ML12339A491

Official Exhibit - NRC000040-00-BD01 - NRC Staff'S Initial Statement of Position on Consolidated Contention NYS-16B

ML12339A491
Person / Time
Site:	Indian Point
Issue date:	03/30/2012
From:	Harris B NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22152, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12339A491 (16)

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 NRC000040 Docket #: 05000247 l 05000286 Submitted: March 30, 2012 Exhibit #: NRC000040-00-BD01 Identified: 10/15/2012 Admitted: 10/15/2012 Withdrawn:

Rejected: Stricken:

Other:

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS INITIAL STATEMENT OF POSITION ON CONSOLIDATED CONTENTION NYS-16B INTRODUCTION Pursuant to 10 C.F.R. §§ 2.1207(a)(1) and 2.337(g)(2), Scheduling Order (July 1, 2010)

(unpublished) at 14, and Order (Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates) (February 16, 2012) (unpublished) at 1, the Staff of the Nuclear Regulatory Commission (Staff) submits its written statement of position and written testimony with supporting affidavits on New York States (NYS) Contention 16B (NYS-16B).

Appended to this filing is the Staffs testimony and certifications of Dr. Nathan E. Bixler, Dr. S.

Tina Ghosh, Joseph A. Jones, and Donald G. Harrison (Exhibit (Ex.) NRC000041) and Staffs Ex. NRC000042 through NRC000061.1 For the reasons set forth below and in the testimony filed herewith, the Staff submits that a careful evaluation of NYS-16B demonstrates that NYS challenge to the Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(collectively, Entergy) application for renewal of the Indian Point Unit Nos. 2 and 3 operating license cannot be sustained.

1 The Staffs testimony and exhibits filed with respect to consolidated contention NYS-16B and NYS-12C are identical due to the substantial overlap of issues between the MELCOR Accident Consequence Code System 2 (MACCS2) and Severe Accident Mitigation Alternatives (SAMA) analysis.

BACKGROUND This proceeding concerns the application of Entergy Nuclear Operations, Inc. (Entergy) to renew the operating license for Indian Point Nuclear Generating Units 2 and 3 (collectively Indian Point). On November 30, 2007, NYS filed a petition to intervene in this matter, submitting 32 contentions for consideration by the Atomic Safety and Licensing Board (Board).2 The Board granted NYS Petition, admitting 11 contentions including Contention 16.

NYS Contention 16 stated that:

Entergy's Assertion, in its SAMA Analysis for [Indian Point], that it "Conservatively" Estimated the Population Dose of Radiation in a Severe Accident, is Unsupported Because Entergy's Air Dispersion Model Will Not Accurately Predict the Geographic Dispersion of Radionuclides Released in a Severe Accident and Entergy's SAMA Will Not Present an Accurate Estimate of the Costs of Human Exposure.3 The Board limited NYS Contention 16 to three discrete issues: (1) whether the population projections used by Entergy are underestimated,4 (2) whether the ATMOS module in MACCS2 is being used beyond its range of validity, and (3) whether use of MACCS2 with the ATMOS module leads to non-conservative geographical distribution of radioactive dose within a fifty-mile radius of [Indian Point].5 In December 2008, the Staff issued the Draft Supplemental Environmental Impact Statement (Draft SEIS or DSEIS) for review and comment.6 On February 27, 2009, NYS filed three supplemental and two new contentions addressing the Draft SEIS, including Contention 16A. NYS Contention 16A stated:

2 Notice of Intent to Participate and Request for Hearing (NYS Petition) (Nov. 30, 2007).

3 NYS Petition at 163.

4 NYS challenge to the population estimates was contained in a single footnote. Id. at 164 n.37.

5 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 112 (2008).

6 Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Indian Point Generating Unit Nos. 2 and 3, NUREG-1437, Supplement 38 (Dec. 2008) (Ex.

NRC000003).

The DSEIS Improperly Accepted Entergy's Population Dose Estimates Of Radiation Released In A Severe Accident Despite The Licensing Board's Admission Of the State Of New York's Contention That The Air Dispersion Model Used By Entergy in its SAMA Analysis Will Not Accurately Predict the Geographic Dispersion of Released Radionuclides and Will Result in an Inaccurate Estimate of the Costs of Human Exposure.7 The Board admitted and consolidated NYS Contention 16A with NYS Contention 16. In doing so, the Board stated that [NYS] will not be allowed to address arguments from the original NYS-16 that went beyond the limiting language of the admitted contention.8 The Final Supplemental Environmental Impact Statement (FSEIS) was published in December 2010.

On March 11, 2011, NYS asserted an amended contention 16B. The Board admitted and consolidated contention 16B with contention 16A and the original contention 16 (collectively, NYS-16B). NYS filed its Initial Statement of Position, pre-filed testimony from its expert Dr. Stephen C. Sheppard, and exhibits on December 16, 2011.9 Finally, NYS, Entergy, and the Staff filed a Joint Stipulation memorializing NYS decision to drop its primary challenge in NYS-16B to the MELCOR Accident Consequence Code System 2 (MACCS2) air dispersion model.10 DISCUSSION I. Legal and Regulatory Requirements The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., requires federal agencies, including the NRC, to take a hard look at the environmental impacts of their actions. NEPA, however, does not mandate a specific outcome or a course of action including 7

See State of New York Contentions Concerning NRC Staff's Draft Supplemental Environmental Impact Statement (NYS Supplemental Petition) at 9 (Feb. 27, 2009).

8 Order (Ruling on New York States New and Amended Contentions), (June 16, 2009)

(unpublished).

9 The Staff and Entergy filed motions in limine seeking to exclude portions of the pre-filed testimony and exhibits. The Board denied those motions with respect to NYS-16B. Licensing Board Order (Granting in Part and Denying in Part Applicants Motion in Limine) (Mar. 6, 2012) (unpublished).

10 Joint Stipulation at 2.

a decision to mitigate any potential impacts.11 The NRC fulfills its requirements under NEPA, for renewal of operating licenses, through the Generic Environmental Impact Statement (GEIS) and the Final Supplemental Environmental Impact Statement (FSEIS), Ex. NRC000XXX.12 The Commission stated that there is no NEPA requirement to use the best scientific methodology, and NEPA should be construed in light of reason if it is not to demand virtually infinite study and resources.13 The Commission has cautioned that [o]ur boards do not sit to flyspeck environmental documents or to add details or nuances. If the [EIS] on its face comes to grips with all important considerations nothing more need be done.14 In Pilgrim, the Commission stated:

Ultimately, we hold adjudicatory proceedings on issues that are material to licensing decisions. With respect to a SAMA analysis in particular, unless a contention, submitted with adequate factual, documentary, or expert support, raises a potentially significant deficiency in the SAMA analysisthat is, a deficiency that could credibly render the SAMA analysis altogether unreasonable under NEPA standardsa SAMA-related dispute will not be material to the licensing decision, and is not appropriate for litigation in an NRC proceeding.15 11 See, e.g., Baltimore Gas and Elec. Co. v. Nat. Res. Def. Council, 426 U.S. 87, 97 (1983)

(quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976))(stating that NEPA requires only that the agency take a hard look at the environmental consequences before taking a major action); Sierra Club v.

Army Corp of Engineers, 446 F.3d 808, 815 (2006)(same); Louisiana Energy Services, L.P. (Clairborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998)(same); Hydro Resources, Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), LBP-06-19, 64 NRC 53, 63-64 (2006)(same); see also Winter v. Nat.

Res. Def. Council, 129 S.Ct. 365, 376 (2008)(stating that NEPA imposes only procedural requirements and does not mandate any particular result).

12 10 C.F.R. § 51.2.

13 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Station), CLI-10-11, 71 NRC 287, 315 (2010).

14 Exelon Generation Co, LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 811 (2005)(citing Systems Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005)(footnote omitted)).

15 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC ___

(Feb. 9, 2012) (slip op at 25) (emphasis added).

The Commission warned that in a highly predictive analysis such as a SAMA analysis, there are bound to be significant uncertainties, and therefore an uncertainty analysis is performed.16 The Commission, anticipating the wide ranging disputes over individual aspects of the SAMA analysis, has said:

It always will be possible to conceive of yet another input or methodology that could have been used in the SAMA computer modeling, and many different inputs and approaches may all be reasonable choices. The SAMA analysis is not a safety review performed under the Atomic Energy Act. The mitigation measures examined are supplemental to those we already require under our safety regulations for reasonable assurance of safe operation.17 In other words, it is simply not enough to take issue with a particular aspect of the SAMA analysis, an intervenor challenging the SAMA analysis must show that it was unreasonable on the whole.18 The Commission recently stressed that the proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA.19 A petitioner may not simply assert a deficiency. Rather to challenge an applicants SAMA analysis a petitioner must point with support to an asserted deficiency that renders the SAMA analysis unreasonable under NEPA.20 Specifically, [a]

contention proposing alternative inputs or methodologies must present some factual or expert basis for why the proposed changes in the analysis are warranted.21 Even more, intervenors 16 Id. at 25.

17 Id. at 24.

18 Id. at 24-25.

19 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit1), CLI-12-08, 75 NRC ___, (Mar. 27, 2012) (slip op. at 17-18) (reversing the admission of contention challenging the costs to clean-up a severe accident) (internal citations omitted).

20 Id.

21 Id.

must show why the inputs or methodology used is unreasonable, and the proposed changes or methodology would be more appropriate.22 Finally, the Commission has concluded that [u]ltimately, NEPA requires the NRC to provide a reasonable mitigation alternatives analysis, containing reasonable estimates .23 The Commission explained that Staffs FSEIS need only explain any known shortcomings in available methodology, incomplete or unavailable information and significant uncertainties, and reasoned evaluation of whether and to what extent these or other considerations credibly could or would alter the Pilgrim SAMA analysis conclusions .24 Thus, the Staffs FSEIS and the SAMA analysis satisfy the requirements of NEPA and the Board should resolve this contention in favor of the Staff.

II. Staffs Witnesses The attached testimony presents the opinion of a panel of four highly qualified witnesses as follows: (1) Dr. Nathan E. Bixler, chemical engineer, (2) Dr. S. Tina Ghosh, a nuclear engineer, (3) Joseph Jones, a mechanical engineer, and (4) Donald G. Harrison, a nuclear engineer.

Dr. Bixler, a chemical engineer, with a Doctorate in chemical engineering, is the Principal Investigator for Sandia National Laboratories (Sandia) on the code development for accident consequences including RADTRAD, MACCS2, WinMACCS, SECPOP2000, and MELMACCS, for the NRC. See NRC Staff Testimony of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones, and Donald G. Harrison on NYS-16C, Ex. NRC000041 (Staff Testimony) at A1a-A2a (March 30, 2012). Dr. Bixler has over twenty years of experience with the codes developed to model accident consequences. Id. at A1a-A2a. Dr. Bixlers testimony will address the use of the 22 Id.

23 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208-09 (2010).

24 Id.

MACCS2 code and the impact of changes to input parameters into the MACCS2 code. Id. at A4a.

Dr. Tina Ghosh, a nuclear engineer, with a Doctorate in nuclear engineering, is the Senior Program Manager responsible for leading the NRCs research on state of the art reactor consequence analysis. Id. at A1b-A2b. Previously, she was a Reactor Engineer for the Division of Risk Analysis and primarily responsible for the review of SAMA analyses submitted as part of a plants application for license renewal. Id. Prior to serving in the Division of Risk Assessment, she was primarily responsible for the risk assessment and performance evaluation for the high-level waste application submitted by the Department of Energy. Id. Dr. Ghoshs testimony along with the Staffs other witnesses will address why the MACCS2 code provides reasonable results when modeling reactor accidents as part of a probabilistic risk assessment (PRA) analysis. Id. at A4b.

Joe Jones, a professional engineer, with a Masters in mechanical engineering, is a Distinguished Member of the Technical Staff employed by Sandia, which is operated by Lockheed-Martin for the US Department of Energy. He has over 28 years experience in engineering and analysis, 23 years of which was at Sandia. Id. at A1c-A2c. He has been primarily involved in radiological emergency preparedness, consequence management, and radioactive materials cleanup activities both nationally and internationally. Id. He also performs emergency plan reviews and evacuation time estimate reviews for the NRC Staff in support of new reactor license applications. Id. He has managed project teams in the decontamination and decommissioning of radioactively contaminated facilities at Sandia and the development of advanced decontamination techniques for radioactive materials. Id. He is a named inventor on US Patent 7,514,493 B1, Strippable Containment and Decontamination Coating Composition and Method of Use, April 7, 2009. Id. Mr. Jones testimony will address the decontamination costs for severe accident including decontamination times, decontamination factors,

decontamination costs, and the population estimates for area surrounding Indian Point. Id. at A4c.

Donald Harrison, a nuclear engineer, with a Bachelor degree in nuclear engineering, is the Branch Chief for Probabilistic Risk Assessment Licensing Branch (APLA) of the Division of Risk Assessment (DRA) within the Office of Nuclear Reactor Regulation (NRR). APLA had the responsibility for the license renewal severe accident mitigation alternatives (SAMA) reviews and associated development of this aspect of the environmental impact statement (EIS) at the time of the Indian Point license renewal application was submitted, as well as most risk-informed rulemaking and license application reviews that involved the use of probabilistic risk assessments (PRA). Id. at A1d-A2d. Mr. Harrisons testimony will address the decontamination times used by Entergys SAMA analysis. Id. at A4d.

III. The Concerns Raised by NYS in Contention 16B Lack Merit The Staffs testimony presents its position that the concerns raised by NYS-16B lack merit because the SAMA analysis conducted for Indian Point Unit Nos. 2 and 3 represents a reasonable balance of decisions to produce reliable conclusions accounting for uncertainties inherent in any complicated predictive analysis. The Staff independently examined the population estimate used by Entergy in its Environmental Report, reflected in the Staffs FSEIS, and as explained by the Staffs expert witness and found that it was reasonable and acceptable for a severe accident mitigation alternatives (SAMA) analysis.

A. The SAMA Analysis is Reasonable NYS has argued that the SAMA analysis submitted by Entergy and as reflected in the Staffs FSEIS is unreasonable because Entergys population estimate in its Severe Accident Mitigation Alternatives (SAMA) analysis improperly exclude[ed] commuters and fail[ed] to account for census undercount.25 NYSs expert, Dr. Sheppard, concludes that accounting for 25 NYS Statement of Position for NYS-16B at 1 (Ex. NYS000206).

commuters and the census undercount would have increased the population estimate by 1.2 million people or 6.4%.26 NYS also claims that the Staff failed to address NYS concerns regarding the Environmental Impact Statement (EIS),27 the Staffs FSEIS presents inaccurate information to the public in violation of NEPA,28 and the Staff failed to take the requisite hard look required by NEPA.29 As discussed in the Staffs testimony, NYS and Dr. Sheppards concerns regarding the census undercount and commuters have been adequately considered by the Staffs analysis in the FSEIS and in Entergys ER. As such, the Board should resolve the contention in favor of the Staff.

1. The Population Estimates used by Entergy and the Staff Are Reasonable Projections for the Modeled Area NYS asserts that population estimates used by Entergy and as verified by the Staff are inaccurate because they failed to account for a systemic undercount by the U.S. Census and failed to account for commuters, resulting in the exclusion of 1.2 million people . However, Mr.

Joseph A. Jones, the Staffs expert, explains that the potential for a census undercount and the transient population have been adequately accounted for in Entergys ER and the Staffs FSEIS.30 He explains that even if Dr. Sheppards concerns regarding the census undercount and commuters were accurate, it would not alter the conclusions of the SAMA analysis.31 In 26 Id. at 4.

27 Id. at 18.

28 Id. at 21.

29 Id. at 22.

30 NRC Staff Testimony of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones, and Donald G.

Harrison concerning NYS Contentions NYS-12C and NYS 16B (Staffs Testimony) at A7 (Ex.

NRC000041).

31 Id. at A95.

fact, NYS expert only speculates that change in the population estimate could lead to an underestimation of the benefit obtained from implementing a SAMA .32 First, Dr. Sheppard asserts that the U.S. Census has systemically undercounted certain populations for multiple years. NYS expert states that factoring the census undercount into population estimates is uncontroversial .33 Contrary to Dr. Sheppards assertion, the census undercount has been and continues to remain a controversial issue.34 Mr. Jones testimony explains that the method for determining the undercount and what should be done with the undercount continues to be controversial.35 Next, NYS exhibits agree with the Staffs expert that the census undercount remains extremely controversial.36 Further, Dr. Sheppards testimony fails to consider that the U.S. Government Accounting Office determined that the 2000 Census resulted in an overcount of 0.5% (1.3 million people) not an undercount.37 Since Entergys population estimate was based on the 2000 Census and the Staffs independent analysis of the population was also based on the 2000 Census, the population projections would be expected to have resulted in population that was too large, not too small.38 The Staffs expert compared Entergy projections for each of the counties modeled in the SAMA to the 2010 Census data.39 The data showed that Entergys population projections for 2010 exceeded the population as measured by 2010 Census by approximately 326,878 people.40 Thus, Entergys 32 Pre-Filed Written Testimony of Dr. Sheppard, Ph/D/ Regarding Contention NYS-16/16A/16B (NYS-16B) (Sheppard Test.) at 3-4 (Ex. NYS000207).

33 NYS Statement of Position for NYS-16B at 15.

34 Staffs Testimony at A90.

35 Id.

36 Id. (citing Ex. NYS000206 at 15).

37 Id.

38 Id.

39 Id. at A89.

40 Id.

projections conservatively estimated the measured 2010 population.41 Even assuming that Dr.

Sheppards conclusion regarding the magnitude of the census undercount was true, Entergys conservative population estimate already exceeds the census data by more than Dr. Sheppards concern. As such, NYS concerns regarding the census undercount have been adequately and reasonably addressed by the Staffs FSEIS and Entergys ER.

Second, Dr. Sheppard asserts that one million commuters have not been properly accounted for because they commute into the modeled area from locations outside the modeled area.42 NYS expert concludes that a population estimate or projection that excludes commuters is deficient.43 While a study designed to identify every person living, working, or transiting through an area might be deficient for failing to consider commuters, a SAMA analysis is not that kind of study. The SAMA analysis utilizes population estimates in order to attribute costs.44 The population estimate needs to be consistent with its use in the MACCS2 code, which assumes that the population could need temporary or permanent relocation because they would not be able to return their homes and if they returned to area they would accrue dose 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of dose each day.45 Fundamentally, counting commuters as though they were permanent residents of the modeled area results in an overestimation of the economic costs of the dose to population since MACCS estimates their dose based on returning to the area permanently.46 Based on an eight-hour work day plus some travel time, the estimate would be about three times the correct dose to the commuters.47 The increase in population from commuters would 41 Id.

42 NYS Statement of Position for NYS-16B at 15.

43 Sheppard Testimony at p. 17 lns. 12 - 14.

44 Staffs Testimony at A95.

45 Id. at A94 - A95.

46 Id.

47 See id. at A95

be better represented as a small fraction of Dr. Lemays suggested commuter population, when account for business travelers and time within the modeled area.48 Mr. Jones explains that most of the costs calculated by MACCS2 would not be applicable to a commuter living outside the modeled area including temporary and permanent relocation costs, where necessary. Mr.

Jones found that Entergys population estimate for 2010 already exceeded the 2010 Census by 326,878 people, which more than adequately encompasses the effective commuter population and any potential undercount.

Further, Dr. Sheppards concerns regarding the commuter population seem to raise a worst case scenario by treating all the commuters as though they were residents staying in the affected area for 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> each day. As Mr. Jones explains, however, commuters are unlikely to experience the effects of an accident because most are commuting into an area located at the edge of the modeled area and are likely to have exited the modeled area prior to the plume reaching their location.49 Thus, NYS concerns regarding the commuter population are overly conservative and would not represent a reasonable analysis under NEPA.

2. The Staff Adequately Addressed the Concerns Raised by NYS Regarding the Population Estimate NYS argues that the Staff failed to address [NYSs] concerns [regarding population estimates], thereby violating NEPA, NRC regulations, and [Council for Environmental Quality (CEQ)] regulations that obligate the Staff to respond to comments on the DSEIS.50 NYS alleges that the Staff did not respond to the population estimate concerns raised by the State in its comments on the DSEIS .51 Importantly, the Staffs DSEIS was published for comments 48 Id.

49 Id. at A95.

50 NYS Statement of Position for NYS-16B at 18.

51 Id. at 20 (internal citations omitted).

on December 31, 2008.52 The Federal Register Notice provided for comments to be submitted no later than March 18, 2009.53 As such, the Staff was only responsible for responding to comments on the DSEIS submitted prior to March 18, 2009, which excludes NYS supplemental comments submitted late by one year and one day.54 With respect to NYS comments that were submitted prior to end of the comment period, NYS only provided summarizing its initial contention. NYS comments made no reference to either tourists or commuters. NYS timely comments stated:

In addition, Entergy's projections of the 2035 population likely to be living within 50 miles of Indian Point appear to underestimate the potential exposed population. And the NRC accepted these projections without any further examination, despite the (fact that the Licensing Board agreed that New York's Contention 16 raised a valid issue about the accuracy of Entergy's future population estimates.

For example, Table 2-5 State and County Population, 50*Mile Radius of IP2 and IP3 on page 2-36 of the ER contains a projection that in 2035 the population of New York County (Manhattan) will be 1,570,657. Entergy does not provide any explanation of the basis for this projection and it appears to contradict data from the U.S. Census. For example, the United State Census estimates that in 2007 Manhattan's population was 1,620,867, over 50,000 more than Entergy asserts would be at risk 29 years later. See, e.g., U.S. Census Bureau, State and County QuickFacts, New York County, New York, available at http://quickfacts.census.gov/qfd/states/36/36061.html. Entergy provides no explanation for its projection that the population of Manhattan will actually shrink from 2000 to 2035.

Moreover, based on trends in population growth in New York City, there is every reason to believe that the population of New York in 2035 will be substantially more that the U.S.

Census's estimate of the 2007 population. For example, comparisons of U.S. Census data for Manhattan in 2000 with the census estimates of the 2007 Manhattan population concludes that the population of Manhattan grew by 83,672 in 7 years, a 52 Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Availability of the Draft Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants and Public Meeting for the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, 73 Fed. Reg. 80440 (Dec. 31, 2008).

53 Id.

54 See NYS Statement of Position for NYS-16B at 20 n. 19 (stating that the supplemental comments were submitted on March 19, 2010).

growth of 0.7 percent per year. See http://www.nyc.gov/

html/dcp/html/census/popcur.shtm1. Entergy's future population estimates are inexplicably low when compared to the U.S. Census estimates of future population in the New York metropolitan area.

In sum, Entergy's SAMA analysis almost certainly understated the cost of a severe accident by reducing the number of people who might be exposed. The DSEIS should not have accepted these population estimates as an appropriate input into the ATMOS air dispersion model.55 NYS original contention version of their contention failed to identify any issue related to either commuters or tourists. For example, the single footnote discussing the population estimates in NYS original contention stated:

In addition, Entergy's projections of the 2035 population likely to be living within 50 miles of Indian Point are suspect and underestimate the potential exposed population. For example, Table 2-5 State and County Population, 50-Mile Radius of IP2 and IP3 on page 2-36 of the ER contains a projection that in 2035 the population of New York County (Manhattan) will be 1,570,657.

The United State Census estimates that in 2006 Manhattan's population was 1,611,581, over 40,000 more than Entergy asserts would be at risk 29 years later. See, e.g.,U.S. Department of Commerce, U.S. Census Bureau, State and County QuickFacts, New York County, New York, available at http://quickfacts.census.goiv/qfd/ states/36/3606 l.html. In its recent submission to the ASLB, New York City contends that as of July 1, 2006 populations of Manhattan and the other four New York City Boroughs were even larger than the Census' estimates for 2006 and that the Census adopted the City's figures in September. See, e.g., New York. City Department of City Planning, Population Division, Population Update: the "Current",

Population of NYC (2006), available at http://www.nyc.gov/html/dcp/htiml/census/popcur.shtm.56 As can be seen, NYS made no comments regarding either commuters or the transient population. Finally looking at the actual comments NYS submitted prior to the close of the comment period, NYS remained completely silent on the commuter population and the census undercount.57 Thus, the Staff was under no obligation or requirement to address these issues in 55 See FSEIS at App. A at A-1027 - A-1028.

56 NYS Petition at p 164 n.37.

57 See FSEIS, App. A at A-1027 - A-1028.

its FSEIS. The Staff did respond to the timely comments submitted by NYS.58 The Staff addressed NYS timely comments regarding the population concentrating on the boroughs around New York City and found that Entergys methods were reasonable and accurate.59 NYS assertions that Staff should have responded to late filed comments on the Staffs DSEIS and amended contentions filed long after the comment period and after the FSEIS issued is simply not required. Thus, the Board should resolve this contention in favor of the Staff.

3. The Information Presented in Staffs FSEIS is Accurate Dr. Sheppards concerns regarding the accuracy of the information reflected in the Staffs FSEIS are misplaced because of a fundamental misunderstanding of accident modeling.

As the Staffs experts explain, MACCS2 calculates off-site economic costs resulting from severe accidents. The off-site economic costs can include per-diem costs for people displaced from their homes, decontamination costs, costs associated with the loss of use of property, disposal of crops and dairy products, costs to condemn property, one-time permanent relocation expenses where applicable, and dose to the public.60 Counting commuters as though they were part of the permanent population results in MACCS2 accounting for unnecessary costs to commuters that are not affected in same manner as more permanent residents, including overnight tourist and business travelers, and adds additional conservatism. Commuters, generally, would not incur per-diem costs or one-time relocation costs because they would not be displaced from their domiciles.61 Commuters doses would also be overestimated by about a factor of three assuming the average 8 hour9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> workday and limited travel time.62 Even assuming 58 See id. Compare FSEIS App G. at G G-25.

59 Id.

60 Staffs Testimony at A31, A95.

61 Id. at A95.

62 See id.

that Dr. Sheppard correctly identified the commuter population, the effective population for accident analysis would be a small fraction of the Dr. Sheppards overly inclusive estimates.63 For MACCS2 codes use of the population estimates, the estimates were accurate and provided a reasonable estimate of the expected costs and benefits for the SAMA analysis.

Because the information presented in the Staffs FSEIS is accurate, independently evaluated the population estimates used by Entergy in its SAMA analysis, and concluded the estimates were reasonable for the use they were used, the Staff has fulfilled its requirement to conduct a hard look at the potentially cost-beneficial mitigations.

CONCLUSION For the reasons above and as supported by the NRCs testimony and exhibits, the Board should resolve the contention in favor of the Staff.

/Signed (electronically) by/

Brian G. Harris Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Dated at Rockville, Maryland this 30th day of March 2012 63 Id.