ML12326B001
| ML12326B001 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 11/21/2012 |
| From: | Liberatore K State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23792, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12326B001 (16) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY LICENSING BOARD
x In re:
License Renewal Application Submitted by Docket Nos. 50-247-LR and 50-286-LR Entergy Nuclear Indian Point 2, LLC, ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
x THE STATE OF NEW YORKS OBJECTION TO ENT000589 On Friday evening, October 12, 2012, less than one business day before the start of the scheduled evidentiary hearings in this matter, Entergy Nuclear Operations, Inc. (Entergy),
disclosed for the first time new MACCS2 computer runs and calculations related to Consolidated Contention NYS-16B. On October 22, 2012, the Board entered Entergys calculations as ENT000589, subject to a later objection, recognizing the late time when [the State] received it.
Transcript at 2519:5-10. In accordance with the Boards ruling on October 23, 2012 allowing the State 30 days to object, see Transcript at 2728:11-2732:3, the State objects to the admission of ENT000589 as irrelevant, immaterial, and unreliable under 10 C.F.R. § 2.337(a).
Background
In its March 28, 2012 submissions, Entergy claimed with respect to NYS-16B that its experts performed a MACCS2 sensitivity analysis in which they increased Entergys 2035 population estimate for census undercount and commuters as suggested by Dr. Sheppard[,]...
[which] did not result in the identification of any additional cost-beneficial SAMAs.... [and]
would have no material effect on the SAMA analysis results. Entergys Statement of Position
2 Regarding Consolidated Contention NYS-16B (Severe Accident Mitigation Alternatives Analysis) (ENT000002). In its June 29, 2012 rebuttal, the State and its expert Dr. Stephen Sheppard disputed the relevance of Entergys purported sensitivity analysis and explained its major flaws: (1) Entergy viewed the States SAMA contentionsNYS-16B and NYS-12Cin isolation, but instead, should have run the MACCS2 code with both the increased population from NYS-16B and corrected inputs for the parameters at issue in NYS-12C; (2) Entergys MACCS2 runs only accounted for 50% of Dr. Sheppards commuter population instead of the full 1.2 million additional people the State argues should be added to the population estimate; and (3) Entergys sensitivity analysis utilized a flawed distribution for Dr. Sheppards population increases. Rebuttal Testimony of Dr. Stephen C. Sheppard Regarding Contention NYS 16B (NYS000404) at 31-38. On April 4, 2012, the State had requested from Entergy any additional native MACCS2-related data files for MACCS2 runs that Entergy or its experts may have completed.... includ[ing] data for any MACCS2 runs that are not referenced in Entergys filings.... April 4, 2012 Letter from John Sipos to Kathryn Sutton and Paul Bessette (Attachment A); see also April 5, 2012 Letter from Paul Bessette to John Sipos (Attachment B)
(Entergys response).
Just before 7:00 p.m. on October 12, 2012, Entergy disclosed new MACCS2 runs, new calculations labeled IP2SENSPOP2, and new analysis using Dr. Sheppards entire population figure (Entergy disclosed no new documents aimed at fixing the first flaw described by Dr. Sheppard). Due to the late filing, the State was unable to propose additional cross-examination questions to the Board on this new analysis and had minimal time to formulate its own cross-examination questions on the matter.
3 Entergys New Analysis Is Irrelevant, Unreliable, and Immaterial Under 10 C.F.R. § 2.337(a), only relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Entergys revised analysis does not meet this standard and should not have been admitted. Entergys revised analysis is irrelevant and immaterial because it continues to improperly view two of the States SAMA contentionsNYS-16B and NYS-12C in isolation. The revised analysis is unreliable because its assumptions and conclusions are inconsistent with testimony offered by Entergy at the hearing. Even taking Entergys analysis at face value, the difference in percentages between the outcome of the new sensitivity analysis and the increase necessary to make IP2 SAMA 025 cost-beneficial6.15% vs. 11%is too close to be considered relevant, material, or reliable given the other evidence offered at the hearing.
First, even if materiality were the correct standard, which it is not, the Board must evaluate materiality based on the combined impact of the SAMA input changes asserted in Contentions NYS-12C and NYS-16B. In NYS-12C, the States experts concluded that Entergy underestimated Offsite Economic Cost Risk (OECR) by a factor of 3 to 7 based on MACCS2 inputs other than population. June 29, 2012 Pre-Filed Rebuttal Testimony of Dr. François Lemay, of International Safety Research (NYS000420) at 3.1 At the hearing, Entergy admitted that it did not determine what effect the errors outlined in NYS-12C would have on the SAMA analysis. Testimony at 2228:5-2229:7. Since the purpose of the FSEIS is to present an accurate assessment of the full environmental costs of license renewal, the Board cannot treat the identified environmental concern in a vacuum. Grand Canyon Trust v. FAA, 290 F.3d 339, 346 1 The States experts also concluded that while changes to some input parameters may affect Population Dose Risk (PDR) differently than OECR, the change in PDR had no appreciable impact on the NYS-12C conclusions because the PDR changed by less than 4%. Id. at 33-34.
4 (D.C. Cir. 2002) (finding an Environmental Assessment deficient for failing to examine the aggregate effect of various incremental environmental impacts).2 Instead, the Board must determine whether the combined impact of all the individual input errors in Entergys SAMA analysis distorted its outcome by underestimating the environmental costs of relicensing. Thus, a purported sensitivity analysis that fails to consider the factor of 3 to 7 increase in economic costs from Contention NYS-12C along with the population increase of approximately 1.2 million people cannot be deemed relevant or material.
Second, Entergys new analysis concludes [p]opulation dose risk and cost risk increase approximately 6.7% and 6.8% respectively, due to the population increase of 6.7%.
ENT000589 at p. 2. Entergys calculation includes a table showing that this increase leads to a 6.15% increase in the total costs used in the SAMA analysis. Id. at p. 8 (Table titled Pop2 Sens Impact). This leads Entergy to conclude that [t]he SAMA impact is approximately 6.15%.
Id. at p. 2. Entergy then directly compares this increase of 6.15% to the 11% increase in benefit that IP2 SAMA 025 would need to become cost-effective. See Testimony of Entergy Witnesses Lori Potts, Kevin OKula, Grant Teagarden, and Jerry Riggs on Consolidated Contention NYS-16B (Severe Accident Mitigation Alternatives Analysis) (ENT000003) at A89 (citing NL 165, Attach. 1 at 30 (ENT000009)). This increase of 11% comes from the difference between the benefit with uncertainty of $430,516 and the estimated cost of $476,000 from a table in Entergys SAMA Reanalysis, reproduced below. NL-09-165, Attach. 1 at 30 (ENT000009).
2 See also Generic Environmental Impact Statement for License Renewal of Nuclear Plants Supplement 38 Regarding Indian Point Generating Unit Nos. 2 and 3 at xvi (Dec. 2010) ([t]he purpose of the NRC staffs environmental review, as defined in 10 CFR 51.95(c)(4) and the GEIS, is to determine the following:... whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.).
5 But this methodology of comparing the increase in total costs of 6.15% directly to the difference in benefit of 11%, without re-runing the MACCS2 code for IP2 SAMA 025, contradicts testimony that Entergy provided at the hearing as demonstrated, for example, by the following passages:
JUDGE WARDWELL: Let me ask another more fundamental question. If one was to say yup, boy, New York State is spot on. As far as I can understand, this should have been the justification for the selection of numbers at Indian Point.
That doesnt necessarily mean that the cost benefit analysis is going to change by the same percentage as these OECRs do. Isnt that correct? Because youre taking the same CDNFMs [sic] and TIMDECs would also be used when ran it with a mitigation alternative in place, correct?
MR. TEAGARDEN: Correct, Your Honor.
Transcript at 2228:5-15 (emphasis added).
MS. POTTS: Im sorry. As I stated, increasing the OECR by a factor of three does not equate to increasing the benefit of any particular SAMA by a factor of three.
MS. LIBERATORE: What would increasing the OECR by a factor of three translate to as far as the benefit of a given SAMA?
6 MS. POTTS: It is SAMA-specific.
MS. LIBERATORE: Lets focus on IP2 SAMA 025, since it appears that youve done some analysis on that. What would an increase in OECR by a factor of three translate into for IP2 SAMA 025?
MS. POTTS: I dont know at this point, without looking into it.
Transcript at 2526:12-19 (emphasis added).
JUDGE McDADE: Mr. Teagarden, are you saying that you wouldnt be able to estimate it [the impact on a given SAMA candidate] without actually running the calculation for that particular SAMA, which is not something you could do here in your head?
MR. TEAGARDEN: Yes, your Honor. It could be dependant -- its dependant upon how the risk is being increased, and how that relates to the mitigation that that SAMA candidate is providing.
Transcript at 2527:13-21 (emphasis added).
Entergys expert testimony indicates that a second level of analysis is necessary to determine what exact impact a change in OECR or PDR will have on a given SAMA candidate, but ENT000589 does not include such an analysis. Such inconsistency deems this evidence unreliable.
Third, even taking Entergys new analysis at face value, the difference in percentages is too close to be considered relevant, material, or reliable given the other evidence offered at the hearing. The difference between the outcome of the new sensitivity analysis and the increase necessary to make IP2 SAMA 025 cost-beneficial is only a few percentage points6.15% and 11%which may be overcome by looking at the higher growth rate of 15.98% Sandia proposed in the FSEIS (NYS00133I at G-25) or scrutinizing the polynomial regression analysis Entergy completed for three counties in ENT000589 at p. 2. NRC Staff itself admitted that there often can be a percentage variances in population. Transcript at 2418:3-5. Without further scrutiny, such a small
7 percentage difference is insufficient to deem this purported sensitivity analysis relevant, reliable, or material.
Entergy Did Not Show Good Cause For Admitting New Evidence On the Eve of the Hearing and Preventing the State from Proposing Cross-Examination Questions to the Board Entergy has not shown good cause for submitting its new calculation on the eve of hearing, preventing the State from proposing cross-examination questions to the Board and limiting the States ability to formulate its own cross-examination questions. See In The Matter of Crow Butte Resources, Inc. (North Trend Expansion Project), 67 N.R.C. 241, 258 (May 21, 2008) (applying 10 C.F.R. § 2.309(c)(1)(i)-(iii) criteria to exhibits) (The most important [factor]
is good cause, if any, for the failure to file on time.). Entergys late filing is particularly egregious given the inconsistent answers provided by its witnesses, as discussed above. Entergy itself regularly seeks to hold intervenors and would-be intervenors to strict deadlines to protect itself from the kind of prejudice inflicted by untimely evidentiary proffers. See, e.g., Matter of Entergy Nuclear Ops., Inc. (Palisades Nuclear Plant), 68 N.R.C. 251, 261 (2008) (denying request to file belated authorization affidavits to support petition to intervene because the Boards acceptance and consideration of such belatedly submitted evidence regarding standing would deprive [Entergy Nuclear Operations] of the opportunity to challenge the substantive sufficiency of the affidavit - an opportunity [Entergy] could have exercised had Local 590 submitted a timely affidavit with its petition to intervene).
Entergy had much preparation time in which it could have performed and disclosed this analysis. It chose not to at multiple juncturesafter the States prefiled testimony, in its own prefiled testimony, or even promptly after the States rebuttal testimony, which was filed three and a half months ago. The information available to Entergy and used in its October 12
8 disclosure and analysis is not materially different from information that was previouslyand timelyavailable to it and its experts.
The lack of opportunity to submit proposed cross-examination questions to the Board, and lack of time for the State to formulate its own cross-examination questions, goes against the public interest. As a previous Board has stated in relation to another kind of untimely filing, this time by an intervenor,
[Prior to the date of the late filing], the [parties] had every right to assume that both the issues to be litigated and the participants had been established with finality. Simple fairness to themto say nothing of the public interest requirement that NRC licensing proceedings be conducted in an orderly fashion demanded that the [Licensing] Board be very chary in allowing one who had slept on its rights to inject itself and new claims into the case as last minute trial preparations were underway.
Matter of Houston Lighting and Power Company (Allens Creek Nuclear Generating Station), 15 N.R.C. 508 at *3 (Mar. 31, 1982), citing South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 N.R.C. 881, 886 (1981).
CONCLUSION For the reasons stated above, the State respectfully requests that the Board deny Entergys motion to admit ENT000589.
Respectfully submitted, Signed (electronically) by Kathryn M. Liberatore Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway, 26th Floor New York, New York 10271-0332 (212) 416-8482 Dated: November 21, 2012
UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re:
Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
November 21, 2012
x CERTIFICATE OF SERVICE I hereby certify that on November 21, 2012, copies of the State of New Yorks Objection to ENT000589 and attachments were served electronically via the Electronic Information Exchange on the following recipients:
Lawrence G. McDade, Chair Richard E. Wardwell, Administrative Judge Michael F. Kennedy, Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Richard.Wardwell@nrc.gov Michael.Kennedy@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Shelbie Lewman, Esq. Law Clerk Anne Siarnacki, Esq., Law Clerk Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Shelbie.Lewman@nrc.gov Anne.Siarnacki@nrc.gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 ocaamail@nrc.gov
2 Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 hearingdocket@nrc.gov Sherwin E. Turk, Esq.
David E. Roth, Esq.
Beth N. Mizuno, Esq.
Brian G. Harris, Esq.
Anita Ghosh, Esq.
Joseph A. Lindell, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 sherwin.turk@nrc.gov david.roth@nrc.gov beth.mizuno@nrc.gov brian.harris@nrc.gov anita.ghosh@nrc.gov Joseph.Lindell@nrc.gov Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Jonathan Rund, Esq.
Raphael Kuyler, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com jrund@morganlewis.com rkuyler@morganlewis.com Martin J. ONeill, Esq.
Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com Bobby R. Burchfield, Esq.
Matthew M. Leland, Esq.
Clint A. Carpenter, Esq.
McDermott Will & Emery LLC 600 13th Street, NW Washington, DC 20005-3096 bburchfield@mwe.com mleland@mwe.com ccarpenter@mwe.com Richard A. Meserve, Esq.
Covington & Burling LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004-2401 rmeserve@cov.com Elise N. Zoli, Esq.
Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com William C. Dennis, Esq.
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 wdennis@entergy.com Robert D. Snook, Esq.
Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 robert.snook@ct.gov Melissa-Jean Rotini, Esq.
Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building 148 Martine Avenue, 6th Floor White Plains, NY 10601 MJR1@westchestergov.com Daniel E. ONeill, Mayor James Seirmarco, M.S.
3 Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net Daniel Riesel, Esq.
Thomas F. Wood, Esq.
Victoria S. Treanor, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com Michael J. Delaney, Esq.
Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 (718) 595-3982 mdelaney@dep.nyc.gov Dated at New York, New York this 21st day of November, 2012 Karla Raimundi, Envtl Justice Associate Hudson River Sloop Clearwater, Inc.
724 Wolcott Avenue Beacon, NY 12508 Mannajo@clearwater.org karla@clearwater.org stephenfiller@gmail.com Richard Webster, Esq.
Public Justice, P.C.
Suite 200 1825 K Street, NW Washington, DC 20006 rwebster@publicjustice.net Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org dbrancato@riverkeeper.org Signed (electronically) by Kathryn M. Liberatore State of New York (212) 416-8482
Attachment A
STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ERIC T. SCHNEIDERMAN DIVISION OF SOCIAL JUSTICE ATTORNEY GENERAL ENVIRONMENTAL PROTECTION BUREAU THE CAPITOL, ALBANY, N.Y. 12224-0341 PHONE (518) 473-3105 FAX (518) 473-2534 WWW.AG.NY.GOV April 4, 2012 Via Electronic Mail Re:
Entergys Mandatory Disclosures, Indian Point License Renewal, Docket Nos. 50-247-LR and 50-286-LR (ASLBP No.07-858-03-LR-BD01)
Dear Counsel and Parties:
On April 3, 2012, counsel for Entergy transmitted (1) native MACCS2-related data files for the NYS-16B sensitivity analysis (Entergy March 28, 2012 Disclosure Log Entry # 9316),
and (2) supporting native files for the NYS-16B commuter analysis (Entergy Disclosure Log Entry # 9317).
The State of New York requests any additional native MACCS2-related data files for MACCS2 runs that Entergy or its experts may have completed. Such files would include data for any MACCS2 runs that are not referenced in Entergys filings or in the materials provided on April 3, 2012. These MACCS2 runs are not protected by any privilege or confidentially agreement and, therefore, must be disclosed. If Entergy or its experts did not conduct any additional MACCS2 runs, please so certify.
As we require these MACCS2 files to complete the States rebuttal testimony and revised statements of position, we appreciate your prompt attention to this matter. Please contact AAG Kathryn Liberatore or me if you have any questions or would like to discuss this further.
Sincerely, s/
John J. Sipos Assistant Attorney General (518) 402-2251 Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
2 cc:
Sherwin E. Turk Robert D. Snook Daniel Riesel Daniel ONeill Melissa-Jean Rotini Michael J. Delaney Manna Jo Greene Phillip Musegaas Martin ONeill Joan Matthews Janice A. Dean Laura Heslin
Attachment B
Morgan. Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Tel:
202.739.3000 Fax: 202.739.3001 www.morganlewis.com Paul M. Bessette Partner 202.739.5796 pbessette@morganlewis.com April 5, 2012 Via E-Mail and Regular Mail John 1. Sipos Assistant Attorney General State ofNew York The Capitol Albany NY 12224-0341 Morgan Lewis COUNSELORS AT LAW Re:
Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Docket Nos. 50-247-LR and 50-286-LR
Dear Mr. Sipos:
This letter is in response to your April 4, 2012 letter seeking any additional MACCS2-related data files for MACCS2 runs that Entergy or its experts may have completed. As we discussed on the phone yesterday, Entergy already disclosed, on April 3, 2012, all MACCS2-related data files and supporting native data files for the NYS-16B sensitivity and commuter analyses conducted by Entergy and its experts.
As we also discussed, Entergy and its experts did not conduct or rely on any MACCS2 sensitivity analyses in connection with its testimony submitted on March 30, 2012 concerning NYS-12C. Entergy did conduct four MACCS2 sensitivity runs in November 2011, before NYS filed its testimony and expert report on NYS-12C on December 21,2011. Because Entergy tailored its testimony to the specific issues raised by NYS in its testimony and expert report, it did not rely on the November 2011 draft MACCS2 sensitivity analyses in its testimony.
Therefore, we do not believe that the associated MACCS2 data files are necessary for the completion ofNYS's rebuttal testimony, as suggested in your April 4, 2012 letter. Nonetheless, in the ongoing spirit of cooperation, we will forward to New York State the native MACCS2-related data files for those analyses. By doing so, however, Entergy does not concede or address your claim that such information "must be disclosed."
s;qrelY, Paul M. Bessette Washington Philadelphia New York Los Angeles San Francisco Miami Pittsburgh Princeton Chicago Palo Alto Dallas Houston Harrisburg Irvine Boston Wilmington London Paris Brussels Frankfurt Beijing Tokyo DB I! 69511005.1