ML11227A296

Entergy'S Answer Opposing Pilgrim Watch'S Request for Review

ML11227A296
Person / Time
Site:	Pilgrim
Issue date:	08/15/2011
From:	Gaukler P, Doris Lewis Entergy Nuclear Generation Co, Entergy Nuclear Operations, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
RAS 20771, 50-293-LR, ASLBP 06-848-02-LR
Download: ML11227A296 (31)

Text

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

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR

)

(Pilgrim Nuclear Power Station) )

ENTERGYS ANSWER OPPOSING PILGRIM WATCHS REQUEST FOR REVIEW David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, D.C. 20037 Tel. (202) 663-8000 Counsel for Entergy L.L.C.

Dated: August 15, 2011

Table of Contents Page I. STATEMENT OF THE CASE ........................................................................................ 2 II. STANDARD OF REVIEW .............................................................................................. 6 III. THE COMMISSION SHOULD DENY THE REQUEST FOR REVIEW ................. 7 A. Pilgrim Watch Failed to Satisfy its Burden of Going Forward .................................... 8 B. The Board Appropriately Bifurcated the Issues on Remand ..................................... 14 C. Pilgrim Watch Failed to Timely Raise the Mean Consequence Issue ........................ 17 D. The Boards Decision Fully Addressed the Scope of Meteorological Issues on Remand ............................................................................................................................ 20 E. The Boards Decision Fully Complies With NEPA ..................................................... 23 IV. CONCLUSION ............................................................................................................... 25 ii

August 15, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR

)

(Pilgrim Nuclear Power Station) )

ENTERGYS ANSWER OPPOSING PILGRIM WATCHS REQUEST FOR REVIEW Pursuant to 10 C.F.R. § 2.341, Entergy Nuclear Generation Company and Entergy Nuc-lear Operations, Inc. (collectively Entergy) submit this response in opposition to the Request for Review filed by Pilgrim Watch in the Pilgrim Nuclear Power Station (PNPS or Pilgrim) license renewal proceeding. 1 The Request seeks review of seven Atomic Safety and Licensing Board (Board) decisions issued in this proceeding: LBP-11-18, the Partial Initial Decision re-solving the remanded portion of Pilgrim Watch Contention 3 in favor of Entergy, 2 and the fol-lowing interlocutory Board Orders: (1) the Order dated September 2, 2010; 3 (2) the Order dated September 23, 2010; 4 (3) the Order dated October 26, 2010; 5 (4) the Order dated November 23, 2010; 6 (5) the Order dated February 22, 2011; 7 and (6) the Memorandum and Order dated March 1

Pilgrim Watch Request for Review of the Partial Initial Decision (Rejecting Upon Remand, Pilgrim Watchs Chal-lenge to Meteorological Modeling in SAMA Analysis in Entergys License Renewal Application) July 19, 2011 (Aug. 3, 2011) (Request).

2 Partial Initial Decision (Rejecting, Upon Remand, Pilgrim Watchs Challenge to Meteorological Modeling in SA-MA Analysis in Entergys License Renewal Application), LBP-11-18, 74 N.R.C. __ , slip op. (July 19, 2011)

(LBP-11-18). Administrative Judge Ann Marshall Young issued a separate statement (Young Statement) essen-tially concurring in the resolution of Contention 3 in favor of Entergy. Young Statement at 1.

3 Order (Scheduling Telephone Conference) (Sept. 2, 2010).

4 Order (Confirming Matters Addressed at September 15, 2010 Telephone Conference) (Sept. 23, 2010) (Septem-ber 23rd Order).

5 Order (Questions from Board Majority Regarding the Mechanics of Computing Mean Consequences in SAMA Analyses) (Oct. 26, 2010).

6 Order (Ruling on Timeliness of Mean Consequence Issue) (Nov. 23, 2010).

3, 2011. 8 As discussed more fully below, the Nuclear Regulatory Commission (the Commis-sion) should deny the Request because Pilgrim Watch does not identify any substantial question warranting review under the standards of 10 C.F.R. § 2.341(b)(4). In particular, Pilgrim Watch fails to identify any error of fact or law in the Boards decisions, which are clearly correct.

I. STATEMENT OF THE CASE The full procedural history relevant to Pilgrim Watch Contention 3 is summarized in LBP-11-18 (slip op. at 2-8). At primary issue here is the Boards July 19, 2011 Partial Initial Decision (LBP-11-18) that resolved the remanded portion of Contention 3 in Entergys favor.

As admitted by the Board, Contention 3 challenged certain input data used in Pilgrims severe accident mitigation alternatives (SAMA) analysis, specifically input data concerning (1) evacuation times, (2) economic consequences, and (3) meteorological patterns used in the analysis, claiming that the input data resulted in incorrect conclusions about the costs versus benefits of possible mitigation alternatives. 9 Entergy moved for summary disposition of Con-tention 3, which a majority of the Board granted. 10 On appeal, the Commission affirmed the summary disposition of Pilgrim Watchs challenges to the input data for the evacuation times and economic costs used in the Pilgrim SAMA analysis for failing to raise a genuine material dispute for hearing. 11 The Commission agree[d] with the majority that none of Pilgrim Watchs arguments regarding evacuation speed and timing, traffic and other delays, shadow evacuation, etc., raise a genuine material dispute for hearing over the current evacuation times 7

Order (Addressing Joint Motion, Motion in Limine, Proposed Findings of Fact and Conclusions of Law/Concluding Statements of Position, and Argument to be held March 9, 2011) (Feb. 22, 2011) (February 22nd Order).

8 Memorandum and Order (Ruling on Timeliness of Mean Consequence Values Issue) (Mar. 3, 2011) (March 3rd Order).

9 Entergy Nuclear Generation Co., et al. (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257, 341 (2006).

10 Entergy Nuclear Generation Co., et al. (Pilgrim Nuclear Power Station), LBP-07-13, 66 N.R.C. 131, 154 (2007).

11 Entergy Nuclear Generation Co., et al. (Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. __, slip op. at 27 (Mar. 26, 2010) (CLI-10-11).

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assumptions in the Pilgrim SAMA analysis. CLI-10-11 at 35 (footnote omitted). Similarly, the Commission agree[d] with the majoritys conclusion that Pilgrim Watch failed to present signif-icantly probative evidence countering the Entergy expert evidence and supplemental analyses on economic costs. Id. at 36 (footnote omitted). 12 However, the Commission remanded for further inquiry the adequacy of the straight-line Gaussian plume model used in the MACCS2 code (a version of the MELCOR Accident Consequence Code System code) for performing SAMA analysis, including its ability to consider sea breeze, and the potential for plumes headed out to sea to change direction, remain tightly concentrated, and thus cause hot spots of radioactivity.

CLI-10-11 at 14-26.

The Commission thus made clear that no material issues remained concerning Pilgrim Watchs challenges to the evacuation times and economic costs aspects of the Pilgrim license re-newal SAMA analysis. The Commission did indicate, however, that it would be premature to dismiss entirely from this proceeding other portions of Contention 3 that may be linked to the adequacy of the meteorological modeling underpinning the SAMA analysis. Id. at 26 (empha-sis added). As the Commission explained, if the Board on remand were to conclude that there is a material deficiency in the meteorological patterns modeling, the economic cost calculations also could war-rant re-examination. We therefore remand the economic cost and evacuation time portions of Contention 3 to the Board, but only to the extent that the Boards me-rits conclusion on meteorological patterns may materially call into question the relevant economic cost and evacuation timing conclusions in the Pilgrim SAMA analysis.

Id. at 27. The Commission then immediately reiterated, 12 Entergys summary disposition motion established that, for any additional SAMA to become potentially cost ef-fective, the baseline benefit, or the total cost avoided, would have to increase by more than 100%. Entergys Motion for Summary Disposition of Pilgrim Watch Contention 3 (May 17, 2007) at 10. Regarding evacuation time estimates, Entergy presented a bounding sensitivity analysis that demonstrated that, even if there were no evacuation or sheltering, the total cost risk would increase by only 2%. Id. at 18. With respect to the economic inputs, Entergy presented a sensitivity case that modified the input parameters for the value of nonfarm property to include data that specifically accounted for county and metropolitan area gross domestic product (accounting for tourism, business activity, and wages) and showed that the off-site economic cost risk would increase by only 2%. Id. at 26-27.

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[i]nsofar as Pilgrim Watch raises distinct economic costs or evacuation times challenges that extend beyond its meteorological modeling concerns, we agree with the majority that Pilgrim Watch fails to raise a genuine material dispute for hearing. Accordingly, if the Board on remand concludes that there is no signifi-cant meteorological modeling deficiency calling into question the overall Pilgrim SAMA cost-benefit analysis conclusions, no genuine dispute concerning econom-ic costs or evacuation timing inputs will remain.

Id. 13 In CLI-10-22, 14 seeking to clarify matters and perhaps simplify the proceeding on re-mand, the Commission noted that the issue on remand focuses on the adequacy of the atmos-pheric dispersion modeling in the Pilgrim SAMA analysis, not the methodology or underlying assumptions used for translating the atmospheric dispersion modeling results into economic costs. Id. at 7-8 (emphasis in original). The Commission also clarified that it had not directed or otherwise required that the MACCS2 [code] computations be redone by varying the meteoro-logical modeling in the code. Id. at 8 (emphasis in original) (internal quotation omitted). In ad-dition, the Commission stated that it is not possible simply to plug in and run a different at-mospheric dispersion model in the MACCS2 code to see if the SAMA cost-benefit conclusions change. Id. at 9. Further, the Commission advised that If relevant or necessary meteorological data or modeling methodology prove to be unavailable, unreliable, inapplicable, or simply not adaptable for evaluating the SAMA analysis cost-benefit conclusions, there may be no way to assess, through mathematical or precise model-to-model comparisons, how alternate meteorologi-cal models would change the SAMA analysis results. Some assessments may necessarily be qualitative, based simply on expert opinion.

Id.

13 In response to Pilgrim Watchs request for reconsideration, the Commission confirmed that neither the original Contention 3, nor the remanded Contention 3, includes the effects of a spent fuel accident, decontamina-tion/interdiction clean-up costs, and health costs, which Pilgrim Watch asserted were part of the original contention.

Entergy Nuclear Generation Co., et al. (Pilgrim Nuclear Power Station), CLI-10-15, 71 N.R.C. __, slip op. at 3-7 (June 17, 2010) (CLI-10-15).

14 Entergy Nuclear Generation Co., et al. (Pilgrim Nuclear Power Station), CLI-10-22, 72 N.R.C. __, slip op. (Aug.

27, 2010) (CLI-10-22).

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Adhering to the Commissions multiple rulings, the Board explained that it would first consider 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 credibly alter the Pilgrim SAMA analysis conclusions on which SAMAs are cost beneficial to implement. 15 The Board further advised that, if it determined that the meteorological modeling in the Pilgrim SAMA analysis is adequate and reasonable under NEPA, and no significant meteorological modeling deficiency exists that would call into ques-tion the Pilgrim SAMA cost-benefit analysis conclusions, then the Boards action on the remand would be complete. Id. at 2. In a subsequent Order, the Board explicitly stated:

If the Board decides in favor of intervenors on the primary and threshold issue of 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 im-plement (hereinafter referred to as the meteorological modeling issues), the hearing will proceed to consideration of whether, and the extent to which . . . . the admitted evacuation and economic cost issues should be adjudicated.

September 23rd Order at 1, 3 (emphasis in original).

In a subsequent ruling, the Commission stated that it saw no ground for upsetting the Boards decision to bifurcate the hearing by first determining whether the asserted deficiencies in meteorological modeling credibly could have had a material impact on the Pilgrim SAMA analysis conclusions, and, if so, then assess - to the extent reasonable - the degree to which any modeling deficiency may have materially affected the current economic cost and evacuation tim-ing conclusions. 16 15 Order (Scheduling Telephone Conference) (Sept. 2, 2010) at 1.

16 Entergy Nuclear Generation Co., et al. (Pilgrim Nuclear Power Station), CLI-10-28, 72 N.R.C. __, slip op. at 2 n.3 (Nov. 5, 2010) (CLI-10-28).

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After consideration of expert testimony from Entergy and the NRC Staff and a statement of position and witness declarations from Pilgrim Watch, the Board resolved Contention 3 in En-tergys favor. LBP-11-18 at 1-2. Specifically, the Board found that accounting for the meteo-rological patterns, atmospheric transport modeling, and data issues raised by Pilgrim Watch can-not credibly alter the Pilgrim SAMA analysis conclusions regarding which SAMAs are potential-ly cost beneficial to implement. Id. at 1. In a separate statement, Judge Young agreed that the preponderance of the evidence presented on that part of Contention 3 currently at issue is to the effect that accounting for Pilgrim Watchs meteorological concerns would not on its own affect the [SAMA] analysis for the Pilgrim plant sufficiently to alter the conclusions on which SAMAs would be cost-beneficial to implement. Young Statement at 1. Because the Board found that further refinements to the meteorological data and straight-line Gaussian plume dispersion model would not change the cost-benefit conclusions for the SAMA analysis, the Board also ruled that no consideration need be given to the economic cost and evacuation time portions of Contention 3. LBP-11-18 at 33, citing CLI-10-11 at 27.

On August 3, 2011, Pilgrim Watch requested Commission review of LBP-11-18 and the related interlocutory Board rulings.

II. STANDARD OF REVIEW A petition for review is granted only at the discretion of the Commission, giving due weight to the existence of a substantial question with respect to the following relevant consid-erations: (i) a finding of material fact that is clearly erroneous or conflicts with a finding as to the same fact in a different proceeding; (ii) a necessary legal conclusion that is without govern-ing precedent or contrary to established law; (iii) the raising of a substantial and important question of law, policy, or discretion; (iv) the conduct of the proceeding involved a prejudicial procedural error; or (v) the raising of any other consideration which the Commission may 6

deem to be in the public interest. 17 An appeal that does not point to an error of law or an abuse of discretion by the Board, but simply restates the contention with additional support, will not meet the requirements for a valid appeal. 18 When considering a petition for review, the Commission is free to affirm a Board deci-sion on any ground finding support in the record, whether or not relied on or by the Board. 19 The Commission will generally defer to the Board on its fact findings absent a showing that the Boards findings were clearly erroneous, meaning that, in light of the record viewed in its enti-rety, the findings were not even plausible. 20 This standard is quite high. 21 Where the Board has reviewed an extensive record in detail, the Commission is generally disinclined to upset its findings, particularly on matters involving fact specific issues or where the affidavits or submis-sions of experts must be weighed. 22 For evidentiary matters, the Board has considerable discre-tion, and the Commissions standard for review of evidentiary rulings is abuse of discretion. 23 III. THE COMMISSION SHOULD DENY THE REQUEST FOR REVIEW Pursuant to 10 C.F.R. § 2.341, the Commission should deny the Request because, as set forth below, Pilgrim Watch has failed to identify any clear error of fact, error of law, procedural error, or abuse of discretion by the Board. 24 Among other fatal flaws, at hearing, Pilgrim Watch failed to meet its burden of going forward by failing to establish a prima facie evidentiary basis to support its contention. This failure undermines each claim Pilgrim Watch raises in its Re-17 10 C.F.R. § 2.341(b)(4) (emphasis added); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installa-tion) (PFS), CLI-03-8, 58 N.R.C. 11, 17 (2003).

18 Shieldalloy Metallurgical Corp. (Amendment Request for Decommissioning of the Newfield, New Jersey Facili-ty), CLI-07-20, 65 N.R.C. 499, 503-05 (2007).

19 PFS, CLI-05-1, 61 N.R.C. 160, 166 (2005) (redacted public version of decision) (citing federal precedent).

20 PFS, CLI-05-16, 62 N.R.C. at 3.

21 PFS, CLI-03-8, 58 N.R.C. at 26-27.

22 Hydro Resources Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-06-1, 63 N.R.C. 1, 2 (2006).

23 Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-21, 60 N.R.C. 21, 27 (2004).

24 See also PFS, CLI-04-4, 59 N.R.C. 31, 35 (2004) (holding that the Commission may grant review if there is any clear error as to a material fact or a legal conclusion that conflicts with precedent).

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quest. Pilgrim Watch can hardly contend that the Board ignored or excluded evidence, or made any procedural error or error of law, or otherwise abused its discretion when Pilgrim Watch put forward little if any evidentiary support for its position in the first place. Moreover, none of the multiple claims raised in the Request identifies any basis warranting Commission re-view of the Boards rulings on Contention 3. None of Pilgrim Watchs claims are premised on any clear error of material fact or legal conclusion in conflict with existing precedent. 25 There-fore, the Commission should reject Pilgrim Watchs Request.

A. Pilgrim Watch Failed to Satisfy its Burden of Going Forward Long established precedent holds that an intervenor has the burden of going forward with evidence to support its contention. 26 This means that the intervenor must establish a prima facie evidentiary case supporting its contention. 27 An intervenor cannot sit back without introducing any evidence whatsoever and must produc[e] some evidence that tends to substantiate [its]

contentions. 28 As discussed below, Pilgrim Watch failed to meet its burden of going forward on the remanded portion of Contention 3, and this failure alone warrants denial of Pilgrim Watchs Request. Further, as a result of its failure to meet its burden of going forward, Pilgrim Watchs evidentiary claims on appeal ring hollow.

On January 3, 2011, Entergy and the NRC Staff filed their initial statements of position on Contention 3, pre-filed expert testimony, and pre-filed exhibits. 29 While Pilgrim Watch sub-25 10 C.F.R. § 2.341(b)(4); PFS, CLI-04-4, 59 N.R.C. at 35-36.

26 Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076, 1093 (1983); Philadelphia Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 191 (1975);

Commonwealth Edison Co. (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 388-89 (1974); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 A.E.C. 331, 345 (1973).

27 Waterford, ALAB-732, 17 N.R.C. at 1093, citing Midland, ALAB-123, 6 A.E.C. at 345.

28 Zion, ALAB-226, 8 AEC at 388. Id. at 389 (quoting comments of the licensing board chairman during hearing).

29 Entergys submission included the Testimony of Dr. Kevin R. OKula and Dr. Steven R. Hanna on Meteorologi-cal Matters Pertaining to Pilgrim Watch Contention 3 (Jan. 3, 2011) (Exhibit No. ENT000001) (Entergy Test.);

and multiple other pre-filed exhibits. The NRC Staffs submission included the NRC Staff Testimony of Nathan E.

Bixler and S. Tina Ghosh Concerning the Impact of Alternative Meteorological Models on the Severe Accident Mi-8

mitted a document titled as Prefiled Testimony (and related exhibits), 30 that document was a po-sition statement and not the testimony of any expert witness. Thus, Pilgrim Watch elected not to submit any direct testimony to support its position on the remanded contention, but rather only arguments unsupported by any qualified witness. 31 Indeed, Pilgrim Watch had clearly stated a month earlier, in Pilgrim Watch Memorandum Regarding SAMA Remand Hearing (Dec. 2, 2010) (PW Memo), that it would not present any new evidence at the upcoming SAMA Remand Hearing. PW Memo at 1. Pilgrim Watch ad-mitted that it would not be able to prove that the meteorological issues could, on their own, cred-ibly alter the Pilgrim SAMA analysis, and asserted that it would be a fools errand for Pilgrim Watch to prepare additional materials for the remand hearing. Id. at 2-3.

On February 1, 2011, Entergy and the NRC Staff each filed rebuttal testimony, 32 and Pil-grim Watch filed a further position statement and also a statement from its witness Dr. Bruce A.

Egan. 33 Dr. Egan, however, did not offer testimony focused on the scope of the remand. As succinctly stated by Judge Young, although Dr. Egan raised significant questions regarding me-teorological modeling for purposes of emergency planning . . . [,] this is not part of what is at is-tigation Alternatives Analysis (Exhibit No. NRC000014) (Bixler & Ghosh Test.); NRC Staff Testimony of James C. Ramsdell, Jr., Concerning the Impact of Specific Meteorological Conditions on the Severe Accident Mitigation Analysis (Exhibit No. NRC 000015) (Ramsdell Test.); and multiple other pre-filed exhibits.

30 Pilgrim Watchs submission consisted of a document styled Pilgrim Watch SAMA Remand Pre-Filed Testimony (Jan. 3, 2011) (PW Statement) and 21 pre-filed exhibits. Entergy requested that the Board exclude from evidence the PW Statement and exhibits, Entergys Motion in Limine to Exclude from Evidence Pilgrim Watchs SAMA Remand Pre-Filed Testimony and Exhibits (Jan. 13, 2011), which the NRC Staff supported, NRC Staffs Response in Support of Entergys Motion in Limine (Jan. 24, 2011), and Pilgrim Watch opposed. Pilgrim Watch Reply to En-tergys Motion in Limine to Exclude From Evidence Pilgrim Watchs SAMA Remand Pre-Filed Testimony and Ex-hibits (Jan. 23, 2011).

31 In addition, many of Pilgrim Watchs exhibits or portions thereof were beyond the scope of the proceeding, as well as being unsupported by a qualified witness.

32 Entergys submissions included Rebuttal Testimony of Dr. Kevin R. OKula and Dr. Steven R. Hanna on Meteo-rological Matters Pertaining to Pilgrim Watch Contention 3 (Feb. 1, 2011) (Exhibit No. ENT000013) (Entergy Reb.

Test.); The NRC Staff filed NRC Staff Rebuttal Testimony of S. Tina Ghosh Concerning Pilgrim Watchs Applica-tion of NUREG-1150 and NUREG-1465 (Jan. 31, 2011) (Exhibit No. NRC000016) (Ghosh Reb. Test.).

33 Pilgrim Watch submitted Pilgrim Watchs Reply to Entergys and NRC Staffs Initial Statement of Position on Pilgrim Watch Contention (Feb. 1, 2011) (PW Reply) and the Statement by Bruce A. Egan, ScD., CCM (Jan. 30, 2011) (Egan Statement).

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sue in Contention 3. Young Statement at 1 (emphasis added). Moreover, as further noted by Judge Young, Dr. Egan does not dispute the statements of Entergys experts to the effect that accounting for Pilgrim Watchs concerns regarding the meteorological analysis would not change the [SAMA analysis] ultimate conclusions. Id. at 2 (emphasis added). Thus, even the rebuttal statement of Pilgrim Watchs witness provided no evidence on the threshold issue of Contention 3 on whether accounting for the meteorological patterns and issues of concern to Pil-grim Watch could, on its own, credibly alter the Pilgrim SAMA analysis conclusions on which SAMAs are cost beneficial to implement. 34 Moreover, in its January 3, 2011 position statement, Pilgrim Watch admitted that it could not meet its burden on this threshold question of Contention 3 on remand:

It is not possible for either Pilgrim Watch, or anyone else, to show that meteorol-ogy, in and of itself, would result in a significantly different SAMA analysis.

PW Statement at 2 (emphasis in original). In addition, Pilgrim Watch conceded that, on its own using a variable plume model would not alter Entergys SAMA analysis.

Id. at 3. Therefore, Pilgrim Watch itself admits that it was unable to make any showing on the threshold issue of Contention 3. Based on this concession alone, the Commission should reject Pilgrim Watchs Request.

On appeal, none of Pilgrim Watchs evidentiary claims withstand scrutiny, particularly in light of its failure to establish a prima facie evidentiary case. Pilgrim Watch erroneously claims 34 The Board granted the parties Joint Motion to resolve the threshold issue of Contention 3 without an evidentiary hearing, and Entergys Motion in Limine to the extent of excluding as evidence the PW Statement, stating that the Board would consider the PW Statement as argument in the nature of a statement of position. See February 22nd Order at 2. In addition, the Board ruled that it would admit all of the exhibits of the parties into the record (54 in to-tal), but in its deliberations would accord each exhibit only the weight to which it is entitled, based on whether the exhibit is relevant, material, and reliable under 10 C.F.R. § 2.337(a), and otherwise persuasive on the threshold is-sue. Id.

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that the Board excluded or ignored meteorological evidence presented by Dr. Jan Beyea and Mr.

Wayne Angevine. Request at 6, 17-18. This is hardly the case. The Board expressly considered Pilgrim Watchs reference to the article written by Mr. Angevine, which concerned ozone pollu-tant transport along the New England coast, and Pilgrim Watchs claim that the same phenomena discussed by Angevine could result in hot spots of radioactivity after a radiological accident.

LBP-11-18 at 28-29. The Board went on to note, however, that the so-called radiological hot spot effect referred to by Pilgrim Watch was supported only through a discussion in a report prepared by Dr. Jan Beyea briefly mentioning the potential specter of Hot Spots [of radioactivi-ty] without any explanation or technical support. Id. at 29. 35 The Board found that Dr. Beyea, who is not a meteorologist, provide[d] no scientific rationale or discussion of his concern, nor does Pilgrim Watch provide that itself or through any other evidence. Id. (emphasis added).

Thus, the Board concluded that Pilgrim Watch had provided no evidence based on tech-nical data explaining or supporting [its] hypothesis that hot spots could affect the SAMA cost-benefit determination. Id. The Board went on then to determine that Pilgrim Watchs un-supported hypotheses did not withstand Entergys uncontroverted expert testimony that Pil-grim Watchs hot spot concerns will be minimized because the concentration of a [radioac-tive] release . . . transported out to sea is then, if it returns to land, extremely diluted. Id. at 29-

30. In sum, the Board did not exclude or ignore evidence but rather found that Pilgrim Watch had put forward no credible support for its position, which could not withstand uncontroverted expert testimony to the contrary refuting Pilgrim Watchs hot spot claims.

35 As discussed in Entergys rebuttal testimony, and not disputed by Pilgrim Watch, the Angevine study concerned ozone transport and not radioactive releases following a radiological accident. Entergy. Reb. Test. at A3. As ex-plained by Dr. Hanna, there are many significant differences in the basic physics of the transport and dispersion for a point-source release, such as from the Pilgrim stack, and that for a broad ozone plume. Thus, the physics and che-mistry for a broad ozone plume studied by Angevine are inapplicable for point source radiological plumes, such as those considered in the SAMA analysis. Id.

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Pilgrim Watch also erroneously claims that the Board ignored NRC and Department of Energy documents that purport to show that a minimum of 5 years of hourly averaged meteoro-logical data are needed. Request at 19. However, Pilgrim Watch and its witness Dr. Egan ig-nored and did not otherwise dispute Entergys uncontroverted evidence, relied upon by the Board, demonstrating that the single years worth of meteorological data used in the SAMA analysis (because the MACCS2 code can only accept a single year of data) is both temporally and spatially representative of other years data. LBP-11-18 at 16. Likewise, Pilgrim Watchs claim that the Board improperly ignored its sea breeze exhibits (Request at 19), including the potential for a sea breeze to cause a radioactive plume to penetrate inland and result in increased radioactive dose, is meritless. The Board extensively discussed and rejected Pilgrim Watchs sea breeze claims. LBP-11-18 at 14-26, Pilgrim Watch does not controvert Entergys testimony, relied upon by the Board, that the SAMA analysis model[s] any plume initiated during a sea breeze event as continuing to travel in the same direction out to 50 miles, even though the plume would generally penetrate only five to ten miles inland, and thus conservatively ac-counts for the sea breezes by assuming that they had impacts throughout the 50-mile range. Id.

at 18-19 (internal quotations omitted). Nor does Pilgrim Watch controvert Entergy and Staff tes-timony that sea breezes during the day are generally offset by land breezes at night, such that their effects more or less cancel each other. Id. at 21 (internal quotations omitted). In short, Pilgrim Watchs evidentiary claims on appeal do not challenge the Boards detailed findings.

Pilgrim Watch also asserts that the Board improperly received evidence and testimony from Entergys and the NRC Staffs experts at the March 9, 2011 hearing. Request at 4-5, 15-

16. These claims are baseless. Before the hearing, Pilgrim Watch agreed that parties would be permitted, but not required, to bring their witnesses to answer clarifying questions from the 12

Board. During the pre-hearing teleconference to discuss the parties Joint Motion requesting resolution of the remanded issues without an evidentiary hearing (which was prompted by Pil-grim Watchs request to have Dr. Egans statement admitted as an exhibit without requiring his presence at the hearing), the Board made clear that it would let[] any party who want[ed] to have their witnesses available, have them there, but not requiring any party to bring their wit-nesses in case the Board had any questions on the parties proposed findings of fact and conclu-sions of law. 36 The Board believed that having witnesses available to answer clarifying ques-tions would help move the proceeding along. Id. Pilgrim Watchs representative did not have an objection to that and agreed that it would not make any difference whether a witness was asked a question at the hearing or in writing following the hearing. Id. at 771. Accordingly, the Board issued an order directing that it would hear answers to Board questions on the parties proposed findings of fact and conclusions of law, and short closing arguments from each party. 37 The Boards Order permitted parties to have their witnesses available at the oral argument to an-swer any clarifying questions that the Board may have, and indicated that any further issues would be addressed through written questions. 38 Pilgrim Watch was in agreement with this process from the outset, and cannot now claim any procedural error.

Moreover, although Pilgrim Watch claims that the Board used that [hearing] evidence to support its Decision, Pilgrim Watch nowhere identifies any portion of the Boards decision that relies on witness testimony from the hearing. See Request at 4-5, 15-16. Indeed, the Boards decision references the March 9, 2011 hearing discussion only once. The Board cited some dis-cussion during the hearing showing that the parties generally agreed with the Boards view that 36 Prehearing Teleconference Transcript (Feb. 18, 2011) (Tr.) at 770-71.

37 February 22nd Order at 3.

38 Id.

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it is not possible for improved modeling to cause the computed damages during the occurrence of the sea breeze to be larger than those of the median by more than a factor of 2, although Pil-grim Watchs representative stated that other meteorological variables ought to be considered.

LBP-11-18 at 28 & n.125. Pilgrim Watch demonstrates no abuse of discretion because it is clear that the Board did not rely solely on the hearing testimony in making any of its findings.

In sum, Pilgrim Watch failed to meet its burden of going forward, and none of its eviden-tiary claims withstand scrutiny. 39 These claims offer no basis warranting Commission review. 40 B. The Board Appropriately Bifurcated the Issues on Remand When remanding the limited portion of Contention 3 to the Board for hearing, the Com-mission made clear that Pilgrim Watch had failed to materially challenge evacuation times and economic costs aspects of Pilgrims SAMA analysis. The Commission was clear that the Board majoritys decision had erred only with respect to its rulings on the meteorological modeling is-sues. The Commission further explained that, if on remand the Board were to find a material de-ficiency in the meteorological patterns modeling, then the economic cost and evacuation time es-timates conclusions could be called into question. CLI-10-11 at 26. As previously noted in the discussion of this proceedings background, the Commission explicitly stated that, if the Board on remand concludes that there is no significant meteorological mod-eling deficiency calling into question the overall Pilgrim SAMA cost-benefit analysis conclusions, no genuine dispute concerning economic costs or evacuation timing inputs will remain.

Id. at 27 (emphasis added). Following this instruction, the Board determined that it would first consider whether accounting for the meteorological patterns/issues of concern to Pilgrim Watch 39 As demonstrated by the above discussion, Pilgrim Watchs claim that the Boards decision does not sufficiently set forth its bases because [m]ost of PWs evidence was excluded or ignored, Request at 23-24, is unfounded.

40 Pilgrim Watch introduces the issue Incorrect Assumptions and Methodology, and Misreading Evidence, Re-quest at 6, but nowhere explains how this issue warrants Commission review. Pilgrim Watch asserts that LBP-11-18 is based on incomplete and incorrect readings of evidence, id., but nowhere explains how, nor points to any evi-dence on which the Board improperly relied. As discussed in the preceding section, Pilgrim Watchs evidentiary claims are baseless. This unexplained, incomplete argument does not show any clear error by the Board.

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could credibly alter the Pilgrim SAMA analysis conclusions on which SAMAs are cost benefi-cial to implement. 41 The Board was clear that only if it found in favor of Pilgrim Watch on the threshold issue would it consider whether and the extent to which evacuation times and econom-ic costs should be adjudicated. September 23rd Order at 1, 3. This approach was approved by the Commission, which ruled there was no ground for upsetting the Boards decision to bifur-cate the hearing by first determining whether the asserted deficiencies in meteorological model-ing credibly could have had a material impact on the Pilgrim SAMA analysis conclusions. CLI-10-28 at 2 n.3. The Commissions remand instructions and the manner in which the Board car-ried out those instructions are fully consistent.

On appeal, Pilgrim Watch contends that that the Board improperly bifurcated the hearing.

Request at 3. Specifically, Pilgrim Watch argues that the threshold issue should have been whether the meteorological modeling deficiencies could call into question the SAMA analysis assumptions about the size and location of the affected area and population doses within that area. Request at 8. Such an approach would have contradicted the Commissions explicit in-struction to determine whether Pilgrim Watchs purported meteorological deficiencies would make a material difference in the SAMA analysis cost benefit conclusions. See CLI-10-11 at 27 (if the Board on remand were to conclude that there is a material deficiency in the meteorologi-cal patterns modeling, the economic cost calculations also could warrant re-examination. We therefore remand the economic cost and evacuation time portions of Contention 3 to the Board, but only to the extent that the Boards merits conclusion on meteorological patterns may mate-rially call into question the relevant economic cost and evacuation timing conclusions in the Pil-grim SAMA analysis). The Board followed the Commissions explicit instruction.

41 Order (Scheduling Telephone Conference) (Sept. 2, 2010) at 1.

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Pilgrim Watch also contends that, during a September 15, 2010 pre-hearing teleconfe-rence, the Board prohibited Pilgrim Watch from discussing deficiencies regarding costs in ad-dressing the threshold issue, thereby making it impossible for Pilgrim Watch to show that meteo-rological deficiencies would alter the SAMA cost-benefit analysis. Request at 8-9. Pilgrim Watchs arguments misunderstand the Boards guidance. On the initial appeal, the Commission affirmed the summary disposition of Pilgrim Watchs economic claims because Pilgrim Watch had failed to demonstrate a material dispute for hearing on those economic inputs. Separate and apart from this ruling, the Commission remanded for hearing the precise issue of whether the meteorological issues of concern to Pilgrim Watch could, by themselves, potentially alter the Pilgrim SAMA cost-benefit analysis. Pilgrim Watch conflates its rejected economic inputs claims with the separate issue of whether the SAMA cost benefit conclusions could be altered by meteorological modeling. The Board, however, understood the Commissions direction. During the September 15, 2010 teleconference, the Board clearly stated that it would first consider the part of the [SAMA] analysis that looks at how the plume would actually work and whether ac-counting only for those meteorological patterns and issues of concern that [Pilgrim Watch] raised relating to the plume model now could credibly alter the SAMA analysis. 42 Thus, Pilgrim Watch could not get into the economic costs, the evacuation inputs on that first issue. Id.

(Young). Rather, the first issue is to see what the effect is of changing the meteorology. Id. at 712 (Abramson). The Board instructed that the parties should use the cost mechanisms that are currently employed in the MACCS[2] code to determine whether just varying the meteorolo-gy would make other SAMAs cost effective or . . . could make other SAMAs cost effective.

Id. (Abramson). These instructions clearly followed the Commissions remand instructions.

42 Prehearing Teleconference Transcript (Sept. 15, 2010) (Tr.) at 707 (Young).

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For these same reasons, also without merit is Pilgrim Watchs related argument (Request at 4, 14-15) that the Boards decision went far beyond the ordered scope of phase one of the remand hearing by relying on testimony from Entergy that Pilgrim Watchs meteorological claims would not materially alter the SAMA cost-benefit conclusions. Pilgrim Watchs position flatly contradicts the scope of issues on remand: to determine whether any significant meteoro-logical modeling deficiency call[s] into question the overall Pilgrim SAMA cost-benefit analysis conclusions. CLI-10-11 at 27 (emphasis added).

In sum, Pilgrim Watchs claims on review fail to demonstrate that the Boards instruc-tions departed from the scope of the remand set by the Commission. 43 C. Pilgrim Watch Failed to Timely Raise the Mean Consequence Issue Pilgrim Watch erroneously claims that the Board majority improperly excluded its con-cerns about the NRCs practice of using mean consequence values in SAMA analysis, which re-sults in the averaging of potential consequences. Request at 3-4. To the contrary, the Board ma-jority properly determined that Pilgrim Watch did not timely raise these concerns because they were never part of Contention 3 as pled.

In CLI-10-22, the Commission stated that it would be appropriate for the Board on re-mand to consider whether the NRCs practice [of utilizing mean consequence values] is reasona-ble for a SAMA analysis, and whether Pilgrim Watchs concerns are timely raised. CLI-10-22 at 8 n.34. In a subsequent order, the Board directed that it would consider Pilgrim Watchs con-43 Pilgrim Watch alleges that the Board Substitute[ed] Arithmatic [sic] For Judgment by making an economic analysis that was not supposed to occur as part of phase one. Request at 5. Pilgrim Watch does not further explain how this issue should warrant Commission review of LBP-11-18. Further, as discussed in the preceding section, Pilgrim Watch misunderstands that the Commission proscribed further consideration of Pilgrim Watchs economic inputs argument (absent a ruling in favor of Pilgrim Watch on the meteorological modeling issues) when remanding Contention 3, not discussion of whether the meteorological issues of concern to Pilgrim Watch could, by them-selves, potentially alter the Pilgrim SAMA cost-benefit analysis. Moreover, the portion of the Boards decision challenged here explicitly states that it is an additional view of the evidence, LBP-11-18 at 26-28, not the sole ground for the Boards decision. Thus, this issue - which Pilgrim Watch never fully explains - does not demon-strate clear error in the Boards decision or otherwise warrant Commission review of LBP-11-18.

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cerns regarding the use of mean consequence values only upon first finding that they were timely raised, and it directed the parties file additional briefs on the timeliness issue. 44 Subsequently, a majority of the Board requested expert affidavits answering certain related questions. 45 Having reviewed the pleadings and affidavits, a majority of the Board found that the mean consequence issue was not timely raised by Pilgrim Watch and therefore would not be en-tertained by the Board during the evidentiary hearing on Contention 3. 46 In its follow-up Order providing the analysis for its conclusion, the Board majority held that Pilgrim Watch did not raise the mean consequence values issue when challenging certain MACCS2 code input parame-ters in Contention 3 as originally proffered. March 3rd Order at 12. 47 The Commission should affirm the Board majoritys conclusion that Pilgrim Watch failed to timely raise the mean consequence issue. As the Commission has made clear in this proceeding, the scope of Contention 3 was dictated by Pilgrim Watch in its original pleading.

CLI-10-15 at 7 (emphasis added). 48 Contention 3 as pled did not raise the mean consequence is-sue, and instead sought to raise two separate issues: (1) that probabilistic modeling should not be used in the SAMA analysis, and (2) that Entergy may have minimized consequences by using in-44 September 23rd Order at 1-2.

45 Order (Questions from Board Majority Regarding the Mechanics of Computing Mean Consequences in SAMA Analyses) (Oct. 26, 2010). Judge Young filed a separate statement disagreeing with the Board majoritys request for affidavits. Separate Statement of Administrative Judge Ann Marshall Young, in the Matter of Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Docket No. 50-293-LR, ASLBP No. 06-848-02-LR (Oct. 26, 2010).

46 Order (Ruling on Timeliness of Mean Consequence Issue) (Nov. 23, 2010). The Board majority indicated that it would issue a follow-up Order setting forth its analysis of the timeliness issue in due course. Id. at 2.

47 Although Judge Young agreed with the Board majority that Pilgrim Watch did not raise the mean consequence values issue in Contention 3 as originally proffered, she concluded that Pilgrim Watch timely raised the issue in re-sponse to Entergys Motion for summary disposition of Contention 3. Separate Statement of Administrative Judge Ann Marshall Young (Mar. 3, 2011) at 3-4. The Board majority disagreed, finding that, although Pilgrim Watch used the word mean in its response, its use indicated a misunderstanding of how Entergy performed the SAMA analysis and that its use did not raise the mean consequence value issue. March 3rd Order at 15.

48 For this reason, Judge Youngs position - that Pilgrim Watch timely raised the mean consequence issue because it (purportedly) raised the issue in response to Entergys summary disposition motion - is incorrect.

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correct input parameters for the computer consequences model. 49 Nowhere in the basis for Con-tention 3 did Pilgrim Watch make any claim that mean consequence values could not be used in the SAMA analysis. Rather, as its statements made clear, Pilgrim Watch asserted that conse-quences should not be multiplied by probability. 50 The Board rejected the portion of Contention 3 challenging the use of probabilistic modeling, LBP-06-23, 64 N.R.C. at 340, which Pilgrim Watch did not challenge on appeal. 51 Thus, as admitted, Contention 3 was limited to challenges to the meteorological, evacuation time, and economic inputs. LBP-06-23, 64 N.R.C. at 341. 52 Pilgrim Watch devotes four pages of its Request attempting to explain that Contention 3 as pled challenged use of certain input parameters, and that input parameters should be unders-tood to include averaging, which should have put Entergy and the NRC Staff on notice of the mean consequences issue, even though the mean consequences is an output of the MACCS2 code. Request at 11-14. The Commission should reject this argument. As the Commission apt-ly noted earlier in this proceeding, petitioners must set forth their contentions with particularity, 49 Request for Hearing and Petition to Intervene by Pilgrim Watch (May 25, 2006) (PW Pet.) at 26, 29-31. As 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 input-ting 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 ver-sus benefits of possible mitigation alternatives.

PW Pet. at 26.

50 See, e.g., PW Pet at 28 (By using probabilistic modeling and incorrect parameters in its SAMA analysis, Entergy arrives at a result that downplays the likely consequences of a severe accident at PNPS, and thus incorrectly dis-counts possible mitigation alternatives).

51 See Pilgrim Watchs Petition for Review of LBP-06-848 [sic], LBP-07-13, LBP-06-23 and the Interlocutory Deci-sions in the Pilgrim Watch Nuclear Power Station Proceeding (Nov. 12, 2008).

52 The contention as admitted states:

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, re-sulting in incorrect conclusions about the costs versus benefits of possible mitigation alternatives, such that further analysis is called for.

LBP-06-23, 64 N.R.C. at 341.

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and [i]t should not be necessary to speculate about what a pleading is supposed to mean. 53 Here, Pilgrim Watch impermissibly seeks to transform a challenge limited to SAMA input para-meters into a challenge to the use of mean output consequence values for purposes of SAMA evaluation. See March 3rd Order at 9-12. Pilgrim Watch cannot credibly contend that Conten-tion 3 as pled put Entergy and the NRC Staff on notice of this claim by its input parameter chal-lenge. Accordingly, the Commission should affirm the Board majority.

D. The Boards Decision Fully Addressed the Scope of Meteorological Issues on Remand Pilgrim Watch erroneously contends that the Board did not consider important meteoro-logical issues, claiming that the Board limited its ruling to only whether sea breezes and hot spots could cause additional SAMAs to become cost effective. Request at 6, 16-17. Pilgrim Watchs mischaracterization of the bases for the Boards ruling is not a legitimate basis to war-rant Commission review of LBP-11-18. 54 Pilgrim Watch contends that the Board does not account for storms and other severe weather events, re-suspension of contaminants caused by high winds, and radionuclide disper-sion caused by precipitation and fog. Request at 16. These claims are unfounded. Among other things, Entergys experts testified that the Gaussian plume segment model used in the MACCS2 code uses hourly weather data and therefore accounts for hour-to-hour changes in atmospheric stabilities, wind speed, and precipitation during the radiological plumes travel. See, e.g., Enter-gy Test. at A14, A39. Entergys experts also testified that the hourly 2001 meteorological data used in the SAMA analysis was representative of other years meteorological data based on 53 CLI-10-15 at 4 (quoting Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 N.R.C. 185, 194 (1999)).

54 Notably, the Board adopt[ed] and incorporate[d] by reference . . . all of the findings of fact proposed by Entergy and the NRC Staff not otherwise addressed in LBP-11-18 and found [a]ll other issues, motions, arguments, or proposed findings presented by the parties concerning Contention 3 and not addressed herein . . . without merit or otherwise unnecessary for the decision. LBP-11-18 at 33 n.141.

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comparisons of annual precipitation and wind speed data. Id. at A61-A62. The Board found En-tergys evidence to be uncontroverted, ruling that the single years worth of meteorological data is both temporally and spatially representative of other years data. LBP-11-18 at 16. Indeed, Pilgrim Watch provided neither direct nor rebuttal testimony on these issues. Pilgrim Watchs Position Statement merely regurgitates unsupported arguments that Pilgrim Watch had previous-ly made related to storms, precipitation, high-winds, and fog. Nowhere does Pilgrim Watch pro-vide any evidence, analysis or explanation showing that taking account of these issues could alter the Pilgrim SAMAs conclusions. Moreover, because it is uncontroverted that the meteorologi-cal data used in Pilgrims SAMA analysis is representative of other years data, Pilgrim Watch cannot credibly argue that the Boards analysis overlooked or failed to consider common meteo-rological events such as storms, high winds, precipitation, and fog. The years worth of hourly weather data used in the Pilgrim SAMA analysis necessarily took account of these events.

Pilgrim Watch also contends that the Boards decision did not account for variations in terrain and topography. Request at 16-17. To the contrary, Entergy provided extensive, uncon-troverted testimony concerning terrain and topography. This testimony included the fact that ter-rain features such as hills would have a dispersive effect on a radioactive plume, making it less concentrated, and therefore having less impact on persons and property in a SAMA analysis.

Entergy Test. at A107. Because the Gaussian plume model does not directly model such terrain features, it overestimates for the Pilgrim SAMA analysis concentrations in the plume at distances several miles downwind of the obstacle, where larger populations are located and therefore pro-21

vide the largest contribution to population dose and economic effects. Entergy Test. at A109.

Thus, the Pilgrim SAMA is conservative by overestimating consequences in this regard. Id. 55 The Board credited testimony from Entergy related to the Molenkamp atmospheric model dispersion comparison study which, among other things, found that the ATMOS model in MACCS2 compared favorably to other more complex models which considered terrain among other variables. Entergy Test. at A57. Pilgrim Watch argued before the Board and likewise claims on appeal that the Molenkamp model comparisons were flawed because the study used meteorological data from a Midwest location, which would not be applicable Pilgrim situated on the ocean. Request at 16-17, Egan Statement at 7. However, the Board credited specific uncon-troverted evidence from Entergy indicating adequate similarity between the Southern Great Plains and the Pilgrim coastal domain, in terms of wind variations and topography. LBP-11-18 at 17 (citing Entergy Reb. Test. at A7-A8). Entergys expert compared (1) the wind variability data used in the Molenkamp study with that for the Pilgrim SAMA domain and found them comparable, and (2) the terrain in Eastern Massachusetts with that in the Southern Great Plains, and also found them comparable. Entergy Reb. Test at A7-A8. Entergys expert also testified that his conclusions were consistent with his extensive experience studying and analyzing weath-er data for the Southern Great Plains. Id. at A7. Pilgrim Watch provided no evidence or expert testimony to counter Entergys evidence and testimony on these issues.

In short, the Board properly credited Entergys specific uncontroverted evidence and Pilgrim Watch offers no legitimate basis for the Commission to disturb the Boards rulings on the meteorological issues.

55 Entergys CALMET Trajectory Analysis, discussed further infra, also considered topography local to Pilgrim and determined that the difference in exposure between an analysis with ATMOS ignoring the terrain and an analysis with CALMET considering terrain was inconsequential. Entergy Test. at A113.

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E. The Boards Decision Fully Complies With NEPA When remanding Contention 3, the Commission provided clear direction on the National Environmental Policy Acts (NEPAs) requirements. For example, the Commission stated that, for SAMA analysis, NEPA does not require use of the best scientific methodology. 56 Ra-ther, NEPA allows agencies to select their own methodology as long as that methodology is reasonable. 57 Contrary to this direction, Pilgrim Watch claims that the Board did not comply with NEPA because NEPA required Entergy to conduct analyses that compare variable trajecto-ry models to straight-line Gaussian plume models, using Pilgrims site specific data, to see what difference a variable model would make. Request at 20. This position directly contravenes the Commissions explicit direction that there may be no way to assess, through mathematical or precise model-to-model comparisons, how alternate meteorological models would change the SAMA analysis results and, thus, under NEPAs rule of reason, [s]ome assessments may nec-essarily be qualitative, based simply on expert opinion. CLI-10-22 at 9.

Further, Pilgrim Watch contends that the Board inappropriately relied on repeated uses of the simplistic and outdated straight-line Gaussian plume model when ruling in favor of En-tergy, in violation of NEPA. Request at 20. This could not be further from the truth. Even a cursory examination of Entergys testimony and the Boards decision reveals that Entergy con-firmed the validity of the MACCS2 codes Gaussian plume segment model by comparisons to other, more complex atmospheric dispersion models.

First, Entergy and the NRC Staff demonstrated that the modeling in MACCS2 is reason-ably representative of models that take into account temporal and spatial three-dimensional wind fields generated with data from multiple weather stations. Entergy and the NRC Staff presented 56 CLI-10-11 at 37 (citing Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1185 (9th Cir. 2000)).

57 Id. (citing Town of Winthrop v. FAA, 535 F.3d 1, 13 (1st Cir. 2008)).

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evidence showing that results calculated by more complex atmospheric transport and dispersion models are generally within a factor of two of results calculated by MACCS2, and that MACCS2 is within plus or minus 10% of a state-of-the art three dimensional model when averaged over a series of radial arcs out to fifty miles. 58 The NRC Staffs experts concurred that the estimates of the MACCS2 dispersion model were generally within the bounds of the other models and that MACCS2 performed as well as either of the more advanced Gaussian puff model codes eva-luated in the study. 59 The Board credited this expert testimony in concluding that, even if the sea breeze effect were erroneously computed by the present SAMA analysis, the errors could not have caused the portion of the meteorological computations involving the sea breeze effect to be in error by more than a factor of two, the amount necessary to potentially alter the SAMA anal-ysis cost-benefit conclusions. LBP-11-18 at 22-23.

Second, Entergy performed a supplemental analysis using CALMET, credited by the Board (LBP-11-18 at 15-16, 30), which is a meteorological model that uses data from multiple weather stations to develop three-dimensional time and spatially variable wind fields. 60 Entergy used data from multiple weather stations throughout the Pilgrim SAMA region to generate three-dimensional wind fields for the Pilgrim SAMA domain, which were then used to develop and evaluate trajectories for assumed hypothetical releases from the Pilgrim Station for each hour of 2001. 61 Entergys testimony demonstrated that the Gaussian plume segment ATMOS model used in the Pilgrim SAMA analysis produces results consistent with the three-dimensional 58 Entergy Test. at A58; Bixler & Ghosh Test. at A38-A41; and JNT000001 (Comparison of Average Transport and Dispersion Among a Gaussian, a Two-Dimensional, and a Three-Dimensional Model, NUREG/CR-6853 (Oct.

2004) (Molenkamp Report).

59 Ramsdell Test. at A30; Bixler & Ghosh Test. at A38.

60 CALMET is the meteorological processor in the Environmental Protection Agencys CALPUFF Langrarian puff dispersion model. Entergy Test. at A55, A94. This is precisely the type of more complex meteorological model Pilgrim Watch has argued should be used.

61 Entergy Test. at A92-A93. Entergy used certified meteorological data from 26 surface sites and two upper air sites. Id. at A95.

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CALMET trajectory model (indeed, results that differed only by a few percent 62 and thus could not affect the overall SAMA results). In light of the fully consistent results between the two models, the uncontroverted evidence shows that short-term differences in observed winds (in-cluding sea breezes) have little effect on the annual wind direction frequencies, and the ability to account for short-term time and space variations of meteorology does not significantly enhance the accuracy of the SAMA analysis. 63 Pilgrim Watchs witness, Dr. Egan, nowhere addressed the supplemental analyses per-formed by Entergy. See Egan Statement. Here, the Commission should conclude that Entergys SAMA analysis and the Boards decision fully comply with NEPAs rule of reason because the record evidence shows that MACCS2 produces results similar to more complex technologies. 64 IV. CONCLUSION For the reasons set forth above, the Board should reject Pilgrim Watchs Request.

Respectfully Submitted,

/signed electronically by Paul A. Gaukler/

David R. Lewis Paul A. Gaukler PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 62 Entergy Test. at A104. Compare n.13 supra.

63 Id. at A97, A105.

64 Finally, Pilgrim Watchs claim that the Board failed to consider the events of Fukushima, Request at 20-23, is ir-relevant to the remanded portion of Contention 3. Issued nearly one year prior to Fukushima, the Commissions re-mand order obviously could not have required the parties to consider the events of Fukushima in relation to whether or not the meteorology modeling issues could, on their own, credibly alter the Pilgrim SAMA analysis. Nor does Pilgrim Watch attempt to make any showing that Fukushima-related meteorological issues raised in the Request could credibly alter the SAMA analysis. In any event, Pilgrim Watch has already utilized alternate procedures to request that the Board consider Fukushima-related issues. Pilgrim Watch has twice filed requests for hearing with the Board to admit a new contention challenging Entergys SAMA analysis for Pilgrim license renewal based on the events of Fukushima. Those petitions remain pending before the Board.

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Tel. (202) 663-8000 E-mail: paul.gaukler@pillsburylaw.com Dated: August 15, 2011 Counsel for Entergy 26

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

)

Entergy Nuclear Generation Company and ) Docket No. 50-293-LR Entergy Nuclear Operations, Inc. ) ASLBP No. 06-848-02-LR

)

(Pilgrim Nuclear Power Station) )

CERTIFICATE OF SERVICE I hereby certify that copies of Entergys Answer Opposing Pilgrim Watchs Request for Review dated August 15, 2011, was provided to the Electronic Information Exchange for ser-vice on the individuals below, this 15th day of August, 2011.

Hon. Gregory B. Jaczko Hon. Kristine L. Svinicki Chairman Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 chairman@nrc.gov cmrsvinicki@nrc.gov Hon. George Apostolakis Hon. William D. Magwood, IV Commissioner Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 cmrapostolakis@nrc.gov cmrmagwood@nrc.gov Hon. William C. Ostendorff Office of Commission Appellate Adjudication Commissioner Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 cmrostendorff@nrc.gov OCAAmail@nrc.gov Secretary Atomic Safety and Licensing Board Attn: Rulemakings and Adjudications Staff Mail Stop T-3 F23 Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc.gov 403032525v4

Administrative Judge Administrative Judge Ann Marshall Young, Esq., Chair Dr. Paul B. Abramson Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Ann.Young@nrc.gov Paul.Abramson@nrc.gov Administrative Judge Matthew Brock, Assistant Attorney General Dr. Richard F. Cole Commonwealth of Massachusetts Atomic Safety and Licensing Board Office of the Attorney General Mail Stop T-3 F23 One Ashburton Place U.S. Nuclear Regulatory Commission Boston, MA 02108 Washington, DC 20555-0001 Martha.Coakley@state.ma.us Richard.Cole@nrc.gov Matthew.Brock@state.ma.us Susan L. Uttal, Esq. Sheila Slocum Hollis, Esq.

Andrea Z. Jones, Esq. Duane Morris LLP Brian Harris, Esq. 505 9th Street, NW Beth Mizuno, Esq. Suite 1000 Office of the General Counsel Washington, DC 20006 Mail Stop O-15 D21 sshollis@duanemorris.com U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Susan.Uttal@nrc.gov ; andrea.jones@nrc.gov ;

brian.harris@nrc.gov ; beth.mizuno@nrc.gov Ms. Mary Lampert Richard R. MacDonald 148 Washington Street Town Manager Duxbury, MA 02332 878 Tremont Street mary.lampert@comcast.net Duxbury, MA 02332 macdonald@town.duxbury.ma.us Mr. Mark D. Sylvia Katherine Tucker, Esq.

Town Manager Law Clerk, Town of Plymouth Atomic Safety and Licensing Board Panel 11 Lincoln St. Mail Stop T3-E2a Plymouth, MA 02360 U.S. Nuclear Regulatory Commission msylvia@townhall.plymouth.ma.us Washington, DC 20555-0001 Katie.Tucker@nrc.gov 2

Chief Kevin M. Nord Fire Chief and Director, Duxbury Emergency Management Agency 688 Tremont Street P.O. Box 2824 Duxbury, MA 02331 nord@town.duxbury.ma.us

/signed electronically by Paul A. Gaukler/

Paul A. Gaukler 3