ML110830780
| ML110830780 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/18/2011 |
| From: | Sipos J, Vonresusner S 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-495 | |
| Download: ML110830780 (34) | |
Text
COPY UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD x
In re:
License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
Docket Nos. 50-247-LR; 50-286-LR ASLBP No. 07-858-03-LR-BDO1 DPR-26, DPR-64 March 18, 2011 x
STATE OF NEW YORK'S COMBINED REPLY TO ENTERGY AND NRC STAFF'S ANSWERS TO THE STATE'S PROPOSED CONTENTION 37 CONCERNING NRC STAFF'S DECEMBER 2010 FINAL ENVIRONMENTAL IMPACT STATEMENT AND ITS DEFICIENT ANALYSIS OF ENERGY ALTERNATIVES Office of the Attorney General for the State of New York The Capitol State Street DOCKETED Albany, New York 12224 March 18, 2011 (4:14 p.m.)
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TABLE OF CONTENTS
/-
- Page TA B LE O F A U TH O RITIES..........................................................................................................
ii IN T R O D U C T IO N...........................................................................................................................
1 PROCEDURA L BACKGROUND.............................................................................................
2 REGULATORY FRAM EW ORK.............................................................................................
3 A.
Legal Requirements For Admissibility of a NEPA Contention B ased on the FSEIS............................................................................................
3 B.
NEPA Obligates NRC Staff, Not the Applicant, to Prepare a Thorough Environmental Impact Statement That Identifies and Substantively Analyzes Environmental Impacts and Alternatives.................... 7 ARGUMENT 11 I.
NYS-37 IS BASED ON DATA AND CONCLUSIONS THAT DIFFER SIGNIFICANTLY FROM THE APPLICANT'S EN VIRON M EN TA L REPORT.............................................................................
11 II.
NYS-37 IS WITHIN THE SCOPE OF THIS PROCEEDING........................ 14 III.
NYS-37 SUFFICIENTLY RAISES MATERIAL FACTUAL AND LEGAL ISSUES........................................
17 IV.
THE FSEIS DISCUSSION OF ALTERNATIVES VIOLATES NEPA.......... 20 V.
NRC STAFF'S ARGUMENTS THAT DOCUMENTS CITED IN THE STATE'S COMMENTS ON THE DSEIS SHOULD NOT BE CONSIDERED ARE WITHOUT MERIT..................................................
24 C O N C L U SIO N..............................................................................................................................
25 i
TABLE OF AUTHORITIES Page(s)
Federal Court Decisions Calvert Cliffs' Coordinating Comm., Inc. v.
United States Atomic Energy Comm 'n, 449 F.2d 1109 (D :C. C ir. 1971).............................................................................
9 n.21, 10 Center for Biological Diversity v. Nat 'l Highway Traffic Safety Admin.,
538 F.3d 1172 (9th C ir. 2008).....................................................................................
8 n.16 Limerick Ecology Action, Inc. v. Nuclear Regulatory Commission, 869 F.2d 719 (3d C ir. 1989).........................................................................................
8 n.12 Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989).......................................................................................
8 n.12, 10 n.22 Natural Resources Defense Council v. United States Forest Service, 421 F.3d 797 (9th C ir. 2005)..............................................................................
10 n.22, 22 Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372 (9th C ir.1998).....................................................................................
9 n.19 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)......................................................................................................
8 n.13 Simmons v. US. Army Corps of Engineers, 120 F.3d 664 (7th C ir.1997)..............................................................................................
19 Te-Moak Tribe of Western Shoshone of Nevada v. US. Dept. of Interior, 608 F.3d 592 (9th C ir. 20 10).....................................................................................
22 n.32 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978).....................................................................
21, 24 n.33 Federal Statutes National Environmental Policy Act (NEPA) 42 U.S.C. §§ 432 1-4337..............................................................................................
7 42 U.S.C.. § 4332(A )..................................................................................................
.. 10 42 U.S.C.. § 4332(C )...................................................................................................
.. 10 42 U.S.C.. § 4.332(E )................................................................................................
.. 8, 10 ii
TABLE OF AUTHORITIES Page(s)
Federal Administrative Agency Regulations 10 C.F.R. § 2.309(f)(1).........................................................................................................
6 10 C.F.R. § 2.309(f)(1)(v).......................................................................................................
17 10 C.F.R. § 2.309(f)(1)(vi).......................................................................................................
17, 18 10 C.F.R. § 2.309(0(2)....................................................................................................
5, 6, 12, 13 10 C.F.R. § 2.309(f)(2)(i)......................................................................................................
5, 7, 11 10 C.F.R. § 2.309(f)(2)(ii)....................................................................................................
5, 7, 11 10 C.F.R. § 2.309(f)(2)(iii)..............................................................................................
5, 7, 11 10 C.F.R. Part 51, Subpt. A, App. A(5).....................................................................................
8 10 C.F.R. § 51.70(b) 10 10 C.F.R. § 51.91(a)(1)(iii).......................................................................................................
10 10 C.F.R. § 51.91(a)(1)(iv)........................................................................................................
10 10 C.F.R. § 51.91(3)(c)..................................................................................................................
10 10 C.F.R. § 51.92(a).......................................................................................................................
10 10 C.F.R. § 51.95(c)(2).......
2, 15, 16 10 C.F.R. § 51.95(c)(4)..................................................................................................................
10 10 C.F.R. § 51.95(3) 10 10 C.F.R. § 51.103(a)(3)................................................................................................................
10 10 C.F.R. § 51.103(a)(5)............................................................
10 10 C.F.R. §§ 51.104-106 10 10 C.F.R. § 51.104(a)(3)................................................................................................................
10 10 C.F.R. § 54.29(b)......................................................................................................................
18 40 C.F.R. § 1502.1...........................................................................................................................
8 111
TABLE OF AUTHORITIES Page(s) 40 C.F.R. § 1502(14)......................................................................................
20 40 C.F.R. § 1506.3(a)....................................................................................................................
23 40 C.F.R. § 1506.3(b).........................................................
............. 23 Federal Register Notices 54 Fed. Reg. 33168 (Aug. 11, 1989), Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process.........................................
18 n.30 69 Fed. Reg. 61411 (Oct. 18, 2004), USEC, Inc. (American Centrifuge Plant);
Notice of Receipt of Application for License; Notice of Availability of Applicant's Environmental Report; Notice of Consideration of Issuance of License; and Notice of Hearing and Commission Order.................
18 n.31 Nuclear Re2ulatory Commission Decisions Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site) 65 N.R.C. 539 (Jun. 29, 2007)...............................................................................
9 n.17, 10 Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3),
49 N.R.C. 328 (A pr. 15, 1999)..................................................................................
18 n.30 Duke Energy Corporation (McGuire, Units I and 2; Catawba, Units I and 2),
56 N.R.C. 1 (Jul. 23, 2002).....................................................
18 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),
68 N.R.C. 43 (Jul. 31, 2008)..........................................................
3, 4, 12, 17 n.27, 18 n.28 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.
Vermont Yankee Nuclear Power Station), 63 N.R.C. 568 (May 25, 2006)................... 7 Entergy Nuclear Vermont Yankee, L. L. C. and Entergy Nuclear Operations, Inc.
(Vermont Yankee Nuclear Power Station), CLI-1 1-02 (Mar. 10, 2011)........
17 n.26 Louisiana Energy Services, L.P. (Claiborne Enrichment Center),
47 N.R.C. 77 (Apr. 3, 1998) quoting 115 Cong. Rec. 40,416 (1970).......................... 8 n.14 Louisiana Energy Services, L.P.. (National Enrichment Facility),
60 N.R.C. 619 (D ec. 8, 2004)......................................................................................
17 iv
TABLE OF AUTHORITIES Page(s)
Pa 'ina Hawaii, LLC (Materials License Application),
CLI-10-18, Docket No. 30-36974-ML, (Jul. 8, 2010)......................... 8 n. 15, q n. 18, 9 n.20 Miscellaneous NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants ("GELS"), Main Report, Vol. I (May 1996) p. 8-2 available at http://www.nrc.gov/reading-rmrdoc-collections/nuregs/staff/sr 1437/v 1 /index.html........ 15 NUREG-1437, Supplement 38, Draft Report for Comment, Generic Environmental Impact Statement ("DSEIS")
Regarding Indian Point Nuclear Generating Unit Nos. 2 and.3 (D ec. 2008) (M L 083540594)........................................................................................
3 n.5 NUREG-1437, Supplement 38, Final Supplemental Environmental Impact Statement ("FSEIS") Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (Dec. 2010).....................................................
5 n.10, 24 n.34 v
INTRODUCTION The State of New York's proposed Contention 37 ("NYS-37") amends already-admitted Contentions NYS-9 (ML073400187) and NYS-33 (ML090690303), which assert respectively that the Applikant's Environmental Report ("ER") and NRC Staff's Draft Supplemental Environmental Impact Statement ("DSEIS") failed to give meaningful consideration to non-fossil fuel alternatives to license renewal. Furthermore, NYS-37 challenges NRC's analysis and recommendations with respect to the new set of alternatives included in the Final Supplemental Environmental Impact Statement ("FSEIS"), and asserts that the FSEIS's discussion of the no action alternatives is so deficient and biased that it renders the FSEIS a nullity with respect to the recommendation that the adverse environmental impacts of license renewal are not so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.
In opposition, NRC Staff argues principally that proposed NYS-37 is untimely, Staff Answer at 8-12, not based upon information that is significantly different from the Applicant's ER, id, fails to demonstrate that "the FSEIS would contain a materially different evaluation if all the issues presented in this contention were accepted and incorporated into the FSEIS," Id. at p.
14, and impermissibly challenges alternative scenarios rather than the "no-action" alternative.
Staff Answer at 13 and 16. Finally, Staff claims that the State's National Environmental Policy Act ("NEPA") claims alleging Staff failed to meaningfully respond to the State's previously submitted contentions, expert reports, and declarations, lack merit, because those documents were only referenced in the State's public comments, and were not physically attached thereto. Staff Answer at 16-17.
Entergy does not oppose NYS-37 on timeliness grounds, and does not oppose the 1
admission of NYS-37, or the incorporation of supporting evidence previously identified by the State in support of NYS-9/NYS-33 to the extent it updates those previously admitted contentions. Entergy Answer at 2. Entdrgy opposes the admission of NYS-37 insofar as it raises new challenges to the FSEIS. Entergy argues that NYS-37 exceeds the scope of these proceedings and is contrary to 10 C.F.R. § 51.95.(c)(2) because the State allegedly challenges the need for power from Indian Point. Entergy Answer at 13. Entergy further argues the FSEIS adequately responded to public comment and analyzed all the "reasonable" alternatives to license renewal Entergy Answer at 12, 14-16, and that the State's claims lack a factual or legal basis and/or rely on speculation. Entergy Answer at 14-21.
PROCEDURAL BACKGROUND On November 30, 2007, the State filed a petition for leave to intervene in this proceeding.1 One of New York's contentions, NYS-9, alleged that Applicant's alternatives analysis was deficient for failing to include conservation and energy efficiency as an alternative to relicensing.2 In support of NYS-9, the State served all parties with two expert declarations: a report prepared by David A. Schlissel of Synapse Energy Economics entitled Report on the Availability of Replacement Capacity and Energy for Indian Point Units 2 and 3 ("2007 Synapse Report"), dated November 28, 2007 (ML073400205), and the Declaration of Peter A. Bradford, a former Commissioner of the NRC, and Chair of the New York State Public Service Commission ("2007 Bradford Decl."), dated November 28, 2007 (ML073400205). 3 The 2007 Synapse Report pointed out that the ER was based on obsolete and outdated assumptions. It outlined the current state of New York State's energy markets, quantified the See New York State Notice of Intention to Participate and Petition to Intervene (Nov. 30, 2007) ("NYS Petition"), available at ADAMS Accession Nos. ML073400187, ML073400205.
2 See id at 106-108.
See id 9ý
specific energy efficiency gains forecast to occur in the zones relevant to Indian Point (pp. 3-6),
identified transmission line upgrades and project relevant to the State's ability to import power (pp. 14-15), discussed the potential for facility repowering in nearby zones (pp. 12-13), forecast the amount of renewable generation likely to be available to replace the Indian Point units and rebutted Applicant's assumptions regarding wind as a replacement sources of generation (pp. 7-11), identified combined heat and power as an alternative source of generation (p. 11), and outlined natural gas developments and new generation in the zones supplied by Indian Point (pp.
15-18). The Bradford Declaration argued that the ER's analysis of energy alternatives was artificially limited to a comparison of nuclear energy to fossil fuels, at the expense of a meaningful consideration of conservation and renewable generation. (Bradford Decl. ¶¶ 8, 9).
In July 2008 the Board admitted NYS-9 to the extent it raised a material dispute regarding the need for Applicant's ER to analyze the potential environmental impacts of energy conservation that may arise from the no-action alternative. 4 On December 22, 2008, the Staff issued its DSEIS, in which it evaluated the site-specific environmental impacts of license.
renewal for IP2 and IP3. 5 In particular, Chapter 8 of the DSEIS compared the environmental impacts of relicensing the units to those of the no-action alternative and the alternative energy sources. The DSEIS differed significantly from the ER in that it addressed two issues dismissed in the ER - energy conservation and combination of alternatives.
On February 27, 2009, the State timely filed NYS-33 in response to the DSEIS. NYS-33 alleged that the DSEIS violated NEPA because it ignoredsignificant new information and failed to take a "hard look" at the current feasibility and environmental impact of non-fossil fuel alternatives to relicensing, including: energy conservation, energy efficiency, renewable Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), 68 N.R.C. 43, 93 (Jul. 31, 2008).
5 See generally NUREG-1437, Supplement 38, Draft Report for Comment, Generic Environmental Impact Statement ("DSEIS") Regarding Indian Point Nuclear Generating Unit Nos. 21 and 3 (Dec. 2008) (ML083540594).
generation, purchased power, combined heat and power, and possible combinations of different energy sources under the no-actionalternative. In support of NYS-33, the State again listed the 2007 Synapse Report and 2007 Bradford Declaration as supporting evidence, and served upon all parties a second declaration from David A. Schlissel, dated February 27, 2009 (ML090690303)
("2009 Schlissel Decl."), which outlined the impact of reduced energy sales and peak loads on the timing and choice of energy alternatives to the Indian Point units, and identified deficiencies in the DSEIS that significantly underestimatedthe viability and potential of energy efficiency, energy conservation, renewable generation, facility re-powering, purchased electrical power and transmission/interconnection enhancements in New York State and in Zones H, I, J, and K specifically, and outlined three feasible, alternative sources of power based on a combination of renewable generation, energy efficiency, combined heat and power, and repowered existing gas plants.
Shortly thereafter, on March 18, 2009, the State filed supplemental comments in the public hearings on the DSEIS, repeating the same criticisms of the DSEIS contained in NYS-33.
(ML090771328) ("NYS DSEIS Comments'). The State's comments referenced and relied primarily upon the expert reports previously served upon the parties, including: the 2007 Synapse Report, 2007 Bradford Declaration, and the 2009 Schlissel Declaration. The State's comments mirrored those of NYS-33: they reiterated thesubstance of the State's previously submitted expert reports with respect to significant changes in New York State's energy markets that were not considered by NRC Staff in the selection and analysis of energy alternatives, 6 and asserted that the DSEIS no-action alternatives analysis was deficient under NEPA, Council of Environmental Quality ("CEQ") regulations, and NRC's own Part 51 regulations.
6 See e.g., NYS DSEIS Comments discussing: electricity supply and demand forecasts (p. 23); Staff's reliance on obsolete information (pp. 24-27); non-fossil fuel alternatives including energy efficiency, renewable generation, and combined heat and power (pp. 33-36); and repowered facilities (pp. 23, 26).
4
On June 16, 2009, the Board admitted NYS-33 in its entirety and consolidated it with NYS-9.7 The Board determined the State had demonstrated that the. DSEIS materially differed from the ER in the.data and conclusions associated with each document's no-action alternative section. 8 The Board also ruled that since the State had met the initial requirement of 10 C.F.R.
§ 2.309(f)(2), it was not subject to the additional requirement of 10 C.F.R. § 2.309(f)(2)(i)-(iii).
The Board ruled that the State's contention that several areas of the DSEIS ignored information related to energy conservation and renewable generation, and that the combination alternatives were "artificially narrow and arbitrary," was within the scope of the proceeding and demonstrated a genuine dispute on a material issue, namely, whether Staff's no-action alternative was adequate under NEPA, CEQ regulations, and NRC's Part 51 regulations. 9 On December 3, 2010 NRC Staff released the FSEIS'° for the Indian Point units. The FSEIS discussion of no action alternatives differed from that offered in the ER and DSEIS in several respects, the most significant being: (1) Staff included energy conservation as an alternative and adopted the findings from SEISs done in two other license renewal proceedings to determine impacts, FSEIS § 8.3.3; (2) Staff included purchased power as an alternative, but determined the specific impacts were too difficult to determine, FSEIS § 8.3.2; (3) Staff removed coal generation as an alternative, but nonetheless incorporated the lengthy DSEIS impact analysis into theFSEIS, FSEIS § 8.3.4.13; (4) Staff increased renewable generation by 200 MW in a combined alternative together with (a) the continued operation of one IP unit installed with cooling towers FSEIS § 8.3.5.1 (an action Applicant has steadfastly opposed, and is not currently 7 Licensing Board Order (Ruling on New York State's New and Amended Contentions) at 9-13 (Jun. 16, 2009) ("June 16, 2009 Board Order") (unpublished).
8 Id. at 12.
9 Id. at pp. 12-13.
"0 NUREG-1437, Supplement 38, Final Supplemental Environmental Impact Statement ("FSEIS")
Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (Dec. 2010).
5
required as a condition of license renewal), or (b) a gas-fired plant, constructed either at the IP site, at a repowered site, or at a different location. FSEIS § 8.3.5.2.
Pursuant to the Board's Order and Memorandum, dated December 27, 2010 (ML103610172), New York State timely filed NYS-37 in response to the FSEIS.
REGULATORY FRAMEWORK A.
Legal Requirements For Admissibility of a NEPA Contention Based on the FSEIS The regulations governing the admissibility of NYS-37 are 10 C.F.R. § 2.309(f)(2)
(timeliness), and 10 C.F.R. § 2.309(f)(1) (setting forth the basic criteria that determine admissibility of all contentions). Pursuant to 10 C.F. R. § 2.309(f)(2), a new or amended contention dealing with an issue arising under NEPA is admissible if there "are data or conclusions" in the FSEIS that differ "significantly" from the applicant's environmental documents. Otherwise, a new or amended contention can only be filed with leave of the Board, upon a showing that the information upon which it is based was not previously available, is materially different from information previously available, and has been submitted in a timely fashion.
Except for the normal regulatory requirements applicable to the admissibility of all contentions (10 C.F.R. § 2.309(f)(1)), the only criteria applicable to a timely filed NEPA contention challenging the FSEIS is set forth in 10 C.F.R. § 2.309(f)(2). As set forth in the "The text of 10 C.F.R. § 2.309(f)(2) reads as follows:
On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. The petitioner may amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents.
Otherwise, contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that... 10 C.F.R. 2.309 (0(2)
(emphasis added).
6
Board's Order of June 16, 2009, "if there is a material difference between the two documents, a party need not address the additional requirements in 10 C.F.R. § 2.309(f)(2)(i)-(iii)." June 16, 2009 Board Order, p. 12.
The standard against which the State's NEPA contentions should be mea'ured is a "less stringent" rule than the contention admissibility requirements for other new contentions. See Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), 63 N.R.C. 568, 572, n. 12 (May 25, 2006)("[nlew NEPA contentions are not subject to the three conditions specified in (f)(2)(i)-(iii)... [N]ew or amended environmental contentions may be admitted if the petitioner shows that the new or amended contention is based on data or conclusions in the applicant's documents..
B.
NEPA Obligates NRC Staff, Not the Applicant, to Prepare a Thorough Environmental Impact Statement That Identifies and Substantively Analyzes Environmental Impacts and Alternatives NRC Staff and Entergy's objections to NYS-37 are based on a fundamental misreading of NEPA and its implementing regulations and call for a brief review of the regulatory framework. For NEPA related contentions, the trigger document for new contentions is an analysis, or finding by Staff or the Commission that is required by regulation or statute as part of the iterative analytical process mandated by NEPA, and CEQ and NRC regulations. As set forth below, Congress specifically placed the ultimate obligation on federal agencies, and not the public, to affirmatively and rigorously consider information relevant to the environmental impact of federal action, and Congress furthermore granted States and citizens the opportunity to challenge the sufficiency of that analysis, prior to the undertaking of federal action.
NEPA, 42 U.S.C. § § 432 1-4337, requires all federal agencies to examine environmental impacts that could be caused by their discretionary actions. As made clear in the regulations 7
promulgated by the NEPA-created CEQ,12 NEPA was designed to "provide a full and fair discussion of significant environmental impacts and shall inform decision makers and the public of the reasonable alternatives 'which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. The "[p]ublication of an EIS, both in draft and final form, also serves a larger informational role. It gives the public the assurance that the agency has indeed considered environmental concerns in its decision making process, and, perhaps more significantly, provides a springboard for public comment."' 13 "To ensure that this commitment is 'infused into' the actions of the federal government, NEPA mandates particular 'action-forcing' procedures."' 4 42 U.S.C. § 4332(E), requires federal agencies to "study, develop, and describe appropriate alternatives to recommend courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 15 "This section is the heart of the environmental impact statement" and presents the environmental impacts of the proposals and the alternatives in comparative form. 10 C.F,R. Part 51, Subpt. A, App. A(5). As the Ninth Circuit has held, this § 102(E) "alternatives provision" requires the agency to give "full and meaningful consideration to all reasonable alternatives."16 "NEPA then directs all federal agencies, 'to the fullest extent possible' to comply with this policy and, inter alia, to use a systematic and interdisciplinary approach in considering 12 Limerick Ecology Action, Inc. v. Nuclear Regulatory Commission, 869 F.2d 719 (3d Cir. 1989) (CEQ regs entitled to "substantial deference."); see also Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989).
13 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348-349 (U.S. 1989) (internal citations omitted).
14 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), 47 N.R.C. 77 (Apr. 3, 1998) quoting 115 Cong. Rec. 40,416 (1970) (remarks of Sen. Jackson).
15 Pa'ina Hawaii, LLC (Materials License Application), CLI-I 0-18, Docket No. 30-36974-ML, (Jul. 8, 2010) ("Pa 'ina Hawaii") at p. 22, citing 42 U.S.C. § 4332(2)(E).
16 Centerfor Biological Diversity v. Nat 'l Highway Traffic Safeq, Admin., 538 F.3d 1172, 1217-18 (9th Cir.
2008).
8
environmental issues, and, before taking any major Federal action significantly affecting the quality of the human environment, to generate a detailed environmental impact statement.',' 7 When preparing an EIS, the agency must "[r]igorously explore and objectively evaluate all reasonable alternatives." 8 In this regard "general -statements about 'possible' effects and 'some risk' do not constitute a 'hard look' absent a justification regarding why more definitive information could not be provided."' 9 Thus, the adequacy of the agency's alternatives analysis is judged on the "substance of the alternatives" rather than.the "sheer number of alternatives examined."'
20 As a federal agency, NRC must comply with NEPA.21 Congress, through NEPA, placed specific, non-delegable obligations on NRC staff and the NRC Commission, as opposed to the Applicant, and the State's contentions are focused on deficiencies in Staff s recently issued FSEIS, and the Board's obligations to independently review those deficiencies before the issuance of any relicensing decision. Thus, 10 C.F.R. § 51.80 requires NRC Staff to prepare a draft environmental impact statement and 10 C.F.R. § 51.90 furthermore requires NRC Staff, after receipt and consideration of public comments on the draft EIS, to prepare a final environmental impact statement that fully complies with NEPA's statutory mandates.
Compliance with NEPA imposes continuing obligations on an agency after it completes an environmental analysis. An agency that receives new and significant information casting 17 Dominion Nuclear North Anna, LLC, (Early Site Permit for North Anna ESP Site) 65 N.R.C. 539 (Jun.
29, 2007) citing NEPA §§ 102(2)(A), (C) and (E), 42 U.S.C.§§ 4332(2)(A), (C) and (E).
Pa 'ina Hawaii at 22.
9 Thus "general statements about 'possible' effects and 'some risk' do not constitute a 'hard look' absent a justification regarding why more definitive information could not be provided." Neighbors of Cuddv Mountain v.
United States Forest Service, 137 F.3d 1372, 1380 (9th Cir. 1998).
20 Pa'ina Hawaii at 26, citing Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1246 (9th Cir. 2005).
21 Calvert Cliffs Coordinating Comm. v. United States Atomic Energy Commission, 449 F.2d 1109 (D.C.
Cir. 1971) (NEPA applies to NRC predecessor).
Q
doubt upon a previous environmental analysis must reevaluate the prior analysis.2 2 This requirement is codified in NRC's own regulations, which require NRC Staff to "independently evaluate and be responsible for the reliability of all information used in the draft environmental impact statement." 10 C.F.R. § 51.70(b). See also 10 C.F.R. § 51.92(a). Not surprisingly, NRC's license renewal application regulations, at 10 C.F.R. § 51.95(3), provide that an FSEIS shall be issued "after considering any new information relevant to the proposed action," and pursuant.to § 51.91(a)(1)(iii) and (iv) shall include factual corrections and supplementation or modification of analyses in response to comments on a draft environmental impact statement.
As explained bythe Commission in Dominion Nuclear North Anna., LLC (Early Site Permit for North Anna ESP Site) 65 N.R.C. 539 (Jun. 29, 2007), the law, regulations, and case law require the Board to independently review Staff's environmental analyses, to ensure compliance with NEPA, and to independently consider the final balance among conflicting factors, regardless of whether NEPA issues are raised by an intervenor. Accord, Calvert Cliffs',
449 F.2d at 1118. Thus, Part 51 of NRC's regulations provide that it is the presiding officer, not NRC Staff, that will ultimately determine whether the requirements of 42 U.S.C.. § 4332(A),(C) and (E), of NEPA and the regulations in this subpart have been met. See 10 C.F.R. § § 51.104-106. Furthermore, pursuant to 10 C.F.R. §§ 51.91(3)(c), 51.95(c)(4),.51.103(a)(3), (5), and 51.1 Q4(a)(3), the Commission, or Board, shall render a Record of Decision ("ROD'.') based on the information and analysis set forth, and shall state how the alternatives considered-in it and decisions based on it will or will not achieve the requirements of sections 101 and 102(1) of NEPA and of any other relevant and applicable environmental laws and policies.
22 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374 (1989); see also Natural Resources Defense Council v. United States Forest Service, 421 F.3d 797, 809, 813-14 (9th Cir. 2005) (remanding for a fresh consideration of alternatives because the Forest Service used inaccurate data for market demand in developing its original NEPA analysis, rendering the initial consideration of alternatives inadequate, because it was impossible to tell what other alternatives the agency might have considered based on accurate information).
10
The State has timely submitted NYS-37 in response to the FSEIS, to challenge the sufficiency of Staff s alternatives analysis, within the timeframe established by the Board. All of the claims presented in NYS-37 address analyses or omissions of analysis contained in the FSEIS. As discussed below, the State is not obligated to raise issues related to the FSEIS before the issuance of the document, and likewise, remains free to raise contentions based on the FSEIS which address Staff s failure to correct deficiencies identified in the ER and DSEIS. As Staff has acknowledged, it is the agency that "bears the ultimate burden of demonstrating that environmental issues have been adequately considered." Staff Answer at 5, quoting Louisiana Energy Services, L.P. (Claiborne Enrichment Center), 47 N.R.C. 77, 89 (Apr. 3, 1998).
ARGUMENT I.
NYS-37 IS BASED ON DATA AND CONCLUSIONS THAT DIFFER SIGNIFICANTLY FROM THE APPLICANT'S ENVIRONMENTAL REPORT NRC Staff s assertions that the State must meet the late filed contention requirements of
§ 2.309(f)(2)(i)-(iii) or the non-timely filing requirements of § 2.309(c) lack merit because they ignore the clear language of the regulations, and because they are inconsistent with NEPA's directives to federal agencies and the Board's June 16, 2009 Order, "if there is a material difference between the two documents, a party need not address the additional requirements in 10 C.F.R. § 2.309(f)(2)(i)-(iii)". June 16, 2009 Board Order at 9-13.
While citing to Louisiana Energy Services, L.P. (Claiborne Enrichment Center), 47 N.R.C. 77, 89 (Apr. 3, 1998) (which stands for the well-accepted proposition that environmental contentions should be raised in the first instance at the time of the filing of the ER), Staff recycles a proposition that is not only not supported by the Claiborne case, but conflicts with the cited language from the case. Staff argues "an intervenor must file contentions raising 11
environmental issues based on the environmental report or promptly after the information supporting the contentions becomes available," rather than waiting for the Draft or Final SFEIS to be published,' pursuant to 10 C.F.R. § 2.309(f)(2). Staff Answer at 5. Staff is plainly wrong. 23 First, Staff fails to mention that 10 C.F.R. § 2.309(f)(2) does not contain the operative phrase "promptly after the information supporting the contention becomes available" which Staff puts forward as the applicable standard here. Indeed, as the plain language of the regulation makes clear, with respect to contentions arising out of NEPA, the initial time to file a contention challenging the ER is when the ER is filed, and the time to file. a NEPA contention challenging any subsequent agency environmental study or review is after the document is filed.
Nonetheless, Staff relies on Northern States Power Co. (Prairie Island, Units 1 and 2),
LBP-08-26, 68 N.R.C. 905, 931-932 (Dec. 2008), for the proposition that "the publication of a Staff document that summarizes or collects -existing information is not by itself automatically sufficient to justify a new contention." Staff s reliance is misplaced. In Prairie Island, the matter at hand concerned a safety issue, not a NEPA challenge. Since safety issues are not tied to the legality of a Staff document and NEPA contentions are, by their very nature, dependent upon particular Staff documents and their legal adequacy, the Prairie Island decision is irrelevant. Here, the publication of the triggering document, the FSEIS, provided information, data, and conclusions that had never existed before - namely, Staff s final environmental impact analysis, which included an entirely new and never before seen analysis of energy alternatives.
Staff s belief that intervenors are required to submit new NEPA contentions on a rolling basis as new information arises, lacks regulatory arid statutory support, and reflects a 23 Staff advanced this identical claim, to no avail, in response to the State's timely filing of NYS-33. The Board rejected this line of reasoning, reviewed NYS-33 according to the first prong of 10 C.F.R. § 2.309(f)(2) and the additional requirements of § 2.309(f)(1) to admit NYS-33 as tiniely and within the scope of these proceedings.
See June 16, 2009 Board Order at 9-13.
12
fundamental misunderstanding of the affirmative obligations imposed by NEPA on Staff, and attempts to shift the burden of the "hard look" analysis onto intervenors. As set forth above, it is Staff, and not the public, that is obligated under NEPA and the federal regulations to affirmatively investigate the environmental impacts of reasonable alternatives to the proposed project. The standard suggested by Staff would shift the burden on to intervenors to continuously identify and bring to Staff's attention documents relevant to the EIS, and to file NEPA contentions in anticipation that Staff will fail to perform their independent duty to discover, review, and consider such information in the process of producing the EIS.
Contentions alleging NEPA violations may only be raised against the DSEIS and the FSEIS, as these documents are produced by the agency, and it is the agency, and not applicant, that is subject to NEPA.
Staff does not and cannot dispute that the FSEIS examines an entirely new set of energy alternatives, or that NYS-37 challenges this new analysis. It necessarily follows that because the Board has already determined that the DSEIS is significantly different from the ER because it examines energy conservation and combinations of alternatives, the FSEIS, which also includes conservation and combinations of alternatives, differs significantly from the ER. As set forth in NYS-37 ¶¶ 29-31, the FSEIS also relies on wholly new data (the Department of Energy's 2010 Annual Energy Outlook Report) to justify its final selection of the reasonable alternatives to license renewal. This Report, published in 2010, was not contained in the ER, and is challenged in NYS-37. Furthermore, NYS-37 ¶¶ 60 (a)-(i), and 62 (a)-(i) set forth numerous examples where the State directly challenges data and conclusions contained in the FSEIS. None of the cited examples appear in Applicant's ER or in the DSEIS. Accordingly, NYS-37 meets the requirements of 10 C.F.R. § 2.309(f)(2) that new contentions arising under NEPA are admissible 13
.if there are data and conclusions in the document that differ from the Applicant's ER and the DSEIS and the new contention is focused on that new data and conclusions.
That NYS-37 cites primarily to the DSEIS, rather than the ER merely reflects the fact that the State of New York has incorporated its past comments and contentions on the ER and DSEIS in NYS-37 which helps to focus the litigation on the new deficiencies apparent in changes to the final alternatives analysis as presented in the FSEIS. In the process of incorporating NYS-9 into NYS-33, and then NYS-9/NYS-33 into NYS-37, the State has created a detailed administrative and adjudicatory record, beginning with the ER and ending with the FSEIS, that tracks the entire environmental review of no action alternatives at Indian Point and the changes that have, or have not, occurred along the way in response to public comment on identified deficiencies or disputed issues. Staff asserts that with respect, to the State's claims regarding consideration of the State's Renewable Portfolio Standard ("RPS"), energy conservation/demand response programs, transmission corridors and purchased power, "New York should have filed this contention as a challenge, to the ER or DSEIS." Staff Answer at p. 19. In fact, as has been extensively set forth in NYS-37 and above, the State did raise all the above issues with respect to the ER and DSEIS, and provided Staff with three expert reports, including the 2007 Synapse Report which specifically discusses those issues and which Staff continue to disregard.
II.
NYS-37 IS WITHIN THE SCOPE OF THIS PROCEEDING NRC Staff asserts NYS-37 is inadmissible insofar as it challenges alternative scenarios and is not limited to the "no-action" alternative, and asserts the State's challenges must be limited to consideration of "single, discrete electric generation sources." Staff Answer at 13-14 (Pt. III) and pp. 18-19. Here, Staff fails to understand the difference between and function of the discussion of energy alternatives to the proposed action and the discussion of the no-action 14
alternative. The former, as interpreted by the Commission in the Generic Environmental Impact Statement ("GEIS"), is focused on examining reasonable replacement options for the power to be generated by Indian Point in the event that one or both of the units are denied license renewal.
Rightly or wrongly, energy conservation and combinations of renewable energy resources have been excluded from that discussion by the GEIS, and absent new information (which the State argues exists in this case), may not be the basis for a contention.
The latter, however, explores an entirely different issue: a comparison of the likely environmental impacts that flow from the rejection of the proposed project. Here, the GEIS recognizes that the denial of a renewed license may lead to a variety of potential outcomes. In some cases, denial may lead to the selection of other electric generating sources to meet energy demands as determined by appropriate state and utility officials. In other cases, denial may lead to conservation measures and/or decisions to import power. In addition, denial may result in a combination of these different, outcomes.
GELS, Main Report, NUREG-1437, Vol. 1 (May 1996) p. 8-2 available at http://www.nrc. gov/reading-rm/doc-collections/nuregs/staff/sr 1437/v 1/index.html.
It is in this latter respect where the FSEIS is seriously deficient. Staff, by constantly shifting its discussion between a challenge to the energy alternatives discussion and no-action alternatives, unnecessarily muddies the waters. 24 Entergy, on the other hand, argues NYS-37 raises issues that are outside the scope of this proceeding because it allegedly challenges the need for power from the Indian Point units and therefore, contravenes language in 10 C.F.R. § 51.95(c)(2) that "the NRC will neither perform analyses of the need for power nor draw any conclusions about the need for generating capacity 2*4 Furthermore, the GElS states "[tihe analysis in Section 8.3 ("Alternatives") is equally applicable to the no-action alternative in that the alternatives analyzed in this section are all possible actions resulting from denial of a renewed license. Therefore, Section 8.3 represents additional impacts of the no-action alternative." Id at 8-15..
15
in a license renewal review." Entergy Answer at p. 13. Entergy ignores the limiting language that follows which expressly permits NRC to consider the need for power, as well as the economic costs and benefits of the proposed projects or alternatives when such are "essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation." 10 C.F.R. § 51.95(c)(2).
As conceded by Entergy, the State's complaint that the "FSEIS assumes a need for too much power" is directly related to its concern that this outdated assumption "distorts the analysis of the amount, location, and timing of new and/or alternative sources of generation necessary to replace the power supplied by Indian Point." NYS-37 ¶ 15. As set forth in NYS-37 ¶¶ 55-59, the State argues that because the FSEIS does not accurately describe the current state of New York State's electricity markets, it gives decisionmakers no sense of which among the alternatives are likely to be deployed in what quantities in the event that the no action alternative is in fact pursued. Because this issue directly addresses the quality and adequacy of NRC's alternative's analysis, it is within the scope of these proceedings.
NYS-37 is essentially identical to admitted NYS-9/NYS-33 to the extent it challenges the environmental review of the no action alternative because it fails to consider non-fossil fuel alternatives, such as energy conservation and renewable generation. NYS-37 volunteers more supporting evidence to its initial claim that Entergy and Staff disregard new and significant developments in New York State's electricity markets relevant to the choice and viability of alternative sources of generation to the Indian Point units, and further advances the new bases that the FSEIS's treatment of alternatives is so deficient, incomplete, and arbitrary as to render the FSEIS a nullity with respect to relicensing. Because these additional bases challenge the adequacy of the alternatives analysis under NEPA, they are likewise within the scope of these 16
proceedings. The recycled claims by Staff and Entergy that NYS-37 exceeds the scope of the.
relicensing proceeding are meritless.
III.
NYS-37 SUFFICIENTLY RAISES MATERIAL FACTUAL AND LEGAL ISSUES NRC Staff and Entergy's further, fundamentally mistaken attack on NYS-37 is to repeatedly assert that the State has failed to demonstrate that if the considerations which were ignored in the FSEIS had been considered, it would have produced a different result.25 In setting forth the argument about whether the State's new contention has "merit sufficient to be heard,"
Staff and Entergy "confuse the standard for contention admissibility (§ 2.309(f)) with the more rigorous evidentiary standard for reopening the record, i.e., a likely material change of result, pursuant to § 2.326(a).' 26 Determining whether the contention is adequately supported by a concise allegation of the facts or expert opinion is not a hearing on its merits.27 The contention admissibility threshold is less than is required at the summary disposition stage. Id. In fact, the use of additional supporting evidence for an admitted contention is clearly contemplated by Commission regulations. See 10 C.F.R. § 2.309(f)(1)(v), (vi); Louisiana Energy Services, L.P.
(National Enrichment Facility), 60 N.R.C. 619, 623 (Dec. 8, 2004) (under contention rule, intervenors need not prove their case or provide an exhaustive list of possible bases, but must simply provide sufficient alleged factual or legal bases to support the contention when filed).
25 If the standard were as Entergy and Staff assert, it is unlikely any environmental contention would be accepted since, given Staff s position in the DSEIS and FSEIS, it does not appear that any information, no matter how compelling, would cause Staff to alter its view that Indian Point should be relicensed. The proper standard is whether a contention, if ultimately successful, would be a material factor in the Board's decision. By admitting Contention 9/33 the Board has already answered that question in the affirmative. Board Order (Jun. 16, 2009), p.
13.
26 Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-02 (Mar. 10, 2011).
27 Entergy Nuclear Operations. Inc. (Indian Point, Units 2 and 3), 68 N.R.C. 43, 93 (Jul. 31, 2008), p. 9 citing Public Service Company of New Hampshire (Seabrook Station, Units I and 2), 16 N.R.C. 1649, 1654 (Nov.
17, 1982).
17
As the Board noted in its July 31, 2008 ruling on the State's initial contentions, the applicable standard at the contention admissibility stage with respect to "materiality" is found in 10 C.F.R. § 2.309(f)(1)(iv). Under this standard, "a petitioner must demonstrate that the contention asserts an issue of law or fact that is 'material to the findings the NRC must make to support the action that is involved in the proceeding.',28 As the Board has previously explained,
"[t]hat is the petitioner must demonstrate that the subject matter of the contention would impact the grant or denial of a pending license application. 'Materiality' requires that the petitioner show why the alleged error or omission is of possible significance to the result of the proceeding."2 9 Indeed, as the Commission has previously held, at the contention admissibility stage "[t]he dispute at issue is 'material' if its resolution would 'make a difference in the outcome of the licensing proceeding.`' 30 Inthis regard, "[e]ach contention must be one that, if proven, would entitle the petitioner to relief.'31 If proposed NYS-37 is ultimately successful, the relief to which the State would be entitled is either denial of the propose renewed license for failure to comply with NEPA and NRC Regulations (see 10 C.F.R. § 54.29(b)) or a rewriting of the FSEIS to include an accurate and thorough analysis of the no action alternative. Moreover, in Duke Energy Corporation (McGuire, Units 1 and 2; Catawba, Units 1 and 2), 56 N.R.C. 1 (Jul. 23, 2002), the Commission rejected the line of argument advanced in that case by Entergy and NRC Staff that the NEPA claims in that case would not change the outcome, and therefore would not entitle Petitioners to 28 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), 68 N.R.C. 43, 93 (Jul. 31,2008), pp. 7-8, citing 10 C.F.R. § 2.309(f)(1)(iv).
29 Id. (internal citations omitted).
30 Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3), 49 N.R.C. 328 (Apr. 15, 1999),
333-34; see also 54 Fed. Ref. 33,168 (Aug. 11, 19889), Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process at 33,172.
3' 69 Fed. Reg. 61,411 (Oct. 18, 2004), USEC, Inc. (American Centrifuge Plant); Notice of Receipt of Application for License; Notice of Availability of Applicant's Environmental Report; Notice of Consideration of Issuance of License; and Noitce of Hearing and Commission Order.
18
any meaningful relief since "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." Id. at 10. NYS-37 focuses on the adequacy of Staff's alternatives analysis; it is not focused on individual outcomes, but rather challenges the lack of meaningful consideration of the issues raised by the State with respect to the viability of non-fossil fuel alternatives. In this regard, the Seventh Circuit well articulates the State's concern:
"[i]fNEPA mandates anything, it mandates this: a federal agency cannot ram through a project before first weighing the pros and cons of the alternatives. In this case, the [agency] executed an end-run around NEPA's core requirement. By focusing on a single-source idea, the [agency]
never looked at an entire category of reasonable alternatives and thereby ruined its environmental impact statement." Simmons v. US. Army Corps of Engineers, 120 F.3d 664, 670 (7th Cir. 199 7 ).
Specifically, NYS-37, ¶ 62 (a)-(j) maintains the FSEIS systematically excludes alternative scenarios having the lowest environmental impacts, and provides a bulleted list of numerous examples where the FSEIS artificially overstates the adverse environmental impacts of the alternatives to relicensing. Moreover NYS-37 asserts that in failing to provide a site specific environmental impact analysis for energy conservation, purchased electrical power, and a combined alternative that includes renewable energy and efficiency, the FSEIS effectively restricts the comparison of license renewal to fossil fuel alternatives. NYS-37 ¶ 61. Should the State prevail on this claim, the inclusion of any site-specific analysis on those alternatives would materially change the FSEIS, which currently contains no such analysis.
19
Finally, Staff asserts that because the State does not challenge the environmental impact assessment of various alternatives, it does not make the only challenge which, if made, would allow acceptance of the contention. Staff Answer at p. 9, 14-15. This narrow view of the function of the impact statement reflects a fundamental misunderstanding of the impact preparation process and is at odds with relevant NEPA case law. The purpose of doing the impact statement is to produce informed decision-making. If, as occurs in the FSEIS, the analysis fails to consider all the relevant evidence in -assessing whether viable alternatives exist to the proposed action, which is precisely what occurred here and precisely what the State has challenged, then the final decision-maker, in this case the Board, cannot do its job properly. The Staff argument that all it must do is set forth the adverse impacts of proposed alternatives ignores the fact that the environmental impacts of the no-action alternative necessarily have to include the likelihood and extent of measures that will be taken if license renewal is denied. It furthermore ignores the obligations imposed on Staff by NEPA and NRC regulations to ".sharply define the issues and provide a clear basis for choice among options by the decision-maker and the public" 40 C.F.R. § 1502(14). NYS-37 argues the FSEIS is flawed because of its failure to evaluate consequences of the no-action alternative by ignoring some reasonable consequences, for example, a greater use of conservation, energy efficiency and renewable generation.
IV.
THE FSEIS DISCUSSION OF ALTERNATIVES VIOLATES NEPA Much of Staff and Entergy's argument that the FSEIS's conclusions are valid and adequately supported merely confirms that there is a material dispute between the parties on this issue and reiterate their objections to the admission of NYS-9 and NYS-33, which likewise disputed Staff s conclusions regarding the viability of non-fossil fuel alternatives to Indian Point's generation capacity.
20
Entergy sets forth two additional arguments in defense of the alternatives analysis contained in the FSEIS. In the first instance, Entergy argues that any agency need not consider every available alternative since "NEPA does not require a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered, or which have substantially similar consequences." Entergy Answer at p. 9. Entergy's reliance on Headwaters, Inc. v. Bureau of Land Management, MedfordDist., 914 F.2d 1174, 1181 (9th Cir.,1990) for this proposition is misplaced, however, since in Headwaters the issue turned on whether the agency must consider the site-specific impacts of a land exchange for the same area, for which an environmental assessment ("EA") had already been conducted, in its preparation of the EIS for a federal land leasing project. The agency excluded the land exchange on the basis that the EA demonstrated substantially similar impacts to those of already studied alternatives. Here, the State points out the FSEIS is deficient because it has failed to perform any site-specific environmnental review for whole categories of alternatives (conservation, purchased electrical power, and combined heat and power). Thus, there is no factual basis to support the exclusion of these alternatives based on the alleged similarity of their impacts to other alternatives.
Entergy further argues that the FSEIS has satisfied NEPA's "rule of reason" in its choice of alternatives, and cites Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense' Council, Inc., 435 U.S. 519 (1978), to argue that "given the constraints on an agency's time and resources, it need not 'ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved."' Entergy Answer at 10, citing Vermont Yankee at 551. Yet, as the Supreme Court also observed in Vermont Yankee, "the concept of 'alternatives' is an evolving one, requiring the agency to explore more or fewer alternatives as they become better known and understood" and a Licensing Board's 21
decision with respect to the adequacy of the alternatives analysis required by NEPA has to be judged by the information then available to it. Id. at 552-553. As noted earlier, NEPA obliges an agency to revisit its alternatives analysis, including a true no action alternative, whenever there are changed circumstances that affect the factors relevant to the development and evaluation of alternatives. Natural Resources Defense Council v. United States Forest Service, 421 F.3d 797, 809, 813-14 (9th Cir. 2005) (remanding for a fresh consideration of alternatives because the Forest Service used inaccurate data for market demand in developing its original NEPA analysis, rendering that alternatives consideration inadequate because it was impossible to tell what other alternatives the agency might have considered based on accurate information).
Entergy's argument lacks merit in several further respects. First, it ignores the substantial evidence provided by the State that, in light of the State's current energy policies and energy markets, the likely alternatives in a "no-action" scenario will include energy conservation, purchased electrical power, and various forms of renewable generation or some combination thereof. As the GEIS acknowledges, these are hardly "uncommon or unknown" alternatives nor does New York demand that Staff "ferret [them] out." Rather, these are alternatives that New York State is already implementing, the existence of which has been made known to Staff. Thus the FSEIS's failure to provide any site specific environmental impacts analysis for at least two of those categories (conservation and purchased electrical power) is unreasonable. Because "the existence of a viable but unexamined alternative renders an EIS inadequate under NEPA,",32
32 "The existence of a viable but unexamined alternative renders an Environmental Impact Statement (EIS)
- inadequate under NEPA. Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Dept. of Interior, 608 F.3d 592, 605, n.13 (9th Cir. 2010) (rejecting EA for failure to adequately consider cumulative impacts under 42 U.S.C. § 4332(E) (internal citations omitted).
22
Secondly, NYS-37 ¶¶ 48-50 faults the FSEIS's reliance on speculative transmission projects with large environmental impacts, including one project that was actually withdrawn from consideration a year before the FSEIS was published, while ignoring actual transmission projects with lesser environmental impacts identified by the State's Public Service Commission as highly relevant to Indian Point. As noted by Entergy, an EIS should consider viable alternatives, not speculative ones. Entergy Answer at pp.. 18-19. Thus, by Entergy's own standard, the FSEIS is deficient. Thirdly, Entergy may not point to constraints on NRC's time and resources as a credible justification for these omissions, since the issues, and much of the analysis and information necessary to meaningfully consider these issues was provided to Staff, in the form of the State's previously filed contentions, comments and expert reports, as early as 2007.
Moreover, Staff's claim that it was permissible for the FSEIS to adopt and apply the conclusions of other FSEIS's to the proposed project, as it did with respect to energy conservation, lacks authority and merit. Staff Answer p. 19. Pursuant to 40 C.F.R. § 1506.3(a) and (b) an agency may adopt a draft or final environmental impact statement or portion thereof provided that the actions covered by the original environmental impact statement and the proposed action are substantially the same. NYS-37 ¶ 43 objects to Staff s adoption of conservation impact analysis from other FSEIS's in lieu of a site-specific environmental analysis in part because Staff has not demonstrated that the adopted portions (conservation programs in North Carolina and Pennsylvania) relate to actions that are the substantially the same in New York State.
23.
V.
STAFF'S ARGUMENTS THAT DOCUMENTS CITED IN THE STATE'S COMMENTS ON THE DSEIS SHOULD NOT BE CONSIDERED ARE WITHOUT MERIT Finally, Staff further argue the State has failed to show that the FSEIS failed to consider any comments submitted on the DSEIS because the State merely cited to, and did not physically attach, copies of the expert reports the State had previously served upon the parties in support of NYS-9/NYS-33, and therefore those reports should not be considered part of the State's comment on the DSEIS. Staff Answer, p. 16-17.. Staff s argument lacks merit in the first instance, because the bases and supporting evidence set forth in environmental contention NYS-9/NYS-33 were "both comments on the proposed draft statement and a statement of [New York State's] position in the upcoming hearings." 33 Furthermore, as the Commission held in Pa 'ina Hawaii, LLC (Materials License Application) CLI-10-18, Docket No. 30-36974-ML, (Jul. 8, 2010) "there is no per se regulatory bar that precludes the Staff from using the hearing process to clarify the administrative record" supporting its environmental impact studies and, "that record, along with any adjudicatorv decision, becomes, in effect, part of the final environmental document" (emphasis added). Indeed, the FSEIS is replete with references to State's other contentions. 34 Nor may Staff legitimately argue it was were unaware of the contents of the three expert reports, as the reports were physically served on Staff well in advance, in some instances, years in advance, of the publication of the FSEIS.
33 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council. Inc., 435 U.S. 519, 531-532 (1978) (recognizing both contentions and comments as a statement of a party's overall comments and position regarding an environmental impact statement).
34 See e.g., FSEIS § 5-11 discussing SAMA contention; FSEIS Appendix A-128-129 (referencing Contention 12A); FSEIS Appendix H7-H8 (referencing DEC Contentions); FSEIS Appendix H-21 (referencing DEC Contention), FSEIS Appendix H-67 (referencing DEC Contentions).
24
CONCLUSION The State of New York has well founded concerns that NEC Staff's analysis of energy alternatives for Indian Point is so deficient and flawed as-to make the December 2010 FSEIS wholly inadequate for the purposes of NEPA and incapable of supporting an informed relicensing decision by the Board and Commissioners. For the foregoing reasons, the State asks that the Board admit proposed NYS-37 in its entirety, and consolidate it with NYS 9/33.*
Susan C.,'nReusner Assistant Attorney General Officeof the Attorney General
- of the State of New York The Capitol Albany, New York 12224 (518) 474-1968 susan.vonreusner@ag.ny.gov Jo.. Sipos Assistant Attorney General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 (518) 402-2251 john.sipos@ag.ny.gov Dated: March 18, 2011 25
COPY UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD x
In re:
License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
Docket Nos. 50-247-LR and 50-286-LR ASLBP No. 07-858-03-LR-BDOI DPR-26, DPR-64 March 18, 2011
-x CERTIFICATE OF SERVICE I hereby certify that on March 18, 2011, copies of the State of New York's Combined Reply to Entergy and NRC Staff's Answers to the State's Proposed Contention 37, were served upon the following persons via U.S. Mail and e-mail at the following addresses:
Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 1.1545 Rockville Pike Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov Kaye D. Lathrop Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 190 Cedar Lane E.
Ridgway, CO 81432 Kaye.Lathrop@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Josh Kirstein, Esq. Law Clerk Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Josh.Kirstein@nrc.gov I
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 ocaamail@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 hearingdocket@nrc.gov Sherwin E. Turk, Esq.
David E. Roth, Esq.
Andrea Z. Jones, Esq.
Beth N. Mizuno, Esq.
Brian G. Harris, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 sherwin.turk@nrc.gov andrea.j ones@nrc.gov david.roth@nrc.gov beth.mizuno@nrc.gov brian.harris@nrc.gov Emily L. Monteith Megan A. Wright Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 emily.monteith@nrc. gov
.megan.wright@nrc.gov Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com Martin J. O'Neill, Esq.
Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.o'neill@morganlewis.com Elise N. Zoli, Esq.
Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com William C. Dennis, Esq.
Assistant General Counsel Entergy Nuclear Operations, Inc.
440 Hamilton Avenue White Plains, NY 10601 wdennis@entergy.com Robert D. Snook, Esq.
Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 robert.snook@ct.gov Melissa-Jean Rotini, Esq.
Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building 148 Martine Avenue, 6th Floor White Plains, NY 10601 MJR 1 @westchestergov.com.
2
Daniel E. O'Neill, Mayor James Seirmarco, M.S.
Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY.10511-1298 vob@bestweb.net Daniel Riesel, Esq.
Thomas F. Wood, Esq.
Jessica Steinberg, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 driesel@sprlaw.com j steinberg@sprlaw.com Michael J. Delaney, Esq.
Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 (718) 595-3982 mdelaney@dep.nyc.gov Manna Jo Greene, Director Stephen Filler, Esq., Board Member Hudson River Sloop Clearwater, Inc.
724 Wolcott Avenue Beacon, NY 12508 Mannajo@clearwater.org stephenfiller@gmail.com Ross H. Gould Board Member Hudson River Sloop Clearwater, Inc.
270 Route 308 Rhinebeck, NY 12572 rgouldesq@gmail.com Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org dbrancato@riverkeeper.org
[ /
/
s/
/..
Susan C. y§,n` Reusner Assistant Attorney General State of New York (518) 402-2251 Dated at Albany, New York this 18th day of March 2011