ML093080129

Hudson River Sloop Clearwater, Inc.'S Motion for Leave to Add a New Contention Based Upon New Information

ML093080129
Person / Time
Site:	Indian Point
Issue date:	10/26/2009
From:	Gould R, Greene M Hudson River Sloop Clearwater
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-295
Download: ML093080129 (52)

Text

DOCKETED R~r /-d A-'- USNRC October 27, 2009 (8:30am)

UNITED STATES OF AMERICA OFFICE OF SECRETARY NUCLEAR REGULATORY COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF 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) )

October 26, 2009 HUDSON RIVER SLOOP CLEARWATER. INC.'S MOTION FOR LEAVE TO ADD A NEW CONTENTION BASED UPON NEW INFORMATION The designers of commercial nuclear reactor sites, like Indian Point, assumed that spent fuel, a highly radioactive form of nuclear waste, would only remain on-site for approximately 5 years, to allow the radioactivity in the waste to decay sufficiently to allow it to be transported off-site to another facility for reprocessing or disposal.'

However, reprocessing of this waste in the United States never occurred in any appreciable quantity and ceased altogether in the 1970s. The replacement for reprocessing was supposed to be a the long term repository for nuclear waste, but that has been repeatedly delayed. Most recently, the administration has taken actions that make it unlikely that the planned repository at Yucca Mountain will ever open. Instead, the Department of Energy ("DOE") intends to convene a panel of experts to review all long-term options. By default, in the absence of a central disposal facility, waste has accumulated at reactor sites like Indian Point, turning those sites into nuclear waste dumps in addition to nuclear waste producers. The recent votes of the Commissioners 1Out of an overabundance of caution, Clearwater has attempted to contact the NRC Staff to consult on this issue, but Clearwater had to file before the Staff responded because it did not want to miss any filing deadlines.

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make it clear that waste will-remain at reactor sites for the foreseeable future and it is impossible to predict when any waste might be removed. Instead, the country still continues to grapple with how to dispose of nuclear waste, which we have failed to resolve for the last half century. Meanwhile any waste generated during any period of extended operation would continue to accumulate at Indian Point and there are no identified acceptable disposal alternatives.

I New Information Available On September 24, 2009, the Commission decided not to amend the Waste Confidence Rule to find generically that a centralized waste disposal facility for spent fuel will be available 50-60 years after the current licenses for nuclear power stations expire because it did not have an adequate basis for making that prediction. Specifically, the current waste confidence rule states inter alia that a central waste repository will open within 30 years after power generation at reactors ceases. The Staff proposed amending the waste confidence rule to lengthen the time at which the off-site disposal will become available 50 to 60 years after power generation ceases:

51.23 Temporary storage of spent fuel after cessation of reactor operation - generic determination of no significant environmental impact.

(a) 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 60 years beyond the licensed life for operation (which may include the term of a revised or renewed

.license) of that reactor in a combination of storage in its spent fuel storage basin and at either onsite or offsite independent spent fuel storage installations. Further, the Commission believes there is reasonable assurance that sufficient mined geologic repository capacity will be available within 50-60 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of any reactor to dispose of the 2

commercial high-level waste and spent fuel originating in such reactor and generated up to that time.2 However, two of the three current Commissioners refused to vote to enact this new rule, because of the current uncertainty about the nation's approach to long term spent fuel disposal created by the administrations ongoing re-examination of how to, move forward on this issue. See Votes from Commissioners Klein and Svinicki, attached as Exhibits 2 and 3, respectively. They voted against amending the waste confidence rule because they are no longer able to predict when a geological waste repository would commence accepting the spent fuel waste currently being stored on-site. Id-Commissioner Klein stated that the Commission must "take into account how the Administration's recent announcements of changes in the Nation's high-level waste (HLW) repository program." Exhibit 2 at 1. More baldly, Commissioner Svinicki stated "plainly put, this is a particularly difficult time to be in the prediction business," because the administration is in the process of reassessing long term spent fuel disposal options.

Exhibit 3 ("Svinicki Decision") at 1-2. In a nutshell, the Commission does not currently have confidence that a central waste repository for spent fuel will be available within 50-60 years.

Commissioner Svinicki also made it clear that this is significant because "waste confidence is at heart an exercise in compliance with NEPA_" Id at 2. Furthermore, indefinite onsite storage raises a "conundrum created in trying to envelope a National Environmental Policy Act (NEPA)-worthy environmental analysis of the impacts of the storage of spent nuclear fuel for an indefinite period [onsite]." Id Although theýstaff 2 http://www.nrc.gov/reading-rnr/doc-collections/comlnissionrsecys/2009/secy2009-0090/enclosure-2.pdf

could do the required NEPA analysis associated with such storage, that analysis would be challenging and would take years to conduct. Id This shows that the potential impacts of long term onsite storage are significant. Finally, although the Commissioners cannot say when offsite disposal facilities for spent fuel will be available, Commissioner Svinicki remains confident that such facilities will eventually be created. Id. at 3.

II Nuclear Waste Management Has Been Fraught With Difficultly and Delay A. History of U.S. Nuclear Waste Management Since the 1950's the disposal of our country's nuclear waste is replete with false starts, delays, and substantial problems that has left us at a loss for how to safely dispose of the waste generated by the use of nuclear power. Gordon Thompson, Environmental Impacts of StoringSNF & HLWfrom CommercialNuclearReactors: A Critique of N-RC's Waste Confidence Dectsion & EnvironmentalImpact Determination(February 2009)("Environmental Impacts"), See generally Jason Hardin, Tipping the Scales: Why Congress and the PresidentShould Create a FederalInterim Storage Facilityfor High-Level Waste, 19 J. Land Resources & Envtl. L. 293 ("Tipping the Scales").

At the time the first commercial reactor sites commenced operation it was assumed that the fuel would be moved from the sites to be reprocessed. Facilities were not designed to store the full amount of spent fuel that the reactor would generate during its 40-year operational life, let alone storing waste for a 20-year license renewal and decommissioning process. Instead, they were designed to temporarily store waste in water-filled pools adjacent to reactors. The pools were to hold the spent fuel assembly in low-density open racks until it would be taken for reprocessing. EnvironmentalImpacts at 11 citing NRC. 1979- U.S. NRC GEIS on Handling and Storage of Spent Light Water 4

Power Reactor Fuel, NUREG-0575. After the spent fuel cooled on the racks in the pool, it was to be removed from the reactor site and taken to a reprocessing facility.

Reprocessing however proved disastrous and people feared that reprocessing would lead to nuclear proliferation. From 1966-1972 spent fuel was being recycled at a reprocessing facility near West Valley, New Yorlc During its time of operation the facility reprocessed only 640 metric tons of spent fuel. The plant met with regulatory problems that required expensive modifications and in 1975 the facility stopped accepting spent fuel. Within 5 years, the company operating the facility opted out of its lease for the site leaving the state of New York was left with waste that was not reprocessed.

In 1977, President Carter banned reprocessing because of fears that it would lead to nuclear proliferation and as demonstrated by the West Valley fiasco, that reprocessing was not economical. Id at 11. When reprocessing was abandoned spent fuel accumulated in the pools. Id In 1982 it became clear to Congress that the spent fuel pools were not designed as indefinite storage facilities and the efforts to devise a permanent solution to nuclear waste disposal had not been adequate. Tipping the Scales at 295-96.

In response, Congress enacted the Nuclear Waste Policy Act of 1982 ("NWPA").

NWPA set forth four objectives 3 : 1) to develop repositories to protect the public and the environment from spent fuel and HLW; 2) to establish federal responsibility and define federal policy for the entire project; 3) to define the relationship between the federal Originally Congress directed the creation of two permanent repositories, however as time passed without the development of even a single repository congress pushed the DOE in the direction of Yucca Mountain and called for only that repository

government and the states and tribes with respect to spent fuel/HLW disposal; and 4) to establish a Nuclear Waste Fund, financed by the nuclear utilities to pay for the waste disposal. 42. U.S. C. § 1013 1(b)(2000). Under the NWPA, DOE was also required to site a permanent repository and to design acceptance of spent fuel and HLW by January 31, 1998 and to enter into contracts with the utilities. NWPA required the utilities to enter into a contract with the DOE to obtain a license to operate.

In 1983, DOE published a plan for a firm schedule to accept the waste beginning no later than January 31, 1998. Pacific Gas & Electric Co. V.U.S., 536 F.3d 1283, 1286, 2008 U.S. App. LEXIS 16637 (Fed. Cir. 2008). The DOE plan also outlined a contingency plan because it was not optimistic the repository would be ready by the deadline set by Congress. The contingency plan called for the DOE to request that Congress approve a monitored retrievable storage (MRS) facility as an interim solution to remove the Waste-from the reactor site. Id. at 1286.

In 1985, the DOE issued a follow up plan providing for 2 schedules, one with the MRS facility and one without. In 1987, the DOE issued another new plan informing Congress that opening a permanent repository by 1998 was no longer realistic. Congress amended the NWPA by passing the Nuclear Waste Policy Amendments Act of 1987

("1987 Amendments") to direct DOE to develop the single repository at Yucca Mountain and cease activities at other sites. Id at 1287. The 1987 Amendments also precluded the MRS facility construction until the NRC authorized a permanent storage repository." Id In 1991, DOE again amended its plan for storage of NSF. This plan proposed an MRS facility, but noted that part of the 1987 Amendments would need to be repealed to build the facility. Id.

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In 1995, after 12 years of analyzing the feasibility of a single permanent repository and - 6 years after the January 31, 1998 acceptance date - the DOE issued a final finding on waste acceptance issues, concluding that DOE had no statutory obligation to accept waste until a storage facility is built. Id By the late 1990's, it was clear to some in Congress that a temporary solution was needed to remove wastes from reactor sites while a permanent repository was built.

In fact, Congress introduced legislation for 4 straight years seeking to create a federal interim storage facility at Yucca Mountain to alleviate the problems caused by continued on-site storage. Tipping the Scales at 303-304. None of this legislation was enacted and no temporary waste site has been created.

In this past decade, the substantial opposition to Yucca Mountain and DOE's approach to acceptance of waste for disposal has played out in numerous lawsuits.

Bentley Mitchell, Diffusing the Problems: How Adopting a Policy to Safely Store America's Nuclear Waste May Help Combat Climate Change, 28 J. Land Resources &

Envtl. L. 375 ("Diffusing the Problems") at 386. In 2004, the D.C. Court of Appeals vacated an EPA radiation protection standard to the extent that it requires DOE to show compliance for only 10,000 years following disposal. Nuclear Energy Institute, Inc. v.

EPA, 373 F.3d 1251 (D.C. Cir. 2004). The decision of the D.C. Court of Appeals is a serious setback for the Yucca Mountain project and the plan is in "serious jeopardy."

The current options surrounding waste disposal will in all likelihood prevent a repository from being constructed any time in the near future.

In addition, industry is using the courts to return money utilities provided under

-theNuclear Waste Fund, which was established by Congress in the NWPA to pay for the 7

disposal of spent fuel. NUREG-1350 at 75. _As of Dec. 31, 2008, the fund totaled $16 billion and utilities have had success in several courts on its claims for money damages and for return of money paid due to the DOE's failure to accept nuclear waste by January 31, 2008. Maine Yankee Atomic Power Co. v. U.S., 225 F.3d 1336, 1343 (Fed. Cir.

2000). More than 50 years has passed and to date spent fuel remains stored at reactor sites and will remain there for the foreseeable future.

B. Accumulation of spent fuel at reactor sites Since reprocessing ended in 1977 and there is no DOE repository, spent fuel has been accumulating at reactor sites. On-site storage is accomplished using pools, which are designed to temporarily store low-density levels of spent fuel and in "dry cask storage."

The U.S. generates 2,000 metric tons of nuclear waste per years. As of December 31, 2002 there were 42,268 metric tons of spent fuel at reactor sites.

-last visited October 21, 2009. Since 2002, the U.S. has generated approximately 12,000 metric tons of additional spent fuel bringing the total accumulated waste at reactor sites to 54,000 metric tons of spent fuel. This is far greater than was imagined when commercial nuclear reactors were constructed.

Yucca Mountain will- hold about 77,000 metric tons. NRC Fact Sheet Yucca Mountain license review.4 The DOE office of Civilian Radioactive Waste Management estimates that byi 2035 we will have approximately 105,000 metric tons of waste. Id As 4

visited October 26, 2009.

.'last 8

such, even if Yucca Mountain were to open, it would not have sufficient capacity to take the additional waste that would be generated during any extended period of operation.

1i. The Commission Has Repeatedly Amended The Waste Confidence Rule In 1979, the NRC Commission began to assess "whether radioactive wastes can be safely stored on-site past the expiration of the existing facility licenses until offsite disposal or storage is available. 44 Fed, Reg. 61372, 61373 (October 25, 1974). After a 5 year analysis the Commission issued 5 waste confidence findings. The Commission found:

(i) reasonable assurance that safe disposal of high-level waste and spent fuel in a geologic repository is technically feasible, (ii) that repository capacity will eventually be available, (iii) that high-level waste and spent fuel will be safely managed until repository capacity is available, (iv) that spent fuel generated in any reactor can be stored safely and without significant environmental impacts for extended periods, and (v) that spent fuel storage will be available as needed.

49 Fed. Reg, 3,4658 (August 31,1984). _The timing of the repository has been repeatedly amended. In 1984, Commission found that the repository would open in 2007-2009.

EnvironmentalImpacts at 7. In 1990, the Commission extended that date to 2025. Id Most recently the Commission had proposed extending this time to 2049-2059, Id., but, as discussed above, has recently decided it no longer has sufficient information to make a new rule about when, or even if, a new repository will open. In addition, in 1984, the 9

Commission amended 10 CFR Part 51 of its regulations to provide a generic determination that for at least 30 years beyond the expiration of the reactor operating license, no significant impacts will result from the storage of spent fuel in the reactor facility pools or in dry casks.

In making the 1990 extension to this generic finding, the Commission provided that "it would consider undertaking... a reevaluation [of the availability of the repository] when the pending repository development and regulatory activities had run their course or if a significant and pertinent unexpected event occurred, raising substantial doubt that the continuing validity of the Waste Confidence findings." 64 Fed.

Reg. 68005 (December 6, 1999) (emphasis added).

In 2007, the NRC Staff was asked by the Commission to prepare a memo on waste confidence that stated that an assessment or update might consider whether the earlier 100-year confidence in on-site or off-site storage remains valid; whether fuel from new reactors warrants any possible changes to waste confidence findings; and whether the Commission's earlier expectations regarding a timeline for a permanent repository should be modified or updated. Id.

..In October 9, 2008 the NRC opened a proposal to amend-the waste confidence

,rule for public comment. The proposed rule would have lengthened the time at which the off-site disposal will become available to 50- 60 years beyond the licensed life for operation, removing the reference to the completion of a repository by the first quarter of this century. Two of the three current Commissioners refuse to endorse this change, finding that the current uncertainty about the nation's approach to long term spent fuel 10

disposal means that they cannot vote for this proposed rule at the present time. See Exhibits 1 and 2, attached. As Commissioner Sviniki noted:

Pi;aiy put. this is a bifficuh tme tpacuiarly to be in the prediction business. Tnat sacd.

however, the Court in State of Minnesota v. NRC (D.C. Cir. 1979) noted this approach and stated that "[h1t4,he breadth of the ouestions involved and ot',e factt t he+.th utimarte oeterm;an.on can never rise above 2 Predction sugges tna th e determination may be a kind of ie-isiative judgment for which ruiemaking would suffice." As the Atomic Energy Commission's first Chief of the Envcronmentai and Santary Tnzineering Branch, Mr.

Joseph Liebermar, saaeiy cautioned in 1960. however, in voicing, hsonfidence that the nucdear industry would grow "in z rational way without -eing .- hamsr,; by its own wastes': "TO]ne has tc be very careful to distinguish between aspiration, realiy,. and speculation in this field."

Thus, while the government had an aspiration to have solved this problem by now, it is apparent that reality has intervened, and that at this moment a finding about when the wastes that would be generated during any period of extended operation would leave the site would be purely speculative.

III. The Issue of Nuclear Waste Disposal Is Once More Under Review The U.S. nuclear waste disposal dilemma is now being extensively reevaluated once more by all the stakeholders. The recent change in political leadership has brought a profound change in federal policy toward Yucca Mountain. President Obama's administration has determined that Yucca Mountain is not the best option for disposing of waste and has publicly stated that it has plans to remove all funding from the continued examination of Yucca Mountain waste repository. In fact, and as of 2011 the White House will no longer provide funds in the budget for Yucca Mountain. Elaine Hiruo, Global Power Report "White House will not seek funds in 2011 budget for nuclear waste repository at Yucca Mountain," August 6, 2009. In addition, recently named Senate Majority leader Harry Reid is determined to keep waste away from Yucca Mountain and 11

his appointment will definitely hold it up. In fact, Sen. Reid has pronounced Yucca 5

mountain "dead" on numerous occasions.

Indeed even the DOE is moving us away from Yucca Mountain. Elaine Hiruo Global Power Report, "DOE's moves to 'orderly shutdowfi' of repository project" May 11, 2009. Bringing us back around full circle to where the commercial spent fuel disposal nominally began, the DOE is now revisiting the concept of fuel reprocessing. In October 2008, through the GNEP program at DOE the US government is pursuing "alternative" nuclear fuel cycles. Environmental Impacts at 14. In its draft impact statement on processing of spent fuel the DOE states that this is being considered "to reduce the hazards associated with disposal of spent fuel, DOE/EIS-0346 at s-1.

A DOE report on the likely need for a second repository, required under the 1982 US Nuclear Waste Policy Act (NWPA), has considered three alternative scenarios for dealing with'spent fuel generated beyond 2010: remove Yucca Mountain's statutory capacity limit; site and build a second repository; or prolong the storage of spent fuel at reactor sites. Nuclear Engineering International, "Radwaste Management - No limits for Yucca Mountain?" March 4, 2009. The DOE has recognized that Yucca may never be built... and some nuclear plants already implementing changes to make their on-site storage facilities permanent, rather than temporary. Diffusing the Problem at 390. In addition, in March 2009, Secretary Steven Chu announced that the DOE would be creating a blue ribbon panel to develop a plan for handling nuclear waste. 6 The NRC is also revaluating the issue of spent fuel and the viability of the Yucca Mountain repository. This re-evaluation is demonstrated by the recent commission vote of Shtt://vwww.kxnt.com/pages/4913954.php?

6 http://www.businessinsider.com/doe-will-have-a-blue-ribbon-panel-fiuure-out-nuclear-waste-2009-3, last visited October 21, 2009.

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no confidence in the waste confidence rule. Additionally, the NRC has acknowledged that the administration of President Barack Obama announced that it would terminate the Yucca Mountain program, while developing a disposal alternative. NUREG-1350 at 85 Observers and commentators are also opening up dialogue about the continued unsettled waste disposal issues in this country and stressing that "the temporary storage facilities on-site at nuclear plants across the United States are nearing the end of their intended lifespan, and the waste needs to be permanently stored." Diffsing the Problem at 390. In addition, commentators believe that "many of the assumptions underlying on-site storage are unproven in the real world." Id at 392.

Even those who espouse expansion of nuclear power are calling for action on the waste storage problem. A recent U.S. Chamber of Commerce Report entitled "Revisiting Nuclear Waste Policy," called for a review of the country's policy for the disposal of spent fuel now concluding that "many of the facts, conditions, and assumptions that were in place in 1982 when the current policy was crafted are no longer accurate or germane."

Commentators have also said that "the political landscape has recently changed, making it more likely that construction of the Yucca Mountain project be halted - and that a single concentrated repository is unlikely to be built in the near future." Diffusing the Problem at 387.

IV. Storage On Site In Wet Pools and Dry Casks Is The Default Solution Over the last 60 years, an effort to develop a policy for disposal of spent fuel has taken many twists and turns, but the reality of waste disposal has not changed much.

Spent fuel will be stored on-site for at least the renewal period of the license. Id At first the spent fuel was stored in low density pools, however because this waste has accumulated, pools are now tightly and densely packed with spent fuel. Environmental 131

Impacts at 11. Many reactor spent fuel pools, including those at Indian Point, have reached capacity and now some of the spent fuel waste from 45 reactors, including Indian Point Units 2 and 3, is stored in dry casks on-site in addition to in high density spent fuel pools.. Id. at 11-12; IPEC Newsletter.7 There is currently no other option because permanent waste disposal solution is as distant as ever and there are no civilian facilities to reprocess spent fuel in the United States. The reality is that it is highly likely that the additional waste generated during any period of extended operation would remain on the site for the foreseeable future.

ARGUMENT This argument demonstrates that Clearwater meets the substantive contention admissibility requirements of 10 C.F.R. § 2.309(f)(i)-(vi), in addition to the requirement for presenting new and significant environmental information, and all other requirements.

V. Specific Statement of the Contentions Petitioners must "provide a specific statement of the issue of law or fact to be raised or controverted.", 10 C.F.R. § 2.309(f)(1)(i). The new contentions are:

Clearwater EC-7 The environmental analysis carried out to assess the potential impacts of relicensing Indian Point Units 2 and 3 is inadequate because it provides in analysis of the potential impacts of additional waste storage on site, the alternative methods of accomplishing such storage, and potential alternatives to additional waste storage on the site, including the no-action alternative.

Clearwater SC-1 hrrn',-*;* *-.  :.:

--- -.-- , last visited October 26, 2009.

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The license renewal application requesting the relicensing of Indian Point Units 2 and 3 is inadequate because it provides insufficient analysis of the aging management of the dry casks and spent fuel pools that could be used to

.'store waste on the site in the long term. In addition, both the applicant and the NRC Staff have failed to establish that that any combination of such storage will provide adequate protection of safety over the long term.

UIE Explanation of Basis At this preliminary stage, Clearwater does not have to submit admissible evidence to support a contention, rather they have to "[p]rovide a brief explanation of the basis for the contention," 10 C.F.RI § 2.309(f)(1)(ii), and "a concise statement of the alleged facts or expert opinions which support the ... petitioner's position." 10 C.F.R. § 2.309(f)(1)(v). This rule ensures that "full adjudicatory hearings are triggered only by those able to proffer... minimal factual and legal foundation in support of their contentions." In the Matter of Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 N.R.C. 328, 334 (1999) (emphasis added).

Here, the facts discussed above supported by the Declaration of Dr. Gordon R.

Thompson (attached as Exhibit 1) provide the factual basis of the contention. The legal basis of the contention is that because the Commission cannot currently make a determination about when off-site disposal options will be available for spent fuel, the existing waste confidence rule can no longer allow the NRC to comply with the Atomic Energy Act ("AEA) and the National Environmental Policy Act ("NEPA") without a thorough analysis of the safety and environmental issues raised by the indefinite on-site storage of the additional spent fuel to be generated, which is one of the foreseeable outcomes of licensing an extended period of operation. Although the Commission has taken no formal action to revoke the existing waste confidence rule, the Commission 15

cannot logically assert that it is confident that a waste repository will exist within 30 years after cessation of operation when two of the three current commissioners have found such a repository may not be available within 60 years of that time and have taken the Commission out of the "prediction business" of trying to guess when offsite spent fuel disposal could commence. Thus, because long term or indefinite storage of additional wastes on the Indian Point would be the likely result of allowing the reactor to continue operating, the applicant must provide the NRC with a basis to conclude that such storage meets the safety requirements of the AEA or the NRC Staff must devise its own basis. In addition, to comply with NEPA, the NRC must provide a site specific assessment of the environmental impacts that have not been generically addressed.

A. NRC's Reliance on the Waste Confidence Decision The NRC has determined it need not perform site-specific environmental reviews of medium-term onsite spent fuel storage because of the Commission's waste confidence rule.

The current waste confidence rule states inter aliathat a central waste repository will open within 30 years after power generation at reactors ceases and that the storage of waste on the site for the interim period prior to the opening of the repository will not cause significant environmental impacts:

§ 51.23 Temporary storage of spent fuel after cessation of reactor operation-generic determination of no significant environmental impact.

(a) 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 16

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.

(b) Accordingly, as provided in §§ 51.30(b), 51.53, 51.61, 51.80(b), 51.95, and 51.97(a), and within the scope:of the generic determination in paragraph (a) of this section, no 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 or amendment, reactor combined license or amendment, or initial ISFSI license or amendment for which application is made, is required in any environmental report, environmental impact statement, environmental assessment, or other analysis prepared in connection with the issuance or amendment of an operating license for a nuclear power reactor under parts 50 and 54 of this chapter, or issuance or amendment of a combined license for a nuclear power reactor under parts 52 and 54 of this chapter, or the issuance of an initial license for storage of spent fuel at an ISFSI, or any amendment thereto.

52. This section does not alter any requirements to consider the environmental impacts of spent fuel storage during the term of a reactor operating license or combined license, or a license for an ISFSI in a licensing proceeding.

10 C.F.R_ § 51.23. In turn, 10 C.F.R_ § 51.95 provides that no environmental analysis of spent fuel storage for the interim period is required during individual license renewal proceedings:

[i]n connection with the renewal of an operating license...

the supplemental environmental impact statement... need not discuss.. . any aspect of the storage of spent fuel for zne facility within the scope of the generic determination in

§ 51.23(a) and in accordance with § 51.23(b)."

I

10 C.F.R. § 51.95. This is reflected in the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437 ('GEIS"), which omits any analysis of post-operation environmental impacts related to nuclear waste storage. Instead, the GEIS explicitly acknowledges the Commission's generic determination of no significant environmental impact codified at 10 C.F.R. § 51.23, and states that',in accordance with this determination the rule also provides that no discussion is required concerning environmental impacts of spent-fuel storage for the period following the term of the reactor operating license, including a renewed license." See id. § 6.4.6.3.

The GElS further relies upon the Commissions waste confidence rulemaking to arrive at the conclusion that "[oln-site storage of spent fuel during the term of a renewed operating license is a Category 1 issue." GEIS § 6.4.6.7 (emphasis added). While the GEIS states that the "[c]urrent and potential environmental impacts from spent-fuel storage have been studied extensively and are well understood" see GEIS § 6.4.6.3, the GEIS contains no new analysis related to environmental impacts of spent fuel storage (including spent fuel pool accidents), and appears to rely entirely on the 1990 Waste Confidence rulemaking review.

Indeed, the GEIS explicitly cites to the rationale provided in the Waste Confidence Decision: "[ijndustry experience with spent-fuel storage, coupled with supplemental studies of the integrity of pool and dry storage systems, indicates that spent fuel generally can be stored on site with minimal environmental impacts"; "[e]xtended pool storage provides a benign environment that does not lead to degradation of the integrity of spent-fuel rods"; "studies of fuel rod or cladding failures indicate that fuel rods should remain secure well beyond the period ofplant life extension." See id. § 18

6.4.6.2 (citing Waste Confidence Decision Review, 55 Fed. Reg. 38474 (Sept. 18, 1990)

(emphasis added).

Based on this "analysis," the NRC concluded that "[w]ithin the context of a license renewal review and determination .. , there is ample basis to conclude that continued storage of existing spent fuel and storage of spent fuel generated during the license renewal period can be accomplished safely and without significant environmental impacts." Id § 6.4.6.7 (emphasis added).

In accordance with the GEIS, NRC has consistently rebuffed challenges relating to the environmental impacts of on-site spent fuel storage, and disallowed any site-specific review of such issues. In the Turkey Point nuclear power plant relicensing proceeding, an intervenor raised a contention asserting that spent fuel could not be safely stored given the location of the Turkey Point facility. See FloridaPower & Light Co.

(Turkey Point Nuclear Generating Plants, Units 3 and 4), LBP-01-06, 53 N.R.C. 138, 146-150 (2001). The licensing board there quickly rejected the contention since "the issue of onsite spent fuel storage is a ... Category I issue that cannot be examined further in a license renewal proceeding." Id The board also specifically noted that any questions related to environmental impacts of spent fuel after the renewal term were "barred by the Commission's Waste Confidence Rule." Id On appeal, the Commission upheld this decision, finding that "Part 51's license renewal provisions cover environmental issues relating to onsite spent fuel storage generically. All such issues, including accident risk, fall outside the scope of license renewal proceedings." See FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17,'54 N.R.C. 3, 21-22 (2001). The Commission explained I9

the NRC's reliance on the GEIS for the generic disposition of spent fuel storage related issues, stating that

[t]he NRC has spent years studying in great detail the risks and consequences of potential spent fuel pool accidents,

• • and the GEIS analysis is rooted in these earlier studies.

NRC studies and the agency's operational experience support the conclusion that onsite reactor spent fuel storage, which has continued for decades, presents no undue risk to public health and safety."

Id. Given the discussion in the GEIS as cited above, such studies and operational experience are ostensibly those which underlie the Waste Confidence rulemaking.

In the Pilgrim and Vermont Yankee nuclear power plant relicensing proceedings, the Massachusetts Attorney General raised contentions asserting the failure to address new and significant information related to environmental impacts of on-site spent fuel storage. See Entergy Nuclear Operations,Inc. (Pilgrim Nuclear Power Station), Docket No. 50-293, Massachusetts Attorney General's Request for -A Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Pilgrim Nuclear Power Plant Operating License and Petition (May 26, 2006), ADAMS Accession No. ML061630088; Entergy Nuclear Operations,Inc.

(Vermont Yankee Nuclear Power Station), Docket No. 50-271, Massachusetts Attorney General's Request for A Hearing and Petition for Leave to Intervene with Respect to Entergy Nuclear Operations Inc.'s Application for Renewal of the Vermont Yankee Nuclear Power Plant Operating License (May 26, 2006), ADAMS Accession No. ML061640065.

The licensing boards reviewing Massachusetts' petitions rejected these contentions, finding that the potential environmental impacts of storing spent fuel in 20

pools for an additional 20 years - including the risk of spent fuel pool accidents - already had been generically addressed in the GEIS as a "Category 1" issue that does~not require a site-specific impacts analysis. See LBP-06-20, 64 N.R.C. 131, 152-61 (2006); LBP 23, 64 N.R-C. at 280-300. These boards went on to conclude that because "Category 1" environmental impacts findings are codified in NRC regulations, such findings normally may not be attacked in individual NRC adjudicatory proceedings, unless the Commission waives the rule at issue for a particular proceeding, or the rule is changed or suspended due to a rulemaking review. See LBP-06-20, 64 N.R.C. at 155-61; LBP-06-23, 64 N.R.C. at 288-99.

In August 2006, the Massachusetts Attorney General filed a Petition for Rulemaking ("PRM") requesting that the'NRC vacate the general characterization in the GEIS that the environmental impacts of spent fuel pool storage are insignificant and revoke the regulations which excuse consideration of such impacts in NEPA decision-making documents. See ProposedAmendment to 10 C.F.R Part51 (Rescindingfinding that environmental impacts ofpool storage of spent reactorfuel are insignificant),

Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 (August 25, 2006), ADAMS Accession No. ML062640409 (hereinafter "Massachusetts AG PRM").

The Commission denied this petition for rulemaking, concluding that the spent fuel pool environmental impact findings in the GEIS were valid for the concerns articulated by Massachusetts, i.e. that spent fuel pool accidents and potential terrorist attacks could result in an catastrophic spent fuel pool fire. See The Attorney General of Commonwealth of Massachusetts, The Attorney General of California; Denial of 21

Petitions for Rulemaking, Docket No. PRM-51-10, NRC-2006-0022 and Docket No.

PRM-51-12, NRC-2007-0019, 73 Fed. Reg. 46204 (August 8, 2008). That is, NRC affirmed the general conclusions in the GEIS that on-site storage of spent nuclear reactor fuel, including high-density pool storage, had no significant adverse environmental impacts on the human environment. Id. at 46,212.

In the current relicensing proceeding 'related to Indian Point, review of environmental impacts of spent fuel storage have similarly been precluded to date. The draft supplemental environmental impact statement relies on the GEIS to conclude that "there are no impacts of onsite spent fuel associated with license renewal." Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Main Report (U.S. Nuclear Regulatory Commission December 2008) ("Indian Point DSEIS") at 6-7. The DSEIS further specifically cites to the generic determination of no significant impact codified at 10 C.F.R. § 51.23 to explain the lack of discussion of environmental impacts of long-term onsite nuclear waste storage. See id. at xiv.

The Licensing Board has also disallowed adjudication of issues related to environmental impacts of on-site spent fuel storage. In relation to Riverkeeper's Contention EC-2 related to the impacts of, inter alia, spent fuel pool fires, the Board relied upon the designation of spent fuel storage environmental impacts as a Category 1 issue to deem the contention beyond the scope of the proceeding. See Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 N.R.C.

- (slip op. July 31, 2008), at 180-81.

22

Riverkeeper subsequently raised a similar new-contention, Contention EC-4, stating that "[tihe NRC Must Address the Spent Fuel Storage Impacts at Indian Point in a Supplemental GEIS." See Riverkeeper, Inc.'s New and Amended Contentions Regarding Environmental Impacts of High-Density Storage of Spent Fuel, Docket Nos. 50-247, 50-286 (Sept. 5, 2008). This contention was based on newly recognized information about site-specific mitigation measures that undermined the NRC's generic environmental impact finding in the GEIS. The Board similarly rejected this contention, finding that "New Contention 4 deals with spent fuel storage impacts that the Commission has stated is a Category 1 issue, outside the scope of our proceeding." Entergy Nuclear Operations, Inc. (IndianPoint Nuclear Generating Units 2 and 3), Memorandum and Order, Denying Riverkeeper's Request to Admit Amended Contention EC-2 and New Contentions EC-4 and EC-5), Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD0I

-(December 18, 2008), at 12.

Thus, based on the generic findings of the license renewal GEIS, there has been no site-specific review of environmental impacts of on-site spent fuel storage during the term of license renewal, let alone beyond that time-frame, for Indian Point, or any other nuclear power plant. However, all of the legal reasoning excluding environmental analysis of spent fuel disposal issues is based upon the key premise contained in the rule that waste would only be stored on the site temporarily and at most for 30 years beyond the expiration of the license.

B. The Commission Has Undermined Part of the Waste Confidence Decision The new information presented in this filing undermines the assumption that the additional waste that would be generated during any period of extended operation would 23

remain on the site for less than 30 years and in fact shows that even the Commission cannot now predict how long it might remain. At this point it is clear that despite half a century of effort, we have made little progress toward identifying a safe and environmentally acceptable means of disposing of spent fuel in the long term. First, reprocessing failed and, even if successful, would have created risks of nuclear proliferation that successive administrations found unacceptable. In the section of the Nuclear Waste Policy Act entitled, "Nuclear Waste Fund," in the discussion about contracts to be entered into by DOE with generators of high level radioactive waste, Congress stated that "in return for payment of fees established by [§ 10222], the Secretary, beginning not later than January 31, 1998, will dispose of the high-level radioactive waste or spent nuclear fuel involved as provided in this subtitle." Nuclear Waste Policy Act, 42 U.S.C. § 10222(a)(5)(B). Thus, Congress envisioned a central repository for nuclear waste would be ready by 1998. But the alternative of long-term geological storage ran into serious technical and political problems to such an extent that the administration has now decided to abandon efforts to build such a repository at Yucca Mountain. Instead, the administration is convening a panel to explore all the options available.

Although there is no doubt that the government intends to fulfill its obligation under the Nuclear Waste Policy Act to dispose of the spent fuel, even the Commission is currently unable to predict when and how that might be done. It is problematic to reconcile the requirement of the Atomic Energy Act that licensing actions must be accompanied by a finding of adequate protection of safety with the long-term failure to devise an adequate solution for waste disposal. The Second Circuit in NaturalResources 24

Defense Council,Inc. R, UnitedStates Nuclear Regulatory Commission, 582 F.2d 166 (1978) noted that although it is very difficult to find that the long term disposal of this waste will be safe, when the means of accomplishing such disposal is not known, Congress had taken no action to prevent the Commission granting licenses that allow the continued accumulation of such wastes. The Court noted that Congress knew at thetime it passed the AEA that no such means was available, but it nonetheless intended that licenses be issued for nuclear power generation.

The continued validity of this holding is now doubtful, because providing waste disposal facilities for spent fuel has proved far more difficult than Congress expected in 1954 when it passed the AEA. The history of high level waste disposal is that approaches that looked promising, such as Yucca Mountain, turned out to be far more technically complex than initially thought. Illustrating this truth, a few years after the Second Circuit rejected NRDC's challenge, Congress made the basis of its inaction to that point explicit by.stating in the Nuclear Waste Policy Act that that a spent fuel disposal repository would be available by 1998. Thus, it is now clear that Congress's inaction prior to 1998 was based upon an erroneous assumption that a disposal facility for spent fuel would be in place by now. Even though this assumption proved false, in the Energy Policy Act of 2005 Congress-provided loan guarantees to help finance a few new nuclear power plants. Thus, it now appears that the legislature is prepared to assume that even if a central waste repository does not open, meanswill be devised to safety store the wastes at reactor or other sites for the very long term, if not indefinitely.

This view is confirmed by Commissioner Svinicki, who approvingly quotes Judge Tamm's concurrence in Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979), which states 25

"if the Commission determines it is not reasonably probable that an offsite waste disposal solution will be available when the licenses of the plants in question expire, it must then determine whether it is reasonable probable that spent fuel can be stored safely onsite for an indefinite period." Svinicki Decision at 2-3 accordPotomacAlliance v. NRC, 682 F.2d 1030, 1038 (D.C. Cir. 1982). The opinion in the Minnesota case also makes clear that NRC cannot claim that waste disposal concerns are never relevant to licensing because Congressional inaction has actually been based upon the repeated assurances of the NRC that a solution to that issue it at hand. Minnesota v. NRC, 602 F.2d 412 (D.C.

Cir. 1979). Furthermore, courts subsequently found that while the provision of centralized waste disposal could be termed a generic issue, where issues involve particularized situations, such as when waste will be stored at individual reactor sites, they cannot be resolved generically. LimerickEcology Action v. NRC, 869 F.2d 719, 738 (3rd Cir. 1989):

To avoid consideration of the implications of onsite waste storage during individual license proceedings, the Commission approached this issue through rulemaking on waste confidence. It supported this rulemaking by affirming its confidence in the environmental integrity and safety of onsite storage for up to 70 years, which is a mere ten years beyond the cessation of licensed power generation activities for the oldest spent fuel. The Commission envisioned storage of spent fuel for this period in both wet pools and dry casks. For example, in the 1990 Waste Confidence Decision review, the Commission first found confidence that storage of spent fuel in wet pools for this time period is safe and has insignificant environmental impact:

The Commission addressed structure and component safety for extended operation for storage of spent fuel in reactor 26

water pools in the matter of waste confidence rulemaking proceeding. The Commission's preliminary conclusion is that experience with spent fuel storage provides an adequate basis for confidence in the continued safe storage of spent fuel for at least 30 years after expiration of a plant's license. The Commission is therefore confident of the safe storage of spent fuel for at least 70 years in water pools at facilities designed for a 40-year lifetime... The Commission has also found that experience with water-pool storage of spent fuel continues to confirm that pool storage is a benign environment for spent fuel that does not lead to significant degradation of spent fuel integrity. Since 1984, utilities have continued to provide safe additional reactor pool storage capacity through re-racking, with over 110 such actions now completed.

Review and Final Revision of Waste Confidence Decision, 55 Fed. Reg. 38474, 38510 to 38512 (September 18, 1990).

The Commission then found that storage in dry casks has even less impact than storage in wet pools. It based this finding on an Environmental Assessment ("EA')

associated with the rule related to interim monitored retrievable storage, which assessed dry storage of spent fuel for a period of 70 years after receipt of spent fuel from a reactor.

The EA found that:

[i]n consideration of the safety of dry storage of spent fuel, the Commission's preliminary conclusions were that [its]

confidence in the extended dry storage of spent fuel is based on a reasonable understanding of the material degradation processes, together with the recognition that dry storage systems are simpler and more readily maintained. In response to Nuclear Waste Policy Act of 1982 authorizations, the Commission noted "'... the Commission believes the information above [on dry spent fuel storage research and demonstration] is sufficient to reach a conclusion on the safety and environmental effects of extended dry storage. All areas of safety and environmental concern (e.g., maintenance of systems and

.omponents, prevention of material degradation, protection against accidents and sabotage) have been addressed and shown to present no more potential for adverse impact or

the environmental and the public health and safety than storage of spent fuel in water poois Review and Final Revision of Waste Confidence Decision, 55 Fed. Reg. 38474, 38510 (September 18, 1990).

The Commission did not clearly define the interaction'of the 70 years for wet storage, which started at the time the plant was originally licensed, and the 70 years for dry storage, which started much more recently. However, the Commission's updated waste confidence rulemaking found that while, "spent fuel can probably be safely stored without significant environmental impact for longer periods, the Commission. does not find it necessary to make a specific conclusion" that spent fuel could be safely stored in dry casks without environmental impact for 100 years, as suggested by a commenter.

Indeed, the Commission explicitly stated that it did not intend the waste confidence rule to support indefinite onsite storage: "[t]he Commission 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 spent fuel for-an indefinitely long period." Id at 38482.

Thus, the Commission's generic findings with respect to onsite fuel storage in both wet pools and dry casks relate only to the period 30 years beyond the expiration, of the license. 10 C.F.R. § 51.23(a). In its latest decision to defer on the proposal to revise the waste confidence rule, the Commission has finally recognized that it is currently impossible to predict when spent fuel will actually leave reactor sites. Thus, the time has finally come when this Board must recognize that it is reasonably probable that an offsite waste disposal solution will not be ready when the licenses for Indian Point 2 and 3 expire or even 30 years after the licenses expire. As the D.C. Circuit has twice 28

recognized, in light of the reasonable prospect of indefinite storage at reactor sites well beyond this timeframe, the Atomic Energy Act requires site-specific review of the safety impacts of indefinite onsite storage. Because it is somewhat unclear to Clearwater who is responsible for this task, Clearwater has contended that it should be done by either the applicant or the Staff. In addition, because the casks and pools in which some of the spent fuel is already stored, and more will be stored in the future, are long lived passive components that the licensee cannot assume will be moved within 30 years after power generation ceases, the applicant must provide an adequate aging management plan for both of these components.

C. The NRC Must Perform Further Environmental Review Pursuant to NEPA The National Environmental Policy Act ("NEPA") establishes a "national policy

[to] encourage productive and enjoyable harmony between man and his environment,"

and was intended to reduce or eliminate environmental damage and to promote "the understanding of the ecological systems and natural resources important to" the United States. Dept. of Transp, v. Pub Citizen, 541 U.S. 752, 756 (2004) (quoting42 U.S.C. § 4321). The application of NEPA's requirements, under therule of reason relied on by the NRC, is to be considered in light of the two purposes of the statute: first, ensuring that the agency will have and will consider detailed information concerning significant environmental impacts; and second, ensuring that the public can both contribute to the body of information and can access the information that is made public. San Luis Obispo Mothers For Peace v. NRC. 449 F.3d 1016 (June 2, 2006). The Supreme Court has identified NEPA's "twin aims"' as "plac[ing] upon an agency the obligation to consider 29

every significant action[, and] ensur[ing] that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Baltimore Gas & Elec. Co. v. NaturalRes. Def.Counsel, Inc., 462 U.S. 87, 97 (1983)

NEPA is the "basic charter for protection of the environment." 40 C.F.R. § 1500.1. Its fundamental purpose is to "help public officials make decisions that are based on understanding of environmental consequences, and take decisions that protect, restore and enhance the environment." Id NEPA requires federal agencies to examine the environmental consequences of their actions before taking those actions, in order to ensure "that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." Robertson v.

Methow Valley Citizens Council (Robertson), 490 U.S. 332, 349 (1989).

NEPA goes beyond the Atomic Energy Act ('AEA") in mandating that the NRC consider alternatives to its licensing actions that may have detrimental effects on the environment. 10 C.F.R. § 51.71(d). The primary method by which NEPA ensures that its mandate is met is the "action-forcing" requirement for preparation of an EIS, which assesses. the environmental impacts of the proposed action and weighs the costs and benefits of alternative actions. Robertson, 490 U.S. at 350-51. An EIS must be searching and rigorous, providing a "hard look" at the environmental consequences of the agency's proposed action. Id at 349; Marsh v. OregonNaturalResources Council, 490 U.S. 260, 374 (1989).

The environmental impacts that must be considered in an EIS include "reasonably foreseeable" impacts which have "catastrophic consequences, even if their probability of occurrence is low." .40 C.F.R. § 1502.22(b)(1). The Commission has held that probability 30

is the "key" to determine whether an accident is "reasonably foreseeable" or whether it is "remote and speculative" and therefore need not be considered in an EIS. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-90-7, 32 NRC 129, 131 (1990). See also Limerick Ecology Action v. NRC, 869 F.2d 719, 745 (3rd Cir. 1989), citing Vermont Yankee Nuclear Power Corp. v. Natural ResourcesDefense Council, Inc-, 435 U.S. 519, 551 (1978).

As Commissioner Svinicki acknowledges, to comply with NEPA, the Commission used to rely upon its confidence that the central waste repository would open within 30 years. Now everyone, including the Commission, has recognized that is not going to happen. Furthermore, even if the planned repository at Yucca Mountain were to open within 60 years, it would not be big enough to accommodate the additional waste that would be generated during any extended period of operation at Indian Point.

Accordingly, in order to comply with the tenets of NEPA in light of the facts presented herein, NRC must consider the environmental impacts of indefinite long-term onsite spent fuel storage in a supplemental environmental impact statement.

Furthermore, the NRC must study the alternative means of long-term onsite storage, as well as the no-action alternative. Moreover, all other foreseeable means of long-term waste disposal need to be assessed prior to licensing, because it is currently unclear which option will actually be selected.

IV The Deferral Of the Waste Confidence Rulemaking Is "New and Significant" Information

-As required by 10 C.F.R. § 51.92(a), if an EIS has been prepared but the proposed action has not been taken, the NRC Staff must supplement the EIS if, inter alia, "[tihere are significant new circumstances or information relevant to environmental concerns and 31

bearing on the proposed action or its impacts." Notably, Section 51.92(a)(2) does not contemplate the preparation of an EA as a supplement to an EIS. In addition, 10 C.F.R.

§§ 51.59(c)(3) and (c)(4) require the supplemental EIS prepared at the license renewal stage to address "significant new information." NRC regulations for the preparation of ERs by license renewal applicants also require that an ER must address "new and significant information regarding the environmental impacts of license renewal of which the licensee is aware." 10 C.F.R. § 52.53(c)(3)(iv).

Here, the new information is undoubtably new, because Commissioner Svinicki cast the decisive notation vote on the issue on September 24, 2009. In addition, this information that the Commission is not currently in the "prediction business" regarding long term was disposal is highly significant. For the first time, it is both legally and factually clear that spent fuel produced during any period of extended operation could well remain on-the Indian Point site for more than 30 years after power generation ceases.

Indeed, at this stage, the Commission cannot predict when a waste disposal facility to take the waste might be available, nor even what form that facility might eventually take.

Finally, while the NRC Staff and Entergy may argue that the Commission may get back into the "prediction business" at some point, that would constitute irrelevant speculation.

Of course, if at some point in.the future, the Commission acts decisively on waste confidence the validity of the asserted contentions would need to be reexamined.

However, at present, it is very clear that even though the Commission expects waste to remain on reactor sites for longer than 30 years after power generation ceases, it has made no generic findings on safety or environmental impact of on-site spent fuel storage 32

beyond that time period. The current contentions are designed to ensure that the agency plugs this gap.

The NRC Staff cannot now say these unassessed impacts are minor or

'insignificant. Commissioner Svinicki points out that that Staff has informed her assessing the impacts from the indefinite long term storage "would be challenging, would take a number of years, and would confront many analytical uncertainties." Svinicki Decision at 2.

V The New Contention Is Within The Scope of License Renewal Although the existing rules do not contemplate the assessment that Clearwater contends is missing, it is clear that to issue a valid license, the NRC must comply with NEPA. For example, in the San Luis Obispo case discussed supra, the Court required an analysis that the NRC said was not required by its rules. In the environmental arena, the scope of license renewal is therefore synonymous with the requirements of NEPA.

Furthermore, the Ninth Circuit reiterated NEPA's direction on uncertain consequences, which requires an agency to deal with uncertainties by including in the EIS "a summary of existing credible scientific evidence which is relevant to evaluating the reasonable foreseeable significant adverse impacts on the human environment, and... the agency's evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community." 40 C.F.R. §§ 1502.22(b)(3), (4). The court construed the regulation to apply to those events with potentially catastrophic consequences "even if their probability of occurrence is low, provided that the analysis of impacts is supported by credible scientific evidence, is not based on pure conjecture, and is within the rule of reason." 40 C.F.R. § 1502.22 (b)(4). The notion that spent fuel could remain on the Indian Point site for more than 30 years after power generation ceases is way beyond mere conjecture. Even the Commission has acknowledged it cannot predict J-)

when spent fuel might leave the site. Indeed, the facts show that such a result is the likely consequence of the current confusion on long-term waste Second, the safety contention raises issues about the aging of long-lived passive components, which are at the heart of the relicensing safety review.

VI The New Contentions Raise Multiple Material Disputes The regulations require petitioners to "[d]emonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding." 10 C.F.R. § 2.309(f)(1)(iv). A showing of materiality is not an onerous requirement, because all that is needed is a "minimal showing that material facts are in dispute, indicating that a further inquiry is appropriate." GeorgiaInstitute of Technology, CLI-95-12, 42 N.R.C. 111, 118 (1995); FinalRule, Rules ofPracticefor Domestic Licensing Proceedings- ProceduralChangesin the HearingProcess, 54 Fed.

Reg. 33,171 (Aug. 11, 1989).

At present, there is no indication that the NRC Staff or Entergy -intend to carry out the required environmental or safety analysis of long term spent fuel storage. As indicted above, the NRC Staff has explicitly relied upon the GEIS and the NRC's generic determination of no significant impact to evade any discussion of the environmental impacts of on-site waste storage. See DSEIS at xiv, 6-7. Entergy has also failed to put forward any aging management plan for the spent fuel storage casks. In the absence of such analyses it is clear there is material dispute about compliance with NEPA and AEA.

Moreover, Clearwater expects that the answers to this Petition will demonstrate sharp factual and legal disputes between the parties that will need to be resolved through a hearing.

For example, one factual dispute is already clear. The many reports produced by Clearwater's expert Dr. Gordon Thompson make it plain that he believes that storage of spent fuel in wet pools is far less safe than the NRC Staff believe and that the staff should 34

take further steps to improve the safety of spent fuel pools. However, to date this issue has been legally excluded from the proceeding because of the waste confidence rule.

Because it is now clear that the Commission envisages long-term use of wet pools as well as dry casks, this material dispute is properly raised by the safety contention.

VII The New Contentions Are Timely Clearwater believes that to show timeliness, it need only show that the contentions meet the timing criteria of 10 C.F.R. § 2.309(f)(2), not 10 C.F.R. § 2.309(c).

Nonetheless, out of an overabundance of caution Clearwater shows below that it actually meets both tests for the timing of new contentions.

Petitioners may add timely new contentions after filing their initial petition, so long as they act in accordance with 10 C.F.R. § 2.309(f)(2). Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), LBP-05-32, 62 NRC 813 (2005). The Commission's regulations allow for a new contention to be filed upon a showing that:

(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 materially different than information previously available; and (iii) The amended or new contention-has been submitted in a timely fashion based on the availability of the subsequent information.

10 C.F.R. § 2.309(f)(2)(i)-(iii). Thus, when the ASLB found that action by the licensee mooted an admitted contention, the ASLB allowed the intervenors to file a new contention, but required the new contention to be timely in accordance with 10 C.F.R. § 2.309(f)(2). In the Matterof AmerGen Energy Company (License Renewal for Oyster Creek Nuclear Generating Station), LBP-06-16, 63 N.R.C. 737, 744-45 (2006).

Similarly, the ASLB in the Vermont Yankee license renewal proceeding recently recognized-that the time to file contentions is placed at a very early stage, when the 35

renewal application is docketed. Entergy Nuclear Vermont Yankee L.L. C. and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), LBP-07-15, slip op.

at 6 n. 12.(November 7, 2007) available at ML073110424. After the initial time to present contentions has expired, new contentions must meet a timeliness test. When significant new information becomes available this test should be a relatively simple matter to meet. Id at 5; 10 C.F.R. § 2.309(f)(2). However, in the absence of new information the applicable test is more stringent. LBP-07-15 slip op. at 6. The ASLB also noted that "normally a great deal of new and material information becomes available to the public after the docketing" through application amendments or the safety evaluation report. LBP-07-151 slip op. at 6 n. 12. This information can then be used to file new contentions, satisfying the AEA requirement that the public must be afforded an opportunity to request a hearing on all material safety issues. Id.

Here, the new contention meets the requirements of 10 C.F.R. § 2.309(f)(2)(i) and (ii) because it is based upon new information that was "not previously available," and is "materially different than information previously available." Turning to the last element, the Commission and on occasions the ASLB has interpreted the "timely fashion" requirement of 10 C.F.R- § 2.309(f)(2)(iii) as being 30 days from the availability of the new information upon which the new contention is based. E.g. PrivateFuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-4, 59 NRC 31, 46 (2004).

Because this motion is based on the deciding vote by Commission Svinicki, which was dated September 24, 2009, itis within the timeliness requirement of 10 C.F.R. §

,2.309(f)(2)(iii).

NRC Staff and Entergy may argue that the regulations require Clearwater to meet the timeliness test for a late-filed contention contained in 10 C.F.R. § 2.309(c). Although this is not correct, even if the 10 C.F.R1 § 2.309(c) standard applies, .Clearwater meets 36

that standard. The-standaid contained in Section 2.309(c) is that late-filed contentions will be admitted based upon a balancing of the following factors:

(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/petitioners participation may reasonably be expected to assist in developing a sound record.

In evaluating the admissibility of a late-filed contention, the first and foremost factor is whether good cause exists that will excuse the late-filing of the contention. See Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units I and 2), CLI 8, 23 NRC 241, 244 (1986). The good cause element has two components that may impact on a presiding officer's assessment of the timeliness of a contention's filing: (1) when was sufficient information reasonably available to support the submission of the late-filed contention; and (2) once the information was available, how long did it take for the contention admission request to be prepared and filed. See Private Fuel Storage, L.L. C. (Independent Spent Fuel Storage Installation), LBP-99-3, 49 NRC 40, 46-48 (assessing late-filing factors relative to petition to intervene), aff'd, CLI-99-10, 49 NRC 318 (1999); PrivateFuel Storage, L.L. C. (Independent Spent Fuel Storage Installation),

LBP-O1-13, 53 NRC 319, 324 (2001).

37

First, and most importantly, Clearwater has good cause for not submitting the contentions earlier, because they could not have filed the proposed contention before Commissioner Svinicki made her notation vote dated September 24, 2009 and they have filed this moti6n promptly therdafter. Second, Clearwater is already a party to this proceeding. Third, as demonstrated in the declarations filed with Clearwater's initial petition to intervene dated December 10, 2007, Clearwater has individual members who live close to the plant and. have intense interest in the potential environmental impacts license extension could cause. Fourth, if the proposed contentions were admitted it would be likely to have a material effect on the licensing decision that is before the Commission. Fifth, Clearwater currently has no other available means to protect their interests because in the absence of an admitted contention, the required analyses would not be done. Sixth, the other parties in this proceeding do not have any admitted contentions that would require a-similar analysis. Seventh, although Commissioner Svinicki believes the analysis required by the new environmental contention could take a number of years, that would be preferable to violating NEPA. Not admitting the contention could lead to more delay if a Circuit Court were to find on appeal that analysis of the spent fuel issues is essential to comply withNEPA. Finally, at present the record is insufficient to allow the Commission to conclude that the environmental and safety analysis supporting the Indian Point relicensing is adequate. Thus, admitting the contentions would assist the Commission in developing a sound record.

38

CONCLUSION For the foregoing reasons, this Board should admit Clearwater's proffered contentions EC-7 and SC-I into this proceeding.

Manna Jo Greene Environmental Director Hudson River Sloop Clearwater, Inc.

11-2 Market St.

Poughkeepsie, NY 12601 845 454-7673. x 113

/S/

Ross Gould Board of Directors Hudson River Sloop Clearwater,. Inc.

10 Park Avenue #5L New York. NY 10016 917-658-7144 3P

EXHIBIT 1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Richard E. Wardwell Dr. Kaye D. Lathrop Entergy Nuclear Operations, Inc. Docket Nos.

(Indian Point Nuclear Generating) 50-247-LR Units 2 and 3) and 50-286-LR DECLARATION OF DR. GORDON R. THOMPSON IN SUPPORT OF CONTENTIONS CONCERNING WASTE STORAGE AND DISPOSAL AT INDIAN POINT SUBMITTED BY HUDSON RIVER SLOOP CLEARWATER, INC.

I, Dr. Gordon Rt Thompson, declare as follows:

L Introduction I- 1. I am the executive director of the Institute for Resource and Security Studies (IRSS), a nonprofit, tax-exempt corporation based in Massachusetts. Our office is located at 27 Ellsworth Avenue, Cambridge, MA 02139. IRSS was founded in 1984 to conduct technical and policy analysis and public education, with the objective of promoting peace and international security, efficient use of natural resources, and protection of the environment. I am an expert in the technical analysis of safety, security and environmental issues related to nuclear facilities.

1-2. 1 have prepared previous'declarations in this proceeding. My most recent declaration was dated September 5, 2008, and supported contentions proffered by Riverkeeper.

Attached to that declaration was a copy of my curriculum vitae. I had previously prepared a declaration and an accompanying expert report in this proceeding that were dated November 28, 2007. My expert report was titled Risk-Related Impactsfrom ContinuedOperationof the Indian PointNuclear Power Plants. The factual

representations made in my September 5, 2008, declaration and in my November 28, 2007, declaration and report continue to be correct, and the opinions set forth therein continue to express my best professional judgment.

H1. NRC Waste Confidence Decision I-1. On February 6, 2009, I prepared an expert report titled EnvironmentalImpacts of Storing Spent Nuclear Fuel andHigh-Level Waste from Commercial Nuclear Reactors:

A Critique of NRC's Waste Confidence Decision and EnvironmentalImpact Determination. That report was prepared under the sponsorship of Texans for a Sound Energy Policy (TSEP). A copy of the report is attached herewith. Hereafter, I refer to this report as the "ThompsonrTSEP report". The ThompsonITSEP report addressed two documents issued by the US Nuclear Regulatory Commission (NRC) in October 2008.

Those NRC documents were: (i) a Draft Update to NRC's Waste Confidence Decision of 1990; and (ii) a Proposed Rule, confirming a previous, generic determination by NRC that interim storage of spent nuclear fuel has no significant environmental impact, and relaxing the time limit for application of that determination.

11-2. The factual representations made in the Thompson/TSEP report continue to be correct, and the opinions set forth therein continue to express my best professional judgment.

I1 Sandia Studies 111-1. The ThompsonlTSEP report, and my declaration of September 5, 2008, in this proceeding, referred to studies conducted at Sandia National Laboratories that are relevant to the risk of a fire in a spent-fuel pool at a nuclear power plant. Hereafter, I refer to those studies as the "Sandia studies". My conclusions regarding the Sandia studies remain the same as was set forth in the ThompsonrTSEP report and my declaration of September 5, 2008.

The factual statements provided, in this declaration are true and correct to the best of my knowledge, and the expressions of opinion set forth in this declaration are based on my best professional judgment.

CiK Dr. Gordon R. Thompson October 26, 2009

NOTATION VOTE RESPONSE SHEET TO: Annette Vietti-Cook, Secretary FROM: Commissioner Klein

SUBJECT:

SECY-09-0090 - FINAL UPDATE OF THE COMMISSION'S WASTE CONFIDENCE DECISION Approved X in part Disapproved X in part Abstain Not Participating COMMENTS: Below Attached X None SIGNATURE DATE Entered on "STARS" Yes No

DR. KLEIN'S COMMENTS ON SECY-09-0090:

FINAL UPDATE OF THE COMMISSION'S WASTE CONFIDENCE DECISION I greatly appreciate the staff's effort in providing a draft final update of the Commission's Waste Confidence Decision and addressing the many public comments on the proposed update. However, I strongly believe that the Commission should give the public an opportunity to comment on whether and, if so, how the Administration's recent announcements of changes in the Nation's high-level waste (HLW) repository program should affect the proposed update.

Thus, I do not support publication of the draft final update and final rule in the FederalRegister at this time. Instead, I support continuation of this rulemaking through a limited re-noticing for the solicitation of comment on how the Commission should take account of these recent developments, as well as any recent developments in the HLW programs of other nations, and in particular how these developments may bear on the proposed draft final- estimate of a target date for the availability of a geologic repository. As part of this re-noticing, I am also willing to explore and invite comment on whether the Commission could reasonably modify its draft final findings and draft final rule to reflect the potential consideration of a broader range of disposal options.

After the staff reviews any additional comments, the staff should resubmit a draft final update package that includes the staff's evaluation of the additional comments and any new or revised recommendations. I recommend that the Commission offer a 45-day comment period for this limited re-noticing and that the Commission direct the staff to resubmit a proposed final update within nine months of the receipt of this Commission direction.

The new Administration announced its intent to pursue alternatives to Yucca Mountain after the close of the comment period. The Commission published its proposed revision of the Waste Confidence Decision on October 9, 2008, and the comment period closed on February 6, 2009. Thus, stakeholders, when commenting, did not have the benefit of the Administration's announced intent to change course on the HLW disposal program and study long-term alternatives for HLW storage and disposal. Even without that news, many commenters argued that aspects of the proposed update were too speculative, particularly the Commission's proposed estimate of a target date for the availability of a geologic repository in proposed Finding 2.

The draft final update, which has been made public, acknowledges that the Administration's proposed budget plan to eliminate the Yucca-Mountain project would likely have forced the Commission to consider an update to the Waste Confidence decision if the Commission had not already issued a proposed rule and update. The draft final update refers to proposals to initiate expert reviews of HLW and spent nuclear fuel (SNF) disposal options, goes on to take account of the recent developments, and provides an analysis of why these developments do not alter the staff's proposed draft final update. Thus, in-my view a limited re-noticing that allows for public input on developments after the close of the comment period clearly would enhance openness, transparency, and public involvement in the Commission's decision-making process.

I am also concerned that the credibility of the Commission's decision-making process would be affected by proceeding to finalize the update at this time. Such an action might be perceived by many as a rush to judgment in the midst of a dynamic environment that promises to affect the Nation's approaches to storage and disposal of HLW and SNF.

2 In addition, a final decision at this time could lead unnecessarily to a variety of misinterpretations. Some may interpret the Commission's final decision, particularly one at this time, as reflecting a position for or against the Administration's recent actions or anticipated new approaches to HLW storage and disposal. I recognize, of course, that some misinterpretation is often unavoidable. I also recognize that the draft final update accurately explains that the Commission commenced this update for clearly articulated reasons in advance of the recent developments. It is also true that the Commission's proposed update has included the express assumption that the currently proposed HLW repository does not become a reality.

Nonetheless, I think it is fair to conclude that a pause to obtain, consider, and respond with care to stakeholders' perspectives on the recent developments should diminish the potential for misinterpretation of the Commission's action.

Perhaps of most importance, a limited re-noticing should enrich the bases for the Commission's final analyses and decisions and strengthen the final conclusions. The Commission should benefit from the receipt and consideration of a wide variety of perspectives on the Administration's recent announcements, as well as recent developments in the HLW disposal programs in other countries. For instance, the Department of Energy (DOE) did not submit comments on our proposed update-and rule change. Moreover, while Congress and the Administration are considering the concept of establishing an expert commission to address options for HLW storage and disposal, no such plans are settled at this time. It could be helpful to know and take account of the expected schedule, charter and perhaps even the range of potential final products associated with an expert panel or commission.

It seems to me that DOE's submission of comments would be consistent with the spirit of Section 11 3(c)(3) of the Nuclear Waste Policy Act of 1982, as amended. That section provides that, if at any time the Secretary determines the Yucca Mountain site to be unsuitable for development as a repository, the Secretary shall, among other things, "report to Congress not later than 6 months after such determination the Secretary's recommendations for further action to assure the safe, permanent disposal of spent nuclear fuel and high-level radioactive waste, including the need for new legislative authority." It would also be useful to have a description of the current status of DOE's efforts to put into place contracts with current and potentially new commercial reactor licensees.

As noted above, I am also willing to support an invitation for comment on whether the Commission's waste confidence update can reasonably allow for consideration of a broader -

range of disposal options. A Variety of potential'technological solutions to ultimate disposal may be. considered in the near future, 'even though the principal assessments, as well as the dominant policies in the U.S. and abroad, concern a mined geologic repository. For instance, I have heard the thoughtful suggestion that a deep borehole might be among the disposal paths for wastes remaining under some reprocessing and transmutation scenarios. Thus, I suggest that the Commission ask specifically whether the Commission's proposed Finding 2 and the related rule need reference a "mined" geologic repository when providing an estimate of the likely date of availability of a geologic repository. In addition, the Commission could inquire whether it.would be reasonable to use the broader terminology, "sufficient disposal capacity,"

instead of the references to "sufficient mined geologic repository capacity" in, the draft final updated Finding 2 and in the draft final rule, and whether it would be reasonable to make a similar change in Finding 3 (referring to "sufficient repository capacity").

The phrase, "sufficient disposal capacity" seems to encompass a geologic repository and the possibility of consideration of additional disposal paths. Yet, if such language were employed, it seems that the principal support for the pertinent findings would still be the

3 statutory direction, technical data, and policy support for a mined geologic repository. I make no assumption about the likely outcome of this inquiry if the Commission pursues it to a resolution.

My proposal should not be read as intended to diminish the importance of the government's legal obligation to provide a permanent disposal capacity for HLW and SNF. At the same time, I also recognize that Secretary Chu has stated that the Administration does "remain committed to meeting our obligations for managing and ultimately disposing of spent nuclear fuel and high-level radioactive waste." Letter from Secretary Chu to Senator Inhofe, dated June 1,-2009. However, the Commission's Waste Confidence Decisions have always taken account of the nation's progress in meeting those obligations. Consistent with that history, I see potential benefit in gaining more perspective and information on recent developments as we proceed to finalize an update to the Waste Confidence Decision. I also believe that my proposal is consistent with the staff's statement in SECY-09-0090 that the Commission may wish to defer action until it has additional information and insights that would provide a more informed decision. I look forward to deliberating with my fellow Commissioners on this proposal.

Dale E. Klein 09//14/09

t-,/, -ý)

NOTATION VOTE RESPONSE SHEET TO: Annefte Vietti-Cook, Secretary FROM: COMMISSIONER SVINICKI SLUJECT: SECY-09-0090 - FINAL UPDATE OF THE COMMISSION'S WASTE CONFUDENCE DECISION Approved XX in part Disapproved XX in part Abstain Not Participating COMME NT'S: Beiow Attached XX None Sf&NATfURE 091 /09 DATE Entered on "STARS" Yes ___ No

Comments of Commissioner Svinicki on SECY-09-0090 Final UDdate of the Commission's Waste Confidence Decision I do not support publication in the Federal Register of the draft final update of the Commission's waste confidence decision and final rule, as proposed by staff, at this time. The timeframe for public comment in this matter did not encompass the policy deliberatibns of recent months occurring between the Administration and the Congress, which may lead to a wholesale re-examination of the Nation:s path forward on high-level radioactive waste disposal. This decision and rule should be re-noticed for limited comment by the public on the Administration's recent announcements, and how they may impact the timeframe of availability of a geologic repository. Additionally, I believe the Commission should solicit the views of the Administration. Such action is not without historical precedent. 1 Following that, the staff should consider any additional comments received and then either recommend to the Commission an update to the waste confidencefindings and rule or offer its assessment that - until the policy debate matures further - the findings and rule are not ripe for the Commission's informed judgment to be updated at this time. This approach is consistent with the staff's acknowledgement that the Commission may wish to defer action on the draft final update and rule to incorporate additional information on .direction of the federal disposal program.

The existence of the policy framework provided by the Nuciear Waste Policy Act has played a significant role in the action of prior Commissions on the issue of waste confidence. In announcing its position on waste confidence in 1984, the Commission at that time-disclosed that the Nuclear Waste Policy Act "had a significant bearing on the Commission's decision." Although the legislation was "intrinsically incapable of resolving technical issues," it would "establish the necessary programs,. milestones, and funding mechanisms to enable their resolution in-the years ahead." Consequently, to-the extent that entireliy.new'. .approachies will be under consideration by any -future Blue Ribbon

'Pane commissions.

iLS:the attempts to0renew its confidence findings and to attach updated timeframes to the availability of disposal options might best berinformed by further opportunity for public comment.

The counterargument against further public comment is, of course, that the Commission confronts incessant churn in the Nation's laws and policies and that the Commission's In 1977, when President Carter issued a statement on nuclear policy announcing, "[wle will defer indefinitely the commercial reprocessing and recycling of the plutonium produced in the U.S. nuclear power programs," the Commission had under active deliberation its generic environmental impact statement on the use of mixed oxide fuel in light-water reactors (or, GESMO). The President's statement cast a significant shadow over the Commission's deliberations. As an independent regulatory agency. NRC was not obligated to follow President Carter's policies, but the Commissioners decided to suspend GESMO proceedings and to solicit comments from the President and the, public on how to proceed. To this end, on May 5. 1977, then-NRC Chairman Rowden sent a letter to President Carter asking for his "views on the relationship of your non-proliferation and national nuclear energy policies to the issues confronting the Commission." Stuart E. Eizenstat, Assistant to the President for domestic affairs and policy, ultimately replied on behalf of the President, advising the NRC that the "President believes that his nonproliferation initiatives would be assisted ... if the Commission were to terminate the GESMO proceedings."

finding of waste confidence - or any decision -- must be rooted in the law as we find it now. This is unarguably true. Yet, whiie I agree that the framework for nuclear waste disposal as enshrined in the Nuclear Waste Policy Act must be accepted as a settled matter, until and unless it is changed, the challenge of shutting one's ears to the din of the current debate is felt most acutely in attempts to establish the estimated "timeframe" for repository availability contained in Finding 2. The timeframe, as structured, does not turn on the question of feasibility, or even necessity, but rather, as noted in the draft final Statements of Consideration, "Finding 2 is not a finding that sufficient repository capacity must be available within 50 - 60 years of the licensed life of a reactor for public health or safety reasons; it is a prediction that a repository will be available in this period of time."

(p. 39, emphasis added)

Plainly put, this is a particularly difficult time to be in the prediction business. That said, however, the Court in State of Minnesota v. NRC (D.C. Cir. 1979) noted this approach and stated that "[t~he breadth of the questions involved and-the fact that the ultimate determination can never rise above a prediction suggest that the determination may be a kind of legislative iudgment for which rulemaking would suffice." As the Atomic Energy Commission's first Chief of the Environmental and Sanitary Engineering Branch, Mr.

Joseph Lieberman, sagely cautioned in 1960: however, in voicing his confidence that the nuclear industry would grow "in.a rational way without being hamstrung by its own wastes": "[Olne has to be very careful to distinguish between aspiration, reality, and speculation in this field."

At this point in our rulemaking process, the Commission has already specifically solicited public comment.on the necessity or merit of including a timeframe for repository availability in Finding 2. Some commenters, such as the State of Nevada and the Nuclear Energy Institute, favored a2 more general approach, i.e., that a repository will be available when needed, believ.ng that a:timeframe involves too much speculation. about futtire events anhd that licensed, st*rage. .of: spent-nuclear fuel will be safe no matter. the

-duration of storage prior to disposal. Some commenters, however, objected Stronglyto such an' approach; reasoning that a timeframe is necessary to provide an incentive for the Federal Government tomeet its. responsibilities under law to provide disposal. In my review of the history, the existence of a timeframe in Finding 2 - a date repeatedly extended by the Commission since its original decision in 1984 - has produced no discernable effect thus far. The more compelling argument for inclusion of a timeframe appears to be the conundrum created in trying to envelope a National Environmental Policy Act (NEPA)-worthy environmental analysis of the impacts of the storage of spent nuclear fuel for an indefinite period. I am informed by the NRC staff that a bounding analysis of this type would be challenging, would take a number of years to conduct, and would confront many analytical uncertainties.

This dilemma is important because waste confidence is, at its heart., an exercise in compliance with NEPA. The issue has its origins in challenges to the NRC's reactor licensing process that came about in the late 1970s. In Natural Resources Defense Council v. NRC (2d Cir. 1978), the Court noted with approval the.NRC's stated premise that it "would not continue to license reactors if it did not have reasonable confidence that the wastes car and will in due course be disposed of safely." Later decisions, such as J. Tamm's concurring opinion in Minnesota v. NRC opined that "if the Commission determines it is not reasonably probable that ah offsite waste disposal solution will be available when the licenses of the plants in question expire, it then must determine whether it is reasonably probable that the spent fuel can be stored safely onsite for an

indefinite period," the courts have also spoken to the role of other decisionmakers in this issue - namely, Congress.

As noted by the court in NRDC v. NRC (1978): "We are not without appreciation of the well-intentioned concerns of NRDC . .. NRDC urges that even if reasonable assurance of safe future disposal of waste could be demonstrated, 'the full incentive to develop such a facility on a timely basis will not be present unless the regulatory link is made now between reactor licensing and waste disposal.' This is the kind of argument that is properly made to the Congress ... it is for the Congress rather than the courts to translate such concerns into iaw. NRDC makes the point that 'serious political and social resistance to the development of a geologic repository is mounting throughout the country.'... Nevertheless, resolving the problem of such 'resistance'must come from the legislative branch of government ... " (emphasis added) For my part, I labor in the hope that the Congress and the Administration will work with dispatch to empanel the Blue Ribbon Panel; evaluate options; act, if necessary; and, lift the current cloud of uncertainty over the road ahead.

My comments here should not be interpreted as casting doubt on the Commission's prior and existing findings of waste confidence. i am confident that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impact in either the reactor spent fuel storage basin, or in dry cask storage on an onsite or offsite independent spent fuel storage installation, or in some combination of these storage options, for many decades. Further, since the provision of permanent disposal capacity for high-level radioactive waste and spent fuel is, as a matter of law,.the obligation of the federal government (a commitment affirmed to the Congress by the

.current Energy Secretary and which the current Administration has not sought to disturb), I believe that the existence of this obligation provides =.basis fo.r-confidence that such disposal capacify will beýprovided by the federal-government at a future time. I-

.Operatewith the conviction that high'-level radioactive waste and spent fu&el will be managed in a safe manner until such disposal capacity is provided because there does now and will exist in the future a governmental authority to ensure that this is so.

As I consider these questions, I feel keenly the heavy burden of weighing the equities of future generations of Americans who will inherit these concerns. I share the commitment of my fellow Commissioners to preserving the credibility of this and future Commissions by remaining above the political froth of nuclear policy debates; these debates are not our domain. Our charge is that laid forth by Judge Tamm [Natural Resources Defense Council v. NRC (D.C. Cir. 1976), concurring opinion] who wrote so powerfully:

NEPA requires the Commission fully to assure itself that safe and adequate storage methods are technologically and economically feasible.

It forbids reckless decisions to mortgage the future for the present, glibly assuring critics that technological advancement can be counted upon to save us from the consequences of our decisions.

L. Svinicki 09* * /09

October 26, 2009 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

Entergy Nuclear Operations, Inc. ) Docket Nos.

(Indian Point Nuclear Generating ) 50-247-LR Units 2 and 3) ) and 50-286-LR CERTIFICATE OF SERVICE I certify that on October 26, 2009 copies of the foregoing Petition for New Contention, exhibits 1-3 including the Declaration of Dr. Gordon Thompson dated October 26, 2009 were served on the following by first-class mail and e-mail:

Lawrence G. McDade, Chair Judge Kaye D. Lathrop Atomic Safety and Licensing Board Panel 190 Cedar Lane East Atomic Safety and Licensing Board Ridgeway,.CO 81432 U.S. Nuclear Regulatory Commission E-mail: i ,.. C,_T-.1,,

, 'L- 1, Washington, D.C. 20555 E-mail:L1.~ ~~~r O Richard E. Wardwell Michael J. Delaney, V.P. - Energy Atomic Safety and Licensing Board New York City Econ. Development Corp.

U.S. Nuclear Regulatory Commission 110 William Street Washington, D.C. 20555 New York, NY 10038 E-mail: Ki ad. e,4d -ij. uý

• o E-mail: d .1,a John J. Sipos, Esq. Martin J. O'Neill, Esq.

Assistant Attorney General Kathryn K[ Sutton, Esq.

Office of the New York Attorney General Paul M. Bessette, Esq.

.for the State of New York Mauri T. Lemoncelli, Esq.

The Capitol Morgan, Lewis & Bockius, LLP Albany, NY 12224 1111 Pennsylvania Ave. N.W.

E-mail oa,. slate, ny. t s Washington, D.C- 20004 E-mail

. r....

Diane Curran, Esq. Office of Commission Appellate Adjudication Harmon, Curran, Spielberg & Eisenberg, LLP U.S. Nuclear Regulatory Commission 1726 M. Street NW, Suite 600 Washington, D.C. 20555 Washington, DC 20036 E-mail: 0.1CA, V..T<?',r,>

E-mail: . ....

Office of the Secretary William C. Dennis, Esq.

Rulemakings and Adjudications Staff Entergy Nuclear Operations, Inc.

U.S. Nuclear Regulatory Commission 440 Hamilton Avenue Washington, D.C. 20555 White Plains, NY 10601 E-mail: '- L ° A . . E-mail:

Justin D. Pruyne, Esq. Joan Leary Matthews, Esq.

Assistant County Attorney, Litigation Bureau Senior Attorney for Special Projects Of Counsel to Charlene M. Indelicato, Esq. New York State Department Westchester County Attorney of Environmental Conservation 148 Martine Avenue, 6t Floor 625 Broadway, 14th floor White Plains, NY 10601 Albany, New York 12233-5500 E-mail- ....... ......

ei E-mail:.. A

.Zachary S. Kahn, Esq, Law Clerk Thomas F. Wood, Esq.

Atomic Safety andLicensing Board Panel 'Daniel Riesel, Esq" U.S. Nuclear Regulatory Commission *Ms.Jessi.ca Steinberg, J.D.

Washington, D.C. 20555 Sive, Paget and Riesel, P.C.

E-mail: Z/chiatv',imhu7;,tc . 460 Park Avenue New York, NY 10022 E-mail: ,dIIcrIeii~vp-c.\.m Robert D. Snook, Esq. John L. Parker, -Esq.

Assistant Attorney General Regional Attorney, Region 3 55 Elm Street, P.O. Box 120 New York State Department of Hartford, CT 06141-0120 Environmental Conservation E-mail: RK_+/-Snork *..,c 21 South Putt Comers New Paltz, NY, 12561 E-mail: .1 "

Elise N. Zoli, Esq. Janice A. Dean, Esq.

Goodwin Procter, LLP Assistant Attorney General 53 State Street Office of the Attorney General Boston, MA 02109 120 Broadway, 26'h Floor E-mail: Wzk:.[i-:.,...!&4,_-J,:.ý,ýý,,.I . New York, NY 10271 E-m ail: ..... .

7

Sherwin E. Turk Daniel E. O'Neill, Mayor Beth N. Mizuno James Seirmarco, M.S.

Brian G. Harris Village of Buchanan David E. Roth Municipal Building Andrea Z. Jones 236 Tate Avenue Office of General Counsel Buchanan, NY 10511-1298 Mail Stop: 0-15D21 E-mail.---

U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail:

0 '* } i.: gi' > r*;*{

Mylan L. Denerstein, Esq. Phillip Musegaas, Esq.

Executive Deputy Attorney General Victor M. Tafur, Esq.

120 Broadway, 25b Floor Deborah Brancato, Esq.

New York, NY 10271 Riverkeeper, Inc.

E-mail: >,828 South Broadway Tarrytown, NY 10591 E-Mail.

Ross Gould October 26, 2009