ML12089A574

Entergy Pre-Filed Evidentiary Hearing Exhibit ENT000300 - Entergy SOP RKEC3CWEC1

ML12089A574
Person / Time
Site:	Indian Point
Issue date:	03/29/2012
From:	Bessette P, Dennis W, Glew W, Rund J, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML12089A572	List: ML12089A573 ML12089A574
References
RAS 22126, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12089A574 (65)

Text

ENT000300 Submitted March 29, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

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

)

(Indian Point Nuclear Generating Units 2 and 3) )

) March 29, 2012 ENTERGYS STATEMENT OF POSITION ON CONSOLIDATED CONTENTION RK-EC-3/CW-EC-1 (SPENT FUEL POOL LEAKS)

William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

ENTERGY NUCLEAR OPERATIONS, INC. Jonathan M. Rund, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, NW Phone: (914) 272-3202 Washington, DC 20004 Fax: (914) 272-3205 Phone: (202) 739-3000 E-mail: wglew@entergy.com Fax: (202) 739-3001 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

TABLE OF CONTENTS Page I. PRELIMINARY STATEMENT ....................................................................................... 2 II. PROCEDURAL HISTORY OF CONTENTION RK-EC-3/CW-EC-1 ............................ 4 III. APPLICABLE LEGAL AND REGULATORY STANDARDS ...................................... 9 A. Controlling NEPA Principles ................................................................................. 9 B. NRCs NEPA Implementing Regulations ........................................................... 11 C. NRCs NEPA Regulations on Human Health, Groundwater, and Ecological Impacts ............................................................................................... 12 D. NRCs Dose Limits and Environmental Monitoring Requirements .................... 14 E. Burden of Proof.................................................................................................... 17 IV. ARGUMENT ................................................................................................................... 18 A. Entergys Witnesses ............................................................................................. 18

1. Donald M. Mayer ..................................................................................... 18

2. Alan B. Cox ............................................................................................. 19

3. Thomas C. Esselman ................................................................................ 20

4. Matthew J. Barvenik ................................................................................ 20

5. Carl J. Paperiello ...................................................................................... 21

6. F. Owen Hoffman .................................................................................... 22 B. Entergys Statement of Position........................................................................... 23

1. The Indian Point Site ............................................................................... 24

2. Indian Point SFP Leaks............................................................................ 25

3. Comprehensive Groundwater Investigations ........................................... 29

4. Monitored Natural Attenuation ................................................................ 32

5. Independent Assessment of Indian Point SFP Leaks ............................... 33

6. Compliance with Applicable Dose Limits ............................................... 37

7. Environmental Impacts During the License Renewal Term .................... 37

8. Intervenors Assertions About the Significance of Past IP1 SFP Leaks Lack Merit ..................................................................................... 49

9. Environmental Impacts Will Likely Remain SMALL Notwithstanding the Intervenors Speculation About Future SFP Leaks ........................................................................................................ 51

10. Intervenors Arguments Concerning Mitigation Are Flawed .................. 53

-i-

TABLE OF CONTENTS (continued)

Page V. CONCLUSION ................................................................................................................ 58

-ii-

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

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

)

(Indian Point Nuclear Generating Units 2 and 3) )

) March 29, 2012 ENTERGYS STATEMENT OF POSITION ON CONSOLIDATED CONTENTION RK-EC-3/CW-EC-1 (SPENT FUEL POOL LEAKS)

Pursuant to 10 C.F.R. § 2.1207(a)(1) and the Atomic Safety and Licensing Boards (Board) Order Granting NRC Staffs Unopposed Time Extension Motion,1 Entergy Nuclear Operations, Inc. (Entergy) submits this Statement of Position (Statement) on Consolidated Contention RK-EC-3/CW-EC-1 (RK-EC-3/CW-EC-1) proffered by Riverkeeper, Inc.

(Riverkeeper) and Hudson River Sloop Clearwater, Inc. (Clearwater) (collectively, Intervenors). This Statement is supported by the Prefiled Testimony of Entergy Witnesses Donald M. Mayer, Alan B. Cox, Thomas C. Esselman, Matthew J. Barvenik, Carl J. Paperiello, and F. Owen Hoffman Concerning Consolidated Contention RK-EC-3/CW-EC-1 (Spent Fuel Pool Leaks) (Entergy Testimony) (ENT000301), and the exhibits thereto (Entergy Exhibits ENT000302 to ENT000368, and ENT000370 to ENT000371). For the reasons discussed below, RK-EC-3/CW-EC-1 lacks merit and should be resolved in favor of Entergy and the U.S. Nuclear Regulatory Commission (NRC or Commission) Staff.

1 Licensing Board Order (Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates) (Feb. 16, 2012) (unpublished).

I. PRELIMINARY STATEMENT RK-EC-3/CW-EC-1, an environmental contention, challenges whether Entergys Environmental Report (ER) and the NRC Staffs Final Supplemental Environmental Impact Statement (FSEIS) sufficiently analyze the environmental significance of Indian Point Nuclear Generating Unit (Indian Point) spent fuel pool (SFP) leaks, as required by the National Environmental Policy Act (NEPA) and NRCs 10 C.F.R. Part 51 NEPA regulations. In this regard, the Intervenors testimony by Mr. Arnold Gundersen and Dr. Gillian Stewart claims that Entergy and the Staff fail to appropriately consider: (1) Indian Point Nuclear Generating Unit 2 (IP2) SFP leaks; (2) contamination from past Indian Point Nuclear Generating Unit 1 (IP1)

SFP leaks; (3) the significance of groundwater contamination; (4) groundwater contamination impacts on the Hudson River, including impacts to aquatic ecology, recreational activities, and a potential desalination facility; and (5) mitigation measures to ostensibly minimize groundwater contamination impacts.

As a threshold legal matter, NEPA does not require particular environmental outcomes.

Rather, it requires only that agencies take a hard look at the environmental impacts that will result from an agencys action and provide a statement of the environmental impacts that will result.2 In connection with this license renewal application (LRA), Entergy prepared an ER addressing, among other things, the requirement to identify any new and significant information regarding significant environmental impacts not addressed in the Generic 2

See La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 87-88 (1998); see also Balt.

Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97-98 (1983) (NEPA requires agency to take a hard look at environmental consequences prior to taking major action).

Environmental Impact Statement (GEIS).3 The Staff then prepared an FSEIS that evaluates the ER and other information concerning potential new and significant impacts.4 In their testimony, Entergys experts thoroughly explain why the NRC Staff FSEIS appropriately concludes radionuclide leaks from IP1 and IP2 SFPs into the groundwater and Hudson River ecosystem, while new (i.e., not considered in the GEIS), are not environmentally significant. As the analysis shows, and as demonstrated in the accompanying testimony, the leaks have SMALL environmental impacts, as that term is defined by NRC. Thus, the NRC satisfied the NEPA hard look requirement.

Entergys experts first provide background on relevant regulations, the Indian Point site and surrounding area, and the circumstances surrounding the IP1 and IP2 SFP leaks. They then discuss the details and results of the extensive Indian Point Site Hydrogeologic Study, submitted to the NRC in January 2008, as well as the subsequent details and results of the Long-Term Groundwater Monitoring Program. In addition, Entergys experts summarize the NRC Staffs and the New York State Department of Environmental Conservations (NYSDEC) independent IP1 and IP2 SFP leak assessmentsall of which conclude that the impacts of such leaks are not significant.

Entergys experts demonstrate that these conclusions are buttressed by the fact that Indian Point must report to the NRC annual dose calculations that account for all radionuclide releases from the site, including any releases from groundwater to the Hudson River. Those calculations, in turn, demonstrate Indian Points compliance with all applicable federal dose limits. Indeed, 3

See 10 C.F.R. § 51.53(c)(3)(iv); Regulatory Guide 4.2, Supp. 1, Preparation of Supplemental Environmental Reports for Application to Renew Nuclear Power Plant Operating Licenses 4.2-S-4 (Sept. 2000) (RG 4.2S1)

(ENT000136).

4 10 C.F.R. §§ 51.71(d), 51.95(c)(3).

the total annual dose to a hypothetical maximally-exposed individual from Indian Point groundwater is far less than the typical dose from eating a banana.5 Ultimately, Entergys experts demonstrate that the SFP leaks environmental impacts on human health, groundwater quality, and ecological resources are all SMALL, as that term is used in long-standing NRC regulations, and that the NRC has fully met its NEPA obligations. In doing so, Entergys experts address and refute the Intervenors evidence point-by-point, thereby further demonstrating that Contention RK-EC-3/CW-EC-1 and supporting evidentiary submissions lack legal, factual, and technical merit.

II. PROCEDURAL HISTORY OF CONTENTION RK-EC-3/CW-EC-1 On April 23, 2007, Entergy applied to renew the IP2 and IP3 operating licenses for 20 years beyond their current expiration dates of September 28, 2013, and December 12, 2015, respectively. After the NRC published a Federal Register notice of opportunity for hearing,6 Riverkeeper and Clearwater filed separate petitions to intervene, proposing various contentions.7 Of relevance here, Riverkeeper RK-EC-3, as initially proposed, alleged that Entergys Environmental Report (ER) does not adequately assess new and significant information regarding the environmental impacts of radioactive water leaks from the Indian Point 1 and Indian Point 2 spent fuel pools on groundwater and the Hudson River ecosystem.8 Similarly, Clearwater CW-EC-1 alleged the ER fails to adequately assess new and significant 5

Entergy Test. at A135 (ENT000301).

6 Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed.

Reg. 42,134 (Aug. 1, 2007).

7 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 NRC 43, 166-207 (2008).

8 Riverkeeper, Inc.s Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant at 74 (Nov. 30, 2007) (Riverkeeper Petition), available at ADAMS Accession No. ML073410093.

information concerning environmental impacts of radioactive substances that are leaking from spent fuel pools.9 Entergy opposed the admission of RK-EC-3 and CW-EC-1 on three principal grounds.10 First, NRC dose regulationsnot U.S. Environmental Protection Agency (EPA) drinking water standardsgovern the environmental significance of Indian Point SFP leaks.11 Neither Riverkeeper nor Clearwater substantiated their assertion that the EPA standards somehow dictate the outcome of the NEPA analysis.12 Second, the IP1 SFP leak, the only identified source of strontium-90 groundwater contamination, is not within the legal scope of the IP2 and IP3 license renewal proceeding.13 Third, neither Riverkeeper nor Clearwater dispute that doses due to the groundwater pathway are only a small fraction of federal limits.14 The NRC Staff opposed admission of RK-EC-3 and CW-EC-1 for substantially the same reasons as Entergy.15 The Board admitted and consolidated RK-EC-3 and CW-EC-l, stating that it was admitting RK-EC-3 as it relates to the environmental impacts from the spent fuel pool leaks16 9

Hudson River Sloop Clearwater Incs Petition to Intervene and Request for Hearing at 18 (Dec. 10, 2007)

(Clearwater Petition), available at ADAMS Accession No. ML073520042.

10 See Answer of Entergy Nuclear Operations, Inc. Opposing Riverkeeper Inc.s Request for Hearing and Petition to Intervene at 139-51 (Jan. 22, 2008), available at ADAMS Accession No. ML080300071 (Entergy Riverkeeper Answer); Answer of Entergy Nuclear Operations, Inc. Opposing Hudson River Sloop Clearwater Inc.s Petition to Intervene and Request for Hearing at 32-49 (Jan. 22, 2008) (Entergy Clearwater Answer),

available at ADAMS Accession No. ML080300053.

11 See Entergy Clearwater Answer at 43-44.

12 See id. at 43-44.

13 See id. at 42-43.

14 See id. at 44-49; Entergy Riverkeeper Answer at -143-44.

15 NRC Staffs Response to Petitions for Leave to Intervene Filed by (1) Connecticut Attorney General Richard Blumenthal, (2) Connecticut Residents Opposed to Relicensing of Indian Point, and Nancy Burton, (3) Hudson River Sloop Clearwater, Inc., (4) the State of New York, (5) Riverkeeper, Inc., (6) the Town of Cortlandt, and (7) Westchester County at 90-92, 112-15 (Jan. 22, 2008) (NRC Staff Answer), available at ADAMS Accession No. ML080230543.

16 Indian Point, LBP-08-13, 68 NRC at 190 (emphasis added).

and CW-EC-1 to the extent it raised a genuine dispute regarding the significance of the environmental impacts from the spent fuel pool leaks.17 In admitting RK-EC-3/CW-EC-1, the Board made clear it would not allow the Intervenors to challenge settled Commission regulations, which includes the NRCs dose regulations. Specifically, the Board explained that while there is still the question as to whether the maximum groundwater impact (and, in turn, the maximum dose) has been determined for the site, it was not allowing an impermissible challenge to Commission regulations.18 This restriction is consistent with Commission case law and the Boards emphasis on a license renewal proceedings limited scope.19 Riverkeeper and Clearwater subsequently conferred and submitted Consolidated Contention RK-EC-3/CW-EC-1, which alleged the ER fails to adequately analyze the environmental impacts of spent fuel pool leaks as required by the National Environmental Policy Act (NEPA) and NRC regulations.20 More specifically, the Intervenors identified three main environmental concerns related to SFP leaks: (1) human health impacts; (2) groundwater quality impacts; and (3) Hudson River ecosystem impacts.21 The Intervenors subsequently requested that the Board recognize that the Contention applies to the NRC Staffs Draft and Final Supplemental Environmental Impact Statements.22 17 Id. at 193 (emphasis added).

18 Id. at 193-94.

19 See id. at 67.

20 Consolidated Contention of Petitioners Riverkeeper, Inc. (EC-3) and Hudson River Sloop Clearwater, Inc.

(EC-1)-Spent Fuel Pool Leaks at 2 (Aug. 21, 2008) (Consolidated Contention), available at ADAMS Accession No. ML082420284.

21 See id. at 2-4.

22 Riverkeeper, Inc. and Clearwater, Inc. Challenge to NRC Staffs Assessment of Impacts of Spent Fuel Pool Leaks in the Final Supplemental Environmental Impact Statement at 3 (Feb. 3, 2011), available at ADAMS Accession No. ML110410362; Riverkeeper, Inc.s Challenge to NRC Staffs Assessment of Impacts of Spent The Board granted these requests, making no substantive changes to the admitted contentions scope.23 Thus, RK-EC-3/CW-EC-1, as admitted, is limited to whether the FSEIS and ER sufficiently analyze the environmental significance of Indian Point SFP leaks.

On December 22, 2011, the Intervenors filed their statement of position and direct testimony of Mr. Gundersen and Dr. Stewart.24 Mr. Gundersen, a nuclear engineer, testifies on the adequacy of the evaluation by Entergy and the NRC Staff of spent fuel pool leaks and groundwater contamination.25 Dr. Gillian Stewart, a professor of Environmental Science at Queens College in New York, testifies about alleged radionuclide impacts to Hudson River aquatic ecology and a potential drinking water pathway involving a proposed desalination facility.26 On January 30, 2012, Entergy filed a Motion in Limine seeking to exclude portions of the Intervenors direct testimony,27 a motion the NRC Staff supported and the Intervenors opposed.28 Fuel Pool Leaks in the Draft Supplemental Environmental Impact Statement at 3 (Feb. 27, 2009), available at ADAMS Accession No. ML090820633.

23 Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) at 36, 72 (July 6, 2011) (unpublished); Licensing Board Order (Applying Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 to the NRC Staffs Draft Supplemental Environmental Impact Statement) at 1-2 (May 28, 2009) (unpublished).

24 Riverkeeper and Hudson River Sloop Clearwater Initial Statement of Position Regarding Consolidated Contention RK-EC-3/CW-EC-1 (Spent Fuel Pool Leaks) at 39 (Dec. 22, 2011) (Intervenors SOP)

(RIV000059).

25 Prefiled Direct Testimony of Arnold Gunersen Regarding Consolidated Contention RK-EC-3/CW-EC-1 (Spent Fuel Pool Leaks) at 4 (Dec. 21, 2011) (Gunderson Testimony) (RIV000060).

26 Prefiled Written Testimony of Gillian Stewart Regarding Contention RK0EC-3/CW-EC-1 (Spent Fuel Pool Leaks) at 2:24-28 (Dec. 22, 2011) (Stewart Testimony) (RIV000061).

27 Entergys Motion in Limine to Exclude Portions of Intervenors Pre-filed Testimony and Exhibits for Contention RK-EC-3/CW-EC-1 (Spent Fuel Pool Leaks) (Jan. 30, 2012) (Entergy Motion in Limine),

available at ADAMS Accession No. ML12030A203.

28 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), available at ADAMS Accession No. ML12030A203; 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), available at ADAMS Accession No. ML12048B457.

In particular, Entergy sought to exclude portions of both the expert testimony of Mr. Gundersen and Dr. Stewart, as well as certain of Intervenors exhibits, arguing, among other things, that:

(1) Mr. Gundersen and Dr. Stewart each lacks expertise in certain areas covered by their testimony; (2) releases from non-SFP systems, structures, and components (SSCs) and aging management programs (AMPs) are outside the scope of RK-EC-3/CW-EC-1; and (3) challenges to dose regulations are prohibited.29 On March 3, 2012, the Board granted the Motion in Limine in part and denied it in part.30 Specifically, the Board excluded portions of Mr. Gundersens testimony and associated exhibits discussing radiological releases from non-SFP sources and challenging non-SFP SSC AMPs.31 On March 16, 2012, the Intervenors filed a Motion for Reconsideration or Clarification of the Boards order granting, in part, Entergys Motion in Limine.32 The Board denied that request.33 In doing so, the Board reemphasized that RK-EC-3/CW-EC-1 is limited to SFP leaksboth as to the leakage that might occur from the SFPs and, after such leakage has occurred, its impacts on groundwater and the Hudson River ecosystem and that to the extent 29 See Entergy Motion in Limine at 1-2.

30 Licensing Board Order (Granting in Part and Denying in Part Applicants Motions in Limine) (Mar. 6, 2012)

(unpublished).

31 Id. at 27.

32 Riverkeeper, Inc. and Hudson River Sloop Clearwater, Inc.s Request Leave to File Motion for Reconsideration and/or Clarification of the ASLBs Ruling on Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention RK-EC-3/CW-EC-1 (Mar. 16, 2012); Riverkeeper, Inc.

and Hudson River Sloop Clearwater, Inc.s Motion for Reconsideration and/or Clarification of the ASLBs Ruling on Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Contention RK-EC-3/CW-EC-1 (Mar. 16, 2012).

33 Licensing Board Order (Denying Riverkeepers and Clearwaters Motion for Reconsideration and/or Clarification) at 2 (Mar. 22, 2012) (unpublished).

that SFP leaks co-mingle with other sources in the plumes, it would assess groundwater and Hudson River ecosystem impacts on a site-wide basis.34 As a result of the Board orders, Intervenors testimony regarding non-SFP releases and AMPs are not addressed in Entergys testimony or this Statement.35 III. APPLICABLE LEGAL AND REGULATORY STANDARDS A. Controlling NEPA Principles Contention RK-EC-3/CW-EC-1 arises under NEPA, which requires that federal agencies, such as the NRC, prepare an environmental impact statement (EIS) in conjunction with major Federal actions significantly affecting the quality of the human environment.36 NEPA does not mandate substantive results; rather, it imposes procedural restraints on agencies, requiring them to take a hard look at a proposed actions environmental impacts and reasonable alternatives to that action.37 In this regard, the Commission has emphasized that NRC hearings must focus on whether the NRC Staff has failed to take a hard look at significant environmental questions i.e., the Staff has unduly ignored or minimized pertinent environmental effects.38 In determining whether the FSEIS is sufficient under NEPA, the Board considers the record as a whole. The record of decision ultimately includes the adjudicatory record and the 34 Id. at 3.

35 Entergy acknowledges the Boards ruling denying Entergys other arguments and addresses those issues in Entergys testimony, but does not waive any rights in this regard.

36 42 U.S.C. § 4332(2)(C).

37 See La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 87-88 (1998); see also Balt.

Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97-98 (1983) (NEPA requires agency to take a hard look at environmental consequences prior to taking major action).

38 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 17, 58 NRC 419, 431 (2003); see also Exelon Generating Co., LLC (Early Site Permit for Clinton ESP Site),

CLI-05-29, 62 NRC 801, 811 (2005) (There may, of course, be mistakes in the [EIS], but in an NRC adjudication, it is Intervenors burden to show their significance and materiality. Our boards do not sit to flyspeck environmental documents or to add details or nuances.) (internal quotes omitted), aff'd sub nom.,

Envtl. Law & Policy Ctr. v. NRC, 470 F.3d 676 (7th Cir. 2006).

Board decision.39 Thus, in NRC licensing proceedings, the ultimate NEPA judgments regarding a facility can be made on the basis of the entire record before a presiding officer, such that the EIS can be deemed to be amended pro tanto.40 Therefore, the Board may consider the full record before it, including the testimony and exhibits at the hearing, to conclude that the aggregate is sufficient to satisfy the agencys obligation under NEPA to take a hard look at license renewal environmental impacts and alternatives.41 Moreover, in determining whether the NRC has satisfied its obligation, both the Commission and the federal courts have emphasized that there are limits to what can be demanded of an agency.42 Overall, the hard look requirement is subject to a rule of reason.43 As a result, NEPA does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.44 Nor must an EIS be so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible.45 And, because there will always be more data that could be gathered, agencies enjoy discretion to draw the line and move forward with decisionmaking.46 39 See, e.g., La. Energy Servs. (Natl Enrichment Facility), CLI-06-15, 63 NRC 687, 707 n. 91 (2006)

(Adjudicatory findings on NEPA issues, including our own in this decision, become part of the environmental record of decision and in effect supplement the FEIS.); LES, CLI-98-3, 47 NRC at 89 (In NRC licensing adjudications it is the Licensing Board that compiles the final environmental record of decision . . . . The adjudicatory record and Board decision . . . become, in effect, part of the FEIS.).

40 La. Energy Servs. (Natl Enrichment Facility), LBP-05-13, 61 NRC 385, 404 (2005).

41 La. Energy Servs. (Natl Enrichment Facility), LBP-06-8, 63 NRC 241, 286 (2006).

42 See, e.g., Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 776 (1983) (The scope of the agencys inquiries must remain manageable if NEPAs goal of ensur[ing] a fully informed and well considered decision, is to be accomplished.).

43 New York v. Kleppe, 429 U.S. 1307, 1311 (1976); see also Dept of Transp. v. Pub. Citizen, 541 U.S. 752, 767-69 (2004) (rule of reason is inherent in NEPA and its implementing regulations).

44 La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005).

45 Kleppe, 429 U.S. at 1311 (citing Natural Res. Def. Council v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975)).

46 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 315 (2010).

B. NRCs NEPA Implementing Regulations The NRC NEPA regulations are set forth in 10 C.F.R. Part 51. In 1996, the Commission amended Part 51 to address the scope of its license renewal environmental review.47 To make Part 51 more efficient and focused, the NRC prepared the GEIS to evaluate environmental impacts based on experience gained from existing U.S. nuclear power plant fleet operations.48 Based on the GEIS, the NRC divided the license renewal environmental requirements into generic and plant-specific components.49 Those issues that could be resolved generically for all plants are designated as Category 1 issues and are not evaluated further in a license renewal proceeding (absent the Commission waiving or suspending the rule based on new and significant information).50 The applicants ER addresses remaining plant-specific, Category 2 issues and new and significant information about license renewal environmental impacts.51 The NRC Staff must then supplement the GEIS, preparing a site-specific evaluation that addresses applicable site-specific Category 2 issues and any new and significant information.52 47 See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

28,467 (June 5, 1996), amended by 61 Fed. Reg. 66,537 (Dec. 18, 1996).

48 See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

at 28,490; see also NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, Vols. 1 & 2 (May 1996), available at ADAMS Accession Nos. ML040690705 and ML040690738 (GEIS).

49 See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

at 28,490.

50 Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,468, 28,470, 28,474; Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 12 (2001).

51 See 10 C.F.R. § 51.53(c); Turkey Point, CLI-01-17, 54 NRC at 11-12.

52 10 C.F.R. § 51.53(c)(3)(ii), (iv).

The NRC codified its generic findings and this classification of issues in Table B-1, Appendix B to Subpart A of 10 C.F.R. Part 51 (Table B-1). Table B-1 assigns significance levels for environmental issues based on the following definitions:

SMALL: Environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource. For the purposes of assessing radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in the Commissions regulations are considered small.

MODERATE: Environmental effects are sufficient to alter noticeably, but not to destabilize, any important attributes of the resource.

LARGE: Environmental effects are clearly noticeable and are sufficient to destabilize important attributes of the resource.53 NRC regulatory guidance defines new and significant information as: (1) information that identifies a significant environmental issue that was not considered in the GEIS and, consequently, is not codified in Table B-1; or (2) information that was not considered in the analyses summarized in the GEIS and that leads to an impact finding different from that codified in 10 C.F.R. Part 51.54 C. NRCs NEPA Regulations on Human Health, Groundwater, and Ecological Impacts As noted above, RK-EC-3/CW-EC-1 identifies three main environmental concerns related to the Indian Point SFP leaks: (1) potential human health impacts; (2) potential groundwater quality impacts; and (3) potential aquatic ecology impacts.

53 10 C.F.R. Pt. 51, Subpt. A, App. B, Tbl. B-1 (emphasis added).

54 Regulatory Guide 4.2, Supp. 1, Preparation of Supplemental Environmental Reports for Application to Renew Nuclear Power Plant Operating Licenses, 4.2-S-4 (Sept. 2000) (RG 4.2S1) (ENT000338).

With regard to the potential for human health impacts due to radiation exposures to the public, the GEIS concludes that radiation exposure from power reactor operation is a Category 1 issue with SMALL significance.55 SMALL is defined as not exceeding the Commissions dose limits.56 Table B-1 codifies this finding and indicates that license renewal-related radiation exposure has a SMALL significance level because [r]adiation doses to the public will continue at current levels associated with normal operations.57 Thus, any challenge to human health impacts that turns on contesting the conclusion that SMALL effects will occur absent a violation of NRC dose regulations is contrary to Table B-1 and impermissible.58 The GEIS also considered groundwater quality impairments, including potential tritium contamination impacts.59 The GEIS concluded that groundwater quality impacts have SMALL significance when a plant does not contribute to changes in groundwater quality that preclude current and future groundwater uses.60 The GEIS specifically considered low-level groundwater contamination at the Prairie Island nuclear power plant site and concluded that the contribution of plant operations (during the license renewal period) to the cumulative impacts of major activities on groundwater quality would be relatively small.61 Table B-1, however, does not list 55 GEIS at 4-95 (NYS00131B).

56 10 C.F.R. Pt. 51, Subpt. A, App. B, Tbl. B-1.

57 Id.

58 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 364 (2001) (If the Petitioners are objecting to all possible routine adjustments in effluent releases, then their claim amounts to an impermissible general attack on our regulations governing public doses at operating nuclear plants.); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 315 (2006) (refusing to allow litigation on contention argument suggesting doses not in violation of NRC regulations might be harmful to health).

59 See GEIS at 4-118 (NYS00131B).

60 See id. at 4-119.

61 Id.

groundwater quality impacts due to radiological contamination as a Category 1 or Category 2 issue.

Third, the GEIS and Table B-1 list several issues related to ecological impacts.62 However, none of these issues address specifically the potential radionuclide impacts on aquatic organisms from SFP leaks during the license renewal term. But, as discussed fully in Entergys testimony, radiation dose limits protective of persons are also protective of other species.63 D. NRCs Dose Limits and Environmental Monitoring Requirements The Atomic Energy Act requires that the NRC promulgate, inspect and enforce standards that provide an adequate level of protection of the public health and safety and the environment.64 In carrying out this obligation, NRC regulations conservatively provide a margin of safety.65 Regulations in 10 C.F.R. Part 20, establish standards to protect against radiation resulting from NRC licensee activity. Part 20 incorporates by reference the EPA environmental radiation protection standard, which imposes dose limits to any member of the public from planned radioactive materials discharges to the general environment from uranium fuel cycle operations (which includes nuclear power plant operations).66 In addition, 10 C.F.R. Part 50 places further restrictions on public dose from nuclear power plant operations. Specifically, 10 C.F.R. § 50.36a imposes conditions on nuclear power reactor effluents, requiring operators to keep as low as reasonably achievable (ALARA) 62 See, e.g., 10 C.F.R., Pt. 51, Subpt. A, App. B, Tbl. B-1 (listing various aquatic ecology-related Category 1 and 2 issues).

63 Entergy Test. at A139 (ENT000301).

64 Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. at 28,476 (NYS000127).

65 Id.

66 10 C.F.R. § 20.1301(e); 40 C.F.R. § 190.10(a).

radioactive material effluent releases to unrestricted areas during normal operations, including expected occurrences (e.g., leaks and spills). Appendix I to 10 C.F.R. Part 50 establishes numerical design objectives to meet the ALARA requirement.67 These Appendix I numerical design objectives are a fraction of the Part 20 limits (including the EPA 40 C.F.R. § 190.10 limits). Thus, in practice, because the Part 50, Appendix I design objectives are far more restrictive than Part 20 allowable dose limits or effluent concentration levels, the Part 50, Appendix I ALARA objectives are controlling for power reactor licensees. The relevant NRC and EPA limits are summarized in the GEIS and reproduced below.

67 See 10 C.F.R. § 50.36a(b).

Source: GEIS at E-10 (NYS00131H)

To demonstrate compliance with these dose limits, NRC regulations require licensees to monitor and control radioactive materials in effluents released to unrestricted and controlled areas, regardless of their source, including planned and unplanned releases.68 For example, licensees must submit to the NRC an Annual Radioactive Effluent Release Report, stating the 68 10 C.F.R. § 20.1302; see also SECY-11-0019, Senior Management Review of Overall Regulatory Approach to Groundwater Protection, Encl. 2, at 2 (Regulatory Framework) (ENT000322).

amount of radioactive material released to the environment during the past year.69 In addition, NRC regulations require that licensees survey radiation levels in both unrestricted and controlled areas as part of a Radiological Environmental Monitoring Program, the results of which are reported to the NRC in an Annual Radiological Environmental Operating Report.70 Each licensee has an Offsite Dose Calculation Manual, which the NRC Staff regularly inspects, that establishes procedures implementing these requirements.71 E. Burden of Proof At the hearing stage, an intervenor has the initial burden of going forward; i.e., it must provide sufficient evidence to support the claims made in the admitted contention.72 The mere admission of the contention does not satisfy that burden. Moreover, an intervenor cannot meet its burden by relying on unsupported allegations and speculation.73 Rather, it must introduce sufficient evidence during the hearing phase to establish a prima facie case.74 If it does so, then the burden shifts to the applicant to provide sufficient evidence to rebut the intervenors 69 10 C.F.R. § 50.36a(a)(2) 70 See 10 C.F.R. Pt. 50, App. I § IV.B.

71 See Millstone, CLI-01-24, 54 NRC at 354-55.

72 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 269 (2009)

(quoting Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 345 (1973)) (The ultimate burden of proof on the question of whether the permit or license should be issued is . . . upon the applicant. But where . . . one of the other parties contends that, for a specific reason . . . the permit or license should be denied, that party has the burden of going forward with evidence to buttress that contention. Once he has introduced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant who, as part of his overall burden of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license.), affd sub nom. N.J. Envtl. Fedn v. NRC, 645 F.3d 220 (2011); see also Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 554 (1978) (upholding this threshold test for intervenor participation in licensing proceedings); Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 191 (1975) (holding that the intervenors had the burden of introducing evidence to demonstrate that the basis for their contention was more than theoretical).

73 See Oyster Creek, CLI-09-7, 69 NRC at 268-70; see also Phila. Elec. Co. (Limerick Generating station, Units 1 & 2), ALAB-857, 25 NRC 7, 13 (1987) (stating that an intervenor may not merely assert a need for more current information without having raised any questions concerning the accuracy of the applicants submitted facts).

74 See Oyster Creek, CLI-9-07, 69 NRC at 268-70.

contention.75 While the NRC Staff, not the applicant, has the burden of complying with NEPA,76 the applicant also has the burden of proof in licensing proceedings if it becomes a proponent of the challenged portion of the Staffs FSEIS.77 Ultimately, a preponderance of the evidence must support the applicants position.78 IV. ARGUMENT A. Entergys Witnesses This Statement of Position on RK-EC-3/CW-EC-1 summarizes testimony from Entergys witnesses listed below. The testimony, evidence, and opinions these witnesses present are based on their technical and regulatory expertise, professional experience, and personal knowledge of the issues raised in RK-EC-3/CW-EC-1. Collectively, these witnesses demonstrate that RK-EC-3/CW-EC-1 lacks merit.

1. Donald M. Mayer Mr. Mayer, Entergys Director of IP1, manages and has overall project direction of the retired IP1 plant. As summarized in his curriculum vitae (ENT000302), he holds a Master of Radiological Sciences degree from the University of Massachusetts-Lowell and a Master of Business Administration (MBA) degree from Mt. St. Mary College in Newburg, New York.

Mr. Mayer has more than 28 years of professional experience in Radiation Protection and Project Management and has been a Certified Health Physicist since 1988.

75 See, e.g., 10 C.F.R. § 2.325; La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1093 (1983) (citing Midland, ALAB-123, 6 AEC at 345).

76 See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1049 (1983).

77 La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), LBP-96-25, 44 NRC 331, 338-39 (1996) (citing Pub.

Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 489 n.8 (1978), revd on other grounds, CLI-97-15, 46 NRC 294 (1997)).

78 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-763, 19 NRC 571, 577 (1984).

During the 2005 to 2009 timeframe, Mr. Mayer managed the Indian Point groundwater investigation, including the hydrogeological, remedial, and radiological aspects of the investigation, and which culminated in a January 11, 2008 Site Investigation Report and comprehensive Long-Term Groundwater Monitoring Program. Based on this experience, Mr. Mayer is familiar with the history and status of IP1 and IP2 SFP leaks, as well as issues related to SFP remediation activities, groundwater monitoring (including the results of ongoing Indian Point groundwater monitoring), dose assessments, NRC inspection activities, and other independent SFP leak assessments, including NYSDEC and the United States Geological Survey (USGS) assessments.

2. Alan B. Cox Mr. Cox is Entergys Technical Manager, License Renewal and, since 2001, has worked full-time on license renewal supporting the development of integrated plant assessments and LRAs for Entergy and other utilities. As summarized in his curriculum vitae (ENT000031), he is a member of the Nuclear Energy Institute (NEI) License Renewal Task Force and has been a past representative on NEI license renewal working groups. Mr. Cox has participated in developing nine LRAs and in peer reviewing at least twelve additional LRAs. He holds a Bachelor of Science degree in Nuclear Engineering from the University of Oklahoma and an MBA from the University of Arkansas at Little Rock, and has more than 34 years of nuclear power industry experience.

As Technical Manager, Mr. Cox directly participated in preparing the Indian Point LRA, and in developing and reviewing required aging management program (AMP) descriptions.

He is also directly involved in developing or reviewing Entergy responses to NRC Staff Requests for Additional Information (RAIs) concerning the Indian Point LRA. Based on this experience, Mr. Cox is familiar with NRCs license renewal regulations and Entergys programs to manage the effects of aging on the IP2 and IP3 SFPs.

3. Thomas C. Esselman Dr. Esselman is a Principal at Lucius Pitkin, Inc., a company that provides wide-ranging engineering services to the nuclear power, energy generation and distribution, aerospace, petrochemical, and infrastructure industries. As summarized in his curriculum vitae (ENT000303), Dr. Esselman has over 35 years of engineering experience, including experience in component and structure performance analysis, aging, stress analysis, dynamics, seismic design and analysis, mechanical design, thermo-hydraulics, materials, materials degradation, and failure analysis. He holds a Bachelor of Science degree in Mechanical Engineering, and a Master of Science degree and a Ph.D. in Engineering Mechanics, all from Case Western Reserve University.

Throughout his career, Dr. Esselman has worked periodically with the Indian Point plants, including on assessments of IP1 and IP2 SFPs integrity, leak detection, and fitness-for-service. Based on this experience, Dr. Esselman is familiar with the Indian Point SFPs design, leak investigations, and analyses, including SFP aging evaluations.

4. Matthew J. Barvenik Mr. Barvenik is a Senior Principal and Senior Technical Consultant with GZA GeoEnvironmental, Inc. (GZA), a company that provides wide-ranging geotechnical engineering, environmental consulting, and remediation services. As summarized in his curriculum vitae (ENT000304), Mr. Barvenik has over 35 years of professional experience in hydrogeology, civil, geotechnical, and instrumentation engineering, and has focused on contaminated soil and groundwater investigation and remediation. He holds a Bachelor of Science degree in Civil Engineering from Northeastern University and a Master of Science degree in Geotechnical Engineering from the Massachusetts Institute of Technology.

Mr. Barvenik is a registered Licensed Site Professional in Massachusetts and a member of the American Nuclear Society (ANS). He served on the ANS Working Group responsible for the recently completed standard for Evaluation of Subsurface Radionuclide Transport at Commercial Nuclear Power Plants, and is a member of two newly-formed ANS Working Groups responsible for drafting standards on the evaluation of groundwater supplies and remediation methods for nuclear power sites.

Since the identification of the IP2 SFP shrinkage crack in September 2005, Mr. Barvenik has served as the lead technical investigator for the Indian Point hydrogeologic site characterization program, including the January 11, 2008 Site Investigation Report, the Site Conceptual Model, the Long-Term Groundwater Monitoring Program, and the radionuclide mass flux portion of dose computations. Based on this experience, Mr. Barvenik is familiar with the Indian Point hydrogeologic setting and groundwater flow patterns, identified contaminant sources and transport, historical and ongoing groundwater monitoring efforts, and current remediation plans. Mr. Barvenik is also familiar with the history and status of Indian Point SFP leaks, corresponding dose assessments, and associated NRC, NYSDEC, and USGS inspection activities.

5. Carl J. Paperiello Dr. Paperiello is a Senior Nuclear Consultant with Talisman International, LLC. As summarized in his curriculum vitae (ENT000305), he has more than 40 years of professional experience in health physics, nuclear physics, environmental radiochemical analysis, and nuclear spectroscopy. Dr. Paperiello was an NRC Staff member from 1975 to 2006 where he served in multiple leadership positions, including as Director of the Office of Nuclear Regulatory Research, Director of the Office of Nuclear Materials Safety and Safeguards, and Deputy Executive Director for Materials, Research, and State Programs. He holds a Bachelor of Science degree in Physics from the LaSalle College and a Ph.D. in Nuclear Physics from the University of Notre Dame. He has been certified in Comprehensive Health Physics since 1975 and was recently re-elected a Councilor for the National Council for Radiological Protection and Measurements (NCRP), the organization chartered by the U.S. Congress to make recommendations on radiation protection and measurements.79 In 2011, he was elected a Fellow of the Health Physics Society.

Dr. Paperiello has extensive experience developing and applying NRC regulations and programs addressing radionuclide effluent releases and environmental monitoring. Furthermore, he is familiar with the Indian Point Offsite Dose Calculation Manual, Annual Radioactive Effluent Release Reports, and Annual Radiological Environmental Operating Reports. Based on this experience, Dr. Paperiello is familiar with Indian Points compliance with NRC dose regulations and the potential for human health impacts.

6. F. Owen Hoffman Dr. Hoffman is president and director of SENES Oak Ridge, Inc. Center for Risk Analysis, an organization that specializes in human health and ecological risk estimation, risk assessment, and risk communication. As summarized in his curriculum vitae (ENT000306), Dr.

Hoffman has more than 39 years of experience in issues related to evaluating human and ecological risk from the release and transport of radionuclides and chemicals in terrestrial and aquatic systems. He is a Distinguished Emeritus Member of the NCRP and formerly a corresponding member of the International Commission on Radiological Protection (ICRP), a renowned independent, international advisory organization that provides recommendations and 79 See Cellular Phone Taskforce v. F.C.C., 205 F.3d 82, 87 (2d Cir. 2000).

guidance on radiation protection. Dr. Hoffman is also a consultant to the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR). He holds a Bachelor of Science degree in Biological Conservation from the San Jose State College, a Master of Science degree in Fisheries Limnology from Oregon State University, and a Ph.D. in Ecology, with a specialty in Radiation Ecology, from the University of Tennessee.

Dr. Hoffman has extensive experience assessing human health and aquatic biota impacts from radionuclide releases, including releases to aquatic environments. Furthermore, he is familiar with the Indian Point Offsite Dose Calculation Manual, Annual Radioactive Effluent Release Reports, and Annual Radiological Environmental Operating Reports. Dr. Hoffman has also independently assessed the radiological impacts to the Hudson River ecosystem from Indian Point SFP leaks to site groundwater. Based on this experience, Dr. Hoffman is familiar with Indian Points compliance with NRC dose regulations, and the potential for human health and aquatic biota impacts.

B. Entergys Statement of Position In their testimony, Entergys experts explain why the NRC Staff FSEIS appropriately concludes that, while new, information regarding radionuclide leaks from IP1 and IP2 SFPs into the groundwater and Hudson River ecosystem is not significant. To establish the foundation necessary to evaluate SFP leaks, Entergys experts provide background on the Indian Point site and surrounding area; IP1 and IP2 SFP leaks; and the details and results from the extensive Indian Point Site Hydrogeologic Study, submitted to the NRC in January 2008, and subsequently from the Long-Term Groundwater Monitoring Program. In addition, Entergys experts summarize the NRC Staffs and the New York State Department of Environmental Conservations (NYSDEC) independent assessments of the IP1 and IP2 SFP leaks, confirming the results of Entergys extensive analyses. Entergys experts then demonstrate that the SFP leaks environmental impacts on human health, groundwater quality, and ecological resources are SMALL, as that term is used in long-standing NRC regulations. In doing so, Entergys experts address and refute the Intervenors evidence point-by-point, thereby demonstrating that Contention RK-EC-3/CW-EC-1 and supporting evidentiary submissions lack legal, factual, and technical merit. Key aspects of their detailed testimony are summarized below.

1. The Indian Point Site In Section V of Entergys testimony, Messrs. Mayer and Barvenik provide an overview of the Indian Point site, explaining that IP2 has operated since August 1974, and IP3 since August 1976.80 Entergy purchased IP3 from the New York Power Authority in 2000 and IP2 from Consolidated Edison in 2001.81 IP1, which is located between IP2 and IP3, ceased operations in October 1974 and is currently in safe storage condition (SAFSTOR) until decommissioning is performed in conjunction with the decommissioning of IP2.82 When Entergy purchased IP2 from Consolidated Edison in 2001, it also purchased IP1.83 Indian Point is located on the eastern bank of the Hudson River, in the Village of Buchanan, in upper Westchester County, New York.84 Indian Point does not utilize groundwater, either for plant operations or for potable water.85 In fact, there are no active 80 Entergy Test. at A58 (ENT000301).

81 Id.

82 Id.

83 Id.

84 Id. at A59; FSEIS at 1-6 (NYS00133A).

85 Entergy Test. at A60(ENT000301).

potable water wells in the vicinity of Indian Point.86 Instead, drinking water in the area surrounding Indian Point is supplied from surface water reservoirs located in Westchester County and the Catskills region.87 The nearest of these reservoirs is the Camp Field Reservoir, which is located 3.3 miles north-northeast of Indian Point, in a cross-gradient direction (i.e.,

perpendicular to the direction that groundwater flows), several watersheds away and at an elevation more than 300 feet above the Indian Point power block.88

2. Indian Point SFP Leaks In Sections V and VI of the testimony, Mr. Mayer, Dr. Esselman, and Mr. Barvenik describe the Indian Point SFPs and provide an overview of the history of IP1 and IP2 SFP leaks.89 Entergy has identified no leaks from the IP3 SFP.90

a. IP1 SFP Leaks Entergys witnesses explain that the previous owner identified ongoing IP1 SFP leaks in 1992, and subsequent investigations by the previous owner and NRC Staff concluded the releases were well within the 10 C.F.R. Part 50 ALARA dose guidelines.91 The previous owners corrective actions focused on identifying potential leakage paths within the IP1 plant structures, including groundwater collected in the external IP1 building foundation drain system.92 86 FSEIS at 2-111 (NYS00133A); see also NYSDEC 2007 Community Fact Sheet at 1 (Sept. 2007)

(ENT000325).

87 See GZA Geoenvironmental, Inc., Hydrogeologic Site Investigation Report at 14 (Jan. 7, 2008) (Site Investigation Report) (ENT00331A).

88 Entergy Test. at A61 (ENT000301).

89 See id. at A58-76.

90 Id. at A76.

91 See NRC Inspection Report Nos. 05000003/200710, 05000247/2007010, at 11-12 (May 13, 2008) (May 13, 2008 NRC Inspection Report) (RIV000067).

92 Entergy Test. at A66 (ENT000301).

After completing the purchase of the Indian Point units in September 2001, Entergy began planning to install a separate, more effective and efficient system foundation drain treatment system, which became fully operational by February 2004.93 Entergy believed that this system was adequately capturing the leakage from the IP1 SFPs until 2006, when Entergy discovered that some of the leakage had bypassed the foundation drain systems.94 By this time, however, Entergy already had begun to take proactive efforts to empty and drain the IP1 SFPs.95 In late 2008, IP1 SFP leakage was permanently stopped when Entergy removed all the spent fuel from the IP1 SFPs and subsequently drained the pool water.96 As such, the IP1 SFPs are no longer an active source of radionuclides to the subsurface.97

b. IP2 SFP Leaks Entergys witnesses also describe Entergys comprehensive site investigations following the discovery in August 2005 of shrinkage cracks exhibiting moisture on an excavated exterior IP2 SFP wall.98 Entergy installed a temporary collection device over these cracks to collect any leaking liquid and, in January 2006, prior to backfilling the excavation, installed a permanent leak collection device directly over the cracks, from which collected water is piped to an adjacent building where it is sampled and its volume measured prior to final processing.99 93 Id. at A66.

94 Id.

95 Id.

96 See E-mail from Donald Mayer, Entergy, to John White, NRC, Indian Point 1 (Nov. 5, 2008) (Mayer Nov.

5, 2008 E-mail) (ENT000324).

97 Entergy Test. at A66 (ENT000301).

98 Entergys witnesses also discuss an earlier IP2 SFP leak identified in 1992 by the former previous owner, which was caused by an inadvertent maintenance error that resulted in a liner puncture and was repaired in 1992. See id. at A68.

99 Id. at A69.

During the course of investigating potential SFP leakage sources from 2005 through 2007, Entergy inspected the IP2 SFP using several techniques, including the use of robotic cameras, general visual inspections, and vacuum box testing using divers on areas of the IP2 SFP liner that were suspect based on general visual and robotic camera inspections.100 As part of these efforts, in 2007, Entergy drained the IP2 SFP canal used to transfer spent fuel from the reactor to the main portion of the pool to inspect its stainless steel liner and identified a pinhole leak in a single weld imperfection, which it repaired in December 2007.101 Entergy determined that the IP2 transfer canal leak likely released tritiated pool water into the interstitial space between the SFP liner plates and the SFP walls when the transfer canal was filled above the elevation of the imperfection.102 Although Entergy repaired the transfer canal leak in December 2007, it is likely that maintaining water in the transfer canal during normal plant operations resulted in a generally-continuous release of SFP water into the interstitial space behind the liner over time, and then potentially into the groundwater.103 As discussed in more detail below, following these repairs, the overall quarterly groundwater monitoring data indicate that tritium activity in the IP2 SFP plume have been undergoing long-term, overall reductions.104 Ongoing investigations into more recently-observed increased flow to the leak collection device (i.e., flow rates averaging 1.5 liters per day) indicate that the flow is attributable, at least in part, to prior transient raising of the SFP water to levels above the elevation at which several underwater lighting electrical junction boxes are 100 Id. at A71.

101 Id. at A69. This leak was identified after Entergy submitted the Indian Point LRA.

102 Id.

103 Id.

104 Id. at A70.

mounted.105 This leak path has been temporary repaired through sealing the light boxes, and those boxes are planned to be removed and permanently sealed.106 Notwithstanding the negligible dose associated with such leakage, which is discussed in more detail later, additional evaluations are ongoing.107

c. Integrity of the IP2 SFP In Section VI of the testimony, Entergys witnesses, including, Mr. Mayer and Dr. Esselman, explain that since the discovery of the IP2 SFP hairline cracks in 2005, Entergy has employed several inspection techniques, including the use of robotic cameras, general visual inspections, and divers performing vacuum box testing on areas of the IP2 SFP liner that were suspect based on general visual and robotic camera inspections.108 Overall, Entergy has inspected greater than 65 percent of the IP2 SFP liner, including the transfer canal liner.109 Entergy has identified no liner leaks other than the IP2 transfer canal pinhole leak repaired in December 2007.110 Dr. Esselman further explains that previously-identified IP2 SFP leaks were not the result of age-related degradation mechanisms, and SFP inspections and analyses have not identified aging mechanisms that would cause a SFP leak or that would increase the size of any undetected existing leak.111 Entergy has identified no leaks from the IP3 SFP.112 105 See id. .

106 See id.

107 See id.

108 Id. at A71.

109 Id. at A72.

110 Id. at A69.

111 Id. at A38, 145.

112 Id. at A73.

3. Comprehensive Groundwater Investigations As Mr. Barvenik explains in Section VII of Entergys testimony, following the discovery of the IP2 SFP hairline cracks in September 2005, Entergy conducted a comprehensive, multi-year groundwater investigation of all three Indian Point reactor units and surrounding areas.113 The purpose of the investigation was to identify the nature and extent of radiological groundwater contamination and, by using state-of-the-practice science and technology, assess the hydrogeologic implications and extent of radiological groundwater contamination.114 This led to the development of the January 11, 2008 Site Investigation Report; a key component of which was the Conceptual Site Model, which provides a thorough understanding of site groundwater flow and radionuclide transport at Indian Point.115 As Mr. Barvenik details in Section VIII of Entergys testimony, these investigations provided the foundation necessary for Entergy to establish a Long-Term Groundwater Monitoring Program, which allows Entergy to monitor the existing plumes and to monitor for potential future releases to the subsurface.116 The groundwater monitoring network is extensiveit contains over 150 depth-specific sampling locations at 65 monitoring installations, which allows Entergy to sample groundwater at various depths from the groundwater surface to over 300 feet below the top of bedrock.117 Under the Long-Term Groundwater Monitoring Program, Entergy conducts groundwater monitoring and sampling activities, and evaluates the 113 Id. at A77.

114 Id.

115 Id. at A94.

116 Id. at A93-95.

117 Id. at A95.

data for four primary purposes: dose computations, SSC leak detection, off-site migration monitoring, and plume attenuation monitoring.118 Mr. Barvenik explains in Section IX of the testimony that, as a result of the hydrogeologic investigation and continued groundwater monitoring, Entergy determined that groundwater flows into the Indian Point power block area from the north, east and south, and then flows to the Hudson River to the west; i.e., groundwater, and any radionuclides contained in the groundwater, do not flow off the site from the power block area, except to the Hudson River.119 In addition, Mr. Barvenik explains that Entergy has identified two distinct plumes of groundwater containing radionuclides; one containing principally tritium, and one containing principally strontium.120 As a result of site hydrogeology work, and further investigation, Entergy has concluded that the tritium plume is primarily a result of releases from the IP2 SFP and the strontium plume is primarily a result of past releases from IP1 SFPs.121 Mr. Barvenik also demonstrates the worst case tritium and strontium plumes existed prior to termination of the historic releases from the IP1 and IP2 SFPs, but that the total activity of these two plumes has subsequently been decreasing, with periodic, localized fluctuations in activity and overall reductions in the rate of decrease with time, as would be expected.122 As 118 Id. at A95.

119 Id. at A96.

120 Id. at A97.

121 Id. at A97, 100.

122 Id. at A99.

shown below, the total amount of tritium in the IP2 plume has decreased substantially approximately 89 percentsince the shrinkage crack leaks were contained in late 2005.123 Source: GZA, Changes in Computed Tritium Plume Total Activity Over Time - Exponential Decay Curve Trending of Quarterly Data through Q3 2011 (ENT000332).

Entergys witnesses also explain that the existing monitoring systems consist of an extensive network of over 150 depth-specific sampling locations at 65 monitoring installations, site storm drains, sumps, and building footing drains.124 As they explain, these systems provide reasonable assurance that Entergy can readily detect future releases of radionuclides to groundwater that are substantially smaller than the historically-identified and corrected IP2 SFP leaks.125 Entergy will therefore be able to take appropriate corrective actions if any such future releases are detected.126 123 Id. at A100.

124 Id. at A77, 95.

125 Id. at A101.

126 Id.

To the extent that a small, undetected leak may still exist, it must be smaller than those identified and repaired by Entergy, given the subsequent attenuation of the tritium plume.127 Moreover, there is no indication that this leakage, if it exists, has resulted in any material increase in the tritium plume.128 The total amount of strontium in the IP1 plume has also decreased substantially approximately 70 percentsince the spent fuel was removed from the IP1 SFPs and the pool water was drained in late 2008.129 Source: GZA, Changes in Computed Strontium Plume Total Activity Over Time - Exponential Decay Curve Trending of Quarterly Data through Q3 2011(ENT000333).

4. Monitored Natural Attenuation As discussed in Section IX of Entergys testimony, extensive site investigations led Entergy to select Monitored Natural Attenuation as the appropriate remedial strategy to address Indian Point groundwater contamination.130 In his testimony, Mr. Barvenik demonstrates that 127 Id. at A38.

128 See id.

129 Id. at A66.

130 Id. at A103.

Monitored Natural Attenuation is a recognized and proven remedial approach that allows natural processes to reduce contaminant concentrations.131 Not only does the EPA recognize Monitored Natural Attenuation as valid remedial approach, but Mr. Barvenik also demonstrates that it is the appropriate remediation strategy for Indian Point.132 The NRC Staff and NYSDEC both accepted Monitored Natural Attenuation as the appropriate remediation approach to address the groundwater plumes.133 And while Monitored Natural Attenuation is the primary remedial technology, groundwater extraction through a number of foundation drains also has been, and continues to be, implemented at the site.134 These drains capture radionuclides in groundwater and remove them from the subsurface for subsequent discharge through monitored pathways.135 The IP1 drains are particularly effective at further reducing already-low groundwater dose, capturing the majority of the strontium which would otherwise migrate to the river through the groundwater pathway.136

5. Independent Assessment of Indian Point SFP Leaks As discussed in Section X of Entergys testimony, the NRC (with support from the United States Geological Survey (USGS)) and NYSDEC (with support from the New York State Department of Health (NYSDOH)) independently verified Entergys SFP leaks evaluations and conclusions regarding insignificant public health and environment impacts.137 131 Id. at A104.

132 Id. at A105-06.

133 See May 13, 2008 Inspection Report at vi to viii (RIV000067); NYSDEC 2008 Community Fact Sheet (ENT000345).

134 Id. at A107.

135 Id.

136 Id.

137 See Entergy Test. at A108 (ENT000301).

After Entergy informed the NRC of the hairline cracks identified in the IP2 SFP wall in 2005, which led to the discovery of low levels of tritium contamination in the groundwater, NRC Staff initiated special inspections.138 As part of these efforts, the NRC Staff (and NYSDEC) assessed Entergys plans for more extensive site characterization, and verified groundwater sample results by independently analyzing split samples from monitoring wells.139 After receiving the Site Investigation Report in January 2008, the NRC Staff conducted its own, detailed inspection, the results of which are set forth in the NRC Staffs May 13, 2008 Inspection Report. Specifically, the May 13, 2008 Inspection Report, which confirmed Entergys conclusions, documented several important NRC Staff findings, including:

• Entergy had properly identified the source of groundwater releases as the IP1 and IP2 SFPs;

• No releases were observed or detected from IP3;

• Entergys hydrogeologic site characterization studies provide sufficiently-detailed field observations, monitoring, and test data that supported the development and confirmation of a reasonable Conceptual Site Model;

• The Conceptual Site Model provides a reasonable basis to support the finding that liquid effluent releases from the SFPs migrate west towards the Hudson River and do not otherwise migrate offsite;

• There are no drinking water sources that can be impacted by the contaminated groundwater conditions;

• The annual calculated exposure to the hypothetical maximally-exposed individual relative to the liquid effluent aquatic food exposure pathway is currently, and is expected to remain, less than 0.1 percent of the ALARA guidelines in Appendix I of 10 C.F.R. Part 50, which are considered to be negligible with respect to public health, safety, and the environment;

• There is no evidence of any significant leak or loss of radioactive water inventory from the site that was discernable in the offsite environment; and 138 Id. at A109.

139 Id. at A110-11.

• Entergys remediation approach (i.e., Monitored Natural Attenuation) and plans for long-term monitoring of residual groundwater contamination were reasonable.140 In reaching these conclusions, the NRC Staff relied, in part, on an independent USGS analysis of groundwater transport through fractured bedrock (utilizing geophysical well logging data).141 The NRC Staff also worked closely with NYSDEC by sharing data and assessment information, coordinating independent split sampling of various sample media, and providing combined oversight of Entergy.142 The findings in the May 13, 2008 Inspection Report are summarized and incorporated by reference in the FSEIS.143 NYSDEC (with support from NYSDOH) actively monitored Entergys hydrological investigation, independently analyzed split samples from onsite and offsite monitoring wells, and made recommendations on the work being performed.144 Importantly, NYSDEC performed its own independent assessment of public health and environmental impacts due to the SFP leaks.145 NYSDECs conclusions are consistent with the findings in the Site Investigation Report and confirmed by the NRC Staff. NYSDEC also determined strontium levels in fish near the site are no higher than those collected from other statewide locations.146 Additionally, NYSDEC corroborated Entergys finding that doses to the public through fish consumption are less than one percent of the allowable NRC 10 C.F.R. 50, Appendix I annual dose objectives.147 Thus, 140 See May 13, 2008 Inspection Report at vi to viii (RIV000067); Entergy Test. at A112 (ENT000301).

141 See USGS, Flow-Log Analysis for Hydraulic Characterization of Selected Test Wells at the Indian Point Energy Center, Buchanan, New York (2008) (ENT000341).

142 May 13, 2008 Inspection Report at 1 (RIV000067); Entergy Test. at A112 (ENT000301).

143 See FSEIS at 2-111 (NYS00133A).

144 Entergy Test. at A114 (ENT000301).

145 See FSEIS at 2-112 (NYS00133A); NYSDEC 2007 Community Fact Sheet (ENT000325); NYSDEC Strontium Study (ENT000321).

146 NYSDEC 2007 Community Fact Sheet at 1 (ENT000325).

147 NYSDEC 2008 Community Fact Sheet (ENT000345).

NYSDECs findings confirm that there is no effect on fish from the radionuclide releases to groundwater, and no public health concern.148 In addition, NYSDEC concluded that any radionuclides reaching the Hudson River as a result of the radionuclide releases to groundwater did not violate state and federal drinking water levels.149 Moreover, it accepted Monitored Natural Attenuation as the appropriate remedial approach for addressing the tritium and strontium plumes: With the removal of the active contamination source, Entergys planned use of monitored natural attenuation is an acceptable approach to managing the remaining Sr-90 and H-3 plumes.150 NYSDEC also conducted an enhanced, independent radiological surveillance of several aquatic species in the lower Hudson River and published the results from this assessment in 2009.151 Specifically, NYSDEC concluded that there were no significant differences in the concentrations of strontium in fish and shellfish samples near Indian Point and those sampled upriver at reference locations (including an additional reference location in the river, 50 miles north of Indian Point, so as to be outside the migratory range of the subject fish).152 In addition, NYSDEC concluded that the levels of all radionuclides (including strontium) in fish and shellfish at all of the sampling locations were two to five orders of magnitude lower than established criteria for protecting freshwater ecosystems.153 148 See NYSDEC 2007 Community Fact Sheet at 1 (ENT000325).

149 NYSDEC 2008 Community Fact Sheet at 1 (ENT000345).

150 See id.

151 See NYSDEC Strontium Study (ENT000321).

152 See id. at 8.

153 See id.

6. Compliance with Applicable Dose Limits In Section XI of Entergys testimony, Dr. Paperiello and Dr. Hoffman demonstrate that Entergy complies with applicable dose limits.154 They explain that the NRC limits and ALARA design objectives do not differentiate between normal effluent discharges and unplanned releases such as leaks containing radioactive materials.155 Consistent with NRC guidance and regulations, the Offsite Dose Calculation Manual specifies the methods for performing the required quantification and dose assessment of all pathways, including radioactive groundwater leaving Indian Point.156 Entergy performs calculations annually to account for actual groundwater source terms, release rates, and dilution flows throughout the year.157 These reports show that Entergy meets all NRC 10 C.F.R. Part 20 and Part 50, Appendix I requirements at Indian Point by a very wide margin, as well as EPA 40 C.F.R. Part 190 requirements.158 The combined groundwater and storm water dose is in fact less than 0.1 percent of the ALARA guidelines in Appendix I of 10 C.F.R. Part 50.159

7. Environmental Impacts During the License Renewal Term As discussed below, Entergys witnesses demonstrate that the FSEIS took the required hard look at the relevant environmental consequences of Indian Point SFP leaks and appropriately concludes that human health, groundwater quality, and the Hudson River ecosystem impacts have been and will continue to be SMALL, as defined in NRC regulations 154 Entergy Test. atA118 (ENT000301).

155 Id. at A49.

156 Id. at A51.

157 See IPEC ODCM Pt. II, at 9 (ENT000307); Entergy Test. at A52 (ENT000301).

158 Entergy Test.at A118 (ENT000301).

159 Id.

i.e., impacts are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource.

a. Human Health Impacts Are SMALL As discussed in Section XIII.A of Entergys testimony, human health impacts due to radiation exposures to the public from Indian Point are SMALL. Table B-1 establishes that

[f]or the purposes of assessing radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in the Commissions regulations are considered small. As Entergys witnesses demonstrate, Indian Point appropriately accounts for all release pathways, including the groundwater pathway, and does not exceed any dose limits specified in 10 C.F.R. Part 20 and Part 50, Appendix I of the Commissions regulations, or in EPAs 40 C.F.R. 190.10.160 Therefore, pursuant to Commission regulation, the human health impacts due to radiation exposures from SFP leaks are SMALL.

b. Intervenors Claims About Human Health Impacts Are Invalid The Intervenors witnesses present a series of unsupported claims concerning bioaccumulation, recreational, desalination plant, and other human health impacts.161 Entergys witnesses demonstrate that none of these issues affects the ultimate conclusion that human health impacts are SMALL.

(i) Bioaccumulation Impacts The Intervenors claim that the human health impact evaluation should have considered the potential for strontium bioaccumulation resulting from past 1P1 SFP leaks.162 However, Dr. Hoffman demonstrates that Entergys dose calculations not only account for 160 Id. at A35, 118.

161 Id. at A151.

162 See Intervenors SOP at 39 (RIV000059).

bioaccumulation, but consistent with NRC guidance, conservatively assume that bioaccumulation occurs at the point of the maximum conceivable discharge, prior to mixing and dilution by the Hudson River estuarine systems ebb and flow.163 Thus, Entergys dose calculations likely overestimate actual doses received by individuals who consume fish and other organisms harvested from the Hudson River.164 In fact, Hudson River fish or shellfish sampling shows no radionuclides attributable to Indian Point SFP leaks.165 (ii) Recreational Activity Impacts The Intervenors assert that Entergy and the NRC Staff should have considered additional exposure pathways attributable to Hudson River recreational activities, namely swimming and boating.166 Entergys experts explain that, based on the methodology set forth in Regulatory Guide 1.109, the only significant pathway for liquid releases is consumption of aquatic foods; i.e., Hudson River fish and invertebrates.167 Nevertheless, although there is no regulatory or practicable reason to include alternative non-consumption pathways, Entergys experts demonstrate that if other hypothetical exposure pathways had been considered, such as swimming, boating, and inadvertent consumption of water while swimming, the resulting additional doses to a hypothetical maximally-exposed individual would be a fraction of the 163 Entergy Test. at A151 (ENT000301).

164 Id.

165 Id. at A151, 152, 153.

166 Intervenors SOP at 62-63 (RIV000059).

167 IPEC -CHM-12-005, IPEC ODCM Liquid Effluent Pathway Bases (Feb. 12, 2012) (ENT000329);

Consolidated Edison, An Evaluation to Demonstrate the Compliance of the Indian Point Reactors with the Design Objectives of 10 CFR Part 50, Appendix I, Vol. 1 - Main Report at 39-40, 74 (Feb. 1977)

(Consolidated Edison Evaluation) (ENT000330).

already very small dose from fish consumption alone.168 In other words, even if you added the dose from recreational pathways, it would not result in a material increase in the overall dose.169 (iii) Desalination Facility Impacts The Intervenors assert that Entergy and the NRC Staff should have given additional consideration to potential impacts to a proposed desalination facility located downstream of Indian Point.170 Again, however, Intervenors provide no evidence that adverse human health impacts from such a pathway are anything other than remote and speculative.

Although Indian Point is not required to account for a potential future water use in its dose calculations to demonstrate compliance with NRC and EPA regulations, if and when a desalination plant becomes a reality, a potable water pathway will be included in routine effluent calculations.171 Moreover, Entergys experts demonstrate that it is highly unlikely that the proposed desalination plant would result in any material change in the already small public dose resulting from liquid effluent releases from Indian Point.172 The very document relied upon by the Intervenors, which was prepared by United Water New York, the entity planning the facility, contains results from Hudson River water samples collected in 2007 and 2008, a period which would have included Indian Point SFP leak groundwater releases to the Hudson River.173 Notably, those results show that all EPA drinking water standards for radionuclides were met in untreated water.174 In addition, as Entergys 168 Entergy Test. at A147 (ENT000301).

169 See IPEC-CHM-12-005 (ENT000329); Consolidated Edison Evaluation at 39-40, 74 (ENT000330).

170 Intervenors SOP at 64-66 (RIV000059).

171 Entergy Test. at A149 (ENT000301).

172 Id.

173 Id.

174 Id.

experts explain, the detected radionuclides, albeit at a very low level, are the result of natural background radioactivity and residual weapons testing fallout, with no observable contributions from the Indian Point releases.175 More recent testing as part of the desalination plant pilot study has confirmed these results.176 In summary, these empirical data show that any increase in dose to the public due to the operation of a United Water reverse-osmosis water treatment facility at Haverstraw would be minimal, radionuclide levels in the drinking water produced would be a very small fraction of EPAs drinking water standards, and those radionuclides would be unconnected to IP2 and IP3.

(iv) Other Human Health Impacts The Intervenors argue that Entergy and the NRC Staff should have considered human health impacts associated with doses well within NRC limits.177 Any claim objecting to releases within these limits amounts to an impermissible challenge to NRC regulations.178 Nonetheless, Entergys experts directly demonstrate that the relevant dose is so small as to be inconsequential to human health or the environment.179 For example, in 2010, the total annual Indian Point radiation dose to a hypothetical maximally-exposed individual from groundwater and storm water releases was 0.0002 mrem.180 By comparison, the average annual 175 Id. at A150.

176 United Water Haverstraw Water Supply Project 6 NYCCRR Part 601 Water Supply Permit Application at 4-5 to 4-7; id. § 4, App. B, Tbl. 1A at 1, Tbl. 1B at 6, Tbl. 2A at 13, Tbl. 2B at 18. (ENT00320A-D).

177 Intervenors SOP at 63 (RIV000059).

178 See Millstone, CLI-01-24, 54 NRC at 364 (If the Petitioners are objecting to all possible routine adjustments in effluent releases, then their claim amounts to an impermissible general attack on our regulations governing public doses at operating nuclear plants.); Pilgrim, LBP-06-23, 64 NRC at 315 (refusing to allow litigation on contention argument suggesting doses not in violation of NRC regulations might be harmful to health).

179 Entergy Test. at A134 (ENT000301).

180 See 2010 Effluent Release Report: NL-11-068, at 34 (ENT000319).

radiation exposure for the typical individual in the United States is 620 mrem.181 Indeed, the typical radiation exposure to a person from eating a banana, which contains small amounts of radioactive potassium, is 0.01 mrem.182 As the Intervenors concede, they have performed no dose calculations to refute this conclusive evidence.183 Although they cite the National Research Council BEIR VII report (RIV000093), that report only confirms the inconsequential nature of the dose from the Indian Point groundwater and storm water pathway.184 Applying the BEIR VII reports linear no-threshold model, the risk from 0.0002 mrem (the 2010 total annual radiation dose to a hypothetical maximally-exposed individual from groundwater and storm water releases) is 1 additional incidence of cancer in 5 billion.185 In other words, there would need to be 5 billion people (almost the entire worlds population) maximally exposed to Indian Points groundwater releases to create the expectation of one additional incidence of cancer.186 The very low dose risk demonstrates conclusively that SFP leaks have no material negative human health effect.187

c. Groundwater Quality Impacts Are SMALL As discussed in Section XIII.B of Entergys testimony, groundwater quality impacts are SMALL. Entergys witnesses explain that there has been a long-term decrease, which is 181 National Council on Radiation Protection and Measurements (NCRP), NCRP Report No. 160, Ionizing Radiation Exposure of the Population of the United States (2009) (ENT00269A) (stating that the total effective dose per individual in the U.S. is 6.2 mSv or 620 mrem).

182 Entergy Test. at A135 (ENT000301).

183 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 at 11 (Feb. 17, 2012) (Mr. Gundersen has not performed his own specific dose assessment in relation to the releases from Indian Point.).

184 Entergy Test. at A148 (ENT000301).

185 Id.

186 Id.

187 Id.

expected to continue, in radionuclide activity in the overall Indian Point site groundwater and that specifically reaching the Hudson River.188 Based on sampling and testing of Hudson River water in the vicinity of Indian Point and at control locations away from Indian Point, the migration of low levels of radionuclides to the Hudson River has had no discernible effect on the level of radionuclides contained in Hudson River water.189 Entergys network of groundwater monitoring wells is sufficient to allow Entergy to detect comparable potential future releases to groundwater at the site and respond rapidly and appropriately to such releases.190 Thus, because contaminated water does not flow offsite, except to the Hudson River, and there are no current or reasonably-anticipated users for onsite groundwater, the impacts on groundwater quality during license renewal are SMALL.191

d. Intervenors Claims About Groundwater Impacts Are Invalid The Intervenors assert that Entergy and NRC Staff improperly minimize the significance of Indian Points groundwater contamination by focusing on dose-related impacts.192 In doing so, the Intervenors appear to concede that the dose analysis demonstrates that Indian Point SFP leaks have not, and will not, adversely affect public health or safety. Instead, citing Council on Environmental Quality (CEQ) regulations, the Intervenors claim that the NRC should have considered other factorsnamely, [t]he degree to which the effects on the quality of the human environment are likely to be highly controversial, and whether the proposed action threatens a 188 Id. at A137.

189 Id.

190 Id.

191 Id.

192 Intervenors SOP at 49 (RIV000059).

violation of Federal, State, or local law or requirements.193 As discussed below, these arguments are unsupported and do not affect the ultimate conclusion that groundwater quality impacts are SMALL.

(i) SFP Leak Environmental Impacts Are Not Controversial The Intervenors reference to the highly controversial nature of radiological leaks and alleged negative public perceptions misconstrues CEQ regulations.194 By focusing on widely-attended NRC public meetings and certain negative public comments, the Intervenors essentially equate public opposition with highly controversial environmental impacts. Courts, however, have made clear that the CEQ controversy regulation applies only when the environmental impacts are highly controversial, not merely when there is some public opposition to the action.195 Here, the environmental impacts from SFP leaks are not highly controversial as Entergy, NRC Staff, and NYSDEC all agree there are no adverse environmental impacts.

Accordingly, there is no merit to the Intervenors suggestion that public opposition should have played some role in the FSEIS findings about the SFP leaks environmental significance.

(ii) Indian Point SFP Leaks Do Not Violate Water Quality Standards The Intervenors claim that Indian Point SFP leaks violate New York State water quality standards is incorrect.196 The Intervenors claim that Indian Point SFP leaks violate New York State water quality standards by causing: (1) onsite groundwater to exceed EPA drinking water 193 Id. at 50 (quoting 40 C.F.R. § 1508.27(b), (d)).

194 See id. at 55-56.

195 See, e.g., Socy Hill Towers Owners Assn v. Rendell, 210 F.3d 168, 184 (3d Cir. 2000); Orangetown v.

Gorsuch, 718 F.2d 29, 39 (2d Cir. 1983); Rucker v. Willis, 484 F.2d 158, 162 (4th Cir. 1973); Hanly v.

Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972).

196 Intervenors SOP at 50-54 (RIV000059).

Maximum Contaminant Levels (MCLs) and (2) releases to the Hudson River of high-level radioactive waste.197 First, EPA MCLs apply only to drinking water from EPA defined public water systems and, therefore, do not apply to Indian Point site groundwater.198 Indian Point is not a drinking water provider, and no plant-related radionuclides attributable to the Indian Point leakage have affected drinking water supplies in the Indian Point vicinity, let alone in excess of EPA MCLs.199 Nor is it reasonable to expect that groundwater onsite will be used for drinking water in the foreseeable future because it is impracticable to develop a potable water source from Indian Point groundwater for reasons completely unrelated to SFP leaks.200 Entergys witnesses acknowledge that EPA MCLs are sometimes used as a comparison benchmark for screening purposes, but explain that if groundwater levels are above those levels, the next step is to evaluate whether or not there is a completed exposure pathway. As the FSEIS appropriately explains, in the case of Indian Point, groundwater travels into the Hudson River and that pathway has been thoroughly evaluated and found to have SMALL impacts.

Second, the Intervenors argument concerning high-level waste also lacks merit. High-level radioactive waste is defined as: (1) irradiated reactor fuel; (2) liquid wastes from reprocessing irradiated reactor fuel; and (3) solid wastes from which such liquid waste have been 197 Id. at 55.

198 See 40 C.F.R. §§ 141.1. 141.2 (indicating that federal drinking regulations apply to public water systems); see also May 13, 2008 NRC Inspection Report at 7 (RIV000067); SRM SECY-97-046A: Final Rule on Radiological Criteria for License Termination at 74 (Mar. 31, 1997) (ENT000356).

199 See NYSDEC 2007 Community Fact Sheet (ENT000325) (There are no known impacts to any drinking water sources [from Indian Point leaks]); NYSDEC 2008 Community Fact Sheet (ENT000345) (No drinking water sources are effected [by Indian Point leaks]); May 13, 2008 NRC Inspection Report at vii (RIV000067)

(Currently, there is no drinking water exposure pathway to humans that is affected by the contaminated groundwater conditions at Indian Point Energy Center. Potable water sources in the area of concern are not presently derived from groundwater sources or the Hudson River, a fact confirmed by the New York State Department of Health.).

200 Entergy Test. at 90 (ENT000301).

converted.201 Nothing in the Intervenors evidentiary submissions suggests that the low-level radionuclides in water that leaked from the IP1 and IP2 SFPs, principally tritium and strontium, meets this definition. In fact, NYSDEC agrees that these releases are not high-level radioactive waste under State law.202

e. Aquatic Ecology Impacts Are SMALL As discussed in Section XIII.C of Entergys testimony, Hudson River aquatic ecosystem impacts are also SMALL because radionuclide migration from Indian Point groundwater to the Hudson River has had no discernible effect on radionuclide levels in Hudson River water.203 Further, calculations by Dr. Hoffman confirm that dose rates from Indian Point groundwater releases to the Hudson River are orders of magnitude below widely-accepted guidelines used to assess the potential for ecologically significant impacts.204 The independent dose assessment by NYSDEC, reviewed by the National Marine Fisheries Service (NMFS) reaches the same conclusion.205 Accordingly, these evaluations all demonstrate that Hudson River aquatic ecosystem impacts are SMALL.

f. Intervenors Claims About Aquatic Impacts Are Invalid The Intervenors witnesses present a series of unsupported claims concerning aquatic impacts, which Entergys witnesses demonstrate do not affect the ultimate conclusion that aquatic impacts are SMALL.

201 10 C.F.R. §§ 60.2, 63.2. While neither State law nor the Clean Water Act define high-level radioactive waste, EPA regulations define high-level radioactive waste according to the definition contained in the Nuclear Waste Policy Act of 1982 (NWPA). See 40 CFR 191.02(h). The NWPA gives NRC authority to define this term. 42 U.S.C. § 10101(12).

202 Joint Application for CWA § 401 Water Quality Certification, Transcript of Cross-Examination of Paul J.

Kolakowski, NYSDEC at 2736-37 (Nov. 15, 2011) (ENT000365).

203 Entergy Test. at A36, 137 (ENT000301).

204 Id. at A141.

205 See id. at A142.

First, Mr. Gundersens and Dr. Stewarts assertions that strontium-90 bioaccumulation could impact Hudson River fish in the future are overly simplistic.206 Whether or not releases of strontium-90 (and other radionuclides) from Indian Point result in a future material impact to Hudson River fish will depend on the dose rate delivered to the fish, not simply whether bioaccumulation takes place.207 Mr. Gundersen and Dr. Stewart do not estimate the dose rate to fish from Indian Point releases of strontium-90 and other radionuclides.208 Dr. Hoffman, however, performed such an assessment and found that dose rates are orders of magnitude below the dose which accepted guidelines establish as the dose at which environmentally significant impacts might occur.209 In addition, a NYSDEC ecological dose rate and risk assessment examining radionuclides in Hudson River fish also found the combined total dose rate well below the level at which environmentally significant impacts might occur.210 Second, the Intervenors opine that radionuclides from Indian Point may have impacted Hudson River fish.211 In making this speculative statement, the Intervenors offer no evidence of any measurable adverse impact to aquatic biota. Nor could they, as Riverkeepers own consultant performed a study of Hudson River shellfish and sediment to assess the long-term environmental impacts from Indian Point radiological releases and found that radionuclides in 206 Entergy Test. at A151 (ENT000301).

207 Id..

208 Id.

209 Id. at 151. As Dr. Hoffman and Dr. Paperiello explain, the NRC has not issued radiation dose limits to protect aquatic biota because radiation dose limits protective of persons are also protective of other species. Id. at A139. The U.S. Department of Energy (DOE) has, however, promulgated specific guidelines that are generally accepted as conservative benchmarks, below which there would be no negative impacts. Id. at A140.

210 Id. at A151.

211 See Intervenors SOP at 58-69 (RIV000059).

shellfish and sediment were below detection levels and not elevated, respectively.212 Even though their consultant found that the data is solid,213 this sampling is not mentioned in the Intervenors prefiled direct testimony.

Instead, the Intervenors put forth Mr. Gundersen, who relies on data from the 1970s and 1980s that he contends showed detectable levels of strontium-89 and strontium-90 in fish and shellfish. Entergys experts demonstrate that Mr. Gundersens claim is without scientific merit because these strontium levels are consistent with levels resulting from nuclear weapons testing fallout during these periods.214 Furthermore, the presence of strontium-89 is an indication that such fallout occurred within a period of several months of the sampling, not that releases were from Indian Point.215 Third, Mr. Gundersen speculates that the NYSDEC study finding that radionuclide levels in fish and shellfish samples taken near and upstream of Indian Point did not differ must not have accounted for other possible radionuclide sources.216 As Entergys witnesses explain, Mr. Gundersens concern is irrelevant because, regardless of the source, the study found that the dose to Hudson River aquatic biota was orders of magnitude below relevant guidelines used to identify potential ecologically significant impacts.217 Similarly, Dr. Hoffmans Indian Point-212 See E-mail from Christopher J. Gobler, Ph.D., Stony Brook Univ., to Scott Cullen, Riverkeeper (Aug. 17, 2007) (Bates # RK0001060) (ENT000366); Study of Hudson River Finfish, Shellfish and Sediment to Assess the Long-term Environmental Impacts of Liquid Radiological Releases from Indian Point on the Hudson River Biota (Bates # RK0001105) (ENT000367).

213 E-mail from Christopher J. Gobler, Ph.D., Stony Brook Univ., to Phillip Musegaas, Riverkeeper (July 10, 2008) (Bates # RK0001069) (ENT000366).

214 Entergy Test. at A152 (ENT000301).

215 Id.

216 See Intervenors SOP at 60 (RIV000059).

217 NYSDEC Strontium Study at 8 (ENT000321).

specific calculations demonstrate that dose rates to aquatic biota from Indian Point are well below these guidelines.218 Entergys witnesses also explain that there is no reason to question the NYSDEC study conclusion that there are no differences in the concentrations of strontium-90 from locations near Indian Point and Hudson River locations upstream and downstream.219 The NYSDEC study and its references make clear that the strontium-90 detected in Hudson River fish and shellfish originated from widespread fallout from nuclear weapons atmospheric testing.220 Mr. Gundersen engages in speculation when he suggests strontium-90 releases from the Knolls Atomic Power Lab contributed to the lack of a significant difference among the strontium-90 concentrations in the samples taken at locations upstream and downstream from Indian Point.

Finally, the reliability of the NYSDEC study is demonstrated by the fact that the National Marine Fisheries Service (NMFS), the federal agency responsible for implementing the Endangered Species Act with respect to marine and anadromous species, relied upon the NYSDEC study when NMFS concluded that the effects to shortnose sturgeon from radionuclides [are] insignificant and discountable.221

8. Intervenors Assertions About the Significance of Past IP1 SFP Leaks Lack Merit The Intervenors erroneously assert that Entergy and NRC Staff dismiss the significance of past IP1 SFP leaks, asserting that radionuclides associated with these leaks will continue to be released to the groundwater and the Hudson River throughout the proposed license renewal 218 Entergy Test. at A153 (ENT000301).

219 NYSDEC Strontium Study at 6 (ENT000321).

220 Entergy Test. at A152 (ENT000301).

221 NMFS 2011 Biological Opinion at 51 (ENT000355).

period and maintaining that such IP1 SFP leaks are somehow relevant to the current license renewal application.222 As an initial matter, this proceeding concerns only Entergys LRA for IP2 and IP3.

Environmental impacts from historic IP1 SFP leaks are not impacts caused by the IP2 and IP3 license renewal. Nor have the Intervenors demonstrated any nexus between the proposed license renewal of IP2 and IP3the sole focus of this proceedingand the future decommissioning process for IP1. Therefore, there was no need for the FSEIS to separately evaluate environmental impacts from past IP1 SFP leaks.223 Further, as the Intervenors are aware, the IP1 SFPs were emptied and drained in December 2008more than 3 years ago.224 Nevertheless, Entergys witnesses explain that the Site Investigation Report and subsequent Long-Term Groundwater Monitoring thoroughly address and account for strontium and other radionuclides from past IP1 SFP leaks as Entergy (and the NRC Staff) investigated groundwater contamination on the Indian Point site as a whole and resulting cumulative environmental impacts.225 For example, Entergy evaluated the worst case depiction of the IP1 SFP strontium plume and established it had and will continue to have no material impact on public health or the environment.226 Even so, Entergy continues to operate and maintain the IP1 222 See Intervenors SOP at 38-39 (RIV000059).

223 See CEQ Guidance on Consideration of Past Action in Cumulative Effects Analysis 1-2 (June 24, 2005)

(ENT000146) (explaining that, rather than separately evaluating the environmental effects of individual past actions, agencies may take existing conditions as the baseline from which to measure any different impacts from the proposed action).

224 See Mayer Nov. 5, 2008 E-mail (ENT000324).

225 See Entergy Test. at 113 (ENT000301).

226 Entergy Test. at A34 (ENT000301).

foundation collection drain treatment system which captures a large majority of the residual IP1 contamination partitioning off of the subsurface materials into the groundwater.227

9. Environmental Impacts Will Likely Remain SMALL Notwithstanding the Intervenors Speculation About Future SFP Leaks The Intervenors incorrectly claim that a key premise of Entergys and NRCs NEPA evaluations is that there are no active IP2 SFP leaks.228 Thus, according to the Intervenors, the FSEIS is inadequate because IP2 SFP leaks have continued since 2005, and because it is impossible for Entergy to definitively rule out other current or likely future leaks.229 As an initial matter, neither Entergy nor the NRC Staff premised their evaluations on the absence of active IP2 SFP leaks. The Site Investigation Report, as well as Entergys license renewal RAI responses, acknowledged that additional active leaks cannot be completely ruled out, but, if any exist, the data indicate that they are very small and of no material impact.230 Likewise, the FSEIS, by incorporating by reference the findings in the NRC Staffs May 13, 2008 Inspection Report, recognized the potential for additional unidentified IP2 SFP leaks.231 Moreover, the Intervenors cite no technical or legal support requiring that Entergy definitively exclude the possibility of future SFP leaks.232 As the Commission has made clear, NEPA is not absolute, but rather is governed by a rule of reason.233 Entergys witnesses demonstrate that the FSEIS reasonably addresses SFP leaks by evaluating the bounding, worst 227 Id. at A38.

228 Intervenors SOP at 33 (RIV000059).

229 See id. at 30-33.

230 Site Investigation Report at 2-4, 92; NL-08-023, Attach. 1, at 2.

231 May 13, 2008 Inspection Report, Encl. at 10; see also FSEIS at 2-111.

232 Intervenors SOP at 30-33.

233

` Private Fuel Storage, LLC (Indep. Fuel Storage Installation), CLI-02-25, 56 NRC 340, 347 (2002).

case depiction of the IP2 SFP tritium plume.234 This represents the highest, upper bound concentrations for samples taken at any time from the investigations beginning, and thus encompasses releases prior to installing the leak collection device and repairing the SFP transfer canal leak.235 Environmental impacts associated with these leaks have already been evaluated and shown to have no impact on public health or the environment.236 Furthermore, through the extensive Long-Term Groundwater Monitoring Program, Entergy has the ability to identify, characterize, and respond appropriately to any future radionuclide releases to the groundwater of a magnitude comparable to prior SFP leaks should they occur during the Indian Points future operation.237 Entergy will therefore be able to take timely and appropriate corrective action upon detecting any such releases.238 Although a smaller hypothetical leak might in theory go undetected, it would be essentially impossible to detect offsite and its impact would be bounded by the impacts shown in previous evaluations (i.e., they would be SMALL).239 The Intervenors also rely on Mr. Gundersons generalized assertions and reference to the bathtub curve to suggest that future IP2 SFP leaks are likely. Mr. Gundersen, however, does not identify any age-related degradation mechanism that would impact the IP2 SFP. Nor does he cite to any Indian Point-specific data or engineering analysis supporting his belief.

234 See Entergy Test. at A97 (ENT000301).

235 Id.

236 Id.

237 Id. at A102.

238 Id. at A101.

239 Id. at A74.

To the contrary, Dr. Esselman explains that IP2 SFP evaluations confirm that no active time-dependent aging mechanism is currently occurring in the SFP.240 Since the discovery of the IP2 SFP hairline cracks, Entergy has employed several inspection techniques, including robotic cameras, general visual inspections, and divers performing vacuum box testing of IP2 SFP liner areas that general visual and robotic camera inspections indicated might be suspect.241 Overall, greater than 65 percent of the IP2 SFP liner, including the transfer canal, has been inspected.242 Notwithstanding the theoretical possibility that a pinhole leak exists in the IP2 SFPs unexamined portion, evaluations performed to date have identified no mechanism for such a leak to get worse or for a new leak to develop.243 Thus, aging mechanisms are not expected to cause new SFP leaks or increase leakage rates through any existing leaks.244 In summary, the evaluation of the bounding, worst-case depiction of the tritium plume, Entergys extensive Long-Term Groundwater Monitoring Program, and IP2 SFP engineering evaluations that identify no mechanism for such a leak to get worse or for a new leak to develop, provide reasonable assurance that the FSEIS conclusions are appropriate notwithstanding the theoretical potential for ongoing or future IP2 SFP leaks.245

10. Intervenors Arguments Concerning Mitigation Are Flawed The Intervenors assert that Entergy and NRC Staff should have considered additional or alternative mitigation measures, in particular: (1) extracting contaminated groundwater; (2) instituting preventative measures to identify leaks before they occur; (3) enhancing aquatic 240 Id. at A145.

241 Id. at A71.

242 Id. at A72.

243 Id. at A73.

244 Id. at A38.

245 Entergy Test. at A157 (ENT000301).

ecology monitoring; and (4) increasing public access to information about leaks and groundwater contamination.246 As discussed throughout this Statement, Entergys witnesses demonstrate that the new information regarding radionuclide leaks from IP1 and IP2 SFPs into the groundwater and Hudson River is not significant. Given the lack of environmental significance, there was no need for the FSEIS to consider additional or alternative mitigation measures. As the D.C. Circuit has held, an agency may decline to discuss mitigation measures when it believes the environmental impact of the action will be minor.247 NEPA requires only that possible mitigation measures be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.248 Thus, in this case, it is entirely appropriate not to evaluate potential additional mitigation for impacts that are SMALL. Nevertheless, as summarized below, essentially all of the Intervenors suggested mitigation has already been considered or put in place.

First, Entergys witnesses explain that Entergy and the NRC Staff reasonably considered, but rejected, groundwater extraction.249 Specifically, the NRC Staff May 13, 2008 Inspection Report clearly considers and explains the basis for rejecting the extraction option:

Considering factors including the radiological and non-radiological contamination condition at Unit 1, Entergy determined that any immediate remediation (such as groundwater pump down) of the existing contaminated groundwater in the vicinity of the Unit 2 spent fuel pool would be inappropriate at this time. Such remedial action could adversely affect the current groundwater contamination condition, in particular, it would create a situation in which contaminated water that is currently collected, monitored 246 See Intervenors SOP at 67-74 (RIV000059).

247 See Transmission Access Policy Study Grp. v. FERC, 225 F.3d 667, 737 (D.C. Cir. 2000) (upholding agencys decision to decline to adopt mitigation measures to address a problem that it believed might not even develop).

248 City of Carmel-by-the-Sea v. U.S. DOT, 123 F.3d 1142, 1154 (9th Cir. 1997).

249 May 13, 2008 Inspection Report, Encl. at 13; see also FSEIS at 2-111.

and discharged from the Unit 1 drain systems in accordance with NRC regulatory requirements, to spread elsewhere unnecessarily.

Accordingly, the NRC agrees that, in the absence of any over-riding public health and safety concern, pump and treat remediation of the Unit 2 SFP could adversely affect the spread of the Unit 1 groundwater contamination plume and is not advisable.250 Entergys experts further explain the detailed consideration that was given to groundwater extraction. This included a pilot pumping test showing that although it is possible to effectively capture the tritium plume around the IP2 SFP, the detection of strontium proximate to the pumping well shortly after the testing also demonstrated that pumping was more likely than originally predicted to cause strontium migration from IP1 to IP2.251 Such pumping-induced migration would lead to partitioning and, thus, adsorption of strontium to subsurface geologic materials, resulting in increased residual contamination over an additional acre of land between IP1 and IP2.252 This demonstrated that there was a substantial disadvantage to groundwater extraction.253 Thus, Entergy selected, and NRC Staff and NYSDEC accepted, Monitored Natural Attenuation; a recognized and proven remedial approach that allows natural processes to reduce contaminant concentrations.254 While Monitored Natural Attenuation is the primary remedial technology, groundwater extraction through a number of foundation drains also has been, and continues to be, implemented at the site.255 Second, Entergys experts address the extensive assessments Entergy has already performed to assess the potential for new SFP leaks. Overall, greater than 65 percent of the IP2 250 May 13, 2008 Inspection Report, Enclosure at 13.

251 Entergy Test. at A155 (ENT000301).

252 Id.

253 See id.

254 Id. at A103.

255 Id. at A107.

SFP liner, including the transfer canal, has already been inspected.256 Evaluations of the IP2 SFP confirm that no active time-dependent aging mechanism is currently occurring in the SFP.257 Based on this finding, there was no reason for the FSEIS to discuss the inspection of the entire liner.258 Third, although the Intervenors suggest additional enhanced aquatic monitoring, Entergy already performs ongoing radiological surveillance under the REMP involving samples of edible tissues of two or more fish or invertebrate species in the vicinity of Indian Point and a reference station about 21 miles from the site.259 The NYSDEC study discussed the one-time enhancement in 2007 to Entergys REMP sampling to look at additional species and locations even farther upstream of Indian Point.260 All results to dateincluding those published by NYSDEC and those by the Intervenors consultantreach the same conclusion: IP1 and IP2 SFP leaks have had no discernible effect on the level of radionuclides contained in Hudson River water and aquatic biota.261 Dr. Hoffmans calculations confirm that dose rates from releases of Indian Point groundwater to the Hudson River are orders of magnitude below accepted dose guidelines at which environmentally significant impacts might occur.262 Because there are no adverse impacts to the Hudson River ecosystem, there was no reason for the FSEIS to consider additional 256 Id. at A72.

257 Id. at A145.

258 Id. at A73.

259 Id. at A142.

260 Id.

261 Id. at A36, 137.

262 Id. at A141.

enhanced aquatic monitoring beyond that already conducted in accordance with established NRC regulations.263 Finally, the Intervenors suggest that Entergy and the NRC Staff should have considered increasing public access to information about SFP leaks and groundwater contamination.264 The Intervenors provide no explanation of why or how the disclosure of such information would qualify as mitigation as that term is defined in the context of NEPA.265 For example, they provide no explanation how additional information might further reduce already SMALL impacts.

Moreover, Entergy already submits an Annual Radioactive Effluent Release Report, which reports the amount of radioactive material released to the environment during the past year, and an Annual Radiological Environmental Operating Report, which reports the results of Entergy conducted surveys of radiation levels in both unrestricted and controlled areas as part of a Radiological Environmental Monitoring Program. NRC makes both reports publicly available.266 These and all other evaluations to date demonstrate that the resulting environmental impacts are SMALL.267 The FSEIS incorporates this information, as well additional publicly available from the Site Investigation Report, NRC Staff inspection reports, and NYSDEC evaluations that already contain considerable information about SFP leak impacts.268 263 Entergy Test. at A37.

264 Intervenors SOP at 74 (RIV000059).

265 See 40 C.F.R. § 1508.20.

266 See Entergy Test. at 53 (ENT000301).

267 See id. at A33. 35-38, 143, 157.

268 Entergy Test. at A124.

V. CONCLUSION For the foregoing reasons, the FSEIS takes the required hard look at environmental impacts of Indian Point SFP leaks. Entergys experts demonstrate that the SFP leaks environmental impacts on human health, groundwater quality, and ecological resources are all SMALL, as that term is used in long-standing NRC regulations, and that NRC has fully met its NEPA obligations. The Intervenors thus fail to substantiate their claims that the FSEIS improperly ignores or minimizes such impacts. Accordingly, Entergy respectfully requests that the Board resolve Consolidated Contention RK-EC-3/CW-EC-1 in favor of Entergy and the NRC Staff.

Respectfully submitted, Signed (electronically) by Jonathan M. Rund Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Jonathan M. Rund, Esq.

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

Washington, D.C. 20004 Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com William B. Glew, Jr., Esq.

William C. Dennis, Esq.

ENTERGY NUCLEAR OPERATIONS, INC.

440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wglew@entergy.com E-mail: wdennis@entergy.com Counsel for Entergy Nuclear Operations, Inc.

Dated in Washington, D.C.

this 29th day of March 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

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

)

(Indian Point Nuclear Generating Units 2 and 3) )

) March 29, 2012 CERTIFICATE OF SERVICE I certify that, on March 29, 2012, copies of Entergys Statement of Position, Testimony, and associated exhibits on Consolidated Contention RK-EC-3/CW-EC-1 were served electronically with the Electronic Information Exchange on the following recipients:

Administrative Judge Administrative Judge Lawrence G. McDade, Chair Dr. Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.

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

(E-mail: Lawrence.McDade@nrc.gov)

Administrative Judge Office of the Secretary Dr. Richard E. Wardwell Attn: Rulemaking and Adjudications Staff Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@nrc.gov)

Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)

Office of Commission Appellate Adjudication Josh Kirstein, Law Clerk U.S. Nuclear Regulatory Commission Katherine Tucker, Law Clerk Mail Stop: O-7H4M Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail.resource@nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Josh.Kirstein@nrc.gov)

(E-mail: Katie.Tucker@nrc.gov)

Sherwin E. Turk, Esq. Melissa-Jean Rotini, Esq.

Beth N. Mizuno, Esq. Assistant County Attorney David E. Roth, Esq. Office of Robert F. Meehan, Esq.

Brian G. Harris, Esq. Westchester County Attorney Anita Ghosh, Esq. 148 Martine Avenue, 6th Floor Office of the General Counsel White Plains, NY 10601 Mail Stop: O-15D21 (E-mail: MJR1@westchestergov.com)

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)

(E-mail: Beth.Mizuno@nrc.gov)

(E-mail: david.roth@nrc.gov)

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

(E-mail: anita.ghosh@nrc.gov)

Manna Jo Greene Thomas F. Wood, Esq.

Stephen C. Filler Daniel Riesel, Esq.

Karla Raimundi Victoria Shiah, Esq.

Hudson River Sloop Clearwater, Inc. Sive, Paget & Riesel, P.C.

724 Wolcott Ave. 460 Park Avenue Beacon, NY 12508 New York, NY 10022 (E-mail: mannajo@clearwater.org) (E-mail: driesel@sprlaw.com)

(E-mail: karla@clearwater.org) (E-mail: vshiah@sprlaw.com)

(E-mail: stephenfiller@gmail.com)

Joan Leary Matthews, Esq. John Louis Parker, Esq.

Associate Commissioner Office of General Counsel, Region 3 Hearings and Mediation Services NYS Dept. of Environmental Conservation New York State Department of 21 S. Putt Corners Road Environmental Conservation New Paltz, New York 12561-1620 625 Broadway, 14th Floor (E-mail: jlparker@gw.dec.state.ny.us)

Albany, NY 12233-1500 (E-mail: jlmatthe@gw.dec.state.ny.us)

John J. Sipos, Esq. Michael J. Delaney, Esq.

Charlie Donaldson Esq. Vice President -Energy Department Assistant Attorneys General New York City Economic Development Office of the Attorney General Corporation (NYCDEC) of the State of New York 110 William Street New York, NY 10038 The Capitol mdelaney@nycedc.com Albany, NY 12224-0341 (E-mail: John.Sipos@ag.ny.gov)

Phillip Musegaas, Esq. Daniel E. ONeill, Mayor Deborah Brancato, Esq. James Siermarco, M.S.

Riverkeeper, Inc. Village of Buchanan 20 Secor Road Municipal Building Ossining, NY 10562 236 Tate Avenue (E-mail: phillip@riverkeeper.org) Buchanan, NY 10511-1298 (E-mail: dbrancato@riverkeeper.org) (E-mail: vob@bestweb.net)

(E-mail: smurray@villageofbuchanan.com)

Robert D. Snook, Esq. Janice A. Dean, Esq.

Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General State of Connecticut of the State of New York 55 Elm Street 120 Broadway, 26th Floor P.O. Box 120 New York, New York 10271 Hartford, CT 06141-0120 (E-mail: Janice.Dean@ag.ny.gov)

(E-mail: Robert.Snook@po.state.ct.us)

Signed (electronically) by Jonathan M. Rund Jonathan M. Rund, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave., NW Washington, DC 20004 Phone: (202) 739-5061 Fax: (202) 739-3001 E-mail: jrund@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.

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