 We do not agree, however, that when Pilgrim Watch challenged the parameters used as an input or imbedded in the MACCS2 model, it was in fact challenging the use of the mean of the resultant consequences in the last step of the overall SAMA analysis. As the expert affidavits state, the process of taking the mean occurs after selection of all such parameters and after completion of what we characterize herein as step one of the overall analysis.50 Indeed, a challenge to the input and models used to compute the individual scenario consequences is a completely different challenge than a challenge to the selection of which consequences should be used as the representative cost in the SAMA cost-benefit analysis. None of the experts suggest or provide support for the proposition that, when Pilgrim Watch challenged the input relating to meteorology, economic costs, or evacuation time, it is reasonably inferable that it challenged the use of the statistical mean value.51 Id. at 2 (internal citations omitted).

47 We also do not agree with Pilgrim Watchs characterization that all the parties recognized that Contention 3 included the averaging issue sufficient to put the parties on notice as to what they would have to defend against. See PW Timeliness Brief at 5. Moreover, to the extent that Pilgrim Watch argues that party notice is relevant to defining the scope of an admitted contention or setting forth an admissible contention, we disagree. The Commission has stressed that NRC contention standards do not allow for general notice pleading[s], with details to be filled in later. CLI-10-15, 71 NRC __, __ (slip op. at 6 n.23) (June 17, 2010) (quoting Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 363 (2001)).

48 See supra note 29 and accompanying text.

49 See PW Intervention Petition at 34-45 50 See supra note 31 and accompanying text; see also Lyman Aff. ¶¶ 5(b)(ii), 5(d).

51 Although Pilgrim Watchs expert, Dr Lyman, observes correctly that the outcome of the SAMA analysis is functionally dependent on the choice of statistical input parameter, (Lyman Aff. ¶ 4) this is not the sort of dependence that is at issue here. This statement does not support Pilgrim Watchs assertion that by challenging input parameters it had in fact or in effect raised a challenge to the use of the mean of the consequences as a measure for cost-benefit

Furthermore, although Pilgrim Watchs expert labels the mean as a statistical input parameter, it is neither the type of input that Pilgrim Watch challenged in Contention 3, nor is it the type of variable which determines the output or consequences computed for each individual scenario.52 In fact, Pilgrim Watchs expert affidavit plainly states that the mean is one of the various statistical results of the output of the consequences computation, and goes on to observe that the SAMA analyst uses the output of the MACCS2 code to determine a representative consequence for comparison to the cost of various SAMAs.53 In sum, Pilgrim Watch simply provides no credible basis for its argument that the mean value of the thousands of different consequences computed by the MACCS2 code for each of analysis of SAMAs. The fact that the user of the code must select a particular statistical averaging method, and, although that is selected by the user as an input to the overall computation, it is neither the type of input which PW has challenged, nor is it the type of variable which determines the output (consequences) computed for each individual scenario.

It simply is the tool of the user to automate the particular statistical measure the user has selected.

52 We note that Judge Young relies on Dr. Lymans labeling of the mean as a statistical input parameter in her most recent framing of the issue. Judge Young reframes the issue as:

whether it is appropriate to us[e] the statistical input parameter of a mean, as opposed to using a median or 95th percentile, for example, in analyzing accident scenario dose risks and off-site economic costs, to arrive at appropriate consequence values (whether mean consequence values or other values) for each accident scenario or damage state in multiple weather trials, before summing the probability-weighted values for all of the 19 scenarios used in the Pilgrim SAMA analysis and comparing the result to the cost of possible SAMAs, to determine which, if any, would be cost-beneficial.

See Young March Separate Statement at 1-2. We believe that labeling the mean as a statistical input parameter is inaccurate and misleading within the context that Pilgrim Watch used the terms parameter and input when it proffered Contention 3. However, we do not find the underlying issue in Judge Youngs statement to be inconsistent with our framing of the mean consequence values issue. That is: whether it is reasonable under NEPA for the NRC to use the mean as the particular statistical averaging method applied to the output of the MACCS2 code to determine what representative consequence should be weighted in the SAMA cost-benefit analysis. In any event, we emphasize that the focus of our inquiry in this order is only whether this issue was timely raised.

53 See Lyman Aff. ¶¶ 5(b)(ii), 5(d).

the source term scenarios is the sort of input parameter that it challenged in Contention 3.

Pilgrim Watchs reliance on fragmented definitions of the terms mean and input parameter, and its labeling of the mean as an input parameter does not demonstrate otherwise when those arguments are inconsistent with all prior party pleadings and with our prior orders discussing Contention 3. There is simply no overlap between arguments regarding the sufficiency of input data and arguments challenging the reasonableness of the NRC practice of utilizing the mean as a representative consequence value.

Accordingly, we conclude that Pilgrim Watch did not raise the mean consequence values issue by challenging certain MACCS2 code input parameters in Contention 3. Thus, Pilgrim Watchs reference to challenges to input parameters in its intervention petition and related filings does not demonstrate that a challenge to the NRCs practice of using the mean consequence value was timely raised.

Although it was incumbent on Pilgrim Watch to identify in its pleadings where it raised the mean consequence values issue, as we directed in our briefing order, it failed to refer us to any portion of Contention 3 or its pleadings where the issue was discussed. And while we are not expected to search through pleadings or other materials to uncover arguments and support never advanced by [intervenors] themselves,54 we nonetheless reviewed the claims made in support of original Contention 3, the related filings, and the parties briefs on the matter. We find nothing therein that can be reasonably construed to demonstrate that Contention 3 challenged the NRC practice of using the mean consequence values in SAMA analysis.

While original Contention 3 did allege that Entergys SAMA analysis was deficient, it neither discussed nor challenged the NRCs practice of utilizing the mean value of the MACCS2 consequence output as a representative consequence to be used in SAMA cost-effectiveness evaluation. Instead, the proffered contention wholly focused on challenging Entergys use of:

54 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006).

(1) probabilistic modeling; (2) an outdated version of the MACCS2 code; and (3) incomplete or incorrect input into the code, including meteorological data, demographics, emergency response, and regional economic data.55 Regarding meteorological data, Pilgrim Watch argued that the input to the model improperly characterized weather conditions and challenged the use of the straight-line Gaussian plume model.56 To better characterize meteorological conditions, Pilgrim Watch contended that Entergy should collect and use the following data: (1) wind speed; (2) wind direction; and (3) dispersion (i.e., turbulence in the atmosphere). Pointing out that the complete inputs to the MACCS2 for the license renewal of Pilgrim are not publicly available, and not includ[ed] in the Applicants Environmental Report, Pilgrim Watch particularly challenged Entergys inputs to the code, including meteorological data, demographics, emergency response, and regional economic data.57 These were the arguments advanced in support of Pilgrim Watchs challenge to Entergys SAMA analysis - and, of course, to their challenges to input. All of Pilgrim Watchs original challenges related to input to the MACCS2 code and the use of probabilistic weighting methodologies; they mount no challenge whatsoever to the use of the mean consequence as the representative consequence for evaluating SAMAs.

Moreover, in admitting Contention 3, the Board discussed that Contention 3 alleged errors relat[ing] to meteorological data (including wind speed, wind direction, and dispersion),

demographic and emergency response data relating to evacuation delay time and speed, and economic data.58 We further stated:

we find their contention, that use of more accurate input data in these three areas could materially impact the computed outcome, to be reasonable and the possibility intuitively obvious in the absence of actual computations definitively 55 PW Intervention Petition at 26-34.

56 Id. at 34.

57 Id.

58 LBP-06-23, 64 NRC 257, 324-25 (2006) (internal citations omitted).

demonstrating otherwise. That is not to say that we find [Pilgrim Watch] has raised admissible challenges as to all input data.59 The Board reformulated Contention 3 and admitted it in limited part:

Applicants SAMA analysis for the Pilgrim plant is deficient in that the input data concerning (1) evacuation times, (2) economic consequences, and (3) meteorological patterns are incorrect, resulting in incorrect conclusions about the cost versus benefits of possible mitigation alternatives, such that further analysis is called for.60 In admitting Contention 3, we did not discuss the use of mean consequence values, and no party raised the issue.

Our colleague agrees with this conclusion. However, she also claims that it might be argued that Pilgrim Watch raised the issue in Contention 3 based upon Pilgrim Watchs argument that the User has an enormous ability to affect the output from the code by manipulating the inputs and choosing parameters . . . the EARLY and CHRONC modules can calculate a variety of different consequence measures to portray the impact of a facility accident on the surrounding region. But this argument arises out of Pilgrim Watchs challenge to probabilistic modeling and thus we cannot agree with our colleague for two reasons. First, Pilgrim Watch explicitly concedes that its original challenge to probabilistic modeling did not encompass the mean consequence values issue,61 and second (and of equal import), Pilgrim Watchs challenge to probabilistic methods was singularly focused on the probability weighting.

There is simply nothing in Pilgrim Watchs arguments relating to probabilistic methods that could be reasonably construed as a challenge to the use of the mean as the appropriate statistical measure of the computed consequence values.62 59 Id. at 339 (internal citations omitted) (emphasis in original).

60 Id. at 341.

61 See PW Reply at 2.

62 The pleadings utterly fail to support the proposition that there was such an implication, and we decline to rewrite Pilgrim Watchs contention in the form now suggested by our colleague. See Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998)

We also conclude that Pilgrim Watch never raised the mean consequence value issue opposing Entergys motion for summary disposition of Contention 3. Entergys Statement of Material Fact 2 stated that [t]he SAMA cost-benefit evaluation looks at whether a SAMA is potentially cost effective by measuring the mean of the total cost avoided versus the cost of implementing the SAMA.63 In response, Pilgrim Watch argued that:

The cost of the SAMA is a total cost expended by Entergy over the re-licensed period. For example, to install a filtered Vent the applicant estimated $3,000,000.

Entergy compares that to the mean of the total costs avoided. Instead, Entergy should make a comparison to the sum of the total costs avoided, not the mean.64 But Pilgrim Watchs response only indicates a misunderstanding as to how Entergy performed the SAMA analysis, it does not raise the mean consequence values issue. It is factually inaccurate to conflate the mean consequence values issue with Pilgrim Watchs response simply because they both contain the word mean. Because the record is devoid of any other statement which might imply that Pilgrim Watch intended to challenge the use of the mean, as opposed to some other statistical measure, we see no reason to find that Pilgrim Watchs statement can be reasonably read to challenge the NRCs use of the mean consequence values.

In contrast, our colleague does conclude that Pilgrim Watch raised the mean consequence values issue based on a shorthand reading of that statement. But her view, that Pilgrim Watchs response to Material Fact 2 can be interpreted to have challenged the NRCs practice at issue is legally unsupportable because it is factually inaccurate. [A] board may not (A contentions proponent, not the licensing board, is responsible for formulating the contention.).

63 Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3, Statement of Material Facts (May 17, 2007) at 1.

64 Pilgrim Watchs Answer Opposing Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3 (June 29, 2007) at 6 (emphasis added).

simply infer the bases for a contention.65 Here, Pilgrim Watch simply did not supply the argument.66 And the fact that the mean was used as the relevant statistical measure is not new information; rather the information has been available since the beginning of this proceeding, in, for example, Entergys Environmental Report,67 and in the final supplemental environmental impact statement for the Pilgrim license renewal.68 The practice itself is certainly not new. As the Commission explained, It is NRC practice to utilize the mean values of the consequence distributions for each postulated release scenario or category in SAMA analysis.69 Thus, Pilgrim Watch could have raised a specific claim about the reasonableness of this practice at the outset of the proceeding.

Instead, Pilgrim Watch raised this issue for the first time in its April 5, 2010 motion for reconsideration to the Commission.70 In that motion, Pilgrim alleged that the use of mean values would ensure that the result of the SAMA analysis will be a dose risk and economic risk 65 See, e.g., Amergen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 275 (2009) (While a board may view supporting information in a light favorable to the petitioner, a board may not simply infer the bases for a contention.).

66 We need not address any issue regarding whether the asserted challenge permissibly raises a new argument, as such matters are immaterial to our determination. However, it is plain that if this were indeed a new argument based upon previously available information and not raised by the motion for summary disposition itself, there is a question whether such an argument can be raised in opposition to a motion for summary disposition without being considered a new contention. See, e.g., CLI-10-11, 71 NRC at __ (slip op. at 29-32); see also In the Matter of Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-08-2, 67 NRC 54, 66-67 (2008) (determining whether the information supporting an intervenors response to a motion for summary disposition is within the scope of the admitted contention).

67 See Entergy License Renewal Application, Environmental Report, ref. E, 2-19.

68 See Office of Nuclear Reactor Regulation, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Volume 2, NUREG-1437, at App. G, p. G-41 (Supp. 29 July 2007) (ADAMS Accession No. ML071990027) (Pilgrim).

69 CLI-10-11, 71 NRC at __ (slip op. at 38); see also NUREG/BR-0184 (1987); NUREG/BR-0058, Rev. 4; NEI-05-1[Rev. A] at 15.

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

that is so low that the industry will never be required to provide real mitigation alternatives that might prevent or reduce the impact of an accident.71 On May 4, 2010, Pilgrim Watch raised the issue again in a teleconference with the Board and the parties.72 But this challenge is entirely new and does not fall within either the scope of Pilgrim Watchs Contention 3 or its opposition to Entergys Motion for Summary Disposition. In NRC proceedings, intervenors may not freely change the focus of an admitted contention at will to add a host of new issues and objections that could have been raised at the outset.73 Indeed, the Commission prohibits distinctly new complaints to be added at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds.74 Accordingly, because the mean consequence values issue was neither raised when Contention 3 was proffered or admitted nor when Pilgrim Watch challenged Entergys motion for summary disposition, we conclude that Pilgrim Watchs concern about the NRC practice of using mean consequence values was never fairly encompassed by Contention 3. We thus turn to examination of whether the matter was properly raised under the Commissions timeliness standards.

b) The Mean Consequence Values Issue was not Timely Raised Because Pilgrim Watch raised the mean consequence value issue nearly four years after the initial filing deadline,75 the Board cannot entertain the issue unless we find it satisfies the requirements for new or amended contentions,76 or those for nontimely filings.77 71 Id. at 9.

72 See Tr. at 582, 592, 603, 605-06, 636-37; see also CLI-10-22, 72 NRC at __ (slip op. at 8 n.34).

73 CLI-10-11, 71 NRC at __ (slip op. at 28) (quoting Duke Energy Corp., CLI-02-28, 56 NRC at 386 & n.61).

74 Id. at __ (slip op. at 28).

75 See 71 Fed. Reg. at 15,222.

76 Id. § 2.309(f)(2).

i) Timeliness Standards Under 10 C.F.R. § 2.309(f)(2), new or amended contentions filed after the initial deadline may be admitted with leave of the presiding officer upon a showing that (i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.78 Pursuant to 10 C.F.R. § 2.309(c), nontimely filings may be entertained only if the Board determines that the balance of the following eight factors favors admission:

(i) Good cause, if any, for the failure to file on time; (ii) The nature of the [intervenors] right under the Act to be made a party to the proceeding; (iii) The nature and extent of the [intervenors] property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the [intervenors] interest; (v) The availability of other means whereby the [intervenors] interest will be protected; (vi) The extent to which the [intervenors] interests will be represented by existing parties; (vii) The extent to which the [intervenors] participation will broaden the issues or delay the proceeding; (viii) The extent to which the [intervenors] participation may reasonably be expected to assist in developing a sound record.79 The requirements for nontimely filings are stringent, and failure to comply with our pleading requirements for late filings constitutes sufficient grounds for rejecting its [filing].80 Moreover, [n]ew bases for a contention cannot be introduced in a reply brief, or any other time 77 Id. § 2.309(c).

78 Id. § 2.309(f)(2).

79 Id. § 2.309(c).

80 Florida Power and Light Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2, et al.), CLI 21, 64 NRC 30, 34 (2006).

after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2).81 Pilgrim Watch argues that the timeliness standards set forth in 10 C.F.R. § 2.309(c) and (f)(2) are irrelevant because it did not raise an entirely new contention; at most the scope of the contention raised in original Contention 3 simply became clearer and more focused as this procedure dragged on.82 In accord with that position, Pilgrim Watch does not address any of the section 2.309(f)(2) or 2.309(c) criteria, which is reason enough to find that the issue was not timely raised.83 Nonetheless we address below the Commissions timeliness standards.

ii) The Mean Consequence Values Issue is Not Based on New Information: 10 C.F.R.

§ 2.309(f)(2)

As discussed above, Pilgrim Watch contends that it challenged the NRCs use of the mean consequence values at the outset of the proceeding. It seems then that Pilgrim Watch does not dispute that the information regarding the NRCs practice of utilizing the mean consequence value in SAMA analysis was available prior to the original filing deadlineand indeed such information was publicly available. Accordingly, because Pilgrim Watch makes no showing that the mean consequence issue is based on new information (10 C.F.R.

§ 2.309(f)(2)), we conclude that the challenge is nontimely.84 81 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 261 (2009) (internal citations omitted).

82 PW Timeliness Brief at 1-2.

83 See Texas Util, Elec. Co. (Comanche Peak Steam Elec. Station, Unit 2), CLI-93-11, 37 NRC 251, 255 (1993); Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 465-66 (1985).

84 10 C.F.R. § 2.309(f)(2).

iii) The Mean Consequence Values Issue is Nontimely: 10 C.F.R. § 2.309(c)

The Commission has repeatedly stated that [g]ood cause is the most significant of the late-filing factors.85 Absent good cause, an intervenor must make a compelling showing on the remaining seven late-filed factors.86 Further, the availability of new information is central to establishing good cause for late filing. An intervenor must demonstrate that the information on which the new challenge is based was not previously available to the public and that it filed the challenge promptly after receiving notice of the new information.87 Although Pilgrim Watch does not address the Commissions nontimely filing standards, there is no indication that Pilgrim Watch can establish good cause to excuse the late filing because the mean consequence values issue is not based upon new information that was not previously available. Moreover, although section 2.309(c)(2) expressly requires intervenors to address all enumerated factors, Pilgrim Watch does not even mention any of the factors. In any event, there is little indication that Pilgrim Watch can make a compelling showing on the remainder of the late-filing factors.

Although we recognize that complying with the Commissions regulations may be especially difficult for pro se [intervenors] . . . it has long been a basic principle that a person that invokes the right to participate in an NRC proceeding also voluntarily accepts the obligations attendant upon such participation.88 Because Pilgrim Watch makes no showing that 85 Crow Butte Res. Inc. (North Trend Expansion Area) CLI-09-12, 69 NRC 535, 549 n.61 (2009);

Tenn. Valley Auth. (Watts Bar Nuclear Power Plant, Unit 2), CLI-10-12, 71 NRC __, __ (slip op.

at 4) (Mar. 26, 2010); Oyster Creek, CLI-09-7, 69 NRC at 261.

86 See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-05-24, 62 NRC 551, 565 (2005) 87 See Millstone, CLI-05-24, 62 NRC at 564-65.

88 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 26 (2001) (internal citations omitted).

the balance of the 10 C.F.R. § 2.309(c) factors favor excusing its nontimely filing, we cannot entertain the mean consequence values issue.89 We turn now to briefly discuss our view regarding our colleagues Separate Statement issued in connection with this Order. While agreeing that Pilgrim Watch failed to raise the mean consequence values issue in proffering its original Contention 3,90 our colleague would find that Pilgrim Watch implicitly raised that claim on a timely basis by challenging Entergys motion for summary disposition.91 In our view, her analysis rests upon faulty premises.

Our colleagues conclusion is erroneous because, as we discussed at length above,92 Pilgrim Watchs response cannot reasonably be read to address the use of that mean as the relevant statistical measure. Rather, Pilgrim Watchs isolated use of the word mean does not concern the issue of which statistical measure is reasonable, and only demonstrates that Pilgrim Watch misapprehended how Entergy performs its SAMA analysis.

Our colleagues conclusion then rests upon the erroneous premise that the record is sufficient to reconstruct Pilgrim Watchs response to Material Fact 2, by using fragments of arguments and statements made more than two years after that response, to find that Pilgrim Watch has raised the matter implicitly. But in reading the mean consequence values issue into Pilgrim Watchs response, she stretches Pilgrim Watchs arguments beyond any rational interpretation of the pleadings. There is no fact-based reason to find that her version of the challenge was intended by Pilgrim Watch at the time.

89 10 C.F.R. § 2.309(c).

90 See Young March Separate Statement at 1 (I agree that Intervenor did not timely raise any issue relating to mean consequence values as explicitly or clearly as it might have done.).

91 Id. We note that the mere fact that the Board instructed the parties to brief whether Pilgrim Watch had explicitly or implicitly raised the issue in a timely manner cannot be read to mean that the Board would find the issue to have been timely raised if it had been implicitly (but not explicitly) raised. And, as we note, we do not find it had been even implicitly raised.

92 See supra at 15-16.

Under our rules, petitioners must set forth contentions with particularity and we believe the same standards apply to challenges to a motion for summary disposition.93 The Commission does not expect that licensing boards, unaided by parties, [will] sift through the parties pleadings to uncover and resolve arguments not advanced by litigants themselves. The burden of setting forth a clear and coherent argument . . . is on the petitioner.94 Accordingly, we decline to adopt our colleagues reading of Pilgrim Watchs challenge to Entergys Statement of Material Fact 2, when Pilgrim Watch never identified or argued such a reading before the Board. And though our colleague charges us with conflating the question of whether Pilgrim Watch raised the issue with how well it raised it,95 in fact we conclude that there is nothing in the record to indicate that Pilgrim Watch raised the mean consequence value issue in responding to Entergys motion for summary disposition.96 Finally, we would be remiss if we failed to address our colleagues concerns regarding fundamental fairness and due process which she raised in both her October Separate Statement97and in her current Separate Statement.98 In her October Statement, the foundation 93 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 hearings.

Our procedural rules are designed to ensure focused and fair proceedings. Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 70 NRC __ (slip op. at 14) (Jan.

7, 2010). (emphasis added) 94 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 194 (1999).

95 Young March Separate Statement at 5 n.16.

96 Because we find that Pilgrim Watch in fact did not raise the issue, we need not address whether the new issue raised in response to a statement of material fact in a summary disposition motion is timely under the Commissions rules.

97

[I]t would defy any reasonable notion of fundamental fairness to deny an opposing party in the same proceeding any opportunity to present facts in response, to dispute those asserted material facts. An objection might be raised to presenting facts beyond the scope of the direct evidence, but to deny altogether an opportunity to respond would seem to violate the right to due process. Separate Statement of Administrative Judge Ann Marshall Young, in the Matter of Entergy Nuclear Power Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim

and focus of her analysis was the inappropriateness of prohibiting a party to present evidence on or otherwise dispute a matter put at issue by another party.99 But no such prohibition has occurred in this proceeding. Indeed, Pilgrim Watch had and took full advantage of the opportunity to respond to Material Fact 2 in its answer to Entergys summary disposition motion.

As discussed however, Pilgrim Watch simply did not raise, in that effort or elsewhere, any challenge that can be reasonably construed to be a challenge to the NRCs use of the mean of the consequences as a benchmark for determining the cost-effectiveness of implementing potential SAMAs. Therefore, we find no merit in our colleagues concerns regarding due process rights and fundamental fairness issues.100 In her current Separate Statement, our colleague shifts her view to assert that, despite the Majority finding that the issue was not timely raised, the question [still] remains whether evidence on the mean consequence values issue should have been permitted in the parties prefiled direct and rebuttal testimony, and whether it is appropriate to consider the mean consequence values issue in making our determinations on that part of Contention 3 that is now Nuclear Power Station), Docket No. 50-293-LR, ASLBP No. 06-848-02-LR (Oct. 26, 2010) at 9

[hereinafter Young October Separate Statement].

98 See Young March Separate Statement at 5-6.

99 Young October Separate Statement at 6-10.

100 In NRC proceedings, boards balance many countervailing fairness issues and due process concerns. For instance, we typically do not consider arguments that only first surface in reply briefs when the opportunity for the other parties to respond has passed. See, e.g., Louisiana Energy Services, LP. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224 (2004),

reconsideration denied CLI-04-35, 60 NRC at 623; Oyster Creek, CLI-09-7, 69 NRC at 276 (2009); see also Bender v. Jordan, 623 F.3d 1128, 1133 (D.C. Cir. 2010). Indeed, the Commissions procedural rules strike a balance between procedures that will ensure fair and reasonable timeframes for taking action in adjudications and efforts to avoid delay. See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2186 (Jan. 14, 2004). The Commission has explained that the use of its procedures ordinarily raises no constitutional Due Process issues Id. at 2192.

before us.101 We believe no such question remains because the mean consequence values issue was not timely raised and therefore, cannot be adjudicated.102 101 Young March Separate Statement at 5. Even if we were to agree that this matter should be adjudicated in the hearing on the merits of the remanded issue (which we do not), our colleague misunderstands and overestimates the evidence before us (as to which we have agreed to conduct no hearing and reach resolution on the merits of the present filings) when she asserts that we could consider the existing evidence and arguments relating to the use of such mean consequence values, to the extent Dr. Lyman in Exhibit PWA00012 discusses the matter generically and based on the filings of all parties, and possibly determine on some level the extent to which (if any) such values could result in downplaying the impacts of severe accidents. Young March Separate Statement at 6.

102 We also disagree with our colleagues notion that [i]n the sense, therefore, that the parties have filed at least some evidence on the issue, the timeliness question currently before us is at least in part moot, and we could consider the existing evidence and arguments relating to the use of such mean consequence values, to the extent Dr. Lyman in Exhibit PWA00012 discusses the matter generically, and based on the filings of all parties, and possibly determine on some level the extent to which (if any) such values could result in downplaying the impacts of severe accidents. Young March Separate Statement at 6. However, a description of the MACCS2 code is necessary to resolve the merits of Contention 3 at hearing (i.e., we are unable to determine whether it is genuinely plausible that refining the meteorological input or model will affect the SAMA analysis conclusion without information regarding the code). The fact that the parties included information concerning details of the code and mentioned the use of the mean of the consequences does not indicate their intention to adjudicate the mean consequence values issue. Moreover, even were we to find merit in our colleagues proposition that we examine that part of the pleadings in connection with our consideration of the remanded matter (which we do not), the scope of evidence submitted by all parties on this matter, as a direct result of our determination that the matter had not been timely raised, is so limited as to preclude us from being able to reach any substantive conclusion regarding whether the use of some other statistical measure could reasonably have brought into economic play other SAMAs.

Conclusion For the foregoing reasons, we conclude that a challenge to the use of the mean consequence values was neither raised as part of Contention 3 nor in Pilgrim Watchs challenge to Entergys motion for summary disposition and was not timely raised. We therefore deny as untimely any such challenge.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

Dr. Paul B. Abramson ADMINISTRATIVE JUDGE

/RA/

Dr. Richard F. Cole ADMINISTRATIVE JUDGE Rockville, Maryland March 3, 2011

Separate Statement of Administrative Judge Ann Marshall Young While not agreeing with some of my colleagues characterizations of my positions on the matters at issue,1 I agree that Intervenor did not timely raise any issue relating to mean consequence values as explicitly or clearly as it might have done. I would not, however, find this circumstance sufficient to bar consideration of the mean consequence values/averaging issue, particularly given that, in our September 23, 2010, Order in which we required briefs on the matter of timeliness, we stated that the parties should address whether Pilgrim Watch, either explicitly or implicitly, raised the averaging practice concerns.2 At this point I would find that Intervenor did implicitly, on a timely basis, raise this issue - an issue which, I note, would seem to be integral to the ultimate outcome of the analysis that is central to Contention 3, and consideration of which should not have caused any significant inefficiency in this proceeding.

I begin with some clarification on the issue itself, which appears to involve the concept summarized by Entergy in its Statement of Material Fact 2 in support of its Motion for Summary Disposition of Contention 3, namely, that:

The SAMA cost-benefit evaluation looks at whether a SAMA is potentially cost effective by measuring the mean of the total costs avoided versus the cost of implementing the SAMA.3 Using certain terminology from Intervenors expert Dr. Edwin Lymans affidavit,4 it further appears that this issue may be stated more precisely as follows:

whether it is appropriate to use the statistical input parameter of a mean, as opposed to using a median or 95th percentile, for example, in analyzing accident 1

Rather than engage in addressing every inaccuracy in the majoritys characterizations of my positions, I will simply emphasize that what I say herein is what I intend to say, no more and no less.

2 See Order (Confirming Matters Addressed at September 15, 2010, Telephone Conference) (Sept. 23, 2010) at 2 (emphasis added).

3 Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3 [hereinafter Summary Disposition Motion], Attached Statement of Material Facts at 1 (May 17, 2007)

[hereinafter Statement of Material Facts].

4 Declaration of Edwin S. Lyman (Nov. 22, 2010) [hereinafter Lyman Declaration].

2 scenario dose risks and off-site economic costs, to arrive at appropriate consequence values (whether mean consequence values or other values) for each accident scenario or damage state in multiple weather trials, before summing the probability-weighted values for all of the 19 scenarios used in the Pilgrim SAMA analysis and comparing the result to the costs of possible SAMAs, to determine which, if any, would be cost-beneficial.5 Although, according to NRC expert Dr. Nathan Bixler, an upper bound benefit is also calculated,6 it nonetheless appears that, as Dr. Lyman puts it, the choice of statistical input parameter [i.e., mean, median or 95th percentile] determines the level of protection that mitigative measures would be expected to provide,7 to at least some extent, by its effect on the determination of what is to be compared to the cost of individual SAMAs to assess which are cost-beneficial. Even assuming that use of the upper bound limit addresses some uncertainties,8 the use of mean consequence values would seem to have an effect on the analysis; otherwise there would seem to be no reason to use them, or the statistical input parameter that produces them.

As to timeliness, I find two considerations relevant to this inquiry: (1) whether Pilgrim Watch raised the issue in question in its original Contention 3, and (2) whether it later addressed the issue sufficiently to conclude that it timely raised the issue.

Whether Pilgrim Watch Raised Issue in Original Contention 3 As my colleagues note, the original Contention 3 as pled stated:

The Environmental Report inadequately accounts for off-site health exposure and economic costs in its SAMA analysis of severe accidents. By using probabilistic modeling and incorrectly inputting certain parameters into the modeling software, Entergy has downplayed the consequences of a severe accident at Pilgrim and 5

See id. at 4-8; see also Affidavit of Kevin R. OKula (Nov. 19, 2010) at 3-4, 9-10. It appears to me that the product of this summing of the probability-weighted mean consequence values for all the analyzed accident scenarios is what the Commission was referring to in its reference to averaging of potential consequences that result from utiliz[ing] mean consequence values, in CLI-10-22, 72 NRC at __ (slip op. at 8 n.34).

6 Affidavit of Dr. Nathan E. Bixler Concerning the Boards Questions from Board Majority Regarding the Mechanics of Computing Mean Consequences in SAMA Analyses (Nov.

18, 2010) at 8-9 [hereinafter Bixler Affidavit].

7 Lyman Declaration at 8.

8 Bixler Affidavit at 9.

3 this has caused it to draw incorrect conclusions about the costs versus benefits of possible mitigation alternatives.9 We limited the contention in our admission of it, but what is now at issue is when Pilgrim Watch raised the mean consequence/averaging issue - a different question.

Looking to the original contention and the support offered for it, I note the following language in the support for the contention (in a discussion of the use of the MACSS2 code and the Users Guide for it):

. . . [T]he User has an enormous ability to affect the output from the code by manipulating the inputs and choosing parameters. Section 6.10 of the 1997 User Guide, Generation of Consequence Distributions, states Under the control of parameters supplied by the user on the EARLY and CHRONC input files, the EARLY and CHRONC modules can calculate a variety of different consequence measures to portray the impact of a facility accident on the surrounding region.

The user has total control over the results that will be produced.10 It might be argued that Pilgrim Watch in this language raised the issue of modeling that could calculate various consequence measures and thereby (using language from the contention itself) downplay[ ] the consequences of a severe accident at Pilgrim,11 sufficiently to be said to have implicitly raised the mean consequence value issue as one aspect of such modeling. However, the quoted statement does not appear on its face specifically to concern any calculations relevant to mean consequence values. Therefore, notwithstanding a possible argument that the mean consequence/averaging concept is inherent in the concept of downplay[ing] the consequences of a severe accident at Pilgrim . . . cause[ing] it to draw incorrect conclusions about the costs versus benefits of possible mitigation alternatives,12 I find that Pilgrim Watch did not, in original Contention 3 or in the support offered for it, raise 9

Request for Hearing and Petition to Intervene by Pilgrim Watch (May 25, 2006) at 3

[hereinafter Petition].

10 Petition at 33-34 (underlining added; italicization by Intervenor).

11 See LBP-06-23, 64 NRC 257, 323 (2006).

12 LBP-06-23, 64 NRC at 323.

4 the mean consequence/averaging issue with any level of specificity sufficient to identify it as such.

Whether Pilgrim Watch Timely Raised Issue After Submission of Contention 3 I would, however, find that Pilgrim Watch raised the issue in question in its response to Entergys 2007 Motion for Summary Disposition of Contention 3.

Specifically, Intervenor disputed Entergys Statement of Material Fact 2, in which Applicant states that [t]he SAMA cost-benefit evaluation looks at whether a SAMA is potentially cost effective by measuring the mean of the total costs avoided versus the cost of implementing the SAMA.13 Intervenor stated inter alia in disputing this statement that Entergy should make a comparison to the sum of the total costs avoided, not the mean.14 I note that Entergys Statement of Material Fact 2 appears to be a short, summary way of stating the same thing described supra in the third paragraph of this Statement - i.e., rather than saying that the sum of the probability-weighted mean consequence values for all 19 accidents analyzed is compared to the costs of implementing SAMAs, etc., Entergy simply referred to the mean of the total costs avoided. Pilgrim Watch also in disputing this statement used a shorthand sort of statement itself, and indeed must be said to have controverted Entergys Statement 2 less effectively than it might have. I would tend, however, to allow some leeway for the fact that Pilgrim Watch was proceeding pro se at the time it filed its Answer to the Motion for Summary Disposition.15 I would thus find that, in at least challenging Entergys 13 Statement of Material Facts at 1.

14 Pilgrim Watchs Answer Opposing Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3 at 6 (emphasis in original).

15 See, e.g., another Licensing Boards relatively recent reference to the Commission's longstanding admonition that a presiding officer should provide latitude to a pro se participant. See Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 and 4), LBP-08-16, 68 N.R.C. 361 (2008) (citing Shieldalloy Metallurgical Corp.

5 reference to the use of a mean, which I determine to be encompassed within the mean consequence values concept, Intervenor clearly placed it in issue, or raised the issue, at a time appropriate for such a response.16 Fundamental Fairness and Due Process Issues Regarding a partys right to respond to evidence presented by another party, which I discussed to an extent in my October 26, 2010, Separate Statement, my colleagues appear at this point to agree at least that Pilgrim Watch acted appropriately in responding to Entergys Statement of Material Fact 2 (even if its response does not satisfy them). But the right to respond exists also in the hearing context, as I have previously observed,17 and therefore, except to the extent it has been in effect rendered moot at this point, the question remains whether evidence on the mean consequence values issue should have been permitted in the parties prefiled direct and rebuttal testimony, and whether it is appropriate to consider the mean consequence values issue in making our determinations on that part of Contention 3 that is now before us.

In this regard, I note that at this point the parties have agreed to admit into evidence all of their exhibits, and these include Pilgrim Watch Exhibit PWA00012, a Critique of the Radiological Consequence Assessment Conducted in Support of the Indian Point Severe Accident Mitigation Alternatives Analysis, by Dr. Edwin S. Lyman, (Cambridge, Ohio Facility), CLI-99-12, 49 NRC 347, 354 (1999); Public Service Electric and Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973)).

16 My colleagues seem to conflate the question of whether Intervenor raised the issue with how well it raised it. But whether Pilgrim Watch raised the precise issue in question precisely correctly or in a manner that would comply with, for example, the various criteria of the contention admissibility rule at 10 C.F.R. § 2.309(f)(1), is a separate matter than whether it timely raised it, in some form or fashion sufficient to simply identify it. In challenging Applicants Statement of Material Fact 2, Pilgrim Watch placed the subject of Statement 2 in issue and thereby raised it, at the time appropriate for such a response, and in a manner sufficient to identify the issue being challenged.

17 See my Separate Statement of October 26, 2010, at 9 et seq. (quoted in part in the Majority Memorandum and Order at n. 97, supra).

6 which addresses the mean consequence values issue. I note also that both Applicant and the NRC Staff have in their prefiled testimony addressed this issue.18 In the sense, therefore, that the parties have filed at least some evidence on the issue, the timeliness question currently before us is at least in part moot, and we could consider the existing evidence and arguments relating to the use of such mean consequence values, to the extent Dr. Lyman in Exhibit PWA00012 discusses the matter generically, and based on the filings of all parties, and possibly determine on some level the extent to which (if any) such values could result in downplaying the impacts of severe accidents. But given that my colleagues disagree, I would conclude by simply stating, based on Pilgrim Watchs having challenged Statement of Material Fact 2 on the use of mean consequence values as discussed above, that I would allow for evidence on and consideration of the issue in question.19 18 See, e.g., Entergy Prefiled Exhibit ENT000001, Prefiled Testimony of Dr. Kevin R.

OKula and Dr. Steven R. Hanna on Meteorological Matters Pertaining to Pilgrim Watch Contention 3 (Jan. 3, 2011) at 36 et seq.; NRC Prefiled Exhibit 14, Prefiled NRC Staff Testimony of Nathan E. Bixler and S. Tina Ghosh Concerning the Impact of Alternative Meteorological Models on the Severe Accident Mitigation Alternatives Analysis (Jan. 3, 2011) at 14 et seq.; NRC Prefiled Exhibit NRC000015, Prefiled NRC Staff Testimony of James V. Ramsdell, Concerning the Impact of Specific Meteorological Conditions on the Severe Accident Mitigation Analysis (Jan. 3, 2011) at 8, 13.

19 On the fairness issue, to a large extent it would seem this issue is somewhat moot itself at this point, for the same reasons discussed in the text. I will, however, respond to some of my colleagues points in this regard. First, regarding note 100 of my colleagues Memorandum and Order, and their reference to the Commissions statement that intervenors in reactor licensing proceedings (as opposed to reactor license applicants, and those who are the subject of an NRC enforcement action) ordinarily cannot raise constitutional Due Process issues with respect to NRC hearing procedures, inasmuch as intervenors cannot claim government deprivation of life, liberty or property as a result of the NRCs licensing action, see Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,192 (Jan. 14, 2004) (emphasis added) (citing City of West Chicago v. NRC, 701 F.2d 632, 645 (7th Cir. 1983)); Majority Memorandum and Order at n.100, I would observe that what is ordinarily the case does not resolve every situation. In West Chicago, the Court considered objections of the city to the Commissions not having provided a formal hearing in response to its request for hearing. West Chicago, 701 F.2d at 637. The Commission had, however, actually accepted and addressed the contentions of the city that were raised in its written materials, and the Court pointed out that what the parties were arguing about [was] the kind of hearing the NRC is required to conduct when

7 issuing an amendment to a source materials license. Id. at 638 (emphasis added). The NRC had argued that the NRC may hold an informal hearing in which it requests and considers written materials without providing for traditional trial-type procedures such as oral testimony and cross-examination. Id. The Court ruled that the NRC hearing procedures in effect at the time satisfy the requirements of due process, and that generalized health, safety and environmental concerns do not constitute liberty or property subject to due process protection. Id. at 645.

The Court in West Chicago, did not, however, address standing, or the interest that must be shown to demonstrate standing, or the rights of parties once they have shown standing and been admitted to a proceeding as parties. In contrast, Pilgrim Watch raised more than generalized concerns and in fact demonstrated an interest sufficient to establish its standing to participate in this proceeding as a party, leading us to find, based on the physical proximity of [its] representative to the Pilgrim Nuclear Power Station, . . . that Pilgrim Watch has demonstrated representational standing to participate [in this proceeding] under [Section 189a of the Atomic Energy Act] and the Commissions rules. LBP-06-23, 64 NRC 257, 271 (2006). The Tenth Circuit has described the nature of the interest that a prospective intervenor must show as direct, substantial, and legally protectable, the test for which is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Dept. of Interior, 100 F.3d 837, 840-41 (10th Cir. 1996)

(internal quotation marks omitted) (citations omitted) (emphasis added). (As we have earlier noted, in ruling on standing under 10 C.F.R. § 2.309(d)(1)(ii)-(iv) and determining whether a petitioner [in an NRC proceeding] has established the necessary interest under Commission rules, licensing boards are directed by Commission precedent to look to judicial concepts of standing for guidance. LBP-06-23, 64 NRC at 270.)

For a more in-depth discussion of the rights of parties in NRC proceedings, specifically to respond to the evidence of other parties, see Luminant Generation Co.,

LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), Memorandum and Order (Ruling on Motion for Summary Disposition of Contention 18 and Alternatives Contention A), LBP-11-04, 73 NRC __, __ (slip op. at 34-36 & n.147) (Feb. 24, 2011). Of course, any evidence presented by a party in response to that of another party would have to be relevant to the contention that is the subject of the hearing, and material to the outcome of the hearing on that contention, but it must also be recognized that evidence that is relevant and material for one party must necessarily be relevant and material for any other party. While certainly, if any response goes beyond the scope of the fact(s) being responded to, then that portion that goes beyond that scope may be ruled inadmissible on that ground. And of course, as the Commission has noted, a party responding to a summary disposition motion (or indeed to evidence in a hearing) may not raise distinctly new asserted deficiencies. CLI-10-11, 71 NRC at __ (slip op. at 29); see supra n. 66 of Majority Memorandum and Order. But, as I have previously noted, a party could not appropriately be foreclosed from responding at all, by simply and straightforwardly disputing a statement put forward by an opposing party as a material fact.

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 LB MEMORANDUM AND ORDER (RULING ON TIMELINESS OF MEAN CONSEQUENCE VALUES ISSUE) have been served upon the following persons by Electronic Information Exchange (EIE) and by electronic mail as indicated by an asterisk*.

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 Edward Williamson, Esq.

Ann Marshall Young, Chair Susan L. Uttal, Esq.

Andrea Z. Jones, Esq.

Administrative Judge Brian G. Harris, Esq.

Richard F. Cole Beth N. Mizuno, Esq.

Brian Newell, Paralegal Administrative Judge Paul B. Abramson Katherine Tucker, Law Clerk U.S. Nuclear Regulatory Commission Lisa Regner*

Office of Commission Appellate Senior Project Manager Adjudication Division of License Renewal Mail Stop: O-16C1 Office of Nuclear Reactor Regulation Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Mail Stop: O11 F-1 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission Office of Secretary of the Commission Mail Stop: O-16C1 Washington, DC 20555-0001

Docket No. 50-293-LR LB MEMORANDUM AND ORDER (RULING ON TIMELINESS OF MEAN CONSEQUENCE VALUES ISSUE)

Terrence A. Burke, Esq David R. Lewis, Esq.

Entergy Nuclear Paul A. Gaukler, Esq.

1340 Echelon Parkway Jason B. Parker, Esq.

Mail Stop: M-ECH-62 Pillsbury, Winthrop, Shaw, Pittman, LLP Jackson, MS 39213 2300 N. Street, N.W.

Washington, DC 20037-1128 Kevin M. Nord*, Fire Chief & Director Matthew Brock, Assistant Attorney General Duxbury Emergency Management Agency Office of the Attorney General 668 Tremont Street Environmental Protection Division Duxbury, MA 02332 One Ashburton Place, 18th Floor Boston, MA 02108 Mary Lampert, Director Melissa Arrighi*

Pilgrim Watch Acting Town Manager 148 Washington Street Town of Plymouth MA Duxbury, MA 02332 Town Managers Office 11 Lincoln Street Plymouth, MA 02360 Sheila Slocum Hollis*, Esq. Rebecca Chin*, Vice Chair Duane Morris, LLP Town of Duxbury Nuclear Advisory Committee Town of Plymouth MA 31 Deerpath Trl.

505 9th Street, NW, Suite 1000 North Duxbury, MA 02332 Washington, DC 20004-2166

[Original signed by Evangeline S. Ngbea]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 3rd day of March 2011.

2