ML13123A461

Entergys Reply to New York States Proposed Findings of Fact and Conclusions of Law for Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis Decontamination Costs)

ML13123A461
Person / Time
Site:	Indian Point
Issue date:	05/03/2013
From:	Bessette P, Dennis W, Glew W, O'Neill M, Sutton K Morgan, Morgan, Lewis & Bockius, LLP, Entergy Nuclear Operations
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24477, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, NYS-12C
Download: ML13123A461 (62)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of

)

Docket Nos. 50-247-LR and

)

50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.

)

)

May 3, 2013 (Indian Point Nuclear Generating Units 2 and 3)

)

)

ENTERGYS REPLY TO NEW YORK STATES PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-12C (SEVERE ACCIDENT MITIGATION ALTERNATIVES ANALYSIS DECONTAMINATION COSTS)

William B. Glew, Jr., Esq.

Kathryn M. Sutton, Esq.

William C. Dennis, Esq.

Paul M. Bessette, Esq.

Entergy Nuclear Operations, Inc.

MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, N.W.

White Plains, NY 10601 Washington, D.C. 20004 Phone: (914) 272-3202 Phone: (202) 739-5738 Fax: (914) 272-3205 Fax: (202) 739-3001 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com Martin J. ONeill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

TABLE OF CONTENTS Page

-i-I.

INTRODUCTION................................................................................................................... 1 II.

REPLY TO NEW YORKS FACTUAL FINDINGS AND LEGAL CONCLUSIONS..................................................................................................................... 7 A.

The Boards Decision Can Supplement or Amend the FSEIS.................................... 7 B.

Facts Not Disputed by New York............................................................................. 13 C.

New Yorks Attempts to Diminish the Qualifications and Dismiss the Testimony of Entergys and NRC Staffs Expert Witnesses Are Groundless.......... 16

1.

Entergys Expert Witnesses and Testimony.................................................. 16

2.

NRC Staffs Expert Witnesses and Testimony............................................. 22 D.

A SAMA Analysis Is a Site-Specific Mitigation Alternatives Analysis, Not a Severe Accident Impacts Assessment....................................................................... 24 E.

Neither NEPA Nor the NRCs 10 C.F.R. Part 54 License Renewal Regulations Require Implementation of Potentially Cost-Beneficial SAMAs......... 25 F.

The IPEC SAMA Analysis Is a Site-Specific Mitigation Alternatives Analysis That Appropriately Accounts for the Hyper-Dense Population of New York City.......................................................................................................... 27 G.

The NUREG-1150 Nonfarm Decontamination Cost Values Used As Inputs to the IPEC SAMA Analysis Have an Established Technical Basis and Are Rationally-Related to the IPEC Site.......................................................................... 32 H.

Draft NUREG/CR-5148 (Tawil 1990) Is Not a Site-Specific Decontamination Cost Analysis for Indian Point...................................................... 40 I.

Dr. Lemays Flawed Decontamination Cost Estimates Do Not Constitute Appropriate Benchmarks for the NUREG-1150 Values Used in the IPEC SAMA Analysis........................................................................................................ 45 J.

The NUREG-1150 TIMDEC Values Used as Inputs to the IPEC SAMA Analysis Have an Established Technical Basis and Are Rationally Related to the IPEC Site......................................................................................................... 51 K.

Contrary to NEPAs Requirements, New York Proposes the Use of Certain Worst-Case Assumptions.......................................................................................... 54 L.

The NRC Staff Has Met Its Burden Under NEPA By Taking a Hard Look at Entergys SAMA Analysis.................................................................................... 56 III.

CONCLUSION..................................................................................................................... 58

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of

)

Docket Nos. 50-247-LR and

)

50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.

)

)

May 3, 2013 (Indian Point Nuclear Generating Units 2 and 3)

)

)

ENTERGYS REPLY TO NEW YORK STATES PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-12C (SEVERE ACCIDENT MITIGATION ALTERNATIVES ANALYSIS DECONTAMINATION COSTS)

Pursuant to the Atomic Safety and Licensing Boards (Board) February 28, 2013 Order,1 Entergy Nuclear Operations, Inc. (Entergy) submits its Reply to New York States (New York) Proposed Findings of Fact and Conclusions of Law on Contention NYS-12C (NYS-12C), which concerns the decontamination cost inputs to the severe accident mitigation alternatives (SAMA) analysis submitted by Entergy as part of the license renewal application (LRA) for Indian Point Energy Center (IPEC) Units 2 and 3 (IP2 and IP3). This Reply is based on the evidentiary record in this proceeding, and is set out in numbered paragraphs, with corresponding citations to the record of this proceeding.

I.

INTRODUCTION

1.

On March 22, 2013, Entergy, the U.S. Nuclear Regulatory Commission (NRC or Commission) Staff, and New York State (New York) filed proposed findings of fact and 1

Licensing Board Order (Granting Parties Joint Motion for Alteration of Filing Schedule) at 1 (Feb. 28, 2013)

(unpublished).

conclusions of law (proposed findings) on NYS-12C, among other contentions.2 NYS-12C challenges the adequacy of the IPEC SAMA analysis, as reviewed and approved by NRC Staff in the December 2010 Final Supplemental Environmental Impact Statement (FSEIS).3 Specifically, NYS-12C alleges that Entergy and the Staff have significantly underestimated the economic costs of a severe accident at IPEC by relying on computer code input values that are not specific to the uniquely urban New York City area surrounding IPEC, and that do not sufficiently take into account the greater difficulty and costs of cleaning up small-sized radioactive particles released by a severe reactor accident.4 As pursued at hearing, NYS-12C particularly focuses on the decontamination cost and decontamination time values used by Entergy as inputs to the MELCOR Accident Consequence Code System Version 2 (MACCS2), the computer code which Entergy used to perform the offsite consequences portion of its SAMA analysis.5

2.

As set forth in their proposed findings, Entergy and the NRC Staff have carried their respective burdens of proof with respect to NYS-12C, which ultimately relates to the NRC Staffs compliance with the National Environmental Policy Act (NEPA),6 as implemented by the NRCs 10 C.F.R. Part 51 regulations. Specifically, Entergy and the NRC Staff have demonstrated that the contested SAMA analysis computer code inputs are reasonable and 2

See Entergys Proposed Findings of Fact and Conclusions of Law for Consolidated Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis) (Mar. 22, 2013) (Entergy Proposed Findings); NRC Staffs Proposed Findings of Fact and Conclusions of Law Part 5: NYS-12C (Severe Accident Mitigation Alternatives Analysis Decontamination and Cleanup Costs) (Mar. 22, 2013) (NRC Staff Proposed Findings);

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

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

(FSEIS).

4 State of New York Initial Statement of Position [on] Consolidated Contention NYS-12C at 3, 37 (New York Position Statement) (NYS000240).

5 See Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2054:23-2055:4 (Oct. 17, 2012) (Lemay) (Oct. 17, 2012 Tr.).

6 42 U.S.C. § 4321 et seq. (2006).

appropriate, as judged under NEPAs rule of reason,7 and in view of the NRCs and industrys current state of knowledge and practice regarding SAMA analyses and other severe accident consequence assessments. They have further shown that New Yorks criticisms of Entergys MACCS2 inputs (including New Yorks proposed alternative values) do not credibly render the SAMA analysis altogether unreasonable under NEPA standards8 or support a finding that there are additional potentially cost-beneficial SAMA candidates beyond those identified in the Staffs FSEIS.9 Nothing in New Yorks proposed findings alters these clear and overarching conclusions.

Therefore, the Board should resolve NYS-12C in favor of Energy and the NRC Staff.

3.

In contrast, in its proposed findings, New York makes broad assertions that lack evidentiary support, inaccurately describes the record and controlling legal principles, and fails to acknowledge contrary testify and evidence that undermine its position. For example, New York challengesfor the first timethe qualifications of Entergy and NRC Staff witnesses.10 It also argues that certain testimony by those witnesses lacks a proper technical foundation and should be accorded little or no weight.11 As shown below, New Yorks criticisms are patently unfounded given the demonstrated expertise of Entergys and the Staffs witnesses and the thorough manner in which they have addressed the issues in dispute. At most, they are unsuccessful attempts to deflect valid criticisms of New Yorks position.12 7

Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208 (2010) (citing Communities, Inc. v. Busey, 956 F.2d 619, 626 (6th Cir. 1992)).

8 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __, slip op. at 25 (Feb. 9, 2012).

9 See FSEIS, App. G at G-36 to G-38 (NYS00133I).

10 New York Proposed Findings at 31-38 (¶¶92-108).

11 Id. at 126 (¶ 344).

12 In its proposed findings, New York also frequently complains about the NRC Staffs alleged failure to disclose documents in a timely way. See, e.g., id. at 3 (¶ 10). The relevance and materiality of these criticisms is unclear,

4.

New York also incorrectly describes the basic nature and purpose of a SAMA analysis.13 Contrary to New Yorks claim, the SAMA analysis is not a site-specific analysis of severe accident impacts.14 Rather, it is a site-specific mitigation alternatives analysis.

Furthermore, New York wrongly suggests that NEPA requires implementation of potentially cost-beneficial SAMAs.15 It does not. As discussed below, controlling judicial and Commission case law is clear on these points.

5.

New Yorks criticisms of both the IPEC SAMA analysis and the NRC Staffs review thereof are not supported by the record. Moreover, such criticisms are inconsistent with settled NEPA principles that New York itself cites. For example, New York emphasizes the need for high-quality and accurate scientific information.16 However, as the record shows, the alternative decontamination cost and time values proposed by New Yorks expert, Dr. Lemay, are based on inapplicable references and data that have no apparent nexus to nuclear power plant severe accidents or SAMA analyses performed using MACCS2.17 Unlike the NRC-approved sources relied upon by Entergy (e.g., NUREG-1150, NUREG/CR-3673, NUREG/CR-4551, and NUREG-1935), Dr. Lemays supporting references lack the same technical relevance and rigor, as well as the imprimatur of the NRC. One example is Dr. Lemays reliance on papers discussing plutonium dispersal events and radiological dispersion devices.18 Notably, the Commissionand given that the documents at issue are part of the evidentiary record and relied upon by New York in its testimony and proposed findings; i.e., there is no prejudice to New York or related action requested of the Board.

13 Id. at 1-2 (¶¶ 4-5).

14 As discussed below in paragraph 37, the NRC already conducted an analysis of severe accident impacts for purposes of license renewal, and concluded that the probability-weighted consequences of severe accidents are small for all plants.

15 Id. at 41 (¶ 113), 110 (¶ 294).

16 Id. at 117 (¶ 317).

17 See generally Entergy Proposed Findings at 89-103 (¶¶ 174-201).

18 New York Proposed Findings at 85 (¶ 228).

even Dr. Lemayhave noted the dubious relevance of one of New Yorks principal references, the 1996 Site Restoration Report.19

6.

Another example of New Yorks failure to abide by NEPA principles is Dr.

Lemays failure to account for conservation of mass balance in contamination from the plume and his decontamination cost calculations.20 By assuming that the contaminant plume simulated by MACCS2 is continually replenished, and that all surfaces of a building will be equally contaminated, Dr. Lemays calculations are inconsistent with MACCS2s integral plume model as well as the laws of nature.21 In its proposed findings, New York cannot and does not adequately address this major methodological misstep, which severely undermines New Yorks claim of unprecedented and extensive technical justification for its conclusions.22

7.

In a similar vein, New York claims not to advocate worst-case assumptions of the type foreclosed by NEPA.23 However, Dr, Lemay acknowledges that he focused on the more severe end of the release spectrum and relied on Chernobyl and Fukushima reactor accidents as data points in developing his proposed decontamination time values.24 So again, it is New York, not Entergy or the Staff, that has contravened NEPAs requirements and rule of reason.

19 NextEra Energy Seabrook, LLC (Seabrook Station Unit 1), CLI-12-05, 75 NRC __, slip op. at 40 (Mar. 8, 2012)

(stating that the Site Restoration Report is focused on plutonium dispersal events and contains no suggestion that the MACCS2 code assumes inapplicable radionuclide particle sizes, and that the report does not discuss the MACCS2 code at all); Oct. 17, 2012 Tr. at 2012:11-13 (Lemay) (stating that the Site Restoration Report is not ideal because it relates to plutonium dispersal events, not to reactor severe accidents); Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2108:5-8 (Oct. 18, 2012) (Lemay) (Oct. 18, 2012 Tr.) (stating that the reports focus on plutonium decontamination costs is a weakness of the method).

20 New York Proposed Findings at 96 (¶ 258).

21 Entergy Proposed Findings at 98-99 (¶¶ 192-94).

22 See New York Proposed Findings at 79 (¶ 211), 122 (¶ 333).

23 Id. at 104-07 (¶¶ 278-84).

24 Pre-Filed Written Rebuttal Testimony of Dr. François J. Lemay Regarding Consolidated Contention NYS-12C (NYS-12/12A/12B/12C) at 16:7-12 (June 29, 2012) (New York Rebuttal Testimony) (NYS000420); New York Proposed Findings at Id. at 99 (¶ 264).

8.

Finally, New York has not met its burden to show that the IPEC SAMA analysis or methodology is unreasonable under NEPA.25 Instead, New York urges Entergy and the Staff to ignore NEPAs rule of reason by, among other things: (1) relying on inapplicable sources and data (e.g., papers concerning plutonium dispersal events, European decontamination data that have not been reviewed by the NRC or would not be relevant to postulated severe reactor accidents); (2) making technically-unjustified assumptions (e.g., assuming that cesium is more expensive to clean up than plutonium); (3) ignoring established scientific principles (e.g., mass conservation); and (4) modifying the MACCS2 source code and applying inputs that are incongruous with the codes internal decontamination decision-making logic.26 Indeed, with regard to the last issue, the Commission has stated that NEPA does not require the NRC to engage in an extensive revision of the MACCS2 code.27 In contrast to New York, the NRC Staff has fully satisfied its burden 25 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 269 (2009)

(quoting Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 345 (1973)) (The ultimate burden of proof on the question of whether the permit or license should be issued is... upon the applicant. But where... one of the other parties contends that, for a specific reason... the permit or license should be denied, that party has the burden of going forward with evidence to buttress that contention. Once he has introduced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant who, as part of his overall burden of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license.) (emphasis in original); see also Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 554 (1978) (upholding this threshold test for intervenor participation in licensing proceedings); Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2),

ALAB-262, 1 NRC 163, 191 (1975) (holding that the intervenors had the burden of introducing evidence to demonstrate that the basis for their contention was more than theoretical).

26 New York also asserts that [t]here is nothing that prevents the Board from evaluating related contentionssuch as NYS-16B and NYS-12Ctogether. New York Proposed Findings at 140 (¶ 373). As Entergy has previously noted, contentions NYS-12C and NYS-16B raise two distinct challengesseparately pled by NYS and supported by two different experts (Dr. Lemay and Dr. Sheppard), separately admitted by the Board, and separately addressed during the October 2012 hearings. NYS-16B alleges that the Staffs FSEIS is legally deficient because it accepts a SAMA analysis predicated on inaccurate population estimates. And, as admitted by the Board, NYS-16B alleges no other underestimated inputs to Entergys SAMA analysis. Notably, NYS did not assert that NYS-12C and NYS-16B must be evaluated together until it made its June 2012 rebuttal filings.

New Yorks argument is further addressed in Section II.A.3 of Entergys Reply to New York s proposed findings on Contention NYS-16B.

27 Pilgrim, CLI-12-01, slip op. at 29 (rejecting an intervenors demand that the MACCS2 code be modified to include an alternative atmospheric transport and dispersion plume model as far beyond NEPA requirements).

under NEPA to take a hard look at the IPEC SAMA analysis, as summarized below and further discussed in the proposed findings of Entergy and the NRC Staff.

II.

REPLY TO NEW YORKS FACTUAL FINDINGS AND LEGAL CONCLUSIONS A.

The Boards Decision Can Supplement or Amend the FSEIS

9.

As a threshold legal issue, New York incorrectly claims that the Boards decision cannot supplement or amend the FSEIS based on the hearing record.28 According to New York, supplementing or amending the FSEIS through the Boards initial decision is contrary to NEPA and NRCs NEPA regulations.29 As discussed below, this argument ignores binding precedent and, if adopted, would likely establish an indefinite cycle of litigation over the FSEISs adequacy.

10.

New Yorks assertion that the FSEIS cannot be supplemented or revised based on the hearing record ignores binding Commission precedent.30 This precedent clearly mandates that if the entire record of this proceeding (including the hearing record) contains sufficient information to allow for an adequate environmental analysis of the issues raised in a contention, then the FSEIS, as supplemented and/or modified by Boards decision will constitute the NRCs NEPA record of decision.31 As such, there is no need or basis for the Board to remand any and all FSEIS deficiencies or modifications to the NRC Staff so that it may prepare an FSEIS supplement that is circulated for public comment and that is subject to challenge in new or amended contentions.32 28 See New York Proposed Findings at 129-30 (¶¶ 353-70).

29 See id.

30 See Entergy Proposed Findings at 41-46 (¶¶ 82-93).

31 See id.

32 See, e.g., Hydro Res. Inc. (P.O. 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 51, 53 (2001) (explaining that the hearing process itself allows for additional and more rigorous public scrutiny of the [FSEIS] than does the usual circulation for comment).

11.

New York argues that the Commissions deliberate elimination of an earlier regulation, 10 C.F.R. § 51.52 (1983), that permitted licensing boards to modify the content of an [FSEIS] precludes any suggestion that post hoc supplementation by the Board might be available to cure deficiencies in the challenged FSEIS.33 The Limerick Appeal Board rejected this argument in ALAB-819.34 In that case, an intervenor argued, like New York does here, that the Commissions decision to not readopt the deemed modified language in 10 C.F.R. § 51.52 (1983) when it promulgated a new regulation, 10 C.F.R. § 51.102, as part of a 1984 rulemaking, means that any NEPA deficiency can only be cured by recirculating the FSEIS for public comment.35 The Appeal Board held that section 51.102 serves the same purpose as its differently worded predecessor, section 51.52(b)(3) and, [o]n its face, 10 C.F.R. § 51.102 thus merges the

[FSEIS] with any relevant licensing board decision to form the complete environmental record of decisionjust as former 51.52(b)(3) did.36 Further, the Appeal Board noted that nothing in current 10 C.F.R. § 51.102 precludes modification of an [FSEIS] by licensing board decision.37 33 New York Proposed Findings at 130 (¶ 353), 131-32 (¶ 356).

34 Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 705-07 (1985), affd in part and review otherwise declined, CLI-86-5, 23 NRC 125 (1986), remanded in part on other grounds sub nom. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989).

35 See Limerick, ALAB-819, 22 NRC at 705-06.

36 Id. at 706. In addition to the lack of support for New Yorks argument in the case law, nothing in the regulatory history of 10 C.F.R. § 51.102 or its predecessor suggests that the NRC lacks the power to follow its longstanding practice of using adjudicatory decisions to modify the Staffs NEPA analyses. New York Proposed Findings at 131-32 (¶ 356).

37 Limerick, ALAB-819, 22 NRC at 706. Contrary to this holding, New York also argues that 10 C.F.R.

§ 51.103(c) does not explicitly authorize the Board to incorporate by reference material in the hearing record and thus precludes supplementation because the Boards decision will not include testimony or exhibits. See New York Proposed Findings at 137 (¶ 367). New York points to nothing in NEPA (or any general administrative law principle) requiring that an agency decision actually include all underlying documents. To the contrary, agencies are encouraged to summarize relevant materials in their NEPA documents rather than simply wholesale include voluminous materials. See 10 C.F.R. Pt. 51, App. A, § (b); 40 C.F.R. § 1502.21. Nor does anything in 10 C.F.R. § 51.103(c) (or in any other regulation) preclude the Boards decision from including, as appropriate, relevant material from the hearing record in its decision. In fact, the parties proposed findings all request that the Board do just that and integrate relevant evidence into an initial decision.

12.

Although New York cites ALAB-819, it does so only to claim that it, and later Commission decisions, are inconsistent with 10 C.F.R. § 51.102(c) and NEPA.38 ALAB-819, however, sets forth a contrary interpretation of both 10 C.F.R. § 51.102(c) and NEPA that is binding on this Board.39 Moreover, even aside from ALAB-819, New York ignores the numerous more recent decisions that continue to endorse the holding that it is entirely proper for an adjudicatory decision to supplement or amend an FSEIS.40 Thus, the governing case law is clear that the Commissions NEPA regulations allow an adjudicatory decision to supplement or amend an FSEIS. And although New York attempts to narrowly distinguish the D.C. Circuit decision in Nuclear Info. & Res. Serv. v. NRC as not interpreting NRCs NEPA regulations, it ignores the courts holding that the administrative record in that case, including the hearing record, showed that the NRC plainly met its NEPA obligation to take a hard look at the environmental consequences.41

13.

Rather than fully acknowledge the considerable precedent that is directly adverse to its position, New York cites to general federal NEPA principles and non-binding cases involving 38 New York Proposed Findings at 137 (¶ 366).

39 See James L. FitzPatrick, CLI-08-19, 68 NRC at 260 n.23; Sequoyah Fuels Corp. CLI-94-11, 40 NRC at 59 n.2.

40 See Entergy Proposed Findings at 41-43 (¶¶ 83-85) (citing Nuclear Innovation North America LLC (South Texas Project, Units 3 & 4), CLI-11-6, 74 NRC __, slip op. at 8 n.33 (2011)); Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 526-27 n.87 (2008); Dominion Nuclear N. Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-07-27, 66 NRC 215, 230 n.79 (2007);

Hydro Res., Inc., CLI-01-04, 53 NRC at 53; Pilgrim, CLI-12-01, slip op. at 30; La. Energy Servs. L.P. (Natl Enrichment Facility), CLI-06-15, 63 NRC 687, 707 n.91 (2006); La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 731 (2005); La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 87-89 (1998); S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-09-7, 69 NRC 613 (2009)). New York attempts, unsuccessfully, to distinguish two of these nine decisions: CLI-98-3 and CLI-06-15. See New York Proposed Findings at 136-37 (¶¶ 364-66). All of these cases show that an adjudicatory decision may modify or supplement an FEIS in all types of NRC proceedings regardless of the whether the NRC ultimately regulates the environmental impact at issue. Nor is there any significant difference between the procedural posture of this proceeding and the purportedly highly specific circumstances in CLI-98-3. See id.

at 137 (¶ 365 n.64).

41 Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562, 569 (D.C. Cir. 2007).

other agencies.42 But the U.S. Courts of Appeals, across multiple circuits, have consistently upheld the NRCs practice as consistent with the Atomic Energy Act43 and NEPA.44 New York attempts to dismiss some of these cases as inapplicable because they were decided under a superseded version of 10 C.F.R. § 51.52.45 However, as the Limerick Appeal Board held, [t]here is no reason to believe that the courts would not be just as approving of the same procedure today, either as embodied in section 51.102 or, indeed, in the absence of any regulation, as a matter of board practice.46

14.

New York argues that the Commissions practice of supplementing the NEPA record with its adjudicatory decisions is akin to impermissible post hoc rationalizations that courts have rejected,47 but these cases are readily distinguished because this hearing is part of the NRCs decisionmaking process, not a judicial review of the NRCs decision. The NRC has not yet issued renewed licenses for Indian Point, and the hearing record is an element of the overall record of the NRCs decision on Entergys license renewal application. In contrast, in Pennaco Energy v. U.S.

Dept of Interior, the post hoc affidavit at issue in that case was prepared and submitted to the 42 Appeals Boards have readily distinguished these cases, holding that they are inapplicable to the NRC hearing process. See Entergy Proposed Findings at 45-46 (¶¶ 90-92). Similarly, the potential supplementation of the record through the Boards decision does not violate the general NEPA principles recited in New Yorks new cases. See Brodsky v. U.S. Nuclear Regulatory Commn, 704 F.3d 113, 119 (2d Cir. 2013); Sierra Club v.

Watkins, 808 F. Supp. 852, 858 (D.D.C. 1991); South Fork Band Council of W. Shoshone v. U.S. Dept of Interior, 588 F.3d 718, 726 (9th Cir. 2009).

43 Nuclear Info.& Res. Serv., 509 F.3d at 562, 568 (holding that supplementing an EIS through the hearing record does not violate the Atomic Energy Act).

44 See id. at 568-69; Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291 1294 n.5 (D.C. Cir. 1975) (holding that the deemed modified principle did not depart from either the letter or the spirit of NEPA); Ecology Action v.

AEC, 492 F.2d 998, 1001-02 (2nd Cir. 1974) (omissions from an FEIS can be cured by subsequent consideration of the issue in an agency hearing); New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 94 (1st Cir. 1978) (having no trouble finding that the NRCs supplementation process satisfies NEPA); see also Pub.

Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1 (1978).

45 See New York Proposed Findings at 138 (¶ 368 & nn. 65-66).

46 Limerick, ALAB-819, 22 NRC at 706-07.

47 See, e.g., New York Proposed Findings at 133-32 (¶¶ 360-61).

Interior Board of Land Appeals (IBLA) after the agency had acted by completing the disputed lease sale.48

15.

Furthermore, there is no merit to New Yorks specter of harm that would ostensibly result from allowing supplementation or amendment of the FSEIS in this case.49 First, in arguing that it would be unclear which part of the record the Board decision was relying upon to cure any NEPA deficiency,50 New York overlooks that the Board is more than capable of writing a clear decision with citations to the record. Second, New Yorks claim that any supplemental information would not necessarily have been meaningfully analyzed by the NRC Staff51 ignores that Commission regulations authorize the Boardnot the NRC Staffto resolve NEPA disputes through the hearing process and that the Staff fully participated in that process as a party.52 Third, the Commission has already rejected the argument that supplementation is inconsistent with NEPAs public participation process because the hearing process allows for greater public 48 See Pennaco Energy v. U.S. Dept of Interior, 377 F.3d 1147, 1152 (10th Cir. 2004). The Pennaco decision and the other IBLA cases cited by New York are inapplicable for a variety of additional reasons: (1) the 10th Circuits decisions are not binding outside of that circuit; (2) nothing in the IBLA jurisprudence undermines the validity of the NRCs processes under NEPA; and (3) New Yorks interpretations of the IBLA decisions are oversimplified and appear to gloss over significant internal disputes over the interpretation of IBLAs precedent.

See, e.g., Wyoming Outdoor Council, 158 IBLA 155, 171 (IBLA 2003) (While the Board may look to post-EA

[environmental assessment] generated materials in search of BLMs hard look, those materials, in this case, present unresolved water quality issues.) (emphasis added); see also id. at 177 (Admin. J. Grant, dissenting)

(In evaluating whether BLM has taken a hard look at environmental impacts necessary to support a FONSI, this Board has found it proper to consider the entire record including comments, responses, and analysis generated before and after the EA was prepared); see also id. at 180 ([W]hile on appeal the appellants have made many assertions... these concerns have been addressed in the record, and when viewed in its entirety, the record supports the FONSI).

49 See New York Proposed Findings at 138 (¶ 369) (arguing that supplementation would be fraught with problems).

50 Id.

51 Id.

52 See 10 C.F.R. §§ 2.1202(b)(2)-(3), 51.104(a)(2)-(3). Contrary to New Yorks focus on the NRC Staff, NEPA is addressed to agencies as a whole, not only to their professional staffs. Calvert Cliffs Coordinating Comm. v.

AEC, 449 F.2d 1109, 1118 (D.C. Cir. 1971).

participation than NEPA otherwise requires.53 Fourth, contrary to New Yorks argument,54 NEPA does not preclude supplementation because it would mean that all the pertinent environmental information would no longer appear in one document.55

16.

Finally, New Yorks proposal would elevate form over substance and would likely undermine the efficient resolution of this adjudicatory proceeding. Surely, any change in the FSEISeven if fully documented in the hearing recorddoes not require the publication of an FSEIS supplement for comment and subsequent hearing opportunity. Drawing out the NEPA review in such an indefinite fashion would undermine the Commissions goals of an efficient, stable, and predictable regulatory process for license renewal.56 It would also undermine NEPAs ultimate purpose, which is not better documents but better decisions.57

17.

In summary, this adjudicatory proceeding is not immune or isolated from the requisite hard look required of the NRC by NEPA; it is a key part of it. The Board must follow binding NRC precedent and reject New Yorks claim that no adjudicatory findings could cure the defects New York purports to identify.58 As discussed below and detailed in Entergys and 53 Hydro Res., CLI-01-04, 53 NRC at 53. For this same reason, New York incorrectly relies on the Boards decision granting New York summary disposition on NYS-35/36 as support for its claim that a remand to the NRC Staff is the appropriate remedy for any NEPA deficiency. See New York Proposed Findings at 139

(¶ 370). That decision is distinguishable because resolution of that contention did not involve an evidentiary hearing (i.e., there was no public airing of the issues). Entergy also respectfully notes that it believes that Board erred in that decision.

54 New York Proposed Findings at 138-39 (¶ 369).

55 To the contrary, NEPA allows agencies to rely on environmental analyses in multiple documents. See, e.g.,

10 C.F.R. Part 51, App. A, § (b) (authorizing tiering and incorporation by reference).

56 See Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,461 (May 8, 1995);

Proposed Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 74 Fed. Reg. 38,117, 38,118 (July 31, 2009).

57 40 C.F.R. § 1500.1(c) (Ultimately, of course, it is not better documents but better decisions that count. NEPAs purpose is not to generate paperworkeven excellent paperworkbut to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.).

58 See New York Proposed Findings at 136 (¶ 364).

NRC Staffs Proposed Findings, to the extent any further NEPA analysis is required beyond the FSEIS, there is ample information in record from which Board can draw to supplement the FSEIS.

B.

Facts Not Disputed by New York

18.

As discussed below, although New York continues to disagree with Entergy and the NRC Staff on numerous factual and legal issues, the record evidence does reflect agreement (at least in principle) among the parties on some key facts. In particular, the parties agree that:

• A SAMA analysis is intended to identify potential changes to a nuclear power plant, or its operations, that could reduce the already-low risk (the likelihood and/or the impact) of a severe accident, for which the benefit of implementing the change outweighs the cost of implementation.59

• A SAMA analysis models numerous accident release conditions that could, based on probabilistic analysis, occur at any time under varying weather conditions during a one-year period to calculate the mean annual consequences of a severe accident for the entire 50-mile radius area of interest.60

• A SAMA analysis makes use of best estimate values and involves an averaging of potential consequences.61

• The industry has developed a guidance document, NEI 05-01, Rev. A (NEI 05-01) to facilitate the preparation of complete SAMA analyses.62 The Staff has specifically endorsed NEI 05-01 and recommended that applicants for license renewal follow the guidance provided in NEI 05-01 when preparing their SAMA analyses.63 59 Oct. 17, 2012 Tr. at 1900:9-23 (Teagarden); Testimony of Entergy Witnesses Lori Potts, Kevin OKula, and Grant Teagarden on Consolidated Contention NYS-12C (Severe Accident Mitigation Alternative Analysis) at 17 (A28) (Mar. 30, 2012) (Entergy Testimony) (ENT000450); NRC Staff Testimony of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones and Donald G. Harrison Concerning NYS Contentions NYS 12/16 at 19 (A8) (Mar. 30, 2012) (NRC Staff Testimony) (NRC000041); Pre-filed Written Testimony of Dr. Francois J. Lemay Regarding Consolidated NYS-12-C (NYS-12/12-A/12-B/12-C) at 10:206-19 (Dec. 21, 2011) (New York Direct Testimony) (NYS000241).

60 Oct. 17, 2012 Tr. at 1927:16-24 (Teagarden); Entergy Testimony at 18 (A31) (ENT000450); NRC Staff Testimony at 25-26 (A19) (NRC000041) New York Direct Testimony at 11:231-33 (NYS000241).

61 Oct. 17, 2012 Tr. at 1937:1-21 (Teagarden, Bixler, and Lemay).

62 Id. at 1926:5-8 (Teagarden); id. at 1945:15-16 (Lemay); Entergy Testimony at 17 (A29) (ENT000450); see NEI 05-01, Rev. A, Severe Accident Mitigation Alternatives (SAMA) Analysis, Guidance Document (Nov. 2005)

(NEI 05-01) (NYS000287).

63 Oct. 17, 2012 Tr. at 1926:10 (Teagarden); Entergy Testimony at 18 (A30) (ENT000450).

• Entergy followed the NRC-approved, prescriptive guidance in NEI 05-01 to perform the SAMA analysis and used the NRC and industry standard code (MACCS2) in the analysis.64

• A SAMA analysis involves four major sequential steps: (1) characterization of plant risk, (2) identification of potential SAMA candidates, (3) quantification of risk reduction potential and SAMA implementation costs, and (4) identification of potentially cost-beneficial SAMAs.65

• The MACCS2 code is the standard software tool used in the U.S. to perform the offsite consequence analysis for the Level 3 portion of nuclear power plant PRA-type evaluations.66

• MACCS2 performs its calculations based on plant-and site-specific, regional, and industry-standardized regulatory inputs.67 Plant-specific inputs to MACCS2 include, for example, the PRA-based source terms for each source term release category and the reactor core radionuclide inventory, site-specific meteorological data, projected population distribution, and land-related economic data.68

• MACCS2 is divided into three primary modulesATMOS, EARLY, and CHRONC.69 NYS-12C challenges certain Entergy inputs to CHRONC, which uses the atmospheric radioactivity concentrations determined by ATMOS to determine long-term offsite population dose and long-term economic costs.70 64 Entergy Testimony at 17-18 (A29-30), 46 (A61) (ENT000450).

65 See October 17, 2012 Tr. at 1900:24-1919:14 (Teagarden); see also Entergy Testimony at 18 (A31)

(ENT000450); NRC Staff Testimony at 19 (A9) (NRC000041); NEI 05-01 at 2 (NYS000287).

66 NRC Staff Testimony at 21 (A12) (NRC00041); Entergy Testimony at 24 (A39), 76-77 (A101) (ENT000450);

New York Direct Testimony at 11:244-12:251 (NYS000241); see also Pilgrim, CLI-12-01, slip op. at 3 (NRC-endorsed guidance on SAMA analysis endorses use of the MACCS2 code.) (citing Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 291 & n.11 (2010)).

67 Oct. 17, 2012 Tr. at 1938:4-9 (Teagarden), 1944:11-1945:4 (OKula); New York Testimony at 13:269-77 (NYS000241); see also NEI 05-01 at 13-15 (NYS000287).

68 Oct. 17, 2012 Tr. at 1947:16-1950:8 (Teagarden); New York Direct Testimony at 12:261-64 (NYS000241); see also NEI 05-01 at 13-15 (NYS000287).

69 Oct. 17, 2012 Tr. at 2056:22-2057:25 (OKula); Entergy Testimony at 28-29 (A44 & Fig. 2) (ENT000450)

(citing NUREG/CR-6613, Code Manual for MACCS2, Vol. 1 at 2-1 to 2-3 (May 1998) (NUREG/CR-6613)

(NYS000243)); NRC Staff Testimony at 25 (A19) (NRC000041); New York Direct Testimony at 13:286-14:294 (NYS000241).

70 Entergy Testimony at 28 (A44) (ENT000450); NRC Staff Testimony at 36-37 (A32) (NRC000041); New York Direct Testimony at 14:307-14 (NYS000241).

• The MACCS2 code conserves mass through a source depletion model; i.e., there is conservation of mass between the modeled plume and the contamination deposited by that plume; i.e., more contamination is not deposited than was originally released.71

• MACCS2 accounts for varying population densities and the cost of nonfarm decontamination within the modeled 50-mile radius SAMA analysis region by applying the CDNFRM input values on a per person basis.72

• MACCS2 provides results in terms of offsite population dose and offsite economic cost that are used to compute the offsite risk measures; i.e., population dose risk (PDR) expressed in units of person-rem/year, and offsite economic cost risk (OECR) expressed in dollars/year.73 The individual PDRs and OECRs for the spectrum of different accident release categories are summed (outside of MACCS2) to determine the overall PDR and overall OECR for the plants SAMA analysis.74

• The nonfarm decontamination cost (CDNFRM) and decontamination time (TIMDEC) parameter inputs to MACCS2 have the most significant impact of the MACCS2 parameters at issue in NYS-12C.75

• The maximum CDNFRM value accepted by the MACCS2 code is $100,000 per person. The maximum TIMDEC value accepted by the MACCS2 code is one year.

• Entergy relied on CDNFRM, TIMDEC, and dose reduction (decontamination) factors (DSRFCT) obtained from NUREG-1150.76 Entergy updated the CDNFRM input values using the Consumer Price Index ratio for 1986 to 2005 (the basis year for the IPEC SAMA analysis), consistent with NEI 05-01 guidance.77 71 Oct. 18, 2012 Tr. at 2143:19-23 (Bixler); id. at 2176:23-2177:10 (Lemay).

72 Id. at 2166:18-20 (Teagarden); New York Direct Testimony at 11:233-35 (NYS000241).

73 Oct. 17, 2012 Tr. at 1907:17-22, 1913:3-14, 1918:1-22 (Teagarden); Entergy Testimony at 45 (A59)

(ENT000450) New York Position Statement at 13 (NYS000240).

74 Entergy Testimony at 45 (A59) (ENT000450); Oct. 18, 2012 Tr. at 2191:22-25 (Teagarden); see also id. at 2194:17-24 (Lemay).

75 See Oct. 17, 2012 Tr. at 2053:18-2055:8 (Teagarden, Lemay).

76 See id. at 2058:20-22 (Teagarden); id. at 2059:14-16 (Teagarden) (The sample problem reflects values from NUREG-1150. The Entergy analysis used values from NUREG-1150.); New York Direct Testimony at 23:498-503 (NYS000241).

77 See Entergy Testimony at 53 (A71) (ENT000450) (citing NL-08-028, Letter from Fred Dacimo, Vice President, Entergy, to NRC, Reply to Request for Additional Information Regarding License Renewal Application - Severe Accident Mitigation Alternatives Analysis, Attach. 1 at 38 (Feb. 5, 2008) (February 2008 RAI Response)

(ENT000460)); Oct. 17, 2012 Tr. at 1962:20-22 (Teagarden); New York Direct Testimony at 23:498-503 (NYS000241).

C.

New Yorks Attempts to Diminish the Qualifications and Dismiss the Testimony of Entergys and NRC Staffs Expert Witnesses Are Groundless

19.

In its proposed findings, New York contends, for the first time in this proceeding, that Entergys and the Staffs expert witnesses lack sufficient qualifications or experience and rely on unsupported assumptions and conclusions, such that portions of their testimony should be afforded little or no weight.78 New Yorks arguments clearly are groundless. Indeed, New Yorks criticisms are more appropriately directed at its own expert, who has no prior experience with performing NRC-required SAMA analyses, and whose own testimony has been shown to contain numerous material errors and incorrect assumptions.79

20.

All of Entergys and the NRC Staffs witnesses are eminently well qualified to testify on the issues raised in NYS-12C. The professional qualifications of both parties expert witnesses are summarized in Entergys proposed findings.80 Nonetheless, in light of New Yorks misdirected attempts to impugn the testimony of Entergys and the Staffs witnesses, Entergy reiterates and augments that discussion here.

1.

Entergys Expert Witnesses and Testimony

21.

Ms. Potts, a nuclear engineer by training, has over 30 years of relevant technical experience, is a co-author of the industrys NRC-approved SAMA analysis guidance, and has been directly involved in the preparation or peer review of SAMA analyses for approximately one dozen nuclear power plants.81 In the Pilgrim license proceeding, Ms. Potts co-authored an expert 78 See New York Proposed Findings at 96 (¶ 257), 125 (¶ 343), 129 (¶ 350).

79 See, e.g., NRC Staff Proposed Findings at 43 (¶ 5.73) (Entergys and the NRCs experts identified serious errors in accounting for land area, conservation of mass, the net present value of money expended over multiple years, the inter-related nature of the MACCS2 data inputs, and the allowable input ranges.).

80 See Entergys Proposed Findings at 47-52 (¶¶94-104).

81 Ms. Potts professional qualifications are provided in her curriculum vitae (ENT000004) and summarized in her testimony. See Entergy Testimony at 1-3 (A1-4) (ENT000450).

declaration (along with Dr. OKula and another witness) that supported Entergys successful opposition to a proposed SAMA contention based on the March 2011 accident at Fukushima.82

22.

Dr. OKula has a Ph.D. in nuclear engineering and over 30 years of relevant technical experience, including over twenty years of experience using, applying, and providing training on the MACCS/MACCS2 computer codes.83 Dr. OKula was a member of the Peer Review Committee for NRCs State-of-the-Art Reactor Consequence Analyses (SOARCA) project.84 He has authored dozens of publications germane to severe accident consequence analysis, including SAMA analysis.85 In the Pilgrim license renewal proceeding, the Board and the Commission relied extensively on Dr. OKulas expert testimony in dismissing SAMA-related contentions at the contention admissibility and merits stages of that proceeding.86 In the Davis-Besse license renewal proceeding, another Board relied on an expert declaration prepared by Dr.

OKula and Mr. Teagarden in granting summary disposition of an admitted SAMA contention.87 82 See Declaration of Joseph R. Lynch, Lori Ann Potts, and Dr. Kevin R. OKula in Support of Entergys Answer Opposing Commonwealth Claims of New and Significant Information Based on Fukushima (June 27, 2011)

(Lynch, Potts, and OKula Declaration), available at ADAMS Accession No. ML11346A301; Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-35, 74 NRC __, slip op. at 28-29, 34-40 (Nov.

28, 2011), affd, CLI-12-06, 75 NRC __, slip op. (Mar. 8, 2012) (citing extensively to the Lynch, Potts, and OKula Declaration in rejecting the petitioners technical arguments.).

83 Dr. OKulas professional qualifications are provided in his curriculum vitae (ENT000005) and summarized in his testimony. See Entergy Testimony at 3-5 (A5-9) (ENT000450).

84 The NRC initiated the SOARCA project in 2006 to develop revised best estimates of the offsite radiological health consequences of severe reactor accidents by including significant plant improvements and updates not reflected in earlier NRC assessments. See Entergy Testimony at 26 (A41) (ENT000450).

85 See Curriculum Vitae of Kevin R. OKula at 5-6 (ENT000005).

86 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-11-18, 74 NRC __ slip op. (July 19, 2011), affd, CLI-12-01, 75 NRC __, slip op. (Feb. 9, 2012); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-12-01, 75 NRC __, slip op. (Jan. 11, 2012), affd, CLI-12-15 (June 7, 2012).

87 See Joint Declaration of Kevin OKula and Grant Teagarden in Support of FirstEnergys Motion for Summary Disposition of Contention 4 (SAMA Analysis Source Terms) (July 26, 2012) (Joint Declaration by Dr. OKula and Mr. Teagarden), available at ADAMS Accession No. ML12208A429; FirstEnergy Nuclear Operating Co.

(Davis-Besse Nuclear Power Station, Unit 1), LBP-12-26, 76 NRC __, slip op. at 10-11, 20-23, 26-28 (Dec. 28, 2012) (citing Joint Declaration by Dr. OKula and Mr. Teagarden in granting summary disposition of admitted SAMA contention). Notably, this Board also relied, in part, on a joint declaration submitted by Dr. OKula and Mr. Teagarden in denying New Yorks August 28, 2009 motion for summary disposition of SAMA contention

23.

Mr. Teagarden, a mechanical engineer by education, has over fourteen years of relevant technical experience.88 He has substantial expertise in performing Level 2 and Level 3 PRAs, and as Manager for Consequence Analysis for ERIN Engineering & Research, Inc., Mr.

Teagarden is the company lead for Level 3 PRA consequence analysis. In that capacity, he has developed Level 3 PRA models for the Limerick, Callaway, Diablo Canyon, Salem, Hope Creek, Three Mile Island (TMI), Prairie Island, Palisades, and Monticello nuclear power plants (in support of those plants license renewal SAMA analyses).89 He also has developed Level 3 models to support several design certification, early site permit, and new reactor license applications.90 Finally, Mr. Teagarden supported the applicants successful resolution of admitted SAMA contentions in the Prairie Island and Davis-Besse license renewal proceedings.91

24.

New York contends that Entergys witnesses are not sufficiently qualified because they have not attempted to develop site-specific cost inputs (other than population and farm/nonfarm wealth) to the CHRONC module of the MACCS2 code.92 It further asserts that those witnesses instead have only ever used Sample Problem A values, escalated using the NYS-16/16A. See Licensing Board Memorandum and Order (Ruling on Motions for Summary Disposition) at 8-14 (Nov. 3, 2009 (unpublished) (citing Joint Declaration of Kevin OKula and Grant Teagarden in Support of Entergys Answer Opposing New York States Motion for Summary Disposition of Contention NYS-16/16A (Sept. 18, 2009)).

88 Mr. Teagardens professional qualifications are provided in his curriculum vitae (ENT000007) and summarized in his testimony. See Entergy Testimony at 5-7 (A10-13) (ENT000450).

89 See Curriculum Vitae of Grant A. Teagarden at 1 (ENT000007).

90 See id.

91 See id.; see also supra note 86.

92 New York Proposed Findings at 33 (¶ 98). New York claims that Dr. Lemay and ISR have experience developing site-specific inputs and, in fact, analyzed how site-specific inputs should be developed for Indian Point. Id. However, there is no indication in Dr. Lemays curriculum vitae (NYS000291) or testimony that he has any prior experience in performing NRC-mandated SAMA analyses, much less developing site-specific economic and decontamination-related inputs for such analyses. Further, New York presupposes that Dr.

Lemays proposed decontamination time and cost values are technically justified. For the many reasons set forth in Entergys and the Staffs testimony and proposed findings, Dr. Lemays proposed values are anything but technically justified.

Consumer Price Index.93 New York misses the point. Based on their substantial expertise and experience in performing or reviewing MACCS2 based SAMA analyses, Entergys witnesses testified that the NUREG-1150/Sample Problem A values challenged by New York are reasonable and acceptable for use in a SAMA analysis.94 In fact, they testified that, in their professional opinions, the values used by Entergy represent the best available information, and to the best of their knowledge, there are no technically superior values for use in a SAMA analysis.95 There is no knowledge and experience gap as alleged by New York,96 or any need to undertake the development of additional studies or cost estimates under NEPA.97

25.

New York also suggests that because Entergys witnesses did not actually perform the IPEC SAMA analysis, as revised in December 2009, they are somehow unable to testify on the adequacy of that analysis or New Yorks criticisms thereof.98 That argument is frivolous. Ms.

Potts specifically testified that she: (1) was involved with the IPEC SAMA analysis from its inception in 2005; (2) provided advice to the Entergy Fuels and Analysis Department engineers during preparation of the original SAMA analysis and the December 2009 revised SAMA analysis; (3) reviewed the summaries of those analyses and provided suggestions for improvement before they were submitted to the NRC; and (4) has personal knowledge of the MACCS2 93 Id.

94 See generally, Entergy Proposed Findings at 67-74 (¶¶ 135-148), 77-87 (¶¶ 154-171), 103-110 (¶¶ 204-216),

113-119 (¶¶ 222-235) (including testimony and exhibits cited therein).

95 See Oct. 17, 2012 Tr. at 2040:2-5 (Teagarden); see also id. at 2043:24-2044:4 (Ms. Potts) (As Mr. Teagarden said, these are the best values that we know of, the only values that are available, and its irrational to think that the authors of [NUREG-]1150 would have used them for all five of the plants in that study if they were not applicable.).

96 New York Proposed Findings at 125 (¶ 342).

97 See, e.g., Lee v. United States Air Force, 354 F.3d 1229, 1244 (10th Cir. 2004) (holding that the U.S. Air Force was not required to carry out its own study regarding the impact of low-level overflights on livestock, and that agencies must use the best available scientific information when assessing environmental impacts.).

98 See New York Proposed Findings at 32-34 (¶¶ 94-98).

modeling and assumptions used in the IPEC SAMA analysis.99 She also stated that she reviewed various materials in preparing her written testimony, including those portions of the IPEC LRA relating to SAMAs.100 Dr. OKula and Mr. Teagarden testified that they thoroughly reviewed the various inputs and assumptions used in Entergys SAMA analysis (as revised in December 2009) to calculate offsite consequences associated with a postulated severe accident at IPEC, including relevant supporting documentation, and that they have personal knowledge of the MACCS2 modeling, and inputs and assumptions used in the IPEC SAMA analysis.101

26.

Finally, New York claims certain testimony by Dr. OKula and Mr. Teagarden lacks adequate supporting documentation. For example, Mr. Teagarden testified at hearing that after accounting for the full spectrum of release categories and frequencies considered in the IPEC SAMA analysis, he estimated that the average number of decontamination workers would be approximately 60,000 to 80,000 people.102 New York contends that this testimony should be disregarded because Entergy has offered no analysis or documentation to support Mr.

Teagardens statement.103 Similarly, New York asserts that Dr. OKulas testimony concerning his informal look at Dr. Lemays CONDO and Risø decontamination cost values should be afforded no weight due to an alleged lack of supporting data or analysis.104

27.

New Yorks argument lacks force. New York could have lodged an objection to Mr. Teagardens testimony at the time he proffered it or, alternatively, cross-examined him on the 99 See Entergy Testimony at 2-3 (A4) (ENT000450).

100 See id. at 3 (A4).

101 See id. at 5 (A9), 6-7 (A13).

102 Oct. 18, 2012 Tr. at 2191:2-6 (Teagarden).

103 New York Proposed Findings at 129 (¶ 351).

104 See id. at 128 (¶ 349). Dr. OKula testified that he renormalized the surface factors for internal walls and exterior walls used by Dr. Lemay in the ISR Report to make them more realistic, and that the values became much like those applied in the Entergy SAMA analysis. Oct. 18, 2012 Tr. at 2366:5-12 (OKula).

bases for his decontamination worker estimate.105 It did neither. Accordingly, the Board should accord Mr. Teagardens testimony its due weight.

28.

With respect to Dr. OKulas testimony concerning his renormalization of Dr.

Lemays CONDO-related decontaminating cost estimates, New York did raise such an objection.106 However, that objection was overruled by the Board.107 New York also requested that any spreadsheets or analyses documenting Dr. OKulas assessment of Dr. Lemays CONDO-related cost estimates be disclosed.108 The Board did not rule on this request, but noted that New York could review the transcript and file an appropriate motion, if necessary.109 Entergy voluntarily disclosed and produced a copy of a spreadsheet prepared by Dr. OKula as an interim disclosure on November 30, 2012.110 New York did not move to exclude Dr. OKulas testimony from the hearing record as unreliable, or seek to supplement its testimony, based on its review of that disclosure. Therefore, Dr. OKulas testimony also should be accorded its due weight.111 105 Cf. Toucet v. Maritime Oversees Corp., 991 F.2d 5, 10 (1st Cir. 1993) (holding that burden of exploring facts and assumptions underlying expert testimony rests on opponent); Ratliff v. Schiber Truck Co., Inc., 150 F.3d 949, 955 (8th Cir. 1998) (holding that party opposing experts testimony has burden of exploring facts and assumptions underlying the experts opinion; thus, trial court had discretion to allow cross-examination of testifying expert about inadmissible document not in evidence but relied on by expert).

106 See Oct. 18, 2012 Tr. at 2365:17-22 (Liberatore).

107 See id. at 2365:23-2366:2 (Judge McDade) (This is the opportunity of Entergy to ask the question. I think it was an appropriate question. Im going to allow the witness appropriate question. Im going to allow the witness to answer in the way he thinks is most responsive, and the objection is overruled.).

108 See id. at 2384:9-15 (Liberatore).

109 See id. at 2384:16-24 (Judge McDade).

110 See Entergy Disclosure Log No. 9432, CONDO and RISO Spreadsheet, prepared by Dr. Kevin OKula (Oct.

2012). Entergy also listed Dr. OKulas spreadsheet in its Forty-Sixth Supplemental Disclosure Log transmitted to the parties on December 5, 2012.

111 Cf. Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (holding that an expert is free to give bottom line opinion, as long as underlying data and reasoning are available on demand). Here, New York did not ask the Board for the opportunity to perform additional cross-examination of Dr. OKula or to supplement its testimony.

2.

NRC Staffs Expert Witnesses and Testimony

29.

Dr. Bixler holds a Ph.D. in Chemical Engineering and has been employed by Sandia National Laboratories for nearly three decades.112 Since 1998, he has been the principal investigator for code development and analysis of nuclear accident consequences for the NRC for multiple codes, including the MACCS2 code. Dr. Bixler has authored or co-authored publications related to severe accidents and the MACCS2 code.113 He also testified on behalf of the NRC Staff in the Pilgrim license renewal proceeding in connection with an admitted SAMA contention that was dismissed in favor of Entergy and the NRC Staff after an evidentiary hearing on the merits.114

30.

Dr. Ghosh holds advanced nuclear engineering degrees and a B.S. degree in civil engineering from two of the most prestigious academic institutions in the nation, the Massachusetts Institute of Technology (where she was supervised by NRC Commissioner George Apostolakis and has since served as a guest lecturer) and Princeton University.115 Dr. Ghosh, who has substantial expertise in risk-informed decision-making, served as the NRC lead for the SOARCA project, and has reviewed numerous license renewal SAMA analyses.

31.

Mr. Jones is a Distinguished Member of the Technical Staff at Sandia National Laboratories.116 He has nearly thirty years of experience in engineering and analysis, and has been involved in radiological emergency preparedness, consequence management, and radioactive 112 Dr. Bixlers professional qualifications are provided in his statement of qualifications (NRC000042) and summarized in his testimony. See NRC Staff Testimony at 1-3 (A1-2) (NRC000041).

113 See Statement of Qualifications of Nathan E. Bixler at 4-6 (NRC00042).

114 See, e.g., Pilgrim, CLI-12-01, slip op. at 4, 14, 19 (citing Affidavit of Dr. Nathan Bixler Concerning the Boards Questioning from Board Majority Regarding the Mechanics of Computing Mean Consequences in SAMA Analyses (Nov. 18, 2010)).

115 Dr. Ghoshs professional qualifications are provided in her statement of qualifications (NRC000043) and summarized in her testimony. See NRC Staff Testimony at 1-3 (A1-2) (NRC000041).

116 Mr. Jones professional qualifications are provided in his statement of qualifications (NRC000044) and summarized in his testimony. See NRC Staff Testimony at 1-4 (A1-2) (NRC000041).

materials cleanup activities both nationally and internationally. Mr. Jones has managed project teams in the decontamination and decommissioning of radioactively-contaminated facilities at Sandia and the development of advanced decontamination techniques for radioactive materials.

32.

Mr. Donald Harrison is a nuclear engineer and has over twenty-five years of technical expertise in PRA and risk-related activities.117 He is a recognized expert in PRA techniques and risk-informed applications who has been involved in many of the NRCs highest priority activities that relied upon risk insights. Notably, Mr. Harrison assisted the Office of Commission Appellate Adjudication as an adjudicatory employee, providing technical advice in the Catawba and McGuire license renewal proceedings.118

33.

All of the NRC Staffs witnesses identified the specific documents that they reviewed in preparing their prefiled written testimony on NYS-12C.119 In short, they reviewed Entergys SAMA analysis, as revised, including key supporting technical documentation, as well as the relevant portions of the FSEIS for IPEC license renewal.120 Thus, the Staffs witnesses have personal knowledge of the inputs and assumptions used in the IPEC SAMA analysis.

34.

In summary, based on their specialized technical knowledge and experience, the Entergy and NRC Staff witnesses identified above provided expert testimony that will help the Board to understand the evidence and resolve the issues raised in NYS-12C. Collectively, those witnesses have roughly 170 years of relevant technical experience, have been directly involved in preparing and reviewing dozens of SAMA analyses, and previously have offered expert testimony 117 Mr. Harrisons professional qualifications are provided in his statement of qualifications (NRC000045) and summarized in his testimony. See NRC Staff Testimony at 2-4 (A1-2) (NRC000041).

118 See Statement of Qualifications of Donald G. Harrison at 2 (NRC000045).

119 See NRC Staff Testimony at 6-12 (A5.a-A.5d) (NRC000041).

120 See id.

relied on by other Licensing Boards and the Commission. There is no basis for New York to belatedly claim that any of their testimony should be disregarded or accorded no weight.

D.

A SAMA Analysis Is a Site-Specific Mitigation Alternatives Analysis, Not a Severe Accident Impacts Assessment

35.

In its proposed findings, New York incorrectly suggests that a SAMA analysis is site-specific assessment of the environmental impacts of a postulated severe accident.121 For example, New York states that [t]he SAMA analysis is crucial because [i]t is the only time that NRC Staff evaluates the environmental impacts associated with a severe accident at Indian Point before deciding whether to grant Entergys license renewal application.122 It later asserts that

[t]he SAMA analysis is the vehicle by which NRC Staff considers, in the FSEIS, the environmental impacts of a severe accident.123

36.

These and other similar statements by New York are factually incorrect and contrary to Commission legal precedent. As the Commission stated less than one year ago:

The [facilitys] SAMA analysis must also be understood against the backdrop of our Generic Environmental Impact Statement (GEIS),

which contains a bounding, generic severe accident impacts analysis, applicable to all plants. Thus, although our rules require that potential severe accident mitigation alternatives be considered for license renewal, no site-specific severe accident impacts analysis need be done.124

37.

As noted by the Commission, the NRCs GEIS provides an evaluation of severe accident impacts that applies to all U.S. nuclear power plantsincluding IPEC.125 Further, the 121 New York Proposed Findings at 23-26 (¶ 75-80).

122 Id. at 1 (¶ 5) (emphasis added).

123 Id. at 23 (¶ 75), 109 (¶ 290).

124 Pilgrim, CLI-12-15, slip op. at 5-6 (emphasis added) (citations omitted).

125 See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1 at 5-12 to 5-116 (May 1996) (GEIS) (NYS00131C); Pilgrim, CLI-10-11, 71 NRC at 316 (Because the GEIS provides a severe accident impacts analysis that envelopes the potential impacts at all existing plants, the

Commission has noted that the GEIS analyses represent plant-specific estimates of the impacts from severe accidents that would generally over-predict, rather than under-predict, environmental consequences.126 Based on the GEIS evaluation, 10 C.F.R. Part 51 concludes that [t]he probability weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants.127 Thus, contrary to New Yorks claim, NRC SAMA analyses are not a substitute for, and do not represent, the NRC NEPA analysis of potential impacts of severe accidents.128 E.

Neither NEPA Nor the NRCs 10 C.F.R. Part 54 License Renewal Regulations Require Implementation of Potentially Cost-Beneficial SAMAs

38.

New York also erroneously suggests that NEPA compels implementation of SAMAs identified by Entergy as potentially-cost beneficial.129 For instance, it claims that the NRC Staffs allegedly inappropriate acceptance of Entergys decontamination cost values deprives millions of New Yorkers and others living around Indian Point of the potential benefits of mitigation measures that could protect them in the event of a severe accident.130 Citing the Boards July 2011 summary disposition ruling concerning contention NYS-35/36, New York further asserts that [o]ne goal of the SAMA analysis is to provide sufficient information about environmental impacts of severe accidents during the license renewal term already have been addressed generically in bounding fashion.); see also GEIS at 5-17, 5-22, 5-29, 5-34, 5-36, 5-38, 5-40, 5-45, 5-47, 5-85 to

-88, 5-97 (NYS0131C).

126 Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

28,467, 28,480 (June 5, 1996).

127 FSEIS at 5-3 (NYS00133B) (quoting 10 C.F.R. Pt. 51, Subpt. A, App. B, Tbl. B-1 (Postulated Accidents; Severe Accidents)) (emphasis added).

128 Pilgrim, CLI-10-11, 71 NRC at 315-16.

129 At hearing, Entergy objected to this argument as being outside the scope of the contention. Oct. 17, 2012 Tr. at 1922:3-12 (Bessette). The NRC Staff also noted that this argument was outside the scope of this contention. Oct 18, 2012 Tr. at 2226:2-8 (Ghosh).

130 New York Proposed Findings at 2 (¶ 8).

mitigation alternatives for NRC Staff to adequately analyze mitigation alternatives under NEPA and determine whether to require particular accident mitigation alternatives.131

39.

New Yorks assertions again are contrary to settled law. The Commission has stated in this proceeding that NEPA is a procedural statutealthough it requires a hard look at mitigation measures, it does not, in and of itself, provide the statutory basis for their implementation.132 And, even more recently, the Commission rejected an intervenors claim that NRC must require Entergy to implement all possible mitigation alternatives.133 It correctly noted that such a demand is inconsistent with NEPA, which neither requires nor authorizes the NRC to order implementation of mitigation measures analyzed in an environmental analysis.134

40.

The Commissions statements in this proceeding and in Pilgrim are consistent with a long line of judicial opinionsincluding the Supreme Courts Robertson decisionholding that NEPA imposes no substantive requirement that mitigation measures actually be taken.135 Among the most recent of those decisions is the First Circuits February 2013 decision denying a petition 131 Id. at 41 (¶ 113) (citing Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-11-17, 74 NRC 11, 27 (2011), pet. for rev. denied, CLI-11-14, 74 NRC __ (slip op.) (Dec. 22, 2011)) (emphasis added).

132 Indian Point, CLI-11-14, slip op. at 16 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 n.16 (1989)).

133 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC __, slip op. at 11 (Mar.

30, 2012).

134 Id. (citing Robertson, 490 U.S. at 353).

135 See, e.g., Robertson, 490 U.S. at 352, 353 ([I]t would be inconsistent with NEPAs reliance on procedural mechanismsas opposed to substantive, result-based standardsto demand the presence of a fully developed plan that will mitigate environmental harm before an agency can act.); Natl Parks & Conservation Assn v.

U.S. Dept of Trans., 222 F.3d 677, 681 n.4 (9th Cir. 2000) (stating that a mitigation plan need not be legally enforceable, funded or even in final form to comply with NEPAs procedural requirements); Cnty. of Rockland

v. FAA, 335 Fed.Appx. 52, 55 (DC. Cir. 2009) (NEPA does not impose substantive requirement that a complete mitigation plan be actually formulated and adopted before agency can act) (quoting Robertson, 490 U.S. at 352); Citizens Concerned About Jet Noise, Inc. v. Dalton, 48 F.Supp.2d 582, 603 (E.D.Va. 1999) (citing Robertson, 490 U.S. at 353) ([B]ecause it is only procedural and not substantive in nature, NEPA does not require agencies to implement any of the mitigation measures discussed in the FEIS.).

for review of the Commissions decision to issue a renewed license for Entergys Pilgrim plant.136 The court stated unequivocally that [t]o the extent [the petitioner] seeks to impose a substantive requirement that the NRC must require certain mitigation measures under NEPA, that is foreclosed by the fact that NEPA is not outcome driven.137 F.

The IPEC SAMA Analysis Is a Site-Specific Mitigation Alternatives Analysis That Appropriately Accounts for the Hyper-Dense Population of New York City

41.

A common thread running through New Yorks proposed findings is the claim that Entergy and NRC Staff have ignored their obligation to conduct a site-specific SAMA analysis.138 That argument, however, unravels upon even a cursory inspection. Importantly, New Yorks expert does not dispute that Entergy used numerous IPEC-specific inputs to its MACCS2-based SAMA analysis.139 Those plant-specific inputs include, for example, IPEC-specific meteorological data (year 2000 data from the IPEC meteorological tower), the projected year 2035 population distribution within the 50-mile SAMA analysis region (based on year 2000 census data and state and county-level population projections), the IP2 and IP3 core radionuclide inventories, IP2 and IP3 source term and release characteristics, and region-specific economic data (i.e., value of farm and nonfarm wealth).140 Thus, the IPEC SAMA analysis is clearly site-specific in nature.

42.

New Yorks contrary claim rests on two premises that are fundamentally flawed.

The first is that the IPEC SAMA analysis underestimates severe accident costs because it relies 136 See Mass. v. NRC, No. 12-1404, 12-1772, slip op. (1st Cir. Feb. 25, 2013).

137 Id. at 39 n.27 (citing Robertson, 490 U.S. at 353) (emphasis added). Notably, the Third Circuits 1989 Limerick decision, which New York cites frequently in its proposed findings, similarly states that NEPAs procedural requirement cannot be expanded upon by the courts either by requiring additional procedures or by requiring substantive outcomes.). Limerick, 869 F.2d at 730 n.9.

138 New York Proposed Findings at 1 (¶ 4).

139 See October 17, 2012 Tr. at 1945:6-1947:1 (Lemay).

140 See id. at 1947:15-1950:8, 2064:12-2066:23 (Teagarden).

on data developed for a site in rural Virginia (i.e., the Surry site).141 As stated in Entergys proposed findings, the MACCS2 Users Guide indicates that Sample Problem A is based on input data obtained from NUREG-1150.142 However, as Entergys experts explained, the decontamination cost and time input values used in NUREG-1150 and later incorporated into Sample Problem A were not developed solely for the Surry site.143 In fact, the NUREG-1150 study used the MACCS code (MACCS2s predecessor) and applied the same CHRONC economic inputs (except for the variables related to farm and nonfarm wealth, which are based on region-specific inputs) for each of the five study sites, including the Zion site with its urban environs.144 NUREG-1150 thus applied the same CDNFRM and TIMDEC values used in Sample Problem A to all five of the NUREG-1150 study sites.145 The NUREG-1150 authors did not view those values as being applicable only to the Surry site.146

43.

During discussion of NUREG/CR-3763,147 Mr. Teagarden reiterated this key point.

Specifically, he testified that the CDNFRM values included in NUREG-1150 reflect a mixture of land uses.148 He also noted that the NUREG-1150 nonfarm decontamination cost value was applied universally across the five different sites examined in that study, suggesting that in the 141 New York Proposed Findings at 1 (¶ 4).

142 Entergy Testimony at 59 (A75) (ENT000450) (citing NUREG/CR-6613, Vol. 1 at 4-3 (NYS000243)).

143 See id. at 61 (A77); Oct. 17, 2012 Tr. at 1951:9-10, 2070:7-10 (Teagarden).

144 Entergy Testimony at 52-53 (A71) (ENT000450). The now-decommissioned Zion plant is located just north of Chicago and had an emergency planning zone population density comparable to that of IPEC. Specifically, Zion had half of the total population but similar density to Indian Point due to its location on the shores of Lake Michigan. See Oct. 17, 2012 Tr. at 1968:19-21 (Jones); Oct. 18, 2012 Tr. at 2379:11-20 (Jones).

145 Entergy Testimony at 61 (A77) (ENT000450).

146 Oct. 17, 2012 Tr. at 1951:9-10 (Teagarden) (In NUREG-1150, those same values were applied at all five plants.); id. at 2070:7-10 (Teagarden) (But the values for NUREG-1150... applied to all five of the NUREG-1150 sites. So you know, it wasnt viewed as specific to a rural environment.).

147 NUREG/CR-3673, Economic Risks of Nuclear Power Reactor Accidents (Apr. 1984) (NUREG/CR-3673)

(ENT000466).

148 Oct. 18, 2012 Tr. at 2169:24-2170:9 (Teagarden); see also id. at 2142:2-9 (Teagarden).

developers minds, those values were sufficiently applicable to each of the sites.149 Mr.

Teagarden also stated that the CDNFRM value was intended to be a global value given that the NUREG-1150 study, like a SAMA analysis, examined regions encompassing approximately 7,800 square miles and multiple land uses.150 As such, there is no factual basis for New Yorks claim that the IPEC SAMA analysis relies on rural data developed exclusively for the Surry site.151

44.

New Yorks second major premise is that the IPEC SAMA analysis fails to adequately estimate decontamination costs for the hyper-dense population area of New York City,152 with its uniquely high building density, mostly consisting of high-rise buildings.153 Entergys and the Staffs experts explained why that is not the case. In short, the NUREG-1150 decontamination cost values are based upon levels of contamination and population rather than upon the region in which the contamination occurs.154 MACCS2 applies the nonfarm economic inputs, including the nonfarm decontamination cost (CDNFRM), on a per person basis.155 This approach inherently accounts for areas with high population densities and low population densities within the 50-mile IPEC SAMA analysis region.156 Significantly, Dr. Lemay did not advocate a 149 Id. at 2246:13-14 (Teagarden).

150 Id. at 2246:17-20 (Teagarden).

151 It also should be noted that rural data, in the form of farm property value and cost of farm decontamination, are specifically addresses by separate variables (VALWF and CDFRM, respectively) in MACCS2. See Entergy Testimony at 42 (A54, tbl. 2), 43 (A56), 49 (A66, tbl. 3), 49-50 (A67), 54 (A71, tbl. 4), 56-57 (A72)

(ENT000450).

152 New York Proposed Findings at 87 (¶ 232).

153 Id. at 52 (¶ 137).

154 February 2008 RAI Response, Attach. 1 at 38 (ENT000460).

155 See, e.g., NRC Staff Testimony at 41 (A35) (NRC00041); Entergy Testimony at 55-58 (A72) (ENT000450);

Oct. 17, 2012 Tr. at 1949:23-1950:8 (Teagarden).

156 See, e.g., Entergy Testimony at 58 (A72) (ENT000450).

different approach and, in fact, described the MACCS2 codes use of a per capita approach to calculating decontamination costs as a brilliant insight.157

45.

Accordingly, in MACCS2, the populations within the IPEC SAMA analysis region are multiplied by these per-person decontamination cost values, as appropriate, making the resulting decontamination cost estimate site-specific.158 For the IPEC SAMA analysis, Entergy developed a year 2035 population estimate based on census data and population projections that are specific to the IPEC SAMA analysis region.159 Therefore, the large population centers (including the New York City metropolitan area) are specifically accounted for in the SAMA analysis region.160 As Mr. Jones and Dr. Bixler stated, [b]y using a per-person basis, this approach takes into account the site-specific high population density of New York City and the correspondingly high density of buildings.161

46.

Furthermore, New Yorks almost exclusive focus on New York City and its hyper-dense population must be put into perspectivei.e., viewed within the context of SAMA analysis objectives and methodologies. A SAMA analysis is based on mean accident consequence values, averaged over many hypothetical severe accident scenarios that span a spectrum of potential initiating events, accident sequences, and severity of consequences.162 As discussed in the Staffs proposed findings, Dr. Bixler examined the extent of contamination for each of the 157 Oct. 18, 2012 Tr. at 2136:2-10 (Dr. Lemay).

158 See Oct. 17, 2012 Tr. at 1949:23-1950:8, 2040:8-14 (Teagarden); Entergy Testimony at 55-58 (A72)

(ENT000450).

159 Entergy Testimony at 48 (A65) (ENT000450); Oct. 18, 2012 Tr. at 2139:18-2140:15 (Teagarden).

160 NRC Staff Testimony at 69 (A61) (NRC00041); Oct. 17, 2012 Tr. at 1950:4-8 (Teagarden).

161 NRC Staff Testimony at 41 (A35) (NRC00041); see also id. at 69 (A61) (NRC00041). Dr. Lemay agreed that the application of decontamination costs on a per person basis, as is done in MACCS2, is a valid approach. Oct.

18, 2012 Tr. at 2136:2-10 (Dr. Lemay) (I think that whoever came up with the decontamination cost per person its a brilliant insight....).

162 Pilgrim, CLI-12-15, slip op. at 5, 11, 19, 28; see also Entergy Testimony at 18 (A31) (ENT000450); NRC Staff Testimony at 25-26 (A19) (NRC000041); Oct. 17, 2012 Tr. at 1927:16-24 (Teagarden).

source term groups used by Entergy in its SAMA analysis.163 His analysis showed that the vast majority of accidents result in relatively low contamination over small areas.164 It bears emphasis that the New York City area is between 24 and 40 miles from the IPEC site and, geographically speaking, accounts for only two to four percent of the 7,854 square-mile SAMA analysis region.165

47.

Further, accident consequences at a particular site will vary significantly depending upon weather patterns, and MACCS2 calculates potential offsite consequences over an extensive array of potential weather scenarios in a 50-mile radius around the plant.166 New York claims that

[a]t the hearing, Entergy agreed that for the area surrounding Indian Point, the wind blows predominantly from the north to the south.167 That is not accurate. Dr. OKula actually stated:

On average, the wind would be blowing north to south. But it can be balanced seasonally.168 Alluding to the IPEC site wind rose, he further stated that [i]t is bar-bell shape, and there is some, also some preference based on seasonality, of going in the opposite direction.169 This is consistent with the discussion of wind directions in the FSEIS.170 This fact, along with the time-and spatially-averaged nature of a SAMA analysis, must be kept in mind when considering New Yorks repeated references to New York City.171 163 See NRC Staff Proposed Findings at 25-26 (¶ 5.47) (citing NRC Staff Testimony at 90 (A81) (NRC000060)).

164 See id.

165 See Entergy Testimony at 128 (A160) (ENT000450).

166 See Oct. 18, 2012 Tr. at 2153:24-2155:3 (OKula).

167 New York Proposed Findings at 95 (¶ 255 n.54).

168 Oct. 18, 2012 Tr. at 2294:12-14 (OKula).

169 Id. at 2294:18-20 (OKula) (emphasis added).

170 See FSEIS, Vol. 1 at 2-28 (NYS00133A) (Wind velocities are moderate. The north-south Hudson River Valley has a marked effect on the lighter winds, and in the warm months, average wind direction is usually southerly.

For the most part, the winds at Buchanan have northerly and westerly components.).

171 See Oct. 17, 2012 Tr. at 1927:16-24 (Teagarden) (Its important to recognize that a SAMA analysis is a spatially average[d] and time averaged analysis [that] looks at a range, a spectrum, of postulated releases that

48.

In summary, there is no basis in the record for New Yorks claims that the IPEC SAMA analysis is not site-specific and fails to account for hyper-dense population in the New York City metropolitan area. The IPEC SAMA analysis made use of extensive site-specific inputs.172 In addition, by applying the selected nonfarm decontamination cost (CDNFRM) values on a per-person basis (within MACCS2), Entergy accounted for the region-specific population, including New York Citys population and its correspondingly higher building density.173 Entergys methodologies are consistent with NRC-approved guidance and Commission precedent.

They also are reasonable, especially in the context of a SAMA analysis, which is a probabilistic analysis that considers a multitude of clean-up scenarios over a sizable geographic region.174 G.

The NUREG-1150 Nonfarm Decontamination Cost Values Used As Inputs to the IPEC SAMA Analysis Have an Established Technical Basis and Are Rationally-Related to the IPEC Site

49.

New York claims that NUREG-1150 contains a gaping hole because the source of the decontamination cost values in NUREG-1150 (and, by association, the source of the decontamination cost parameters used in Sample Problem A) simply does not exist.175 It further asserts that the decontamination cost estimates in Sample Problem A are based upon a reference that was never published, nor peer-reviewed.176 According to New York, [r]eliance upon such data is unreasonable under NEPA, and undermines its fundamental goal of ensuring that could occur using meteorology, a whole year of meteorology, looking at different weather sequences and determining an average result from all of those.).

172 See Entergy Proposed Findings at 56 (¶ 113) (listing population distribution, meteorological data, land use data, and economic data as examples of site-specific data).

173 Id. at 67-68 (¶ 137).

174 See Oct. 18, 2012 Tr. at 2139:11-21 (Teagarden); NRC Staff Testimony at 90 (A81) (NRC000041).

175 New York Proposed Findings at 59 (¶ 158).

176 See id. at 3 (¶ 9); see also id. at 60 (¶ 161). As discussed below, New York itself relies on a document (Draft NUREG/CR-5148 (NYS00424A-BB)) that was never published in final form or peer-reviewed.

environmental values are fully considered in the agencys decision-making process.177 Citing CEQ regulations, New York also asserts than an EIS must contain high quality information and accurate scientific analysis.178

50.

By way of background, the NUREG-1150 CDNFRM values challenged by New York can be traced to NUREG/CR-3673 (also referred to as Burke).179 NUREG/CR-3673 states that it developed and employed improved models to estimate the economic risks from unanticipated events which occur during U.S. LWR operation.180 As part of this effort, the study estimated the offsite costs of post-accident population protective measures and public health impacts for severe LWR accidents that result in a release of radioactive material to the environment.181 Those costs included nonfarm area decontamination costs.182

51.

NUREG/CR-3673 states that [t]he cost estimates used in this study for various levels of decontamination effort in an area are taken from a detailed review of decontamination effectiveness and costs performed at Sandia National Laboratories (SNL).183 The detailed review apparently is documented in an unpublished report by Robert Ostmeyer and Gene Runkle 177 New York Proposed Findings at 118 (¶ 320).

178 Id. at 22-23 (¶ 74) (citing 40 C.F.R. § 1500.1(b); Lands Council v. Powell, 395 F.3d 1019, 1031-32 (9th Cir.

2005); Conservation Northwest v. Rey, 674 F. Supp. 2d 1232, 1249 (W.D. Wash. 2009); Ctr. for Biological Diversity v. U.S. Forest Serv., 349 F.3d 1157, 1167 (9th Cir. 2003)).

179 See Entergy Testimony at 57 (A72) (ENT000450) (citing NUREG/CR-3673 § 4 (ENT000466)). See also NUREG/CR-4691, MELCOR Accident Consequence Code System (MACCS) Model Description, Vol. 2 at 1-9, 4-1 (Feb. 1990) (NYS000288) (The economic effect models in MACCS are intended to estimate the offsite costs resulting from a reactor accident. The models used were assessed and selected by Burke [Bu84].... The following costs are treated in the economic models implemented in the MACCS code:... decontamination costs for property that can be returned to use if decontaminated.).

180 NUREG/CR-3673 at EX-1 (ENT000466).

181 NUREG/CR-3673 states that offsite costs associated with population evacuation and temporary relocation, agricultural product disposal, land and property decontamination, land interdiction, and public health impacts and medical care costs are included in the new economic consequence models. Id.

182 See NUREG/CR-3673 at 4-15 to 4-17 (ENT000466).

183 New York Rebuttal Testimony at 23:17-22 (NYS000420) (quoting NUREG/CR-3673 at 4-15 (ENT000466)).

See also Oct. 17, 2012 Tr. at 2005:2-24 (Lemay).

entitled An Assessment of Decontamination Costs and Effectiveness for Accident Radiological Releases (Ostmeyer report).184 Despite their best efforts, none of the parties or their experts could locate a copy of the report.185

52.

As discussed at length in Entergys proposed findings, the record evidence does not support New Yorks claims, particularly when they are evaluated under the rubric of NEPA. As Dr. Ghosh noted, the NUREG/CR-3673 authors presumably had access to the Ostmeyer report when they prepared NUREG/CR-3673.186 Moreover, NUREG/CR-3673 expressly states that Dr.

Robert Ostmeyer, co-author of the referenced report, provided technical assistance and advice during the preparation of NUREG/CR-3673.187 Therefore, it can be reasonably presumed that they reviewed the Ostmeyer reports contents in preparing NUREG/CR-3673.

53.

Contrary to New Yorks argument, the Ninth Circuit recently ruled that NEPA imposes no legal requirement that a methodology be peer-reviewed and published in a credible source.188 The Ostmeyer reports unavailability thus does not render reliance on the NUREG-1150 decontamination cost values altogether unreasonable under NEPA.189 Moreover, as discussed in Entergys proposed findings, NUREG/CR-3673 (which is a final, NRC-approved document) contains useful insights into the nonfarm decontamination cost estimates included in NUREG-1150 and used in the IPEC SAMA analysis (after being escalated to 2005 dollars). It 184 See NUREG/CR-3673 at 4-15, 8-8 (ENT000466).

185 Oct. 17, 2012 Tr. at 2005:16-17 (Lemay), 2009:24-2011:5 (Jones, Ghosh).

186 Oct. 17, 2012 Tr. at 2010:17-25 (Ghosh).

187 See NUREG/CR-3673 at xix (ENT000466).

188 Lands Council v. Martin, 529 F.3d 1219, 1226 (9th Cir. 2008) (We find no legal requirement that a methodology be peer-reviewed or published in a credible source. Plaintiffs cite 40 C.F.R. §§ 1500.1(b) and 1502.24, but those regulations contain no such requirements and do not even mention peer review or publication.).

189 Pilgrim, CLI-12-01, slip op. at 25.

indicates that Entergys CDNFRM values account for multiple land uses and decontamination methods, and that NUREG-1150s average values are reasonable for estimating decontamination costs for the very large and varied geographic region considered in a SAMA analysis.190

54.

Additionally, Dr. OKula and Mr. Teagarden testified that standard MACCS2 modeling for NRC assessments (including SAMA analysis) uses NUREG-1150 input values due to their well-established pedigree within the PRA community.191 On this point, Dr. OKula emphasized that NUREG-1150 was made available for public comment and subjected to multiple peer reviews that involved an unprecedented level of technical scrutiny.192

55.

Entergys experts further testified that there is no NRC-and industry-accepted alternative to the NUREG-1150 values, and that to their knowledge, all license renewal applicants have used these NUREG-1150 values (as escalated) in their SAMA analyses.193 Mr. Teagarden explicitly stated, to augment a point made by Dr. OKula, that we believe these values represent the best values that are available for a SAMA analysis. We know of no technically superior values to use for the MACCS code input for these [parameters].194 Dr. OKula and Mr. Teagarden also cited the NRCs use of the NUREG-1150 values in the recently-completed SOARCA project as further evidence of their continued applicability and suitability for use in SAMA analyses.195 190 See Oct. 17, 2012 Tr. at 2044:22-2045:10 (Harrison) (citing NUREG/CR-3673 at 4-17 (ENT000466)).

191 Entergy Testimony at 72 (A95) (ENT000450); Oct. 17, 2012 Tr. at 1951:21-1952:1 (Teagarden).

192 Oct. 18, 2012 Tr. at 2370:2-2372:9 (OKula); see also Entergy Testimony at 21-22 (A35), 55 (A72)

(ENT000450); NRC Staff Testimony at 46 (A39) (NRC000041); NUREG-1150, Vol. 1 at 1-2 (NYS000252A)

(summarizing the public comment and peer review processes for NUREG-1150).

193 Oct. 17, 2012 Tr. at 1951:13-16 (Teagarden).

194 Id. at 2040:2-5 (Teagarden); id. at 2043:24-2044:4 (Ms. Potts).

195 Entergy Testimony at 62 (A78) (ENT000450) (citing NUREG-1935, State-of-the-Art Reactor Consequence Analyses (SOARCA) Report, Draft Report for Public Comment, at 61, 63 (Jan. 2012) (Draft NUREG-1935)

(ENT000455)); Oct. 17, 2012 Tr. at 1951:17-21 (Teagarden). The final version of NUREG-1935 was published

56.

The Staffs expertsthree of whom were involved in the SOARCA projectalso testified that Entergys CDNFRM values, as derived from NUREG-1150, have a long history of use for exactly this kind of analysis (i.e., SAMA analysis) and continue to be used by the NRC in current state-of-the-art consequence assessments (like the SOARCA project).196 Thus, the Staffs experts viewed their use as inputs to the IPEC SAMA analysis as reasonable.197

57.

New York argues that [b]ecause the SOARCA project did not examine [the economic] costs associated with a severe accident, it was not a SAMA analysis.198 That is true.

However, the SOARCA project team explained that the MACCS2 decontamination parameters do affect decisions on whether contaminated areas can be restored to habitability and therefore affect predicted doses and risk of health effects.199 It further stated that [v]alues from NUREG-1150 provide the basis for decontamination parameters, which consist of two levels of decontamination, just as in NUREG-1150.200 Thus, the SOARCA project team still viewed the NUREG-1150 input values challenged by New York as reasonable for use in their assessment, which is likely to have much broader application than a license renewal SAMA analysis. For example, the SOARCA report states that it communicates the NRCs current understanding of severe-accident-related aspects of nuclear safety to stakeholders, including Federal, State, and in November 2012, after the hearing on NYS-12C was held. The final report does not reflect any significant substantive changes from the draft report. See NUREG-1935, State-of-the-Art Reactor Consequence Analyses (SOARCA) Report (Nov. 2012), available at ADAMS Accession Nos. ML12332A057 and ML12332A058.

196 Oct. 18, 2012 Tr. at 2158:13-2161:25 (Harrison); id. at 2251:13-24 (Jones) (stating that the exercise of reviewing the alternative input parameters has given [the Staff] a great degree of confidence that the original

[NUREG-1150] values are reasonable).

197 Id. at 2251:13-24 (Jones) 198 New York Proposed Findings at 72 (¶ 193).

199 Draft NUREG-1935 at 63 (ENT000455).

200 Id.

local authorities, licensees, and the general public.201 It also states that the SOARCA study will be a resource for future modeling improvements and verification efforts.202 Notably, the SOARCA report reflects an overall positive view of the NUREG-1150 study.203

58.

As stated above, Entergys and the Staffs experts further explained that because the CDNFRM values are applied on a per-person basis by MACCS2, they allow for site-specific decontamination cost estimates that account for high-population areas within the SAMA analysis region, including New York City. Accordingly, Entergys and the NRC Staffs reliance on the NUREG-1150 CDNFRM values (as escalated for time) is reasonable under NEPA standards.

59.

Thus, there is no record support for New Yorks claim that by accepting Entergys nonfarm decontamination values, the NRC Staff has failed to ensure that the FSEIS contains high-quality and accurate scientific information.204 To the contrary, the record does not show that there is any scientific or regulatory consensus supporting the use of values other than those based on NUREG-1150. Both Entergy and Staff experts experienced in the use of MACCS2 and the conduct of SAMA analyses testified that Entergys decontamination cost and time values are based on the highest quality and most accurate scientific information currently available (i.e.,

NUREG-1150 and other NRC-approved documents supporting its development) and are reasonable for use in a SAMA analysis.205 As the U.S. Supreme Court has stated, and the 201 Id. at xv.

202 Id. at 1.

203 See id. at 6-7 (The improved PRA methodology used in the NUREG-1150 study greatly enhanced the understanding of risk at NPPs and is considered a significantly updated and improved revision to the Reactor Safety Study.); id. at 33 (The insights from the NUREG-1150 study have been used in several areas of reactor regulation, including the development of alternative radiological source terms for evaluating design-basis accidents at nuclear reactors.).

204 See New York Proposed Findings at 117 (¶¶ 317-318).

205 Entergy Testimony at 13-16 (A26), 38 (A51), 52 (A70) (ENT000450); NRC Testimony at 46 (A39), 86 (A77),

89-90 (A81) (NRC000041).

Commission has echoed: When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts, even if a court may find contrary views more persuasive.206

60.

Finally, NEPA does not require federal agencies to resolve all uncertainties.207 And NEPA certainly does not require time-consuming or resource-intensive research programs or studiesof the type apparently contemplated by New Yorkto resolve uncertainties when impacts are small.208 As one court explained:

Detailed analysis is required only where impacts are likely. Where adverse impacts are not likely, expensive and time consuming studies are unnecessary. So long as the environmental impact statement identifies areas of uncertainty, the agency has fulfilled its mission under NEPA.209

61.

As discussed above, for nuclear power plant license renewal reviews, the NRC already has concluded that the probability-weighted consequences of severe accidents are small 206 Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989); see also Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 518 n.50 (2008); see also Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1359 (9th Cir. 1994) (citation omitted) (NEPA does not require that we decide whether an [EIS] is based on the best scientific methodology available, nor does NEPA require us to resolve disagreements among various scientists as to methodology.) (alternations in original omitted); City of Carmel-By-The-Sea v. U.S. Dept of Transp., 123 F.3d 1142, 1151 (9th Cir. 1997) (stating that NEPA does not require unanimity of opinion, expert or otherwise).

207 See Baltimore Gas, 462 U.S. 87, 102 (1983) (holding that the NRCs promulgation of Table S-3 did not violate NEPA and stating that the NRC had estimate[d] its impacts conservatively, based on the best available information and analysis); Sierra Club v. Lynn, 502 F.2d 43, 61 (5th Cir. 1974) (holding that the mere fact that certain factors in a cost-benefit analysis are generally imprecise or unquantifiable does not render the result inadequate).

208 For example, New York suggests that because the Entergy and the NRC have expended considerable effort to verify the source term and core damage frequency used in accident assessment as part of the Level-1 and Level-2 PRA processes, they must engage in a similar level of effort in determining appropriate decontamination cost inputs to MACCS2. See New York Proposed Findings at 121-22 (¶¶ 328-32). Also, New York suggests that the NRC can and should undertake a study similar to that undertaken by Tawil in Draft NUREG/CR-5148. See id. at 120 (¶ 325) (Thus, a site-specific analysis was not only required under NEPA and NRCs regulations, but eminently possible and had been completed in conjunction with Tawil 1990 (NUREG/CR-5148).)

209 Izaak Walton League of AM. v. Marsh, 655 F.2d 346, 377 (D.C. Cir.), cert. denied, 454 U.S. 1092 (1981)

(emphasis added).

for all plants.210 Additionally, as discussed in Entergys proposed findings, the IPEC SAMA analysis accounts for uncertainties through various means, including external events and uncertainty multipliers, sensitivity cases, and numerous conservative assumptions.211 Contrary to New Yorks claim, and as Dr. Ghosh explained, these aspects of the SAMA analysis add significant margin that can accommodate uncertainties, including those associated with the decontamination cost and time inputs to MACCS2-based portion of the SAMA analysis.212 Moreover, based upon her review of the IPEC SAMA analysis, including the specific SAMA candidates determined by Entergy to be potentially cost-beneficial, Dr. Ghosh stated her expert opinion that a number of those SAMA candidates essentially are redundant because they act on the same accident sequences.213

62.

New Yorks objections to Dr. Ghoshs testimony concerning the existing margin in the IPEC SAMA analysis as conclusory also are unfounded.214 Dr. Ghosh is well versed in PRA-type analyses, including those performed in support of license renewal SAMA analyses and the SOARCA project. At hearing, she provided a reasoned basis for her expert opinion that existing margin in the IPEC SAMA analysis can accommodate uncertainties of the type posited by New York. Specifically, Dr. Ghosh noted that the theoretical benefit of actually implementing all of the IP2 and IP3 SAMAs identified by Entergy as potentially cost-beneficial would exceed the maximum attainable benefit (i.e., eliminate the baseline risks of plant operation) for IP2 and 210 See supra at ¶ 37.

211 See Entergy Proposed Findings at 61-62 (¶ 124), 120-22 (¶¶ 237-40) (including testimony cited therein).

212 See Oct. 18, 2012 Tr. at 2235:5-10 (Ghosh) (Youre right that my fundamental point is that the ISR New York State analysis introduces some uncertainty and into particular elements of the benefit calculation. And I believe that the existing margin in the analysis can accommodate this uncertainty already.).

213 Id. at 2164:24-2165:1 (There are multiple SAMAs that are already identified to mitigate the same types of accidents.); id. at 2223:11-21 (Ghosh).

214 See New York Proposed Findings at 126-27 (¶¶ 343-346).

IP3, and, in the case of IP2, eliminate the baseline risks twice over.215 This reflects the fact that a SAMA analysis is done on a per SAMA candidate basis, and that many of the SAMA candidates are acting on the same accident sequences.216 Therefore, she explained, as the lower-cost alternatives for mitigating the dominant accident sequences are implemented, the baseline risk, as recalculated, is reduced.217 This reduces the likelihood that other SAMA candidates acting on the same accident sequences will remain, or become, potentially cost-beneficial.218 H.

Draft NUREG/CR-5148 (Tawil 1990) Is Not a Site-Specific Decontamination Cost Analysis for Indian Point

63.

Citing Draft NUREG/CR-5148 (which New York refers to as Tawil 1990),219 New York asserts that the results of that report disclose that NRC has actually conducted a site-specific analysis of the decontamination costs associated with a severe accident at Indian Point, without using NUREG-1150 values, and, therefore, without relying upon Sample Problem A.220 215 See Oct. 18, 2012 Tr. at 2163:10-2166:8 (Ghosh).

216 See id. at 2164:24-2165:1 (There are multiple SAMAs that are already identified to mitigate the same types of accidents.); id. at 2223:11-21 (Ghosh).

217 Id. at 2165:21-2166:2 (Ghosh).

218 Id. at 2224:22-2225:2 (Ghosh) ([W]e dont believe were going to come up with any more SAMAs that would be potentially cost beneficial and that they would be cheaper alternatives to mitigating the same types of accidents that were already looking at mitigating with the list that we have.); see also id. at 2235:19-2236:8 (Ghosh) ([I]ts hard to imagine that they would really become cost beneficial since there is already alternatives on the table to mitigate those same types of accident sequences.).

219 Tawil, J.J. & Bold, F.C., NUREG/CR-5148 (PNL-6350), Property-Related Costs of Radiological Accidents (Feb. 1990) (Draft NUREG/CR-5148) (NYS00424A-BB). There is no indication that the document was ever reviewed, approved, and published by the NRC as a final document. Unlike other NUREG series reports, including the contemporaneously-prepared NUREG-1150, Draft NUREG/CR-5148 contains no manuscript completion date or the publication date in the front matter of the report. The inclusion of those dates on final NUREG series reports is standard NRC practice. New York and Dr. Lemay acknowledged that Draft NUREG/CR-5148 was never published as a final document. See New York Proposed Findings at 3 (¶ 10).

220 New York Proposed Findings at 74 (¶ 202). New York also claims, based on an e-mail communication with Dr.

Tawil (one of Draft NUREG/CR-5148 authors), that that NRC Staff was concerned about the results of a site-specific study at Indian Point. Id. at 74 (¶ 200). Dr. Tawil stated in his e-mail that I think the NRC was a little shocked at the magnitude of the off-site consequences of an SST-5 at Indian Point and decided not to publish the report. Id. As Entergy noted in its Motion in Limine, Dr. Tawils statement is sheer speculation and unreliable as such. Furthermore, the history of the DECON code, the NRCs imputed motive for not publishing Draft NUREG/CR-5148, or any other statements made by Dr. Tawil are not relevant or material to the Boards finding

It further argues Entergys use of CDNFRM values derived from NUREG-1150 is unreasonable because a site-specific analysis of decontamination costs is eminently possible and had been completed in conjunction with Tawil 1990 (NUREG/CR-5148).221 New York also claims that the NRC Staff violated NEPA by not acknowledging or discussing this document in the FSEIS.222

64.

By way of background, Draft NUREG/CR-5148 purports to be an extensive revision to NUREG/CR-3413, Off-Site Consequences of Radiological Accidents: Methods, Costs and Schedules for Decontamination (Aug. 1985) (NYS000425), that was prompted by the April 1986 Chernobyl accident.223 Among other things, NUREG/CR-3413 describes a database and computer program called DECON developed by an NRC contractor for conducting a decontamination analysis of a large, radiologically contaminated area.224 Draft NUREG/CR-5148 sought to supplement the decontamination database with additional data, and to make certain augmentations to the DECON code methodology.225 Relevant here, Draft NUREG/CR-5148 purported to demonstrate the capabilities of the DECON code with a sequence of hypothetical accident scenarios at the Indian Point reactor site in New York State.226 as to whether the [SAMA] analysis that was done is reasonable under NEPA. Seabrook, CLI-12-05, slip op. at 28-29.

221 New York Proposed Findings at 120 (¶ 325).

222 See id. at 120 (¶ 327). New York accuses of Entergy and the Staff of ignoring Draft NUREG/CR-5148. As New York should know by now, Entergy and the Staff were unaware of the documents existence until New York disclosed it. There is no basis for New Yorks claim that Entergy or the NRC Staff should have been aware of the existence of Draft NUREG/CR-5148, much less have disclosed it or discussed it in the FSEIS.

223 Draft NUREG/CR-5148 at v (NYS00424A).

224 NUREG/CR-3413 at iii, 1 (NYS00425A).

225 See Draft NUREG/CR-5148 at v-viii (NYS00424A).

226 Id. at iii.

65.

The record evidence shows that none of New Yorks arguments related to Draft NUREG/CR-5148 has merit. As discussed at hearing, Draft NUREG/CR-5148 is not the site-specific analysis New York and Dr. Lemay claimed it to be. The draft report itself states:

The results that are reported should not be considered as representative of reactor accident consequences either for pressurized water reactors (PWR) in general or for the Indian Point reactors, since the plume direction was selected to maximize the offsite consequences in an area having a particularly high population density.227 There are numerous critical differences between Draft NUREG/CR-5148 and an NRC-compliant SAMA analysis like the one performed for IPEC license renewal. For example, these differences include the following:

• The source terms used in the IPEC case study in Draft NUREG/CR-5148 were generic source terms used in a 1982 Sandia reactor siting study.228 They are not plant-specific source terms based on a plant-specific PRA analysis, like the source terms used in the IPEC SAMA analysis.229

• Draft NUREG/CR-5148 applied six sets of constant weather (stability and wind speed) in the direction of the New York City metropolitan area to maximize consequences.230 The IPEC SAMA analysis evaluated 155 randomly-selected weather sequences from the calendar year 2000 (postulated to occur in each of the 16 principal compass sector directions and for the associated population distributions) for each source term, and weighted them by their probability of occurrence.231

• Draft NUREG/CR-5148 used the now-retired CRAC2 and DECON codes.232 The IPEC SAMA analysis used the MACCS2 code, the most current, established code for NRC SAMA analysis.233 227 Id. at 1.11 (NYS00424B) (emphasis added).

228 See Oct. 18, 2012 Tr. at 2258:21-24 (Teagarden).

229 See NRC Staff Testimony at 24 (A18) (NRC000041).

230 Draft NUREG/CR-5148 at 5.3 (NYS00424H); see also id. at 1.2 (NYS00424B) ([T]he plume direction was selected in all cases to maximize the property-related losses; hence, the case study does not provide representative results.).

231 Entergy Testimony at 32-33 (A47) (ENT000450).

232 Draft NUREG/CR-5148 at 5.1-.2 (NYS00424H).

233 Pilgrim, CLI-10-22, 72 NRC at 208.

• Draft NUREG/CR-5148 used the DECON Reference Database (scaled from early 1980s to 1986 reference year).234 The IPEC SAMA analysis decontamination effectiveness, time, and cost values derived from the 1990 NUREG-1150 study, as adjusted to 2005 dollars using the Consumer Price Index method.235

• The Indian Point region-specific data used in the Draft NUREG-5148/DECON Site Database are from the 1986 time frame. The IPEC SAMA analysis used contemporaneous population, land fraction, watershed class, regional economic data, agricultural data, and emergency response information.

66.

Thus, the analyses presented in Draft NUREG/CR-5148 (Tawil 1990) are not representative of the IPEC site and cannot be accurately characterized as site-specific.236 It is clear that this unpublished report does not meet the principal objective of a SAMA analysis. That objective is to estimate the mean annual offsite population dose and economic costs over the entire SAMA analysis region based on plant-specific information for the limited purpose of identifying

[potentially cost-beneficial] mitigation alternatives.237 Significantly, Dr. Lemay conceded this fact, stating that many of the parameters that are in [Draft NUREG/CR-5148] are wrong, and that Im not advocating this particular example as a NEPA-type and site-specific analysis for Indian Point.238 These statements by Dr. Lemay simply cannot be reconciled with New Yorks claim that the NRC Staffs alleged failure to disclose Draft NUREG/CR-5148 or to discuss it in the FSEIS violates NEPA.239 Furthermore, Dr. Lemay did not explain how this example 234 Draft NUREG/CR-5148 at 5.5-.9 (NYS00424H).

235 Entergy Testimony at 52-53 (A71) (ENT000450).

236 Mr. Teagarden described Draft NUREG/CR-5148 as a stylized assessment performed to demonstrate the functionality of a code (DECON) that, to his knowledge, is no longer available or operable. Oct. 18, 2012 Tr. at 2258:9-12 (Teagarden); see also Draft NUREG/CR-5148 at 1.11 (NYS00424B) (The purpose of this chapter is to illustrate the uses of DECON and the interpretation of its output.).

237 See Pilgrim, CLI-12-15, slip op. at 5, 15 (stating that a SAMA analysis is a site-specific mitigation analysis).

238 Oct. 18, 2012 Tr. at 2257:8-14 (Lemay) (emphasis added).

239 New York Proposed Findings at 120 (¶¶ 326-27).

study or the since-retired DECON code described therein could be used to develop a site-specific decontamination cost estimate that is suitable for use in MACCS2.240

67.

As stated in Entergys proposed findings, even assuming more detailed or localized decontamination cost estimates could be developed, there is no evidence that they would be better suited for use in a SAMA analysis.241 More fundamentally, because the evidence shows that the nonfarm decontamination cost values used by Entergy are reasonable for use in a SAMA analysis, such an undertaking is not required by NEPA. The case law is clear on this point:

That there may be a range of conceivable choices among inputs used in the SAMA analysis goes without saying, and many alternative inputs may be reasonable choicesreflecting reasonable predictionseven though some may be more conservative and others less so. A NEPA mitigation alternatives analysis need not reflect the most conservativeor worst caseanalysis. There always will be myriad alternate ways a NEPA analysis could have been done.242 NRC adjudicatory proceedings, in other words, are not EIS editing sessions.243

68.

The Commission has applied these principles in NRC adjudications involving SAMA contentions.244 In the Pilgrim proceeding, the Commission emphasized that [t]he question is not whether there are plainly better... models or whether the SAMA analysis can be refined further.245 The Commission reiterated that NEPA does not require agencies to use technologies and methodologies that are still emerging and under development, but that is 240 See Oct. 18, 2012 Tr. at 2299:2-5 (Teagarden) (What were talking about is what gets rolled up into the cost for non-farm decontamination, CDNFRM, and the associated dose reduction factor.); id. at 2303:18-21 (Lemay)

(MACCS2 has no way of specifying techniques or anything at that level of detail. It has only one aggregate value, the cost of decontamination per person.).

241 Entergy Proposed Findings at 81-82 (¶ 161).

242 Pilgrim, CLI-12-10, slip op. at 10.

243 Pilgrim, CLI-12-01, slip op. at 24 (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 431 (2003)).

244 Id.

245 Pilgrim, CLI-10-11, 71 NRC at 315-16.

exactly what New York is advocating here.246 It further noted that an EIS is not intended to be a research document, and that agencies must have some discretion to draw the line and move forward with decisionmaking.247 I.

Dr. Lemays Flawed Decontamination Cost Estimates Do Not Constitute Appropriate Benchmarks for the NUREG-1150 Values Used in the IPEC SAMA Analysis

69.

New York criticizes Entergy and the Staff for not benchmarking the NUREG-1150-based nonfarm decontamination cost values used as inputs to the IPEC SAMA analysis, and purports to have performed benchmarking of its own.248 Dr. Lemay defined benchmarking as establishing points of reference by comparing ones current practices with what others in the field are doing.249 He further stated that benchmarking provides for an important exchange of information amongst experts in the field, leading to the use of the best data and methodologies.250

70.

Under this definition, it is clear that Entergy and the NRC Staff have, in fact, benchmarked the NUREG-1150 values challenged by New York and shown that they are reasonable for use in a SAMA analysis. As discussed above, the NUREG-1150 values have long been used in severe accident consequence analysesincluding all SAMA analyses performed to date.251 The PRA community continues to view them as acceptable values.252 246 See also Pilgrim, CLI-12-15, slip op. at 31 (quoting Pilgrim, CLI-12-06, 75 NRC __, slip op. at 32) (NEPA, however, does not require that we wait until inchoate information matures into something that [possibly] might affect our review. It requires us to conduct our review with the best information now.); Pilgrim, CLI-10-11, 71 NRC at 315-16; Town of Winthrop v. FAA, 535 F.3d 1, 11-13 (1st Cir. 2008); see also Mass. v. NRC, 708 F.3d 63,76 (1st Cir. 2013) (holding that an agency may select its own methodology as long as it is reasonable).

247 Pilgrim, CLI-10-11, 71 NRC at 315 (quoting Town of Winthrop, 535 F.3d at 11).

248 See, e.g., New York Proposed Findings at 77 (¶ 207) (Neither Entergy nor NRC Staff performed any bounding or benchmarking to determine whether relying upon Sample Problem A was scientifically reasonable.).

249 New York Rebuttal Testimony at 7:9-11 (NYS000420).

250 Id. at 7:12-14.

251 See Oct. 17, 2012 Tr. at 1951:6-16 (Teagarden) (stating that the CDNFRM values used in the IPEC SAMA analysis for the two decontamination factors (DF = 3 and 15) are derived from NUREG-1150 and, to the knowledge of Entergys witnesses, have been used in all prior NRC license renewal SAMA analyses).

71.

Insofar as New York suggests that Entergy and the Staff are required to perform some type of quantitative comparison or world-wide benchmarking exercise,253 no such requirement exists under NEPA.254 Moreover, given the inapplicable information sources and incorrect assumptions underlying Dr. Lemays decontamination cost estimates (i.e., ISR Approaches A through D), those estimates cannot reasonably be regarded as reasonable and appropriate benchmarks.

72.

The term benchmarking connotes a comparison of alternative results or outcomes based on similar test conditions, field data, and/or experiments.255 For reasons explained by Entergys and Staffs experts, Dr. Lemays four cost estimating methodologies fail to meet this important criterion.256 In brief, the principal sources of information on which Dr. Lemay relied in developing his ISR Approach A and B decontamination cost estimates are inapplicable to nuclear power plant severe accidents. That is, they focus principally on cleanup and decontamination following (1) a plutonium dispersal event (e.g., detonation of a nuclear weapon) and (2) detonation of a radiological dispersion device, both of which differ in major respects from cleanup of fission products from a severe reactor accident.257 Indeed, Dr. Lemay himself described them as not 252 Entergy Testimony at 72 (A95) (ENT000450); Oct. 17, 2012 Tr. at 1951:21-1952:1 (Teagarden) (So Entergy used values that are per person values, have been well vetted in the PRA community, have been used consistently through time, used in the latest study [SOARCA] and then those values are applied to the population distribution.).

253 New York Proposed Findings at 77 (¶ 207).

254 See Pilgrim, CLI-12-06, slip op. at 20-21 (holding that the proposal of an alternate methodology is not sufficient to show a NEPA analysis is unreasonable).

255 New York Proposed Findings at 77 (¶ 207).

256 See generally Entergy Proposed Findings at 87-103 (¶ 172-201).

257 See Entergy Testimony at 25 (A40), 68-69 (A90) (ENT000450); NRC Staff Testimony at 13 (A6a), 77-78 (A69)

(NRC000041).

ideal.258 As Staff witness Mr. Jones explained, Dr. Lemays ISR Approach C and D decontamination cost estimates are unreliable because they fail to account for mass conservation principles, as applied in MACCS2, and the non-uniform nature of contamination within a building (among other deficiencies identified by Entergys and the Staffs experts).259

73.

With regard the last point (mass conservation), New York first asserts that [t]here is no evidence to suggest that Mr. Jones has experience running the MACCS2 code, developing MACCS2 inputs, or reviewing SAMA analyses.260 Mr. Jones never testified that he is a MACCS2 expert. Rather, he stated: I am testifying as an expert witness in the area of radiological decontamination. Specifically, I am addressing the cost estimating, decontamination techniques, and technologies for decontamination after a nuclear power plant accident.261 Mr.

Jones testimony is consistent with his self-described areas of expertise and focus. Insofar as he opined on the reasonableness of the MACCS2 methodology for estimating decontamination costs, he did so based on his review of relevant MACCS2 technical documentation, including NUREG/CR-6613 and NUREG/CR-4451.262 Additionally, insofar as Mr. Jones testified on errors and deficiencies in Dr. Lemays testimony and the ISR report, he did so based upon his review of the relevant supporting documentation submitted by New York.263 He also consistently explained the technical bases for his opinions and conclusions.264 258 Oct. 17, 2012 Tr. at 2012:11-13 (Lemay). Dr. Lemay also made unsupported technical assumptions that are integral to his cost estimates, including the assumption that cesium decontamination costs always equal or exceed plutonium decontamination costs. See Entergy Proposed Findings at 92-94 (¶¶ 180-83); NRC Staff Proposed Findings at 29-30 (¶ 5.53).

259 NRC Staff Testimony at 78 (A69), 83 (A74) (NRC000041).

260 New York Proposed Findings at 37 (¶ 106).

261 NRC Staff Testimony at 6 (A4.c) (NRC00041).

262 See id. at 9-11 (A5.c).

263 See id.

264 See id. at 40-48 (A35-A40), 51-52 (A46), 57-84 (A50-A75), 86-89 (A78-A79), 91-93 (A83) (NRC000041).

74.

For example, Mr. Jones explained that mass balance is important because MACCS2 calculates an amount of contamination per unit area as if the contamination is being deposited on a flat plane, such as a perfectly horizontal surface.265 He further explained that applying additional multipliers that effectively increase the base areas used in MACCS2without equally reducing the amount of contamination in this arearesults in artificially high decontamination cost estimates. Dr. Bixler, Dr. OKula, and Mr. Teagarden, all of whom are MACCS2 experts, fully agreed with Mr. Jones on these points.266 Mr. Jones also explained how he accounted for mass balance by redoing the CONDO-related calculation provided by Dr. Lemay in Annex C of the ISR Report for heavy decontamination (where the New York City metropolitan area is considered urban and the remainder of the region is considered semi-urban).267

75.

In any event, Dr. Lemay conceded that MACCS2 accounts for mass balance of contamination.268 Faced with this significant admission, counsel for New York seeks to rehabilitate Dr. Lemays testimony through a confusing and extraneous discussion of deposition velocity.269 The thrust of New Yorks argument is contained in the following statement:

265 Id. at 79-80 (A71); see also Oct. 18, 2012 Tr. at 2117:25-2118:12 (Jones).

266 See Oct. 18, 2012 Tr. at 2143:19-2145:2, 2147:8-12 (Bixler); id. at 2152:14-2156:15 (OKula); id. at 2167:19-2169:3 (Teagarden).

267 See NRC Staff Testimony at 8-832 (A73) (NRC000041).

268 Oct. 18, 2012 Tr. at 2176:24-2177:3 (Lemay). In its proposed findings, New York states: Mr. Jones argued that ISRs use of CONDO does not follow the rules of conservation of mass, and essentially decontaminates more radiation than is deposited on buildings. New York Proposed Findings at 96 (¶258). In reality, Mr. Jones explained that Dr. Lemays methodology assumes the decontamination of more cesium than is modeled by MACCS2 to be released and deposited based on the plant-specific source term inputs to the code, such that the principle of mass conservation is violated.

269 See New York Proposed Findings at 96-99 (¶¶ 258-263). In its proposed findings, New York states that Dr.

Lemay and ISR derived decontamination costs using CONDO, a software tool for estimating the consequences of decontamination options, and that Dr. Lemays testimony describe how ISR used CONDO to calculate CDNFRM values for the New York City Metropolitan Area. Id. at 90 (¶ 240), 91 (¶ 243). These statements are misleading because Dr. Lemay conceded that he did not actually run the CONDO computer code, but instead manipulated data contained in CONDO code documentation in self-generated spreadsheets. See Oct. 18, 2012 Tr. at 2376:14-20 (Lemay).

ISR was justified in using the CONDO methodology to estimate the decontamination costs of interior and exterior surfaces of buildings because decontamination of buildings is more complicated, and costlier, than decontamination of a field or residential dwellings; and furthermore, in reality there is more to decontaminate in an urban setting because the deposition velocity is greater and, thus, more contamination is deposited over urban areas.270

76.

New Yorks argument lacks technical and evidentiary support. In essence, New York argues that in an urban setting, a greater deposition velocity results in the deposition of more radiological contamination requiring cleanup.271 NYS misses the point of Mr. Jones critique, which is that there is only a finite amount of radioactive contamination present, and it cannot be deposited in equal quantities on all interior and exterior surfaces; to assume so violates conservation of mass principles.272

77.

Further, Dr. Lemays discussion of how decontamination of a building would likely occur is not real worldit is conjecture by a witness who has no demonstrated expertise in decontamination of radiologically-contaminated structures.273 Dr. Lemay assumed uniform distribution of contamination on the inside of a building, and that all surfaces would be decontaminated equally (i.e., in bulk).274 By using this assumption, and also selecting the highest labor-cost procedure for decontamination activities, Dr. Lemay subjectively and artificially inflated the estimated decontamination costs.275 However, for the reasons explained by Mr. Jones (who does have actual decontamination experience), there is no technical basis for assuming 270 New York Proposed Findings at 96-97 (¶ 259).

271 Id.at 97-98 (¶ 261).

272 See NRC Staff Testimony at 78 (A69) (NRC000041); Oct. 18, 2012 Tr. at 2116:20-2117:1, 2117:25-2118:12 (Jones).

273 New York Proposed Findings at 97 (¶ 260).

274 See NRC Staff Testimony at 79-81 (A71) (NRC000041); Entergy Testimony at 118-20 (A143-44)

(ENT000450).

275 See Entergy Testimony at 119-20 (A144) (ENT000450).

uniform distribution of contamination on either the interior or exterior surfaces of a building.276 He further explained that decontamination efforts would focus on the most contaminated surfaces (e.g., on the ground floor of a building and near ventilation systems, where contamination is more likely to enter the building) with the goal of restoring habitability.277

78.

With regard to deposition velocity, Dr. Bixler reviewed Entergys deposition velocity and surface roughness inputs to the MACCS2 code.278 Dr. Bixler testified that Entergys assumed deposition velocity (1 cm/s) is actually conservative because it produces more deposition and, therefore, requires more decontamination within the 50-mile SAMA analysis region than would be the case if Entergy had assumed a smaller deposition velocity (and thus smaller particle size).279

79.

In summary, given the demonstrated reasonableness of using the NUREG-1150 decontamination cost values (as escalated for time) as inputs to MACCS2, there is no need for Entergy or the Staff to undertake further benchmarking of those values (beyond the technical justification already provided by Entergys and the Staffs MACCS2 experts). Dr. Lemays proposed decontamination cost estimates, which are based on inapplicable data and technically unsupported assumptions, do not provide reasonable or valid points of comparison. Nothing in the New Yorks proposed findings can change this fact.

276 See NRC Staff Testimony at 83-84 (A74-75) (NRC000041).

277 See id. at 83 (A74).

278 See id. at 54-57 (A49).

279 Id. at 49 (A41), 50 (A43).

J.

The NUREG-1150 TIMDEC Values Used as Inputs to the IPEC SAMA Analysis Have an Established Technical Basis and Are Rationally Related to the IPEC Site

80.

With regard to Entergys decontamination time (TIMDEC) input to MACCS2, New York asserts that it is not reasonable for Entergy and NRC Staff to ignore real-world experience in favor of the Sample Problem A values of 60 days for light and 120 days for heavy decontamination following a severe accident.280 It further contends that the NUREG-1150 values create an unrealistic decontamination scenario, such that their use in the IPEC SAMA analysis is unjustified.281 New York states that Dr. Lemay reached this conclusion [b]y comparing Entergys inputs to two actual [reactor] severe accidentsFukushima and Chernobyl.282

81.

There is no doubt that the Chernobyl and Fukushima severe accidents resulted from truly unique circumstances.283 In arguing that decontamination times (actual or projected) associated with these two accidents are appropriate reference points, New York and Dr. Lemay again overlook the nature and purpose of a SAMA analysis. A SAMA analysis examines the mean annual consequences of numerous postulated accident scenarios, spanning a spectrum of potential initiating events, accident sequences, and severity of consequencesand for the entire 50-mile radius region surrounding a plant.284 It does not seek to exactly mimic a real-life scenario,285 model highly localized and variable decontamination activities, or provide detailed cleanup costs associated with a single, specific accident (e.g., Chernobyl or Fukushima).286 280 New York Proposed Findings at 103 (¶ 272).

281 Id.

282 Id. at 99 (¶ 264).

283 See NRC Staff Testimony at 91-93 (A83) (NRC000041) ([T]hese 2 accidents are very unique and are not appropriate comparison for postulated accident decontamination timelines at Indian Point.).

284 See Entergy Testimony at 18 (A31) (ENT000450); Pilgrim, CLI-12-15, slip op. at 5.

285 Oct. 18, 2012 Tr. at 2189:13-20 (Teagarden) (So theres this element of MACCS [that] looks at these strategies together in the time frames that are represented are not meant to exactly mimic or the order is not meant to

82.

Drawing from the substantial record evidence,Section IV.G of Entergys proposed findings explain why Entergys two decontamination factors (DF = 3 and DF = 15) and associated decontamination time values (60 and 120 days) are reasonable for a SAMA analysis performed to comply with NEPA. In brief, these values are consistent with the MACCS2 codes staged approach to decontamination and re-habitation of interdicted areas.287 They also are consistent with the NUREG-1150 values and have been applied in Level-3 type PRA analyses (including SAMA analyses and the SOARCA project) for many years.288 Further, the TIMDEC values used in the IPEC SAMA analysis were designed to be reflective of average values that take into account the entire spectrum of severe accident scenarios examined in a plants SAMA analysis. In the case of the IPEC SAMA analysis, the MACCS2 analysis reflects mean average offsite dose and economic consequences over an approximately 7,800 square mile region.289

83.

Thus, it is Dr. Lemays proposed TIMDEC values (one to fifteen years for light decontamination and two to thirty years for heavy decontamination) that create an unrealistic decontamination scenario when viewed within the framework of the MACCS2 code.290 Entergys and the Staffs proposed findings describe the detailed evidence supporting this conclusion.291 The fundamental point is that Dr. Lemays proposed decontamination time values exactly mimic a real-life scenario. Its meant to put these strategies together in a way that can computationally be addressed in a manner for - in a probabilistic manner where averages are in view.).

286 See NRC Staff Testimony at 90 (A81) (As with any modeling effort, it is likely that an actual decontamination effort would depart from the modeled inputs based on the extent of the accident, environmental conditions during the clean-up, and actual resources expended during the clean-up.).

287 See Entergy Testimony at 80-86 (A105-06) (ENT000450).

288 See Entergy Proposed Findings at 105-06 (¶ 207).

289 See NRC Staff Testimony at 89-90 (A81) (NRC000041); Oct. 17, 2012 Tr. at 1907:3-9 (Teagarden); Oct. 18, 2012 Tr. at 2359:20-2360:1 (Lemay).

290 See New York Proposed Findings at 103 (¶ 272).

291 See Entergy Proposed Findings at 110-113 (¶¶ 217-221); NRC Staff Proposed Findings at 30-36 (¶¶ 5.55-5.63).

are so inordinately large that they are inconsistent with the MACCS2 codes internal logic and outside the codes accepted input range.292 Indeed, only by making alterations to the MACCS2 source code could Dr. Lemay use values exceeding one year as inputs to the MACCS2 software.293 The Staff succinctly explained why Dr. Lemays TIMDEC values are untenable:

The MACCS2 code allows for values of TIMDEC to range between 0 days to 1 year. In order to input values outside of this range, Dr.

Lemay modified the MACCS2 code. This modification upsets the delicate balance between decontamination decisions, timing, and dislocation costs incurred by the displaced persons. This fundamentally causes the MACCS2 code to make inefficient and illogical decisions regarding decontamination. The costs for decontamination would be spread over a number of years but because MACCS2 was designed to incur all the decontamination costs in the first year it does not properly discount costs beyond the first year. Dr. Lemays fundamental change to the logical decision process of the MACCS2 code renders the results he generates unreasonable because he failed to account for all the consequences that directly flow from allowing out-of-range inputs.294 Importantly, the Commission has deemed such fundamental code alterations as far beyond NEPA requirements.295

84.

As the foregoing discussion suggests, and as Dr. Bixler and Mr. Teagarden explained, the TIMDEC and CDNFRM parameters are interrelated.296 The decontamination factor, cost, and time form a suite of variables that reflect how MACCS2 models 292 See Entergy Testimony at 77-80 (A102-03) (ENT000450); NRC Staff Testimony at 89-90 (A81) (NRC000041).

293 See Entergy Testimony at 73-75 (A98-A99) (ENT000450); Oct. 18, 2012 Tr. at 2199:25-2202:5, 2273:3-2274:4 (Bixler).

294 NRC Staff Proposed Findings at 30-31 (¶ 5.56) (internal citations to record omitted).

295 See Pilgrim, CLI-12-01, slip op. at 29 (rejecting an intervenors demand that the MACCS2 code be rewritten to contain an alternative atmospheric transport and dispersion plume model as far beyond NEPA requirements and explicitly noting that NEPA does not require the NRC [or its licensees] to engage in an extensive revision of the MACCS2 code).

296 See Oct. 18, 2012 Tr. at 2200:15-2201:5, 2209:6-20 (Bixler), 2227:8-16 (Teagarden) (CDNFRM and TIMDEC are related to one another.).

decontamination.297 Therefore, the code user should not arbitrarily alter one of these variables without evaluating the impact of the change on the other, related variables.298 Dr. Lemay did precisely that and, in the process, compromised the codes ability to make reasonable decisions regarding decontamination versus condemnation of affected properties.299 That is, the use of Dr.

Lemays out-of-range values inappropriately precludes MACCS2 from modeling the successful decontamination of properties and instead results in the condemnation of those properties.300 K.

Contrary to NEPAs Requirements, New York Proposes the Use of Certain Worst-Case Assumptions

85.

New York agrees that NEPA does not require analysis of worst-case scenarios.301 It also agrees that a SAMA analysis is a best-estimate analysis.302 Nevertheless, Dr. Lemay makes certain assumptions that can fairly be described as worst-case.303 For example, at the hearing, Dr.

Lemay initially denied that his calculations were biased towards the worst case,304 but then stated that of course, we spent more scrutiny on the worst case accidents, particularly in selecting decontamination time (TIMDEC) values.305 Dr. Lemays testimony on this point is inconsistent, but the following passage from his prefiled rebuttal testimony confirms his intent:

297 See id. at 2247:10-14 (Teagarden) (So [] the cost is linked to the time, which is linked to the dose reduction factor achieved.). In this regard, the DF, CDNFRM, and TIMDEC values used in NUREG-1150, the IPEC SAMA analysis, and the SOARCA study were, in fact, developed as a suite of parameters and designed to be consistent with the MACCS2 habitability decisionmaking model.

298 Id. at 2248:5-9 (Teagarden); see also id. at 2269:15-22 (Teagarden).

299 See NRC Staff Proposed Findings at 34 (¶ 5.61).

300 See Entergy Proposed Findings at 111-12 (¶ 218); NRC Staff Proposed Findings at 32-33 (¶ 5.59).

301 See New York Proposed Findings at 21 (¶ 71).

302 See id. at 54 (¶ 141) (Entergy and the State agree with a best estimate approach to developing MACCS2 input values.); Oct. 17, 2012 Tr. at 1937:2-3 (Teagarden), 1937:18-19 (Lemay).

303 See New York Proposed Findings at 104 (¶ 278).

304 Oct. 18, 2012 Tr. at 2179:17-20 (Lemay).

305 Id. at 2180:7-15 (Lemay).

The suggestion by NRC Staff that it is acceptable to average input parameters over all release categories is wrong.... If Entergy and NRC Staff insist on using a single value for the input parameters related to the cost of decontamination, it would be appropriate to use input parameters that more closely align with the more severe end of the release spectrum because the three most severe release categories make the largest contribution to the total OECR.306

86.

As Dr. OKula explained, a SAMA analysis considers a broad spectrum of release categories, including those that involve minimal or no failure of the containment (and thus lower accident source terms).307 It is not concerned only with the most severe release category; i.e., the Early High release category. In a similar vein, the Staffs experts testified that source term groups produce a wide variety of contamination levels over the modeled area.308 For IPEC, the more probable accident events result in minimal contamination over a small area (13 square miles at 6.4 x 10-7 incidents per year).309 Even the larger events are relatively smaller on a frequency-weighted basis.310 Thus, TIMDEC values need to be representative of accidents with Fukushima-like source terms, but also accidents with much smaller source terms, such as the Three Mile Island Unit 2 (TMI-2) partial core meltdown;311 i.e., it must represent all of the modeled 306 New York Rebuttal Testimony at 16:1-12 (NYS000420); see also Oct. 18, 2012 Tr. at 2196:21-24 (Lemay) (So I would argue that we cant average the time it takes to decontaminate a trivial or benign accident with the time it takes to decontaminate these more severe accidents.).

307 Oct. 18, 2012 Tr. at 2153:24-2155:3 (OKula) (So the basis of the SAMA analysis is to reflect on a spectrum of potential source terms, model each one randomly in terms of the meteorological conditions.... A minor, small portion of those may make it as far as the New York City metropolitan area. Many others would not.).

308 See NRC Staff Proposed Findings at 25-27 (¶ 5.47 & Tbl. 1), 35 (¶ 5.62).

309 See id. at 35 (¶ 5.62) (citing Fraction of Land Contaminated by Each Source Term Group (STG) at 21(Mar.

2012) (NRC000060)).

310 See id. (citing Fraction of Land Contaminated by Each Source Term Group (STG) at 6 (Mar. 2012)

(NRC000060)).

311 See Oct. 18, 2012 Tr. at 2182:17-2183:10 (Lemay) (responding to questions from Judge Wardwell regarding TMI-2. Unlike the Chernobyl and Fukushima accidents, the TMI-2 containment building remained intact and held almost all of the accidents radioactive material. The approximately 2 million people around TMI-2 during the accident are estimated to have received an average radiation dose of only about 1 millirem above the usual background dose, which is less than the exposure from a chest X-ray. See NRC Backgrounder, Three Mile

accidents.312 Dr. Lemays self-acknowledged focus on the more severe end of the release spectrum is inconsistent with the goals of a best-estimate SAMA analysis and established NEPA principles.313 L.

The NRC Staff Has Met Its Burden Under NEPA By Taking a Hard Look at Entergys SAMA Analysis

87.

In its proposed findings, New York repeatedly claims that the NRC Staff has not taken a hard look at Entergys SAMA analysis, as required by NEPA.314 But the record tells a different story.

88.

The First Circuit recently described how an agency meets the hard look requirement in a decision arising from the Pilgrim license renewal proceeding:

[T]he process and reasoning provided by the NRC demonstrates that the hard look requirement was plainly met: information proffered by [the petitioner] was considered before the ASLB and NRC, the agency obtained opinions from the NRC staff, and from experts outside the agency, including those of [the petitioner] and Entergy. The NRC also offered a reasoned explanation. This meets the requirement of taking a hard look at such information.315

89.

In the SAMA analysis context, the Commission has held that NEPA requires only that the NRC provide a reasonable mitigation alternatives analysis, containing reasonable Island Accident, available at http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/3mile-isle.html#summary.

312 See Oct. 18, 2012 Tr. at 2153:24-2155:3 (OKula); NRC Staff Testimony at 90 (A81) (NRC000041).

313 See Pilgrim, CLI-12-01, slip op. at 24 (rejecting intervenors argument that NEPA requires a cost-benefit mitigation analysis to be based on the 95th percentile accident consequence level, and stating that at NEPA does not require a worst case inquiry).

314 That NEPA requires a hard look at the environmental impacts of a major federal action, as well as alternatives to that action, is not in dispute. See, e.g., Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 514 (2008); McGuire, CLI-03-17, 58 NRC at 431.

315 Mass. v. NRC, slip op. at 30-31 (citing Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 288 (4th Cir. 1999) (obtaining opinions from agencys own experts, outside experts, giving scientific scrutiny, and offering responses to legitimate concerns as evidence of a sufficiently hard look); Marsh v. Or. Natural Res.

Council, 490 U.S. 360, 378-85 (1989)).

estimates, including, where appropriate, full disclosures of any information and significant uncertainties, and a reasoned evaluation of whether and to what extent these or other considerations credibly could or would alter the SAMA analysis conclusions on which SAMAs are cost-beneficial to implement.316

90.

These are precisely the actions taken by the NRC Staff in this proceeding, including the hearing on this contention. As documented in the Staffs FSEIS, hearing testimony, and proposed findings, the Staff has fully considered the information offered by the other parties and their experts as part of the LRA review and adjudicatory processes. The Staff has explained why Entergys SAMA analysis inputs are reasonable and acceptable, discussed both uncertainties and conservatisms associated with the SAMA analysis, directly responded to the criticisms raised by New York and its consultants, and provided a reasoned explanation as to why those criticisms do not credibly alter the SAMA analysis conclusions. NEPA requires no more.317

91.

New York, in contrast, has not met its burden under NEPA. Intervenors in NRC proceedings have the burden of going forward with sufficient evidence at hearing to support the claims made in their contention.318 NEPA contentions are no exception. As a leading treatise on NEPA law and litigation explains:

Because a consensus is usually lacking on the state of the art in environmental methodology, the courts have usually accepted the methodology used by an agency in analyzing environmental impacts.

They put the burden of proof on plaintiffs to prove that the methodology was unacceptable.319 316 See also McGuire, CLI-03-17, 58 NRC at 431 (holding that NRC meets its obligations under NEPA when, based upon the available technical information, the mitigation analysis outlines relevant factors, discloses opposing viewpoints, and indicates particular assumptions under which the Staff ultimately concludes that specific SAMAs are potentially cost-beneficial).

317 Id.

318 Oyster Creek, CLI-09-7, 69 NRC at 269.

319 Daniel R. Mandelker, NEPA Law and Litigation § 10.45 (1984 & 2012 Supp.).

The Commission also has applied this settled NEPA principle in the context of contentions challenging a SAMA analysis.320 Specifically, it has held that [t]he burden is on the proponent of a contention to show that the Staffs analysis or methodology is unreasonable or insufficient.321 For the reasons explained by Entergys and the Staffs experts, and summarized in those parties proposed findings, New York has not met its burden with respect to NYS-12C.

III.

CONCLUSION

92.

For the reasons stated above and in their proposed findings, the NRC Staff and Entergy have carried their respective burdens of proof and, based on the entire evidentiary record of this proceeding, the Staff has satisfied its NEPA obligations under 10 C.F.R. Part 51 with respect to NYS-12C. In summary, the preponderance of the evidence shows that the Staff has independently reviewed Entergys SAMA analysis, including Entergys economic inputs to the MACCS2 code. The preponderance of the evidence further shows that the Staff has provided a reasoned evaluation of whether and to what extent the issues raised in NYS-12C credibly could or would alter the Entergys SAMA analysis conclusions on which SAMAs are cost-beneficial to implement.322 The Staff is justified in finding that Entergys selected decontamination cost and time inputs to the IPEC SAMA analysis are reasonable in light of the purpose of the modeling performed, the scope of modeled accidents, and IPEC site-specific considerations. Therefore, the Board should resolve NYS-12C in favor of the NRC Staff and Entergy.

320 Of course, the quantum of evidence required to make this showing is different at the contention admissibility and evidentiary hearing stages of the proceeding.

321 Pilgrim, CLI-12-06, slip op. at 21 (Although Massachusetts suggested a different methodology for performing the SAMA analysis, it ultimately failed to show how the PRA methodology that is currently used is inadequate to satisfy NEPAs hard look requirement.); see also Pilgrim, CLI-10-11, 71 NRC at 315-16 (quoting Town of Winthrop, 535 F.3d at 13). (In short, NEPA allows agencies to select their own methodology as long as that methodology is reasonable.).

322 Pilgrim, CLI-10-22, 72 NRC at 208.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

William B. Glew, Jr., Esq.

Kathryn M. Sutton, Esq.

William C. Dennis, Esq.

Paul M. Bessette, Esq.

ENTERGY SERVICES, INC.

MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, DC 20004 Phone: (914) 272-3202 Phone: (202) 739-3000 Fax: (914) 272-3205 Fax:

(202) 739-3001 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com Martin J. ONeill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 3rd day of May 2013

DB1/ 74014152 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

Docket Nos. 50-247-LR and

)

50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.

)

)

(Indian Point Nuclear Generating Units 2 and 3)

)

)

May 3, 2013 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of Entergys Reply to New York States Proposed Findings of Fact and Conclusions of Law For Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis Decontamination Costs ) were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.

Signed (electronically) by Lance A. Escher Lance A. Escher, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5080 Fax: (202) 739-3001 E-mail: lescher@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.