ML12066A170

Order (Granting in Part and Denying in Part Applicant'S Motions in Limine)

ML12066A170
Person / Time
Site:	Indian Point
Issue date:	03/06/2012
From:	Lathrop K, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel
To:	Entergy Nuclear Operations
SECY RAS
References
RAS 22003, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12066A170 (52)

Text

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

Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) March 6, 2012 ORDER (Granting in Part and Denying in Part Applicants Motions in Limine)

On January 30, 2012, Entergy Nuclear Operations, Inc. (Entergy or Applicant) filed seven motions in limine addressing the testimony and documentary evidence submitted by the State of New York (New York), Hudson River Sloop Clearwater, Inc. (Clearwater), and Riverkeeper, Inc. (Riverkeeper) (collectively, the Intervenors). 1 After a Board Order setting 1

Applicants Motion in Limine to Exclude Portions of the Prefiled Testimony, Report, and Exhibits Filed by New York State and Dr. Francois LeMay in Support of Consolidated Contention NYS-12C (Jan. 30, 2012) [hereinafter Motion in Limine Regarding NYS-12C];

Applicants Motion in Limine to Exclude Portions of the Prefiled Testimony, Report, and Exhibits Filed by New York State and Dr. Stephen Sheppard in Support of Consolidated Contention NYS-16B (Jan. 30, 2012) [hereinafter Motion in Limine Regarding NYS-16B]; Entergys Motion in Limine to Exclude Portions of Pre-filed Direct Testimony, Expert Report, Exhibits, and Statement of Position for Contention NYS-26B/RK-TC-1B (Metal Fatigue) (Jan. 30, 2012)

[hereinafter Motion in Limine Regarding NYS-26B/RK-TC-1B]; Entergys Motion in Limine to Exclude Portions of Pre-filed Testimony and Exhibits for Contention NYS-37 (Energy Alternatives) (Jan. 30, 2012) [hereinafter Motion in Limine Regarding NYS-37]; Entergys Motion in Limine to Exclude Portions of Pre-filed Direct Testimony, Expert Report, Exhibits, and Statement of Position for Contention Riverkeeper TC-2 (Flow-Accelerated Corrosion) (Jan. 30, 2012) [hereinafter Motion in Limine Regarding RK-TC-2]; Entergys Motion in Limine to Exclude Portions of Pre-filed Testimony and Exhibits for Contention RK-EC-3/CW-EC-1 (Spent Fuel Pool Leaks) (Jan. 30, 2012) [hereinafter Motion in Limine Regarding RK-EC-3/CW-EC-1]; Entergys

deadlines for responses, 2 the NRC Staff filed answers to each motion in limine, supporting Entergys positions. 3 On February 17, 2012, the Intervenors filed responses in opposition to Entergys and the NRC Staffs pleadings. 4 Motion in Limine to Exclude Portions of Pre-filed Testimony and Exhibits for Contention CW-EC-3A (Environmental Justice) (Jan. 30, 2012) [hereinafter Motion in Limine Regarding CW-EC3A].

2 Licensing Board Order (Setting Dates for Responsive Pleadings to Entergys Motions in Limine) (Feb. 1, 2012) (unpublished).

3 NRC Staffs Answer to Applicants Motion in Limine to Exclude Portions of the Prefiled Testimony, Report, and Exhibits Filed by New York State and Dr. Francois LeMay in Support of Consolidated Contention NYS-12C (Feb. 9, 2012) [hereinafter NRC Staff Answer Regarding NYS-12C]; NRC Staffs Answer to Applicants Motion in Limine to Exclude Portions of the Prefiled Testimony, Report, and Exhibits Filed by New York State and Dr. Stephen Sheppard in Support of Consolidated Contention NYS-16B (Feb. 9, 2012) [hereinafter NRC Staff Answer Regarding NYS-16B]; NRC Staffs Response in Support of Entergys Motion in Limine to Exclude Portions of Pre-Filed Direct Testimony, Expert Report, Exhibits, and Statement of Position for Contention NYS-26B/RK-TC-1B (Metal Fatigue) (Feb. 9, 2012) [hereinafter NRC Staff Answer Regarding NYS-26B/RK-TC-1B]; NRC Staffs Answer in Support of Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention NYS-37 (Energy Alternatives) (Feb. 9, 2012) [hereinafter NRC Staff Answer Regarding NYS-37];

NRC Staffs Response in Support of Entergys Motion in Limine to Exclude Portions of Pre-Filed Direct Testimony, Expert Report, Exhibits, and Statement of Position for Contention Riverkeeper TC-2 (Flow-Accelerated Corrosion) (Feb. 9, 2012) [hereinafter NRC Staff Answer Regarding RK-TC-2]; NRC Staffs Response in Support of Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention RK-EC-3/CW-EC-1 (Spent Fuel Pool Leaks)

(Feb. 9, 2012) [hereinafter NRC Staff Answer Regarding RK-EC-3/CW-EC-1]; NRC Staffs Response in Support of Entergys Motion in Limine on Contention CW-EC-3A (Environmental Justice) (Feb. 9, 2012) [hereinafter NRC Staff Answer Regarding CW-EC-3A].

4 State of New Yorks Answer to Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Consolidated Contention NYS-12C (Feb. 17, 2012) [hereinafter New York Response Regarding NYS-12C]; State of New Yorks Answer to Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Consolidated Contention NYS-16B (Feb. 17, 2012) [hereinafter New York Response Regarding NYS-16B]; Riverkeeper, Inc. Opposition to Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony, Expert Report, Exhibits, and Statement of Position for Contention NYS-26B/RK-TC-1B (Metal Fatigue)

(Feb. 17, 2012) [hereinafter Riverkeeper Response Regarding NYS-26B/RK-TC-1B]; State of New Yorks Answer to Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention NYS-37 (Energy Alternatives) (dated Jan. 17, 2012 and Feb. 17, 2011, filed Feb. 17, 2012) [hereinafter New York Response Regarding NYS-37]; Riverkeeper, Inc. Opposition to Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony, Expert Report, Exhibits, and Statement of Position for Contention Riverkeeper TC-2 (Flow Accelerated Corrosion) (Feb. 17, 2012) [hereinafter Riverkeeper Response Regarding RK-TC-2];

Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc. Opposition to Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention RK-EC-3/CW-EC-1 (Feb. 17, 2012) [hereinafter Riverkeeper and Clearwater Response Regarding RK-EC-

For the reasons discussed below, we grant in part and deny in part Entergys Motion in Limine Regarding RK-EC-3/CW-EC-1 and deny in whole Entergys Motions in Limine Regarding NYS-12C, NYS-16B, NYS-26B/RK-TC-1B, NYS-37, RK-TC-2, and CW-EC-3A.

I. LEGAL STANDARDS NRC regulations restrict admission of evidence in evidentiary hearings to relevant, material, and reliable evidence which is not unduly repetitious, and specify that [i]mmaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable. 5 [S]trict rules of evidence do not apply to written submissions, but licensing boards are vested with the authority to strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative, and to

[r]estrict irrelevant, immaterial, unreliable, duplicative or cumulative evidence and/or arguments. 6 At the contention admissibility stage, NRC regulations do not oblige intervenors to prove their case, or to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factual or legal bases to support the contention, and to do so at the outset. 7 Consistent with the NRCs dynamic licensing process and the fact that license applications are frequently amended after they are initially filed, 8 the amendment of contentions is expressly permitted by NRC regulations. 9 Nevertheless, the Commission has cautioned against allowing distinctly 3/CW-EC-1]; Clearwaters Reply in Opposition to Entergys Motion in Limine (Feb. 17, 2012)

[hereinafter Clearwater Response Regarding CW-EC-3A].

5 10 C.F.R. § 2.337(a).

6 Id. § 2.319(d)-(e).

7 Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004).

8 Curators of the Univ. of Missouri (TRUMP-S Project), CLI-95-08, 41 NRC 386, 395 (1995).

9 See 10 C.F.R. § 2.309(f)(2).

new complaints to be added at will as litigation progresses, [and thereby] stretching the scope of admitted contentions beyond their reasonably inferred bounds. 10 II. RULINGS ON MOTIONS IN LIMINE A. Contention NYS-12C On July 6, 2011, the Board admitted Consolidated Contention NYS-12C. 11 NYS-12C stated that:

The December 2010 FSEIS [Final Supplemental Environmental Impact Statement] analysis for IP2 and IP3 [Indian Point Units 2 and 3] underestimates decontamination and clean up costs associated with a severe accident in the New York metropolitan area and, therefore, fails to consider mitigation measures which are related to license renewal in violation of NEPA [the National Environmental Policy Act], APA [the Administrative Procedure Act], and NRC and CEQ [Council on Environmental Quality] regulations. 12 NYS-12C contests the accuracy of the severe accident mitigation alternatives (SAMA) analysis in the Staffs FSEIS, specifically the FSEISs estimation of decontamination and clean up costs in the New York City metropolitan area from a severe accident at the Indian Point Energy 10 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 (2010) (emphasis added); see also Licensing Board Memorandum and Order (Ruling on Motion for Summary Disposition of NYS-26/26A/Riverkeeper TC-1/1A (Metal Fatigue of Reactor Components) and Motion for Leave to File New Contention NYS-26B/Riverkeeper TC-1B) (Nov. 4, 2010) at 6 & n.26 (unpublished)

[hereinafter Nov. 4, 2010 Licensing Board Memorandum and Order] (the regulations [do not]

require a petitioner to submit all possible bases at the contention admissibility juncture of the proceeding, as long as all are within the scope of what is admitted by the Board).

11 Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) at 9 (unpublished) [hereinafter July 6, 2011 Licensing Board Memorandum and Order]. A brief history of the earlier contentions can be found in id. at 3-4. For the language of NYS-12 and the Boards ruling admitting that Contention, see LBP 13, 68 NRC 43, 100-02 (2008). For the language of NYS-12-A and the Boards ruling admitting that Contention, see Licensing Board Order (Ruling on New York States New and Amended Contentions) (June 16, 2009) at 3-4 (unpublished) [hereinafter June 16, 2009 Licensing Board Order]. For the language of NYS-12B and the Boards ruling admitting that Contention, see LBP-10-13, 71 NRC 673, 682-84 (2010).

12 State of New York New Contention 12-C Concerning NRC Staffs December 2010 Final Environmental Impact Statement and the Underestimation of Decontamination and Clean Up Costs Associated with a Severe Reactor Accident in the New York Metropolitan Area (Feb. 3, 2011) at 3 [hereinafter Contention NYS-12C].

Center (IPEC). 13 As a basis for contention admissibility, inter alia, New York faulted the FSEISs reliance on the MACCS2 code because of that models assumption that a severe accident would release large-sized radionuclide particles, which are easier to clean up and remove compared to small-sized radionuclides. 14 On January 30, 2012, Entergy filed its Motion in Limine Regarding NYS-12C, 15 which seeks to exclude portions of Dr. Francois LeMays written testimony, 16 exclude portions of Dr.

LeMays report, 17 and strike eight exhibits in their entirety 18 on the grounds that they belatedly attempt to expand the scope of NYS-12C. 19 In particular, Entergy faulted New York for attempting to increase the estimated offsite economic costs by looking at parameters not mentioned in previous pleadings. 20 On February 9, 2012, the NRC Staff filed its Answer in support of Entergys Motion in Limine Regarding NYS-12C. 21 13 Id. at 4.

14 Id. at 4-5; see also LBP-10-13, 71 NRC at 683; LBP-08-13, 68 NRC at 100.

15 Motion in Limine Regarding NYS-12C at 1-16.

16 This exhibit is currently marked as NYS000241. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding NYS-12C, attach. 1 at 1-2.

17 This exhibit is currently marked as NYS000242. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the portions of the exhibits it seeks to strike. Motion in Limine Regarding NYS-12C, attach. 1 at 2-5.

18 Entergy seeks to strike NYS000271, NYS000272, NYS000273, NYS000274, NYS000275, NYS000276, NYS000277, and NYS000278 in their entirety. Motion in Limine Regarding NYS-12C, attach. 1 at 5-6.

19 Motion in Limine Regarding NYS-12C at 2; Motion in Limine, attach. 1 at 1-6.

20 Motion in Limine Regarding NYS-12C at 8 (representing that parameters allegedly not mentioned in previous pleadings include decontamination time (TIMDEC), value of nonfarm wealth (VALWNF), societal discount rate of property (DSRATE), fraction of nonfarm property due to improvements (FRNFIM), depreciation rate (DPRATE), and relocation costs (POPCST)).

21 NRC Staff Answer Regarding NYS-12C at 1-6.

On February 17, 2012, New York filed a Response, arguing that the Board must admit all relevant and material evidence and that Entergy confuses bases with evidence that supports the Contention. 22 Further, New York claimed that the evidence Entergy seeks to strike is within the scope of NYS-12C and is simply additional supporting evidence proving the merits of NYS-12C. 23 Finally, New York argued that all inputs related to decontamination and clean up costs are admissible and that the two modifications made to the MACCS2 code referenced in its expert report were proper. 24 While Entergy faults New York for bringing up parameters not previously raised, the Board notes that we admit contentions, not bases. New bases may be raised as long they are within the scope of the admitted contentions reasonably inferred bounds. 25 Issues like those delineated in New Yorks testimony relating to decontamination and clean up costs are the heart of NYS-12C, and all of the evidence filed by New York is within the scope of the admitted Contentions reasonably inferred bounds. The Board previously advised the parties that

[q]uestions raised in this contention relating to cleanup and decontamination costs based on the validity of assumptions used with the code should appropriately be resolved at the hearing. 26 In the testimony and exhibits to which Entergy objects, New York has provided support evidence for already identified bases for this Contention. Specifically, in NYS-12C, New York raised many of the issues to which Entergy now objects, stating the NRC in its FSEIS should revise the Sandia results for the densely populated and developed New York City metropolitan area, incorporate the regions 22 New York Response Regarding NYS-12C at 2-6.

23 Id. at 12-13.

24 Id. at 14-18, 21-24.

25 See Pilgrim, CLI-10-11, 71 NRC at 309.

26 LBP-08-13, 68 NRC at 102.

property values, and ensure that the resulting financial costs are expressed in present value (in 2008/2009/2010 dollars) and future value (until 2035, the likely term of any renewed operating license). 27 Not only has Entergy been on notice since the original admission of this Contention that New York intended to inquire into clean up and decontamination costs, but Entergy was also on notice that questions as to validity of the MACCS2 code assumptions and inputs would be raised in this proceeding. Further, in NYS-12C, New York clearly cited concerns that the FSEIS improperly calculated property values current and future - which several of the disputed inputs encompass. One can hardly say the contested inputs are outside the scope of NYS-12C when they, in fact, go to the core of the question of property values and how they might be affected by a radionuclide-releasing accident at IPEC and the resulting decontamination process. The challenged evidence is within the scope of NYS-12C and its reasonably inferred bounds.

Entergy argues that Dr. LeMays source code modifications to MACCS2 and the use of these modifications to develop Sample Problem A constitute a direct challenge to MACCS2 itself. 28 In Entergys view, by attacking the code rather than the inputs, Dr. LeMay is exceeding the bounds of the Contention. The Board previously ruled that New York is not challenging the use of MACCS2 itself, but is questioning whether specific inputs and assumptions made in MACCS2 SAMA analyses are correct for the area surrounding Indian Point. 29 Dr. LeMays source code modifications illustrate the effect of varying MACCS2s assumptions to address alternative inputs - something that was conceptualized by the Contention as described in the original Board Memorandum and Order admitting it. 30 For the foregoing reasons, Entergys Motion in Limine Regarding NYS-12C is denied.

27 Contention NYS-12C at 11-12.

28 Motion in Limine Regarding NYS-12C at 14-15.

29 LBP-08-13, 68 NRC at 102 (emphasis added).

30 Id.

B. Contention NYS-16/16A/16B On June 30, 2010, the Board admitted Contention NYS-16/16A/16B (NYS-16B), 31 which entailed admitting, in part, NYS-16B 32 and consolidating the admitted portion with NYS-16/16A. 33 As admitted NYS-16B stated that:

The December 2009 SAMA Reanalysis for IP2 and IP3 uses an air dispersion model which will not accurately predict the geographic dispersion of radionuclides released in a severe accident and will not present an accurate estimate of the costs of human exposure. 34 On January 23, 2012, New York, Entergy, and the NRC Staff filed a Joint Stipulation, agreeing that New York would not pursue the claim that Entergys air dispersion model is being used beyond its range of validity and does not accurately predict the geographic dispersion of radionuclides released in a severe accident . . . . 35 The Joint Stipulation also represented what the parties still believed to be at issue and was signed by representatives of New York, Entergy, and the NRC Staff. 36 A week later, on January 30, 2012, Entergy filed its Motion in Limine Regarding NYS-16B, 37 seeking to exclude portions of Dr. Stephen Sheppards written testimony, 38 portions of 31 LBP-10-13, 71 NRC at 687.

32 The Board did not admit any issues directly addressing emergency planning because the emergency planning question was not previously admitted in either NYS-16 or NYS-16A, and in contrast to population estimates, emergency planning is not within the scope of NYS-16, adding that we do not adjust our prior rulings to widen the scope of NYS-16/NYS-16A to include consideration of fulfillment of Entergys emergency planning obligations or the NRC Staffs NEPA obligations related to emergency planning. Id. (emphasis added).

33 Id.

34 Id. at 684.

35 State of New York, Entergy Nuclear Operations, Inc., and NRC Staff Joint Stipulation (Jan.

23, 2012) at 2 [hereinafter Joint Stipulation].

36 Id. at 2-3.

37 Motion in Limine Regarding NYS-16B at 1-11.

Dr. Sheppards report, 39 and three exhibits in their entirety 40 on the grounds that New York has raised an entirely new issue in its pre-filed testimony and corresponding evidentiary submissions - Entergys alleged failure to account for census undercount. 41 According to Entergy, the U.S. Census Bureaus purported persistent undercount of portions of the population is not only beyond the scope of the admitted Contention, but it is beyond the scope of the proceeding itself. 42 On February 9, 2012, the NRC Staff filed its Answer in support of the Motion in Limine Regarding NYS-16B, arguing that census undercounting was only raised by New York in unsupported footnotes in its major filings on this Contention 43 and was not credibly within the scope of the Contention as admitted. 44 Rather, the NRC Staff argued this is an attempt by New York to revive a Contention that had been essentially abandoned. 45 On February 17, 2012, New York filed a Response, arguing that that its submissions are not outside the scope of the Contention but rather sustain the Contention and its bases with supporting evidence. 46 New York argued that given the plain language of the Contention and its 38 This exhibit is currently marked as NYS000207. Entergy seeks to only strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding NYS-16B, attach. 1 at 1.

39 This exhibit is currently marked as NYS000209. Entergy seeks to only strike this exhibit in part and has provided a line-by-line chart of the portions of the exhibit it seeks to strike, though it mislabels the exhibit it is referring to as NYS000208. Compare Motion in Limine Regarding NYS-16B, attach. 1 at 1 with NYSR10001 at 46 (New Yorks most recent Exhibit List).

40 Motion in Limine Regarding NYS-16B at 1-2 (seeking to strike Exhibits NYS000212, NYS000213, and NYS000214 in their entirety).

41 Id. at 2.

42 Id. at 6-10.

43 NRC Staff Answer Regarding NYS-16B at 3-6.

44 Id.

45 Id. at 6.

46 New York Response Regarding NYS-16B at 10-13.

bases it was reasonable to anticipate that the issue of census undercount would arise. 47 Finally, New York argued that Entergys Motion in Limine Regarding NYS-16B has questioned the weight the Board should give the evidence, an issue that should be addressed after a hearing on the merits rather than through a motion in limine. 48 While both Entergy and the NRC Staff assert that census undercount is a new issue beyond the scope of the admitted Contention, that is not the case. Upon admitting NYS-16, we stated that the Board admits NYS-16 to the extent that it challenges whether the population projections used by Entergy are underestimated. 49 Accordingly, the issue of undercount is neither outside the scope nor a new issue; rather it is within the scope of the Contentions reasonably inferred bounds. Entergy also argues this issue is beyond the scope of this proceeding because the U.S. Census Bureau, an agency under the jurisdiction of the Department of Commerce, is responsible for collecting and assessing the adequacy of census and other demographic data. 50 That is beside the point. New York is not asking this Board to regulate the U.S. Census Bureau, but is merely calling into question the adequacy of certain data appearing in the context of this SAMA reanalysis.

Further, in the January 23, 2012 Joint Stipulation signed by counsel for the NRC Staff, Entergy, and New York, the parties submitted a joint stipulation of issues not in dispute with respect to the below-designated admitted contentions. 51 Specifically regarding Contention NYS-16B, not only did the parties agree to what NYS-16B excluded, the parties agreed to what it included:

47 Id. at 13-16.

48 Id. at 16-20.

49 LBP-08-13, 68 NRC at 112 (emphasis in original).

50 Motion in Limine Regarding NYS-16B at 3.

51 Joint Stipulation at 1.

NYS-16B includes the claim that the FSEIS violates the National Environmental Policy Act, NRC regulations, and Council on Environmental Quality Regulations because it accepts an underestimation of the 2035 population within 50 miles of Indian Point likely to be exposed to radiation during a severe accident. In NYS-16B, the State still asserts two significant errors in the population estimate: (1) failure to account for census undercount; and (2) failure to account for the commuter population present within the 50 mile zone of Indian Point. 52 Any claim by Entergy or the NRC Staff that census undercount is not within the scope of the Contention or this proceeding is undercut by the Joint Stipulation signed by the parties expressly stating that census undercount was within the scope of the admitted Contention.

For the foregoing reasons, Entergys Motion in Limine Regarding NYS-16B is denied.

C. Contention NYS-26B/RK-TC-1B New Yorks and Riverkeepers original consolidated Contention for metal fatigue, NYS-26/26A/RK-TC1/1A, was admitted on August 21, 2008. 53 On September 9, 2010, New York and Riverkeeper filed a motion requesting permission to submit a new and amended contention addressing Entergys August 2010 reanalysis of metal fatigue. 54 On November 4, 2010, the Board admitted NYS-26B/RK-TC-1B, the amended consolidated Contention, which stated that:

Entergys License Renewal Application does not include an adequate plan to monitor and manage the effects of aging due to metal fatigue on key reactor components in violation of 10 C.F.R. § 54.21(c)(1)(iii). 55 52 Id. at 2 (emphasis added).

53 Consolidated Contention of Petitioners State of New York (No. 26/26-A) and Riverkeeper, Inc. (TC-1/TC1-A) - Metal Fatigue and Designation of the State of New York as Lead Litigator for this Consolidated Contention (Aug. 21, 2008) at 3 (ADAMS Accession No. ML082400524)

[hereinafter Consolidated Contention NYS-26/26A/RK-TC-1/1A]; see also LBP-08-13, 68 NRC at 137-40, 172. Because the Board received no objection to the phrasing of that consolidated Contention from any of the parties, the Board accepts this statement as the most recent iteration of that consolidated Contention.

54 State of New Yorks and Riverkeepers Motion for Leave to File a New and Amended Contention Concerning the August 9, 2010 Entergy Reanalysis of Metal Fatigue (Sept. 9, 2010) at 1-2.

55 Nov. 4, 2010 Licensing Board Memorandum and Order at 7.

Precipitated by Entergys cumulative use factor (CUF) reanalysis submitted in 2010, NYS-26B/RK-TC-1B reiterated alleged deficiencies noted in the original consolidated Contention and characterized Entergys reanalyses as inadequate under NRC regulations and the Generic Aging Lessons Learned (GALL) Report. As noted by the Board when it admitted this amended consolidated Contention, New York and Riverkeeper directly challenged the sufficiency, accuracy, and reliability of the CUF calculations [in Entergys License Renewal Application,] as well as a lack of specificity in Entergys AMP [Aging Management Plan] to assure that its management of metal fatigue meets the requirements of 10 C.F.R.

§ 54.21(c)(1)(iii). 56 On January 30, 2012, Entergy filed a Motion in Limine to exclude parts of New Yorks and Riverkeepers evidentiary submission for NYS-26B/RK-TC-1B. 57 Specifically, Entergy sought to exclude most of the testimony and report of Riverkeepers expert, Dr. Joram Hopenfeld, on the grounds that his statements exceed his expertise, belatedly expand the bases of the Contention, and are beyond the scope of the proceeding. 58 In addition, Entergy moved to strike New Yorks and Riverkeepers Initial Statement of Position, 59 and to strike 56 Id. at 12-13.

57 Motion in Limine Regarding NYS-26B/RK-TC-1B at 1-14.

58 Id. at 7-12; id., attach. 1 at 1-6, 8-13, 16-18 (seeking to strike portions of exhibits marked RIV000034 and RIV000035).

59 Motion in Limine Regarding NYS-26B/RK-TC-1B, attach. 1 at 5-6, 13-15, 18-19 (seeking to strike portions of New Yorks and Riverkeepers Initial Statement of Position).

twenty-one exhibits in their entirety. 60 Entergy posited that this testimony is inadmissible in this proceeding and should be excluded pursuant to 10 C.F.R. § 2.337(a). 61 On February 9, 2012, the NRC Staff responded in support of Entergys Motion in Limine. 62 While stopping short of stating that Riverkeepers witness is not qualified to testify, the NRC Staff suggested that in the event the Board does not strike the statements for the reasons stated in Entergys Motion at 7-9, the Board should give little weight to Dr. Hopenfelds statements on metal fatigue. 63 On February 17, 2012, Riverkeeper filed its consolidated opposition to Entergys Motion in Limine for this Contention. 64 In its Response, Riverkeeper attempted to demonstrate that its proffered testimony and exhibits are reliable and relevant, fall properly within the scope of the contention as well as this proceeding, and in no way constitute impermissible challenges to Indian Points current licensing basis. 65 Entergys challenges to Riverkeepers Initial Statement of Position, expert testimony and reports are founded on four primary objections: (1) that Riverkeepers expert, Dr. Hopenfeld, does not have the requisite training and experience to provide testimony dealing with fatigue analyses; (2) that Dr. Hopenfeld does not have sufficient experience with the ASME Code Section III stress and fatigue analyses modeling to comment on the general approach used by 60 Entergy seeks to strike exhibits marked RIV000036, RIV000037, RIV000038, RIV000039, RIV000040, RIV000041, RIV000042, RIV000043, RIV000044, RIV000045, RIV000046, RIV000047, RIV000048, RIV000049, RIV000050, RIV000051, RIV000052, RIV000053, RIV000054, RIV000055, and RIV000056 in their entirety. Motion in Limine Regarding NYS-26B/RK-TC-1B, attach. 1 at 6-8, 15-18.

61 Motion in Limine Regarding NYS-26B/RK-TC-2 at 1-2.

62 NRC Staff Answer Regarding NYS-26B/RK-TC-1B at 2.

63 Id. at 6.

64 Riverkeeper Response Regarding NYS-26B/RK-TC-1B at 1-15.

65 Id. at 1.

the model and the impact of inputs on the modeling results; (3) that Riverkeeper has inappropriately challenged design basis calculations for certain components that are outside the scope of the Contention and this license renewal proceeding; and (4) that Dr. Hopenfeld used an inappropriate reference in his discussion of the bathtub curve principle for equipment failures. 66 First, regarding to Energys challenge to Riverkeepers Initial Statement of Position, this document is not evidence, but rather consists merely of attorney arguments. Any motion to strike testimony in this document is inappropriate.

The remaining arguments in Entergys Motion in Limine Regarding NYS-26B/RK-TC-1B are primarily grounded on the premise that virtually all of the testimony provided by Dr.

Hopenfeld is inadmissible because he is not qualified to provide opinions on fatigue analyses and on ASME Code Section III as it relates to stress and fatigue analyses. 67 Dr. Hopenfeld earned a Ph.D. in mechanical engineering, and has forty-five years of professional experience dealing with numerous aspects of nuclear engineering including thermal-hydraulics, material/environment interaction, corrosion, fatigue, and pressurized water reactor transient testing and accident analysis, design, and project management (including eighteen years working for the NRC). 68 The Board finds that Dr. Hopenfeld has sufficient training and experience in the specialized field of metal fatigue to assist the Board in developing a reliable understanding of the evidence.

With respect to Entergys challenge of his numerical modeling expertise, Dr. Hopenfeld might have limited experience with the inner workings of the specific codes addressed in his testimony - the ASME Code Section III, and WESTEMS, a proprietary code used by 66 Motion in Limine Regarding NYS-26B/RK-TC-1B at 7-13.

67 Id. at 7-9; id., attach. 1 at 1-13, 15-16.

68 Exh. RIV000034 at 2.

Westinghouse in its refined analysis performed for Entergy - but Dr. Hopenfeld was not commenting on the validity of the codes, nor was he challenging the algorithms used in the codes to model the solution to the equations used to calculate stress and fatigue analyses.

Rather, he challenged the general approach and assumptions used in the models and provided an opinion on the likely impact of the varying inputs that Entergy and/or Westinghouse have used in their calculations on the accuracy of the results - all issues directly related to this Contention. 69 We find that Dr. Hopenfeld has sufficient background in modeling of mechanical engineering problems to assist the Board in the resolution of the questions raised in NYS-26B/RK-TC-1B. Further, we are able to assess Dr. Hopenfelds testimony based on his knowledge and experience in a given subject area and to weigh it against the reliance we place upon his opinion in ruling on the merits of this Contention.

Entergy also claims that challenges to the adequacy of the design basis CUF calculations for several components are outside the scope of the Contention and this proceeding. 70 Entergy wrongly suggests that (1) the Intervenors original claims focused exclusively on the 2010 Westinghouse EAF [environmentally-assisted fatigue] reanalysesand did not raise any disputes with the original, design basis 71 for the selected reactor components and (2) as a result, these issues are outside the scope of the contention and the proceeding.

We find that Riverkeepers testimony and corresponding evidentiary submission on this Contention does not challenge any of the design basis CUF calculations. Rather, Rivekeepers testimony on reanalysis of selected components, performed by Westinghouse as part of Entergys current licensing basis (CLB), relates to the evaluation of similar refined fatigue 69 See RIV000034 at 16.

70 Motion in Limine Regarding NYS-26B/RK-TC-1B at 10-12; id., attach. 1 at 16-17.

71 Motion in Limine Regarding NYS-26B/RK-TC-1B at 7.

calculations and are an aspect of the Applicants AMP for metal fatigue. Therefore, Riverkeepers position is within the scope of the Contention as pled and, by not directly challenging the CLB, is within the scope of this proceeding. We find that these specific CLB analyses define the current practices of the Applicant that relate to similar calculations that will be performed as part of Entergys AMP for metal fatigue. They are an appropriate subject for review in this license renewal proceeding. The degree of the relevance between the CLB analyses and those proposed in the Applicants AMP is a merits question that can only be determined by weighing all the evidence on this topic. Resolution of this question will be best served after all the testimony has been filed and this issue is probed during the adjudicatory hearing.

Finally, Entergy states that Dr. Hopenfelds use of the bathtub curve theory is based on unreliable information because of his reference to a website that does not reveal the name or expertise of this theorys author. 72 It seems to us that the bathtub curve is an illustration of a basic principle relating to the lifecycle of any component, which suggests that, generally, problems with the performance of a mechanical or electronic device either will occur early or will not develop until much later in that devices life. While unnecessary, any reference to a written description or pictorial representation of a fundamental principle such as this is acceptable.

For the foregoing reasons, Entergys Motion in Limine Regarding NYS-26B/RK-TC-1B is denied.

D. Contention NYS-37 On July 6, 2011, the Board admitted Contention NYS-37, which expressly incorporated New Yorks previously admitted bases from NYS-9/33. 73 NYS-37 states that:

The FSEIS discussion of energy alternatives (Chapter 8) fails to provide a meaningful analysis of energy alternatives or responses to criticism of the DSEIS 72 Motion in Limine Regarding NYS-26B/RK-TC-1B at 12-13; id., attach. 1 at 18-19.

73 July 6, 2011 Licensing Board Memorandum and Order at 29, 33-35.

[Draft Supplemental Environmental Impact Statement], in violation of the requirements of 42 U.S.C. §§ 4331 and 4332; 10 C.F.R. §§ 51.91(A)(1), and (C),

51.92(2), 51.95(C)(4), and Part 51, Subpart A, Appendix A and Appendix B; 40 C.F.R. §§ 1052.1, 1052.2(G), 1502.9, and 1502.14; and 5 U.S.C. § 551 et seq. 74 Contention NYS-9 was admitted inasmuch as it raised a genuine dispute over Entergys need to consider energy conservation for the no-action alternative in its ER. 75 Contention NYS-33 challenged specific portions of the DSEISs analysis addressing energy conservation and efficiency, the viability of renewable energy resources, energy transmission capacity, and possible combinations of different energy sources to fulfill the Staffs obligations regarding the no-action alternative. 76 On June 16, 2009, Contention NYS-33 was consolidated with NYS-9. 77 On July 6, 2011, NYS-37 was admitted to the extent it update[d] and superseded NYS-9/33 and to the extent it challenge[d] the adequacy of the discussion in the FSEIS addressing comments made regarding the environmental impact of the no-action alternative as described in the DSEIS. 78 On January 30, 2012, Entergy filed its Motion in Limine Regarding NYS-37, 79 seeking to exclude portions of the testimony of Mr. David Schlissel, 80 Mr. Peter Lanzalotta, 81 and Mr. Peter 74 Id. at 29.

75 Id. (citing LBP-08-13, 68 NRC at 93).

76 Id. at 29-30 (citing June 16, 2009 Licensing Board Order at 9, 13).

77 Id. at 30 (citing June 16, 2009 Licensing Board Order at 9, 13).

78 Id. at 34. In admitting this Contention, the Board did not authorize a broad-ranged inquiry into alternative scenarios and the need for power, which would be precluded by Commission regulations. Id. at 35.

79 Motion in Limine Regarding NYS-37 at 1-10.

80 This exhibit is currently marked as NYS000046. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding NYS-37, attach. 1 at 1.

81 This exhibit is currently marked as NYS000047. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding NYS-37, attach. 1 at 1-2.

Bradford, 82 New Yorks Statement of Position Regarding NYS-37, 83 and four exhibits in their entirety 84 on the grounds that the need for power from IPEC and related issues of grid reliability and stability are outside the scope of NYS-37. 85 In particular, Entergy argues that the question of the need for power from IPEC has been expressly excluded from the scope of this license renewal proceeding by both this Board and by NRC regulations. 86 Entergy also argues that grid stability and reliability are merely different facets of the need for power issueall of which are excluded from the scope of this proceeding. 87 On February 9, 2012, the NRC Staff filed an Answer in support of the Motion in Limine Regarding NYS-37, agreeing with the positions taken by Entergy. 88 On February 17, 2012, New York filed its Response, arguing that New York has not changed or expanded the scope of NYS-37 through its pre-filed testimony. 89 Rather, New York argues the Contention challenges the inadequate evaluation of the no-action alternative. 90 New York represents that its testimony and exhibits speak to that argument, which has always been 82 This exhibit is currently marked as NYS000048. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding NYS-37, attach. 1 at 1.

83 This document is currently marked as NYS000045. Entergy seeks to only strike this document in part and has provided a line-by-line chart of the portions of the document it seeks to strike. Motion in Limine Regarding NYS-37, attach. 1 at 2.

84 Entergy seeks to strike exhibits currently marked NYS000071, NYS000118, NYS000119, and NYS000120 in their entirety. Motion in Limine Regarding NYS-37, attach. 1 at 2.

85 Motion in Limine Regarding NYS-37 at 6-10.

86 Id. at 8.

87 Id. at 9-10.

88 NRC Staff Answer Regarding NYS-37 at 1-5.

89 New York Response Regarding NYS-37 at 2.

90 Id.

the heart of NYS-37. 91 New York maintains that its evidentiary submission disputes the accuracy of the NRC Staffs assessment of how reduced demand, demand side management, and renewable resources would replace the energy generated by IPEC. 92 Contrary to the NRC Staffs position in the FSEIS, New York portrays its pre-filed testimony as showing that the environmental impacts of the no-action alternative will likely be less than the operation of Indian Point for an additional 20 years. 93 New York argues that, to the extent the NRC Staff has made assumptions in the FSEIS related to NYS-37, New Yorks testimony should be able to challenge them. 94 Statements of positions are not evidence. Thus, the admissibility standards of Section 2.337(a) do not apply and statements of positions are not subject to evidentiary challenge.

Beyond this, we find New Yorks arguments that it has not changed or expanded the scope of NYS-37 through its pre-filed testimony and accompanying exhibits compelling. While New York may not conduct a broad-ranged inquiry into . . . the need for power 95 because such an inquiry in this proceeding is prohibited by 10 C.F.R. § 51.95(c)(2), New York may dispute the accuracy and adequacy of the NRC Staffs evaluation of the no-action alternative. New York has long challenged the NRC Staffs analysis of several no-action alternative issues, including, inter alia, energy conservation, the viability of renewable energy resources, and energy transmission capacity. 96 New Yorks testimony does not indicate any attempt to turn NYS-37 into a battle over the need for power. Rather, consistent with the disputes cited at contention admissibility, 91 Id.

92 Id. at 8-9.

93 Id. at 9.

94 Id. at 9-10.

95 July 6, 2011 Licensing Board Memorandum and Order at 35.

96 Id. at 29-30.

New Yorks evidentiary submissions and testimony focus on the accuracy of the NRC Staffs assessment of the no-action alternative. Therefore, we will give all evidence its appropriate weight at evidentiary hearing in the context of evaluating the specific issue before us.

For the foregoing reasons, Entergys Motion in Limine Regarding NYS-37 is denied.

E. Contention RK-TC-2 On July 31, 2008, the Board admitted Riverkeepers Contention TC-2, which stated that:

(1) Entergys AMP for components affected by FAC [flow-accelerated corrosion]

is deficient because it does not provide sufficient details (e.g., inspection method and frequency, criteria for component repair or replacement) to demonstrate that the intended functions of the applicable components will be maintained during the extended period of operation; and (2) Entergys program relies on the results from CHECWORKS without benchmarking or a track record of performance at IPECs power uprate levels. 97 On January 30, 2012, Entergy filed a Motion in Limine, 98 which seeks to exclude portions of the pre-filed testimony of Dr. Joram Hopenfeld, 99 a report authored by Dr.

Hopenfeld, 100 Riverkeepers Statement of Position on RK-TC-2, 101 and other exhibits proffered in support of the Contention. 102 On February 9, 2012, the NRC Staff filed an Answer in support of the Motion in Limine Regarding RK-TC-2. 103 97 LBP-08-13, 68 NRC at 177.

98 Motion in Limine Regarding RK-TC-2 at 1-15.

99 This exhibit is currently marked RIV000003. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding RK-TC-2, attach. 1 at 1-2.

100 This exhibit is currently marked RIV000005. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart identifying those portions of the exhibit it seeks to strike.

Motion in Limine Regarding RK-TC-2, attach. 1 at 2-3.

101 This document is marked RIV000002. Entergy seeks only to strike this document in part has provided a line-by-line chart of the portions of the document it seeks to strike. Motion in Limine Regarding RK-TC-2, attach. 1 at 3-5.

102 These exhibits are currently marked RIV000031, RIV000032, and RIV000033. Entergy seeks to exclude them because they are only relied upon in purportedly inadmissible portions of

In its Motion, Entergy alleged that Dr. Hopenfelds discussions of the risks of loss of cooling accidents (LOCAs) due to FAC and the insufficiency of Entergys probabilistic risk assessments (PRAs) were not spelled out in Riverkeepers original petition, and are therefore outside the scope of the admitted Contention that focused on Entergys use of CHECWORKS. 104 Moreover, Entergy stated that LOCAs are covered by Indian Points CLB, and maintains that any challenge to the CLB and to Entergys existing PRA are outside the scope of this license renewal proceeding. 105 Second, according to Entergy, Dr. Hopenfeld relies on an unfiled document to support his position on seismic issues. In a broader sense, Entergy posited that the integrity of pipe wall thickness from FAC during transient loads such as earthquakes and station blackouts is outside the scope of the admitted contention and, because seismic and station blackout design bases are part of IP2s and IP3s CLB, such claims are outside the scope of this license renewal proceeding. 106 Third, Entergy insisted that Dr. Hopenfelds challenge to Entergys analysis of pipe wall thickness in relation to metal fatigue should be excluded because metal fatigue was never part of Riverkeepers original Contention. 107 Finally, as a general matter, Entergy asserted that Dr.

Hopenfeld is unqualified to opine on PRAs, seismic design or seismic hazard analysis, station blackout, or stress analysis in metal fatigue. 108 Riverkeepers Statement of Position and Dr. Hopenfelds Report. Motion in Limine Regarding RK-TC-2, attach. 1 at 5.

103 NRC Staff Answer Regarding RK-TC-2 at 1-7.

104 Motion in Limine Regarding RK-TC-2 at 8-9.

105 Id. at 12-13.

106 Id. at 9-13. Entergy also describes station blackout issues as outside the scope of this proceeding because it is the subject of an ongoing rulemaking. See id. at 13.

107 Id. at 11-12.

On February 17, 2012, Riverkeeper filed its Response opposing Entergys Motion in Limine Regarding RK-TC-2. 109 Riverkeeper first countered that, as admitted, RK-TC-2 was not limited to the two CHECWORKS-related bases but rather was a broader challenge to Entergys overall program for managing FAC. 110 In particular, Riverkeeper maintained that RK-TC-2 was admitted as a challenge to Entergys ability to maintain its CLB during the period of extended operations due to Entergys purportedly problematic program for managing FAC. 111 Riverkeeper described LOCAs/PRAs, seismic issues, station blackouts, and metal fatigue as within the scope of this contention and this proceeding because a license renewal applicant must be able to maintain its CLB during these types of events. Therefore, Riverkeeper reasoned that Dr. Hopenfelds testimony and report addressing this Contention should not be stricken because they are relevant as to whether Entergy will be able to maintain its CLB during the period of extended operations in light of FAC. 112 Riverkeeper also argued that it has demonstrated Dr. Hopenfelds expertise and background to opine on all the above issues mentioned by Entergy and that Entergys challenges regarding his qualifications go to the weight that should be given to his opinion in this proceeding. 113 Finally, Riverkeeper stated that its Statement of Position on RK-TC-2 should not be excluded because statements of position are not evidence. 114 108 Id. at 13-14.

109 Riverkeeper Response Regarding RK-TC-2 at 1-19.

110 Id. at 4-5.

111 Id. at 5-7.

112 Id. at 8-16.

113 Id. at 16-17.

114 Id. at 18.

As part of its License Renewal Application, Entergy must demonstrate that the effects of aging [on certain plant structures and components] will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation. 115 We agree with Riverkeeper that Entergy has mischaracterized Riverkeepers proffered testimony and evidence as an attack on Entergys CLB. Rather, Riverkeepers evidence centers on Entergys ability to maintain its CLB in light of FAC during the period of extended operations. Riverkeepers original petition questioned Entergys compliance with the Standard Review Plan for License Renewals because Entergys License Renewal Application did not demonstrate that the intended functions of the FAC-vulnerable plant components will be adequately maintained during the license renewal term [because it did] not specify . . . the method and frequency of inspections or the criteria for component repair or replacement. 116 Riverkeepers and Dr. Hopenfelds claims are relevant to and are within the reasonably inferred bounds of the question whether Entergy has demonstrated it can maintain its CLB in light of FAC.

Riverkeepers discussions of LOCAs (including related PRAs), seismic issues, station blackouts, and metal fatigue were listed as examples of events under which Riverkeeper argues the CLB must be maintained, in light of FAC, during the period of extended operations. While these examples were not central to Riverkeepers claims in its petition, they are related and relevant to whether FAC will be adequately managed during the period of extended operationsa question that the Board will weigh on the merits during the evidentiary hearing in this proceeding. 117 115 10 C.F.R. § 54.21(a)(3).

116 LBP-08-13, 68 NRC at 173.

117 We will evaluate the sufficiency of Dr. Hopenfelds citation to a document on seismic issues that is marked as Riverkeepers Exhibit RIV000031 (in lieu of a press release he mentions in passing) at the evidentiary hearingthat press release has not been submitted as part of the record. Entergy and the NRC Staff may respond on the merits through their testimony and

To the extent that Entergy questions Dr. Hopenfelds expertise to testify regarding LOCAs (including related PRAs), seismic issues, station blackouts, and metal fatigue, his background pertaining to FAC is relevant to his explanation of why adherence to the CLB under these types of events is important during the period of extended operations. The weight and credibility we give to that testimony will be determined after the evidentiary hearing, rather than in a ruling on a motion in limine.

Finally, statements of position are a partys legal interpretation of its evidence, not its actual evidence, and we will use it inasmuch as it is supported by the evidence proffered by Riverkeeper. Therefore, we will not exclude these portions of Riverkeepers Statement of Position.

For the foregoing reasons, Entergys Motion in Limine Regarding RK-TC-2 is denied.

F. Contention RK-EC-3/CW-EC-1 On July 31, 2008, the Board admitted Riverkeepers Contention RK-EC-3 and Clearwaters Contention CW-EC-1, and ordered consolidation of the two Contentions. 118 The consolidated Contention, RK-EC-3/CW-EC-1, stated that:

Entergys environmental report fails to adequately analyze the environmental impacts of spent fuel pool leaks as required by the National Environmental Policy Act (NEPA) and NRC regulations. 119 RK-EC-3/CW-EC-1 alleges that Entergys ER does not adequately assess new and significant information regarding the environmental and human health impacts of the radioactive water evidence to the validity of Dr. Hopenfelds claims. If Riverkeeper wishes to revise Dr.

Hopenfelds testimony to refer only to RIV000031 rather than to a press release outside of the record to ensure the precision of his testimony and to respond to Entergys and the NRC Staffs evidentiary responses, Riverkeeper may do so. See Licensing Board Scheduling Order (July 1, 2010) at 14-15 (unpublished).

118 See LBP-08-13, 68 NRC at 190-91, 193-94, 219-20.

119 Consolidated Contention of Petitioners Riverkeeper, Inc. (EC-3) and Hudson River Sloop Clearwater, Inc. (EC-1) - Spent Fuel Pool Leaks (Aug. 21, 2008) at 2 [hereinafter Consolidated RK-EC-3/CW-EC-1].

leaks from the Indian Point 1 (IP1) and IP2 spent fuel pools (SFPs). 120 The Board subsequently deemed RK-EC-3/CW-EC-1 applicable to the NRC Staffs DSEIS and FSEIS, while making no substantive changes to the scope of the Contention. 121 On January 30, 2012, Entergy filed its Motion in Limine Regarding RK-EC-3/CW-EC-1, 122 which seeks to exclude portions of Riverkeepers and Clearwaters pre-filed testimony of Dr. Gillian Stewart 123 and Mr. Arnold Gundersen, 124 along with the entirety of certain exhibits proffered in support of this Contention. 125 Entergys Motion in Limine is grounded on the premises that: (1) Riverkeepers and Clearwaters witnesses, Dr. Stewart and Mr. Gundersen, have provided opinions relating to hydrogeology, aquatic ecosystems, and health impacts that exceed their areas of expertise; 126 (2) Riverkeeper and Clearwater have expanded the bases of RK-EC-3/CW-EC-1 in discussing releases from non-SFP systems, structures, and components (SSCs), aging management programs, and remediation alternatives; 127 and (3) Riverkeeper and 120 Id. at 2-4.

121 July 6, 2011 Licensing Board Memorandum and Order at 36; Licensing Board Order (Applying Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 to the NRC Staffs Draft Supplemental Environmental Impact Statement) (May 28, 2009) at 1-2 (unpublished); cf.

Progress Energy Florida, Inc. (Combined License Application for Levy County Nuclear Power Plant, Units 1 and 2), LBP-11-01, 73 NRC __, __ (slip op. at 7 & nn.12-14) (Feb. 2, 2011)

(discussing Commission doctrine that permits a contention to migrate from its challenges to an ER to the same challenges to the NRC Staffs NEPA documents).

122 Motion in Limine Regarding RK-EC-3/CW-EC-1 at 1-20.

123 This exhibit is currently marked RIV000061. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding RK-EC-3/CW-EC-1, attach. 1 at 2-3.

124 This exhibit is currently marked RIV000060. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding RK-EC-3/CW-EC-1, attach. 1 at 1-2.

125 These exhibits are currently marked RIV000064, RIV000079, RIV000088, RIV000089, and RIV000093. Motion in Limine Regarding RK-EC-3/CW-EC-1, attach. 1 at 3.

126 Motion in Limine Regarding RK-EC-3/CW-EC-1 at 8-10, 18-19.

127 Id. at 10-13, 16-17.

Clearwater have provided testimony that is beyond the scope of the proceeding by challenging NRC dose regulations, the historical contamination and decommissioning of IP1, and the current Draft Generic Environmental Impact Statement (GEIS) for License Renewals. 128 On February 9, 2012, the NRC Staff filed an Answer in full support of Entergys Motion in Limine Regarding RK-EC-3/CW-EC-1. 129 On February 17, 2012, Riverkeeper and Clearwater filed their consolidated Response opposing Entergys Motion in Limine Regarding RK-EC-1. 130 That opposition argued that all of the proffered testimony and exhibits that are the subject of Entergys Motion in Limine are reliable and relevant, fall properly within the scope of the contention as well as this proceeding, and in no way constitute impermissible challenges to NRC regulations. 131 The Board finds that Dr. Stewart and Mr. Gundersen have sufficient professional experience in assessing the travel, persistence, and form of radionuclides in groundwater and aquatic environments and to be of assistance in addressing the fate and transport of contaminants and subsequent health impacts raised by this Contention. Both of these individuals have training in and experience with assessing radiological impacts, evaluating radionuclide levels and decay, and estimating the resulting human health impacts from radiation exposure.

Entergy and the NRC Staff have failed to make a persuasive argument that these witnesses lack sufficient exposure to relevant facets of hydrogeology to provide material comments relating to the resulting impacts of radionuclide contamination from groundwater discharging into the Hudson River. Based on this, the Board denies Entergys Motion as it 128 Id. at 15-17, 19.

129 NRC Staff Answer Regarding RK-EC-3/CW-EC-1 at 1-8.

130 Riverkeeper and Clearwater Response Regarding RK-EC-3/CW-EC-1 at 1-25.

131 Id. at 1.

relates to the lack of expertise provided by Dr. Stewart and Mr. Gundersen. The Board is prepared to weigh the testimony proffered by these witnesses in relationship to their specific expertise in a given area.

Riverkeeper and Clearwater limited this Contention to environmental impacts of spent fuel pool leaks. 132 Contrary to the clear scope of the Contention presented above, Riverkeeper and Clearwater submitted extensive testimony discussing the radiological releases from other sources beyond SFPs and challenging the aging management programs for non-SFP SSCs.

As Entergy correctly pointed out, the Board did not admit RK-EC-3/CW-EC-1 as a broad-ranging inquiry into leaks, spills, and discharges from other sources. 133 In opposition to Entergys Motion in Limine, Riverkeeper and Clearwater have argued that their original Contention and Initial Statement of Position for this Contention stated that, as defined by the CEQ, evaluating the significance of the spent fuel pool leaks at Indian Point requires consideration of the context in which the proposed action is situated and the intensity of the impacts. 134 Riverkeeper and Clearwater rely on this general discussion regarding the CEQ definition for evaluating significance as justification for presenting testimony on the historic and potential future impacts from leaks, spills, and other non-SFP SSCs. Their argument fails for several reasons: (1) it is impermissibly late without justification under 10 C.F.R. § 2.309(c) or (f)(2); (2) it neglects to provide any nexus between the CEQ definition and the asserted justification for discussing other sources of leaks beyond those from SFPs; and (3) it does not explain how a discussion of other radiological leaks and the AMPs for the non-SFP SSCs has any relationship to the stated Contention dealing with the impacts from spent fuel pools.

132 Consolidated RK-EC-3/CW-EC-1 at 2.

133 Motion in Limine Regarding RK-EC-3/CW-EC-1 at 11.

134 Riverkeeper and Clearwater Response Regarding RK-EC-3/CW-EC-1 at 5.

While, in previous pleadings, 135 Riverkeeper and Clearwater might have inferred a vague link between their general discussion of CEQ definitions and leaks from non-SFP sources, Riverkeeper and Clearwater never identified any direct relationship between these two subject areas. Even in their pre-filed testimony, Riverkeeper and Clearwater failed to explain how the impacts from the other non-SFP sources and the adequacy of relevant AMPs are needed to meet the CEQ definition of significance. It was not until this issue was raised by Entergy in its Motion in Limine that Riverkeeper and Clearwater attempted to justify their discussion of radiological impacts from non-SFP sources by establishing a context of the site conditions and the relative intensity of impacts from SFP leaks. Riverkeeper and Clearwater could have raised these issues in any of their earlier pleadings, but they did not. Accordingly, the Board finds that raising them at this late date is impermissible.

Furthermore, even with this late argument in opposition to Entergys Motion, Riverkeeper and Clearwater failed to demonstrate that evaluating the significance of spent fuel pool leaks at Indian Point requires consideration of the context in which the proposed action is situated and the intensity of the impacts. 136 Riverkeeper and Clearwater have not established a meaningful foundation for the link between the CEQ definitions of significance and the need to present historic and potential future leaks from non-SFP sources.

For these reasons, the Board grants Entergys Motion to strike references in Riverkeepers and Clearwaters testimony in RIV000060 relating to specific discussions of leaks, spills, and radiologic releases from non-SFP SSCs and the adequacy of their AMPs. These are 135 See, e.g., Riverkeeper, Inc. and Clearwater, Inc. Challenge to NRC Staffs Assessment of Impacts of Spent Fuel Pool Leaks in the Final Supplemental Environmental Impact Statement (Feb. 3, 2011); Riverkeeper, Inc.s Challenge to NRC Staffs Assessment of Impacts of Spent Fuel Pool Leaks in the Draft Supplemental Environmental Impact Statement (Feb. 27, 2009);

Consolidated RK-EC-3/CW-EC-1; Hudson River Sloop Clearwater Incs Petition to Intervene and Request for Hearing (Dec. 10, 2007); Riverkeeper, Inc.s Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant (Nov.

30, 2007).

136 Riverkeeper and Clearwater Response Regarding RK-EC-3/CW-EC-1 at 5.

new bases that are beyond the scope of the initial Contentions reasonably inferred bounds. For the same reasoning, Exhibits marked RIV000079 and RIV000089 are stricken in their entirety.

We caution that our striking these topics from the testimony and accompanying proffered exhibits, however, does not affect discussion of the radiological impacts to groundwater that have been observed at the site. We take administrative notice that if releases from SFP leaks encounter groundwater, then the radionuclides would co-mingle and coalesce with any impacts that might be present from other sources. Barring any evidence to the contrary, it is unlikely that the species-specific concentration levels of the observed groundwater impacts can be parsed into the relative contributions from the separate sources that contribute to the overall groundwater contamination at the site. By necessity, it is plausible that the impacts to groundwater from SFP leaks and the subsequent discharges into the Hudson River could only be assessed on a site-wide basis.

While the Board finds that Riverkeepers and Clearwaters discussion of leaks from non-SFP sources is not within the bounds of RK-EC-3/CW-EC-1, the distribution and concentration of specific radionuclides in the groundwater are within, and in fact, are a major foundation of RK-EC-3/CW-EC-1. Based on this, only the testimony directly related to the listing and discussion of specific, non-SFP sources of radiological leaks to groundwater is stricken.

Entergy also claims that Riverkeepers and Clearwaters testimony presenting remediation alternatives and discussing the historical contamination and decommissioning of IP1 improperly attempts to expand the bases of RK-EC-3/CW-EC-1. 137 We disagree. The testimony relating to remediation alternatives and the contribution from IP1s SFP places the allegations in this Contention in perspective with regard to the potential efforts needed to mitigate the adverse environmental impacts from SFP leaks - information arguably necessary for a NEPA assessment. As Riverkeeper and Clearwater have pointed out, notwithstanding 137 Motion in Limine Regarding RK-EC-3/CW-EC-1 at 13-14, 16-17.

what is actually being carried out at the site now, or what NRC is considering on an industry-wide scale, an independent assessment of the feasibility, efficacy, etc, of differing mitigation measures at Indian Point, is absolutely essential pursuant to NEPA, so that the Federal agency can make informed determinations about the action at issue, i.e., the proposed license renewal of the plant. 138 To the degree that these issues relate to SFPs or groundwater contamination at the site, the Board finds they are appropriate and denies Entergys Motion to exclude these portions of the testimony.

Entergy alleges that portions of Mr. Gundersens and Dr. Stewarts testimony are beyond the scope of the proceeding because they directly challenge NRC dose regulations and the Draft GEIS for License Renewals. More specifically, in attempts to address the range of NEPA impacts, both of Riverkeepers and Clearwaters experts posit that even low concentrations of radiological releases from Indian Point into the Hudson River could affect the aquatic ecosystem and ultimately impact human health and safety through an increase in cancer incidences. 139 Entergy and the NRC Staff state that this position is a direct challenge to NRC regulations because the GEIS (Table B-1 of Part 51) concludes that radiological releases that are within the regulatory dose exposure limits have a SMALL impact on human health. 140 As we noted in our Order on admissibility of the original consolidated Contention, leaks from SFPs constitute new information that Entergy was required to address in its ER. 141 Riverkeeper and Clearwater have questioned whether Entergys and the NRC Staffs conclusions regarding the insignificance of the groundwater contamination are sufficient for 138 Riverkeeper and Clearwater Response Regarding RK-EC-3/CW-EC-1 at 16 (emphasis in original).

139 See Exh. RIV000060 at 24, 25:11 to 25:13; Exh. RIV000061 at 7.

140 Motion in Limine Regarding RK-EC-3/CW-EC-1 at 19; NRC Staffs Answer Regarding RK-EC-3/CW-EC-1 at 6.

141 LBP-08-13, 68 NRC at 190-191.

purposes of satisfying NEPA and NRC regulations. 142 As we have stated before, these are not challenges to NRC dose exposure regulations for addressing public health and safety, but rather a challenge to the adequacy of the NEPA review of this environmental impact. The Board finds that Riverkeeper and Clearwater testimony on the environmental impacts from radionuclides released from SFPs to the groundwater at Indian Point is well within the admitted bounds of RK-EC-3/CW-EC-1, and is not a direct challenge to dose regulations.

For the foregoing reasons, Entergys Motion to exclude portions of Riverkeepers and Clearwaters testimony is granted in part and denied in part. Specific statements made by Mr.

Gundersen in RIV000060 that discuss leaks, spills, and releases from non-SFP SSCs, and challenge the adequacy of the AMPs for the aforementioned non-SFP SSCs at Indian Point, are impermissible attempts to expand the scope of RK-EC-3/CW-EC-1. The Board grants Entergys Motion in Limine on these topics and strikes those portions of Mr. Gundersens testimony, as summarized in the Attachment to this Order, and excludes Exhibits RIV000079 and RIV000089 in their entirety. The Motion to exclude the remaining RK-EC-3/CW-EC-1 topics raised by Entergy is denied.

G. Contention CW-EC-3A On July 6, 2011, the Board admitted Clearwaters Contention CW-EC-3A, which was consolidated with previously admitted Contention CW-EC-3. As admitted, CW-EC-3A states that:

Entergys environmental report and the Final Supplemental Environmental Impact Statement contain seriously flawed environmental justice analyses that do not adequately assess the impacts of relicensing Indian Point on the minority, low-income and disabled populations in the area surrounding Indian Point. 143 Clearwaters original CW-EC-3 claimed Entergys ER did not address the disproportionate impacts of severe accidents at Indian Point on environmental justice (EJ) populations, such as 142 See Exh. RIV000060 at 24, 25:11 to 25:13; Exh. RIV000061 at 7.

143 July 6, 2011 Licensing Board Memorandum and Order at 60.

minority inmates residing in local prisons, compared to the impacts on the general population. 144 CW-EC-3A updated these claims to apply to the FSEIS and specified that the FSEIS did not address the EJ populations within 50 miles of Indian Point in pre-schools, nursing homes, shelters, hospitals, and minority and low-income residents in the region who lack access to private transportation. 145 Disproportionate impacts to groups of EJ populations was the focus of the Contention as originally admitted as a challenge to Entergys ER, and as subsequently admitted as a challenge to the FSEIS.

On January 30, 2012, Entergy filed its Motion in Limine Regarding CW-EC-3A, 146 in which it moved to exclude: (1) portions of the testimony of Dr. Michael Edelstein, 147 Mr. Aaron Mair, 148 and Mr. Stephen Filler; 149 (2) all of the testimony of Ms. Manna Jo Greene, 150 Dr. Erik A.

Larsen, 151 Mr. Anthony Papa, 152 Mr. John Simms, 153 and Ms. Dolores Guardado; 154 and (3) the 144 LBP-08-13, 68 NRC at 200-01.

145 July 6, 2011 Licensing Board Memorandum and Order at 56.

146 Motion in Limine Regarding CW-EC-3A at 1-25.

147 This exhibit is currently marked CLE000003. Entergy also seeks to exclude portions of Dr.

Edelsteins report, which is embodied in exhibits labeled CLE00012A, CLE00012B, and CLE00012C, and has provided a line-by-line chart of the portions of the testimony and report it seeks to strike. See Motion in Limine Regarding CW-EC-3A, attach. 1 at 1-3.

148 This exhibit is currently marked CLE000007. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding CW-EC-3A, attach. 1 at 4.

149 This exhibit is currently marked CLE000009. Entergy seeks only to strike this exhibit in part and has provided a line-by-line chart of the testimony it seeks to strike. Motion in Limine Regarding CW-EC-3A, attach. 1 at 4.

150 This exhibit is currently marked CLE000010.

151 This exhibit is currently marked CLE000005.

152 This exhibit is currently marked CLE000004.

153 This exhibit is currently marked CLE000006.

entirety of other exhibits Clearwater has submitted in support of this Contention. 155 On February 9, 2012, the NRC Staff filed an Answer in support of Entergys Motion. 156 Entergy claimed that Dr. Edelsteins testimony should be excluded because he lacks expertise in emergency planning, severe accidents, and health physics, and has presented unreliable claims regarding the Rockland County Jail. 157 Entergy portrayed Dr. Edelsteins analysis as challenging the adequacy of emergency plans and focusing on issues of psychological impacts, terrorism, crime, violence, racial discrimination, and other mistreatments in prison, all of which are purportedly outside the scope of NEPA. 158 Entergy argued that Dr.

Edelsteins testimony concerning the accident at Fukushima, Japan is outside the scope of this proceeding because it is likely to become the subject of a rulemaking. 159 Regarding Ms. Greenes testimony, Entergy asserted that: she lacks expertise; she and her co-interviewers have not conducted reliable interviews to support her claims; she challenges the adequacy of emergency plans; she raises claims about non-institutional and non-EJ populations that are beyond the scope of CW-EC-3A; and she raises claims about PCBs and other toxins that were specifically excluded in the original Contention. 160 Regarding Dr. Larsens testimony, Entergy maintained that it should be excluded in its entirety because he only discusses impacts to non-EJ populations, such as hospital patients in 154 This exhibit is currently marked CLE000008.

155 These specific exhibits are marked CLE000013, CLE000019, CLE000022, CLE000023, CLE000026, CLE000027, CLE000032, CLE000034, CLE000035, CLE000040, and CLE000041.

See Motion in Limine Regarding CW-EC-3A, attach. 1 at 5-6.

156 NRC Staff Answer Regarding CW-EC-3A at 1-4.

157 Motion in Limine Regarding CW-EC-3A at 7-8, 13-14.

158 Id. at 8-13.

159 Id. at 14.

160 Id. at 14-18.

general and uninsured patients in particular, and because he challenges current emergency plans for Indian Point, none of which are within the scope of the Contention. 161 Entergy raised similar arguments related to the testimony of Mr. Mair, Mr. Filler, Mr. Simms, and Ms. Guardado, stating that they focus on non-institutional EJ populations. 162 Entergy described Mr. Mair, Mr.

Filler, Mr. Papa, Mr. Simms, and Ms. Guardado as challenging current emergency plans for Indian Point. 163 Also, according to Entergy, Mr. Papas opinions on U.S. drug policy are irrelevant and should be excluded. 164 Entergy depicted Mr. Simms and Ms. Guardado as lacking relevant first-hand knowledge of emergency plans for Indian Point because they admit to unfamiliarity with such plans. 165 As for the other Clearwater exhibits Entergy seeks to exclude, Entergy claimed that they are irrelevant to this Contention 166 and that any mention of these exhibits or any other stricken evidence by Clearwater in its Statement of Position on CW-EC-3A should itself be stricken. 167 On February 17, 2012, Clearwater filed a Response opposing Entergys Motion in Limine Regarding CW-EC-3A. 168 Clearwater asserted that its exhibits and witness testimony should be admitted because this evidence is relevant to show a disproportional impact to EJ populations during a severe accident. 169 We agree.

161 Id. at 18-19.

162 Id. at 19-23.

163 Id.

164 Id. at 21.

165 Id. at 22-24.

166 See id., attach. 1 at 5-6.

167 Id. at 24.

168 See Clearwater Response Regarding CW-EC-3A at 1-19.

169 Id. at 2-18.

At evidentiary hearing, the Board is capable of distinguishing between disparaging comments against Indian Points emergency plans and Clearwaters witnesses descriptions of how certain EJ populations will be adversely harmed by a severe accident compared to the general population. To the extent any populations that Clearwaters witnesses describe do not fit within the definition of an EJ population and are not necessary to an EJ analysis, we will discount the weight of such evidence in ruling on the merits of the FSEISs EJ analysis.

We cannot say without ruling on the merits that proffered evidence relating to non-nuclear severe accidents, the events at Fukushima, or certain populations around Indian Point are irrelevant to the question whether the NRC Staffs EJ analysis was sufficient. Nor can we decide at this time that Clearwaters witnesses lack the specified qualifications and first-hand knowledge to testify on these matters. We will probe the reliability and the strength of the methodology of Clearwaters witnesses testimony and reports through the evidentiary hearing, rather than at this time. Entergy and the NRC Staff will also have the opportunity to respond, on the merits, to Clearwaters evidence.

For the foregoing reasons, we deny Entergys Motion in Limine Regarding CW-EC-3A.

III. CONCLUSION We grant in part and deny in part Entergys Motion in Limine Regarding RK-EC-3/CW-EC-1 and deny in whole Entergys Motions in Limine Regarding NYS-12C, NYS-16B, NYS-26B/RK-TC-1B, NYS-37, RK-TC-2, and CW-EC-3A.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE

/RA/

Dr. Kaye D. Lathrop ADMINISTRATIVE JUDGE

/RA/

Dr. Richard E. Wardwell ADMINISTRATIVE JUDGE Rockville, Maryland March 6, 2012

ATTACHMENT Stricken Testimony of Mr. Arnold Gundersen Concerning Contention RK-EC-3/CW-EC-1 (Includes Pages with Text Stricken)

RIV000060 Submitted: December 22, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

)

Entergy Nuclear Operations, Inc. ) Docket Nos.

(Indian Point Nuclear Generating ) 50-247-LR Units 2 and 3) ) and 50-286-LR

___________________________________________ )

PREFILED DIRECT TESTIMONY OF ARNOLD GUNDERSEN REGARDING CONSOLIDATED CONTENTION RK-EC-3/CW-EC-1 (SPENT FUEL POOL LEAKS)

On behalf of Riverkeeper, Inc. (Riverkeeper) and Hudson River Sloop Clearwater, Inc.

(Clearwater), Arnold Gundersen submits the following testimony regarding Riverkeeper and Clearwaters Consolidated Contention RK-EC-3/CW-EC-1:

1 INTRODUCTION 2 Q. Please state your name and address.

3 A. My name is Arnold Gundersen and my business addresses are 376 Appletree Point Road, 4 Burlington, VT 05408 and 96 South Union Street, Burlington, VT 05401.

5 6 Q. Please state your occupation.

7 A. I am an independent nuclear engineering and safety expert at Fairewinds Associates, Inc.

8 My title is Chief Engineer.

9 10 Q. Please describe your educational and professional background and qualifications.

11 A. I have a Bachelor and Master Degree in Nuclear Engineering from Rensselaer 12 Polytechnic Institute (RPI) cum laude. I was awarded an Atomic Energy Commission 13 Fellowship to pursue my Master Degree in Nuclear Engineering.

14 15 After beginning my career as a reactor operator and instructor in 1971, I progressed to the 16 position of Senior Vice President for a nuclear licensee before moving into independent 17 consulting work. I have testified as an expert witness before the Nuclear Regulatory 18 Commission (NRC) Atomic Safety and Licensing Board (ASLB) and Advisory Committee on

1 Unit 2 spent fuel pool; 2 x The failure to properly consider the toxic contamination that has resulted from the Indian 3 Point Unit 1 spent fuel pools; 4 x The failure to address co-mingling of the radioactive plumes from both Unit 1s and Unit 5 2s spent fuel pools; 6 x The failure to account for and assess the impacts of current and likely future leaks from 7 other plant components; 8 x The failure to properly categorize and assess the level of groundwater contamination at 9 Indian Point; 10 x The failure to assess current and future impacts of the groundwater contamination on the 11 Hudson River; and 12 x The failure to consider the numerous measures available to mitigate the adverse 13 environmental consequences of radiological leaks and groundwater contamination at 14 Indian Point.

15 16 ONGOING AND FUTURE LEAKS FROM THE INDIAN POINT UNIT 2 SPENT FUEL 17 POOL 18 19 Q. Please assess the position taken in Entergys Environmental Report and NRC 20 Staffs FSEIS that leaks from the Unit 2 spent fuel pool are under control and that there 21 is no active leakage from the pool.

22 A. The Unit 2 spent fuel pool has continued to experience leakage since Entergys discovery 23 of cracks in the pool wall in 2005, 6 and is apparently still actively leaking. In particular, a new 24 leak of the Unit 2 SFP was identified recently in 2010:

25 Beginning in the third quarter of 2010, we noticed increased 26 tritium levels in a monitoring location adjacent to the IP2 SFP . . . .

27 [T]he increased flow appears to be attributable to . . . a leak path 6

GZA, GeoEnvironmental, Inc., Hydrogeologic Site Investigation Report, Indian Point Energy Center, January 7, 2008, IPEC00195418, at viii, 2-5 (Exhibit RIV000066); Entergy, Groundwater Investigation Executive Summary, Indian Point Energy Center, Buchanan, NY (January 2008) (Exhibit RIV000068).

6

1 2 ONGOING AND FUTURE LEAKS FROM OTHER SYSTEMS, STRUCTURES AND 3 COMPONENTS AT INDIAN POINT 4

5 Q. Please describe any other sources of accidental radiological leakage at the Indian 6 Point site in addition to the spent fuel pool leaks.

7 A. Aging components and underground piping at Indian Point have experienced leakage 8 issues. For example, in 2009 due to unmonitored, undetected corrosion, a pipe buried eight feet 9 underground at Indian Point leaked, and was discovered only when a plant worker observed 10 water on the floor. This particular leak resulted in more than 100,000 gallons of tritiated water 11 being released to the groundwater. 25 12 13 During the first quarter of 2009, leakage of water from a distillation tank valve located within the 14 Indian Point Unit 1 chemical systems building resulted in increased tritium levels in nearby 15 monitoring wells. 26 16 17 Just recently, [o]n June 27, 2011 while reviewing the second quarter 2011 groundwater 18 monitoring well sample results, Entergy personnel identified an increase in tritium 19 concentrations in Unit 1 monitoring wells MW-56 and MW-57 (76,000 pCi/L and 20,000 pCi/L, 20 respectively). 27 Though Entergy personnel conducted an investigation of this unexpected 21 condition NRC reported recently in November 2011 that the source of the contamination has 22 not been identified. 28 At the time this report is written, it is unclear whether the source of the 23 leak is from Unit 1, Unit 2 or Unit 3.

24 25 IPEC Site Management Manual, IP-SMM, CY-110, Rev. 1, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 1, 2009), IPEC00225217 (Exhibit RIV000078); Annie Correal, Indian Pt. Broken Pipe Spurs Safety Worries, THE NEW YORK TIMES (March 1, 2009) (Exhibit RIV000079).

26 Barvenik Direct Testimony at 10 (Exhibit RIV000071).

27 Indian Point Nuclear Generating Unit 3 - NRC Integrated Inspection Report 05000286/2011004 (November 7, 2011), at 15-16 (Exhibit RIV000085).

28 Id.

13

1 Accidental spills have also been documented. For example, two Energy Groundwater 2 Monitoring Checklists reveal that in November 2009, a RWST[ 29] processing skid spilled 3 RWST water to the MOB yard area adjacent to the Unit 2 PAB 30, which resulted in the 4 detection of greatly elevated levels of tritium in the groundwater. 31 5

6 The persistent presence of elevated levels of radioactivity in the storm drains at Indian Point is 7 further evidence of radiological leaks and discharges from plant components, such as pipes and 8 other undetermined/unspecified onsite sources. Entergys report entitled Troubleshooting Plan 9 for H-3 32 investigation: Storm Drains System A, March/April 2009 (EN-MA-125) explains that 10 tritium was found in Storm Drain System A in March of 2009. 33 Concentrations of tritium in 11 Storm Drain System A were at 90,000 pCi/L, which is at least three times higher than the EPA 12 Maximum Contaminant Level for tritium, that is, 20,000 pCi/L. In following the leak path 13 delineated in the report, one will note that Storm Drain System A . . . empties into A-6 drain, 14 which does NOT retain water long, passing quickly to the E system where it drains down the old 15 roadway to the old command post area and into the discharge canal which exits into the Hudson 16 River. 34 The plant staff speculated that these high levels of contamination might be due to 17 failures in underground piping or an unknown source, but determined that [t]he most likely 18 cause of the elevated H-3 [tritium] in the effected storm drains was determined to be an 19 accumulation of liquid H-3 condensation from the various airborne vents (washout). 35 Thus, 20 this report reveals that washout is also a problem at Indian Point.

21 29 RWST stands for Reactor Waste Storage Tank.

30 PAB stands for Primary Auxiliary Building.

31 IPEC Site Management Manual, IP-SMM, CY-110, Rev. 3, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 1, 2010), IPEC00225219 (Exhibit RIV000080); IPEC Site Management Manual, IP-SMM, CY-110, Rev.

1, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 2, 2010), IPEC00225223 (Exhibit RIV000081).

32 H-3 stands for tritium.

33 Entergy, Nuclear Management Manual, EN-MA-125, Rev. 4, Attachment 9.1, Initial Investigation, Troubleshooting Plan for H-3 Investigation, Storm Drain System A, March/April 2009, IPEC00194517 (Exhibit RIV000082).

34 Id.

35 Id.

14

1 Entergys Groundwater Monitoring Program Quarterly Integrated Review Checklist for the 2 fourth quarter of 2010 as well as the same report for the first quarter of 2011, both state that 3 elevated levels of tritium were again detected in storm drains onsite; this is indicative of ongoing 4 rainout, and/or leaks elsewhere onsite that have yet to be identified and addressed. 36 5

6 Q. Please explain what washout is.

7 A. Washout, also known as rainout, is a nuclear industry term for airborne tritium 8 releases that are regularly released from nuclear power plants. Such airborne tritium releases are 9 caused by hot radioactive water or radioactive steam leaking from components in the nuclear 10 facility.

11 12 Q. How is washout problematic at Indian Point?

13 A. Aged plants like Indian Point are more susceptible to leakage, as their components have 14 deteriorated and are approaching the end of their design life. These leaks contaminate the air 15 inside the plant with radioactivity. The contaminated air is then released through vents in the 16 roof or out the exhaust stack of the plant. Entergys Indian Point plants contain numerous 17 airborne vents. Once this humid, radioactive air is released from the building, it condenses and 18 rains down or washes out of the air.

19 20 Radioactive rain falls on the landscape surrounding Indian Point and also directly into the 21 Hudson River. Leakage that Entergy views as normal on the Indian Point site is creating clouds 22 of tritiated water that migrate offsite and deposit tritium in the Hudson River and adjacent offsite 23 lands. Where the rainout/washout migrates and deposits its radioactive isotopes depends upon 24 weather patterns along the Hudson River and adjacent to the Indian Point site.

25 26 Q. Please describe the impact of other component leaks discussed above has on the 27 plumes of contamination caused by the spent fuel pool leaks at Indian Point.

28 A. Newly identified leaks will add to and commingle with the existing radionuclides in the 29 groundwater. This is evidenced by the fact that the newly discovered leaks discussed above led 36 IPEC Site Management Manual, IP-SMM, CY-110, Rev. 3, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 4, 2010), IPEC00233519 (Exhibit RIV000083); IPEC Site Management Manual, IP-SMM, CY-110, Rev.

4, 10.7 RGWMP Quarterly Integrated Review Checklist (Quarter 1, 2011), IPEC00233515 (Exhibit RIV000084).

15

1 to spikes in the levels of tritium found in Entergys monitoring well samples. 37 2

3 Q. In your opinion, are leaks from other plant components likely to occur in the 4 future?

5 A. Yes, leaks from pipes and other structures will most definitely occur in the future. One 6 chart provided by Entergy lists numerous varied locations at the Indian Point site that may 7 currently be leaking tritium and other radioactive isotopes or have a high potential for leakage 8 of tritium and other radioactivity in the future. 38 According to Entergy, there are at least 9 nineteen (19) sources at the Indian Point site that have a High potential for leakage of tritium 10 and other radioactive isotopes. 39 Many of the sources of radiological leaks identified by 11 Entergy have already introduced radioactive contamination into the soil and site groundwater at 12 Indian Point. Entergys (undated) chart evidences a site overrun by significant aging 13 management issues, and once again, Indian Points aging, degrading components face a bathtub 14 curve, whereby leakage issues will most likely increase over time, and not lessen or cease.

15 16 Furthermore, Entergy does not have adequate aging management methods in place in order to be 17 able to detect and prevent future leaks.

18 19 Q. Please elaborate upon your position that Entergy does not have adequate aging 20 management methods and programs for detecting and preventing future leaks.

21 A. I have reviewed various documents related to Entergys program for managing 22 problematic leaking components, including Entergys fleet-wide Aging Management Program 23 (AMP) for leaking buried components and structures, 40 a supplement to the Indian Point Safety 24 Evaluation Report which discusses aging management of buried components, 41 as well as an 25 Entergy document concerning inspection methods employed for potential sources of tritium at 37 Barvenik Direct Testimony at 10-11 (Exhibit RIV000071).

38 Entergy Chart of Leak Locations, IPEC00059360 (Exhibit RIV000077).

39 Id.

40 Entergy Nuclear Management Manual, EN-DC-343, Buried Piping and Tanks Inspection and Monitoring Program (Exhibit NYS000172); CEP-BPT-0100, Buried Piping and Tanks Inspection and Monitoring (Exhibit NYS000173).

41 U.S. Nuclear Regulatory Commission, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, (NUREG-1930, Supplement 1) (August 2011), at 3-1 to 3-5, ADAMS Accession No. ML11242A215.

16

1 Indian Point. 42 My review of these documents leads me to conclude that Entergys programs and 2 methods are inadequate to prevent radiological leaks in the future.

3 4 Entergys AMP for buried structures is not designed to identify or stop all potential radiological 5 leaks. In fact, this program is not intended to prevent any radiological leaks, since it is only 6 concerned with maintaining safety functions of the relevant plant components.

7 8 A considerable number of components at Indian Point are inaccessible to examination because 9 they are buried, or otherwise obstructed. However, Entergys AMP does not require inspections 10 of 100% of such components. Many of Indian Points underground pipes and structures have 11 been buried since the plant began operating and have never been inspected during the plants 12 nearly 40 years of operation. Rather, Entergys AMP largely provides only for opportunistic 13 inspections, which only uncover a few piping components periodically. Entergy itself readily 14 acknowledges its inability to identify and stop leaks, as an spokesperson stated in response to the 15 February 2009 accidental underground pipe leak: [i]ts eight feet underground, so theres no 16 way of knowing when you have to replace it. 43 17 18 These problems are confirmed by GAOs recent investigation report regarding tritium leak 19 issues. In particular, GAO concludes that because underground piping systems tend to corrode 20 and are largely inaccessible and difficult to inspect, . . . pipes will continue to age and further 21 corro[de] and that the severity of leaks could increase without mitigating actions. 44 GAO 22 further states that [t]he occurrence of leaks at nuclear power plants from underground piping 23 systems is expected to continue. 45 24 25 Another major concern with Entergys methods for preventing future radiological leaks is that a 42 Potential Sources of Tritium at IPEC & Inspection Method, IPEC00065506 (Exhibit RIV000087).

43 Annie Correal, Indian Pt. Broken Pipe Spurs Safety Worries, THE NEW YORK TIMES (March 1, 2009) (Exhibit RIV000079).

44 GAO Report to Congressional Requesters, Nuclear Regulatory Commission, Oversight of Underground Piping Systems Commensurate with Risk, but Proactive Measures Could Help Address Future Leaks, GAO-11-563 (June 2011) (Exhibit RIV000089).

45 Id.

17

1 vast majority of Indian Points inspection methods rely only upon physical inspections. Industry 2 experience with physical inspections indicates that they are completely inadequate to detect a 3 leak before it occurs, since this type of inspection does not analyze the piping internally, nor does 4 it completely examine the outside of the pipes. These external inspections are called 5 opportunistic and are limited to situations where the pipe is uncovered for other reasons. One 6 Entergy document identifies physical inspection methods for dozens of locations that may 7 currently, or in the future, leak tritium and/or other radioactive isotopes. 46 8

9 An additional problem is that Entergys approach to identifying and repairing degraded and/or 10 leaking components is completely reactive, and not proactive or preventative in nature. For 11 example, several Entergy documents I reviewed demonstrate Entergys reactive approach in 12 addressing the initial discovery of the spent fuel pool leaks in 2005. 47 One document, entitled 13 Top Ten Lessons Learned indicates that Entergy could have attained earlier indications of a 14 problem if staff had performed evaluations earlier, and that Entergy did not effectively review 15 information concerning elevated levels of contamination in sampling results. 48 Various other 16 documents indicate that outside pressure (including from non-profit organizations like Union of 17 Concerned Scientists, the public, the NRC, the media, and public officials such as the former 18 President Bill Clinton and then-Senator Hilary Clinton) was the primary reason Entergy 19 developed a tritium mitigation program at Indian Point. 49 Entergy continues to employ a 20 reactive approach to the management of radiological leaks at the Indian Point site, as evidenced 21 by numerous instances whereby Entergy only identifies new leaks when they literally spring, or 22 when they have already manifested in well samples, as opposed to proactively engaging in 23 necessary inspections of problematic or potentially problematic components and structures.

24 25 Yet another issue with Entergys approach to managing radiological leaks at Indian Point is that 26 Entergy is failing to sufficiently fund its maintenance programs. An independent report 27 commissioned by the Vermont Legislature acknowledges this, explaining that [l]imited resource 46 Potential Sources of Tritium at IPEC & Inspection Method, IPEC00065506 (Exhibit RIV000087).

47 Entergy correspondence, e-mails regarding approach to groundwater contamination, IPEC00067228, IPEC00065510, IPEC00130549, IPEC00062936 (Exhibit RIV000086).

48 Id.

49 Id.

18

1 allocation for non-safety systems can be characterized as systemic within Entergy. 50 This 2 report further explains that at Indian Point, [t]he physical condition of the plant in non-safety 3 areas is visibly deficient and that the care and maintenance of some . . . plant systems and 4 structures do not meet the standards of high-performing plants. 51 This failure to adequately 5 fund maintenance contributes significantly to the likelihood of radiological leaks at Indian Point.

6 7 Based upon Entergys failure to adequately manage the aging of increasingly degraded plant 8 components, as well as the fact that only a limited number of components will be inspected using 9 inferior inspection methods, it is highly likely that many tanks, pipes, and other components on 10 the Indian Point site will leak in the future prior to detection by Entergy.

11 12 THE SIGNIFICANCE OF CONTAMINATION LEVELS IN THE GROUNDWATER 13 14 Q. Please assess Entergys characterization of the groundwater contamination as low 15 in the Environmental Report.

16 A. By characterizing the groundwater contamination as low in its Environmental Report, 17 Entergy is simply attempting to minimize the significance of the severity of the radioactive 18 contamination at Indian Point. Due to the size of the plumes, the varied range of radionuclides 19 present in the groundwater, the dangerous toxicity of various radionuclides in the plumes 20 (including Strontium-90 and Cesium-137), and the persistence of the plumes, I believe that the 21 contamination at Indian Point makes it one of the most contaminated operating nuclear power 22 plant sites in the United States. At the time of my review, I have been unable to find any other 23 operating U.S. nuclear power plant that is leaking such extensive amounts of tritium and 24 strontium contamination into any major body of water like the Hudson River.

25 26 Because Entergy and NRC focus only on the dose to humans through the consumption of fish 27 from the Hudson River, they do not speak at all to the level of contamination actually in the 50 Supplemental Report of the Public Oversight Panel Regarding the Comprehensive Reliability Assessment of the Vermont Yankee Nuclear Power Plant, July 20, 2010, at 10 (Exhibit RIV000088) 51 Id. at 9-10.

19

1 contamination spreads wider and deeper, causing individual monitoring well concentrations to 2 decrease, which may cast an inaccurate picture of the rate of any overall decline of these 3 radiologically contaminated plumes.

4 5 To the contrary, levels of radionuclides in the groundwater will likely remain high in the future.

6 Even if there are no additional leaks, additional peaks will occur. As GZA explains, [p]eaks of 7 tritium have been observed in multiple sampling points. . . This long term variability appears to 8 be with the episodic releases of Tritium historically stored in the subsurface. . . . This additional 9 unsaturated zone source will likely be manifested in the future as additional non-specific peaks in 10 radionuclide levels due to episodic releases to the groundwater . . .. 56 Furthermore, ongoing and 11 future leaks will continue to add to the existing plumes of contamination. For example, as noted 12 in the 2010 Quarter 2 GZA Monitoring Report, 70% of the sampling intervals exhibited an 13 increase in Tritium levels due to the RWST skid surface spill, discussed above. 57 This 14 incident resulted in an increase in the Unit 2 plume total Tritium activity. 58 15 16 All indications are that Entergy is going to simply allow such persistent contamination to sit in 17 the groundwater for decades to come without any removal or remediation. New leaks, including 18 the 2010 Unit SFP leak, and other likely future leaks from aging components at Indian Point, 19 guarantee that the present groundwater contamination will not be abated -- and, to the contrary, 20 will grow. It is, therefore, foreseeable that levels in the groundwater will remain high, and 21 continue to exceed EPA MCLs.

22 23 24 25 26 56 Id. at p.1-2.

57 Id.; IPEC Site Management Manual, IP-SMM, CY-110, Rev. 3, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 1, 2010), IPEC00225219 (Exhibit RIV000080); IPEC Site Management Manual, IP-SMM, CY-110, Rev. 1, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 2, 2010), IPEC00225223 (Exhibit RIV000081).

58 GZA, GeoEnvironmental, Inc. Final IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter Two 2010 (Report No. 10) (February 15, 2011), at p.1-2, IPEC00227561 (Exhibit RIV000076).

21

1 Q. Please describe whether there are any other feasible measures to mitigate or 2 minimize the adverse impacts of the radiological leaks and groundwater contamination at 3 Indian Point.

4 A. There are a range of feasible measures that would mitigate the adverse impacts of the 5 leaks and contamination at Indian Point. These include:

6 7 1. If Entergy chose to reduce the amount of spent fuel stored in the Unit 2 spent fuel pool by 8 using dry cask storage instead, it would be possible to remove some racks and shuffle the 9 remaining fuel to completely inspect the Unit 2 spent fuel pool liner for leaks and other 10 imperfections.

11 2. At Entergys Palisades nuclear plant, published reports indicate that Entergy has chosen 12 to move pipes containing radioactive material above ground for ease of inspection.

13 Exelon is also employing a similar approach on Oyster Creek. This approach could also 14 be used on Indian point 2 and 3 and would reduce the likelihood of leaks and greatly 15 enhance Entergys ability to inspect for leaks.

16 3. Thorough physical inspections of extensive segments of underground pipe could be 17 employed as a pre-condition to license renewal.

18 4. An increase in inspection frequency of all underground pipe beyond that which Entergy 19 has suggested in its AMP should be required as a condition of license renewal.

20 5. And, in a public commitment to more openness and transparency, Entergy should be 21 required to fully disclose Indian Points radiological monitoring results and publish them 22 on a monthly basis in an accessible online database in order to keep the public fully 23 informed of the ongoing radiological contamination of the groundwater at and adjacent to 24 Indian Point and the radiological contamination of the Hudson River.

25 26 CONCLUSIONS 27 Q. Please summarize your conclusions regarding radiological leaks and 28 groundwater contamination at Indian Point.

29 x The Unit 2 spent fuel pool is currently leaking and will most likely continue to leak in 30 the future; 31 x The leaks that occurred from the Unit 1 spent fuel pools has resulted in contamination 29

1 that will continue to impact the environment for the foreseeable future; 2 x Other plant systems, structures, and components, including buried pipes and 3 structures, have recently caused leakage issues, and will most likely leak in the future; 4 such leaks will add to and commingle with the existing plumes of contamination; 5 x The current level of groundwater contamination at Indian Point is high, and will 6 continue to reach high levels during the proposed period of extended operation; 7 x The groundwater contamination may cause impacts to the Hudson River during the 8 proposed extended licensing terms, including impacts to aquatic ecology, impacts to 9 recreational activities in the river, and impacts to drinking water sources; and 10 x There exists a wide range of reasonable, feasible, cost-beneficial measures that could 11 mitigate, minimize, and lessen the adverse environmental consequences of 12 radiological leaks and groundwater contamination from Indian Point to the 13 surrounding groundwater and Hudson River.

14 15 Q. Does this conclude your direct testimony?

16 A. Yes.

30

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR

) and 50-286-LR (Indian Point Nuclear Generating Station, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Granting in Part and Denying in Part Applicants Motions in Limine) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop O-7H4M Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Sherwin E. Turk, Esq.

Atomic Safety and Licensing Board Panel Edward L. Williamson, Esq.

Mail Stop T-3F23 Beth N. Mizuno, Esq.

Washington, DC 20555-0001 David E. Roth, Esq.

Brian Harris, Esq.

Lawrence G. McDade, Chair Mary B. Spencer, Esq.

Administrative Judge Anita Ghosh, Esq.

E-mail: lawrence.mcdade@nrc.gov Karl Farrar, Esq.

Brian Newell, Paralegal Richard E. Wardwell U.S. Nuclear Regulatory Commission Administrative Judge Office of the General Counsel E-mail: richard.wardwell@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 Kaye D. Lathrop E-mail:

Administrative Judge sherwin.turk@nrc.gov 190 Cedar Lane E. edward.williamson@nrc.gov Ridgway, CO 81432 beth.mizuno@nrc.gov E-mail: kaye.lathrop@nrc.gov brian.harris.@nrc.gov david.roth@nrc.gov Joshua A. Kirstein, Law Clerk mary.spencer@nrc.gov E-mail: josh.kirstein@nrc.gov anita.ghosh@nrc.gov Anne Siarnacki, Law Clerk karl.farrar@nrc.gov E-mail: anne.siarnacki@nrc.gov brian.newell@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov

Docket Nos. 50-247-LR and 50-286-LR ORDER (Granting in Part and Denying in Part Applicants Motions in Limine)

William C. Dennis, Esq. Thomas F. Wood, Esq.

Assistant General Counsel Daniel Riesel, Esq.

Entergy Nuclear Operations, Inc. Victoria Shiah, Esq.

440 Hamilton Avenue Adam Stolorow, Esq.

White Plains, NY 10601 Jwala Gandhi, Paralegal Email: wdennis@entergy.com Counsel for Town of Cortlandt Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com vshiah@sprlaw.com astolorow@sprlaw.com jgandhi@sprlaw.com Elise N. Zoli, Esq. Phillip Musegaas, Esq.

Goodwin Proctor, LLP Deborah Brancato, Esq.

Exchange Place Ramona Cearley, Secretary 53 State Street Riverkeeper, Inc.

Boston, MA 02109 20 Secor Road E-mail: ezoli@goodwinprocter.com Ossining, NY 10562 E-mail: phillip@riverkeeper.org dbrancato@riverkeeper.org rcearley@riverkeeper.org Kathryn M. Sutton, Esq. Melissa-Jean Rotini, Esq.

Paul M. Bessette, Esq. Assistant County Attorney Martin J. ONeill, Esq. Office of Robert F. Meehan, Raphael Kuyler, Esq. Westchester County Attorney Jonathan M. Rund, Esq. 148 Martine Avenue, 6th Floor Lena Michelle Long, Esq. White Plains, NY 10601 Laura Swett, Esq. E-mail: MJR1@westchestergov.com Lance Escher, Esq.

Mary Freeze, Legal Secretary Manna Jo Greene, Environmental Director Antoinette Walker, Legal Secretary Steven C. Filler Morgan, Lewis & Bockius, LLP Karla Raimundi 1111 Pennsylvania Avenue, NW Hudson River Sloop Clearwater, Inc.

Washington, DC 20004 724 Wolcott Ave.

E-mail: ksutton@morganlewis.com Beacon, NY 12508 pbessette@morganlewis.com E-mail: mannajo@clearwater.org martin.oneill@morganlewis.com stephenfiller@gmail.com rkuyler@morganlewis.com karla@clearwater.org jrund@morganlewis.com llong@morganlewis.com Michael J. Delaney, Esq.

lswett@morganlewis.com Director, Energy Regulatory Affairs 2

Docket Nos. 50-247-LR and 50-286-LR ORDER (Granting in Part and Denying in Part Applicants Motions in Limine) lescher@morganlewis.com NYC Department of Environmental Protection mfreeze@morganlewis.com 59-17 Junction Boulevard awalker@morganlewis.com Flushing, NY 11373 E-mail: mdelaney@dep.nyc.gov Joan Leary Matthews, Esq. Robert D. Snook, Esq.

Senior Attorney for Special Projects Assistant Attorney General New York State Department Office of the Attorney General of Environmental Conservation State of Connecticut 625 Broadway, 14th Floor 55 Elm Street Albany, New York 12233-5500 P.O. Box 120 E-mail: jmatthe@gw.dec.state.ny.us Hartford, CT 06141-0120 E-mail: robert.snook@po.state.ct.us John Louis Parker, Esq. Sean Murray, Mayor Office of General Counsel, Region 3 Kevin Hay, Village Administrator New York State Department Village of Buchanan of Environmental Conservation Municipal Building 21 South Putt Corners Road 236 Tate Avenue New Paltz, NY 12561-1620 Buchanan, NY 10511-1298 E-mail: jlparker@gw.dec.state.ny.us E-mail: SMurray@villageofbuchanan.com Administrator@villageofbuchanan.com John J. Sipos, Esq. Janice A. Dean, Esq.

Charles Donaldson, Esq. Assistant Attorney General Assistant Attorneys General Office of the Attorney General Office of the Attorney General of the State of New York of the State of New York 120 Broadway, 26th Floor The Capitol New York, New York 10271 State Street E-mail: Janice.Dean@ag.ny.gov Albany, New York 12224 E-mail: John.Sipos@ag.ny.gov charlie.donaldson@ag.ny.gov

[Original signed by Christine M. Pierpoint]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 6th day of March 2012 3