ML111640699

Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on Post Fukushima SAMA Contention

ML111640699
Person / Time
Site:	Pilgrim
Issue date:	06/13/2011
From:	Lampert M Pilgrim Watch
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML111640698	List: ML111640699 ML111640700
References
RAS 20449, 50-293-LR, ASLBP 06-848-02-LR
Download: ML111640699 (27)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of Docket # 50-293-LR Entergy Corporation Pilgrim Nuclear Power Station License Renewal Application June 13, 2011 Pilgrim Watch Reply to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on Post Fukushima SAMA Contention Pilgrim Watch respectfully requests leave to file a response to Entergys and NRC Staffs Answers to Pilgrim Watch Request for Hearing on Post Fukushima SAMA Contention. Entergy and NRC Staff make essentially the same comments in their answers to Pilgrim Watchs Request submitted May 12, 2011; for efficiency, Pilgrim Watch will reply to both in this one filing.

Entergy and NRC Staff argue that:

1. Pilgrim Watch fails to meet the requirements for reopening the record (10 C.F.R. 2.326): it is not supported by expert affidavit; fails to demonstrate that a materially different result would have been likely; does not show good cause for its failure to file on time; does not raise an exceptionally grave issue.

2. PWs Post Fukushima SAMA Contention fails to meet the requirements for admissibility for Nontimely filings, 2.309 (c).

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3. PWs Request fails to meet the standards for an admissible contention (10 C.F.R. § 2.309(f)(1). It raises issues that are immaterial, lacks specificity and support, and fails to demonstrate a genuine dispute.

DISCUSSION A. PWS REQUEST IS NOT A MOTION TO REOPEN NOR IS IT SO REQUIRED Entergy and NRC Staff both pull the same tired Rabbit out of the Hat arguing that Pilgrim Watch fails to meet the requirements for reopening the record. Our reply is the same as it was to Entergys and NRC Staffs previous answers to Pilgrim Watchs Requests for Hearing filed in 2010 and 211. Pilgrim Watch, like the Massachusetts Attorney General, 1 does not believe that the record of this proceeding has closed.

Pilgrim Watch does not seek to reopen anything. Rather, PWs new contention established a dispute based on new and significant information from the ongoing Fukushima crisis that the Pilgrim SAMA analysis is inadequate because it does not account for ongoing releases subsequent to the scramming of the reactor that can continue to produce radioactive releases into the environment that can extend into many days, weeks, and months.

Entergy failed to model releases extending beyond 24-hours. The MACCS2 computer code that they used in their SAMA analysis allows a total duration of radioactive release of (4) days, if the Applicant had chosen to use four plumes occurring sequentially over a four day period. Entergy chose not to take that option, and limited its analysis to a single plume having a total duration of the maximum allowed 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. In any case, either a 24-hour plume or four-day 1

The Massachusetts Attorney General also argues that, the Commonwealth does not believe that the record of this proceeding has closed, Commonwealth Of Massachusetts Contention Regarding New And Significant Information Revealed By The Fukushima Radiological Accident, June 2, 2011,Pg.,4 2

plume is insufficient duration in light of lessons learned from Fukushima. The Fukushima crisis

- a crisis occurring in an advanced highly technological society and in sister reactors to Pilgrim-now extends into its third month and shows that releases can extend into days, weeks and months.

The only reasonable hypothesis is that releases in a severe accident that are not limited to 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> but rather extend into days, weeks and months will increase offsite consequences affecting the cost benefit analysis. Therefore Entergys now insufficient SAMA requires a fresh re-analysis to account for this new and significant information learned from real experience, not theoretical musings, in reactors of the same design. These new facts demonstrate that the probability of releases of a range of magnitude extending beyond 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> are credible and require modeling to determine their effect on the required cost/benefit analysis.

There is no basis to Entergys and NRC Staffs argument that the record is closed. This new and significant issue was not part of, and was not and could not have been litigated in connection with, either Contention 1 or Contention 3. The record in Contention 1 may be closed, and the scope of Contention 3 limited, but in Vermont Yankee, CLI-10-17, the Commission could not have made more clear that the record in this proceeding has not closed: the proceeding will remain open during the pendency of the remand. CLI-10-17, 10, n37 In short, this is not a motion to reopen a closed record. Neither is it an attempt to show that a materially different result would be or would have been likely had the newly proffered evidence been considered initially. 10 C.F.R § 2.326(a)(3). 2 What Pilgrim Watch does seek is a hearing on a new contention that raises an issue that was not been litigated, and could not have 2

10 C.F.R § 2.326(a)(3) reinforces that § 2.326 deals only with motions to reopen the record in some part of a proceeding that has been closed. It is directed to whether the new evidence sought to be presented after reopening would have likely changed the result in a decision that had already been reached. It has no application to contentions, such as PWs new contention that PNPS failing cables present a serious safety risk, that have nothing to do with and could not in any way affect a decision in either decided Contention 1 nor still-pending Contention 3.

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been litigated, as part of either Contention 1 or Contention 3 until the events at Fukushima brought forward the MACCS2 codes incapability to model what we now have learned is a credible accident scenario.

Although both Entergy and the Staff seek to combine the two, the NRCs rules themselves set one standard for reopening a closed contention to take new evidence about an issue that has already been heard (see 10 C.F.R § 2.326 Motions to Reopen), and a different standard for a request to add a new contention that raises a new material issue (see 10 C.F.R § 2.309 Hearing requests, petitions to intervene, requirements for standing, and contentions).

A principal reason that the two are, and must be, different, is that the standards for reopening may not be properly applied to the new material contentions that deal with un-litigated issues. Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1443-44 & n. 11 (D.C. Cir. 1984:

the opportunity to request reopening was an inadequate substitute for the opportunity to request a hearing and the stringency of the reopening standards properly cannot be applied to new material contentions that deal with un-litigated issues). See also Commonwealth of Mass. v. NRC, 924 F.2d 311, 334 (D.C. Cir. 1991: under section 189(a), the NRC may not unjustifiably require that a material contention satisfy the heightened evidentiary standards for reopening a closed record); Union of Concerned Scientists v. NRC. 920 F.2d 50, (DC Cir. 1990: if the NRC were to construe its rules to prevent parties from ever raising a material issue, the aggrieved party could bring an as-applied challenge to the validity of the rules); and Deukmajian v. NRC, 751 F.2d 1287, 1316-17 (D.C. Cir. 1984), vacated in part, 760 F.2d 1320 (D.C. Cir. 1985) (en banc), and aff'd 789 F.2d 26 (D.C. Cir. 1985) (en banc), cert. denied, 479 U.S. 923 (1986).

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The Staff and Entergys arguments that PWs Requests for Hearing on its new contentions are motions to reopen ignore: (i) the title of 10 C.F.R § 2.326 (Motions to reopen),

(ii) the basic provision of clause (a) (A motion to reopen a closed record) and (iii) the import of clause (a)(3) (a materially different result would be or would have been likely had the newly proffered evidence been considered initially), 3 all of which show that § 2.326 simply does not apply to PWs new contention.

The Staff and Entergy mention none of this. The fact that 10 C.F.R § 2.326 applies, and properly can apply, only to a motion to reopen something that has already been decided, and not to new material contentions, is not changed by either clause (d) or the Commission and Board decisions in Vermont Yankee, CLI-10-17 and LBP-10-19 on which Entergy and the Staffs place their reliance. 4 As part of the rule dealing with Motions to Reopen, and to be consistent with the Court of Appeals decisions discussed above, 10 C.F.R § 2.326(d) says nothing more than a new contention that is in reality a motion to reopen something that has already been decided, must meet both the reopening and the new contention standards.

Vermont Yankee does not support Entergys contention that a new contention directed to issues that have not been litigated and decided, and that could not have been litigated in connection with any other contention must address and satisfy the standards for reopening in 3

As pointed out above, 10 C.F.R § 2.326(a)(3) is directed to whether the new evidence sought to be presented after reopening would have likely changed the result in a decision that had already been reached, and reinforces that § 2.326 deals only with motions to reopen the record in some part of a proceeding that has been decided and closed.

4 Entergy here (pgs.,5,15) relies heavily on Amergen Energy Co. LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235, 274 (2009). It is not a good argument here. Oyster Creek is directed to reopening a closed record on an already litigated issue; it is not concerned with the entirely different situation involved here - a record that is not closed, and a new contention directed to an issue that has not been litigated.

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10 C.F.R § 2.326(d). In Vermont Yankee, Entergy argued that [a]t this late stage of the proceeding, is it not sufficient simply to raise an issue, and that longstanding agency practice hold[s] that a party seeking to reopen a closed record to introduce a new issue . . . must back its claim with enough evidence to withstand summary disposition when measured against its opponents contravening evidence. Private Fuel Storage (Independent Spent Fuel Storage Installation), CLI-05-12, 61 N.R.C. 345, 348 (2005), citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 A.E.C. 520, 523-24 (1973). In other words, no reopening of the evidentiary hearing will be required if the [documents]

submitted in response to the motion demonstrate that there is no genuine unresolved issue of fact. Id. at 350 (quoting Vermont Yankee, ALAB-138, 6 A.E.C. at 523-24). (Entergy pgs.,

15,16).

Vermont Yankee presented a factual situation that is very different from that present here.

Properly understood, Vermont Yankee supports PWs position that 10 C.F.R § 2.326 does not apply here.

Contrary to the Staffs argument, in Vermont Yankee, LBP-10-19, the Board did not den[y] a motion to reopen the record to admit a contention similar to the one at issue here (Staff, 7). Neither, as Entergy argues (Entergy, 16) did the Board in Vermont Yankee, CLI-10-17, make clear that ... a new contention unrelated to the remanded issues ... must address and satisfy the standards for reopening. (Entergy, 16)

The critical fact in Vermont Yankee is that (unlike here) NECs new contention 2C was not a truly new contention directed to entirely new issues, but was in reality a motion to reopen already decided Contention 2. Both the Board and the Commission found that the new contention did nothing more than rehash what the Board had already addressed in considering 6

existing Contention 2 (CLI-10-17, 61, 67). Thus, the Commission concluded that Contention 2C was subject to 10 C.F.R § 2.326 because it was not a new contention, but rather an effort to reopen the record with respect to Contention 2 that had already been considered and decided.

Nonetheless, the Commission ordered the Board to permit NEC and Vermont to amend their original contention 2; and on remand the Board said the motion to reopen this proceeding fails to satisfy 10 C.F.R. § 2.326(a)(1) and (3).

But because NECs revised contention was directed to issues raised by old Contention 2, and not to entirely different issues that had not previously been litigated, the Board decision in LPB-10-19 has nothing to do with PWs May 12, 2011 request. Nowhere in its pending Contention 3 does Pilgrim Watch mention these new and significant flaws in the computer code (MACCS2) the Applicant used in its SAMA analysis that underestimated consequences based on lessons learned from Fukushima.

The Commissions decision in CLI-10-17 similarly does not hold that if an intervenor were to seek raise a new contention unrelated to the remanded issues, it must address and satisfy the standards for reopening. Completely consistent with Rule 2.236(d), the Commission simply held that the standards for reopening must be satisfied if an Intervenors new contention in substance seeks to reopen only to address new issues and information that are related to a previously decided contention.

In short, Vermont Yankee is simply an example of an application of Rule 2.236 that is consistent with the words of the Rule and also complies with the standards set by the Court of Appeals decisions discussed above. Vermont Yankee involved nothing more than a motion to reopen a contention that has already been decided, to which the stringent requirements and 7

heightened evidentiary standards for reopening a closed record may properly apply. Union of Concerned Scientists v. NRC, 735 F.2d (D.C. Cir. 1984) and Commonwealth of Mass. v. NRC, 924 F.2d 311 (D.C. Cir. 1991) above But those stringent requirements and heightened evidentiary standards cannot be applied to new material contentions that deal with un-litigated issues; and Rule 2.326 quite properly does not require them to be. PWs new contention was filed during the pendency of the remand (Vermont Yankee, CLI-10-17, 10), and it has nothing to do with, and does not seek to reopen any aspect of, either its Contention 1 or Contention 3.

B. PWS POST FUKUSHIMA SAMA CONTENTION MEETS THE REQUIREMENTS FOR ADMISSIBILITY FOR NONTIMELY CONTENTIONS Contrary to both Entergy and NRC Staff, Pilgrim Watch met the 8-part requirements for presenting a nontimely contention. (10 C.F.R. § 10 2.309 (c )(i-viii )

Entergys answer addressed three of the eight standards: (i) Good Cause; (vii) the extent to which the Petitioners participation will broaden the issues or delay the proceedings; and (viii) the extent to which the petitioners participation may reasonably be expected to assist in developing a sound record.

1. PWs Request is Timely- Good Cause 5 Under 10 C.F.R 2.309(c), the determination whether the filing of a contention is nontimely is based on a balancing of eight factors, the most important of which is good cause, if any, for the failure to file on time. Crow Butte Resources, Inc. (North Trend Expansion Project), LBP-08-6, 67 NRC 241 (2008) 5 PW Request for Hearing Post Fukushima SAMA, pg.,14 8

The Fukushima disaster began on March 11, 2011. The information upon which the contention is based is not yet fully available. However sufficient information was released by TEPCO to file the request on May 12, 2011.

Good cause has been consistently interpreted to mean that a proposed new contention be based on information that was not previously available, and was timely submitted in light of that new information. Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 N.R.C. 115, 125-26 (2009) citing Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-1, 67 N.R.C. 1, 6 (2008). See also, NRC Digest, Prehearing Matters, 29:

Newly arising information has long been recognized as providing "good cause" for acceptance of a late contention. Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 577 (1982), citing Indiana and Michigan Electric Co. (Donald C. Cook Nuclear Plant, Units 1 and 2), CLI-72-75, 5 AEC 13, 14 (1972); Cincinnati Gas and Electric Co.

(William H. Zimmer Nuclear Station), LBP-80-14, 11 NRC 570, 574 (1980), appeal dismissed,ALAB-595, 11 NRC 860 (1980).

NRC Staff (Answer, pg., 8) argue that the codes deficiency has existed since the Applicant filed the Environmental Report in 2006 (NRC Answer, pg., 8) and Entergy makes a similar and more lengthy argument citing a variety of sources (Entergy Answer, pgs, 12-13)

Entergys and the Staffs arguments beg the issue. The studies that they cite refer to a potential or theoretical possibility of re-criticality, but what is now new and significant is that, as shown at Fukushima, what can really happen is ongoing releases extending into months - not only at Fukushima but also at the sister reactor Pilgrim. In discussing the theoretical 9

possibility of re-criticality, the studies referred to by Entergy and Staff never talk about the duration of releases - the key dispute.

Entergy refers to LRA Attachment E, Table E.1-11 (pg., E.1-50) that provides the release duration for each of the 19 collapsed accident progression bins that Entergy considered in its SAMA analysis 6. The maximum release duration that Entergy indicates that they modeled is 21/2 hours. What the Petitioner and public would have assumed from Entergys LRA, and what Entergy intended to be believed, and what the Staff apparently approved, was that 2 1/2 hours was the maximum credible duration of a release during a severe accident. Before the actual severe accidents at Fukushimas GE Mark 1 BWRs, neither Pilgrim Watch nor the public had any information to show that, 2 1/2 hours is NOT the credible maximum duration of a release from a reactor like Pilgrims. What is new and significant information from Fukushima is that 2 1/2 hour maximum release duration is a ludicrous assumption. It should be orders of magnitude greater.

6 Entergy June 6, 2011 Answer, pg.,13, FN 27 10

Rather than admit the inadequacy of the SAMA analysis, both Entergy and Staff choose to shoot the messenger by arguing the Petitioner should have known 6 years ago that modeling a maximum release time of 2 1/2 hours was inadequate and that ongoing releases extending over weeks or months were a credible scenario.

The shoe belongs on the other foot. Both NRC and Entergy reference documents that make clear that both were aware of re-criticality and that the MACCS2 codes did not have capability to model releases extending over many days, weeks, and months. Yet neither NRC nor Entergy disclosed this critical fact, or the fact that this lack of capability could be important, in 2006 or later in these proceedings. Instead both referred to the MACCS2 as state-of-the-art, the standard tool for evaluating offsite consequences and convinced the ASLB that the MACCS2 is the current standard for performing SAMA Analyses - off the 11

table in the proceeding. (Memorandum and Order (Ruling on Motion to Dismiss petitioners Contention 3 regarding Severe Accident Mitigation Alternatives), October 30, 2007, pg., 8) Is it acceptable practice for NRC and the Applicant to hide pertinent facts from the public and ASLB as long as a Petitioner does not find out?

Pilgrim Watch had good cause for late filing. The information we now have on the duration of releases based on actual experience from Fukushima, not optimistic theoretical musings, must be considered. Heretofore, it was unavailable.

2. Whether Admitting The New Contention Would Unduly Broaden Or Delay The Proceedings.

The seventh factor, addressed by Entergy is whether admitting a new contention would unduly broaden or delay the proceedings. (Entergy Answer, pg., 24) The short answer here is two-fold. First, if mere broadening of a proceeding was a basis for rejecting a new contention, no new contention could ever be admitted. Second, and as pointed out in PWs request, this factor includes only that delay which can be attributed directly to the tardiness of the petition.

(Request, 14, citing the NRC Practice Manual) Since PW was not tardy, the seventh factor is essentially irrelevant.

Again, Entergy complains that this proceeding is entering its sixth year. If this is a burden to Entergy it is one of Entergys own making. Entergy continues to refuse a settlement offer made long ago, and also refused Judge Youngs offer to appoint a Settlement Judge.

Entergy also forgets that ASLBs and NRCs goal is to provide reasonable assurance that public safety will be protected over the renewed license, and not simply to accommodate Entergys and a few legislators request to get this proceeding over with.

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3. Developing a Sound Record Finally, Entergy argues that it cannot be reasonably expected that Pilgrim Watch will assist in developing a sound record. (Entergy Answer, pg., 24) Entergy argues that PW did not provide sufficient detail the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony.

PW covered the central dispute that new and significant information requires Entergy to go back to the drawing board and model releases for the duration of times that are now credible to expect based on the new, significant and actual information from Pilgrims sister plants at Fukushima - releases in excess of 2 1/2 or even 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. PWs request is straight-forward, simple and covered in sufficient detail. Based on the re-analysis, PW and the other parties can then determine if it was properly executed and what mitigations are justified.

PW identified one prospective witness, David Chanin, and provided a statement from him. Mr. Chanin wrote the MACCS2 codes Fortran. Therefore he was the obvious and appropriate expert to go to for answers regarding the codes capability to model releases of varied duration. He explained that it was a design challenge not limitation. Dr. Nathan Bixler, NRC Staff expert agreed with PW and David Chanin, and admits that no computer codes exist that are capable of modeling releases over an 8 week period. 7 C. PWS REQUEST MEETS THE STANDARDS FOR AN ADMISSIBLE CONTENTION 7

Affidavit Of Dr. Nathan E. Bixler And Dr. S. Tina Ghosh In Support Of The NRC Staffs Answer In Opposition To Pilgrim Watchs Request For Hearing On Post Fukushima SAMA Contention, June 6, 2011,Item 20, Pg., 10 13

Entergy and Staff argue incorrectly that PWs contention does not meet the contention admissibility standards (10 C.F.R. § 2.309(F)(1). PWs Request established that the contention was within scope, material, and provided a basis with sufficient specificity and support to demonstrate a genuine dispute.

1. This Contention Raises A Genuine Dispute That Is Within Scope Entergy (Entergy Ans. 27) incorrectly argued that the new contention is not within scope.

Pilgrim Watch explained at 4 in its request that, SAMA analyses are within scope under 10 CFR §51(c)(ii)(L); and are a Category 2 issue. PW added that This new contention seeks compliance with NEPA and is based on the applicants Environmental Report (ER). 10 CFR§2.309(f)(2).

2. The Issue Raised Is Material Entergy (Ans. 28) and NRC Staff (Ans. 14) argue incorrectly that PW fails to demonstrate that the Request is Material.

PW at 5 explained that, The issue raised in th[is new] contention is material to the findings the NRC must make to support the action that is involved in the proceeding. 10 CFR§2.309(f)(iv) Further, we explained that:

In considering the license renewal for Millstone Nuclear Power Station, the ASLB stated that [w]here a contention alleges a deficiency or error in the application, the deficiency or error must have some independent health and safety significance. In the Matter of Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3) Docket Nos. 50-336-LR, 50-423-LR ASLBP No. 04-824-01-LR July 28, 2004, p. 7. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP- 98-7, 47 NRC 142, 179-80 (1998), affd in part, CLI-98-13, 48 NRC 26 (1998). The deficiency highlighted in this contention has enormous 14

independent health and safety significance. Further analysis to evaluate how changes to assumptions discussed herein are likely to significantly increase offsite costs that justifies requiring Entergy to add mitigation to reduce the risk of a severe accident such as adding plant modifications, operational changes and training to increase public safety during license renewal. (Emphasis added)

NRC went further than Entergy and said (Ans., pg., 15) that, they agree with PW that no computer codes exist that are capable of modeling releases over an 8 week period. We would agree that there is no computer code capable of modeling severe accidents for a SAMA analysis that is currently capable of modeling an extended but slow release over 8 week.

The Staff then tried to use Entergys failure to make adjustments to a code so that it was capable of such modeling as reason to excuse Entergys inadequate SAMA:

If no code can model the kind of release it claims is occurring at Fukushima, then PW is raising an issue that, by its own admission, cannot change the SAMA analysis.

If the MACCS2 Code cannot be changed easily to address PWs concerns, there can be no material change in the resulting SAMA cost-benefit analysis, and the contention is inadmissible for failing to raise a material issue in dispute. Pilgrim, CLI-10-11, 71 NRC (slip op. at 39). It is also inadmissible as it raises an issue that is not susceptible of resolution in this proceeding. Peach Bottom, ALAB- 216, 8 AEC at 20-21.

By the Staffs reasoning, the NRC can properly ignore its obligation to protect public health and safety by knowingly allowing an Applicant to use an outdated code that underestimates costs, and then can excuse the Applicant from having to meet its NEPA obligation simply 15

because it thinks to require the Applicant to do so would be too expensive. This tortured reasoning provides no basis for denying the public of mitigation that it deserves, and failing even to address new and significant information. PW understands that the Applicant is required to use the best available technology; if there are shortcomings, it is the Applicants obligation to deal with them - not the publics obligation just to accept the risk.

Entergys Argument That No Materially Different Result Is Likely - Unsupported Wishful Thinking Entergys arguments (Ans., pgs., 15-21) that no materially different result would be likely do not hold water. They rest their case on multiple unsupported assumptions, seen through rose colored glasses. To illustrate:

Entergy (Ans., pg., 18) says that, [M]ost of the fission products released from purported recriticalities would be scrubbed or absorbed by the water medium required for any recriticality to occur, which would further limit the airborne releases that could cause consequences to high population areas within the 10 to 50 mile range that dominate the Pilgrim SAMA analysis. Id. at

¶ 29.

These cited mechanisms trivialize likely consequences. They have been trotted out by industry many times before and subsequently disputed. For example, EPRI released a study in the early 1980s that resulted from a concerted industry campaign to convince both the public and government that, even in case of containment failure, the resulting release of radioactivity to the atmosphere would be much less than has always been thought. NRC disputed that in a 1981 draft report that said, "The results of this study do not support the contention that the predicted consequences of the risk dominant accidents have been over-predicted by orders of magnitude in past studies. For example, the analysis in this report indicates that . . . 10% to 50% of the core 16

inventory of iodine could be released to the environment. 8" However, under pressure from the industry, the Commission subsequently rewrote the summary language of its draft so that it no longer appeared to be a rebuttal to the Electrical Power Research Institute report. Nevertheless, the technical conclusions remained the same.

Japan has shown that NRCs original draft report is much closer to the truth, and that Entergys and NRC assumptions of the probability of offsite consequences are wrong. Dr. Frank von Hippel explained in a briefing to the NRC that, For accidents in which the damage is sufficient to open large pathways from the core to the containment, there will not be sufficient water available to trap the radioactive materials of concern, nor will the pathway be so torturous that a significant amount wills tick to surfaces before reaching the containment atmosphere. Similarly if the containment fails early enough, there will be insufficient time for aerosols to settle in the reactor building floor. 9 Entergy further arguments rest on multiple overly optimistic assumptions, none of which have been demonstrated to be true and are disputed by PW. For example Entergy (Ans., 20) said, The duration of an accident release is not the controlling factor for a SAMA analysis because, for example, the doses that the public would receive from a low-level release occurring over an extended period of time will be greatly exceeded by the much larger, elevated releases due to the energetic events analyzed in a SAMA analysis. The overall source term considered for a SAMA analysis includes the type and amount of radionuclides, the heat energy in the plume associated 8

U.S. Nuclear Regulatory Commission, Technical Bases for Estimating Fission Product Behavior During LWR Accidents, NUREG-07 draft (March 6, 1981; final, June 1981).

9 Bulletin of Atomic Scientists: Containment of a Reactor Meltdown, Frank von Hippel, March 15, 2011, FN 16(Exh. 1) 17

with the release, the height of the release, the timing of release, and the maximum plume duration considered. Id. at ¶¶ 35-36.

Whats wrong? First, there is no basis provided to assume that there would simply be a low-level release occurring over [the] extended period. Second, it is far from clear that, and PW questions that, Entergys much larger, elevated releases due to the energetic events analyzed in a SAMA analysis were in fact much larger, especially post Fukushimas demonstration of what really may happen in a severe accident to a GE Mark I BWR. The maximum duration of release that Entergys SAMA modeled simply was 2 1/2 hours, not releases that extended, as at Fukushima, over months. Pilgrims sister reactors in Fukushima experienced core melts (Units 1, 2, and 3), hydrogen explosions (Units 1, 3, and 4), and venting failures in three reactors and spent fuel disasters. These types of events are very different from Entergys SAMA and change the probabilities that now must be factored into severe accident SAMA analyses.

Entergys Answer (Ans., pg., 20) deceives the unwary reader with a careful choice of wording. They say, The CAPBs (Collapsed accident progression bins) used for the Pilgrim SAMA analysis include severe accident releases that are far more severe in magnitude and are immediately airborne compared to those characterizing the recently reported releases from Fukushima. Id. at ¶ 36. (Emphasis added) What reports exactly are they referring to; when were they issued; and how was the data collected in the absence of monitors that were destroyed by the earthquake and tsunami? The reported releases now admitted by TEPCO and the Japanese government were significantly larger than initially reported. 10 10 Japan doubles plant radiation leak estimate, AFP, June 7, 2011 http://www.google.com/hostednews/afp/article/ALeqM5gLcTskBLoTfNAi4VLJCFsAJucOvA?docId=CNG.5a6e02 18

Entergy (Ans., 21) evolves into wishful thinking or pure fantasy. They say in summary that, [T]here would be no changes in the results of the SAMA analysis even considering the claims asserted by Pilgrim Watch. Pilgrim Watch has alleged no facts that would make another SAMA potentially cost beneficial. It is clear that Pilgrim Watch is not required to prove whether there would or would not be additional mitigation required after a reanalysis that modeled releases of longer duration and varied magnitude. This is because (i) the proceeding has not developed to summary disposition; and (ii) Entergy has not done the reanalysis now required. Therefore neither Pilgrim Watch nor Entergy can show that there would be no changes in the results of the SAMA analysis because the reanalysis required by NEPA to consider the new and significant information has not been done.

bd5b1728e652010dfdd131fbf0.6e1 (AFP) - 5 days ago: TOKYO Japan has more than doubled its initial estimate of radiation released from the crippled Fukushima nuclear plant in the week after the March 11 tsunami, ahead of the launch of an official probe Tuesday. The nation's watchdog, the Nuclear and Industrial Safety Agency (NISA), now says it believes 770,000 terabecquerels escaped into the atmosphere in the first week -- compared to its earlier estimate of 370,000 terabecquerels Radiation Understated After Quake, Japan Says, World/Asia Pacific, Hiroko Tabuchi, June 7, 2011 http://www.nytimes.com/2011/06/07/world/asia/07japan.html TOKYO Japan said Monday that radioactive emissions from the stricken Fukushima Daiichi nuclear power plant in the early days of the March 11 earthquake and tsunami disaster might have been more than twice as large as a previous estimate, suggesting the accident was more grave than the government had publicly acknowledged On Monday, Japans nuclear regulator, the Nuclear and Industrial Safety Agency, said that the reactor pressure vessel at one of the plants reactors appeared to have been compromised as early as five hours after the quake. .. The agency also said it now estimated that the radioactive release from the plant totaled 770,000 terabecquerels in the first week after March 11. The agency had previously estimated 370,000 terabecquerels released in the first month The commission relied on a computer model that uses radiation measurements taken at various distances from a nuclear accident. The model produces an estimate of the radioactive material escaping from the source. But the Nuclear and Industrial Safety Agency based its number on estimates of the damage to the reactors radioactive cores. Its latest reading more accurately reflects the radioactive material spewed after hydrogen explosions at Reactors 2 and 3, the agency said. Officials cautioned that there was a wide margin of error involved in both calculations. Also Denki Shimbun - Release of radioactive material twice as high as the initial estimate, Jun. 10, 2011 http://www.shimbun.denki.or.jp/en/news/20110610_02.html 19

3. Pilgrim Watchs Request - Clear, not vague Entergy (Ans. at 28) argues that PWs new contention is vague. To the contrary PW clearly disputes the sufficiency of Entergys SAMA analysis. The code used by Entergy is incapable of modeling the duration of releases that are credible scenarios post the actual experience at Fukushima. A reasonable person would hypothesize that if they modeled ongoing releases, well beyond 2 1/2 or even 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, the codes capability, the offsite consequences and costs would justify additional SAMAs. It is not PWs job to prove that, certainly not at this stage in the proceeding; rather Entergy shoulders the burden of proof and indeed the responsibility to do an accurate SAMA analysis. It is not NRC Staffs job to offer excuses why they are not required to do so.

4. The Contention is supported Entergy (Ans. Pg., 29) and NRC Staff (Ans. Pg., 15) argument that the contention is inadequately supported approaches the bizarre. Pilgrim Watch stated that it intends principally to rely upon government documents and testimony from David I. Chanin. Entergy and the Staff say that this is not enough, but the Staff then admits that Mr. Chanin is right - the MACCS2 code cannot model releases over an extended period of time. Even without this admisstion, it would be unreasonable to expect a totally unfunded group to provide detailed expert testimony from these experts at this early stage. This is not summary disposition. If a complete analysis of extended release periods (something that neither Entergy nor the Staff has done) was required at the time a contention was filed, the result would be that most, if not all members of the public, non-profit public interest groups, and local governments would be shut out of relicensing due to lack of resources. These groups necessarily must preserve their limited resources for expert witnesses required at the summary disposition and hearing stage of these proceedings. We 20

trust that it is not the intent of the Commission to restrict participation only to insiders with deep pockets. PW did provide a statement by Mr. Chanin. He provided his experience and said that,

[He] ha[s] read and reviewed the enclosed proposed contention and fully supports all its statements. The Staff admits that the most critical aspects of what Mr. Chanin and Pilgrim Watch said is true. It is plainly premature to force PW to hire experts to analyze an analysis that Entergy never did and that simply does not exist.

3. The Contention Establishes a Dispute Entergy (Ans., pg., 30 forward) argues that PW fails to provide sufficient information showing that a genuine dispute exists on material issues of law or fact. To the contrary, PW established a dispute about the MACCS2 code used by Entergy in its SAMA is insufficient because it is unable to model releases of sufficient duration; and that they are required to figure out how to do this because releases of much longer duration are credible events post Fukushima

- new and significant information.

This new contention seeks compliance with NEPA and is based on the Applicants Environmental Report (ER). 10 CFR§2.309(f)(2)

The NRC must consider new and significant information arising from the accident at Fukushima before relicensing Pilgrim NPS, whether or not that information ultimately leads to modification of licensing requirements. Regardless of its eventual assessment of the significance of the information, the [agency] ha[s] a duty to take a hard look at the proferred evidence. Marsh v Oregon Natural Resources Council, 490 U.S. 360, 385 (1989)

The fundamental purpose of the National Environmental Policy Act, NEPA, 42 USC

§ 4332, is to help public officials make decisions that are based on understanding of 21

environmental consequences, and take decisions that protect, restore and enhance the environment. 40 CFR § 1500.1(c) (Emphasis added).

In its application for license renewal of Pilgrim, Entergy was required under 10 CFR § 51 to provide an analysis of the impacts on the environment that could result if it is allowed to continue beyond its initial license; and the environmental impacts that must be considered in its EIS include those which are reasonably foreseeable and have catastrophic consequences, even if their probability of occurrence is low. 40 CFR §1502.22(b)(1)

F u r t h e r , t he fact that the likelihood of an impact may not be easily quantifiable is not an excuse for failing to address it in an EIS. NRC regulations require that to the extent that there are important qualitative considerations or factors that cannot be quantified, these considerations or factors will be discussed in qualitative terms. 10 CFR§51.71 The ASLB must consider issues raised by Fukushima prior to relicensing Pilgrim because the Fukushima events plainly show that, even if they are not yet all conclusively understood, the environmental impacts of the NRC relicensing Pilgrim may affect the quality of the human environment in a significant manner or to a significant extent not already considered. Marsh at 374; see also Marsh at 372-373 The ASLB properly cannot rely upon Entergys 2006 SAMA analysis and ignore new and significant information. NEPA requires an agency to consider the environmental impacts before decisions are made to ensure that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast. Robertson v Methow Valley Citizens Council, 490 U.S. 332,349 (1989)

Entergy incorrectly argues that PW did not make a minimal showing that its claim would affect the outcome (and further that) In order for an additional SAMA to become potentially 22

cost-beneficial, the benefit (risk averted) would need to increase by more than a factor of two, i.e., more than 100%. Entergy Decl. at ¶ 25. Pilgrim Watch asserts no facts and provides no explanation showing that, were its concerns accounted for, the risk averted would even approach that mark.

There are at least three problems with their argument. First PW does not believe that for an additional SAMA to become potentially cost-beneficial, the benefit (risk averted) would need to increase by more than a factor of two, i.e., more than 100% because those calculations were based on both inadequate assumptions/limitations in the code and Entergys inputs into the code.

Second, PW does not shoulder the burden of proof and Entergy has not performed a re-analysis modeling extended durations of release - so we have nothing to look at. Third this is not summary disposition.

As Entergy has done several times in the past, Entergy and the NRC legal Staff continue to confuse what an Intervenor must show to have a contention admitted, and what it will be required to show at the summary disposition or hearing stage. This Board has repeatedly recognized the difference; Entergy and the NRC legal staff continue to refuse to do so.

Rule 2.309(f)(1) could hardly be clearer that critical requirements for a hearing request are that it include:

v. a concise statement of alleged facts or expert opinions which support the requestors/petitioners position on the issue, and vi. sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.

23

The issue at the Pleading stage is not whether PWs or Entergys allegations are correct, but whether, if all of PWs factual assertions/ opinions are taken as true, they provide a basis for this contention; or said in the Federal Rules of Civil Procedure, whether PW has stated a claim upon which relief can be granted.

The NRC Staff Practice and Procedure Digest (NRC Digest) could hardly be clearer:

Intervenors are not asked to prove their case at the contention stage, or to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factual or legal bases to support the contention, and to do so at the outset. (NRC Digest, Prehearing Matters, pg. 16).

Commission Rules of Practice make no provision for motions for orders of dismissal for failing to state a legal claim. However, the Federal Rules of Civil Procedure do in Rule 12(b) (6), and Licensing Boards occasionally look to federal cases interpreting that rule for guidance. In the consideration of such dismissal motions, which are not generally viewed favorably by the courts, all factual allegations of the complaint are to be considered true and to be read in a light most favorable to the nonmoving party.

Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site Decontamination and Decommissioning Funding), LBP-94-17, 39 NRC 359, 365 (1994) (NRC Digest, Hearings, 80)

The clearest evidence that PWs Request for Hearing meets the requirements of 10 C.F.R.

§2.309 is the length of Entergys attempts to show that it does not.

Entergys and the NRC legal staffs arguments show that important facts are disputed.

Entergys and the NRC legal staffs oppositions spend many pages trying to show that there are no material facts in dispute. But as already discussed, the material facts (releases beyond 2 1/2 hours- 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> are credible scenarios and the MACCS2 does not model releases longer than 4 days if I-Plume-3 is used by the Applicant or 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />) presented by PW as fact. This fact 24

remains in dispute despite everything that Entergy and the Staff may say; whether their version of the facts or PWs is correct is not an issue that can or should be resolved at this stage.

Even Entergy seems to agree that all a new contention must do is make a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate. 54 Fed. Reg. 33, quoted by Entergy at 30 The issue at this stage is not whether summary disposition should be granted. The factual issues before the Board cannot be resolved now, or without giving PW an opportunity to present all the evidence at the appropriate time. Under any test, including at the later summary judgment stage, [i]f there is any possibility that a litigable issue of fact exists or any doubt as to whether the parties should have been permitted or required to proceed further, the motion must be denied. (NRC Digest, Hearings 64, 65, underlining added; see also, 10 C.F.R. § 2.710(d)

(2)).

What Entergy and the Staff seem to say is that the disparate material facts are not really in dispute because Entergy and the Staff do not agree with PW's assertions. Entergy and the Staff appear to have forgotten at least three basic principles.

The first is that a proceeding, even one before this Board, has at least three distinct phases: Pleading, Summary Disposition, and Hearing. The issue at the Pleading stage is whether, taking all of the facts pleaded as true, Intervenors contentions state a claim upon which relief can be granted (Compare, Fed. Rules of Civil Procedure, Rule 12(b)(6). It is not whether summary disposition should be granted because there are no material facts in dispute (which there plainly are here, and that can be granted only after giving the Intervenor the opportunity to 25

present all pertinent material); and even more clearly is not whether all of those disputed facts should be decided in favor of the industry the NRC.

PW respectfully requests the Boards consideration of an extensive history of opinions and decisions both at the ASLB and the Commission level that make it very clear that contentions are not to be litigated on their merits at this preliminary stage of the proceedings.

If the contention is accepted for a hearing, then Entergy may, assuming the burden of proof, move for summary disposition; not now.

CONCLUSION Pilgrim Watch believes that this contention should be accepted even if the record had been closed, which it isnt. It is clear that the Board has the duty to reopen sua sponte when [it]

becomes aware, from any source, of a significant unresolved safety issue or of possible major changes in facts material to the resolution of major environmental issues. See NRC Practice Manual, Post Hearing Matters, 11-12. 11 The NRCs own rules, and the Atomic Energy Acts hearing rights, would be violated if this contention were not admitted; because the issue is material, entirely new, and has not been previously litigated. In the Oyster Creek License Renewal Adjudication Process, Judge Baratta correctly warned that: 12

[T]o deny Citizens motion and eliminate their access to the only means that will allow them to confront what appears to be a significant safety issue would be a grave error.

11 The inclusion of this provision in Post Hearing Matters provides additional evidence that the record is not now closed and 2.236 is not applicable.

12 Memorandum and Order (Denying Citizens Motion to Reopen the Record and to Add a New Contention)

(2008/07/24-LB), Dissent 26

The most recent edition of the NRC Digest says that Public participation through intervention is a positive factor in the licensing process and Intervenors perform a valuable function and are to be complimented and encouraged. (Prehearing Matters, 11)

PW trusts that the NRC means what it has said, and that the Intervenor here will be permitted to perform their indisputably valuable function, be allowed to confront a significant issue, that that the Board will help insure that the NRC will fulfill its responsibilities for protecting public health and safety, the common defense and security, and the environment.

Respectfully submitted, (Electronically signed)

Mary Lampert Pilgrim Watch, pro se 148 Washington Street Duxbury, MA 02332 Tel. 781-934-0389 Email mary.lampert@comcast.net June 13, 2011 27