ML090930204

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Answer of Entergy Nuclear Operations, Inc. Opposing New and Amended Environmental Contentions of New York State
ML090930204
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 03/24/2009
From: Bessette P
Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-241
Download: ML090930204 (73)
v • d • e


Text

RAE C__20 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. )

i Units 2 andP)

(Indian Point Nuclear Generating 3) )

March 24, 2009 ANSWER OF ENTERGY NUCLEAR OPERATIONS, INC. OPPOSING NEW AND AMENDED ENVIRONMENTAL CONTENTIONS OF NEW YORK STATE Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

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

Washington, DC 20004 Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com, E-mail: martin.o'neill@morganlewis.com William C. Dennis, Esq.

440 Hamilton Avenue White Plains, NY 10601

.Phone: (914) 272-3202 Fax: (914) 272-3205

.E-mail: wdennis@entergy.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

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TABLE OF CONTENTS Page

/

I. INTRODUCTION ................................................. 1 II. B A C K GR OU N D .................................................. ........................................................... 3 A. Overview of Admitted NYS Environmental Contentions ................. 3....

1. NYS 9' Energy Conservation Alternatives ..................... 3
2. NYS-12 and NYS Severe Accident Mitigation Alternatives ........... 5
3. NYS Impacts on Property Values ................................................. 5 B. Overview of the NRC Staff's Environmental Review Process and Issuance of the D SEIS .................................................................................................... 6 C. New York State's New and Amended Environmental Contentions ................. 7 III. LEGAL STANDARDS GOVERNING THE ADMISSIBILITY OF NEW AND AMENDED CONTENTIONS AND CONTENTION MOOTNESS .............. 8 A. Tim eliness Requirem ents ................................................................................... 8 B. Substantive Admissibility Requirements ...................................... 9 C. Potential Mooting of "Contentions of Omission" by Issuance of the DSEIS ...... 11 IV. THE NYS UPDATED AND NEW CONTENTIONS DO NOT MEET THE NRC'S CONTENTION TIMELINESS AND ADMISSIBILITY CRITERIA .......... ... 12 A. Contentions NYS-12A and NYS-16A Do Not Comply with 10 C.F.R. § 2.309(f)(2) and, Accordingly, Should Not Be Admitted or Otherwise Treated as Amended Contentions ................................ 12
1. Original Contentions NYS- 12 and NYS- 16 May Appropriately Be*

Treated as Admitted Challenges to the DSEIS Without Amendment or Re-Designation ............................ 13

2. The Allegations in NYS-16A That Entergy Cannot Meet Its Emergency Planning Obligations Under 10 C.F.R. § 50.47(b)(9),

and That the NRC Staff Cannot Meet Its "Concurrent Obligations Under NEPA" Are Inadm issible ........................... ;.................................. 14 B. Contention NYS 17-A Fails to Meet the Timeliness and Admissibility Requirements of 10 C.F.R. § 2.309 and Must be Dismissed ............................ 15

1. Overview of Contention and Supporting Bases ..................................... 15
2. Summary of Entergy's Opposition to NYS 17-A ................................ 16
3. Original Contention NYS-17 Is Moot and Must be Dismissed .......... 17 7...

TABLE OF CONTENTS (continued)

Page

4. NYS's New Argument Regarding Spent Fuel Storage Impacts Beyond the Period of Extended Operation Does Not Meet the Standards for New and Amended Contentions Set Forth in 10 C.F.R. § 2.309(f)(2) and (c) 19
5. Amended Contention NYS 17-A Does Not Meet the Admissibility Standards Set Forth in 10 C.F.R. § 2.309(f)(1) ........................................ 22
a. NYS 17-A Raises Issues That Are Outside the Scope of this Proceeding and That Are Not Material to the NRC Staff's Environmental Findings ............................ 22
b. NYS 17-A Lacks Adequate Factual or Expert Support and Fails to Establish a Genuine Dispute on a Material Issue of Law or Fact ..................................................................... . .. ....... 26 C. New Contention NYS-33 Fails to Meet the Timeliness and Admissibility Requirements of 10 C.F.R. § 2.309 and Must be Dismissed ... ..............i 30:
1. Overview of Contention and Supporting Bases ................. 30
2. Summary of Entergy's Opposition to NYS-33 ......................................... 31
3. Prior Findings and Rulings of this Board Relevant to NYS-33........... 33
4. Summary of Controlling NEPA Principles .............................................. 35
5. NYS-9 is Now Moot Because the DSEIS Addresses the Alleged Omission and, Accordingly, Must be Dismissed as a Matter of Law ..... 37
6. New Contention NYS-33 is Not Timely Under 10 C.F.R. § 2.309(f)(2) or Otherwise Admissible Under 10 C.F.R. § 2.309(c)(1)... ............................................ .......... .............................. 39
a. NYS-33 Does Not Meet the Criteria Set Forth in Section 2.309(f)(2) for a Timely New Environmental Contention ..... 39
b. NYS-33 Does Not Meet the Alternative Criteria Set Forth in Section 2.309(f)(2)(i)-(iii) for a Timely New Contention ....... 41
c. NYS-33 is Not Admissible as a Nontimely Contention Under The Criteria Set Forth in 10 C.F.R. § 2.309(c)(1)......... 45
7. New Contention NYS-33.Fails to Meet the Contention\,

Admissibility Criteria' Set Forth in 10 C.F.R. § 2.309(f)(1 .......... 45

a. NYS-33 Raises Issues That Are Outside the Scope of the NRC Staff's Environmental Review Under NEPA and 10 C.F.R. Part 51, Contrary to 10 C.F.R. § 2.309(f)(1)(iii) ...... 45

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TABLE OF CONTENTS (continued)

Page

b. NYS-33 Raises Issues That Are Not Material to the Findings That the Staff Is Required to Make Under NEPA and 10 C.F.R. Part 51, Contrary to 10 C.F.R. §

.2.309(f)(1)(iv) ................................... 47

c. NYS-33 Alleges Deficiencies in the DSEIS That Do Not Exist and Thus Lacks Adequate Factual Support, Contrary to 10 C.F.R. § 2.309(f)(1)(v) ............................................ 49
d. NYS-33 Does Not Establish a Genuine Dispute with the NRC Staff on an Issue of Law or Fact that is Material to the Staff's Environm ental Review ............................................. ..... 53 D. New Contention NYS-34 Fails to Meet the Timeliness and Admissibility Requirements of 10 C.F.R. § 2.3 09 and Must be Dismissed.................. 55 I1. New Contention NYS-34 Does Not Meet the Timeliness Standards Set Forth in 10 C.F.R. § 2.309(f)(2) and (c) .................... 57
2. New Contention NYS-34 Does Not Meet the Contention Admissibility Standards Set Forth in 10 C.F.R. § 2.309(f(1) ............ 59
a. NYS-34 Challenges the NRC's Generic Findings Codified in the Waste Confidence Rule, Contrary to 10 C.F.R. § 2.309(f)(1)(iii) and (iv) ............................. 59
b. NYS-34 Attempts to Litigate Subjects of the Ongoing Waste Confidence Rulemaking, Contrafy to 10 C.F.R. § 2.309(f)(1)(iii) ........................................................................... 62
c. NYS-34 Relies On Unsupported Assumptions, and Misinterpretations of the Current and Proposed Changes to the Waste Confidence Rule, Contrary to 10 C.F.R. § 2.309(f)(1)(v) ................................. ....................... ................ 63 V. C O N C LU SIO N ..... ..................................................... I................ ............................... 66

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Ddcket Nos. 50-247-LR and

, ) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

(Indian Point Nuclear Generating Units 2 and 3) )

_) March 24, 2009 ANSWER OF ENTERGY NUCLEAR OPERATIONS, INC. OPPOSING NEW AND AMENDED-ENVIRONMENTAL CONTENTIONS OF NEW YORK STATE

1. INTRODUCTION Pursuant to 10 C.F.R. § 2.3 09(h)(1), Entergy Nuclear Operations, Inc. ("Entergy"), applicant in the captioned proceeding, submits this Answer to the new and amended contentions filed by New York State ("NYS" or "the State") on February 27, 2009.1 The contentions allege inadequacies in the NRC Staffs December 2008 Draft Supplemental Environmental Impact Statement ("DSEIS") for the proposed renewal of the Indian Point Energy Center Unit 2 and Unit 3 ("IPEC" or "IP2" and "IP3") operating licenses. 2 Specifically, NYS seeks the admission of Amended Cont'entions NYS-12A and 16-A (concerning the adequacy of the IPEC severe accident mitigation alternative, or SAMA, analyses), Amended Contention NYS- 17-A (concerning impacts of license renewal on
  • offsite property values), New Contention NYS-33 (concerning consideration of energy conservation and energy sources under the "no-action" alternative), and New Contention NYS-34 (concerning impacts of long-term spent fuel storage' on off-site land use and land values).

As shown below, NYS's proposed new and amended contentions must be denied in their entirety because they do not meet theNRC's late-filed contention requirements set forth in State of New York Contentions Concerning NRC Staff's Draft Supplemental Environmental Impact Statement (Feb.

27, 2009) ("NYS DSEIS Contentions").

2 NUREG- 1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supp. 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Vol. 1, Main Report (Dec. 2008).

10 C.F.R. §§ 2.309(c) and (f)(2), or the contention admissibility requirements codified in 10 C.F.R.

§ 2.309(f)(1). NYS has not demonstrated that any of its proposed new and amended contentions are based on "data or conclusions" in the NRC Staff s DSEIS that "differ significantly" from those contained in Entergy's April 2007 Environmental Report ("ER"). 3 Nor has NYS shown that the alleged "new" information upon which it relies as support for its contentions is materially different from information previously available to it.4 Indeed, NYS's late-filed environmental contentions are mostly resubmissions of prior NYS contentions, embellished with some new inadmissible issues.

Additionally, Amended Contention NYS-17-A and New Contentions NYS-33 and NYS-34 raise issues that are beyond the scope of this proceeding and not material to the Staff s 10 C.F.R. Part 51 findings, fail to provide adequate factual or legal support for alleged deficiencies in the DSEIS, and fail to establish a genuine material dispute relative to the Staff s National Environmental Policy Act ("NEPA") analysis. In numerous instances, NYS challenges NRC rules or rulemaking, in contravention of 10 C.F.R. § 2.335(a), and overlooks controlling NRC precedent. Accordingly, these contentions also must be rejected for failing to meet the admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1)(iii)-(vi).

Finally, in accordance with established Commission procedure, the Board should dismiss Contentions NYS-9 and NYS-17 (which it admitted as "contentions of omission") as moot.

Specifically, where a contention alleges the omission of particular information or an issue from an application, and the omission is later cured by the NRC Staff in its draft environmental impact statement ("EIS"), the contention is moot. 5 As discussed below, the NRC Staffs DSEIS explicitly addresses the omissions alleged in NYS-9 and NYS- 17, thereby rendering them moot. Furthermore, 3 See 10 C.F.R. § 2.309(f)(2).

4 See id. § 2.309(f)(2)(i)-(iii).

5 Mootness principles are discussed in greater detail in Section lI.C, infra.

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NYS has failed to timely file an admissible new or amended contentionthat raises specific challenges to the new or "omission-curing" information in the DSEIS.

II. BACKGROUND A. Overview of Admitted NYS Environmental Contentions On April 23, 2007, Entergysubmitted its license renewal application ("LRA") for JP2 and IP3 in accordance with 10 C.F.R. Parts 51 and 54. On November 30, 2007, NYS filed a petition to intervene in this proceeding. 6 On July 31, 2008, the Atomic Safety and Licensing Board ("Board")

granted, in part, NYS's petition to intervene, admitting for hearing certain NYS safety and environmental contentions] Specifically, the Board admitted four NYS environmental contentions:

NYS-9, NYS-12, NYS-16, and NYS-17. Each is briefly summarized below.

1. NYS 9 - Energy Conservation Alternatives In NYS-9, NYS alleges that Entergy's ER is deficient because it fails to include consideration of energy conservation in its analysis of alternativesthat are able to replace IPEC's full base-load generation capacity of approximately 2,158 gross MWe and that, at a minimum, the ER should analyze energy conservation as part of the "no-action" alternative. 8 The Board admitted NYS-9 as a "narrow" contention of omission, finding that it raised a material dispute only regarding the need for the ER to analyze the potential environmental impact of energy conservation that may result from the no-action alternative. 9 The Board denied admission of NYS-9, however, insofar as it 6 See New York State Notice of Intention to Participate and Petition to Intervene (Nov. 30, 2007) ("NYS Petition").

7 See Entergy Nuclear OperationsInc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, slip op. at 225-26 (July 31, 2008) ("Board*Order").

8 NYS Petition at 106-08; Board Order, slip op. at 46.

9 Board Order, slip op. at 49, 51.

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alleges that Entergy's overall energy alternatives analysis (for the defined goal of producing 2,158 10 MWe of base-load power generation) is deficient because it ignores energy conservation.

As discussed further below, in Section IV.C.3, the Board also denied admission of related contentions NYS-10 and NYS-I 1. NYS-10 alleged that Entergy's ER failed tocomply with 10 C.F.R. § 51.53(c)(3)(iii) and Section 8.1 of NUREG-1437, the NRC's 1996 Generic Environmental Impact Statement ("GELS") for reactor license renewal, by eliminating detailed analysis of certain energy alternatives discussed in the GEIS (other than natural gas or coal plants)

  • becausethose alternatives cannot generate a baseload supply of 2,158 MWe of electricity.'1 NYS- 1I alleged that the ER is deficient because it does not consider the extent to which IPEC license renewal may diminish the incentive to utilize energy conservation and renewable energy resources..12 In rejecting that portion of NYS-9 relating to Entergy's overall energy alternatives analysis; as well as NYS- 0 and NYS- 11, the Board held that, consistent with NRC precedent and Section 8.1 of the GELS, "this Board considers the reasonable alternatives for license renewal proceedings to be
limited to discrete electric generation sources that are feasible technically and available commercially."'13 The Board further noted "that there is no legal requirement (nor has NYS proffered any) for the Applicant to analyze in detail options that are not discrete, feasible sources for 2,158 MWe of base-load energy."' 4 The Board concluded that NYS-10 and NYS-1 1 raised issues outside the scope of the proceeding and constituted "a direct attack on NRC regulations."' 5 o0 Id. at49-51.

NYS Petitionat 120-21; Board Order slip op. at 52.

12 NYS Petition at 138-39, Board Order, slip op. at 56-57, 59.

13 Board Order, slip op. at 54; see also id. at 51, 59 (it is reasonable to exclude from consideration those options that are not commercially available or technically feasible).

', Id. at 54 (emphasis added).

15 Id. at 54; see also id. at 60 ("direct challenge to.the regulations").

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2. NYS-12 and NYS Severe Accident Mitigation Alternatives NYS-12 asserts that the cost formula used in the MELCOR Accident Consequences Code System ("MACCS2") computer program used by Entergy in its SAMA analyses underestimates the costs of a hypothetical severe accident because it uses inappropriate decontamination and clean-up cost data.' 6 NYS- 16 challenges another aspect of the MACCS2 code, specifically whether the ATMOS module of the MACCS2 code. accurately predicts the geographic dispersion of radionuclides released during a severe accident.17 NYS-16 also challenges the population projections used by Entergy in its SAMA analyses.' 8 The Board admitted NYS-12 and NYS-16 as raising discrete questions of material fact related to Entergy's SAMA analyses for IPEC.' 9
3. NYS Impacts on Property Values In NYS- 17, NYS alleges that Entergy's ER does not consider the positive impact on land-use and land values from the denial of the LRA, because the adjacent lands would purportedly experience economic recovery upon the availability of the IPEC site for unrestricted use by 2025.20 The Board admitted NYS- 17 as a "contention of omission," stating that "[i]n conducting its analysis of the impact of license renewal on land-use, Entergy should have considered the impact on real estate values that would be caused by license renewal or non-renewal.' In so ruling, the Board

,concluded that 10 C.F.R. Part 51 does not limit consideration of significant changes in land use to 22 tax-driven land-use changes.

16 NYS Petition at 140-42; Board Order, slip op. at 61.

17 NYS Petition at 163-66; Board Order, slip op. at 75-76.

18 NYS Petition at 164 n;37; Board Order, slip op. at 76.

'9 Board Order, slip op. at 64-65, 78-79.

20 NYS Petition at 169; Board Order, slip op. at 79-80.

21 Board Order, slip op. at 83.

22 Id. Specifically, 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 ("Table B-I) indicates that "Socioeconomics, Offsite land use (license renewal term)" is a Category 2 issue. On that issue, Table B-I contains the following Commission finding- "SMALL, MODERATE, OR LARGE. Significant changes in land use may be associated with population and tax revenue changes resulting from license renewal."

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B. Overview of the NRC Staff's Environmental Review Process and Issuance of the DSEIS The NRC Staff s environmental review of the IPEC Unit 2 and Unit 3 LRA is governed by 10 C.F.R. Part 51. In accordance with these governing regulations, the NRC Staff began the environmental review process on August 10, 2007, by publishing a Notice of Intent to prepare an EIS and conduct scoping. 2 3 In this regard, the NRC held two public scoping meetings in September 2007. The Staff used the scoping process to define the proposed action, to determine the scope of the DSEIS, and to identify the significant issues to be analyzed in depth.2 4 The Staff considered the public comments received during the scoping process in preparing its DSEIS, as reflected in the Scoping Summary Report.25 The NRC Staff also conducted contemporaneous IPEC site audits. 26 During the audits, the Staff reviewed the IPEC ER and compared it to the GEIS, consulted with other-agencies, and conducted an independent review of the in-scope environmental issues in accordance with applicable NRC guidance.2 7 The Staff issued the DSEIS in December 2008. The NRC held public meetings near the IPEC site in February of 2009, to present the results of the NRC environmental review and DSEIS, answer questions from the public, and receive comments on the DSEIS.2 8 As required by NEPA and 10 C.F.R. Part 5 1, the Staff will consider all comments on the DSEIS received as of the March 18, 2009, deadline, and address those comments in the Final SEIS for IP2 and IP3. 29 23 Notice of Intent To Prepare an Environmental Impact Statement and Conduct Scoping Process, 72 Fed. Reg. 45,075 (Aug. 10, 2007); see also DSEIS at 9-1.

24 See Environmental Impact.Statement Scoping Process, Summary Report Indian Point Nuclear Generating Station

  • Unit Nos. 2 and 3, Village of Buchanan, New York (Dec. 2008) ("Scoping Summary Report").

25 See id.

26 DSEIS at 9-1 27 Id. See also NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supplement 1: Operating License Renewal" (Oct.. 1999).

28 NRC Press Release. No. 1-09-008, NRC Staff to Seek Comments on Draft EnvironmentalReportfor Indian Point License Renewal Application at Feb. 12th Meetings (Feb. 9, 2009); see also DSEIS at 9-2.

29

.9NRC Press Release No. 1-09-008; see also DSEIS at 9-2; 10 C.F.R. § 51 .91..

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As discussed below, in its new and amended contentions, NYS accuses the NRC Staff of failing.to consider or "ignoring" information presented by NYS in scoping comments and previous filings in this proceeding.3 ° It warrants emphasis that, as described above, the NRC Staff`s environmental review is still in progress and will culminate in the issuance of a final SEIS that takes into account additional information, including public comments on the DSEIS. Accordingly, to date, the NRC Staff has fully met its procedural obligations set forth in 10 C.F.R. Part 51.

C. New York State's New and Amended Environmental Contentions As explained in Section III, infra, NRC regulations permit the filing of new or amended contentions based on the Staff's DSEIS, subject to the specific timeliness and contention ad missibility requirements discussed herein. By Order dated February 4, 2009, the Board extended the deadline for filing new or amended contentions based on the DSEIS until February 27, 2009.3' NYS filed the instant new and amended contentions on February 27, 2009.

Therein, NYS purports to submit two types of contentions: (1) contentions which "update" previously submitted contentions; i.e., NYS- 12A (SAMA analyses); NYS- 16A (SAMA analyses),

and NYS 17-A (land values); and (2) "new" contentions; i.e., NYS-33 (energy conservation and alternatives) and NYS-34 (impact of long-term spent fuel storage on land values). With respect to the first category, NYS states that, while "NRC regulations may not require the State to submit this category of contentions, the State presents them now out of an abundance of caution."32 With respect to the second category, NYS purports to identify omissions and/or inadequacies in the DSEIS, as discussed further below.

30 See NYS Petition at 20, 21-22, 26, 32-34.

31 Memorandum and Order (Summarizing Pre-Hearing Conference) at 2-3 (Feb. 4, 2009) (unpublished) ("Pre-Hearing Conference Order").

32 NYS DSEIS Contentions at 1.

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III. LEGAL STANDARDS GOVERNING THE ADMISSIBILITY OF NEW AND AMENDED CONTENTIONS AND CONTENTION MOOTNESS A. Timeliness Requirements Under 10 C.F.R. § 2.309(f)(2), an intervenor "may amend" environmental contentions or file new contentions "if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents." 33 Otherwise, in the absence of such circumstances, an intervenor may file amended or new contentions "only with leave of the presiding officer" upon a showing that all three of the following criteria are met:

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materiallydifferent than informationpreviously available; and (iii) The amended or new contention has been submitted in a timely 34 fashion based on the availability of the subsequent information.

Thus, new contentions will be admitted only "provided that [the information] is truly new and materially different and provided that the Petitioner acts promptly."' 35 In the Commission's words, a new or amended NEPA contention "is not an occasion to raise additional arguments that could have been raised previously," 36 Consistent with these principles, this Board directly and succinctly informed the parties in this proceeding that "any new contentions may only deal with new 33 10 C.F.R. § 2.309(0(2) (emphasis added).

I34

d. § 2.309(f)(2)(i)-(iii) (emphasis added).

35 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), LBP-06-14, 63 NRC 568, 573, 579 (2006)

(rejecting petitioner's attempt to "stretch the timeliness clock" because its new contentions were based on information that was previously available and petitioners failed to identify precisely what information was "new" and "different").

36 Duke Energy Corp. (McGuire Nuclear Station, Units I & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 382-83). As the D.C. Circuit put it, it is "unreasonable to suggest that the NRC must disregard its procedural timetable every time a party realizes based on NRC environmental studies that maybe there was something after all to a challenge it either originally opted not to make or which simply did not occur to it at the outset." Union of ConcernedScientists v. NRC, 920 F.2d 50, 55 (D.C. Cir. 1990).

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environmentalissues raised by the Draft SEIS," and that it "will not entertain contentions based on 37 environmental issues that could have been raisedwhen the original contentions were filed.",

If an intervenor cannot satisfy the requirements of 10 C.F.R. § 2.309(f)(2), then a contention is considered "nontimely," and the intervenor must demonstrate that it satisfies the eight-factor balancing test in 10 C.F.R. § 2.309(c)(i)(i)-(viii).3 8 The first factor identified in that regulation, whether "good cause" exists for the failure to file on time, is entitled to the most weight.3 9 Without 40 good cause, a "petitioner's demonstration on the other factors must be particularly strong."

B. Substantive Admissibility Requirements In addition to the late-filing criteria identified above, any proposed new or amended contentions must meet the substantive admissibility criteria set forth in 10 C.F.R. § 2.309(0(1).

Failure to comply with any one of the six admissibility criteria is grounds for the dismissal of a.

4 proposed new or amended contention. 1 Entergy's Answer to NYS's original proposed contentions contains an extensive discussion of the NRC's contention admissibility standards and we do not repeat those standards here.4 2 In brief, however, the Commission's contention admissibility rule at 10 C.F.R. § 2.309(f)(1) is "strict by 37 Pre-Hearing Conference Order at 3 (emphasis added).

31 See 10 C.F.R. § 2.309(cX2) ("The requestor/petitioner shall address the factors in paragraphs (c)(1)(i) through (cX1)(viii) of this section in its nontimely filing.") (emphasis added). These factors include: "(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means Whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record."

Id. § 2.309(c)(1).

39 See State of New Jersey (Dept. of Law and Pub. Safety's Requests Dated Oct. 8, 1993), CLI-93-25, 38 NRC 289, 296 (1993).

40 Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 73 (1992) (quoting Duke Power Co. (Perkins Nuclear Station, Units 1, 2, & 3), ALAB-431, 6 NRC 460, 462 (1977)).

41 See Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004) (final rule); see also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

42 See Answer of Entergy Nuclear Operations, Inc. Opposing New York State's Request for Hearing and Petition to Intervene at 9-28 (Jan. 22, 2008).

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design,"4 3 because its purpose is to "focus litigation on concrete issues and result in a clearer and more focused record: for decision."' The Commission has stated that it "should not,have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. 5 When a contention raises issues that are beyond the scope of the proceeding, or which are not material to the findings that the NRC must make to support the subject licensing action, no hearing is warranted.4 6 Additionally, a petitioner may not use an adjudicatory proceeding to attack generic rules or regulations. 47 Thus, "a licensing proceeding... is plainly not the proper forum for an attack on applicable statutory requirements or for challenges to the basic structure of the Commission's regulatory process." 48 A contention that collaterally attacks an NRC rule or regulation is not appropriate for litigation and must be rejected.49 Similarly, licensing boards "should not accept in.

individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission."50 43 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001), recons. denied, CLI-02-1, 55 NRC 1 (2002).

44 Changes to Adjudicatory Process, 69 Fed. Reg. at 2202.

45 Id.

46 See 10 C.F.R. § 2.309(f)(1)(iii),(iv), (vi).

47 10 C.F.R. § 2.335(a); Duke Energy Corp. (Oconee Nuclear Stations, Units 1, 2, & 3), CLI-99-11,49 NRC 328, 334 S(1999).

48 Phila. Elec. Co. (Peach Bottom Atomic Power Station, Units 2 &3), ALAB-216,8 AEC 13, 20, affd in parton other

.grounds, CLI-74-32, 8 AEC 217 (1974) (footnote omitted); see also CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant), LBP-07-11, 65 NRC 41,57-58 (2007) (citing PeachBottom, ALAB-216, 8 AEC at 20).

49 See, e.g., PotomacElec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 89 (1974); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 218 (2003).

50 Oconee, CLI-99-11, 49 NRC at 345 (quoting Douglas Point,ALAB-218, 8 AEC at 85).

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C. Potential Mooting of "Contentions of Omission" by Issuance of the DSEIS As noted above, in admitting NYS-9 and NYS-17 as challenges to Entergy's ER, the Board explicitly stated that those contentions are contentions of "omission.",51 As the Commission has explained, there is "a difference between contentions that merely allege an 'omission' of information and those that challenge substantively and specifically how particular information has been discussed in a license application.",52 Moreover, a contention of omission may be rendered moot if the alleged missing information is supplied by the applicant or later addressed by the Staff:

While a contention contesting an applicant's environmental report generally may be viewed as a challenge to the NRC Staff's subsequent draft EIS, new claims must be raised in a new or amended contention. Accordingly, where a contention is "superseded by the subsequent issuance of licensing-related documents"-whether a draft EIS or an applicant's response to a request for additional information-the, contention must be disposed of or modified.5 3 Thus, "where a contention alleges the omission of particular information or an issue from an application, and the information is later supplied by the applicant or considered by the Staff in a draft EIS, the contention is moot." 54 In such a case, "[an intervenor] must timely file a new or amended contention that addresses the factors in [10 C.F.R. 2.309(f)] in order to raise specific challenges regarding the new information." 55 "Otherwise, absent any new pleading, the other parties would be left to speculate whether the concerns first expressed had been satisfied by the new information."56

.51 IBoard Order, slip op. at 49, 83.

52 McGuire, CLI-02-28, 56 NRC at 382-83.

IId. at 382 (citation omitted) (emphasis added). The Commission explained the rationale for the "mootness" doctrine as follows: "If we did not require an amended or new contention in "omission" situations, an original contention alleging simply a failure to address a subject could readily be transformed-without basis or support-into a broad series of disparate new claims. This approach effectively would circumvent NRC contention-pleading standards and defeat the contention rule's purposes ..... " Id. at 3831 54 id.

56 Id.at 383.

56PrivateFuel Storage,L.L.C. (Independent Spent Fuel Storage Installation), LBP-02-2, 55 NRC 20, 30 (2002).

11

Accordingly, under these circumstances, an intervenor has an affirmative burden to come forward with a timely and admissible new br amended contention. 57 Otherwise, the mooted contention is subject to dismissal by the Board. As the Commission explained:

In such cases in which an earlier contention based upon an applicant's environmental report is rendered moot by the NRC's environmental impact statement, resolution of the mooted contention requires no more than a finding by the presiding officer that thie matter has become moot. While this might be accomplished through a motion for summary disposition, it also may be accomplished 58 as part of the contention admissionphase of the proceeding.

.In the Commission's view, this avoids "unnecessary additional work for the parties and unnecessary 59 delay-both of which the Commission has continuously encouraged licensing boards to avoid."

IV. THE NYS UPDATED AND NEW CONTENTIONS DO NOT MEET THE NRC'S CONTENTION TIMELINESS AND ADMISSIBILITY CRITERIA A. Contentions NYS-12A and NYS-16A Do Not Comply with 10 C.F.R. § 2.309(f)(2) and, Accordingly. Should Not Be Admitted or Otherwise Treated as Amended Contentions Contentions NYS-12A and NYS-16A repeat, nearly verbatim, the claims and supporting information contained in NYS-12 and NYS-16, whose admission Entergy opposed at the outset of this proceeding. NYS's "updated" contentions further assert that the NRC Staff has "essentially

adopted and incorporate[d] the applicant's inadequacies into the DSEIS." 6 ° NYS states that, even though "NRC regulations may not require the state to submit this category of supplemental contentions," it submitted NYS- 12A and NYS- 16A "out of an abundance of caution" to "preserve 6

these issues for further litigation and to create a complete record." 1 See McGuire, CLI-02=28, 56 NRC at 382 (stating that itwas "incumbent upon the Intervenors to amend their original contention to set forth with specificity any concern" regarding the applicant's discussion of a particular study that the Intervenors argued applicant did not originally consider in its SAMA.analyses).

58 USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 444-45 (2006) (emphasis added).

9 Id. at 445 n.65 (citation omitted).

60 NYS DSEIS Contentions at 1.

61 Id. at 1-2.

12,

1. Original Contentions NYS-12 and NYS-16 May Appropriately Be Treated as Admitted Challenges to the DSEIS Without Amendment or Re-Designation

'As a threshold matter, Entergy disagrees with NYS's characterization of its SAMA analyses as "flawed" or "faulty," and its claim that the NRC Staff has "uncritically" accepted Entergy's SAMA analyses. 62 Nonetheless, Entergy recognizes that the Board has admitted NYS-12 and NYS-16 for hearing. NYS-12A and NYS-16A do not, however, meet the requirements in 10 C.F.R.

§ 2.309(t)(2) for the admission of new or amended contentions. Neither contention alleges that the DSEIS contains data or conclusions that "differ significantly" from those in Entergy's ER, or that any other "new and materially different information" warrants modification of NYS- 12 and NYS- 16.

Accordingly, the Board should not admit or otherwise treat NYS- 12A and NYS- 16A as

.amended or,new contentions. Moreover, there is no need to re-designate either admitted contention to reflect its status as an admitted challenge to the DSEIS. As another Board explained, a contention:

[I]nitially framed as a challenge to the substance of an applicant's ER analysis of particular matters would not necessarily require a late-filed revision or substitution to constitute a litigable issue statement relative to the substance of the Staff's DEIS (or final environmental impact statement) analysis of the same matter.63 This approach is consistent with other cases in which Boards faced with analogous circumstances have treated environmental contentions based initially on an applicant's ER as challenges to the 64 NRC's subsequent DSEIS.

62 Id. at 3, 5, 9. Indeed, Appendix G to the DSEIS contaihs a nearly 40-page evaluation of Entergy SAMA analyses.

63 PrivateFuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-01-26, 54 NRC 199, 208 (2001).

64 See, e.g., La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 84 (1998) (approving a Board decision to treat an intervenor's contentions addressing the ER as challenges to the FEIS); S. Nuclear OperatingCo (Early Site Permit for Vogtle ESP Site), LBP-08-3, 67 NRC 85, 95(2008) (stating that such substitution is appropriate "so long as the DEIS analysis or discussion at issue is essentially inparamateria with the ER analysis or discussion that is the focus of the contention").

13

2. The Allegations in NYS-16A That Entergy Cannot Meet Its Emergency Planning Obligations Under 10 C.F.R. § 50.47(b)(9), and That the NRC Staff Cannot Meet Its "Concurrent Obligations Under NEPA" Are Inadmissible In footnote 5 of NYS-16A, NYS asserts that Entergy's use of the ATMOS module of MACCS2 may result in predictions about the direction and radionuclide content of offsite releases and related calculations that are "deficient" and provide "false information" to the public and to emergency responders, in violation 10 C.F.R. § 50.47(b)(9). 65 NYS further asserts that, as a result, the "NRC Staff will be unable to meet its concurrent obligations under NEPA." 66 The Board should reject these specific allegations as inadmissible and outside the scope of Contention NYS- 16, as previously admitted by the Board, for the reasons set forth below.

First, neither allegation supports the admission of NYS-16 under 10 C.F.R. § 2.309(f)(i).

NYS- 16 is an environmental contention that challenges the adequacy of Entergy' s SAMA analyses, which it performed pursuant to NEPA and 10 C.F.R. Part 51. As NYS recognizes, 10 C.F.R.

§ 50.47(b)(9) relates to a licensee's "methods, systems, and equipment for assessing and monitoring actual or potential offsite consequences of a radiological emergency."' 67 This is an emergency planning requirement, which is a current licensing basis issue and outside the scope of this proceeding.68 The Commission has clearly stated that emergency planning issues per se are not within the scope of a license renewal proceeding. "Issues like emergency planning--which already are the focus of ongoing regulatory processes--do not come within the NRC's safety review at the 69 license renewal stage."

65 NYS DSEIS Contentions at 12 n.5.

66 Id.

67 Id. (quoting 10 C.F.R. § 50.47(bX9)).

68 69 See 10 C.F.R. § 2.309(f)(1)(iii).

6§ Fla. Power &Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-0l-17, 54 NRC 3, 10 (2001); see also Millstone, CLI-05-24, 62 NRC at 567.

14

Furthermore, NYS fails to explain how Entergy's compliance with 10 C.F.R. § 50.47(b)(9) affects the adequacy of its SAMA analyses for IP2 and IP3, or the NRC Staff's review thereof under NEPA and 10 C.F.R. Part 51. In fact, NYS alleges the opposite; iLe, that an alleged deficiency in Entergy's SAMA analyses precludes its compliance with an emergency planning requirement. 70 In addition to providing no factual or technical basis for this assertion, NYS fails to explain how the alleged noncompliance with Section 50.47(b)(9) is material to the NRC Staff's NEPA evaluation under 10 C.F.R. Part 51, so as to establish a genuine dispute on a material issue of law or fact..

Accordingly, this NYS allegation also does not support admission of NYS- 16A under 10 C.F.R.

§ 2.309(f)(1)(iv), (v),. and (vi).

For these reasons, the Board should reject NYS's challenge to Entergy's compliance with the emergency planning requirement set forth in 10 C.F.R. § 50.47(b)(9) as outside the scope of this proceeding, notwithstanding the Board's prior admission of NYS-16.

B. Contention NYS 17-A Fails to Meet the Timeliness and Admissibility Requirements of 10 C.F.R. 4 2.309 and Must be Dismissed

1. Overview of Contention and Supporting Bases With one exception discussed below, Contention NYS 17-A is an unabashed resubmission of NYS- 17, which the Board admitted as a "contention of omission."71 Only this time, the alleged omission centers on the NRC Staffs DSEIS rather than Entergy's ER. 72 Specifically, NYS 17-A asserts that the NRC Staffs evaluation of offsite land use in the DSEIS improperly ignores the 70 In this regard, this situation is readily distinguishable from that in Pilgrim, where the Board admitted a contention challenging the input data for certain parameters in the applicant's SAMA analysis, and the parameters happened to be related to emergency planning issues. Entergy Nuclear GenerationCo. (PilgrimNuclear Power Station), LBP 23, 64 NRC 257, 338-341 (2006). Specifically, the Board admitted the contention to the extent that it concerned specific and supported challenges to SAMA input data in three areas-evacuation times, economic consequences, and meteorological patterns. In contrast, NYS-1 6 challenges Entergy's use of the ATMOS module of the MACCS2 code in its SAMA analyses, not itsuse of any particular emergency-planning-related input parameters. See also Shearon in Harris,LBP-07-11, 65 NRC at 95 (rejecting proposed contention as improperly raising emergency planning issue license renewal proceeding and distinguishing the Pilgrim Board's ruling in LBP-06-23).

71 Board Order, slip op. at 83.

72 See NYS DSEIS Contentions at 1-2, 14-20.

15

positive property-value impacts purportedly flowing from the no-action alternative (i.e., non-renewal of the IPEC operating licenses). 73 It yet again asserts a failure, this time by the Staff, to consider the positive impacts on land values in the IPEC vicinity that would accrue if the IP2 and IP3 operating licenses were not renewed.74 In support of these particular claims, NYS references the original declaration of Stephen C. Sheppard, Ph.D ("Original Sheppard Declaration"), and.the Original Sheppard Report, which purported to estimate the impact to property values from removal of IPEC.75 As such, NYS 17-A diverges very little, if at all, from NYS-17, with one major exception:

Paragraph 24 of NYS 17-A introduces a new (and inadmissible) argument. Specifically, it references a supplemental declaration by Dr. Sheppard ("New Sheppard Declaration"), and a New Sheppard Report, which-for the first time-present allegations regarding the impacts of spent fuel storage on 76 property values after the period of extended operation.

2. Summary of Entergy's Opposition to NYS 17-A As discussed below, the DSEIS cures the "omission" alleged in NYS-17, such that the original contention is moot and should now be dismissed. 77' As a matter of established Commission procedure, it was "incumbent upon" NYS to submit an amended or new contention challenging the pertinent analysis in the DSEIS in order to maintain the viability of NYS-1 7.78 As discussed further below, however, NYS's attempt to do so fails as a matter of law, because, the State's amended 7 Id. at 15.

Ild. at 15-16.

7' Id. at 20 (referencingDeclaration of Stephen C. Sheppard (Nov. 29, 2007) ("Original Sheppard Declaration"), and Stephen C. Sheppard, PotentialImpacts ofIndian PointRelicensing on PropertyValues (2007) ("Original Sheppard Report")); Original Sheppard Reportat 4-6. Dr. Sheppard equates impacts to land use with impacts to property values. See Original Sheppard Report at.2. Thus, the foregoing discussion focuses on consideration of property values.

76 NYS DSEIS Contentions at 20 (referencingSupplemental Declaration of Stephen C. Sheppard (Feb.26, 2009) ("New Sheppard Declaration"), and Stephen C. Sheppard, PotentialImpacts ofIndian PointRelicensing with Delayed Site

-Reclamation(2009) ("New Sheppard Report")).

77 See USEC, CLI-06-9, 63 NRC at 444-45.

7 McGuire, CLI-02-28, 56 NRC at 382.

16

contention, NYS 17-A, does not comply with the contention timeliness or admissibility requirements set forth in 10 C.F.R. § 2.309(f).

First, NYS's argument that the DSEIS must consider the impacts of spent fuel storage on adjacent property values after the period of extended operation is nontimely under 10 C.F.R.

§ 2.309(f)(2). In short, this issue is not a new environmental issue addressed in the Draft SEIS; it is an issue that the State could have raised previously. NYS provides no good cause or justification for its belated identification of this issue. Accordingly, in presenting this new allegation; NYS 17-A fails to comply with 10 C.F.R. § 2.309(f)(2) and (c)(1).

Furthermore, NYS 17-A also must be denied in its entirety for failing to meet each of the contention admissibility requirements specified in 10 C.F.R. § 2.309(f)(1). In particular, insofar as NYS 17-A (1) demands a more detailed analysis of property-value impacts that are unrelated to any significant impact to the physical environment, and (2) challenges the NRC's generic findings on spent fuel storage, it raises issues that are not within the scope of this proceeding, or material to the findings the NRC must make to support issuance of renewed licenses. Therefore, NYS 17-A does not satisfy the requirements of 10 C.F.R. § 2.3 09(f)(1)(iii) and (iv). In addition, because NYS 17-A lacks adequate support and does not controvert the Staff's discussion of socioeconomic impacts in the DSEIS, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi), there is no genuine material dispute warranting further proceedings on this matter. All of these reasons for rejection are discussed below.

3. Original Contention NYS-17 Is Moot and Must be Dismissed As discussed in Section III.C.3 above, the Commission has stated that "[w]here a contention alleges the omission of particular information or an issue from an application, and the information is later ... considered by the staff in a draft EIS, the contention is moot."' 79 In NYS-17, NYS claims that Entergy's ER does not consider the positive impact to adjacent property values that would result 79 Id., at 383.

17

if the IPEC operating licenses were not renewed, and the Board admitted the issue as a "contention of omission.""8 Where, as here, a contention of omission has been superseded by subsequent events, it "must be disposed of or modified." 8' The NRC Staff's DSEIS now addresses, within the context of the no-action alternative, the potential impacts of non-renewal of the IP2 and 1P3 operating licenses on property values.8 2 In so doing, the NRC Staff relies on a recent study conducted by Levitan and Associates that evaluates various economic issues associated with retiring IPEC. 83 In this regard, the DSEIS now recognizes that shutdown of"IP2 and IP3 may result in increased property values of the homes in the communities surrounding the site." 84 The DSEIS further explains that the increase in property values would cause some increase in tax revenues, but notes that this increase in tax revenues might not be sufficient to offset the loss of tax revenues resulting from the shutdown of IP2 and IP3. 85 Finally, the DSEIS observes that "[t]he combined increase in property values and increased taxes could have a noticeable effect onsome area homeowners and businesses." 86 Based on this information, the DSEIS cured the omission that gave rise to NYS-1 7,87 and the NRC Staff--to'the extent required by J

80 Board Order, slip op. at 83.

8! McGuire, CLI-02-28, 56 NRC at 382.

82 DSEIS at 8-29 to 8-30..

  • 183 Id. (citingLevitan & Assocs., Inc., Indian PointRetirement Options, Replacement Generation,Decommissioning/

Spent Fuel Issues, andLocal Economic IRate Impacts (June 9, 2005) (prepared for the County of Westchester and the County of Westchester Public Utility Service Agencies) ("Levitan Report")).

84 Id. The DSEIS also concludes that there would be no housing impacts, population-related land use impacts, and tax-revenue-related impacts during the license renewal term beyond what is currently being experienced. See id. at 4-39, 4-41.

85 Id. at 8-29 to 8-30.

86 Id. at 8-30.

87 As the Commission noted in McGuire, there is "a difference between contentions that merely allege an 'omission' of information and those that challenge substantively and specifically how particular information has been discussed" in the applicant or NRC Staff document subject to challenge. CLI-02-28, 56 NRC at 382-83.

18

NEPA-has addressed the omission alleged in original contention."8 Therefore, NYS-17 must be dismissed as moot.

As demonstrated below, although NYS purports to amend NYS- 17 based on conclusions presented in the DSEIS, in actuality, it seeks impermissibly to broaden the scope of the original contention by introducing an issue that has no colorable nexus to the NRC Staff's required DSEIS analyses and conclusions. Moreover, NYS's "new" issue appears to have its genesis in an NRC proposed rulemaking issued five months ago and, accordingly, should have been raised previously.

4. NYS's New Argument Regarding Spent Fuel Storage Impacts Beyond the Period of Extended Operation Does Not Meet the Standards for New and Amended Contentions Set Forth in 10 C.F.R. § 2.309(0(2) and (c)

NYS- 17, as proffered in November 2007, concerned only the impacts of IPEC license renewal on adjacent property values under the no-action alternativeand, ostensibly, the impacts that might occur during the period of extended operation.89 As discussed above, NRC regulations permit NYS to amend this contention in response to the DSEIS, but only if the DSEIS contains "data or conclusions. .. that differ significantly from the data or conclusions" in Entergy's ER90 Thus, "an intervenormay notfreely 'change the focus of an admitted contention at will as litigation progresses, but is bound by the terms of the contention."' 91 As discussed above, the DSEIS contains information that is directly germane to-and

  • moots-the concern alleged in NYS-17. Instead of identifying any "specific deficiencies" in that discussion, NYS seeks to expand the scope of its contention by citing as support the New Sheppard Declaration and New Sheppard Report, which it also cites as supporting evidence for proposed new 88 See, e.g., Claiborne, CLI-98-3, 47 NRC at 89 (citation omitted) (".Determination of economic benefits and costs that are tangential to environmental consequences are within a wide area of agency discretion."). The requirement for the NRC to consider property value impacts and other socioeconomic effects under NEPA is discussed in more detail in Section IV.B.5 below.

89 NYS Petition at 167-74.

90 10 C.F.R. § 2.309(f)(2) (emphasis added).

91 McGuire, CLI-02-28, 56 NRC at 386.

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contention NYS-34. Those new references (and thus NYS 17-A) discuss property-value impacts resulting from the long-term or indefinite storage of spent fuel at the IPEC site long after the period of extended operation(at least 60-70 years, and even beyond 140 years, after the period of extended operation).92 NYS, however, makes no credible attempt to link this newly-raised issue to any "data or conclusions" in the DSEIS that differ---much less differ "significantly"-from information presented in the ER. Thus, in raising this new issue, NYS 17-A fails to comply with 10 C.F.R. § 2.309(f)(2).

Furthermore, while NRC regulations permit an intervenor to amend a contention, with leave of the Board, based on previously unavailable information (aside from the DSEIS), NYS broadly

.misses the mark on that count too.93 NYS provides no reason to believe that it was unable to raise this issue previously, if not at the very outset of the proceeding. NYS, in fact, makes no explicit attempt to show compliance with Section 2.309(f)(2)(i)-(iii). As reflected-in footnote 6 of its February 27, 2009, pleading and in its related new contention, NYS-34, New York's newly-raised issue appears to derive from the NRC's proposed changes to 10 C.F.R. § 51.23 (i.e., the Waste Confidence Rule). Even assuming that this proposed rulemaking could somehow provide a basis (albeit one left unexplained by NYS) for a new contention, the "trigger point" for filing such a contention was the NRC's October 9, 2008 FederalRegister notice soliciting public comments on the proposed rulemaking. 94 Thus, the information on which NYS apparently now relies on as a basis 92 See NYS DSEIS Contentions at 20 (referencingNew Sheppard Declaration and New Sheppard Report); New

  • Sheppard Report at 4. In contrast, original NYS-1 7 focused on the delayed unavailability of the IPEC site for

.unrestricted use that NYS claims would result from the renewal of the IP2 and IP3 operating licenses. See Board Order, slip op. at 79 (stating that, in NYS-17, "NYS claims the site will be available for unrestricted use by 2025."

Although NYS-1 7 cited the need for additional storage of spent fuel generated during the period of extended operation, it did not allege the need for "indefinite" storage of spent fuel at the site, as NYS 17-A now does.

9 See 10 C.F.R. § 2.309(f)(2)(i)-(iii) 94 See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-14, 51 NRC 301, 309 n.2 (2000) (noting that, even if a GEIS addendum rulemaking were an appropriate trigger to file a new contention, the trigger date would be the publication of the proposed rule).

20

for amending NYS- 17 was available more thanfive months ago, 95 and, as such, clearly was not "submitted in a timely fashion," as required by Section 2.309(f)(2)(iii).96 Although "a nontimely contention is not perforce inadmissible," a petitioner "must demonstrate that admission of a nontimely contention is warranted pursuant to the eight-factor 97 balancing test in 10 C.F.R. § 2.309(c).' NYS, however, has not addressed any of the Section 2.309(c)(1) criteria, a failure which precludes admission of its nontimely contention.. As the Commission itself has observed, "Section 2.309(c)(2) clearly provides that a petitioner 'shall address' all eight factors set forth in section 2.309(c)(1).98 Accordingly, insofar as NYS 17-A relies on a new argument regarding long-term spent fuel storage, as well as the New Sheppard Report, it 99 must be rejected as nontimely.

As discussed next, even if the Board overlooks this procedurally fatal defect and considers

  • the State's new argument, NYS 17-A must be rejected in its entirety because it fails to meet the Commission's contention admissibility requirements.

95 As NYS previously recognized, new and amended contentions based on newly-available information are typically.

considered timely if filed within 30 days. See Motion by New York State and Riverkeeper for Extension of Time to File Timely Contentions Related to Draft Supplemental Environmental Impact Statement at 1 (Jan. 9, 2009).

9' Although this information was not previously available when NYS initially proposed'contentions, the information contained in the NRC's October 9, 2008 publication of the Proposed Waste Confidence Decision Update, 73 Fed.

Reg. 59,551, and the Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation, 73 Fed. Reg. 59,547 ('Spent Fuel Temporary Storage"), upon which NYS-34 is based, is not materially different than information previously available. As discussed further in Section IV.D.2.c, below, even under the proposed changes to the Waste Confidence Rule, the Commission's conclusion that spent fuel can be stored "without significant environmental impacts beyond the licensed life for operation (which may include the term of a revised or renewed license)" remains unchanged. Spent Fuel Temporary Storage, 73 Fed. Reg. at 59,551. The "rmateriality" of this information is further discussed below in the context of the contention admissibility requirements.

AmerGen Energy Co.: (License Renewal for Oyster Creek Nuclear Generating Station), No. 50-0219-LR, Memorandum and Order (Denying Citizens' Motion for Leave to Add Contentions and Motion to Add Contention) at 6 n.7 (Feb. 9, 2007) (unpublished).

98 Fla.Power & Light (Calvert Cliffs Nuclear Power Plant, Units 1 & 2, et al.), CLI-06-21, 64 NRC 30, 34 (2006); see also Bait. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 347 & n.9 (1998). Even if the Board were to consider this balancing, the most important factor, "good cause" weighs against admission of this new argument for the same reasons it fails to satisfy 10 C.F.R. § 2.309(0(2). See Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 244 (1986); Shaw Areva MOX Servs. (Mixed Oxide Fuel Fabrication Facility), LBP-07-14, 66 NRC 169, 210 n.95.

See Calvert Cliffs, CLI-98-25, 48 NRC at 347 & n.9 (noting that the Commission has summarily dismissed contentions that fail to address the late-filed factors).

21

5. Amended Contention NYS 17-A Does Not Meet the Admissibility Standards Set Forth in 10 C.F.R. § 2.309(f)(1)
a. NYS 1 7-A Raises Issues That Are Outside the Scope of this Proceedingand That Are Not Materialto the NRC Staffs EnvironmentalFindings NYS 17-A asserts that the DSEIS fails to consider the "adverse" impacts during the period of extended operation, but only to the extent that renewal would deprive adjacent land owners of the positive impacts on property values that would accrue under the no-action alternative. 00 NYS 17-A vaguely attributes this "adverse" impact on property values to the "continuation of an operating 10 nuclear power generation facility and the associated increase in dry cask storage of spent waste." 1 The Original Sheppard Report, on which NYS 17-A also relies, asserts that license renewal will adversely impact property values by perpetuating the mere "presence" of IPEC.10 2 In short, NYS alleges that "[e]xtended operation of IP2 or IP3 will deprive adjacent lands of the economic recovery that they would otherwise enjoy if P2 and IP3 are not relicensed."'°3 These claims ignore a bedrock legal principle that governs the consideration of socioeconomic issues-including property value impacts-in actions subject to NEPA, such as this license renewal proceeding. Specifically, "NEPA requires consideration of socioeconomic factors only to the extent that 'economic or social and natural or physical environmental effects are interrelated,' and.. . socioeconomic impacts unrelated to environmental effects therefore are outside the scope of NEPA."'10 4 This principlederives from a well-established corollary to the U.S. Supreme Court's holding that "NEPA's 'theme... . is sounded by the adjective 'environmental': NEPA does 100 NYS DSEIS Contentions, at 15-16.

101 Id. at 18 (citing Original Sheppard Report); see also id. at 19 (claiming that the "impact is from the facility itself").

102 Sheppard Report at 1.

103 NYS DSEIS Contentions at 15.

104 Hammond v. Norton, 370 F. Supp. 2d 226, 243 (D.D.C. 2005).

22

not require the agency to. assess every impact or effect of its proposed action, but only the impact or effect on the environment."' 5 In applying these judicial tenets, the Commission similarly has concluded that the.NRC need not consider socioeconomic effects that are not "directly related to the physical environment."' 10 6 As such, the Commission has stated that the "[d]etermination of economic benefits and costs that are 07 tangential to environmental consequences are within a wide area of agency discretion."

Accordingly, in considering socioeconomic impacts under NEPA, the Commission, like the courts, appropriately distinguishes between socioeconomic impacts that directly arise from a physical impact to the environment and those that do not. For example, in the reactor license renewal context, the Commission has found that the GEIS is not required to consider the effect that spent fuel shipments would have on property values, because these impacts would arise from the public's perception of risk rather than from an impact to the physical environment. 0 8 Thus, "[o]nly when socioeconomic effects somehow result from a project's environmental impact must they be considered."'10 9 In NYS-17-A, however, NYS asserts~that "[t]he .DSEIS's evaluation of land use impacts is deficient because it ignores the positive impact on land use and land value from denial of the license extension for IP2 and IP3."110 Specifically, NYS claims that this "positive impact" on land use and land value will resultfrom the decommissioning ofIPEC, such that

'0' Claiborne,CLI-98-3, 47 NRC at 88 (quoting Metro. Edison Co. v. People Against NuclearEnergy, 460 U.S. 766, 772 (1983)).

106 Changes to Requirements for Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 64 Fed. Reg. 48,496,48,502 (Sept. 3, 1999) (final rule) (emphasis added).

107 Claiborne,CLI-98-3, 47 NRC at 89 (citation, omitted).

108 Changes to Requirements for Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 64 Fed. Reg. at 48,502. Cf Claiborne,CLI-98-3, 47 NRC at 109 n.26 (stating that the Board, in ruling on an environmental justice contention alleging disproportionate adverse impacts on minority communities located near a proposed enrichment facility, had found that "property devaluation willflow directlyfrom radiologicaland environmentalimpacts associated with a heavy industrial facility nearby") (emphasis added).

109 Hammond, 370 F. Supp; 2d at 243.

11o NYS DSEIS Contentions at 15 (emphasis added).

23

"the site would be available for unrestricted use."'11 According to NYS, "[t]his impact is from the facility itself when compared to an alternativeuse that is also capable of generating employment and income.""12 Similarly, NYS asserts that IPEC license renewal "will have an adverse impact on the value of adjacent land and its development as compared-to what would occur if the licenses were not 3

renewed."'"1 These assertions make clear that the socioeconomic impact alleged by NYS-an increase in the "beneficial uses" and "value" of land adjacent to IPEC if the licenses are not renewed-has nothing to do with the environmental impacts of the continued operation of IPEC. In short, NYS demonstrates no direct relationship--other than the mere "presence" of IPEC-between any environmental impacts causedby renewal or non-renewal of the IPEC operating licenses and the claimed property value impacts."14 Consequently, the property value impacts alleged by NYS simply are too remote from any environmental impact to warrant NRC evaluation. of such impacts beyond what the Staff has already done in evaluating the no-action alternative to IPEC license renewal.115 Although NYS also suggests that the storage of spent fuel generated during the period of extended operation may affect nearby property values, that argument is barred by NRC regulations.

Specifically, the NRC's-finding regarding the environmental impacts of onsite spent fuel storage are 11 Id.

112 Id. at 19.

113 Id. at 16 (emphasis added). Oddly, this contradicts NYS's statement on page 44 of its pleading that ,[o]nce these reactors [i.e., IP2 and IP3] cease operation, much of the economic value to the community from the plant will be lost because as a non-functioning former nuclear plant; the facility will pay much less property taxes and will have a reduced workforce, at least once decommissioning work is completed." NYS DSEIS Contentions at 33 (emphasis added).

.114 See id.

115 See Olmstead Citizensfor a Better Cmty. v. United States, 606 F. Supp. 964, 974 (D. Minn. 1985), aff'd, 793 F.2d 201

.(8th Cir. 1986) (noting that evaluation of the "risk of crime and risk of decreasing property values" is not required under NEPA because "the threshold requirement of a primary impact on the physical environment is missing"); see also Metro. Edison, 460 U.S. at 773-75. Even if consideration of impacts to property values was in fact required, nothing in NEPA requires that the NRC put a dollar value on the impact, or conduct a new study of the issue that Dr. Sheppard suggests is possible using property tax records. See Citizens ConcernedAbout Jet Noise v. Dalton, 48 F. Supp. 2d 582$ 599 (E.D. Va. 1999) (holding that agency failure to discuss impact on property values caused by noise pollution is not arbitrary and capricious'because it is "too difficult to evaluate the precise effect").

24

codified as a Category 1 issue in Table B-1 of Appendix B to Subpart A of 10 C.F.R. Part 51 ("Table B-I"). Table B-1 expressly provides that the "expected increase in the volume of spent fuel from an additional 20 years of operation can be safely accommodated on site with small environmental effects through dry or pool storage at allplants.16 The GEIS makes clear that these findings cover both radiological and non-radiological impacts from spent fuel storage and rejects the need for further consideration of mitigation alternatives at the license renewal stage.' 17 As discussed below, this undermines NYS's later assertion, made in the context of new contention NYS-34, that the Commission's Waste Confidence Rule encompasses environmental impacts caused by radiation but not impacts on off-site land values.118 Absent a waiver, "no rule or regulation of the Commission.. . is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding."'"19 Thus, in accordance with 10 C.F.R..§ 2.335(a), NYS may not offer proof or argument in this proceeding regarding the environmental impacts of onsite spentfuel storage during the original or extended period of operation, including the extent to which such impacts allegedly affect property values. Similarly, any assertion that the NRC must consider mitigation~of spent fuel storage-related property value impacts 116 0 C.F.R. pt. 51, subpt. A, app. B, Table B-I (emphasis added). See also The Attorney General of Commonwealth of Massachusetts, The Attorney General of California; Denial of Petitions for Rulemaking, 73 Fed. Reg. 46,204 (Aug. 8, 2008) (concluding that the Commission's findings related to the storage of spent nuclear fuel in pools, as set forth in NUREG-1437 and Table B-i of Appendix B to Subpart A of 10 CFR Part 51, "remain valid," and "[t]hus, the NRC has met and continues to :meet its obligations under NEPA).

117 See GEIS at .6-85 to 6-86. This assessment in the GEIS considers land use and socioeconomic impacts. See id. at 6-

84. Moreover, because the GEIS found the impacts to the physical environment from spent fuel storage to be insignificant, there Was no need to specifically consider tangential, economic impacts to property values.. See Olmstead Citizens, 793 F.2d at 206 (noting that NEPA does not:require the "that an agency consider impacts not.

sufficient to trigger preparation of [EIS] just because such a statement was required for other unrelated reasons").

118 See Turkey Point,CLI-01-17, 54 NRC at 23 ("Part 5 I's license renewal provisions cover environmental issues relating to onsite spent fuel storagegenerically" and "[a]ll such issues... fall outside the scope of license renewal proceedings." (emphasis added).

19 10 C.F.R. § 2.335(a).

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under the no-action alternative in this proceeding is an impermissible challenge to generic determinations made in the GEIS and codified in Table B-i.1 2 0 For the foregoing reasons, NYS 17-A impermissibly raises issues that are outside the scope of this proceeding, and that are not material to the environmental findings that must be made by the NRC to support issuance of the IPEC license renewal, contrary to the requirements of 10 C.F.R.

§ 2.309(f)(1)(iii) and (iv).

b. NYS 17-A Lacks Adequate Factualor Expert Support and Failsto Establish a Genuine Dispute on a MaterialIssue of Law or Fact NYS contends that the DSEIS contains no analysis of the property value impacts under no-action alternative and during the period of extended operation.121 Although NYS 17-A resorts to the same general hyperbole relating to property values under the no-action alternative that appears in original NYS-17, NYS fails to acknowledge, much less discuss, the new information addressing this issue in the DSEIS. In particular, the DSEIS states:

The shutdown of IP2 and IP3 may result in increased property values of the homes in the communities surrounding the site (Levitan and Associates, Inc. 2005). This would result in some increases in tax revenues. However, to fully offset the revenues lost from the shutdown of 1P2 and IP3, taxing jurisdictions most likely would have to compensate with higher property taxes (Levitan and Associates, Inc. 2005). The combined increase in property values and increased taxes could have a noticeable effect on some area homeowners and business, though Levitan and Associates did not indicate the magnitude of22this effect and whether the net effect would be positive or negative.'

120 To the extent that footnote 6 and Paragraph 24 of NYS 17-A incorporate NYS's arguments regarding spent fuel storage after theperiod ofextended operation,those claims constitute impermissible challenges to the Commission's Waste Confidence Rule in 10 C.F.R. § 51.23 and the ongoing rulemaking proceeding to revise that regulation. As discussed in detail in response to New Contention NYS-34, these challenges are beyond the scope of this proceeding and not material to findingsthe NRC must make to support issuance of the renewed licenses, contrary to 10 C.F.R.

§ 2.309(f)(1)(iii) and (iv).

121 NYS DSEIS Contentions at 16, 18, 20.

122 DSEIS at 8-29 to 8-30. The Levitan Report indicated that "it is likely that property values for homeowners would increase even if the IP site store SNF," but "did not speculate as to the net effect of local property values." Levitan Report at 103.

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NYS ignores this new analysis, and resubmits essentially the same challenge it presented in original, and now moot, NYS-17. Thus, to the extent that NYS 17-A continues to assert that property values were not considered (i.e., a contention of omission), NYS fails .to satisfy the requirements of 10 C.F.R. § 2.309(f)(1)(vi), because the matter it asserts was not addressed in Entergy's ER has now, in fact, been addressed in the DSEIS. Therefore, NYS 17-A fails to raise a genuine dispute of material fact with respect to the DSEIS discussion of property values under the no-action alternative.

To the extent that NYS 17-A now attempts to raise an alleged error (as opposed to an omission) in the DSEIS no-action alternative discussion, NYS fails to specifically identify and challenge the appropriate section of the DSEIS (or the Levitan Report referenced therein), which it is required to do under 10 C.F.R. § 2.309(f)(1).123 Because NYS continues to focus myopically on property value impacts rather than the NRC Staff's discussion of the combined effects of both increased property value and taxes, NYS fails to show that the impacts under the no-action alternative would be any different than those already discussed by the NRC Staff in the DSEIS, and thus, fails to raise a material issue of law or fact. The failure to address the Levitan Report is particularly perplexing given that NYS explicitly cites this study in its original Petition.124 Similarly, because Dr. Sheppard fails to address the combined impacts of both increased property value and taxes, his analysis is inadequate to support admission of NYS 17-A, as required by 10 C.F.R. 2 5

§ 2.309(0(1)(v).z But the Original and New Sheppard Reports fail to support NYS 17-A for several other reasons. Dr. Sheppard assumes, without further explanation, that beneficial property value impacts

.ý23 See also McGuire, CLI-02-28, 56 NRC at 383 (stating that "a valid contention challenging how specific substantive information is discussed in an application - or draft EIS - must identify "each [such] failure," setting forth both the

/ applicant's--or staff's-position and "the petitioner's opposing view.").

124 See Synapse Energy Economics, Inc., Report on the Availability of Replacement Capacity and Energyfor Indian Point Units 2 & 3 at 14-17 (Nov. 28, 2007) ("Synapse Report"), attached to Schlissel Declaration (Nov. 28, 2007).

125 See Original Sheppard Report at 4-6. Again, this omission is especially surprising given NYS's admission on page 44 of its pleading that once IP2 and IP3 cease operations, "much of the economic value to the community from the plant will be lost[.]" NYS DSEIS Contentions at 44.

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will accrue under the no-action alternative because the IPECsite will be decommissioned within 10 years and replaced with an "attractive riverfront development." 6 In fact, NRC regulations require decommissioning to be complete within 60 years of permanent cessation of operations, not the 10 years that Dr. Sheppard assumes (or was directed to assume) in his analysis. 12 7 Thus, the DSEIS properly recognizes that "[flull dismantling of structures and decontamination of the site may not occur 'for up to 60 years after plant shutdown."'128 Dr. Sheppard provides no explanation as to why this conclusion in the DSEIS is incorrect and, therefore, the very premise of his report is unsupported and factually incorrect.129 Furthermore, Dr. Sheppard provides no factual support for.

his claim that IPEC site will be replaced with an "attractive riverfront development."' 30 Because the Board must not "accept uncritically the assertion that... an expert opinion supplies [as] the basis for

  • acontention," the Board should find the Sheppard Reports is not grounded in reality and, therefore, fails to meet the requirements set forth in 10 C.FR. § 2.309(f)(1)(v).' 31 126 Original Sheppard Report at 3; see also New Sheppard Report at 2. In an apparent inconsistency, in their amended contention, NYS states that "[u]nder the no-action alternative, if the licenses were not renewed, the plants would be decommissioned in 6 years such that the site would be available for unrestricted use." NYS DSEIS Contentions at 15.

12710 C.F.R. § 50.82(a)(3).

128 DSEIS at 8-25.

129 NYS 17-A also assumes, under the no-action alternative, that spent fuel will be removed within 10 years of the expiration of the initial IPEC operating licenses. New Sheppard Report at 2. The basis for this assumption is entirely unsupported because it is not based on any statements or plans issued by the Department of Energy, which is responsible for the removal and storage of all spent fuel at U.S. power reactors. On the other hand, NYS assumes that spent.fuel will not, be removed for 60 or more years after the expiration of the renewed operating licenses. Id. NYS's failure to recognize and explain this internal inconsistency is yet another reason why NYS 17-A is fatally flawed.;

130 See Soc'y Hill, 210 F.3d at 182 (holding that NEPA does not require consideration of future land use development that is "unlikely or.difficult'to anticipate").

131 PrivateFuel Storage,L.L.C., (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 181 (1998).

Indeed, the scenario envisioned by Dr. Sheppard is not unlike the "industrial heaven" postulated by a petitioner in another NRC licensing proceeding. The rationale underlying the Commission's rejection of that petitioner's contention applies equally here:

'[Petitioner's] contention puts forth the idea of an "industrial heaven" employing thousands at the.., site if the [facility] license is denied and if the site "were cleaned up." Yet not only did the contention lack support for this claim, as the Board found, but the "no-action" alternative "is most simply viewed as maintaining the status quo."

For the "industrial heaven" idea to become reality would involve numerous future, yet-uncertain steps by unknown 'third parties. In effect, [Petitioner] is 'proposing another objective altogether, its concept of an "industrial heaven." But agencies need only consider those alternatives that can achieve the purposes of the proposed action.

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Finally, with respect to impacts during the period of extended operation, NYS apparently.

disapproves of the DSEIS conclusions that there will be no population-related and tax-revenue-.

related land use impacts during the period of extended operation beyond those currently being experienced.132 However, NYS provides no factual information or expert opinion indicating that property value impacts during the period of extended operation would be different than current property value impacts.133 Rather, NYS focuses entirely on the postulatedbeneficial impacts 34

.associatedwith non-renewal of the IPEC operating licenses (i.e., the no-action alterative).1 Similarly, Dr. Sheppard focuses entirely on impacts relating to the initial construction or the decommissioning of IPEC, but says nothing regarding the DSEIS conclusion that there would be no impacts during renewal beyond those currently being experienced.135 In essence, NYS and its expert ask the NRC to speculate about potential future uses (e.g., an "attractive riverfront development") of the IPEC site if license renewal is not granted." This goes well beyond the proper scope of the no-action alternative (i.e., "maintaining the status quo") and "would involve numerous future, yet-uncertain steps by unknown third parties."' 36 Moreover, simply postulating future alternative uses of When the purpose of a project "is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved."

USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 468-69 (2006) (internal citations omitted.).

132

. See NYS DSEISContentions at 16 (stating that "dry cask storage of high level nuclear wastes will create further impacts on the value and potential use of adjacent lands beyond the impacts of the operating nuclear plants."); see also id. at 18 (stating that the "DSEIS did not consider the changes in property values associated with unanticipated continuation of an operating nuclear power generation facility and the associated increase in dry cask storage of spent waste").

133 See id. at 18. NYS ignores a similar conclusion regarding housing impacts. See DSEIS at 4-39.

4 See, e.g.,.NYS DSEIS Contentions at 16 ("This will have an adverse impact on the value of adjacent landand its development as comparedto what would occur if the licenses were not renewed.") (emphasis added). Although NYS 17-A purports to challenge the NRC Staff's discussion of impacts during the period of extended operation, NYS appears to challenge--impei-missibly-impacts that would have been caused by the original issuance of the IPEC operating licenses. See Seneca v. Cheney, 12 F.3d 8, 12 ( "these problems were created by past actions, ... [but]

NEPA ...relates solely to future agency actions").

135 See, e.g., Original Sheppard Report at 4, 6 (discussing "installation" and "removal" of a nuclear power plant).

136 USEC, CLI-06-10, 63 NRC at 468.

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the IPEC site does not establish that the environmental impacts of the proposed action (i.e., license renewal), as assessed under NEPA. and 10 C.F.R. Part 51, are unreasonable or unacceptable.

Accordingly, NYS 17-*A provides no support and raises no material issue of law or fact with respect to the DSEIS discussion of land use and housing impacts duringthe license renewalperiod, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi).

C. New Contention NYS-33 Fails to Meet the Timeliness and Admissibility Requirements of 10 C.F.R. § 2.309 and Must be Dismissed

1. Overview of Contention. and Supporting Bases New Contention NYS-33 states:

THE DSEIS DISCUSSION OF ENERGY ALTERNATIVES (CHAPTER 8) VIOLATES NEPA BECAUSE IT IGNORES, SIGNIFICANT NEW INFORMATION AND FAILS TO PROVIDE A RIGOROUS ANALYSIS OF THE COSTS, BENEFITS, AND FEASIBILITY OF ENERGY CONSERVATION AND OTHER MEASURES UNDER THE "NO-ACTION" ALTERNATIVE IN VIOLATION'OF 10 C.F.R. §§ 51.53(c)(3)(iv), 51.71(a) AND (d),

AND 51.95, 10 C.F.R. PART 51, SUBPART A, APPENDIX B; AND 40 C.F.R. §§ 1502.14 AND 1502.9.'37 NYS newly claims that the DSEIS is inadequate because it allegedly fails to consider:

(1) the no-action alternative as to the renewal of only one unit, particularly in view of the potential for increased energy conservation and efficiency in New York State; (2) the increased viability of.

renewable resources, including wind and geothermal energy; (3) the option of repowering existing power plants with a combination of alternatives that can be implemented if the no-action alternative is chosen, including the asserted environmental benefits of repowering existing plants; (4) combined heat and power as one of the combinations of alternatives that can be implemented if theno-action alternative is chosen, including the associated environmental benefits; (5) purchase power as a viable 137 NYS DSEIS Contentions at 20.

30

stand-alone alternative; and (6) the demonstrated feasibility of providing transmission-capability and interconnection upgrades that, in turn, would facilitate the use of alternatives to !P2 and IP3.138

2. Summary of Entergy's Opposition to NYS-33 As the foregoing suggests, NYS-33 is a broad amalgam of allegations and supporting references, few of which are new, and all of which are plainly untimely as they could have been raised in the original NYS Petition. NYS-33, in fact, is little more than a repackaging of the same issues raised by the State in NYS-9, NYS-l 0, and NYS- 1--all belatedly rolled into a single "new" contention. As such, NYS-33 represents a thinly-veiled attempt by NYS to litigate, under the rubric of NEPA's "no-action" alternative, issues that this Board previously rejected as inadmissible in its original contention admissibility ruling. Specifically, in addition to alleging that the NRC Staff must consider energy conservation as part of its no-action alternative analysis (i.e., the subject of NYS-9),

NYS again contends that the Staff must consider an array of other energy alternatives as stand-alone alternatives to the proposed action (Le., the subject of rejected NYS-l 0 and NYS- 11).

NYS-33 is inadmissible in numerous respects. Broadly speaking, this contention seeks to litigate issues that are beyond the scope of this proceeding, in contravention of NRC regulations and adjudicatory precedent-including a prior decision of this Board. First, NYS-33 is not-truly a challenge to the DSEIS discussion of the "no-action" alternative discussion. Rather, at its core, the contention alleges that energy conservation must be included as a proxy or alternative that may "fully displace some or all of the demand now being met by IP2 or IP3."' 39 This assertion plainly contravenes agency precedent, including this Board's ruling in LBP-08-13 that NEPA does not require consideration of energy conservation "in [the] alternatives analysis for the defined goal of

!38 See generally id. at 21-34. NYS lists the sources of information that it relies on as supportforNew Contention 33 in paragraphs 23 to 33 of the contention. Those references fall into the following main categories: (1) Information presented in NYS's November 2007 Petition that NYS incorporates by reference (including extensive portions: of NYS Contentions 9 and 10, the November 2007 Declarations of David Schlissel and Peter Bradford, and the Synapse Report); (2) the February 2009 Declaration of David Schlissel; and (3) certain "actions and orders" taken by the NYS Public Service Commission.

IId. at 24-25 (emphasis added).

31

producing 2,158 MWe of baseload generation." 40 Thus, as a legal matter, the Board should reject NYS's attempt to recast a previously-rejected issue as an ostensible challenge to the NRC Staff's "no-action" alternative discussion. Moreover, as discussed below, NYS's contention is nothing short of a complete misapprehension of the "no-action" alternative analysis.

Second, by openly asserting that "the continued operation of the IP2 and IP3 power reactors*

is not necessary," NYS seeks to litigate the need for power supplied by IPEC. The Commission, however,,has determined that the "NRC will neither perform analyses of the need for power nor draw any conclusions about the need for generating capacity in a license renewal review." 14 1 Accordingly, NYS-33 also is an impermissible direct attack on NRC regulations.

For these reasons alone, the Board must reject NYS-33 as inadmissible in this proceeding.

As demonstrated below, application of the contention timeliness and admissibility criteria in 10 C.F.R. § 2.309(1) and (2) demonstrates that NYS-33 is deficient in numerous other respects, such that admission of the contention is precluded. From a timeliness perspective, NYS-33 does not meet the criteria of 10 C.F.R. § 2.309(f)(2), because NYS does not explicitly challenge the DSEIS on the grounds that it contains "significantly" different data or conclusions than those in Entergy's ER. Nor

-does NYS demonstrate that any alleged "new" information upon which it now relies is "materially different" from that previously available to the State.' 42 NYS-33 also fails to meet the fundamental contention admissibility standards of 10 C.F.R.

§ 2.309(f)(1). For the reasons stated above, the contention clearly raises issues that are not in scope or material to this license renewal proceeding. In addition, the contention alleges deficiencies in the DSEIS that simply do not exist because NYS either ignores or mischaracterizes the relevant discussion in the DSEIS. Finally, while NYS-33 quibbles over certain details of the Staff's 140 Board Order, slip op. at 51 (emphasis added).

141 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,472 (June 5, 1996) (final rule).('.'June 1996.Final Rule").

142 Vt. Yankee, 63 NRC at 573.

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alternatives analysis (ignoring other relevant details in the process), it does not controvert the outcome of that analysis. Specifically, NYS-33 does not demonstrate how or why the alleged "significant new information" proffered by NYS could materially affect the ultimate finding of the Staff, based on its assessment of the, relative significance of the environmental impacts of license renewal and the alternatives to license renewal (including the no-action alternative). As defined by NRC regulation, in order to approve a license renewal application, the NRC Staff must find, inter alia, that "the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable."'143 Therefore, since NYS-33 fails to establish a genuine dispute on an issue of law or fact that is material to the NRC Staffs DSEIS, the contention must be dismissed.

3. Prior Findings and Rulings of this Board Relevant to NYS-33 As noted above, NYS-33 combines issues previously raised by NYS in admitted Contention NYS-9 and rejected Contentions NYS-10 and NYS-1 1. NYS's incorporation by reference of all of the "supporting evidence" presented in original NYS-9 and NYS- i0 is clear evidence of this fact.'44 Thus, before evaluating the admissibility of NYS-33 against the requirements specified in 10 C.F.R.

§ 2.309(t)(1) and (2), it is helpful to briefly revisit the key findings made by this Board in its ruling on the admissibility ofNYS-9, NYS-l 0, and NYS-1 1.

First, the Board admitted NYS-9 as a "narrow" contention of omission concerned "exclusively" with the need for Entergy to "discuss energy conservation as part of the 'no-action' alternative.',145 The Board explained that, in the case of NYS-10, it was "faced with a contention that, in the initial Petition, only focused on the alternatives analysis and did not ask. [the Board] to "4 10 C.F.R. § 51.95(c)(4).

.144 NYS DSEIS Contentions at 35 (specifically, paragraph 26).

145 Board Order, slip op. at 49, 50 & 51.

33

look at the 'no-action' alternative analysis."' 46 Thus, because NYS had "first applied the 'no-action' alternative as a basis for this contention [NYS-10] in its Reply," the Board considered it "to be a new contention and therefore inadmissible." 14 7 In similarly rejecting NYS- 11, the Board noted that NYS made "no specific reference to the 'no-action' alternative in NYS-1.1.148 Second, in rejecting that portion of NYS-9 relating to energy alternatives analysis, as well as NYS-I0 and NYS- 11, the Board noted that, consistent with NRC precedent and Section 8.1 of the GEIS, "this Board considers the reasonable alternatives for license renewal proceedings to belimited 49 to discrete electric generation sources that are feasible technically and available commercially."'1 The Board found "that there is no legal requirement(nor has NYS proffered any) for the Applicant to analyze in detail options that are not discrete, feasible sources for 2,158 MWe of base-load energy."'150 In this regard, the Board concluded that NYS-10 and NYS- II raised issues outside the 5

scope of the proceeding and constituted "a direct attack on NRC [r]egulations.", l Notably, the Board found that the ER adequately explained why Entergy did not further analyze each of the various energy alternatives discussed in the GEIS to the same extent that it evaluated coal generation, nuclear generation from another plant, and imported power.52 The Board also noted that "the Commission in Clinton stated 'neither the NRC nor [the applicant] has the 53 mission (or authority) to implement a general societal interest in 'energy efficiency.""'1 146 Id. at 56.

'4 Id. at n.264.

Id".dat 60.

4 Id. at 54; see also id. at 51, 59.

IS0 Id. at 54 (emphasis added).

IId. at 54; see also id. at 60.

112 Id. at 55.

113 Id. at 59.

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4. Summary of Controlling NEPA Principles In ruling on the admissibility. of NYS-33, which purports to challenge the adequacy of the Staff's no-action alternative analysis and alleges that the Staff improperly ignored "significant new information," the Board*should apply the following controlling principles under NEPA.

First, the Commission has held that the NEPA no-action alternative "is most easily viewed as simply maintaining the status quo," 54 and that "the discussion 'need not be exhaustive or inordinately detailed."" 55 As applied here, it is-intended to foster comparison of the expected environmental impacts of renewing the IPEC licenses, with the potential environmental impacts of not renewing those licenses. It is not, as NYS suggests, a vehicle for re-evaluating the need for generation or utility economics, including possible means by which the need for the proposed action might be fully "displaced" from an economic or technical perspective.156 Nor is it an open-ended construct for postulating a "broader range" of alternatives, as NYS also asserts in NYS-33.

Second, under NEPA's rule of reason, the Commission "need only consider the range of alternatives reasonably related to the scope and goals of the proposed action.157 Thus, the Staff's conclusion that energy conservation (a nongeneration source) currently is not a stand-alone alternative to IPEC (a discrete 2,158-MWe baseload generation source) is reasonable under NEPA.

154 Claiborne,CLI-98-3, 47 NRCat 97.

155 Id. In this regard, the Commission has found the Staff's incorporation by reference of other portions of an environmental impact statement within the no-action alternative discussion to be permissible. See S. Nuclear OperatingCo. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 259-60.(2007) (citing Hydro Res.,

Inc. (PO. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 54 (2001); Claiborne,CLI-98-3, 47 NRC at.

98) (noting prior Commission statements establishing that the no-action alternative discussion. "can be brief and can incorporate by reference other sections of the ER [or DSEIS] discussingthe project's adverse consequences").

i As this Board his explained, "denial of a LRA may, in some instances lead to energy conservation measures, whose M6 environmental impacts, in turn, would be included in the 'nowaction' alternative." Board Order. at 51, This is precisely the approach taken by the NRC Staff in the DSEIS. Section 8.2 explicitly recognizes that the power not generated by IP2 and IP3 during the license renewal term could be replaced by certain generation or nongeneration options or some combination thereof. It further recognizes that these options can be alternatives to license renewal (given sufficient resource availability) or potential consequences of the no-action alternative.

157 Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), LBP-05-31, 62 NRC 735,753 (2005) (internal quotation mark" and citations omitted).

35

Third, NEPA does not require the NRC "to look at every conceivable alternative to [the]

58 proposed action," but only reasonable alternatives-those that are "feasible and nonspeculative."'1 In this regard, the DSEIS recognizes that "[t]here are many possible combinations of alternatives that could be considered to replace the power generated by IP2 and IP3159 and, as applicable, clearly states why the Staff views certain alternatives as either unfeasible or speculative.

Fourth, "NEPA does not'require a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered, or which have substantially similar consequences." 16 Moreover, "NEPA imposes no obligation to select the most environmentally benign alternative."'161 The Commission has described the relevant inquiry as follows:

NRC adjudicatory hearings are not EIS editing sessions. Our busy boards do not sit to parse and fine-tune EISs. To litigate a NEPA claim, an intervenor must allege, with adequate support, that the NRC staff has failed to take a "hard look" at significant environmental questions-i.e., the staff has unduly ignored or minimized pertinent environmental effects.' 62 As shown below, nowhere in its. pleading does NYS provide any information-aside from conclusory assertions that its suggested "energy options" are "environmentally-preferable"--to suggest that those options would have substantially different environmental consequences, or that the.

NRC Staff's DSEIS ignores or minimizes pertinent environmental effects.

158 Id. (citing Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551 (1978); NRDC v. Morton, 458 F.2d 827, 834, 837 (D.C. Cir. 1972); City of Carmel-by-the-Sea v.DOT, 123 F.3d 1142, 1155 (9th Cir. 1997); Long IslandLighting Co. (Shor-eham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 65 (1991)).

"9 DSEIS at 8-65.

160 "Headwaters,Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th Cir. 1990) (citing N. Plains Res. Council v.

Lujan, 874 F.2d 661, 666 (9th Cir. 1989)).

161 Hydro Res., CLI-01-4, 53 NRC at 55 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)).

162 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units I and 2), CLI-03-17, 58 NRC 419, 431(2003).

36

5. NYS-9 is Now Moot Because the DSEIS Addresses the Alleged Omission and, Accordingly, Must be Dismissed as a Matter of Law.

Before turning to the admissibility ofNYS-33, Entergy addresses a related, if not inextricably intertwined, procedural matter that warrants resolution by this Board. Although admittedcontention NYS-9 is narrower in scope than proposed new contention NYS-33, both contentions, allege that NEPA requires discussion of energy conservation as part of the no-action alternative analysis:1 63 The Board, in fact, admitted NYS-9 as a "narrow" contention of omission based on Entergy's alleged failure to "consider energy conservation for the 'no-action' alternative in its ER."' 6 4 The NRC Staff s DSEIS, as explained herein, cures the alleged omission by discussing energy conservation within the context of the no-action alternative. NYS has not sought to amend NYS-9. Although NYS has filed a new, related contention in NYS-33, that contention is inadmissible for the reasons set forth herein. Therefore, NYS-9 is moot and accordingly should be dismissed.

Specifically, based on information presented in Chapter 8 of the DSEIS, the NRC Staff has addressed the omission alleged by the State in NYS-9.165 In the DSEIS, the NRC Staff compares the, environmental effects of IPEC license renewal to those of the no-action alternative and alternative energy sources. The approach taken by the Staff in the DSEIS is fully consonant with the Board's observation, in its decision admitting NYS-9, that the "denial of a LRA may, in some instances lead to energy conservation measures, whose environmental impacts, in turn, would be included in the

'no-action' alternative." 66 Section 8.2 ("No-Action Alternative") of the DSEIS explicitly recognizes

-that the power not generated by IPEC during the license renewal term could be replaced by certain 1613 Compare NYS-9 ("At a minimum, analysis of energy conversation feasibility, costs and environmental impacts is necessary to properly evaluate the impact of the 'no action' alternative.") with NYS-33 ("The DSEIS discussion of energy alternatives (Chapter 8) violates NEPA because it... fails to provide a rigorous analysis of the costs, benefits, and feasibility of energy conservation., under the 'No-Action' Alternative. . ). See NYS Petition at 108; NYS DSEIS Contentions at 20..

164 Board Order at 49, 51.

165 See DSEIS at 8-25 to -27, 8-58 to -59, 8-66, 8-71 (discussing no-action.alternative, energy conservation, and environmental impacts of energy conservation measures).

166 Board Order, slip op. at 51.

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generation or nongeneration options or some combination thereof.' 67 It further recognizes that these options can be alternatives to license renewal. (given sufficient resource availability) or potential 68 consequences of the no-action alternative.'

J Furthermore, while the GEIS discusses "discrete-electric generation sources," the Staff also considers in the DSEIS two possible combinations of alternatives, in part because of the efforts of others to examine alternatives to IP2 and IP3 .169 These combinations include several alternatives that the Staff found to be unable to replace the entirety of IP2 and IP3 electrical capacity.170 The first combination assumes continued operation of one IPEC unit, and the second combination is based entirely on alternative energy sources (i.e., new generation, efficiency improvements or demand-side management, and new transmission capacity carrying power from upstate).17 1 In short, the Staff has included energy conservation as part of its alternatives and associated environmental impact 172 analyses, which it incorporates by reference in DSEIS Section 8.2 ('No-Action Alternative").*

DSEIS Section 9.2 summarizes the outcome of the Staff's alternatives analysis as follows:

NRC staff analysis indicates that the no-action alternative has the smallest effect, but it would necessitate additionalactions to replace generationcapacity (whether with newly-constructedpower plants or purchased power) and/or institute conservation pro'grams. Impacts 167 DSEIS at 8-27.

168 Id.

169 The Staff's analysis of the environmental impacts of the two combinations of alternatives is contained on pages 8-66 to 8-75 of the DSEIS and summarized in Table 8-5.

170 DSEIS at 8-65.

171 Id.

172 In summary, in Section 8.3 of the DSEIS, the Staff considered several categories of alternative energy sources. First, it-considered central generating alternatives, including supercritical coal-fired generation at an alternate site (Section.

8.3.1) and natural gas-fired generation at either the IP2 and WP3 site or an alternate site (Section 8.3.2). Second, it considered nongeneration alternatives to license renewal, including purchased power (Section 8.3.3). Third, it considered two combinations of alternatives that include new or existing generation along with conservation or purchased power in other sections of the DSEIS. Specifically, the Staff considered (a) continued operation of either IP2 or IP3, construction and operation of a gas-fired unit, renewable generation, and conservation programs. (Section 8.3.5.1); and (b) construction and operation of new gas-fired plant, renewable generation, conservation, and purchased power (Section 8.3.5.2). Finally, the Staff also considered certain other alternatives that were dismissed from further evaluation as stand-alone alternatives (Section 8.3.4), but some of which were included in the combinations addressed in 8.3.5 (e.g., renewable generation and conservation).

38

of the likely consequences of the no-action alternative would be 73 similar to those of the energy alternatives that the staff considered.1 In view of the above, the NRC Staff's DSEIS clearly addresses the omission underlying admission of NYS-9, by specifically considering energy conservation as a potential consequence of, or partial alternative to, the proposed action (continued operation of IPEC). Pursuant to the rule enunciated in the Commission's McGuire decision, therefore, NYS was required to timely file a new or amended contention that addresses the factors in 10 C.F.R. § 2.309() in order to raise specific challenges regarding the information provided by the Staff. NYS did not seek to amend NYS-9, so that contention must now be ruled moot. Although NYS has submitted a new contention, NYS-33, which incorporates elements of NYS-9, NYS-33 is not admissible for the reasons discussed herein.

6. New Contention NYS-33 is Not Timely Under 10 C.F.R. § 2.309(f)(2) or Otherwise Admissible Under 10 C.F.R. § 2.309(c)(1)

NYS-33 also must be rejected because it does not meet the requirements for the admission of a new or amended contention set forth in 10 C.F.R. § 2.309(0(2). As described above, to be admitted for hearing, such a contention "must rest on data or conclusions that 'differ significantly' from what was submitted in the Environmental Report," 174 or the petitioner must demonstrate that the information upon which it relies was "not previously available" and is "materially different than previously available information," and has been timely submitted.175 As shown below, NYS-33 plainly violates these controlling precepts for contention timeliness.

a. NYS-33 Does Not Meet the CriteriaSet Forth in Section 2.309(t)(2) for a Timely New Environmental Contention In a glaring omission, NYS does not state explicitly how specific data and conclusions in the DSEIS are truly new (i.e., different from those in the ER) or why any differences are "significant."

'7 Id. at 9-7 (emphasis added). DSEIS Table 9-1 compares the relative significance of the plant-specific effects of IPEC license renewal and the environmental effects of the alternatives considered by the Staff, Id. at 9-9 to 9-11.

'74 McGuire, CLI-02-28, 56 NRC at 385.

'7 10 C.F.R. § 2.309(f)(2)(i)-(iii).

39

Instead, NYS-33 centers on the Staffs alleged failure to "include consideration and analysis of substantial comments and information" identified by NYS "in itsprevious filings in this proceeding and in scoping comments."176 Such an assertion, however, clearly does not support the admission of a new contention. As another Licensing Board explained in the PrivateFuel Storage proceeding:

The State does not establish or even contend that the Staff DEIS contains "new or different data or conclusions;" in fact, the State only asserts that certain concerns that were not dealt with in the ER have additionally not been dealt with in the DEIS. Indeed, it appears information was reasonably available to support [the new contention] 77 for a substantial period before the... distribution of the DEIS.1 In affirming the Board's dismissal of the contention, the Commission noted that the Board "rightly refused to allow [the intervenor] to bring up old grievances late in the hearing process.' 78 The issues presented in NYS-33 are, in fact, nothing but "old grievances" resurrected from NYS's November 2007-Petition. Each of the major issues raised in NYS-33 was raised in NYS Contentions 9, 10, and 11.179 It is telling that, as support for its ostensibly "new" contention, NYS.

incorporates by reference all-of the "supporting evidence" proffered 16 months ago in support of NYS Contentions 9 and 10.180 NYS-33 simply seeks to pick up where rejected NYS-10 and NYS-1 1 left off--repeating the allegation that the no-action alternative analysis contained in the DSEIS fails to "*'rigorously" analyze the "costs, benefits, and feasibility" of both energy conservation and alternative energy sources. Clearly, these issues are not new.181 176 NYS DSEIS Contentions at .22 (emphasis added).

177 PrivateFuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-00-27, 52 NRC 216, 223 (2000)

(emphasis added).

PrivateFuel Storage, L.L.C. (Independent.Spent Fuel Storage Installation), CLI-04-4, 59 NRC 31, 45 (2004).

'7 See, e.g., LBP-08-13, slip op. at 52-53 (describing various alternative energy sources identified by NYS in Contention 10).

18o See NYS DEIS Contentions at 35.

181 See NYS Petition at 108 ("At a minimum, analysis of energy conservation feasibility, costs and environmental impacts is necessary to properly evaluate the impact of the 'no action' alternative"); see also id. at 121 (alleging that

"[t]he ER then dismisses such alternatives as wind power, bio-mass, delayed retirement, hydropower and'energy conservation with only the most cursory analysis of their feasibility and costs and benefits"). NYS's expert, David 40

As discussed above, in rejecting NYS-10 and NYS-1 1 in July 2008, the Board found that NYS had not--even then-timely asserted that the no-action alternative analysis must address 1 82 alternative energy sources. NYS- 10 and NYS- 11 were untimely then and are even staler now.

Recasting the same issues as a "new" contention-without explicitly identifying any "significantly" different data or conclusions in the DSEIS--does not comply with 10 C.F.R. § 2.309(f)(2) or the Board's explicit directive on this matter. As the Commission stated in the McGuire case:

"Intervenors must timely file a new or amended contention that addresses the factors in section 83

.[2.309(f)] in order to raise specific challenges regardingthe new information."',

b. NYS-33 Does Not Meet the Alternative CriteriaSet Forth in Section 2.309(f)(2)(i)-(iii)for a Timely New Contention NYS-33 purportsto provide "significant new information" but it does not.' 84 NRC tribunals have held that unavailability of a document does not constitute good cause for late filing if a contention's "factual predicate" was otherwise available.18 5 Such is thecase here, where NYS raised concerns regarding the analysis of energy conservation and alternative energy sources under the "no-86 action'" alternative in,its November 2007 *Petition and its February 2008 Reply.'

Schlissel, likewise fails to explain in his February 27, 2009, declaration why any of the information cited therein is new and materially different.

182 Cf Tenn. Valley Auth. (Bellefonte Nuclear Power Plant Units 3 and 4), Docket Nos. 52-014-COL and 52-015-COL, Memorandum and Order (Ruling on Request to Amend Contention NEPA-N) (unpublished) at 6-7 (Jan. 26, 2009)

(stating that "certain of the information sought to be incorporated appears not to be susceptible to further consideration in the context of this contention because it goes... to ... matters that the Board in its [initial] contention admissibility decision previously rejected as inappropriate for consideration under this contention").

  • 13 McGuire, CLI-02-28, 56 NRC at 383 (emphasis added).

184 NYS DSEIS Contentions at 20.

185 PrivateFuel Storage, LBP-98-7, 47 NRC at 208 (citing Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

CLI-83-19, 17 NRC 1041, 1043 and 1045 (1983)); Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-15, 44 NRC 8, 26 (1996); Phila. Elec. Co. (Limerick Generating Station, Units 1 and 2), LBP-83-39, 18 NRC 67, 69 (1983)) (ruling that the intervenor's reliance on newly-disclosed proprietary materials was not "necessary" or "integral" to the development of its late-filed contention, such that delay in filing was not justified).

186 See Board Order, slip op. at 46-60 (citing NYS Petition at 106-17, 120-39; New York State Reply in Support of Petition to Intervene (Feb. 22, 2008) ("NYS Reply") at 61-62, 65, 70-71).

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Furthermore, none of the alleged "new" information cited by NYS in NYS-33 is "materially 87 For example, in paragraph 6 of its new different than previously available information."

contention, NYS readily acknowledges that "[iun its November30, 2007 petition for intervention, the State of New York presented evidence to the NRC concerning the State's program to increase energy efficiency and reduce energy use."'188 In fact, most of the "supporting evidence" provided by NYS in support of Contention 9 relates to the State's adoption of the so-called "15 x 15" Clean Energy Plan, which seeks to achieve a 15-percent reduction in statewide electric energy consumption by 2015 through energy-efficiencymeasures. Thus, the existence of this program is far from a "new" revelation. At most, NYS-33 provides an update. on the State's implementation of the program, to which NYS avers the "State has devoted significant time and resources." 189 The mere fact that the State is still pursing its energy conservation objectives-a matter of public record-is neither new' nor materially different information.

NYS also revisits efforts by the federal government, particularly the DOE, "to implement

  • efficiency standards for home appliances., 9' Similarly, NYS discussed this matter at length in its November 2007 Petition as part of Contention NYS 9.19i There, NYS noted the DOE's intention "to promulgate regulations, required under the Energy Policy and Conservation Act, that will force 22 187 10 C.F.R. § 2.309(f)(1)(ii).

188 DSEIS Contentions at 23.

189 Id. In particular, NYS cites actions taken by the PSC on June 23, 2008, and January 16, 2009, including the creation of an Energy Efficiency Portfolio Standard ("EEPS") program. Id. at 23-24. NYS asserts that recent orders issued by the PSC "will increase energy efficiency, including in the southern areas of New York near the Indian Point reactors (including Zones H, I, J, and K)." Id. at 24. NYS also refers to the possible expansion of the 15 x 15.program to the 45 x 15 program. Id. at 28. On a related note, NYS states that the recent enactment of the American Recovery and Reinvestment Act of 200, Public Law 111-5 on February 17, 2009, increases "the likelihood of availability. of energy

  • efficiency and conservation measures (as well as alternative andrenewable energy sources, and transmission-systemn enhancements)." Id. at 25.. NYS acknowledges, however, that "no final allocation has been made yet." Id. . Even if the State later receives such allocations, which is speculative, this new development does not constitute "materially
  • different" information that supports the admission of Contention 33. In short, all-of this alleged "new" information
  • relates to NYS's previously-raisedclaim that energy conservation, renewable energy sources, and transmission system upgrades could supplant the need for one or both of the IPEC units, a premise that was squarely rejected by this Board in LBP-08-13.

"90 NYS DSEIS Contentions at 26.

191 NYS Petition at 116-19.

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separate classes of appliances to increase their energy efficiency-and thereby conserve energy.192 Indeed, NYS included tables as part of NYS 9 identifying specific product categories and the target 93 dates for DOE publication of corresponding efficiency standards. 1 In its latest petition, NYS notes that the President has requested that DOE take all necessary steps to finalize legally required efficiency standards as soon as possible, and consistent with applicable judicial and statutory deadlines.' 94 In this same vein, NYS also notes that the DOE has 95 since recognized the "significant energy savings" provided by compact fluorescent light bulbs. 1 But none of this is materially different from the information provided in the original NYS Petition.

The upshot of NYS's discussion of these recent developments is that "the State's own programs" and-"accelerated federal efficiency standards will further conserve energy within New York State and in Zones H, I, J, and K." 96 This is the same fundamental premise inherent in NYS-9.

NYS-9 states similarlythat a "15% energy reduction in 2015 statewide would more than offset the need to extend the license of the two Indian Point units in 2013 and 2015," and that DOE appliance efficiency standards will provide "conservation gains on a going-forward basis." 7 Thus, the factual predicate for NYS's new contention existed long before the ongoing actions cited in NYS-33.

The same can be said of NYS's reference to recent or potential developments related to renewable energy and transmission capacity. NYS states that in February 2009, the NYISO announced that the combined wind energy generation output within the State had reached 1,000 MW and was expected to increase.' 98 This announcement is not materially different information, given the observation in NYS- 10 that "[t]he NYISO interconnection queue includes proposals for wind 192 Id. at 116.

'9' Id. at 116-17.

194 NYS DSEIS Contentions at 26.

195 Id.

196 Id.

'9' NYS Petition at 114-15 & 118.

198 NYS DSEIS Contentions at 27.

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generation that now total in excess of 5,000 MW." 199 Likewise, none of the recent, pending, or proposed transmission system upgrades cited in NYS-33 provide materially different information.2 z0 In rejected NYS-10, the State cited numerous potential transmission system enhancements or upgrades, and postulated that they "could increase the capability to import power into the Hudson 20 River Valley and downstate New'York from New England, PJM or upstate New York." 1 In summary, the information underlying NYS-33 was in existence when NYS submitted its original Petition. Even if information cited by NYS may be deemed "new," it clearly is not "materially different." As such, there is no new factual predicate supporting the admission of the instant contention. As one Board put it, permitting any recent publication "reflecting information widely available previously, to be good cause for late filing would virtually wipe out the requirement of cause."2 °2 Moreover, it would leave. the Staff's NEPA review in constant flux, with the Staff 20 3 seemingly obligated to account for every emerging development or new piece of information.

.Clearly, this is not the intent of NEPA, which is governed by a "rule of reason." Rather, the NRC

  • must base its analysis on information and assumptions "that were reasonable at the time.",20 4 199 NYS Petition at 125 (quoting NYISO, The Comprehensive ReliabilityPlan 2007, A Long-Term Reliability Assessment of New York's Bulk PowerSystem, Final Report, Sept., 2007, Appendices at 75).

200 NYS DSEIS Contentions at 29-30.

201 NYS Petition at 136-37.

202 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2), LBP-82-1 1, 15.NRC 348,352 (1982)

(noting that "the appearance of a newspaper article does not in and of itself create cause for late filing" under the criteria set forth in Section2.309).

203 However, to the extent that NYS's comments on the DSEIS parallel concerns expressed in NYS-33, the Staff is required by regulation to attach those comments to the Final SEIS, and to respond in writing to the comments. See 10 C.F.R. § 51.91.

204 PrivateFuel Storage, LLC, (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 151 (2004)

(citing Inland Empire Pub. Lands Council v. U.S. ForestServ., 88 F.3d 754, 761 (9th Cir. 1996) (affirming Board rejection of contention challenging adequacy of NRC Staff's cost-benefit analysis under NEPA, including intervenor argument that Staff's analysis was flawed by "a false start-of-operations assumption")).

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c. NYS-33 is Not Admissible as a Nontimely Contention Under The Criteria Set Forth in 10 C.F.R. §2.309(c) (1)

Given that NYS has not satisfied any of the criteria 10 C.F.R. § 2.309(f)(2), it must satisfy the test set forth in 10 C.F.R. § 2.309(c)(1) for possible admission as a "nontimely" contention.

NYS, however, has not even attempted to address any of the Section 2.309(c)(1) criteria. This omission alone renders the newly-proposed contention fatally defective, in that NYS must affirmatively demonstrate that the Section 2.309(c)(1) factors weigh in favor of admitting NYS-33.2 °5 Because NYS has not met its burden under 10 C.F.R. § 2.309, NYS-33 must be rejected.

7. New Contention NYS-33 Fails to Meet the Contention Admissibility Criteria Set Forth in 10 C.F.R. § 2.309(f)(1)

As-shown below, NYS-33 also fails to meet each of the Section 2.309(f)(1) substantive admissibility requirements. This is yet another ground for rejecting the contention, irrespective of its non-timeliness.

a. NYS-33 Raises Issues That Are Outside the Scope of the NRC Staff's EnvironmentalReview Under NEPA and 10 C.F.R. Part51, Contrary to 10 C.F. R. § 2.3 09(f)(1) (Wi)

As required by 10 C.F.R. § 2.309(f)(1)(iii), a petitioner must "[d]emonstrate that the issue raised in the contention is within the scope of the proceeding.",20 6 NYS-33 is outsidethe scope of this proceeding because it alleges that the DSEIS must contain "a rigorous analysis of the costs, benefits, andfeasibility of energy conservation and other measures under the 'no-action' alternative".20 7 However, when the NRC amended Part 51 in 1996 to establish new requirements for the agency's 205 See Calvert Cliffs, CLI-98-25, 48 NRC at 347 & 347 n.9. Even if the Board were to consider this balancing, the most important factor, "good cause" weighs against admission of New Contention NYS-33 for the same reasons it fails to satisfy 10 C.F.R. § 2.309(f)(2). See Braidwood,CLI-86-8, 23 NRC at 244; MOX, LBP-07-14, 66 NRC at 210 n.95.

206 Contentions are necessarily limited to issues that are germane to the application pending before the Board-in this case, a license renewal application filed pursuant to 10 C.F.R. Part 54. See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 204 (1998). Furthermore, a contention that challenges a Commission rule or regulation is outside of the scope of the proceeding. 10 C.F.R. § 2.335(a).

207 NYS DSEIS Contentions at 20 (emphasis added).

45

review of license renewal applications, it specifically excluded the type of cost-benefit analysis from the NRC's environmental review. The Commission codified this determination at 10 C.F.R. § 51.95:

The supplemental environmental impact statement for license renewal is not required to include discussion of need for power or the economic. costs and economic benefits of the proposed action or of alternatives to the proposed action except insofar as such benefits and costs are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation.20 8 The Statement of Considerations for the 1996 rulemaking explains the basis for the Commission's decision as follows

[T]he NRC will neither perform analyses of the need for power nor draw any conclusions about the need for generating capacity in a license renewal review. This definition of purpose and need reflects the Commission's recognition that, absent findings. in the safety review required by the Atomic Energy Act of 1954, as amended, or in the NEPA environmental analysis that would lead the NRC to reject a license renewal application, the NRC has no role in the energy.,

planning decisions of State regulators and utility officials. From the.

perspective of the licensee and the State regulatory authority, the purpose of renewing. an operating license is to maintain the availability of the nuclearplant to meet system energy requirements beyond the term of the plant's current license. The underlying need that will be met by the continued availability of the nuclear plant is defined by9 various operational and investment objectives of the 20 licensee.

. Notwithstanding these Commission statements, NYS contends that the Staff must prepare "a comprehensive and detailed analysis of the development of a portfolio of means to provide power in lieu of IP2 and IP3 *,210 NYS claims that such an analysis is necessary because the DSEIS purportedly relies on "outdated information about how utilities meet their energy needs."'2 11 These assertions, however, are directly counter to the Commission's determination that the agency need not 10 C.F.R. § 51.95(c)(2) (emphasis added).

'09 June 1996 Final Rule, 61 Fed. Reg. at 28,472.

210 NYS DSEIS Contentions at 31.

2.. Id. at 32.

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consider "the need for generating capacity and utility economics as part of its environmental analysis" for the renewal of reactor operating licenses. 2 12 Thus, they fall squarely outside the scope of this proceeding.

For the foregoing reasons, NYS-33 must be rejected as raising issues beyond the Scope of the NRC's NEPA review in this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii). NYS's intention is clear: to compel the NRC Staff, under the rubric of the "no-action" alternative, to undertake a "comprehensive and detailed" analysis of "the costs, benefits, and feasibility" of energy conservation and alternative energy sources, which NYS clearly believes. will show that "continuedoperation of the IP2 and 1P3 power reactors are not necessary." 2 13 But the Commission's contrary intention is equally clear: the Staff is not to perform such. an analysis as part of its environmental review of a reactor license renewal application. The Staff s no-action alternative discussion is no exception.

b. NYS-33 Raises Issues That Are Not Materialto the Findings That the Staff Is Requiredto Make UnderNEPA and 10 C.F.R. Part51, Contraryto 10 C.F. R. § 2.3 09(j)(1) (iv)

NYS-33 also fails to meet Section 2.309(f)(1)(iv) because it raises issues that are not material to-the Staff s environmental findings in this proceeding. 21 4 In particular, NYS's assertion that the NRC must prepare a "comprehensive and detailed" economic analysis and develop a "portfolio" of alternatives to IPEC electrical generation is not material to the specific finding that the NRC Staff 212 June 1996 Final Rule at 28,471; see also PPL Susquehanna,LLC (Susquehanna Steam Electric Station, Units 1 and 2), LBP-07m04, 65 NRC 281, 332-33 (quoting June 1996 Final Rule at 28,471-72) (rejecting proposed contention that alleged flawed tax analysis by applicant and raised issue of utility economics).

213 NYS DSEIS Contentions at 20, 31-32.

214 Section 2.309(f)(lXiv) requires a petitioner to' "[d]emonstrate that the issue raised in the contention is material to the findings the NRC mustmake to support the action that is involved in the proceeding." 10 C.F.R. § 2.309(f)(l)(iv). A "material" issue is one in which "resolution of the dispute would make a difference in the outcome of the licensing proceeding." Oconee, CLI-99-11, 49 NRC at 333-34 (citing Rules of Practice for Domestic Licensing Proceedings -

Procedural Changes in the Hearing Process, 54 Fed..Reg. at 33,172). There must be some link between the claimed error or omission regarding the proposed licensing action and the NRC's role in protecting public health and safety or the environment. Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 &.3), LBP-04-15, 60 NRC 81, 89, aff'd, CLI-04-36, 60 NRC 631 (2004).

47

must make here pursuant to 10 C.F.R. § 51.95(c)(4).2 15 That provision directs the Staff to determine "whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable."

In developing this "decision standard," the Commission stated that the licensee and other (non-NRC) governmental entities make the final decision on continued operation of the plant, based on economics, energy reliability goals, and other factors. 21 6 The Commission emphasized that it has no control over the ultimate selection of future energy alternatives, or the regulatory power to ensure that environmentally superior energy alternatives are implemented.217 Accordingly, the Commission stated that "consideration of the need for generating capacity and ofutility economics" is neither within the NRC's jurisdiction nor "necessary for the NRC's understanding of the environmental consequences of a license renewal decision."218 As discussed further below, NYS-33 only tangentially mentions the NRC Staff's analysis of environmentalimpacts, and certainly does not controvert that analysis or otherwise seek to establish that approval of IPEC license renewal is unreasonable due to adverse environmental impacts.

Accordingly, NYS-33 fails to meet 10 C.F.R. § 2.309(f)(iv) because the State's core argument-that the NRC must perform "a rigorous analysis of the costs, benefits, and feasibility of energy 219 conservation and other measures"-is not material to the NRC Staffs required findings.

215 NYS DSEIS Contentions at 31.

216 June 1996 Final Rule, 61 Fed. Reg., at 28,473.

217 Id. As such, the Commission correctly noted that its rejection of a license renewal in favor of an individual alternative does not ensure implementation of that alternative, and may lead to the implementation of another alternative that has even greater environmental impacts than the proposed action; i.e., license renewal. Id.

218 219 NYS DSEIS Contentions at 20.

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c. NYS-33 Alleges Deficiencies in the DSEIS That Do Not Exist and Thus Lacks Adequate FactualSupport, Contrary to 10 C.F.R. § 2.3090()(1)(v)

As shown below, to the extent that NYS-33 alleges certain deficiencies in the DSEIS, it fails for want of factual or legal support. In numerous instances, NYS disregards the actual content of the DSEIS, alleging omissions or errors that do not exist. Thus, NYS-33 also fails to meet 10 C.F.R.

§ 2.309(f)(l)(v) and accordingly must be rejected.

(i) NYS's Criticisms of the DSEIS Discussion of Energy Conservation Lack Legal and Factual Support NYS asserts that the DSEIS "incorrectly" assumes that energy conservation would only result in a savings of 800 MW, and as a result of that "arbitrary" assumption, "fails to. consider energy conservation as a full replacement for one or both of the units under the no-action alternative."2 2 ° NYS accuses the NRC Staff of ignoring "the central role of energy conservation in energy planning,"

including,"New York's efforts to improve energy efficiency and its actions to encourage the federal 22 government to improve appliance efficiency standards."' 1 NYS's assertions are incorrect. The DSEIS does not "ignore" the State's efforts to improve 222 energy efficiency or the potential for such efforts to offset a substantial portion of IPEC output.

DSEIS Section 8.3.4 ("Other Alternatives") discusses energy conservation in detail and explicitly recognizes that the New York State Energy Research and Development Authority ("NYSERDA") is pursuing conservation initiatives that have "resulted in significant energy savings" statewide.22 3 220 Id. at 25.

221 Id. at 25-26.

222 Id. at 22, 27.

223 DSEIS at 8-58 to 8-59. NYS's assertion that the DSEIS "artificially limits its analysis of energy conservation to a.

single study" (i.e., the National Research Council's 2006 report entitled "Alternatives to the Indian Point Energy Center for Meeting NewYork Electric Power Needs), even if it were true, does not render the DSEIS inadequate. See Olmstead, 606 F. Supp. at 974 (stating that the adequacy of an EIS is determined by a "rule of reason," and "[n]o preordained number of pages, studies, or criteria must be included or satisfied").

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(ii) NYS's Criticisms of the DSEIS Discussion of Renewable Energy Sources Lack Factual Support NYS also alleges that the DSEIS "erroneously" concludes, based on "bare assertions," that wind power or other renewable energy sources are incapable of providing more than 200 to 400 MW of"replacement power. 22 With respect to wind power in particular, NYS avers that, on February 26, 2009, "the [NYISO] announced that the combined wind energy generation output within New York State has reached 1,000 MW, and that such output is expected to increase."225 NYS's allegation clearly lacks factual support when viewed against the actual content of the DSEIS. In particular, DSEIS Section 8.3.4 recognizes the potential contribution of wind power in New York State. For example, it indicates that the State already has "utility-scale wind resources,"

and that "NYSERDA is actively pursuing economic potential in wind-derived power supplies,"

including the extensive wind resource prospecting efforts and the development of four projects totaling 425 MW. 226 Section 8.3.4 further acknowledges that various wind generation projects are 227 proceeding through the NYISO grid interconnection process.

Nonetheless, the NRC Staff concluded that wind power is not "a suitable stand-alone alternative that could be implemented before the IP2 and IP3 licenses expire." 228 The basis for this Staff conclusion is explicit in the DSEIS. Section 8.3.4 states that there is no assurance that proposed wind generation projects will go into service, particularly the proposed 940-MW(e) Winergy project off the South Shore of Long Island.229 Moreover, the DSEIS explains that, by itself, wind power currently is not suitable for baseload capacity, given the resource's high degree of intermittency, the 224 NYS DSEIS Contentions at 27.

225 Id.

226 DSEIS at 8-59 to 8-60.

121 Id. at 8-59.

228 Id. at 8-60.

'229 Id.

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relatively low average annual capacity factors of wind facilities, and the expensive nature of current energy storage technologies. 230 NYS ignores this discussion in the DSEIS.

NYS also alleges, without further explanation,, that "[t]he DSEIS also incorrectly discounts and then eliminates any contribution from hydropower or distributed geothermal energy." 231 The

-content of the DSEIS belies this claim. Section 8.3.4 states that hydroelectric power currently accounts for about 15 percent of the State's generating capacity, and that statewide and regional undeveloped hydroelectric potential are substantially less (40-percent and 86-percent, respectively) than IPEC generating capacity. 232 As for geothermal energy, Section 8.3.4 of the DSEIS explains:

"There are no feasible eastern locations for geothermal capacity to serve as an alternative to IP2 and IP3, and the New York Renewable Electricity Profile did not indicate any geothermal energy production in New York in 2006."233 NYS cites no facts or other information that controvert this Staff conclusion.

(iii) NYS's Criticisms of the DSEIS Discussion of Potential Nongeneration Energy Alternatives Lacks Factual Support As noted above, NYS also alleges that the DSEIS no-action alternative discussion fails to consider purchased power, transmission system upgrades, repowering existing power plants, and the

  • use of combined heat and power.23 To the contrary, the DSEIS discusses these possibilities in detail.

For example, the DSEIS discusses at length purchased electrical power, which the Staff treats as a "nongeneration alternative" to license renewal.235 As the DSEIS explains, Entergy is not a load-serving entity ("LSE") or power-buyer, and thus does not purchase power from other power generators. Nonetheless, the DSEIS recognizes that LSEs (e.g., Consolidated Edison) could purchase

.230 Id. at 8-59 to 8-60, NYS DSEIS Contentions at 28.

232 DSEIS at 8-61.

233 Id. at 8-63.

234 NYS DSEIS Contentions at 29-30,33-34.

2" See DSEIS at 8-56 to 8-57.

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additional electrical power from other sources, such as new fossil fuel plants or renewable energy 236 providers, or from existing facilities at other sites outside the New York Control Area ("NYCA").

The DSEIS further explains that the currentpower transmission infrastructure makes it difficult to purchase power from outside the southern regions of the NYCA due to constraints or "bottlenecks" between the southern load zones and other power-generating areas to the east and north, including Canada.237 The Staff accordingly concludes that "new transmission capacity would likely be necessary to efficiently move purchased power into the southern load zones and provide a partial solution to the retirement of IP2 and IP3. ,238 In this context, the DSEIS "recognize[s] that positive steps are being taken toward increasing the transmission capacity into the southern load zones of the NYCA," including those taken by New York Interconnect, Inc.239 Notably, although the Staff concluded that purchased power is currently not a viable stand-alone option for replacing IP2 and IP3, it nonetheless included "purchased power across new transmission lines" in the combination alternatives discussed in Section 8.3.5 of the DSEIS.24° Specifically, Combination Alternative 2 includes, as one of four contributing sources of electrical capacity, "importing a net 800 MWe from upstate New York and Canada following the installation of a new transmission line."241 Finally, the DSEIS also considers the possibilities of obtaining energy from existing plants and from combined heat and power. Section 8.3.4 discusses the potential for delayed retirement of plants-such as Astoria Units 2 and 3, but reasonably concludes that technical, economic, and environmental issues pose challenges to keeping such plants online.242 Section 8.3.4 also discusses

.236 Id. at 8-56.

237 Id.

238 Id. at 8-56 to 8-57.

239 Id. at 8-57.

240 Id. at 8-57, 8-66.

241 Id. at 8-66.

242 Id. at 8-64 to 8-65.

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combined heat and power, noting that it could contribute to a reduction in peak demand statewide in combinationwith other conservation measures and demand-side investments.243 In summary, there is no factual basis for the claim by NYS that the DSEIS no-action alternative discussion in Section 8.2, which incorporates by reference other relevant sections of Chapter 8, "fails to consider" the various nongeneration energy alternatives identified above. The DSEIS discusses these different potential options and certainly does not exclude them altogether or arbitrarily reject them as viable alternatives. The NRC Staff has met its obligations under NEPA.

The Commission has held that the Staff's discussion of the no-action alternative can be brief and can incorporate by reference other sections of an EIS discussing the project's adverse consequences. 24

d. NYS-33 Does Not Establish a Genuine Dispute with the NRC Staff on an Issue of Law or Fact that is Materialto the Staffs EnvironmentalReview NYS-33 fails to meet the last contention admissibility criterion, 10 C.F.R. § 2.309(f)(1)(vi),

because it does not raise a genuine dispute on a material issue of law or fact. As set forth above, NYS-33 alleges various omissions or shortcomings in the DSEIS that simply do not exist. Even on a purely factual level, the contention does not controvert the Staff's DSEIS analysis, including its discussion of the no-action alternative.

But NYS-33 also fails, to controvert the DSEIS in a more fundamental and significant respect.

Although the contention asserts that the DSEIS ignores "significant new information" from "other credible sources," it fails to explain how this alleged Staff oversight materially affects, if at all, the*

conclusions reached in the DSEIS.145 As discussed above, "the need for power from IP2 and IP3 is assumed by the NRC in the license renewal process." 246 In accordance with NRC regulations, the Staff's environmental review focuses on "whether or not the adverse environmental impacts of 243 Id. at 8-59.

244 See Hydro Res., CLI-01-4, 53 NRC 31, 54 (2001); Claiborne,CLI-98-3, 47 NRC at 98.

245 NYS DSEIS Contentions at 20, 27, 32.

.246 DSEIS at 8-78; see also 10 C.F.R. 51.95(c)(2); June 1996 Final Rule, 61 Fed. Reg. at 28,468, -472, -484.

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license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable."247 As noted above, the Commission has indicated that "consideration of the need for generating capacity and of utility economics... [is] not necessary for 2 48 the NRC' s understanding of the environmental consequences of a license renewal decision."

Section 9.2 of the DSEIS summarizes the NRC Staffs alternatives analysis determination.

Table 9-1 shows the relative significance of the plant-specific effects.of IPEC license renewal and the environmental effects of the reasonable. alternatives. In this analysis, the Staff concluded that "the adverse environmental impacts of license renewal for IP2 and IP3 are not so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable."

NYS-33 never controverts the results of the DSEIS analysis, particularly its conclusions regarding the relative environmental impacts of the proposed action, the no-action alternative, and

,alternative energy sources (both generation and nongeneration). At most, NYS baldly asserts that energy conservation will have the effect of "greatly enhancing the potential benefits and substantially reducing the perceived adverse impacts of the no-action alternative.",249 NYS also suggests that a "proper" no-action alternative would consider a "broader range of combinations," such as the two additional "combination" scenarios that NYS suggests in its contention.2 50 Finally, NYS avers that 25 these two scenarios are. "realistic and environmentally preferable to operating IP2 and IP3."' 1 None of these assertions, however, amounts to a genuine material dispute with respect to the adequacy of the DSEIS, particularly when viewed in light of the controlling NEPA principles discussed inSection IV.C.4, supra. The NRC is required to assess the proposed action against the no-action alternative and a set of reasonable alternatives. The no-action alternative (here, license 247 10 C.F.R. § 51.95(c)(4) (emphasis added).

248 June 1996 Final Rule, 61 Fed. Reg. at 28,467 (emphasis added).

249 NYS DSEIS Contentions at 27.

21o Id. at 33.

251 Id.

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renewal denial) is a discrete alternative unto itself-it is not a catch-all into which NYS may try to force-fit consideration of a "broader range" of energy alternatives.

Furthermore, NEPA's rule of reason does not dictate "a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered, or which have substantially similar consequences." 252 "Thus, an agency's consideration of alternatives is sufficient if it considers an appropriate range of alternatives, even if it does not consider every available alternative."2 53 Nor does NEPA impose any obligation "to select the most environmentally benign alternative.' 2 54 For the reasons above, NYS-33 fails to controvert the DSEIS in any manner material to the outcome of the NRC Staff's environmental review. Accordingly, the contention fails to raise a genuine material dispute, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

D. New Contention NYS-34 Fails to Meet the Timeliness and Admissibility Requirements of 10 C.F.R. § 2.309 and Must be Dismissed New Contention NYS-34 states:

THE DSEIS DID NOT TAKE INTO ACCOUNT SIGNIFICANT NEW INFORMATION REGARDING THE POTENTIAL IMPACTS TO OFF-SITE LAND USE FROM LONG-TERM OR INDEFINITE STORAGE OF HIGH LEVEL NUCLEAR WASTE ON THE INDIAN POINT SITE IN VIOLATION OF NEPA AND 10 C.F.R. §§ 51.53(c)(3)(iv), 51.71(a) AND (d), AND 51.95, 10 C.F.R.

PART 51, SUBPART A, APPENDIX B; AND 40 C.F.R. § 1502.9.255 In support, NYS cites to two proposed agency actions addressing issues related-to spent nuclear fuel storage and disposal, both of which werepublished in the FederalRegister on October 9, 2008. (collectively,* referred to as "Proposed Waste Confidence Updates"). The first pertains to a 252 Headwaters,914 F 2d at 1181 (citing N. PlainsRes. Council v. Lujan, 874 F.2d 661, 666 (9th Cir. 1989) (finding that, while the Bureau of Land Management did not consider some of the specific timber management proposals advanced by the plaintiff, "it reasonably concluded that these proposals were similar to alternatives actually considered, infeasible, or incompatible with the management objectives for the region").

253 Id.

254 Hydro Res., CLI-01-4, 53 NRC at 55 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. at 350).

2'5 NYS DSEIS Contentions at 37.

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proposed revision updating the NRC's Waste Confidence Decision.2 56 The second proposes to revise the generic determination regarding the environmental impacts of spent fuel storage, which is currently codified in 10 C.F.R. § 51.23.257 NYS readily acknowledges that Licensing Boards in numerous other license renewal proceedings have repeatedly rejected challenges to spent fuel storage impacts based on the Waste Confidence Rule. Nonetheless, NYS boldly attempts to bypass this governing precedent by erroneously claiming that the NRC has now "abandoned" the Waste Confidence Rule, "removed the basis" for the Rule, and not "legally replace[d] [the findings in 10 C.F.R. § 51.23] with any new findings."2 58 1 In NYS's view, the Proposed Waste Confidence Update constitutes new and significant 259 information that requires consideration of spent fuel storage impacts for an "indefinite period."

NYS also takes the position that the NRC's finding of"no significant environmental impact" from continued onsite storage of spent fuel relates only to radiation-related impacts and excludes property value impacts.260 In support of NYS-34, NYS cites to the New Sheppard Declaration, which 26 incorporates the New Sheppard Report. 1 As demonstrated below, NYS-34 fails to meet the NRC's late-filed contention criteria set forth in 10 C.F.R. § 2.309(f)(2) or (c), or the contention admissibility standards contained in 10 C.F.R. § 2.309(f)(1).

256 Proposed Waste Confidence Decision Update, 73 Fed. Reg. 59,551.

  • 257 Spent Fuel Temporary Storage, 73 Fed. Reg. 59,547.

258 NYS DSEIS Contentions at 40-42 (citing Entergy Nuclear Operations,Inc. (Indian Point Units 2 & 3), Docket Nos.

50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1, Memorandum' and Order (Dec. 18, 2008); Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station),

.Docket No. 50-271-LR; ASLBP No. 06-849-03-LR; LBP-06-20, Memorandum and Order (Sept. 22, 2006); Entergy

  • Nuclear Generation Company andEntergy Nuclear Operations,Inc. (Pilgrim Nuclear Power Station), Docket No.

50 293-LR; ASLBP No. 06-848-02-LR; LBP-06-23, Memorandum and Order (Oct. 16, 2006)).

259 NYS DSEIS Contentions at 40. See also id. at 39, 42.

260 Id. at 38-39.

261 Id. at 42-43. See New Sheppard Declaration and New Sheppard Report.

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1. New Contention NYS-34 Does Not Meet the Timeliness Standards Set Forth in 10 C.F.R. § 2.309(0(2) and (c)

Contrary to 10 C.F.R. § 2.309(f)(2) and the Board's explicit guidance, NYS points to no data or conclusions in the DSEIS that differ significantly from the information presented in the ER. In a failed attempt to meet this threshold requirement, NYS tries to link NYS-34 to the DSEIS by claiming that the NRC Staff failed to consider the Proposed Waste Confidence Updates in its discussion of "new and significant information."262 But the DSEIS and the ER contain precisely the same conclusion regarding the existence of "new and significant information." 263 Accordingly, NYS-34 fails to comply with Section 2.309(0(2) and the Board's Prehearing Conference Order and thus must be rejected.

Although NYS is permitted, with leave of the Board, to file new contentions based on recent developments other than the Staffs issuance of the DSEIS, NYS-34 fails to meet the mandatory requirements for such new contentions in 10 C.F.R. § 2.309(f)(2)(i)-(iii). To satisfy these requirements, NYS must demonstrate that the information upon which it relies was "not previously available" and is "materially different than previously available information," and "has been submitted in a timely fashion based on the availability of the subsequent information.",26 4 Even assuming that these proposals provided a basis for a new contention, which they do not, the "trigger point" for filing such a contention was. the NRC's October 9, 2008 publication of the Proposed Waste Confidence Updates. 265 Thus, the information on which NYS relies as the basis for NYS-34 became 262 NYS DSEIS Contentions at 40-41 (quoting DSEIS at 6.1).

263 See ER at 5-2 to 5-6.

264 10 C.F.R. § 2.309(f)(2)(i)-(iii).

265 See PrivateFuel Storage, LBP-00-14, 51 NRC at 309-10 & 309 n.2 (noting that, even if a GEIS addendum rulemaking were an appropriate trigger to file a new contention, the trigger date wouldbe the publication of the proposed rule).

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available more thanfive months ago.266 Clearly, NYS-34, which NYS filed on February 27, 2008, 67 was not "submitted in a timely fashion," as required by Section 2.309(f)(2)(iii).2 Further, the information contained in the NRC's October 9, 2008 publication of the Proposed Waste Confidence Updates upon which NYS-34 is based, is not materially different than information previously available. Even under the proposed changes to the Waste Confidence Rule, the Commission's conclusion that spent fuel can be stored "without significant environmental impacts beyond the licensed life for operation (which may include the term of a revised or renewed license)"

remains unchanged.2 68 Therefore, NYS's statement that "the NRC's former policy did not involve long-term storage on the reactor site" is a gross misinterpretation of the Commission's current and proposed rules. 269 The "materiality" of this information is further discussed below in the context of the contention admissibility requirements.

Because NYS has not satisfied the criteria in 10 C.F.R. § 2.309(f)(2) for a timely new or amended contention, it must satisfy the test set forth in 10 C.F.R. § 2.309(c)(1). NYS, however, has not addressed any of the Section 2.309(c)(1) criteria. This omission alone renders the contention fatally defective, in that NYS must affirmatively demonstrate that the Section 2.309(c)(1) factors weigh in favor of admitting New Contention NYS-34.27° As demonstrated above, NYS has not met its burden under 10 C.F.R. § 2.309(f)(2) or (c).

Accordingly, New Contention NYS-34 must be rejected.

As NYS previously recognized, new and amended contentions based on newly available information are typically considered timely if filed within 30 days. See Motion by New York State and Riverkeeper for Extension of Time to File Timely Contentions Related to Draft Supplemental Environmental Impact Statement at .1 (Jan. 9, 2009).

267 To the extent that NYS purports to rely on recent press articles regarding reduced funding for the Yucca Mountain project (see NYS DSEIS Contentions at 41 n.10), that information similarly fails to meet the late-filingcriteria in 10 C.F.R. § 2.309(t)(2)(i)-(iii). Yucca Mountain funding-related challenges are not a new development-they have been well-publicized for the last decade.

268 Spent Fuel Temporary Storage, 73 Fed. Reg. at 59,551 (emphasis added).

269 NYS DSEIS Contentions at 270 See Calvert Cliffs, CLI-98-25, 48 NRC at 347 & 347 n.9. Even if the Board were to consider this balancing, the most important factor, "good cause" weighs against admission of NYS-34 for the same reasons it fails to satisfy 10C.F.R.

§ 2.309(f)(2). See Braidwood, CLI-86-8, 23 NRC at 244; MOX, LBP-07-14, 66 NRC at 210 n.95.

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2. New Contention NYS-34 Does Not Meet the Contention Admissibility Standards Set Forth in 10 C.F.R. § 2.309(f)(1)

Even if the Board found that NYS-34 satisfied the Commission's standards for new and amended contentions set forth in 10 C.F.R. § 2.309(f)(2) and (c), this. newly-proposed contention should nonetheless be rejected. As demonstrated below, it fails to meet the contention admissibility standards contained in 10 C.F.R. § 2.309(f)(1).

a. NYS-34 Challenges the NRC's Generic FindingsCodified in the Waste Confidence Rule, Contraryto 10 C.F.R. § 2.309(f)(1)(iii) and(iv)

NYS-34 contests the purported failure of the DSEIS to consider new and significant information regarding the environmental impacts on offsiie land use resulting from long-term or "indefinite" storage of spent fuel at the IPEC site.27 1 This constitutes a direct challenge to a current NRC regulation, and is inadmissible. The NRC's Waste Confidence Rule in 10 C.F.R. § 51.23(a) states:

The Commission has made a generic determination that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor at its spent fuel storage basin or at either onsite or offsite independent spent fuel storage installations.

Further, the Commission believes there is reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-first century, and sufficient repository capacity will be available within 30 years beyond the licensed life for operation of any reactor to dispose of the commercial high-level waste and spent fuel originating in such reactor and generated up to that time.2 72 Based on this generic finding, 10 C.F.R. § 51.23(b) states:

[N]o discussion of any environmental impact of spent fuel storage in reactor facility storage pools or independent spent fuel storage installations (ISFSI) for the period following the term of the reactor operating license . . . is required in any . . . environmental impact 271 NYS DSEIS Contentions at 37.

272 10 C.F.R. § 51.23(a) (emphasis added).

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statement . prepared in connectiOn with the issuance . . . of an operating license for a nuclear power reactor under parts 50 and 54.73 As stated above, the Commission has unequivocally stated that "no discussion of any environmental impacts" from spent fuel storage "for the period following the term of the reactor operating license" is required in "any" environmental impact statement. 274 Despite the plain language of the current and still-controllingWaste Confidence Rule, NYS claims that the NRC Staff should have considered the environmental impacts on offsite land use after the period of extended operation in the DSEIS.27 5 It is well established that, absent a waiver, "no rule or regulation of the Commission ... is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding.", 276 Here, NYS makes no attempt satisfy the requirements for waiver. NYS thus fails to demonstrate that NYS-34 is within the scope of this proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii), or that it is material to the findings that the NRC must make to support issuance of the renewed operating licenses, contrary to 10 C.F.R. § 2.309(f)(l)(iv).

In an apparent attempt to circumvent this legal prohibition, NYS asserts that the Waste Confidence Rule (and the proposed update thereto) do not preclude this new contention because this provision purportedly concerns only the "environmental impact caused by radiation and did not consider the impact on off-site land values." 277 But this argument ignores the unqualified language in the Waste Confidence Rule that requires "no discussion of any environmental impacts" from the spent fuel storage because spent fuel can be safely managed "without significantenvironmental 273 10 C.F.R. § 51.23(b) (emphasis added).

274 Id. § 51.23(b) (emphasis added).

175 NYS DSEIS Contentions at 37. NYS recognized the applicability of the Waste Confidence Rule in these circumstances in its Reply to Entergy's arguments regarding the initial admission of NYS 17. "NYS Reply at 108

("The Waste, Confidence rule addresses the presence of spent fuel at a nuclear facility after the license term.").

276 10 CF.R. § 2.335(a).

277 NYS DSEIS Contentions at 39.

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impacts."27 8 In order to reach this obviously contrived interpretation, NYS would have the Board rewrite this provision to provide that "no discussion of any environmental impactsfrom radiation" is required because "spent fuel can be safely managed without significant environmental impacts except impacts possibly relatedto offsite land values." Surely, the Commission did not intend such an illogical parsing of the Waste Confidence Rule, and NYS provides no support to indicate otherwise.

If NYS seeks to change the current rule, then its remedy is to file a petition for rulemaking or to submit comments on the proposed new rule.2 79 It cannot seek to effect such a change in this proceeding.28 ° Moreover, the regulatory history of the Waste Confidence Rule refutes NYS's admittedly self-serving interpretation. During the original Waste. Confidence proceeding, the Commission reopened the initial comment period and specifically requested comments on its determination that there are no significant non-radiological consequences that could adversely affect the environment if spent fuel is stored beyond the expiration of operating licenses. 28. In adopting the final rule in 1984, the Commission found that there are no significant additional non-radiologicalimpacts which could adversely affect the environment if spent fuel is stored beyond the expiration of operating licenses for reactors. 282 When the Commission revised the original Waste Confidence Rule in 1990 to, among other things, explicitly account for the spent fuel storage after the expiration of a renewed operating 278 10 C.F;R. § 51.23(a), (b) (emphasis added). As discussed above with respect to spent fuel storage impacts during operation, even if socioeconomic impacts were not covered by the Waste Confidence Rule, because the Commission determined generically that no significant impacts result to the physical environment after cessations of operations, NEPA does not require consideration of socioeconomic impacts that might be related to spent fuel storage.

279 See 10 C.F.R. §§ 2.802, 2.805.

280 See id. § 2.335(a).

281 see Proposed Rule, Reopening of Comment Period on Limited Proposed Rule, 48 Fed. Reg. 50,746, 50,746 (Nov. 3, 1983) (requesting comments on the significance of non-radiological impacts because "[r]adiological consequences Were addressed more specifically in other findings").

282 Final Waste Confidence Decision, 49 Fed. Reg. 34,65*8, 34,665 (Aug. 31, 1984). See also id. at 34,665 (noting that "the Commission has no reason to reassess its prior determination that extended storage of spent fuel Will present no significant non-radiological consequences which could adversely affect the environment").

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license, it reaffirmed its earlier findings regarding non-radiological impacts. 283 Accordingly, NYS's artificial distinction between "radiological" and "non-radiological" impacts must be rejected as an unauthorized challenge to the Waste Confidence Rule, contrary to 10 C.F.R. §§ 2.309(f)(1)(iii) and 2.335(a).

b. NYS-34 Attempts to Litigate Subjects of the Ongoing Waste Confidence Rulemaking, Contraryto 10 C.F.R. § 2.309(1)(1)(iii)

NYS-34 also must be rejected because it relies extensively on information presented in the ProposedWaste Confidence Updates. Commission precedent clearly dictates that the subject of an ongoing rulemaking is outside the scope of an adjudication and, thus, does not provide thebasis for a litigable contention. 284 If NYS disagrees with the scope of the proposed rule, then its remedy is to submit comments-something it has already done.285 Should NYS object to the Commission's resolution of its comments, then it may seek appropriate relief outside of this adjudicatory proceeding.2 8 6 But NYS may not seek adjudication of issues being addressed by the Commission as part of the ongoing Waste Confidence rulemaking in this proceeding.2 8 7 Therefore, consistent with agency precedent and the prior decisions of this Board, NYS-34 must be rejected because it raises a 288 matter that is the subject of an ongoing rulemaking, contrary to 10 C.F.R.§ 2.309(f)(1)(iii).

283 See Review and Final Revision of Waste Confidence Decision, 55 Fed. Reg. 38,474, 38,511-12 (Sept. 18, 1990).

284 See Oconee, CLI-99-11, 49 NRC at; (quoting Douglas PointNuclear, ALAB-218, 8 AEC at 85); see also Progress Energy Carolinas,Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), LBP-08-21, slip op. at 40 n.36 (Oct. 30, 2008).

285 Comments Submitted by the Offices of the Attorneys General of the States of New.York and Vermont and the Commonwealth of Massachusetts Concerning the Nuclear Regulatory Commission's Proposed Waste Confidence Decision Update (Feb. 6, 2009); Comments Submitted by the Offices of the Attorneys General of the States of New York and Vermont and the Commonwealth of Massachusetts Concerning Consideration of Environmental Impacts of Temporary Storage of Spent Fuel After Cessation of Reactor Operation (Feb. 6, 2009), both availableat ADAMS Accession No. ML090410559.

286 See, e.g., 10 C.F.R. §§ 2.206,2.802.

287 See Minn. v. NRC, 602 F.2d 412, 419 (D.C. Cir. 1979) (upholding denial of requests for adjudicatory hearings because NRC was addressing Waste Confidence concerns in an ongoing rulemaking).

288 NYS's reliance on a proposed rule is similar to Riverkeeper's earlier attempt in this proceeding to use a pending rulemaking petition to support the admission of a proposed contention challenging findings in Table B-1I of Appendix B to Subpart A of 10 C.F.R. Part 51. The Board correctly rejected Riverkeeper's argument and explained:

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c. NYS-34 Relies On UnsupportedAssumptions, and Misinterpretationsof the Currentand ProposedChanges to the Waste Confidence Rule, Contraryto 10 C.F.R. § 2.309(/)(1)(v)

In addition to its previously-discussed deficiencies, NYS-34 is premised on several faulty assumptions and a patent misunderstanding of both the Waste Confidence Rule and the proposed changes to the rule. First, NYS assumes that, absent license renewal, under the current Waste Confidence Rule, IPEC must be decommissioned and all spent fuel must removed by 2025 (i.e.,

within 10 years of expiration of the original JPEC operating licenses). 289 But the current Waste Confidence Rule does not state that all spent fuel will be removed by 2025, as NYS asserts. Rather, the Rule states only that the Commission believes that a repository will be available within that timeframe.2 9 *Furthermore, the Waste Confidence Rule says nothing about the timeframe in which IPEC would be decommissioned or in which spent fuel would actually be removed from the site.

Furthermore, as noted above, NRC regulations require decommissioning to be complete within 60 years of permanent cessation of operations, not the .10 years assumed in NYS-34. 29 1 Accordingly, NYS's assumption that IPEC would be completely decommissioned and all spent fuel removed by 2025 is simply an unsupported wish.

Next, NYS incorrectly asserts' that the Commission's proposed update means that the NRC has now "abandoned" and "removed the basis" for the Waste Confidence Rule.292 As a preliminary matter, the proposed update does nothing to invalidate the findings of the current Waste Confidence In the event that the petitions are denied, the current rule will remain in force, and any attack on the validity of that rule will be impermissible in this proceeding as a matter of law. In the event that the Commission changes the rule, petitioners Will have the opportunity to file new contentions at that time.

Board Order at 181 (July 31, 2008).

289 New Sheppard Report at 2.

290 10 C.F.R. § 51.23(a). The actual dates on which the U.S. Government will begin to remove spent nuclear from any utility's facility, including IPEC, as well as the rate of removal, will depend on many factors that are beyond the scope of this proceeding. Those factors do not include whether or not IP2 and IP3 are relicensed.

291 10 C.F.R. § 50.82(a)(3).

292- NYS DSEIS Contentions at 40, 42, 63

Rule. 293 Further, the Commission did not propose to "abandon" or "remove the basis" for anything.

As the Commission explained, the proposed update merely "restates and supplements the bases for the earlier findings.'"294 Nevertheless, NYS inexplicably ignores this and similar statements by the Commission, and claims that the DSEIS "reflects a total disregard of the significant new information reflected by the Commission's October 9, 2008 finding." 295 Thus, despite NYS's assertions to the contrary, the Commission has not proposed to eliminate the Waste Confidence Rule.

Finally, NYS claims that the Proposed Waste Confidence Updates mean that spent fuel will remain onsite for at least 60 years following expiration of the renewed operation licenses, if not "indefinitely," because the Commission is "no longer confident that there would be sufficient high level waste repositories available within 30 years after cessation of operation of nuclear plants for the wastes generated during license renewal."296 Similarly, based on information provided to Dr. Sheppard, apparently by NYS counsel, the New Sheppard Report also assumes that spent fuel will be stored onsite "for at least a period of 60 years" and "perhaps indefinitely. 297 These claims and assertions, however, are unsupported by the regulatory record on this issue.

Although the proposed update no longer contains a particular date for the availability of a repository, the Commission clearly explained that "[d]ispensing with the 2025 date [for repository 298 availability] does not signify a lack of confidence that a repository will be. available by that date."'

Rather, the NRC is proposing to remove the 2025 date to eliminate "even an appearance of 293 Proposed Waste Confidence Decision Update, 73 Fed. Reg. at 59,553 (stating that "the update restates and supplements the bases for the earlier findings").

294 Proposed Waste Confidence Decision Update, 73 Fed. Reg. at 59,553.

295 NYS DSEIS Contentions at 41.

296 Id. at 38-40, 42.

297 New Sheppard Report at 1, 2.

298 Temporary Spent Fuel Storage, 73 Fed. Reg. at 59,549 (emphasis added).

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prejudgment in a licensing proceeding for Yucca Mountain."'29 9 Importantly, the Commission also explained that it "did not define a period when a repository will be needed for.. . environmental reasons" but was merely stating "its view of when repository capacity may be reasonably expected to be available.'" 30 0 The plain language of the Proposed Waste Confidence Updates belies the State's assertion that the Commission envisions "indefinite" onsite storage of spent fuel; Therein, the Commission stated that it "supports timely disposal of spent fuel and high-level waste in a geologic repository, and by this decision does not intend to support storage of spentfuel for an indefinitely long period.'"30 1 Thus, the Proposed Waste Confidence Updates provide no support for NYS's claims regarding repository availability or the need to consider "indefinite" spent fuel storage.

Additionally, NYS and Dr. Sheppard appear to argue that the potential storage of spent fuel beyond 2025 is the sole result of IPEC license renewal. For example, NYS states that storage of spent fuel beyond 2025, or "indefinitely" would occur "only if IP is allowed to produce more spent fuel than it is currently licensed to produce---i.e., only if [IP2 and IP3] are allowed to operate beyond their current license terms." 30 2 As noted above, the premise that all spent fuel will be removed from IPEC--or any nuclear power plant for that matter-by 2025 is not supported in any way by fact.

Therefore, NYS's assertion that "this contention does not depend upon an environmental impact that is primarily caused by spent fuel" is wholly unsupportable.

Accordingly, because these erroneous factual assumptions are at the heart ofNYS-34, NYS' has failed to provide adequate support for its claim that an evaluation of long-term or indefinite spent 299 Id. See also id. ("The NRC has no reason at this point to conclude that the availability of a repository by 2025 is not possible and it would be premature to revise the date for that reason."),

s Id. (emphasis added).

.301 Proposed Waste Confidence Decision Update, 73 Fed. Reg. at 59,567 (emphasis added).

302 NYS DSEIS Contentions at 42-43.

65

fuel storage is mandated by the Proposed Waste Confidence Updates, contrary to the requirements in 10 C.F.R. § 2.309(f)(1)(v).3 °3 V. CONCLUSION For the foregoing reasons, the Board should (1) reject NYS-12A and NYS-16A as unnecessary amendments to original NYS- 12 and NYS- 16; (2) clarify that NYS- 16 does not cover issues related to emergency planning; (3) dismiss NYS 9 and NYS-17 as moot; and (4) reject NYS 17-A, NYS-33, and NYS-34 for failing to meet the timeliness and admissibility requirements set forth in 10 C.F.R. § 2.309.

R eily submitted, Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1III Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.o'neill@morganlewis.com William C. Dennis, Esq.

440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wdennis@entergy.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 24th day of March 2009 303 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 90, rev'dinparton other grounds, CLI-96-7, 43 NRC 235 (1996) (noting that anysupporting material provided by a petitioner, including those portions thereof not relied upon, is subject to Board scrutiny, "both for what it does and does not show").

66

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) )

) March 24, 2009 CERTIFICATE OF SERVICE I hereby certify that copies of the "Answer of Entergy Nuclear Operations, Inc. Opposing New and Amended EnvironmentalC6ntentions of New York State," dated March 24, 2009, were served this 24th day of March, 2009 upon the persons, listed below, by first class mail and by e-mail as shown below, Office of Commission Appellate Adjudication Administrative Judge U.S. Nuclear Regulatory Commission, Lawrence G. McDade, Chair Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamaillnrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Iminl (nrc.gov)

Administrative Judge Administrative Judge Richard E. Wardwell Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23. 190 Cedar Lane E.

U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail; kdl2(@nrc.gov)

(E-mail: rew(o),nrc.goV)

Office of the Secretary ** Zachary S. Kahn, Law Clerk Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket(ýnrc.gov) Washington, DC 2055570001 (E-mail: zxkl @nrc.gov)

Sherwin E. Turk, Esq. Justin D. Pruyne, Esq.

Beth N. Mizuno, Esq. Assistant County Attorney, Litigation Bureau David E. Roth, Esq, of Counsel to Charlene M. Indelicato, Esq.

Brian G. Harris, Esq. Westchester County Attorney Andrea Z. Jones, Esq. 148 Martine Avenue, 6th Floor Office of the General Counsel White Plains, NY 10601 Mail Stop: O-15 D21 (E-mail: idp3( westchestergov.com)

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set6nrc.gov)

(E-mail: bnm I Anrc.gov)

(E-mail: david.roth(Znrc.gov)

(E-mail: brian.harris(nrc.gov)

(E-mail: andrea.jones(nrc.gov)

Manna Jo Greene Diane Curran, Esq.

Environmental Director Harmon, Curran, Spielberg, & Eisenberg, Hudson River Sloop Clearwater, Inc. L.L.P.

112 Little Market Street 1726 M Street N.W., Suite 600 Poughkeepsie, NY 12601 Washington, D.C. 20036 (E-mail: mannajo(clearwater.org) (E-mail: dcurran(harmoncurran.com)

Stephen C. Filler, Board Member Thomas F. Wood, Esq.

Hudson River Sloop Clearwater, Inc. Daniel Riesel, Esq.

303 South Broadway, Suite 222 Ms. Jessica Steinberg, J.D.

Tarrytown, NY 10591 Sive, Paget & Riesel, P.C.

(E-mail: sfiller(&nylawline.com) 460 Park Avenue New York, NY 10022 (E-mail: driesel(d)sprlaw.com)

(E-mail: jsteinberg~a(2sprlaw.com)

Phillip Musegaas, Esq. John Louis Parker, Esq.

Victor M. Tafur, Esq. Regional Attorney

..Deborah Brancato, Esq.

Office of General Counsel, Region 3 Riverkeeper, Inc. NYS Dept. of Environmental Conservation 828 South Broadway 21 S. Putt Comers Road Tarrytown, NY 10591 New Paltz, New York 12561-1620 (E-mail: phillip(riverkeeper~org) (E-mail: jilparker(gw.dec.state.ny.us)

(E-mail: vtafur0_)riverkeeper.org)

(E-mail: dbrancato(iriverkeeper.org)

Robert D. Snook, Esq. Michael J. Delaney, VTP. - Energy Assistant Attorney General New York City Economic Development Corp.

Office of the Attorney General 110 William Street State of Connecticut New York, NY. 10038 55 Elm Street (E-mail: mdelaneyv(a-nycedc.com)

P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert.Snookypo.state.ct.us) 2

Andrew M. Cuomo, Esq. Daniel E. O'Neill, Mayor Attorney General of the State of New York James Siermarco, M.S.

John J. Sipos, Esq. Liaison to Indian Point Charlie Donaldson Esq. Village of Buchanan Assistants Attorney General Municipal Building The Capitol 236 Tate Avenue Albany, NY 12224-0341 Buchanan, NY 10511-1298 (E-mail: john.sipos(oag.state.nv.us) (E-mail: vob(bestweb.net)

Joan Leary Matthews, Esq. Mylan L. Denerstein, Esq.

Senior Attorney for Special. Projects :Executive Deputy Attorney General, Office of the General Counsel Social Justice New York State Department of Office of the Attorney General Environmental Conservation of the State of New York 625 Broadway, 14th Floor 120 Broadway, 2 5 th Floor Albany, NY 12207 New York, New York 10271 (E-mail: ilmattheCgw.dec.state.nv.us) (E-mail: Mvlan.Denerstein(,oag.state.nv.us)'

Janice A. Dean Office of the Attorney General of the State of New York Assistant Attorney General 120 Broadway,. 26th Floor New York, New York 10271 (E-mail: Janice.Dean(aoag.state.ny.us)

    • Original and 2 copies provided to the Office of the Secretary.

Martin J. O'Neill, Esq.

Counsel for Entergy Nuclear Operations, Inc.

DB1/62732119 5

3

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