ML14118A519

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State of New York Petition for Review of Atomic Safety and Licensing Board'S April 1, 2014 Decision Denying the State'S Motion to Reopen the Record and for Reconsideration of the Board'S November 27, 2013 Partial Initial Decision Concerning
ML14118A519
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 04/28/2014
From: Deluca K, Sipos J
State of NY, Office of the Attorney General
To:
NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25870
Download: ML14118A519 (38)
v • d • e


Text

UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE COMMISSIONERS KRISTINE L. SVINICKI, WILLIAM D. MAGWOOD, IV, GEORGE APOSTOLAKIS, AND WILLIAM C. OSTENDORFF AND CHAIRMAN ALLISON M. MACFARLANE

x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 28, 2014

x STATE OF NEW YORK PETITION FOR REVIEW OF ATOMIC SAFETY AND LICENSING BOARDS APRIL 1, 2014 DECISION DENYING THE STATES MOTION TO REOPEN THE RECORD AND FOR RECONSIDERATION OF THE BOARDS NOVEMBER 27, 2013 PARTIAL INITIAL DECISION CONCERNING CONSOLIDATED CONTENTION NYS-12C Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224

TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................................... iii GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS ............................................... vi TIMELINE..................................................................................................................................... ix I. INTRODUCTION ............................................................................................................... 1 II. STATEMENT OF THE CASE............................................................................................ 3 A. Consolidated Contention NYS-12C ..................................................................................4 B. NRC Staffs and Entergys 2012 Testimony Defending the Use of 60 and 120 Day Decontamination Times ............................................................................................6 C. November 26, 2013 New Evidence That NRC Staff Used 365 Day Decontamination Times ....................................................................................................8 D. November 27, 2013 Board Partial Initial Decision ...........................................................9 E. December 7, 2013 State Motion to Reopen the Record and for Reconsideration of NYS-12C ....................................................................................................................10 F. February 14, 2014 State Petition for Review of the Partial Initial Decision ...................10 G. April 1, 2014 Board Order on the States Motion to Reopen the Record and for Reconsideration...............................................................................................................11 III. ARGUMENT ..................................................................................................................... 12 A. The Commission Should Now Review the Boards April 1, 2014 Order Because It Sought Reconsideration of the Partial Initial Decision ...............................................12 B. Alternatively, the Commission Should Now Review the April 1, 2014 Order Because the Petition Satisfies the Interlocutory Review Standards................................13

1. Deferring Review of the April 1, 2014 Order Affects the State in an Immediate, Serious, and Irreparable Manner ...............................................................13
2. Deferring Review of the April 1, 2014 Order Would Affect the Structure of the Proceeding in an Unusual and Pervasive Manner ..................................................14 C. The Commission Should Reverse the Boards April 1, 2014 Order ...............................15
1. The Board Improperly Overlooked the States Evidence That Would Materially Alter the Indian Point SAMA Analysis Under 10 C.F.R. § 2.341(b)(4)(i) ...............................................................................................................16 i

TABLE OF CONTENTS Page

a. The Board Failed to Even Acknowledge, Let Alone Analyze, the States Evidence Regarding the TIMDEC/Worker Calculations ......................................17
b. The Board Failed to Even Acknowledge, Let Alone Analyze, the States Evidence Showing the Severe Accident Analyzed Using a 365 day TIMDEC Is Within the Range of Accidents Entergy Modeled for the Indian Point SAMA Analysis .....................................................................................................20
c. The Board Ignored the States Proof of Materiality ..............................................21
2. The Board Misapplied the Legal Standard Under 10 C.F.R. § 2.341(b)(4)(ii)...........23
3. Commission Review Is Also Appropriate Under 10 C.F.R. § 2.341(b)(4)(iii)-

(v) .................................................................................................................................24 IV. CONCLUSION .................................................................................................................. 25 ii

TABLE OF AUTHORITIES Page(s)

DECISIONS U.S. Supreme Court Humphreys Executor v. United States, 295 U.S. 602 (1935) ...........................................................................................................24 U.S. Court of Appeals and District Courts Aiken County, In re, 645 F.3d 428 (D.C. Cir. 2011 ............................................................................................24 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989).....................................................................................1, 22, 23 Nuclear Regulatory Commission AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

LBP-08-12, 68 N.R.C. 5, affd CLI-08-28, 68 N.R.C. 658 (2008) .............................................................................17 Commonwealth Edison Co. (LaSalle County Nuclear Station, Units 1 & 2), ALAB-153, 6 A.E.C. 821 (1973).................................................................15 Consolidated Edison Co. of N.Y. (Indian Point Unit 2) and Power Auth. of the State of New York (Indian Point Unit 3), CLI-86-6, 21 N.R.C. 1043 (1985) ........................................................................22 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-08-02, 67 N.R.C. 31 (Jan. 15, 2008)....................................................................................................................12 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Adopting Proposed Transcript Corrections with Minor Edits) (Dec. 27, 2012) (ML12362A278).......................................4 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Partial Initial Decision (Ruling on Track 1 Contentions),

LBP-13-13, 78 N.R.C. __, slip op. (Nov. 27, 2013) (ML13331B465) ...................... passim Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order of the Secretary on Behalf of the Commission (Feb. 28, 2014) (ML14059A539) ......................................................................................11 iii

TABLE OF AUTHORITIES Page(s)

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014) (ML14091A319) ............................................................ passim Ga. Power Co. (Vogtle Nuclear Plant, Units 1 & 2),

ALAB-291, 2 N.R.C. 404 (1975) ......................................................................................15 La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 N.R.C. 5 (1985) ...........................................................................17 N. Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), CLI-74-39, 8 A.E.C. 631 (1974) ....................................................................24 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Plant Units 1 & 2), ALAB-598, 11 N.R.C. 876 (1980) ..............................................................17 Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 7 N.R.C. 341 (1978) ...........................................................................................................23 Vt. Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 A.E.C. 358 (1973) .............................................................15 FEDERAL REGULATIONS 10 C.F.R.

§ 2.323(e) ...........................................................................................................................10

§ 2.326................................................................................................................................10

§ 2.326(a) ...........................................................................................................................15

§ 2.326(b) ...........................................................................................................................15

§ 2.336(b) ...........................................................................................................................24

§ 2.341............................................................................................................................1, 12

§ 2.341(b)(1) ..........................................................................................................12, 13, 14

§ 2.341(b)(2)(i) ..................................................................................................................16

§ 2.341(b)(2)(ii) .............................................................................................................3, 16

§ 2.341(b)(2)(iii) ................................................................................................................16

§ 2.341(b)(2)(iv) ................................................................................................................16

§ 2.341(b)(2)(v)..................................................................................................................16

§ 2.341(b)(4) ......................................................................................................................15

§ 2.341(b)(4)(i) ............................................................................................................17, 23

§ 2.341(b)(4)(ii) .....................................................................................................17, 23, 24

§ 2.341(b)(4)(iii) ....................................................................................................23, 24, 25

§ 2.341(b)(4)(iv) ..........................................................................................................24, 25

§ 2.341(b)(4)(v)............................................................................................................24, 25 iv

TABLE OF AUTHORITIES Page(s)

§ 2.341(b)(6) ......................................................................................................................12

§ 2.341(c)(2) ......................................................................................................................25

§ 2.341(f)(2) .......................................................................................................................13

§ 2.341(f)(2)(i) .............................................................................................................13, 15

§ 2.341(f)(2)(ii) ............................................................................................................13, 15 Part 51 ............................................................................................................................................23 v

GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS April 1, 2014 Order Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014) (ML14091A319)

Board Atomic Safety and Licensing Board Entergy Test. Pre-filed Testimony of Entergy Witnesses Potts, OKula, and Teagarden on Consolidated Contention NYS-12C (Mar. 30, 2012) (ENT000450)

FSEIS Final Supplemental Environmental Impact Statement NUREG-1437, Volumes 1-3: Supplement 38: Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 - Final Report (Dec. 2010) (NRC000004)1 (NYS00133A-J)

GEIS NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Vol. 1-2 (May 1996)

(NRC000002)2 (NYS00131A-I)

ISR Report International Safety Research, Inc. Report: Review of Indian Point Off Site Consequence Analysis (Dec. 21, 2011)

(NYS000242)

Lemay Decl. Declaration of François Lemay in Support of the States Motion to Reopen the Record and for Reconsideration of NYS-12C (Jan. 22, 2014) (ML14022A273)

Lemay Initial Test. Pre-filed Testimony of NYS Expert Lemay on Contention NYS-12C (Dec. 21, 2011) (NYS000241)

Lemay Rebuttal Test. Pre-filed Rebuttal Testimony of NYS Expert Lemay on Contention NYS-12C (Jun. 29, 2012) (NYS000420)

Limerick Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir.

1989)

MACCS2 MELCOR Accident Consequence Code Systems Version 2 1

NRC000004 is a one-page exhibit that [i]ncorporates New York Exhibit NYS000133A-J.

2 NRC000002 is a one-page exhibit that [i]ncorporates New York Exhibit NYS00131A-I.

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GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS Mahilrajan Decl. Declaration of Timothy Mahilrajan of International Safety Research, Inc. (Dec. 6, 2013) (Attachment 2, ML13341A003)

MELCOR Methods for Estimation of Leakages and Consequences of Releases NCF Non-Containment Failure NEPA National Environmental Policy Act NRC Nuclear Regulatory Commission NRC Staff Test. Pre-filed Testimony of NRC Staff Witnesses Bixler, Ghosh, Jones, and Harrison on NYS-12/16 (Mar. 30, 2012)

(NRC000041)

NUREG/CR-3673 NUREG/CR-3673, Economic Risks of Nuclear Power Reactors Accidents (May 1984) (NRC000058)

NUREG-1150 NUREG-1150, Severe Accident Risks: An Assessment for Five U.S. Nuclear Power Plants (Dec. 1990) (NYS00252A-D)

NYS Petition for Review State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS-12C (Feb. 14, 2014)

(ML14045A412)

NYS Proposed Findings State of New Yorks Proposed Findings of Fact and Conclusions of Law for Contention NYS-12/12A/12B/12C (Mar. 22, 2013) (ML13081A757)

NYS Reconsideration State of New York Motion to Reopen the Record and For Motion Reconsideration on Contention NYS-12C (Dec. 7, 2013)

(ML13341A002 (package with attachments))

NYS Reconsideration State of New York Reply in Support of Motion to Reopen Reply the Record and for Reconsideration of Contention NYS-12C (Jan. 22, 2014) (ML14022A275)

NYS-12C Consolidated Contention NYS-12/12A/12B/12C OECR Offsite Economic Cost Risk vii

GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS Partial Initial Decision Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 N.R.C. __, slip op. (Nov. 27, 2013) (ML13331B465).

PRA Probabilistic Risk Assessment SAMA Severe Accident Mitigation Alternatives Sandia Sandia National Laboratories Sept. 18, 2013 Tr. Official Transcript of Proceedings, Japan Lessons Learned Project Directorate, Public Meeting, September 18, 2013 (ML13277A215) (excerpt), also available at Attachment 4, ML13341A003).

Sipos Decl. Declaration of Assistant Attorney General John Sipos in Support of State of New Yorks Motion to Reopen the Record and for Reconsideration of Board Ruling LBP-13-13 on Contention NYS-12C (Dec. 7, 2013) (Attachment 1, ML13341A003)

SOARCA NUREG-1935, State-of-the-Art Reactor Consequence Analysis Report Spent Fuel Pool Consequence Study of a Beyond Design Basis Earthquake Consequence Study Affecting the Spent Fuel Pool for a U.S. Mark 1 Boil Water Reactor, ML13256A342 (final) October 2013, and ML13133A132 (draft) June 2013 (Attachment 7 to States Motion to Reopen the Record and for Reconsideration of NYS-12C)

TIMDEC MACCS input parameter for the time required for completion of decontamination levels Tr. Transcript of Evidentiary Hearing before Atomic Safety and Licensing Board, Docket Nos. 50-247-LR & 50-286-LR, ASLBP No. 07-858-03-LR-BD01 viii

TIMELINE Date Document/Event TIMDEC Values 1979 Three Mile Island Unit 2 accident 1984 NUREG/CR-3673, Economic Decontamination begins 30 days after the Risks of Nuclear Power Reactor accident and ends 120 days later Accidents (May 1984) 90 days of decontamination; first 30 (NRC000058) days after the accident sequence are used for the collection of dose-rate information for decision making.

1990 NUREG-1150, Severe Accident Decontamination begins 7 days Risks: An Assessment for Five following the accident and lasts U.S. Nuclear Power Plants (Dec. 60 days for light decontamination 1990) (NYS00252A- 120 days for heavy decontamination NYS00252D) general reference to NUREG/CR-4551 1990 NUREG/CR-4551, Evaluation of Reports example inputs of Severe Accident Risks: 60 days for light decontamination Quantification of Major Input 120 days for heavy decontamination Parameters (Dec. 1990) but does not discuss how the (NRC000057) decontamination time was obtained 2011 March Fukushima multi-unit accident, followed by still ongoing decontamination efforts 2012 March Indian Point LRA Proceeding Defending the use of and 60 days for light decontamination 2012 October Testimony by NRC Staff and 120 days for heavy decontamination Sandia National Laboratories because these values have always employees re MACCS2 been used 2012 November MACCS2 runs completed by NRC Staff and Sandia use NRC Staff and Sandia for the 365 days for light decontamination post- Fukushima Spent Fuel Pool 365 days for heavy decontamination Consequence Study 2013 March NRC Staff Post Hearing Brief in States that use of Indian Point License Renewal 60 days for light decontamination Application proceeding 120 days for heavy decontamination is consistent with Staff practice and post-Fukushima analysis; (does not disclose Nov. 2012 MACCS2 runs for Spent Fuel Pool Consequence Study) ix

Pursuant to 10 C.F.R. § 2.341, the State of New York petitions the U.S. Nuclear Regulatory Commission for review of the Atomic Safety and Licensing Boards April 1, 2014 Order1 denying the State of New Yorks December 7, 2013 motion to reopen the record and for reconsideration of the Boards November 27, 2013 Partial Initial Decision2 concerning Consolidated Contention 12/12A/12B/12C (NYS-12C).

I. INTRODUCTION Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989), directed NRC to perform a site specific analysis of the impacts of severe accidents at nuclear power plants and the measures to mitigate such impacts. NRC Staff and Entergy have underestimated the costs of a severe accident at Indian Pointwhich operates in the most densely-populated and densely-developed area of any U.S. nuclear power plantdenying the public, the host State, and the Commissioners a rational and realistic analysis of site specific alternative measures to mitigate the impacts of severe accidents.

Decontamination time (or TIMDEC) is a key input parameter in the MACCS2 computer code used to calculate severe accident costs for the severe accident mitigation alternatives analysis (SAMA) required for license renewal. Throughout the course of this proceeding, NRC Staff and its Sandia National Laboratories witnesses maintained that the only TIMDEC values NRC ever used or approved were 60 days and 120 days (or an average of 90 days). In its Partial Initial Decision, the Board accepted this testimony and found 60 and 120 days reasonable for Indian Point. However, the day before the Board issued its Partial Initial 1

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014)

(ML14091A319) (April 1, 2014 Order).

2 Partial Initial Decision, Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 N.R.C. __, slip op. (Nov. 27, 2013) (ML13331B465).

1

Decision, the State obtained computer files for a post-Fukushima NRC MACCS2 analysis showing that NRC Staffwith the involvement of the Sandia witnesses who testified in this proceedingchanged course and used a different, longer decontamination time input of 365 days.

Use of this longer TIMDEC value in the Indian Point MACCS2 severe accident analysis would roughly double the offsite economic cost risk and render at least one additional mitigation measure cost beneficial. The information that NRC Staff and Sandia had used a longer TIMDEC value is relevant, important, and material to the parties respective positions and the National Environmental Policy Act (NEPA) analysis of severe accidents at Indian Point. Had Staff disclosed this information, and had it been considered as part of NYS-12C, it would have materially affected the parties respective positions before the Board and, the State submits, would have resulted in a materially different outcome.

Because the Partial Initial Decision closed the record and resolved NYS-12C in favor of NRC Staff and Entergy, the State moved to reopen the record and for reconsideration based on the new TIMDEC information. NRCs about-face, deviating from three decades of only using 60 and 120 days to now using 365 days, contradicts the testimony Staff provided in this proceeding. NRCs change in TIMDEC provides further support for NYS-12C, confirming that NRC Staff should have required 365 day or greater TIMDEC values for Indian Point. As part of the motion to reopen and reconsider, the States experts calculated that using 365 day TIMDEC values in the Indian Point SAMA analysis would almost double the offsite economic costs of a severe accident, materially altering the SAMA analysis. In addition, the record in this proceeding establishes that had Staff used a TIMDEC value of 365 days in the MACCS2 analysis for the Indian Point license renewal application, at least one additional mitigation 2

measure would become cost beneficial.

A review of the MACCS2 input and output computer files revealed that just weeks after NRC Staff and Sandia witnesses testified at the evidentiary hearing in this proceeding on NYS-12C, some of those same witnesses elected to use the longer, 365 day TIMDEC input value in a post-Fukushima, MACCS2 analysis of a spent fuel pool severe accident. NRC Staff and Sandia did not disclose to the Board or the State that they used a different and longer TIMDEC value in November 2012. Rather, as further support for 60 and 120 days, Staff told the Board that even post-Fukushima, NRC continued to use 60 and 120 days for TIMDEC. That was false. This lack of disclosure coupled with substantial factual, legal, and procedural errors in the Boards April 1, 2014 Order merits Commission review at this time. In addition, the Order involves important questions of law and policy and public interest issues. Accordingly, the Commission should grant review and reverse the Boards April 1, 2014 Order.

II. STATEMENT OF THE CASE This petition seeks Commission review of the Boards April 1, 2014 Order denying the States motion to reopen the record and for reconsideration based on new and significant evidence demonstrating that the Indian Point SAMA costs are too low.

Pursuant to 10 C.F.R. § 2.341(b)(2)(ii), this petition contains record citations identifying where the matters of fact or law raised in the petition for review were previously raised before the presiding officer. This petition concerns factual and legal matters raised by the State in the underlying motion and supporting documents, which are hereby incorporated by reference.3 The 3

State of New York Motion to Reopen the Record and For Reconsideration on Contention NYS-12C (Dec. 7, 2013) (ML13341A002 (package including Attachments 1 to 7)) (NYS Reconsideration Motion); Declaration of Assistant Attorney General John Sipos in Support of State of New Yorks Motion to Reopen the Record and for Reconsideration of Board Ruling LBP-13-13 on Contention NYS-12C (Dec. 7, 2013) (Attachment 1, ML13341A003) (Sipos Decl.); Declaration of Timothy Mahilrajan 3

petition also incorporates by reference the States Petition for Review of NYS-12C,4 including its Statement of the Case which sets forth relevant factual, procedural, and legal background including the Indian Point Site, Indian Point License Renewal, Consolidated Contention NYS-12C, NEPA, and the Indian Point SAMA and MACCS2 analysis. This petition also incorporates by reference the States evidence on NYS-12C, which demonstrates that there are realistic and readily-available economic cost inputs that can be used to develop a site specific SAMA analysis as required by NEPA.5 A. Consolidated Contention NYS-12C The new information regarding a 365 day TIMDEC is both material and critical to ultimate issue raised in NYS-12Cthe legitimacy of the Indian Point SAMA analysis and the of International Safety Research, Inc. (Dec. 6, 2013) (Attachment 2, ML13341A003) (Mahilrajan Decl.); State of New York Reply in Support of Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Jan. 22, 2014) (ML14022A275) (NYS Reconsideration Reply); Declaration of François Lemay in Support of the States Motion to Reopen the Record and for Reconsideration of NYS-12C (Jan. 22, 2014) (ML14022A273) (Lemay Decl.).

4 State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS-12C (Feb. 14, 2014) (ML14045A412) (NYS Petition for Review).

5 State of New York Initial Statement of Position Consolidated Contention NYS-12C (Dec. 21, 2011)

(NYS000240); Pre-filed Testimony of NYS Expert Lemay on Contention NYS-12C (Dec. 21, 2011)

(NYS000241) (Lemay Initial Test.); International Safety Research, Inc. Report: Review of Indian Point Off Site Consequence Analysis (Dec. 21, 2011) (NYS000242) (ISR Report); State of New York Revised Statement of Position on NYS-12C (June 29, 2012) (NYS000419); Pre-filed Rebuttal Testimony of NYS Expert Lemay on Contention NYS-12C (June 29, 2012) (NYS000420) (Lemay Rebuttal Test.);

Exhibits NYS00132A-D, NYS00133A-J, NYS000218, NYS000243-292, NYS000421-32, NYS000441; October 17-18, 2012 live testimony from the States witness, Dr. Lemay (Transcript of Evidentiary Hearing before Atomic Safety and Licensing Board, Docket Nos. 50-247-LR & 50-286-LR, ASLBP No.

07-858-03-LR-BD01 (Tr.) 1780-2083; 2084-2387); Transcript corrections in Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Adopting Proposed Transcript Corrections with Minor Edits) (Dec. 27, 2012) (unpublished) (ML12362A278); State of New Yorks Proposed Findings of Fact and Conclusions of Law for Contention NYS-12/12A/12B/12C (Mar. 22, 2013) (ML13081A757) (NYS Proposed Findings); State of New Yorks Reply to NRC Staffs and Entergys Proposed Findings of Fact and Conclusions of Law for Contention NYS-12/12A/12B/12C (May 3, 2013) (ML13123A467).

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underlying MACCS2 inputs under NEPA. The MACCS26 computer code simulates the atmospheric release of radioactivity following a severe accident based on meteorological inputs.7 The MACCS2 code then calculates radiological health and economic impacts based on user-defined inputs for various parameters including decontamination time or TIMDEC.8 TIMDEC accounts for the time it would take to decontaminate following a severe accident.9 Entergy took its TIMDEC inputs directly from a set of example inputs called Sample Problem A.10 Entergys inputs are 60 days for a light decontamination and 120 days for heavy decontamination.11 Based on a considerable amount of evidence including real-world severe accidents like Fukushima and Chernobyl as well as expert analysis of the sources and assumptions underlying 60 and 120 days, the State argued that more reasonable and realistic values would be 1 to 15 years for light decontamination and 2 to 30 years for heavy decontamination.12 The State 6

MACCS2 stands for MELCOR Accident Consequence Code Systems Version 2. MELCOR stands for Methods for Estimation of Leakages and Consequences of Releases.

7 Most, if not all, of license renewal applicants have used the MACCS2 computer code to calculate offsite severe accident costs as part of their SAMA analyses. Tr. 1913:7-8, 1985:20-21 (Teagarden).

8 NUREG/CR-6613, SAND97-0594, Vol. 1, Code Manual for MACCS2: Users Guide (May 1998) at 1-1 2 (NYS000243) (MACCS2 User Guide).

9 MACCS2 User Guide (NYS000243) at 7-10. The MACCS2 code requires users to input two decontamination times: one for light decontamination; and one for heavy decontamination. Id. Entergy took its TIMDEC inputs directly from Sample Problem A (Tr. 2186:19-23, 2187:20-23 (Teagarden)), one of fourteen Sample Problems containing example sets of inputs included in the MACCS2 code package (MACCS2 User Guide (NYS000243) at 4-3). Entergys inputs are 60 days for a light decontamination and 120 days for heavy decontamination. Pre-filed Testimony of Entergy Experts Potts, OKula, and Teagarden on Consolidated Contention NYS-12C (Mar. 30, 2012) (ENT000450) (Entergy Test.) at 49, Table 3.

10 Tr. 2186:19-23, 2187:20-23 (Teagarden). Sample Problem A is one of fourteen sample problems containing example sets of inputs included in the MACCS2 User Guide. ISR Report (NYS000242) at 7-8; Lemay Initial Test. (NYS000241) at 21-23. The User Guides sample problems were never intended to be used as default values; rather, they were provided so that a user could test whether the MACCS2 code was installed and running properly. Id; Tr. 2059:23-2060:7 (Teagarden).

11 Entergy Test. (ENT000450) at 49, Table 3.

12 Lemay Rebuttal Test. (NYS000420) at 51; Updates to ISR Report (NYS000430) at 6, Table 13; Tr.

2205:20-2206:5 (Lemay).

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explained that the impact of changing TIMDEC alone is striking. Simply changing decontamination time to 1 year for light decontamination and 2 years for heavy decontaminationwhile maintaining Entergys values for all other inputsmore than doubles the offsite economic cost risk used in the SAMA analysis.13 Although TIMDEC is just one of many examples in NYS-12C of the errors in NRC Staff and Entergys SAMA analysis, correcting the TIMDEC error alone would render additional SAMA candidates cost-beneficial.

Indeed, Entergy acknowledges that an 11% increase in costs would cause another SAMA candidate measure to become cost effective.14 B. NRC Staffs and Entergys 2012 Testimony Defending the Use of 60 and 120 Day Decontamination Times Throughout this proceeding, witnesses for NRC Staff testified that the use of TIMDEC input values of 60 and 120 days was consistent with other MACCS2 analyses performed or accepted by NRC Staff and that, therefore, those two inputs were reasonable under NEPA.

NRC Staff presented four witnesses to support its position: two NRC employees: Mr. Donald G.

Harrison and Dr. S. Tina Ghosh; and two Sandia employees: Mr. Joseph A. Jones and Dr.

Nathan E. Bixler.15 In Staffs March 2012 pre-filed testimony, Mr. Harrison and Dr. Ghosh stated, The NRC has been examining the decontamination times for over 37 years.16 These 13 Updates to ISR Report (NYS000430) at 6, Table 13; Tr. 2181:23-25 (Lemay).

14 See NYS Proposed Findings ¶¶ 285-89 (Mar. 22, 2013) (ML13081A757) (citing G. Teagarden, MACCS2 IP2 Population Sensitivity Case, Jan. 2012 (ENT000006); MACCS2 Sensitivity Analysis for NYS-16 Using Dr. Sheppards Proposed Data, Oct. 9, 2012 (ENT000589); Entergy NYS-16B Test.

(ENT000003) at 49-50 (A89) (OKula, Teagarden, Potts)).

15 Sandia developed the MACCS2 code for NRC. Dr. Bixler is the federal custodian of the MACCS code, and he and Mr. Jones advise NRC on the use of the code. Official Transcript of Proceedings, Japan Lessons Learned Project Directorate, Public Meeting, September 18, 2013 (ML13277A215) (Sept. 18, 2013 Tr.) (Excerpt), attached to NYS Reconsideration Motion (Attachment 4, ML13341A003).

16 Pre-filed Testimony of NRC Staff Experts Bixler, Ghosh, Jones, and Harrison on NYS-12/16 at A.81 (NRC000041) (Mar. 30, 2012) (NRC Staff Test.).

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NRC Staff witnesses went on to explain that NRC has used an average decontamination time of 90 days for at least the past 30 yearssince NUREG/CR-3673 was published in 1984.17 NRC Staff maintained this position through the October 2012 hearing and in its March 2013 post-hearing submission for NYS-12C, informing the Board that the inputs selected by Entergy for TIMDEC . . . 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.18 Staff represented that these values continue to be utilized in the NRCs current analysis involving severe accident mitigation analysis and PRA [(probabilistic risk assessment)]

analysis including the SOARCA and with Staffs responses to tasking related to Fukushima Dai-ichi.19 Staffs position ignores the historical context. Staff points to NUREG/CR-3673 (1984),

which posits a 90 day decontamination effort, as the source of its TIMDEC inputs. However, that document was prepared after the 1979 Three Mile Island Unit 2 accident, described by NRC as a non-containment failure (NCF) accident that resulted in no offsite contamination. Given 17 Id; NUREG/CR-3673, Economic Risks of Nuclear Power Reactor Accidents (1984) (NRC000058).

18 NRC Staff Proposed Findings of Fact and Conclusions of Law ¶ 5.41 (March 22, 2013)

(ML13081A698).

19 Id. Entergy took a similar approach and supported NRC Staff. Entergy witnesses Dr. Kevin OKula, and Mr. Grant Teagarden testified that the decontamination times of 60 and 120 days used in the Indian Point SAMA analysis are consistent with NUREG-1150 (1990) and that NRC and Sandia continue to use those same TIMDEC values. Entergy Test. (ENT000450) at A95, 72-73; Entergy Statement of Position Regarding Consolidated Contention NYS-12C at 5-6 (March 30, 2012) (ENT000449). Entergy maintained this position through the October 2012 hearing and in its March 2013 post-hearing submission for Contention NYS-12C. Entergy Proposed Findings of Fact and Conclusions of Law for Consolidated Contention NYS-12C ¶ 248 (March 22, 2013) (ML13081A743); see also id. ¶ 216 ([t]hese[TIMDEC]

values are consistent with the NUREG-1150 values and have been applied in Level-3 type PRA analyses (including SAMA analyses and the SOARCA project) for many years.); Tr. at 1951:13-16 (Teagarden)

(And those values to our knowledge have been used in every SAMA analysis of the Entergy panels knowledge being based in NUREG-1150 and then escalated for time.); Entergy Reply to New York States Proposed Findings of Fact and Conclusions of Law for Contention NYS-12C at ¶¶ 55, 82 (May 3, 2013) (ML13123A461).

7

its publication date, NUREG/CR-3673 could not anticipate the lengthy offsite decontamination efforts at Fukushima and Chernobyl. Therefore, that document cannot provide a reasonable or rational basis for TIMDEC input values for the site specific severe accident analysis for the Indian Point facilitiesespecially for accident scenarios that do involve the release of radiation outside of containment and offsite radiation contamination. Moreover, Staffs weve always done it this way for 30 years argument is contradicted by its use of 365 days in the MACCS2 analysis for the post-Fukushima Spent Fuel Pool Consequence Study,20 discussed in more detail below.

C. November 26, 2013 New Evidence That NRC Staff Used 365 Day Decontamination Times During a September 18, 2013 public meeting on spent fuel pool and waste issues, the State requested the MACCS2 input and output files for the Spent Fuel Pool Consequence Study that NRC developed following the 2011 Fukushima accident.21 On November 26, 2013, the State received native format MACCS2 computer files that, upon expert review, demonstrate that NRC has abandoned its practice of only using 60 and 120 day TIMDEC values and used a 365 day TIMDEC value for its assessment of severe accident consequences in a spent fuel pool.22 20 Consequence Study of a Beyond Design Basis Earthquake Affecting the Spent Fuel Pool for a U.S.

Mark 1 Boil Water Reactor, ML13256A342 (final) October 2013, and ML13133A132 (draft) June 2013 (Attachment 7 to States Motion to Reopen the Record and for Reconsideration of NYS-12C).

21 See Declaration of Assistant Attorney General John Sipos in Support of State of New Yorks Motion to Reopen the Record and for Reconsideration of Board Ruling LBP-13-13 on Contention NYS-12C ¶¶ 2-8 (Dec. 7, 2013) (Attachment 1, ML13341A003) (Sipos Decl.) (providing a detailed chronology of the States discovery of this information); see also NYS Reconsideration Motion, Attachment 5 (Various NYS & NRC communications re request for MACCS2 Input and Output Files for Spent Fuel Pool Consequence Study) (Attachment 5, ML13341A003), Attachment 6 (Package Description and various MACCS2 Input and Output Files for Spent Fuel Pool Consequence Study (with date of November 13, 2012)) (Attachment 6, ML13341A003).

22 Declaration of Timothy Mahilrajan of International Safety Research, Inc. ¶¶ 6-8 (Dec. 6, 2013)

(Attachment 2, ML13341A003) (Mahilrajan Decl.).

8

Piecing together this new information with answers to the States questions during a September 18, 2013 public meeting, the conclusion is startling: One month following the evidentiary hearing on Contention NYS-12C, NRC Staff discontinued its decades-long practice of using only 60 days and 120 days as TIMDEC inputs for accident analyses.23 Staff did not disclose this to the State (or the Board) in its submissions in this proceeding.24 Dr. Ghoshs branch, the Accident Analysis Branch, was responsible for the MACCS2 analysis in the Spent Fuel Pool Study.25 In preparing the MACCS2 analysis, NRC Staff consulted with Sandias Dr. Bixler and Mr. Jones.26 Thus, three of the four NRC Staff witnesses on NYS-12C both provided testimony on TIMDEC to the Board and were involved in the MACCS2 analysis for the post-Fukushima Spent Fuel Pool Consequence Study.

D. November 27, 2013 Board Partial Initial Decision The day after the State received the native format MACCS2 input/output files showing the 365 day TIMDEC, the Board issued a Partial Initial Decision closing the record on NYS-12C and resolving NYS-12C in favor of NRC Staff and Entergy.27 The Board accepted NRC Staffs representations that it had exclusively used the 60 and 120 day TIMDEC values for decades and that the origin of the 90-day decontamination time (and the related 60-day and 120-day values) is known and reviewable and based upon an average over a wide spectrum of severe accident scenarios.28 23 Sipos Decl. ¶ 19; Sept. 18, 2013 Tr.

24 Sipos Decl. ¶ 15.

25 Ghosh Decl. ¶ 2.

26 Sept. 18, 2013 Tr. at 96-97,99-100.

27 Partial Initial Decision at 260-293, 389-90.

28 Id. at 286.

9

E. December 7, 2013 State Motion to Reopen the Record and for Reconsideration of NYS-12C On December 7, 2013, under 10 C.F.R. §§ 2.326, 2.323(e) and the Boards inherent authority, the State requested that the Board reopen the hearing record on Contention NYS-12C, consider new evidence presented by the State, and reconsider its Partial Initial Decision.29 The States papers explained thatonly as a result of the States participation in other mattersthe State learned that NRC Staff used a decontamination time (TIMDEC) input value of 365 days in a MACCS2 analysis of a severe accident at a spent fuel pool.30 The State further explained that NRC Staffs use of this value is contrary to the position taken by Staff and Entergyand accepted by the Board in its Partial Initial Decisionthat Staff had consistently accepted and used TIMDEC inputs of 60 days and 120 days for the last 30 years. In support of its motion, the State submitted an attorney affirmation, two expert declarations, the Spent Fuel Pool Consequence Study and other documents.31 F. February 14, 2014 State Petition for Review of the Partial Initial Decision On February 14, 2014, the State filed a petition for review of the Partial Initial Decision to challenge all aspects of the Boards November 27, 2013 ruling regarding NYS-12C.32 In its petition, the State noted that its motion for reconsideration and rehearing was still pending before the Board and that its petition did not rely upon the new evidence submitted in connection with that motion.33 The State also noted that NRC regulations provide that [a] petition for review 29 See NYS Reconsideration Motion; NYS Reconsideration Reply; Sipos Decl.; Mahilrajan Decl.; Lemay Decl.

30 Sipos Decl. ¶¶ 2-8.

31 NYS Reconsideration Motion; Attachments 1-7, including Sipos Decl. and Mahilrajan Decl.); NYS Reconsideration Reply; Lemay Decl.

32 NYS Petition for Review.

33 Id. at 17-18.

10

will not be granted as to issues raised before the presiding officer on a pending motion for reconsideration.34 G. April 1, 2014 Board Order on the States Motion to Reopen the Record and for Reconsideration On April 1, 2014, the Board denied the States motion and held that [w]hile the Board finds that New Yorks motion addressed a significant issue, New York did not provide sufficient information to establish that a different result would have been likely had the Board considered the new information proffered by New York when assessing the reasonableness of the TIMDEC input values accepted by the Staff in the Indian Point SAMA analysis. 35 In the Boards view, the 365 day TIMDEC value was utilized as a site specific value for the analysis of spent fuel pool accident at the Peach Bottom site.36 34 Id. (citing 10 C.F.R. § 2.341(b)(6)). Entergy filed an unopposed motion requesting that the Commission hold all appellate proceedings with respect to NYS-12C in abeyance pending the Boards resolution of the States motion for reconsideration and rehearing. Applicants Unopposed Mot. to Hold Appellate Proceedings on Contention NYS-12C in Abeyance and Parties Joint Mot. Seeking Time and Page Limit Enlargements for Filings Related to Contentions NYS-8, NYS-35/36, and CW-EC-3A (Feb.

24, 2014) (ML14055A534). In granting the motion, the Commission ordered that the time for NRC Staff and Entergy to submit their answers to the States petition would run from the Boards ruling. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Order of the Secretary on Behalf of the Commission at 2 (Feb. 28, 2014) (ML14059A539). The order also provided that the State would have five business days from the Boards ruling to inform the Commission and the parties if it sought to amend or withdraw its petition as a consequence of the ruling. Id. On April 4, 2014, the State filed a notice informing the Commission and the parties that it would not seek to amend or withdraw its pending petition, but would file a petition for review of the Boards April 1, 2014 ruling consistent with NRC regulations. State of New Yorks Notice Pursuant to the Secretarys Feb. 28, 2014 Order (April 4, 2014)

(ML14094A482).

35 April 1, 2014 Order at 2.

36 Id. at 3.

11

III. ARGUMENT A. The Commission Should Now Review the Boards April 1, 2014 Order Because It Sought Reconsideration of the Partial Initial Decision The regulations provide that petitions for review of a full or partial initial decision are authorized.37 The Commission explained that [a] partial initial decision is one rendered following an evidentiary hearing on one or more contentions, but that does not dispose of the entire matter.38 The provision expressly permitting immediate review of a partial initial decision [in 10 C.F.R. § 2.341(b)(1)] is an exception to the Commissions established policy of disfavoring interlocutory appeals.39 Here, the Board issued its Partial Initial Decision on November 27, 2014, and the State moved for reconsideration of that decision. Thus, although NRCs 10 C.F.R. § 2.341 regulations do not expressly address the scenario presented here, the Boards April 1, 2014 Order on the States motion for reconsideration of the Partial Initial Decision should be viewed as inextricably linked to, and part of, the Partial Initial Decision. Logically, a petition for review of the Partial Initial Decision and a petition for review of a Board Order on reconsideration of that same Partial Initial Decision should be reviewed at the same time. The regulations recognize a close nexus between a Board order and a motion seeking reconsideration of that order by providing that the Commissioners should not grant a petition for review of a Board order when a motion seeking reconsideration of that order is pending.40 In the interest in administrative economy, these factors support simultaneous Commission review of both orders.

37 10 C.F.R. § 2.341(b)(1).

38 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-08-02, 67 N.R.C. 31, 34 (Jan. 15, 2008).

39 Id. at 34-35.

40 10 C.F.R. § 2.341(b)(6).

12

B. Alternatively, the Commission Should Now Review the April 1, 2014 Order Because the Petition Satisfies the Interlocutory Review Standards Should the Commission decide that the April 1, 2014 Order is not, for all intents and purposes, part of the Partial Initial Decision, in these circumstances, the Commission should accept the States petition to review the Boards April 1, 2014 Order with respect to NYS-12C pursuant to 10 C.F.R. § 2.341(f)(2). A party seeking interlocutory review must demonstrate that the issue (i) Threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officers final decision; or (ii) Affects the basic structure of the proceeding in a pervasive or unusual manner.

10 C.F.R. § 2.341(f)(2)(i), (ii). The Commission may also take review of an issue on its own, pursuant to its inherent supervisory authority over NRC adjudications. Commission review of the April 1, 2014 Order is justified under either of these standards.

The State availed itself of the review opportunity provided by the Commission for Partial Initial Decisions in 10 C.F.R. § 2.341(b)(1) by filing a petition for review of the Partial Initial Decision concerning NYS-12C on February 14, 2014. The States motion to reopen and reconsider also concerned the Partial Initial Decision and NYS-12C. If the Commissioners proceed by reviewing the States February 14 petition without also accepting this petition for review of the April 1 Order, the State would suffer immediate and serious irreparable impact and the proceeding would be affected in an unusual and pervasive manner.

1. Deferring Review of the April 1, 2014 Order Affects the State in an Immediate, Serious, and Irreparable Manner The States motion to reopen and reconsider focused on Contention NYS-12C and the November 27 Partial Initial Decision. The Commissions regulations do not expressly include Board rulings on motions to reopen and motions for reconsideration of a partial initial decision 13

as within the scope of the first clause of 10 C.F.R. § 2.341(b)(1), nor do Commission regulations stay a partys time to file a petition to review of a Boards full or partial initial decision if a motion to reconsider that decision has been filed.

Commission consideration of the States pending petition for review of the Boards Partial Initial Decision without consideration of the Boards order on the States motion to reopen the record and for reconsideration of that same Partial Initial Decision with respect to Contention NYS-12 C would harm the State in an immediate, serious, and irreparable manner.

Such a decoupling would split in two the States efforts to seek appellate review of the Boards resolution of NYS-12C. Furthermore, separating the States petition for review of the November 27 Partial Initial Decision on NYS-12C from the States petition for review of the April 1 ruling on the motion to reopen the record and reconsider the Partial Initial Decision would prevent the State from presenting to the Commissionas part of the pending petition for reviewthe recently-obtained information concerning NRC Staffs own practices for TIMDEC inputs during and after the evidentiary hearing on NYS-12C. This would prevent the State from presenting a single, unified, coordinated appellate argument on NYS-12C.

2. Deferring Review of the April 1, 2014 Order Would Affect the Structure of the Proceeding in an Unusual and Pervasive Manner The Commission has promulgated regulations that permit review of the Partial Initial Decision at this time. The November 27 Partial Initial Decision and the April 1 Order both deal with the ultimate disposition of NYS-12C. Waiting until the end of the proceeding would mandate duplicative and unnecessary litigating steps because the TIMDEC issues would be reviewed by the Commission twice. Segmenting the States petition for review of the November 27 Partial Initial Decision from the petition for review of the April 1 Order on the motion to reopen the record and reconsider the Partial Initial Decision will require the Commissioners to 14

twice consider TIMDEC issues related to NYS-12C. Such a scenario will needlessly expend Commissioner and party resources. Accordingly, this petition also qualifies for interlocutory review by the Commissioners under 10 C.F.R. § 2.341(f)(2)(i), (ii).

C. The Commission Should Reverse the Boards April 1, 2014 Order Under 10 C.F.R. § 2.326(a), the record should be reopened if the motion (1) is timely, (2) addresses a significant environmental (or safety) issue, and (3) demonstrates that a materially different result would have been likely had the newly-proffered evidence been considered initially.41 Hearings may be reopened, in appropriate situations, either upon motion of any party or sua sponte.42 NRC regulations provide that the Commission may grant review of substantial questions with respect to the following considerations:

(i) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law; (iii) A substantial and important question of law, policy, or discretion has been raised; (iv) The conduct of the proceeding involved a prejudicial procedural error; or (v) Any other consideration which the Commission may deem to be in the public interest.

10 C.F.R. § 2.341(b)(4).

41 Such motion should be accompanied by affidavits setting forth the factual or technical bases for the movants request and present evidence that is admissible. 10 C.F.R. § 2.326(b). (Before the revision and organization of NRC regulations, the applicable regulation for reopening was § 2.734.)

42 Vt. Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-124, 6 A.E.C. 358 (1973). A Board may reopen the record when it becomes aware, from any source, of a significant safety issues or of possible changes in facts material to the resolution of major environmental issues. See generally Commonwealth Edison Co. (LaSalle County Nuclear Station, Units 1 & 2), ALAB-153, 6 A.E.C. 821 (1973); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

ALAB-124, 6 A.E.C. 358 (1973); Ga. Power Co. (Vogtle Nuclear Plant, Units 1 & 2), ALAB-291, 2 N.R.C. 404 (1975) (hearing may be reopened when a significant environmental issue is involved).

15

In accordance with 10 C.F.R. § 2.341(b)(2)(i)-(v), this petition sets forth the States position as to why the April 1, 2014 Order was erroneous and Commission review should be exercised.

1. The Board Improperly Overlooked the States Evidence That Would Materially Alter the Indian Point SAMA Analysis Under 10 C.F.R.

§ 2.341(b)(4)(i)

In its April 1, 2014 Order, the Board properly found that New Yorks motion addressed a significant issue.43 However, the Board then made an incorrect factual and legal conclusion when it ruled that New York did not provide sufficient information to establish that a different result would have been likely if the new information proffered by the State had been considered when assessing the reasonableness of the TIMDEC values accepted by NRC Staff. Id. Contrary to the Boards finding,44 the States motion to reopen the record and reconsider the Partial Initial Decision identified evidence already in the record and provided additional documents and testimony that the use of a 365 day TIMDEC for the four most severe accidents Entergy modeled (while maintaining Entergys values for all other parameters) would almost double the offsite economic cost risk (OECR).45 In turn, that change would render additional SAMA candidates cost beneficial and, thus, significantly and materially altering the SAMA analysis.46 43 April 1, 2014 Order at 2.

44 Id. at 2-3.

45 OECR is the value used in the cost-benefit weighing in the SAMA analysis, and represents the frequency-averaged offsite costs associated with a severe accident at Indian Point in dollars per year without implementing any SAMA candidates. See, e.g., NYS000241 at 25; ENT000464 at 11; Tr.

1913:9-13 (Teagarden).

46 Entergy previously acknowledged that only an 11% increase in costs is needed to render another SAMA (IP2 SAMA 025) cost-beneficial. See NYS Proposed Findings ¶¶ 285-89.

16

Case law is clear that a movant may rely upon documents generated by NRC Staff as well as on evidence that came into existence after the hearing closed.47 Affidavits supporting a motion to reopen must demonstrate that a materially different result is likely, i.e., the evidence supporting the motion to reopen would likely have materially altered the outcome of the proceeding.48 The State explained, in detail through the use of affidavitsfrom experts Mr.

Mahilrajan and Dr. Lemay from International Safety Research and the States counselhow the SAMA results would be materially altered with this new evidence.49 But the Boards April 1, 2014 Order contained only a few sentences on the issue. The Board failed to evaluate the new TIMDEC information and the impact it would have had on offsite economic cost risk and severe accident mitigation measures. The State submits that the failure to evaluate the new information constitutes both factual and legal error and merits Commission review under 10 C.F.R.

§ 2.341(b)(4)(i), (ii).

a. The Board Failed to Even Acknowledge, Let Alone Analyze, the States Evidence Regarding the TIMDEC/Worker Calculations The Board overlooked the States response to the December 23, 2013 Ghosh affidavit.

The Ghosh Affidavit for the first time attempted to set forth an explanation why Staff used a 365 day TIMDEC value in its MACCS2 calculations for its recent Consequence Study.50 NRC Staff and Dr. Ghosh also attempted to distinguish the 365 day TIMDEC used for the Consequence 47 La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 N.R.C. 5, 17 & n.7 (1985); Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-598, 11 N.R.C.

876, 879 n.6 (1980).

48 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-08-12, 68 N.R.C. 5, 22 affd CLI-08-28, 68 N.R.C. 658 (2008).

49 NYS Reconsideration Motion; Sipos Decl.; Mahilrajan Decl.; NYS Reconsideration Reply; Lemay Decl.

50 The Ghosh Affidavit was submitted with NRC Staffs Response to State of New York Motion to Reopen the Record and for Reconsideration of Contention NYS-12C (Dec. 23, 2013) (ML13357A775 package).

17

Study from the 60 and 120 day TIMDEC values used for the Indian Point SAMA Analysis.51 But after working with its experts to review the Ghosh affidavit, the State discovered that the Ghosh affidavit is misleading, and that expert analysis of Dr. Ghoshs assertions further supports the use of at least a 365 day TIMDEC for the Indian Point SAMA analysis, warranting reopening of the record and reconsideration of NYS-12C.52 The State explained how Dr. Ghosh focused on the way contaminated land area informed the selection of TIMDEC in the Consequence Study. Dr Ghosh asserted that [b]ecause of the large magnitude of contaminated land areas, the team chose a TIMDEC of 365 days, which is longer than what has been chosen historically in most reactor accident PRAs.53 As the States expert Dr. Lemay explained, however, Dr. Ghosh fails to acknowledge that the affected population and population density should also inform the selection of TIMDEC, especially for areas of high population density such as the area surrounding Indian Point.54 The Ghosh affidavit overlooks the impact that population and population density can have on TIMDEC.55 Thus, by overlooking affected population and population density, the Ghosh Affidavit is incomplete and thereby creates a misimpression.56 As Dr. Lemay explained, to compare the TIMDEC used in the MACCS2 Consequence Study to the MACCS2 Indian Point SAMA analysis, all factors relevant to TIMDEC should be taken into accountincluding source term, land area, and affected populationnot just 51 See NRC Staff Resp. at 13 (As stated in the attached Declaration of Dr. Tina Ghosh, one of Staffs testifying experts, the differences between the SAMA analysis performed at Indian Point and the analysis conducted for the [Consequence] Study are stark.).

52 Lemay Decl. ¶¶ 5-8.

53 Ghosh Aff. ¶ 3.

54 Lemay Decl. ¶¶ 6-7.

55 Id. ¶ 7.

56 Id.

18

contaminated land area or source term as Dr. Ghosh contends.57 A straightforward way to compare all these factors is to compare the number of workers required to decontaminate within a given TIMDEC.58 In fact, NRC Staffs prior testimony cited worker calculations as support for the 60 and 120 day TIMDEC values.59 The MACCS2 code internally calculates the number of workers.60 Dr. Lemay provides the number of workers on the chart below for the MACCS2 Consequence Study (which uses 365 day TIMDEC values for a range of accidents shown on the chart) and the MACCS2 Indian Point SAMA analysis (which uses 60 day and 120 day TIMDEC values for a range of accidents shown on the chart):

57 Id. ¶ 8.

58 Id.

59 NRC Staff Test. at A.81.

60 Lemay Decl. ¶ 8.

19

As shown in the chart, the number of workers required to decontaminate is much higher for the Indian Point SAMA analysis.61 This means that, if 365 days is appropriate for the Consequence Study, at least 365 days should be used to for the Indian Point SAMA analysis so that decontamination is carried out over a longer timeframe, using a lower, more reasonable number of workers. Using Entergys TIMDEC values, about 1.5 million workers are required to decontaminate following an EARLY HIGH accident at Indian Point.62 As Dr. Lemay testified, it strains credibility to assume that 1.5 million experienced radioactive waste decontamination workers could be mustered to respond to the severe accident.63 Furthermore, those 1.5 million workers would need to promptly travel to contaminated areas within the New York City metropolitan area, quickly start and complete decontamination work, and transport the contaminated materials and soils away from the affected areas, and dispose of the waste at a permitted disposal site. They would also require food and lodging while they performed the decontamination work. This convenient and unreasonable assumption would be remedied by a longer TIMDEC to decrease the number of workers required.

b. The Board Failed to Even Acknowledge, Let Alone Analyze, the States Evidence Showing the Severe Accident Analyzed Using a 365 day TIMDEC Is Within the Range of Accidents Entergy Modeled for the Indian Point SAMA Analysis The Board failed to even mention the States evidence comparing severe accidents. Dr.

Ghosh claimed that [t]he Spent Fuel Pool Study focused on a single challenging accident scenario: a severe accident from an example spent-fuel pool initiated by an extreme seismic 61 Id.

62 Id.

63 Id.

20

event, with an estimated frequency of occurrence of 10-7 per reactor year.64 This frequency, however, is on par with the frequencies of several of the accident scenarios, i.e. releases, examined by Entergy in its Indian Point SAMA analysis as shown in the Frequency column in Entergys Tables 5 and 6.65 Thus, Dr. Ghoshs attempt to distinguish the different scenarios based on predicted likelihood does not hold up.

c. The Board Ignored the States Proof of Materiality The April 1, 2014 Order failed to discuss the States evidence on materiality. Accepting Dr. Ghoshs proposition that a challenging accident scenario should result in longer decontamination times, Dr. Lemay created a chart showing the effect of using the 365 day TIMDEC for only the most severe accidents, i.e., the four most challenging accident scenarios that Entergy chose to model for Indian Point: EARLY HIGH, EARLY MEDIUM, LATE HIGH, and LATE MEDIUM.66 As Entergys Tables 5 and 6 show, these four accidents account for the vast majority of total accident costs.67 The results of Dr. Lemays analysis show that, altering TIMDEC to 365 days for the four accidents listed above and using Entergys values for all other parameters, the offsite economic cost risk (OECR) almost doubles.68 Thus, the use of a 365 day TIMDEC for only the most severe accidentsconsistent with the Ghosh affidavit still has a very significant effect on OECR.

64 Ghosh Aff. ¶ 3.

65 ENT000464 (ML12339A570) at Tables 5, 6 (reproduced in Lemay Decl. ¶ 10).

66 Lemay Decl. ¶ 12.

67 Id. ¶ 10.

68 Id. ¶ 12. OECR is the value used in the cost-benefit weighing in the SAMA analysis, and represents the frequency-averaged offsite costs associated with a severe accident at Indian Point in dollars per year without implementing any SAMA candidates. See, e.g., NYS000241 at 25; ENT000464 at 11; Tr.

1913:9-13 (Teagarden).

21

Lastly, the State also notes that the Ghosh affidavit is less absolute in describing Staffs TIMDEC practices than Staffs previous testimony on the subject. In discussing the MACCS2 analysis for the Consequence Study, the Ghosh affidavit states, the calculated source terms and contaminated land areas were significantly larger than those calculated in typical reactor accident probabilistic risk assessments (PRAs).69 Throughout this hearing, witnesses for NRC Staff have consistently testified that NRC has always used Sample Problem A TIMDEC values of 60 and 120 days. Now, the implication of Dr. Ghoshs sworn statement is that not every probabilistic risk assessment or MACCS2 analysis has used a TIMDEC of 60 and 120 days. This conflict in testimony further justifies reopening the record and reconsidering NYS-12C.

Rejecting NRCs general policy approach, Limerick, 869 F.2d 719 (3d Cir. 1989),

directed NRC to prepare site specific analyses of severe accidents. Given its location, a severe release of radioactive materials at Indian Point could have more serious consequences than that same release at virtually any other NRC-licensed site70 and, therefore, it is important that the severe accident analysis be based on accurate inputs. In trying to distinguish the Consequence Study from the Indian Point SAMA analysis, the Board stated that the longer duration for decontamination [in the Consequence Study] was utilized as a site specific value for a specific postulated spent fuel pool accident.71 The Board, however, missed the undisputed fact that it is the more challenging accident scenarios at Indian Point that have a substantial impact on OECR and drive the costs used in the SAMA analysis. The Boards reference to the need for a site specific value for a spent fuel pool accident in the Consequence Study (which used Peach 69 Ghosh Aff. ¶ 3 (emphasis added).

70 Consolidated Edison Co. of N.Y. (Indian Point Unit 2) and Power Auth. of the State of New York (Indian Point Unit 3), CLI-85-6, 21 N.R.C. 1043, 1049-50 (1985).

71 April 1, 2014 Order at 3.

22

Bottom as a reference), overlooks the fact that under Limerick and NRCs Part 51 regulations, severe accident mitigation alternatives analysis and the inputs to those analyses must take into account site specific considerations, such as population density, building density, size of the decontamination work force, affected natural resources, iconic and unique structures. Staff asserts that the TIMDEC value dates back to NUREG/CR-3673 (1984). But the use of a value mentioned in a document following a no containment failure accident for a key computer model input that for a required site specific severe accident analysisincluding scenarios involving containment failureis neither realistic nor rational. The fact that NRC Staff in conjunction with Sandia decided to increase the TIMDEC value for a radiation release outside of containment further diminishes Staffs position.

The State submits that the failure to evaluate the new TIMDEC information, its consequences for the Indian Point severe accident analysis, and States detailed presentation constitutes both factual and legal error and constitutes a substantial question of policy and therefore merits Commission review under 10 C.F.R. § 2.341(b)(4)(i)-(iii).

2. The Board Misapplied the Legal Standard Under 10 C.F.R.

§ 2.341(b)(4)(ii)

The Board ignored the standard for reopening, and applied its own standard in confusingly finding that the issue was significant, but not material. The Board ignored case law that shows, however, that where factual disclosures reveal a need for further development of an evidentiary record, the record may be reopened for the taking of supplementary evidence.72 Reopening has been ordered where the changed circumstances involved a hotly contested issue.73 72 Tenn. Valley Auth. (Hartsville Nuclear Plant, Units 1A, 2A, 1B & 2B), ALAB-463, 7 N.R.C. 341, 352 (1978).

73 N. Ind. Pub. Serv. Co. (Bailly Generating Station, Nuclear-1), CLI-74-39, 8 A.E.C. 631 (1974).

23

The failure to order the reopening of the record constituted an error of law and a procedural error prejudicial to the State. As such, it merits Commission review under 10 C.F.R.

§ 2.341(b)(4)(ii)-(iv).

3. Commission Review Is Also Appropriate Under 10 C.F.R.

§ 2.341(b)(4)(iii)-(v)

NRC Staff is part of an independent agency and report to, and are supervised by, the Commissioners.74 In contesting NYS-12C, NRC Staff and its witnesses from Sandia National Laboratories told the Board and the State that the short TIMDEC input values used in this proceeding were consistent with decontamination time values dating back to NUREG/CR-3673 in 1984. However, Staff and Sandia did not disclose to the Board or State that soon after NRC Staff and Sandia witnesses finished testifying in the Indian Point proceeding on NYS-12C, they abandoned what had been their practice and used a different TIMDEC input valueone that began to approach the value suggested by the States expert here. This change was relevant to NYS-12C: it provides opposition to Staffs litigation position concerning NYS-12C and provides support for the States position concerning NYS-12C. By any fair reading of 10 C.F.R. § 2.336(b), which describes Staffs disclosure obligations, and regardless of which version of that regulation applied to this proceeding, NRC Staff and Sandia should have disclosed the information. Staff did not disclose this change to the State or the Board. In failing to disclose this information, Staff prejudiced that States ability to effectively participate in this proceeding. Accordingly, Commission review is also appropriate under 10 C.F.R.

§ 2.341(b)(4)(iii), (iv), (v).

74 In re Aiken County, 645 F.3d 428, 440-447 (D.C. Cir. 2011) (Kavanaugh, C.J. concurring) (discussing Humphreys Executor, 295 U.S. 602 (1935)).

24

IV. CONCLUSION NRC Staffs use of a 365 day TIMDEC value in the Consequence Study contradicts the sworn testimony it provided in this proceeding and demonstrates that NRC Staff should have required that Entergy use a 365 day or greater TIMDEC value for the Indian Point SAMA analysis. Based on this information, the Commission should resolve the TIMDEC issues in NYS-12C in favor of the State and hold that the Director of Nuclear Reactor Regulation is not authorized to issue, and may not issue, renewed operating licenses for the Indian Point nuclear power plants Units 2 and 3 unless and until NRC Staff cures the deficiencies in the FSEIS in a supplement that is circulated for public comment. Furthermore, the Commission should order the admission of the new evidence presented by the State into the record and remand the contention to the Board for additional discovery and adjudicatory hearing.

For the foregoing reasons, the Commission should grant review of the Boards April 1, 2014 Order. In its discretion under 10 C.F.R. § 2.341(c)(2), the Commission should, as it deems appropriate, either require additional briefing or decide the matter on the basis of the petition for review, reversing the April 1, 2014 Order.

Respectfully submitted, Signed (electronically) by Signed (electronically) by John J. Sipos Kathryn M. DeLuca Assistant Attorneys General Assistant Attorney General Office of the Attorney General Office of the Attorney General of the State of New York of the State of New York The Capitol 120 Broadway Albany, New York 12224 New York, New York 10271 (518) 402-2251 (212) 416-8482 Dated: April 28, 2014 25

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS

x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 28, 2014

x CERTIFICATE OF SERVICE I hereby certify that on April 28, 2014, copies of the State of New York Petition for Review of ALSB April 1, 2014 Decision Denying the States Motion for Reconsideration of the Boards November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS-12C were served electronically via the Electronic Information Exchange on the following recipients:

Lawrence G. McDade, Chair Carter Thurman, Esq., Law Clerk Richard E. Wardwell, Administrative Judge James Maltese, Esq., Law Clerk Michael F. Kennedy, Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Carter.Thurman@nrc.gov Lawrence.McDade@nrc.gov James.Maltese@nrc.gov Richard.Wardwell@nrc.gov Michael.Kennedy@nrc.gov Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 16 G4 Mailstop 3 F23 One White Flint North Two White Flint North 11555 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 ocaamail@nrc.gov 1

Office of the Secretary Bobby R. Burchfield, Esq.

Attn: Rulemaking and Adjudications Staff Matthew M. Leland, Esq.

U.S. Nuclear Regulatory Commission Clint A. Carpenter, Esq.

Mailstop 3 F23 McDermott Will & Emery LLC Two White Flint North 600 13th Street, NW 11545 Rockville Pike Washington, DC 20005-3096 Rockville, MD 20852-2738 bburchfield@mwe.com hearingdocket@nrc.gov mleland@mwe.com ccarpenter@mwe.com Sherwin E. Turk, Esq.

David E. Roth, Esq. Richard A. Meserve, Esq.

Beth N. Mizuno, Esq. Matthew W. Swinehart, Esq.

Brian G. Harris, Esq. Covington & Burling LLP Anita Ghosh, Esq. 1201 Pennsylvania Avenue, NW Office of the General Counsel Washington, DC 20004-2401 U.S. Nuclear Regulatory Commission rmeserve@cov.com Mailstop 15 D21 mswinehart@cov.com One White Flint North 11555 Rockville Pike Elise N. Zoli, Esq.

Rockville, MD 20852-2738 Goodwin Procter, LLP sherwin.turk@nrc.gov Exchange Place david.roth@nrc.gov 53 State Street beth.mizuno@nrc.gov Boston, MA 02109 brian.harris@nrc.gov ezoli@goodwinprocter.com anita.ghosh@nrc.gov William C. Dennis, Esq.

Kathryn M. Sutton, Esq. Assistant General Counsel Paul M. Bessette, Esq. Entergy Nuclear Operations, Inc.

Raphael Kuyler, Esq. 440 Hamilton Avenue Lance A. Escher, Esq. White Plains, NY 10601 Morgan, Lewis & Bockius LLP wdennis@entergy.com 1111 Pennsylvania Avenue, NW Washington, DC 20004 Robert D. Snook, Esq.

ksutton@morganlewis.com Assistant Attorney General pbessette@morganlewis.com Office of the Attorney General rkuyler@morganlewis.com State of Connecticut leascher@morganlewis.com 55 Elm Street P.O. Box 120 Martin J. ONeill, Esq. Hartford, CT 06141-0120 Morgan, Lewis & Bockius LLP robert.snook@ct.gov Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com 2

Melissa-Jean Rotini, Esq. Richard Webster, Esq.

Assistant County Attorney Public Justice, P.C.

Office of the Westchester County Attorney Suite 200 Michaelian Office Building 1825 K Street, NW 148 Martine Avenue, 6th Floor Washington, DC 20006 White Plains, NY 10601 rwebster@publicjustice.net MJR1@westchestergov.com Andrew B. Reid, Esq.

Sean Murray, Mayor Springer & Steinberg, P.C.

Kevin Hay, Village Administrator 1600 Broadway, Suite 1200 Village of Buchanan Denver, CO 80202 Municipal Building areid@springersteinberg.com 236 Tate Avenue Buchanan, NY 10511-1298 Phillip Musegaas, Esq.

Administrator@villageofbuchanan.com Deborah Brancato, Esq.

smurray@villageofbuchanan.com Riverkeeper, Inc.

20 Secor Road Daniel Riesel, Esq. Ossining, NY 10562 Thomas F. Wood, Esq. phillip@riverkeeper.org Victoria S. Treanor, Esq. dbrancato@riverkeeper.org Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com Michael J. Delaney, Esq.

Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 mdelaney@dep.nyc.gov Signed (electronically) by Kathryn M. DeLuca Assistant Attorney General State of New York (212) 416-8482 Dated at Albany, New York this 28th day of April 2014 3

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