ML12040A239
| ML12040A239 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 02/09/2012 |
| From: | Harris B NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21875, 50-247-LR, 50-286-LR, ASBLP 07-858-03-LR-BD01 | |
| Download: ML12040A239 (10) | |
Text
February 9, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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)
ENTERGY NUCLEAR OPERATIONS, INC. )
Docket Nos. 50-247/286-LR
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(Indian Point Nuclear Generating
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Units 2 and 3)
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NRC STAFFS ANSWER TO APPLICANTS MOTION IN LIMINE TO EXCLUDE PORTIONS OF THE PREFILED TESTIMONY, REPORT, AND EXHIBITS FILED BY NEW YORK STATE AND DR. FRANCOIS LEMAY IN SUPPORT OF CONSOLIDATED CONTENTION NYS-12C In accordance with 10 C.F.R. §§ 2.319, 2.323, 2.337, 2.1204, the Atomic Safety and Licensing Boards (Board) scheduling Order of July 1, 2010, and Order dated November 17, 2011 INTRODUCTION 1, the staff of the Nuclear Regulatory Commission (Staff) files its answer in support of Entergy Nuclear Operations, Inc. (Entergy or Applicant) motion in limine (Entergys Motion).2 The testimony and exhibits that Entergy seeks to exclude from the hearing exceeds the scope of the contention as pled and its identified bases.
3 1 See Licensing Board Order (granting Unopposed Motion by the State of New York and Riverkeeper, Inc. to Amend the Scheduling Order) at 1 (Nov. 17, 2011) (unpublished).
Although the Staff recognizes that the 2 Applicants Motion in Limine to Exclude Portions of the Prefiled Testimony, Report, and Exhibits Filed By New York State and Dr. Francois Lemay In Support of Consolidated Contention NYS-12C (Entergys Motion) (Jan. 30, 2012).
3 See New York State Notice of Intention to Participate and Petition to Intervene (NYS-12)
(Nov. 30, 2007) (Agency-wide Document Access & Management System (ADAMS) Accession No. ML073400187); State of New York Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement (NYS-12A) (Feb. 27, 2009) (ADAMS Accession No. ML090690303);
State of New Yorks New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (NYS-12B) (Mar. 11, 2010) (ADAMS Accession No. ML100780366); State of New York New Contention 12-C Concerning NRC Staffs December 2010 Final Board is capable of sorting through the testimony and evidence for scope and weight, allowing portions of Dr. Lemays testimony and certain limited exhibits into evidence will result in the needless expenditure of resources on issues that are not properly before the Board by all parties and create a needlessly cluttered and confusing record on the issues to be decided.
Thus, the Board should exclude portions of Dr. Lemays pre-filed written testimony4, portions of his report5, and New York State (NYS) Exhibits (Ex.) NYS000271, NYS000272, NYS000273, NYS000274, NYS000275, NYS000276, NYS000277and NYS000278. For the reasons set forth below the Staff supports Entergys motion to exclude portions of New York States prefiled testimony, expert report, and exhibits. Accordingly, the Staff submits that the Board should exclude, in full or in part, the testimony and exhibits challenged in Entergys motion, for the reasons and to the extent set forth therein.
I.
DISCUSSION In an evidentiary hearing, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable. 10 C.F.R. § 2.337(a). While the strict rules of evidence do not apply to written submissions, the Board may on motion or on the presiding officers own initiative, strike any portion of a written presentation or a response to a Legal Standards Governing Motions in Limine Environmental Impact Statement and he Underestimation of Decontamination and Clean Up Costs Associated with a Severe Reactor Accident in the New York Metropolitan Area (Feb 3, 2011) (ADAMS Accession No. ML110680212).
4 Ex. NYS000241, Pre-Filed Written Testimony of Dr. François J. Lemay Regarding Consolidated NYS-12C (Dec. 21, 2011).
5 Ex. NYS000242, Review of Indian Point Severe Accident Off Site Consequence Analysis, ISR Report 13014-01-01, prepared by International Safety Research (ISR) for the Office of the Attorney General - State of New York (Dec. 21, 2011).
written question that is irrelevant, immaterial, unreliable, duplicative or cumulative.
10 C.F.R. § 2.319(d). See also 10 C.F.R. § 2.319(e).
NRC hearings are limited to the scope of the admitted contentions. It is well established that if an intervenor proffers testimony or evidence outside the scope of the admitted contentions, it will be excluded. See, e.g., Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 71 NRC 90, 100 (2010) (agreeing with the Staff that the licensing board had properly excluded the intervenors testimony and exhibits that were outside the scope of the admitted contention). As the Commission explained:
The scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases, unless the contention is satisfactorily amended in accordance with our rules. Otherwise, NRC adjudications quickly would lose order. Parties and licensing boards must be on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing. Our procedural rules on contentions are designed to ensure focused and fair proceedings.
Id. at 100-01 (internal footnotes omitted). Recently, the Commission emphasized:
We have long required contention claims to be set forth with particularity, stressing that it should not be necessary to speculate about what a pleading is supposed to mean. Our proceedings would prove unmanageableand unfair to the other partiesif an intervenor could freely change an admitted contention at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds.
Petitioners must raise and reasonably specify at the outset their objections to a license application.
Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, __ NRC __ (Feb.
9, 2012) (slip op. at 22-23) (internal citations omitted).
II.
The Board has repeatedly emphasized that NYS-12C is neither a challenge to the acceptability of using the MACCS2 computer program nor a direct challenge to MACCS2 ENTERGYS MOTION IN LIMINE itself.6 NYS challenge is based on statements in the The Board explained the bases for NYS challenge. In its orders regarding NYS-12C and consolidated contentions, the Board stated:
Sandia Report such as: Data on recovery from nuclear explosions that have been publicly available since the 1960s appear to have been misinterpreted, which has led to long-standing underestimates of the potential economic costs of severe reactor accidents. As cited by NYS, the Sandia Report also questions the appropriateness of decontamination factors (estimates of the effectiveness of clean up measures) used in severe reactor accidents. Based on this information, NYS is not challenging the use of MACCS2 itself, but is questioning specific inputs and assumptions.7 Entergys Motion raises two distinct reasons for excluding certain portions of Dr. Lemays testimony and report, excluding exhibits relied on by Dr. Lemay. First, Entergys argues that the issues raised by NYS are simply beyond the scope of the admitted contention and supporting bases.
8 For a small subset of NYS submissions, Entergy also argues that information should be excluded because it relies on unauthorized modifications to the MACCS2 source code, which are equivalent to challenging the MACCS2 code.9 Prior to NYS submission of Dr. Lemays pre-filed testimony and related exhibits, NYS had been proceeding under theories expressed in three related papers.
Challenges to the MACCS2 code, as previously indicated, are outside the scope of the admitted contention.
10 6 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 102 (2008). See also Licensing Board Order (Ruling on New York States New and Amended Contentions) (June 16, 2009) at 3-4 (unpublished); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-10-13, 71 NRC 673, 683 (June 30, 2010).
NYS filed a report 7 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43, 102 (2008). See also Licensing Board Order (Ruling on New York States New and Amended Contentions) (June 16, 2009) at 3-4 (unpublished); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-10-13, 71 NRC 673, 683 (June 30, 2010).
8 See Entergys Motion, Attachment 1.
9 See Entergys Motion at 14.
10 D. Chanin and W. Murfin, Site Restoration: Estimation of Attributable Costs from Plutonium-Dispersal Accidents, SAND96-0957, Unlimited Release, UC-502, (May 1996); Beyea, Lyman, von Hippel, Damagesf rom a Major Release of "3Cs into the Atmosphere of the United States, Science and Global from its witness at the time of amending NYS-12C for the last time.11 Mr. Chanin summarizes that the FSEIS is inadequate because it bases its analysis of the economic costs of severe accident[s] on erroneously low cost data, it misapplies SAND96-0957 Site Restoration report, and it ignores other reports showing the cost of a severe reactor accident in a densely developed and populated urban area.12 (1)
NRC Staff relies on cleanup costs estimates for a city with 1,344 person/km2 and made no adjustment to New York City, with its assumed 12,000 persons/km2 NYS and its previous expert, Mr. Chanin, identify only two errors in the 2010 FSEIS. Mr. Chanin asserts:
(2)
NRC Staff mistakenly claim[] that cleanup costs for moderate contamination requiring a [DF] from 5 to 10 for plutonium [was] appropriate for achieving a [DF] of 15 for cesium13 Mr. Lemays testimony, report, and supporting exhibits stray far from these two discrete issues.
NYS and its current expert raised a whole host of new challenges not fairly encompassed by NYS-12C or its supporting bases as identified in Entergys Motion.
14 Security, Vol. 12 at 125-136 (2004) (discussing accident costs at Indian Point and four other sites);
Lyman, Chernobyl on the Hudson? The Health and Economic Impacts of a Terrorist Attack at the Indian Point Nuclear Power Plant, Union of Concerned Scientists (September 2004). Mr. Chanin did provide a single declaration in support of the NYS-12B but seems to be limited only to evaluating if Entergys 2009 SAMA reanalysis changed the previously submitted analysis. See Amended Contention NYS-12B, Statement of David Chanin (March 11, 2010) (ADAMS Accession No. ML100780366).
The Staff agrees that those new issues identified by NYS new expert should be excluded.
11 NYS-12C, D. Chanin, Errors and Omissions in NRC Staff's Economic Cost Estimates of Severe Accident Mitigation Alternatives Analysis Contained in December 2010 Indian Point Final Supplemental Environmental Impact Statement (FSEIS), NUREG-1437, Supplement 38, (Feb. 2011)
(ADAMS Accession No. ML110680212).
12 Id. at 1.
13 Id. at 3.
14 See Entergys Motion at 7-8.
The second issue Entergy raises is that Dr. Lemay made unauthorized modifications to the MACCS2 code.15 Here the issue is not so much whether Dr. Lemay was authorized to alter the MACCS2 code but whether those modifications were made in a way that did not introduce errors into the code calculations and if the alterations were limited to the issues properly before the Board in this proceeding. It seems clear from Dr. Lemays testimony and report that changes made to the MACCS2 code were not limited to the issue identified in NYS contention.
Thus, the Board should exclude the testimony related to these uncontrolled changes.
Because portions of Dr. Lemays testimony and portions of his report as identified by Entergy in its motion are outside the scope of the admitted contention, they should be excluded.
Further, NYS Exs. NYS000271, NYS000272, NYS000273, NYS000274, NYS000275, NYS000276, NYS000277and NYS000278 also exceed the scope of the Contention 12C as originally pled by NYS and as subsequently amended, and these exhibits should be excluded from the hearing. Thus, Entergys Motion should be granted.
CONCLUSION Respectfully submitted, Brian G. Harris
/Signed (electronically) by/
Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1392 E-mail: brian.harris@nrc.gov 15 While the Staff has not yet had an opportunity to fully analyze the changes Dr. Lemay made to code, it does appear that that changes made to the MACCS2 code affected more than the issues raised by NYS in its contention.
Dated at Rockville, MD this 9th day of February 2012
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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)
ENTERGY NUCLEAR OPERATIONS, INC.
)
Docket Nos. 50-247-LR/286-LR
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(Indian Point Nuclear Generating
)
Units 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that the foregoing NRC STAFFS ANSWER TO APPLICANTS MOTION IN LIMINE TO EXCLUDE PORTIONS OF THE PREFILED TESTIMONY, REPORT, AND EXHIBITS FILED BY NEW YORK STATE AND DR. FRANCOIS LEMAY IN SUPPORT OF CONSOLIDATED CONTENTION NYS-12C in the above-captioned proceeding has been filed and served by Electronic Information Exchange (EIE), with copies to be served by the EIE system on the following persons, this 9th day of February, 2012.
Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: Lawrence.McDade@nrc.gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 E-mail: OCAAMAIL@nrc.gov Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail: Richard.Wardwell@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearingdocket@nrc.gov Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel 190 Cedar Lane E.
Ridgway, CO 81432 E-mail: Kaye.Lathrop@nrc.gov Josh Kirstein, Esq.
Atomic Safety and Licensing Board Panel Mail Stop - T-3 F23 U. S, Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-Mail: Josh.Kirstein@nrc.gov John J. Sipos, Esq.*
Charlie Donaldson, Esq.
Assistants Attorney General New York State Department of Law Environmental Protection Bureau The Capitol Albany, NY 12224 E-mail: John.Sipos@ag.ny.gov Charlie.Donaldson@ag.ny.gov Melissa-Jean Rotini, Esq.
Assistant County Attorney Office of Robert F. Meehan, Esq.
Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 E-Mail: MJR1@westchestergov.com Kathryn M. Sutton, Esq.*
Paul M. Bessette, Esq.
Jonathan Rund, Esq.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, D.C. 20004 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com Phillip Musegaas, Esq.*
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 E-mail: phillip@riverkeeper.org E-mail: dbrancato@riverkeeper.org Martin J. ONeill, Esq.*
Morgan, Lewis & Bockius, LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 E-mail: martin.o'neill@morganlewis.com Elise N. Zoli, Esq.*
Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 E-mail: ezoli@goodwinprocter.com Janice A. Dean, Esq.*
Assistant Attorney General, Office of the Attorney General of the State of New York 120 Broadway, 25th Floor New York, NY 10271 E-mail: Janice.Dean@ag.ny.gov Joan Leary Matthews, Esq.*
Senior Attorney for Special Projects New York State Department of Environmental Conservation Office of the General Counsel 625 Broadway, 14th Floor Albany, NY 12233-1500 E-mail: jlmatthe@gw.dec.state.ny.us William C. Dennis, Esq.*
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 E-mail: wdennis@entergy.com John Louis Parker, Esq.*
Office of General Counsel, Region 3 New York State Department of Environmental Conservation 21 South Putt Corners Road New Paltz, NY 12561-1620 E-mail: jlparker@gw.dec.state.ny.us Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building Buchanan, NY 10511-1298 E-mail: vob@bestweb.net E-mail: smurray@villageofbuchanan.com Administrator@villageofbuchanan.com Manna Jo Greene*
Stephen Filler Karla Raimundi, Esq.
Hudson River Sloop Clearwater, Inc.
724 Wolcott Avenue Beacon, NY 12508 E-mail: mannajo@clearwater.org E-mail: stephenfiller@gmail.com E-mail: karla@clearwater.org Robert Snook, Esq.*
Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 E-mail: robert.snook@ct.gov Daniel Riesel, Esq.*
Thomas F. Wood, Esq.
Victoria Shiah, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com E-mail: vshiah@sprlaw.com Michael J. Delaney, Esq.*
Director, Energy Regulatory Affairs New York City Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 E-mail: mdelaney@dep.nyc.gov Brian G. Harris
/Signed (electronically) by/
Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1392 E-mail: brian.harris@nrc.gov