ML101160415

State of New York'S Combined Reply to Energy and NRC Staff Answers to the State'S New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis

ML101160415
Person / Time
Site:	Indian Point
Issue date:	04/12/2010
From:	Jeremy Dean State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-346
Download: ML101160415 (40)

Text

DOCKETED USNRC April 13, 2010 (8;30am)

UNITED STATES OFFICE OF SECRETARY NUCLEAR REGULATORY COMMISSION RULEMAKINGS AND ADJUDICATIONS STAFF ATOMIC SAFETY AND LICENSING BOARD

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7 X In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 12, 2010

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x STATE OF NEW YORK'S-COMBINED REPLY TO ENTERGY AND NRC STAFF ANSWERS TO THE STATE'S NEW AND AMENDED CONTENTIONS CONCERNING THE DECEMBER 2009 SEVERE ACCIDENT MITIGATION ALTERNATIVE REANALYSIS Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

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Table of Contents IN TR O D UC T IO N ........................................................................................................................... 1 O VER VIEW .......................................................................................................... 2

1. ENTERGY AND STAFF MISCHARACTERIZE CONTENTIONS 35 AND 36 AND THEREBY FAIL TO ADDRESS THEIR M ERITS .................................................................................. 5 A . Contention 35 Raises M aterial Issues ...................................................................... 9 B. Contention 36 Raises Material Issues

1. Entergy and Staff Oversimplify Methow Valley and the State's Argum ent ........ :.................................. ...................................... 12

2. No Rational Basis Is Provided For Refusing to Implement the Nine SAMAs That Will Provide A Substantial Increase in Public Safety At A Cost Far Below The Benefit They Will Provide ..... .................... 16..............

3. The SAMA Analysis Was Initially Required so that Mitigation Measures Would be Implemented;*

The Commission Did Not Intend This Analysis as an A cadem ic E xercise ... ....... ................................................................................. 1..

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4. NRC Caselaw Does Not Support Entergy's and Staff's Positions..'................................................................... 20 II. CONTENTIONS 35 AND 36 ARE TIMELYTPURSUANT TO 10 C.F.R. § 2.309(f)(2) BECAUSE THEY ARE BASED ON MATERIALLY DIFFERENT INFORMATION THAT WAS PREVIOUSLY UNAVAILABLE, AND WERE FILED WITHIN THE TIME FRAME GRANTED BY THE LICENSING BOARD ............................................. 22 A. Contentions 35 and 36 Arise Out of the December 2009 SAMA Reanalysis and the Detailed Information Regarding That Analysis Subsequently Provided by Entergy ................... ....... ....... .......

. ...... 23 B. Contentions 35 and 36 Could Not Have Been Raised Any Earlier Because the Facts Supporting Them Appeared for the First Time in Entergy's N ew SA M A A nalysis ............................................................................................. 25 i

III. NEITHER ENTERGY NOR STAFF SUBSTANTIVELY CHALLENGE CONTENTION 16-B'S ADMISSIBILITY ............................................ 32 IV. NEITHER ENTERGY NOR NRC STAFF CONTEST CONTENTION 12-B'S ADMISSIBILITY ...................................................... I.................... 34 C ON C L U SION ................................................................................ ............................................. 34 ii

INTRODUCTION The State of New York, as authorized by 10 C.F.R. § 2.309(h)(2), respectfully submits this reply to the answers of Entergy and NRC Staff to the State's submission of new and supplemental contentions 12-B, 16-B, 35, and 36.1 Since Entergy and NRC Staff focus much of their efforts on Contentions 35 and 36, this reply will address those contentions first before discussing Contentions 16-B and i2-B.

Those answers reflect that, contrary to NRC decisions and' guidance, Entergy and NRC Staff seek to avoid the requirement that the analysis of measures to mitigate the effects of a severe reactor accident be accurately and thoroughly reviewed pursuant to the National Environmental Policy Act. The NRC Commissioners previously have spoken to this qdestion andhave made clear that the license renewal rule does not curtail such a review of mitigation measures and that the Commission may require cost-effective mitigation measures to be implemented as part of a renewed operating license. Unfortunately, Entergy and NRC Staff have chosen not to follow those statements, and instead have tried to preclude the State's supplemental contentions. Entergy and NRC Staff's position is especially regrettable in the case of Indian Point, which has the highest surrounding population of any reactor site in the country and which may realize substantial benefits from the implementation of cost-effective mitigation measures.

The State of New York notes that the Attorney General for the State of Connecticut submitted an answer supporting the admission of the contentions. Answer of the Attorney General of the State of Connecticut to State of New York's Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (dated April 1,2010).

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OVERVIEW On December 14, 2009, Entergy provided this Board and the State of New York an analysis of various measures to mitigate the environmental impacts of severe accidents at the Indian Point power reactors (December 2009 SAMA Reanalysis). That December 2009 submission replaced portions of Attachment E to Entergy's April 2007 Environmental Report that accompanied Entergy's license renewal application. Over the following weeks, Entergy provided the State with additional documents related to the December 2009 SAMA Reanalysis and how it was conducted. Entergy seeks to emphasize that the December 2009 SAMA Reanalysis merely substituted one year of meteorological data for the synthesized five year set of meteorological data used in the SAMA analysis that was submitted to NRC in April 2007.

While the December 2009 SAMA Reanalysis did indeed reflect that change, it did much more.

To begin with, the use of one year of data corrected a wind direction error contained in the initial SAMA analysis and revealed that the wind direction occurs more often in a general southerly, directiontowards relatively-densely-populated cities and towns than reported in the initial SAMA analysis. But the December 2009 SAMA Reanalysis also reflects a number of other changes. The SAMA Reanalysis also appears to have recalibrated the contents of an economic cost input file (see Chanin Statement, ¶11), analyzed the loss of tourism and business as a base-case (id., ¶12), incorporated revised cost estimates in certain instances (see, e.g., IP2 SAMA 028, see also cost estimates with a dagger. ("t") symbol), and incorporated certain scenarios and mitigation measures identified by NRC Staff (2009 SAMA Reanalysis, NL-09-165, Attachment 1, at pp. 29-31). The December 2009 SAMA Reanalysis represents a synthesis of all these changes. into a single, new SAMA analysis. Most importantly, the results.of Entergy's December 2009 SAMA Reanalysis differ significantly from the results presented in Entergy's 2

initial SAMA analysis: several SAMA measures that had been identified as not cost-effective in the. baseline case became potentially cost-effective, and several other SAMA measures became clearly and dramatically cost-effective.

Both Entergy and NRC Staff concede that there is more work to be done in determining the final cost estimate for the potentially cost-effective SAMAs identified in the December 2009 SAMA Reanalysis. See Applicant's Answer to New York State's New and Amended Contentions Concerning Entergy's December .2009 Revised SAMA Analysis (Apr. 5, 201 0)(Entergy Answer) at 10; NRC Staff's Answer to State of New York's New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis (Apr. 5, 2010)(NRC Staff Answer) at 23. And Entergy indicates that it is in the process of developing a plan to implement some of the cost-effective SAMAs. Entergy Answer at 12.

Thus, it appears that the real basis for their opposition to Contentions 35 and 36 is not that those contentions do not raise legitimate and material issues, but rather that Entergy and Staff would prefer that many SAMAs be excluded from consideration in this license renewal process where both public participation and Board decisions can alter the results of their contemplated ongoing SAMA process. However, as Entergy and Staff s own citations demonstrate, the NRC Commissioners have rejected attempts to jettison SAMA analysis from the license renewal context and have made clear that cost-effective mitigation measures may be examined in a NEPA alternatives analysis and be required to be implemented as a condition of license renewal.

The crux of the argument advanced by Entergy and NRC Staff against admissibility of Contention .36 is that there is no requirement under NEPA that any mitigation measure, regardless of its cost-effectiveness, must be implemented. Their argument hinges on two assertions: first, that courts and the Commission have rejected the proposition that an agency can 3

compel any particular mitigation alternative to be adopted; and second, that Part 54 excludes implementation of mitigation measures unless the measure is itself directly related to aging management. These arguments are in direct conflict with the Commission's clear declarations to the contrary at the time it adopted the GEIS as a regulation and at the time it rejected an NEI petition to amend its prior regulations on SAMA analyses. In those actions, the Commission made clear that where mitigation alternatives proved to be cost-effective, their implementation in the license renewal proceeding would be warranted, and that Part 54 and its limited scope are irrelevant to the obligation to conduct SAMA analyses under Part 51.

When it adopted the GEIS as a regulation, the Commission addressed SAMAs specifically and how they were to be treated. It stated, in part:

Although Level 3 PRAs have been used in SAMDA analyses to generate site-specific offsite dose estimates so that the cost-benefit of mitigation alternatives could be determined, the Commission does not believe that site specific Level 3 PRAs are required to determine whether an alternative under consideration will provide sufficient benefit to justify its cost. Licensees can use other quantitative approaches for assigning site-specific risk significance to IPE results and judging whether a mitigation alternative provides a sufficient reduction in core damage frequency (CDF) or release frequency to warrant implementation.

In some instances, a consideration of the-magnitude ofreduction in the site specific CDF and release frequencies alone (i.e., no conversion to a dose estimate) may be sufficient to conclude that no significant reduction in off-site risk will be provided and, therefore, implementation of a mitigation alternative is not warranted.

61 Fed. Reg. 28467, 28481 (June 5, 1996)(emphasis added). Thus, the Commission held that a determination should be made during the license renewal process, based on a cost-effectiveness analysis, whether the implementation of specific SAMAs as part of the renewed license would be warranted.

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Five years later, the Commission considered a proposal from NEI that sought to have the

• SAMA analysis eliminated from license renewal. 66 Fed. Reg. 10834 (Feb. 20, 2001). NEI unsuccessfully advanced many of the arguments Entergy and NRC Staff advance here in support of the proposed regulation. Entergy participated in that administrative process and supported NEI's arguments. See Letter from J. Vandergrift (Entergy) to A. Vietti-Cook (NRC) (Nov. 16, 1999 )(filed in PRM 51-7), ML003760138. All of those arguments were rejected by the Commission. With regard to the argument that Part 54's narrow scope should confine the SAMA analysis under Part 51, the Commission wrote:

In the case of license renewal, it is the Commission's responsibility under NEPA to consider all environmental impacts stemming from its decision to allow the continued operation of the entire plant for an additional 20 years. The fact that the NRC has determined that it is not necessary to consider a specific matter in conducting its safety review under Part 54 does not excuse it from considering the impact in meeting its NEPA obligations.

Id. 66 Fed. Reg. at 10836.

I. ENTERGY AND STAFF MISCHARACTERIZE CONTENTIONS 35 AND 36 AND THEREBY FAIL TO ADDRESS THEIR MERITS Entergy and NRC Staff mischaracterize the State of New York's two new contentions and, by rebutting arguments that the State never raised, fail to provide any basis for rejecting the two new contentions as filed. Contrary to the arguments advanced by Entergy and NRC Staff, neither, Contention 35 nor 36.is solely based upon the requirements of the National Environmental Policy Act ("NEPA"). Rather, these two contentions are based upon the regulations and policies adopted by the NRC for implementing its obligations under NEPA including a number of guidance documents on which both Entergy and NRC Staff rely in their Answers. Contention 36 is also based upon the Administrative Procedure Act ("APA") that 5

requires all federal agencies to offer a rational basis for each decision reached. Neither Entergy nor NRC Staff deny that the SAMA analysis requires that "the cost of each SAMA candidate should be conceptually estimated to the point where economic viability of the proposed modification can be adequately gauged." NEI 05-01 (Rev. A) Severe Accident Mitigation Alternatives (SAMA) Guidance Document at 28; see Entergy Answer at 6. Neither Entergy nor NRC Staff challenge the State of New York's analysis that a "rational basis" must exist for refusing to adopt a cost-effective SAMA. Neither Entergy nor NRC Staff challenge the' State's analysis showing how the entire SAMA process - as described in NEI and NRC Staff guidance documents - contemplates not only an analysis of alternatives, but that some action is to be taken based upon that analysis.

In addition, the underlying principle at issue in both contentions and in the SAMA analysis is the proper consideration of alternatives. The proposed action, to which alternatives are required to be .considered, is license renewal without any of the cost-effective SAMAs added as license conditions. Each SAMA represents an alternative to that proposed action. While the Commissioner may have discretion in deciding what. mitigation measures shall be implemented at a particular site, it does not have the discretion to reject any alternative without a rational basis to do so. See, e.g., Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983).

In the case of Contention 35, both Entergy and NRC Staff concede that further cost analyses will occur and that the analyses may make an alternative no longer cost-effective.

Entergy.Answer at 10; NRC Staff Answer at 23. In the case of Contention 36,-both Entergy and NRC Staff assert that NEPA cannot compel the NRC to implement any SAMA, but ignore the fact that under the Administrative Procedure Act such a refusal has to have a rational basis. The 6

sole basis offered in the December 2009 SAMA Reanalysis for not implementing cost-effective SAMAs is an assertion that the SAMAs. are not-related to aging management, with a citation to Part 54. Id. at 32. At no time do Entergy and NRC Staff s Answers explain how either of those excuses represent a rational basis that justifies the failure to find implementation of cost-effective SAMAs is "warranted" since: (1) SAMAs are not limited to aging management; and (2) Part 54 requires compliance with Part 51.2 Nor, as Entergy would have it (Entergy Answer at 21), are the two contentions "nearly identical." Contention 35 relates solely to nine SAMAs 3 which were not, until the December 2 At several points in its Answer, Entergy suggests what it believes are additional "rational bases" for not implementing cost-effective SAMAs. Since these are not part of the ER, and appear only as lines of argument in a brief, they are of no legal effect and are more like the post-hoc rationalizations which courts routinely reject as insufficient to sustain a prior agency action. See, e.g., Morgan Stanley CapitalGroup Inc. v. Public Utility Dist. No. 1 of Snohomish County, Wash., 128 S.Ct. 2733, 2758 (2008)("under the doctrine set forth in SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), 'we cannot accept appellate counsel's post hoc rationalizations for agency action; for an agency's order must be upheld, if at all, on the same basis articulated in the order by the agency itself,' Texaco, 417 U.S., at 397, 94 S.Ct. 2315 (internal quotation marks omitted)").

3 As the State of New York explained in Contention 36, the State sought to focus on SAMAs that were cost-effective in the baseline case. State of New York's New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis at p. 37, ¶ 5. For the same reason, in Contention 35 the State has focused only on SAMAsthat have been shown to be cost-effective in the baseline case for the first time in December 2009 SAMA Reanalysis. Thus, Entergy mistakenly asserts that only six SAMAs are newly-identified as cost-effective. Entergy Answer at 23. As explained in the State of New York's New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis, at pp. 15 (n.5) and 23, there are three additional SAMAs, which were not previously identified in the ER or the SAMA analysis as cost effective in the baseline case, that are now identified by Entergy in the December 2009 SAMA Reanalysis as cost-effective in the baseline case for the first time. Likewise, NRC Staff mistakenly asserts that all the SAMAs in Contention 35 were previously identified as cost-effective. NRC Staff Answer at 13 ("Significantly, nowhere in either contention does the State identify a single severe accident mitigation alternative that Entergyhas not previously identified as potentially cost-beneficial."). NRC Staff then presents .a chart presumably to illustrate this point (NRC Staff Answer at 15), but that chart demonstrates that it is NRC Staff who is mistaken. That chart lists six SAMAs as being cost-effective for the first time in the December 2009 SAMA Reanalysis (IP2-2 1, IP2-22, IP2-62, 7

2009 SAMA Reanalysis, determined to be cost-effective under the baseline analysis. It is Entergy which acknowledges that additional engineering cost work needs to be done to determine if the nine identified SAMAs are cost-effective. Contention 35 is based on the fact that, underNEPA and NRC regulations and guidance, Entergy is not allowed to truncate its cost benefit analysis at this point but must complete the process of determining whether a SAMA is cost-effective or not. Unless Entergy and NRC Staff will concede that, regardless of any further analysis, these nine SAMAs are cost-effective, then further cost-effectiveness analysis is required. Since Entergy has admitted that it is conducting further cost-effectiveness analysis - a process it would be unlikely to pursue if it were for no purpose - Entergy is required to share that additional analysis with the parties and the Board so that a final determination can be made as to which of the proposed SAMAs are sufficiently cost-effective for the NRC Staff to determine whether their implementation is warranted.

Contention 36 is focused on nine other SAMAs which the December 2009 SAMA Reanalysis-determines have an enormous. benefit as compared to their projected cost. As the December 2009 SAMA Reanalysis reveals, the demonstrated benefit has now become so great that it can now be credibly alleged that there is a substantial safety benefit to be achieved by implementing these SAMAs that greatly exceeds the projected cost. The factual basis for Contention 36 derives solely from the information provided by the December 2009 SAMA Reanalysis. The legal basis for the contention is that the NRC Commissioners have interpreted NEPA to require that SAMA analyses identify all cost-effective SAMAs and implement all the cost-effective SAMAs that are warranted. The decision as to whether implementation is IP3-07, IP3-18, IP3-19), and the State listed those six in Contention 35. Moreover, Staff's chart proceeds to make the same mistake as Entergy by ignoring three additional SAMAs that became cost-effective in the baseline case for first time in the December 2009 SAMA Reanalysis, and which the State also included in Contention 35.

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"warranted" issubject to the requirements of the Administrative Procedure Act that there be a rational basis for the decision. The sole basis offered for not implementingthese nine SAMAs is a glancing reference to Part 54, which not only does not support the decision to ignore these SAMAs but affirmatively obligates Entergy to comply with the requirements of Part 51 under which the SAMA analysis is conducted. Thus, the failure to implement the nine substantially cost-effective SAMAs is without a rational basis and cannot be sustained. Entergy and NRC Staff take the indefensible view that the entire SAMA analysis is nothing but a hollow exercise in which SAMAs that will substantially improve safety - in some cases reducing the population dose risk by over 40% - and at a very modest cost (in some cases the benefit exceeds the cost by more than 20x) are to be identified, but not implemented, even when there is no rational basis for refusing to implement the SAMA. 4 Case law, NRC regulations, policy statements, and decisions, and the regulatory history of SAMAs refute the argument advanced by Entergy and NRC Staff.

A. Contention 35 Raises Material Issues In response to Contention 35, Entergy and Staff both argue that, essentially, enough analysis has been done to determine that the nine SAMAs are now cost-effective and that no more needs to be done. Entergy Answer at 27-30; NRC Staff Answer at 23. Curiously, though, 4 In its Answer Entergy inaccurately asserts that the State of New York was claiming that NRC was making a mockery of the NEPA/SAMA process. Entergy Answer at 27, n. 145. In fact, it is Entergy and NRC Staff that are making a mockery of the process by affirming that a thorough SAMA analysis needs to be done, that cost-effective measures need to be identified but that nothing should be done with the results. At one point Entergy even suggests that maybe it is doing something to implement some cost-effective SAMAs, but refuses to allow the public or this' Board to know what exactly it is doing and what the resultant impacts on public safety and the environment may be. Entergy Answer at 12 ("At IP2 and IP3, Entergy has internal engineeringchange requestprocesses in place for requesting plant modifications, as part of current plant operations, and evaluating the technical, regulatory, and economic feasibility of such proposed modifications." (Emphasis added)).

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both Entergy and NRC Staff then go on to demonstrate (1) that more analyses will be done and (2) that as a result of those analyses the cost-effectiveness of any or all of the nine SAMAs may be changed. Entergy Answer at 10; NRC Staff Answer at 23. Thus, the dispute raised by Contention 35 is not whether more cost analyses will be conducted, but rather whether those analyses will occur within the NEPA and the NRC-mandated SAMA analysis and be subject to potential consideration by the public and this Board, or whether they will be conducted outside the public's and the Board's scrutiny.

The December 2009 SAMA Reanalysis admits, after listing six of the nine new cost-effective SAMAs, and Entergy acknowledges in its Answer, that "the above potentially cost beneficial SAMAs have been submitted for engineering project cost-benefit analysis."

December 2009 SAMA Reanalysis at 32; Entergy Answer at 10. NRC Staff asserts that "further analysis could result in a refinement of the cost benefit ratio of those particular SAMAs, or in the deletion of certain SAMAs as no longer cost-beneficial." NRC Staff Answer at 23. Thus, clearly, more work will be done, and the range of cost-effective mitigative measures may be altered by that work. It is difficult to see how that work can be excluded from the impact statement and still fulfill the goals of the impact statement process.

In In the Matter of Duke Energy Corporation(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units I and 2) CLI-02-17, 56 N.R.C. 1 (2002), the Commission confirmed that NEPA requires development of all relevant information to assure informed decision-making and public participation and rejected the line of argument advanced by Entergy and NRC Staff:

Duke also claims that the contention is inadmissible because NEPA cannot require Duke to implement any particular SAMA, regardless of how the cost-benefit calculations come out. Quoting Robertson v. Methow Valley Citizens Council, Duke stresses that 10

"NEPA imposes no substantive requirement that mitigation measures actually be taken." Thus, argues Duke, the contention would not. entitle Petitioners to any meaningful relief in this proceeding. This argument, however, is fallacious. While NEPA does not require agencies to select particularoptions, it is intended to 'foster both informed decision-makingand informed public participation,and thus to ensure that the agency does not act upon ihcomplete information,only to regret its decision after it is too late to correct." If Duke's premise held true, there never could be an admissible NEPA contention because, as Duke notes, "the only relief possible [under NEPA] is further analysis." But the adequacy and accuracy of environmental analyses and proper disclosure of information are always at the heart of NEPA claims, if "further analysis" is called for, that in itself is a valid and meaningful remedy under NEPA. As the Board explained, if the Petitioners prevailed on this contention, they would be entitled to "consideration in Duke's SAMA analysis of the [Sandia study]

information."

Id., 56 N.R.C. at 10 (emphasis added). Since both Entergy and NRC Staff agree that more cost analysis is to be completed with regard to the nine SAMAs identified in Contention 35, pursuant to the requirements of NEPA and the Commission's holding in McGuire/Catawba,that additional analysis is required to be included in the SAMA analysis, the ER and the DSEIS/SEIS.

The inclusion ofthis information in the SAMA analysis is not only important to assure that the record is completed, "to ensure that the agency does not act upon incomplete information, only to regret its decision after it is too late to correct," Duke Energy Corp.

(McGuire/Catawba),CLI-02-17, 56 N.R.C. 1, 10 (2002) but also to assure that when NRC determines whether it will require implementation of the cost-effective SAMAs, the full record is available in order to evaluate whether its action has a rational basis. It is correct that Entergy and NRC could make any further cost analyses irrelevant by making a statement in the ER and the DSEIS/SEIS that the nine identified SAMAs are cost-effective (not "potentially" cost-effective) and that in determining whether to implement any of these nine SAMAs it will assume that the 1I

current cost estimates are accurate and not to be discounted because of any "conservative" assumptions or incomplete analyses. Of course, neither Entergy nor NRC Staff has made such a statement.

Entergy spends a great deal of time asserting that its SAMA analysis follows the guidance from NEI and NRC Staff and thus is beyond reproach. But it does not provide any response to the arguments advanced in Contention 35 that the NEI guidance requires the cost benefit analysis be advanced "to the point where economic viability of the proposed modification can be adequately gauged." NEI 05-01 (Rev. A) Severe Accident Mitigation Alternatives (SAMA) Guidance Document at 28. Since Entergy has not agreed that economic viability of the nine SAMAs identified in Contention 35 have reached this point and that further engineering cost analysis is to be conducted, they are not in compliance with NEI guidance. Similarly, Entergy ignores the NRC Staff guidance identified in Contention 35 that requires sufficient information be provided so that NRC Staff can determine whether implementation of a SAMA is "warranted." See, e.g., NRC Standard Review Plan at 5.1.1-7 to 5.1.1-8. Even NRC Staff concedes that it is not yet able to determine whether implementation of any SAMA is warranted because further analyses to be conducted by Entergy on the nine identified SAMAs could result in one or more of the SAMAs no longer being cost-effective. NRC Staff Answer at 23.

Thus, by their own admissions, Entergy and NRC Staff concede that the further economic analyses which Entergy intendsto conduct are relevant to the SAMA analysis and therefore, must be included in the SAMA analysis.

B. Contention 36 Raises Material Issues

1. Entergy and Staff Oversimplify Methow Valley and the State's Argument Entergy and'Staff have re-drafted the State's argument so that their responses can be 12

simpler than the State's more nuanced argument requires; the State does not argue in Contentions 35 or 36 that NEPA itself compels implementation of mitigation measures. As'discussed below, the State's contentions rest on the interaction between NEPA's requirement of detailed alternatives analysis, the interplay between Part 51 and Part 54, the regulatory history of SAMA analyses and statements the Commission has made on the subject and the requirements of the Administrative Procedure Act. Both Entergy and NRC Staff offer only overbroad arguments that Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) bars acceptance of these contentions. Although this case is instructive, neither Entergy nor Staff appear to have focused on the critical portions of the opinion.

Methow Valley involved a proposed development which needed a permit from the Department of Interior to begin the planning process. Like the instant application, the activity proposed to be undertaken had the potential for substantial environmental impacts. Like the instant application, there were a number of alternatives that, if implemented, would substantially reduce those adverse impacts. However, unlike the instant application, the Interior Department did not decline to insist that the mitigation measures be implemented. Rather, the Department took several steps to assure that appropriate mitigation measures were taken:

In his decision, the Regional. Forester found that no major adverse effects would result directly from the federal action, but that secondary effects could include a degradation of existing air quality and a reduction of mule deer winter range.... He therefore directed the supervisor of the Okanogan National Forest, both independently and in cooperation with local officials, to identify and implement certain mitigating measures.

the Magistrate noted that additional mitigation strategies would be included in the master plan, that the Forest Service continues to develop mitigation plans as further information becomes available, and that the Regional Forester's decision conditioned issuance of the special use permit on execution of an agreement between the ForestService, the State of Washington, and Okanogan County 13

concerningmitigation.

Methow Valley, 490 U.s. at 345-346 (citations omitted)(emphasis added). Unlike this application, the Interior Department did not have jurisdiction over entities that would have to implement the mitigation measures:

In this case, the off-site effects on air quality and on the mule deer herd cannot be mitigated unless nonfederal government agencies take appropriate action. Since it is those state and local.

governmental bodies that have jurisdiction over thearea in which the adverse effects need be addressed and since they have the authority to mitigate them, it would be incongruous to conclude that the Forest Service has no power to act until the local agencies have reached a final conclusion on what mitigating measures they consider necessary.

Methow Valley, 490 U.S. at 352-53. Even though the Interior Department did not have jurisdiction over the state and local governments, it still entered into a memorandum of understanding with them in order to have a commitment that the necessary mitigation measures would be taken. Methow Valley, 490 U.S.at 353, n.16. Finally, unlike this case where the permit will authorize an additional 20 years of operation and no further permitting will be required, the permit being issued in Methow Valley was a preliminary permit which did not itself authorize any construction activity:

The special use permit does not, however, give the developer the right to begin construction. See 36 CFR § 251.56(c) (1988). In a final stage of review, the Service evaluates the permittee's "master plan" for development, construction, and operation of the project.

Construction may begin only after an additional environmental analysis (although it is not clear that a second EIS need always be prepared) and final approval of the developer's master plan.

Id. 490 U.S. at 337.

The argument respondents unsuccessfully advanced in the Methow Valley case was that the mitigation measures that would be taken in the future were not spelled out in sufficient detail 14

to know precisely what would be done. The Court agreed that the Department of Interior had a rational. basis for not, at that early stage of the proposed project, spelling out in more detail precisely how the mitigation which was to be achieved, would be achieved, and which regulatory authority would achieve it. In this case the State of New York has no complaint, at least at this stage of the proceeding, with the detail regarding what would be done under. each of the cost-effective SAMAs.

Thus, Methow Valley stands for the proposition that if a federal agency includes in its Environmental Impact Statement, for the preliminary approval of an action with substantial potential adverse environmental impacts, requirements that certain mitigation measures be taken to alleviate the adverse impacts, it need not spell out in substantial detail at that early date precisely what mitigation measures will betaken by entities over which it has no direct jurisdiction as long as it enters into a memorandum of understanding with those entities in which they are committed to take the necessary mitigation measures. Methow Valley does not provide a legal justification for Entergy or NRC to refuse to implement those specifically identified mitigation alternatives that are significantly, cost-effective and will provide a substantial increase in safety and a substantial reduction in potential adverse environmental impacts.

If NRC Staff and Entergy were actually following the guidance provide by Methow Valley and the example set by the Interior Department in that case, NRC Staff would require the implementation of, and Entergy would implement, the SAMAs identified as cost-effective as conditions of the proposed license-renewal because the alternative license that included those conditions would result in substantially less potential adverse environmental impact than Entergy's proposal and would becost-effective.

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2. No Rational Basis Is Provided For Refusing to Implement the Nine SAMAs That Will Provide a Substantial Increase in Public Safety At A Cost Far Below The Benefit They Will Provide It is noteworthy that in the Methow Valley case, the Interior Department offered substantial rational bases for why it was not able to provide a more detailed description of the mitigation measures that would have to be implemented. That is in sharp contrast to the December 2009 SAMA Reanalysis's breezy dismissal of the cost-effective SAMAs identified in Contention 36 on grounds that they are not related to aging management and that some unidentified portion of Part 54 excuses requiring implementation. Even the newly created excuses in Entergy's Answer, like the claim that any requirements would have to be implemented pursuant to Part 50 because they involve the CLB, provide no justification for not requiring that such implementation occur, under whatever Part is appropriate, as a condition for license renewal.

Not only does'Part 54 explicitly require compliance with Part 51 (10 C.F.R. §54.29(b))

but Part 54 also contemplates precisely what Entergy and NRC Staff assert cannot be done: i.e.,

that the analyses conducted pursuant to Part 51 can result in licensing conditions being added to the CLB. Part 54 requires that obligations which arise as a result of the reviews required by Part 51 are to be added to- the renewed license as conditions:

(c) Each renewed license will include those conditions to protect the environment-that were imposed pursuant to 10 CFR 50.36b and that are part of the CLB for the facility at the time of issuance of the renewed license. These conditions may be supplemented or amended as necessary to protect the environment during the term of the renewed license and will be derivedfrom information containedin the supplement to the environmental reportsubmitted pursuant to 10 CFR part51, as analyzed and evaluated in the NRC record of decision. The conditions will identify the obligations of the licensee in the environmental area, including, as appropriate, requirements for reporting and recordkeeping of environmental data and any conditions and monitoring requirements for the 16

protection of the nonaquatic environment.

10 C.F.R. § 54.33(c)(emphasis added). It may be that the process by which SAMAs are implemented is through Part 50, but that is irrelevant to the issue of whether cost-effective SAMAs that provide substantial improvements in safety can be required to be implemented as theresult of the SAMA analysis. Because it is the SAMA analysis that results in identifying alternative mitigation measures that are preferable alternatives to license renewal, it is the license renewal permit that must have the requirement for implementation regardless of the Part under which implementation is accomplished. In addition, the State of New York is not arguing for implementation of any of these alternatives during the current licensing term (although given the substantial benefits to be obtained compared to the costs to be incurred it would be prudent and in the public interest were that to occur), but .is arguing that they should be added to Indian 5

Point's future safety obligations as a condition of license renewal.

Entergy also asserts that the analysis under Part 51 is independent of Part 54 and that nothing in Part 54 requires implementation of cost-effective SAMAs. Entergy Answer at 25-27..

Entergy is correct, but fails to comprehend the significance of its argument. Entergy has gone to great lengths to declare that Part 54 is separate from Part 51 and cannot limit Part 51 's applicability (a point on which the State agrees) and yet, in the December 2009 SAMA Reanalysis, Entergy cites Part 54 as the excuse for not completing the cost-effective analyses for the nine SAMAs at issue in COntention 35. Id. at 32. If the two are separated, as Entergy argues, Part 54 cannot be a valid excuse for refusing to follow the requirements of Part 51. In fact, as the State demonstrated in its Contention filing and again here, Part 54 affirms that compliance with 5 Until NRC or Entergy identify the SAMAs that will be implemented and how and when they will be implemented it would be premature for the State of New York to determine whether there is a basis to challenge the implementation processes.

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Part 51 is required. It is Part 51 that provides the foundation of the State's argument that a SAMA analysis must be sufficiently complete to determine whether a mitigation measure is cost-effective and then, if it is sufficiently cost-effective, it must be implemented as an alternative to the proposed action absent a rational basis for refusing to do so. This point is emphasized by the quotation from Fla. Power & Light Co. (Turkey Pt. Nuclear Power Plant, Units 3 & 4), CLI-O 1-17, 54 N.R.C. 3, 13 (2001) to which Entergy cites in its Answer. Entergy Answer at 27-28.

Similarly, Entergy's citation to the Commission's rejection of a NEI rulemaking request confirms the independent status of Part 51 SAMA analyses and how such analyses proceed without regard to limitations in Part 54. Entergy Answer at 26-27.

3. The SAMA Analysis Was Initially Required so that Mitigation Measures Would be Implemented; The Commission Did Not Intend This Analysis as an Academic Exercise When Entergy and NRC Staff argue that there is no obligation to implement clearly cost-effective SAMAs, they are ignoring the history of NRC regulations and policy statements regarding SAMA. When the Commission first considered the issue of using NEPA analysis to identify additional mitigation measures that would improve safety, it did not view the process as one in which mitigation alternatives would be identified but not implemented. Rather, it made clear that "it is also the intent of the Commission that the staff take steps to identify additional cases that might warrant early consideration of either additional features or other actions which would prevent or mitigate the consequences of serious accidents." Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 (Interim Policy Statement) 45 Fed. Reg. 40101, 40103 (June 13, 1980). Thus, this early declaration of the SAMA policy was not merely a NEPA exercise, but a serious program.to identify "additional features or other actions which would prevent or mitigate the consequences of serious accidents."

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Id.

When the Commission adopted the GEIS it provided additional support for the proposition that cost-effective mitigation measures are expected to be implemented.: For example, it offered this analysis of ongoing efforts to identify mitigation measures through the IPEEE and IPE processes and the role of the SAMA analysis where those processes have not been completed:

Additionally, each licensee is performing an individual plant examination (IPE) to look for plant vulnerabilities to internally initiated events and a separate IPE for externally initiated events (IPEEE). The licensees were requested to report their results to the Commission. Seventy-eight IPE submittals were received and seventy-five IPEEE submittals will be received, covering all operating plants in the United States. These examinations consider potential improvements to reduce the frequency or consequences of severe accidents on a plant-specific basis and essentially constitute a broad search for severe accident mitigation alternatives. The NRC staff is conducting a process review of each plant-specific IPE submittal and IPEEE submittal. To date, all IPE submittals have received a preliminary review by the NRC with 46 out of 78 completed; for the IPEEE submittals, 24 of the 75 are under review. These IPEs have resulted in a number ofplant proceduralor programmaticimprovements and some plant modifications that will further reduce the risk of severe accidents.

because the ongoing regulatory program related to severe accident mitigation (i.e., IPE and IPEEE) has not been completed for all plants and consideration of severe accident mitigation alternatives has not been included in an EIS or supplemental EIS related to plant operations for all plants, a site-specific consideration of severe accident mitigation alternatives is required at license renewal for those plants for which this consideration has not been performed. The Commission expects that if these reviews identify any changes as being cost beneficial, such changes generally would be procedural and programmatic fixes, with any hardware changes being only minor in nature and few in number.

Environmental Review for Renewal of Nuclear Power Plant Operating Licenses,61 Fed. Reg. 28467, 28481 (emphasis added). Thus, the SAMA analysis for license renewal is intended to be 19

the functional equivalent of the IPEEE and IPE programs, programs that, once the analyses are completed, are expected to result in the implementation of cost-effective mitigation measures.

4. NRC Caselaw Does Not Support Entergy's and Staff's Positions Entergy and NRC Staff cite caselaw that fails to offer support for their arguments on this issue. In its most recent analysis of the SAMA issue the Commission, while not asked to address the issue of implementation of SAMAs by any party, made reference to the issue and, in doing so, substantially -undercut the position Entergy and NRC Staff urge the Board to adopt here. In In the Matter of Entergy Nuclear GenerationCompany and Entergy Nuclear Operations,Inc.

(Pilgrim Nuclear Power Station), Docket No. 50-293-LR, CLI 11 (March 26, 201 0), provided the following dicta:

From its SAMA analysis, Entergy identified seven potentially cost-effective SAMAs. ....Because none of the seven potentially cost-effective SAMAs bear on adequately managing the effects of aging, none need be implemented as part of the license renewal safety review, pursuant to 10 C.F.R. Part 54.

Id., slip op. at 7, n.26 (emphasis added and internal citation omitted). The State of New York agrees that the SAMAs are not developed as. part of the "safety review" and cost-effective SAMA implementation does not occur as part of the "safety review." The Commission is merely confirming that the implementation of SAMAs must occur through the NEPA process and Part 51, just as the GEIS Statement of Considerations and Interim Policy statement on severe accidents under NEPA contemplated. The State further notes that the Commissioners did not adopt or incorporate the overly-broad statement contained in the Staff's Pilgrim FSEIS that "SAMAs [that] do not relate to adequate managing of the effects of aging during the period of extended operation" .... "do not need to be implemented as part of the license renewal pursuant to 10 CFR Part 54." NUREG-1437, Supplement 29, Volumel, Executive Summary, at p. xx 20

(ADAMS ML071990020). And, in any event, the Commissioners' 2001 decision concerning the NEI rulemaking petition in PRM 51-7 refutes the Staff's position. 66 Fed. Reg. 10834 (Feb. 20, 2001)

The decision in In the Matter of Duke Energy Corporation(McGuire Nuclear Station, Units I and 2; Catawba Nuclear Station, Units I and 2) CLI-02-28, 56 N.R.C. 373, 388, n. 77 (2002), reinforces the dicta in Pilgrim. In McGuire/Catawba,the Commission observed first that the issue of implementation of the proposed SAMA was already the subject of a generic issues process and, that for that reason, it did not need to require implementation of the SAMA in the particular case. Thus, unlike the position NRC Staff advance here, the Commission there offered a rational basis for why implementation as part of the license renewal process is not required - not because there can never be such a requirement, but because another process was already in place that was focused on the particular SAMA at issue and the outcome. of which would determine whether implementation was "warranted." Thus, although the Commission noted that NEPA did not require it to implement any particular alternative, a proposition with which the State of New York does not take issue, unlike in the instant case, the Commission decision rested on a rational basis for not requiring implementation at the time of license renewal. Entergy and NRC Staff have not offered any similar rational basis for their refusal to implement the clearly cost-effective SAMAs identified in Contention 36.

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II. CONTENTIONS 35 AND 36 ARE TIMELY PURSUANT TO 10 C.F.R.

§ 2.309(0(2) BECAUSE THEY ARE BASED ON MATERIALLY DIFFERENT INFORMATION THAT WAS PREVIOUSLY UNAVAILABLE, AND WERE FILED WITHIN THE TIME FRAME GRANTED BY THE LICENSING BOARD According to Entergy, more than two years after Entergy submitted its initial SAMA analysis, NRC raised questions that caused Entergy to redo the analysis to correct a serious error in the meteorological data inputs to the MACCS2 model - the model which Entergy used to estimate the human health and economic costs of a severe accident against which the cost of a mitigation measure is compared. See Entergy Answer at 10. The erroneous initial meteorological inputs severely underestimated the percentage of time the wind would be blowing in a southerly direction after a severe accident at the Indian Point Plant and carrying a radioactive plume toward densely-populated New York City and its suburbs. As discussed above at pp. 2-3, when Entergy redid the SAMA analysis, it made several additional changes to the analysis including recalibrating the contents of an economic cost input file (see Chanin Statement, ¶11),

analyzing the loss of tourism and business as a base-case (id., ¶12), incorporating revised cost estimates in certain instances (see, e.g., see cost estimates with a "t" symbol), and incorporating certain scenarios and mitigation measures identified by NRC Staff (2009 SAMA Reanalysis, NL-09-165, Attachment 1, at pp. 29-3 1). As a result of all of these significant changes in the December 2009 SAMA Reanalysis, Entergy has now calculated a substantially greater human radiation exposure and off-site economic consequences. For example, in its December 2009 SAMA Reanalysis, Entergy chose to use one year of meteorological data for 2000, instead of its initial averaging of five years, incorporated into the "base case" analysis factors related to lost tourism and business as a result of a severe accident, and ran new sensitivity analyses incorporating a new severe accident scenario. December 2009 SAMA Reanalysis at pages 4-5.

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Because all of these changes substantially increased the human health and economic costs of a severe accident, Entergy identified nine entirely new cost effective SAMAs and recategorized 6

several SAMAS from marginally to substantially cost-effective.

The Licensing Board granted the State of New York the opportunity to review Entergy-'s new SAMA analysis to determine Whether new or amended contentions related to that analysis should be raised. In so doing, the Board ruled that any new or amended contentions filed by the State of New. York "which arise out of Entergy's revised SAMA submissions from December 21, 2009, through January-20, 2010 will be deemed timely under 10 C.F.R. § 2.309(f)2)" if submitted by February 25, 2010). In the Matter of Entergy Nuclear Operations. Inc., ASLB No.

07-858-03-LR-01 (Jan. 22, 2010) at page 2 (emphasis supplied). This deadline was subsequently extended to March 1 Ith.

Thus, the Board has already concluded that new or amended contentions which "arise out" of Entergy's new SAMA analysis will meet the critical requirement of "timeliness" for new contentions, pursuant to 10 C.F.R.§ 2.309(f)2) if submitted by the Board's deadline.

A. Contentions 35 and 36 Arise Out Of the December 2009 SAMA Reanalysis and the Detailed Information Regarding That Analysis Subsequently Provided by Entergy The State of New York's new contentions 35 and 36 were submitted within the Board's deadline and each "arises out" of the materially new information in Entergy's new SAMA analysis because each relies upon the information provided by the December 2009 SAMA Reanalysis to demonstrate that the eighteen. SAMAs identified in the two new contentions should 6 Although Entergy identified only six new cost effective SAMAs in its new SAMA new analysis, it failed to include three additional mitigation measures that were characterized as not cost effective in the baseline case in the ER but are now described as cost effective in the baseline case in the new analysis. The details are set forth in pages 22-23 of the State of New York's Motion For Leave to File New and Amended Contentions (dated March 11, 2010).

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now be treated differently in the ER. As discussed above, Contention 35 relates to mitigation measures that, for the first time, became cost-effective under the baseline analysis only because Entergy corrected the gross error in its wind direction inputs for the MACCS2 Code and made other important changes to theSAMA analysis. These changes dramatically changed the benefit side of the cost benefit analysis. Contention 36 relates to-mitigation measures that, for the first time, became so cost-effective that there was no realistic possibility that further economic analysis would cause the cost benefit balancetoshift from positive to negative. It was also possible, for the first time, to credibly argue that the benefits of the nine identified SAMAS in the December 2009 SAMA Reanalysis were so dramatically increased, that they would "substantially" improve safety, thus meeting the standard NRC uses for deciding when to require implementation of a safety improvement. Most importantly, the information that is critical to both Contentions - the actual calculated costs and benefits of each SAMA - was changed dramatically from what had existed before December 2009 and what was reported, for the first time,. in that SAMA Reanalysis. The magnitude of those changes is illustrated in several charts provided as part of the State of New York's New and Amended Contentions and in the Statement of David Chanin. Neither Entergy nor NRC Staff contest the information provided in those charts and Declaration nor that the information illustrates a major difference between the December 2009 SAMA Reanalysis and all previous SAMA analyses. What makes the issues raised in Contentions 35 and 36 material is that the actual values assigned to the cost-effectiveness of the 18 SAMA's has increased dramatically and that the increase has changed the status of those SAMAs..

Contention 35 is based solely on Entergy's identification of nine potentially cost-effective mitigation measures (in the baseline case) in its December 2009 SAMA Reanalysis 24

submission that Entergy rejected as not cost-effective in its initial 2007 SAMA analysis in the ER. The State's contention that a complete engineering and cost analysis must be done on these nine new potentially cost-effective SAMAs "arises out" of Entergy's new SAMA analysis because that analysis estimated substantially increased health and economic benefits if.the mitigation measures were adopted and therefore rendered these nine mitigation measures cost-effective for the baseline case, when compared to the implementation cost of the SAMA. The State simply asks that Entergy do what is required (by the NEI guidance document that Entergy asserts it follows) when it identifies potentially cost-effective measures - complete the engineering and economic analysis to reach a final determination of their cost-effectiveness. NEI 05-01 (Rev. A) Severe Accident Mitigation Alternatives (SAMA) Guidance Document at 28.

Similarly, Contention 36 seeks to compel the implementation of certain mitigation measures identified in Entergy's new SAMA analysis that now provide so much reduction in the risk of a'se-ious accident at such little cost, that it would be irrational and in violation of the Administrative Procedure Act for the NRC to refuse to impose them as a condition of a license renewal. Neither Entergy nor NRC Staff offer a rationalbasis for the refusal to implement these nine SAMAs. This contention is also based solely on the information in Entergy's new SAMA analysis because it was the correction of the wind direction inputs in that analysis and all the other changes made by Entergy that revealed how much more costly a severe accident would be and concomitantly, how much more beneficial amitigation measure would become.

B. Contentions 35 and 36 Could Not Have Been Raised Any Earlier Because the Facts Supporting Them Appeared for the First Time in Entergy's New SAMA Analysis Staff and Entergy argue that the State could have raised these contentions about Entergy's Environmental Report ("ER") and Staff s Draft Environmental Impact Statement 25

("DSEIS") because the engineering and economic analysis of other potentially cost-effective mitigation measures in Entergy's original SAMA analysis was not completed in those d Ocuments and Staff and Entergy had already taken the position that no mitigation measures need be implemented under NEPA in a license renewal unless the measures related to aging 7

management.

Entergy also argues that Contention 35 is untimely because Entergy identified three potentially cost-effective SAMAs in response to Requests for Information ("RAIs") from NRC Staff in 2008, and that the State could have made the same complaint about Entergy's handling of those SAMAs - that it did not commit to complete a full engineering and economic analysis in the NEPA process. Entergy Answer at 8-9, 22.

But NRC Staff and Entergy ignore the essential requirement that every contention must provide sufficient information that a genuine dispute exists on a materialissue of law or fact. 10 C.F.R. § 2.309(vi). And, as Entergy recognizes, "a dispute is material if its resolution would make a difference in the outcome of the licensing proceeding." Entergy's Answer at 15. A contention based on the legal deficiencies that existed in the original ER and the DSEIS, or in Entergy's responses to NRC Staff's RAIs, could not have been material as to the eighteen 7 NRC Staff claims that Contentions 35 and 36 do not "arise out" of the new analysis because they are not based on the new information in the new analysis but are simply a legal attack on Entergy's and the Staff's refusal to complete the cost-benefit analysis for certain SAMAs and their refusal to implement certain substantially cost effective mitigation measures.

See NRC Staff Answer at 34. However, the State is not making an abstract legal argument nor is it likely that an abstract legal argument, untethered to any specific out-come difference, would pass the "materiality" requirement of 10 C.F.R. §§ 2.309(f)(1)(iv) and (vi). It is making a fact-specific argument that as to eighteen identified SAMAs, and no others, the revised ER is legally deficient and that deficiency, if corrected, will alter the outcome of this licensing proceeding. As to those eighteen SAMAs, the information that forms the basis for the claim that completing their cost analyses or implementing them is required, comes exclusively from the new information submitted in the December 2009 SAMA Reanalysis and subsequent details provided by Entergy.

See generally pages 3-4 (above).

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SAMAs.to which those deficiencies are now addressed because the facts upon which the current argument is based, did not exist at the time of publication of the ER or the DSEIS or Entergy's Responses to Staff's RAIs. Since the contentions rely only on those new facts, since those facts are materially different than the facts related to those eighteen SAMAs in the original ER and DSEIS - a point fully illustrated in the proposed contentions and which Entergy and NRC Staff do not challenge - the State could not have filed these contentions until after the December 2009 SAMA Reanalysis.

Had Contentions 35 and 36 been raised against the initial SAMA analysis they would have been relying on facts that did not support them. In other words, Contentions 35 and 36 would not have been material to the. proceeding had they been raised earlier, because the nine SAMAs at issue in Contention 35 had not been characterized as potentially cost effective under the baseline case and the benefits of the nine identified SAMAs in Contention 36 did not so dramatically outweigh the cost of implementing them that failure to implement them would be irrational and legally indefensible. Similarly, the three SAMAs that Entergy identified in response to Staff s RAIs were "only identified as potentially cost beneficial in the sensitivity

.case 3 evaluation with uncertainty, and not in the baseline evaluation" See Entergy's Supplemental Reply to Request for Additional Information Regarding License Renewal Application - Severe Accident Mitigation Alternatives Analysis (May 22, 2008) at 10. These SAMAs only became cost-effective in the baseline case after Entergy conducted its new December 2009 SAMA Reanalysis.

There can be no doubt about the timeliness of Contention 35, which is focused on nine SAMAs that were identified as potentially cost effective under the baseline case for thefirst time in the December 2009 SAMA Reanalysis. The State could not have previously raised any 27

contention about Entergy's failure to complete the engineering cost analysis for six of these SAMAs because, until December 2009, they did not even make the first cut - that they be potentially cost effective under the baseline case and that further cost analysis would be conducted for them. The three SAMAs which had been identified as potentially cost-effective but only in the uncertainly analysis were scheduled for more cost analysis but since they were just barely potentially cost-effective and since the further analysis was to be focused solely on finding additionalcosts, it was not likely that they would survive further study and it was highly unlikely thatif additional work were done on those three SAMAs the outcome would prove to be "material." All that changed in December 2009 when the three SAMAs, thanks to the completely new SAMA analysis, graduated to full-fledged potentially cost-effective status.

Thus, a contention alleging that Entergy was required to do further analysis of non-cost effective mitigation measures would have been legally erroneous and not have been materialto the proceeding as to any of the nine SAMAs identified in Contention 35 because such a contention could not have affected the outcome of the proceeding When the new SAMA analysis substantially increased the benefits of these nine mitigation measures so that they now became potentially cost-effective under the baseline case, it became relevant to insistthat the engineering cost analyses be completed in order to determine, whether in fact, the nine SAMAs were actually cost-effective. Obviously, this information only became available after the new SAMA analysis was completed and its results were fully revealed. The State relies solely on this previously-unavailable and materially-different information in Contention 35.

Turning to Contention 36, it focuses on mitigation measures that were previously marginally cost-effective but whose benefit has dramatically increased in the new SAMA analysis, so that the ratio between estimated cost and baseline benefit has increased in many 28

cases by more than a factor of 2 and in some cases by as much as a factor of 5.8 Because the ratio between benefit and cost has increased so dramatically for some of the mitigation measures in the new SAMA analysis, the State can now make a credible claim, as to selected cost-effective SAMAs, that refusal to implement a mitigation measure that costs, for example, only $200,000 but which results in a baseline benefit of $5,591,781, is irrational under the Administrative Procedure Act.9 This claim could not have been made against these mitigation measures in Entergy's initial SAMA analysis and might have been criticized as frivolous if applied to mitigation measures whose benefits did not so dramatically outweigh their costs. 10 8 The original SAMA analysis listed the nine SAMAs identified in Contention 36 as "potentially cost-effective" and announced that further cost analyses would be conducted as to those SAMAs. As NRC Staff notes in its Answer "further analysis could result in a refinement of the cost benefit ratio of those particular SAMAs, or in the deletion of certain SAMAs as no longer cost-beneficial." NRC Staff Answer at 23. Thus, even though it initially appeared there was a large difference between cost and benefit for some of the nine SAMAs identified in Contention 36, the magnitude of that difference, particularly in dollars, was not so great that further analysis could not easily eliminate the difference. See, e.g., December 2009 SAMA Reanalysis SAMA 017 where further cost analysis moved the cost for that SAMA from

$2,900,000 to $5,500,000 and SAMA 019 where further cost analysis moved the cost for that SAMA from $13,000,000 to greater than $100,000,000. (Id. at 12; ER (LRA, Appendix E),

Attachment E.2 at p. E.2-42 to E.2-43). Thus, the initial ER listing of these SAMAs provided only marginal cost-effectiveness that was vulnerable to elimination by further analysis planned by Entergy. As a result of the December 2009 SAMA Reanalysis, the difference between benefit and cost for these nine SAMAs have increased dramatically and the likelihood that further analysis will cause the difference to disappear is now substantially reduced. Had Contention 36 been filed when the original SAMA analysis was first available NRC Staff likely would have claimed, as it does now, that further analysis could easily eliminate the cost-effectiveness status of the SAMA and thattherefore the Contention should be rejected as not material. Unlike now, the State would not have had a factual basis to challenge that assertion.

9 See IP2 SAMA 054 described at page 48 of the State of New York's Motion to File New Contentions where the maximum baseline benefit increased from $1,722,733 in the initial SAMA analysis to $5,591,781 in the new SAMA analysis, while the $200,000 cost remained the same.

10 Entergy and NRC Staff point out that there are SAMAs in addition to the-eighteen identified in Contentions 35 and 36 as to which the legal argument now advanced by the State could have been made. See NRC Staff Answer at 30; Entergy Answer at 21. Neither NRC Staff 29

In addition to its challenge to the timeliness of Contentions 35 and 36, Entergy argues that they do not meet two of the other six requirements for all contentions - the .existence of adequate factual .and legal support, and the raising of a genuine dispute on a material issue of fact or law. See'Entergy's Answer to New York State's Motion to File New and Amended Contentions at pages 1-2. Entergy is wrong. The factual support for Contentions 35 and 36 is the information in Entergy's new SAMA analysis which is set forth in detail in the contentions and provides the legal support for the State's claims. The State's contentions raise genuine disputes about material facts. Contention 35 asserts that more, relevant cost analyses need to be done for the nine identified SAMAs. Entergy and NRC Staff assert that the cost analyses are sufficiently complete. Contention 36 asserts that the nine SAMAs are so substantially cost-effective that failure to implement them Would be irrational. Entergy and NRC Staff assert that they have a rational basis for refusing to implement those nine SAMAs. Thus, there is a material disagreement as to whether, based on the record, there is a rational basis for refusing to implement the nine identified SAMAs. The material dispute as to legal issues regarding both contentions is evident from Entergy and NRC Staff's briefs which focus almost exclusively on the contentions' merits and legal arguments. The material factual disputes arise out of new information in the December 2009 SAMA Reanalysis. That information - the newly disclosed baseline cost-effectiveness of previously rejected mitigation measures and the revelation of SAMAs whose benefit now vastly outweigh their cost - is material to whether (1) the cost analysis for the nine newly cost-effective SAMAs must be completed and (2) whether the dramatically more beneficial SAMAs must be implemented as conditions for license renewal nor Entergy provide any regulatory or caselaw support requiring the rejection of a SAMA-based

,contention where an intervenor did not submit a challenge to a different SAMA-and where the newly-challenged SAMA had dramatically changed its cost-effectiveness calculation.

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absent a rational basis for rejecting them.

In sum, the State of New York's Contentions 35 and 36 are timely under the Board's ruling and under 10 C.F.R. § 2.309(f)(2). They are based on previously unavailable and materially different information, they "arise out" of Entergy's new SAMA analysis, and they are material to this proceeding.

In the alternative, even if these contentions could theoretically have been raised earlier about Entergy's ER or Staffs DSEIS with regard to the eighteen SAMAs identified in Contentions 35 and 36, there is good cause pursuant to 10 C.F.R. § 2.309(c) for the State having filed them only after Entergy's new SAMA analysis established the materiality and viability of the claims. 11 Had they been filed earlier, they could have been rejected as not raising a material issue of fact or law. It is irrational to require an intervenor to raise contentions at a time when there may have been little chance of success and risk being subsequently barred from asserting the contentions when new and substantially relevant information arises. The other requirements of 10 C.F.R.-§ 2.309(c) are addressed at pages 9-14 of the State's Motion for Leave to File New and Amended Contentions and are not repeated here.

"'.Neither Entergy nor NRC Staff suggest that any other portion of 10 C.F.R. § 2.309(c) requirements are relevant in this case should the Board assess that issue other than the portions already addressed as part of 10 C.F.R. § 2.309(f)(2). The State submits that it is inappropriate, and incorrect, for Entergy and NRC Staff to continually refer to Contentions 35 and 36 as "late-filed" contentions. They are filed pursuant to 10 C.F.R. §.2.309(f)(2) which allows for amendments to be filed where, as. here, there is a material change in the information previously available. Such contentions, if accepted under that section are timely, and are not in any way "late-filed". It may be the use of the phrase is nothing more than rhetorical, but it is inaccurate and should not be applied to a contention absent it in fact being "late-filed".

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III. NEITHER ENTERGY NOR STAFF SUBSTANTIVELY CHALLENGE CONTENTION 16-B'S ADMISSIBILITY Entergy and Staff do not challenge the substance of Contention 16-B, which is an update of Contention 1.6 much the way Contention 16-A was. However, Entergy seeks to limit the scope of Contention 16-B on two grounds, both of which arise from two sentences found in footnotes .in the Contention. Entergy asserts that the State challenges Entergy's population and tourism numbers for the first time in footnote 3 and that the State cannot include in Contention 16-B the statement that due to its reliance on an inaccurate air dispersion model, Entergy cannot meet its emergency planning requirements pursuant to NEPA and 10 C.F.R. § 50.47(b)(9) found in footnote 4.

This Board previously acknowledged that Contention 16 challenged the population inputs used in the SAMA/MACCS2 analysis and admitted that claim when it admitted the contention in 2008. See Entergy Nuclear Operations,Inc. (Indian Pt. Nuclear Generating Units 2 & 3), LBP-08-13, 68 N.R.C. 43, 111-12 (2008). Referring to its analysis of the economic costs of the loss of tourism and business, Entergy seeks to preclude consideration of the substantial daily increase in New York City's population as a result of commuting workers and tourists. Entergy Answer at 20. Entergy, however, conflates two separate concerns - the economic impact of the loss of tourism or commerce and the exposure or dose to individuals who happen to be in the City on a transient basis (e.g., tourists and daily commuters). Contention 16-B challenges (among other things) the .December 2009 SAMA Reanalysis failure to adequately address the potential exposure.to such transient visitors.

That point is entirely consistent .with the State's previously-admitted challenge to the population inputs contained in the initial Contention 16. The Board recognized that "NYS also questions Entergy's population projection for 2035, pointing out that the U.S. Census estimate of 32

the population of Manhattan in 2006 is larger than Entergy's 2035 projection." 68 N.R.C. at 111 (citing State of New York Petition to Intervene, at 164, n. 37). "The Board admits NYS-16 to the extent that it challenges whether the population projections used by Entergy are underestimated....The first of these is a question of model input data material to the making of accurate SAMA analyses." 68 N.R.C. at 112. The Board. subsequently also admitted NYS-16-A, which included a similar challenge to the population projections. Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 and 3), slip op. at 6 (June 16, 2009).

Footnote 3 in Contention 16-B is merely further factual support for the already-admitted basis that Entergy has "underestimated" population projections. In addition, Contention 16-B noted that NRC Staff have asked questions about, among other things, revised off site population doses. State of New York New and Amended Contentions (dated March 11, 2010) at p. 8, n. 3 (citing Summary of November 9, 2009 telephone conference between Entergy and NRC Staff (ML093170171)).1 Contention 16-B then goes on to state that the December 2009 SAMA Reanalysis did not take into account tourists and daily commuters "who nevertheless could be affected by a severe accident while they are in the City" and that the Reanalysis therefore underestimates "the benefit of any mitigation measures that would reduce such exposure." Id.

Entergy raises the same objection to footnote 4's statement dealing with emergency planning that it raised in response to Contention 16-A last year. As this Board has noted with respect to a similar footnote in Contention 16-A, the State does not challenge Entergy's compliance "but simply describes one of the possible consequences of Entergy's continued reliance on what is known to be a deficientand outdated air dispersion model." Entergy Nuclear Operations, slip op. at 5-6 (June 16, 2009).

12 This private conference between Entergy and NRC Staff was summarized in a November 17,2009 document, which was posted on ADAMS on November 25, 20.09.

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IV. .'NEITHER ENTERGY NOR NRC STAFF CONTEST CONTENTION 12-B'S ADMISSIBILITY Neither Entergy nor NRC Staff contest Contention 12-B's admissibility. Entergy Answer at 19; NRC Answer at 2. Accordingly, and also for the reasons set forth in its March 11, 2010 submission, the State submits that the Board should admit Contention 12-B.

CONCLUSION For the above reasons, the State of New York respectfully requests that the Atomic Safety and Licensing Board admit contentions 12-B, 16-B, 35, and 36 in this proceeding.

Respectfully submitted, Janice A. Dean Lisa Feiner Lisa Burianek John J. Sipos Assistant Attorneys General Office of the Attorney General for the State of New York The Capitol Albany, New York 12227 (518) 402-2251 dated: April 12, 2010 34

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

In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 12, 2010

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x CERTIFICATE OF SERVICE I hereby certify that on April 12, 2010, copies of the State of New York's Combined Reply to Entergy and NRC Staff Answers to New and Supplemental Contentions Concerning the December 2009 SAMA Reanalysis were served upon the following persons via U.S. Mail and e-mail at the following addresses:

Lawrence G. McDade, Chair Kaye D. Lathrop Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 190 Cedar Lane E.

Two White Flint North Ridgway, CO 81432 11545 Rockville Pike Kaye.Lathrop@nrc.gov Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Richard E. Wardwell Mailstop 3 F23 Administrative Judge Two White Flint North Atomic Safety and Licensing Board Panel 11545 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852-2738 Mailstop 3 F23 Two White Flint North Zachary S. Kahn, Esq. &

11545 Rockville Pike Joshua A. Kirstein, Esq., Law Clerks Rockville, MD.20852-2738 Atomic Safety and Licensing Board Panel Richard.Wardwell@nrc.gov U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Zachary.Kahn@nrc.gov Josh.Kirstein@nrc.gov I

Office of Commission Appellate Martin J. O'Neill, Esq.

Adjudication Morgan, Lewis & Bockius LLP U.S. Nuclear Regulatory Commission Suite 4000 Mailstop 16 G4 1000 Louisiana Street One White Flint North Houston, TX 77002 11555 Rockville Pike martin.o'neill@morganlewis.com Rockville, MD 20852-2738 ocaamail@nrc.gov Elise N. Zoli, Esq.

Goodwin Procter, LLP Office of the Secretary Exchange Place Attn: Rulemaking and Adjudications Staff 53 State Street U.S. Nuclear Regulatory Commission Boston, MA 02109 Mailstop 3 F23 ezoli@goodwinprocter.com Two White Flint North 11545 Rockville Pike William C. Dennis, Esq.

Rockville, MD 20852-2738 Assistant General Counsel*

hearingdocket@nrc.gov Entergy Nuclear Operations, Inc.

440 Hamilton Avenue Sherwin E. Turk, Esq. White Plains, NY 10601 David E. Roth, Esq. wdennis@entergy.com Andrea Z. Jones, Esq....

Beth N. Mizuno, Esq. Robert D. Snook, Esq.

Brian G. Harris, Esq. Assistant Attorney General Office of the General Counsel Office of the Attorney General U.S. Nuclear Regulatory Commission State of Connecticut Mailstop 15 D21 55 Elm Street One White Flint North P.O. Box 120 11555 Rockville Pike Hartford, CT 06141-0120 Rockville, MD 20852-2738 robert.snook@po.state.ct.us sherwin.turk@nrc.gov andrea.jones@nrc.gov Gergory Spicer, Esq.

david.roth@nrc.gov Assistant County Attorney beth.mizuno@nrc.gov Office of the Westchester County Attorney brian.harris@nrc.gov Michaelian Office Building 148 Martine Avenue, 6th Floor Kathryn M. Sutton, Esq. White Plains, NY 10601 Paul M. Bessette, Esq. gss1@westchestergov.com Mauri T. Lemoncelli, Esq.

Morgan, Lewis & Bockius LLP Daniel E. O'Neill, Mayor 1111 Pennsylvania Avenue, NW James Seirmarco, M.S.

Washington, DC 20004 Village of Buchanan ksutton@morganlewis.com Municipal Building pbessette@morganlewis.com 236 Tate Avenue mlemoncelli@morganlewis.com Buchanan, NY 10511-1298 cadams@morganlewis.com vob@bestweb.net "

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Daniel Riesel, Esq. Stephen Filler, Esq.

Thomas F. Wood, Esq. Board Member Jessica Steinberg, Esq. Hudson River Sloop Clearwater, Inc.

Sive, Paget & Riesel, P.C. Suite 222 460 Park Avenue 303 South Broadway New York, NY 10022 Tarrytown, NY 10591 driesel@sprlaw.com sfiller@nylawline.com jsteinberg@sprlaw.com Ross H. Gould Michael J. Delaney, Esq. Member Vice President - Energy Department Hudson River Sloop Clearwater, Inc.

New York City Economic Development 10 Park Ave, #5L Corporation (NYCEDC) New York, NY 10016 110 William Street rgouldesq@gmail.com New York, NY 10038.

mdelaney@nycedc.com Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Manna Jo Greene, Director RiVerkeeper, Inc.

Hudson River Sloop Clearwater, Inc. 828 South Broadway 112 Little Market St. Tarrytown, NY 10591 Poughkeepsie, NY 12601 phillip@riverkeeper.org Mannajo@clearwater.org dbrancato@riverkeeper.org John Sipos' Dated at Albany, New York this 12th day of April 2010 3