ML13081A698

NRC Staff'S Proposed Findings of Fact and Conclusions of Law Part 5: Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis Decontamination and Cleanup Costs)

ML13081A698
Person / Time
Site:	Indian Point
Issue date:	03/22/2013
From:	Harris B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24267, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13081A698 (48)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/ 50-286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW PART 5: CONTENTION NYS-12C (SEVERE ACCIDENT MITIGATION ALTERNATIVES ANALYSIS DECONTAMINATION AND CLEANUP COSTS)

Brian G. Harris Counsel for NRC Staff March 22, 2013

ii TABLE OF CONTENTS I. INTRODUCTION ................................................................................................... II. BACKGROUND .................................................................................................. A. Draft Supplemental Environmental Impact Statement .................................... B. Entergys Revised SAMA Analysis ................................................................. C. Final Supplemental Environmental Impact Statement .................................... III. FINDINGS OF FACT .......................................................................................... A.

Background:

The Issues Raised in NYS-12C ................................................ B. Applicable Legal Standards ............................................................................ C. Evidence Adduced at Hearing ........................................................................ 1. Witnesses Presented .................................................................................. a. Staffs Witnesses ........................................................................................ b. Entergys Witnesses ................................................................................. c. New Yorks Witness .................................................................................. 2. The Reasonableness of Indian Points SAMA Analysis ............................ 3. The Methodology for Performing a Reasonable SAMA Analysis .............. 4. Entergys SAMA Analysis .......................................................................... 5. The Staffs Review of Entergys SAMA Analysis ....................................... 6. Dr. Lemays Extension of the TIMDEC in Excess of One-Year Results in Unreasonable Results From the MACCS2 Code ..................... a. Extending the Input Parameters to Beyond the MACCS2 Codes Design Limit of 1-Year Interferes with the Fundamental Logic Coded Into MACCS2 ................................................................................. b. TIMDEC Is Not Independent of the Other Decontamination Parameters . c. Dr. Lemay Overweights His Inputs to Account for the Accidents Similar to Worst Case Scenarios Instead of the Entire Spectrum of Accident Scenarios ................................................................................... 7. The CDNFRM Used By Entergy in Its SAMA Analysis was Reasonable ..

iii

a. Nuclear Weapons Accidents Are an Inappropriate Analogue for Nuclear Reactor Accidents ....................................................................... b. Dr. Lemays Analysis Contained Numerous Flaws ................................... 8. The Staff Fully Responded to NYS Timely Comments on the DSEIS ...... D. Summary of Findings .................................................................................... IV. CONCLUSIONS OF LAW ................................................................................

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW PART 5: CONTENTION NYS-12C (SEVERE ACCIDENT MITIGATION ALTERNATIVES ANALYSIS DECONTAMINATION AND CLEANUP COSTS)

I. INTRODUCTION 5.1 In accordance with 10 C.F.R. § 2.1209(a) and the Atomic Safety and Licensing Boards Orders,1 the NRC Staff (Staff) hereby submits its proposed findings of fact and conclusions of law (Proposed Findings or PFF) regarding the nine contested Track I contentions in this proceeding. The Staffs Proposed Findings are set forth in ten separate filings, as follows:

Part 1: Overview and Regulatory Standards; Part 2: Contention NYS-5 (Buried Piping and Tanks);

Part 3: Contention NYS-6/7 (Non-EQ Inaccessible Medium and Low Voltage Cables);

Part 4: Contention NYS-8 (Transformers);

Part 5: Contention NYS-12C (Severe Accident Mitigation Alternatives (SAMA) Analysis Decontamination and Cleanup Costs);

Part 6: Contention NYS-16B (SAMA Analysis Population Estimates);

Part 7: Contention NYS-17B (Real Estate Values);

Part 8: Contention NYS-37 (No-Action Alternative);

Part 9: Contention RK-TC-2 (Flow Accelerated Corrosion); and Part 10: Contention CW-EC-3A (Environmental Justice).2 1

See (1) Scheduling Order (July 1, 2010), at 19; and (2) Order (Scheduling Post-Hearing Matters and Ruling on Motions to File Additional Exhibits) (Jan. 15, 2013) at 1.

2 The Staff utilized a unique number designator for each separate Part of the Proposed Findings, whereby all paragraphs in Part 1 are consecutively numbered 1.__; all paragraphs in Part 2 are

5.2 In Part 5 of the Staffs Proposed Findings, set forth below, the Staff addresses the issues raised in Contention NYS-12C (SAMA Analysis Decontamination and Cleanup Costs). For the reasons set forth herein, the Staff submits that Contention NYS-12C should be resolved in favor of license renewal for Indian Point Nuclear Generating Units 2 and 3.

II. BACKGROUND 5.3 These findings and rulings address all outstanding issues with respect to the contention filed by the State of New York (New York), Contention NYS-12C, concerning the decontamination costs and clean-up used in the Severe Accident Mitigation Alternatives (SAMA) analysis submitted by Entergy Nuclear Operations, Inc. (Entergy or Applicant) as part of Indian Point Nuclear Generating Units 2 and 3 (Indian Point or IP2 and IP3) license renewal application (LRA). An overview of this proceeding and the regulatory standards that govern consideration of the IP2 and IP3 LRA are set forth in Part 1 of the Staffs Proposed Findings, submitted simultaneously herewith. To avoid unnecessary duplication, the Staff hereby incorporates Part 1 of its Proposed Findings by reference herein.

5.4 NYS Contention 12 stated that:

Entergys [SAMA] for Indian Point 2 and Indian Point 3 does not accurately reflect decontamination and clean up costs associated with a severe accident in the New York Metropolitan Area and therefore, Entergys SAMA Analysis underestimates the cost of a severe accident .3 5.5 The Board admitted NYS-12 in July 2008 to the extent that it challenge[d] the cost data for decontamination and clean-up used by MACCS2.4 consecutively numbered 2.__, etc. Accordingly, all paragraph numbers in this Part commence with the number 5.__.

3 New York State Notice of Intention to Participate and Petition to Intervene (NYS Petition), at 140 (Nov. 30, 2007).

4 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP 13, 68 NRC 43, 102 (2008).

A. Draft Supplemental Environmental Impact Statement 5.6 In December 2008, the Staff issued the Draft Supplemental Environmental Impact Statement (Draft SEIS or DSEIS) for review and comment as a supplement to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS),

NUREG-1437 (May 1996).5 Pertinent to this contention, the Staff evaluated the environmental impacts of postulated accidents at Indian Point Units 2 and 3 including environmental impacts from design-based accidents, severe accidents, and severe accident mitigation alternatives.

The Staff observed that the Commission generically determined in the GEIS that the environmental impacts of postulated accidents is small for all nuclear power plants. The Staff found that there are no site-specific impacts related to design-based accidents or severe accidents for Indian Point Units 2 and 3 beyond those already considered in the GEIS. Further, the Staff summarized its review of Entergys SAMA analyses, and concluded that the methods and data used were reasonable and sound, the evaluations provide reasonable estimates of the potential costs and benefits, and that none of the potentially cost-beneficial SAMAs need to be implemented as part of license renewal.

5.7 Upon the Staffs publishing of the DSEIS, New York sought to amend its contention in the first of what would eventually be three amendments. In its amendment, New York simply sought to have its contention be applied to the DSEIS instead of the applicants Environmental Report (ER).6 5

Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Indian Point Generating Unit Nos. 2 and 3, NUREG-1437, Supplement 38 (Dec. 2008) (Exhibit (Ex.)

NYS000133A-J).

6 State of New York Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement (Feb. 27, 2009) (NYS DSEIS Contentions), available at ADAMS Accession No. ML090690303. See also State of New Yorks New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (Mar. 11, 2010) (Amended Contention NYS-12B), available at ADAMS Accession No. ML100780366; State of New York New Contention 12-C Concerning NRC Staffs December 2010 Final Environmental Impact Statement and the Underestimation of Decontamination and Clean Up Costs Associated with a Severe Reactor Accident in the New York Metropolitan Area at 3-15 (Feb. 3, 2011) (Amended Contention NYS-12C), available at ADAMS Accession No. ML110680212.

B. Entergys Revised SAMA Analysis 5.8 In November 2009, the Staff held two telephone conference calls with the applicant to discuss a discrepancy in the meteorological data inputs that the Staff and its experts identified during its review of Entergys SAMA analysis. In a November 16, 2009 letter, Entergy committed to correct the meteorological data inputs to the MACCS2 code, re-run the SAMA analysis, and provide the new results to the NRC. On December 11, 2009, the Applicant submitted the SAMA reanalysis using the revised meteorological data. On March 11, 2010, New York amended its contention for the second time. to apply its previous assertions to the newly submitted SAMA analysis. 7 C. Final Supplemental Environmental Impact Statement 5.9 The Final Supplemental Environmental Impact Statement (FSEIS) was published in December 2010. As it had done with the DSEIS, the Staff evaluated the environmental impacts from postulated accidents at Indian Point Units 2 and 3. The Staff also evaluated the basis for determining that the SAMA analyses were reasonable in light of the issues raised in New Yorks contentions NYS-12 and NYS-16. At issue here, the Staff evaluated New Yorks claims in its timely filed comments on the EIS and determined that the analysis was reasonable even when New Yorks comments were considered.8 5.10 In its last amendment to NYS-12C, New York and its former consultant challenged the FSEIS based on failing to scale-up data to accurately reflect an urban area such as New York City and applying only moderate decontamination efforts to what it considered to be heavy decontamination events.9 New York took issue with the Staff and its experts analysis 7

State of New Yorks New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (Mar. 11, 2010) (Amended Contention NYS-12B),

available at ADAMS Accession No. ML100780366 8

Id.; see, e.g., Ex. NYS000133I, at A-984 - A-1024.

9 See Amended Contention NYS-12C at 7; see also id. Attach. (David I. Chanin, Errors and Omissions in NRC Staffs Economic Cost Estimates of Severe Accident Mitigation Alternatives Analysis

that the plutonium clean-up costs identified in their references were not directly applicable to nuclear reactor accident and once the data was adjusted to account for this material difference it did not provide any information that would challenge Entergys SAMA analysis.10 The Board admitted and consolidated contention 12C with contention 12B, contention 12A and the original contention 12 (collectively, NYS-12C). NYS filed its Initial Statement of Position, pre-filed testimony from its expert Dr. Francois Lemay, and exhibits on December 21, 2011.11 5.11 On March 30, 2012, Entergy filed its Initial Statement of Position; pre-filed testimony from its experts, Mr. Grant Teagarden, Dr. Kevin OKula, and Ms. Lori Ann Potts; and exhibits.

5.12 The Staff filed its Initial Statement of Position; pre-filed testimony from its experts, Dr. Tina Ghosh, Dr. Nathan Bixler, Mr. Joseph Jones, and Mr. Donnie Harrison; and exhibits on March 30, 2012.

5.13 On June 29, 2012, New York filed its revised statement of position, Dr. Lemays Rebuttal testimony, and additional supporting exhibits. The Board questioned the witnesses during a hearing on October 17 and 18, 2012.

III. FINDINGS OF FACT A.

Background:

The Issues Raised in NYS-12C 5.14 The regulatory standards governing license renewal are set forth in Part 1 of the Staffs Proposed Findings, filed simultaneously herewith, and are incorporated by reference herein. As part of its license renewal application, Entergy performed a severe accident Contained in December 2010 Indian Point Final Supplemental Environmental Impact Statement (FSEIS),

NUREG-1437, Supplement 38 at 1, 3 (Feb. 2011)).

10 As discussed later, New Yorks testifying expert agreed that the Site Restoration Study and other information related to nuclear weapon accident clean-up was not particularly useful for evaluating whether the decontamination values used by Entergy were appropriate. Transcript at 2012.

11 The Staff and Entergy filed motions in limine seeking to exclude portions of the pre-filed testimony and exhibits. The Board denied those motions with respect to NYS-16B. Licensing Board Order (Granting in Part and Denying in Part Applicants Motion in Limine) (Mar. 6, 2012) (unpublished).

mitigation alternatives (SAMA) analysis in accordance with 10 C.F.R. 51.53(c)(3)(ii)(L). New York raised two contentions challenging the adequacy of the SAMA analysis.12 In the instant contention, Dr. Lemay, New Yorks testifying expert, asserted in his testimony that the costs for decontamination were underestimated because (1) the time required to complete decontamination is longer than the average used by Entergy, TIMDEC, and (2) the per person costs for decontaminating non-farmland, CDNFRM, are higher than Entergys inputs.13 B. Applicable Legal Standards 5.15 The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.,

requires federal agencies, including the NRC, to take a hard look at the environmental impacts of their actions. NEPA, however, does not mandate a specific outcome or a course of action including a decision to mitigate any potential impacts.14 The NRC fulfills its requirements under NEPA, for renewal of operating licenses, through the Generic Environmental Impact Statement (GEIS) and the Final Supplemental Environmental Impact Statement (FSEIS), Exs.

NYS000131A-I and NYS000133A-J.15 The Commission stated that there is no NEPA requirement to use the best scientific methodology, and NEPA should be construed in light of 12 At issue here is the New Yorks challenge to the estimated costs to clean-up a severe accident. The other contention (NYS-16B) raised challenges to Entergys population estimate utilized in the SAMA analysis.

13 Pre-filed Written Testimony of Dr. François J Lemay Regarding Consolidated NYS-12-C (NYS-12/12-A/12-B/12-C) (New Yorks Testimony on NYS-12C), Ex. NYS000241, at 6,9,30-32, 54; Pre-filed Written Rebuttal Testimony of Dr. François J. Lemay Regarding Consolidated Contention NYS-12C (NYS-12/12A/12B/12C) (New Yorks Rebuttal Testimony on NYS-12C), Ex. NYS000420, at 15-16; Transcript at 2054-55.

14 See, e.g., Baltimore Gas and Elec. Co. v. Nat. Res. Def. Council, 426 U.S. 87, 97 (1983)

(quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976))(stating that NEPA requires only that the agency take a hard look at the environmental consequences before taking a major action); Sierra Club v.

Army Corp of Engineers, 446 F.3d 808, 815 (2006)(same); Louisiana Energy Services, L.P. (Clairborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998)(same); Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), LBP-06-19, 64 NRC 53, 63-64 (2006)(same); see also Winter v. Nat.

Res. Def. Council, 129 S.Ct. 365, 376 (2008)(stating that NEPA imposes only procedural requirements and does not mandate any particular result).

15 10 C.F.R. § 51.2.

reason if it is not to demand virtually infinite study and resources.16 They have cautioned that

[o]ur boards do not sit to flyspeck environmental documents or to add details or nuances. If the [EIS] on its face comes to grips with all important considerations nothing more need be done.17 In Pilgrim, the Commission stated:

Ultimately, we hold adjudicatory proceedings on issues that are material to licensing decisions. With respect to a SAMA analysis in particular, unless a contention, submitted with adequate factual, documentary, or expert support, raises a potentially significant deficiency in the SAMA analysisthat is, a deficiency that could credibly render the SAMA analysis altogether unreasonable under NEPA standardsa SAMA-related dispute will not be material to the licensing decision, and is not appropriate for litigation in an NRC proceeding.18 5.16 The Commission warned that in a highly predictive analysis such as a SAMA analysis, there are bound to be significant uncertainties, and therefore an uncertainty analysis is performed.19 The Commission, anticipating the wide ranging disputes over individual aspects of the SAMA analysis, has said:

It always will be possible to conceive of yet another input or methodology that could have been used in the SAMA computer modeling, and many different inputs and approaches may all be reasonable choices. The SAMA analysis is not a safety review performed under the Atomic Energy Act. The mitigation measures examined are supplemental to those we already require under our safety regulations for reasonable assurance of safe operation.20 5.17 In other words, it is simply not enough to take issue with a particular aspect of the SAMA analysis, an intervenor challenging the SAMA analysis must show that it was 16 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Station), CLI-10-11, 71 NRC 287, 315 (2010).

17 Exelon Generation Co, LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 811 (2005)(citing Systems Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005)(footnote omitted)).

18 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 57 (2012) (emphasis added).

19 Id. at 58.

20 Id. at 57.

unreasonable on the whole.21 The Commission recently stressed that the proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA.22 A petitioner may not simply assert a deficiency. Rather to challenge an applicants SAMA analysis a petitioner must point with support to an asserted deficiency that renders the SAMA analysis unreasonable under NEPA.23 Specifically, [a] contention proposing alternative inputs or methodologies must present some factual or expert basis for why the proposed changes in the analysis are warranted.24 Even more, intervenors must show why the inputs or methodology used is unreasonable, and the proposed changes or methodology would be more appropriate.25 Recently, the First Circuit in resolving a challenge to the SAMA analysis at the Pilgrim Nuclear Power Station using the MACCS2 code remarked that [t]he NRC uses a site-specific and plant specific PRA methodology, which answers three questions: (1) what can go wrong; (2) how likely is it; and (3) what are the consequences.26 The court emphasized the need to allow agencies to select their own methodology as long as that methodology is reasonable .27 Here, New Yorks assertions and proposed changes are fundamentally flawed and would disrupt the delicate balance achieved by the agency through the development of the MACCS2 code such that it produces reliable and consistent results that fairly represent the potential costs and benefits of each SAMA.

21 Id. at 57-58.

22 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit1), CLI-12-08, 75 NRC ___, (slip op. at 17-18) (Mar. 27, 2012)(reversing the admission of contention challenging the costs to clean-up a severe accident) (internal citations omitted).

23 Id.

24 Id.

25 Id.

26 Massachusetts v. NRC, Nos. 12-1404 and 12-1772 at 25 (1st Cir. Feb. 25, 2013) (affirming the NRCs decision to renew the license for Pilgrim Nuclear Power Station).

27 Id. (citing Town of Winthrop v. FAA, 535 F.3d 1, 13 (1981)).

5.18 Finally, the Commission has concluded that [u]ltimately, NEPA requires the NRC to provide a reasonable mitigation alternatives analysis, containing reasonable estimates .28 The Commission explained that Staffs FSEIS need only explain any known shortcomings in available methodology, incomplete or unavailable information and significant uncertainties, and reasoned evaluation of whether and to what extent these or other considerations credibly could or would alter the Pilgrim SAMA analysis conclusions .29 5.19 Thus, the Staffs FSEIS and the SAMA analysis satisfy the requirements of NEPA and the Board should resolve this contention in favor of the Staff and license renewal for Indian Point Units 2 and 3.

C. Evidence Adduced at Hearing

1. Witnesses Presented 5.20 Evidentiary hearings on this contention were held on October 17 and 18, 2012.

A total of seven witnesses were found to be qualified to present testimony on the matters they addressed. Prefiled testimony was submitted by each witness; in addition, the witness for New York was allowed to provide prefiled rebuttal testimony in accordance with the Boards scheduling order. All of the witnesses provided oral testimony in response to questioning by the Board and parties.

a. Staffs Witnesses 5.21 The Staff presented a panel of four witnesses in support of the SAMA analysis contained in its final supplemental Environmental Impact Statement (EIS). They were Dr.

Nathan E. Bixler, Dr. S. Tina Ghosh, Joseph A. Jones, and Donald G. Harrison.30 28 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208-09 (2010).

29 Id.

30 NRC Staff Testimony of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones, and Donald G.

Harrison Concerning NYS Contentions NYS-12/16 (Staffs Testimony on NYS-12C), Ex. NRC000041, at 1-2.

5.22 Dr. Bixler, a chemical engineer, with a Doctorate in chemical engineering, is the Principal Investigator for Sandia National Laboratories (Sandia) on the code development for accident consequences including RADTRAD, MACCS2, WinMACCS, SECPOP2000, and MELMACCS, for the NRC. (See Staffs Testimony on NYS-12C, Ex. NRC000041, at 1-3; Ex.

NRC000042.) Dr. Bixler has over twenty years of experience with the codes developed to model accident consequences. (See Staffs Testimony on NYS-12C, Ex. NRC000041, at 1-3; Ex. NRC000042.)

5.23 Dr. Tina Ghosh, a nuclear engineer, with a Doctorate in nuclear engineering, is the Senior Reactor Systems Engineer responsible for leading the NRCs research on state of the art reactor consequence analysis uncertainty analysis. (See Staffs Testimony on NYS-12C, Ex. NRC000041, at 1-3; Ex. NRC000043.) Previously, she was a Reactor Engineer for the Division of Risk Analysis and primarily responsible for the review of SAMA analyses submitted as part of a plants application for license renewal. (See Staffs Testimony on NYS-12C, Ex.

NRC000041, at 1-3; Ex. NRC000042.) Prior to serving in the Division of Risk Assessment, she was primarily responsible for risk assessments and in the review of the high-level waste application submitted by the Department of Energy. (See Staffs Testimony on NYS-12C, Ex.

NRC000041, at 1-3; Ex. NRC000042.)

5.24 Joeseph Jones, a professional engineer, with a Bachelors of Science degree in civil engineering, is a Distinguished Member of the Technical Staff employed by Sandia, which is operated by Lockheed-Martin for the US Department of Energy. He has over 28 years experience in engineering and analysis, 23 years of which has been at Sandia. (See Staffs Testimony on NYS-12C, Ex. NRC000041, at 1-4; Ex. NRC000044.) He has been primarily involved in radiological emergency preparedness, consequence management, and radioactive materials cleanup activities both nationally and internationally. (See Staffs Testimony on NYS-12C, Ex. NRC000041, at 1-4; Ex. NRC000044.) He also performs emergency plan reviews and evacuation time estimate reviews for the NRC Staff in support of new reactor license

applications. (See Staffs Testimony on NYS-12C, Ex. NRC000041, at 1-4; Ex. NRC000044.)

He has managed project teams in the decontamination and decommissioning of radioactively contaminated facilities at Sandia and the development of advanced decontamination techniques for radioactive materials. (See Staffs Testimony on NYS-12C, Ex. NRC000041, at 1-4; Ex.

NRC000044.) He is a named inventor on US Patent 7,514,493 B1, Strippable Containment and Decontamination Coating Composition and Method of Use, April 7, 2009. (See Staffs Testimony on NYS-12C, Ex. NRC000041, at 1-4; Ex. NRC000044.).

5.25 Donald Harrison, a nuclear engineer, with a Bachelors of Science degree in nuclear engineering, is the Branch Chief for Probabilistic Risk Assessment Licensing Branch (APLA) of the Division of Risk Assessment (DRA) within the Office of Nuclear Reactor Regulation (NRR). APLA had the responsibility for the license renewal severe accident mitigation alternatives (SAMA) reviews and associated development of this aspect of the environmental impact statement (EIS) at the time of the Indian Point license renewal application was submitted, as well as most risk-informed rulemaking and license application reviews that involved the use of probabilistic risk assessments (PRA). (See Staffs Testimony on NYS-12C, Ex. NRC000041, at 1-4; Ex. NRC000045.)

b. Entergys Witnesses 5.26 Entergy presented a panel of three witnesses concerning this contention. They were Lori Ann Potts, Dr. Kevin R. OKula, and Grant A. Teagarden.

5.27 Ms. Potts is a senior consulting engineer to Entergy in the areas of SAMA analysis and fire probabilistic risk assessment (PRA). She has over 30 years of experience as a technical professional in the nuclear industry in the areas of safety analysis, PRA, deterministic and probabilistic accident and consequence analysis, materials aging management, reactor engineering, and systems engineering. She participated directly in eight SAMA analyses, including IP2 and IP3 and peer reviewed three other SAMA analyses. Ms.

Potts is one of the authors of NEI 05-01, Rev. A, the industry guidance document for performing

SAMA analyses. Ms. Potts has a Bachelors of Science degree in Nuclear Engineering from The Pennsylvania State University. (See generally, Testimony of Entergy Witnesses Lori Potts, Kevin OKula, and Grant Teagarden on Consolidated Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis) (Entergys Testimony on NYS-12C), Ex. ENT000450, at 1-3; Entergys Statement of Position Regarding Consolidated Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis) (Entergys Statement of Position on NYS-12C), Ex.

ENT000449, at 25-26; Ex. ENT000004.)

5.28 Dr. OKula is an Advisory Engineer with URS Safety Management Solutions LLC in Aiken, South Carolina. He has 29 years of experience in safety analysis methods and guidance development, computer code validation and verification, PRA, deterministic and probabilistic accident and consequence analysis applications for reactor and non-reactor nuclear facilities, source term evaluation, risk management, software quality assurance, and shielding. He has 20 years of experience using, applying, and providing training on the MELCOR Accident Consequence Code System (MACCS) and the MACCS2 (a later version of MACCS) computer codes, which are used to evaluate the potential impacts of severe accidents at nuclear power plants on the surrounding public. Dr. OKula obtained his B.S. in Applied and Engineering Physics from Cornell University in 1975, and his Masters of Science (M.S.)

degree and Ph.D. in Nuclear Engineering from the University of Wisconsin in 1977 and 1984, respectively. (See generally, Entergys Testimony on NYS-12C, Ex. ENT000450, at 3-5; Entergys Statement of Position on NYS-12C, Ex. ENT000449, at 26; Ex. ENT000005.)

5.29 Mr. Teagarden is the Manager for Consequence Analysis for ERIN Engineering

& Research, Inc. in Campbell, California. As indicated in his testimony, Mr. Teagarden has 14 years of experience in the nuclear field, including 10 years as a manager and technical professional in the areas of PRA, source term analysis, consequence analysis, and nuclear power plant security risk assessment. His is also a member of the American Nuclear Society (ANS) and Vice Chair of the writing committee for ANSI/ANS-58.25, Standard for Radiological

Accident Offsite Consequence Analysis (Level 3 PRA) to Support Nuclear Installation Applications. Mr. Teagarden has substantial experience using MACCS2 and developing MACCS2 models for commercial nuclear power plants in the United States. He has developed or managed the development of MACCS2 models in support of SAMA analyses for ten nuclear power plant sites. Mr. Teagarden obtained his B.S. degree in Mechanical Engineering from University of Miami in 1990 and completed the Bettis Reactor Engineering School at the Bettis Atomic Power Laboratory as part of his training in the U.S. Navy nuclear program. (See generally, Entergys Testimony on NYS-12C, Ex. ENT000450, at 5-7; Entergys Statement of Position on NYS-12C, Ex. ENT000449, at 26-27; Ex. ENT000007.)

c. New Yorks Witness 5.30 New York presented one witness, Dr. Francois Lemay, in support of its contention. Dr. Lemay is professional engineer with a Ph.D. in Physics of Nuclear Reactors from the University of Birmingham, United Kingdom. He has 27 years of experience in safety analysis, emergency response plans, procedures and systems, radiation protection, radiation transport, risk assessment, environmental impact assessment, standards and guidelines, audits and evaluations, emergency exercises, courses and training and international projects. (See generally, New Yorks Testimony on NYS-12C, Ex. NYS000241, at 2-3; Ex. NYS000291.)

2. The Reasonableness of Indian Points SAMA Analysis 5.31 As more fully set forth below, having considered the testimony and other evidence presented by the parties, we find that the evidence supports a conclusion that SAMA analysis reflected in the Staffs final supplemental EIS (FSEIS), Ex. NYS000133A-J, satisfies the requirements under NEPA and the NRCs regulations at 10 C.F.R. 51.53(c)(3)(ii)(L). The selection of decontamination costs and decontamination times for the SAMA analysis were reasonable in light of the purpose of the modeling, the scope of modeled accidents, and Indian Points site-specific considerations. Once Dr. Lemays suggestions are corrected for the errors like the conservation of mass, they actually support the decontamination costs and clean-up

time estimates selected by Entergy for its analysis. The Staff responded appropriately to each of New Yorks comments that were made in a timely manner. Thus, NYS-12C should be resolved in the favor of license renewal for Indian Point Units 2 and 3.

3. The Methodology for Performing a Reasonable SAMA Analysis 5.32 A SAMA analysis is a systemic search for potentially cost-beneficial enhancements that would further reduce nuclear power plant accident risk. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 19; Transcript at 1899-1900; Entergys Testimony on NYS-12C; Ex. ENT000450, at 16-19; New Yorks Testimony on NYS-12C, Ex. NYS000241 at 10-11.)

The SAMA analysis allows for the comparison of benefits derived from particular mitigating strategies with their cost to implement. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 19-22; Transcript at 1900-02; Entergys Testimony on NYS-12C; Ex. ENT000450, at 16-19; New Yorks Testimony on NYS-12C, Ex. NYS000241 at 10-11.) SAMA analyses are generally conducted through a probabilistic risk assessment (PRA). (Staffs Testimony on NYS-12C, Ex.

NRC000041, at 19-21; Transcript at 1900-01; Entergys Testimony on NYS-12C; Ex.

ENT000450, at 18-19; New Yorks Testimony on NYS-12C, Ex. NYS000241 at 10-11.)

5.33 The first step in SAMA analysis is to identify and characterize the contributors to core damage frequency (CDF) and offsite risk based on plant-specific information. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 19; Transcript at 1908; Entergys Testimony on NYS-12C; Ex. ENT000450, at 18-19.) Analysts identify potential mitigating strategies to each identified risk. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 20; Transcript at 1900-02, 1909-10; Entergys Testimony on NYS-12C; Ex. ENT000450, at 18-19; New Yorks Testimony on NYS-12C, Ex. NYS000241 at 10-11.) The mitigating strategies could potentially take the form of prevention (i.e., eliminate the accident from causing core damage or reduce the CDF) or mitigation (i.e., reduce the consequences from a particular accident scenario). (Transcript at p.

1933-34.) After identifying potential mitigating strategies, the analysts will screen the ideas for whether they could ever be cost-beneficial by comparing the projected cost of implementation

with the reduction in all risk to the plant. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 19; Entergys Testimony on NYS-12C; Ex. ENT000450, at 18-19; Transcript at 2223.) Once these SAMAs that could never be cost-beneficial are eliminated, the remaining strategies are evaluated for the potential benefit that might be achieved from its impact on risk metrics (CDF, population dose risk, and offsite economic cost risk) and a more detailed cost projection.

(Staffs Testimony on NYS-12C, Ex. NRC000041, at 21-23; Transcript at 1911-15; Entergys Testimony on NYS-12C; Ex. ENT000450, at 18-19; New Yorks Testimony on NYS-12C, Ex.

NYS000241 at 10-11.)

5.34 The impact on risk metrics is performed by comparing the baseline PRA31 with a new PRA for plant implementing one mitigation alternative.32 (Staffs Testimony on NYS-12C, Ex. NRC000041, at 20-23; Transcript at 1911-15; Entergys Testimony on NYS-12C; Ex.

ENT000450, at 18-19; New Yorks Testimony on NYS-12C, Ex. NYS000241 at 10-11.) The process is repeated for each of the mitgating strategies that survived the initial screening process. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 21-23; Entergys Testimony on NYS-12C; Ex. ENT000450, at 18-19.) Those mitigating strategies that result in a net reduction in risk after accounting for the economic costs of implementation are identified as potentially cost-beneficial. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 23; Transcript at 1910-11; Entergys Testimony on NYS-12C; Ex. ENT000450, at 18-19; New Yorks Testimony on NYS-12C, Ex. NYS000241 at 10-11.) These potentially cost-beneficial SAMAs are identified in Entergys environmental report, the Staffs DSEIS, and the FSEIS. (See, e.g., Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Indian Point 31 The baseline PRA is an analysis without any of the potential mitigating strategies imposed.

(Staffs Testimony on NYS-12C, Ex. NRC000041, at 21-22; Entergys Testimony on NYS-12C; Ex.

ENT000450, at 18-19; New Yorks Testimony on NYS-12C, Ex. NYS000241 at 10-11.))

32 Each mitigation measure is evaluated independently from all the other mitigation measures.

Transcript at 2235-36. As a result, multiple potentially cost-beneficial measures may address substantially the same risk through slightly different means. Id. thus, the selection of one mitigation measure fundamentally changes the benefit for all the remaining mitigation measures because the overall plant risk is reduced and the specific risk that the unselected mitigating measures is smaller. Id.

Nuclear Generating Units 2 and 3: Final Report (December 2010), NUREG-1437, Vols. 1-3, (FSEIS), Ex. NYS00033B, at 5 5-9; Ex. NYS000133C, at 5-10; Ex. NYS0001331, at G-35

- G-36, G G-44, G G-49.) These potentially cost-beneficial SAMAs are then reviewed by the Staff to determine if they are related to the scope of review for license renewal, in other words do they mitigate against the aging effects for passive long-lived components with safety or safety-related functions. (FSEIS, Ex. NYS000133I, at G G-49.) Those SAMAs that are not related to the scope of license renewal are then dispositioned as not required for license renewal. (Id.) They are not imposed as part of the license renewal process, although they might be pursued as a cost-justified backfit or implemented as part of the licensees on-going improvement process. (Id.)

5.35 The PRA, which forms the basis of the SAMA analysis, is divided into three discrete elements. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 21; Transcript at 2341.)

The first portion of a PRA analysis is commonly referred to as Level 1. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 21; Transcript at 2341.) The Level 1 portion of the analysis concentrates on the plants responses to internal event initiators to identify what combinations of plant failures can lead to core damage and the frequency of each of these accident sequences.

(Staffs Testimony on NYS-12C, Ex. NRC000041, at 21; Transcript at 2341.) Level 2 of the analysis concentrates on how each of these accident sequences may progress and lead to containment failure with a potential release into the environment, called the source term.

(Staffs Testimony on NYS-12C, Ex. NRC000041, at 21; Transcript at 2341.) Level 2 has been primarily analyzed using one of two computer codes in the United States - Methods for Estimation of Leakages and Consequences of Releases (MELCOR) and Modular Accident Analysis Program (MAAP). (Staffs Testimony on NYS-12C, Ex. NRC000041, at 24.) Level 3

of the analysis33 utilizes the source terms determined from the Level 2 analyses along with site-specific information, which includes the surrounding population, meteorological data, land use and valuation, to estimate the present value of the off-site consequences of a particular accident scenario or scenarios. (Id. at 21, 25.) The Level 3 analysis is performed with the MELCOR Accident Consequence Code System 2 (MACCS2) in the U.S. (Id. at 25; Entergys Testimony on NYS-12C, Ex. ENT000450, at 24-25; New Yorks Testimony on NYS-12C, Ex. NYS000241, at 11-12.) MACCS2 models the dispersion of radionuclides throughout the 50-mile radius modeled area centered on the Indian Point site. (Staffs Testimony on NYS-12C, Ex.

NRC000041, at 25-26, 26 n.8; Transcript at 1935; Entergys Testimony on NYS-12C, Ex.

ENT000450, at 31-32; New Yorks Testimony on NYS-12C, Ex. NYS000241, at 10-11.) It determines the dose incurred by the population and clean-up workers during the emergency and long-term phases of the accident, the contamination deposited, and the clean-up efforts and costs. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 37-38; Entergys Testimony on NYS-12C, Ex. ENT000450, at 32-33; New Yorks Testimony on NYS-12C, Ex. NYS000241, at 13; Transcript at 1900-02.) It is important to note that MACCS2 only calculates a portion of the costs associated with an accident.34 5.36 The MACCS2 code, itself, is divided into three modules: ATMOS, EARLY, and CHRONC. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 25-26; Entergys Testimony on NYS-12C, Ex. ENT000450, at 28-30; New Yorks Testimony on NYS-12C, Ex. NYS000241, at 33 Both of New Yorks SAMA contentions, NYS-12C and NYS-16B, challenge particular inputs into the MACCS2 code. See generally, State of New York Initial Statement of Position Consolidated NYS-12-C, at 1; State of New York Initial Statement of Position Contention NYS-16/16A/16B, at 1.

34 The SAMA analysis accounts for five types of costs (1) the monetary value of occupational doses to decontamination workers; (2) onsite decontamination costs; (3) the cost to replace lost power; (4) offsite economic costs associated with evacuation and relocation of the population, decontamination of the property, lost of use of property, and condemnation of property; (5) a monetary value associated with doses to members of the public. Staffs Testimony on NYS-12C, Ex. NRC000041, at 35. The first three items are normally referred to as on-site economic costs and are not part of the MACCS2 code analysis. Id. Items 4 and 5 are off-site economic costs and are directly calculated by the MACCS2 code or are translated into costs by a conversion factor. Id.; Transcript at 2056-57; 2197.

13-14.) The ATMOS module utilizes the source terms generated from the Level 1 and 2 PRA analysis and in combination with site-specific information disperses the contamination within the 50-mile radius modeled area.35 (Staffs Testimony on NYS-12C, Ex. NRC000041, at 25-26; Entergys Testimony on NYS-12C, Ex. ENT000450, at 28-30; New Yorks Testimony on NYS-12C, Ex. NYS000241, at 13-14.) The EARLY module of the MACCS2 code models the radioactive dose and economic consequences during the emergency phase of an accident, typically the first seven days. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 25-26; Entergys Testimony on NYS-12C, Ex. ENT000450, at 28-30; New Yorks Testimony on NYS-12C, Ex. NYS000241, at 13-14.) The CHRONC module of the MACCS2 code also uses output of the ATMOS and EARLY modules and, site-specific information to estimate the dose to population and economic costs like clean-up of the contamination, evacuation, and relocation for each meteorological condition. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 25-26, 35-37; Entergys Testimony on NYS-12C, Ex. ENT000450, at 28-31; New Yorks Testimony on NYS-12C, Ex. NYS000241, at 13-15.) The issue before the Board and as presented by New York and its witness is a challenge to the selection of two inputs into the MACCS2 code namely, CDNFRM and TIMDEC.36 (Transcript at 2054-55.) These are both inputs into the CHRONC module. (Id.)

5.37 Typically, the external events (e.g., plant fires and seismic events) impact on the SAMA analysis is accounted for by a separate multiplier of the plants current internal events CDF that is typically determined from the ratio between CDF including both internal and external events and a CDF including only internal events from previous risk studies that examined both 35 Although New York had originally raised challenges to the atmospheric modeling portion of SAMA analysis in NYS-16B and sought summary disposition on this issue that was denied by this Board, New York subsequently dropped all challenges to the atmospheric modeling portion of the MACCS2 code by stipulation. State of New York, Entergy Nuclear Operations, Inc., and NRC Staff Joint Stipulation, at 1-2 (Jan. 23, 2012).

36 Until New York filed its initial statement of position and Dr. Lemays pre-filed testimony, the challenge articulated by New York was limited to the decontamination costs. New York had not previously raised a challenge to the TIMDEC through any of its previous filings.

internal and external events. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 22; FSEIS, Ex. NYS000133I, at G-17.) Further, uncertainties are accounted for by a separate multiplier developed from the ratio between the 95th percentile CDF and the mean CDF. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 22; FSEIS, Ex. NYS000133I, at G-45; Transcript at 2219-20, 2230-33; Entergys Testimony on NYS-12C, Ex. ENT000450, at 47-48.) Sensitivity studies are also typically developed for factors that may alter the SAMA analysis conclusions given small changes in the input. (FSEIS, Ex. NYS000133I, at G-1; Staffs Testimony on NYS-12C, Ex. NRC000041, at 36; Transcript at 2076-79, 2165, 2308-09, 2311, 2516-18.) The Staff considers any SAMAs that are identified under analysis including external events, uncertainty, and sensitivity studies to be potentially cost-beneficial and therefore subject to the additional evaluation to determine whether the strategy falls within the scope of license renewal and should be imposed. (See, e.g., Transcript at 1923-25.) In Entergys SAMA analysis, the external events multiplier combined with the uncertainty multiplier was 8 for both plants, and the uncertainty multiplier alone was 2.1 and 1.4 for IP2 and IP3, respectively. (Entergys Testimony on NYS-12C, ENT000041, at 47-48.) Combined, the multiplier added an additional order of magnitude to the potential benefit from any SAMA. (Id.)

4. Entergys SAMA Analysis 5.38 Entergys SAMA analysis at issue before the Board was unremarkable, followed the established guidance, and was generally consistent with the SAMA analyses conducted in other license renewal applications. Entergys SAMA analysis relied on the NRC-endorsed guidance, NEI 05-01, Rev. A., and used the established MACCS2 code for performing the analysis. (Entergys Testimony on NYS-12C, Ex. ENT000450, at 46.) Even New Yorks expert expressed nearly unmitigated support for the MACCS2 code and described the codes data inputs based on a per capita as a brilliant insight. (Transcript at 2136; New Yorks Rebuttal Testimony on NYS-12C, Ex. NYS000420, at 6.) In order to make use of the MACCS2 code, Entergy assembled significant amounts of site-specific information including meteorological

conditions, land-use and valuation, population estimates projected out to 2035, source terms based on each plants current configuration, etc. (Entergys Testimony on NYS-12C, Ex.

ENT000450, at 28-42; Staffs Testimony on NYS-12C, Ex. NRC000041, at 14, 25-26, 35-37; Transcript at 1938-42.) The two inputs subject to New Yorks challenge as presented to the Board under questioning represent a miniscule fraction of the inputs necessary to perform a reasonable SAMA analysis. (Entergys Testimony on NYS-12C, Ex. ENT000450, at 28-42; Staffs Testimony on NYS-12C, Ex. NRC000041, at 14, 25-26, 35-37; Transcript at 1938-42.)

These inputs selections must be carefully balanced with the selection of other inputs for the MACCS2 code in order to ensure that valid, reliable, and reasonable results are produced.

5.39 New York disputed whether the values selected by Entergy for TIMDEC and CDNFRM were appropriate and reasonable under NEPA; Dr. Lemay emphasized that only these two inputs had appreciable impact based on his analysis. (Transcript at 2054-55.) New Yorks own analysis, once it is corrected for errors, confirms that Entergys selections were not only reasonable but perhaps conservative.37 5.40 It is important to place Entergys selections of these values into perspective.

Both the current release and the version of the MACCS2 code used by Entergy in its analysis contain hard-coded limitations on input values. (Entergys Testimony on NYS-12C, Ex.000450, at 73-77; Review of Indian Point Severe Accident Off Site Consequence Analysis, ISR Report 13014-01-01 (ISR Report), International Safety Research (Dec. 21, 2011), Ex. NYS000242, at 22, 24-25; Transcript at 2268-70.) For TIMDEC, values are limited to 1-year or less. (Entergys Testimony on NYS-12C, Ex.000450, at 73-77; ISR Report, Ex. NYS000242, at 22, 24-25; Transcript at 2268-70.) For CDNFRM, the values are limited to $100,000 per person.38 Dr.

37 See Section III.C.1.1.A.6 and III.C.7 infra.

38 The CDNFRM input values are expressed as dollars per person in order to be able to account for increased costs resulting from increased density. For ease of reference and notation, the CDNFRM values expressed through the remaining text will drop the per person notation, but the values expressed will still be dollars per person.

Lemay described making changes to the code input limits as trivial. (Transcript at 2268-69.

See also Entergys Testimony on NYS-12C, Ex.000450, at 73-77; ISR Report, Ex. NYS000242, at 22, 24-25.) These changes are anything but trivial and are amply demonstrated by Dr.

Lemays apparent confusion over the MACCS2 codes basic operation including conservation of mass among others. (Transcript at 2251-52, 2131-35, 2143-45, 2148-49, 2176-77.) Although Dr. Lemay is likely correct that modification of the code to allow inputs outside the acceptable ranges is trivial in nature, the impact from those changes and the selection of out-of-range inputs is very complex. Predicting the impact from these changes to MACCS2s delicate balance between decontamination decisions, habitability criteria, the timing of a populations return, the impact from ongoing costs over numerous years, and depreciation are not determinable based on New Yorks anecdotal evidence. (Id.) Dr. Lemay, as a point of trying to show that his changes did not alter the codes basic function, chose to test the code against sample input problems to verify its output. (New Yorks Rebuttal Testimony on NYS-12C, Ex.

NYS000420, at 54-55.) While this might show that the modified MACCS2 code continued to perform consistently for the allowable input range, this provides no evidence or reason to believe that the code as modified provides reasonable and reliable results for inputs that are outside the previous limits, especially for Dr. Lemays suggested input values that often exceed the previous ranges by orders of magnitude. (See Entergys Testimony on NYS-12C, Ex.

ENT000450, at 75-77.)

5.41 Assuming for the moment that Dr. Lemays changes to the MACCS2 code did not introduce substantial errors into the code, the inputs selected by Entergy for TIMDEC and CDNFRM have a long history of use for exactly this kind of analysis and continue to be used in the most recent state of the art reactor consequence accident (SOARCA) analysis by the NRC Staff on these and similar types of issues. (Staffs Testimony on NYS-12C, Ex. NRC000041, at

89-90; Transcript at 2158-61.39) Beginning first with CDNFRM, Entergy selected values of

$5,148 and $13,824, respectively for DFs of 3 and 15. (Entergys Testimony on NYS-12C, Ex.

ENT000450, at 49.) New York alleges that these values were selected uncritically from Sample Problem A and are unsupported for use with respect to clean-up efforts in and around New York City. (New Yorks Testimony on NYS-12C, Ex. NYS000241, at 63.) Entergys values, however, are the inflation adjusted values that were utilized in NUREG-1150, Ex. NYS000252A-D, to evaluate five nuclear power plants, including Zion. (Transcript at 1950-53; 2347-51, 2379.)

Zion has a similar population density as Indian Point, even though it has about half of the total population.40 NUREG-1150 was and remains one of the seminal studies on reactor accident consequences. These NUREG-1150 values continue to be utilized in the NRCs current analysis involving severe accident mitigation analysis and PRA analysis including the SOARCA and with the Staffs responses to tasking related to Fukushima Dai-ichi. (Transcript at 2274.)

5.42 The per capita nature of the input values scales the cost for cleaning the same grid element based on the total population. (Transcript at 1949, 2136; Staffs Testimony, Ex.

NRC000041, at 41.) For example, a home with four people residing in it would incur decontamination costs of $20,592 and $55,296, respectively for a decontamination factor41 39 Mr. Harrison discusses, at some length, the origin and importance of NUREG-1150, which Entergy described as a seminal study. The analysis performed as part of developing NUREG-1150 provided substantial support undergirding the basis of the 10 C.F.R. Part 51 rulemaking and the GEIS.

Transcript at 2158-59. Mr. Harrison continues to elaborate that the Commission has repeatedly reaffirmed the analysis from the NUREG-1150 studies as being the best available information and, at times, better than information developed subsequently. Id. at 2160.

40 Zion has half of the total population but similar density to Indian Point due to its location on the shores of Lake Michigan. (Transcript at 2379.)

41 The DF is a parameter in MACCS2 that is intended to represent an amount of decontamination achieved. Staffs Testimony on NYS-12C, Ex. 000041, at 40-41. Two DFs were used in the Indian Point analysis including a DF of 3 and a DF of 15. Id. The DF is represents the physical removal of radioactive material. The DF is calculated with the following equation:

DF = Ci/Cf where DF is the decontamination factor and Ci and Cf are the surface contamination levels before and after the decontamination step, respectively. Id.

(DF) of 3 and 15. (Transcript at 1949, 2136; Staffs Testimony, Ex. NRC000041, at 41.) For a similar contamination level, a high-rise of 1000 people would incur costs of $5,148,000 and

$13,824,000.42 (Transcript at 1949, 2136; Staffs Testimony, Ex. NRC000041, at 41.) This per capita scaling explicitly addresses New Yorks challenges, namely that New York City would be much more expensive to decontaminate than nearly any other locale. Even New Yorks expert, admired the ingenuity of the per capita basis to make automatic adjustments to the cost of decontamination among other modeled issues. (Transcript at 2136.) This linear scaling of costs is by its very nature conservative as the next persons cost, especially in high density areas, is not equivalent to the first persons marginal costs. The marginal costs for each additional person would be expected to decrease. (See Transcript at 2136-44.)

5.43 Entergy selected TIMDEC values of 60 days and 120 days for DFs of 3 and 15.

Similar to inflation adjusted values for CDNFRM, these values have received widespread use both historically and in more recent reactor consequence analysis. (Transcript at 2274.) These values are selected to represent the wide range of accidents that are considered by Entergys SAMA analysis. (See Transcript at 1907, 1927-28.) These values need to be appropriate for both unlikely events with large releases and more likely events that result in little or no contamination.43 These values, selected by Entergy, represent the average time to complete the decontamination rather than the maximum. (Transcript at 1907, 1927-28.) As such, they represent a reasonable selection for use in a SAMA analysis.

5. The Staffs Review of Entergys SAMA Analysis 5.44 The Staff reviewed Entergys SAMA analysis conducted as part of the Environmental Report submitted in support of the LRA and resubmitted to correct for errors 42 These costs are presented simply for comparison and do not account for additional logical decisions within the MACCS2 code regarding the total value of the property or the habitability criteria.

43 Dr. Lemay admits to tilting his analysis to the worst accidents because he thinks that these are the most important for safety. Transcript at 2179-80. But, this ignores the purpose of a NEPA analysis, which is to provide a realistic best estimate type of analysis. NEPA does not require a conservatively biased or worst case analysis. Transcript at 1907, 1937.

identified by the Staff. (See FSEIS, Ex. NYS000133C, at 5-4, Ex. NYS000133I, at G-1.) As part of that review, the Staff examined the input and output files generated by the MACCS2 code, the selection of analyzed mitigation measures, and the cost-benefits analysis among other issues. (See FSEIS, Ex. NYS000133C, at 5-4, Ex. NYS000133I, at G-1; Staffs Testimony on NYS-12C, Ex. NRC000041, at 5; Transcript at 2347.) During the review, the Staff identified issues that prompted requests for additional information, further analysis, and corrections to some of the input files.44 (See FSEIS, Ex. NYS000133C, at 5-4, Ex. NYS000133I, at G-1.) As a result of these changes requested by the Staff in various aspects of the SAMA analysis, including the updated meteorological files, Entergy identified additional mitigation measures being potentially cost-beneficial in the SAMA analysis. (See FSEIS, Ex. NYS000133I, at G-2.)

5.45 The Staff, along with its experts, carefully reviewed the CDNFRM and TIMDEC inputs selected by Entergy and found them reasonable based on the available information and appropriate for a NEPA analysis at IP2 and IP3.45 (Staffs Testimony on NYS-12C, Ex.

NRC000041, at 12-16.)

5.46 The Staff reviewed the information and comments provided by New York and its previous consultant, Mr. David Chanin. Mr. Chanin asserted that CDNFRM values were too low because information he identified in the Site Restoration Study indicated that these values should be higher. (FSEIS, Ex. NYS000133I, at A1029.) The Staff and its experts explained in the FSEIS, their pre-filed testimony, and on Board questioning that Mr. Chanins assertions regarding the decontamination costs based on the Site Restoration Study were misplaced because it relied on plutonium decontamination costs, inappropriately extrapolated the 44 As discussed previously, the Staff identified errors in Entergys initial analysis with respect to its meteorological inputs that resulted in the identification of new cost-beneficial SAMAs, once corrected.

45 With respect to TIMDEC, New York did not raise a challenge to the TIMDEC parameter until the filing of its initial statement of position and pre-filed testimony. Compare State of New York Initial Statement of Position Consolidated Contention NYS-12-C, Ex. NYS000240, at 30, with New York State Notice of Intention to Participate and Petition to Intervene, at 140-45 (Nov. 30, 2007). The issue of TIMDEC was not raised in any of timely filed comments on the DSEIS. See FSEIS, Ex. NYS000133I, at A-984 - A1043.

information to New York City and its surrounds, and did not account for the lack of rigor in the study itself. (FSEIS, Ex. NYS000133I, at G G-24; Staffs Testimony on NYS-12C, Ex.

NRC000041, at 27-28; Transcript at 2012, 2099.)

5.47 With respect to TIMDEC and after New York raised the issue for the first time in its pre-filed testimony, the Staffs experts and Entergys experts addressed the issue in their pre-filed testimony and in response to Board questioning. (Staff Testimony on NYS-12C, Ex.

NRC000041, at 89-94; Transcript at 2200-02, 2209.) Entergys SAMA analysis used a TIMDEC of 60 days and 120 days for DF of 3 and 15. (Staff Testimony on NYS-12C, Ex. NRC000041, at 88-89; Transcript at 2048.) As the Staffs experts explain these times are designed to represent a probability weighted average of the times for all of the accident scenarios. (Staff Testimony on NYS-12C, Ex. NRC000041, at 90; Transcript at 1907, 1922, 2359-60.) Dr. Bixler examined and explained the extent of contamination for each of the source term groups used by Entergy in its SAMA analysis. (See Ex. NRC000060, at 1, 6, 9, 12, 15, 18, 21, 24.) It is clear from that analysis that the vast majority of accidents results in relatively low contamination over small areas. (Id.; Staffs Testimony on NYS-12C, Ex. NRC000041, at 90.) For example, source term group 1, resulted in no required decontamination; source term group 7 only involved 13 mi.2 (Ex. NRC000060, at 3.) Source term group 8 only involved 11 mi.2 (Id. at 24.) Dr. Bixlers analysis also shows that other source term groups have more extensive contamination areas including 956 mi.2, 447 mi.2, 93 mi.2, 363 mi.2, and 91 mi.2 (Id. at 6, 9, 12, 15, 18, 21.) It is important to understand that these areas do not account for the probability of each source term group. (Id.) Once the probability for each accident is evaluated, these larger areas are reduced to clean-up areas more on the order of a small yard. (Id.)

Table 1: Probability Weighted Areas Requiring Decontamination Source Term Group Probability Area (miles2) Probability Weighted (incident/year) Area (miles2/year) 1 1.19x10-5 0 0 2 6.5x10-7 956 6.21x10-4 3 4.23x10-7 447 1.89x10-4 4 1.11x10-7 93 1.03x10-5 5 6.88x10-7 363 2.49x10-4 6 3.43x10-6 91 3.12x10-4 7 6.43x10-7 13 8.35x10-6 8 5.82x10-8 11 6.40x10-7 (Id.)

5.48 Looking at the estimated average times of 60 days and 120 days, it is inherently reasonable to expect that DFs of 3 and 15 could be accomplished in these time frames. (Id.;

Staff Testimony on NYS-12C, Ex. NRC000041, at 89-90; Transcript at 2241.) Thus, the selection of those timeframes is reasonable under NEPA.

5.49 As we explain later, New Yorks analysis and arguments for longer TIMDEC are based on trying to address the worst case scenarios that New Yorks expert emphasizes as the most important accidents,46 which is clearly not required under NEPA. Under NEPA, New Yorks admitted focus of these worst or worse case accidents is not required and would, in fact, undermine NEPAs main goal to provide a best estimate analysis of the potential impacts without prematurely dismissing the low consequence events.47 5.50 Finally with respect to timely comments on the DSEIS, the Staff evaluated and responded to New Yorks comments with respect to the particle size of contaminants and the Site Restoration Study.48 (See FSEIS, Ex. NYS000133I, at A-984 - A-1043; compare FSEIS, Ex. NYS000133I, at G G-24.) Mr. Chanin, New Yorks former consultant, asserted that the 46 Transcript at 2179-80.

47 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Station), CLI-10-11, 71 NRC 287, 315 (2010).

48 The untimely comments submitted by New York are addressed separately.

decontamination costs for non-farmland on a per captia basis used unreasonably low values because the analysis did not accurately scale up the costs to reflect New York Citys density and the difficulty of decontaminating small particle sizes. (FSEIS, Ex. NYS000133I, at A-984 -

A-1043.) In the FSEIS, the Staff analyzed and responded to Mr. Chanins claims in detail and determined that Mr. Chanins comments would not require changes to Entergys SAMA analysis. (Id. at G G-24.)

5.51 First, Mr. Chanin asserted that Entergys SAMA analysis assumed unrealistically large particles and that accounting for smaller particles would have increased the costs for clean-up. As explained in the FSEIS and by Dr. Bixler, Mr. Chanins assertions share many of the same types of flaws that New Yorks testifying expert made in his analysis, namely concentrating on a single aspect of the decontamination effort based on particle size without fully examining its related impact on deposition rates, for example. (FSEIS, Ex. NYS000133I, at G G-24, G-28; Staffs Testimony on NYS-12C, Ex. NRC000041, at 48-50.) Dr. Bixler explains that smaller particles are likely to result in less deposition in the modeled area.49 (Staffs Testimony on NYS-12C, Ex. NRC000041, at 50-57.) The lower deposition rates directly translate into less deposition and less decontamination being required. (FSEIS, Ex.

NYS000133I, at A-984 - A-1024.) The decrease in required decontamination results in lower expenses overall. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 50-57.) Dr. Bixler specifically examined the particle size modeled in Entergys SAMA analysis in order to evaluate whether it was appropriate for IP2 and IP3. (Id.) He explains that the deposition velocity selected by Entergy corresponds to an aerodynamic diameter of approximately 6 micrometers (3 micrometers physically).50 (Id.) The Staffs expert explains that although this particle size is near the high-end of the spectrum for a nuclear accident, it falls within New Yorks definition of a 49 The deposition rates based on particle size are shown below in Figure 1, infra.

50 The difference in aerodynamic diameter and physical diameter are primarily related to the specific gravity of the particle and its overall shape. Staffs Testimony on NYS-12C, Ex. NRC000041, at 50-57.

small particle. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 50-57.) This particle size results in a conservative deposition over the modeled area over a smaller particle size. (Id.) Dr.

Bixlers chart shows that deposition rates decrease rapidly with smaller particles. (Id. at 54-55)

Figure 1. Effect of aerodynamic aerosol diameter on deposition at distances up to 80 km from the release location. (Id. at 54.)

Entergys choice of aerosol size results in higher consequences and makes each mitigation measure more likely to be cost-beneficial. (Id at 54-55.) Had Entergy used a lower deposition velocity, it simply would have reduced the level of contamination deposited and, thus, reduced the decontamination effort required. (Id.)

5.52 Second, Mr. Chanin suggested the Site Restoration Study51 (Ex. NYS000249) shows that the costs used for decontamination in Entergys analysis were too low. (FSEIS, Ex.

NYS000133I, at A-984 - A-1024.) The Staff, in the FSEIS, provided appropriate responses to New Yorks comments and supplemented this discussion during the Board questioning. (See, e.g., Id. at G G-25.) Even New Yorks testifying expert agreed that the Site Restoration 51 D. Chanin & W. Murfin, SAND96-0957, Site Restoration: Estimate of Attributable Costs From Plutonium Dispersal Accidents (Site Restoration Study) (May 1996), Ex. NYS000249.

Study, based on a nuclear weapons accident, was not a good analogue for a nuclear reactor accident. (Transcript at 2012.)

5.53 The Staffs experts and Entergys experts both explained that the Site Restoration Study was not applicable to a nuclear reactor accident because it was studying nuclear weapons accidents. Nuclear weapons accidents are primarily concerned with plutonium as a contaminant instead of cesium.52 (Staffs Testimony, Ex. NRC000041, at 13, 16, 44-46; Entergys Testimony, Ex. ENT000450, at 98-100.) The Staffs experts explain that plutonium is more difficult to decontaminate for a myriad of physical and radiological reasons when compared to the primary contaminant from a nuclear accident, cesium. (Staffs Testimony, Ex.

NRC000041, at 46-48; Entergys Testimony, Ex. ENT000450, at 98-100.) Dr. Bixler explains that the increased difficulty with plutonium begins with simply finding it. (Transcript at 2130.)

Plutonium, an alpha emitter, is significantly more difficult to detect than a gamma emitter, like cesium. (Id.) The particles created from a nuclear weapons accident are physically different from a nuclear reactor accident because of the aerosolization process. (Staffs Testimony, Ex.

NRC000041, at 14.) Nuclear weapons accidents produce their particles based primarily on a mechanical processes, while reactor accidents primarily involve a thermalization process. (Id.)

Dr. Bixler continued explaining that this different aersolization process results in very different contamination loadings over a modeled area. (Id.) The mechanical processes results in heavy contamination over a more localized area, whereas the thermal processes results in lighter contamination spread over larger areas. (Id.) The requirements for cleaning-up plutonium are significantly more stringent due to plutoniums radiological and biological toxicity. (Id. at 15, 47.)

Mr. Jones explains that for the same radiological contamination levels, plutonium has more stringent clean-up requirements. (Id.) Since plutonium has a significantly longer half-life, it must be removed by decontamination, but cesium can, under certain circumstances, be allowed 52 Dr. Lemay, New Yorks testifying expert, seems to agree with this conclusion. Transcript at 2108.

to decay in place. (Id.) The requirements for plutonium clean-up are fifty times more stringent than cesium. (Id. at 47.)

5.54 The Staffs experts explained that the Site Restoration Studys analysis was not performed rigorously. (Id. at 45.) New Yorks related studies warned that their results should not be applied to environments like New York City. (Id. at 51-52.) The Staffs experts explain that it would not be appropriate to extend the Site Restoration Study to Indian Point due to the rigor of the analysis, the primary contaminant, and the different aerosolization process. (Id.) As a result, extrapolating the Site Restoration Study to a reactor accident such as Indian Point is unreliable. (Id. at 45.) Thus, adopting New Yorks assertions in the SAMA analysis would make any conclusions inherently unreliable and unreasonable.

6. Dr. Lemays Extension of the TIMDEC in Excess of One-Year Results in Unreasonable Results From the MACCS2 Code 5.55 Dr. Lemay, New Yorks testifying expert, raises two challenges to the inputs used in the SAMA analysis.53 He challenges the TIMDEC parameter (time to complete decontamination costs) and CDNFRM parameter (decontamination costs for non-farm land).54 (Transcript at 2054-55.)

5.56 The MACCS2 code allows for values of TIMDEC to range between 0 days to 1 year. (Entergys Testimony, Ex. ENT000450, at 15, 73-75, 77-80; Transcript at 2199-2202, 2273-74.) In order to input values outside of this range, Dr. Lemay modified the MACCS2 code.

This modification upsets the delicate balance between decontamination decisions, timing, and dislocation costs incurred by the displaced persons. (Entergys Testimony, Ex. ENT000450, at 15, 73-75, 77-80; Transcript at 2199-2202, 2273-74.) This fundamentally causes the MACCS2 53 Dr. Lemays initial analysis and criticisms identified a number of input parameters that he thought were inappropriate or insufficiently conservative. See generally ISR Report, Ex. NYS000242.

Upon Board questioning, Dr. Lemay agreed that his concerns were primarily captured in only two input parameters, TIMDEC and CDNFRM. (Transcript at 2054-55.)

54 Dr. Lemays criticism of CDNFRM is discussed fully in Section III.C.7 infra.

code to make inefficient and illogical decisions regarding decontamination.55 The costs for decontamination would be spread over a number of years but because MACCS2 was designed to incur all the decontamination costs in the first year it does not properly discount costs beyond the first year. (Transcript at 2199-2202.) Dr. Lemays fundamental change to the logical decision process of the MACCS2 code renders the results he generates unreasonable because he failed to account for all the consequences that directly flow from allowing out-of-range inputs.

(Entergys Testimony, Ex. ENT000450, at 15, 73-75, 77-80; Transcript at 2199-2202, 2273-74.)

5.57 Under Board questioning and in his pre-filed testimony, Dr. Lemay indicated that he did not believe that times of 60 and 120 days for DF of 3 and 15, respectively, were accurate.

(See New Yorks Testimony on NYS-12C, Ex. NYS00241, at 52-55; Transcript at 2182, 2203.)

Specifically, Dr. Lemay primarily based his conclusions on the events unfolding in Japan for the clean-up of Fukushima Dai-ichi accident, Chernobyl, and his estimate of a reasonable number of people that could be gathered for a decontamination effort. (New Yorks Testimony on NYS-12C, Ex. NYS00241, at 52-55; Transcript at 2182, 2203.) Even here, Dr. Lemays premise is that Japan is taking more than a year to conduct decontamination. This again ignores that the events in Japan represent a worst or worse case analysis complicated by the critical issue that Japan is recovering from one of the largest earthquakes in recorded history and a tsunami that even without the reactor accidents devastated the Japanese countryside. (Transcript at 2382-83.) It is these natural events that are driving the majority of the costs for Japans clean-up and recovery times. (Id.) Dr. Lemays analysis seems to assume that each of the variables used by MACCS2 to predict costs is independent. (Transcript at 2251-52) 5.58 The Staffs witnesses and Entergys witnesses addressed Dr. Lemay criticisms of at the choices for the TIMDEC values and explained why simply changing the allowed input 55 Dr. Lemays alteration to allow for extended decontamination efforts failed to modify the logical decision tree to account for normal and obvious out-growths of multi-year decontamination efforts.

Entergys Testimony, Ex. ENT000450, at 15, 73-75, 77-80; Transcript at 2199-2202, 2273-74.

parameters without further modifications to maintain the logic inherent in the codes calculations, the dependent nature of many of the input parameters, and the temporal-spatial averaging fundamental to this type of analysis, results in unreasonable conclusions that are not supportable.

a. Extending the Input Parameters to Beyond the MACCS2 Codes Design Limit of 1-Year Interferes with the Fundamental Logic Coded Into MACCS2 5.59 The Staffs experts and Entergys experts explained that the MACCS2 code utilizes an incremental and linear decision process for determining when decontamination is needed, what level of decontamination is required, and when people would be able to return to homes and businesses.56 (See Transcript at 2272; Entergys Testimony, Ex. ENT000450, at 77-80.) Under the MACCS2 code logic, decisions to decontaminate are based solely on the initial levels of contamination found on the site and the appropriate level of decontamination is based on achieving the required level at the end of the decontamination period (i.e. the MACCS2 code does not account for the impact of decay on the decision to decontaminate).

(Transcript at 2199-2202; see id. at 1982-83, 2272-74.) Put differently, MACCS2 does not allow populated areas to be interdicted without also being decontaminated. This logic genereally works well when the decontamination time is 1-year or less. Therefore, the decision logic of MACCS2 code becomes unreasonable, as the time necessary for decontamination exceeds 1-year and could potentially stretch out over 30 years, as Dr. Lemay asserts. (Id.; Staffs Testimony on NYS-12C, Ex. NRC000041, at 41.) This is a matter of perspective. The purpose of decontaminating a particular area is to allow people to return. (Staffs Testimony on NYS-56 Dr. Lemays use of extended decontamination efforts inherently requires a non-linear decision process and a complex optimization scheme in order to weigh the decisions regarding the effort of decontamination against the expected natural decay during the decontamination efforts, the costs for continuing to displace residents, and impacts from depreciation, among others. Transcript at 2200-03. In many ways, the outputs produced by the MACCS2 code with Dr. Lemays alterations are illogical because the code would preclude people from returning to their homes long after the area has been restored to habitability. Transcript at 2207-09. These inconsistencies are avoided in the current versions of the unaltered code because it forces decontamination to be accomplished before these difficult optimization schemes would need to be implemented. Transcript at 2200-03.

12C, Ex. NRC000041, at 28.) This key aspect of habitability is not a function of the type of decontamination, the level of decontamination, or the time that decontamination may take. It is simply a function of the expected dose to an inhabitant. (Id. at 37; Transcript at 1981-84.) Dr.

Lemays suggestion for extended decontamination periods ignores the fundamental purpose of decontamination. Under Dr. Lemays scenarios, the decision to decontaminate and the level of decontamination required would necessarily be based on the expected conclusion of decontamination efforts, which after 15 years would necessarily need to account for the intervening decay, weathering, and other natural removal mechanisms. (Transcript at 2273; see id. at 1982-83, 2199-2202.) Thus, the level of decontamination required will be fundamentally less for a multi-year process than for a process where decontamination is completed over a single year. (Id.) Dr. Lemays extension of the allowable TIMDEC inputs will result in significant and excessive conservatism that is based on unreasonable decisions about decontamination efforts and levels that are not supportable in the altered construct of Dr. Lemays version of the MACCS2 code. (Id. at 2273; compare id. at 2175.) Dr. Lemays need to make fundamental alterations to the MACCS2 code in order to support his assertions regarding Indian Point run contrary to his praise for the MACCS2 codes use in consequence analysis. (Compare Id. at 2273 with id. at 2175.)

b. TIMDEC Is Not Independent of the Other Decontamination Parameters 5.60 The MACCS2 codes logic assumes that all of the costs of decontamination are spent in the first year after the accident. (Id. at 2209, 2273) This necessarily implies that decontamination costs do not need to be discounted in order to determine their net present value. (Id. at 2209.) Under Dr. Lemays scenario, decontamination costs could be spread over 30 years. (Id. at 2252, 2273, 2383-84, 2200-02.) In order to be able to compare this extended cash flow for decontamination costs over multiple years, the costs incurred in future years would need to be discounted back to their present value. (Id. at 2200-02.) In fact, Dr. Bixler estimates that accounting only for the time value of these yearly outlays for decontamination would

potentially reduce Dr. Lemays CDNFRM by 73% of his asserted values. (Id.) Dr. Lemay, under Board questioning, suggested that these future cash flows would not need to be discounted because the costs of the decontamination in future years would fundamentally rise in proportion with the discount rates. (Id. at 2202.) While this might be true under a scenario where each year of decontamination effort is negotiated independently just prior to commencement of efforts, that fundamentally misunderstands the scenario contemplated by MACCS2 where the code expends all the costs of a multi-year clean-up in year 1. (Id. at 2200-02.)

5.61 Extending the value of TIMDEC compromises the codes ability to make reasonable decisions as to whether to decontaminate an area or simply condemn the property.

The unmodified MACCS2 code as run by Entergy and the modified version run by Dr. Lemay apply a 20% depreciation rate to property while it is interdicted for decontamination. (Id.) In other words, the property loses 20% percent of its value for every year that it is not being maintained. (Id. at 2115.) The result of this depreciation rate and Dr. Lemays extended decontamination times is that MACCS2 will condemn properties rather than attempt decontamination for many properties when the time for decontamination extends for more than a few years. (Id.) This again produces unreasonable results. Dr. Lemays changes to the MACCS2 code short-circuit important logic for its decontamination decisions that have been built into the code and render its results unreliable.

c. Dr. Lemay Overweights His Inputs to Account for the Accidents Similar to Worst Case Scenarios Instead of the Entire Spectrum of Accident Scenarios 5.62 The SAMA analysis produces an average consequence for each source term group. As such, the input parameters should reflect not just the worst case scenario but all the scenarios. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 89-90; Entergys Testimony on NYS-12C, Ex. ENT000450, at 12; Transcript at 2139-40, 2146, 2153-55.) For example, the TIMDEC suggested by Dr. Lemay needs to be representative of accidents like Fukushima Dai-ichi but also accidents like Three Mile Island; it must represent all the modeled accidents.

(Staffs Testimony on NYS-12C, Ex. NRC000041, at 89-90; Entergys Testimony on NYS-12C, Ex. ENT000450, at 12; Transcript at 2139-40, 2146, 2153-55.) Dr. Lemay argues that for a DF of 15, the appropriate value for TIMDEC ranges from 4 to 30 years. (New Yorks Rebuttal Testimony on NYS-12C, Ex. NYS000420, at 51.) Dr. Lemay explains that he selected these values because they represent the higher consequence events, which he feels are more important or more safety significant. (Transcript at 2179-80.) This is not a safety analysis. Dr.

Lemays intense focus on a safety analysis misapprehends the purpose of a SAMA analysis under NEPA. As all the experts agree, NEPA requires a best estimate analysis that identifies any issues resulting from the limitations in our knowledge or the tools used to study it.

(Transcript at 1907, 1937.) The SAMA analysis is being conducted under the rubric of NEPA and should not be conservatively biased. (Id.) The Staffs experts testified that source term groups produce a wide variety of contamination levels over the modeled area. (Transcript at 2145-46; Staffs Testimony on NYS-12C, Ex. NRC000041, at 51-57; Ex. NRC000060, at 1, 6, 9, 12, 15, 18, 21, 24.) The more probable accident events result in minimal contamination over a small area, DF of 3 and 13 mi2 at 6.4x10-7 incidents per year (Ex. NRC000060 at 21.) Even the larger events are small on a probability weighted basis. (Id. at 6.) Thus, the TIMDEC values need to reflect this reality that, although no one expects 60 and 120 days for the clean-up in the event of an actual major accident resulting in a significant release to the environment, the clean-up these numbers represent is a reasonable estimate of the average clean-up time for all accidents. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 88-90.) It is reasonable to expect that some accidents would be decontaminated more quickly while others take longer, even significantly longer. However, this wide variation in possible decontamination times amply demonstrates that need to use average times. As shown in Table 1, supra, many source term groups results in minimal contamination over small areas. These minimal contamination accidents are more likely scenarios and correctly reduce the average time for decontamination.

Dr. Lemay explained that he ignored these low consequence events because they were not

important to safety; he was concerned only with the high consequence events that were, in his opinion, important to safety. (Transcript at 2179.) Dr. Lemays focus on these worst or worse case type accidents defeats the purpose of this NEPA analysis which is to provide a best estimate of all accidents. (Id. at 1937.)

5.63 We find that Dr. Lemays assertions regarding the TIMDEC represent an excessive level of conservatism, whereas the TIMDEC utilized by Entergy in its analysis and reflected in the Staffs FSEIS are reasonable estimates of these inputs given the uncertainty.

7. The CDNFRM Used By Entergy in Its SAMA Analysis was Reasonable 5.64 In addition to Dr. Lemays assertions regarding the TIMDEC, he also believes that cost estimates used by Entergy for each decontamination level are severely underestimated. Dr. Lemay based his analysis on four different approaches, which were referred to as the Site Restoration Study, Reichmuth, CONDO, and RISO. His initial estimates showed that CDNFRM for a DF of 3 should be $19,000 - $272,000 instead Entergys input of

$5,184. (New Yorks Testimony on NYS-12C, Ex. NYS000241, at 71.) For a DF of 15, Dr.

Lemays testified that inputs should be $90,000 - $898,000 instead of Entergys input of

$13,824. (Id.) The Staffs experts and Entergys experts identified numerous flaws in Dr.

Lemays analysis that render his assertions unreasonable under NEPA and, if corrected indicate, that Entergys inputs are reasonable and consistent with Dr. Lemays analysis. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 75-84, Entergys Testimony on NYS-12C, Ex.

ENT000450, at 92-127.)

a. Nuclear Weapons Accidents Are an Inappropriate Analogue for Nuclear Reactor Accidents 5.65 As a preliminary matter, Dr. Lemay, under Board questioning, agreed that his analysis based on the Site Restoration Study and Reichmuth were not appropriate analogs for a nuclear reactor accident. (Transcript at 2012.) As Staffs experts and Entergys experts explained, the Site Restoration Study and Reichmuth were based on decontamination after a

nuclear weapons accident with the primary contaminant being plutonium instead of cesium.57 (Staffs Testimony on NYS-12C, Ex. NRC000241, at 44-48, 69-78; Entergys Testimony on NYS-12C, Ex. ENT000450, at 68.) Plutonium clean-up is simply unlike the requirements for a nuclear reactor accident because of plutoniums extremely long half-life and hazard from ingestion from both dose and toxicity. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 46-48.) Dr. Lemay agreed that the Site Restoration study and Reichmuth were not ideal.

(Transcript at 2012.) Once the nuclear weapons accidents are properly excluded, Dr. Lemays initial analysis indicated that CDNFRM for a DF of 3 ranged from $19,000-$59,000 and for a DF of 15 $90,000 - $140,000. (Staffs Testimony on NYS-12C, Ex. NRC000241, at 44-48, 69-74; Entergys Testimony on NYS-12C, Ex. ENT000450, at 68; see generally Revisions to Tables in ISR Report 13014-01-01: Review of Indian Point Severe Accident Offsite Consequence Analysis (21 Dec 2011), Ex. NYS000430, at 6.)

b. Dr. Lemays Analysis Contained Numerous Flaws 5.66 Entergys experts and the Staffs experts identified a number of flaws in New Yorks initial analysis of decontamination costs based CONDO and its derivative analysis based on RISO. These include errors in the population densities in the 50-mile modeled area, assigning non-farm land clean-up costs to bodies of water and farm land, including compensation costs in multiple inputs to MACCS2, and failing to properly account for conservation of mass, among others. (Staffs Testimony on NYS-12C, Ex. NRC000241, at 44-48, 69-74; Entergys Testimony on NYS-12C, Ex. ENT000450, at 68; New Yorks Testimony on NYS-12C, Ex. NYS000420, at 35-53.) As shown in the following figure, Dr. Lemays initial treatment of all the land surrounding Indian Point as urban or hyper-urban is fundamentally 57 Reichmuth did evaluate one scenario with cesium in downtown Manhattan, causing the highest contamination area to be located in the highest population density areas, which was also shown to be inappropriate for comparison. (Staffs Testimony on NYS-12C, Ex. NRC000241, at 44-48, 69-78; Entergys Testimony on NYS-12C, Ex. ENT000450, at 68.)

flawed in light of the waterways and parkland. (Staffs Testimony on NYS-12C, NRC000041 at 71-72.)

Figure 2. US Department of the Interior Geological Survey Map: Peekskill Quadrangle - graphically displays large forested and surface water areas. (Id.)

5.67 In light of some of these identified discrepancies, Dr. Lemay revised his cost estimates for CDNFRM, including analysis based on nuclear weapons accidents to $15,000-

$184,000 for a DF of 3 and $71,000 - $418,000 for DF of 15. (See Revisions to Tables in ISR Report 13014-01-01: Review of Indian Point Severe Accident Offsite Consequence Analysis (21 Dec 2011), Ex. NYS000430, at 6.) Correcting for these errors reduced Dr. Lemays estimates for CDNFRM by a low of 21% to a high of 53%.58 58 This change did not account for all the errors identified by the Staff or Entergy including conservation of mass principles only acknowledged under direct Board questioning.

5.68 Removing the information related nuclear weapons accidents further reduces New Yorks estimates to $15,000-$47,240 and $71,255-$112,856, respectively. Revisions to Tables in ISR Report 13014-01-01: Review of Indian Point Severe Accident Offsite Consequence Analysis (21 Dec 2011), Ex. NYS000430, at 6.) These further reductions of approximately 20% are in addition to reductions from Dr. Lemays initial analysis.

5.69 Although Dr. Lemay corrected some of his errors with respect to land type and acknowledged that the plutonium accidents were not appropriate analogues under Board questioning, he, however, did not adjust his estimates for some of the most problematic portions of his analysis. The Staffs experts in their pre-filed testimony identified that Dr. Lemays use of the CONDO model to estimate CDNFRM for the MACCS2 code failed to follow fundamental physical principles, namely conservation of mass. (Transcript at 2160, 2176-77, 2378.) The Staffs expert explained that this error conservatively multiplied the amount of decontamination by a factor of 11, although it could have been more. (Id.) Upon Board questioning, Dr. Lemay confirmed that his analysis for CDNFRM did not conserve mass. (Transcript at 2176-77; compare id. at 2131-33.) Dr. Lemays explanation for why he chose to ignore this fundamental principle is that he assumed that the MACCS2 code modeled deposition from the cloud as having no impact on the composition, concentration, or shape of the cloud. (Transcript at 2177.)

In Dr. Lemays mind, the cloud acted as an infinite source of material for deposition that was constantly replenishing itself. (Id.) Dr. Lemay asserted that in the MACCS2 code, there is no intention to do a mass conservation. (Transcript at 2132.) Dr. Lemay went further in his testimony to state it was simply not true that mass had to be conserved. (Transcript at 2133.)

But after some additional review during a break in the Boards questioning, Dr. Lemay conceded that the MACCS2 code does indeed conserve mass. (Transcript at 2177.) After conceding that MACCS2 conserved mass, Dr. Lemay dismissed the need to account for this fundamental law of nature because it may represent [a] very complex situation[]. (Id.) In other words, Dr.

Lemay asserts that this fundamental mistake in his analysis would have no impact on his conclusions.

5.70 The Staffs experts disagreed. Mr. Jones explained that Dr. Lemays error with respect to conservation of mass significantly increases the amount of contamination that must be decontaminated because it either increases the contamination by at least a factor of 11, id. at 2379, or increases the level of effort, because a DF of 15 under New Yorks analysis would only require a DF of 1.5 - 2 once mass was conserved. (Id.) Applying this minimum conservation of mass correction factor of 11 to Dr. Lemays analysis, the CDNFRM levels are further reduced to

$1,364 - $4,295 for a DF of 3. (Id.) For a DF of 15, the values are reduced to $6,478 -

$10,260. (Id.) Importantly, Dr. Lemays corrected analysis actually confirms that the values used by Entergy for CDNFRM and accepted by the NRC for the SAMA analysis are reasonable, appropriate, and even conservative. Entergys inputs are actually higher than the inputs asserted by New Yorks expert once the fundamental principle of mass conservation is applied.

5.71 Dr. Lemay also asserted that achieving a DF greater than 10 required demolition.

(NYS Testimony on NYS-12C, NYS000241, at 29.) The Staffs experts and Entergys experts identified numerous modern techniques that can achieve substantially higher levels of decontamination than Dr. Lemays arbitrary cut-off of a DF of 10 without demolition. (Staffs Testimony on NYS-12C, Ex. NRC000041, at 42-44.) In the Staffs pre-filed testimony, Mr.

Jones identified a substantial number of decontamination techniques described in New Yorks exhibits that achieve DFs greater than 10 without demolition. (Id.) A sample of those techniques are identified in the table below.

Table 2: Achievable Decontamination Factors Reference Technology/Tech Achievable DF Comment nique Brookhaven Chemical >100 Non-porous National Laboratory surfaces (Ex. NYS000284 at 36)

Brookhaven ANL chemical Up to 33.3 Cesium on National Laboratory concrete (97%

(Ex. NYS000284 at 11) removal)

Brookhaven INL chemical Up to 33.3 Cesium on National Laboratory marble (97% removal)

(Ex. NYS000284 at 11)

Brookhaven Pressure washing Up to 50 Good for National Laboratory irregular surfaces (Ex. NYS000284 at 20)

EPA (Empire) Blast NVac Average 58 Cesium on (Ex. NRC000046 at 14] concrete Idaho National Sandblasting 100 Sandblast Laboratory (Ex. buildings NRC000048at 6]

Sandia (Ex. Peelable Coating Up to 100 Cesium on NYS000259) carbon steel, stainless steel, Plexiglas Sandia (Ex. Peelable Coating Up to 100 Plutonium on NYS000259) carbon steel RISO (Ex. Vacuum, razors, >100 Removal of NYS000251) manual scraper, brush wall paper RISO (Ex. Detached polymer Up to 30 Smooth metal NYS000251) paste painted surfaces (Id.)

8. The Staff Fully Responded to NYS Timely Comments on the DSEIS 5.72 NYS asserts that the Staff failed to adequately respond to [NYS] comments on the DSEIS. (State of New York Initial Statement of Position Consolidated Contention NYS C, Ex. NYS000240, at 37.) NYS Statement of Position contains a litany of complaints without specifically identifying how the Staffs response failed to address their comments. (Id. at 38.) In

fact, the Statement of Position fails to even cite to NYS comments.59 NYS acknowledges that the Staff provided a general response to [NYS] comments.60 New York simply disagrees with the Staffs resolution on its timely comments. In order to evaluate NYS bare assertions regarding the Staffs responses, NYS comments must be evaluated. The full set of NYS timely submitted comments can be found in Appendix A to the Staffs FSEIS.61 With respect to decontamination costs, NYS comments are unlike its assertions in its testimony and Statement of Position. NYS comments suggested that the NRC should use the analytical framework contained in the 1996 [Sandia] report [(Site Restoration Study)] concerning site restoration costs.62 NYS asserted that the Site Restoration Study recognized that smaller particles were more difficult to clean-up and predicted clean-up costs based on area.63 The comments also identified two additional studies in support of the Site Restoration Study.64 The Staff, in Appendix G to the FSEIS, compared the conclusion from the Site Restoration Study to the application of the MACCS2 code to the Indian Point site and determined that the cost to decontaminate that Entergy used was reasonable. Based on the population density, the decontamination costs from the Site Restoration Study were comparable to the values used in the MACCS2 code.65 The Staff also concluded in the FSEIS that the Site Restoration Study (clean-up of a nuclear weapons accident) was not an appropriate comparison to a reactor 59 See State of New York Initial Statement of Position Consolidated Contention NYS-12-C, Ex.

NYS000240, at 37-41.

60 Id. at 38.

61 See FSEIS, Ex. NYS000133I, Appendix A.

62 See FSEIS, Ex. NYS000133I, at A-1029.

63 Id. at A-1032.

64 Id..

65 Id. at G-24.

accident clean-up,66 a point that New Yorks testifying expert acknowledged under Board questioning.

D. Summary of Findings 5.73 In its testimony filed in this proceeding, the Staff concluded that Entergy selected reasonable inputs for the TIMDEC and CDNFRM for Indian Points SAMA analysis. Entergys and the NRCs experts identified serious errors in accounting for land area, conservation of mass, the net present value of money expended over multiple years, the inter-related nature of the MACCS2 data inputs, and the allowable input ranges. The changes to the MACCS2 code suggested by Dr. Lemay are not warranted, and are unlikely to result in reasonable outputs without undertaking significant new research to apply appropriate quality assurance controls, adjust the code logic to appropriately account for these changes, and properly validate the changes. NEPA does not require that an agency undertake this kind of new research in order to satisfy its obligations under NEPA. The First Circuit recently re-emphasized that [A]gencies are entitled to select their own methodology as long as that methodology is reasonable, and we give deference to that decision here. Massachusetts v. NRC, No. 12-1404, 12-1772, sl. op. at 25-26 (2d Cir. Feb. 25 2013). When the errors identified by Entergy and the Staff are properly adjusted, the input values suggested by New York and Dr. Lemay are consistent with, but less conservative than the values used by Entergy in its SAMA analysis.

5.74 We agree, in general, with the Staffs conclusions. We find that Entergys SAMA analysis and especially its selection of input values for CDNFRM and TIMDEC to be reasonable and the Staff has satisfied its hard look obligation under NEPA. We find that issues raised by New York in its contention are not material to the Staffs findings in its FSEIS. Accordingly, we conclude that the Staffs FSEIS adequately describes and evaluated Entergys SAMA analysis and selection of inputs.

66 Id. at G-23.

IV. CONCLUSIONS OF LAW 5.75 The Licensing Board has considered all of the evidence presented by the parties on NYS-12C. Based upon a review of the entire record in this proceeding and the proposed findings of fact and conclusions of law submitted by the parties, and based upon the findings of fact set forth above, which are supported by reliable, probative and substantial evidence in the record, the Board has decided all matters in controversy concerning this contention and reaches the following conclusions.

5.76 We find that the Staffs FSEIS complies with the requirements of NEPA and 10 C.F.R. Part 51 regarding the discussion of SAMAs in license renewal proceedings. The FSEIS provides a reasonable estimate of the cost and benefits of the proposed mitigation measures.

We find that Entergys selection of values for TIMDEC and CDNFRM are reasonable and appropriate for Indian Point, its site-specific features, and produce conservative results with respect the issues and evidence presented by New Yorks expert.

5.77 We find that NRC is not required to make modifications, as suggested by New York, to the MACCS2 code in order to conduct a SAMA analysis under NEPA. It is clear that the modifications made to the MACCS2 code by New York produced unreliable and unreasonable results because it introduced challenges to the delicate logic previously established in the code for making decontamination, habitability, and interdiction decisions, and accounting for the costs of various decontamination efforts. We also find that the decontamination costs presented by New York are unreasonable because the estimates introduce errors with respect to the conservation of mass principles that are fundamental to producing accurate contamination levels. Thus, New Yorks assertions would not have any material impact on the conclusions made by the Indian Point SAMA analysis.

5.78 Finally, we find that the Staff responded adequately to each of New Yorks timely filed comments on the DSEIS.

/Signed (electronically) by/

Brian G. Harris Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Dated at Rockville, Maryland this 22nd day of March 2013