ML101380085

NRC Staff’S Reply to Pilgrim Watch Response to Board’S May 5, 2010 Order

ML101380085
Person / Time
Site:	Pilgrim
Issue date:	05/17/2010
From:	Dreher M, Harris B, Uttal S NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY/RAS
References
50-293-LR, ASLB-06-848-02-LR, RAS J-229
Download: ML101380085 (7)

Text

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

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ENTERGY NUCLEAR GENERATION COMPANY AND ENTERGY NUCLEAR 1

OPERATIONS, INC.

(Pilgrim Nuclear Power Station)

Docket No. 50-293-LR NRC STAFF'S REPLY TO PII-GRIM WATCH RESPONSE BOARD'S MAY 5,2010 ORDER INTRODUCTION Pursuant to the Atomic Safety and Licensing Board's ("Board") Order (Regarding Deadlines for Submissions of Parties) of May 5, 2010 ("Board's Order"), the staff of the U.S.

Nuclear Regulatory Commission ("Staff') hereby submits this reply to Pilgrim Watch ("PW")

Response to ASLB's May 5, 201 0 Order ("PW's Response").

The Commission explicitly limited the scope of the remanded contention to the effects of additional meteorological data or alternative meteorological models on the conclusions of the Pilgrim Nuclear Power Station's ("Pilgrim1') Severe Accident Mitigation Analysis ("SAMA).

Specifically, they affirmed most of the Board's majority opinion including the holding that PW failed to establish that a genuine issue of material dispute existed with respect to evacuation times and economic costs. Moreover, the Commission carefully explained that PW impermissibly challenged the regulations by challenging probabilistic risk analysis ("PRA"). PW now argues that the Commission's Order essentially remanded Contention 3 without limitation.

The arguments PW seeks to advance include economic costs, evacuation times, and PRA among others. PW's Response seeks to bypass the Commission's Order by ignoring the clear instructions of the Commission to first determine if PW's meteorological concerns would result in the identification of a newly cost-beneficial SAMA. Only if the Board decides for PW in this first UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ENTERGY NUCLEAR GENERATION COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC.

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Docket No. 50-293-LR (Pilgrim Nuclear Power Station)

NRC STAFF'S REPLY TO PILGRIM WATCH RESPONSE BOARD'S MAY 5, 2010 ORDER INTRODUCTION Pursuant to the Atomic Safety and Licensing Board's ("Board") Order (Regarding Deadlines for Submissions of Parties) of May 5, 2010 ("Board's Order"), the staff of the U.S.

Nuclear Regulatory Commission ("Staff") hereby submits this reply to Pilgrim Watch ("PW")

Response to ASLB's May 5, 2010 Order ("PW's Response").

The Commission explicitly limited the scope of the remanded contention to the effects of additional meteorological data or alternative meteorological models on the conclusions of the Pilgrim Nuclear Power Station's ("Pilgrim") Severe Accident Mitigation Analysis ("SAMA").

Specifically, they affirmed most of the Board's majority opinion including the holding that PW failed to establish that a genuine issue of material dispute existed with respect to evacuation times and economic costs. Moreover, the Commission carefully explained that PW impermissibly challenged the regulations by challenging probabilistic risk analysis ("PRA"). PW now argues that the Commission's Order essentially remanded Contention 3 without limitation.

The arguments PW seeks to advance include economic costs, evacuation times, and PRA among others. PW's Response seeks to bypass the Commission's Order by ignoring the clear instructions of the Commission to first determine if PW's meteorological concerns would result in the identification of a newly cost-beneficial SAMA. Only if the Board decides for PW in this first

instance, will it need to look at the second issue: the effect of changes to the meteorological inputs or meteorological models on economic costs.

DISCUSSION First, PW's Response essentially argues that PW must be allowed to challenge all aspects of Pilgrim's SAMA analysis because the Board will not be able to determine if any particular issue would be material. Second, PW argues, despite the Commission's clear instructions, that it must be allowed to present evidence regarding the clean-up costs and increasing the regulatory area of analysis.' Finally, PW argues that the Board cannot separate PW's meteorological concerns from the concerns about the economic costs and evacuation time. Each of PW's arguments ignores the Commission's instructions for the proper conduct of the remanded pr~ceeding.~

I. The Remanded Contention Excludes Separate and Distinct Challenges to Pilgrim's SAMAs Based on Economic Costs and Evacuation Timinq The Commission plainly excluded challenges to Pilgrim's SAMA analysis based directly on economic costs, evacuation times, the size of the affected area, economic infrastructure, and clean-up costs.3 The Commission stated that PW's arguments were "insufficient to demonstrate a genuine material dispute with the Pilgrim SAMA analysis's current overall cost-benefit conclusions...."4 Similarly, the Commission held that PW "failed to present significantly probative evidence countering the Entergy expert evidence and supplemental analysis on economic cost^."^ But, now, PW seeks to expand the scope of its contention as originally plead, as admitted by this Board, and as further limited by the Commission, by not limiting its 1 PW's Response at 4.

2 Id.

3 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11 ("Commission's Order"), 71 NRC -

(March 26, 2010) (slip op. at 25, 27, 36).

4 Id. at 36 5 Id. instance, will it need to look at the second issue: the effect of changes to the meteorological inputs or meteorological models on economic costs.

DISCUSSION First, PW's Response essentially argues that PW must be allowed to challenge all aspects of Pilgrim's SAMA analysis because the Board will not be able to determine if any particular issue would be material. Second, PW argues, despite the Commission's clear instructions, that it must be allowed to present evidence regarding the clean-up costs and increasing the regulatory area of analysis. 1 Finally, PW argues that the Board cannot separate PW's meteorological concerns from the concerns about the economic costs and evacuation time. Each of PW's arguments ignores the Commission's instructions for the proper conduct of the remanded proceeding.2 I.

The Remanded Contention Excludes Separate and Distinct Challenges to Pilgrim's SAMAs Based on Economic Costs and Evacuation Timing The Commission plainly excluded challenges to Pilgrim's SAMA analysis based directly on economic costs, evacuation times, the size of the affected area, economic infrastructure, and clean-up costS.3 The Commission stated that PW's arguments were "insufficient to demonstrate a genuine material dispute with the Pilgrim SAMA analysis's current overall cost-benefit conclusions....,,4 Similarly, the Commission held that PW "failed to present significantly probative evidence countering the Entergy expert evidence and supplemental analysis on economic costS."5 But, now, PW seeks to expand the scope of its contention as originally plead, as admitted by this Board, and as further limited by the Commission, by not limiting its 1 PW's Response at 4.

2 Id.

3 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11 ("Commission's Order"), 71 NRC _ (March 26, 2010) (slip op. at 25,27,36).

4 Id. at 36.

5 Id.

challenges to the potential effects of altering the meteorological inputs to the MACCS2 code or using alternative meteorological models. PW asserts, without basis, that it may challenge a "wide range" of inputs including the size of the impacted area, damages to economic infrastructure other than loss of tourism and business value, clean-up costs, and PRA' among others.

However, the Commission addressed each of these issues in detail. The Board is required to determine if any newly cost-beneficial SAMAs would result from the use of additional meteorological data or alternative meteorological models, before looking at the effects on the loss of tourism. PW, in effect, attempts to avoid this limitation by essentially arguing that any change is material regardless of its effect on Pilgrim's SAMA analysis or that the Board is incapable of determining the materiality of the PW's meteorological challenges without analyzing all its other unrelated issues. Nonetheless, the Commission excluded clean-up costs, new challenges to the economic costs not previously raised, and challenges to economic costs, except and until PW proves that a materially different result of the SAMA analysis necessarily results from the meteorological changes. PW, also, suggests expanding the size of the impacted area, even though an area with a 50-mile radius is normally analyzed. This change precludes resolving the contention by preventing a valid comparison of potentially cost-beneficial SAMAs. As such, PW should not be allowed to unfairly expand the scope of the contention as though no litigation or decisions have occurred. Further, the Board should limit PW's arguments to the sole remaining dispute, namely: will the use of additional meteorological data or alternative meteorological rnodels identify newly cost-beneficial SAMAs.

II. The Commission Held That PW's Challenqes of PRA Are Impermissible PW argues that the probabilistic risk analysis is not required and that other types of statistical analysis should be used.7 The Commission held that challenges to PRA were outside 6 PRA is addressed more fully in section II, infra.

PW'S Response at 2-3. PW questions whether PRA is even required by regulation. Id. Under challenges to the potential effects of altering the meteorological inputs to the MACCS2 code or using alternative meteorological models. PW asserts, without basis, that it may challenge a "wide range" of inputs including the size of the impacted area, damages to economic infrastructure other than loss of tourism and business value, clean-up costs, and PRA6 among others.

However, the Commission addressed each of these issues in detail. The Board is required to determine if any newly cost-beneficial SAMAs would result from the use of additional meteorological data or alternative meteorological models, before looking at the effects on the loss of tourism. PW, in effect, attempts to avoid this limitation by essentially arguing that any change is material regardless of its effect on Pilgrim's SAMA analysis or that the Board is incapable of determining the materiality of the PW's meteorological challenges without analyzing all its other unrelated issues. Nonetheless, the Commission excluded clean-up costs, new challenges to the economic costs not previously raised, and challenges to economic costs, except and until PW proves that a materially different result of the SAMA analysis necessarily results from the meteorological changes. PW, also, suggests expanding the size of the impacted area, even though an area with a 50-mile radius is normally analyzed. This change precludes resolving the contention by preventing a valid comparison of potentially cost-beneficial SAMAs. As such, PW should not be allowed to unfairly expand the scope of the contention as though no litigation or decisions have occurred. Further, the Board should limit PW's arguments to the sole remaining dispute, namely: will the use of additional meteorological data or alternative meteorological rnodels identify newly cost-beneficial SAMAs.

II. The Commission Held That PW's Challenges of PRA Are Impermissible PW argues that the probabilistic risk analysis is not required and that other types of statistical analysis should be used.? The Commission held that challenges to PRA were outside 6 PRA is addressed more fully in section II, infra.

? PW's Response at 2-3. PW questions whether PRA is even required by regulation. Id. Under

the scope of license renewal proceedings and could not be asserted by PW.' The Commission stated that "[PRA] claims fall beyond the scope of [the] NRC SAMA analysis and impermissibly challenge our regu~ations."~

Similarly, PW wishes to challenge the size of the area to be analyzed by Pilgrim's SAMA. Again, as the Commission explained, challenges to regulations are not within the scope of this hearing. If PW wishes to challenge the use of PRA techniques for SAMA analysis or the size of the analyzed area, it must, instead, petition the Commission for rulemaking. Since PW is precluded from raising the issue of the use of PRA in the Pilgrim license renewal hearing, the scope of the remanded contention should exclude any challenge to PRA and any other challenge PW raises regarding the regulations governing Pilgrim's SAMA analysis.

Ill. The Commission's Order Requires the Board to First Determine If the Effects of PW's Meteorological Concerns on Pilarim's SAMAAnalysis Would Result in The Identification of Newly Cost-Beneficial SAMAs PW urges this Board to collapse the inquiry directed by the Commission into a single issue for hearing covering essentially any aspect of the arguments." But the Commission was clear that the Board must first resolve whether PW's additional meteorological data or alternative meteorological models would materially alter the conclusions of Pilgrim's SAMA analysis. Absent a conclusion that newly identified SAMAs result from PW's meteorological challenges, the Board need not consider or resolve the effects of the meteorology on any economic costs.13 To do otherwise would fail to resolve the Commission's stated issue -

10 C.F.R. 9 50.54(f), the Commission required plants including Pilgrim to conduct systemic risk assessments with PRA being an approved method. See, e.g., Generic Letter No. 88-20, "Individual Plant Examination for Severe Accident Vulnerabilities - 10 CFR §50.54(f)," (November 23, 1988).

' Commission~s Order at 36-37.

9 Id. at 33.

10 Id. at 36-37.

11 PW's Response at 6-8.

l 2 Commission's Order at 27, 35, 37.

l 3 Id. the scope of license renewal proceedings and could not be asserted by PW.8 The Commission stated that U[PRA] claims fall beyond the scope of [the] NRC SAMA analysis and impermissibly challenge our regulations."g Similarly, PW wishes to challenge the size of the area to be analyzed by Pilgrim's SAMA. Again, as the Commission explained, challenges to regulations are not within the scope of this hearing. 10 If PW wishes to challenge the use of PRA techniques for SAMA analysis or the size of the analyzed area, it must, instead, petition the Commission for rulemaking. Since PW is precluded from raising the issue of the use of PRA in the Pilgrim license renewal hearing, the scope of the remanded contention should exclude any challenge to PRA and any other challenge PW raises regarding the regulations governing Pilgrim's SAMA analysis.

III. The Commission's Order Reguires the Board to First Determine If the Effects of PW's Meteorological Concerns on Pilgrim's SAMAAnalysis Would Result in The Identification of Newly Cost-Beneficial SAMAs PW urges this Board to collapse the inquiry directed by the Commission into a single issue for hearing covering essentially any aspect of the arguments. 11 But the Commission was clear that the Board must first resolve whether PW's additional meteorological data or alternative meteorological models would materially alter the conclusions of Pilgrim's SAMA analysis. 12 Absent a conclusion that newly identified SAMAs result from PW's meteorological challenges, the Board need not consider or resolve the effects of the meteorology on any economic costS. 13 To do otherwise would fail to resolve the Commission's stated issue-10 C.F.R. § 50.54(f), the Commission required plants including Pilgrim to conduct systemic risk assessments with PRA being an approved method. See, e.g., Generic Letter No. 88-20, "Individual Plant Examination for Severe Accident Vulnerabilities -10 CFR §50.54(f)," (November 23,1988).

8 Commission's Order at 36-37.

9 'd. at 33.

10 'd. at 36-37.

11 PW's Response at 6-8.

12 Commission's Order at 27, 35, 37.

13 'd.

"whether the Pilgrim SAMA analysis resulted in an erroneous conclusion on the SAMAs found to be cost-beneficial to implement" because of the use of the Gaussian plume model incorporated in the ATMOS module to the MACCS2 code.14 Because any inquiry into the effects of meteorological challenges on economic costs are conditioned on the Board's findings of material effects on the Pilgrim's SAMA analysis, conducting an evidentiary hearing on issues that are not material to the resolution of that issue would undermine the intent of the Commission for a limited hearing on remand.

CONCLUSION Because the Commission limited the scope of the remanded contention to additional meteorological data or alternative meteorological models and the Board is capable of resolving if these limited issues would result in the identification of newly cost-beneficial SAMAs, the Board should limit the scope of the hearing to issues remanded by the Commission. Only if the Board determines that the meteorological issues would result in newly identified SAMAs, should the Board allow PW to present evidence regarding how meteorological challenges affect the economic costs. Thus, the use of a single hearing limited to whether PW's meteorological issues are material to Pilgrim's SAMA analysis would result in the most efficient use of resources and clearest record for the Board's decision.

Respectfully submitted, A

Susan L. Uttal Brian G. Harris Michael G. Dreher Counsel for NRC Staff Dated at Rockville, Maryland This 17th day of May, 201 0 14 See Commission's Order at 36-37. "whether the Pilgrim SAMA analysis resulted in an erroneous conclusion on the SAMAs found to be cost-beneficial to implement" because of the use of the Gaussian plume model incorporated in the ATMOS module to the MACCS2 code. 14 Because any inquiry into the effects of meteorological challenges on economic costs are conditioned on the Board's findings of material effects on the Pilgrim's SAMA analysis, conducting an evidentiary hearing on issues that are not material to the resolution of that issue would undermine the intent of the Commission for a limited hearing on remand.

CONCLUSION Because the Commission limited the scope of the remanded contention to additional meteorological data or alternative meteorological models and the Board is capable of resolving if these limited issues would result in the identification of newly cost-beneficial SAMAs, the Board should limit the scope of the hearing to issues remanded by the Commission. Only if the Board determines that the meteorological issues would result in newly identified SAMAs, should the Board allow PW to present evidence regarding how meteorological challenges affect the economic costs. Thus, the use of a single hearing limited to whether PW's meteorological issues are material to Pilgrim's SAMA analysis would result in the most efficient use of resources and clearest record for the Board's decision.

Dated at Rockville, Maryland This 17th day of May, 2010 14 See Commission's Order at 36-37.

Susan L. Uttal Brian G. Harris Michael G. Dreher Counsel for NRC Staff

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

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ENTERGY NUCLEAR GENERATION i

1 COMPANY AND ENTERGY NUCLEAR

)Docket No. 50-293-LR OPERATIONS, INC.

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(Pilgrim Nuclear Generating Station) 1 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC Staff's Reply To Pilgrim Watch Response Board's May 5, 2010 Order" in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commission's internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 17'~

day of May, 2010.

Administrative Judge Administrative Judge Richard F. Cole Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Paul.Abramson@nrc.qov Administrative Judge Office of Commission Appellate Ann Marshall Young, Chair Adjudication Atomic Safety and Licensing Board Panel Mail Stop: 0-16G4 Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.sov E-mail: Ann.Younq@nrc.nov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (VIA INTERNAL MAIL ONLY)

Office of the Secretary Attn: Rulemakings and Adjudications Staff Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearinq.Docket@nrc.qov UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ENTERGY NUCLEAR GENERATION COMPANY AND ENTERGY NUCLEAR OPERATIONS, INC.

(Pilgrim Nuclear Generating Station)

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)Docket No. 50-293-LR

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CERTIFICATE OF SERVICE I hereby certify that copies of "NRC Staff's Reply To Pilgrim Watch Response Board's May 5, 2010 Order" in the above-captioned proceeding have been served on the following by electronic mail and by deposit in the U.S. Nuclear Regulatory Commission's internal mail system, or, as indicated by an asterisk (*), by electronic mail and by deposit in the U.S. Mail system this 1 th day of May, 2010.

Administrative Judge Richard F. Cole Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Richard.Cole@nrc.gov Administrative Judge Ann Marshall Young, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Ann.Young@nrc.gov Atomic Safety and Licensing Board Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (VIA INTERNAL MAIL ONLY)

Administrative Judge Paul B. Abramson Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: PauI.Abramson@nrc.gov Office of Commission Appellate Adjudication Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov Office of the Secretary Attn: Rulemakings and Adjudications Staff Mail Stop: 0-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: Hearing.Docket@nrc.gov

Sheila Slocum Hollis*

Duane Morris LLP 1667 K Street, NW, Suite 700 Washington, DC 20006 E-mail: sshollis@duanemorris.com Mary Lampert*

148 Washington Street Duxbury, MA 02332 E-mail: mary.lampert@comcast.net Chief Kevin M. Nord*

Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street Duxbury, MA 02332 E-mail: nord@town.duxbury.ma.us Richard R. MacDonald*

Town Manager 878 Tremont Street Duxbury, MA 02332 E-mail: macdonald@town.duxbur~. ma. us Terence A. Burke, Esq.*

Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 3921 3 E-mail: tburke@enterqy.com David R. Lewis, Esq*.

Paul A. Gaukler, Esq.

Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Washington, DC 20037-11 37 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburvlaw.com Town Manager*

Town of Plymouth 11 Lincoln St.

Plymouth, MA 02360 E-mail: marrighi@townhalI.~lymouth.ma.us Matthew Brock, Esq.*

Assistant Attorney General, Chief Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, MA 021 08 E-mail: matthew.brock@state.ma.us Counsel for the NRC Staff Sheila Slocum Hollis*

Duane Morris LLP 1667 K Street, NW, Suite 700 Washington, DC 20006 E-mail: sshollis@duanemorris.com Mary Lampert*

148 Washington Street Duxbury, MA 02332 E-mail: mary.lampert@comcast.net Chief Kevin M. Nord*

Fire Chief & Director Duxbury Emergency Management Agency 668 Tremont Street Duxbury, MA 02332 E-mail: nord@town.duxburv.ma.us Richard R. MacDonald*

Town Manager 878 Tremont Street Duxbury, MA 02332 E-mail: macdonald@town.duxbury.ma.us -

Terence A. Burke, Esq.*

Entergy Nuclear 1340 Echelon Parkway Mail Stop: M-ECH-62 Jackson, MS 39213 E-mail: tburke@entergy.com David R. Lewis, Esq*.

Paul A. Gaukler, Esq.

Pillsbury, Winthrop, Shaw, Pittman, LLP 2300 N Street, NW Washington, DC 20037-1137 E-mail: david.lewis@pillsburylaw.com paul.gaukler@pillsburvlaw.com Town Manager*

Town of Plymouth 11 Lincoln St.

Plymouth, MA 02360 E-mail: marrighi@townhall.plymouth.ma.us Matthew Brock, Esq.

• Assistant Attorney General, Chief Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, MA 02108 E-mail: matthew.brock@state.ma.us

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Brian G.

s Counsel for the NRC Staff