ML12335A617
| ML12335A617 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/22/2011 |
| From: | Brancato D Riverkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21642, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12335A617 (79) | |
Text
United States Nuclear Regulatory Commission Official Hearing Exhibit Entergy Nuclear Operations, Inc.
In the Matter of:
(Indian Point Nuclear Generating Units 2 and 3)
ASLBP #: 07-858-03-LR-BD01 Docket #: 05000247 l 05000286
Exhibit #: RIV000059-00-BD01 Identified: 10/15/2012
Admitted: 10/15/2012 Withdrawn:
Rejected: Stricken:
Other:
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
Entergy Nuclear Operations, Inc. ) Docket Nos.
(Indian Point Nuclear Generating ) 50-247-LR Units 2 and 3) ) and 50-286-LR
___________________________________________ )
RIVERKEEPER AND HUDSON RIVER SLOOP CLEARWATER INITIAL STATEMENT OF POSITION REGARDING CONSOLIDATED CONTENTION RK-EC-3/CW-EC-1 (SPENT FUEL POOL LEAKS)
December 22, 2011
TABLE OF CONTENTS BACKGROUND ............................................................................................................................ 1 APPLICABLE LEGAL AND REGULATORY REQUIREMENTS............................................. 8 I. NEPA REQUIREMENTS ................................................................................................ 8 II. NRC REQUIREMENTS ................................................................................................ 13 III. OTHER RELEVANT REQUIREMENTS ................................................................... 16 IV. BURDEN OF PROOF .................................................................................................... 19 DISCUSSION ............................................................................................................................... 20 I. INTERVENORS WITNESSES .................................................................................... 20 II. INTERVENORS EVIDENCE ...................................................................................... 21 A. Entergy and NRC Staffs Assessment of Spent Fuel Pool Leaks and Groundwater Contamination at Indian Point ................................................................................. 21
- i. Entergys Assessment ...................................................................................... 21 ii. NRC Staffs Assessment .................................................................................. 23 B. Inadequacies of Entergy and NRC Staffs Assessments of Spent Fuel Pool Leaks
...................................................................................................................................... 28
- i. Failure to Recognize and Assess Ongoing and Likely Future Leaks from the Indian Point Unit 2 Spent Fuel Pool............................................................... 29 ii. Failure to Properly Consider the Contamination Resulting from Indian Point Unit 1 Spent Fuel Pools .................................................................................. 38 iii. Failure to Account for and Assess the Impact of Current and Likely Future Leaks from Other Plant Components .............................................................. 40
- 1. Component Leaks at Indian Point ........................................................... 41
- 2. Likely Future Leaks from Components at Indian Point During the Proposed Extended Licensing Term........................................................ 43
- 3. Likely Future Leaks from Buried Components ....................................... 46
- 4. Conclusions Regarding the Impact of Current and Likely Future Leaks from Other Plant Components ................................................................. 49 iv. Failure to Properly Categorize and Assess the Level of Groundwater Contamination................................................................................................. 49
- v. Failure to Assess Current and Future Impacts of the Groundwater Contamination on the Hudson River............................................................... 57 ii
- 1. Failure to Address the Impact of Groundwater Contamination on the Aquatic Ecology of the Hudson River .................................................... 58
- 2. Failure to Consider the Impact of Groundwater Contamination on Recreational Activities in the Hudson River ........................................... 62
- 3. Failure to Consider Violations of Relevant State Requirements Prohibiting the Discharge of Radiological Materials to the Hudson River
................................................................................................................. 63
- 4. Failure to Consider the Impact of Groundwater Contamination Related to a Reasonably Foreseeable Drinking Water Pathway Due to a Proposed Desalination Facility to be Located in the direct vicinity of Indian Point
................................................................................................................. 64 vi. Failure to Appropriately Consider and Assess Relevant Measures to Mitigate Adverse Environmental Consequences of Radiological Leaks and Groundwater Contamination .......................................................................... 67
- 1. Failure to Assess the Feasibility and Efficacy of Extracting the Groundwater Contamination ................................................................... 68
- 2. Failure to Consider the Feasibility and Efficacy of Instituting Preventative Measures to Proactively Find Component Leaks Before they Occur ....................................................................................................... 72
- 3. Failure to Consider Enhanced Monitoring of Impacts to the Aquatic Ecology of the Hudson River .................................................................. 73
- 4. Failure to Consider Instituting Measures to Increase Public Access to Information Concerning Radiological Leaks and Groundwater Contamination ......................................................................................... 74 CONCLUSION ............................................................................................................................. 75 iii
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP In accordance with 10 C.F.R. § 2.1207(a)(1), the Atomic Safety and Licensing Boards (ASLB) July 1, 2010 Scheduling Order, 1 the ASLBs June 7, 2011 Amended Scheduling Order, 2 the ASLBs November 17, 2011 Order, 3 and the ASLBs October 18, 2011 Order clarifying the procedures for evidentiary filings, 4 Riverkeeper, Inc. (Riverkeeper) and Hudson River Sloop Clearwater, Inc. (Clearwater) (collectively referred to as Intervenors) hereby jointly submit this Initial Statement of Position on Consolidated Contention RK-EC-3/CW-EC1
- Spent Fuel Pool Leaks. This statement is supported by the Prefiled Direct Testimony of Arnold Gundersen (Exhibit RIV000060), the Prefiled Direct Testimony of Gillian Stewart (Exhibit RIV000061), and exhibits thereto (Riverkeeper Exhibits RIV000062 to RIV000101).
BACKGROUND On or about April 23, 2007, Entergy Nuclear Operations, Inc. (Entergy) filed a License Renewal Application (LRA) with the U.S. Nuclear Regulatory Commission (NRC) seeking 20-year extended operating licenses for Indian Point nuclear generating Units 2 and 3. 5 In the Environmental Report (ER) filed as part of the LRA, Entergy purported to evaluate new information concerning radiological leaks and groundwater contamination at Indian Point. 6 1
In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Scheduling Order (July 1, 2010), at ¶ K.1.
2 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Amended Scheduling Order (June 7, 2011), at 3.
3 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Granting Unopposed Motion by the State of New York and Riverkeeper, Inc. to Amend the Scheduling Order) (November 17, 2011).
4 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Clarification of Procedures for Evidentiary Filings) (October 18, 2011).
5 Indian Point Energy Center License Renewal Application, available at, http://www.nrc.gov/reactors/operating/licensing/renewal/applications/indian-point/ipec_lra_1_2.pdf hereinafter Indian Point LRA).
6 Indian Point Energy Center License Renewal Application, Appendix E - Applicants Environmental Report Operating License Renewal Stage, at § 5.1 New and Significant Information: Groundwater Contamination, pp. 5-2 1
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Entergy concluded in the ER that although the existence of radionuclides in the groundwater during the license renewal period are potentially a new issue, the impacts of those radionuclides would be SMALL and not significant. 7 Pursuant to 10 C.F.R. § 2.309 and Federal Register notices published by the NRC, 8 on November 30, 2007 Riverkeeper filed a request for hearing and petition to intervene in the Indian Point license renewal proceedings, proffering, inter alia, a contention (Riverkeeper Contention EC-3) challenging the adequacy of Entergys assessment of new and significant information regarding the environmental impacts of the radioactive water leaks from the Indian Point 1 and Indian Point 2 spent fuel pools on the groundwater and the Hudson River ecosystem. 9 In particular, Riverkeepers contention faulted (1) Entergys claims in the ER that leaks from the Indian Point Unit 2 spent fuel pool were no longer active, (2) Entergys characterization of the allegedly low degree of onsite groundwater contamination, and (3) Entergys complete failure to assess current of future impacts of the groundwater contamination on Hudson River fish and shellfish. 10 Due to these glaring deficiencies, Riverkeeper Contention EC-3 maintained that to 5-7, available at, http://www.nrc.gov/reactors/operating/licensing/renewal/applications/indian-point/2-ipec-lra-appendix-e_3-9.pdf (last visited December 21, 2011) (hereinafter cited as Indian Point ER).
7 Indian Point ER at p.5-6.
8 Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3, 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 (August 1, 2007), as amended by Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3, Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period: Extension of Time for Filing of Requests for Hearing or Petitions for Leave To Intervene in the License Renewal Proceeding, 72 Fed. Reg. 55,834 (Oct. 1, 2007).
9 Riverkeeper, Inc.s Request for Hearing and Petition to Intervene in the License Renewal Proceedings for the Indian Point Nuclear Power Plant (November 30, 2007), ADAMS Accession No. ML073410093, at 74-86 (hereinafter Riverkeeper Petition to Intervene).
10 Riverkeeper Petition to Intervene at 74-75, 80-86.
2
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP the conclusions contained in [Entergys] ER regarding the significance of the groundwater contamination are misleading, incomplete and legally insufficient for purposes of satisfying the basic tenets of NEPA [the National Environmental Policy Act] and NRC regulations. 11 In accordance with NRCs Federal Register notices, 12 as well as an extension granted by the ASLB, 13 on December 10, 2007, Clearwater filed a request for hearing and petition to intervene in the Indian Point license renewal proceedings, also proffering a contention (Clearwater Contention EC-1) related to Entergys failure to adequately assess the environmental impacts of radiological leaks at Indian Point. 14 Clearwater raised the same concerns as Riverkeeper relating to Entergys inaccurate analysis of the spent fuel pool leaks and groundwater contamination at the plant. 15 Additionally, Clearwater pointed to a litany of other accidental leaks and releases that have previously occurred at Indian Point, 16 as well as the high likelihood of future leaks that Entergy will be unable to prevent during the proposed relicensing period, as components at the plant continue to age and degrade. 17 Clearwater discussed Entergys patently deficient analysis in the ER of the sources, extent, and impact of radiological leaks and releases from the plant. 18 11 Riverkeeper Petition to Intervene at 76.
12 See supra Note 8.
13 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Granting an Extension of Time to Clearwater Within Which to File Requests for Hearing) (November 27, 2007), ADAMS Accession No. ML073310484.
14 Hudson River Sloop Clearwater Inc.s Petition to Intervene and Request for Hearing (December 10, 2007), at 18-24, ADAMS Accession No. ML073520042 (hereinafter Clearwater Petition to Intervene).
15 Clearwater Petition to Intervene at 19.
16 Clearwater Petition to Intervene at footnote 1; id at Exhibit 3 (Timeline of Leaks at Indian Point by Jonathan Stanton, November 24, 2007).
17 Hudson River Sloop Clearwater Incs Reply to Entergy and the Nuclear Regulatory Commission (NRC)
Responses to Clearwater Petition to Intervene and Request for Hearing (February 8, 2008) (ADAMS Accession No.
not discernable/unknown), at 4 (hereinafter Clearwater Reply).
18 Clearwater Petition to Intervene at 20-23; See also Clearwater Reply at 4-5.
3
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP One such impact raised by Clearwaters contention that was left completely unaddressed in Entergys ER is the potential of radiological leaks from Indian Point to impact the Hudson River as a drinking water source. 19 Clearwater discussed how at least four municipalities in the tidal portions of the Hudson River do take water from the [Hudson] River and the fact that a company named United Water New York is currently developing plans to construct a desalination facility in Haverstraw Bay, just downstream of Indian Point, to deliver millions of gallons of drinking water per day to Rockland County residents. 20 On July 31, 2008, the ASLB admitted and consolidated Riverkeepers Contention EC-3 and Clearwaters Contention EC-1. 21 The ASLB found that both contentions had raised a genuine dispute regarding the significance of the environmental impacts from the spent fuel pool leaks. 22 The ASLB stated that based on the information and opinions presented by Riverkeeper and Clearwater, it is uncertain whether Entergys conclusions in the ER regarding the significance of the groundwater contamination are sufficient for purposes of satisfying NEPA 19 See Clearwater Reply at 4-5.
20 See Clearwater Reply at 4-5. On March 19, 2009, Clearwater filed a new contention in the Indian Point license renewal proceedings specifically alleging that Entergy and NRC Staff had failed to consider the implications of the proposed desalination plant in light of radiological leaks from Indian Point. Hudson River Sloop Clearwater, Inc.s Petition to File a New Contention Based Upon New Information (March 19, 2009), ADAMS Accession No. ML090861002. This new contention stated that Entergy and NRC Staff did not assess the impacts of the license renewal on drinking water quality and drinking water degradation as it relates to the use of the Hudson River as a source of drinking water. Id. at 8. While the ASLB subsequently issued an order not admitting this independently filed contention for adjudication, the ASLB confirmed that the concerns and issues implicated by Clearwaters new contention were properly encompassed by the earlier radiological leak related contention: In our view, the [leak]
Contention questions Entergys conclusions regarding groundwater contamination from leaks at Indian Point, including the impact on drinking water as it relates to the use of the Hudson River as a source of drinking water. In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Denying Clearwaters Petition to File a New Contention) (May 28, 2009), at 5.
21 See In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing) (July 31, 2008), ADAMS Accession No. ML082130436, at 187-88, 192 (hereinafter ASLB July 31, 2008 Contention Admissibility Order) 22 ASLB July 31, 2008 Contention Admissibility Order at 188, 192.
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50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP and NRC Regulations. 23 The ASLB acknowledged Intervenors position that the release concentrations are not low and that Entergy has failed to assess the impacts of these levels of releases on the Hudson River ecosystem. 24 The ASLB also stated that there is still the question as to whether the maximum groundwater impact (and, in turn, the maximum dose) has been determined for the site. 25 In light of the uncertainties about the significance of the radiological leaks at Indian Point demonstrated by Intervenors, the ASLB found a genuine issue as to whether Entergys ER contains sufficient information to aid the Commission in the preparation of its EIS. 26 Per the ASLBs July 31, 2008 Order relating to contention admissibility, on August 21, 2008, 27 Intervenors filed a Consolidated Contention, and advised the ASLB of Riverkeepers intention to act as lead intervenor in litigating the contention. 28 Subsequent to the ASLBs July 31, 2008 ruling, Entergy filed a motion seeking reconsideration of the ASLB decision to admit the Consolidated Contention. 29 The ASLB denied this motion because Entergy had simply repeated the same unsuccessful arguments it presented earlier. 30 Entergy thereafter filed a 23 ASLB July 31, 2008 Contention Admissibility Order at 188, 192.
24 Id. at 188.
25 Id. at 192.
26 Id. at 188.
27 Id. at 228 (We direct the Parties who have submitted consolidated contentions to confer and submit a draft of the Consolidated Contention for the Boards consideration within 21 days of the date of this Order. In addition, at the time the draft of the Consolidated Contention is submitted, the Parties who have submitted these contentions shall advise the Board which Party will take the lead in litigating the Consolidated Contention.)
28 Consolidated Contention of Petitioners Riverkeeper, Inc. (EC-3) and Hudson River Sloop Clearwater, Inc. (EC-1)-Spent Fuel Pool Leaks (August 21, 2008), ADAMS Accession No. unknown (hereinafter Consolidated Contention).
29 Applicants Motion for Reconsideration of the Boards Decision to Admit Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 (August 11, 2008), ADAMS Accession No. ML082321098.
30 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Memorandum and Order (Denying Entergys Motion for Reconsideration of the Boards Decision to Admit Riverkeeper Contention EC-3 and Clearwater Contention EC-1) (December 18, 2008), at 16, ADAMS Accession No. ML083530749.
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50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Petition for Interlocutory Review of the ASLBs decision admitting the Consolidated Contention. 31 The Commission denied this petition, finding that Entergy had failed to demonstrate that this extraordinary form of review was justified under the NRCs interlocutory review standards or otherwise. 32 On December 22, 2008, NRC Staff issued a draft supplemental environmental impact statement relating to the license renewal of Indian Point Generating Unit Nos. 2 and 3 (hereinafter referred to as the DSEIS). 33 While this report included a discussion of the spent fuel pool leaks at Indian Point, NRC Staffs evaluation of this issue directly mirrored that of Entergys in the ER, and likewise, failed to address any of the concerns raised by the Consolidated Contention. 34 NRC Staff arrived at the same unjustified conclusion as Entergy:
that while the information related to spent fuel pool leakage is new, it is not significant and that the impacts [of the leaks] are SMALL. 35 Riverkeeper submitted extensive comments to NRC Staff pursuant to a public comment period, detailing the many deficiencies in NRC Staffs draft preliminary assessment of the leaks. 36 Since the ultimate responsibility for NEPA evaluation rests with the U.S. Nuclear Regulatory Commission, not with the Applicant, and . . . an Intervenors challenge to NEPA 31 Entergy's Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision Admitting Consolidated Riverkeeper EC-3/Clearwater EC-1 (January 7, 2009), ADAMS Accession No. ML090140328.
32 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3, Docket Nos. 50-247-LR and 50-286-LR, CLI-09-06, Memorandum and Order (March 5, 2009), at 4, 8-12, ADAMS Accession No. ML090640954.
33 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, December 2008, ADAMS Accession Nos.
ML083540594, ML083540614 (hereinafter cited as Indian Point DSEIS) (Exhibits NYS00132A-NYS00132D).
34 Indian Point DSEIS at 2-107 to 2-109, 4-35 to 4-36, 4-49 (Exhibits NYS00132A-NYS00132D).
35 Indian Point DSEIS at 4-36, 4-49 (Exhibits NYS00132A-NYS00132D).
36 Riverkeeper, Inc.s Comments on the U.S. Nuclear Regulatory Commissions Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, Docket Nos. 50-247 and 50-286 (March 18, 2009) at 17-25, ADAMS Accession No. ML090860983.
6
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP compliance should be made with respect to the Agencys actions, 37 on February 27, 2009, Intervenors filed a challenge to the NRC Staffs assessment of the impacts of the spent fuel pool leaks in the DSEIS as suffering from the same deficiencies articulated in the Consolidated Contention. 38 Intervenors requested that the ASLB recognize that the Consolidated Contention applies against the NRC Staffs analysis in the IP DSEIS as equally as against the applicants assessment. 39 On May 28, 2009 the ASLB granted this request. 40 On December 3, 2010, NRC Staff issued the final supplemental environmental impact statement concerning the license renewal of Indian Point (hereinafter referred to as the FSEIS). 41 This report contained an assessment of the spent fuel pool leaks that was substantively the same (and, in fact, largely verbatim), as that in the DSEIS, and NRC Staff arrived at the exact same conclusions about the significance and impact of leaks. 42 Once again, in light of the ultimate obligation of the agency to comply with NEPA, Riverkeeper filed a pleading requesting that the ASLB recognize the Consolidated Contention to apply to the 37 Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), ASLBP No. 04-821-01-ESP, 2005 N.R.C.
LEXIS 61, *5-6 (2005). NRC procedures, in an effort to keep the process expeditiously moving, require an Intervenor to raise environmental issues first with respect to the Applicants ER. Id.; see also Private Fuel Storage L.L.C., 60 N.R.C. 125 (Our contention pleading rule requires a petitioner to file NEPA contentions on the applicants ER so that environmental issues are raised as soon as possible in the proceeding.).
38 Riverkeeper, Inc.s Challenge to NRC Staffs Assessment of Impacts of Spent Fuel Pool Leaks in the Draft Supplemental Environmental Impact Statement (February 27, 2009), at 1-2, ADAMS Accession No. ML090820633.
39 Riverkeeper, Inc.s Challenge to NRC Staffs Assessment of Impacts of Spent Fuel Pool Leaks in the Draft Supplemental Environmental Impact Statement (February 27, 2009), at 3-4, ADAMS Accession No. ML090820633.
40 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Applying Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 to the NRC Staffs Draft Supplemental Environmental Impact Statement) (May 28, 2009), ADAMS Accession No. ML091480466.
41 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement38/ (last visited Dec. 21, 2011) (hereinafter cited as Indian Point FSEIS).
42 Indian Point FSEIS at 2-110 to 2-2112, 4-40 to 4-42, 4-56.
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50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP relevant analysis and conclusions in the FSEIS. 43 On July 6, 2011, the ASLB granted this request, thus ruling that Consolidated Contention RK-EC-3/CW-EC-1 shall apply to Entergys ER, the NRC Staffs DSEIS, and the NRC Staffs FSEIS. 44 The applicable law and regulatory requirements, along with the facts, testimony and evidence relating to Intervenors Consolidated Contention RK-EC-3/CW-EC-1 are described forthwith.
APPLICABLE LEGAL AND REGULATORY REQUIREMENTS I. NEPA REQUIREMENTS The Indian Point license renewal proceeding is subject to and governed by the National Environmental Policy Act (NEPA). 45 NEPA is the basic national charter for protection of the environment. 46 Its fundamental purpose is two-fold:
It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision-making process and the implementation of that decision. 47 43 Riverkeeper, Inc. and Clearwater, Inc. Challenge to NRC Staffs Assessment of Impacts of Spent Fuel Pool Leaks in the Final Supplemental Environmental Impact Statement (February 3, 2011), ADAMS Accession No. ML110410362.
44 In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011), at 35-36, ADAMS Accession No. ML111870344.
45 42 U.S.C. § 4321, et seq.
46 40 C.F.R. § 1500.1; see also Dept. of Transp. v. Pub Citizen, 541 U.S. 752, 756 (2004) (explaining that NEPA establishes a national policy [to] encourage productive and enjoyable harmony between man and his environment and how NEPA was created to reduce or eliminate environmental damage and to promote the understanding of the ecological systems and natural resources important to the United States.) (quoting 42 U.S.C. § 4321 (2011)
(internal citations and quotations omitted)).
47 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), LBP 23, 64 NRC 257, 277 (2006) (LBP-06-23) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (Explaining that NEPA requires federal agencies to examine the environmental consequences of their actions before taking those actions, in order to ensure that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.); Baltimore Gas & Elec. Co. v. Natural Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983) (explaining that NEPA ensures that the agency will inform the public that it 8
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP The primary method by which NEPA ensures that its mandate is met is the action forcing requirement for the preparation of an Environmental Impact Statement (EIS), which assesses the environmental impacts of the proposed action and weighs the costs and benefits of alternative actions. 48 NEPA mandates that federal agencies involved in activities that may have a significant impact on the environment complete a detailed statement of the environmental impacts, unavoidable adverse environmental effects, and project alternatives. 49 An EIS must be searching and rigorous, providing a hard look at the environmental consequences of the agencys proposed action. 50 NEPA requires that a proper environmental review must contain an evaluation of those aspects of a proposed action that will affect the quality of the human environment in a significant manner or to a significant extent not already considered. 51 The Council on Environmental Quality (CEQ) regulations implementing NEPA explain that evaluating the significance of a proposed action and its resulting impacts requires consideration of the context in which the proposed action is situated and the intensity of the impacts. 52 Considering the context of the action has indeed considered environmental concerns in its decision making process.); Morongo Band of Mission Indians
- v. Federal Aviation Administration, 161 F.3d 569, 575 (9th Cir. 1998) (NEPA was created to ensure that agencies will base decisions on detailed information regarding significant environmental impacts and that information will be available to a wide variety of concerned public and private actors.).
48 Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 370-71 (1989); Robertson, 490 U.S. at 350-51.
49 See 42 U.S.C. §§ 4332(2)(C), (E); see also 40 C.F.R. § 1502.14 (agencies shall (a) rigorously explore and objectively evaluate all reasonable alternatives). The agency must explain the bases for their acceptance or rejection of potential alternatives. See 40 C.F.R. §§ 1503.4 (2011), 1505.1(e) (2011).
50 Marsh, 490 U.S. at 374; Robertson, 490 U.S. at 350-51; see also Midcoast Interstate Transmission, Inc. v.
F.E.R.C., 198 F.3d 960, 968 (D.C. Cir. 2000); Stewart Park & Reserve Coal., Inc. (SPARC) v. Slater, 352 F.3d 545, 557 (2d Cir. 2003).
51 Marsh, 490 U.S. at 374; See also Baltimore Gas & Elec. Co., 462 U.S. at 97 (explaining that NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action).
52 40 C.F.R. § 1508.27.
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50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP
[M]eans that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole.
Both short- and long-term effects are relevant. 53 The intensity of a proposed action refers to the severity of impact. 54 CEQ regulations dictate that ten different factors must be considered when evaluating intensity:
(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health or safety.
(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.
(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
(7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.
(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing 53 40 C.F.R. § 1508.27(a).
54 40 C.F.R. § 1508.27(b).
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50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
(9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.
(10) Whether the action threatens a violation of Federal, State, or local law or requirements. 55 CEQ regulations require the analysis of all direct, indirect, and cumulative impacts of a proposed action. 56 This includes all reasonably foreseeable impacts of the action. 57 The agency must undertake a reasonably thorough discussion of the significant aspects of the probable environmental consequences in the EIS. 58 The agency is only relieved of discussing impacts that are remote and highly speculative consequences of the proposed action. 59 The agencys cumulative impact analysis must consider the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. 60 Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. 61 As numerous courts have explained, a meaningful cumulative impact assessment must identify (1) the affected area, (2) the expected impacts of the project, (3) other past, present, proposed, and reasonably foreseeable actions that are expected to have impacts in the same area, 55 40 C.F.R. § 1508.27(b).
56 See 40 C.F.R. §§ 1508.7, 1508.8, 1508.25(a)(2), (c).
57 See Robertson, 490 U.S. at 356; see also Ground Zero Ctr. for Non-Violent Action v. United States Dep't of the Navy, 383 F.3d 1082, 1089 (9th Cir. Wash. 2004) (agencies must examine the reasonably foreseeable environmental effects of their proposed actions when conducting environmental review).
58 Ground Zero, 383 F.3d at 1089 (citing Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974)).
59 Trout Unlimited, 509 F.2d at 1283.
60 See 40 C.F.R. § 1508.7.
61 See id.
11
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP (4) the impacts or expected impacts from such other actions, and (5) the overall expected impact in light of the accumulation of the individual impacts. 62 In other words, the agency cannot treat the identified environmental concern in a vacuum. 63 NEPA and implementing CEQ regulations further require that the agency consider and assess mitigation measures in the EIS. 64 As the Supreme Court has explained, One important ingredient of an EIS is the discussion of steps that can be taken to mitigate adverse environmental consequences. . .
Implicit in NEPAs demand that an agency prepare a detailed statement on any adverse environmental effects which cannot be avoided should the proposal be implemented, is an understanding that the EIS will discuss the extent to which adverse effects can be avoided. More generally, omission of a reasonably complete discussion of possible mitigation measures would undermine the action forcing function of NEPA. Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects. . .
Recognizing the importance of such a discussion in guaranteeing that the agency has taken a hard look at the environmental consequences of proposed federal action, CEQ regulations require that the agency discuss possible mitigation measures in defining the scope of the EIS, in discussing alternatives to the proposed action, and consequences of that action, and in explaining its ultimate decision. 65 CEQ regulations define mitigation as:
(a) Avoiding the impact altogether by not taking a certain action or parts of an action.
(b) Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
(c) Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
62 See Grand Canyon Trust v. FAA, 290 F.3d 339, 345-46 (D.C. Cir. 2002).
63 Grand Canyon Trust v. FAA, 290 F.3d 339, 346 (D.C. Cir. 2002).
64 See 40 C.F.R. § 1508.25(b)(3).
65 Robertson, 490 U.S. at 351-52 (citations omitted).
12
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
(e) Compensating for the impact by replacing or providing substitute resources or environments. 66 II. NRC REQUIREMENTS NRC has interpreted NEPA to require the preparation of an EIS for decisions regarding whether to renew operating licenses for nuclear power plants. 67 NRC requires the license renewal applicant to prepare the initial environmental analysis in an Environmental Report. 68 The ER should contain sufficient data to aid the Commission in its development of an independent analysis. 69 NRC regulations implementing NEPA dictate that NRC Staffs EIS will consider[] and weigh[] the environmental effects of the proposed action; the environmental impacts of alternatives to the proposed action; and alternatives available for reducing or avoiding adverse environmental effects. 70 NRCs regulations further require consideration of compliance with environmental quality standards and requirements that have been imposed by Federal, State, regional, and local agencies having responsibility for environmental protection, including . . .
water pollution limitations or requirements issued or imposed under the Federal Water Pollution 66 40 C.F.R. §§ 1508.20.
67 10 C.F.R. § 51.95(d).
68 10 C.F.R. § 51.53(c); see also 10 C.F.R. § 51.45(c) (explaining the analysis that must contained in the ER: The environmental report must include an analysis that considers and balances the environmental effects of the proposed action, the environmental impacts of alternatives to the proposed action, and alternatives available for reducing or avoiding adverse environmental effects. . . .
69 10 C.F.R. § 51.45(c) (emphasis added).
70 10 C.F.R. § 51.71(d).
13
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Control Act. 71 Moreover, the analysis will, for the purposes of NEPA, consider the radiological effects of the proposed action. 72 NRCs EIS must contain the NRC staffs recommendation regarding the environmental acceptability of the license renewal action. 73 Based upon all the information analyzed in the EIS and conclusions drawn from therein, the NRC staff, adjudicatory officers, and Commission shall determine whether or not the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable. 74 Thus, both the license renewal applicant and NRC Staffs assessments of the environmental impacts of nuclear power plant relicensing must be accurate and complete enough to enable the Commission to make an appropriately informed determination.
NRCs environmental review utilizes a generic EIS: NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (License Renewal GEIS). 75 The License Renewal GEIS characterizes environmental impacts of license renewal as either Category 1 generic issues that do not require further review during individual license 71 10 C.F.R. § 51.71(d). Notably, [t]he environmental impact of the proposed action will be considered in the analysis with respect to matters covered by environmental quality standards and requirements irrespective of whether a certification or license from the appropriate authority has been obtained . . . . Compliance with the environmental quality standards and requirements of the Federal Water Pollution Control Act (imposed by EPA or designated permitting states) is not a substitute for, and does not negate the requirement for NRC to weigh all environmental effects of the proposed action, including the degradation, if any, of water quality, and to consider alternatives to the proposed action that are available for reducing adverse effects.). Id.; Id. at footnote 3.
72 10 C.F.R. § 51.71(d).
73 Id. § 51.95(c)(4).
74 Id. § 51.95(c)(4).
75 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996),
available at, http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/ (1996 License Renewal GEIS)
(Exhibit NYS00131A-NYS00131I). A proceeding to update the GEIS is currently pending. See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Revision 1, Draft Report for Comment, available at, http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/r1/v1/sr1437r1v1.pdf, at iii (This GEIS revision reviews and reevaluates the issues and findings of the 1996 GEIS) (hereinafter GEIS Update) (Exhibit RIV000064).
14
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP renewal proceedings or Category 2 issues that require additional plant-specific analysis. 76 Additionally, NRC regulations implementing NEPA require the assessment of any new and significant information regarding the environmental impacts of the plants operation during the renewal period. 77 While NRCs regulations do not specifically define significant, NRC has explained that
[n]ew and significant information is (1) information that identifies a significant environmental issue not covered in the GEIS and codified in Table B-1 of 10 CFR Part 51, Subpart A, Appendix B, or (2) information that was not considered in the analyses summarized in the GEIS and that leads to an impact finding that is different from the finding presented in the GEIS and codified in 15 10 CFR Part 51. 78 NRC must prepare and issue a supplement to the License Renewal GEIS during individual license renewal proceedings assessing site-specific issues and any new and significant information. 79 76 See 1996 License Renewal GEIS at Executive Summary (Category 2: For the issue, the analysis reported in the GEIS has shown that . . . additional plant-specific review is required. This final GEIS assesses 92 environmental issues. Sixty-eight of these issues are found to be Category 1 and are identified in 10 CFR Part 51 as not requiring additional plant-specific analysis. Guidance on the analyses required for each of the other 24 issues is provided in 10 CFR Part 51.) (Exhibit NYS00131A-NYS00131I).
77 See 10 C.F.R. § 51.53(c)(3)(iv) (The environmental report must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware); 10 C.F.R. § 51.95(c)(4)
(The supplemental environmental impact statement must contain the NRC staff's recommendation regarding the environmental acceptability of the license renewal action. In order to make its recommendation and final conclusion on the proposed action, the NRC staff, adjudicatory officers, and Commission shall integrate the conclusions, as amplified by the supporting information in the generic environmental impact statement for issues designated Category 1 . . . or resolved Category 2, information developed for those open Category 2 issues applicable to the plant in accordance with § 51.53(c)(3)(ii), and any significant new information.) (emphasis added); 10 C.F.R. Part 51, Appendix B to Subpart A (Table B-1, subject to an evaluation of those issues identified in Category 2 as requiring further analysis and possible new and significant information, represents the analysis of the environmental impacts associated with renewal of any operating license . . . . (emphasis added)); Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, RIN 3150-AD63, 61 Fed. Reg. 28467, 28468 (June 5, 1996)
(The NRC will also review and consider any new and significant information presented during the review of individual license renewal applications.) (emphasis added)).
78 Indian Point FSEIS at 1-5.
79 See 10 C.F.R. § 51.71(d) (The draft supplemental environmental impact statement must contain an analysis of those issues identified as Category 2 in appendix B to subpart A of this part that are open for the proposed action.);
see also 10 C.F.R. § 51.95(d).
15
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP The environmental impacts of accidental radiological leaks were not assessed in NRCs 1996 GEIS. 80 In particular, NRC Staffs entire evaluation of this issue consisted of a brief mention of one occurrence of radiological leaks affecting groundwater at the Prairie Island nuclear power plant, and the following conclusion:
Groundwater quality impacts are considered to be of small significance when the plant does not contribute to changes in groundwater quality that would preclude current and future uses of the groundwater. Hence, the contribution of plant operations (during the license renewal period) to the cumulative impacts of major activities on groundwater quality would be relatively small. 81 Notably, in light of the growing problem of radiological leaks, which have now occurred at dozens of nuclear power plants nation-wide, a proposed GEIS update contemplates that such leaks will constitute a Category 2 issue, with potentially MODERATE impacts, which would automatically necessitate site-specific evaluation. 82 III. OTHER RELEVANT REQUIREMENTS As discussed above, pursuant to both NEPA and NRC regulations, NRC Staffs environmental review of the impacts of relicensing Indian Point for an additional 20 years of operation must consider whether relicensing Indian Point would result in violations of Federal and State environmental quality standards and requirements. 83 Other Federal and State laws and 80 See GEIS Update at 4-40 (The following nine issues concern impacts on groundwater that may occur during the license renewal term . . . . Radionuclides released to groundwater (new issue not considered in the 1996 GEIS)
(emphasis added) (Exhibit RIV000064).
81 1996 License Renewal GEIS, at § 4.8.2 (Exhibit NYS00131A-NYS00131I).
82 GEIS Update at 4-46 to 4-47 (On the basis of occurrences at several nuclear plants, the impact of radionuclide releases to groundwater quality could be small or moderate, depending on the occurrence and frequency of leaks and the ability to respond to leaks in a timely fashion. The issue is considered a Category 2 issue) (Exhibit RIV000064); see also GEIS Update Appendices at B-12 (Exhibit RIV000064).
83 40 C.F.R. § 1508.27(b) (10) (explaining that one factor in evaluating the significance of an impact of a proposed activity is ([w]hether the action threatens a violation of Federal, State, or local law or requirements.); 10 C.F.R. § 51.71(d) (consideration will be given to compliance with environmental quality standards and requirements that have been imposed by Federal, State, regional, and local agencies having responsibility for environmental 16
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP requirements relevant to the Consolidated Contention include, but are not limited to, the following:
x New York State Environmental Conservation Law (NYS ECL) § 17-0501, which provides a general prohibition against pollution as follows: It shall be unlawful for any person, directly or indirectly, to throw, drain, run or otherwise discharge into such waters organic or inorganic matter that shall cause or contribute to a condition in contravention of the standards adopted by the department [of Environmental Conservation].
x NYS ECL § 17-0511, which provides that: The use of existing or new outlets or point sources, which discharge sewage, industrial waste or other wastes into waters of this state is prohibited unless such use is in compliance with all standards, criteria, limitations, rules and regulations promulgated or applied by the [New York State] department [of Environmental Conservation] pursuant to this article.
x NYS ECL § 17-0807(1), (4), which prohibits the following discharges into the waters of the state of New York: (1) the discharge of any radiological, chemical or biological warfare agent or high-level radioactive waste, as such terms are defined by the [Clean Water] Act or pursuant thereto; (4) any discharge not permitted by the provisions of this article, rules and regulations adopted or applicable pursuant hereto, the Act, or provisions of a permit issued hereunder.
x Part 6 of New York Code, Rules, and Regulations (NYCRR) § 750-1.3, which prohibits the discharge of any radiological, chemical or biological warfare agent or high-level radioactive waste into the waters of the State of New York.
protection, including . . . water pollution limitations or requirements issued or imposed under the Federal Water Pollution Control Act. . . . irrespective of whether a certification or license from the appropriate authority has been obtained).
17
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP x 6 NYCRR § 703.2, which provides that toxic and deleterious substances shall not impair waters of New York State for their best usages.
x 6 NYCRR § 701.1, which provides that the discharge of sewage, industrial waste or other wastes shall not cause impairment of the best usages of the receiving water as specified by the water classifications at the location of discharge and at other locations that may be affected by such discharge.
x 6 NYCRR § 864.6, which designates the Hudson River in the vicinity of Indian Point as SB saline surface waters.
x 6 NYCRR § 701.11, which provides that [t]he best usages of Class SB waters are primary
[ 84] and secondary contact recreation [ 85] and fishing. These waters shall be suitable for fish, shellfish, and wildlife propagation and survival.
x 6 NYCRR § 701.18, which classifies all fresh groundwaters of New York State as GA fresh groundwaters.
x 6 NYCRR § 701.15, which defines the best usage of Class GA fresh groundwaters of New York State as a source of potable water supply.
x The U.S. Environmental Protection Agencys (EPA) Maximum Contaminant Levels (MCLs) for radionuclides in drinking water. EPA regulations implementing the Safe Drinking Water Act provide that [t]he average annual concentration of beta particle and photon radioactivity from man-made radionuclides in drinking water must not produce an annual dose equivalent to the total body or any internal organ greater than 4 millirem/year 84 Primary Contact Recreation is defined by New York State regulations as recreational activities where the human body may come in direct contact with raw water to the point of complete body submergence, such as swimming, diving, water skiing, skin diving and surfing. 6 NYCRR § 700.1(a)(49).
85 Secondary Contact Recreation is defined by New York State regulations as recreational activities where contact with the water is minimal and where ingestion of the water is not probable, such as fishing and boating.
6 NYCRR 700.1(a)(56).
18
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP (mrem/year). 86 This dose converts to a maximum limit of radionuclides in water in terms of picocuries per liter (pCi/l), for particular radionuclides as follows: 87 Radionuclide EPA MCL Tritium 20,000 pCi/l Strontium-90 8 pCi/l Cesium-137 200 pCi/l Nickel-63 50 pCi/l IV. BURDEN OF PROOF NRC Staff and Entergy carry the burden of proof to demonstrate that the environmental analysis took the required hard look at the impacts of radiological leaks at Indian Point. 88 The NRC has described the burden of proof in a license renewal proceeding as follows:
[t]he ultimate burden of proof on the question of whether the permit or the 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 sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license. 89 Thus, the applicant carries the ultimate burden of proof regarding the issuing of the renewed operating license. If a party challenges a licensing renewal application, that challenging party must establish a prima facie case that renewal requirements have not been met. At that point, the burden of proof shifts back to the applicant to rebut that specific contention. The applicant must 86 40 C.F.R. § 141.66(d).
87 See 40 C.F.R. § 141.66(d) (Table A); See also U.S. EPA, Radionuclides in Drinking Water: A Small Entity Compliance Guide (February 2002), available at, http://www.epa.gov/ogwdw/radionuclides/pdfs/guide_radionuclides_smallsystems_compliance.pdf, at 13 (Exhibit RIV000065).
88 See 10 C.F.R. § 2.325 (2011) (Unless the presiding officer otherwise orders, the applicant or the proponent of an order has the burden of proof.).
89 Amergen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 269 (2009).
19
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP demonstrate compliance with the applicable regulations by meeting a reasonable assurance standard, which is equated to a preponderance of the evidence. 90 To establish a prima facie case for a NEPA contention, it is only necessary to show that the NRC has failed to take a hard look at the issues raised.
DISCUSSION I. INTERVENORS WITNESSES Intervenors witnesses in support of Consolidated Contention RK-EC-3/CW-EC-1 are Arnold Gundersen and Gillian Stewart. Mr. Gundersen and Ms. Stewart have both submitted pre-filed testimony pertaining to the Consolidated Contention. 91 Mr. Gundersen and Ms.
Stewarts professional and educational qualifications are described in their respective curriculum vitaes. 92 In short Mr. Gundersen is a nuclear engineer and safety expert with more than 39 years of professional experience. 93 He is a well-recognized authority in relation to radiological leakage issues at nuclear power plants. 94 Ms. Stewart is a professor of Environmental Science who has extensive background and experience relating to the movement of radionuclides in aquatic systems. 95 Mr. Gundersen and Ms. Stewarts testimony and opinions related to Intervenors Consolidated Contention RK-EC-3/CW-EC-1 are based on upon their respective technical expertise in, and experience with, the relevant issues.
90 Amergen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 263 (2009).
91 Testimony of Arnold Gundersen on Consolidated Contention RK-EC-3/CW-EC Spent Fuel Pool Leaks (hereinafter Gundersen Testimony) (Exhibit RIV000060); Testimony of Gillian Stewart on Consolidated Contention RK-EC-3/CW-EC Spent Fuel Pool Leaks (hereinafter Stewart Testimony) (RIV000061).
92 Curriculum Vitae of Arnold Gundersen (Exhibit RIV000062); Curriculum Vitae of Gillian Stewart (Exhibit RIV000063).
93 Gundersen Testimony at 1- (Exhibit RIV000060); Curriculum Vitae of Arnold Gundersen (Exhibit RIV000062).
94 Gundersen Testimony at 2-3 (Exhibit RIV000060); Curriculum Vitae of Arnold Gundersen (Exhibit RIV000062).
95 Stewart Testimony at 1-2 (Exhibit RIV000061); Curriculum Vitae of Gillian Stewart (Exhibit RIV000063).
20
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP II. INTERVENORS EVIDENCE The testimony, facts, and evidence provided by Mr. Gundersen and Ms. Stewart, as described in detail below, demonstrate that Entergy and NRC Staff have demonstrably failed to take the requisite hard look at the environmental impacts of radiological leaks at Indian Point.
A. Entergy and NRC Staffs Assessment of Spent Fuel Pool Leaks and Groundwater Contamination at Indian Point
- i. Entergys Assessment Section 5.0 of the ER contains Entergys response to the NRC requirement that a license renewal applicant assess any new and significant information regarding environmental impacts of a plants operation during the extended license term. 96 Entergy identified groundwater contamination as one potential issue that could be classified as new information, but not necessarily significant. 97 Entergys ER discussed the discovery of radiologically-contaminated water leaks emanating from the Indian Point Unit 2 spent fuel pool in August 2005. 98 The ER explained that Entergys subsequent investigation, including the installation of monitoring wells, indicated that the groundwater at the site was contaminated with low concentrations of tritium, Strontium-90, Cesium-137, and Nickel-63, and that the contaminated groundwater was likely migrating to the Hudson River. 99 The ER also explained that Entergy identified the Indian Point Unit 1 spent fuel pool as a source of radionuclides in the groundwater as well. 100 Upon the discovery of the groundwater contamination, Entergy included this release pathway in its site effluent offsite dose calculations and determined that the estimated dose 96 See 10 C.F.R. § 51.53(c)(3)(iv).
97 Indian Point ER at p.5-2.
98 Id. at p.5-4.
99 Id. at p.5-4.
100 Id. at p.5-4, 5-5.
21
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP resulting from the contamination was below NRC limits. 101 The ER documented Entergys finding that, based on information available at the time of Entergys LRA, the then-current onsite leaks and groundwater contamination had not adversely affected public health and safety and were not likely to do so. 102 Entergy based this assessment on the fact that there is no drinking water pathway associated with groundwater or the Hudson River in the region surrounding Indian Point and because samples had indicated no detectable plant related radioactivity in groundwater above safe drinking water standards beyond the site boundary. 103 The ER also included Entergys explanation of how the leaks were being addressed:
Entergy had begun monitoring identified onsite release sources, had undertaken effort to find and repair the sources of leaks, and had begun a hydrogeologic characterization to delineate discharges to groundwater and to define the measures most protective of the public. 104 Entergy explained that mitigation activities relating to the Unit 1 spent fool pool were being carried out, and that future actions included eventual removal of the fuel from the pool and draining. 105 Entergy indicated that [i]f warranted, a pumped treatment technology may be employed as a future mitigation measure. 106 In relation to the Unit 2 spent fuel pool, Entergy stated that no leaks have been identified in the IP2 fuel pool liner and the contamination in that area is not consistent with active leakage, that the contamination related to the IP2 fuel pool is the result of historical pool leakage in the 1990s which has since been repaired, and that no mitigation is 101 Indian Point ER at p.5-4, 5-5.
102 Id. at p.5-5.
103 Id.
104 Id.
105 Id.
106 Id.
22
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP warranted at this time. 107 However, Entergy did explain that a pilot recovery well had been installed to determine the efficacy of this remediation method, should future mitigation become warranted. 108 The ER indicated that Entergys long-term groundwater monitoring program would be used to monitor the levels of contamination at the Indian Point site, and to determine the need for mitigation on an ongoing basis. 109 The ER concludes that, since the radionuclide release is not anticipated to change environmental considerations, such as water usage, land usage, terrestrial or aquatic ecological conditions . . . as a result of license renewal activities, since no NRC dose limits have been exceeded and EPA drinking water limits are not applicable since no drinking water pathway exists, since measures have and are being taken to control releases from the Spent Fuel Pools, and since Entergy was now monitoring the groundwater, although the existence of radionuclides in the groundwater during license renewal period are potentially a new issue, the impacts of those radionuclides would be SMALL and not significant. 110 In total, Entergys nearly thousand page long ER dedicated only about four pages to this issue.
ii. NRC Staffs Assessment NRC Staffs FSEIS contains essentially the same evaluation as that contained in the DSESIS, and is largely word for word identical to the earlier assessment. NRC Staff completely ignored the extensive public comments submitted by Intervenors relating to the radiological leaks, as well as the issues raised in the Consolidated Contention. 111 In the FSEIS, NRC Staff again focuses on the same findings as Entergy did in the ER. NRC Staffs assessment 107 Indian Point ER at p.5-6.
108 Id.
109 Id.
110 Id. (emphasis added).
111 See supra Note 36.
23
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP acknowledges that Entergy discovered groundwater contamination in 2005 and thereafter began a groundwater monitoring program. 112 NRC Staff also recognized Entergys conclusions that the radionuclide releases would not affect environmental resources, such as water use and aquatic ecology, as well as Entergys assertions that no NRC dose limits had been exceeded and no drinking water exposure pathway existed. 113 NRC Staff further acknowledged that Entergy had taken measures to control the releases from the Unit 1 and 2 spent fuel pools and instituted monitoring actions to be used throughout the license renewal term. 114 In addition to reviewing Entergys ER, NRC Staff also reviewed a report generated by Entergy in January 2008 concerning the results of a two-year investigation of the onsite radiological leaks to groundwater at Indian Point. 115 As discussed in the NRC Staffs FSEIS, Entergys investigation had characterized the groundwater, identified sources of leakage, and determined the radiological impacts resulting from the leakage. 116 Along with this investigation report, Entergy indicated to NRC Staff that it had begun a long-term groundwater monitoring program and initiated a remediation program to address the site groundwater conditions, and that it had performed, and would continue to perform, radiological dose impact assessments. 117 NRC Staff acknowledged that Entergys investigation had indicated that the only noteworthy dose pathway resulting from contaminated groundwater migration to the Hudson River is 112 Indian Point FSEIS at 2-110; see also Indian Point DSEIS at 2-107.
113 Indian Point FSEIS at 2-110; see also Indian Point DSEIS at 2-107.
114 Indian Point FSEIS at 2-110; see also Indian Point DSEIS at 2-107.
115 Indian Point FSEIS at 2-110 to 2-211; see also Indian Point DSEIS at 2-107; GZA, GeoEnvironmental, Inc.,
Hydrogeologic Site Investigation Report, Indian Point Energy Center, January 7, 2008, IPEC00195418 (hereinafter GZA Site Investigation Report) (Exhibit RIV000066).
116 Indian Point FSEIS at 2-211; see also Indian Point DSEIS at 2-107.
117 Indian Point FSEIS at 2-211; see also Indian Point DSEIS at 2-107.
24
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP through the consumption of fish and invertebrates from the river, the calculated NRC dose for which, according to Entergy, was below allowable limits. 118 The FSEIS next discussed NRCs own extensive inspection of Entergys actions to respond to the abnormal leakage as well as Entergys groundwater monitoring program, which was memorialized in a report dated May 13, 2008. 119 According to the FSEIS, this inspection focused on evaluating the extent of the contamination and on the effectiveness of actions taken or planned to effect mitigation and remediation of the condition. 120 NRC Staff adopted the findings and content of the NRCs investigation in the FSEIS, including the following inspection findings:
(12) Currently, there is no drinking water exposure pathway to humans that is affected by the contaminated groundwater conditions at the IP2 and IP3 site. Potable water sources in the area of concern are not presently derived from groundwater sources or the Hudson River. The principal exposure pathway to humans is from the assumed consumption of aquatic foods . . .
from the Hudson River . . . [h]owever, no radioactivity distinguishable from background was detected during the most recent sampling and analysis of fish and crabs.
(13) The annual calculated exposure to the maximum exposed hypothetical individual, based on [NRC Dose guidelines] . . .
relative to the liquid effluent aquatic food exposure pathway is currently, and expected to remain, less than 0.1% of NRCs As Low As is Reasonably Achievable (ALARA) guidelines. . . which is considered to be negligible with respect to public health and safety, and the environment. 121 NRC Staff further reported that Entergy had fulfilled previously-stated commitments to remove the spent fuel from the Indian Point Unit 1 spent fuel pool, drain and clean the Unit 1 pool, and 118 Indian Point FSEIS at 2-211; see also Indian Point DSEIS at 2-107.
119 Indian Point FSEIS at 2-211; see also Indian Point DSEIS at 2-107; Indian Point Nuclear Generating Units 1 & 2
- NRC Inspection Report Nos. 05000003/2007010 and 05000247/2007010, EA-08-088, May 13, 2008 (hereinafter May 13, 2008 Inspection Report) (Exhibit RIV000067).
120 Indian Point FSEIS at 2-211; see also Indian Point DSEIS at 2-107.
121 Indian Point FSEIS at 2-211; see also Indian Point DSEIS at 2-107 to 2-108.
25
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP incorporate aspects of the long-term groundwater monitoring program into the Offsite Dose Calculation Manual. 122 Without actually discussing any findings since NRCs 2008 inspection report, the FSEIS, which was issued in December 2010, states that NRC findings since the 2008 inspection reports have been consistent with the 2008 inspection report. 123 NRC Staff also discussed an investigation into the groundwater contamination by New York State, which became involved in order to ensure that Entergy performs a timely, comprehensive characterization of the site groundwater contamination, takes appropriate actions to identify and stop the sources of the leak, and undertakes any necessary remedial actions. 124 NRC Staffs FSEIS lists several findings reported by New York State, including that there are no current impacts to drinking water sources, that the contamination at Indian Point is migrating into the Hudson River, that public exposure can occur through consumption of fish, and that, while Strontium-90 levels in fish near the site had not been detected higher than in fish collected from background locations, that recent strontium-90 data in fish was limited and that the State planned to conduct additional sampling. 125 The evaluation of the radiological leakage issue described above totaled less than 3 pages of the over 600-page Main Report of the NRC Staffs FSEIS. NRC Staff assessed the degree of impact of the radiological leaks as a result of license renewal in several sections of the FSEIS, though, arriving at the same, largely verbatim, conclusions in each. First, in relation to Radiological Impacts of Normal Operation, NRC Staff concluded that the new issue of potential ground water contamination and a new radioactive liquid effluent release pathway as a 122 Indian Point FSEIS at 2-2111; see also Indian Point DSEIS at 2-108.
123 Indian Point FSEIS at 2-2112.
124 Indian Point FSEIS at 2-2112; see also Indian Point DSEIS at 2-108.
125 Indian Point FSEIS at 2-2112; see also Indian Point DSEIS at 2-108 to 2-109.
26
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP result of leakage from the plant . . . is not significant, and thus does not challenge the finding in the GEIS [relating to the radiological impacts of normal operations] that the impacts to human health during license renewal term are SMALL, and additional plant specific mitigation measures are not likely to be sufficiently beneficial to be warranted. 126 NRC Staff determined that the abnormal liquid releases discussed by Entergy in its ER, while new information, are within the NRCs radiation safety standards . . . and are not considered to have a significant impact on plant workers, the public, or the environment. 127 NRC Staff further acknowledged that Entergys commitments for long-term monitoring and remediation will help to minimize the potential impacts from contaminated ground water and help maintain radiological impacts within NRC radiation safety standards. 128 NRC Staff next evaluated the impacts of the radiological leaks in relation to Ground Water Use and Quality impacts. In this regard, NRC similarly concluded that [t]he abnormal liquid releases discussed by Entergy in its ER, while new information, are within the NRCs radiation safety standards and are not considered to have a significant impact on plant workers, the public, or the environment (i.e., while the information related to spent fuel pool leakage is new, it is not significant). 129 Lastly, NRC Staff included another section specifically pertaining to the Evaluation of New and Potentially Significant Information on Impacts of Operations during the Renewal Term. 130 Once again, NRC Staff concluded that abnormal liquid releases discussed by Entergy in its ER, while constituting new information, are within the NRCs radiation safety standards 126 Indian Point FSEIS at 4-41; see also Indian Point DSEIS at 4-35.
127 Indian Point FSEIS at 4-41; see also Indian Point DSEIS at 4-36.
128 Indian Point FSEIS at 4-41; see also Indian Point DSEIS at 4-36.
129 Indian Point FSEIS at 4-56; see also Indian Point DSEIS at 4-49.
130 Indian Point FSEIS at 4-61; see also Indian Point DSEIS at 4-54.
27
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP and are not considered to have a significant impact on plant workers, the public, or the environment (i.e., while the information related to spent fuel pool leakage is new, it is not significant). 131 Furthermore, NRC Staff also mentions the radiological leaks in its assessment of cumulative impacts of the continued operation of Indian Point. In relation to assessing Cumulative Radiological Impacts, NRC Staff indicates that [f]or the new issue identified by Entergy concerning the tritium leak into the Hudson River . . .[n]o adverse impacts were identified from the tritium leak into the Hudson River and concluded that cumulative radiological impacts are SMALL. 132 In relation to assessing Cumulative Impacts on Ground Water Use and Quality, NRC Staff acknowledges that tritium, cesium, cobalt, nickel, and strontium have been found in the groundwater, but explains the contaminated ground water will be transported to the Hudson River and not offsite in a direction that might lead it to be captured by an offsite ground water user. 133 NRC Staff, thus, found that there were no users of the onsite groundwater and that [a]ny effects from the plant, previous development, or future development on site will likely remain confined to effects on ground water transiting the site to the Hudson River, and thus, are likely to be limited. 134 As a result, NRC concluded that the cumulative impact on the sites ground water use and quality are SMALL. 135 B. Inadequacies of Entergy and NRC Staffs Assessments of Spent Fuel Pool Leaks The testimony provided by Mr. Gundersen and Ms. Stewart, along with supporting documentary evidence, demonstrates that the above-described environmental assessments are 131 Indian Point FSEIS at 4-61; see also Indian Point DSEIS at 4-54.
132 Indian Point FSEIS at 4-67 to 4-68; see also Indian Point DSEIS at 4-60 to 4-61.
133 Indian Point FSEIS at 4-69; see also Indian Point DSEIS at 4-62.
134 Indian Point FSEIS at 4-69; see also Indian Point DSEIS at 4-62.
135 Indian Point FSEIS at 4-69; see also Indian Point DSEIS at 4-62.
28
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP grossly insufficient to meet the requirements of NEPA and/or NRC regulations. Entergy and NRC Staffs evaluations of spent fuel pool leaks at Indian Point are deficient in the following specific ways:
- i. Failure to Recognize and Assess Ongoing and Likely Future Leaks from the Indian Point Unit 2 Spent Fuel Pool The evaluations in Entergys ER and NRC Staffs FSEIS were, in part, premised upon the unsupported notion that the leaks from the Indian Point Unit 2 spent fuel pool were under control, and that there is no active leakage from the Unit 2 pool. 136 This position, however, was unsupported by the facts, and, as Mr. Gundersen explains, since the submission of Entergys LRA, the Unit 2 spent fuel pool has continued to be a problem. The Unit 2 spent fuel pool will likely continue to be a source of radiological leaks to the groundwater during the proposed extended licensing terms. Neither Entergy nor the NRC Staff have recognized this likelihood, let alone assessed the environmental impacts of such ongoing and likely future leaks from the Unit 2 pool.
Entergy attributed the contamination related to the Unit 2 spent fuel pool to historical leaks that occurred in the 1990s, which Entergy claimed had been repaired. 137 However, leaks from the Unit 2 pool, and contamination resulting from therein, have persisted since the historical occurrences, and at the time Entergy submitted its LRA, the evidence clearly indicated an active leak mechanism. First, Entergy does not dispute that in 2005, leaks from the Unit 2 spent fuel pool, resulting from cracks in the pool wall, were discovered. 138 While Entergy claims that this leak was subsequently addressed with the installation of a containment system to 136 See Indian Point ER at p.5-6 (contamination in that area is not consistent with active leakage . . . measures have and are being taken to control releases from the Spent Fuel Pools) (emphasis added); Indian Point FSEIS at 2-110; see also Indian Point DSEIS at 2-107.
137 Indian Point ER at p.5-6.
138 Id. at p.5-4.
29
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP preclude future releases to the groundwater, 139 sample results clearly indicated that significant tritium contamination of the groundwater in the vicinity of Indian Point Unit 2 occurred between 2000 and 2005, negating Entergys claim that the contamination was the remnant of historic leakage. 140 In particular as explained in NRCs 2006 Special Inspection Report, while sampling in 2000 in a certain monitoring well detected no radionuclide activity, sampling after the discovery of the crack in the wall of the Unit 2 spent fuel pool showed the presence of 211,000 pCi/Liter of tritium. 141 This clearly indicates that a significant amount of leakage and contamination, in fact, occurred, after the historical Unit 2 pool incident.
Furthermore, leakage problems with the Unit 2 spent fuel pool have continued since Entergys discovery of structural degradation of the pool wall in 2005. In 2007, Entergy found a pinhole defect in the stainless steel Transfer Canal liner of the Unit 2 pool causing leaks to the groundwater. 142 Entergy claims that this leak was repaired in December 2007. 143 Most recently, as Mr. Gundersen explains, during the third quarter of 2010, Entergy discovered a leak path from light boxes near the top of the [Unit 2] SFP, allowing water to get behind the stainless steel liner plates on the face of the SFP, which had contributed tritium contamination to the groundwater. 144 As of at least July 2011, Entergy has yet to permanently resolve this leak. 145 As such, this ostensibly remains a current source of active leakage.
139 See Entergy, Groundwater Investigation Executive Summary, Indian Point Energy Center, Buchanan, NY (January 2008), at 1-2 (Exhibit RIV000068).
140 See Indian Point ER at p.5-4.
141 Indian Point Nuclear Generating Unit 2 - Special Inspection Report No. 05000247/2005011 (March 16, 2006),
ADAMS Accession No. ML060750842 (Exhibit RIV000069); see also Indian Point ER at 5-4.
142 See Entergy, Groundwater Investigation Executive Summary, Indian Point Energy Center, Buchanan, NY (January 2008), at 1-2 (Exhibit RIV000068); see also Indian Point Energy Center Status Report (Sept. 6, 2007)
(Exhibit RIV000070).
143 See Riverkeeper Exhibit RIV00000X (Entergy GW Investigation Summary at 1).
144 In the Matter of Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations Incs Joint Application for CWA § 401 Water Quality Certification, Prefiled Testimony of 30
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Additionally, Mr. Gundersens testimony elucidates the fact that it is impossible for Entergy to definitively rule out other current active leaks in the Unit 2 spent fuel pool. 146 In particular, Mr. Gundersen explains that Entergy has yet to definitively prove that other active leaks from the Unit 2 pool have ceased because Entergy has been unable to inspect 40% of the Unit 2 pool liner, due to the high density of the spent fuel storage racks and the minimal clearance between the bottom of the racks and the floor and sides of the pool. 147 Mr. Gundersen points to an Entergy e-mail correspondence which explains the significant challenges to inspecting the Unit 2 spent fuel pool for leaks, the concern that such areas may have leak paths, and the lack of ability to inspect for and repair any such leaks:
[T]he examination of the spent pool floor will be challenging. . . .
but to obtain meaningful results is an entirely different story. . .
.[A] challenge would be the 30 years of debris accumulated on the bottom of the fuel pool. . . . The alternative to not cleaning would be the equivalent of trying to located [sic] cracks in a sidewalk, with 2 of snow covering the sidewalk. . . . [T]he examination of the spent fuel pool wall behind the fuel racks is especially challenging. . . . While it is important to identify any area of potential leakage, it is also important to consider the ability to repair areas of potential leaks. . . . there are hundreds of indications that would be considered unacceptable and potential leak paths by any welding standard, in the areas we have examined so far. I would not expect the quality of the floor plates or exposed wall sections to be any different. 148 Matthew J. Barvenik, Issue for Adjudication No. 3 - Radiological Materials (July 22, 2011), at 11 (hereinafter Barvenik Testimony) (Exhibit RIV000071); Gundersen Testimony at 6-7 (Exhibit RIV000060) 145 See Barvenik Testimony at 11 (Exhibit RIV000071).
146 Gundersen Testimony at 7-8 (Exhibit RIV000060).
147 See U.S. Nuclear Regulatory Commission, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, Docket Nos. 50-247 and 50-286 (November 2009), at 3-134, accessible at, http://www.nrc.gov/reading-rm/adams/web-based.html, NRC ADAMS Accession No. ML093170671 (IP SER); Gundersen Testimony at 7 (Exhibit RIV000060).
148 E-mail from Michael Rutkoske to Steven Verrochi (Entergy), Re: SFP Exams - What's Next? (Nov. 19, 2005),
IPEC00065830 (Exhibit RIV000072); Gundersen Testimony at 7-8 (Exhibit RIV000060).
31
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Another Entergy document reviewed by Mr. Gundersen states that Entergys remote operated vehicle encountered numerous interferences [and] substantial debris on the floor, when attempting to inspect the area beneath the spent fuel racks, and that there was a need for a plan to remove the debris. 149 Another Entergy report also notes how only a portion of the pool has been able to be inspected due to interference limitations. . . . 150 Furthermore, Mr. Gundersen observes that Entergy has repeatedly conceded that other current leaks from the Unit 2 spent fuel pool that Entergy has not detected are possible. In Entergys Groundwater Investigation Executive Summary report, Entergy indicates explicitly that additional active leaks cannot be completely ruled out. 151 In an e-mail exchange, an Entergy representative stated that we believe there could be other leaks in the unit 2 fuel pool that we cannot observe. . . 152 Additionally, in the most recent quarterly monitoring report disclosed by Entergy and in Riverkeepers possession as of the date of this Statement of Position and Mr. Gundersens testimony, related to the second monitoring quarter of 2010, Entergys vendor, GZA, GeoEnvironmental, Inc. (GZA) states that in light of recent behavior observed in the Unit 2 collection box data . . . additional investigations/data evaluations are underway to further rule out potential Unit 2 SFP leak mechanisms but that such analyses cannot definitively and completely rule out the possibility of a remaining small leak which could then 149 Entergy, U2 SFP Leak Monitoring Wells and Underground Piping (3/31/06), IPEC00063518 (Exhibit RIV000073); Gundersen Testimony at 8 (Exhibit RIV000060).
150 Entergy, Problem Development Sheet - Groundwater, IPEC00207416 (Exhibit RIV000074); Gundersen Testimony at 8 (Exhibit RIV000060).
151 Entergy, Groundwater Investigation Executive Summary, Indian Point Energy Center, Buchanan, NY (January 2008), at 1-2 (Exhibit RIV000068); Gundersen Testimony at 8 (Exhibit RIV000060).
152 E-mail from Ronald Sachatello to Donald Mayer (Entergy), Joseph Adler (TLG), Gary Hinrichs (Entergy), Re: IS THE POOL LEAK OFF COLLECTION BOX EFFECTIVE?, IPEC00063351 (Exhibit RIV000075); Gundersen Testimony at 8 (Exhibit RIV000060).
32
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP also be supplying Tritium to the groundwater flow regime. 153 NRC has also expressed uncertainty as to whether the leakage problems [from the Unit 2 spent fuel pool] have been permanently corrected. 154 Based on this evidence, there is simply no support for Entergys apparent position, which constitutes a key premise relied upon for Entergy and NRCs NEPA assessment, that there are no active leaks from the Indian Point Unit 2 spent fuel pool. This reality has not been adequately accounted for in Entergy or NRC Staffs evaluation of the impact of spent fuel pool leaks.
In addition to failing to account for ongoing leaks from the Unit 2 spent fuel pool, neither Entergy nor NRC Staff assess the environmental impact of likely future leaks, that is, additional leaks from the Unit 2 pool during the proposed license renewal term. In Mr. Gundersens opinion, such leaks, and additional groundwater contamination as a result thereof, are quite probable, as Entergy has no preventative measures in place to be able to detect future leaks from the Unit 2 pool during the proposed relicensing term. 155 Mr. Gundersen explains how Entergy has made no commitment for augmented inspection [of the Unit 2 pool liner] during the extended period of operation, and instead relies upon a one-time inspection, performed in 2007, of the limited accessible portion of the liner for its assurance that the liner is sound and will remain sound throughout the proposed 20-year relicensing term. 156 Instead of committing to regular inspections, or explaining potential other steps Entergy could take to proactively find any and all sources of leaks from the pools now and in the future, Entergy is simply going to depend upon its purely reactive groundwater monitoring program to detect any problems in the future.
153 GZA, GeoEnvironmental, Inc. Final IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter Two 2010 (Report No. 10) (February 15, 2011), IPEC00227561, at p.1-3, footnote 6 (emphasis added) (Exhibit RIV000076); Gundersen Testimony at 8 (Exhibit RIV000060).
154 IP SER at 3-134.
155 Gundersen Testimony at 9-11 (Exhibit RIV000060).
156 Gundersen Testimony at 20 (Exhibit RIV000060); IP SER at 3-134, 139.
33
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Notably, as Mr. Gundersen points out, the Unit 2 pool does not have a tell tail [sic] drain collection system, that the Unit 3 pool and other nuclear power plant spent fuel pools have to detect leakage before it enters the environment. 157 Mr. Gundersen explains how NRC has already approved Entergys plan to simply monitor radionuclide levels in the groundwater as the method to detect any future leaks and degraded condition of the pools:
To provide additional indication of potential spent fuel pool leakage, the applicant has committed to test the groundwater outside the IP2 spent fuel pool for the presence of tritium from samples taken from adjacent monitoring wells, every 3 months.
The presence of tritium in the groundwater could be indicative of a continuing leak from the spent fuel pool. . . . Based on . . .
applicants additional commitment to monitor the groundwater samples from monitoring wells adjacent to the spent fuel pool, there is reasonable assurance that any degradation of the IP2 spent fuel pool would be identified. 158 However, Mr. Gundersen observes that such a method would only be able to discover leaks after they occur. 159 This sampling regime was accepted by NRC only because it provided assurance that problems in the spent fuel pool would be identified and corrected prior to loss of intended function. 160 Mr. Gundersen clarifies that NRCs relevant concern is not whether leaks would be prevented from entering the environment, but rather, whether Entergy could detect a critical condition in the pool that could cause a safety issue, such as a catastrophic fire. 161 Thus, NRC Staff did not approve of Entergys commitment as a system to stop components from leaking.
As Mr. Gundersen explains, from the NRC Staffs perspective, Entergys monitoring program 157 Gundersen Testimony at 10 (Exhibit RIV000060); Entergy, Problem Development Sheet - Groundwater, IPEC00207416 (Exhibit RIV000074).
158 Gundersen Testimony at 10 (Exhibit RIV000060); IP SER at 3-134, 3-139.
159 Gundersen Testimony at 10 (Exhibit RIV000060).
160 IP SER at 3-139, 3-140.
161 Gundersen Testimony at 11 (Exhibit RIV000060).
34
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP will work despite component leaks. 162 Therefore, NRCs Staffs acceptance of Entergys intended plan to detect future leaks from the Unit 2 spent fuel pool puts Entergys inability to preventatively detect leaks from the pool during the period of extended operation starkly into focus.
Because Entergy has chosen to rely upon groundwater monitoring to detect any future leaks, this necessarily means that any actual future leaks that occur will not be prevented, but rather, will contaminate the environment. Indeed, relying upon a groundwater monitoring program will only detect leaks from the Unit 2 pool weeks, months, or even years after they occur and have manifested in levels in the monitoring wells, especially given the fact that samples are only taken once a quarter, i.e., every three months. For example, as Mr. Gundersen points out, the new leak path associated to the Unit 2 pool was discovered during the third-quarter of 2010 only after elevated levels of tritium were detected in well samples. 163 Mr.
Gundersen opines that it is unlikely that this newly identified leak suddenly emerged in 2010. 164 Rather, Mr. Gundersen testifies that this leak most likely existed undetected for many years. 165 Mr. Gundersens analysis raises significant questions regarding Entergys inability to timely prevent or identify the source of this new leak by either its previous inspection of, or groundwater monitoring techniques applied to, the Unit 2 spent fuel pool. 166 This despite the fact that the section of the pool in which this leak was found was easily accessible.
Furthermore, Mr. Gundersens review of Entergys groundwater monitoring documentation revealed that the system at Indian Point has limitations and will not even be able 162 Id.
163 Barvenik Testimony at 11:3-4 (Exhibit RIV000071); see Gundersen Testimony at 10 (Exhibit RIV000060).
164 Gundersen Testimony at 9 (Exhibit RIV000060).
165 Id.
166 Gundersen Testimony at 9 (Exhibit RIV000060).
35
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP to detect all leaks during the proposed period of extended operation. 167 As GZA explains,
[w]hile it is not possible to quantify the size of the minimum detectable leak with any degree of certainty, we believe that the maximum leak rate from the Unit 2 SFP that could potentially remain undetected by the groundwater monitoring system is less than 10 to 30 gpd [gallons per day]. 168 As such, the groundwater monitoring system is not sensitive to smaller leaks, which would continue undetected, unabated, and unaddressed in light of Entergys chosen method for managing radiological leaks.
Entergys sole reliance on groundwater monitoring is highly problematic in light of the fact that the aging Unit 2 spent fuel pool is likely to experience additional leaks in the future.
Mr. Gundersen explains that the fact that a new leak in the pool was identified in 2010, more than three years after all leaks were reportedly repaired and an alleged thorough examination of the Unit 2 spent fuel pool was conducted, 169 calls into question the thoroughness of Entergys initial investigation and inspection of the Indian Point Unit 2 spent fuel pool, and is evidence that Entergy failed to adequately address serious aging management issues facing the Unit 2 pool. 170 Along these lines, Mr. Gundersen observes how the leak collection box that was installed in 2007 to prevent contamination from entering the groundwater failed to meet its intended design function. 171 Mr. Gundersen also explains that the Unit 2 pool is 35 years old, and facing the typical bathtub curve, in which the pool will face more aging and leakage issues as Indian Point 167 Gundersen Testimony at 12 (Exhibit RIV000060).
168
- p. GZA, GeoEnvironmental, Inc. Final IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter Two 2010 (Report No. 10) (February 15, 2011), IPEC00227561, at p.1-3, footnote 6 (emphasis added) (Exhibit RIV000076); Gundersen Testimony at 12 (Exhibit RIV000060).
169 See, e.g., Indian Point ER at 5-4 to 5-5; GZA Site Investigation Report (Exhibit RIV000066).
170 Gundersen Testimony at 9 (Exhibit RIV000060).
171 Id.
36
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP continues to operate, not less. 172 In fact, Entergy acknowledges that the Unit 2 spent fuel pool is susceptible to future leaks, indicating in one document that the potential for leakage from pool is High. 173 Entergy has further acknowledged that the fact that the Unit 2 pool does not have a drain collection system to detect leaks (unlike the Unit 3 pool), poses a vulnerability for additional activity leakage. 174 Thus, Entergys refusal to perform proactive inspections of an increasingly degraded component during the proposed extended licensing term makes future undetected leaks from the Unit 2 pool very likely.
Mr. Gundersen concludes that due to (1) the already degraded condition of the Unit 2 spent fuel pool (as indicated by a long history of problems), (2) Entergys failure to fully discern the extent and status of the current leakage, and (3) the fact that there are no measures in place at Indian Point to be able to anticipate and avert future leaks from the Unit 2 pool, it is highly foreseeable that the operation of Indian Point for an additional 20 years will result in additional accidental releases of radioactive water from the Unit 2 spent fuel pool 175 Any such new leaks will add to the already extensive contamination in the groundwater. 176 Neither Entergy, nor NRC Staff considered the environmental impacts of the ongoing and likely future Unit 2 spent fuel pool leaks (including but not limited to the cumulative impacts in light of the already existing plumes of contamination in the groundwater, impacts to the aquatic ecosystem, including endangered species, and impacts to potential drinking water sources), or appropriate mitigation measures to minimize adverse impacts to the environment (as discussed further 172 Gundersen Testimony at 10-11 (Exhibit RIV000060).
173 Entergy Chart of Leak Locations, IPEC00059360 (Exhibit RIV000077); Gundersen Testimony at 11 (Exhibit RIV000060).
174 Entergy, Problem Development Sheet - Groundwater, IPEC00207416 (Exhibit RIV000074); Gundersen Testimony at 10 (Exhibit RIV000060).
175 Gundersen Testimony at 11 (Exhibit RIV000060).
176 Gundersen Testimony at 15-16 (Exhibit RIV000060); see also Barvenik Testimony at 11 (discussing how the latest Unit 2 spent fuel pool caused spikes in the contamination levels) (Exhibit RIV000071).
37
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP below). Such an assessment is required by NEPA, 177 and, accordingly, Entergys ER and NRC Staffs FSEIS remain deficient.
ii. Failure to Properly Consider the Contamination Resulting from Indian Point Unit 1 Spent Fuel Pools Entergy and NRC Staffs evaluation of the spent fuel pool leaks incorrectly dismiss the significance of the leaks that have occurred from the Unit 1 spent fuel pools. In particular, Entergys ER indicated that Entergy had committed to remove the spent fuel from the pool, while NRC Staffs FSEIS favorably acknowledges the fact that Entergy completed this commitment, and both seemingly leave the assessment at that. 178 This is far from a complete evaluation of the impacts of the leaks from the Unit 1 pool that will occur if Indian Point is relicensed.
To begin with, the leaks from the Unit 1 spent fuel pool occurred for a long period of time. The leaks are estimated to have begun in the mid-1990s, 179 and problematic leaks continued up until Entergy finally completed draining the pools. For example, for months leading up to Entergys draining of the final West Pool, it was leaking 70 gallons of radioactive water per day. 180 As Mr. Gundersen explains, decades of leaks from the Unit 1 pools has resulted in an extensive residual plume of contamination. 181 Mr. Gundersen and Ms. Stewart both testify to the fact that the radionuclides present in the groundwater plume resulting from the Unit 1 pool leaks are of a highly toxic, cancer-causing, long-lived variety, including Strontium-177 See 40 C.F.R. § 1508.27(b) (requiring assessment of cumulative impacts, when assessing the significance of an impact); 40 C.F.R. §§ 1508.7, 1508.8, 1508.25(a)(2), (c); 1508.25(b)(3); Ground Zero Ctr. for Non-Violent Action v.
United States Dep't of the Navy, 383 F.3d 1082, 1089 (9th Cir. Wash. 2004) (agencies must examine the reasonably foreseeable environmental effects of their proposed actions when conducting environmental review) 178 See Indian Point ER at 5-5; Indian Point FSEIS at 2-2111; see also Indian Point DSEIS at 2-108.
179 See Entergy, Groundwater Investigation Executive Summary, Indian Point Energy Center, Buchanan, NY (January 2008), at (Exhibit RIV000068).
180 GZA Site Investigation Report at 107 (Exhibit RIV000066).
181 Gundersen Testimony at 12 (Exhibit RIV000060).
38
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP 90 and Cesium-137. 182 This plume will remain in the groundwater and slowly leach to the Hudson River for decades, if not centuries. 183 Additionally, considerable contamination from the leaks remains in the concrete and structures associated with the Unit 1 pools, including the north curtain drain and the sphere foundation drain sump. 184 As Mr. Gundersen explains, until the entire Indian Point site is decommissioned, at which time, and only at which time, and all structures will be dismantled and decontaminated, residual contamination contained in such structures will continue to be a source of radiological releases to the environment. 185 Thus, while the pools are no longer actively leaking, the past leaks will continue to result in releases to the groundwater, and eventual discharge to the Hudson River, for years to come, and certainly throughout the proposed period of extended operation.
Since the leaks and contamination from the Unit 1 spent fuel pools will result in foreseeable impacts to the environment during the proposed 20-year extended licensing term, Entergy and NRC Staff must fully assess such impacts. This includes (1) an assessment of how the toxic radionuclides involved may bioaccumulate and affect the aquatic ecology of the river over time; (2) the impact of the Unit 1 leaks when viewed cumulatively with current and future Unit 2 spent fuel pool leaks (as discussed above), and current and future leaks from other plant components (as discussed below), which will undoubtedly affect the movement of radionuclides that are in the groundwater as a result of the Unit 1 pool leaks; (3) an evaluation of appropriate 182 See Gundersen Testimony at 12 (Exhibit RIV000060); Stewart Testimony at 3 (Exhibit RIV000061).
183 See Gundersen Testimony at 12 (Exhibit RIV000060); Stewart Testimony at 3 (Exhibit RIV000061).
184 See In the Matter of Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations Incs Joint Application for CWA § 401 Water Quality Certification, Combined Prefiled Rebuttal Testimony of Thomas C. Esselman, Ph.D., Matthew J. Barvenik, and Owen Hoffman, Ph.D., Radiological - Issue for Adjudication No. 3 (October 4, 2011), at 23 (Barvenik Rebuttal Testimony) (Exhibit RIV000099).
185 Gundersen Testimony at 12 (Exhibit RIV000060).
39
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP measures that would mitigate the adverse environmental impacts of the Unit 1 leaks, as discussed further below. 186 Clearly, the fact that Entergy has now emptied and drained the Unit 1 pools should not be the end of the inquiry regarding the impacts of the Unit 1 pool leaks. NRC Staff and Entergy have failed to perform any assessment, let alone a complete assessment of these leaks, and their respective conclusions that the spent fuel pool leaks generally are not significant remains unfounded and deficient. Indeed, a full assessment of the Unit 1 pool leaks tends to indicate that the spent fuel pool leaks are significant in light of the contamination caused by the Unit 1 pools, given the toxic and persistent nature of the radionuclides involved and the prospective cumulative impacts of all the other ongoing and likely future radiological leaks at Indian Point.
iii. Failure to Account for and Assess the Impact of Current and Likely Future Leaks from Other Plant Components In addition to spent fuel pool leaks, other radiological leaks from plant systems, structures and components have occurred at Indian Point in recent years, contributing to the already existing contamination plumes that underlie the site and to the radiological releases to the Hudson River. Despite the fact that numerous other component leaks have occurred prior to the issuance of the FSEIS, NRC Staff does not assess how such leaks, or likely future leaks, will impact the current groundwater contamination or the Hudson River. Such an assessment is necessary pursuant to NEPAs requirement to evaluate cumulative impacts of a proposed action, that is, the incremental impact of the action when added to other past, present, and reasonably foreseeable actions. 187 As such, the FSEIS must include a meaningful assessment of other past, 186 See 40 C.F.R. § 1508.27(b) (requiring assessment of cumulative impacts, when assessing the significance of an impact); 40 C.F.R. §§ 1508.7, 1508.8, 1508.25(a)(2), (c); 1508.25(b)(3); Ground Zero Ctr. for Non-Violent Action v.
United States Dep't of the Navy, 383 F.3d 1082, 1089 (9th Cir. Wash. 2004) (agencies must examine the reasonably foreseeable environmental effects of their proposed actions when conducting environmental review).
187 See 40 C.F.R. §§ 1508.7.
40
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP present, and reasonably foreseeable radiological leaks, and evaluate the expected impact in light of the accumulation of the individual impacts. 188 In other words, since other component leaks have affected and will continue to affect the contamination caused by the spent fuel pool leaks at Indian Point, and will also contribute to radioactive contamination entering the Hudson River, NRC Staff cannot view the impacts of the spent fuel pool leaks in a vacuum. 189
- 1. Component Leaks at Indian Point Indian Point has experienced numerous radiological leaks since the plant started operating, as memorialized in a list of leaks included as an exhibit to Clearwaters original petition to intervene in the Indian Point license renewal proceedings. 190 These leaks have resulted in thousands of gallons of radioactively contaminated water to be released to the environment over the years. Mr. Gundersens testimony describes several, more recent incidents, which demonstrate that accidental component leaks and releases are continuing in nature and squarely impact the existing plumes of groundwater contamination at Indian Point, as well as the amount of radioactivity reaching the Hudson River:
- In February 2009, unmonitored, undetected corrosion in a pipe buried eight feet underground at Indian Point leaked and was discovered when a plant worker observed water on the floor. This incident resulted in the release of 100,000 gallons of tritiated water to the groundwater 191; 188 See Grand Canyon Trust v. FAA, 290 F.3d 339, 345-46 (D.C. Cir. 2002).
189 Grand Canyon Trust v. FAA, 290 F.3d 339, 346 (D.C. Cir. 2002).
190 Clearwater Petition to Intervene at Exhibit 3 (Timeline of Leaks at Indian Point by Jonathan Stanton, November 24, 2007), ADAMS Accession No. ML073520042.
191 IPEC Site Management Manual, IP-SMM, CY-110, Rev. 1, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 1, 2009), IPEC00225217 (Exhibit RIV000078); Annie Correal, Indian Pt. Broken Pipe Spurs Safety Worries, THE NEW YORK TIMES (March 1, 2009) (Exhibit RIV000079); Gundersen Testimony at 13 (Exhibit RIV000060).
41
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP
- In early 2009, leakage of water in a distillation tank valve located within the Indian Point Unit 1 chemical systems building caused an increase in tritium levels in nearby monitoring wells 192;
- In November 2009, a RWST 193 processing skid spilled RWST water to the MOB yard area adjacent to the Unit 2 PAB. 194 This led to the detection of greatly elevated levels of tritium in the groundwater 195;
- Since at least 2009, Entergy has been detecting elevated levels of radioactivity in storm drains at Indian Point, indicating leaks and discharges from as yet undetermined sources.
For example, in March 2009, concentrations of tritium were detected in a storm drain at 90,000 pCi/L, which Entergy speculated was the result of failures in underground piping or an unknown source. 196 During the fourth quarter of 2010, as well as the first quarter of 2011, elevated tritium was again observed in a storm drains, which is, again, indicative of leaks somewhere onsite that have yet to be identified and addressed; 197 192 Barvenik Direct Testimony at 10 (Exhibit RIV000071); Gundersen Testimony at 13 (Exhibit RIV000060).
193 RWST stands for Reactor Waste Storage Tank.
194 PAB stands for Primary Auxiliary Building.
195 IPEC Site Management Manual, IP-SMM, CY-110, Rev. 3, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 1, 2010), IPEC00225219 (Exhibit RIV000080); IPEC Site Management Manual, IP-SMM, CY-110, Rev.
1, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 2, 2010), IPEC00225223 (Exhibit RIV000081);
Gundersen Testimony at 13 (Exhibit RIV000060).
196 Entergy, Nuclear Management Manual, EN-MA-125, Rev. 4, Attachment 9.1, Initial Investigation, Troubleshooting Plan for H-3 Investigation, Storm Drain System A, March/April 2009, IPEC00194517 (hereinafter Troubleshooting Plan for H-3 Investigation) (Exhibit RIV000082); Gundersen Testimony at 14 (Exhibit RIV000060).
197 IPEC Site Management Manual, IP-SMM, CY-110, Rev. 3, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 4, 2010), IPEC00233519 (Exhibit RIV000083); IPEC Site Management Manual, IP-SMM, CY-110, Rev.
4, 10.7 RGWMP Quarterly Integrated Review Checklist (Quarter 1, 2011), IPEC00233515 (Exhibit RIV000084);
Gundersen Testimony at 14 (Exhibit RIV000060).
42
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP
- Entergy documentation indicates that washout is unusually problematic at Indian Point, and may be the cause of the highly elevated levels of tritium detected in storm drains. 198 As Mr. Gundersen explains, this phenomenon results when radioactive water leaks from plant components evaporate, causing contamination of the air inside the plant with radioactivity, which releases through vents, condenses and rains down. 199 At Indian Point, it is apparent that washout is causing radioactive releases to reach the Hudson River 200;
- And, most recently, [o]n June 27, 2011 while reviewing the second quarter 2011 groundwater monitoring well sample results, Entergy personnel identified an increase in tritium concentrations in Unit 1 monitoring wells MW-56 and MW-57 (76,000 pCi/L and 20,000 pCi/L, respectively). 201 Though Entergy personnel conducted an investigation of this unexpected condition NRC reported recently in November 2011 that the source of the contamination has not been identified. 202 Thus, it is clear that component leaks have been a problem at Indian Point and have contributed to the contamination in the groundwater and in the Hudson River.
- 2. Likely Future Leaks from Components at Indian Point During the Proposed Extended Licensing Term Mr. Gundersen testifies that, like the Indian Point Unit 2 spent fuel pool, other degrading systems, structures, and components at Indian Point are facing a bathtub curve, whereby leakage 198 Troubleshooting Plan for H-3 Investigation (Exhibit RIV000082); Gundersen Testimony at 14-15 (Exhibit RIV000060).
199 Gundersen Testimony at 15 (Exhibit RIV000060).
200 Troubleshooting Plan for H-3 Investigation (Exhibit RIV000082); Gundersen Testimony at 14-15 (Exhibit RIV000060).
201 Indian Point Nuclear Generating Unit 3 - NRC Integrated Inspection Report 05000286/2011004 (November 7, 2011), at 15-16 (Exhibit RIV000085); Gundersen Testimony at 13 (Exhibit RIV000060).
202 Indian Point Nuclear Generating Unit 3 - NRC Integrated Inspection Report 05000286/2011004 (November 7, 2011), at 15-16 (Exhibit RIV000085).
43
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP issues will most likely increase over time, and not lessen or cease. 203 Entergy has even acknowledged that there are numerous sources at the Indian Point site that have a High potential for leakage of tritium and other radioactive isotopes. 204 However, Entergy is ill-equipped to actually prevent all future leaks.
Upon reviewing documents provided by Entergy related to the leakage issues at Indian Point, Mr. Gundersen has arrived at the conclusion that Entergys approach to identifying and repairing degraded and/or leaking components is highly reactive in nature. 205 In particular, Mr.
Gundersen observes that at Indian Point, Entergy does not proactively set out to stop leaks before they occur. 206 A prime example of this approach relates to Entergys initial discovery of the 2005 Unit 2 spent fuel pool leaks. Mr. Gundersen points to Entergy documentation, which indicates that Entergy could have attained earlier indications of a problem if earlier evaluations were performed. 207 Entergy documentation also shows that the primary reason Entergy developed a program to ostensibly address the contamination at Indian Point was because of outside pressure from concerned citizen groups, the public, the media, and public officials such as former President Bill Clinton and then-Senator Hillary Clinton. 208 Entergy has continued to employ a reactive approach to the management of radiological leaks at the site since the discovery of the leaking spent fuel pools in 2005. For example, the 203 Gundersen Testimony at 16 (Exhibit RIV000060).
204 Entergy Chart of Leak Locations, IPEC00059360 (Exhibit RIV000077); Gundersen Testimony at 16 (Exhibit RIV000060).
205 Gundersen Testimony at 18 (Exhibit RIV000060).
206 Id.
207 Entergy correspondence, e-mails regarding approach to groundwater contamination, IPEC00067228, IPEC00065510, IPEC00130549, IPEC00062936 (Exhibit RIV000086); Gundersen Testimony at 18 (Exhibit RIV000060).
208 Entergy correspondence, e-mails regarding approach to groundwater contamination, IPEC00067228, IPEC00065510, IPEC00130549, IPEC00062936 (Exhibit RIV000086); Gundersen Testimony at 18 (Exhibit RIV000060).
44
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP 2009 underground pipe leak discussed in Mr. Gundersens testimony was only discovered when a plant worker found himself standing in a puddle of water. 209 Other than identifying leaks when they literally spring, Entergy substantially relies on groundwater monitoring to detect leaks from plant components, as discussed above. Therefore, as Mr. Gundersen explain, Entergy typically becomes aware of a leaking component after the effects of such leaking have manifested in monitoring well sample results, weeks, or months later. 210 However, Mr. Gundersen has observed that, even then, Entergy appears to have difficulty discerning the source of elevated sampling levels. 211 For example, as discussed above, it is apparent that Entergy has yet to definitely determine the source of leakage that is causing elevated levels of tritium in storm drains onsite, and while Entergy discovered elevated levels in Unit 1 related monitoring wells in June 2011, in a November 2011 inspection report, i.e., five months later, NRC indicated that Entergy had not yet determined the source of such tritium. 212 It is apparent that Entergy will continue to rely upon groundwater monitoring to detect other component leaks during the proposed period of extended operation. It is clear that this wait-and-see approach will not prevent future leaks.
Furthermore, when actual component inspections are involved, Mr. Gundersen explains that Entergys ability to prevent leaks is limited due to Entergys heavy reliance on physical 209 See Annie Correal, Indian Pt. Broken Pipe Spurs Safety Worries, THE NEW YORK TIMES (March 1, 2009)
(Exhibit RIV000079).
210 See Gundersen Testimony at 18 (Exhibit RIV000060).
211 Id. at 12.
212 See IPEC Site Management Manual, IP-SMM, CY-110, Rev. 3, 8.6 RGWMP Quarterly Integrated Review Checklist (Quarter 4, 2010), IPEC00233519 (Exhibit RIV000083); IPEC Site Management Manual, IP-SMM, CY-110, Rev. 4, 10.7 RGWMP Quarterly Integrated Review Checklist (Quarter 1, 2011), IPEC00233515 (Exhibit RIV000084); Indian Point Nuclear Generating Unit 3 - NRC Integrated Inspection Report 05000286/2011004 (November 7, 2011), at 15-16 (Exhibit RIV000085).
45
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP inspections. 213 In particular, Mr. Gundersen reviewed one Entergy document that identified numerous locations for which physical inspection methods are employed. 214 However, in Mr.
Gundersens expert opinion, this method is generally not adequate to detect leaks before they occur, since it does not analyze the component internally.
Mr. Gundersen opines that Entergy is failing to adequately execute and fund maintenance programs at Indian Point. 215 Indeed, this is clearly evidenced by Entergys reliance on reactive measures to address radiological leaks and failure to proactively engage in necessary inspections of problematic or potentially problematic components and structures. 216 Mr. Gundersen points to an independent report commissioned by the Vermont Legislature which confirms that [l]imited resource allocation for non-safety systems can be characterized as systemic within Entergy. 217 The report cites Entergys own findings that [t]he physical condition of the plant in non-safety areas is visibly deficient and that the care and maintenance of some . . . plant systems and structures do not meet the standards of high-performing plants. 218 In Mr. Gundersens opinion, deferred maintenance is a significant contributing factor to radiological leaks at Indian Point. 219
- 3. Likely Future Leaks from Buried Components 213 See Gundersen Testimony at 17-18 (Exhibit RIV000060).
214 Potential Sources of Tritium at IPEC & Inspection Method, IPEC00065506 (Exhibit RIV000087); see Gundersen Testimony at 17-18 (Exhibit RIV000060).
215 See Gundersen Testimony at 18-19 (Exhibit RIV000060).
216 See id. at 18.
217 Supplemental Report of the Public Oversight Panel Regarding the Comprehensive Reliability Assessment of the Vermont Yankee Nuclear Power Plant, July 20, 2010 (Exhibit RIV000088); Gundersen Testimony at 18-19 (Exhibit RIV000060).
218 Supplemental Report of the Public Oversight Panel Regarding the Comprehensive Reliability Assessment of the Vermont Yankee Nuclear Power Plant, July 20, 2010, at 9-10 (Exhibit RIV000088); Gundersen Testimony at 18-19 (Exhibit RIV000060).
219 Gundersen Testimony at 19 (Exhibit RIV000060).
46
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Buried components will become particularly problematic in relation to future radiological leaks. Mr. Gundersen discusses a recent report by the U.S. Government Accountability Office which confirms that, [t]he occurrence of leaks at nuclear power plants from underground piping systems is expected to continue as nuclear power plants age and their piping systems corrode. 220 This is especially true at Indian Pont, where Entergy does not have adequate aging management methods in place in order to be able to detect and prevent future leaks from such buried component.
In particular, Mr. Gundersen has reviewed Entergys Aging Management Program (AMP) 221 for buried pipes and structures, and explains that it is not designed to identify or stop all potential radiological leaks. 222 A considerable number of components at Indian Point are inaccessible to examination because they are buried, or otherwise obstructed. 223 However, Entergys AMP does not require inspections of 100% of such components. 224 Mr. Gundersen explains that many of Indian Points underground pipes and structures have been buried since the plant began operating and have never been inspected during the plants nearly 40 years of operation. 225 Rather, Mr. Gundersen observes that Entergys AMP largely provides only for opportunistic inspections, which only uncover a fraction of the piping at Indian Point, and even then, such pipes are only subject to physical inspections. 226 Even with enhanced inspection 220 GAO Report to Congressional Requesters, Nuclear Regulatory Commission, Oversight of Underground Piping Systems Commensurate with Risk, but Proactive Measures Could Help Address Future Leaks, GAO-11-563 (GAO Report) (June 2011) (Exhibit RIV000089); Gundersen Testimony at 17 (Exhibit RIV000060).
221 Entergy Nuclear Management Manual, EN-DC-343, Buried Piping and Tanks Inspection and Monitoring Program (Exhibit NYS000172); CEP-BPT-0100, Buried Piping and Tanks Inspection and Monitoring (Exhibit NYS000173).
222 Gundersen Testimony at 17 (Exhibit RIV000060).
223 See GAO Report at 4 (Exhibit RIV000089); Gundersen Testimony at 17 (Exhibit RIV000060).
224 Gundersen Testimony at 17 (Exhibit RIV000060).
225 Gundersen Testimony at 17 (Exhibit RIV000060).
226 Id. at 17-18.
47
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP commitments, of the miles of piping at the plant, only a small fraction will be inspected. 227 Entergy itself readily acknowledges its inability to identify and stop leaks, as an spokesperson stated in response to the February 2009 accidental underground pipe leak at Indian Point: [i]ts eight feet underground, so theres no way of knowing when you have to replace it. 228 GAO confirms that because underground piping systems tend to corrode and are largely inaccessible and difficult to inspect, the severity of leaks could increase without mitigating actions. 229 Thus, Entergys approach to managing aging buried components necessarily limits Entergys ability to identify and prevent leaks from such components before they occur. In fact, Entergys program is not designed or intended to prevent all radiological leaks, since it is a safety-related program that is only concerned with maintaining safety functions of the relevant plant components. 230 Notably, Entergys AMP is applicable on a fleet-wide basis, and has not been successful in preventing buried piping leaks at other Entergy nuclear plants. 231 The evidence demonstrates that buried components have already been problematic sources of ongoing leaks at Indian Point, and that only a limited number of components will be inspected using inferior inspection methods. As a result, in Mr. Gundersens opinion, future leaks from buried components are very likely to occur during the proposed period of extended operation and contribute to existing contamination onsite. 232 227 U.S. Nuclear Regulatory Commission, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, (NUREG-1930, Supplement 1) (August 2011), at 3-1 to 3-5, ADAMS Accession No. ML11242A215; Gundersen Testimony at 17 (Exhibit RIV000060).
228 Annie Correal, Indian Pt. Broken Pipe Spurs Safety Worries, THE NEW YORK TIMES (March 1, 2009) (Exhibit RIV000079).
229 See GAO Report at 4 (Exhibit RIV000089).
230 Gundersen Testimony at 17 (Exhibit RIV000060).
231 See GAO Report at 4 (Exhibit RIV000089); see also Gundersen Testimony at 3 (Exhibit RIV000060).
232 Gundersen Testimony at 16 (Exhibit RIV000060).
48
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP
- 4. Conclusions Regarding the Impact of Current and Likely Future Leaks from Other Plant Components The foregoing demonstrates that in addition to spent fuel pool leaks, leaks from other plant systems, structures, and components have contributed to the groundwater contamination at Indian Point. The evidence further demonstrates that it is likely that future leaks from such other plant systems, structures, and components will occur during the proposed period of extended operation. The ongoing and reasonably foreseeable future radiological leaks will undoubtedly contribute to cumulative impacts that must be assessed in order to comply with NEPA. 233 Thus, Entergys ER and NRC Staffs FSEIS remain deficient for completely failing to consider this.
iv. Failure to Properly Categorize and Assess the Level of Groundwater Contamination The environmental evaluations of both Entergy and NRC Staff incorrectly minimize the significance of the level of contamination in the groundwater at Indian Point. Entergy characterizes the contamination as being at low concentrations. 234 Further, by focusing primarily on the NRC-calculated dose impacts, both Entergy and NRC Staff quickly dismiss the leaks and contamination in the groundwater as not significant since, in their view, the leaks and contamination have not impacted public health. However, both Entergy and NRC Staff have improperly narrowed the inquiry regarding the severity of the contamination. A proper review pursuant to NEPA and NRCs own implementing regulations requires a broader consideration.
The basic tenet of NEPA is that the agency shall review all environmental impacts of a proposed action. Groundwater is an environmental resource in and of itself, and Entergy and 233 40 C.F.R. § 1508.27(b)(7); 40 C.F.R. § 1508.7; see Robertson, 490 U.S. at 356; see also Ground Zero Ctr. for Non-Violent Action v. United States Dep't of the Navy, 383 F.3d 1082, 1089 (9th Cir. Wash. 2004) (agencies must examine the reasonably foreseeable environmental effects of their proposed actions when conducting environmental review).
234 Indian Point ER at p.5-4.
49
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP NRC Staff must also asses the impacts to the groundwater likely to result from license renewal.
Furthermore, in determining whether an impact is significant, [t]he degree to which the proposed action affects public health or safety is but one of many factors to be considered. 235 Other considerations include [t]he degree to which the effects on the quality of the human environment are likely to be highly controversial and [w]hether the action threatens a violation of Federal, State, or local law or requirements. 236 In addition, according to NRCs own standards, the assessments of the environmental impacts of nuclear power plant relicensing must be accurate and complete enough to enable the Commission to make an appropriately informed determination. 237 Viewed under this broader rubric, it quickly becomes apparent that groundwater contamination at Indian Point is significant for purposes of NEPA.
In particular, a proper assessment of the significance of the contamination must take into account the following:
It is undisputed that radiological leaks at Indian Point have resulted in the presence of two groundwater plumes underlying the site. 238 These plumes contain various radionuclides including Strontium-90, Cesium-137, Nickel-63, and Tritium. 239 Mr. Gundersen and Ms.
Stewart testify that with a 30-year half-life, 240 these toxic isotopes will contaminate the environment for centuries. 241 Mr. Gundersen notes that the toxicity of strontium is much greater 235 40 C.F.R. § 1508.27(b).
236 40 C.F.R. § 1508.27(b); 10 C.F.R. § 51.71(d).
237 See 10 C.F.R. § 51.95(c)(4).
238 See generally, GZA Site Investigation Report (Exhibit RIV000066); Entergy, Groundwater Investigation Executive Summary, Indian Point Energy Center, Buchanan, NY (January 2008) (Exhibit RIV000068).
239 See generally, GZA Site Investigation Report (Exhibit RIV000066); Entergy, Groundwater Investigation Executive Summary, Indian Point Energy Center, Buchanan, NY (January 2008) (Exhibit RIV000068).
240 Half-life is defined as [t]he time required for half the nuclei of a specific radionuclide or radioactive substance to undergo radioactive decay. See The American Heritage Medical Dictionary, Houghton Mifflin Company (2007). A radionuclide will essentially fully decay after approximately 10 half-lives.
241 Gundersen Testimony at 12, 22-23 (Exhibit RIV000060); Stewart Testimony at 3 (Exhibit RIV000061).
50
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP than that of almost every radioactive isotope released by a nuclear reactor. 242 He further explains that Strontium-90 is a bone seeker, which, as it is ingested, mimics calcium and is absorbed by bone where it can create leukemia and other forms of cancer, while Cesium-137 mimics potassium and is absorbed by muscle where it too can cause cancers and deformities. 243 Mr.
Gundersen also explains that tritium is basically radioactive water, and that wherever there is water in an organic substance, radioactive tritium, also known as tritiated water, can replace water at a cellular level. 244 Tritium can be ingested, inhaled, or absorbed through the skin. 245 Mr. Gundersen testifies that, due to the extensive size of the contamination plumes, the varied range of radionuclides present in the groundwater, the dangerous toxicity of various radionuclides in the plumes, the persistence of the plumes, and the long-lived nature of various radionuclides involved, Indian Point is one of the most contaminated operating nuclear power plant sites in the United States. 246 Since the groundwater contamination was discovered, radionuclides have regularly been detected at high levels. 247 The level of contamination currently in the groundwater remains high. Mr. Gundersens review of the most recent monitoring well data disclosed by Entergy and in Riverkeepers possession as of the date of this Statement of Position, which is from the second quarter of 2011 indicates that the current contamination continues to exceed EPA MCLs, as follows: 248 2011 Q2 Monitoring Well Data - Levels Detected over EPA MCLs Monitoring Radionuclide EPA Level(s) Amount in Excess of 242 Gundersen Testimony at 23 (Exhibit RIV000060).
243 Id.
244 Id.
245 Id.
246 Id. at 19.
247 See Riverkeeper Petition to Intervene at 81-83.
248 Entergy Groundwater Well Data, Quarter 2, 2011, IPEC00225100 (Exhibit RIV000090); Gundersen Testimony at 20 (Exhibit RIV000060).
51
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Location Detected Limit Detected EPA Limit MW-42 Cesium-137 200 pCi/l 21,500 pCi/l >100 times EPA MCL MW-30 Tritium 20,000 pCi/l 113,000 pCi/l > 5.5 times EPA MCL MW-56 Tritium 20,000 pCi/l 76,4000 pCi/l 4 times EPA MCL MW-57 Tritium 20,000 pCi/l 20,300 pCi/l Slightly over EPA MCL MW-42 Nickel-63 50 pCi/l 190 pCi/l 4 times EPA MCL MW-37 Strontium-90 at 8 pCi/l 8.72 pCi/l Slightly over EPA MCL MW-49 Strontium-90 at 8 pCi/l 12.6 pCi/l, 15.7 1.5, 2, 2 times EPA pCi/l and 16.2 MCL, respectively pCi/l MW-50 Strontium-90 at 8 pCi/l 9.53 pCi/l and Slightly over EPA MCL, 26.3 pCi/l and >3 times EPA MCL, respectively MW-53 Strontium-90 at 8 pCi/l 35.5 pCi/l 4.5 times EPA MCL MW-54 Strontium-90 at 8 pCi/l 12 pCi/l and 19 1.5 and 2 times EPA pCi/l MCL, respectively MW-57 Strontium-90 at 8 pCi/l 31.1 pCi/l 4 times EPA MCL MW-66 Strontium-90 at 8 pCi/l 10.6 pCi/l Slightly over EPA MCL MW-67 Strontium-90 at 8 pCi/l 12.5 pCi/l 1.5, times EPA MCL U1-CSS Strontium-90 at 8 pCi/l 16.1 pCi/l 2 times EPA MCL In Mr. Gundersens opinion, the level of contamination present at Indian Point is likely to remain high and exceed EPA MCLs in the future. 249 In particular, Mr. Gundersen explains that it is not yet clear at all that the plumes of contamination are decreasing over time, and points to GZAs own acknowledgement that the few years of monitoring that have been completed are not likely to be enough to establish a definitive trend. 250 Mr. Gundersen further clarifies that over time, the contamination will spread wider and deeper, bleeding slowly to the Hudson River. 251 While this may cause concentrations in individual monitoring wells to go down, this does not 249 Gundersen Testimony at 21 (Exhibit RIV000060).
250 GZA, GeoEnvironmental, Inc. Final IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter Two 2010 (Report No. 10) (February 15, 2011), IPEC00227561, at p.1-3 (Exhibit RIV000076); Gundersen Testimony at
- 20. (Exhibit RIV000060).
251 Gundersen Testimony at 20 (Exhibit RIV000060).
52
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP necessarily indicate that the plumes are decreasing, and in fact, the overall amount of contamination will remain largely intact. 252 Moreover, Mr. Gundersen discusses GZAs explanation in the most recent quarterly monitoring report in Riverkeepers possession as of the time of this Statement of Position, that there will be long term variability and peaks in the levels of radionuclides detected due to episodic releases of Tritium historically stored in the subsurface. 253 Mr. Gundersen, thus, believes that, even assuming no new leaks occur, the plumes of contamination would continue to exceed EPA MCLs in the future. 254 Furthermore, new leaks clearly have, in fact, contributed to the existing plumes and caused increases in the levels of contamination. As noted in the 2010 Quarter 2 GZA Monitoring Report, 70% of the sampling intervals exhibited an increase in Tritium levels due to the RWST skid surface spill, discussed above. 255 This incident resulted in an increase in the Unit 2 plume total Tritium activity. 256 Notably, this incident occurred in November 2009; thus, levels of radionuclides in the groundwater increased for months following the actual spill. Even more recently, a new leak, which Entergy has not determined the source for yet, has caused levels of radionuclides in monitoring wells to reach and exceed the applicable EPA MCL. 257 Thus, Mr. Gundersen concludes that ongoing, as well as additional future leaks, which are likely to occur, will continue to contribute to the existing contamination such that, instead of 252 Gundersen Testimony at 20-21 (Exhibit RIV000060).
253 GZA, GeoEnvironmental, Inc. Final IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter Two 2010 (Report No. 10) (February 15, 2011), IPEC00227561, at p.1-2 (Exhibit RIV000076); Gundersen Testimony at
- 21. (Exhibit RIV000060).
254 Gundersen Testimony at 21 (Exhibit RIV000060).
255 GZA, GeoEnvironmental, Inc. Final IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter Two 2010 (Report No. 10) (February 15, 2011), IPEC00227561, at p.1-2 (Exhibit RIV000076).
256 Id.
257 Indian Point Nuclear Generating Unit 3 - NRC Integrated Inspection Report 05000286/2011004 (November 7, 2011) (Exhibit RIV000085).
53
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP abating, the plumes will continue to persist at high levels throughout the proposed period of extended operation. 258 Simply put, because extensive contamination is already present in the groundwater as a result of the spent fuel pool leaks, and ongoing, as well as likely future leaks will indisputably contribute to that contamination, no matter how small or big such other leaks are, it is reasonably foreseeable that levels of contamination will remain at, or at a minimum, periodically exceed EPA MCLs during the extended licensing terms.
The foregoing demonstrates the significant nature of the spent fuel pool and other radiological leaks and resulting contamination at Indian Point. Although Entergy and NRC Staff repeatedly state that groundwater onsite is not used for drinking water purposes, which Intervenors do not dispute, information and findings related to exceedances of EPA MCLs is highly relevant for purposes of determining the significance of the contamination.
To begin with, as Mr. Gundersen explains, EPAs MCLs constitute a recognized, highly conservative benchmark that is regularly used for comparison purposes to assess the degree of radioactive contamination. 259 Both Entergy and NRC Staff have commonly cited to EPA MCLs in their analyses of radiological leaks at Indian Point over the years, in order to put the degree of leakage and contamination in context. 260 It is, thus, entirely appropriate, and, in fact, helpful, to consider the level of contamination in terms of EPAs MCLs. Additionally, industry guidance pertaining to the management of underground components at nuclear plants states that Significant Leakage includes leaks that [r]esult in concentrations that could exceed the 258 Gundersen Testimony at 21 (Exhibit RIV000060).
259 Id. at 20.
260 See e.g., Indian Point Nuclear Generating Unit 2 - NRC Special Inspection Report No. 05000247/2005011, March 16, 2006 at 3, A1-3, A1-7 (Exhibit RIV000069).
54
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP regulatory concentrations or limits established by the NRC or EPA. 261 Therefore, the leaks at Indian Point fall within the industrys own interpretation of significant.
Furthermore, although the groundwater at Indian Point is not actually used for drinking water, the State of New York has designated the best use of the groundwater to be as a source of potable water supply, and requires that the discharge of deleterious substance shall not impair the groundwaters for such best uses. 262 Thus, whether or not the contamination in the groundwater reaches levels in excess of EPA MCLs, in violation of this State water quality standard, i.e., State requirement, is highly relevant for determining the significance of the leakage. Notably, the designated use of the groundwater at Indian Point is for potable purposes, notwithstanding the fact that it is not currently used for such purposes. The operation of Indian Point is currently violating this State standard and the proposed action of relicensing Indian Point threatens to violate this standard in the future. This indicates that the contamination is indeed severe enough to be considered significant pursuant to NEPA. 263 New York State law also contains a provision prohibiting discharges of high-level radioactive wastes and discharges not permitted by NYS regulations, such as those releases that violate the States designated best use standards. 264 The operation of Indian Point likewise violates this State standard, further indicating the significance of the contamination.
In addition, the contamination at Indian Point can also be viewed as significant for purposes of NEPA in view of the highly controversial nature of the radiological leaks. 265 261 Guideline for the Management of Underground Piping and Tank Integrity, NEI 09-14, Rev. 1, December 2010 (Exhibit NYS000168).
262 6 NYCRR § 701.18; 6 NYCRR § 701.15; 6 NYCRR § 703.2.
263 40 C.F.R. § 1508.27(b)(10).
264 NYS ECL § 17-0807(1), (4);
265 40 C.F.R. § 1508.27(b)(4).
55
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Indeed, the presence of such high levels of radioactive contamination near the Hudson River has contributed to negative public perceptions regarding the degree of environmental harm caused by these leaks. As discussed in NRCs Liquid Radioactive Release Lessons Learned Task Force Final Report, there was a heightened degree of public concern surrounding the leaks at Indian Point upon their discovery in 2005, including widespread media coverage and statements by State and local officials. 266 NRCs report indicated that [p]ublic meetings in the vicinity of the plants were widely attended, and the opinion expressed by the audiences was generally negative toward both the plant operator and the NRC. 267 Radioactive contamination of any degree is inherently controversial and more so when it is occurring unseen and undetected for long periods of time, like the spent fuel pool leaks, as well as other more recent component leaks, at Indian Point. Entergys approach of only reacting to leaks after they occur will surely contribute to public perception about Entergys ability to prevent impacts to the public and environment, and increase concerns about the risks posed by the continued operation of Indian Point. Entergy and NRC Staffs inaccurate portrayal of the degree of groundwater contamination is misleading, degrades public confidence, and inhibits the publics ability to fully understand the relevant issues. This will only serve to exacerbate the publics concern and fears.
In summary, Entergys characterization of the levels of radionuclides as low, is, erroneous and an improper attempt to portray the environmental impacts of the radiological leaks as negligible. To the contrary, Mr. Gundersens testimony demonstrates that, once viewed in light all relevant considerations (including the degree of the contamination, the persistence of the 266 Liquid Radioactive Release Lessons Learned Task Force Final Report, U.S. NRC (September 1, 2006), at ii (Exhibit RIV000091).
267 Id.
56
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP plumes, and the toxicity of the radionuclides, etc,), the groundwater contamination at Indian Point is, in fact significant. Entergy and NRC Staffs attempt to ignore relevant standards and deliberately downplay the significance of the contamination at the expense of factual accuracy violates both the spirit and the letter of NEPA. The narrow approach espoused by Entergy and NRC Staff has clearly resulted in an inadequate environmental assessment. In light of the foregoing, Entergy and NRC Staff have failed to demonstrate a sound basis for reaching the conclusion that the leaks at Indian Point are not significant. 268
- v. Failure to Assess Current and Future Impacts of the Groundwater Contamination on the Hudson River It is not disputed that the groundwater contamination caused by radiological leaks at Indian Point migrates and eventually discharges to the Hudson River. 269 Entergy currently intends to employ Monitored Natural Attenuation (MNA) to address the contamination. 270 As a result, as Mr. Gundersen explains, the radiological contamination will remain in the groundwater at Indian Point until it decays and/or is flushed out into the Hudson River. 271 To completely eliminate the contamination in this fashion will take decades if not an entire century. 272 Thus, the contamination at Indian Point, which, as demonstrated by Mr. Gundersens testimony, is likely to persist and grow over time, will be discharging to the Hudson River throughout the 20-year proposed period of extended operations.
Yet despite these circumstances, Entergys ER and NRC Staffs FSEIS fail to sufficiently assess the impacts of the spent fuel pool and other radiological leaks on the Hudson River. Both 268 See, e.g., Indian Point ER at p.5-6; Indian Point FSEIS at 4-61.
269 See, e.g., Entergy, Groundwater Investigation Executive Summary, Indian Point Energy Center, Buchanan, NY (January 2008), at 1-2 (Exhibit RIV000068).
270 GZA Site Investigation Report at x, 127 (Exhibit RIV000066).
271 Gundersen Testimony at 21-22 (Exhibit RIV000060).
272 Id. at 22.
57
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Entergy and NRC Staff predominantly focus on the current calculated dose impact of the leaks, for which the only exposure pathway considered is the consumption of fish and invertebrates from the Hudson River. 273 Entergy and NRC Staff base their conclusions about the impacts of the leaks on the public and the environment during the proposed period of extended operation largely based upon the Entergys findings that the dose impact of the leaks was, as calculated, within NRC limits. 274 However, NEPA requires a complete analysis of all past, present, and reasonably foreseeable environmental impacts of a proposed action. 275 Entergy and NRC Staff cannot only focus on one narrow consideration, i.e., the potential impact through consuming aquatic organisms, to draw conclusions about the overall impact of the leaks. And yet, this is precisely what Entergy and NRC Staff have done. The evaluations in the ER and FSEIS are deficient for failing to address the following specific issues. The testimony and supporting documentary evidence provided by Mr. Gundersen and Ms. Stewart demonstrate that Entergy and NRC have unequivocally failed to assess all relevant impacts, as follows:
- 1. Failure to Address the Impact of Groundwater Contamination on the Aquatic Ecology of the Hudson River Entergy and NRC fail to acknowledge and appropriately address the fact that the toxic radionuclides that will be discharging to the Hudson River through the groundwater at Indian Point during the entire period of extended operation, may impact the Hudson River ecosystem.
There is already evidence that radionuclides from Indian Point may have impacted fish in the 273 See Indian Point ER at p.5-4, 5-5; Indian Point FSEIS at 2-211; see also Indian Point DSEIS at 2-107 to 2-108.
274 See Indian Point ER at p.5-4, 5-5; Indian Point FSEIS at 2-211; see also Indian Point DSEIS at 2-107 to 2-108.
275 See 40 C.F.R. §§ 1508.7, 1508.8, 1508.25(a)(2), (c); see Robertson, 490 U.S. at 356; see also Ground Zero Ctr.
for Non-Violent Action v. United States Dep't of the Navy, 383 F.3d 1082, 1089 (9th Cir. Wash. 2004).
58
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP river. For example, Mr. Gundersen testifies that data from the 1970s and 1980s, generated before NRC discontinued the requirement that nuclear licensees test for Strontium-90 in the offsite environment, showed that both fish and shellfish showed detectable levels of not only Strontium-90, but also of Strontium-89, a shorter lived isotope that is not found in residual background radiation resulting from nuclear weapons testing. 276 Furthermore, several fish samples in 2006 showed elevated levels of Strontium-90 in their flesh. 277 Entergy subsequently enhanced its Radiological Environmental Monitoring Program (REMP) to test for Strontium-90, and indicated that the amount of strontium detected in 2006 was not distinguishable from background levels in fish from historic weapons testing.278 In 2007, NYS DEC also performed an enhanced fish sampling program, which found that Strontium-90 concentrations in fish near Indian Point were no different than Strontium-90 concentrations in fish upstream from the plant. 279 However, there results do not render the evaluation of impacts of radiological leaks on fish and other aquatic organisms in the Hudson River throughout the proposed 20-year extended license terms totally complete.
To the contrary, the facts warrant a comprehensive assessment. Mr. Gundersen testifies that the earlier finding of Strontium-89 in shellfish near Indian Point, i.e., radionuclides that are not attributable to weapons testing, supports the need for further and ongoing assessment. 280 The presence of strontium-89 strongly suggests that radionuclides from Indian Point have affected the aquatic ecosystem. Moreover, the findings that strontium levels detected in fish were no higher 276 Gundersen Testimony at 23 (Exhibit RIV000060); E-mail From Dara Gray (Entergy) to J. Noggle (NRC) (Jan.
24, 2007), Re: Historical Sr Data (Exhibit RIV000100).
277 May 13, 2008 Inspection Report at 3 (Exhibit RIV000067).
278 Id.
279 NYSDEC, Measurement of strontium-90 (90Sr) and other radionuclides in edible tissues and bone/carapace of fish and blue crabs from the lower Hudson River, New York (November 2009), available at, http://www.dec.ny.gov/docs/materials_minerals_pdf/sr90fnlrprt.pdf.
280 Gundersen Testimony at 23 (Exhibit RIV000060).
59
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP than background levels does not mean that the radioactive isotopes that are indisputably reaching the Hudson River from Indian Point are not contaminating the fish and aquatic ecology. 281 Mr.
Gundersen observes that there are other possible upstream sources of Strontium-90, namely Knolls Atomic Power Lab, apparently not considered by NRC or DEC, which may have skewed the comparison of fish samples taken near Indian Point to alleged background levels. 282 Accordingly, there is a clear need for further assessment.
Additionally, Mr. Gundersen points out how the radionuclides from the contamination at Indian Point will be discharging to the Hudson River throughout the entire proposed extended licensing terms. 283 Thus, while no adverse impacts have been found to date, this does not foreclose the possibility that there will be such impacts in the future. Mr. Gundersen notes that DECs 2007 fish sampling, was a one-time enhancement 284 that included samples of fish bone and crab carapace, where Strontium-90 tends to concentrate. 285 The findings of this one-time program, which was undertaken six years before the first license renewal period would even begin at Indian Point, cannot be relied upon for an assurance that the radionuclides from Indian Point component leaks will not affect the ecology of the Hudson River during the enter period of extended operation. In addition, it is also evident that Entergy will continue to only rely on the limited fish samples taken as part of its annual Radiological Environmental Monitoring Program (REMP). Notably, it appears that only fish flesh is tested under this program, and not 281 Gundersen Testimony at 24 (Exhibit RIV000060).
282 Gundersen Testimony at 24 (Exhibit RIV000060).
283 Gundersen Testimony at 22 (Exhibit RIV000060).
284 Gundersen Testimony at 24 (Exhibit RIV000060).
285 See NYSDEC, Measurement of strontium-90 (90Sr) and other radionuclides in edible tissues and bone/carapace of fish and blue crabs from the lower Hudson River, New York (November 2009), available at, http://www.dec.ny.gov/docs/materials_minerals_pdf/sr90fnlrprt.pdf.
60
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP bones, 286 which is a key indicator regarding whether strontium is bioaccumulating and adversely impacting the aquatic ecology of the Hudson River. Moreover, the limited sampling performed pursuant to Entergys REMP is not necessarily adequate to assure that impacts to fish, biota, and other organisms in the Hudson River will be timely and adequately determined.
Mr. Gundersen testifies that future impacts from the radiological leaks are reasonably foreseeable since Strontium-90 is a bone seeker that bioaccumulates instead of dissipating, and therefore may result in impacts in the future. 287 Such impacts, therefore, must be assessed. 288 Ms. Stewart also testifies that past, current, or future leakage of radioactivity from Indian Point, even low activities, will form a potential threat to the local ecosystem. 289 Ms. Stewart further explains that there is evidence that multi-celled organisms exposed to low doses of radiation can develop mutations which can transmit to offspring, which indicates that past leaks can still affect organism that rely on the Hudson River. 290 Mr. Gundersen points out that assessing the foreseeable future impacts to the aquatic ecology of the Hudson River is critical given the proximity of Indian Point to Haverstraw Bay, a New York State designated Essential Fish Habitat and Significant Coastal Fish and Wildlife Habitat. 291 Due to the unique nature of this nearby ecologically critical area, the potential impacts from the radiological leaks at Indian Point is significant, and must be fully assessed pursuant to NEPA. 292 286 May 13, 2008 Inspection Report at Attachment 1 page 3 (Exhibit RIV000067).
287 Gundersen Testimony at 23 (Exhibit RIV000060).
288 See Robertson, 490 U.S. at 356; see also Ground Zero Ctr. for Non-Violent Action v. United States Dep't of the Navy, 383 F.3d 1082, 1089 (9th Cir. Wash. 2004) (agencies must examine the reasonably foreseeable environmental effects of their proposed actions when conducting environmental review).
289 Stewart Testimony at 3 (Exhibit RIV000061).
290 Stewart Testimony at 3 (Exhibit RIV000061).
291 Gundersen Testimony at 23 (Exhibit RIV000060); NYS Department of State, Division of Coastal Resources, Coastal Fish & Wildlife Habitat Rating Form, Haverstraw Bay (Exhibit RIV000092).
292 40 C.F.R. § 1508.27(b)(3).
61
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP The potential impacts of the radiological leaks are also significant due to the fact that they may adversely affect an endangered or threatened species or its habitat. 293 Indeed endangered Shortnose sturgeon and threatened Atlantic sturgeon are known to reside in the vicinity around Indian Point. 294 And yet NRC Staffs evaluation of impacts to endangered species in the FSEIS does not even mention, let alone analyze, the potential impact of the leaks on endangered resources in the Hudson River. 295 This must be assessed in order to comply with the basic requirements of NEPA.
Based on the foregoing, Entergy and NRC have failed to adequately assess the foreseeable impacts of radiological leaks on the aquatic ecology of the Hudson River during the proposed period of extended operation.
- 2. Failure to Consider the Impact of Groundwater Contamination on Recreational Activities in the Hudson River As mentioned above, Entergys ER and NRC Staffs FSEIS only focus on one potential pathway of exposure to humans, that is, through the consumption of Hudson River fish, for the conclusion that the leaks have not impacted public health and safety. 296 However, in the context of a comprehensive review pursuant to NEPA, a broader inquiry into the impacts and potential impacts of the radiological leaks is necessary. In particular, relevant State water quality standards designate the best use of the waters of the Hudson River in the vicinity of Indian Point as suitable for recreational activities, including swimming and boating, and require that the 293 40 C.F.R. § 1508.27(b)(9).
294 See, e.g., Indian Point FSEIS at 2-31 (The lower Hudson River basin also contains Haverstraw Bay . . . a significant nursery area for a variety of fish, including . . . [threatened] Atlantic sturgeon, and a wintering area for the federally listed endangered shortnose sturgeon).
295 See Indian Point FSEIS § 4.6.
296 See, e.g., Indian Point FSEIS at 2-111.
62
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP discharge of deleterious substance shall not impair the waters for such best uses. 297 According to NEPA regulations, as well as NRC regulations implementing NEPA, NRC Staff must consider compliance with precisely this kind of State requirement. 298 Entergy and NRC Staff, however, completely ignore other potential pathways of exposure.
The testimony of Mr. Gundersen and Ms. Stewart demonstrate that there could well be risks posed to individuals engaging in recreational activities in the Hudson River near Indian Point as a result of the radiological leaks from Indian Point. Mr. Gundersen explains that the Biological Effects of Ionizing 299 Radiation (BEIR) VII Report, issued by the National Academy of Science concluded that every exposure to radiation, regardless of how small, produces a corresponding increase in the likelihood of cancer. 300 Ms. Stewart also recognizes that current research indicates that there is a linear, no threshold response curve between human exposure to radioactively and solid cancers. 301 Accordingly, the radioactive releases to the Hudson River from the Indian Point site could increase the incidence of cancer to those exposed through primary and secondary contact activities, such as swimming.
Entergy and NRC Staffs environmental reviews incorrectly limit the relevant inquiry, and, thus, remain deficient.
- 3. Failure to Consider Violations of Relevant State Requirements Prohibiting the Discharge of Radiological Materials to the Hudson River 297 6 NYCRR § 701.11; 6 NYCRR § 700.1(a)(49); 6 NYCRR 700.1(a)(56); 6 NYCRR § 703.2.
298 40 C.F.R. § 1508.27(b)(10); 10 C.F.R. § 51.71(d).
299 Ionizing radiation are alpha, beta, gamma, and neutrons that cause cellular damage by ionization, that is the process that breaks atomic bonds and creates negative and positive ions.
300 Gundersen Testimony at 24 (Exhibit RIV000060); National Research Council, Health Risks from Exposure to Low Levels of Ionizing Radiation: BEIR VII - Phase 2 (2006) (Exhibit RIV000093).
301 Stewart Testimony at 3 (Exhibit RIV000061).
63
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP New York State law contains a provision that prohibits discharges of high-level radioactive waste as well as any discharges not permitted by NYS rules and regulations. 302 Discharges not permitted by NYS regulations include accidental radiological leaks that violate State designated best uses standards. Thus, the accidental radiological releases to the Hudson River as a result of Indian Point component leaks appear to be prohibited under New York State law. Entergy and NRC Staff must take this into account in assessing the significance of the impacts to the Hudson River, 303 yet they have failed to do so.
- 4. Failure to Consider the Impact of Groundwater Contamination Related to a Reasonably Foreseeable Drinking Water Pathway Due to a Proposed Desalination Facility to be Located in the direct vicinity of Indian Point A reasonably foreseeable future action that will coincide with the proposed action of relicensing Indian Point Units 2 and 3 for an additional 20 years is the siting of a desalination facility in the immediate vicinity of Indian Point to provide drinking water to Rockland County, New York, residents. In particular, Ms. Stewart explains that a company named United Water New York is currently proposing to site a desalination plant the just 5 miles downstream of Indian Point in Haverstraw Bay. 304 Ms. Stewart further explains that the project, called the Haverstraw Long-Term Water Supple Project, is currently in a pilot phase and removing 144,000 gallons per day, the final completed plant would withdraw 10 million gallons of water per day from the Hudson River, yielding 7.5 million gallons of drinking water per day for Rockland County Residents. 305 Ms. Stewart indicates that this project is currently in the permitting phase 302 NYS ECL § 17-0807(1), (4) 303 40 C.F.R. § 1508.27(b)(10); 10 C.F.R. § 51.71(d).
304 Stewart Testimony at 6-7 (Exhibit RIV000061); see also Haverstraw Water Supply Project DEIS, Chapter 2 (RIV000101).
305 Stewart Testimony at 6-7 (Exhibit RIV000061); see also Haverstraw Water Supply Project DEIS, Chapter 2 (RIV000101).
64
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP and it is her opinion that it is reasonably foreseeable it will come to fruition. 306 If so, this would result in water from the Hudson River right near Indian Point being used for drinking water purposes during the proposed period of extended operations.
Yet, despite the reasonably foreseeable nature of this project, Entergys ER and NRC Staffs FSEIS are completely devoid of any mention of the eventuality. NRC Staff explicitly premised their analysis on the basis that there was no drinking water exposure pathway to humans that is affected by the contaminated groundwater. 307 In fact, they overtly refused to consider the proposed desalination plant, in response to public comments. 308 This approach is wholly inconsistent with NEPA. Agencies must consider reasonably foreseeable environmental effects, and not view the project in a vacuum. 309 Moreover, this project is a far cry from being remote or speculative, as a pilot project is already underway, and permit proceedings are pending. 310 Accordingly the NEPA assessment concerning the license renewal must assess the implications of having a drinking water source in the direct vicinity of Indian Point from which radioactive isotopes discharge from the groundwater into the Hudson River.
Such an assessment is necessary in light of the potential health effects of using the Hudson River near Indian Point as a drinking water source. In particular, Ms. Stewart testifies that toxic Strontium-90 and Cesium-137 leaking into the Hudson River could contaminate water 306 Stewart Testimony at 6-7 (Exhibit RIV000061); see also Haverstraw Water Supply Project DEIS, Chapter 2 (RIV000101).
307 Indian Point ER at p.5-4, 5-5; Indian Point FSEIS at 2-211.
308 See Indian Point FSEIS at A-94 to A-95. NRC Staff did not recognize any obligation to assess the potential implications of the project pursuant to NEPA, and instead simply, stated that if the plant came to pass, it would have to comply with drinking water limits. Id.
309 See Ground Zero Ctr. for Non-Violent Action v. United States Dep't of the Navy, 383 F.3d 1082, 1089 (9th Cir.
Wash. 2004) (agencies must examine the reasonably foreseeable environmental effects of their proposed actions when conducting environmental review).
310 Trout Unlimited, 509 F.2d at 1283.
65
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP being withdrawn by the prospective desalination plant. 311 Ms. Stewart explains that due to the long half life of the isotopes that have leaked from Indian Point and which now slowly leach and discharge to the Hudson River, as well as their ability to travel long distances in a dissolved phase, they could easily be able to travel to the proposed intake point for the project. 312 In her testimony, Ms. Stewart explains the details related to the fate and transport of radionuclides from Indian Point. 313 Ms. Stewart further explains that low levels of exposure to radionuclides via drinking water have the potential to cause cancer. 314 Ms. Stewart further discusses how Strontium-90 has been found in more than half of river water samples, and that this known carcinogen that accumulates in skeletal material and can cause bone and blood cancers. 315 Ms. Stewart notes that Strontium-90 can travel long distances and will most likely not be removed by traditional decontamination methods. Ms Stewart also explains that Strontium-90 can accumulate over time with low level chronic exposure. 316 Although levels were deemed low, this dangerous radionuclide was noticeably detected in the water. Ms. Steward therefore indicates that more sampling is required to understand the implication of the radiological contamination to a proposed nearby drinking water source. 317 Despite clear evidence demonstrating foreseeable impacts associated with the Haverstraw Long-Term Water Supply Project during the proposed period of extended operation, neither 311 Stewart Testimony at 7 (Exhibit RIV000061).
312 Id.
313 Id. at 5-6.
314 Id. at 7.
315 Id. at 3.
316 Id. at 5.
317 Id. at 7.
66
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Entergy nor NRC Staff have addressed it in the ER or FSEIS, respectively. This does not comply with the controlling environmental laws and regulations.
vi. Failure to Appropriately Consider and Assess Relevant Measures to Mitigate Adverse Environmental Consequences of Radiological Leaks and Groundwater Contamination Entergys ER and NRC Staffs FSEIS fail to meaningfully assess any reasonable mitigation measures that are available to minimize the actual and potential future impacts of the radiological leaks and groundwater contamination at Indian Point. While Entergy and NRC Staff are quick to note the mitigation measures implemented by Entergy in relation to the Unit 1 spent fuel pool leaks, (i.e., the removal of fuel and ultimate draining of the pool), 318 there is a stark absence of any analysis relating to other feasible mitigation and remedial measures to address other problematic leaking components and/or the plumes of contamination in the groundwater. To the contrary, Entergy summarily dismisses the need for mitigation, stating that the results of the ongoing monitoring program do not indicate that any mitigation is warranted at this time. 319 Entergy fails to provide adequate justification for this blanket conclusion. NRC Staff fails to assess the efficacy of mitigation measures at all.
This is completely inconsistent with NEPAs mandate that an agency must discuss the extent to which adverse effects can be avoided so that the agency [and] other interested groups and individuals can properly evaluate the severity of the adverse effects. 320 Without such a discussion, it is patent that the agency has failed to take the requisite hard look at the environmental consequences of a proposed action. 321 In relation to the Indian Point radiological 318 See Indian Point ER at 5-4 to 5-6; Indian Point FSEIS 2-111.
319 Indian Point ER at 5-6.
320 Robertson, 490 U.S. at 351-52 (citations omitted).
321 See id.
67
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP leaks, Entergy and NRC Staff have ignored various feasible measures that would avoid, minimize, rectify, reduce, or eliminate the impacts of the radiological leaks,322 as follows:
- 1. Failure to Assess the Feasibility and Efficacy of Extracting the Groundwater Contamination Entergys ER briefly mentions that Entergy had installed a pilot recovery well next to the IP2 pool and testing has been conducted to determine the efficacy of this remediation method, should future mitigation be warranted. 323 Entergy further indicated that the than-outstanding site hydrogeologic characterization would be used to determine the need for mitigation of this contamination on an ongoing basis. 324 However, the subsequently issued report memorialized the decision to address the groundwater contamination by employing MNA. 325 In the FSEIS, NRC Staff found Entergys chosen approach to be acceptable, stating that the commitments made by Entergy . . . for long-term monitoring and remediation will help to minimize the potential impacts from contaminated groundwater and help maintain radiological impacts within NRC radiation safety standards. 326 While NRC Staffs characterization appears to be misleading, since remediation is understood by many to connote clean-up activities, it is apparent that NRC Staff is only referring to either Unit 1 mitigation actions, and/or Entergys chosen remediation strategy for addressing the groundwater contamination, MNA. However, this is only apparent if one digs deeper into the statements in the FSEIS, in particular, NRC Staffs adoption of the NRCs May 13, 2008 inspection report, which approves of Entergys 322 40 C.F.R. §§ 1508.20.
323 Indian Point ER at 5-6.
324 Indian Point ER at 5-6.
325 GZA Site Investigation Report at x, 127 (Exhibit RIV000066).
326 Indian Point FSEIS at 4-41.
68
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP choice to use MNA. 327 Indeed, the FSEIS fails to even mention Entergys decision to employ MNA, and instead serves to mislead a reader into believing that Entergy is cleaning up the contamination. In any event, while it is clear that Entergy chose, and NRC Staff approved the use of, MNA at Indian Point, this does not negate the obligation under NEPA to fully assess feasibility and efficacy of other reasonable mitigation measures, including the recovery, i.e.,
extraction, of the groundwater contamination. This appears nowhere in either the ER or FSEIS.
Irrefutable evidence indicates that extraction of the contamination is feasible at Indian Point, and, in fact a preferable approach for minimizing the adverse impacts of the radiological contamination. Mr. Gundersen explains that as early as 2006, GZA recommended extraction be employed. 328 In an e-mail, a GZA representative stated that we are recommending a pumping well in the IP2-FSB to address the source of the Tritium. A second pumping well would be located in the Superheater building to capture the majority of the Sr contamination on the Unit 1 side. 329 As Mr. Gundersen further elucidates, pilot recovery well tests, briefly referred to in Entergys ER, indicated as early as 2006 that extraction was feasible. 330 In particular, one Entergy document indicates that the pump test, which was designed to test the feasibility of pumping groundwater from the area near IP2 successfully indicate[d] that water could be drawn from around Unit 2 without drawing Sr-90 contaminated water from Unit 1. 331 An 327 Indian Point FSEIS at 2-111; May 13, 2008 Inspection Report (Exhibit RIV000067).
328 Gundersen Testimony at 26 (Exhibit RIV000060).
329 Entergy E-mail from David Winslow (GZA) to Donald Mayer (Entergy), G. Hinrichs (Entergy), Re: Remedial Report (May 19, 2006), IPEC00064221 (Exhibit RIV000094); Gundersen Testimony at 26 (Exhibit RIV000060).
330 Gundersen Testimony at 26 (Exhibit RIV000060).
331 Groundwater Investigation 06 Quarter 4 Activities and Results, IPEC00063899 (Exhibit RIV000095);
Gundersen Testimony at 26 (Exhibit RIV000060).
69
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP Indian Point Energy Center Status Report from December 2006 also indicated that the pilot pumping was effective:
Tritium concentrations were reduced during the recent recovery well pump test. The tritium concentration in RW-1 at the beginning of the test was about 100,000 pCi/L and dropped to 19,000 pCi/L at the end of the test. Levels remained lower (30,000 pCi/L) three weeks later. A similar drop was observed in MW-30 .
. . The tritium concentration was reduced by about half. This is a limited data set but does provide some evidence that groundwater tritium levels can be reduced in this fashion. 332 Another Entergy document similarly explains that the pilot test reduced tritium levels significantly, and indicated that a permanent system installation [was] planned for completion in May 2007. 333 Despite the feasibility and known success of extraction, Entergy subsequently chose to only to rely upon MNA. As Mr. Gundersen testifies, it is far from clear why exactly Entergy ignored sound and well-founded recommendations to extract the groundwater contamination. 334 NRC and Entergy subsequently indicated that extraction was problematic because it would alter groundwater flow patterns, and, as Entergy recently explained to Riverkeeper, therefore, offered no clear advantages to the recommended monitored natural attenuation remediation strategy. 335 However, as Mr. Gundersen testifies, such a position is not justified, since the pilot pumping actually demonstrated that Sr-90 contamination flow was not affected, and since extraction has 332 Entergy E-mail from Kathleen McMullin (Entergy) to various, Re: IPEC Status Report for Dec. 21 (Exhibit RIV000096); Gundersen Testimony at 27 (Exhibit RIV000060).
333 Entergy Document, Unit 1 Status for ENC Presentation notes, Groundwater Status, IPEC00062939 (Exhibit RIV000097); Gundersen Testimony at 27 (Exhibit RIV000060).
334 Gundersen Testimony at 27 (Exhibit RIV000060).
335 Letter from Kathryn Sutton (Counsel for Entergy) to Deborah Brancato (Riverkeeper), Re: Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR and 50-286-LR (June 24, 2011) (Exhibit RIV000098); see May 13, 2008 Inspection Report at 13 (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) (Exhibit RIV000067);
70
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP clear advantages over MNA, namely preventing ever-growing accumulation of contamination, and preventing releases from reaching the Hudson River. 336 Moreover, as Mr. Gundersen explains, Entergy and NRC Staffs position is completely untenable in light of recent contradictory statements made by a representative of GZA, Entergys vendor. In particular, on October 4, 2011, in official written testimony, Matthew J. Barvenik, a Senior Principal of GZA who has worked on the Indian Point leakage issue for years, testified for Entergy the following:
Based on my knowledge of the Indian Point site hydrogeology, and my experience with groundwater contamination, I have performed an analysis of possible measures that could be taken to prevent these radionuclides from reaching the Hudson River. Based on that analysis, I have concluded that Entergy could install a sufficient number of groundwater extraction wells so as to contain these radionuclides on-site by establishing a groundwater gradient reversal . . . [T]he extraction wells would result in groundwater flowing from the Hudson River toward the wells located on-site.
Entergy would then extract the groundwater containing radionuclides from the subsurface, and process that groundwater in an appropriate manner. 337 Thus, there is no reason why extraction is not possible at Indian Point, and, in fact, according to statements made on behalf of Entergy, extraction would successfully mitigate the contamination in the groundwater at Indian Point.
It is, needless to say, disturbing that even though extraction was determined to be feasible as early as 2006 that five years passed without implementation. Entergys sudden revelation after repeated and only recently articulated excuses, calls into question Entergy and NRC Staffs 336 Gundersen Testimony at 27, 28 (Exhibit RIV000060).
337 In the Matter of Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations Incs Joint Application for CWA § 401 Water Quality Certification, Combined Prefiled Rebuttal Testimony of Thomas C. Esselman, Ph.D., Matthew J. Barvenik, and Owen Hoffman, Ph.D., Radiological - Issue for Adjudication No. 3 (October 4, 2011), at 41 (Exhibit RIV000099) 71
50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP previous assessments relating to the allegedly superior method of MNA for managing the groundwater contamination at Indian Point.
In any event, in Mr. Gundersens opinion, the remedial approach of extraction is far superior to the current MNA being employed. 338 Extraction will undoubtedly reduce and/or minimize adverse impacts to the groundwater by ensuring that the levels are decreased significantly, such that they will no longer exceed EPA MCLs, as well as substantially reduce the amount of radiation that reaches the Hudson River from the groundwater. 339 Thus, Entergy and NRC Staffs environmental evaluations must include an analysis of the reasonable mitigation measure of extracting the groundwater contamination.
In addition, Ms. Stewart indicates that before water from the Hudson River near Indian Point is safe for human consumption, an effort must be made to stop the leaks from reaching the river. 340 Thus, analyzing extraction as a mitigation measure would prove useful in relation to determining the implications of the Haverstraw Long-Term Water Supply Project.
- 2. Failure to Consider the Feasibility and Efficacy of Instituting Preventative Measures to Proactively Find Component Leaks Before they Occur There are various measures that Entergy could institute that would realistically minimize, or at least reduce the likelihood of, future leaks from aging components at Indian Point, and in turn, minimize or reduce the impacts of such leaks to the groundwater and the Hudson River.
Neither Entergy, nor NRC Staff considers such measures at all in their evaluations of the spent fuel pool leaks, in contravention of the basic tenets of NEPA.
338 Gundersen Testimony at 27 (Exhibit RIV000060).
339 Gundersen Testimony at 25 (Exhibit RIV000060). It should be noted however, that due to the length of time that has elapsed since the contamination was first discovered, it may not be possible for extraction to clean-up 100% of the contamination, since over time, the groundwater contamination spreads wider and deeper, and is more difficult to capture.
340 Stewart Testimony at 7 (Exhibit RIV000061).
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50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP First, Mr. Gundersen explains that Entergy could take steps to proactively determine whether there are active leaks in the Unit 2 spent fuel pool. 341 Currently, Entergy cannot inspect almost half of the spent fuel pool liner due to the high density of the fuel, and debris interference. 342 Moreover, Entergy is relying on only one inspection of the limited accessible portion of the pool (and otherwise will rely on monitoring well sampling) for its assurances that the liner will remain leak free during the proposed period of extended operation. 343 Thus, in Mr.
Gundersens opinion, Entergy could (1) reduce the density of the fuel in the Unit 2 pool, that is, remove fuel rods such that Entergy could actually inspect the entire liner; and (2) commit to periodic inspections during the proposed extended licensing term instead of groundwater monitoring to determine whether there are active leaks from the pools. 344 Next, Mr. Gundersen suggests that Entergy could take steps to increase the likelihood of preventing future leaks from other plant components, such as susceptible and problematic buried structures. 345 For example, reasonable measures Entergy could take to reduce or minimize the likelihood of future component leaks and impacts to groundwater and, in turn, the Hudson River, include (1) moving all buried pipes and structures above-ground so as to be able to better monitor such components; and (2) substantially increasing the number of inspections to be performed during the proposed period of extended operation of components that are known to be prone to leakage. 346
- 3. Failure to Consider Enhanced Monitoring of Impacts to the Aquatic Ecology of the Hudson River 341 Gundersen Testimony at 29 (Exhibit RIV000060) 342 Id. at 7-8.
343 Id. at 9-10.
344 Id. at 29.
345 Id.
346 See id.
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50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP In light of the reasonably foreseeable impacts to the aquatic ecology of the Hudson River, which Entergy and NRC Staff are content to assume will be unaffected during the proposed license renewal period, NRC Staff should consider measures to mitigate such potential affects.
One reasonable and helpful measure that should be assessed pursuant to NEPA is enhanced monitoring throughout the extended licensing terms. Indeed, Ms. Steward testifies that more sampling in the River is necessary to determine the extent of radiological contamination in both time and space. 347 Enhanced sampling would ensure that any affects that are likely to occur are promptly detected and addressed.
- 4. Failure to Consider Instituting Measures to Increase Public Access to Information Concerning Radiological Leaks and Groundwater Contamination Another measure that would mitigate the impact of radiological leaks and groundwater contamination at Indian Point is related to more openness and transparency. Indeed as assessment of the significance of an environmental impact includes the degree to which it is highly controversial. 348 Since leaks at Indian Point were discovered, there has been a high level of public concern, 349 which continues today. This aspect of the leaks makes it severe as contemplated by NEPAs implementing regulations. Thus, measures to alleviate the public concern would assist in minimizing the overall impacts of the leaks. Thus, NRC Staff should consider mitigation measures related to openness and transparency in relation to the leaks. For example, Mr. Gundersen suggests that Entergy should be required to fully disclose Indian Points radiological monitoring results and publish them on a regular basis, in order to keep the public 347 Stewart Testimony at 7 (Exhibit RIV000061).
348 40 C.F.R. § 1508.27(b).
349 See Liquid Radioactive Release Lessons Learned Task Force Final Report, U.S. NRC (September 1, 2006), at ii (Exhibit RIV000091).
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50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP fully informed. NRC Staff should consider a range of such options as one way of mitigating the adverse effects of the leaks and contamination at the plant.
In conclusion, Entergy and NRC Staff demonstrably fail to assess the wide range of mitigation measures available for addressing the radiological leaks and groundwater contamination at Indian Point. Entergy and NRC Staff improperly assume that what Entergy has done to date to address the leaks and groundwater contamination is the best that could be done to minimize the impacts. However, such an opinion has no bearing whatsoever on what is required to be assessed pursuant to NEPA. That is to say, regardless of whether or not Entergy and NRC Staff think that leaving the contamination in the groundwater to leach to the Hudson is acceptable, or that enhanced inspections of problematic components is not warranted, the obligation to consider and discuss other options that are available, and to weigh the costs and benefits of such options still exists. 350 Entergy and NRC Staffs failure to do this basic analysis leaves the ER and FSEIS fundamentally deficient.
CONCLUSION In summary, Entergy and NRC Staff have failed to meet their burden to show that the requisite hard look of all relevant, past, present, foreseeable, and cumulative, impacts posed by radiological leaks and groundwater contamination at Indian Point as a result of relicensing. In particular, Entergy and NRC Staff have failed to consider that (1) the Unit 2 spent fuel pool is currently leaking and will most likely continue to leak in the future; (2) the leaks that occurred from the Unit 1 spent fuel pools has resulted in contamination that will continue to impact the environment for the foreseeable future; (3) other plant systems, structures, and components, 350 See Robertson, 490 U.S. at 351-52.
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50-247-LR, 50-286-LR RK-EC-3/CW-EC-1 SOP including buried pipes and structures, have recently caused leakage issues, and will most likely leak in the future; such leaks will add to and commingle with the existing plumes of contamination; (4) the current level of groundwater contamination at Indian Point is high, and will continue to reach high levels during the proposed period of extended operation; (5), the groundwater contamination may cause impacts to the Hudson River during the proposed extended licensing terms, including impacts to aquatic ecology, impacts to recreational activities in the river, and impacts to drinking water sources; and (6) that there exists a wide range of reasonable, feasible, cost-beneficial measures that could mitigate, minimize, and lessen the adverse environmental consequences of radiological leaks and groundwater contamination from Indian Point to the surrounding groundwater and Hudson River. As a result, the environmental analyses performed do not comply with NEPA.
Respectfully submitted this 22cd day of December 2011.
Signed (electronically) by Deborah Brancato Deborah Brancato, Esq.
Phillip Musegaas, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 (914) 478-4501 dbrancato@riverkeeper.org phillip@riverkeeper.org 76