ML12340A746

Official Exhibit - NRCR00087-00-BD01 - Revised NRC Staff Statement of Position Re Contention RK-EC3/ CW-EC1

ML12340A746
Person / Time
Site:	Indian Point
Issue date:	09/21/2012
From:	Sherwin Turk NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23501, ASLBP 07-858-03-LR-BD01, 50-247-LR, 50-286-LR
Download: ML12340A746 (76)

Text

United States Nuclear Regulatory Commission Official Hearing Exhibit NRCR00087 Entergy Nuclear Operations, Inc.

In the Matter of:

(Indian Point Nuclear Generating Units 2 and 3) Submitted: September 21, 2012 ASLBP #: 07-858-03-LR-BD01 Docket #: 05000247 l 05000286 Exhibit #: NRCR00087-00-BD01 Identified: 10/15/2012 Admitted: 10/15/2012 Withdrawn:

Rejected: Stricken: September 21, 2012 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-LR/ 50-286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFF STATEMENT OF POSITION CONCERNING CONTENTION RIVERKEEPER EC-3/CLEARWATER EC-1 (SPENT FUEL POOL LEAKS)

INTRODUCTION In accordance with 10 C.F.R. § 2.1207(a) and the Atomic Safety and Licensing Boards (Board) Orders in this proceeding,1 the NRC Staff (Staff) hereby submits its Statement of Position (Statement) on consolidated Contention RK-EC3/CL-EC1 (Spent Fuel Pool Leaks),

filed by Intervenors Riverkeeper, Inc. (Riverkeeper) and Hudson Sloop Clearwater, Inc.

(Clearwater). This Statement is supported by the prefiled written testimony of Stephen P.

Klementowicz and James D. Noggle,2 and the exhibits cited therein (including Exhibits NRC000089 through NRC000100 and various exhibits filed by other parties in this proceeding).

Contention RK-EC3/CL-EC1 generally asserts that that (a) the Environmental Report (ER) fled by Entergy Nuclear Operations, Inc. (Entergy or Applicant) as part of its license renewal application (LRA) for Indian Point Nuclear Generating Units 2 and 3 (IP2 and IP3),

and (b) the Staffs site-specific Draft and Final Supplemental Environmental Impact Statements 1

See (1) Order (Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates) (Feb. 16, 2012), at 1; (2) Order (Clarification of Procedures for Evidentiary Filings)

(Oct. 18, 2011), at 2-3; (3) Order (Procedures for Evidentiary Filings) (Oct. 7, 2011), at 2; and (4) Scheduling Order (July 1, 2010), at 14.

2 NRC Staff Testimony of Stephen P. Klementowicz and James D. Noggle Concerning Contention Riverkeeper EC-3/Clearwater EC-1 (Spent Fuel Pool Leaks) (March 30, 2012) (Staff Testimony) (Exhibit NRCR00088).

for license renewal of Indian Point Units 2 and 3, fail to adequately assess new and significant information regarding the environmental impacts of radioactive liquids leaking from the Indian Point spent fuel pools, on the groundwater and the Hudson River ecosystem. According to these Intervenors, Entergy's and the Staffs alleged failure to adequately consider this information violates the requirements of the National Environmental Policy Act of 1969 (NEPA) and NRC regulations in 10 C.F.R. Part 51.

The Staff has carefully considered all of the assertions presented in this contention, as amplified in the testimony of the Intervenors experts, Mr. Arnold Gundersen (Exhibit RIV000060) and Dr. Gillian Stewart (Exhibit RIV000061), and the numerous exhibits filed in support thereof.

For the reasons set forth below and in the Staff Testimony filed herewith, the Staff respectfully submits that Contention RK-EC3/CW-EC1 is entirely lacking in merit and should be resolved in favor of Entergy and the Staff.

BACKGROUND Riverkeeper filed Contention RK EC-3 on November 30, 2007, as part of its petition for leave to intervene.3 Therein, Riverkeeper generally asserted that Entergy's LRA failed to satisfy the requirements of the NEPA and 10 C.F.R. Part 51, because its ER (submitted as part of its LRA) does not adequately assess new and significant information regarding the environmental impacts of the radioactive water leaks from the [IP1] and [IP2] spent fuel pools on the groundwater and the Hudson River ecosystem.4 Similarly, Clearwater Contention EC-1, as filed by Clearwater on December 10, 2007, asserted that Entergy's LRA does not comply with NEPA and the NRCs regulations in 10 C.F.R. §§ 51.53(c)(3)(iv) and 51.45, in that it fails to adequately assess new and significant information concerning environmental impacts of radioactive substances that are leaking from spent fuel pools and contaminating the ground water, the 3

Riverkeeper, Inc.s Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant (Nov. 30, 2007) (Riverkeeper Petition), at 74-86.

4 Riverkeeper Petition at 74.

Hudson River and the local ecosystem; lacks sufficient information to aid the Commission in developing an independent analysis; does not, to the fullest extent practicable, quantify the various factors considered; and fails to sufficiently include information concerning the leaks.5 The Atomic Safety and Licensing Board (Board) admitted these contentions in its Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing), issued on July 31, 2008.6 In its decision, the Board found that Riverkeeper had raised admissible issues regarding the significance of new information (including the data and conclusions in Entergys hydrogeology report relating to radiological leaks from the spent fuel pools), and whether Entergys ER contains sufficient information regarding the radioactive impacts of the leaks to aid the Commission in preparing its EIS for license renewal. Similarly, the Board found that Clearwater had raised a genuine dispute regarding the significance of the environmental impacts of the spent fuel pool leaks and whether the maximum groundwater impact (and, in turn, the maximum dose) has been determined for the site. LBP-08-13, 68 NRC at 290-91 & 296-97.

The Board then consolidated these contentions, to state as follows:

The ER does not adequately assess new and significant information regarding the environmental impacts of radionuclide leaks from spent fuel pool leaks at Indian Point.

Id., at 349.

Subsequently, Riverkeeper and Clearwater sought leave to amend this consolidated contention, to apply to the Staffs (a) Draft Supplemental Environmental Impact Statement (Draft SEIS or DSEIS),7 and (b) Final Supplemental Environmental Impact Statement (Final SEIS or 5

Hudson River Sloop Clearwater Inc.s Petition to Intervene and Request for Hearing (Dec. 10, 2007), at 18; see generally, id, at 18-24.

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

7 NUREG-1437, Supplement 38, 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, Vols. 1 and 2 (Dec. 2008) (Exhibit NYS000132A-D).

FSEIS).8 In decisions issued on May 28, 2009,9 and July 6, 2011,10 the Board granted Riverkeeper and Clearwaters requests to amend this contention to challenge the adequacy of the Staffs assessment of the environmental impacts of the spent fuel pool leaks in its Draft and Final SEISs.

DISCUSSION A. Environmental Regulatory Requirements Under the Commissions regulations in 10 C.F.R. Part 54, the scope of a license renewal proceeding is limited to the specific matters that must be considered for the license renewal application to be granted. In 10 C.F.R. § 54.29, the Commission established the standards that are to be considered in determining whether to grant a license renewal application. In accordance with these provisions, a renewed license may be issued if the Commission finds that (a) the (safety) requirements in 10 C.F.R. § 54.29(a) have been met; (b) as set forth in 10 C.F.R.

§ 54.29(b), [a]ny applicable requirements of Subpart A of 10 C.F.R. Part 51 have been satisfied; and (c) as set forth in 10 C.F.R. § 54.29(c), [a]ny matters raised under § 2.335 have been addressed.

The Commissions regulations in 10 C.F.R. Part 51 establish the agencys NEPA-implementing regulations. The regulations in Part 51 establish requirements governing both (a) the license renewal applicants submission of an environmental report,11 and (b) the Staffs preparation of its draft12 and final13 environmental impact statements. In a nutshell, the 8

NUREG-1437, Supplement 38, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3), Final Report, Vols. 1, 2 and 3 (Dec. 2010) (Exhibit NYS000133A-J).

9 Order (Applying Consolidated Contention Riverkeeper EC-3/Clearwater EC-1 to the NRC Staffs Draft Supplemental Environmental Impact Statement) (May 28, 2009).

10 Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011).

11 See 10 C.F.R. § 51.53(c).

12 See 10 C.F.R. §§ 51.70 - 51.74.

environmental impacts of the proposed action and reasonable alternatives thereto are to be addressed by both the license renewal applicant14 and the Staff.15 13 See 10 C.F.R. §§ 51.90 - 51.95.

14 Under 10 C.F.R. § 51.53(c), an applicant for license renewal is required to include in its environmental report, inter alia, the following information:

(2) The report must contain a description of the proposed action, including the applicant's plans to modify the facility or its administrative control procedures as described in accordance with § 54.21 of this chapter. This report must describe in detail the modifications directly affecting the environment or affecting plant effluents that affect the environment. In addition, the applicant shall discuss in this report the environmental impacts of alternatives and any other matters described in

§ 51.45. . . . [T]he environmental report need not discuss any aspect of the storage of spent fuel for the facility within the scope of the generic determination in § 51.23(a) and in accordance with § 51.23(b).

(3) For those applicants seeking an initial renewed license and holding an operating license, construction permit, or combined license as of June 30, 1995, the environmental report shall include the information required in paragraph (c)(2) of this section subject to the following conditions and considerations:

(i) The environmental report for the operating license renewal stage is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues in Appendix B to subpart A of this part.

(ii) The environmental report must contain analyses of the environmental impacts of the proposed action, including the impacts of refurbishment activities, if any, associated with license renewal and the impacts of operation during the renewal term, for those issues identified as Category 2 issues in Appendix B to subpart A of this part. . . .

(iii) The report must contain a consideration of alternatives for reducing adverse impacts, as required by § 51.45(c), for all Category 2 license renewal issues in Appendix B to subpart A of this part. No such consideration is required for Category 1 issues in Appendix B to subpart A of this part.

(iv) The environmental report must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware.

15 For example, a final environmental impact statement is required to address the comments received on the draft EIS and any relevant responsible opposing view not adequately discussed in the draft EIS, as set forth in 10 C.F.R. § 51.91. In connection with an application for license renewal of an operating license, the Staff is to issue the EIS as a supplement to the GEIS. 10 C.F.R. § 51.95(c). In this regard, the final supplemental environmental impact statement (SEIS) is to address the issues required by § 51.71 for the draft SEIS. 10 C.F.R. § 51.95(c)(1). Further, in accordance with 10 C.F.R. § 51.95(c):

(2) The [SEIS] for license renewal . . . need not discuss other issues not related to the environmental effects of the proposed action and the alternatives, or any aspect of the storage of spent fuel for the facility within the scope of the generic determination in § 51.23(a) and in accordance with § 51.23(b). The analysis of alternatives in the

The Commission has provided guidance for license renewal adjudications regarding what safety and environmental issues fall within or beyond its license renewal requirements. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 6 (2001). Specifically, the NRC conducts a technical review pursuant to 10 C.F.R. Part 54, to assure that pertinent public health and safety requirements have been satisfied.

Turkey Point, CLI-01-17, 54 NRC at 6. In addition, the NRC performs an environmental review pursuant to 10 C.F.R. Part 51 to assess the potential impacts of twenty additional years of operation. Id. at 6-7. Regardless of whether or not a license renewal application has been filed for a facility, the Commission has a continuing responsibility to oversee the safety and security of ongoing plant operations, and it routinely oversees a broad range of operating issues under its statutory responsibility to assure the protection of public health and safety for operations under existing operating licenses. Therefore, for license renewal, the Commission has found it unnecessary to include a review of issues already monitored and reviewed in ongoing regulatory oversight processes. Id. at 8-10.

supplemental environmental impact statement should be limited to the environmental impacts of such alternatives . . . .

(3) The supplemental environmental impact statement shall be issued as a final impact statement in accordance with §§ 51.91 and 51.93 after considering any significant new information relevant to the proposed action contained in the supplement or incorporated by reference.

(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 (with the exception of offsite radiological impacts for collective effects and the disposal of spent fuel and high level waste) 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. Given this information, 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.

Contentions raising environmental issues in a license renewal proceeding are limited to those issues which are affected by license renewal and have not been addressed by rulemaking or on a generic basis. Turkey Point, CLI-01-17, 54 NRC at 11-12. In 10 C.F.R. Part 51, the Commission divided the environmental requirements for license renewal into generic and plant-specific components. Id. at 11. The Generic Environmental Impact Statement for License Renewal16 (GEIS) contains "Category 1" issues for which the NRC has reached generic conclusions. Id. Applicants for license renewal do not need to submit analyses of Category 1 issues in their Environmental Reports, but instead may reference and adopt the generic findings.

Id. Applicants, however, must provide a plant-specific review of the non-generic Category 2 issues. Id. Category 1 issues "are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings." Id. at 12; see 10 C.F.R. § 51.53(c)(3)(i)-(ii).

In 2007, the Commission reiterated this principle in the Vermont Yankee license renewal proceeding, instructing that the GEIS Category 1 conclusions generally may not be challenged in a license renewal proceeding:

In 1996, the Commission amended the environmental review requirements in 10 C.F.R. Part 51 to address the scope of environmental review for license renewal applications. The regulations divide the license renewal environmental review into generic and plant-specific issues. The generic impacts of operating a plant for an additional 20 years that are common to all plants, or to a specific subgroup of plants, were addressed in a 1996 GEIS.

Those generic impacts analyzed in the GEIS are designated "Category 1" issues. A license renewal applicant is generally excused from discussing Category 1 issues in its environmental report. Generic analysis is "clearly an appropriate method" of meeting the agency's statutory obligations under NEPA.

The license renewal GEIS determined that the environmental effects of storing spent fuel for an additional 20 years at the site of nuclear reactors would be "not significant."

Accordingly, this finding was expressly incorporated into Part 51 of our regulations. Because the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation unless the rule is waived by the 16 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vols. 1 and 2 (May 1996) (GEIS) (Exhibit NYS000131A-I).

Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding.

Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 17 (footnotes omitted), reconsid. denied, CLI-07-13, 65 NRC 211, 214 (2007).

B. NRC Staff Witnesses In addressing Contention RK-EC-3/CW-EC-1, the Staff introduced two highly qualified experts - Stephen P. Klementowicz and James D. Noggle - each of whom has unique experience directly related to the issues raised by this contention. The Staffs witnesses provided a thorough evaluation of the issues raised, and unequivocally demonstrated that those assertions are without merit.

1. Stephen P. Klementowicz Stephen Klementowicz is a Senior Health Physicist in the NRC Division of License Renewal (DLR), Office of Nuclear Reactor Regulation (NRR), in Washington, D.C. A statement of his professional qualifications was provided as Exhibit NRC000089. He has worked as a health physicist in DLR for over five years. His current duties involve the preparation of portions of the Staffs environmental impact statements for nuclear power plant license renewal applications, in the areas of occupational and public radiation exposure, electromagnetic exposure, decommissioning, and design basis accidents. He has served as the technical reviewer for 14 license renewal SEISs and 12 environmental assessments, and he participated in six onsite environmental audits for license renewal. In each of his license renewal reviews, he performed a technical review in the areas of occupational and public radiation exposure, electromagnetic exposure, decommissioning, and design basis accidents. Exhibit NRCR00088, at 1-2.

Prior to joining the Division of License Renewal, Mr. Klementowicz worked for 16 years in the Health Physics Branch in the Division of Inspection Program Management, in NRR. As part of his responsibilities, he served as the lead NRR technical staff reviewer for radiological effluent and other environmental issues involving the NRCs reactor inspection program, and he participated in the preparation of safety evaluation reports for license amendment applications from nuclear power reactors. In addition, he served as the technical lead for the development of the Public Radiation Safety Cornerstone (PRS Cornerstone) for the new NRR Reactor Oversight Process inspection program, which went into effect in 2000. For this new inspection program, he was responsible for development of the NRC inspection protocols for radioactive material controls, radiological effluent monitoring programs, and radiological environmental monitoring programs; and he provided programmatic and technical support to NRR and Regional Inspectors on issues related to the PRS Cornerstone. Id. at 2.

In addition, and as especially pertinent to this contention, Mr. Klementowicz served as a member of the NRCs Liquid Radioactive Release Lessons Learned Task Force (Task Force) that was established to address the issue of inadvertent leaks of radioactive liquids into groundwater from components and buried piping at nuclear power reactor plant sites, leading to issuance of the NRC Task Force report on September 1, 2006 (Exhibit RIV000091). As part of this work, he prepared the Task Force reports section on the NRCs regulatory requirements and regulatory guidance for radiological effluent and environmental monitoring programs. Finally, he was a member of the NRC=s Emergency Response Organization for 15 years, in which capacity he performed dose assessment calculations to assess the radiological dose impacts from nuclear power reactor accidents. Id. at 2-3.

Mr. Klementowicz has particular familiarity with the draft and final SEISs for license renewal of Indian Point. From May 2007 until December 2010, he served as the principal health physics reviewer for radiological issues associated with the Staffs environmental review of the IP2/IP3 LRA. As part of these responsibilities, he was principally responsible for preparation of

certain sections in the Draft Supplemental Environmental Impact Statement, NUREG-1437, Supplement 38 (Dec. 2008) (DSEIS or Draft SEIS) (Exhibit NYS000132A-D), and Final Supplemental Environmental Impact Statement, NUREG-1437, Supplement 38 (Dec. 2010)

(FSEIS or Final SEIS), issued for the IP2/IP3 LRA (Exhibit NYS000133A-J), related to radioactive waste management systems, radioactive effluent control systems, and the potential radiological impacts of license renewal (including impacts related to radioactive gaseous and liquid effluents, and the release of radioactive fluids through leaks in the spent fuel pools (SFPs) at the Indian Point site). Id. at 4.

Specifically, Mr. Klementowicz was the NRCs principal technical reviewer responsible for preparation of the following sections of the Staffs Draft and Final SEIS for the IP2/IP3 LRA:

x Section 2.1.4, Radioactive Waste Management Systems and Effluent Control Systems; x Section 2.2.7, Radiological Impacts; x Section 3.2, Refurbishment Impacts (radiological issues only);

x Section 4.2.1, Electromagnetic Fields - Acute Effects; x Section 4.2.2, Electromagnetic Fields - Chronic Effects; x Section 4.3, Radiological Impacts of Normal Operations; x Section 4.7, Evaluation of New and Potentially Significant Information on Impacts of Operations during the Renewal Term (radiological issues only);

x Section 4.8.3, Cumulative Radiological Impacts; x Section 5.1.1 Design-Basis Accidents; x Section 6.1, The Uranium Fuel Cycle; x Section 7.0 Environmental Impacts of Decommissioning; and x Appendix A, Comments Received on the Environmental Review (radiological issues only).

Id. at 4-5.

2. James D. Noggle James Noggle is employed as Chief of Plant Support Branch 2, Division of Reactor Safety (DRS), in NRC Region I, in King of Prussia, PA, where he is responsible for reactor health physics and incident response in NRC Region I. A statement of his professional qualifications was provided as Exhibit NRCR00090. Id. at 1. From August 1990 to July 2012, Mr. Noggle served as a health physicist and senior health physicist in NRC Region I, with responsibility for radiation safety inspections at various nuclear power plants in Region I, including Pilgrim, Susquehanna, Vermont Yankee, Calvert Cliffs, Beaver Valley, Millstone, Seabrook, Salem, Hope Creek, Peach Bottom, Limerick, Three Mile Island, Fitzpatrick, Nine Mile Point, Ginna, and Indian Point Units 1, 2 and 3. As part of his responsibilities, he participated in or led the NRCs effluent and environmental protection inspection activities at Indian Point Units 2 and 3. In addition, he led the NRC Staffs groundwater investigation team inspections at the Indian Point site, from September 2005 through December 2011. Mr. Noggle is certified in Comprehensive Health Physics by the American Board of Health Physics. Id. at 3.

In addition to leading the NRC Staffs Indian Point groundwater contamination special team inspections, Mr. Noggle participated in several industry groundwater workshops to develop the industrys voluntary groundwater protection initiative (NEI 07-07) and the implementing guidance subsequently provided by the Electric Power Research Institute (EPRI). During the period of January 2010 through January 2012, he served as the NRC Staffs inspection team leader for a contaminated groundwater leak investigation at the Vermont Yankee nuclear power plant. This was also a special NRC inspection team effort that included NRC hydrogeology experts, a hydrogeology supervisor from the U.S. Geological Survey (USGS), and State hydrogeologists from Vermont, New Hampshire and Massachusetts. In addition, he represented the NRC in a groundwater panel discussion during the March 2011 NRC Regulatory Information Conference and in a panel discussion during the November 2011 meeting of the American

Nuclear Society (ANS) to roll out the new ANS/American Nuclear Standards Institute (ANSI) standard, ANSI/ANS-2.17-2010, Evaluation of Subsurface Radionuclide Transport at Commercial Nuclear Power Plants, issued in December 2010. Id. at 3-4.

Mr. Noggle has direct personal knowledge of the groundwater contamination issues at Indian Point. During the past twelve years, Mr. Noggle participated in or led the NRCs effluent and environmental protection inspection activities at Indian Point Units 2 and 3, and he led the NRC Staffs groundwater investigation team inspections at the Indian Point site from September 2005 through December 2011. In his role as team leader for the Staffs groundwater inspections at IP1 and IP2 during the past six years, he directed the teams inspections of the Indian Point site and its review of Entergys investigation of groundwater contamination resulting from leaks in spent fuel pools at the site. In the course of these inspections, the Staffs inspection team worked with hydrogeology experts from the NRC, the USGS, and the New York State Department of Environmental Conservation (NYSDEC); and three health physics experts from NRC Region I and NYSDEC. The findings and conclusions of these team inspections are documented in the following Inspection Reports (IR):

x IR No. 05000247/2005011, September 13, 2005 - February 28, 2006 (Exhibit RIV000069);

x IR No. 05000247/2006003; 05000286/2006003, June 12-13, 2006 (Exhibit NRC000091);

x IR No. 05000247/2006005; 05000286/2006005, November 13-17, 2006 (Exhibit NRC000092);

x IR No. 05000247/2007002; 05000286/2007002, February 26 - March 21, 2007 (Exhibit NRC000093);

x IR No. 05000247/2007003; 05000286/2007003, May 9-10, 2007 (Exhibit ENT000347);

x IR No. 05000247/2007004; 05000286/2007004, July - August 2007 (Exhibit NRC000094);

x IR No. 05000003/2007010; 05000247/2007010, November 7, 2007 - May 7, 2008

(Exhibit RIV000067); and x IR No. 050000003/2009008; 05000247/2009008; 05000286/2009008, August 18

- September 4, 2009 (Exhibit ENT000343).

Id. at 5-6.

C. The Indian Point SFP Leaks

1. Overview Both Mr. Klementowicz and Mr. Noggle disputed the assertion in Contention RK-EC-3/

CW-EC-1 that Entergy (in its Environmental Report) and the Staff (in its Final Supplemental Environmental Impact Statement) have failed to adequately assess new and significant information regarding the environmental impacts of radionuclide leaks from spent fuel pools at Indian Point on groundwater and the Hudson River ecosystem. In this regard, they pointed out that the Applicants Environmental Report, filed in April 2007, was prepared prior to the collection and assessment of the additional information that later became available. As discussed below, the Applicant has engaged in an extensive groundwater monitoring and characterization effort, subject to NRC and New York State inspection, which produced substantial new information regarding groundwater contamination at the Indian Point site; this information is discussed in the testimony of James Noggle. The Staffs FSEIS, issued in December 2010, provides a comprehensive assessment of the information that has become available regarding the spent fuel pool leaks at Indian Point and the environmental impacts of those leaks; the testimony of Stephen Klementowicz describes the Staffs findings and conclusions regarding this matter in the FSEIS for license renewal of Indian Point Units 2 and 3. Id. at 9.

2. Regulatory Requirements Before proceeding to address the merits of this contention, the Staffs witnesses provided an overview of the Commissions requirements governing the release of radioactive materials and radiation doses resulting from the release of radioactive materials or radioactive contamination at U.S. nuclear power plants, that the Staff utilizes in evaluating the adequacy of a

licensees control, monitoring, and reporting of radioactive effluent releases. Id. at 10-20.

In this regard, Mr. Klementowicz explained that the Commission has adopted a comprehensive set of regulations establishing radiation dose limits, radioactive effluent release standards, radiological environmental monitoring programs, and the reporting of radioactive releases, intended to assure that the use of licensed nuclear materials does not adversely impact workers, members of the public, and the environment. Under 10 C.F.R. § 50.34a, applicants to construct a nuclear power plant are required to submit a description of their equipment and procedures for the control of radioactive effluents and for the maintenance and use of equipment installed in radioactive waste systems. In addition, the operating licenses for nuclear power plants are subject to numerous additional requirements, established in 10 C.F.R. Parts 20 and 50, concerning (a) radiation dose limits, (b) radioactive effluent release limits, (c) surveys and environmental monitoring programs, and (d) the reporting of radioactive releases to the NRC. Id. at 10. Mr. Klementowicz then explained each of these regulatory regimes.

(a) Radiation Dose Limits The Commissions regulations establish maximum dose exposure standards (i.e., dose limits) for protecting the public and occupational workers from ionizing radiation resulting from NRC-licensed activities, as set forth in 10 C.F.R. Part 20 (Standards for Protection Against Radiation). As stated in 10 C.F.R. § 20.1001(b), these regulations are intended to control the receipt, possession, use, transfer, and disposal of licensed material by any licensee in such a manner that the total dose to an individual (including doses resulting from licensed and unlicensed radioactive material and from radiation sources other than background radiation) does not exceed the standards prescribed in 10 C.F.R. Part 20. Id.

More specifically, 10 C.F.R. § 20.1301(a)(1) establishes an annual dose limit for individual members of the public of a total effective dose equivalent (TEDE) of 0.1 rem (100 mrem) (1.0 mSv) per year from any licensed activity (which includes all radioactive gaseous and liquid effluents and any direct radiation from the plant or on-site storage facilities and tanks

containing radioactive fluids), exclusive of the dose contribution from background radiation and other specified sources;17 other dose limits are established for occupational workers in 10 C.F.R.

§ 20.1201. In addition, 10 C.F.R. § 20.1301(e) requires nuclear power reactors to comply with the Environmental Protection Agencys (EPA) radiation protection standard in 40 C.F.R.

Part 190, which limits the annual dose to a member of the public to less than or equal to 25 mrem to the total body or any organ (except the thyroid, which is limited to less than or equal to 75 mrem).18 Finally, under 10 C.F.R. § 20.1101(b), licensees are required, to the extent practical, to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA); this concept, known as the ALARA principle, requires licensees to make "every reasonable effort to maintain exposures to radiation as far below the dose limits in [Part 20] as is practical consistent with the purpose for which the licensed activity is undertaken." Id. at 11.

In calculating doses to members of the public from radiation and radioactive effluent releases, the NRC requires consideration of the hypothetical maximum exposed individual. In this regard, consistent with 10 C.F.R. Part 50, Appendix I, and NRC Regulatory Guide 1.109, Rev. 1, Calculation of Annual Doses to Man from Routine Releases of Reactor Effluents for the Purpose of Evaluating Compliance with 10 CFR Part 50, Appendix I (Exhibit ENT000339), the NRC considers the dose to an individual member of the public who is assumed to be maximally exposed, through the environmental pathways by which radioactive releases from the nuclear power plant reach members of the public. For example, liquid radioactive effluent discharges 17 Also, under 10 C.F.R. § 20.1301(a)(2), operations are to be conducted so that [t]he dose in any unrestricted area from external sources, exclusive of the dose contributions from patients administered radioactive material . . . does not exceed 0.002 rem (0.02 millisievert) [i.e., 2 mrem] in any one hour.

18 As discussed below, the NRC has also established an ALARA design objective for liquid effluent releases for (a) doses of 1.5 mrem per quarter and 3 mrem per year to the total body, and (b) maximum organ doses of 5 mrem per quarter and 10 mrem per year, as set forth in 10 C.F.R. Part 50, Appendix I (Numerical Guides for Design Objectives for Operation to Meet the Criterion, As Low As is Reasonably Achievable for Radioactive Material in Light-Water Cooled Nuclear Power Reactor Effluents).

If these ALARA design objectives are not met, the licensee is required to investigate the cause, initiate corrective actions, and provide a 30-day report to the NRC.

into a river can be incorporated by fish, which in turn can impact people who catch and eat the fish. Discharges into a river can also impact the quality of drinking water, if the river is used as a source of drinking water. Atmospheric discharges of radioactive material, and radiation shine from the reactor and spent fuel stored onsite, also contribute to this dose. To determine compliance with 10 C.F.R. § 20.1301(a)(1), the dose from all of these sources is totaled, to produce a calculated dose for the hypothetical maximum exposed individual. Therefore, as discussed below, the NRC requires that environmental pathways be sampled during the term of the license and evaluated for potential impacts on the environment and members of the public.

Id. at 11-12.

(b) Radioactive Effluent Release Limits In addition to complying with the radiation dose limits in 10 C.F.R. Part 20, nuclear power plant licensees are required to comply with 10 C.F.R. § 50.36a (Technical Specifications on effluents from nuclear power reactors), and Appendix I to 10 C.F.R. Part 50 (Numerical Guides for Design Objectives and Limiting Conditions for Operation to Meet the Criterion As Low As Is Reasonably Achievable for Radioactive Material in Light-Water-Cooled Nuclear Power Reactor Effluents). These standards contain criteria for controlling the release of radioactive material, to limit radiation exposures to occupational workers and members of the public, and to limit the impact to the environment. Id. at 12.

Specific requirements governing the release of radioactive liquid effluents are provided in 10 C.F.R. § 50.36a, and are detailed in Appendix I of 10 C.F.R. Part 50. These requirements are structured to maintain the dose to members of the public from all radioactive effluent releases to levels that are ALARA; the NRC thus regulates radioactive effluents from nuclear power plants based on the calculated doses resulting to members of the public from the effluents, rather than by setting a limit on the total volume or type of radioactive material discharged. Id. at 12-13.

Licensees are required to establish radiological effluent release technical specifications (RETS) that contain the ALARA dose criteria from Appendix I, which controls the dose to

members of the public. As set forth in Appendix I,Section II, nuclear power plant licensees must provide reasonable assurance that the following ALARA design objective will be met, for liquid effluents: The calculated annual quantity of all radioactive material above background to be released from each reactor to unrestricted areas will not result in an estimated annual dose or dose commitment from liquid effluents for any individual in an unrestricted area (i.e., the hypothetical maximally exposed member of the public) in excess of (a) 3 mrem to the total body per year (0.03 mSv), or (b) 10 mrem (0.10 mSv) to any organ per year. In addition, under Appendix I,Section IV, if the quantity of radioactive material actually released in effluents to unrestricted areas during any calendar quarter results in radiation exposures that would exceed one-half the annual design objective exposure (i.e., 1.5 mrem to the total body and 5 mrem to any organ), the licensee must investigate the cause for that release rate, initiate a corrective action program, and report its actions to the NRC.19 Id. at 13.

(c) Surveys and Environmental Monitoring Programs, Mr. Klementowicz further explained that the Commission has established detailed requirements for the performance of radiation surveys and monitoring, and for the implementation of a radiological environmental monitoring program (REMP). These requirements may be summarized as follows.

General Requirements In order to demonstrate compliance with the public dose limits in 10 C.F.R. Part 20, licensees are required to perform radiation surveys and monitoring. Thus, 10 C.F.R. § 20.1501 requires that each licensee shall make or cause to be made, surveys that: (1) may be necessary for the licensee to comply with the regulations; and (2) are reasonable under the circumstances 19 As set forth in 10 C.F.R. Part 50, Appendix I, Section IV.C, if the licensees monitoring programs result in data showing that the relationship between the quantities of radioactive material released in liquid and gaseous effluents and the dose to individuals in unrestricted areas is significantly different from that assumed in the calculations used to determine design objectives pursuant to 10 C.F.R. Part 50, Appendix I, Sections II and III, the Commission may modify the quantities in the licensees technical specifications.

to evaluate: (i) the magnitude and extent of radiation levels; (ii) concentrations or quantities of radioactive material; and (iii) the potential radiological hazards. Surveys are performed based on known historical plant information, as well as for areas that have a potential to be impacted by licensed radioactive material. For on-site spills and leaks which have the potential to contain licensed radioactive material, 10 C.F.R. § 20.1501 requires a licensee to conduct appropriate radiation surveys and monitoring to determine the radiological hazard (i.e., dose assessment) to workers and if there is a viable pathway to the unrestricted area, to members of the public. The surveys and monitoring can continue over a period of time or become an on-going monitoring program in order for the licensee to adequately characterize the extent and source of the contamination from the spills or leak. Id. at 13-14.

Requirements governing radiological effluent and environmental monitoring at nuclear power plants are established in (a) 10 C.F.R. Part 50, Appendix A, General Design Criteria 60, 61, and 64, and (b) 10 C.F.R. Part 50, Appendix I, Section IV.B. In particular,Section IV.B of Appendix I requires as follows:

B. The licensee shall establish an appropriate surveillance and monitoring program to:

1. Provide data on quantities of radioactive material released in liquid and gaseous effluents to assure that the provisions of [Section IV.A] section are met;

2. Provide data on measurable levels of radiation and radioactive materials in the environment to evaluate the relationship between quantities of radioactive material released in effluents and resultant radiation doses to individuals from principal pathways of exposure; and

3. Identify changes in the use of unrestricted areas (e.g., for agricultural purposes) to permit modifications in monitoring programs for evaluating doses to individuals from principal pathways of exposure.

Id. at 14-15.

Radiological Environmental Monitoring Program Prior to initial licensing, applicants for a nuclear power plant operating license are required to submit a proposed radiological environmental monitoring program, and to conduct a preoperational program that documents the background levels of direct radiation and concentrations of radionuclides that exist in the environment. A licensees pre-operational environmental monitoring program is reviewed by the NRC Staff in regard to the criteria contained in the NRCs Radiological Assessment Branch Technical Position, Revision 1, An Acceptable Radiological Environmental Monitoring Program (November 1979) (Exhibit NRC000096), as partially revised (for pressurized water reactors) in NUREG-1301 (Offsite Dose Calculation Manual Guidance: Standard Radiological Effluent Controls for Pressurized Water Reactors, Generic Letter 89-01, Supplement No. 1 (April 1991) (Exhibit NRC000097).20 The Branch Technical Position (BTP) contains an example of an acceptable minimum radiological monitoring program for the environment outside a nuclear power plant. The Staffs BTP includes provisions for: (1) monitoring of air at the offsite locations where the highest concentrations of radionuclides are expected; (2) placement of dosimeters in two concentric rings; one ring outside the plant boundary and another ring four to five miles from the site boundary; (3) off site water samples (i.e., surface, ground, and drinking) upstream and downstream of the point of release to the environment; (4) milk samples at locations where the highest doses are expected; (5) and various vegetation and principle radionuclides of concern and the various types of sample material that are to be analyzed. Id. at 15.

Once an operating license has been issued, nuclear power plant licensees are required to conduct an operational radiological environmental monitoring program (REMP). The requirements of the REMP are specified in the licensees RETS or Offsite Dose Calculation Manual (ODCM). In this regard, the licensee must submit: (1) an annual radiological 20 For boiling water reactors the REMP is evaluated under BTP Rev. 1, as partially revised in NUREG-1302, Offsite Dose Calculation Manual Guidance: Standard Radiological Effluent Controls for Boiling Water Reactors, Generic Letter 89-01, Supplement No.1 (April 1991).

environmental monitoring report (also known as an Annual Radiological Environmental Operating Report) which assesses the impact of radiological effluent releases into the environment; and if necessary (2) a Special Report within 30 days of discovery of an event which resulted in a measured radionuclide concentration in an environmental sample exceeding the NRCs reporting level listed in the BTP or a site-specific value listed in the licensees ODCM.

The NRC also requires that the licensee participate in an Inter-laboratory Comparison Program to ensure the accuracy and precision of the licensees data. Following the first three years of reactor operation, changes to the REMP may be made based upon operational experience. The licensees REMP establishes the specific environmental pathways that will be sampled and evaluated during the term of the license. Id. at 15-16.

As discussed above, if the reporting levels in the REMP are exceeded, the licensee must conduct an investigation and prepare and submit a report to the NRC. The problem must also be reported to the NRC in the licensees Annual Radiological Environmental Operating Report, discussed in response to Question 12 below. The results of a licensees radiological environmental monitoring and effluent controls programs are required to be reported annually to the NRC, and are publicly available. Also, the NRC inspects each licensee's effluent and environmental monitoring programs once every two years, to ensure NRC requirements are met.

The status of licensee programs is documented by the NRC in its inspection reports. Id. at 16.

The REMP is intended to supplement the results of the licensees radiological effluent controls program by verifying that any measurable concentrations of licensed radioactive material and levels of radiation in the environment are not higher than expected on the basis of the effluent measurements and modeling of the exposure pathways. Thus, the REMP criteria in the BTP provide for measurements of radiation and of radioactive material in those exposure pathways and for those radionuclides which lead to the highest potential radiation exposures of individuals resulting from plant operation. Areas in the vicinity of the plant that are assumed to have a low probability of receiving radioactive effluents from the plant have less or no

environmental sampling stations. In this regard, the REMP focuses on the public environment beyond the plant property, and does not require ground water monitoring within the licensees site for general detection and monitoring purposes. Ground water monitoring within the licensees site is only required if the ground water is tapped for drinking or irrigation purposes (although special circumstances may exist where a licensee decides to conduct additional groundwater monitoring, or the NRC imposes additional monitoring requirements beyond that which is required by the regulations).21 In the offsite environment, ground water monitoring is required only of sources that are likely to be affected by the operation of the plant. Id. at 16-17.

(d) Reporting Radioactive Releases to the NRC Nuclear power plant licensees are required, pursuant to 10 C.F.R. § 50.75(g), to keep records of information important to the safe and effective decommissioning of the facility. These records include information on known spills or other unusual occurrences involving the spread of contamination in and around the facility or site. These records may be limited to instances when significant contamination remains after any cleanup procedures or when there is reasonable likelihood that contamination may have spread to inaccessible areas; there is no requirement that this information must be submitted to the NRC, however, the records are available for review by NRC inspectors. Id. at 17.

21 Where groundwater contamination has occurred, groundwater monitoring may be necessary to comply with reporting requirements in 10 C.F.R. § 50.75(g)(1) (which requires licensees to keep a record of spills or other unusual occurrences involving the spread of contamination in and around the facility and site for decommissioning purposes) and 10 C.F.R. § 20.1501 (which requires such surveys as may be necessary for a licensee to comply with 10 C.F.R. Part 20, and are reasonable under the circumstances, to evaluate the magnitude and extent of radiation levels, the concentrations or quantities of radioactive material, and the potential radiological hazard posed by radioactive contamination).

In addition, various reporting requirements are established in 10 C.F.R. Parts 20 and 50 pertaining to the release of radioactive materials.22 First, 10 C.F.R. § 20.2202 provides criteria for notification of incidents. For incidents involving the release of licensed radioactive material, immediate notification of the NRC is required when the event may have caused or threatens to cause a large dose in excess of regulatory limits to an individual (i.e., 25 rem to the whole body, 75 rem to the lens of the eye, or a shallow-dose equivalent skin or extremity dose of 250 rads).

For incidents involving doses which are at, near, or slightly above regulatory limits, notification of the NRC is required within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />. Id. at 18.

Second, 10 C.F.R. § 20.2203 requires that a written report be sent to the NRC within 30 days after learning of certain occurrences; these radiation doses in excess of the occupational and public limits in 10 C.F.R. Part 20; levels of radiation or concentrations of radioactive material in a restricted area in excess of any applicable limit in the facilitys license; or radiation levels or releases in an unrestricted area in excess of 10 times any applicable limit in 10 C.F.R. Part 20 or the facility license. Similarly, under 10 C.F.R. § 20.2203(a)(4), nuclear power plant licensees are required to report to the NRC any occurrences in which radiation levels or releases of radioactive material occur in excess of the Environmental Protection Agencys environmental radiation standards in 40 C.F.R. Part 190. Id.

Third, under 10 C.F.R. § 50.73, nuclear power plant licensees are required to submit a Licensee Event Report (LER) for any of the criteria listed in the regulation, within 60 days after the discovery of the event. As pertinent here, § 50.73(a)(2)(viii)(B) requires a written report for any liquid effluent release that, when averaged over a time period of 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br />, exceeds 20 times the applicable concentrations specified in Appendix B to 10 C.F.R. Part 20, table 2, column 2, at 22 In addition to the reporting requirements discussed above, 10 C.F.R. Part 50 includes reporting requirements, under 10 C.F.R. §§ 50.72 and 50.73, for (a) an emergency event (for which immediate notification is required), or (b) a non-emergency event or situation, related to the health and safety of the public, onsite personnel, or protection of the environment (which may include an inadvertent release of radioactively contaminated materials), for which a news release is planned, or notification to other government agencies has been or will be made (for which a four-hour report is required).

the point of entry into receiving waters (i.e., unrestricted area) for all radionuclides except tritium and dissolved noble gases. Id. at 18-19.

Finally, under 10 C.F.R. § 50.36a (Technical specifications on effluents from nuclear power reactors), nuclear power plant licenses must include technical specifications that include a requirement that the licensee submit a report to the Commission that specifies the quantity of each of the principal radionuclides released to unrestricted areas in liquid and in gaseous effluents during the previous 12 months, including any other information as may be required by the Commission to estimate maximum potential annual radiation doses to the public resulting from effluent releases. These reports are known as the licensees Annual Radioactive Effluent Release Report. Thus, in addition to any special reports that may be required, nuclear power plant licensees must submit two annual reports each year: (a) an Annual Radioactive Effluent Release Report, and (b) an Annual Radiological Environmental Operating Report. Id. at 19.

(e) Radiation Doses To Organisms Other than Humans One of the issues presented in Contention RK-EC-3/CW-EC-1 involves the Intervenors concern for radiological protection of non-human biota. See discussion supra at 3. In this regard, Mr. Klementowicz pointed out that the Commissions regulations focus on the potential radiological impacts to humans resulting from the use of licensed nuclear materials. To the extent that any organisms other than humans are exposed to radiation or radioactive materials, they are considered only insofar as those organisms may become part of the human food chain and thereby contribute to the dose received by individuals who consume them. Indeed, the Commission has stated that it is not necessary to develop a framework for radiological protection of non-human species, and the Commission is oppos[ed] to developing standards for protection of flora and fauna. See Staff Requirements Memorandum (SRM) SRM-04-0223 (January 4, 2005) (Exhibit NRC000098), and SRM-06-0168 (August 23, 2006) (Exhibit NRC000099). Further, the Commission has stated that it agrees with the ACRS that there is no evidence that the current set of radiation protection controls is not protective of the environment,

and that the NRC should not develop separate radiation protection regulations for plant and animal species. See SRM-08-0197 (April 2, 2009) (Exhibit ENT000352). The Commissions approach in establishing radiation protection standards for humans, and no other species, is consistent with the approach followed by EPA in its regulations (40 C.F.R. Part 190). Consistent with this approach, the Generic Environmental Impact Statement for License Renewal (1996)

(Exhibit NYS000131) does not evaluate the potential radiological impacts to non-human biota; likewise, the Environmental Standard Review Plan (NUREG-1555, Supplement 1) (Exhibit NYS00019B) does not provide regulatory guidance for evaluating potential radiological impacts to non-human biota. Id. at 19-20.

(f) Drinking Water Standards Mr. Klementowicz further explained that the NRC has not established a standard for radioactivity in drinking water. Rather, such a standard has been established by the U.S.

Environmental Protection Agency, which requires that radiological releases do not result in radionuclide concentrations in drinking water greater than 20,000 pCi/L. The NRC Staff, in Branch Technical Position, Rev. 1 (Nov. 1979) (Exhibit NRC000096), as revised in NUREG-1301 (Exhibit NRC000097) and NUREG-1302, has provided regulatory guidance on the establishment of an acceptable REMP; this guidance document includes a table listing Reporting Levels for Radioactivity Concentrations in Environmental Samples, that includes EPAs drinking water standard of 20,000 pCi/l. If a licensees REMP sample for drinking water exceeds 20,000 pCi/L, the licensee must report it to the NRC and conduct an investigation, in accordance with its Technical Specifications. It should be noted that the EPAs radiation standards for drinking water apply only to municipal drinking water sources, as set forth in 40 C.F.R. Parts 141.15 and 141.16 (for alpha emitting radioactivity and beta/gamma emitting radioactivity, respectively). Id. at 20.

(3) Radioactive Releases and Groundwater Contamination at the Indian Point Site A Chronicle of the Leaks An overview of Entergys groundwater monitoring program(s) was then provided by Staff witness Noggle. Mr. Noggle explained that, in accordance with the regulatory requirements described in its Offsite Dose Calculation Manual (ODCM), Entergy has implemented a radiological environmental monitoring program (REMP), which provides for monitoring and reporting the radiological impacts resulting from plant operations. In addition, after Entergy discovered a leak in the Unit 2 spent fuel pool in August 2005, Entergy instituted a groundwater monitoring program under 10 C.F.R. § 20.1501, to assess the hazard from the radioactive material; this groundwater monitoring program was later expanded into a site-wide groundwater monitoring program that is documented in the Indian Point ODCM and the licensees implementing procedures. By letter dated May 15, 2008 (NL-08-079-4) (Exhibit NRC000095),

Entergy committed to institutionalize the long-term groundwater monitoring program in the ODCM and its implementing procedures; Entergy has, in fact, updated the ODCM in accordance with this commitment. Id. at 21.

Mr. Noggle then provided a summary of the radioactive releases and groundwater contamination from spent fuel pools that have been detected at the Indian Point site. In this regard, he stated that three separate incidents of leakage from the spent fuel pools have been detected at the Indian Point site. First, leakage from the spent fuel pools at Indian Point Unit 1 was discovered in April 1990.23 In March 2006, Strontium 90 (Sr-90) was discovered to be present in groundwater at the site, which has been attributed to leakage from the Unit 1 SFPs, given the chemical composition of liquid in the Indian Point Unit 1 spent fuel pools, resulting from differences in Unit 1 fuel cladding (stainless steel) as compared to fuel cladding at Units 2 and 3 (zircaloy). Second, in May 1992, a through-wall leak in the Unit 2 spent fuel pool was detected, 23 Indian Point Unit 1 has six interconnected spent fuel pools plus a water storage pool.

upon the observation of boric acid deposits on the outside of the spent fuel building east wall.

Third, in August 2005, contamination was detected on the underground concrete wall of the spent fuel building. Finally, in June 2007, a through-wall pin-hole leak was discovered in one corner of the Unit 2 SFP transfer canal. Id. at 21-22.

Mr. Noggle then described the circumstances related to the Unit 1 spent fuel pool leakage that was found to have occurred at the Indian Point site, and the actions taken to address that leakage. The first indication that the Unit 1 spent fuel pools were leaking was in April 1990, when the former licensee (Consolidated Edison Company) operations staff noticed that the frequency of pool refilling, to replace evaporative losses, had increased. Over the next four years, licensee investigations and three NRC inspections (conducted in May-June 1992, August 1992, and December 1994) resulted in confirming a loss rate of 25 gallons per day. In the mid-1990s, the Unit 1 foundation drain discharges were rerouted to enable liquid batch releases to be made from one drain system only, and the former licensee connected the other drain system to the discharge canal with hard piping; a radiation detector was also installed to provide continuous monitoring of this discharge path. In the late 1990s, the former licensee took additional actions to further address the leaking Unit 1 spent fuel pools. These included:

removing and shipping all irradiated reactor hardware (all non-fuel materials) from the pools and emptying all pools except the West spent fuel pool (which contained the spent fuel), to further limit the pool leak rate. Id. at 22.

In March 2006, during Entergys investigation of groundwater contamination (discussed below), Sr-90 was identified in a groundwater monitoring well. This was the first indication that leakage from the Unit 1 SFPs was not confined to the foundation drain system and was entering the groundwater and moving west toward the Hudson River. Entergy then took additional action to process the water in the Unit 1 SFPs, by providing continuous demineralization and filtration, and reducing its radioactivity by a factor of approximately 1000, beginning in August 2006.

Entergy also expedited its plans for dry storage of the Unit 1 spent fuel and, by November 2008,

it successfully removed all of the spent fuel to onsite dry storage, and completely drained and desludged the Unit 1 spent fuel pools. These actions completely terminated any further leakage of radioactive materials from the Unit 1 SFPs. An NRC inspection performed during the period of August 18 - September 4, 2009 reported on and confirmed the success of these actions See Inspection Report 050000003/2009008; 05000247/2009008; 05000286/2009008 (Exhibit ENT000343). Id. at 22-23.

Next, Mr. Noggle described the circumstances related to the Unit 2 spent fuel pool leakage that was found to have occurred at the Indian Point site, and the actions taken to address that leakage. In this regard, the Unit 2 spent fuel pool was discovered to be leaking in May 1992, based on the observation of visible boric acid deposits accumulating on the outside of the spent fuel building east wall. The former licensee (Consolidated Edison Company) performed an examination of the spent fuel pool, identified the source of the leak, and weld-repaired the leak in June 1992. In addition, the former licensee excavated and removed the contaminated soil around the leak location. The former licensees investigation determined that this leak was caused by damage to the Unit 2 SFP liner by a divers cutting torch, during Unit 2 SFP fuel rack modification work in October 1990. The former licensees corrective actions successfully terminated this leak. Id. at 23.

In August 2005, while Entergy was excavating the south wall of the Unit 2 SFP, wet contamination was detected on the exposed underground concrete wall of the spent fuel building. This discovery prompted an investigation, which was then expanded into a site-wide contaminated groundwater investigation. Initially, monitoring wells were installed to map the extent of tritium contamination down-gradient of the Unit 2 SFP. In March 2006, when Sr-90 was detected in groundwater at the site, the investigation was expanded to include the area down-gradient of the Unit 1 SFP. In May 2008, Entergy transmitted a letter (Exhibit NRC000095), in which it undertook to implement a groundwater monitoring program as a license commitment.

During the next two and one-half years, Entergy undertook to develop a hydrogeologic

conceptual site model and implement a comprehensive site-wide groundwater monitoring network with the assistance of its contractor, GZA Geoenvironmental, Inc. (GZA). The licensees conceptual site model testing of groundwater transport included packer testing of each monitoring well, draw-down testing of a Unit 2 SFP recovery well throughout the groundwater monitoring network, and a dye tracer study to track groundwater transport from the Unit 2 SFP as it was intercepted by each onsite monitoring well. Id. at 23-24.

A further leak involving the Unit 2 SFP was discovered in 2007. In June 2007, Entergy drained the Unit 2 SFP transfer canal for examination. During this examination, Entergy identified a through-wall pin-hole leak in one corner of the transfer canal. This leak was evaluated by a Non-Destructive Examination (NDE) Level 3 expert and was characterized as an original welding imperfection; no evidence of any corrosion or degradation of the welded surfaces was found. This defect was permanently repaired by the licensee in December 2007, thereby terminating this leak. The NRC verified and inspected these repairs as documented in Inspection Report No. 05000003/2007010; 05000247/2007010 (Exhibit RIV000067). Id. at 24.

Finally, Mr. Noggle pointed out that no leakage has been detected from the Unit 3 spent fuel pool. The Unit 3 SFP (unlike the Unit 2 SFP) was constructed with a leak detection system that is periodically drained to detect leaks. During the 2005-2008 groundwater investigation, Entergy boroscopically examined and cleaned out this leak detection system, verified its continued operability, and confirmed that there were no current leaks from the Unit 3 SFP. Id.

Entergys Groundwater Investigation Mr. Noggle then described the investigation of groundwater contamination that Entergy has conducted at the Indian Point site following its discovery of a leak from the Unit 2 SFP in 2005. In this regard, Mr. Noggle explained that in performing its investigation and monitoring of groundwater contamination at the Indian Point site, Entergy retained the services of GZA Geoenvironmental, Inc. (GZA); GZA then conducted a two-year comprehensive hydrogeologic site investigation. As stated in GZAs January 7, 2008 final report, Hydrogeologic Site

Investigation Report for the Indian Point Energy Center (GZA Report) (Exhibit RIV000066),

although Entergys groundwater contamination investigation was initially prompted by the discovery of leakage from the Unit 2 SFP, it was subsequently expanded to include other areas of the site where credible potential sources of leakage might exist, and encompassed all three reactor units. Exhibit RIV000066, at viii. Further, GZA explained that the purpose of this investigation was to identify the nature and extent of radioactive groundwater contamination; to assess the hydrogeological implications of that contamination; to establish the sources of radioactive groundwater contamination; to evaluate the mechanisms that control transport of the radiological contamination; to estimate the groundwater flow rate and quantify the radioactive contaminants being discharged from the site; to develop a groundwater monitoring network to monitor the existing contaminant plumes; to align with the Nuclear Energy Institutes groundwater protection initiative (NEI 07-07); and to recommend appropriate remedial actions. Id. at 24-25.

GZAs investigation and monitoring of the groundwater contamination at the Indian Point site resulted in the issuance of its Final Report on January 7, 2008. In its report, GZA reported that it had traced the groundwater contamination back to the Unit 1 and Unit 2 spent fuel pools, and that the plumes resulting from the release of radiological materials from the SFPs had commingled in groundwater at the site. Exhibit RIV000066, at viii. GZA characterized these plumes and determined their extent, activity and impacts. Id. GZA reported that the two primary radionuclide contaminants found to be of interest were tritium and strontium; other contaminants were found in some of the groundwater samples, but always in conjunction with tritium or strontium. Accordingly, while the focus of GZAs investigation was tritium and strontium, it inherently addressed the full extent of groundwater radionuclide contamination. Id. Staff Testimony (Exhibit NRCR00088), at 25.

GZAs investigation resulted in the creation of a detailed hydrogeologic radiological plume map, showing the spatial location and vertical depth of the plume and the concentrations of radionuclide contamination at the Indian Point site. This map is reproduced in NRC Inspection

Report No. 05000003/2007010; 05000247/2007010, Figure 1 (Exhibit RIV000067). GZA found that the contaminated groundwater cannot migrate off-property to the North, East or South, and that the plumes ultimately discharge to the Hudson River to the West. Id. In this regard, GZA concluded as follows (Id. at ix):

The groundwater contamination is, and will remain, limited to the Indian Point Energy Center property, because the migration of Site contaminants is controlled by groundwater flow, which, in turn, is governed by the post-construction hydrogeologic setting. Plant construction required reduction in bedrock surface elevations and installation of foundation drains. These man-made features have lowered the groundwater elevations beneath the facility, redirecting groundwater to flow to the West towards the Hudson River; and not to the North, East or South. Because of the nature and age of the releases, groundwater contaminant migration rates, and interdictions by Entergy to eliminate/control releases, the groundwater contaminant plumes have reached their maximum spatial extent and should now decrease over time.

Staff Testimony (Exhibit NRCR00088), at 25-26. 24 Mr. Noggle further explained that the NRC Staff engaged in extensive efforts to assure that Entergy had adequately investigated and characterized the spent fuel pool leaks that were identified at the Indian Point site. In response to Entergys 2006 discovery of groundwater contamination, the NRC Staff established an independent inspection team, for which Mr. Noggle served as team leader. The NRC inspection team included NRC experts as well as experts from the U.S. Geological Survey (USGS) and the New York State Department of Environmental Conservation (NYSDEC). The NRC inspection team continually reviewed the licensees progress, questioned the adequacy of the conceptual site model, and examined the licensees conclusions. In particular, during quarterly inspections, the NRC team reviewed the iterative progress of the site hydrogeological investigation, and tested an alternative groundwater transport dominated by preferential fracture flow. Id. at 26-27.

During the period of 2005 through 2009, the NRC Staff completed eight team inspections associated with the Indian Point groundwater contamination issue. The results of those 24 The Staffs evaluation of GZAs investigation is discussed below.

inspections are presented in the following Inspection Reports (IR), for which Mr. Noggle had primary responsibility:

x IR No. 05000247/2005011, September 13, 2005 - February 28, 2006 (Exhibit RIV000069);

x IR No. 05000247/2006003; 05000286/2006003, June 12-13, 2006 (Exhibit NRC000091);

x IR No. 05000247/2006005; 05000286/2006005, November 13-17, 2006 (Exhibit NRC000092);

x IR No. 05000247/2007002; 05000286/2007002, February 26 - March 21, 2007 (Exhibit NRC000093);

x IR No. 05000247/2007003; 05000286/2007003, May 9-10, 2007 (Exhibit ENT000347);

x IR No. 05000247/2007004; 05000286/2007004, July - August 2007 (Exhibit NRC000094);

IR No. 05000003/2007010; 05000247/2007010, November 7, 2007 - May 7, 2008 (Exhibit RIV000067); and x IR No. 050000003/2009008; 05000247/2009008; 05000286/2009008, August 18

- September 4, 2009 (Exhibit ENT000343).

x Staff Testimony (Exhibit NRCR00088), at 27.

Due to the existence of two possible groundwater flow hypotheses (i.e., fracture flow versus general porous media flow), the NRC Staffs inspection team developed an independent fracture flow groundwater transport evaluation, using down-hole geophysical and flow logs conducted by the USGS. The Staff/USGS analysis calculated a fracture flow groundwater transport flow rate, which the Staff used to compare with the licensee=s groundwater flow rate calculations (derived from packer testing data (slug tests) and based on a general porous media groundwater flow model). The USGS file report provided comparable results to those obtained by the licensee, thus confirming the licensees groundwater transport results using independent data and methods (Exhibit ENT000341). Staff Testimony (Exhibit NRCR00088),at 27.

In addition to performing an independent hydrogeological analysis, the NRC Staff also

conducted its own independent groundwater sample testing to confirm the types and concentrations of radioactive contaminants that were present. The NRC inspection team established an independent chain-of-custody sampling program for each of the groundwater sampling points to confirm the identity of any radionuclides that were present and to ensure the accuracy of the licensees laboratory analysis program; in addition, the NRC inspection team sampled the Unit 2 SFP to readily identify all possible radionuclides present; and the NRCs sampling program was expanded to include Sr-90, Co-60, Ni-63, and Cs-137, in addition to tritium, after Sr-90 and these other radionuclides were found in several monitoring wells.

Id. at 28.

Further, the Staff performed an independent fish sampling analysis, in conjunction with the State of New York, in order to investigate the Sr-90 background levels present in Hudson River fish far upstream from the Indian Point site, for comparison with Sr-90 levels in fish samples taken near the site. This comparative analysis showed no contamination in any fish samples near the site greater than background levels (attributable to atomic bomb-related testing). Id.

The NRC Staffs inspection team has continued to inspect Entergys groundwater contamination investigation during the past several years, and will continue to do so in the future.

This has included a review of the licensees final site hydrogeological investigation report (which Entergy submitted in January 2008), and the licensees Long Term Ground Water Monitoring Plan (submitted in January 2008). In September 2009, the Staff issued its final groundwater-related special inspection report, in which the Staff concluded that the licensees Final Long Term Ground Water Monitoring Plan was effectively implemented and maintained to monitor groundwater conditions, so as to confirm the licensees conformance with NRC regulatory requirements to protect public health and safety and the environment. (Inspection Report No.

05000003/2009008; 05000247/2009008; and 05000286/2009008) (Exhibit ENT000343),

at page 7. Staff Testimony (Exhibit NRCR00088), at 28.

In addition, the NRC Staffs inspection team interacted extensively with the licensee and its contractor, GZA, during the development and implementation of GZAs hydrogeologic site investigation. Between the fall of 2005 and May 2008 (after the hydrogeologic site investigation report had been issued), NRC team inspections were conducted approximately once per quarter, during which the NRC inspectors met with the Entergy-contracted hydrogeologists to discuss the current conceptual site model of groundwater transport, and challenged the proposed conceptual site model to ensure that appropriate alternative models were investigated. These iterative inspection reviews helped guide Entergys efforts and ensured that a comprehensive investigation was conducted. Id. at 28-29.

Examples of these interactions include:

x The NRC inspection team proposed assumption of fracture flow-dominated groundwater transport versus Entergys assumption of general porous media groundwater flow transport; this resulted in the NRCs arrangement for an independent USGS study of fracture flow at the site to compare with the groundwater flux results obtained by the licensee.

x Due to questions of possible continued leaks from the Unit 2 SFP and potential remediation options, the licensee installed a recovery well (RW-1) adjacent to the Unit 2 SFP and conducted a pumping test that provided information concerning draw down connectivity to the existing groundwater monitoring well network.

x The NRC inspection team questioned the conceptual site models proposal of a perched water storage area below the Unit 2 SFP and above the water table. Proof of this proposed model initiated a fluorescein dye tracer test study by the licensee that involved injecting fluorescein dye at the base of the Unit 2 SFP to monitor its movement in the subsurface including the time of transport, which substantiated the licensees hypothesis of a perched water system below the Unit 2 SFP.

These iterative challenges and cross-examinations of the licensees site investigation assisted in producing a comprehensive investigation with proof of each assumption and model theory, prior to GZAs issuance of its January 7, 2008 Hydrogeologic Site Investigation Report (Exhibit RIV000066). Staff Testimony (Exhibit NRCR00088), at 29.

Based upon its extensive inspection efforts, the Staff reached conclusive determinations regarding the adequacy of Entergys investigation of groundwater contamination at the Indian

Point site. As explained by Mr. Noggle, Inspection Report No. 05000003/2007010; 05000247/2007010, dated May 13, 2008 (Exhibit RIV000067) provides the NRC Staffs assessment of GZAs Final Report. As described therein, the Staff concluded that Entergys investigation of groundwater contamination at the Indian Point site (a) provides a reasonable basis for estimating groundwater contaminant discharge flow, (b) shows that contaminant concentration measurements have been effectively determined, and (c) provides a sound understanding of the extent and significance of the radiological contamination of groundwater at the Indian Point site. Further, the hydrogeologic radiological plume map (see Exhibit RIV000067, at Enclosure, Figure 1) which was formulated based upon the results of Entergys groundwater contamination investigation, provides a sound understanding of the spatial location and vertical depth of the radioactive plume and concentrations of radionuclide contamination at the site. Staff Testimony (Exhibit NRCR00088), at 30.

In addition to investigating existing site contamination, GZA provided an evaluation of remediation options. In this regard, GZA concluded that due to potentially expanding the Unit 1 Sr-90 plume unnecessarily, pumping down the groundwater beneath the Unit 2 SFP would not be desirable, and that monitored natural attenuation would be the most effective option. Exhibit RIV000066, at Pages16-17; Inspection Report No. 05000003/2009008; 50000247/2009008; and 05000286/2009008 (Exhibit ENT000343), at page 5. The Staffs inspection team agreed with this conclusion. In Inspection Report No. 05000003/2009008; 05000247/2009008; and 05000286/2009008, dated October 19, 2009 (Exhibit ENT000343), the Staffs inspection team found that the GZA report constitutes an acceptable technical basis document to support the site groundwater monitoring well network and to help identify potential leaks in the future. This evaluation provided the NRC inspection team with confidence that the long term groundwater monitoring program was sufficient to monitor the existing groundwater contamination plume as well as detect any future leaks to groundwater, so as to limit the offsite groundwater discharge of radioactive material at Indian Point. Staff Testimony (Exhibit NRCR00088), at 30-31.

Impact of the Groundwater Contamination on Members of the Public Having described the groundwater contamination, Entergys groundwater investigation, and the Staffs inspection activities, Mr. Noggle then explained how the concentrations of radioactive materials that are present in the groundwater at the Indian Point site contribute to radiation doses to members of the public. As he stated, the radiological consequences of releases from a nuclear power plant are assessed based on their dose impacts on the hypothetical maximum exposed individual member of the public. Plant-specific exposure pathways - e.g., internal dose from the consumption of various radiologically impacted food supplies (drinking water, fish, crops, and milk), inhalation, and direct exposure from the facility and shoreline deposits - are evaluated and defined in the licensees Radiological Effluent Technical Specifications and/or Offsite Dose Calculation Manual. Gaseous and liquid releases are sampled, the quantity of radioactivity determined, and the dose contributions from each pathway-to-man are calculated. Using public dose calculation methodology specified in NRC Regulatory Guide 1.109 (Exhibit ENT000339), the maximum dose for four age groups and for total body and maximum organs are calculated and reported annually to the NRC in the licensees Annual Radioactive Effluent Release Report. Staff Testimony (Exhibit NRCR00088),

at 31.

Entergys Offsite Dose Calculation Manual specifies the site-specific exposure pathways to the public due to radionuclide releases from Indian Point Energy Center. For Indian Point, no direct drinking water pathway has been modeled, as there are no onsite or nearby offsite drinking water wells and nearby sections of the Hudson River are brackish and are not currently used for public drinking consumption. Likewise, there is no downstream irrigation use of the Hudson River. As a result, in Entergys ODCM, the liquid effluent pathway includes only the postulated consumption of fish and saltwater invertebrates (e.g., crabs) that are harvested from the Hudson River; this factor is used for determining the public dose impact resulting from the discharge of contaminated groundwater from Indian Point into the Hudson River. The corresponding

Radiological Environmental Monitoring Program (REMP) samples fish and invertebrates twice annually, including the area impacted by the plant and a control location 20 miles upstream of the site. Entergy also samples aquatic plants, Hudson River water and bottom sediment and shoreline soil as well, although these samples represent only environmental indicators rather than pathways to man. Id. at 31-32.

Mr. Noggle provided a summary of the radiation doses from the Indian Point site, as set forth in Table 1 of his testimony. Table 1 presents the reported public doses for the six-year period of 2005 - 2010 (the last year for which these data are currently available),25 for all pathways at Indian Point Units 1, 2 and 3 - including the dose resulting from groundwater contamination at the site:

Table 1 Effluent Release and Total Doses to the Public Due to IPEC Operation (a) (b) (c) (d) (e) (f) (g) (h)

Sum of Sum of Columns Columns (a) - (c) (d) - (g)

Units 1 & Unit 3 Ground Total site Total site Direct C-14 total Total site 2 liquid liquid water liquid air release (radiation body dose total body routine routine release release total body shine) (mrem/yr) dose release release total body total body dose total body (mrem/yr) total body total body dose dose (mrem/yr) dose dose dose (mrem/yr) (mrem/yr) (mrem/yr)

(mrem/yr) (mrem/yr) 2005 8.11E-4 4.45E-4 2.12E-3 3.38E-3 4.87E-3 <4 5.2E-2 <4.06 2006 8.8E-4 1.27E-4 1.78E-3 2.79E-3 1.3E-2 <7 5.2E-2 <7.07 2007 5.35E-4 3.2E-4 2.66E-4 1.12E-3 6.31E-3 <7 5.2E-2 <7.06 2008 6.11E-4 1.56E-4 2.86E-4 1.05E-3 4.06E-3 6 5.2E-2 6.06 2009 9E-4 2.49E-4 2.56E-4 1.4E-3 5.64E-3 5 1.04E-1 5.11 2010 5.18E-4 1.7E-4 1.73E-4 8.61E-4 7.84E-3 6.1E-2 1.25E-1 1.95E-1 Id. at 32.

As demonstrated in the above Table, for the past six years of reported public doses, the total dose from all pathways at Indian Point Units 1, 2 and 3 (collectively, the Indian Point Energy Center (IPEC)) - including the dose resulting from groundwater contamination at the site - has 25 Data for calendar year 2011 are due to be reported by May 15, 2012.

consistently been well below the NRC regulatory public dose limits. Further, during this period, the dose contribution from groundwater contamination at the site has consistently been a small fraction of the total dose.26 In addition, the groundwater plume associated with the Unit 2 SFP has shown a decreasing trend in radioactivity, during the three years following Entergys repair of the Unit 2 SFP transfer canal pinhole leak. In sum, the maximum hypothetical doses from liquid pathways represent approximately 0.1% of the ALARA design objectives for liquid effluents (3 mrem to the total body per year, per reactor) for Units 1 and 2, even with the groundwater releases attributed to the Indian Point Units 1 and 2 spent fuel pools. Comparing these doses to the public dose limit in 10 C.F.R. § 20.1301 (100 mrem TEDE per year), the total site radiation doses to members of the public from the operation of Indian Point Units 1, 2 and 3 are well below regulatory limits with no significant impact on public health and safety. Id. at 32-33.

In addition to assessing the total body doses from all pathways at Indian Point, Mr.

Noggle assessed the calculated maximum organ doses. The maximum hypothetical doses from liquid pathways represent approximately 0.1% of the ALARA design objectives for liquid effluents (10 mrem to the maximum organ per year, per reactor) for Units 1 and 2, even with the groundwater releases attributed to the Indian Point Units 1 and 2 spent fuel pools. Id. at 33.

Both the total dose and maximum organ doses are a fraction of the EPAs total body dose and maximum organ dose criteria as provided in 40 C.F.R. Part 190 (25 mrem total body and/or any organ and 75 mrem organ dose to the thyroid). As shown in Table 2 below, the total offsite radiation doses to the maximum organ are well below the NRC ALARA design criteria and 26 As is also evident in Table 1 above, the trend of dose impacts from groundwater contamination at the Indian Point site shows a general decline in dose over the period 2005-2010. In this regard, it should be noted that during the licensees hydrogeological investigation (conducted since 2005), various conservative approximations were made during the first two years until a measured groundwater flow could be determined and more accurate groundwater releases and public doses could be determined. For this reason, the doses reported for 2005 and 2006 are shown to be higher than in later years. Also, late in 2008, the licensee intentionally raised the Unit 1 spent fuel pool water level, in order to be able to unload the spent fuel from the pool prior to subsequent pool drain down. This resulted in a temporary increase in contaminated groundwater leakage and an expected elevated groundwater release in 2009; the effect of that action decreased in 2010 and this downward trend is expected to continue in future years. Staff Testimony (Exhibit NRCR00088), at 32-33 n.10.

EPA limits. Id.

Table 2 Effluent Release and Maximum Organ Doses to the Public Due to IPEC Operation (a) (b) (c) (d) (e) (f) (g) (h)

Sum of Sum of Columns Columns (a) - (c) (d) -(g)

Units 1 & 2 Unit 3 Ground Total site Total site Direct C-14 Total site liquid liquid water liquid air release (radiation maximum maximum routine routine release release maximum shine) organ organ dose release release maximum maximum organ maximum dose (mrem/yr) maximum maximum organ organ dose organ (mrem/yr) organ organ dose dose (mrem/yr) dose dose dose (mrem/yr) (mrem/yr) (mrem/yr)

(mrem/yr) (mrem/yr) 2005 1.31E-3 5.38E-4 9.72E-3 1.16E-2 4.87E-3 <4 2.6E-1 <4.28 2006 1.26E-3 1.6E-4 7.21E-3 8.63E-3 1.3E-2 <7 2.6E-1 <7.28 2007 1.3E-3 2.14E-4 9.94E-4 4.43E-3 6.31E-3 <7 2.6E-1 <7.27 2008 1.47E-3 2.83E-4 9.35E-4 2.69E-3 4.66E-3 6 2.6E-1 6.27 2009 1.71E-3 4.59E-4 1.03E-3 3.2E-3 5.64E-3 5 5.2E-1 5.53 2010 1.09E-3 9.73E-4 7.06E-4 2.77E-3 7.84E-3 6.1E-2 6.29E-1 7E-1 Id. at 34.

Impact on Drinking Water The NRC Staffs inspection team agreed with Entergys conclusion that radioactive groundwater contamination at the Indian Point site will not result in radiological impacts to local drinking water supplies, and that impacts to the Hudson River are limited to human consumption of fish and invertebrates in the river. In this regard, Entergys groundwater contamination investigation evaluated the site groundwater transport direction, evaluated the location of local drinking water supplies, and determined that the groundwater contamination will have no impact to any public drinking water supply. The closest reservoir (Camp Field) is located 3.3 miles from the site and at an elevation several hundred feet above the site elevation, while the Indian Point groundwater contaminant plume is generally less than 10 feet above sea level. The other local public drinking water supply is the New Croton Reservoir, which is 6.3 miles from the site at about 200 feet above sea level. Both of these public drinking water supplies are several watersheds away from the Indian Point site with higher elevations than the site, and therefore

would not be impacted by groundwater contamination at Indian Point. Id. at 34.

Entergy also reviewed the other exposure pathways to man (irrigation, recreational activities, and fish consumption) and determined that only the consumption of fish and invertebrates was a viable exposure pathway impacted by the discharge of contaminated groundwater from the site. The NRC inspection team reviewed the bases for these environmental impact assessments and agreed with Entergys conclusion that the consumption of fish and invertebrates was the only viable exposure pathway. See Inspection Report No.

05000003/2007010 and 05000247/2007010 (May 13, 2008) (ExhibitRIV000067), at pages 7-9.

Staff Testimony (Exhibit NRCR00088), at 35.

Role of New York State Mr. Noggle also explained the role performed by the New York State Department of Environmental Conservation (NYSDEC) in the investigation or inspection of groundwater contamination at the Indian Point site. Experts from the NYSDEC were directly involved in the NRC Staffs groundwater inspection activities, and they participated actively during the licensees hydrogeologic site investigation. For example, NYSDEC conducted its own split sample tests of groundwater samples to verify the licensees results. In addition, NYSDEC and the Staff reviewed the licensees REMP sampling of fish taken from the Hudson River, resulting in the establishment of a background level of Sr-90 in Hudson River fish, based on the conduct of an extended fish migration population tissue sampling study in June 2007. This tissue sampling study was undertaken to resolve the source of Sr-90 detected in a few fish in both the discharge zone of the plant and the control zone 20 miles upstream; an additional fish sampling location 90 miles upstream was selected by NYSDEC to provide a segregated fish population to measure Sr-90 due to background atomic bomb testing. The results of that study indicated that all positive Sr-90 detections reflected background levels, supporting the conclusion that REMP samples have not detected any Sr-90 in fish due to the operation of the Indian Point facility. Id. at 35.

As part of its inspection activities, the NRC inspection team evaluated the groundwater

effluent discharge bases as documented in the GZA Report, and the dose calculations based on the Indian Point ODCM. The inspection team found that the licensees analyses included the dilution of groundwater effluent discharges into the Hudson River in a 6-hour tidal surge of the river, and that the licensee followed the radionuclide transfer, population segment consumption rates (infant, child, adolescent, adult), and dose conversion factors supplied in Regulatory Guide 1.109 for calculation of the public doses, with one exception, which the NRC inspection team found to be acceptable.27 Entergys public dose calculations resulting from fish and invertebrate consumption were independently verified and validated by the NRC inspection team. Id.

at 35-36.

Current or Continued Leakage Mr. Noggle then addressed the question of whether radioactive materials from the Indian Point spent fuel pools are continuing to flow into groundwater at the site. Mr. Noggle stated that, to the best of the Staffs knowledge, Entergy has terminated the sources of groundwater contamination, and the Staff is not aware of any evidence of continued leakage from the Indian Point SFPs into groundwater at the site. He noted, however, that only 40% of the Unit 2 SFP liner welds have been inspected due to the small wall clearances adjacent to the spent fuel racks that prohibit conventional inspection techniques. Nonetheless, based on a sensitivity analysis of the groundwater monitoring wells, the NRC Staff has determined that if there is any ongoing leakage, it would total no more than 30 gallons per day. This is documented in NRC Inspection Report No. 05000003/2009008; 05000247/2009008; and 05000286/2009008) (Exhibit ENT000343), at page 7. Staff Testimony (Exhibit NRCR00088), at 36.

27 In this regard, Entergy utilized a bioaccumulation factor of 224 for fish and invertebrates, rather than the default values specified in Regulatory Guide 1.109 for freshwater fish and invertebrates of 2000 and 1000, respectively, based on measurements performed by the New York University Medical Center (Radioecological Studies of the Hudson River Progress Report, March 1988). The NRC inspection team found that the use of this site-specific bioaccumulation factor was appropriate, because the Hudson River near the Indian Point site is not a fresh water body (13% seawater salinity) and Regulatory Guide 1.109 establishes a bioaccumulation factor of 2 for fish and 20 for invertebrates in seawater. Staff Testimony (Exhibit NRCR00088), at 36 n.11.

Further, Mr. Noggle stated that ultimately, the detection of leaks from the Unit 2 SFP relies on groundwater well monitoring. In this regard, the associated monitoring wells (MW-30, MW-31, and MW-32) have shown a decreasing trend in tritium concentrations, which are currently approximately 1/3 of the actual tritium concentrations measured in 2005; this trend is indicative of natural attenuation (through groundwater purging and radioactive decay) of the radioactive materials that were released through the SFP leak prior to its repair in 2007. Entergy has committed to continue implementation of its groundwater monitoring program in the future.

Continued implementation of Entergys current groundwater monitoring program should be sufficient to detect any change in the spent fuel pool condition, and provides reasonable assurance that Entergy will be able to detect and fix any further leaks that may occur, thus minimizing the potential for any significant offsite groundwater releases in the future. Id.

at 36-37.

Finally, Mr. Noggle stated that the leakage of radioactive materials from the Indian Point spent fuel pools is reflected in Entergys Annual Radioactive Effluent Release Reports (ARERRs), issued since 2005. In this regard, he noted that Entergy is required to report the quantity of radioactivity released and the dose impact on the public in its ARERRs. Since the Unit 1 and Unit 2 spent fuel pools were identified to be leaking (in March 2006 and September 2005, respectively), Entergy has reported offsite effluent releases from groundwater in its ARERRs, as required. This included quantities of each radionuclide released and the dose impact from these releases on the hypothetical maximum exposed individual member of the public. Id. at 37.

Entergys Annual Radioactive Effluent Release Reports provided official documentation of the groundwater effluent discharges, and provided a regulatory focus for the NRC Staffs inspection activities. The Staffs inspections evaluated the adequacy of the licensees reports under the NRCs reporting requirements, and compared the reported effluent releases to the ALARA dose objectives in 10 C.F.R. Part 50, Appendix I. The Staff found that Entergys

hydrogeologic investigation established site groundwater flow parameters and an acceptable precipitation mass/flow methodology to calculate the groundwater flux through the contamination impacted areas of the site. This provided a reasonable basis for quantifying the offsite groundwater effluent releases reflected in Entergys ARERRs. Id. at 37.

D. Consideration of Radioactive Releases and Groundwater Contamination in the FSEIS Following Mr. Noggles testimony regarding the history of SFP leaks at the site, and the efforts by Entergy, the Staff and NYSDEC to resolve this matter, the Staffs witnesses proceeded to explain how the Staff considered these matters in the FSEIS for license renewal of IP2 and IP3. In this regard, a thorough explanation of the FSEIS treatment of these matters was presented by Stephen Klementowicz, who served as lead reviewer of radiological issues for the Staffs FSEIS. Staff Testimony (Exhibit NRCR00088), at 38-56.

Mr. Klementowicz stated, unequivocally, that the potential radiological impacts of license renewal, including the radiological impacts resulting from effluent releases, specifically including the spent fuel pool leaks, were considered in the Final Supplemental Environmental Impact Statement for license renewal (Exhibit NYS000133), in FSEIS Sections 2.2.7, 4.3, 4.5, and 4.7.

Staff Testimony (Exhibit NRCR00088), at 38.

As stated by Mr. Klementowicz, in developing the FSEIS for license renewal, the Staff considered all of the available information concerning the radiological impacts of license renewal, including impacts resulting from the spent fuel pool leaks. In this regard, the Staff reviewed Entergys LRA and Environmental Report; Entergys responses to Staff RAIs and its Updated FSAR; numerous reports submitted by Entergy to the NRC regarding radioactive effluent releases and radiation doses at the Indian Point site - including its Annual Radiological Environmental Operating Reports (AREORs) and Annual Radioactive Effluent Release Reports (ARERRs) for the period 2002-2006 and 2009; the Offsite Dose Calculation Manual for IP2; Entergys letter of May 15, 2008 (Remediation and Long Term Monitoring of Site Groundwater)

(Exhibit NRC000095) numerous NRC inspection reports concerning radioactive effluent releases and groundwater contamination at the Indian Point site, identified in the testimony above; various documents issued by the State of New York, including annual reports on environmental radiation and Community Fact Sheets containing information on the groundwater investigation at Indian Point conducted by NYSDEC and the New York State Department of Health; the Final Environmental Statement for Indian Point Units 2 and 3 (issued in 1975); the Draft SEIS for IP2 and IP3 (Exhibit NYS000132); and the public comments on radiological impacts that the Staff received during the EIS scoping process and public comments received concerning the DSEIS (see Appendix A to the FSEIS).28 Staff Testimony (Exhibit NRCR00088), at 38-39.

First, Mr. Klementowicz observed that in its April 2007 Environmental Report (ER),

Entergy presented information concerning the spent fuel pool leaks, in ER Section 5.1, New and Significant Information: Groundwater Contamination. In this regard, he noted that an applicant for license renewal is required, under 10 C.F.R. § 51.53(c), to submit certain information in its environmental report concerning the environmental impacts of license renewal; however, as stated in § 51.53(c)(2), the environmental report need not discuss any aspect of the storage of spent fuel for the facility within the scope of the generic determination in § 51.23(a) and in 28 For example, the Staff responded to public comments regarding the SFP leaks in Appendix A of the FSEIS (Exhibit NYS000133), at pages A-60 to A-62, A-94 to A-97, A-100, A-116 to A-117, A-136 to A-137, and A-143 to A-145. Staff Testimony (Exhibit NRCR00088), at 39 n.12.

accordance with § 51.23(b).29 At the same time, an applicant is required, under 10 C.F.R.

§ 51.53(c)(3)(iv), to submit any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware. Accordingly, Entergy identified the SFP leaks and groundwater contamination at the Indian Point site as new information; Entergy concluded, however, that the new information was not significant based on the facts known at the time it submitted its ER. Staff Testimony (Exhibit NRCR00088), at 39-40.

In its Final SEIS, the Staff considered the information that was presented in Entergys Environmental Report concerning the SFP leaks and their radiological impacts, as well as Entergys determination that this information was new, but not significant. For example, in Section 2.2.7 of the FSEIS, the Staff summarized the information and conclusions reached by Entergy, as follows:

In August of 2005, Entergy discovered tritium contamination in groundwater outside the IP2 spent fuel pool (SFP). As a result, Entergy began an on-site and off-site groundwater monitoring program (in September of 2005) in addition to the routine REMP.

Entergy used this monitoring program to characterize the on-site contamination, to quantify and determine its onsite and off-site 29 In 10 C.F.R. § 51.23, the Commission (a) recited its generic determination that spent fuel can be stored onsite or offsite without significant environmental impacts for at least 60 years beyond the term of a renewed license, and (b) stated that a license renewal applicants environmental report need not discuss any environmental impact of spent fuel storage in the reactors spent fuel pool:

§ 51.23 Temporary storage of spent fuel after cessation of reactor operationgeneric determination of no significant environmental impact.

(a) The Commission has made a generic determination that, if necessary, spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 60 years beyond the licensed life for operation (which may include the term of a . . . renewed license) of that reactor in a combination of storage in its spent fuel storage basin and at either onsite or offsite independent spent fuel storage installations. . . .

(b) Accordingly, as provided in §§ 51.30(b), 51.53 [and] 51.95

. . . , and within the scope of the generic determination in [§ 51.23(a)], no discussion of any environmental impact of spent fuel storage in reactor facility storage pools . . . for the period following the term of the reactor operating license or amendment, . . . is required in any environmental report, environmental impact statement, environmental assessment, or other analysis prepared in connection with the issuance or amendment of an operating license for a nuclear power reactor under parts 50 and 54 of this chapter . . . .

radiological impact to the workers, public and surrounding environment, and to aid in identification and repair of any leaking systems, structures or components.

In Section 5.1 of its ER, Entergy identified the release of radionuclides to groundwater as a potentially new issue based on NRC staff analysis in a previous license renewal proceeding. In its discussion of the issue, Entergy concluded that the radionuclide release does not affect the onsite workforce, and that Entergy anticipated the leakage would not affect other environmental resources, such as water use, land use, terrestrial or aquatic ecology, air quality, or socioeconomics. In addition, Entergy asserted that no NRC dose limits have been exceeded, and EPA drinking water limits are not applicable since no drinking water exposure pathway exists.

Id. at 40.

While the Staffs FSEIS considered the information and environmental assessment that Entergy provided concerning the SFP leaks and their radiological impacts, the Staff did not base its evaluation and conclusions in the FSEIS, for purposes of license renewal, solely on Entergys information and assessment. Rather, the Staff considered much more information in evaluating the radiological impacts of license renewal. As stated above, this included reviewing, among other things, (a) Entergys Annual Radiological Environmental Operating Reports (AREORs),

which include a description of its radiological environmental monitoring program (REMP),

(b) Entergys Annual Radioactive Effluent Release Reports (ARERRs), (c) publications by the State of New York, and (d) numerous inspection reports issued by the NRC Region I groundwater inspection team. Id. at 41.

(a) FSEIS Consideration of Entergys AREORs and REMP First, Mr. Klementowicz described the radiological environmental monitoring program (REMP) and the additional monitoring that has been conducted at Indian Point, which the Staff considered in the FSEIS for license renewal of Indian Point Units 2 and 3. He explained that nuclear power plant licensees are required to conduct radiological monitoring of the environment, pursuant to Criterion 64 of Appendix A to 10 C.F.R. Part 50. In performing its evaluation of the

potential impacts to members of the public from radioactive effluent releases, the Staff generally reviews five years of the applicants annual reports containing data on radioactive effluents and radiological environmental monitoring data. The use of a five year period is consistent with the guidance contained in the Staffs Environmental Standard Review Plan, Supplement 1 (NUREG-1555, Supp. 1) (Exhibit NYS00019B), at 2.2.7-4. Also, a five year period provides a representative data set that covers a broad range of the activities that typically occur at a nuclear power plant, such as refueling outages, non-refueling outage years, routine operation, and years in which there may be significant maintenance activities. In reviewing these data, the Staff seeks to determine whether radiological conditions at the plant have been steady, without measurable impact to the environment from plant operations, and whether there are any trends showing an increase or decrease in radioactive effluent discharges or the build-up of radioactivity in the environment around the plant site. Id. at 41.

Environmental monitoring and surveillance have been conducted at the Indian Point site since 1958, which was four years prior to the start-up of Unit 1. The pre-operational program was designed and implemented to determine the background radioactivity and to measure the variations in radioactivity levels from natural and other sources in the vicinity, as well as fallout from nuclear weapons tests. The radiological data obtained by the former licensee (as well as by Entergy) include both natural and anthropogenic sources of environmental radioactivity. The background environmental data permit the detection and assessment of the levels of environmental activity attributable to plant operations. Id. at 42.

Under its current licenses, Entergy conducts a radiological environmental monitoring program for the Indian Point site. In accordance with 10 C.F.R. Part 50, Appendix A, Criterion 64, the REMP seeks to assess the radiological impacts to the environment and the public around the Indian Point. The objectives of the REMP are (1) to enable the identification and quantification of changes in the radioactivity of the area, and (2) to measure radionuclide concentrations in the environment attributable to operations of the Indian Point site. Entergy

summarizes the results of its REMP in its Annual Radiological Environmental Operating Reports.

Id.

Entergys REMP samples environmental media in the environs around the site to analyze and measure the radioactivity levels that may be present. The REMP is used to measure the direct radiation and the airborne and waterborne pathway activity in the vicinity of the Indian Point site. Direct radiation pathways include radiation from buildings and plant structures, airborne material that might be released from the plant, cosmic radiation, fallout, and the naturally occurring radioactive materials in soil, air and water. The REMP designates sampling locations for the collection of environmental media for analysis. These sample locations are divided into indicator and control locations. Indicator locations are established near the site, where the presence of environmental radioactivity of plant origin is most likely to be detected.

Control locations are established farther away (and upwind/upstream, where applicable) from the site, where the level would not generally be affected by plant discharges. The use of indicator and control locations enables the identification of potential sources of detected radioactivity as either background or from plant operations. The media samples are representative of the radiation exposure pathways to the public from all plant radioactive effluents. Id. at 42-43.

Entergys analysis of thermoluminescent dosimeters (TLDs), used to measure direct radiation, indicated that there were no increased radiation levels attributable to plant operations during the 2009 reporting period. The airborne pathway includes measurements of air, precipitation, drinking water, and broad leaf vegetation samples; Entergys REMP shows that there were no increased radiation levels attributable to airborne material from the Indian Point site during the 2009 reporting period. The waterborne pathway at Indian Point consists of Hudson River water, fish and invertebrates, aquatic vegetation, bottom sediment, and shoreline soil; Entergys REMP shows there were no significant radiological impacts resulting from the waterborne pathway during the 2009 reporting period. Id. at 43.

The Applicants 2009 REMP results demonstrate the relative contributions of different radionuclide sources, both natural and anthropogenic, to the environmental concentrations. The results indicate that the fallout from previous atmospheric weapons testing continues to contribute to detection of Cs-137 in some environmental samples. There are infrequent detections of plant related radionuclides in the environs; however, the radiological effects are very low and are significantly less than those from natural background and other anthropogenic sources. Id.

As discussed above, nuclear power plant licensees are required to submit both an ARERR (for radiological effluent releases) and an AREOR (for radiation monitoring).

Mr. Klementowicz explained that the REMP supplements the radioactive effluent release program by verifying that any measurable concentrations of radioactive materials and levels of radiation in the environment are not higher than those calculated using the radioactive effluent release measurements and transport models. Further, the REMP provides an indication of the appearance or accumulation of radioactive material in the environmental that may have been caused by the operation of the nuclear power plant. It also is used to provide documentation the plants are operating in accordance with NRC requirements. Entergys 2009 REMP, like the 2002-2006 REMP results, showed no significant radiological impacts to the environment resulting from plant operations. Overall, the results of the 2009 REMP were comparable to historical REMP results. Id. at 43-44.

Mr. Klementowicz then explained that in addition to conducting its normal REMP, in September 2005 Entergy began implementation of an onsite and offsite ground water monitoring program in response to the discovery of tritium contamination in the groundwater near the Unit 2 spent fuel pool. Additional monitoring actions were developed as part of the site's groundwater monitoring program, which supplements the existing REMP to monitor potential impacts of site operations throughout the license renewal term and to monitor potential impacts of site operations and waste and effluent management programs. This monitoring was added by

Entergy to assure that all pathways were being evaluated. The groundwater monitoring program is used to characterize the onsite contamination, to quantify and determine its onsite and offsite radiological impact to the workers, public and surrounding environment, and to aid in identification and repair of any leaking systems, structures or components. Id. at 44.

In January 2008, Entergy submitted a report to the NRC, summarizing the findings and conclusions of its investigation that it had initiated following the 2005 discovery of SFP leaks and groundwater contamination (i.e., the GZA Report, discussed in the testimony of James Noggle above). In its accompanying letter dated January 11, 2008 (Exhibit ENT000371), Entergy stated that it had characterized and modeled the affected groundwater regime, identified the sources of leakage, and determined the radiological impacts resulting from the leakage. In addition, Entergy reported that it had begun a long-term groundwater monitoring program and had initiated a remediation program to address the site groundwater conditions. Further, Entergy stated that it had performed radiological dose impact assessments and that it will continue to perform them, and will report the results in its Annual Radiological Effluent Release Reports. Entergys investigation concluded that the only notable dose pathway resulting from contaminated groundwater migration to the Hudson River is through the consumption of fish and invertebrates from the river, and the resultant calculated dose to a member if the public is below 1/100 of regulatory limits. Id. at 44-45.

The results of Entergys groundwater investigation and groundwater monitoring program are summarized in the testimony of James Noggle, above. The Staff considered those results, along with the information obtained from the REMP and AREORs, in evaluating the radiological impacts of license renewal, as primarily set forth in Sections 2.2.7, 4.3 and 4.7 of the FSEIS for Indian Point Units 2 and 3 (Exhibit NYS000133). Staff Testimony (Exhibit NRCR00088) at 45.

Having provided this overview of Entergys radiological monitoring program and additional monitoring efforts, Mr. Klementowicz explained how the Staff considered information from Entergys radiological environmental monitoring program in evaluating the radiological impacts of

license renewal of Indian Point Units 2 and 3. In this regard, he stated that the Staff performed its review in accordance with NUREG-1555, Environmental Standard Review Plan, Supp. 1 (NUREG-1555, Supp. 1) (Exhibit NYS00019B). In developing the Draft SEIS (Exhibit NYS000132), Mr. Klementowicz reviewed Entergys annual radiological environmental operating reports for a five-year period (2002-2006), in evaluating the radiological environmental monitoring data around the Indian Point site. For the Final SEIS, he also reviewed the 2009 annual report, due to the length of time that had elapsed since issuance of the Draft SEIS. The results of my review are reported in the Final SEIS in sections 2.2.7, Radiological Impacts, and 4.3, Radiological Impacts of Normal Operations (Exhibit NYS000133). In his review, Mr. Klementowicz looked for significant impacts (i.e., concentrations of radioactive material above the NRCs reporting levels contained in Entergys ODCM) and any adverse trends in the data (e.g., sustained increasing radioactivity levels over several years of monitoring that could eventually exceed regulatory limits. Staff Testimony (Exhibit NRCR00088) at 45.

Mr. Klementowicz then summarized the Staffs conclusions regarding the radiological impacts resulting from operation of Indian Point Units 2 and 3, based on his review of the REMP results. Specifically, he noted that FSEIS Section 2.2.7 (Radiological Impacts), presents the Staffs evaluation of the radiological impacts of license renewal. Therein, the Staff stated:

Based on the NRC Staffs review of the applicants historical and 2009 REMP data, no unusual trends were observed, and the data showed that there was no significant radiological impact to the environment from operations at the IP2 and IP3 site. Small amounts of radioactive material (i.e., tritium, cesium-137, iodine-131, and strontium-90) were detected that are below NRCs reporting values for radionuclides in environmental samples.

Overall, the results were comparable to historical REMP results.

Exhibit NYS000133, at 2-109. In sum, based on the evaluation presented in Section 2.2.7 of the FSEIS, the Staff has concluded that the environmental impacts from radioactive discharges from IP2 and IP3 have not been significant, and there is no evidence of an upward trend in radiological impacts from operation of the facility. Further, in Section 4.3 of the FSEIS, the Staff

concluded that the new information presented by Entergy (i.e., groundwater contamination) is not significant, and thus does not challenge the generic findings in the GEISin which the Commission concluded that the impacts to human health resulting from radiological releases during the license renewal term are SMALL. Staff Testimony (Exhibit NRCR00088) at 46.

(b) FSEIS Consideration of Entergys Annual Radioactive Effluent Release Reports (ARERRs)

The Staffs FSEIS also considered Entergys Annual Radiological Effluent Release Reports (ARERRs) in evaluating the radiological impacts of license renewal of Indian Point Units 2 and 3. Mr. Klementowicz explained that, in accordance with NRC Regulatory Guide 1.21 (Exhibit NRC000100), a licensees ARERR is required to contain data on the licensees radioactive gaseous and liquid effluents and solid wastes during the reporting period, to enable the licensee and NRC Staff to evaluate the radiological consequence of plant operation.30 For the Draft SEIS, he reviewed Entergys 2002 - 2006 Annual Radioactive Effluent Release Reports; for the Final SEIS, he also reviewed the 2009 Annual Radioactive Effluent Release Report. He then reported the 2009 dose data in FSEIS Section 2.2.7 (Radiological Impacts).

Entergys annual radioactive effluent release reports contain data on the types and amounts of radioactive gaseous and liquid effluents released into the environment and the calculated dose to 30 Regulatory Guide 1.21 provides, in pertinent part, as follows:

Information on the identity and quantity of radionuclides in liquid and gaseous effluents and solid wastes from light-water-cooled nuclear power plants, together with meteorological data representative of principal release points, are needed:

1. For evaluation by the licensee and the Regulatory staff of the environmental impact of radioactive materials in effluents and solid wastes, including estimates of the potential annual radiation doses to the public;

2. To ascertain whether AEC regulatory requirements and limiting conditions of operation have been met and whether concentrations of radioactive materials in liquid and gaseous effluents have been kept as low as practicable;

3. For evaluation by the licensee and the Regulatory staff of the adequacy and performance of containment, waste treatment methods, and effluent controls.

Exhibit NRC000100, at 1.21-2.

a hypothetical maximally exposed member of the public from those effluents, during each of the reporting periods. Staff Testimony (Exhibit NRCR00088) at 46-47.

For the evaluation of the potential radiological impacts to the public from radioactive effluent releases, the NRCs guidance in Regulatory Guide 1.109 (Exhibit ENT000339) explains which radioactive effluent release pathways should be used when performing dose calculations to members of the public. The guidance addresses typical plant effluent release points and exposure pathways through which radioactive materials can impact the public from routine radioactive effluent discharges. The guidance does not explicitly address releases due to unknown leaks, but does provide for consideration of other exposure pathways that may arise due to unique conditions at a specific site. Id. at 1.109-2. Staff Testimony (Exhibit NRCR00088) at 47.

During the Staffs review of Entergys annual radioactive effluent release reports, Mr. Klementowicz noted that Entergy amended its offsite dose calculation manual (ODCM) to include the radioactive material from the spent fuel pool leaks as a new effluent release pathway, and to calculate the dose to members of the public from this pathway. Entergys inclusion of this pathway in its ODCM was consistent with the guidance in Regulatory Guide 1.109; assures that any further leaks from the SFPs, if they occur, will be monitored and addressed by the licensee; and assures that future NRC inspections would verify Entergys continued monitoring of this pathway and its compliance with NRC dose limits. Further, Mr. Klementowicz found that Entergys identification of the consumption of fish in the Hudson River as the only human pathway for the contaminated ground water from the SPF leaks was appropriate. In this regard, he reviewed Entergys data and evaluation, the NRC Region I inspection reports, and New York States fact sheets to conclude that no drinking water sources were impacted by the leak. Id.

at 47-48.

Mr. Klementowicz observed that the NRC Region I inspection team also discussed the change made by Entergy to its ODCM, in its inspection report issued on May 13, 2008 (Exhibit

RIV000067). In this regard, the inspection report noted that Entergy had included the radioactive material from the spent fuel pool leaks in its ODCM dose calculations. The inspection report states the following:

The inspectors concluded that the licensees preliminary offsite dose calculation utilized conservative assumptions regarding the Unit 2 SFP leak rate and groundwater dilution, appropriately applied the methodology of the licensees Offsite Dose Calculation Manual, provided a timely dose evaluation response to the identified condition.

The NRC inspection teams assessment of this matter supports the position stated in the Final SEIS, that the calculated doses from the spent fuel pool leak were properly considered by the Applicant, and that the doses are within NRC requirements and thus, are not significant. While the radioactive effluent from the SFP leaks constitutes a new pathway as compared to the routine effluent release pathways described in Entergys earlier ODCM, the radiological dose to members of the public resulting from this pathway, as independently evaluated by Entergy and the Staff, is not significant. Id. at 48.

The Staffs evaluation of the radiological effluent releases from IP2 and IP3 into the environment found that the calculated doses to members of the public in the vicinity of the Indian Point site were a small fraction of the limits specified in the IP2 and IP3 ODCM to meet the dose design objectives in Appendix I to 10 C.F.R. Part 50, as well as the radiation dose limits in 10 C.F.R. Part 20 and EPAs standards in 40 C.F.R. Part 190. This is shown in Tables 1 and 2 above. For example, the 2009 calculated maximum total body dose to an offsite member of the public from all radioactive emissions (radioactive gaseous and liquid effluents, direct radiation shine, and the new liquid effluent release pathway) from the IP2 and IP3 site was 5.11 mrem (5.11 x10-2 mSv), which is well below EPAs 25 mrem (0.25 mSv) limit in 40 C.F.R. Part 190. For the sites combined groundwater and storm drain pathway, the calculated maximum total body dose to an offsite member of the public was 2.56 x10-4 mrem (2.56 x10-6 mSv); the calculated doses for all liquid effluents, including those from the new liquid effluent release pathway from

the spent fuel pools, total 1.4 x 10-3 mrem. These results confirm that the Indian Point site is in compliance with Federal radiation protection standards contained in Appendix I to 10 C.F.R. Part 50, 10 C.F.R. Part 20, and 40 C.F.R. Part 190. Id. at 48-49.

In sum, the Staff found that Entergys annual radioactive effluent release reports support the conclusion that (a) calculated doses to members of the public from radioactive effluents, including the radioactive material from the spent fuel pool leaks are well within the NRC dose limits in 10 C.F.R. Part 20, and (b) radioactive effluent releases, including leaks from the Indian Point SFPs, meet the ALARA criteria in Appendix I to 10 C.F.R. Part 50. Id. at 49.

This assessment is consistent with the conclusion in the GEIS for license renewal - i.e.,

the radiological impacts to human health resulting from radioactive effluent releases are expected to be SMALL,31 given the expectation and requirement that nuclear power plants must comply with the NRCs radiation protection standards. GEIS (Exhibit NYS000131) at xlii and xlvi-xlvii. In this regard, the Commission concluded as follows:

The Atomic Energy Act requires NRC to promulgate, inspect, and enforce standards that provide an adequate level of protection of the public health and safety and the environment. . . . [H]ealth impacts on individual humans are the focus of NRC regulations limiting radiological doses. A review of the regulatory requirements and the performance of facilities provides the bases to project continuation of performance within regulatory standards. For the purposes of assessing radiological impacts, the Commission has concluded that impacts are of small significance if doses and releases do not exceed permissible levels in the Commission's regulations. This definition of "small" applies to occupational doses as well as to doses to individual members of the public. Accidental releases or noncompliance with the standards could conceivably result in releases that would cause moderate or large radiological 31 As explained in the GEIS, each environmental impact of license renewal was assigned one of three significance levels - SMALL, MODERATE, or LARGE. SMALL impacts are defined as follows:

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

GEIS (Exhibit NYS000131), at xxxv.

impacts. Such conditions are beyond the scope of regulations controlling normal operations and providing an adequate level of protection. Given current regulatory activities and past regulatory experience, the Commission has no reason to expect that such noncompliance will occur at a significant frequency. To the contrary, the Commission expects that future radiological impacts from the fuel cycle will represent releases and impacts within applicable regulatory limits.

GEIS (Exhibit NYS000131), § 4.6, Radiological Impacts of Normal Operation, at pages 4 4-85; emphasis added. Staff Testimony (Exhibit NRCR00088) at 49-50.

(c) FSEIS Consideration of NRC Region I Inspection Reports In addition to the above matters, Mr. Klementowicz explained how the Staff considered the NRC Region I inspection reports in evaluating the radiological impacts of license renewal of Indian Point Units 2 and 3, in the FSEIS. In this regard, Mr. Klementowicz stated that the inspection reports issued by NRC Region I provide a significant source of independently obtained information and independent expert evaluation concerning the Indian Point SFP leaks.

The NRC Region I staff had performed an extensive inspection of Entergys actions to respond to the leaks and independently assessed the adequacy of Entergys groundwater monitoring program. The inspection reports provide independently obtained information and an independent evaluation of the spent fuel pool leaks and the associated radiological impacts, from September 1, 2005 (when Entergy informed the NRC that cracks in a Unit 2 spent fuel pool wall had been discovered during excavation work) to May 13, 2008, when the final NRC inspection report was issued (Exhibit RIV000067). Staff Testimony (Exhibit NRCR00088) at 50-51.

In particular, Mr. Klementowicz pointed out that the NRC inspection teams final report, dated May 13, 2008, contains a number of important findings concerning the radiological impacts of the spent fuel leaks. These include, in part, the following inspection team findings:

x The current contaminated groundwater conditions at Indian Point Energy Center are the result of leakage associated with the Unit 1 and Unit 2 spent fuel pool (SFP) systems. No other systems, structures, or components were identified as contributors to the continuing on-site contamination of ground water.

x Entergys hydrogeologic site characterization studies provided sufficiently detailed field observations, monitoring, and test data which supported the development and confirmation of a reasonable conceptual site model of groundwater flow and transport behavior.

An independent analysis of groundwater transport through fractured bedrock utilizing geophysical well logging data was conducted by the U.S. Geological Survey (USGS). The USGS assessment corroborated the groundwater transport characteristics that were determined by Entergys contractor.

x Entergys hydrogeologic site characterization and developed conceptual site model provide a reasonable basis to support the determination that the liquid effluent releases from the affected spent fuel pool systems migrate in the subsurface to the west, and partially discharge to the sites discharge canal, with the remainder moving to the Hudson River. Current data and information indicates that contaminated groundwater from the site does not migrate off-site except to the Hudson River. This conceptual site model of groundwater behavior and flow characteristics is supported by the results of independent groundwater sampling and analyses conducted by NRC, which have not detected any radioactivity distinguishable from background in the established on-site boundary monitoring well locations, or in various off-site environmental monitoring locations.

x Currently, there is no drinking water exposure pathway to humans that is affected by the contaminated groundwater conditions at Indian Point Energy Center. Potable water sources in the area of concern are not presently derived from groundwater sources or the Hudson River, a fact confirmed by the New York State Department of Health. The principal exposure pathway to humans is from the assumed consumption of aquatic foods (i.e., fish or invertebrates) taken from the Hudson River in the vicinity of Indian Point that has the potential to be affected by radiological effluent releases.

Notwithstanding, no radioactivity distinguishable from background was detected during the most recent sampling and analysis of fish and crabs taken from the affected portion of the Hudson River and designated control locations.

x The annual calculated exposure to the maximum exposed hypothetical individual, based on application of Regulatory Guide 1.109, Calculation of Annual Doses to Man from Routine Release of Reactor Effluents for the Purpose of Evaluation Compliance with 10 CFR Part 50, Appendix I, relative to the liquid effluent aquatic food exposure pathway is currently, and expected to remain, less than 0.1 % of the NRCs As Low As is Reasonably Achievable (ALARA) guidelines of Appendix I of Part 50 (3 mrem/yr total body and 10 mrem/yr maximum organ), which is considered to be

negligible with respect to public health and safety, and the environment.

x All identified liner flaws in the Unit 2 spent fuel pool, and the initially identified crack affecting the Unit 2 spent fuel pool system have been repaired or mitigated. However, not all Unit 2 fuel pool surfaces are accessible for examination. No measurable leakage is discernable from evaporative losses based on Unit 2 fuel pool water makeup inventory data. Unit 1 spent fuel pool water is being processed continuously to reduce the radioactive concentration at the source prior to leakage into the groundwater, and actions have been initiated to effect the complete removal of spent fuel and essentially all the water from the Unit 1 Spent Fuel Pool system by the end of 2008, thereby terminating the source of 99.9% of the dose significant strontium-90 and nickel-63 contaminants (the remaining 0.1% is represented by the Unit 2 and Unit 1 hydrogen-3 (tritium) contaminants). Entergys selected remediation approach for the contaminated groundwater conditions appears reasonable and commensurate with the present radiological risk.

Exhibit RIV000067, at pages vi-viii. Staff Testimony (Exhibit NRCR00088) at 51-52.

In addition, Mr. Klementowicz observed that the inspection team reached the following conclusion regarding the radiological impacts of the SFP leaks and groundwater contamination:

No off-site groundwater has been impacted, since the on-site groundwater flow is to the discharge canal and the Hudson River.

Accordingly, the licensee has established a long-term monitoring strategy for the purpose of evaluating the effect and progress of the natural attenuation of residual contamination, informing and confirming groundwater behavior as currently indicated by the existing site conceptual model, and determining changes in conditions that may be indicative of new or additional leakage. . . .

Notwithstanding, radiological significance from the groundwater conditions at Indian Point is currently, and is expected to remain negligible with respect to impact on public health and safety and the environment. NRC has confirmed with the New York State Department of Health, that drinking water is not derived from groundwater or the Hudson River in the areas surrounding or influenced by effluent release from Indian Point. Accordingly, the only human exposure pathway of merit is from the possible consumption of aquatic foods from the Hudson River, such as fish and invertebrates. Dose assessment of the potential for exposure from this pathway, continues to indicate that the hypothetical maximally exposed individual would be subject to no more than a very small fraction of the NRC regulatory limit for liquid radiological effluent release.

Id. at v-vi. Staff Testimony (Exhibit NRCR00088) at 52-53.

In sum, Mr. Klementowicz provide his perspective on this matter, noting that the NRC Region I inspection team performed an extensive inspection of Entergys actions to respond to the abnormal leakage, its groundwater monitoring program, and its assessment of the radiological consequences of the leaks. Further, Mr. Klementowicz noted that the NRC inspection team, based on its evaluation of the SFP leaks and groundwater contamination, concluded that the leaks do not have a significant dose impact or a significant adverse impact on public health and safety:

Our inspection determined that public health and safety has not been, nor is likely to be, adversely affected, and the dose consequence to the public that can be attributed to current on-site conditions associated with groundwater contamination is negligible.

Exhibit RIV000067, transmittal letter at 1-2. Staff Testimony (Exhibit NRCR00088) at 53.

In addition, Mr. Klementowicz noted that the NRC Region I inspections were conducted as part of the NRCs ongoing regulatory oversight program, rather than as a one-time inspection. The Region I inspections of Entergys radiation protection and groundwater monitoring programs will continue indefinitely in the future, providing additional assurance that the radiological impacts of plant operation will be small, provided that the radioactive releases are maintained within NRC regulatory limits. This is consistent with the conclusion in the GEIS, that compliance with the NRCs radiation protection regulations will assure that the radiological impacts of nuclear power plant license renewal are SMALL. GEIS (Exhibit NYS000131), at 4-84.

Staff Testimony (Exhibit NRCR00088) at 53-54.

In sum, Mr. Klementowicz explained that in the FSEIS for license renewal of Indian Point Units 2 and 3, the Staff reviewed the NRC inspection teams findings and conclusions, and found that they provide an important source of independent verification and assessment of Entergys investigation and analysis of the SFP leaks and groundwater contamination and the associated radiological impacts. The inspection teams findings and conclusions thus support the conclusions reached in the FSEIS regarding the radiological impacts of the SFP leaks and

groundwater contamination for purposes of license renewal. Id. at 54.

(d) FSEIS Consideration of New York State Publications Finally, Mr. Klementowicz explained that the Staff considered information generated by the State of New York in evaluating the environmental impacts of the SFP leaks at Indian Point for purposes of license renewal. In this regard, during his review in preparing the FSEIS, Mr. Klementowicz considered various materials issued by the State of New York; these included comments by various New York agencies and officials on the Draft SEIS (which were addressed in the FSEIS), as well as a Community Fact Sheet issued by the State of New York (Exhibit ENT000325). The Community Fact Sheet contained information on the groundwater investigation at Indian Point that was conducted by the New York State Department of Environmental Conservation (NYSDEC) and the New York State Department of Health (NYSDOH). Staff Testimony (Exhibit NRCR00088) at 54.

More specifically, the NYS fact sheet stated that New York had performed an independent assessment of potential public impacts of the SFP leaks, and reported that New York had reached the following conclusions:

x There are no residential or municipal drinking water wells or surface reservoirs near the plant.

x There are no known impacts to any drinking water source.

x No contaminated groundwater is moving towards surrounding properties.

x Contaminated groundwater is moving into the Hudson River.

x Public exposure can occur from the groundwater entering the Hudson River through consumption of fish.

x The DOH has confirmed Entergys calculated dose to humans from fish.

x Sr-90 levels in fish near the site (18.8 pCi/kg) are no higher than those in fish collected from background locations across the state.

x At present, there are no off-site groundwater impacts, and releases of contaminated groundwater to the river do not violate state surface water standards for H-3 (20,000 pCi/l) and Sr-90 (8 pCi/l).

(Exhibit ENT000325), at 1-2. Mr. Klementowicz found that the State of New Yorks conclusions, based upon its own independent assessment of this matter, are consistent with the findings in the NRC Region I inspection report and his own review of Entergys annual radioactive effluent release reports and annual radiological environmental monitoring data reports. New Yorks findings and conclusions thus support the Staffs evaluation and conclusions in the FSEIS, that the environmental impacts resulting from the spent fuel pool leaks at IP2 and IP3 are not significant. Staff Testimony (Exhibit NRCR00088) at 54-55.

(e) Summary In sum, the Staff evaluated all available information concerning the spent fuel pool leaks at Indian Point, in reaching its conclusions regarding the potential environmental impacts of radioactive effluent releases or radionuclide leaks from the Indian Point spent fuel pools. In this regard, Mr. Klementowicz observed that the Commission has previously determined, as set forth in the GEIS (Exhibit ENT000131), and Table B-1 of 10 C.F.R. Part 51, Appendix B, that radioactive releases from nuclear power plants have only a SMALL impact on members of the public, provided the doses are within the NRC dose limits established by the Commission in 10 C.F.R. Part 20, Standards for Protection Against Radiation. Staff Testimony (Exhibit NRCR00088) at 55.

For Indian Point, the radioactive releases resulting from the SFP leaks were considered on a site-specific basis. As discussed in Sections 2.2.7, 4.3 and 4.7 of the Final SEIS and the testimony presented herein, the Staff has concluded that: (1) the radiological effluent releases from the spent fuel pool leaks at IP2 and IP3 result in calculated doses to the maximally exposed member of the public that are well below the Commissions ALARA design objectives stated in 10 C.F.R. Part 50, Appendix I; (2) the radiation doses resulting from the SFP leaks are well

within NRC radiation dose limits in 10 C.F.R. Part 20; and (3) the SFP leaks do not have a significant environmental impact and are unlikely to have a significant environmental impact in the event that the IP2 and IP3 licenses are renewed. Accordingly, the Staff has concluded that the SFP leaks at Indian Point will have no more than a SMALL impact on members of the public, if the operating licenses for Indian Point Units 2 and 3 are renewed. Staff Testimony (Exhibit NRCR00088) at 55-56.

E. The Intervenors Testimony And Exhibits Overview In presenting its testimony regarding Contention RK-EC-3/CW-EC-1, the Staffs witnesses carefully evaluated (a) the Pre-filed Direct Testimony of Arnold Gundersen Regarding Consolidated Contention RK-EC-3/CW-EC-1 (Spent Fuel Pool Leaks) (Gundersen Testimony)

(Exhibit RIV000060), as modified by the Boards Order on Entergys motion in limine of March 6, 2012,32 (b) the Pre-filed Written Testimony of Gillian Stewart Regarding Contention RK-EC-3/

CW-EC-1 (Spent Fuel Pool Leaks) (Stewart Testimony) (Exhibit RIV000061), and (c) the other exhibits filed by Riverkeeper and Clearwater regarding Contention RK-EC-3/ CW-EC-1 (i.e.,

Exhibits RIV000062 through RIV000101). Based on their review of Mr. Gundersens and Stewarts testimony and the other exhibits filed by the Intervenors, Messrs. Klementowicz and Noggle concluded, without reservation, that Entergy and the Staff have properly evaluated the environmental impacts of radionuclide leaks and radioactive releases from spent fuel pools at Indian Point on groundwater and the Hudson River ecosystem. Staff Testimony (Exhibit NRCR00088) at 56-57.

Mr. Noggle dismissed Mr. Gundersens assertion, at pages 6-7 of his testimony, that

[t]he Unit 2 SFP has continued to experience leakage since Entergys discovery of cracks in the pool wall in 2005, and is apparently still actively leaking (citing the 2010 discovery of a leak 32 Order (Granting in Part and Denying in Part Applicants Motions in Limine) (March 6, 2012).

path from light boxes near the top of the SFP), and that only a temporary repair to this leak path has been applied. In this regard, he explained that the light boxes are located above the normal water level of the pool. During spent fuel discharge campaigns (i.e., transfers to dry cask storage), placement of a spent fuel cask into the pool can displace significant amounts of water, and the light boxes can be submerged. Also, there were previously no administrative controls to limit the maximum fuel pool level during fuel pool filling procedures, which also provided the possibility for light boxes to be submerged. When this conditional leak path was identified, all eight light boxes were sealed with epoxy cement and the above-mentioned fuel pool activities were revised to include administrative controls to limit the maximum water level in the pool to below the light boxes during those activities. This provided two barriers to ensure that the light boxes would no longer provide a leak pathway. After currently scheduled fuel discharge campaigns are complete, Entergy plans to take corrective actions to remove the light boxes completely and weld stainless steel panels over these areas. Accordingly, this should not be considered to be a current or future source of active leakage. Id. at 57.

As for Mr. Gundersens assertions, at pages 7-8 of his testimony, that it is not possible to completely rule out other potential leaks in the Unit 2 SFP, due to Entergys inability to perform a complete pool liner inspection, Mr. Noggle agreed - with a caveat. In this regard, he stated that during the NRC Staff team inspections, the Staff performed boric acid loss mass balance calculations that, based on limits of sensitivity, indicate that no more than 25 gallons per day was leaking prior to repair of the pin-hole leak in the transfer canal.33 Also, Entergy has installed three monitoring wells around the Unit 2 SFP, and this augmented groundwater monitoring network provides another method of leak detection. Based on the Region I inspection review, 33 This inspection technique measures the concentration of boric acid in the pool, to indicate the amount of water that has been lost due to leakage. This technique provides an effective analytical tool, because boric acid does not evaporate from the pool; since water losses are made up by the addition of water to the pool, the concentration of boric acid remains relatively constant. Accordingly, any loss in boric acid concentration would be due to non-evaporative fuel pool losses, such as through spent fuel pool leaks and spent fuel pool cooling pump leaks. Staff Testimony (Exhibit NRCR00088), at 58 n.17.

the detection sensitivity of these monitoring wells would limit any undetected fuel pool leak to no more than 30 gpd (about 1/8 cup per minute). Id. at 57-58.

Further, Mr. Noggle stated that in preparing its earlier NRC inspection team reports, the NRC Staff remained open to the possibility of continued leakage below the mentioned level of detection sensitivity. By 2009, however, the Staff had over two years of monitoring well data for review to observe tritium concentration changes over time. Based on this review, the Region I inspection team observed a decreasing trend, with tritium levels down-gradient of the Unit 2 SFP decreasing by 66% (from 220,000 pCi/L down to 75,000 pCi/L) over the two year time period.

Based on this evidence, the inspection team concluded, in its October 19, 2009 inspection report (Exhibit ENT000343), at pages 6-8, that there is no evidence of any significant large flux active leakage above the 30 gpd detection threshold, and that Entergys Long Term Ground Water Monitoring Program provides appropriate monitoring and control measures for assessing the existing ground water conditions at the site. Staff Testimony (Exhibit NRCR00088) at 58.

Next, Mr. Noggle disputed Mr. Gundersens assertion, at pages 9-10 of his testimony, that Entergys groundwater monitoring program (which employs quarterly testing), is not sufficient to detect future leaks from the Unit 2 SFP, citing the discovery of a new leak in 2010.

Mr. Noggle noted that during the NRC team inspections, expert hydrogeologists from the NRC Office of Nuclear Regulatory Research (RES), the U.S. Geological Survey, and the NYSDEC reviewed the frequency of testing in Entergys monitoring program. Based on the measured movement of groundwater onsite, this frequency was determined to be sufficient to readily detect any future leaks in a timely manner. Id. at 58.

Similarly, Mr. Noggle disagreed with Mr. Gundersens assertion, at pages 6, 9, 10, 12, 15, and 21 of his testimony that the Unit 2 SFP is apparently still actively leaking, based on his reference to a SFP leak identified in 2010. In this regard, he stated that Mr. Gundersens views appear to be based on the light box leakage discussed above. As stated above, while the possibility of other leaks cannot be completely ruled out, there has not been any observed

increase in tritium concentrations in the three groundwater monitoring wells surrounding the Unit 2 SFP since 2010 - thus indicating that any leakage, if it is occurring, is not significant. Id. at 59.

Likewise, there is no basis for Mr. Gundersens assertion, at page 9 of his testimony that the Unit 2 SFP leak-collection box installed in 2007 failed in 2010 to meet its intended design function to collect any radioactive leaks and prevent such contamination from entering the groundwater. Mr. Noggle explained that the Unit 2 SFP leak-collection box was installed in 2006 directly on the side of the South wall of the Unit 2 SFP that was exposed during excavation activities related to construction of a new Gantry crane in this area. Prior to refilling the excavated area, a collection box was installed so that any further leakage from the South wall would be contained and collected inside the Auxiliary Building. That is the design function of the collection box, and it continues to fulfill its intended design function. Contrary to Mr. Gundersens apparent belief, the leak collection box was not intended to prevent leakage, and was not intended to collect leakage from other areas. Id.

Next, Mr. Noggle disputed Mr. Gundersens assertion, at pages 10-11 of his testimony, that future leaks from the Unit 2 pool are increasingly likely since the pool is 35-years old and facing the typical bathtub curve issues that aging plants face with concrete and systems degradation. The pin-hole leak that was discovered in one corner of the Unit 2 SFP transfer canal was evaluated by a Non-Destructive Examination (NDE) Level 3 expert and was determined to be an original welding imperfection. Further, the NDE expert evaluation of the pin-hole leak found that after 35 years of service, the area of the pin-hole leak did not indicate any evidence of any type of degradation or corrosion. In sum, there is no evidence to support Mr. Gundersens view that the SFP liner is degrading or would be likely to experience future leaks. Id. at 59-60.

Further, there is no basis for Mr. Gundersens assertion, at page 11 of his testimony, that given the already degraded condition of the Unit 2 SFP, currently ongoing leaks, and Entergys remarkably insufficient preventative measures, it is my opinion that leaks from the Unit 2 SFP are

likely to continue. Based on expert examination of the Unit 2 SFP transfer canal, no corrosion or degradation was found in the area of the pin-hole leak, and there has been no evidence that indicates any observable SFP liner degradation after 35 years of service. The history of problems involving the Unit 2 SFP consist of only two flaws: a pin-hole welding flaw from original fuel pool construction (repaired in 2007), and a fuel pool liner puncture accident caused by a welder in 1990, while welding new fuel pool rack brackets on the fuel pool wall (repaired in 1992). While onsite tritium levels remain above EPA municipal drinking water standards, the residual groundwater contamination levels have shown a decreasing trend, and should continue to decrease in the future. Further, Mr. Gundersens reference to the maximum concentration levels (MCLs) in EPAs drinking water standards (at pages 20-21 of his testimony) is not appropriate, since there is no onsite drinking water use or drinking water source in the brackish Hudson River; therefore, the public and environmental impact of the current groundwater condition resulting from the Unit 2 SFP is negligible. Over the past several years, the residual groundwater contamination levels and environmental impacts have continued to decrease, reflecting the repairs that have been made. Id. at 60.

Both Mr. Klementowicz and Mr. Noggle disputed Mr. Gundersens statement, at page 11 of his testimony, that:

[The] NRC [Staff] has accepted Entergys groundwater monitoring program with only one purpose in mind: according to NRC, this monitoring system is adequate for detecting conditions that have safety implications and which could result in a catastrophic meltdown in the event of an accident. In other words, the NRC has only evaluated this program in terms of whether or not the program will assure that the safety function of the spent fuel pools will be maintained and not result in a loss of intended function of the SFP.

In this regard, the Staff witnesses observed that Mr. Gundersens statement is based entirely upon his citation and misreading of the Staffs Safety Evaluation Report (SER), Section 3.0.3.2.15 (Structures Monitoring Program), in which the aging management program for

structures, including the spent fuel pools, is addressed.34 Consistent with NRC practice, the SER addresses the safety implications of license renewal; in contrast, the environmental impacts of license renewal (including the radiological impacts of the SFP leaks) are addressed in the FSEIS, which Mr. Gundersen does not address in this opinion statement. Id. at 61.35 Next, Mr. Noggle disputed Mr. Gundersens assertion, at page 12 of his testimony, that Entergys monitoring wells are not necessarily conducive to being able to rapidly respond to and repair leak issues, and that residual contamination from Unit 1 structures will continue to periodically release to the groundwater, until the entire Indian Point site is decommissioned. In this regard, Mr. Noggle noted that the current onsite groundwater monitoring wells have shown decreasing trends from earlier spent fuel pool leaks, and any other emergent leaks are now identified earlier due to implementation of the Long Term Ground Water Monitoring Plan. Over the past three years, monitoring of the groundwater has led to the prompt investigation and repair of one leaking component; further, compliance with the NEI Groundwater Protection Initiative will require prompt reporting of any identified new leak, which will allow NRC inspection follow-up to verify that sufficient corrective actions are taken to remediate the condition. This overall program will allow Entergy to minimize any new source of subsurface contamination, and will allow for continued decreasing natural attenuation of these leaks. In addition, NRC inspection procedures routinely review groundwater monitoring well results and require documentation of any reported new groundwater contamination conditions. This provides additional NRC engagement to assure effective licensee actions for any future radiological leak.

The timely identification and repair of underground leaking structures should minimize any 34 Gundersen Testimony at 11, n.21, citing SER at 3-139.

35 Moreover, the Staffs review of Mr. Gundersens testimony indicates that he altogether fails even to mention the FSEIS, other than to say that he has reviewed portions of the DSEIS and FSEIS that relate to spent fuel pool leaks and groundwater contamination (Gundersen Testimony, at pages 4-5). Staff Testimony (Exhibit NRCR00088), at 61. The Staff respectfully submits that Mr. Gundersens failure to address the FSEIS, alone, warrants that Mr. Gundersens testimony be given little weight in the Boards resolution of this contention.

contribution to the residual groundwater contamination and minimize any cumulative impacts --

that are now a fraction of NRC liquid effluent release limits. While there may still be residual contamination in Unit 1 structures, Entergys actions in draining the spent fuel pools and moving the spent fuel to dry storage dramatically reduced the potential for further contamination from Unit 1 structures into the groundwater. Any leakage from Unit 1 structures that may occur in the future should be significantly less than the contamination that has occurred to date and should be detected by the groundwater monitoring program. Id. at 61-62.

Both Mr. Noggle and Mr. Klementowicz stated that Mr. Gundersens assertion, at page 19 of his testimony, that he has found no other operating U.S. nuclear power plant . . . is leaking such excessive amounts of tritium and strontium contamination [as compared to Indian Point],

into any major body of water like the Hudson River, is of no effect. The NRC recognizes that certain nuclear power plants, including Indian Point, have experienced leaks of radioactive materials into groundwater. A description of these leaks can be found, for example, in the NRCs 2006 Liquid Radioactive Release Lessons Learned Task Force report (Exhibit RIV000091);

updated information on leaks and spills of radioactive materials at nuclear power plants is presented on the NRCs public website. The NRC has undertaken, through its inspection process, to assure that the licensees in each instance take appropriate actions for continued protection of public health and safety. This is the case at Indian Point. Further, as discussed in their testimony, apart from tritium, the groundwater contamination at Indian Point (e.g., Sr-90) has been traced to leakage from the Unit 1 SFP, which has now been drained, resulting in the effective termination of that source of contamination. Given the SFP repairs and groundwater monitoring program that have been put in place at Indian Point (discussed above), there is no reason to expect that any significant groundwater contamination will occur as a result of license renewal of Indian Point Units 2 and 3. Id. at 62-63.

Nor is there any merit in Mr. Gundersens assertion, at page 20 of his testimony, that the current Indian Point onsite groundwater concentrations are high, insofar as they exceed the

EPAs Maximum Contaminant Levels (MCLs). Messrs. Noggle and Klementowicz observed that the MCLs establish the EPAs standards for municipal drinking water supplies. It is inappropriate to use EPA drinking water standards to characterize onsite groundwater contamination levels, since there are no onsite drinking water sources at Indian Point. Further, the Hudson River at the plant location is brackish and not suitable for drinking, and releases into the river therefore should not be compared to the EPAs drinking water standards. In this regard, it should be noted that the EPAs MCLs for drinking water are for the finished product, that is, the water coming from the tap to be consumed. Also, the concentration limit (e.g., the 20,000 pCi/L MCL value for tritium), represents the dose that would result if one were to drink two liters a day for a year; by EPAs calculations, drinking this amount of water with a tritium concentration of 20,000 pCi/L would result in an annual dose of 4 mrem. By comparison, a nuclear power plants Technical Specifications limit the annual dose from radioactive effluents to the ALARA design objective of 3 mrem to the total body per reactor per year, as set out in Appendix I to 10 C.F.R. Part 50. Id. at 63.

Further, the Staff witnesses observed that the NRC requires the licensee for Indian Point to quantify all significant effluent discharges (including groundwater discharges) and to assess their impact to the public, based on site-specific characteristics, in order to determine the safety impact to the public and to assure compliance with NRC dose limits. Based on this appropriate comparison, releases at the Indian Point site continue to be less than 0.1% of the As Low As is Reasonably Achievable (ALARA) dose objectives established in 10 C.F.R. Part 50, Appendix I (3 mrem per year to the total body and 10 mrem per year to the maximum organ). Id. at 63-64.

Mr. Gundersens assertion, at pages 20-21 of his testimony, that over time, the contamination spreads wider and deeper. . . . which may cast an inaccurate picture of the rate of overall decline, and that the levels of radionuclides in the groundwater will likely remain high in the future, is similarly without basis. A detailed hydrogeologic investigation was performed by Entergy and the NRC team of hydrogeology experts that reviewed that work; based upon those

studies, Mr. Noggle concluded that the onsite groundwater contamination has reached its maximum extent both horizontally and vertically, and that the termination of existing leaks and groundwater leaching of any residual contaminants through the ground has resulted in decreasing groundwater concentrations consistent with monitored natural attenuation. This is in addition to the natural process of radioactive decay, which will continue to reduce the levels of contaminants in the groundwater. Id. at 64.

Likewise, Mr. Noggle disputed Mr. Gundersens assertion, at pages 22-23 of his testimony, that Sr-90 and Cs-137 present in the groundwater at Indian Point will contaminate the environment for centuries. First, with respect to the Sr-90 ground water contamination found at Indian Point, the Sr-90 concentration should decrease, with radioactive decay alone, to below the EPA drinking water limit for municipal water supplies (8 pCi/L) in approximately 50 years - wholly apart from the attenuation that will occur through groundwater migration to the river. Second, there is no detectable Cs-137 in riverside monitoring wells, and Cs-137 is therefore not being released to the river via the groundwater pathway. Finally, at the end of licensed activities and the decommissioning period, the site will be required to meet the NRCs criterion for unrestricted use of the property, of < 25 mrem per year. Id. at 64-65.

Mr. Gundersens assertion, at page 23 of his testimony, that both fish and shellfish taken from the Hudson River during the 1970s and 1980s showed detectable levels of Sr-90 and Sr-89, and that the Sr-89 is a shorter-lived isotope that did not result from nuclear weapons testing, is of no effect. As Mr. Noggle observed, this statement, even if correct, does not point to the source of the Strontium found in the 1970s and 1980s. There has not been any detectable Sr-89 in any of Entergys groundwater monitoring program samples. Since 2006, when contaminated groundwater was detected containing Sr-90, fish sample testing was modified to include Sr-90 analysis. To discriminate between nuclear weapons testing Sr-90 background from Sr-90 releases at Indian Point, in June 2007 an expanded fish sampling study was conducted by the NYSDEC, the NRC Staff and Entergy, to measure background levels of Sr-90

in Hudson River fish. Fish samples were taken from the impacted area at Indian Point, from the radioactive environmental monitoring program (REMP) control location 20 miles upstream of the plant, and from a fully segregated fish population location 90 miles upstream of the plant.

Independent results obtained by all three participating laboratories determined that similar levels of Sr-90 were obtained from all three River locations, that the sample data provided a range of background Sr-90 levels that were due to nuclear weapons testing, and that the data could be used for future discrimination of Indian Point impacts for this radionuclide. Staff Testimony (Exhibit NRCR00088) at 65, citing Exhibit RIV000067, at page 7.

Moreover, both Mr. Noggle and Mr. Klementowicz found that there is no regulatory basis for Mr. Gundersens suggestion, at page 24 of his testimony, that groundwater contamination at the Indian Point site should be evaluated based upon the BEIR VII report. The BEIR VII report, issued in June 2005 by the National Academy of Sciences, reaffirms the linear-no-threshold theory and provides updated cancer risks due to ionizing radiation. The NRC and EPA set federal radiation protection dose limits based on their consideration of various scientific reports promulgated by such organizations as the International Commission on Radiological Protection (ICRP), the National Council on Radiation Protection and Measurements (NCRP), the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR), the National Research Council Committee on the Biological Effects of Ionizing Radiation (BEIR), and other international consensus standards promulgated by the ICRP, to provide the basis for federal regulations. While the BEIR VII report is informative, it does not establish regulatory limits.

Rather, NRC licensees are required to comply with the regulatory limits set forth in 10 C.F.R. Parts 20 and 50, as discussed above. Staff Testimony (Exhibit NRCR00088) at 65-66.

Also, no basis has been shown for Mr. Gundersens assertions, at page 24 of his testimony, that the NYSDEC fish tissue sampling study appears unreliable, because it fails to note that other possible upstream sources of Strontium-90, especially the Knolls Atomic Power Lab (KAPL), may have affected the NYSDECs assessment, and the study appears to have

been a one-time investigation. As Mr. Noggle explained, NYSDEC selected the upstream site following careful consideration. Significantly, the Hudson River fish sampling program (conducted in June 2007, not 2009 as stated by Mr. Gundersen) provided results from three different locations and the comparison of three different radiochemical laboratory analyses.

Mr. Gundersens statement regarding the Knolls facility is entirely speculative: If operation of the Knolls facility (or any other facility) resulted in radionuclide tissue sample data that significantly differ from the data collected at the other locations, that effect would be visible in the studys results. No such effect has been seen. The licensee has added Sr-90 to the testing regime for all future fish samples in its Radiological Environmental Monitoring Program and will continue to test for Sr-90 samples above background levels that have now been established by the NRC Staff and NYSDEC. Id. at 66.

Likewise, Mr. Noggle disputed Mr. Gundersens assertion, at page 24 of his testimony that Entergy and [the] NRC [Staff] fail to acknowledge other potential impacts that radioactive releases to the Hudson River may have upon the health of residents in proximity to the Hudson River, such as an increased incidence of cancer due to recreational activities, such as swimming. The potential use of the Hudson River for recreational and other activities was considered by Entergy and found not to be a significant pathway. There has been only occasional, very low detectable tritium (up to or about 500 pCi/L) in Indian Point-related radioactivity measurable in the discharge canal. Accordingly, liquid effluent releases, including groundwater discharge, do not result in a meaningful external exposure pathway due to radionuclides in the river, even if use of the Hudson River were to include recreational activities such as swimming. Id. at 66-67.

Nor is there any basis for Mr. Gundersens assertion, at page 25 of his testimony, that radioactive contamination at Indian Point will persist in the groundwater, likely at high levels, and be released to the Hudson River for decades, and that this renders invalid Entergys strategy of monitored natural attenuation. Entergy has committed to implement its Long Term Ground

Water Monitoring Program. Based on implementing this program, which will be regularly inspected by the NRC, the licensee will be able to detect new subsurface leaks, identify the leaking structure, and effectuate its repair in accordance with its corrective action program process. There is no evidence that groundwater contamination at the site will grow over time; rather, the evidence indicates that groundwater concentrations at the site are decreasing. As discussed above, GZA provided an evaluation of remediation options and concluded that pumping down the groundwater beneath the Unit 2 SFP would not be desirable, and monitored natural attenuation would be the most effective option. The NRC Region I inspection team agreed with this conclusion, as discussed in the Staffs Inspection Report of October 19, 2009 (Exhibit ENT000343), and found that the program would be effective in detecting any future leaks to groundwater, so as to limit the discharge of radioactive materials at the site. Id. at 67.

Mr. Noggle further disputed Mr. Gundersens assertion, at pages 25 and 28 of his testimony, that [r]emediation of the radiological contamination via extraction wells is a far superior approach, would clean the site much faster and more thoroughly than allowing the groundwater to flush radiological contamination directly into the Hudson River, and is therefore preferable to Entergys strategy of monitored natural attenuation. In fact, the possible use of extraction wells to mitigate the groundwater contamination was considered by Entergy and the NRC Region I inspection team, and was determined to provide a less acceptable mitigation strategy than monitored natural attenuation due to the risks involved. In this regard, a large capacity recovery well was installed in the Unit 2 Fuel Service Building truck bay, to provide a mitigation capability in the event of a future major incident involving a large leak from the Unit 2 SFP. A pump test was conducted to determine the effect of this well on the Unit 1 SFP Sr-90 plume. It was then determined that at a minimum very low pumping rate of 4 gallons per minute, the pumping caused a significant cone of groundwater depression, drawing Sr-90 from the Unit 1 contaminated area toward the Unit 2 area of the plant, which would result in spreading the Sr-90 contamination to larger areas of the plant and significantly increasing the scope of future

decommissioning of the facility. Therefore, it was determined that unless a much more hazardous condition were to occur, extracting groundwater from this well would not be warranted. Staff Testimony (Exhibit NRCR00088) at 68.

Further, monitored natural attenuation is an accepted remediation technique, provided the leak is terminated and the hazard level to the public is minimal. Public radiation dose impact calculations inform us that the monitored levels of radioactive releases from groundwater at Indian Point represent a very small fraction of EPA and NRC public exposure limits, and therefore, the hazard level to the public is minimal. Entergys selection of the monitored natural attenuation remediation option is therefore appropriate. Id.

Moreover, Mr. Klementowicz pointed to another reason in support of Entergys and the NRC Region I inspection teams conclusion that immediate remediation using the extraction method is not preferable to Entergys strategy of monitored natural attenuation. Specifically, he noted that Strontium-90 migrates slowly through the ground and, if left in place, will present less of a problem as it undergoes radioactive decay over time. Further, Entergy would have to dispose of the tritium that it extracts from the groundwater, possibly through planned releases to the river, within the ALARA design objectives; this could result in potentially greater concentrations and environmental impacts than would occur through gradual, monitored natural attenuation. Id. at 69.

Mr. Klementowicz also addressed Dr. Stewarts concern, stated at pages 2, 3, 4, 6, and 7 of her testimony, that the Hudson River might be used for drinking water if a desalination facility is designed, built and permitted in Haverstraw Bay, and her assertion that this potential development has not been adequately considered by Entergy and the NRC Staff. In this regard, he pointed out that the Final SEIS did consider the potential development of the Haverstraw Long-Term Water Supply Project. Thus, In Appendix A of the FSEIS, on page A-95, the Staff responded to comments about the potential development of this water desalination plant downstream of the Indian Point plant site. The Staff addressed this issue as follows:

Regarding the potential operation of a Rockland County desalination plant, the NRC staff addressed potential future cumulative radiological impacts in Chapter 4, section 4.8.3, Cumulative Radiological Impacts. The NRC staff discussed the applicable radiation protection limits set by the NRC and the EPA to protect members of the public from the cumulative impacts of radiation. The NRC staff noted that the NRC and the State of New York would regulate any future actions in the vicinity of IP2 and IP3 that could contribute to cumulative radiological impacts. Therefore, if plans for the proposed Rockland County desalination plant advance to the licensing phase, the facility would be required to have the means to monitor the source water and, if necessary, have a treatment system to meet applicable drinking water standards for radioactivity and nonradioactive contaminants.

Staff Testimony (Exhibit NRCR00088) at 69, citing Exhibit NYS000133D, at A-95; emphasis added.

Further, Mr. Klementowicz noted that in January 2012, NYSDEC posted information on its website related to the proposed Haverstraw Long-Term Water Supply Project. There, NYSDEC indicated that it would serve as lead agency for this project, and is responsible for applicable permitting:

The Department is serving as the Lead Agency for the environmental review of the project pursuant to SEQR. The Department's permit authority for the project includes: a SPDES permit for the discharge of the treated wastewater; a Water Supply permit for development of a new water supply source; an Excavation & Fill permit for the installation of the intake structure; and a Water Quality Certificate for the installation the intake structure and for the potential impact to federal wetlands in the upland portions of the project.

On January 18, 2012, the Department issued a Combined Notice of Complete Application and Notice of Acceptance of the Draft Environmental Impact Statement, Public Hearing and Public Comment Period. Staff Testimony (Exhibit NRCR00088) at 70.

The potential construction and permitting of the Haverstraw water supply project does not alter the Staffs evaluation of this project in the FSEIS for Indian Point. As the Staff stated in its FSEIS, if plans for the proposed Rockland County desalination plant advance to the licensing phase, the facility would be required to have the means to monitor the source water and, if necessary, have a treatment system to meet applicable drinking water standards for radioactivity

and nonradioactive contaminants. The information posted by the New York State Department of Environmental Conservation shows the Staffs position to be correct. Id..

In sum, the license renewal of Indian Point Units 2 and 3 is not expected to affect the Haverstraw project, in that the facility would be sited on the opposite side of the Hudson River, and Entergys radiological environmental monitoring program shows that liquid effluent releases from Indian Point, including groundwater discharges, do not result in detectable levels of tritium or other radionuclides in the Hudson River that would impact the EPAs drinking water standards.

Further, the proposed facility will be required to meet NYSDECs permit requirements and the EPAs drinking water standards, thus assuring public safety. Id.

Finally, Dr. Stewarts views, expressed at pages 3-5 of her testimony, regarding the environmental impacts of Sr-90 and Cs-137 in the groundwater at Indian Point or the Hudson River, are without basis. As Mr. Noggle noted, Dr. Stewart introduced her comments regarding these radioisotopes with a hypothetical statement, saying that health impacts could occur If there is present, past, or future leakage of radio-activity in the form of Sr-90, H-3, Cs-137 or other isotopes from Indian Point into the waterway of the Hudson River . . . . Stewart Testimony at 3.

Dr. Stewart fails to mention that the detectable Sr-90 radioactivity in the river has been found to be nuclear weapons testing background radiation, and not related to Indian Point. Further, as Mr. Noggle testified, while some Cs-137 has been detected due to atmospheric weapons testing, water samples do not show the presence of any Cs-137 releases from Indian Point.

Dr. Stewarts comments about these radioisotopes are therefore not applicable. Id. at 71.

CONCLUSION Entergy (in its ER) and the NRC Staff (in the DSEIS and FSEIS) gave careful consideration to the SFP groundwater leaks and their impact on public health and safety. The leaks, and their radiological impacts, have been thoroughly examined and evaluated. Both Entergy and the Staff reached sound conclusions regarding this matter, in accordance with

NEPA and the NRCs regulations in 10 C.F.R. Part 51. There is no basis for the Intervenors assertions to the contrary. Contention RK-EC-3/CW-EC-1 should be resolved in favor of the Applicant and NRC Staff.

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov Dated at Rockville, Maryland this 21st day of September 2012