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{{#Wiki_filter: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 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
{{#Wiki_filter:UNITED UNITED STATES STATES OF    OF AMERICA AMERICA NUCLEAR NUCLEAR REGULATORY REGULATORY COMMISSION COMMISSION BEFORE BEFORE THE THE ATOMIC ATOMIC SAFETYSAFETY AND  AND LICENSING LICENSING BOARD BOARD In the In  the Matter Matter of of                                        )
("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").
ENTERGY NUCLEAR ENTERGY       NUCLEAR GENERATION GENERATION                    )
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. ) ) ) ) ) ) ) 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")
COMPANYAND COMPANY       AND ENTERGY ENTERGY NUCLEAR NUCLEAR                  )1           Docket No.
Order (Regarding Deadlines for Submissions of Parties) of May 5, 2010 ("Board's Order"), the staff of the U.S. Nuclear Regulatory Commission
Docket    No. 50-293-LR 50-293-LR OPERATIONS, INC.
("Staff")
OPERATIONS,        INC.                                    )
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 Nuclear (Pilgrim  Nuclear Power Power Station)
("Pilgrim")
Station)                      )
Severe Accident Mitigation Analysis ("SAMA").
NRC NRC STAFF'S STAFF'S REPLYREPLY TO   TO PILGRIM PII-GRIM WATCH WATCH
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.
===RESPONSE===
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.~
RESPONSE BOARD'S  BOARD'S MAY   MAY 5,  2010 ORDER 5,2010   ORDER INTRODUCTION INTRODUCTION Pursuant to Pursuant    to the the Atomic Atomic Safety Safety andand Licensing Licensing Board's Board's ("Board")
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^."^
("Board") Order Order (Regarding (Regarding Deadlines        Submissions of Deadlines for Submissions       of Parties)
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.
Parties) of of May May 5,5, 2010 2010 ("Board's
at 25, 27, 36).
("Board's Order"),
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.
Order"), the the staff staff of the the U.S.
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.
U.S.
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
Nuclear Nuclear Regulatory Regulatory Commission Commission ("Staff")
.... ,,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
("Staff') hereby hereby submits submits this this reply reply to to Pilgrim Pilgrim Watch Watch ("PW")
("Commission's Order"), 71 NRC _ (March 26, 2010) (slip op. at 25,27,36).
("PW")
4 Id. at 36. 5 Id.
Response to Response        ASLB's May to ASLB's   May 5, 5, 2010 2010 Order Order ("PW's
challenges to the potential effects of altering the meteorological inputs to the MACCS2 code or using alternative meteorological models.
("PW's Response").
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.
Response").
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.
The Commission The   Commission explicitly explicitly limited limited the the scope scope of the the remanded remanded contention contention to to the the effects effects of additional meteorological additional    meteorological data data or or alternative alternative meteorological meteorological models models on on the the conclusions conclusions of the    the Pilgrim Nuclear Pilgrim  Nuclear Power Power Station's Station's ("Pilgrim")
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.
("Pilgrim1')Severe Severe Accident Accident Mitigation Mitigation Analysis Analysis ("SAMA").
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 PRA 6 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.
("SAMA).
This change precludes resolving the contention by preventing a valid comparison of potentially 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.
Specifically, they Specifically,  they affirmed affirmed most most of thethe Board's Board's majority majority opinion opinion including including the the holding holding thatthat PW PW failed to failed  to establish establish that that a genuine genuine issue issue of material material dispute dispute existed existed with with respect respect toto evacuation evacuation times and times  and economic costs.costs. Moreover, Moreover, the the Commission Commission carefully carefully explained explained that PW  PW impermissibly challenged impermissibly    challenged thethe regulations regulations by by challenging challenging probabilistic probabilistic risk risk analysis analysis ("PRA").
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.
("PRA"). PW  PW now argues now  argues that that the the Commission's Commission's Order Order essentially essentially remanded remanded Contention Contention 33 without without limitation.
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."~
limitation.
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.
The arguments The    arguments PW PW seeks seeks to to advance advance include include economic economic costs, costs, evacuation evacuation times, times, andand PRA PRA among others.
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.
among    others. PW's PW's Response Response seeks seeks to to bypass bypass the the Commission's Commission's OrderOrder byby ignoring ignoring the the clear instructions of the instructions    the Commission Commission to      first determine to first determine if PW'sPW's meteorological meteorological concerns concerns would would result result in in the identification the   identification of aa newly newly cost-beneficial cost-beneficial SAMA.SAMA. Only Only if the the Board Board decides decides for PW PW in in this this first first
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. l2 Commission's Order at 27, 35, 37. l3 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.
instance, will it need instance,              need to look at the second issue:  issue: the effect of changes to the meteorological inputs or meteorological models on economic costs.           costs.
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.
DISCUSSION DISCUSSION First, PW's Response essentially argues that PW must be First,                                                                   be allowed allowed to challenge all  all aspects of Pilgrim's SAMA analysis because the Board             Board will not be be able to determine if any particular issue would be        be material.
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.
material. Second, Second, PW argues, argues, despite the Commission's clear instructions, that it must be instructions,                       be allowed allowed to present evidence regarding regarding the clean-up costs and    and 1
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
increasing the regulatory area of analysis. analysis.' Finally, Finally, PW argues that the Board Board cannot separate PW's meteorological concerns from the concerns        concerns about the economic costs and evacuation time. Each time. Each of PW's arguments ignores the Commission's      Commission's instructions for the proper conduct of p r ~ c e e d i n2g . ~
-10 CFR §50.54(f)," (November 23,1988).
remanded proceeding.
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.
the remanded I.I.      Remanded Contention Excludes The Remanded                            Excludes Separate and and Distinct Challenges to Pilgrim's SAMAs SAMAs Based on Economic Costs and Evacuation Based                                        Evacuation Timing Timinq The Commission plainly excluded        excluded challenges to Pilgrim's Pilgrim's SAMA analysis based based directly on economic costs, costs, evacuation times,  times, the size of the affected affected area, area, economic infrastructure, infrastructure, and and costs.3 The Commission clean-up costS.3                Commission statedstated that PW's PW's arguments were "insufficient to demonstrate a genuine material dispute with the Pilgrim      Pilgrim SAMA analysis's current overall overall cost-benefit conclusions .... . . .."4  Similarly, the Commission
"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.
                      ,,4 Similarly,         Commission heldheld that PW "failed "failed to present significantly probative evidence countering the Entergy expert evidence and supplemental analysis on cost^."^ But, economic costS."5          But, now, now, PW seeks to expandexpand the scope of its contention as originally plead,  plead, as admitted by this Board,  Board, and as further limited limited by the Commission, Commission, by not limiting limiting its its 1
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.
1            Response at 4.
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.
PW's Response 2
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 ) ENTERGY NUCLEAR GENERATION i 1 COMPANY AND ENTERGY NUCLEAR )Docket No. 50-293-LR OPERATIONS, INC.
2  Id.
1 1 (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) ) ) ) )Docket No. 50-293-LR )
Id.
) ) 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*
3 3  Entergy Nuclear Generation Company and Entergy Nuclear Operations,    Operations, Inc.
Town Manager 878 Tremont Street Duxbury, MA 02332 E-mail: macdonald@town.duxbur~.
Inc. (Pilgrim (Pilgrim Nuclear Power Station),
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*.
Station), CLI-10-11 CLI-10-11 ("Commission's Order"),
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*
Order"), 71 71 NRC -   (March 26,
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.
_ (March  26, 2010) (slip op.
* 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
op. at 25,27,36).
.. _OJ .vk" 0 /' c /' Brian G. s Counsel for the NRC Staff}}
25, 27, 36).
4 4  Id. at 36.
Id.       36 5
5  Id.
Id.
 
challenges to the potential challenges            potential effects effects of altering altering the meteorological meteorological inputs inputs to the MACCS2 MACCS2 codecode or using alternative using  alternative meteorological meteorological models.
models. PW asserts, asserts, without basis, basis, that it may challenge challenge a "wide range" "wide  range" of inputs inputs including including the size of the impacted impacted area,area, damages damages to economic infrastructure other than loss infrastructure                loss of tourism tourism and and business business value,value, clean-up clean-up costs, costs, and   PRA'6 among and PRA    among others.
others.
However, the Commission However,       Commission addressed addressed each each of these issuesissues inin detail.
detail. The Board Board is required to determine if any newly cost-beneficial required                                    cost-beneficial SAMAs would            result from the use of additional would result                        additional meteorological data or alternative meteorological meteorological                              meteorological models,models, before before looking looking at the effects effects on on the loss of tourism.
loss    tourism. PW,PW, in in effect, effect, attempts attempts to avoid avoid this limitation limitation by essentially arguing that any change is material change        material regardless regardless of its effect on Pilgrim's Pilgrim's SAMA analysisanalysis or that the Board Board is incapable of determining the materiality of the PW's meteorological incapable                                                            meteorological challenges challenges without analyzing analyzing all its all its other unrelated unrelated issues.
issues. Nonetheless, Nonetheless, the Commission Commission excluded excluded clean-up clean-up costs, costs, new challenges to the economic costs challenges                          costs not previously previously raised, raised, and and challenges challenges to economic costs, costs, and until except and    until PW proves proves that a materially materially different resultresult of the SAMA analysis necessarily results from the meteorological results              meteorological changes.
changes. PW, PW, also, also, suggests suggests expanding expanding the size of the impacted area, impacted    area, even even though an    an area with a 50-mile 50-mile radius radius is normally normally analyzed.
analyzed. This change change precludes resolving precludes    resolving the contention contention by preventing preventing a valid comparison comparison of potentially cost-beneficial SAMAs.
beneficial    SAMAs. As such,such, PW should should not be be allowed allowed to unfairly expand expand the scope of the contention as though no litigation contention                    litigation or decisions have  have occurred.
occurred. Further, Further, the Board Board should should limit limit PW's arguments PW's   arguments to the sole sole remaining remaining dispute, dispute, namely:
namely: will the use use of additional additional meteorological meteorological meteorological rnodels data or alternative meteorological          rnodels identify newly cost-beneficial cost-beneficial SAMAs.
SAMAs.
II. The Commission II.         Commission Held Held That PW's PW's Challenges Challenqes of PRA Are Impermissible Impermissible probabilistic risk analysis PW argues that the probabilistic              analysis is not required required and and that other types of statistical analysis should statistical            should be      used.7 The Commission be used.?          Commission held    held that challenges challenges to PRA were outside outside 6
6  PRA is addressed more fully in    in section II, II, infra.
infra.
          ?  PW'S Response PW's Response at 2-3.           questions whether PRA is even required 2-3. PW questions                                  required by regulation.
regulation. Id.
Id. Under
 
license renewal the scope of license      renewal proceedings proceedings and  and could could not bebe asserted by PW. PW.'8 The Commission Commission stated that U[PRA]
stated        "[PRA] claims claims fall beyond beyond the scope of [the] [the] NRC SAMA analysis and      and impermissibly impermissibly challenge our regulations."g challenge          regu~ations."~  Similarly, PW wishes to challenge Similarly,                  challenge the sizesize of the area to be  be analyzed by Pilgrim's SAMA.
analyzed                    SAMA. Again,              Commission explained, Again, as the Commission          explained, challenges challenges to regulations regulations hearing.''10 If PW wishes to challenge the use are not within the scope of this hearing.                                                  use of PRA techniques techniques for SAMA analysis or the size of the analyzedanalyzed area, area, it must, must, instead, instead, petition petition the Commission Commission for rulemaking. Since PW is precluded rulemaking.                    precluded from raising raising the issue of the use of PRA in      in the Pilgrim Pilgrim license renewal license  renewal hearing, hearing, the scope of the remanded remanded contention contention should should exclude any challenge challenge to and any other challenge PW raises PRA and                                  raises regarding regarding the regulations regulations governing governing Pilgrim's Pilgrim's SAMA analysis.
analysis.
Ill. The Commission's III.      Commission's Order Reguires Requires the BoardBoard to First First Determine Determine If the Effects Effects of PW's PW's Meteorological Concerns Meteorological      Concerns on Pilgrim's Pilarim's SAMAAnalysis Would Result    Result inin The Identification Identification of Cost-Beneficial SAMAs Newly Cost-Beneficial PW urges this Board Board to collapse collapse the inquiry directed directed by the Commission Commission into a single hearing covering issue for hearing                                                    arguments."11 But the Commission covering essentially any aspect of the arguments.                         Commission was Board must first resolve clear that the Board                resolve whether PW's PW's additional additional meteorological meteorological data or meteorological models alternative meteorological      models would materially alter the conclusions conclusions of Pilgrim's Pilgrim's SAMA analysis.''12 Absent a conclusion analysis.                 conclusion that newly newly identified    SAMAs result identified SAMAs      result from PW's PW's meteorological meteorological challenges, the Board challenges,         Board need need not consider or resolve resolve the effects effects of the meteorology meteorology on any 13 costs.13 To do otherwise economic costS.                 otherwise would fail to resolve resolve the Commission's Commission's stated        issue -
stated issue-10 C.F.R. § 10          9 50.54(f), the Commission required required plants including Pilgrim Pilgrim to conduct systemic risk assessments with PRA being  being an approved approved method.
method. See, e.g.,
e.g., Generic Letter No.
No. 88-20, 88-20, "Individual "Individual Plant Examination for Severe Accident Vulnerabilities -10 Examination                                            - 10 CFR §50.54(f)," (November 23,1988).
23, 1988).
        ' Commission's 8  Commission~sOrder at 36-37.
36-37.
9 9  'd.
Id. at 33.
33.
10 10  'd.
Id. at 36-37.
36-37.
11 11  PW's PW's Response Response at 6-8.
6-8.
12 l2  Commission's Order at 27, 27, 35, 35, 37.
37.
13 l3  'd.
Id.
 
Pilgrim SAMA analysis "whether the Pilgrim              analysis resulted resulted in in an an erroneous erroneous conclusion conclusion on the SAMAs SAMAs found found to be cost-beneficial be  cost-beneficial to implement" implement" because because of the use  use of the Gaussian Gaussian plume plume model model incorporated incorporated 14 in the ATMOS module in                                MACCS2 code.
module to the MACCS2          code.14    Because any inquiry into the effects Because                            effects of meteorological challenges meteorological    challenges on economic economic costs costs are conditioned conditioned on the Board's Board's findings of material effects on the Pilgrim's material                    Pilgrim's SAMA analysis, analysis, conducting conducting an an evidentiary hearing hearing on issues issues material to the resolution that are not material            resolution of that issue issue would would undermine undermine the intent intent of the Commission for a limited Commission            limited hearing hearing on remand.
remand.
CONCLUSION CONCLUSION Because the Commission Because        Commission limited limited the scope of the remanded remanded contention contention to additional additional meteorological data or alternative meteorological              alternative meteorological meteorological modelsmodels and and the Board Board is capable capable of resolving resolving limited issues would result if these limited                  result in in the identification identification of newly cost-beneficial cost-beneficial SAMAs, SAMAs, the Board should Board  should limit the scope of the hearing hearing to issues issues remanded remanded by the Commission.
Commission. Only if the Board determines that the meteorological Board                          meteorological issues issues would result result in in newly identified identified SAMAs, SAMAs, should should Board allow PW to present evidence the Board                            evidence regarding regarding how meteorological meteorological challenges challenges affect the costs. Thus, the use of a single economic costs.                            single hearing hearing limited limited to whether PW's meteorological meteorological issues are material issues        material to Pilgrim's Pilgrim's SAMA analysis analysis would      result in would result  in the most efficient use use of resources and resources    and clearest record record for the Board's decision.
decision.
Respectfully submitted, A
Susan L.
Susan  L. Uttal Uttal Brian G.
Brian G. Harris Harris Michael G.
Michael  G. Dreher Counsel for NRC Counsel        NRC Staff Dated at Rockville, Dated      Rockville, Maryland Maryland 17th day of May, This 17th          May, 2010 2010 14 14 See Commission's Commission's Order at 36-37.
36-37.
 
UNITED STATES UNITED    STATES OF AMERICA NUCLEAR REGULATORY NUCLEAR    REGULATORY COMMISSION COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BEFORE                                    LICENSING BOARD BOARD In the Matter of In                                              )
                                                  )i ENTERGY NUCLEAR GENERATION GENERATION            )1 COMPANY AND ENTERGY NUCLEAR COMPANY                          NUCLEAR        )Docket No.
                                                  )Docket  No. 50-293-LR OPERATIONS, INC.
OPERATIONS,       INC.                         )1
                                                  )1 (Pilgrim Nuclear Generating (Pilgrim          Generating Station)
Station)      )1 CERTIFICATE OF SERVICE CERTIFICATE        SERVICE hereby certify that copies I hereby              copies of "NRC Staff's Reply Reply To Pilgrim Pilgrim Watch Watch Response Response Board's Board's May 5,5, Order" in 2010 Order"    in the above-captioned above-captioned proceeding proceeding have have been been served served on the following following by electronic electronic mail and mail  and by deposit inin the U.S.
U.S. Nuclear Regulatory Regulatory Commission's Commission's internal internal mail mail system, system, or, or, as indicated by an asterisk (*),
indicated                                      mail and
(*), by electronic mail and by deposit in in the U.S.
U.S. Mail  system this 1th Mail system          7'~
May, 2010.
day of May,  2010.
Administrative Administrative Judge                                      Administrative Administrative Judge Richard F.
Richard  F. Cole                                          Paul B.
Paul  B. Abramson Abramson Atomic Safety andand Licensing Licensing Board Board Panel Panel            Atomic Safety andand Licensing Licensing Board Board Panel Panel Mail Stop:
Mail  Stop: T-3F23                                        Mail Stop:
Mail  Stop: T-3F23 T-3F23 U.S. Nuclear U.S. Nuclear Regulatory Commission Commission                    U.S. Nuclear Regulatory U.S.            Regulatory Commission Commission Washington, DC Washington,    DC 20555-0001 20555-0001                            Washington, DC Washington,    DC 20555-0001 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail:  Richard.Cole@nrc.gov                              E-mail: PauI.Abramson@nrc.gov E-mail: Paul.Abramson@nrc.qov Administrative Judge                                      Office of Commission Office    Commission Appellate Appellate Ann Marshall Marshall Young, Chair                                Adjudication Adjudication Atomic Safety andand Licensing Licensing Board Board Panel Panel            Mail Stop:
Mail  Stop: 0-16G4 Mail Stop:
Mail  Stop: T-3F23 T-3F23                                        U.S. Nuclear Regulatory U.S.           Regulatory Commission Commission U.S. Nuclear Regulatory Commission U.S.                         Commission                    Washington, DC Washington,    DC 20555-0001 20555-0001 Washington, DC Washington,   DC 20555-0001 20555-0001                                      OCAAMAIL.Resource@nrc.sov E-mail: OCAAMAIL.Resource@nrc.gov E-mail:
E-mail: Ann.Younq@nrc.nov E-mail:  Ann.Young@nrc.gov Atomic Safety andand Licensing Licensing Board Board                    Office of the Secretary Office        Secretary Mail Stop:
Mail  Stop: T-3F23                                        Attn: Rulemakings and Attn: Rulemakings    and Adjudications Adjudications Staff U.S. Nuclear Regulatory U.S.           Regulatory Commission Commission                    Mail Stop:
Mail  Stop: 0-16G4 Washington, DC Washington,   DC 20555-0001 20555-0001                            U.S. Nuclear Regulatory U.S.            Regulatory Commission Commission INTERNAL MAIL ONLY)
(VIA INTERNAL            ONLY)                            Washington, DC Washington,    DC 20555-0001 20555-0001 E-mail: Hearing.Docket@nrc.gov E-mail:  Hearinq.Docket@nrc.qov
 
Sheila Slocum Sheila  Slocum Hollis*
Hollis*                      Terence A.
Terence          Burke, Esq.*
A. Burke, Esq.*
Duane Morris Duane  Morris LLP LLP                            Entergy Nuclear Entergy 1667 K Street, 1667    Street, NW, NW, Suite 700                1340 Echelon 1340      Echelon Parkway Parkway Washington, DC Washington,  DC 20006                        Mail Stop:
Mail    Stop: M-ECH-62 M-ECH-62 E-mail:  sshollis@duanemorris.com E-mail: sshollis@duanemorris.com              Jackson, MS Jackson,       MS 39213 39213 tburke@enterqy.com E-mail: tburke@entergy.com E-mail:
Lampert*
Mary Lampert*                                  David R.
David      R. Lewis, Lewis, Esq*.
Esq*.
148 Washington 148  Washington Street                        Paul A. Gaukler, Paul        Gaukler, Esq.
Esq.
Duxbury, MA 02332 Duxbury,                                      Pillsbury, Winthrop, Pillsbury,     Winthrop, Shaw, Shaw, Pittman, Pittman, LLP LLP E- mail: mary.lampert@comcast.net E-mail:                                        2300 N Street,Street, NW Washington, DC Washington,        DC 20037-1137 20037-1137 david.lewis@pillsburylaw.com E-mail: david.lewis@pillsburylaw.com E-mail:
paul.gaukler@pillsburvlaw.com Kevin M.
Chief Kevin  M. Nord*                          Town Manager*
Town      Manager*
Fire Chief & Director Duxbury Emergency Fire                          Emergency      Town of Plymouth Town          Plymouth Management Agency Management                                  11 Lincoln 11  Lincoln St. St.
668 Tremont Street                            Plymouth, MA 02360 Plymouth, Duxbury, MA 02332 Duxbury,                                      E-mail:    marrighi@townhalI.~lymouth.ma.us E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxburv.ma.us E-mail:  nord@town.duxbury.ma.us Richard R.
Richard  R. MacDonald*
MacDonald*                        Matthew Brock, Matthew        Brock, Esq.
Esq.**
Town Manager                                  Assistant Attorney General, General, Chief 878 Tremont Street                            Environmental Protection Environmental        Protection Division Division Duxbury, MA 02332 Duxbury,                                       Office of the Attorney GeneralGeneral E-mail: macdonald@town.duxbury.ma.us E-mail:  macdonald@town.duxbur~. ma.us      One Ashburton                  18th Floor Place, 18th Ashburton Place, Boston, MA 02108 Boston,          02108 E-mail: matthew.brock@state.ma.us E-mail:
                                                    .. _OJ
                                                .vk"
                                            -
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                                            /'
Brian G.           s Counsel for the NRC Staff Counsel}}

Revision as of 18:04, 13 November 2019

2010/05/17-NRC Staffs Reply to Pilgrim Watch Response to Boards 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)
v • d • e


Text

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

))

ENTERGY NUCLEAR ENTERGY NUCLEAR GENERATION GENERATION )

COMPANYAND COMPANY AND ENTERGY ENTERGY NUCLEAR NUCLEAR )1 Docket No.

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

OPERATIONS, INC. )

)

(Pilgrim Nuclear (Pilgrim Nuclear Power Power Station)

Station) )

NRC NRC STAFF'S STAFF'S REPLYREPLY TO TO PILGRIM PII-GRIM WATCH WATCH

RESPONSE

RESPONSE BOARD'S BOARD'S MAY MAY 5, 2010 ORDER 5,2010 ORDER INTRODUCTION INTRODUCTION Pursuant to Pursuant to the the Atomic Atomic Safety Safety andand Licensing Licensing Board's Board's ("Board")

("Board") Order Order (Regarding (Regarding Deadlines Submissions of Deadlines for Submissions of Parties)

Parties) of of May May 5,5, 2010 2010 ("Board's

("Board's Order"),

Order"), the the staff staff of the the U.S.

U.S.

Nuclear Nuclear Regulatory Regulatory Commission Commission ("Staff")

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

("PW")

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

("PW's Response").

Response").

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

("Pilgrim1')Severe Severe Accident Accident Mitigation Mitigation Analysis Analysis ("SAMA").

("SAMA).

Specifically, they Specifically, they affirmed affirmed most most of thethe Board's Board's majority majority opinion opinion including including the the holding holding thatthat PW PW failed to failed to establish establish that that a genuine genuine issue issue of material material dispute dispute existed existed with with respect respect toto evacuation evacuation times and times and economic costs.costs. Moreover, Moreover, the the Commission Commission carefully carefully explained explained that PW PW impermissibly challenged impermissibly challenged thethe regulations regulations by by challenging challenging probabilistic probabilistic risk risk analysis analysis ("PRA").

("PRA"). PW PW now argues now argues that that the the Commission's Commission's Order Order essentially essentially remanded remanded Contention Contention 33 without without limitation.

limitation.

The arguments The arguments PW PW seeks seeks to to advance advance include include economic economic costs, costs, evacuation evacuation times, times, andand PRA PRA among others.

among others. PW's PW's Response Response seeks seeks to to bypass bypass the the Commission's Commission's OrderOrder byby ignoring ignoring the the clear instructions of the instructions the Commission Commission to first determine to first determine if PW'sPW's meteorological meteorological concerns concerns would would result result in in the identification the identification of aa newly newly cost-beneficial cost-beneficial SAMA.SAMA. Only Only if the the Board Board decides decides for PW PW in in this this first first

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

DISCUSSION DISCUSSION First, PW's Response essentially argues that PW must be First, be allowed allowed to challenge all all aspects of Pilgrim's SAMA analysis because the Board Board will not be be able to determine if any particular issue would be be material.

material. Second, Second, PW argues, argues, despite the Commission's clear instructions, that it must be instructions, be allowed allowed to present evidence regarding regarding the clean-up costs and and 1

increasing the regulatory area of analysis. analysis.' Finally, Finally, PW argues that the Board Board cannot separate PW's meteorological concerns from the concerns concerns about the economic costs and evacuation time. Each time. Each of PW's arguments ignores the Commission's Commission's instructions for the proper conduct of p r ~ c e e d i n2g . ~

remanded proceeding.

the remanded I.I. Remanded Contention Excludes The Remanded Excludes Separate and and Distinct Challenges to Pilgrim's SAMAs SAMAs Based on Economic Costs and Evacuation Based Evacuation Timing Timinq The Commission plainly excluded excluded challenges to Pilgrim's Pilgrim's SAMA analysis based based directly on economic costs, costs, evacuation times, times, the size of the affected affected area, area, economic infrastructure, infrastructure, and and costs.3 The Commission clean-up costS.3 Commission statedstated that PW's PW's arguments were "insufficient to demonstrate a genuine material dispute with the Pilgrim Pilgrim SAMA analysis's current overall overall cost-benefit conclusions .... . . .."4 Similarly, the Commission

,,4 Similarly, Commission heldheld that PW "failed "failed to present significantly probative evidence countering the Entergy expert evidence and supplemental analysis on cost^."^ But, economic costS."5 But, now, now, PW seeks to expandexpand the scope of its contention as originally plead, plead, as admitted by this Board, Board, and as further limited limited by the Commission, Commission, by not limiting limiting its its 1

1 Response at 4.

PW's Response 2

2 Id.

Id.

3 3 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Operations, Inc.

Inc. (Pilgrim (Pilgrim Nuclear Power Station),

Station), CLI-10-11 CLI-10-11 ("Commission's Order"),

Order"), 71 71 NRC - (March 26,

_ (March 26, 2010) (slip op.

op. at 25,27,36).

25, 27, 36).

4 4 Id. at 36.

Id. 36 5

5 Id.

Id.

challenges to the potential challenges potential effects effects of altering altering the meteorological meteorological inputs inputs to the MACCS2 MACCS2 codecode or using alternative using alternative meteorological meteorological models.

models. PW asserts, asserts, without basis, basis, that it may challenge challenge a "wide range" "wide range" of inputs inputs including including the size of the impacted impacted area,area, damages damages to economic infrastructure other than loss infrastructure loss of tourism tourism and and business business value,value, clean-up clean-up costs, costs, and PRA'6 among and PRA among others.

others.

However, the Commission However, Commission addressed addressed each each of these issuesissues inin detail.

detail. The Board Board is required to determine if any newly cost-beneficial required cost-beneficial SAMAs would result from the use of additional would result additional meteorological data or alternative meteorological meteorological meteorological models,models, before before looking looking at the effects effects on on the loss of tourism.

loss tourism. PW,PW, in in effect, effect, attempts attempts to avoid avoid this limitation limitation by essentially arguing that any change is material change material regardless regardless of its effect on Pilgrim's Pilgrim's SAMA analysisanalysis or that the Board Board is incapable of determining the materiality of the PW's meteorological incapable meteorological challenges challenges without analyzing analyzing all its all its other unrelated unrelated issues.

issues. Nonetheless, Nonetheless, the Commission Commission excluded excluded clean-up clean-up costs, costs, new challenges to the economic costs challenges costs not previously previously raised, raised, and and challenges challenges to economic costs, costs, and until except and until PW proves proves that a materially materially different resultresult of the SAMA analysis necessarily results from the meteorological results meteorological changes.

changes. PW, PW, also, also, suggests suggests expanding expanding the size of the impacted area, impacted area, even even though an an area with a 50-mile 50-mile radius radius is normally normally analyzed.

analyzed. This change change precludes resolving precludes resolving the contention contention by preventing preventing a valid comparison comparison of potentially cost-beneficial SAMAs.

beneficial SAMAs. As such,such, PW should should not be be allowed allowed to unfairly expand expand the scope of the contention as though no litigation contention litigation or decisions have have occurred.

occurred. Further, Further, the Board Board should should limit limit PW's arguments PW's arguments to the sole sole remaining remaining dispute, dispute, namely:

namely: will the use use of additional additional meteorological meteorological meteorological rnodels data or alternative meteorological rnodels identify newly cost-beneficial cost-beneficial SAMAs.

SAMAs.

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

6 PRA is addressed more fully in in section II, II, infra.

infra.

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

regulation. Id.

Id. Under

license renewal the scope of license renewal proceedings proceedings and and could could not bebe asserted by PW. PW.'8 The Commission Commission stated that U[PRA]

stated "[PRA] claims claims fall beyond beyond the scope of [the] [the] NRC SAMA analysis and and impermissibly impermissibly challenge our regulations."g challenge regu~ations."~ Similarly, PW wishes to challenge Similarly, challenge the sizesize of the area to be be analyzed by Pilgrim's SAMA.

analyzed SAMA. Again, Commission explained, Again, as the Commission explained, challenges challenges to regulations regulations hearing.10 If PW wishes to challenge the use are not within the scope of this hearing. use of PRA techniques techniques for SAMA analysis or the size of the analyzedanalyzed area, area, it must, must, instead, instead, petition petition the Commission Commission for rulemaking. Since PW is precluded rulemaking. precluded from raising raising the issue of the use of PRA in in the Pilgrim Pilgrim license renewal license renewal hearing, hearing, the scope of the remanded remanded contention contention should should exclude any challenge challenge to and any other challenge PW raises PRA and raises regarding regarding the regulations regulations governing governing Pilgrim's Pilgrim's SAMA analysis.

analysis.

Ill. The Commission's III. Commission's Order Reguires Requires the BoardBoard to First First Determine Determine If the Effects Effects of PW's PW's Meteorological Concerns Meteorological Concerns on Pilgrim's Pilarim's SAMAAnalysis Would Result Result inin The Identification Identification of Cost-Beneficial SAMAs Newly Cost-Beneficial PW urges this Board Board to collapse collapse the inquiry directed directed by the Commission Commission into a single hearing covering issue for hearing arguments."11 But the Commission covering essentially any aspect of the arguments. Commission was Board must first resolve clear that the Board resolve whether PW's PW's additional additional meteorological meteorological data or meteorological models alternative meteorological models would materially alter the conclusions conclusions of Pilgrim's Pilgrim's SAMA analysis.12 Absent a conclusion analysis. conclusion that newly newly identified SAMAs result identified SAMAs result from PW's PW's meteorological meteorological challenges, the Board challenges, Board need need not consider or resolve resolve the effects effects of the meteorology meteorology on any 13 costs.13 To do otherwise economic costS. otherwise would fail to resolve resolve the Commission's Commission's stated issue -

stated issue-10 C.F.R. § 10 9 50.54(f), the Commission required required plants including Pilgrim Pilgrim to conduct systemic risk assessments with PRA being being an approved approved method.

method. See, e.g.,

e.g., Generic Letter No.

No. 88-20, 88-20, "Individual "Individual Plant Examination for Severe Accident Vulnerabilities -10 Examination - 10 CFR §50.54(f)," (November 23,1988).

23, 1988).

' Commission's 8 Commission~sOrder at 36-37.

36-37.

9 9 'd.

Id. at 33.

33.

10 10 'd.

Id. at 36-37.

36-37.

11 11 PW's PW's Response Response at 6-8.

6-8.

12 l2 Commission's Order at 27, 27, 35, 35, 37.

37.

13 l3 'd.

Id.

Pilgrim SAMA analysis "whether the Pilgrim analysis resulted resulted in in an an erroneous erroneous conclusion conclusion on the SAMAs SAMAs found found to be cost-beneficial be cost-beneficial to implement" implement" because because of the use use of the Gaussian Gaussian plume plume model model incorporated incorporated 14 in the ATMOS module in MACCS2 code.

module to the MACCS2 code.14 Because any inquiry into the effects Because effects of meteorological challenges meteorological challenges on economic economic costs costs are conditioned conditioned on the Board's Board's findings of material effects on the Pilgrim's material Pilgrim's SAMA analysis, analysis, conducting conducting an an evidentiary hearing hearing on issues issues material to the resolution that are not material resolution of that issue issue would would undermine undermine the intent intent of the Commission for a limited Commission limited hearing hearing on remand.

remand.

CONCLUSION CONCLUSION Because the Commission Because Commission limited limited the scope of the remanded remanded contention contention to additional additional meteorological data or alternative meteorological alternative meteorological meteorological modelsmodels and and the Board Board is capable capable of resolving resolving limited issues would result if these limited result in in the identification identification of newly cost-beneficial cost-beneficial SAMAs, SAMAs, the Board should Board should limit the scope of the hearing hearing to issues issues remanded remanded by the Commission.

Commission. Only if the Board determines that the meteorological Board meteorological issues issues would result result in in newly identified identified SAMAs, SAMAs, should should Board allow PW to present evidence the Board evidence regarding regarding how meteorological meteorological challenges challenges affect the costs. Thus, the use of a single economic costs. single hearing hearing limited limited to whether PW's meteorological meteorological issues are material issues material to Pilgrim's Pilgrim's SAMA analysis analysis would result in would result in the most efficient use use of resources and resources and clearest record record for the Board's decision.

decision.

Respectfully submitted, A

Susan L.

Susan L. Uttal Uttal Brian G.

Brian G. Harris Harris Michael G.

Michael G. Dreher Counsel for NRC Counsel NRC Staff Dated at Rockville, Dated Rockville, Maryland Maryland 17th day of May, This 17th May, 2010 2010 14 14 See Commission's Commission's Order at 36-37.

36-37.

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

)i ENTERGY NUCLEAR GENERATION GENERATION )1 COMPANY AND ENTERGY NUCLEAR COMPANY NUCLEAR )Docket No.

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

OPERATIONS, INC. )1

)1 (Pilgrim Nuclear Generating (Pilgrim Generating Station)

Station) )1 CERTIFICATE OF SERVICE CERTIFICATE SERVICE hereby certify that copies I hereby copies of "NRC Staff's Reply Reply To Pilgrim Pilgrim Watch Watch Response Response Board's Board's May 5,5, Order" in 2010 Order" in the above-captioned above-captioned proceeding proceeding have have been been served served on the following following by electronic electronic mail and mail and by deposit inin the U.S.

U.S. Nuclear Regulatory Regulatory Commission's Commission's internal internal mail mail system, system, or, or, as indicated by an asterisk (*),

indicated mail and

(*), by electronic mail and by deposit in in the U.S.

U.S. Mail system this 1th Mail system 7'~

May, 2010.

day of May, 2010.

Administrative Administrative Judge Administrative Administrative Judge Richard F.

Richard F. Cole Paul B.

Paul B. Abramson Abramson Atomic Safety andand Licensing Licensing Board Board Panel Panel Atomic Safety andand Licensing Licensing Board Board Panel Panel Mail Stop:

Mail Stop: T-3F23 Mail Stop:

Mail Stop: T-3F23 T-3F23 U.S. Nuclear U.S. Nuclear Regulatory Commission Commission U.S. Nuclear Regulatory U.S. Regulatory Commission Commission Washington, DC Washington, DC 20555-0001 20555-0001 Washington, DC Washington, DC 20555-0001 20555-0001 E-mail: Richard.Cole@nrc.gov E-mail: Richard.Cole@nrc.gov E-mail: PauI.Abramson@nrc.gov E-mail: Paul.Abramson@nrc.qov Administrative Judge Office of Commission Office Commission Appellate Appellate Ann Marshall Marshall Young, Chair Adjudication Adjudication Atomic Safety andand Licensing Licensing Board Board Panel Panel Mail Stop:

Mail Stop: 0-16G4 Mail Stop:

Mail Stop: T-3F23 T-3F23 U.S. Nuclear Regulatory U.S. Regulatory Commission Commission U.S. Nuclear Regulatory Commission U.S. Commission Washington, DC Washington, DC 20555-0001 20555-0001 Washington, DC Washington, DC 20555-0001 20555-0001 OCAAMAIL.Resource@nrc.sov E-mail: OCAAMAIL.Resource@nrc.gov E-mail:

E-mail: Ann.Younq@nrc.nov E-mail: Ann.Young@nrc.gov Atomic Safety andand Licensing Licensing Board Board Office of the Secretary Office Secretary Mail Stop:

Mail Stop: T-3F23 Attn: Rulemakings and Attn: Rulemakings and Adjudications Adjudications Staff U.S. Nuclear Regulatory U.S. Regulatory Commission Commission Mail Stop:

Mail Stop: 0-16G4 Washington, DC Washington, DC 20555-0001 20555-0001 U.S. Nuclear Regulatory U.S. Regulatory Commission Commission INTERNAL MAIL ONLY)

(VIA INTERNAL ONLY) Washington, DC Washington, DC 20555-0001 20555-0001 E-mail: Hearing.Docket@nrc.gov E-mail: Hearinq.Docket@nrc.qov

Sheila Slocum Sheila Slocum Hollis*

Hollis* Terence A.

Terence Burke, Esq.*

A. Burke, Esq.*

Duane Morris Duane Morris LLP LLP Entergy Nuclear Entergy 1667 K Street, 1667 Street, NW, NW, Suite 700 1340 Echelon 1340 Echelon Parkway Parkway Washington, DC Washington, DC 20006 Mail Stop:

Mail Stop: M-ECH-62 M-ECH-62 E-mail: sshollis@duanemorris.com E-mail: sshollis@duanemorris.com Jackson, MS Jackson, MS 39213 39213 tburke@enterqy.com E-mail: tburke@entergy.com E-mail:

Lampert*

Mary Lampert* David R.

David R. Lewis, Lewis, Esq*.

Esq*.

148 Washington 148 Washington Street Paul A. Gaukler, Paul Gaukler, Esq.

Esq.

Duxbury, MA 02332 Duxbury, Pillsbury, Winthrop, Pillsbury, Winthrop, Shaw, Shaw, Pittman, Pittman, LLP LLP E- mail: mary.lampert@comcast.net E-mail: 2300 N Street,Street, NW Washington, DC Washington, DC 20037-1137 20037-1137 david.lewis@pillsburylaw.com E-mail: david.lewis@pillsburylaw.com E-mail:

paul.gaukler@pillsburvlaw.com Kevin M.

Chief Kevin M. Nord* Town Manager*

Town Manager*

Fire Chief & Director Duxbury Emergency Fire Emergency Town of Plymouth Town Plymouth Management Agency Management 11 Lincoln 11 Lincoln St. St.

668 Tremont Street Plymouth, MA 02360 Plymouth, Duxbury, MA 02332 Duxbury, E-mail: marrighi@townhalI.~lymouth.ma.us E-mail: marrighi@townhall.plymouth.ma.us E-mail: nord@town.duxburv.ma.us E-mail: nord@town.duxbury.ma.us Richard R.

Richard R. MacDonald*

MacDonald* Matthew Brock, Matthew Brock, Esq.

Esq.**

Town Manager Assistant Attorney General, General, Chief 878 Tremont Street Environmental Protection Environmental Protection Division Division Duxbury, MA 02332 Duxbury, Office of the Attorney GeneralGeneral E-mail: macdonald@town.duxbury.ma.us E-mail: macdonald@town.duxbur~. ma.us One Ashburton 18th Floor Place, 18th Ashburton Place, Boston, MA 02108 Boston, 02108 E-mail: matthew.brock@state.ma.us E-mail:

.. _OJ

.vk"

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0

/' c

/'

Brian G. s Counsel for the NRC Staff Counsel

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