ML13081A763
| ML13081A763 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/22/2013 |
| From: | Bessette P, Dennis W, Glew W, O'Neil M, Sutton K Entergy Nuclear Operations, Entergy Services, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24277, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13081A763 (108) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-247-LR and
)
50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
)
)
(Indian Point Nuclear Generating Units 2 and 3)
)
)
March 22, 2013 ENTERGYS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-16B (SAMA POPULATION ESTIMATE)
William B. Glew, Jr., Esq.
Kathryn M. Sutton, Esq.
William C. Dennis, Esq.
Paul M. Bessette, Esq.
ENTERGY SERVICES, INC.
MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, DC 20004 Phone: (914) 272-3202 Phone: (202) 739-3000 Fax: (914) 272-3205 Fax:
(202) 739-3001 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com Martin J. ONeill MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.
TABLE OF CONTENTS Page
- i -
I.
INTRODUCTION............................................................................................................. 1 II.
FACTUAL BACKGROUND............................................................................................ 5 A.
The Indian Point License Renewal Application and Original Contention NYS-16.................................................................................................................. 5 B.
The NRC Staffs Environmental Review and Amended Contentions NYS-16A/16B............................................................................................................... 10
- 1.
Draft Supplemental Environmental Impact Statement and Amended Contention NYS-16A.............................................................. 10
- 2.
Entergys Revised SAMA Analysis and Amended Contention NYS-12B.................................................................................................. 16
- 3.
Final Supplemental Environmental Impact Statement............................ 19 C.
New Yorks December 2011 Pre-filed Testimony and Related Evidentiary Filings.................................................................................................................. 21 D.
Entergys First Motion in Limine........................................................................ 23 E.
Entergys and the NRCs Staff March 2012 Pre-filed Testimony....................... 24 F.
New Yorks June 2012 Pre-filed Rebuttal Testimony and Related Evidentiary Filings............................................................................................... 26 G.
Other Prehearing Procedural Matters................................................................... 28 H.
The October 2012 Evidentiary Hearing on NYS-16B......................................... 33 III.
APPLICABLE LEGAL AND REGULATORY STANDARDS.................................... 36 A.
Law Governing Environmental Evaluations and SAMA Analyses Under NEPA 36 B.
Legal Principles Applicable to SAMA Contentions............................................. 38 C.
Standard of Review and Burden of Proof............................................................. 40 D.
The Boards Decision Supplements and Amends the FEIS................................. 42 IV.
FACTUAL FINDINGS AND LEGAL CONCLUSIONS............................................... 49 A.
Witnesses and Evidence Presented...................................................................... 49
- 1.
Entergys Expert Witnesses..................................................................... 49
- 2.
NRC Staffs Expert Witnesses................................................................. 52
- 3.
New York States Expert Witness........................................................... 55 B.
Entergys 2035 Population Estimate and Its Use in the IPEC SAMA Analysis................................................................................................................ 56
- 1.
The SAMA Analysis Methodology......................................................... 56
TABLE OF CONTENTS (continued)
Page
- ii-
- 2.
Development of the 2035 Population Estimate....................................... 63 C.
New York Has Not Provided Sufficient Evidence to Support Its Claim That the FSEIS Improperly Relies on an Inaccurate Estimate of the Year 2035 Population................................................................................................... 73
- 1.
Entergy and the NRC Staff Reasonably Relied on 2000 U.S.
Census Data Without Making Adjustments for Census Undercount............................................................................................. 74
- 2.
Entergy Appropriately and Conservatively Accounted for Relevant Transient Populations in the 50-Mile SAMA Analysis Region............... 81
- 3.
Dr. Sheppard Substantially Overestimated the Number Of Commuters Within the 50-Mile SAMA Analysis Region....................... 87
- 4.
None of New Yorks Arguments, Even if Accepted as Valid, Could Credibly Alter the IPEC SAMA Analysis Conclusions Regarding Which SAMA Candidates are Potentially Cost-Beneficial to Implement........................................................................... 96 V.
SUMMARY
OF PROPOSED FINDINGS AND CONCLUSIONS............................. 100 VI.
ORDER.......................................................................................................................... 103
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-247-LR and
)
50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
)
)
(Indian Point Nuclear Generating Units 2 and 3)
)
)
March 22, 2013 ENTERGYS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-16B (SAMA POPULATION ESTIMATE)
Pursuant to 10 C.F.R. § 2.1209, and the Atomic Safety and Licensing Boards (Board)
February 28, 2013 Order,1 Entergy Nuclear Operations, Inc. (Entergy) hereby submits its Proposed Findings of Fact and Conclusions of Law (Proposed Findings and Conclusions) on New York State (New York) Contention 16B (hereinafter, NYS-16B).
The Proposed Findings and Conclusions are based on the evidentiary record in this proceeding, and are submitted in the form of a proposed Partial Initial Decision by the Board.
The Proposed Findings and Conclusions are set out in numbered paragraphs, with corresponding citations to the record of this proceeding.
I.
INTRODUCTION
- 1.
This Partial Initial Decision presents the Boards Findings of Fact and Conclusions of Law on Contention NYS-16B, which relates to Entergys and the U.S. Nuclear Regulatory Commissions (NRC or Commission) Staffs compliance with the National 1
Licensing Board Order (Granting Parties Joint Motion for Alteration of Filing Schedule) at 1 (Feb. 28, 2013)
(unpublished).
2 Environmental Policy Act (NEPA),2 as implemented by the NRCs 10 C.F.R. Part 51 regulations. NYS-16B alleges that the Staffs December 2010 final supplemental environmental impact statement (FSEIS) for Indian Point Energy Center (IPEC) is legally deficient because it accepts a SAMA [severe accident mitigation alternatives] analysis predicated on inaccurate population estimates.3 The population of the 50-mile radius SAMA analysis region is a required input to the MELCOR Accident Consequence Code System Version 2 (MACCS2) computer code used by Entergy (and all other license renewal applicants) to perform the SAMA analysis. New York claims that the IPEC SAMA analysis underestimates severe accident costs because the year 2035 population estimate used as an input to the analysis is too low.4
- 2.
At the outset, we note that the scope and focus of this contention have changed considerably since its original submission in November 2007. As first proffered and admitted, the contention principally challenged Entergys use of the MACCS2 codes Gaussian plume dispersion model to simulate the atmospheric transport and dispersion of radionuclides released by a postulated severe accident at IPEC.5 As discussed below, New York objected to Entergys 2
42 U.S.C. § 4321 et seq. (2006).
3 State of New York Initial Statement of Position Contention NYS-16/16A/16B (NYS-16B) at 14 (Dec. 16, 2011) (New York Position Statement) (NYS000206); NUREG-1437, Supp. 38, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos.
2 and 3, Final Report, (Dec. 2010) (NYS00133A-J) (FSEIS).
4 New York Position Statement at 4 (NYS000206).
5 New York challenged Entergys air dispersion model as being used beyond its range of validity and not accurately predicting the geographic dispersion of radionuclides released in a severe accident. See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 110-111 (2008). New York filed a motion for summary disposition for the part of the contention dealing with the air dispersion model. See State of New Yorks Motion for Summary Disposition on Use of Straight Line Gaussian Air Dispersion Model for the Environmental Impact Analysis of Significant Radiological Impacts at Indian Point and NYS Contention 16/16A (Aug. 28, 2009), available at ADAMS Accession No. ML092610906. That motion was denied because the Board found an issue of material fact. As stated below, New York chose not to pursue this aspect of NYS-16 at the hearing phase. See Licensing Board Memorandum and Order (Ruling on Motions for Summary Disposition) (Nov. 3, 2009) (unpublished).
3 2035 population estimate only in a footnote to its original contention (NYS-16), and then again in footnotes to its two amended contentions (NYS-16A and NYS-16B). New York chose not to pursue its challenge to the Gaussian plume model at the evidentiary hearing phase.6 However, it did pursue its subsidiary challenge to Entergys year 2035 population estimate, as reviewed and approved in the FSEIS.
- 3.
In its pre-filed direct testimony, New York expanded upon its challenge to Entergys year 2035 population estimate, albeit not without objections from the other parties.
Specifically, it asserted the FSEIS improperly accepts Entergys estimate of the 2035 population within 50 miles of IPEC, despite two alleged errors in Entergys estimate: (1) failure to account for census undercount of minority and low-income groups in the 2000 U.S. Census data underlying the estimate, and (2) failure to account for the commuter population within the 50-mile radius region surrounding IPEC.7 Entergy and the Staff argued that the census undercount issue fell outside the scope of NYS-16B and sought to strike New Yorks related testimony and evidence.8 6
See New York Position Statement at 1 n.1 (NYS000206) (The State has chosen not to pursue the part of Contention 16 challenging Entergys air dispersion model.); State of New York, Entergy Nuclear Operations, Inc., and NRC Staff Joint Stipulation at 2 (Jan. 23, 2012) (Joint Stipulation), available at ADAMS Accession No. ML12023A110 ([T]he State has chosen not to pursue the claim that Entergys air dispersion model is being used beyond its range of validity and does not accurately predict the geographic dispersion of radionuclides released in a severe accident and, therefore, it is no longer at issue in this contention.).
7 See New York Position Statement at 4 (NYS000206).
8 Applicants Motion in Limine to Exclude Portions of the Prefiled Testimony, Report, and Exhibits Filed by New York State and Dr. Stephen Sheppard in Support of Consolidated Contention NYS-16B at 2-3 (Jan. 30, 2012) (Entergys First Motion in Limine), available at ADAMS Accession No. ML12030A218; NRC Staffs Answer to Applicants Motion in Limine to Exclude Portions of the Prefiled Testimony, Report, and Exhibits Filed by New York State and Dr. Stephen Sheppard in Support of Consolidated Contention NYS-16B at 1 (Feb.
9, 2012), available at ADAMS Accession No. ML12040A239.
4
- 4.
Finding the census undercount issue to be within the admitted contentions reasonably inferred bounds,9 the Board allowed New Yorks testimony to stand and proceeded to a hearing on the merits in October 2012. That hearing focused on the two issues identified in paragraph 3 abovei.e., census undercount and commuters within the SAMA analysis region.
- 5.
Having considered the record evidence, the Board finds that New Yorks criticisms of Entergys NRC Staff-approved 2035 population estimate lack merit.10 In summary, we find that: (1) Entergy reasonably and appropriately relied upon officially-published 2000 U.S. Census Bureau data, without any adjustment for alleged undercount; (2) Entergy conservatively addressed transient populations for the entire 50-mile region within the SAMA analysis, including tourists and business travelers; (3) New Yorks commuter population calculations are flawed and significantly overstate the net commuter population into the 50-mile SAMA analysis region; and (4) New Yorks proposed increases to Entergys 2035 population estimate, even if assumed to valid, would not materially alter the SAMA analysis results by resulting in the identification of an additional cost-beneficial SAMA.11 9
See Licensing Board Order (Granting in Part and Denying in Part Applicants Motions in Limine) at 6, 10 (Mar.
6, 2012) (Ruling on Motions in Limine) (unpublished).
10 The Commission has previously held that the burden is on the intervenor to show that the change to the SAMA analysis would affect the analysiss conclusions. See, e.g., Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC __, slip op. at 15 (June 7, 2012) (referring to the petitioners burden to provide support for why the further analyses or new computer modeling it seeks credibly could make a material difference to the SAMA analysis conclusions, not simply that the analysis might change in some fashion) (emphasis added); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __, slip op. at 11 (Feb. 9, 2012) (The Board unanimously found that the degree of error that Pilgrim Watchs asserted plume modeling deficiencies credibly might have caused would not reach the level of error necessary to have a material impact on the overall SAMA analysis conclusions.).
11 As discussed later in this decision, Entergys expert witnesses performed a MACCS2 sensitivity analysis in which they incorporated all of Dr. Sheppards postulated population increases and related assumptions into the SAMA analysis. That analysis demonstrated that Dr. Sheppards proposed alternative inputs do not materially or significantly alter the overall impacts estimated by MACCS2 or Entergys conclusions regarding those SAMAs that are potentially cost-beneficial to implement, as documented in Entergys SAMA analysis and the Staffs FSEIS.
5
- 6.
Accordingly, the Board finds that the Staff and Entergy have carried their respective burdens of proof on this contention, and resolves NYS-16B in their favor. The Board further finds that the Staffs reliance upon Entergys SAMA analysis in satisfaction of its obligations under NEPA and 10 C.F.R. Part 51 is reasonable. In accordance with well-established NRC adjudicatory practice, the Staffs FSEIS is deemed supplemented by this decision.12 II.
FACTUAL BACKGROUND A.
The Indian Point License Renewal Application and Original Contention NYS-16
- 7.
On April 23, 2007, Entergy applied to the NRC to renew the Indian Point Unit 2 and Unit 3 (IP2 and IP3) operating licenses for twenty years beyond their current expiration dates of September 28, 2013, and December 12, 2015, respectively.13 As required by 10 C.F.R.
§ 51.53(c)(3)(ii)(L),14 Entergy included in its associated Environmental Report (ER) a SAMA analysis for IP2 and IP3.15 As discussed in Section II.B below, Entergy later submitted a revised SAMA analysis for IPEC in December 2009.16 12 Pilgrim, CLI-12-01, slip op. at 30 (citation omitted) (In an NRC adjudicatory proceeding, the adjudicatory record, Board decision, and any Commission decision become effectively part of the environmental review document (here, a final supplemental EIS). Therefore, the SEIS is deemed supplemented by the Boards decision, and by this decision.)
13 Letter from Fred Dacimo, Site Vice President, Entergy, to NRC Document Control Desk (Apr. 23, 2007),
available at ADAMS Accession No. ML071210512 (supplemented by letters dated May 3, 2007 and June 21, 2007, available at ADAMS Accession Nos. ML071280700 and ML071800318).
14 10 C.F.R. § 51.53(c)(3)(ii)(L) requires an applicants ER to contain a SAMA analysis, [i]f staff has not previously considered severe accident mitigation alternatives for the applicants plant in an environmental impact statement or related supplement or in an environmental assessment. At the time the NRC imposed this requirements, only three facilities had considered SAMA in connection with their initial operating licenses (Limerick, Comanche Peak, and Watts Bar).
15 See generally, Indian Point Energy Center License Renewal Application, App. E at 4-47 to -78, E-I to E.4-82 (Apr. 2007) (ER) (ENT000015B).
16 See NL-09-165, Letter from Fred Dacimo, Entergy, to NRC, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data, Indian Point Nuclear Generating Units Nos. 2 and 3 (Dec. 11, 2009) (NL-09-165) (ENT000009).
6
- 8.
In preparing the IPEC SAMA analysis, Entergy used methodologies that have been used by numerous other license renewal applicants and that are consistent with those described in NRC-approved guidance.17 That guidance endorses using the MACCS2 computer code to estimate the offsite dose and economic impacts that result from postulated radioactive material releases to the environment.18 The Commission has described MACCS2, which is commonly used by license renewal applicants, as the most current, established code for NRC SAMA analysis.19
- 9.
A SAMA analysis is part of the NRCs license renewal review under NEPA.20 SAMA analyses, however, do not represent the NRCs NEPA analysis of potential severe accident impacts.21 The NRCs GEIS for license renewal generically evaluates severe accident impacts and provides the technical basis for the NRCs conclusion in 10 C.F.R. Part 51 that the probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for 17 See NEI 05-01, Rev. A, Severe Accident Mitigation Alternatives (SAMA) Analysis, Guidance Document (Nov.
2005) (NEI 05-01) (NYS000287) (endorsed by the NRC Staff in Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses at 45467 (Aug. 2007 (ENT000451)).
18 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 291(2010)
(citing NEI 05-01 (NYS000287)).
19 Pilgrim, CLI-10-22, 72 NRC at 208.
20 Pilgrim, CLI-12-01, slip op. at 2 (citing 10 C.F.R. § 51.53(c)(3)(ii)(L)).
21 A severe accident is a beyond design-basis accident involving multiple failures of equipment or function, whose likelihood is generally lower than that design-basis accidents but where consequences may be higher.
NUREG-1437, Volumes 1 and 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at Vol. 1 at 5-1 (May 1996) (GEIS) (NYS00131C).
7 all plants.22 The GEIS thus addresses the impacts of severe accidents generically in bounding fashion.23
- 10.
By way of comparison, a SAMA analysis is a site-specific environmental mitigation analysis performed under NEPA.24 It is conducted to identify additional mitigation measuresprocedure or hardware changesthat may be cost-beneficial to implement at a nuclear power plant to further reduce the already very low risk (probability or consequences) of a severe accident.25 It also is a probabilistic risk assessment (PRA) because it examines the probability of various hypothesized accident scenarios, spanning a spectrum of potential initiating events, accident sequences, and severity of consequences.26 As a NEPA mitigation analysis, the SAMA analysis is judged under NEPAs rule of reason.27 As such, it is not based on best-case or worst-case accident scenarios.28 Rather, a SAMA analysis estimates mean accident consequence values (both offsite population dose and economic costs), which are averaged over many hypothetical severe accident scenarios and over the examined 50-mile radius region surrounding the plant.29 22 Id. at 5-115 (emphasis added).
23 Pilgrim, CLI-12-15, slip op. 5-6 (SAMA analysis must also be understood against the backdrop of our Generic Environmental Impact Statement (GEIS), which contains a bounding, generic severe accident impacts analysis, applicable to all plants.).
24 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, slip. op. at 27 (Mar. 8, 2012).
25 See id.
26 Pilgrim, CLI-12-15, slip op. at 3.
27 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-17, 56 NRC 1, 12 (2002) (citing Vt. Yankee Nuclear Power Corp v. Natural Res. Def. Council, Inc., 435 U.S.
519, 551 (1978); Citizens Against Burlington v. Busey, 938 F.2d 190, 195) (D.C. Cir. 1991).
28 Pilgrim, CLI-12-15, slip op. at 5.
29 Pilgrim, CLI-12-01, slip op. at 20. Specifically, [t]he analysis uses the mean values of the accident consequence distributions for each accident category. These mean values are multiplied by the estimated frequency of the accident to determine population dose risk and offsite economic cost risk for each release category studied. Id. (citation omitted).
8
- 11.
On August 1, 2007, the NRC published a Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing, in the Federal Register.30 The Hearing Notice explicitly clarified that proposed contentions shall be limited to matters within the scope of [license renewal].31 It also stated that any person whose interest would be affected by the proceeding and who wished to participate as a party in the proceeding must file a petition for leave to intervene within sixty days of the Notice (i.e., October 1, 2007).32 On October 1, 2007, the Commission extended the period for filing requests for hearing until November 30, 2007.33
- 12.
In response to the Hearing Notice, New York filed a petition to intervene on November 30, 2007, in which it proposed various contentions, including NYS-16, the initial version of the contention at issue here.34 As originally proffered, NYS-16 alleged that the air dispersion model used in the IPEC SAMA analysis does not accurately predict the geographic dispersion of radionuclides released in a severe accident.35 New York originally listed ten supporting bases that focused primarily on the accuracy of ATMOS, the air dispersion model in MACCS2 that Entergy used to simulate the atmospheric transport and dispersion of radionuclides released by a postulated IPEC severe accident.36 30 Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg. 42,134 (Aug. 1, 2007).
31 Id. at 42,135.
32 Id. at 42,134.
33 Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period: Extension of Time for Filing of Requests for Hearing or Petitions for Leave To Intervene in the License Renewal Proceeding, 72 Fed. Reg. 55,834 (Oct. 1, 2007).
34 See New York State Notice of Intention to Participate and Petition to Intervene (Nov. 30, 2007) (New York Petition), available at ADAMS Accession No. ML073400187.
35 See id. at 163-64.
36 See id. at 163-66.
9
- 13.
It was only in a footnote that New York originally asserted that Entergys projection of the 2035 population residing within 50 miles of IPEC underestimates the potential exposed population.37 In support of the assertion, New York cited published 2006 U.S. Census Bureau data and New York City Department of City Planning population data related to Manhattan and the other four New York City boroughs. Specifically, New York asserted that
[t]he United States Census estimates that in 2006 Manhattans population was 1,611,581, over 40,000 more than Entergy asserts would be at risk 29 years later.38 New York did not mention alleged undercounting of minority or low-income populations in its original contention or how this issue relates to the cited population data.
- 14.
Entergy and the NRC Staff opposed the admission of NYS-16.39 Entergy argued that the contention improperly challenged the MACCS2 code, failed to show that using a different code would materially change the SAMA analysis, and failed to identify a specific deficiency in the SAMA analysis.40 The Staff opposed the contention on similar grounds.41
- 15.
The Board heard oral argument on whether NYS-16 and New Yorks other proposed contentions met the Commissions contention admissibility requirements on March 11, 37 See id. at 164 n.37.
38 Id. (citing U.S. Census Bureau, State and County QuickFacts, New York County, New York, available at http://quickfacts.census.gov/qfd/states/36/36061.html.; New York City Department of City Planning, Population Division, Population Update: the Current Population of NYC (2006), available at http://www.nyc.gov/html/dcp/html/census/popcur.shtm.).
39 Answer of Entergy Nuclear Operations, Inc. Opposing New York State Notice of Intention to Participate and Petition to Intervene (Jan. 22, 2008) (January 2008 Entergy Answer), available at ADAMS Accession No. ML080300149; NRC Staffs Response to Petitions for Leave to Intervene Filed by (1) Connecticut Attorney General Richard Blumenthal, (2) Connecticut Residents Opposed to Relicensing of Indian Point, and Nancy Burton, (3) Hudson River Sloop Clearwater, Inc., (4) The State of New York, (5) Riverkeeper, Inc., (6) the Town of Cortlandt, and (7) Westchester County at 56-58 (Jan. 22, 2008) (January 2008 Staff Answer),
available at ADAMS Accession No. ML080230543.
40 January 2008 Entergy Answer at 110-113.
41 January 2008 Staff Answer at 56-58 (arguing that New York failed to show that the MACCS2 Code used by the Applicant is deficient).
10 2008, in White Plains, New York.42 Thereafter, on July 31, 2008, the Board admitted NYS-16 to the extent that it challenges whether the population projections used by Entergy are underestimated, noting that population is one input to the MACCS2-based SAMA analysis.43 The Board also admitted NYS-16 insofar as it challenged whether Entergy had used the ATMOS module in MACCS2 beyond its range of validity, and whether such use had resulted in a nonconservative geographical distribution of radioactive dose within a 50-mile radius of IPEC.44 As discussed below, that latter aspect of NYS-16 was later abandoned by New York.
B.
The NRC Staffs Environmental Review and Amended Contentions NYS-16A/16B
- 1.
Draft Supplemental Environmental Impact Statement and Amended Contention NYS-16A
- 16.
As required by NEPA and 10 C.F.R. Part 51, the NRC Staff comprehensively reviewed Entergys license renewal application. The Staff initiated that process by publishing a notice of intent to prepare a plant-specific supplement to the GEIS (i.e., a supplemental environmental impact statement or SEIS) and to conduct related environmental scoping activities.45
- 17.
As part of that process, the NRC Staff conducted environmental site audits at Indian Point from September 10-14, 2007, and from September 24-27, 2007, which allowed the NRC Staff to tour the site, examine the data Entergy used in preparing the ER, and meet with 42 Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 (Mar. 11, 2008).
43 Indian Point, LBP-08-13, 68 NRC at 112.
44 Id.
45 Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos 2 and 3; Notice of Intent to Prepare an Environmental Impact Statement and Conduct Scoping Process, 72 Fed. Reg. 45,075 (Aug. 10, 2007). 10 C.F.R. § 51.20(b)(2) requires the NRC to prepare an EIS or SEIS for renewal of a reactor operating license. In addition, Section 51.95(c) states that the EIS prepared at the operating license renewal stage will be a supplement to the GEIS (NYS00131A-I).
11 Entergy personnel and representatives from federal, state, and local government agencies to obtain relevant information.46
- 18.
The NRC also invited the applicant, federal, state, local, and tribal government agencies, local organizations, and individuals to participate in the scoping process by providing oral comments at scheduled public meetings and/or submitting written suggestions and comments.47 The scoping process included two public meetings held on September 19, 2007, in Cortlandt Manor, New York.48 Following the NRC Staffs prepared statements, the meetings were open for public comments.49 The Staff received hundreds of written and oral comments during the scoping process.50
- 19.
In addition to its participation in the adjudicatory process, New York also participated in the environmental scoping process. On October 31, 2007, New York submitted numerous comments concerning the scope of the IPEC Draft Supplemental Environmental Impact Statement (DSEIS) and various aspects of the NRC Staffs environmental review.51 In one comment, New York stated that the scope of a NEPA review should include whether the plume model used in the SAMA analysis is sufficiently accurate for use in computing the health and safety consequences of an accident, as an environmental issue.52 New York did not 46 See FSEIS at xv (NYS00133A).
47 See Environmental Impact Statement Scoping Process Summary Report Indian Point Nuclear Generating Station Unit Nos. 2 and 3 Village of Buchanan, New York at 1 (Dec. 2008) (EIS Scoping Summary Report)
(NRC000139).
48 See id.
49 See id.
50 See id. at 3-15.
51 See New York State Executive Agencies and the Department of Law Scoping Comments on the License Renewal of Indian Point Units 2 and 3, Buchanan, New York (Oct. 31, 2007) (NRC000135).
52 See id. at 16.
12 mention the population estimate used in the SAMA analysis.53 New York later supplemented its SAMA-related scoping comments in November 2007, asserting that the Staffs NEPA and SAMA review should include an accurate assessment of the cleanup and decontamination costs associated with a severe accident at IPEC.54 Again, it did not refer to the adequacy of Entergys 2035 population estimate in its supplemental scoping comments.55
- 20.
Concurrently, the NRC Staff proceeded with its NEPA review. In preparing its draft SEIS (DSEIS) for IP2 and IP3, the NRC Staff reviewed the IPEC ER and compared it to the GEIS; consulted with numerous federal, state, regional, and local agencies, and Native American Tribes agencies (as listed in Appendix D to the DSEIS); conducted an independent review of the issues in accordance with the guidance in NUREG-1555 (the Staffs Environmental Standard Review Plan for license renewal applications); issued to Entergy detailed requests for additional information (RAIs); and considered public comments received during the scoping process.56
- 21.
Based on its initial review of the SAMA analysis, the Staff issued SAMA-specific RAIs to Entergy in December 200757 and April 2008.58 Entergy responded to the Staffs RAIs in 53 See generally id.
54 See New York State Supplemental Submission Concerning NEPA Scoping on the License Renewal of Indian Point Units 2 and 3, Buchanan, New York at 2-4 (Nov. 30, 2007) (NRC000145).
55 See generally id.
56 See NUREG-1437, Supp. 38, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment at xiii (Dec. 2008)
(DSEIS) (NYS00132A-D).
57 Letter from Jill Caverly, Environmental Project Manager, NRC, to Michael A. Balduzzi, Sr. Vice President and COO, Entergy Nuclear Operations, Inc., Request for Additional Information Regarding Severe Accident Mitigation Alternatives for Indian Point Nuclear Generating Unit Nos. 2 and 3 License Renewal (Dec. 7, 2007),
available at ADAMS Accession No. ML073110447.
58 Letter from Bo M. Pham, Senior Project Manager, NRC, to Vice President, Operations, Entergy Nuclear Operations, Inc., Requests for Additional Information Regarding the Review of License Renewal Application for Indian Point Nuclear Generating Unit Nos. 2 and 3 (TAC Nos. MD5411 and MD5412) (Apr. 9, 2008),
available at ADAMS Accession No. ML080880104.
13 letters dated February 5, 2008, and May 22, 2008.59 Relevant here, Entergy justified its use of the 2004 transient to permanent population in developing its 2035 population estimate.60 Entergys RAI responses collectively resulted in the identification of several additional potentially cost-beneficial SAMAs as well as the elimination of one previously-identified cost-beneficial SAMA.61
- 22.
In December 2008, the Staff issued the DSEIS for public comment.62 The Staff documented its initial review of Entergys SAMA analysis in Section 5.2 and Appendix G of the DSEIS. In the DSEIS, the Staff described the manner in which Entergy estimated the year 2035 population within a 50-mile radius of IPEC:
The population distribution the licensee used as input to the MACCS2 analysis was estimated for the year 2035 based on information from the New York Statistical Information System from 2000 to 2030, the New Jersey Department of Labor and Workforce Development from 2000 to 2025, the Connecticut State Data Center from 2000 to 2020, and the Pennsylvania State Data Center from 2000 to 2020. These data were used to project county-level resident populations to the year 2035 using regression analysis. The 2035 transient population was assumed to be the 2004 transient-to-permanent population ratio multiplied by the extrapolated permanent population. The 2004 transient data were obtained from State 59 See NL-08-028, Letter from Fred Dacimo, Vice President, Entergy, to NRC, Reply to Request for Additional Information Regarding License Renewal Application - Severe Accident Mitigation Alternatives Analysis (Feb.
5, 2008) (February 2008 RAI Response) (ENT000460); NL-08-086, Letter from Fred Dacimo, Vice President, Entergy, to NRC, Supplemental Reply to Request for Additional Information Regarding License Renewal Application - Severe Accident Mitigation Alternatives Analysis (May 22, 2008) (May 2008 RAI Response) (ENT000477). Entergy provided clarification of the internal flooding analysis changes in each PRA model version; additional information regarding the peer review process and comment resolution; details regarding the MACCS2 input data, including results of a sensitivity analysis addressing loss of tourism and business; additional explanation and justification for the assumptions in each analysis case; descriptions of plant-specific features that account for differences in risk and SAMA benefits between units; and additional information regarding several specific SAMAs, including steam generator tube rupture-related SAMAs. See FSEIS, Vol. 3, App. G at G-1 (NYS00133I).
60 See February 2008 RAI Response, Attach. 1 at 22-24 (ENT000460).
61 See FSEIS, Vol. 3, App. G at G-1 to G-2 (NYS00133I).
62 Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Availability of the Draft Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants and Public Meeting for the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, 73 Fed. Reg. 80,440 (Dec. 31, 2008).
14 tourism agencies. The NRC staff notes that Entergys projected 2035 population within a 50-mile radius of IP2 and IP3 reported in Tables E.1-12 and E.3-12 of the Entergy ER (19.2 million people) is approximately 15 percent greater than the 50-mile population obtained from NRC SECPOP2000 code (16.8 million) for the year 2003. This represents an average annual growth rate of 0.4 percent, which comports with Entergys estimated growth rates reported in section 2.6.1 of the Entergy ER. The NRC staff considers the methods and assumptions for estimating population reasonable and acceptable for the purposes of the SAMA evaluation.63
- 23.
Subsequently, the Staff held two public meetings in Cortlandt Manor, New York, on February 12, 2009. During those meetings, the Staff described the preliminary results of the NRC environmental review (as documented in the DSEIS), answered questions, and provided members of the public with information to assist them in formulating comments on the DSEIS.64 During the DSEIS comment period, the Staff received comments from 183 individuals or groups, including New York, and 88 commenters spoke during the public meetings.65 In a comment submitted on the DSEIS, New York asserted that the 2035 population projections for people likely to be living within 50 miles of IPEC, on which the SAMA analysis is based, appear low.66 New York further stated that Entergy projected the 2035 New York County (Manhattan) population to be 1,570,657 in its ER.67 By comparison, the U.S. Census estimated that in 2007 Manhattans population was 1,620,867, over 50,000 more than Entergy estimated would be at risk twenty-nine years later.68 63 DSEIS, Vol. 2, App. G at G-18 (NYS00132D) (emphasis added) (citation omitted).
64 See FSEIS, Vol. 1 at xvi (NYS00133A).
65 FSEIS, Vol. 3, App. A at A-2 (NYS00133C).
66 Comments Submitted by the New York State Office of the Attorney General on the Draft Supplemental Environmental Impact Statement Prepared by the Staff of the Nuclear Regulatory Commission for the Renewal of the Operating Licenses for Indian Points Units 2 and 3, Buchanan, New York at 42-43 (Mar. 18, 2009)
(NYS000134).
67 Id. at 42.
68 Id.
15
- 24.
After reviewing the DSEIS, New York submitted Contention NYS-16A, which contended that the DSEIS fails to address any of the issues raised in NYS-16.69 Like the original contention, NYS-16A primarily focused on alleged deficiencies in the ATMOS model, and again relegated New Yorks challenge to Entergys population estimate to a footnote.70
- 25.
With respect to the population issue, NYS-16A offered no information that was materially new or different from the original contention. New York again referenced a U.S.
Census Bureau estimate of Manhattans population, but updated its reference from 2006 to 2007.71
- 26.
In its Answer, Entergy asserted that New York had not met the requirements of 10 C.F.R. § 2.309(f)(2) for the admission of an amended contention because the contention did not allege that the DSEIS contains data or conclusions that are significantly different from those in the ER.72 The NRC Staff also opposed the admission of the amended contention.73 The NRC Staff argued that the amended contention impermissibly raised issues that New York failed to raise earlier and which exceed the scope of the issues admitted in NYS-16.74 69 State of New York Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement at 13 (Feb. 27, 2009), available at ADAMS Accession No. ML090690303.
70 Id. at 10 n.4.
71 Id.
72 Answer of Entergy Nuclear Operations, Inc. Opposing New and Amended Environmental Contentions of New York State at 13 (Mar. 24, 2009), available at ADAMS Accession No. ML090930204.
73 NRC Staffs Answer to Amended and New Contentions Filed by The State of New York and Riverkeeper, Inc.,
Concerning the Draft Supplemental Environmental Impact Statement at 12-14 (Mar. 24, 2009), available at ADAMS Accession No. ML090840116.
74 See id. The NRC Staff argued that NYS-16-A raised an additional issue regarding the Entergys radiological source term which it asserted was excluded initially by the Board in its language admitting NYS-16. The Staff also contended that New York had asserted for the first time that only an U.S. Environmental Protection Agency (EPA) approved air dispersion model is acceptable.
16
- 27.
On June 16, 2009, the Board admitted NYS-16A to the degree that the Draft SEIS fails to address the issues raised by New York in NYS-16.75 The Board noted that NYS-16A alleges that the population projections used by Entergy are underestimated, but did not elaborate further on this aspect of the contention.76
- 2.
Entergys Revised SAMA Analysis and Amended Contention NYS-16B
- 28.
Later, in November 2009, as part of its ongoing environmental review, the Staff sought clarification from Entergy regarding certain wind direction data as an input to the MACCS2 code.77 In addressing the Staffs inquiry, Entergy determined that the 5-year averaged wind direction data used in the original SAMA analysis were not representative of the regions wind direction conditions for the five-year period (2000-2004) originally considered by Entergy.78 Entergy submitted a revised SAMA analysis in December 2009 that addressed the Staffs concern by using a single, representative year of meteorological data; i.e., 2000.79
- 29.
On March 11, 2010, New York filed Amended Contention NYS-16B in response to Entergys December 2009 revised SAMA analysis.80 Like its predecessors, NYS-16B challenged Entergys use of the ATMOS air dispersion model81 and, again in a footnote, the 75 Licensing Board Order (Ruling on New York States New and Amended Contentions) at 6 (June 16, 2009)
(unpublished).
76 Id.
77 See NL-09-165, at 1 (ENT000009).
78 See id. at Attach. 1 at 1.
79 See id. Entergy selected the year 2000 because, of the five years of data used in the original analysis, the year 2000 resulted in the most conservative (i.e., largest) calculated population doses. Id. The use of one year of meteorological data is permitted by NEI 05-01. See NEI 05-01 at 15 (NYS000287) (stating that an applicant may use a full year of consecutive hourly values). In its revised SAMA analysis, Entergy used the same 2035 population estimate at issue in NYS-16B. See NL-09-065, Attach. 1 at 5 (ENT000009).
80 See State of New Yorks New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis (Mar. 11, 2010) (Amended Contention NYS-16B), available at ADAMS Accession No. ML100780366.
81 Id. at 9-11.
17 adequacy of Entergys 2035 population estimate.82 New York again referenced a U.S. Census Bureau estimate of Manhattans population, but updated its reference from 2007 to 2008, stating that the U.S. Census Bureau estimated that Manhattans population in 2008 was 1,634,795, over 60,000 more than what the ER asserts would be at risk 29 years later.83
- 30.
In the same footnote, New York further allegedfor the first timethat Entergys SAMA analysis, as revised, does not adequately account for tourists and daily commuters; i.e., individuals who are not included in New York Citys resident population, but who nevertheless could be affected by a severe accident while they are in the City.84 Citing U.S. Census Bureau estimates, New York stated that New York Citys daytime population as of 2000 was approximately 8,570,000 peoplereflecting a daily influx of approximately 563,000 people in addition to the Citys resident population.85 It further stated that New York City estimates that 47 million tourists (domestic and foreign) visited the City in 2008.86 New York did not raise any issues related to alleged census undercounting of minority populations in Amended Contention NYS-16B.87
- 31.
In a separate footnote, New York claimed that the alleged population underestimates mentioned above mislead the public and emergency response officials and, therefore, preclude Entergy from satisfying its emergency planning obligations under 10 C.F.R.
§ 50.47(b)(9) and the NRC Staff from meeting its concurrent obligations under NEPA.88 82 Id. at 8 n.3.
83 Id.
84 Id.
85 Id.
86 Id.
87 See id. at 7-12.
88 Id. at 10 n.4.
18
- 32.
Entergy and the NRC Staff did not oppose admission of NYS-16B to the extent that it relied on the same supporting evidence as NYS-16/16A.89 However, Entergy and the Staff objected to, as impermissibly late, New Yorks new argument relying on alleged New York City tourists and commuters.90 In raising this objection, Entergy and the Staff pointed out that the December 2009 revised SAMA analysis used the same non-meteorological inputs (including the same 2035 population value) as the initial SAMA analysis.91 Therefore, Entergy asserted that New York should have raised its new argument in response to Entergys original SAMA analysis, or when Entergy explained its assumptions concerning lost tourism and business in response to a Staff RAI in 2008.92 Entergy also objected to New Yorks allegation concerning Entergys compliance with 10 C.F.R. § 50.47(b)(9), because emergency planning issues are outside the scope of license renewal proceedings pursuant to 10 C.F.R. § 54.30 (Matters not subject to a renewal review).93
- 33.
On June 30, 2010, the Board admitted NYS-16B in part and consolidated it with NYS-16/16A, inasmuch as it repeated the allegations in those contentions and deals with the additional aspect of tourist and commuter populations.94 The Board recognized that New York did not raise the issue of daytime transients or tourists in either NYS-16 or NYS-16A, but noted that Entergys December 2009 revised SAMA analysis shows cost-benefit determinations and 89 Applicants Answer to New York State's New and Amended Contentions Concerning Entergy's December 2009 Revised SAMA Analysis at 19 (Apr. 5, 2010) (April 2010 Entergy Answer), available at ADAMS Accession No. ML101450328; NRC Staffs Answer to State of New Yorks New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis at 12 (Apr. 5, 2010) (April 2010 Staff Answer), available at ADAMS Accession No. ML100960165.
90 April 2010 Entergy Answer at 20; April 2010 Staff Answer at 12-13.
91 April 2010 Entergy Answer at 20; April 2010 Staff Answer at 12-13.
92 April 2010 Entergy Answer at 20.
93 Id. at 20 n.111.
94 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-10-13, 71 NRC 673, 687 (2010).
19 conclusions that diverge from those reflected in Entergys original SAMA analysis.95 Therefore, the Board rejected Entergys and the Staffs objections, and found that the amended contention arose from Entergys revised SAMA analysis, and rested on materially new information sufficient to establish the contentions compliance with 10 C.F.R. § 2.309(f)(1) and (2).96
- 34.
The Board agreed with Entergy and rejected New Yorks emergency planning argument as outside the scope of previously admitted contentions NYS-16 and NYS-16A and this license renewal proceeding.97
- 3.
Final Supplemental Environmental Impact Statement
- 35.
In December 2010, the NRC Staff issued its FSEIS, which consists of three volumes and over 2,000 pages.98 In the FSEIS, the Staff considered and addressed all public comments on the scope of the Staffs NEPA review and its DSEIS.99 Appendix A to the FSEIS documents the Staffs responses to those comments.100
- 36.
New Yorks submission of the aforementioned comments and related contention (as subsequently amended) is expressly reflected in Appendix A to the FSEIS:
A concern regarding the adequacy of the population projections used in the SAMA analysis was raised in a contention filed by the State of New York in the license renewal adjudicatory proceeding. The contention includes the criticisms mentioned above and has been admitted for litigation by the [Board]. Additional discussion of the 95 Id.
96 Id.
97 Id.
98 See FSEIS (NYS00133A-J).
99 See id. at iv (stating that the Staffs recommendation regarding license renewals for IP2 and IP3 was based in part on consideration of public comments received during the scoping process and in response to the draft SEIS); id., App. A at A-2.
100 Id., App. A at A-175.
20 population projections and their impact on the SAMA analysis has been provided in Section G.2.3 of Appendix G to the FSEIS.101
- 37.
Thus, it is clear from the record that the NRC Staff explicitly acknowledged and analyzed Entergys 2035 population projection and New Yorks criticisms thereof, the same criticism raised in Contention NYS-16 and subsequent amendments thereto. Section G.2.3 discusses Entergys population projections, including Entergys methodology and basis for adjusting for transients.102 It also summarizes the results of supplemental evaluations of Entergys population data and projections performed by Sandia National Laboratories (Sandia), the Staffs contractor, using the SECPOP2000 computer program.103 The Staffs and Sandias evaluations are discussed further in Section IV.B.2 below.
- 38.
As documented in the FSEIS, the NRC Staff concluded that Entergys methods and assumptions for estimating the 2035 population are reasonable and acceptable for the purposes of a SAMA evaluation,104 and that Entergys population data and projected population growth analysis provide reasonable (and slightly conservative) population values for its SAMA analysis.105 These conclusions are based on the Staffs independent review of Entergys 2035 population estimate, as augmented by its response to the concerns raised in NYS-16B and Sandias supplemental analyses.
- 39.
Significantly, New York did not amend NYS-16B in response to the new analyses and discussion contained in Appendix G of the FSEIS.
101 FSEIS, Vol. 1, at A-128 (NYS00133D).
102 See FSEIS, Vol. 3, at G-20 (NYS000133I).
103 See id. at G-24 to -25.
104 Id. at G-20.
105 Id. at G-25.
21 C.
New Yorks December 2011 Pre-filed Testimony and Related Evidentiary Filings
- 40.
On December 16, 2011, New York submitted its Position Statement on NYS-16B and supporting testimony and exhibits.106 In its Position Statement, New York stated, without further explanation, that it had chosen not to pursue the main part of the contention challenging Entergys air dispersion model at hearing.107 Instead, New York focused solely on the population-related claim identified in footnotes to its NYS-16, NYS-16A, and NYS-16B submittals.
- 41.
On January 23, 2012, New York, Entergy, and the NRC Staff filed a Joint Stipulation with the Board memorializing New Yorks decision not to pursue its original challenges to the MACCS2 air dispersion model.108 Therefore, at the hearing, the Board did not consider further New Yorks challenges to the MACCS2 air dispersion model, and, accordingly, focuses this decision on New Yorks remaining population-related arguments.
- 42.
New York submitted pre-filed direct testimony by Dr. Stephen C. Sheppard, a professor of economics at Williams College in Williamstown, Massachusetts.109 Expanding upon the claims made in the original and amended contentions, New York and Dr. Sheppard argued that the FSEIS accepts Entergys estimate of the 2035 population within 50 miles of IPEC despite two significant errors in Entergys estimate.110 First, they alleged that the 106 See New York Position Statement (NYS000206); Pre-Filed Written Testimony of Dr. Stephen Sheppard, Ph.D.
Regarding Contention NYS-16/16A/16B (NYS-16B) (Dec. 16, 2011) (NYS000207) (New York Direct Testimony); Report of Dr. Stephen C. Sheppard, Ph.D. in Support of Contention NYS-16/16A/16B (NYS-16B) (Dec. 16, 2011) (NYS000209) (Sheppard Report).
107 New York Position Statement at 1 n.1 (NYS000206).
108 Joint Stipulation at 2 ([T]he State has chosen not to pursue the claim that Entergys air dispersion model is being used beyond its range of validity and does not accurately predict the geographic dispersion of radionuclides released in a severe accident, and, therefore, it is no longer at issue in this contention.).
109 New York Direct Testimony (NYS000207).
110 See id.
22 estimate, which is based on officially-reported 2000 U.S. Census data, does not account for census undercount, which Dr. Sheppard defined as the persistent undercount of portions of the population by the U.S. Census Bureau in the decennial census, particularly minorities and the poor.111 Second, they claimed that Entergys population estimate does not include those who live outside the 50 mile radius of IPEC, but commute to workplaces within IPECs 50 mile radius.112
- 43.
After purporting to account for both census undercount and additional commuters, Dr. Sheppard estimated that the 2035 population within a 50-mile radius of IPEC will be 20,456,285 personsapproximately 1.2 million more persons than Entergy had estimated.113 Dr. Sheppards estimate included an additional 995,778 commuters and 231,632 persons purportedly associated with census undercount.114 Those additions amounted to a total increase of 6.38 percent in the 2035 population estimate (19,228,714) used in the IPEC SAMA analysis 5.18 percent associated with commuters and 1.20 percent associated with census undercount.115
- 44.
According to New York, the two alleged deficiencies in Entergys population estimate described above cause the population at risk in the event of a severe accident to be substantially underestimated.116 New York argued that the Staffs reliance on, and inclusion of, a flawed population estimate in the FSEIS renders that document legally deficient for two reasons. First, it fails to serve its NEPA-mandated purpose of providing accurate information to 111 Id. at 10:7-10 (NYS000207).
112 Id. at 6:19-7:2, 9:21-10:3.
113 Id. at 16:7-9.
114 Id. at 13:7-9, 16:1-3.
115 See id. at 16:11-18.
116 New York Position Statement at 4 (NYS000207).
23 decision-makers and the public.117 Second, by accepting a SAMA analysis based on inaccurate data, the FSEIS does not take the NEPA-required hard look a mitigation alternatives to the proposed action.118 D.
Entergys First Motion in Limine
- 45.
On January 30, 2012, Entergy filed a Motion in Limine to exclude those portions of Dr. Sheppards testimony, report, and supporting exhibits related to New Yorks new census undercount argument.119 Entergy argued that the issues relating to the U.S. Census Bureaus purported undercount of portions of the population is beyond the scope of the admitted contention and the proceeding itself.120 The Staff supported Entergys Motion in Limine,121 and New York opposed it.122
- 46.
The Board denied Entergys Motion in Limine on March 6, 2012, explaining that licensing boards admit contentions, not their bases, and that the census undercount issue was within the scope of the admitted contentions reasonably inferred bounds.123 In reaching its decision, the Board also relied upon the parties Joint Stipulation, which states: In NYS-16B, 117 See id.
118 See id. at 4-5.
119 Entergys First Motion in Limine.
120 Entergy also suggested that because New York had repeatedly relegated its challenges to Entergys 2035 population estimate to footnotes in its pleadings, New Yorks arguments could be deemed waived. See Entergys First Motion in Limine at 2 & n.6 (citing Hill v. Kemp, 478 F.3d 1236, 1255 n.21 (10th Cir. 2007)
(We will not consider an argument raised in such a perfunctory manner.); Hardeman v. City of Albuquerque, 377 F.3d 1106, 1122 (10th Cir. 2004) (finding issue raised only in footnote before trial court deemed waived);
Natl Foreign Trade Council v. Natsios, 181 F.3d 38, 60 n.17 (1st Cir. 1999) (citations omitted) (We have repeatedly held that arguments raised only in a footnote or in a perfunctory manner are waived.).
121 NRC Staffs Answer to Applicants Motion in Limine to Exclude Portions of the Prefiled Testimony, Report, and Exhibits Filed by New York State and Dr. Stephen Sheppard in Support of Consolidated Contention NYS-16B (Feb. 9, 2012), available at ADAMS Accession No. ML12040A238.
122 State of New Yorks Answer to Entergys Motion in Limine to Exclude Portions of Pre-Filed Testimony and Exhibits for Consolidated Contention NYS-16B (Feb. 17, 2012), available at ADAMS Accession No. ML12048B414.
123 Ruling on Motions in Limine.
24 the State still asserts two significant errors in the population estimate: (1) failure to account for census undercount; and (2) failure to account for the commuter population present within the 50 mile zone of Indian Point.124 The Board viewed this statement as an indication of the parties agreement of not only what NYS-16B excluded, but also what it included.125 E.
Entergys and the NRCs Staff March 2012 Pre-filed Testimony
- 47.
Entergy and the Staff filed their respective statements of position, written testimony, and supporting exhibits for contention NYS-16B on March 28, 2012.126 Entergy submitted written testimony from four witnesses: Ms. Lori Potts, Dr. Kevin OKula, Mr. Grant Teagarden, and Mr. Jerry Riggs.127 Those witnesses testified that Entergy reasonably and appropriately relied upon officially published U.S. Census Bureau data that were not adjusted for any census undercount or overcount.128 They stated that federal, state, and local agencies commonly rely upon published U.S. census data in performing analyses required by law.129 Entergys witnesses also stated that Dr. Sheppards census undercount claim is based upon data and statements that have been discredited and superseded by more recent U.S. Census Bureau 124 Joint Stipulation at 2.
125 Ruling on Motions in Limine at 10-11. As reflected in Entergys Statement of Positions, Entergy disagreed with the Boards rationale, stating that in the Joint Stipulation, Entergy and the NRC Staff did not concede that the census undercount issue is within the scope of the admitted contention but only repeated NYSs assertions.
Entergys Statement of Position Regarding Consolidated Contention NYS-16 B (Severe Accident Mitigation Alternatives Analysis) at 10-11 (Mar. 28, 2012) (Entergy Position Statement) (ENT000002).
126 Entergys Position Statement (ENT000002); NRC Staffs Initial Statement of Position on Consolidated Contention NYS-16B (Staff Position Statement) (NRC000040).
127 Testimony of Entergy Witnesses Lori Potts, Kevin OKula, Grant Teagarden, and Jerry Riggs on Consolidated Contention NYS-16B (Severe Accident Mitigation Alternative Analysis) (Entergy Testimony) (ENT000003).
128 Id. at 18 (A41).
129 Id.
25 documentation, and that the 2000 census data used by Entergy slightly overcounted the total population.130
- 48.
Entergys witnesses further testified that, consistent with NRC-approved guidance, Entergy defined transient populations to include tourists and business travelers, and conservatively included appropriate transient populations for the entire 50-mile region within the SAMA analysis.131 They asserted that Dr. Sheppards commuter population calculations are flawed and significantly overstate the net commuter population into the 50-mile SAMA analysis.132 Finally, Entergys witnesses testified that they performed a quantitative MACCS2 sensitivity analysis, the results of which show that increasing the 2035 populating estimate in the manner suggested by Dr. Sheppard would have no material impact on IPEC SAMA analysis cost-benefit conclusions.133
- 49.
The NRC Staff also filed testimony from four witnesses: Dr. Nathan Bixler, Dr. S.
Tina Ghosh, Mr. Joseph Jones, and Mr. Donald Harrison.134 The Staffs witnesses testified that, based on their expert evaluations, Entergys population estimate is reasonable for purposes of the SAMA analysis, and that changing estimated population values include a census undercount or commuters as posited by Dr. Sheppard would not materially affect the results of the SAMA analysis.135 The Staff argued that the information presented in the FSEIS is accurate, and that the Staff adequately addressed the population-related concerns raised by New York in its DSEIS 130 Id. at 18-19 (A41).
131 Id. at 19 (A41).
132 Id. at 19-20 (A41).
133 Id. at 48-50 (A87-A89).
134 NRC Staff Testimony of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones, and Donald G. Harrison Concerning NYS Contentions NYS 12/16 (Mar. 29, 2012) (Staff Testimony) (NRC000041).
135 Id. at 18 (A7).
26 comments and in Contention NYS-16B, such that the Staff has taken the requisite hard look at potentially cost-beneficial SAMAs required by NEPA and 10 C.F.R. Part 51.136 F.
New Yorks June 2012 Pre-filed Rebuttal Testimony and Related Evidentiary Filings
- 50.
On June 29, 2012, New York filed its revised statement of position,137 written rebuttal testimony,138 and several new exhibits referenced therein. In rebuttal, New York and Dr.
Sheppard principally argued that: (1) neither the Staff nor Entergy has shown that the omission of approximately one million commuters from the SAMA analysis is reasonable under NEPA;139 (2) neither Entergy nor the Staff has shown that failure to account for census undercount is reasonable under NEPA;140 (3) Entergys conservative assumptions do not compensate for the commuter and census undercount omissions;141 and (4) the correct standard for assessing an FSEIS is reasonableness, not materiality.142 They also asserted that Entergys experts improperly viewed NYS-16B and NYS-12C143 in isolation, and that they should have run their MACCS2 136 Staff Position Statement at 16 (NRC000040).
137 State of New York Revised Statement of Position [on] Contention NYS-16/16A/16B (NYS-16B) (June 29, 2012) (New York Revised Position Statement) (NYS000403).
138 Rebuttal Testimony of Dr. Stephen C. Sheppard, Ph.D. Regarding Contention NYS-16/16A/16B (NYS-16B)
(June 29, 2012) (New York Rebuttal Testimony) (NYS000404).
139 New York Revised Position Statement at 4-8 (NYS000403).
140 Id. at 9-10.
141 Id. at 10-11.
142 Id. at 11-16.
143 Contention NYS-12 was originally admitted as follows: Entergy's Severe Accident Mitigation Alternatives (SAMA) for Indian Point 2 and Indian Point 3 Does Not Accurately Reflect Decontamination and Clean Up Costs Associated with a Severe Accident in the New York Metropolitan Area and, Therefore, Entergy's SAMA Analysis Underestimates the Cost of a Severe Accident in Violation of 10 C.F.R. § 51.53(c)(3)(ii)(L). New York Petition at 140. See Indian Point, LBP-08-13, 68 NRC at 64-65. New York amended the contention three times to apply to the DSEIS, Entergys SAMA revision, and the FSEIS. State of New York Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement (Feb. 27, 2009), available at ADAMS Accession No. ML090690303; State of New Yorks Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (Mar. 11, 2010), available at ADAMS Accession No. ML100780366; State of New York New Contention-12C Concerning NRC Staffs December 2010 Final Environmental Impact Statement and the Underestimation of
27 sensitivity analysis with New Yorks suggested inputs from both contentions.144 Finally, New York argued that the Board should remand the FSEIS to the Staff for supplementation and correction of the errors alleged by New York.145
- 51.
On July 30, 2012, Entergy filed a second motion in limine seeking to exclude portions of the Sheppard Rebuttal Testimony and related portions of New Yorks Revised Position Statement.146 Entergy argued that the challenged testimony should be excluded because New York (1) raised issues beyond the scope of the admitted contention and Entergys and the Staffs testimony,147 and (2) lacked the technical foundation required by 10 C.F.R. § 2.337(a) for expert opinion or testimony.148 Specifically, Entergy argued that Dr. Sheppards new claim that Entergys MACCS2 sensitivity analysis should have accounted for alleged deficiencies in other input parameters unrelated to population (as identified in Contention NYS-12C) was a new claim beyond the scope of NYS-16B and Entergys and Staffs rebuttal testimony.149 Entergy further asserted that Dr. Sheppards rebuttal testimony relating to potential radiological exposure and contamination resulting from a severe accident, as well as the MACCS2 codes treatment of those processes or phenomena, was beyond his expertise.150 Decontamination and Clean Up Costs Associated with a Severe Accident in the New York Metropolitan Area (Feb. 3, 2011), available at ADAMS Accession No. ML110680212. The Board admitted each of these amendments. Licensing Board Order (Ruling on New York States New and Amended Contentions) at 3-4 (June 16, 2009) (unpublished); Indian Point, LBP-10-13, 71 NRC at 687; Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) at 7-8 (July 6, 2011)
(unpublished).
144 New York Revised Position Statement at 13 (NYS000403).
145 Id. at 18.
146 Entergys Motion in Limine to Exclude Portions of New York States Rebuttal Filings on Contention NYS-16B (July 30, 2012), available at ADAMS Accession No. ML12212A417.
147 Id. at 5-7.
148 Id. at 7-8.
149 Id. at 5-7.
150 Id. at 7-8.
28
- 52.
The Board denied Entergys Motion in Limine (among other Motions in Limine filed by the parties) in a bench ruling issued on October 15, 2012, the first day of evidentiary hearings.151 G.
Other Prehearing Procedural Matters
- 53.
On August 8, 2012, New York filed a motion with respect to its seven Track 1 contentions,152 seeking to invoke its purported statutorily-granted cross-examination rights under Section 274(l) of the Atomic Energy Act (AEA), 42 U.S.C. § 2021(l).153 Specifically, New York claimed that as the host state to IPEC, Section 274(l) confers upon it expansive cross-examination rights that take precedence over the restrictive cross-examination rights allowed pursuant to 10 C.F.R. §§ 2.315(c) and 2.1204(b)(3).154 It argued that the 2004 modifications to the NRCs Administrative Procedure Act-compliant regulations, which, it contended, generally restrict the use of cross-examination by most parties, do not purport to address the rights preserved to the States in [Section 2021(l)].155 Thus, New York asserted, 10 C.F.R. §§ 2.135(c) and 2.1204(b)(3) do not apply to it as a host state and do not restrict its right to interrogate witnesses.156 Both Entergy and the NRC Staff opposed the motion as lacking a legal basis,157 151 Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 1265:23-1266:12 (Oct. 15, 2012) (Oct. 15, 2012 Tr.).
152 Track 1 contentions consist of Riverkeeper TC-2 (Flow-Accelerated Corrosion), NYS-12C (SAMA Analysis -
Decontamination Costs), NYS-16B (SAMA Analysis - Population Estimate), NYS-17B (Land Values), NYS-37 (Energy Alternatives), Clearwater EC-3A (Environmental Justice), NYS-5 (Buried Piping), NYS-6/7 (Non-EQ Cables), and NYS-8 (Transformers). Prior to the October 2012 hearings, the parties settled another Track 1 contention, Riverkeeper EC-3/Clearwater EC-1 (Spent Fuel Pool Leaks to Groundwater). The Board approved that settlement agreement on October 17, 2012. Licensing Board Consent Order (Approving Settlement of Consolidated Contention Riverkeeper EC-3 and Clearwater EC-1) (Oct. 17, 2012) (unpublished).
153 State of New York Motion to Implement Statutorily-Granted Cross-Examination Rights Under Atomic Energy Act § 274(l) at 1 (Aug. 8, 2012), available at ADAMS Accession No. ML12221A483.
154 Id. at 14-15, 19.
155 Id. at 14.
156 Id. at 15.
29 arguing that New York mischaracterized as an absolute right what is actually a reasonable opportunity to cross-examine witnesses.158
- 54.
On August 29, 2012, in accordance with 10 C.F.R. § 2.1207(a)(3) and the Boards Scheduling Order, Entergy (and the other parties) submitted in camera proposed questions for the Board to consider asking to the other parties witnesses on Contention NYS-16B.159
- 55.
In an Order issued on September 21, 2012, the Board granted, in part, New Yorks August 8, 2012 motion for cross-examination of witnesses during the evidentiary hearings.160 The Board found that New Yorks opportunity to cross-examine witnesses is bound by the same 10 C.F.R. Part 2 regulations that govern all parties to this proceeding.161 As a result, the Board found it unnecessary to address whether and if so to what extent, in some theoretical sense, the right to cross-examination granted to host states by the AEA may be different from those provided to parties under 10 C.F.R. Part 2.162 Citing 10 C.F.R. § 2.1204(b)(1), the Board noted that in any oral hearing held under Subpart L, a party may file a motion (accompanied by a cross-examination plan) seeking cross-examination by the parties on particular admitted contentions or issues.163 Pursuant to 10 C.F.R. § 2.1204(b)(3), the presiding officer may allow 157 Entergys Answer Opposing New York States Motion to Cross-Examine (Aug. 20, 2012) (Entergy Answer Opposing New York Motion), available at ADAMS Accession No. ML12233A371; NRC Staffs Answer to State of New Yorks Motion to Implement Statutorily-Granted Cross-Examination Rights under Atomic Entergy Act § 274(l) (Aug. 20, 2012) (Staff Answer Opposing New York Motion), available at ADAMS Accession No. ML12233A742.
158 Entergy Answer Opposing New York Motion at 3-4, Staff Answer Opposing New York Motion at 9-10.
159 10 C.F.R. § 2.1207(a)(3)(iii).
160 Licensing Board Order (Order Granting, in part, New Yorks Motion for Cross Examination) (Sept. 21, 2012)
(Sept. 21, 2012 Order) (unpublished); see also Licensing Board Errata (Regarding Order Granting, in part, New Yorks Motion for Cross Examination) (Sept. 25, 2012) (unpublished).
161 Sept. 21, 2012 Order at 5.
162 Id. at 5-6.
163 Id. at 6.
30 cross-examination by the parties only if the presiding officer determines that cross-examination by the parties is necessary to ensure the development of an adequate record for decision.164
- 56.
The Board concluded that New York had complied with 10 C.F.R. § 2.1204(b) by filing the motion for cross-examination and proposed examination questions before the August 29, 2012, deadline for those submittals.165 Citing the voluminous and technical nature of the parties evidentiary submissions, the Board determined that granting New Yorks request for cross-examination was necessary to ensure development of an adequate record for this proceeding.166 It thus ruled that during the hearing, New York could examine witnesses following the Boards examination, as long as its questions were relevant, reasonable, and non-repetitive.167
- 57.
On September 24, 2012, the Board discussed its Order in a pre-hearing conference call in response to questions from the NRC Staff and Entergy.168 During that conference, Chairman McDade confirmed that New York would have the opportunity to examine witnesses on areas that the Board missed in its own witness examinations.169 He also suggested that the Board might limit New Yorks questioning if it becomes repetitive170 and stated that other parties would have a reasonable opportunity to interrogate witness on discrete issues through oral 164 Id. (quoting 10 C.F.R. § 2.1204(b)(3)).
165 Id.
166 Id.
167 Id. at 6-7.
168 Official Transcript of Proceedings, Indian Point Nuclear Generating Units 1 & 2 [sic2 & 3] (Sept. 24, 2012).
169 Id. at 1238:1-6 (Judge McDade).
170 Id.
31 motions at the hearing if they made a sufficiently compelling request and avoided repetitive questions.171
- 58.
Subsequently, on September 28, 2012, Entergy filed an emergency petition for interlocutory review of the Boards order with the Commission.172 Entergy requested, and was granted, expedited briefing on its petition.173 New York opposed Entergys petition174 and the Staff supported it.175
- 59.
On October 12, 2012, the Commission issued an Order denying Entergys request for interlocutory review, noting that the Board has the responsibility in the first instance to oversee the development of an adequate case record.176 In so ruling, the Commission cited Chairman McDades assurances, made during the September 24, 2012 prehearing conference call, that the Board would prohibit open-ended, lengthy, repetitive, and immaterial cross-examination, and allow all parties a full and fair opportunity to request cross-examination.177 The Commission further stated its expectation that the Board would act on cross-examination requests fairly and evenhandedly, rigorously oversee any cross-examination it allowed, and limit 171 Id. at 1239:21-1241:8 (Judge McDade).
172 Entergys Emergency Petition for Interlocutory Review of Board Order Granting Cross-Examination to New York State and Request for Expedited Briefing (Sept. 28, 2012), available at ADAMS Accession No. ML12272A363.
173 Id.; Commission Order (Oct. 2, 2012) (unpublished).
174 State of New York Combined Opposition to Entergys Requests for Emergency Stay and Interlocutory Review of the Board Order Granting Limited Cross Examination (Oct. 1, 2012), available at ADAMS Accession No. ML12275A327. Entergy replied in opposition to New Yorks answer. See Entergys Reply to New York States Opposition to Entergys Emergency Petition for Interlocutory Review (Oct. 8, 2012), available at ADAMS Accession No. ML12282A002.
175 NRC Staffs Answer to Entergys Emergency Petition for Interlocutory Review, and Application for Stay, of the Boards Order of September 21, 2012 (Oct. 5, 2012), available at ADAMS Accession No. ML12279A309.
176 Entergy Nuclear Generation Co. (Indian Point Nuclear Generating Units 2 & 3) CLI-12-18, 76 NRC __ slip op.
at 6 (Oct. 12, 2012).
177 Id. at 3-4.
32 the cross-examination to supplemental and genuinely material inquiries, necessary to develop an adequate and fair record.178
- 60.
During the hearing on the first contention (Riverkeeper TC-2), the Board indicated that it would allow questioning of the witnesses by the petitioner (there, Riverkeeper, Inc. (Riverkeeper)), Entergy, and the NRC Staff.179 Entergy objected to examination of witnesses by any party, and requested that the Board close the record on that contention.180 In support of its position, Entergy: (1) noted that Riverkeeper had not made, nor been required to make, the sort of showing contemplated by the Subpart L regulations, which was a circumstance that the Commission had found troubling; (2) argued that no sufficient constraints had been placed on examination by parties; (3) noted that the procedure, rather than constituting the rare occurrence contemplated by the Commission, was apparently being undertaken as the norm for these proceedings; and (4) argued that, with two full days of Board questioning, additional questioning by the parties was not truly necessary, as mandated by the Commission.181 In the alternative, Entergy requested reciprocal treatment; i.e., that it be afforded the same direct and cross-examination rights as the other parties.182
- 61.
The Board denied Entergys motion to preclude party examination of witnesses, stating any additional showing need not be articulated, and that the Board envisioned allowing Riverkeeper, then Entergy, and then the Staff brief opportunities to conduct limited interrogation 178 Id. at 7.
179 Oct. 17, 2012 Tr. at 1797:16-24 (Judge McDade).
180 Id. at 1794:11-1797:15 (Fagg).
181 Id.
182 Id. at 1797:8-14 (Fagg).
33 of the witnesses.183 During hearing on NYS-12C (the second contention), Entergy reiterated its objection, which was overruled by the Board, and Entergy asked that the Board recognize Entergys standing objection on such grounds with respect to all remaining contentions.184 Upon that basis, Entergy rested upon its standing objection, and did not repeat its procedural arguments in connection with subsequent contentions.
H.
The October 2012 Evidentiary Hearing on NYS-16B
- 62.
On October 15, 2012, the Board commenced evidentiary hearings on the Track 1 contentions and admitted into evidence the exhibits proffered by the parties.185 The Board held evidentiary hearings on Contention NYS-16B on October 22, 2012. The hearings were held at the DoubleTree Hotel in Tarrytown, New York.186
- 63.
The Board conducted the hearing in accordance with the provisions of 10 C.F.R.
Part 2, Subpart L. In accordance with its September 21, 2012 Order, and the Commissions related guidance in CLI-12-18, the Board permitted all parties limited cross-examination and redirect examination. Specifically, after the Board completed its questioning of the parties witnesses, it afforded all parties the opportunity to ask relevant, non-repetitive redirect and cross-examination questions to the witnesses. New York questioned the witnesses first, followed by Entergy and then the NRC Staff.187
- 64.
During the October 22, 2012 evidentiary hearing, Entergy proffered a supplemental MACCS2 sensitivity analysis prepared by Entergys experts before the hearing on 183 Id. at 1797:16-1800:10 (Judge McDade).
184 Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2315:17-2316:2 (Oct. 18, 2012) (Bessette) (Oct. 18, 2012 Tr.).
185 Oct. 15, 2012 Tr. at 1268:21-1270:6.
186 Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2388:15-18 (Oct. 22, 2012)
(Oct. 22, 2012 Tr.).
187 See generally Oct. 22, 2012 Tr.
34 contention NYS-16B.188 Entergy disclosed the supplemental sensitivity case (ENT000589) on October 12, 2012, ten days before the actual hearing took place. The supplemental sensitivity analysis specifically assesses the effect of using all of Dr. Sheppards proposed population value and distribution assumptions.189 The Board received the analysis into evidence as Exhibit ENT000589 on October 22, 2012, subject to a later objection by New York, as explained immediately below.190
- 65.
On November 21, 2012, following the hearing, New York filed an objection to ENT000589, stating that the proffered exhibit failed to meet the requirements of 10 C.F.R.
§ 2.337(a) for admissible evidence.191 New York argued that Entergys supplemental sensitivity analysis is irrelevant and immaterial because it did not include New Yorks suggested MACCS2 inputs from both contentions NYS-16B and NYS-12C, the other SAMA-related contention, and because it purportedly contradicts the direct testimony of Entergy witnesses at hearing.192 In addition, New York argued that the difference in percentages between the outcomes of the new sensitivity analysis and the increase needed to make an additional SAMA cost-beneficial are too close to be considered relevant, material, or reliable.193 188 See G. Teagarden, Indian Point License Renewal Proceeding: Supplemental Sensitivity Analysis Re NYS-16 (Oct. 9, 2012) (ENT000589) (MACCS2 Population Sensitivity Case 2).
189 See id. at 1-2; Oct 22, 2012 Tr. at 2517:19-2518:2 (Teagarden).
190 Oct 22, 2012 Tr. at 2519:5-6 (Judge McDade).
191 The State of New Yorks Objection to ENT000589 (Nov. 21, 2012), available at ADAMS Accession No. ML12326B001.
192 Id. at 3.
193 Id.
35
- 66.
On November 30, 2012, Entergy filed its Answer opposing New Yorks objection.194 Entergy argued that it does not have to offer a combined analysis that accounts for issues raised in two separate contentions, NYS-16B and NYS-12C; that the proffered sensitivity analysis is relevant to the issues raised in NYS-16B; and that New Yorks provided no legal or factual basis for its claim that the increase necessary to make IP2 SAMA 025 cost-beneficial 6.15% vs. 11%is too close to be considered relevant, material, or reliable given the other evidence offered at the hearing.195 Entergy also argued that the supplemental sensitivity analysis is fully consistent with the testimony offered by Entergy experts at hearing.196
- 67.
On December 5, 2012, the Board overruled New Yorks objection to ENT000589.
The Board found that each of New Yorks arguments depended upon a merit-based assessment and factual determination, matters the Board is tasked with assessing in its initial decision. It also concluded that the admission of ENT000589 did not prejudice New York because Entergy generated the exhibit in response to rebuttal testimony presented by New York, and promptly furnished the exhibit to New York. The Board also noted that New York was given ample opportunity to review and respond to the supplemental sensitivity analysis before and during the hearing.197 194 See Entergys Answer to the State of New Yorks Objection to the Licensing Boards Admission of Entergy Hearing Exhibit ENT000589 (Nov. 30, 2012), available at ADAMS Accession No. ML12335A383.
195 The State of New Yorks Objection to ENT000589 at 3 (Nov. 21, 2012), available at ADAMS Accession No. ML12326B001 (emphasis added).
196 See Entergys Answer to the State of New Yorks Objection to the Licensing Boards Admission of Entergy Hearing Exhibit ENT000589 at 2-9 (Nov. 30, 2012), available at ADAMS Accession No. ML12335A383. The NRC Staff did not file a response to New Yorks Objection or Entergys Answer thereto.
197 Licensing Board Order (Overruling New Yorks Objection to Exhibit ENT000589) (Dec. 5, 2012)
(unpublished).
36
- 68.
The hearing on NYS-16B followed the hearing on NYS-12C, during which the Board and parties thoroughly discussed the manner in which a SAMA analysis is performed.198 Therefore, the hearing on NYS-16B began and concluded on October 22, 2012. The parties jointly submitted proposed corrections to the hearing transcripts on December 5, 2012.199 The Board issued an Order on December 27, 2012, adopting the parties proposed transcript corrections with some minor revisions.200
- 69.
On March 22, 2013, the parties submitted proposed findings of fact and conclusions of law in the form of a proposed Initial Decision by the Board.
III.
APPLICABLE LEGAL AND REGULATORY STANDARDS A.
Law Governing Environmental Evaluations and SAMA Analyses Under NEPA
- 70.
Two sets of regulatory requirements govern the NRCs review of license renewal applications. Under 10 C.F.R. Part 54, the NRC conducts a health and safety review focused on the detrimental effects of aging on the plant.201 Under 10 C.F.R. Part 51, the NRC completes a NEPA-based environmental review, focusing on the potential impacts of twenty additional years of operation. As explained above, the contention at issue hereNYS-16Barises under NEPA and the NRCS NEPA-implementing regulations in 10 C.F.R. Part 51.202 198 Oct. 17, 2012 Tr. at 1900:9-1919:21 (Teagarden).
199 Letter from Counsel for Entergy Nuclear Operations, Inc., Counsel for Riverkeeper, Inc., Counsel for the State of New York, Counsel for the NRC Staff, and Counsel for Hudson [River] Sloop Clearwater, Inc., to Lawrence G. McDade, Chairman, Dr. Michael F. Kennedy, and Dr. Richard Wardwell, Atomic Safety and Licensing Board (Dec. 5, 2012), available at ADAMS Accession No. ML12340A546.
200 Licensing Board Order (Adopting Proposed Transcript Corrections with Minor Edits) (Dec. 27, 2012)
(unpublished).
201 See Nuclear Power Plant License Renewal: Revisions, 60 Fed. Reg. 22,461, 22,464 (May 8, 1995).
202 Indian Point, LBP-08-13, 68 NRC at 100-02.
37
- 71.
NEPA requires that federal agencies, such as the NRC, prepare an EIS for major Federal actions significantly affecting the quality of the human environment.203 NEPA is a procedural statute that does not mandate particular substantive results.204 Rather, it is designed to insure a fully informed and well-considered decision in the examination of potential environmental impacts of a proposed agency action.205 NEPA merely prohibits uninformed rather than unwiseagency action.206
- 72.
Under NEPA, the Board must apply a rule of reason in determining whether the NRC took the requisite hard look at the proposed actions environmental impacts and alternatives.207 Under the rule of reason, an EIS need not be so all-encompassing in scope that the task of preparing it would become either fruitless or well nigh impossible.208 An EIS must only furnish such information as appears to be reasonably necessary under the circumstances for evaluation of the project.209
- 73.
As the Commission explained in Pilgrim, NEPA does not require agencies to use the best scientific methodology, and NEPA should be construed in the light of reason if it is not to demand virtually infinite study and resources.210 The Commission clarified that an EIS is not intended to be a research document, reflecting the frontiers of scientific methodology, 203 42 U.S.C. § 4332(2)(C) (2006).
204 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51 (1989).
205 Vermont Yankee, 435 U.S. at 558.
206 Robertson, 490 U.S. at 351.
207 New York Nat. Res. Def. Council v. Kleppe, 429 U.S. 1307, 1311 (1976); see also Dept of Transp. v. Pub.
Citizen, 541 U.S. 752, 767-69 (2004) (rule of reason is inherent in NEPA and its implementing regulations).
208 New York Nat. Res. Def. Council, 429 U.S. at 1311 (citing Natural Res. Def. Council v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975)).
209 Lee v. U.S. Air Force, 354 F.3d 1229, 1245 (10th Cir. 2004).
210 Pilgrim, CLI-10-11, 71 NRC at 315-16 (citation omitted).
38 studies and data.211 Nor does NEPA require agencies to use technologies and methodologies that are still emerging and under development, or to study phenomena for which there are not yet standard methods of measurement or analysis.212 Moreover, while there will always be more data that could be gathered, agencies must have some discretion to draw the line and move forward with decisionmaking.213 In short, the Commission explained, NEPA allows agencies to select their own methodology as long as that methodology is reasonable.214
- 74.
[N]or does NEPA require [resolution of] disagreements among various scientists as to methodology.215 When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts.216 B.
Legal Principles Applicable to SAMA Contentions
- 75.
In the past several years, the Commission has issued a series of rulings that bear directly on the issue of adjudicatory challenges to SAMA analyses. For example, in the Pilgrim proceeding (CLI-12-01), the Commission recently stated that, unless a contention, submitted with adequate factual, documentary, or expert support, raises a potentially significant deficiency in the SAMA analysisthat is, a deficiency that could credibly render the SAMA analysis altogether unreasonable under NEPA standardsa SAMA-related dispute will not be material to the licensing decision, and is not appropriate for litigation in an NRC proceeding.217 211 Id.
212 Id.
213 Id.
214 Id.
215 Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 518 n.51 (2008) (quoting Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (1985)).
216 Id. at 518 n. 50 (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)).
217 Pilgrim, CLI-12-01, slip op. at 25; see also id. (There is questionable benefit to spending considerable agency resources in an attempt fine tune a NEPA mitigation analysis. Ultimately, we hold adjudicatory proceedings on issues that are material to licensing decisions.).
39
- 76.
In addition, the Commission stated in Seabrook (CLI-12-05) that, [g]iven the quantitative nature of the SAMA analysis, where the analysis rests largely on selected inputs, it may always be possible to conceive of alternative and more conservative inputs, whose use in the analysis could result in greater estimated accident consequences.218 As the Commission noted, however, the proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA.219 That is because SAMA adjudications would prove endless if hearings were triggered merely by suggested alternative inputs and methodologies that conceivably could alter the cost-benefit conclusions.220 Significantly, the Commission held that [a] contention proposing alternative inputs or methodologies must present some factual or expert basis for why the proposed changes in the analysis are warranted (e.g., why the inputs or methodology used is unreasonable, and the proposed changes or methodology would be more appropriate).221 Otherwise, as the Commission explained, there is no genuine material dispute with the SAMA analysis that was done, only a proposal for an alternate NEPA analysis that may be no more accurate or meaningful.222
- 77.
Thus, the fact that a computer model (MACCS2 in this case) could have been run with alternate inputs (e.g., nonfarm decontamination cost values) does not, by itself, suggest that the inputs used were unreasonable.223 As the Commission recently held in Pilgrim (CLI-12-15),
contentions challenging a SAMA analysis must identify a deficiency that plausibly could alter 218 Seabrook, CLI-12-05. slip op. at 28.
219 Id. at 29.
220 Id.
221 Id.
222 Id.
223 Id. at 17.
40 the overall resultsi.e., the conclusions as to which SAMAs may be cost-beneficialin a material way.224 C.
Standard of Review and Burden of Proof
- 78.
The Board reviews contested issues de novo.225 According to the Commission:
[W]hen resolving contentions litigated through the adversary process, [boards must] bring their own de novo judgment to bear. In such cases, boards must decide, based on governing regulatory standards and the evidence submitted, whether the applicant has met its burden of proof (except where the NRC Staff has the burden).226
- 79.
With respect to NYS-16B, New York has the initial burden of going forward; i.e., it must provide sufficient evidence to support the claims made in the admitted contention.227 As a general matter, an intervenor cannot meet its burden by relying on unsupported allegations and speculation.228 It must introduce sufficient evidence during the hearing phase to establish a prima facie case. If it does so, then the burden shifts to the applicant and the NRC Staff to 224 Pilgrim, CLI-12-15, slip op. at 13.
225 Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-17, 62 NRC 5, 39 (2005); La.
Energy Serv., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 84 (1998).
226 Clinton, CLI-05-17, 62 NRC at 39.
227 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 269 (2009)
(quoting Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-123, 6 AEC 331, 345 (1973)) (The ultimate burden of proof on the question of whether the permit or license should be issued is... upon the applicant. But where... one of the other parties contends that, for a specific reason... the permit or license should be denied, that party has the burden of going forward with evidence to buttress that contention. Once he has introduced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant who, as part of his overall burden of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license.) (emphasis in original); see also Vt. Yankee, 435 U.S.
at 554 (upholding this threshold test for intervenor participation in licensing proceedings); Phila. Elec. Co.
(Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 191 (1975) (holding that the intervenors had the burden of introducing evidence to demonstrate that the basis for their contention was more than theoretical).
228 See Oyster Creek, CLI-09-07, 69 NRC at 268-70; see also Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-857, 25 NRC 7, 13 (1987) (stating that an intervenor may not merely assert a need for more current information without having raised any questions concerning the accuracy of the applicants submitted facts).
41 provide sufficient evidence to rebut the intervenors contention.229 In challenging the NRC Staffs SAMA evaluation, it is the petitioners burden to provide support for why the further analyses or new computer modeling it seeks credibly could make a material difference to the SAMA analysis conclusions, not simply that the analysis might change in some fashion.230
- 80.
An applicant generally has the burden of proof in a licensing proceeding231 but in cases involving NEPA contentions, the burden shifts to the NRC Staff because it has the burden of complying with NEPA.232 The Commission has described that burden as follows:
Ultimately, NEPA requires the NRC to provide a reasonable mitigation alternatives analysis, containing reasonable estimates, including, where appropriate, full disclosures of any known shortcomings in available methodology, disclosure of incomplete or unavailable information and significant uncertainties, and a reasoned evaluation of whether and to what extent these or other considerations credibly could or would alter the [applicants]
SAMA analysis conclusions on which SAMAs are cost-beneficial to implement.233
- 81.
Although the Staff must perform an independent review under NEPA, the Staff understandably relies upon the applicants ER in preparing the SEIS.234 Therefore, should the 229 See, e.g., 10 C.F.R. § 2.325; La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1093 (1983) (citing Midland, ALAB-123, 6 AEC at 345); see also Pilgrim, CLI-12-15, slip op. at 13 (Contentions challenging a SAMA analysis therefore must identify a deficiency that plausibly could alter the overall result of the analysis in a material way.).
230 Pilgrim, CLI-12-15, slip op. at 20.
231 10 C.F.R. § 2.325.
232 See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1049 (1983);
Pilgrim, CLI-12-01, slip op. at 29-30 (NEPA compliance is determined by the adequacy of the SEIS, not the applicants Environmental Report. Therefore, the ultimate issue in determining NEPA compliance is the adequacy of the Staffs environmental review, not the Applicants Environmental Report.).
233 Pilgrim, CLI-10-22, 72 NRC at 208-09.
234 See 10 C.F.R. § 51.45(c) (The environmental report should contain sufficient data to aid the Commission in its development of an independent analysis.); id. § 51.70(b) (The NRC staff will independently evaluate and be responsible for the reliability of all information used in the draft environmental impact statement.). See also Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 396 (1995) (stating that the purpose of an environmental report is to inform the Staffs preparation of an EIS).
42 Applicant become a proponent of a particular challenged position set forth in the EIS, the Applicant, as such a proponent, also has the burden on that matter.235
- 82.
From an evidentiary standpoint, the Applicants and NRC Staffs positions must be supported by a preponderance of the evidence.236 If the preponderance of the evidence shows that the Applicants and Staffs positions with respect to the contested issues are reasonable, then the Board will rule in their favor.
D.
The Boards Decision Supplements and Amends the FEIS
- 83.
In accordance with these NEPA and administrative law principles, NRC hearings must focus on whether the NRC Staff has taken the required hard look at relevant, non-speculative environmental impacts.237 Thus, NRC hearings must focus on whether Staff has unduly ignored or minimized pertinent environmental effects.238 But it is not a game of gotcha, in which the Staffs work can be rejected based on trivial, speculative, regulatorily-foreclosed, or irrelevant considerations.239 235 La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), LBP-96-25, 44 NRC 331, 338-39 (1996) (citing Pub. Serv.
Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 489 n.8 (1978), revd on other grounds, CLI-97-15, 46 NRC 294 (1997)). As a practical matter, we note that Entergy and the NRC Staff are generally aligned in their positions; i.e., they both view Entergys SAMA analysis as reasonable under NEPA and Intervenors criticisms of that analysis as technically unjustified.
236 See Diablo Canyon, CLI-08-26, 68 NRC at 521 (ruling in favor of the NRC Staff and applicant because the record (which included written submissions and oral argument) by a preponderance of the evidence, indicated that the intervenors contention lacked merit); Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-763, 19 NRC 571, 577 (1984) (In order to prevail..., the applicants position must be supported by a preponderance of the evidence.). A preponderance of the evidence requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of Cal.,
Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602 (1993) (internal quotation marks omitted).
237 See Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97-98 (1983).
238 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 431 (2003); see also Exelon Generating Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 811 (2005) (There may, of course, be mistakes in the [EIS], but in an NRC adjudication, it is Intervenors burden to show their significance and materiality. Our boards do not sit to flyspeck environmental documents or to add details or nuances.) (internal quotes omitted).
239 See, e.g., Clinton, CLI-05-29, 62 NRC at 811.
43
- 84.
In determining whether the environmental record in this proceeding is sufficient under NEPA and 10 C.F.R. Part 51, the Board considers the record as a whole, including the FSEIS and the evidentiary record for the hearing, as developed by the Board and the parties.240 As the Commission has explained:
Boards frequently hold hearings on contentions challenging the staffs final environmental review documents. In such cases,
[t]he adjudicatory record and Board decision (and... any Commission appellate decisions) become, in effect, part of the FEIS. Put another way, under our longstanding practice, the Staffs review (the FEIS itself) and the adjudicatory record will become part of the environmental record of the decision.241
- 85.
Thus, after the Board considers the entire record of this proceeding, the FSEIS will be deemed supplemented by the Boards decisions on NEPA contentions and by any subsequent Commission decision.242 Likewise, the NRCs record of decision ultimately will include the Board and Commission decisions, which are based on the adjudicatory record.243 This process is codified at 10 C.F.R. § 51.102(c), which specifies:
When a hearing is held on the proposed action under the regulations in part 2 of this chapter or when the action can only be taken by the Commissioners acting as a collegial body, the initial decision of the presiding officer or the final decision of the Commissioners acting as a collegial body will constitute the record of decision.244 240 See, e.g., Nuclear Innovation North America LLC (South Texas Project, Units 3 & 4), CLI-11-6, 74 NRC __,
slip op. (Sept. 9, 2011).
241 Id. (quoting La. Energy Servs., L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 89 (1998)).
242 Pilgrim, CLI-12-01, slip op. at 30 (citing La. Energy Servs., L.P. (National Enrichment Facility), CLI-05-28, 62 NRC 721, 731 (2005).
243 See, e.g., La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-06-15, 63 NRC 687, 707 n.91 (Adjudicatory findings on NEPA issues, including our own in this decision, become part of the environmental record of decision and in effect supplement the FEIS.); Claiborne, CLI-98-3, 47 NRC at 89.
244 Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,600 (Aug. 3, 2012).
44
- 86.
The Commission and its Boards have followed this process routinely and without exception, not only in the relatively-recent decisions cited above, but also in many more cases dating back decades.245 Under this well-established process, the presiding officer may modify NRC Staff conclusions and, if warranted, remedy an otherwise deficient EIS through its adjudicatory decision.246 The Commission may also do so on appeal.247 This process applies to all NEPA issues, including SAMA issues.248
- 87.
The U.S. Courts of Appeals, across multiple circuits, have consistently upheld the NRCs practice as consistent with the AEA249 and NEPA.250 Supplementation through public 245 See, e.g., Diablo Canyon, CLI-08-26, 68 NRC at 526; Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 53 (2001) ([T]he Presiding Officers incorporation into LBP-99-30 of a staff affidavit on costs and benefits also does not require FEIS supplementation... in an adjudicatory hearing, to the extent that any environmental findings by the Presiding Officer (or the Commission) differ from those in the FEIS, the FEIS is deemed modified by the decision.); Phila. Elec. Co. (Limerick Generating Station, Units 1 &
2), ALAB-819, 22 NRC 681, 705-07 (1985), affd in part and review otherwise declined, CLI-86-5, 23 NRC 125 (1986), remanded in part on other grounds sub nom. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989); Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347 (1975).
246 S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-09-7, 69 NRC 613 (2009) ([T]he record now contains sufficient evidence on dry cooling to support a conclusion that dry cooling would not be preferable to the proposed wet cooling system at the Vogtle site. We thus conclude that the agencys NEPA obligations relative to the discussion of design alternatives have been satisfied with regard to dry cooling, and contention EC 1.3 is resolved on the merits in favor of the staff and SNC.) (emphasis added).
247 See Dominion Nuclear N. Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-07-27, 66 NRC 215, 230 (2007) (But our own examination of the entire administrative record leads us to conclude that the Staffs underlying review was sufficiently detailed to qualify as reasonable and a hard look under NEPA - even if the Staffs description of that review in the FEIS was not. Our explanation below provides an additional detailed discussion as part of the record on the alternative site review. We direct the Staff to include a similar level of detail in future FEIS analyses of alternative sites.) (emphasis in original).
248 See Pilgrim, CLI-12-1, slip op. at 30 (upholding the Boards merits decision on a SAMA contention and stating
[i]n an NRC adjudicatory proceeding, the adjudicatory record, Board decision, and any Commission decision become effectively part of the environmental review document (here, a final supplemental EIS). Therefore, the SEIS is deemed supplemented by the Boards decision, and by this decision.) (footnote omitted).
249 Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562 (D.C. Cir. 2007).
250 Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291 1294 n.5 (D.C. Cir. 1975) (holding that the deemed modified principled did not depart from either the letter or the spirit of NEPA); Ecology Action v. AEC, 492 F.2d 998, 1001-02 (2nd Cir. 1974) (omissions from an FEIS can be cured by subsequent consideration of the issue in an agency hearing); New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 94 (1st Cir.
1978) (having no trouble finding that the NRCs supplementation process satisfies NEPA); see also Public Service Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1 (1978).
45 hearings, moreover, is not confined to the NRC.251 The rationale for allowing supplementation through the hearing process is straightforwardthe NRCs hearing process allows for greater public participation than NEPA otherwise requires.252
- 88.
The Commission has repeatedly authorized supplementation through the hearing record, most recently last year, when it revised and clarified 10 C.F.R. § 51.102(c).253 The well-established process in Section 51.102(c), which governs the resolution of environmental issues following an adjudicatory hearing, requires the Board to consider the adjudicatory record as a whole when evaluating the environmental impacts of the proposed action, to supplement the FSEIS as necessary, and to modify the NEPA analysis and conclusions, if warranted.254
- 89.
Despite this definitive governing precedent, New York argues that the process of supplementing a final EIS with the hearing record is inconsistent with another regulation, 10 C.F.R. § 51.92, which requires that the Staff prepare a supplemental EIS when there are substantial changes to the proposed action or new and significant information.255 According to 251 See, e.g., Pacific Alaska LNG Company, et al., 9 FERC ¶ 61,334, 61,709 (1979) ([T]he CEQ General Counsel suggests that the matter should also be considered in the FEIS because the Commission proceeding does not provide the broad public review and comment required by NEPA. We disagree. Our final decision will address this issue in detail, based on the record in the proceeding. All interested parties have had an opportunity to contribute to that record, and our decision will therefore be based on full information. This procedure fully comports with the letter and spirit of NEPA.) (citing Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289, 320-21 (1975); Citizens For Safe Power, Inc. v. NRC, 582 F.2d 87 (1st Cir. 1978)).
252 Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 53 (2001) (the hearing process itself allows for additional and more rigorous public scrutiny of the FES than does the usual circulation for comment.) (quoting Limerick, 22 NRC at 707) (emphasis added).
253 See Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. at 46,586, 46,600 (amending 10 C.F.R. § 52.102(c) to cover all hearings under 10 C.F.R. Part 2, without altering the meaning or intent of the regulation).
254 See, e.g., Diablo Canyon, CLI-08-26, 68 NRC at 526; Hydro Res., Inc., CLI-01-04, 53 NRC at 53 ([T]he Presiding Officers incorporation into LBP-99-30 of a staff affidavit on costs and benefits also does not require FEIS supplementation... in an adjudicatory hearing, to the extent that any environmental findings by the Presiding Officer (or the Commission) differ from those in the FEIS, the FEIS is deemed modified by the decision.); Limerick, ALAB-819, 22 NRC at 705-07.
255 See, e.g., New York Rebuttal Position Statement at 31 (NYS000419) (NRC Staff may cure its NEPA deficiencies only by supplementing the FSEIS and circulating the supplement for public review and
46 New York, this regulation requires an FSEIS supplement to address any new and significant information brought to light during the hearing if that information was not addressed in the FSEIS.256
- 90.
New Yorks argument is incorrect for two reasons. First, despite Section 51.92s longstanding existence, the Commission has repeatedly authorized supplementation through the hearing record, most recently in reaffirming and clarifying 10 C.F.R. § 51.102(c) last year.257 Second, [a] basic tenet of statutory construction, equally applicable to regulatory construction,
[is] that a statute should be construed so that effect is given to all its provisions....258 New Yorks claim that Section 51.92a more general regulation governing all EISs prepared by the NRC Staffforbids the supplementation of an EIS through the hearing record would render meaningless the more specific provisions in Section 51.102(c), which governs the resolution of environmental issues following an adjudicatory hearing. Because New Yorks argument would give no effect to Section 51.102(c), it cannot be correct.259
- 91.
None of the federal cases on which New York relies is relevant to interpreting the NRCs regulations in Part 51, nor do these cases establish that those regulations somehow undermine the NEPA public participation process. The only two arguably pertinent cases cited by New York are readily distinguished from the NRCs hearing process by the NRCs Appeal comment.); State of New Yorks Revised Statement of Position Regarding Contention NYS-17B at 7-8 (June 29, 2012) (New York Rebuttal Position Statement for 17B) (NYS000433).
256 See New York Rebuttal Position Statement for NYS-17B at 7-8 (NYS000433).
257 See Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. at 46,586, 46,600.
258 Hydro Res., Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-06-11, 63 NRC 483, 491 (2006).
259 Nor does the supplementation of an EIS through the hearing process necessarily mean that there is new and significant information. On the contrary, supplementation of the record through the Section 51.102 process is appropriate when the record of hearing shows no significant new picture of the environmental impacts of the proposed action. See Hydro Res, Inc., CLI-01-04, 53 NRC at 53.
47 Board decades ago, in decisions that remain binding in this proceeding and thus mandate rejecting New Yorks theory.260
- 92.
First, in the I-291 Why? case, the court invalidated an agency decision because subsequent studieswhich were not circulated for review and comment and were available only to agency officials and not the publicshowed the EIS to be inadequate.261 In ALAB-262, the Limerick Appeal Bound readily distinguished the NRCs public hearing supplementation process from this situation.262 The Appeal Board found significant distinctions between the unpublished supplemental studies that the courts invalidated in I-291 Why? and any supplemental NEPA analysis that may result from the NRCs contested, public adjudicatory proceeding.263 This NRC proceeding is no different, in that the environmental issues have been thoroughly tested through a public, adversarial adjudicatory proceeding.
- 93.
Second, ten years later, the Appeal Board considered the claim that Grazing Fields Farms v. Goldschmidt forbids the amendment of a final environmental statement through the hearing record, but again it found that case to be easily distinguished from the NRC hearing process.264 In Grazing Fields, the First Circuit held that the Federal Highway Administrations reliance on certain studies and memoranda that were in the administrative 260 New Yorks remaining authorities stand for the general principles that NEPA requires public participation in agency decisionmaking and the publication of relevant environmental information. See Minn. Public Interest Research Group v. Butz, 541 F2d 1292 (8th Cir. 1976); Ohio Valley Envtl Coalition v. Hurst, 604 F.Supp.2d 860 (S.D.W.Va. 2009); Custer Cnty. Action Assn v. Garvey, 256 F.3d 1024 (10th Cir. 2001); 40 C.F.R.
§ 1500.1(b); Natural Res. Def Council v. Callaway, 527 F.2d 79 (2d Cir. 1975). These principles are not violated by 10 C.F.R. § 51.102(c) or the application of that regulation in this proceeding.
261 See I-291 Why? Association v. Burns, 517 F.2d 1077, 1081 (2d Cir. 1975).
262 Limerick, ALAB-262, 1 NRC at 163.
263 See id. at 197, n.54.
264 Limerick, ALAB-819, 22 NRC at 706, n.33.
48 record but not incorporated into the EIS was inappropriate.265 Noting that the Grazing Fields decision did not even cite to the First Circuits earlier New England Coalition opinion upholding the NRCs hearing supplementation rule, the Appeal Board approved the licensing boards application of Section 51.102 to explicitly amend the Limerick final environmental statement through its decision.266
- 94.
Once again, this hearing is no different, in that the relevant environmental issues have been fully and rigorously ventilated through a public adjudicatory hearing.267 Certainly, New York, as a full participant in this proceeding, can claim no prejudice to its own interests.268 ALAB-819 therefore controls, and mandates the rejection of New Yorks argument.
- 95.
In summary, Section 51.102(c), which governs the resolution of environmental issues following an adjudicatory hearing, requires the Board to consider the adjudicatory record as a whole when evaluating the environmental impacts of the proposed action, to supplement the FSEIS as necessary, and to modify the NEPA analysis and conclusions, if warranted.269 265 Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1st Cir. 1980).
266 See Limerick, ALAB-819, 22 NRC at 705-07 & n.33 (citing New England Coalition on Nuclear Pollution v.
NRC, 582 F.2d at 94). The Appeal Board also rejected the argument that certain changes made to Part 51 in 1984 required the recirculation of NEPA documents following a hearing, holding that section 51.102 serves the same purpose as its differently worded predecessor, incorporating the adjudicatory decision into the environmental record of decision. See id. As detailed above, the Commission and its Boards have uniformly followed this interpretation of Section 51.102 ever since.
267 See id. at 707.
268 See id.
269 See Final Rule, Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. at 46,586, 46,600.
49 IV.
FACTUAL FINDINGS AND LEGAL CONCLUSIONS A.
Witnesses and Evidence Presented
- 1.
Entergys Expert Witnesses
- 96.
Entergy presented testimony by a panel of four witnesses: Ms. Lori Potts, Dr.
Kevin OKula, Mr. Grant Teagarden, and Mr. Jerry Riggs. These witnesses submitted written direct testimony and gave oral testimony at the evidentiary hearing.270
- 97.
Ms. Potts is a senior consulting engineer to Entergy in the areas of SAMA analysis and fire probabilistic risk assessment in Russellville, Arkansas.271 Ms. Potts has a Bachelors of Science (B.S.) degree in Nuclear Engineering from Pennsylvania State University. She has over thirty years of experience as a technical professional in the nuclear industry in the areas of safety analysis, PRA, deterministic and probabilistic accident and consequence analysis, materials aging management, reactor engineering, and systems engineering. Ms. Potts experience includes performing PRA and severe accident analysis of reactor, emergency system, and containment phenomena under accident conditions. She has participated directly in the preparation of SAMA analyses for eight nuclear plants, including the IPEC SAMA analysis, and has peer reviewed the SAMA analyses for three additional nuclear plants. Ms. Potts is also one of the authors of the industry guidance document for performing SAMA analyses; i.e., NEI 05-01 (NYS000287).
- 98.
Dr. OKula is an Advisory Engineer with URS Professional Solutions LLC in Aiken, South Carolina.272 He obtained his B.S. degree in Applied and Engineering Physics from 270 Entergy Testimony (ENT000003).
271 Ms. Potts professional qualifications are provided in her curriculum vitae (ENT000004) and summarized in her testimony. See Entergy Testimony at 1-3 (ENT000003).
272 Dr. OKulas professional qualifications are provided in his curriculum vitae (ENT000005) and summarized in his testimony. See Entergy Testimony at 3-6 (ENT000003).
50 Cornell University in 1975, and his Masters of Science (M.S.) and Doctorate (Ph.D.)
degrees in Nuclear Engineering from the University of Wisconsin in 1977 and 1984, respectively. Dr. OKula has over thirty years of experience as a technical professional and manager in the areas of safety analysis methods and guidance development, computer code validation and verification, PRA, deterministic and probabilistic accident and consequence analysis applications for reactor and non-reactor nuclear facilities, source term evaluation, risk management, software quality assurance, and shielding. He is a past Chair of the Nuclear Installation Safety Division of the American Nuclear Society (ANS). In addition, he has over twenty years of experience using, applying, and providing training on the MACCS and MACCS2 computer codes, which are used to evaluate the potential impacts of nuclear power plants severe accidents on the public. Dr. OKula also was a member of the Peer Review Committee for the NRCs SOARCA project, which sought to develop updated and more realistic severe accident analyses through improved computer modeling and including significant plant improvements and updates not reflected in earlier NRC assessments.273
- 99.
Mr. Teagarden is the Manager for Consequence Analysis for ERIN Engineering
& Research, Inc. in Campbell, California.274 Mr. Teagarden obtained his B.S. degree in Mechanical Engineering from University of Miami in 1990 and completed the Bettis Reactor Engineering School at the Bettis Atomic Power Laboratory as part of his training in the U.S.
Navy nuclear program. He has fourteen years of experience in the nuclear field, including ten 273 Id. at 4 (A7); NUREG-1935, State-of-the-Art Reactor Consequence Analyses (SOARCA) Report, Draft Report for Public Comment, at 61, 63 (Jan. 2012) (Draft NUREG-1935) (ENT000455). We note that the final version of NUREG-1935 was published in November 2012, after the hearing on NYS-16B was held. The final report does not reflect any significant substantive changes from the draft report. See NUREG-1935, State-of-the-Art Reactor Consequence Analyses (SOARCA) Report (Nov. 2012), available at ADAMS Accession Nos.
ML12332A057 and ML12332A058.
274 Mr. Teagardens professional qualifications are provided in his curriculum vitae (ENT000007) and summarized in his testimony. See Entergy Testimony at 6-8 (ENT000003).
51 years as a manager and technical professional in the areas of PRA, source term analysis, consequence analysis, and nuclear power plant security risk assessment. He also is a member of the ANS and Vice Chair of the writing committee for ANSI/ANS-58.25, Standard for Radiological Accident Offsite Consequence Analysis (Level 3 PRA) to Support Nuclear Installation Applications. Mr. Teagarden has substantial experience using MACCS2 and developing MACCS2 models for nuclear power plants in the United States. He has developed or managed the development of MACCS2 models in support of SAMA analyses for ten nuclear power plant sites.
100.
Mr. Riggs is a Geographic Information System (GIS) Specialist for Enercon Services, Inc.275 He holds a Master of Arts degree in Geography from the University of Oklahoma with an emphasis in Digital Geography (including GIS and Remote Sensing), and a Bachelor of Science degree in Biochemistry from the University of Oklahoma. Mr. Riggs has more than six years of experience as a geographic information systems and remote sensing scientist. He has developed geographic information systems and maps used to support several COL projects, including spatial analysis of satellite imagery, demographic analyses, environmental justice analyses, hazard analyses, and land use-land cover (LULC) analyses. In doing so, he has worked closely with local, state, and federal agencies to collect and develop the required data. Mr. Riggs helped prepare the portions of the IPEC ER and developed demographic information needed to identify minority and low-income populations near IPEC.
Based on his experience, Mr. Riggs is very familiar with U.S. Census Bureau data and related literature.
275 Mr. Riggss professional qualifications are provided in his curriculum vitae (ENT000008) background and summarized in his testimony. See Entergy Testimony at 8-9 (ENT000003).
52 101.
Based on the foregoing, and the respective backgrounds and experience of Ms.
Potts, Dr. OKula, Mr. Teagarden, and Mr. Riggs, the Board finds that all four Entergy witnesses are qualified to testify as expert witnesses relative to the issues raised in NYS-16B.
- 2.
NRC Staffs Expert Witnesses 102.
The NRC Staff presented testimony by a panel of four witnesses: Dr. Nathan E.
Bixler, Dr. S. Tina Ghosh, Mr. Joseph Jones, and Mr. Donald G. Harrison. These witnesses submitted written direct testimony and gave oral testimony at the evidentiary hearing.276 103.
Dr. Bixler holds a Ph.D. in Chemical Engineering from the University of Minnesota (1982) and a B.S. in Chemical Engineering from the University of Toledo (1976).277 Dr. Bixler has been employed by Sandia for more than twenty-eight years as an engineer and computer software researcher in the areas of accident analysis and fluid mechanics. Since 1998, he has been the principal investigator for code development and analysis of nuclear accident consequences for the NRC for multiple codes, including MACCS2, RADTRAD, WinMACCS, SECPOP2000, and MELMACCS. From 2003-2009, Dr. Bixler was the principal instructor for a weekly NRC training program on accident consequence analysis, which emphasized (among other things) the use of the WinMACCS/MACCS2 code system for estimating health and economic consequences. Dr. Bixler has authored or co-authored over four dozen publications including, for example, MACCS2 Consequence Calculations for a Postulated Short-Term Station Blackout at a Pressurized Water Reactor with an Ice Condenser Containment and a Boiling Water Reactor with a Mark III Containment, SAND2006-0632 (2006).
276 NRC Staff Testimony (NRC000041); Oct. 22, 2012 Tr.
277 Dr. Bixlers professional qualifications are provided in his statement of qualifications (NRC000042) and summarized in his testimony. See NRC Staff Testimony at 1-3 (A1-2) (NRC000041).
53 104.
Dr. Ghosh holds a Ph.D. in Nuclear Engineering and an M.S. in Technology &
Policy from the Massachusetts Institute of Technology (2004 and 2000, respectively), as well as a B.S.E. in Civil Engineering and Operations Research from Princeton University (1995).278 When completing her doctorate, she was a fission engineering major, specializing in probabilistic risk assessment. She has worked for the NRC for over six years in multiple roles, including most recently as the NRC lead for the uncertainty analysis of the SOARCA Project. While serving as a Reactor Engineer in the Division of Risk Assessment, Dr. Ghosh reviewed SAMA analyses for nuclear power plant license renewal applications. While serving as a Systems Performance Analyst in the Division of High-Level Waste Repository Safety, Dr. Ghosh evaluated performance assessments and risk analyses in a license application for a proposed high-level waste/spent nuclear fuel repository. Dr. Ghosh has published several papers, including one entitled Perspectives on Severe Accident Mitigation Alternatives for U.S. Plant License Renewal (2009).
105.
Mr. Jones has been employed by Sandia National Laboratories since 1989 and been named a Distinguished Member of the Technical Staff.279 He holds a B.S. degree in Civil Engineering from New Mexico State University and is a Registered Professional Engineer in New Mexico. He has nearly thirty years of experience in engineering and analysis, and has been involved in radiological emergency preparedness, consequence management, and radioactive materials cleanup activities both nationally and internationally. He is the Sandia project manager for the NRCs SOARCA project, and the Sandia emergency preparedness technical lead for that 278 Dr. Ghoshs professional qualifications are provided in her statement of qualifications (NRC000043) and summarized in her testimony. See NRC Staff Testimony at 1-3 (A1-2) (NRC000041).
279 Mr. Jones professional qualifications are provided in his statement of qualifications (NRC000044) and summarized in his testimony. See NRC Staff Testimony at 1-4 (A1-2) (NRC000041).
54 same project. Mr. Jones also has managed project teams in the decontamination and decommissioning of radioactively-contaminated facilities at Sandia and the development of advanced decontamination techniques for radioactive materials. In that capacity, he served as project manager for a Department of Homeland Security project involving the development of removable coatings for use in containing contamination from radiological dispersal devices. Mr.
Jones also served as project manager for the Defense Advanced Research Projects Agency (DARPA) project on development of strippable coatings for decontamination of Cs, Sr, and Co. He holds a patent for a strippable coating technology designed to contain the spread of radioactive contamination and facilitate decontamination efforts.
106.
Mr. Harrison is the Branch Chief for Probabilistic Risk Assessment Licensing Branch (APLA) of the Division of Risk Assessment (DRA) within the Office of Nuclear Reactor Regulation (NRR) at the NRC.280 APLA had the responsibility for the license renewal SAMA reviews and associated development of this aspect of the EIS (as well as most risk-informed rulemaking and license application reviews that involved the use of probabilistic risk assessments) when Entergy submitted the IPEC license renewal application in April 2007.281 Mr. Harrison holds a B.S. degree in Nuclear Engineering from the University of Missouri-Rolla.
He has over twenty-five years of technical expertise in PRA and risk-related activities. Mr.
Harrison served as a Senior Reliability and Risk Analyst in the NRCs PRA Licensing Branch for seven years before becoming Branch Chief in 2007. Before joining the NRC in 2000, Mr.
Harrison held numerous engineering, consulting, and project management positions with private 280 Mr. Harrisons professional qualifications are provided in his statement of qualifications (NRC000045) and summarized in his testimony. See NRC Staff Testimony at 2-4 (A1-2) (NRC000041).
281 Due to an internal reallocation of review responsibilities and associated staff resources within the Division of Risk Assessment, the license renewal SAMA reviews were recently reassigned to another branch, the Accident Dose Branch. Id. at 4 (A2) (NRC000041). However, Mr. Harrison has retained responsibility for those SAMA reviews that were performed under APLA, including the IPEC SAMA analysis review. Id.
55 sector companies providing various services to the U.S. Department of Energy and national laboratories. He also worked as a Research Engineer at the Pacific Northwest National Laboratory in Richland, Washington.
107.
Based on the foregoing, and the respective backgrounds and experience of Dr.
Bixler, Dr. Ghosh, Mr. Jones, and Mr. Harrison, the Board finds that all four Staff witnesses are qualified to testify as expert witnesses relative to the issues raised in NYS-16B.
- 3.
New York States Expert Witness 108.
New York presented testimony by Dr. Stephen Sheppard. Dr. Sheppard submitted written direct and rebuttal testimony and gave oral testimony at the evidentiary hearing.282 109.
Dr. Sheppard is a Professor of Economics at Williams College in Williamstown, Massachusetts.283 He holds a Ph.D. and a Masters Degree in economics from Washington University in St. Louis, Missouri, and a Bachelors of Science Degree in economics from the University of Utah in Salt Lake City, Utah. Since 1976, he has conducted research, written, lectured, and taught on topics such as microeconomic theory, urban economics, land use regulation, housing markets, and environmental economics. Dr. Sheppard has worked extensively with population data, including U.S. Census Bureau data, and is knowledgeable in population calculation and modeling.284 110.
Based on the foregoing, and Dr. Sheppards background and experience, the Board finds that Dr. Sheppard is qualified to testify as an expert witness on issues related to the 282 See New York Direct Testimony (NYS000207); New York Rebuttal Testimony (NYS000404); Oct. 22, 2012 Tr.
283 Dr. Sheppards professional qualifications are provided in his statement of qualifications (NYS000208) and summarized in his testimony. See New York Direct Testimony at 1:18-2:22 (NYS000207).
284 Id.
56 development and adequacy of the 2035 population estimate used as an input to the IPEC SAMA analysis. This finding is consistent with Dr. Sheppards testimony that he is an economist who has expertise in estimating populations and who has worked frequently with census and other demographic data.285 However, Dr. Sheppard testified that he does not have experience in the nuclear field, using the MACCS or MACCS2 computer codes, or performing SAMA analyses,286 and that [t]he technical details of the use of the MACCS2 model in the SAMA analysis are not within [his] expertise.287 Therefore, the Board accords no weight to any opinions or criticisms that Dr. Sheppard offered concerning the adequacy of the IPEC SAMA analysis methodology unrelated to population data inputs, including Entergys use and application of the MACCS2 code.
B.
Entergys 2035 Population Estimate and Its Use in the IPEC SAMA Analysis
- 1.
The SAMA Analysis Methodology 111.
Before addressing New Yorks specific claims, we discuss the IPEC SAMA analysis methodology, including the MACCS2 inputs challenged by New York.288 As stated above, a SAMA analysis is intended to identify potential changes to a nuclear power plant, or its operations, that could reduce the already-low risk (the likelihood and/or the impact) of a severe accident, for which the benefit of implementing the change outweighs the cost of 285 New York Rebuttal Testimony at 2:19-20 (NYS000404).
286 Id.
287 Id. at 37:12-13; see also Oct. 22, 2012 Tr. at 2406:8-15 (Sheppard) (agreeing that he has no expertise in SAMA analyses).
288 The parties pre-filed testimony on NYS-12C contains extensive discussions of the SAMA analysis methodology. See Testimony of Entergy Witnesses Lori Potts, Kevin OKula, and Grant Teagarden on Consolidated Contention NYS-12C (Severe Accident Mitigation Alternative Analysis) at 16-46 (A27-A60)
(Mar. 30, 2012) (ENT000450); NRC Staff Testimony at 19-31 (A8-A25) (NRC000041); Pre-Filed Written Testimony of Dr. François J. Lemay Regarding Consolidated NYS-12-C (NYS-12/12-A/12-B/12-C) at 10:204-19:511 (Dec. 21, 2011) (NYS000241). Also, during the evidentiary hearing on NYS-12C, the Board requested an overview of the SAMA analysis methodology to lay the groundwork for further questions. The parties witnesses provided that overview on the first hearing day. See generally Oct. 17, 2012 Tr. at 1899:14-1919:14.
57 implementation.289 Changes to the plant that could reduce the risk of a severe accident include hardware modifications or operational changes (e.g., improved procedures and augmented training of control room and plant personnel).290 These potential changes are called SAMAs or SAMA candidates.291 112.
A SAMA analysis models numerous accident release conditions that could, based on probabilistic analysis, occur at any time under varying weather conditions during a one-year period to calculate the mean annual consequences of a severe accident for the entire 50-mile radius area of interest.292 As such, a SAMA analysis makes use of best estimate values and involves an averaging of potential consequences.293 113.
The industry has developed a guidance document, NEI 05-01, Rev. A (NEI 05-
- 01) to facilitate the preparation of complete SAMA analyses.294 NEI 05-01 was developed by several SAMA experts, including Ms. Potts, and was issued by NEI in November 2005.295 It identifies the information an applicant should include in a SAMA analysis supporting a license 289 Id. at 1900:9-23 (Teagarden); Entergy Testimony at 20-21 (A43) (ENT000003); NRC Staff Testimony at 19 (A8) (NRC000041).
290 Oct. 17, 2012 Tr. at 1900:9-23 (Teagarden); Entergy Testimony at 21 (A43) (ENT000003); NRC Staff Testimony at 20 (A11) (NRC000041).
291 Oct. 17, 2012 Tr. at 1910:3-23 (Teagarden); Entergy Testimony at 21 (A43) (ENT000003); NRC Staff Testimony at 19 (A9) (NRC000041).
292 Oct. 17, 2012 Tr. at 1927:16-24 (Teagarden) (Its important to recognize that a SAMA analysis is a spatially average[d] and time averaged analysis [that] looks at a range, a spectrum, of postulated releases that could occur using meteorology, a whole year of meteorology, looking at different weather sequences and determining an average result from all of those.). See also Entergy Testimony at 22 (A46) (ENT000003); NRC Staff Testimony at 25-26 (A19) (NRC000041).
293 Oct. 22, 2012 Tr. at 2460:6-8, 18-19 (Teagarden) (In general, we seek for the SAMA analysis to pursue a best estimate approach); id. at 2462:11-12 (Ghosh) (The goal is to do a best estimate analysis.); see also Oct. 17, 2012 Tr. at 1907:3-7 (Teagarden) (A SAMA analysis is designed to be what we say [is] a best estimate analysis, a representative average basis. And to present that average basis you need to look at both ends of the spectrum.).
294 Oct. 17, 2012 Tr. at 1926:5-8 (Teagarden); Entergy Testimony at 21-22 (A44-A45) (ENT000003) (citing NEI 05-01 (NYS000287)).
295 Oct. 17, 2012 Tr. at 1926:8-9 (Teagarden); Entergy Testimony at 21 (A44) (ENT000003).
58 renewal application.296 NEI 05-01 draws from experience gained from prior SAMA analyses and NRC Staff reviews thereof.297 The Staff has specifically endorsed NEI 05-01 and recommended that applicants for license renewal follow the guidance provided in NEI 05-01, Revision A when preparing their SAMA analyses.298 114.
A SAMA analysis involves four major sequential steps.299 In brief, the first step of a SAMA evaluation is to identify and characterize the leading contributors to core damage frequency (CDF) and offsite risk based on a plant-specific risk study.300 The second step in the process is to identify candidate SAMAs to mitigate these risk contributors.301 In the third step, an initial screening is performed to determine which SAMAs cannot be cost-beneficial.302 For example, if the cost of implementing a SAMA is higher than the benefit of the elimination of all risk from operating the plant (called the maximum attainable benefit), then that SAMA is screened out.303 In the final step, a benefit assessment is performed for each SAMA that survives 296 Oct. 17, 2012 Tr. at 1926:10-14 (Teagarden); Entergy Testimony at 21 (A44) (ENT000003).
297 Entergy Testimony at 21 (A44) (ENT000003).
298 Oct. 17, 2012 Tr. at 1926:10 (Teagarden); Entergy Testimony at 21-22 (A45) (ENT000003). (citing Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses, 72 Fed. Reg. 45,466, 45,467 (Aug. 14, 2007)
(NEI 05-01, Revision A, describes existing NRC regulations, and facilitates complete preparation of SAMA analysis submittals.)). In reviewing a license renewal applicants SAMA analysis, the NRC Staff uses the guidance contained in NUREG-1555, Standard Review Plan for Environmental Reviews for Nuclear Power Plants - Supplement 1: Operating License Renewal, Sec. 5.1.1 (Severe Accident Mitigation Alternatives) (Oct.
1999) (ENT00019B).
299 See October 17, 2012 Tr. at 1900:24-1919:14 (Teagarden). See also Entergy Testimony at 22-23 (A46)
(ENT000003); NRC Staff Testimony at 19 (A9) (NRC000041); NEI 05-01 at 2 (NYS000287).
300 See Oct. 17, 2012 Tr. at 1900:25-1910:2 (Teagarden); Entergy Testimony at 22-23 (A46) (ENT000003); NRC Staff Testimony at 19 (A9), 21 (A12) (NRC000041).
301 See Oct. 17, 2012 Tr. at 1910:3-15 (Teagarden); Entergy Testimony at 22-23 (A46) (ENT000003); NRC Staff Testimony at 19-20 (A9-10) (NRC000041).
302 See Oct. 17, 2012 Tr. at 1910:16-1911:3 (Teagarden); Entergy Testimony at 22-23 (A46) (ENT000003); NRC Staff Testimony at 19-20 (A9-11) (NRC000041).
303 See Oct. 17, 2012 Tr. at 1911:4-12 (Teagarden); Entergy Testimony at 22-23 (A46) (ENT000003); NRC Staff Testimony at 19 (A9) (NRC000041).
59 the initial screening to address how the change would affect relevant risk measures (i.e., the reduction gained in core damage frequency, offsite population dose risk, and offsite economic cost risk).304 An implementation cost assessment also is performed for each SAMA.305 To identify potentially cost-beneficial SAMAs, the net benefit of each SAMA is estimated and compared to its estimated implementation cost.306 115.
Entergy followed the four-step approach described above in performing both its original April 2007 SAMA analysis and December 2009 revised SAMA analysis (in which it used corrected meteorological data).307 The Staffs detailed review of Entergys SAMA analysis is summarized in Section 5.2 of the FSEIS and documented in full in Appendix G of the FSEIS.308 116.
As stated earlier, Entergy used the MACCS2 computer code to perform the IPEC SAMA analysis.309 Dr. OKula and Mr. Teagarden testified that MACCS2 is the only NRC-recognized computer code available in the United States that is capable of performing the off-site consequence assessments necessary for a SAMA analysis, including determination of population 304 Entergy Testimony at 22-23 (A46) (ENT000003); NRC Staff Testimony at 19 (A9), 21-22 (A13-14)
(NRC000041).
305 Entergy Testimony at 22-23 (A46) (ENT000003); NRC Staff Testimony at 19 (A9), 23 (A15) (NRC000041).
306 Entergy Testimony at 22-23 (A46) (ENT000003); NRC Staff Testimony at 19 (A9) (NRC000041).
307 See Indian Point Energy Center License Renewal Application, App. E, at 4-48 to 4-50 (Apr. 2007) (ER)
(ENT00015B); NL-09-165, Attach. 1 at 3-9 (ENT000009). NEI 05-01 also recommends that applicants perform sensitivity analyses that evaluate how changes to certain assumptions and uncertainties in the SAMA analysis would affect the cost-benefit analysis outcome. See Entergy Testimony at 22-23 (A46) (ENT000003);
NEI 05-01 at 30-32 (NYS000287). As documented in the FSEIS, Entergy performed a number of sensitivity analyses. See FSEIS, Vol. 3, App. G at G-18, G-21, G-40, G-45 to G-47, G-49 (NYS00133I) (discussing Entergys various sensitivity analyses, including cases addressing use of a 3 percent discount rate (instead of 7 percent), use of a longer plant life, tourism and business losses, and an increased probability of a thermally induced steam generator tube rupture (TI-SGTR)).
308 See FSEIS, Vol. 1 at 5-1 to 5-13 (NYS00133B); FSEIS, Vol. 3, App. G at G-1 to G-51 (NYS00133I).
309 See Entergy Testimony at 10 (A18) (ENT000003) (discussing input of IPEC population data into MACCS2 code); Oct. 17, 2012 Tr. at 1913:7-8 (Teagarden) (Entergy used the MACCS code which I believe every applicant I'm aware of has always used the MACCS code.).
60 dose and economic cost consequences.310 Dr. OKula further stated that, to his knowledge, all SAMA analyses for U.S. nuclear power plants seeking license renewal have used the MACCS2 code or one of its predecessors.311 117.
As used in the IPEC SAMA analysis, MACCS2 estimates plant-specific off-site population doses and economic consequences that could result from the postulated accidental release of radioactive materials to the atmosphere during a severe accident at a nuclear power plant.312 MACCS2 executes three modules in sequence to calculate consequence values necessary for a SAMA analysis: the ATMOS, EARLY, and CHRONC modules.313 118.
Population data are used as inputs to the EARLY and CHRONC modules.314 EARLY uses population data and other inputs to calculate radiation dose consequences due to radiation exposure in the emergency phase (i.e., the first seven days from the time of release).315 CHRONC uses population data and other inputs to calculate: (1) the long-term radiation doses due to exposure after the emergency phase; and (2) the economic impacts from each accident sequence including the economic cost of short-term and long-term protective actions.316 119.
Entergys experts explained that in calculating severe accident consequences, MACCS2 takes into account variations in population density across the 50-mile radius SAMA 310 Entergy Testimony at 24 (A48) (ENT000003).
311 Id. at 5 (A8); see also Oct. 17, 2012 Tr. at 1913:7-8 (Teagarden).
312 Entergy Testimony at 23 (A47) (ENT000003).
313 Id. at 24 (A49) (citing NUREG/CR-6613, Code Manual for MACCS2, Vol. 1, Users Guide at 2-1 (May 1998)
(MACCS2 Users Guide) (NYS000243)).
314 Id.
315 Id.
316 Id.
61 analysis region.317 They further explained that to develop statistical distributions of consequence measures that meaningfully depict the range and probability of consequences for the reactor in question, a SAMA analysis must examine numerous possible combinations of representative sets of radiological source terms, weather sequences, and exposed populations.318 120.
To accomplish this task, Dr. OKula and Mr. Teagarden explained that MACCS2 uses a polar-coordinate spatial grid to depict the 50-mile radius region surrounding the facility.
Using site-specific information, the MACCS2 user defines the polar-coordinate grid population distribution within the SAMA analysis region and provides the meteorological data input file.319 Many weather sequences are evaluated, and the mean annual consequence is calculated for each representative source term over the 50-mile radius SAMA region surrounding the reactor facility.320 121.
As shown in Figure 2 of Entergys testimony, the 50-mile radius region is divided into a polar coordinate grid with IPEC at its center.321 For the IPEC site, this polar grid is comprised of a series of radial rings centered on the site with boundaries at radii of 0.2, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 20, 30, 40, and 50 miles.322 Each of the radial rings is transected by sixteen wind 317 Id. at 24-25 (A50); Oct. 17, 2012 Tr. at 1929:5-9 (Teagarden) ([T]he different population densities around the site are used as part of the evaluation.).
318 Entergy Testimony at 25 (A50) (ENT000003); see also NRC Staff Testimony at 25-26 (A19) (NRC000041).
319 Entergy Testimony at 25 (A50) (ENT000003); NRC Staff Testimony at 25-26 (A19) (NRC000041).
320 Entergy Testimony at 25 (A50) (citing NEI 05-01, Rev. A at 15 (NYS000284)); NRC Staff Testimony at 25-26 (A19) (NRC000041); Oct. 17, 2012 Tr. at 1927:14-1928:12 (Teagarden).
321 Entergy Testimony at 25-26 (A51) (ENT000003).
322 Id.; Oct. 17, 2012 Tr. at 1929:18-19 (Teagarden).
62 direction sectors (e.g., NW, SSE, etc.) emanating from the plant.323 All of the MACCS2 calculation results are stored on the basis of this polar coordinate grid system.324 122.
Using the estimated population and other site-specific and region-specific inputs, MACCS2 calculates the population dose and economic cost for each individual grid spatial element affected by the simulated radiological release and then sums the results over all of the grid spatial elements. This process yields a distribution of population dose results and a distribution of off-site economic cost results for each postulated accident scenario for the particular region of interest.325 Each result is weighted by its probability of occurrence.326 123.
The off-site population dose and off-site economic cost consequence values are multiplied by the calculated severe accident frequency results obtained from the plant-specific PRA models.327 This calculation results in what the Entergy and NRC Staff experts described as the key risk metrics or values of interest for determining potentially cost-beneficial SAMAs: (1) population dose risk (PDR) in units of person-rem/year; and (2) the off-site economic cost risk (OECR) in units of dollars/year.328 The individual PDRs and OECRs for the different accident scenarios are summed to determine the overall PDR and overall OECR for the SAMA analysis.329 323 Entergy Testimony at 25-26 (A51) (ENT000003); Oct. 17, 2012 Tr. at 1929:16-18 (Teagarden).
324 Entergy Testimony at 25-26 (A51) (ENT000003) (citing MACCS2 Users Guide at 2-3 (NYS000243)).
325 Id.; Oct. 17, 2012 Tr. at 1928:15-22 (Teagarden).
326 Entergy Testimony at 26 (A52) (ENT000003) (citing MACCS2 Users Guide at 2-19 (NYS000243)).
327 Id. at 27 (A53) (citing NL-09-165, Attach. 1, at 6 (ENT000009)); Oct. 17, 2012 Tr. at 1913:9-11, 1928:16-21 (Teagarden).
328 Entergy Testimony at 27 (A53) (citing NL-09-165, Attach. 1, at 6 (ENT00009)) (ENT000003); see also NRC Staff Testimony at 21-22 (A13), 29 (A22) (NRC000041).
329 Entergy Testimony at 27 (A53) (citing NL-09-165, Attach. 1, at 6 (ENT00009)) (ENT000003).
63 124.
To identify SAMAs that may be cost-beneficial, the net value or benefit of each mitigation alternative, or SAMA, is estimated in accordance with a method described in NRC guidance documents and compared with the estimated cost of implementing the proposed SAMA.330 The results of the cost benefit analysis of IPEC SAMA candidates are documented in Entergys December 2009 revised SAMA analysis and in Appendix G to the Staffs FSEIS.331 Entergy identified a total of 22 SAMA candidates as potentially cost-beneficial.332
- 2.
Development of the 2035 Population Estimate 125.
Entergys experts testified that Entergy developed the 2035 population estimate used in the IPEC SAMA analysis in accordance with the guidance in NEI 05-01, which states:
Typically, with increasing population, the predicted population is estimated for a year within the second half of the period of extended operation. Extrapolation to a later date, and therefore a larger population, adds conservatism to the analysis.333 126.
The year 2035 is the last year of the IP3 extended operating period and two years after the end of the IP2 extended operating period.334 As explained by Ms. Potts, by choosing 2035, Entergy used a more conservative approach.335 NRC Staff witness Dr. Bixler agreed, stating that extrapolating all the way out to 2035 leads to significant conservatism in the final 330 See id. at 27 (A54) (citing NUREG/BR-0184, Regulatory Analysis Technical Evaluation Handbook (Jan.
1997) (NUREG/BR-0184) (ENT000010A-D); NUREG/BR-0058, Regulatory Analysis Guidelines of the U.S.
Nuclear Regulatory Commission, Rev. 4 (Sept. 2004) (ENT000013)); see also NRC Staff Testimony at 23 (A15) (NRC000041) (describing process by which the cost effectiveness of a SAMA is evaluated); Oct. 17, 2012 Tr. at 1910:16-1911:1 (Teagarden).
331 See NL-09-165, Attach. 1 at 31-32 (ENT000009); FSEIS, Vol. 3, at G-42 to -48 (NYS00133I).
332 See NL-09-165, Attach. 1 at 32 (ENT000009); FSEIS, Vol. 3, App. G at G-49 (NYS00133I)..
333 Entergy Testimony at 31-32 (A62) (ENT000003) (quoting NEI 05-01 at 13 (NYS000287)). See also Oct. 22, 2012 Tr. at 2454:21-2455:3 (Potts) (By virtue of using 2035, we have added considerable conservatism to the analysis....).
334 Entergy Testimony at 31-32 (A62) (ENT000003) (citing ER at 1-1 (ENT000015A)).
335 Oct. 22, 2012, Tr. at 2454:25-2455:3 (Potts) (By virtue of using 2035, we have added considerable conservatism to the analysis that would account for any minor variations in the projected numbers.).
64 answer.336 Mr. Teagarden clarified at hearing that projecting the population out to 2035 instead of 2025 (the midpoint of the IP3 period of extended operation) adds approximately 500,000 persons to the population estimate due to the population growth that is projected to occur in the 50-mile SAMA analysis region during the 10-year period from 2025 to 2035.337 127.
The details of Entergys 2035 population projection are presented in a report prepared by Enercon, which assisted in the development of the year 2035 population projection used in the IPEC SAMA analysis.338 They are further discussed and evaluated in Appendix G of the Staffs FSEIS.339 Broadly speaking, the process included three major steps: (1) determining the year 2000 permanent population within a 50-mile radius of IPEC; (2) projecting that permanent population out to the year 2035 based on the surrounding states population projections; and (3) accounting for the transient population within the SAMA analysis region.340
- a.
Estimation of Year 2000 Base Population for the 50-Mile Radius Region 128.
In the first step, Entergy determined which counties are, in whole or in part, within 50 miles of IPEC.341 For those counties that are not entirely within the 50-mile radius, Entergy determined the percentage of land area in the county that is within the 50-mile radius of IPEC.342 Entergy then used population estimates from state and local governments, based on officially-reported U.S. Census block-level data for the year 2000, to determine the population of 336 Id. at 2456:8-9 (Bixler).
337 Id. at 2460:13-17 (Teagarden).
338 Entergy Testimony at 32 (A63) (ENT000003) (citing Enercon Services, Inc., Site Specific MACCS2 Input for Indian Point Energy Center, Rev. 1 (Dec. 1, 2009) (NYS000211) (Enercon Report)).
339 FSEIS, Vol. 3, at G-24 to -25 (NYS00133I).
340 Id.; see also Oct. 22, 2012 Tr. at 2429:2-10 (Riggs).
341 Entergy Testimony at 32 (A64) (citing Enercon Report at 1-1 to 1-3 (NYS000211)).
342 Id. (citing Enercon Report at 1-3 (NYS000211)).
65 each county.343 Entergy estimated the year 2000 permanent population within the 50-mile radius region to be 16,914,178.344 129.
As documented in the FSEIS and discussed in the Staffs pre-filed testimony, Sandia used the SECPOP2000 computer program, which it previously developed for the NRC, to estimate the population based on 2000 U.S. Census Bureau data.345 SECPOP2000 calculates estimated population and economic data about any point (specified by longitude and latitude) that lies within the continental United States.346 The permanent population of the SAMA analysis region for the year 2000 estimated by SECPOP2000 is 16,800,272,347 which compares well with (and is slightly less than), Entergys year 2000 estimate of the permanent population (16,914,178).348
- b.
Projection of the 2000 Permanent Population to 2035 130.
In the second step noted above, Entergy obtained available county-level permanent population projection estimates from the New York Statistical Information System for the period 2000 to 2030, the New Jersey Department of Labor and Workforce Development for the period 2000 to 2025, the Connecticut State Data Center for the period 2000 to 2020, and the Pennsylvania State Data Center for the period 2000 to 2020.349 For each county, Entergy used these state population projections using methods described in the Enercon Report to extrapolate 343 Id. (citing Enercon Report at 2-1 (NYS000211)); see also Oct. 22, 2012 Tr. at 2429:5-6 (Riggs) (listing population projection information on the county level from the states as an input to the population estimate).
344 FSEIS, Vol. 3, App. G at G-25 (NYS000133I).
345 Id.
346 See Entergy Testimony at 37 (A68) (ENT000003).
347 FSEIS, Vol. 3, at G-25 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
348 FSEIS, Vol. 3, at G-25 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
349 Entergy Testimony at 33 (A65) (ENT000003) (citing Enercon Report at 2-1 (NYS000211)).
66 the 2000 permanent population from the census data to 2035 permanent population values.350 Entergy projected the permanent population in 2035 to be 18,879,657, an increase of 12.43%.351 131.
Entergy projected total permanent populations to the year 2035 for 25 of the 28 counties that are within or encroach upon the limit of 50 miles from IPEC using linear extrapolation.352 Entergy used polynomial regression for projecting the population for the remaining three countiesNew York (Manhattan), Rockland, and Westchester counties because the New York State data showed a decrease in the population of these counties.353 For example, the population for New York County was projected to increase from 2000 to 2020, and then decrease from 2020 to 2030 (resulting in a peak in population in 2020).354 132.
In his rebuttal testimony, Dr. Sheppard asserted that [a] conservative estimate would include the peak population during the proposed relicensing period.355 He stated that NEI 05-01 suggests that a licensee make a conservative population estimate, looking to a year within the relicensing period when the population is at its highest.356 Specifically, he quoted the following text from NEI 05-01:
350 Id. (citing Enercon Report at 2-1 to -2 (NYS000211)).
351 FSEIS, Vol. 3, at G-25 (NYS00133I).
352 Enercon Report at 2-1 (NYS000211); NRC Staff Testimony at 94-95 (A86) (NRC000041); FSEIS, Vol. 3, at G-24 to -25 (NYS000133I); see also Oct. 22, 2012 Tr. at 2433:21-24 (Riggs) ([I]t's a straight line or linear regression equation that we use because the data fit that.).
353 Enercon Report at 2-1 (NYS000211); NRC Staff Testimony at 94-95 (A86) (NRC000041) (citing Site-Specific MACCS2 Input Data for Indian Point Energy Center, Vol. 1, at 2-1 to -2 tbl. 2.1 (NRC000061); FSEIS, Vol. 3, at G-24 to -25 (NYS000133I); see also Oct. 22, 2012 Tr. at 2431:20-2432:6 (Riggs) ([I]n order to obtain the best possible estimate that corresponds directly with what the state is saying, we used a second order of polynomial regression to fit the points to a line that we can then extend out to 2035.).
354 NRC Staff Testimony at 94-95 (A86) (NRC000041).
355 New York Rebuttal Testimony at 7:1-3 (NYS000404); see also Oct. 22, 2012 Tr. at 2436:5-2437:7 (Sheppard)
([T]he principle of conservatism in developing these population projections suggest that if population is declining in a particular region that an intermediate level population or perhaps the peak population during the proposed relicense period should be used.).
356 New York Rebuttal Testimony at 6:7-10 (NYS000404); see also Oct. 22, 2012 Tr. at 2436:5-2437:7 (Sheppard).
67 Typically, with increasing population, the predicted population is estimated for a year within the second half of the period of extended operation. Extrapolation to a later date, and therefore a larger population, adds conservatism to the analysis. Of course, if a population reduction is projected, extrapolation to an earlier date would be more reasonable.357 133.
But as Entergys and the Staffs witnesses explained, by extrapolating the population within the SAMA analysis region out to 2035 (i.e., the last year of the IP3 extended operating period and two years after the end of the IP2 extended operating period), Entergy used an approach that is significantly more conservative than that recommended in NEI 05-01, because it adds approximately a half a million people to the population estimate due to the population growth that is projected to occur in the SAMA analysis region during the 10-year period from 2025 to 2035.358 134.
Entergys and the Staffs witnesses further testified that using the pre-2035 peak populations for the three counties would increase Entergys population estimate by approximately 60,000 peoplea number not disputed by Dr. Sheppard359which is less than 1 percent of Entergys current 2035 population estimate of approximately 19.2 million people, and only 12 percent of the additional 500,000 people that Entergy included in its population estimate 357 New York Rebuttal Testimony at 6:11-18 (NYS000404) (quoting NEI 05-01 at 13 (NYS000287)).
358 See Oct. 22, 2012 Tr. at 2454:15-2455:3 (Potts) (By virtue of using 2035, we have added considerable conservatism to the analysis that would account for any minor variations in the projected numbers.); id. at 2456:7-9 (Bixler) (I think it is correct to say that extrapolating all the way out to 2035 leads to significant conservatism in the final answer.); id. at 2460:13-17 (Teagarden) (The Entergy analysis could have used the date such as 2025 and instead they choose to use a date of 2035. And that adds in something above a half a million people due to the growth that occurs in the 50 mile region over that last ten year period.); id. at 2500:16-20 (Teagarden) (Entergy has included several conservatisms going to the Year 2035 which even exceeds the life-extension date for Indian Point Plant 2 by including the transients for the full 50-mile region.).
359 See id. at 2463:4-8 (Sheppard) (I understood Mr. Teagarden and others to essentially point out that the change in population estimates associated with using or not using the peak year is I take to be about 65,000. I agree with that number.).
68 by projecting the population out to 2035 (instead of 2025).360 This does not amount to a non-conservatism in Entergys SAMA analysis. As Mr. Teagarden explained, if the total population of the 50-mile radius SAMA analysis region had peaked prior to 2035, then the more conservative approach might have been to extrapolate to an earlier year.361 But that is not the case here, because only three counties are projected to have a slight peak in population before 2035.362 As Mr. Teagarden put it, The delta associated with that peak is of the order of 60,000 individuals which is a very small amount in the total population.363 135.
As Mr. Teagarden and Dr. Ghosh emphasized, SAMA analysis generally makes use of best-estimate values.364 The use of conservative or worst-case values is not required by NEPA or the NRC-approved guidance in NEI 05-01.365 By using the polynomial regression method for these three counties, Entergy reasonably accounted for the decline projected by New York State to occur in the population by 2030 to obtain a best-estimate value of the 2035 population.366 Finally, as discussed later in Section IV.C.4 below, Entergys MACCS2 sensitivity analysis shows that use of the peak populations for the three counties at issue (i.e., the 360 Id. at 2461:12-15 (Teagarden) (The delta associated with that peak is of the order of 60,000 individuals which is a very small amount in the total population.); id. at 2461:22-25 (Jones) ([T]he delta is only on the order of about 60,000 people).
361 Id. at 2461:7-9 (Teagarden) ([T]he total population for the 50 mile analysis region say for the final year was less than the total for an earlier year....).
362 Id.
363 Id.
364 See id. at 2460:18-19 (Teagarden) ([W]e seek for the SAMA analysis to pursue a best estimate approach.);
see id. at 2462:11-12 (Ghosh) (The goal is to do a best estimate analysis.).
365 See Pilgrim, CLI-12-15, slip op. at 10 (citing Methow Valley Citizens Council, 490 U.S.at 354-56 (A NEPA mitigation alternatives analysis need not reflect the most conservativeor worst caseanalysis.). See also Oct. 22, 2012 Tr. at 2462:11-15 (The goal is to do a best estimate analysis. But its true that many applicants choose a conservative estimate even though what is actually expected or required is really just a best estimate of the population.).
366 See id. at 2431:20-2432:6 (Riggs) ([I]n order to obtain the best possible estimate that corresponds with what the state is saying, we used a second order of polynomial regression to fit the points to a line that we can then extend out to 2035.).
69 addition of approximately 60,000 people to the total projected population entered into MACCS2) does not materially affect the SAMA analysis cost-benefit conclusions.
136.
The supplemental analyses performed by Sandia, as described in the FSEIS and Mr. Jones testimony, further confirm the reasonableness of Entergys population projections.367 First, Sandia evaluated the projected permanent population growth rate from 2000 to the 2035, which Entergy estimated to be 12.43% (i.e., an increase from 16,914,178 to 18,879,657).368 Sandia used the U.S. Census Bureaus projected growth rate from 2000 to 2008 for the Northeastern region of the United States. During those eight years, the projected growth is 2.344%. Based on this number, the annualized growth rate for the Northeastern region of the U.S. is 0.29%.369 Assuming a constant growth rate between the years 2000 and 2035 results in an estimated growth for the Northeastern region of 10.67%, which is lower than Entergys value of 12.43%.370 137.
Sandia performed a second evaluation using the same data as Entergy for the 28 counties surrounding IPEC, but using a simpler but more conservative method than Entergy for extrapolating the population out to 2035.371 It calculated an annualized growth rate starting from the 2000 census values to the final year projected by each of the states, and then assumed this growth rate to continue through 2035.372 Using this approach, Sandia estimated the growth rate for the 28 counties to be 15.98%, which is marginally larger than Entergys projected growth 367 See FSEIS, Vol. 3, App. G at G-25 (NYS000133I); NRC Staff Testimony at 96-97 (A88) (NRC000041).
368 FSEIS, Vol. 3, App. G at G-25 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
369 FSEIS, Vol. 3, App. G at G-25 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
370 FSEIS, Vol. 3, App. G at G-25 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
371 FSEIS, Vol. 3, App. G at G-25 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
372 FSEIS, Vol. 3, App. G at G-25 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
70 of 12.43%.373 Thus, the two evaluations performed by Sandia bracket the Entergy projection for population growth.
138.
Sandia also performed a separate 2035 population projection for the five counties in New York City.374 For New York, Queens, and Richmond Counties, Sandia projected only slightly higher populations than Entergy. For Bronx and Kings Counties, Sandia projected lower populations than Entergy.375 The difference between the Sandia and Entergy 2035 population projections for all five counties was only 0.39 percent.376 139.
Finally, in his pre-filed testimony, Mr. Jones provided another useful point of comparison. Specifically, he compared Entergys projected population for 2010 with the 2010 U.S. Census data.377 The comparison showed that Entergys projected population values were greater than the 2010 U.S. Census values.378 This is shown in the Table 4 of the NRC Staffs testimony, where the total population in the twenty-eight counties within or partially within the 50-mile radius surrounding IPEC had a 2010 population of 20,570,079.379 In its 2007 ER, Entergy conservatively had projected the 2010 population to be 20,974,307, a difference of 404,228 people.380 Mr. Jones further explained that when the census values are apportioned by the percentage of each county that is within the SAMA region (for the counties that straddle the 373 FSEIS, Vol. 3, App. G at G-26 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
374 FSEIS, Vol. 3, App. G at G-26 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
375 FSEIS, Vol. 3, App. G at G-26 (NYS000133I); NRC Staff Testimony at 96 (A88) (NRC000041).
376 FSEIS, Vol. 3, App. G at G-26 (NYS000133I); NRC Staff Testimony at 96-97 (A88) (NRC000041).
377 Id. at 97 (A89); see also Oct. 22, 2012 Tr. at 2450:4-9 (Judge McDade) ([T]he 2010 gave a figure for population that was 2.0 percent lower than the population projected by Entergy in its environmental report by the staff in its Environmental Impact Statement.).
378 NRC Staff Testimony at 97 (A89) (NRC000041); see also Oct. 22, 2012 Tr. at 2450:4-9 (Judge McDade).
379 NRC Staff Testimony at 98 tbl. 4 (A89) (NRC000041).
380 Id.
71 50-mile boundary), the Entergy value still exceeds the U.S. Census value by 326,878 people.381 During the hearing, Mr. Jones stated that [t]he 2010 data definitely provides a level of confidence in the population values that were using.382 Mr. Riggs agreed.383 Dr. Sheppard did not dispute that the U.S. Census 2010 population estimate was less than Entergys projection for that same year. However, he opined that it was premature to conclude just from comparison of the 2010 census with the 2010 forecast that the 2035 forecast will be constantly overshooting the actual population total as well.384
- c.
Estimation of the 2035 Transient Population 140.
As the third major step in its 2035 population projection, Entergy adjusted the county-level permanent population projection upward to account for the presence of transient populations (i.e., business travelers and tourists but not commuters).385 For each county, Entergy used state and local estimates of the transient population to estimate the ratio of the permanent-to-transient population in 2004.386 The year 2035 transient population was assumed to be the 2004 transient-to-permanent population ratio multiplied by the extrapolated 2035 permanent population.387 Table 2 of Entergys pre-filed testimony (as excerpted from the Enercon Report) presents these data on a county basis.388 381 Id.
382 Oct. 22, 2012 Tr. at 2455:7-9 (Jones).
383 Id. at 2454:10-14 (Riggs) (Your honor, the nuclear industry does a lot of gut checks and for me the 2010 census information or census count actually produced similar results to our projections. Then the gut checks work. Its fine.).
384 Id. at 2450:17-18, 2453:16-21 (Sheppard).
385 See Entergy Testimony at 33 (A65) (ENT000005) (citing Enercon Report at 2-2 to -5 (ENT000211)); FSEIS, Vol. 3, App. G at G-20 (NYS000133I).
386 See Entergy Testimony at 33 (A65) (ENT000005) (citing Enercon Report at 2-2 to -5 (ENT000211)).
387 See id. (citing Enercon Report at 2-5 (ENT000211); FSEIS, Vol. 3, App. G at G-20 (NYS000133I). As noted previously, during its environmental review, the Staff inquired about the basis for Entergys assumption that the 2004 transient-to-permanent population ratio would be representative of the ratio in 2035. Entergy provided the
72 141.
As documented in the FSEIS, the Staff concluded that Entergys 2035 transient population estimate is reasonable and appropriate for use on a SAMA analysis. The FSEIS states:
The 2035 transient population was assumed to be the 2004 transient-to-permanent population ratio multiplied by the extrapolated permanent population. The 2004 transient data were obtained from State tourism agencies. The NRC staff notes that Entergys projected 2035 population within a 50-mile radius of IP2 and IP3 reported in Tables E.1-12 and E.3-12 of the Entergy ER (19.2 million people) is approximately 15 percent greater than the 50-mile population obtained from NRC SECPOP2000 code (16.8 million) for the year 2003. This represents an average annual growth rate of 0.4 percent, which comports with Entergys estimated growth rates reported in Section 2.6.1 of the ER. The NRC staff considers the methods and assumptions for estimating population reasonable and acceptable for the purposes of the SAMA evaluation.389
- d.
Use of the Total 2035 Population Estimate in MACCS2 142.
Entergys experts described the manner in which Entergy used its 2035 projected total population (19,228,714) in its MACCS2-based SAMA analysis.390 As stated above, MACCS2 uses a polar-coordinate spatial grid to depict the 50-mile radius region surrounding the facility. The spatial grid for the IPEC SAMA analysis was divided into spatial elements by superimposing fifteen circles of increasing diameter over sixteen sectors, for a total of 240 spatial elements.391 Entergy used areal weighting and summation to transfer the projected justification for that assumption in an RAI response, explaining that it was reasonable to assume that the rate of change in daily transient population values will remain proportional to the rate of change of permanent population values, since they are interrelated. See February 2008 RAI Response, Attach. 1 at 24 (ENT000460).
388 Entergy Testimony at 34 tbl. 2 (A65) (ENT000003).
389 FSEIS, Vol. 3, at G-20 (NYS00133I) (citation omitted).
390 See Entergy Testimony at 35 (A66) (ENT000003).
391 See id. (citing Enercon Report at 1-1 (NYS000211); see also Oct. 17, 2012 Tr. at 1929:16-19 (Teagarden).
73 2035 total population from the counties to the 240 MACCS2 grid spatial elements.392 Using this approach, Entergy assumed a constant population distribution over the area assessed (i.e., in each of the 240 cells within the sixteen sectors and radial rings representing the 50-mile radius area surrounding the IPEC site).393 The end result is a fractional population for each grid spatial element within 50 miles of IPEC.394 As reflected in ER Tables E.1-12 and E.3-12 and Table 3 of Entergys pre-filed testimony, when these fractional populations are summed, the total 2035 population (projected permanent + projected transient) is 19,228,712 persons.395 C.
New York Has Not Provided Sufficient Evidence to Support Its Claim That the FSEIS Improperly Relies on an Inaccurate Estimate of the Year 2035 Population 143.
Having fully discussed the bases for Entergys 2035 population estimate, the Board now evaluates the merits of New Yorks claim that the FSEIS is deficient because it accepts that estimate as an input to the SAMA analysis. In doing so, we are guided by the Commissions controlling precept that [a] contention proposing alternative inputs or methodologies must present some factual or expert basis for why the proposed changes in the analysis are warranted (e.g., why the inputs or methodology used is unreasonable, and the proposed changes or methodology would be more appropriate).396 Absent such a showing by New York, the Board is left with only a proposal for an alternate NEPA analysis that may be no more accurate or meaningful.397 392 See Entergy Testimony at 35 (A66) (ENT000003) 393 Oct. 22, 2012 Tr. at 2445:13-21 (Riggs), 2448:4-5 (Teagarden).
394 See Entergy Testimony at 35 (A66) (ENT000003) 395 Id. at 36 tbl. 3 (A66) (ENT000003); ER at E.1-87 tbl. E.1-12, E.3-81 to -83 tbl. E.3-12 (ENT00015B);
396 Seabrook, CLI-12-05, slip op. at 29.
397 Id.
74 144.
Accordingly, our evaluation focuses on four principal issues: (1) the reasonableness of Entergys use of officially published 2000 census data in light of an alleged census undercount; (2) the reasonableness of Entergys transient population estimate given its alleged exclusion of commuters; (3) the validity of New Yorks estimates of the commuter population within the SAMA analysis region; and (4) the impact of New Yorks proposed addition of approximately 1.2 million people to Entergys 2035 population estimate on the SAMA analysis cost-benefit conclusions.
- 1.
Entergy and the NRC Staff Reasonably Relied on 2000 U.S. Census Data Without Making Adjustments for Census Undercount 145.
As discussed above, Entergy used officially published Census 2000 data to develop its baseline population estimate for the SAMA analysis region. The parties experts agreed that the Census 2000 data provide an appropriate starting point for the 2035 population estimate developed for purposes of Entergys April 2007 license renewal application.398 This fact is not in dispute.
146.
Based on its review of the record, the Board also finds that Entergy and the Staff reasonably relied on Census 2000 data as the foundation or starting point for the 2035 population estimate used in the SAMA analysis. Those data were furnished by the U.S. Census Bureau, an agency that is within, and under the jurisdiction of, the Department of Commerce, and which is responsible for collecting and assessing the adequacy of census and other demographic data.399 398 See Entergy Testimony at 32 (A64) (ENT000003); Staff Testimony at 96 (A88) (NRC000041); New York Rebuttal Testimony at 17:10-15 (NYS000404); Oct. 22, 2012 Tr. at 2407:20-2408:1 (Sheppard), 2408:4-9 (Teagarden, Jones).
399 Specifically, through the Census Act, 13 U.S.C. § 141 et seq., Congress has delegated to the Secretary of the Department of Commerce the responsibility to take a decennial census of the population... in such form and content as he may determine. 13 U.S.C. § 141(a) (2006).
75 147.
Mr. Riggs testified that federal, state, and local governments routinely use population data as they are reported by the U.S. Census Bureauwithout adjusting them for census undercountfor a variety of purposes.400 Those purposes include Congressional redistricting, state and local redistricting, funds allocation, and governmental program administration.401 Other examples include state and county population projections used for planning, including emergency planning, zoning, infrastructure planning, economic analysis, and housing analysis. In addition, federal and state agencies routinely rely upon reported U.S.
census data in assessments performed to comply with NEPA and other legal obligations.402 Dr.
Sheppard conceded this fact:
I am not challenging the use of census data. Census data is a proper starting point in forming a population estimate. As Entergys experts point out, there are many uses of census data such as Congressional redistricting, state and local redistricting, funds allocation, and governmental program administration.403 148.
However, Dr. Sheppard still contended that census undercount caused the 2000 census data relied upon by Entergy and the Staff to give an artificially low count of the actual population within 50 miles of IPEC.404 He defined census undercount as the the persistent undercount of portions of the population by the U.S. Census Bureau in the decennial census, particularly minorities and the poor [who] are undercounted at higher rates than other 400 Entergy Testimony at 42 (A79) (ENT000003).
401 Id.
402 Id.
403 New York Rebuttal Testimony at 17:10-15 (NYS000404) (citing Entergy Testimony at 42 (A79)
(ENT000003)).
404 New York Direct Testimony at 11:11-12:4 (NYS000207); Oct. 22, 2012 Tr. at 2406:23-2407:18 (Sheppard).
76 populations.405 Dr. Sheppard estimated an overall undercount of 1.2 percent for the entire SAMA analysis region, which equates to an underestimation of the 2035 population by 231,632 persons.406 149.
As support for this position, Dr. Sheppard relied principally on U.S. Census Monitoring Board Presidential Members, Final Report to Congress (Sept. 1, 2001)
(NYS000213) (2001 Final Report to Congress).407 Exhibit NYS000213, in turn, relies in part on data from the Census Bureaus March 2001 Accuracy and Coverage Evaluation (A.C.E.),
which discusses the results of the 2000 census.408 The U.S. Census Bureau conducted the March 2001 A.C.E. with the expectation that it could be used to adjust the Census 2000 results for all non-apportionment purposes if it improved the census data.409 The A.C.E. was designed to: (1) measure the net coverage of the population, both in total and for major subgroups, and (2) provide data that could serve as the basis for officially correcting the census counts for such 405 New York Direct Testimony at 10:18-21 (NYS000207); see also Oct. 22, 2012 Tr. at 2409:15-17 (Sheppard)
(Most social scientists however believe that there is undercount of minority populations and that is the basis of my undercount adjustment.).
406 New York Direct Testimony at 12:7-13:9 (NYS000207); see also Oct. 22, 2012 Tr. at 2416:18-2417:20 (Sheppard).
407 Sheppard Report at 4-5 (NYS000209). Dr. Sheppard also cited J.G. Robinson, B. Ahmed, P.D. Gupta and K.A.
Woodrow, Estimation of Population Coverage in the 1990 United States Census Based on Demographic Analysis, JOURNAL OF THE AMERICAN STATISTICAL ASSOCIATION, Vol. 88, No. 423 (Sept. 1993) (NYS000212).
As Entergys experts noted, this document was published in 1993 and pertains only to the 1990 decennial census conducted by the U.S. Census Bureau. See Entergy Testimony at 39 (A73) (ENT000003). The Board thus agrees with Entergy that it does not address potential population undercount in the 2000 decennial census data used by Entergy in its SAMA analysis and is not relevant here.
408 Census 2001 Final Report to Congress at 5 (NYS000213).
409 Entergy Testimony at 40 (A74) (quoting Technical Assessment of A.C.E. Revision II at I (Mar. 12, 2003)
(A.C.E. Revision II Technical Assessment) (ENT000016)); see also Oct. 22, 2012 Tr. at 2419:6-10 (Riggs)
([T]he reports of Congress relied on the A.C.E. I report, essentially the March 1, 2001 version of the A.C.E.
report.).
77 uses as Congressional redistricting, state and local redistricting, funds allocation and governmental program administration.410 150.
The data from the March 2001 A.C.E. indicated a 1.18% net undercount for Census 2000.411 This 1.18% undercount is cited in Dr. Sheppards testimony and is referenced in Exhibit NYS000213, upon which Dr. Sheppard also relied.412 However, as explained in an October 2001 report cited by Dr. Sheppard, the Executive Steering Committee for A.C.E. Policy (ESCAP) recommended against adjusting the 2000 census data based on the A.C.E. because of a broad overarching concern that A.C.E. estimates differ[ed] substantially with the estimates derived from Demographic Analysis, another method of population estimation.413 151.
As a result, Entergy witness Mr. Riggs explained, the U.S. Census Bureau conducted further research to produce a more complete revision of the estimates that might be used to adjust the census base used in the intercensal (between decennial censuses) estimates.414 In doing so, the Census Bureau discovered substantial errors in the March 2001 A.C.E. survey cited by Dr. Sheppard, and concluded that [t]he March 2001 A.C.E. estimates of Census 2000 coverage were determined to be unacceptable because A.C.E. failed to measure a significant number of erroneous census enumerations.415 Significantly, Dr. Sheppard did not refer to this conclusion or its supporting documentation in his pre-filed direct testimony.
410 Entergy Testimony at 40 (A74) (citing Accuracy and Coverage Evaluation of Census 2000: Design and Methodology at Foreword (Sept. 2004) (ENT000017)); Oct. 22, 2012 Tr. at 2409:1-9 (Sheppard).
411 Entergy Testimony at 40 (A74) (citing A.C.E. Revision II Technical Assessment at iii (ENT000016)).
412 New York Direct Testimony at 12:11-16 (NYS000207); 2001 Final Report to Congress at 31 (NYS000213).
413 Entergy Testimony at 40-41 (A75) (ENT000003) (quoting J.G. Robinson, ESCAP II: Demographic Analysis Results, Executive Steering Committee for A.C.E. Policy II, Report No. 1, at 1 (Oct. 13, 2001) (ESCAP II Report) (NYS000214)).
414 Entergy Testimony at 40-41 (A75) (ENT000003); Oct. 22, 2012 Tr. at 2419:14-2420:3 (Riggs).
415 Entergy Testimony at 41 (A76) (ENT000003) (quoting A.C.E. Revision II Technical Assessment at 1 (ENT000016)) (emphasis added).
78 152.
According to Entergys witnesses, research efforts undertaken to correct the aforementioned errorsreferred to as A.C.E. Revision IIresulted in dramatically improved coverage estimates, compared with the March 2001 A.C.E. estimates.416 As reported by the Census Bureau, [t]he results of A.C.E. Revision II are substantially different from those of March 2001, changing the estimated net coverage of the total household population from a net undercount of 1.18 percent to a net overcount of 0.49 percent.417 The A.C.E. Revision II Technical Assessment report referenced by Entergy states that the A.C.E. Revision II estimates are dramatically superior to the March 2001 A.C.E. estimates,418 and that the March 2001 A.C.E. estimates were determined to be unacceptable because A.C.E. failed to measure a significant number of erroneous census enumerations.419 153.
In his pre-filed rebuttal testimony, Dr. Sheppard attributed the variation in estimates between the March 2001 A.C.E. results and the A.C.E. Revision II results on the usage of different population estimate methods (demographic analysis versus post-enumeration sampling).420 Dr. Sheppard did not dispute the U.S. Census Bureaus finding that the March 2001 A.C.E. estimates overstated the net undercount and agreed that A.C.E. Revision II determined there to be a net overcount of 0.49 percent.421 However, he continued to maintain 416 Entergy Testimony at 41 (A76) (ENT000003) (quoting U.S. Census Bureau, Decision on Intercensal Population Estimates at 2 (Mar. 12, 2003) (ENT000018)); Oct. 22, 2012 Tr. at 2420:4-17 (Riggs) (explaining that one must rely on the A.C.E. II results).
417 Entergy Testimony at 40-41 (A75) (ENT000003) (quoting U.S. Census Bureau, Decision on Intercensal Population Estimates at 2 (Mar. 12, 2003) (ENT000018)) (emphasis added); Oct. 22, 2012 Tr. at 2534:13-17 (Sheppard).
418 A.C.E. Revision II Technical Assessment at ii (ENT000016).
419 Id. at 1 (emphasis added).
420 New York Rebuttal Testimony at 22:17-23:2 (NYS000404); Oct. 22, 2012 Tr. at 2410:24-2411:22 (Sheppard).
421 See id. at 2533:6-12 (Sheppard).
79 that the non-white population within the 50-mile SAMA analysis region was undercounted by about 3 percent.422 154.
Based on its review of the record evidence, the Board is not persuaded by Dr.
Sheppards argument that Entergy and the Staff should have adjusted the 2035 population estimate to reflect census undercount. First, we agree with Entergy that New York has cited no regulatory requirement or precedentincluding any New York State precedentsuggesting the need to adjust officially reported U.S. Census data for known or possible undercounts for use in a NEPA analysis.423 As Entergys witnesses noted, numerous NRC and EPA guidance documents recommend the use of officially reported census data without specifying the need to adjust the data for undercount or, for that matter, overcount.424 155.
In addition, as Staff witness Mr. Jones observed, Dr. Sheppard apparently developed his estimate of a 3 percent undercount by averaging values of 0.52 percent and 4.49 percent from the U.S. Census Bureaus 2001 Final Report to Congress (NYS000213).425 As discussed above, however, that document relies on March 2001 A.C.E. estimates that the 422 New York Rebuttal Testimony at 23:3-5 (NYS000404).
423 See Entergy Statement of Position at 3 (ENT000002).
424 See Entergy Testimony at 42-43 (A80) (ENT000003); see, e.g., NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants at 2.5.1-1 (Oct. 1999) (ENT000019); NUREG-0800, Standard Review Plan for the Review of Safety Analysis Reports for Nuclear Power Plants: LWR Edition, Ch.
2, Rev. 3, at 2.1.3-1, 2.1.3-5 (Mar. 2007) (ENT000020); Regulatory Guide 1.206, Combined License Applications for Nuclear Power Plants at C.I.2-3 (June 2007) (ENT000021); Regulatory Guide 1.70, Standard Format and Content of Safety Analysis Reports for Nuclear Power Plants: LWR Edition, Rev. 3, at 2-3 (Nov.
1978) (ENT000022); Regulatory Guide 4.2, Preparation of Environmental Reports for Nuclear Power Stations, Rev. 2, at 2-1 (July 1976) (ENT000023); U.S. EPA, A Checklist for Submitting Your Risk Management Plan (RMP) for Chemical Accident Prevention at 3, 4, 6, 7 (Sept. 2009) (ENT000024); U.S. EPA, Guidance for Conducting Risk Management Program Inspections under Clean Air Act Section 112(r) at D-18 (Feb. 11, 2011)
(ENT000025); U.S. EPA, Protocol for Conducting Environmental Compliance Audits Under the Stormwater Program at 3, 4, 39 (Jan. 2005) (ENT000026).
425 See NRC Staff Testimony at 16-18 (A7) (NRC000041); cf. Oct. 22, 2012 Tr. at 2417:14-20 (Sheppard) (I reviewed the literature both in internal Census Bureau documents and in the published economics and demographic literature, established a range of estimated undercounts and averaged that range rounding to the nearest percent of the average of estimated undercounts which came to three percent.).
80 Census Bureau later determined to be unacceptable.426 The Board finds that it is not reasonable for Dr. Sheppard to rely on data or conclusions that the U.S. Census Bureau has rejected as unacceptable.
156.
Furthermore, the Board can discern no basis for Dr. Sheppards claims that A.C.E. Revision II data essentially validate the 3-percent undercount figure that he assumed for the non-white population in the IPEC region. Mr. Riggs testified that using the values cited by Dr. Sheppard,427 he calculated a net overcount of minorities within the IPEC SAMA analysis region.428 Further, by his own admission, Dr. Sheppard focused only on the alleged undercount of the minority (non-white) populations within the SAMA analysis region.429 He simply disregarded what he called the hypothetical overcount of [the] predominately white population as controversial,430 despite the U.S. Census Bureaus representation that the A.C.E.
Revision II estimates are dramatically superior.431 157.
In any event, the record shows that Dr. Sheppards estimated undercounteven if assumed to be correctwould not alter the SAMA analysis cost-benefit conclusions by resulting in the identification of an additional cost-beneficial SAMA. Dr. Sheppard calculated an overall estimated undercount of 1.2% in the 50-mile radial region for the year 2000, which equates to an underestimation of the 2035 population by 231,632 persons.432 Mr. Jones testified 426 A.C.E. Revision II Technical Assessment at 1 (ENT000016).
427 See New York Rebuttal Testimony at 23:6-10 (NYS000404)).
428 Oct. 22, 2012 Tr. at 2420:14-2422:2 (Riggs).
429 Id. at 2422:19-2423:2 (Sheppard) (Im applying this undercount only to minority populations.).
430 Id. at 2423:3-9 (Sheppard) (And there is controversy amongst demographers, economists and sociologists about whether such an overcount could possibly be true.).
431 A.C.E. Revision II Technical Assessment at ii (ENT000016).
432 Sheppard Report at 8 (NYS000209).
81 that this approximately 1 percent increase would not affect the SAMA analysis conclusions.433 Dr. OKula and Mr. Teagarden confirmed that conclusion through a MACCS2 sensitivity analysis,434 which we discuss further in Section IV.C.4 below.
- 2.
Entergy Appropriately and Conservatively Accounted for Relevant Transient Populations in the 50-Mile SAMA Analysis Region 158.
Dr. Sheppard also contended that Entergys 2035 population estimate is deficient because it does not include commuters within the SAMA analysis region as part of the transient population.435 In response, Entergys experts stated that NEI 05-01 recommends that the
[t]ransient population included in the site emergency plan should be added to the census data before extrapolation.436 The IPEC site emergency plan incorporates population assumptions from the Indian Point Energy Center Development of Evacuation Time Estimates (ETE).437 The ETE defines transients as shoppers and recreational visitors (i.e., tourists) who enter the 10-mile emergency planning zone (EPZ) around IPEC and who leave on the same day or stay overnight in hotels or camping facilities.438 433 NRC Staff Testimony at 16-18 (A7) (NRC000041); see also Oct. 22, 2012 Tr. at 2418:1-9 (Jones) (We are down to a three percent undercount that results in 1.1 percent composite undercount. And there are fluctuations in the population on a daily basis such that when we start talking about values as low as one percent and I think today well talk about fractions of one percent in considerable amount and were just adding an artificial level of confidence to the data that were looking at.).
434 Entergy Testimony at 48-50 (A87-89) (ENT000003); see also Oct. 22, 2012 Tr. at 2516:14-18, 2516:24-2517:5 (Teagarden).
435 See New York Direct Testimony at 13:22-17:17 (NYS000207); New York Rebuttal Testimony at 7:7-17:6 (NYS000404).
436 Entergy Testimony at 28-29 (A56) (quoting NEI 05-01 at 13 (NYS000287)); see also Oct. 22, 2012 Tr. at 2492:8-12 (Jones).
437 KLD Associates, Inc., Indian Point Energy Center Development of Evacuation Time Estimates, Rev. 2 (Oct.
2004) (ETE) (ENT000014).
438 Id. at 3-9.
82 159.
According to Entergys experts, Entergyconsistent with this guidance included tourists as part of the transient population.439 They further stated that Entergy introduced conservatism into the analysis by including: (1) business travelers (in addition to tourists) in the estimate, and (2) business travelers and tourists within the entire 50-mile SAMA analysis region, an area far greater in size than the 10-mile EPZ governed by the site emergency plan and referenced in NEI 05-01.440 160.
Dr. Sheppard continued to criticize Entergys treatment of the transient population in his rebuttal testimony. He stated that the ETE identifies three distinct populations: (1) permanent residents; (2) transients (e.g., shoppers and recreational visitors); and (3) employees (people who reside outside of the EPZ and commute to work within the EPZ on a daily basis i.e., commuters).441 Dr. Sheppard faulted Entergy for not including commuters who enter and remain within the SAMA analysis region on a daily basis in the transient population,442 and who are just as at risk as permanent residents in the event of a severe accident at IPEC.443 161.
As an initial matter, the Board agrees with Entergys witnesses that commuters originating from outside the 50-mile region are not just as at risk as permanent residents.
Commuters, by definition, are not always within the 50-mile region, and thus may not be within the region during a postulated severe accident.444 In addition, because commuters evacuated 439 Entergy Testimony at 28-29 (A56); Oct. 22, 2012 Tr. at 2499:12-15 (Teagarden).
440 Entergy Testimony at 28-29 (A56).
441 New York Rebuttal Testimony at 9:5-12 (ENT00404); Oct. 22, 2012 Tr. at 2476:16-2477:7 (Sheppard)
(Transients are people who reside outside of the zone or enter the area for a specific purpose. Thats shopping and recreation. And then to that is to be added employees, people who reside outside and commute to business within the planning zone on a daily basis.).
442 New York Rebuttal Testimony at 9:15-20 (NYS000404).
443 New York Direct Testimony at 14:4-8 (NYS000207).
444 Entergy Testimony at 44 (A82) (ENT000003).
83 from or relocated within the 50-mile region would be able to return to their homes immediately, they would not incur temporary housing, food, or moving costs like permanent residents.445 Finally, such commuters presumably do not have personal property within the region that would be subject to decontamination or interdiction.446 162.
As we discuss in Section IV.C.3 below, we find Entergys decision to exclude commuters from its transient population estimate to be reasonable. In support of the findings made below, we also conclude that MACCS2s treatment of the population within the 50-mile region builds in additional conservatism into the IPEC SAMA analysis. In that regard, both Entergys and the Staffs MACCS2 experts confirmed that MACCS2 treats all persons included in the projected population, whether transients or permanent residents, as permanent residents.447 As Dr. Bixler put it, theres not a separate accounting for commuters or other types of transients in MACCS2.448 This modeling approach results in conservative (larger) estimates of dose impacts (PDR) and economic cost impacts (OECR) for those segments of the population that are not permanent residents.449 163.
With respect to the population dose risk (i.e., PDR), MACCS2 assumes that each person included in the population data resides in the 50-mile region 100 percent of the time.450 This is a conservative assumption for transients who are only within the 50-mile region for a 445 Id.
446 Id.
447 Id. at 29 (A58); Oct. 22, 2012 Tr. at 2508:15-23 (Jones) ([Entergy] kept [transients] in that total and included them as though they were residents.).
448 Id. at 2468:25-2469:1 (Bixler).
449 Entergy Testimony at 29 (A59) (ENT000003); NRC Staff Testimony at 101-106 (A95) (NRC000041); Oct. 22, 2012 Tr. at 2508:15-23 (Jones).
450 Entergy Testimony at 29-30 (A60) (ENT000003); Oct. 22, 2012 Tr. at 2508:15-23 (Jones).
84 smaller percentage of the time.451 For instance, shoppers and recreational visitors may be in the 50-mile region for only a few hours or a few days each year.452 Therefore, the population dose calculated by MACCS2 overestimates the dose for this component of the population.453 For the IPEC SAMA analysis, including transients in the population data thus results in a higher, or more conservative, estimate of population dose.454 164.
With respect to offsite cost impacts (i.e., OECR), Entergys experts further explained that considering all persons in the 50-mile regionincluding transientsas permanent residents affects the MACCS2 calculation through a set of per capita (per person) input parameters in the codes CHRONC module.455 For example, the MACCS2 parameter EVACST accounts for the daily cost (e.g., food, housing) for a person who is evacuated in the accident early phase (i.e., 7 days).456 These costs would not be applicable to transients, who reside outside of the 50-mile analysis region and therefore would not require temporary housing and food.457 Their residences outside of the 50 mile region are assessed as not impacted by a severe accident.458 451 Entergy Testimony at 29-30 (A60) (ENT000003); Oct. 22, 2012 Tr. at 2508:15-23 (Jones).
452 Entergy Testimony at 29-30 (A60) (ENT000003).
453 Id.
454 Id.; Oct. 22, 2012 Tr. at 2508:15-23 (Jones).
455 Entergy Testimony at 30-31 (A61) (ENT000003); NEI 05-01, Rev. A, at 37 (NYS000287).
456 Entergy Testimony at 30 (A61) (ENT000003). As discussed in the FSEIS, Entergy did not credit evacuation either as part of the base-case analysis or for estimating the benefit from SAMA cases. See FSEIS, Vol. 3, App. G at G-21 (NYS00133I). Instead, Entergy assumed a no-evacuation scenario to conservatively estimate the population dose. Id. The no-evacuation scenario assumes that individuals within the 10-mile evacuation zone continue normal activity following a postulated accident without taking emergency response actions such as evacuation or sheltering. Id.
457 Entergy Testimony at 30 (A61) (ENT000003).
458 Id.; Oct. 22, 2012 Tr. at 2497:1-8 (Potts) (By including the tourists and business travelers from the state tourism data, we included some 349,000 people and assigned a residence to them within the region.).
85 165.
The MACCS2 parameter POPCST accounts for the one-time relocation cost for a person who is relocated due to exceeding dose criteria.459 These relocation costs address moving costs and lost income associated with an assumed disruption period caused by interdiction (i.e., decontamination or condemned land).460 Commuters could be impacted by lost income because their job sites may be impacted by interdiction; however, they would not incur moving costs.461 Also, these relocation costs are therefore applicable to commuters, but not applicable to other types of transients (e.g., tourists) that are nonetheless treated by MACCS2 as permanent residents.462 166.
The parameter RELCST accounts for the daily cost (e.g., food, housing) for a person who is relocated in the long-term phase.463 These costs are not applicable to transients who reside outside the 50-mile analysis region, because they would not require temporary housing and food.464 Their residences outside of the 50-mile region are assessed as not impacted by a severe accident.465 For the IPEC SAMA analysis, including transients in the population data results in a conservative estimate of relocation costs because the transients are treated by MACCS2 as permanent residents.466 459 Entergy Testimony at 30 (A61) (ENT000003); NEI 05-01 at 37 (NYS000287).
460 Entergy Testimony at 30 (A61) (ENT000003).
461 Id.
462 Id.
463 Id.; NEI 05-01, Rev. A, at 37 (NYS000287).
464 Entergy Testimony at 30 (A61) (ENT000003).
465 Id.; cf. Oct. 22, 2012 Tr. at 2497:1-8 (Potts) (By including the tourists and business travelers from the state tourism data, we included some 349,000 people and assigned a residence to them within the region.).
466 Entergy Testimony at 30 (A61) (ENT000003).
86 167.
The CDNFRM input parameter accounts for the cost of decontaminating non-farm property.467 These costs would not be applicable to transients who reside outside of the 50-mile analysis region because their property is assessed as not impacted by a severe accident.468 But for the IPEC SAMA analysis, including transients in the population data results in a conservative estimate of non-farm decontamination costs because MACCS2 does not differentiate transients from permanent residents.469 168.
Finally, the VALWNF and VNFRM input parameters account for the value of non-farm wealth (e.g., land, buildings) lost due to condemned land.470 These costs should not apply to transients who reside outside of the 50-mile radius area because their property is outside of the SAMA analysis region.471 The IPEC SAMA analysis included transients as part of the permanent population, thereby resulting in a conservative estimate of non-farm wealth losses.472 169.
In summary, the Board finds that Entergy and the NRC Staff appropriately accounted for transient populations for the entire 50-mile region within the SAMA analysis, including tourists and business travelers. NEI 05-01 states that the SAMA analysis transient population should be consistent with the transient population included in the site emergency plan.473 The relevant IPEC emergency planning document (i.e., the ETE) defines transients as shoppers and recreational visitorsconsistent with the definition Entergy used in its SAMA 467 Id. at 31 (A61); NEI 05-01, Rev. A, at 37 (NYS000287).
468 Entergy Testimony at 31 (A61) (ENT000003).
469 Id.; Oct. 22, 2012 Tr. at 2497:1-8 (Potts).
470 Entergy Testimony at 31 (A61) (ENT000003); NEI 05-01, Rev. A at 37 (NYS000287).
471 Entergy Testimony at 31 (A61) (ENT000003).
472 Id.
473 NEI 05-01 at 13 (NYS000287).
87 analysis.474 Entergy conservatively included in its projected population estimated transient business travelers and tourists within the entire 50-mile region.475 The Board addresses New Yorks claim that Entergy and the NRC Staff improperly excluded commuters from the transient population below.
- 3.
Dr. Sheppard Substantially Overestimated the Number Of Commuters Within the 50-Mile SAMA Analysis Region 170.
In support of his commuter-related argument, Dr. Sheppard attempted to estimate the number of commuters entering the SAMA analysis region using U.S. Census Bureau data on county-to-county commuter flows from 2000.476 Using the method described in his report and pre-filed direct testimony, Dr. Sheppard estimated that 995,778 commuters will enter the 50-mile radius region on an average day in 2035.477 This, he claimed, equates to a 5.18% increase in Entergys projected 2035 population.478 171.
Entergys and the Staffs experts disagreed with Dr. Sheppards analysis for several reasons that the Board finds persuasive. First, Dr. Sheppards analysis classified and counted each person from outside the 50-mile region who works within the region as a commuter, regardless of the persons residence county.479 In particular, Dr. Sheppard relied on data from the U.S. Census Bureau, County-to-County Worker Flow Files, which list the work county for each of the residents of every county in the country. Consequently, he counted 474 ETE at 3-9 (ENT000014).
475 Entergy Testimony at 28 (A56) (ENT000003); Oct. 22, 2012 Tr. at 2495:7-9 (Teagarden).
476 New York Direct Testimony at 14:13-15 (NYS000207).
477 Id. at 16:1-3.
478 See id. at 16:11-18.
479 Entergy Testimony at 45 (A83) (ENT000003); NRC Staff Testimony at 101-106 (A95) (NRC000041).
88 residents of locations as far away as Hawaii, Alaska, and California as daily commuters into the IPEC 50-mile region.480 172.
In the Boards view, it is not reasonable to assume that a large number of people residing more than 150 miles away commute into the region on a daily basis. Further, as Entergys witnesses explained, such people would need to secure overnight lodging when visiting the region and thus would be considered business travelers, which Entergy included in the transient population values used in the SAMA analysis.481 173.
In his rebuttal testimony, Dr. Sheppard responded by introducing the concept of the super-commuter, that is, a person who commutes very long distances to jobs on a daily or weekly basis. Citing a February 2012 article entitled Emergence of the Super-Commuter, he stated that [i]t is estimated that 59,000 super-commuters work in Manhattan alone.482 174.
Having reviewed the document cited by Dr. Sheppard, the Board finds that it is of little value to our assessment and provides no support for Dr. Sheppards claims. As an initial matter, the study explicitly acknowledges that it cannot ascertain whether all of these individuals can be considered super-commuters in the truest sense, and that the figures cited in the study should be interpreted as potential or likely super-commuters, since the data only reflects residential location.483 The article further states that the super-commuter typically 480 For example, Dr. Sheppards analysis counts 53 residents of San Diego County, California, as commuters into Fairfield County, Connecticut; 19 residents of Anchorage, Alaska, as commuters into Queens County, New York; and 16 residents of Honolulu County, Hawaii, as commuters into Essex County, New Jersey.
481 Entergy Testimony at 45 (A83) (ENT000003).
482 New York Rebuttal Testimony at 13:16-17 (NYS000404) (citing Mitchell L. Moss and Carson Qing, The Emergence of the Super-Commuter, (Super-Commuter Article) (NYS000408); Oct. 22, 2012 Tr. at 2477:25-2478:19 (Sheppard).
483 Super-Commuter Article at 6 (NYS000408) (emphasis omitted).
89 travels once or twice weekly for work from typically 100-200 miles away.484 Accordingly, the article relied on by Dr. Sheppard provides no basis to conclude that persons residing more than 150 miles away commute into the region on a daily basis.
175.
In addition, Dr. Sheppard provided no analysis or opinion with respect to how many super-commuters Entergy purportedly should have included in its population projection, and whether doing so would materially impact the SAMA analysis conclusions.485 In fact, during the hearing he stated: Theyre not a large part of the number in any event, so they could be excluded.486 176.
In defense of his commuter population estimate, Dr. Sheppard asserted that Entergy must use the most accurate inputs possible.487 But, as Entergys witnesses pointed out, an accurate accounting of commuters also would need to consider commuters out of the 50-mile region surrounding IPEC.488 The U.S. Census Bureaus County-to-County Worker Flow Files also include data for commuters and business travelers out of the 50-mile region, but Dr.
Sheppard did not consider such data in either his testimony or report.489 177.
Ms. Potts and Mr. Riggs testified that they carefully examined Dr. Sheppards report and methods and were able to duplicate the values in Table 1 of his report using the input 484 Id. at 1, 2.
485 See New York Rebuttal Testimony at 13:10-14:3 (NYS000404).
486 Oct. 22, 2012 Tr. at 2478:14-16 (Sheppard).
487 Sheppard Report at 7 (NYS000209).
488 Entergy Testimony at 45 (A83) (ENT000003); Oct. 22, 2012 Tr. at 2485:6-18 (Teagarden) ([F]or individuals who are commuting out of the region for their workplace... MACCS would be counting them as having their disruption associated with their job when in actuality their job occurs outside the 50-mile region.).
489 See generally New York Testimony (NYS000207); Sheppard Report (NYS000209); New York Rebuttal Testimony (NYS000404).
90 data he cited and the methods he described.490 They then performed an analysisusing the same U.S. Census Bureau county worker flow data as Dr. Sheppardthat corrected the aforementioned errors in Dr. Sheppards analysis to determine their effect on his commuter population estimate.491 Mr. Riggs and Ms. Potts specific assumptions, analysis methods, and calculations are documented in their Rebuttal Commuter Analysis (ENT000027). The stated objectives of that analysis are to: (1) duplicate Dr. Sheppards commuter calculations; (2) assess the impact of possible double counting between long-distance commuters and business travelers; and (3) evaluate the impact of commuters traveling out of the 50-mile region.492 178.
Thus, Ms. Potts and Mr. Riggs revised the analysis in the Sheppard Report to only count commuters-in from closer to the region (and also corrected the Sheppards Report underestimate for Union County, New Jersey).493 Specifically, they retained commuters originating from Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island and Vermont.494 Workers originating from other states were considered business travelers and were not counted as commuters.495 This adjustment decreased the number of commuters-in estimated by Dr. Sheppard from 995,778 to 964,093.496 490 Entergy Testimony at 44 (A83) (ENT000003).
491 See L. Potts and J. Riggs, Rebuttal Commuter Analysis (Jan. 2012) (ENT000027) (Rebuttal Commuter Analysis); Oct. 22, 2012 Tr. at 2486:13-24 (Potts) (What this table reflects is the analysis that we did using the county to county worker flow data that Dr. Sheppard used and accounting for where each person goes to work in or out, coming into the region or leaving the region.).
492 Rebuttal Commuter Analysis at 2 (ENT000027). For purposes of the analysis, Entergys experts retained Dr.
Sheppards disputed premise that the base population should be increased by 231,631 people to account for census undercount. Entergy Testimony at 46 (A84) (ENT000003).
493 Rebuttal Commuter Analysis at 2-3 (ENT000027).
494 Id. at 9; Entergy Testimony at 46 (A84) (ENT000003).
495 Rebuttal Commuter Analysis at 9 (ENT000027).
496 Id. at 2.
91 179.
Mr. Riggs and Ms. Potts also considered residents in the 50-mile region who work outside of the 50-mile SAMA analysis region as commuters out of the region.497 They stated that the revised analysis resulted in a more accurate estimate of the work day population distribution within the 50-mile region.498 To get an accurate representation of the work day population in each county, they moved the commuters to their workplace county (within or outside the 50-mile radius region, as appropriate) in this analysis.499 The commuters who live and work in the same county were not included in the calculation because there is no net change and these workers already have been included in the permanent population.500 180.
The results of Entergys analysis are summarized in Table 4 of Entergys pre-filed testimony (ENT000003) and in the table on page 15 of the Rebuttal Commuter Analysis (ENT000027). Entergys experts projected a net 2035 commuter population in the 50-mile region of 110,663 commuters, in contrast to the 995,778 commuters estimated by Dr.
Sheppard.501 This amounts to commuter-related population increase of only 0.58% (110,663 net commuters / 19,228,712 total population), in contrast to Dr. Sheppards posited commuter-related population increase of 5.18%, which does not account for commuters leaving the 50-mile SAMA analysis region.502 497 Id. at 2-3, 12-14 (ENT000027). The U.S. Census Bureau county-to-county worker flow data show the work destinations for people who live in each county.
498 Id. at 3.
499 Id. at 13.
500 Id.
501 Entergy Testimony at 46-47 (A84) (ENT000003).
502 Id. at 46 (A84).
92 181.
Entergys experts noted that the four counties closest to IPEC (Orange, Putnam, Rockland, and Westchester), where doses might be higher, show a net reduction of over 100,000 commuters.503 Seven counties in the 50-mile region show a net increase in commuters.504 182.
Dr. Sheppard disagreed with Ms. Potts and Mr. Riggs approach to calculating a daytime or workday population by subtracting commuters out of the region.505 He claimed that the population estimate for purposes of SAMA analysis should be conservative,506 and that
[a] work day population estimate involves many non-conservative assumptions.507 Dr.
Sheppard further stated that:
A comprehensive view looks at the most people who could be at risk in a typical 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> cycle. For example, during a typical rush hour, commuters who reside inside and outside of the 50 mile zone of Indian Point may be crossing paths inside of the zone. Indeed, the IPEC ETE takes all of these individuals into account. This is also consistent with the NEI 05-01 guidance, which suggests that the SAMA analysis consider the peak population during the relicensing period.508 183.
The Board finds Dr. Sheppards position to be flawed for several reasons. First, it overlooks the nature of a SAMA analysis, which is not intended to model a single radiological release at a single moment in time; e.g., when the commuter-inclusive population within the 50-503 Rebuttal Commuter Report at 3 (ENT000027).
504 Id. Of these seven counties, New York, NY county has a net increase of about 1.4 million commuters; Morris, NJ county has a net increase of about 40,000 commuters; Fairfield, CT and Essex, NJ counties each have a net increase of about 24,000 commuters; and the other three counties (Bergen, Middlesex, and Somerset, NJ) have a combined net increase of about 7,000 commuters. Id.
505 See Oct. 22, 2012 Tr. at 2476:16-2477:24 (Sheppard) (No suggestion is made that we should net out the people who flow out.).
506 New York Rebuttal Testimony at 15:21-22 (NYS000404); Oct. 22, 2012 Tr. at 2477:13-17 (Sheppard) (That seems consistent to me with the principle of conservatism in the population estimate because there are times when both the out-commuters and the in-commuters are on the road....).
507 New York Rebuttal Testimony at 16:23-17:1 (NYS000404).
508 Id. at 16:2-10 (emphasis added).
93 mile region is at its hypothetical maximum, as postulated by Dr. Sheppard.509 Further, the SAMA analysis, as a NEPA mitigation alternatives analysis, is neither a worst-case nor a best-case impacts analysis.510 It focuses ultimately on the mean annual consequences (both off-site population dose and economic costs) over the examined 50-mile region.511 Assuming the most people who could be at risk in a typical 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> cycle, as suggested by Dr. Sheppard,512 ignores these established principles.
184.
In addition, NEI 05-01 does not suggest use of a conservative estimate that accounts for a peak commuter population. In fact, NEI 05-01 states only that [t]ransient population included in the site emergency plan should be added to the census data before extrapolation, and that [e]xtrapolation to a later date, and therefore a larger population, adds conservatism to the analysis.513 It makes no mention of a peak population. As such, there is no basis in that document for Dr. Sheppards suggestion that anyone who enters the 50-mile region during a given 24-hour period should be included in the population estimate. Again, both Entergys and the Staffs witnesses agreed that SAMA analyses apply best-estimate values as a general practice.514 The Board finds that Dr. Sheppards proposed assumption is a worst-case assumption that ignores the controlling NEPA principles articulated by the Commission.515 509 Pilgrim, CLI-12-01, slip op. at 19 (Unlike for emergency planning, in which an actual plume must be tracked in real time, a SAMA analysis examines a spectrum of representative types of accidents.).
510 Id. at 20 (quoting Pilgrim, CLI-10-11, 71 NRC at 316).
511 Id. at 19-20.
512 New York Rebuttal Testimony at 16:3-4 (NYS000404).
513 NEI 05-01 at 13 (NYS000287).
514 Oct. 22, 2012 Tr. at 2460:6-8 (Teagarden) (It is our practice, the practice that I'm familiar with, for individuals to pursue a best estimate approach.); id. at 2462:11-12 (Ghosh) (The goal is to do a best estimate analysis).
515 See, e.g., Pilgrim, CLI-12-15, slip op. at 10.
94 185.
Dr. Sheppards reference to evacuation time estimate, or ETE, also is misplaced.516 It is correct that the IPEC ETE includes commuter employees (i.e., people who reside outside of the 10-mile radius EPZ and commute to work within the EPZ on a daily basis).517 But the ETE does not include all commuters entering the entire 50-mile SAMA analysis region. As NRC Staff witness Mr. Jones explained, the ETE is used by emergency response organizations to support decisions regarding the potential evacuation of individuals within the 10-mile EPZ around a nuclear power plant.518 The ETE, therefore, serves a fundamentally different purpose than a SAMA analysis.519 Since it is intended to support actual evacuation decisions, in requires an understanding of how many vehicles may be on the road within the EPZ at any given time over the course of many different scenarios (hence its focus on commuters).520 186.
Regardless, the Board finds that Entergys estimated transient population includes a significant conservatism that overcomes any alleged exclusion of commuters within the 10-mile EPZ. Specifically, Entergy included tourists and business travelers within the entire 50-mile region, which encompasses a far greater area and far more people than the 10-mile EPZ governed by the site emergency plan, as referenced in NEI 05-01.521 Ms. Potts, one of the NEI 05-01 authors, explained that if Entergy had included only the transients (shoppers and recreational visitors) and commuters/employees within the 10-mile EPZ, rather than the tourists and business travelers within the entire 50-mile radius region, Entergys 2035 transient 516 See New York Rebuttal Testimony at 16:6-7 (NYS000404).
517 ETE at 3-2 (ENT000014).
518 Oct. 22, 2012 Tr. at 2439:6-12 (Jones).
519 Id. at 2439:6-12, 2490:16-2491:7 (Jones).
520 Id. at 2439:6-12 (Jones).
521 NEI 05-01 at 13 (NYS000287); see Oct. 22, 2012 Tr. at 2497:1-2498:18 (Potts).
95 population estimate would have been approximately 160,000 people, which is less than half of the approximately 349,000 people (tourists and business travelers) that Entergy conservatively included in its 2035 transient population estimate.522 Thus, Entergy again made a more conservative assumption than recommended in NEI 05-01.
187.
In summary, the Board agrees with Entergy that Dr. Sheppard significantly overstated the net commuter population within the 50-mile SAMA analysis region in his estimate by (1) including individuals from all over the country who work within the 50-mile region to be commuters into the region,523 and (2) failing to account for the effect of business travelers and commuters who travel or commute out of the 50-mile SAMA analysis region.524 The Board also finds that Entergys transient population estimate is reasonable and, in fact, somewhat conservative.525 Entergy included shoppers, recreational visitors, and business travelers to the entire 50-mile SAMA region (not just to the 10-mile EPZ, as specified in NEI guidance).
Further, because MACCS2 treats all persons included in the SAMA analysis regions population (whether transients or permanent residents) as permanent residents, the code produces conservative estimates of dose impacts (PDR) and cost impacts (OECR) for transients.526 522 Oct. 22, 2012 Tr. at 2497:1-13 (Potts).
523 Entergy Testimony at 19-20 (A41) (ENT000003).
524 Id. at 20 (A41); Oct. 22, 2012 Tr. at 2485:6-18 (Teagarden) ([F]or individuals who are commuting out of the region for their workplace... MACCS would be counting them as having their disruption associated with their job when in actuality their job occurs outside the 50-mile region.).
525 Entergy Testimony at 19 (A41) (ENT000003); Oct. 22, 2012 Tr. at 2497:1-2498:18 (Potts).
526 Entergy Testimony at 29 (A58-59) (ENT000003); Oct. 22, 2012 Tr. at 2497:1-8 (Potts) ([T]he SAMA analysis accounts for each person that you add as a permanent resident.).
96
- 4.
None of New Yorks Arguments, Even if Accepted as Valid, Could Credibly Alter the IPEC SAMA Analysis Conclusions Regarding Which SAMA Candidates are Potentially Cost-Beneficial to Implement 188.
Entergys experts performed two MACCS2 sensitivity analyses to evaluate the potential impacts of the population increases posited by Dr. Sheppard due to census undercount and commuter inflows into the 50-mile SAMA analysis region.527 189.
As described in Entergys pre-filed testimony, Entergys first sensitivity analysis used Dr. Sheppards census undercount value (231,632) and adjusted his commuter population value to conservatively account for the amount of time commuters would be expected to be within the 50-mile SAMA analysis region (497,889, or fifty percent of 995,778)adding a total of 729,521 persons to the 50-mile radius region population.528 Mr. Teagarden and Dr. OKula contended that a reasonable commuter estimate should take into account the time people are expected to stay in the 50-mile SAMA analysis region.529 In their view, this is one-third to one-half of the time (i.e., eight to twelve hours per day).530 190.
Entergys experts incorporated Dr. Sheppards undercount and commuter population estimates into the population distribution of the IPEC MACCS2 SITE file, and allocated the resulting population increases to different grid locations in the 50-mile region based on the county values provided in Table 1 of Dr. Sheppards report.531 These additions resulted in 527 G. Teagarden, Population Sensitivity for NYS-16 Incorporating Census Undercount and Commuters (Jan. 14, 2012) (MACCS2 Population Sensitivity Case 1) (ENT000006); MACCS2 Population Sensitivity Case 2 (ENT000589); Oct. 22, 2012 Tr. at 2516:13-2518:14 (Teagarden).
528 Entergy Testimony at 48-49 (A87) (ENT000003) (citing Sheppard Report at 8 (NYS000209)); Oct. 22, 2012 Tr.
at 2516:13-23 (Teagarden) ([W]e included the undercount data at 100 percent, the census undercount data thats alleged in this contention. And we included the commuter data with a 50 percent reduction factor, just purely to address the fact that commuters arent in the region 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day.).
529 Entergy Testimony at 48-49 (A87) (ENT000003); Oct. 22, 2012 Tr. at 2516:18-21 (Teagarden).
530 Entergy Testimony at 48-49 (A87) (ENT000003).
531 Id. at 48 (A87).
97 only very small increasesapproximately 3 percentto the key metrics in the SAMA analysisthe population dose risk and the offsite economic cost risk.532 191.
Compared to the other SAMA candidates that are not cost-effective, at a margin of 11 percent, IP2 SAMA 025 has the smallest margin between the current benefit and the increased benefit to become cost effective.533 Even if the benefit of IP2 SAMA 025 were increased by 3.2% (i.e., the increase factor associated with the sensitivity case results for PDR and OECR incorporating Dr. Sheppards assumptions), the SAMA candidate still would not be cost-beneficial.534 Accordingly, even if Dr. Sheppards proposed additions to the SAMA analysis region population were assumed to be valid, they would have no impact on the SAMA analysis cost-benefit conclusions.535 192.
In his rebuttal testimony, Dr. Sheppard argued that halving the commuter population is problematic because it does not reflect the costs of an accident that occurs when the entire commuter population is hypothetically present within the 50 mile zone.536 He also argued that Entergy should have distributed the population increases to each grid element by multiplying the pre-existing population estimate by the percentage of population increase, such that the increases are distributed proportionately throughout the 50-mile SAMA analysis region.537 532 Id. at 49-50 (A89); Oct. 22, 2012 Tr. at 2516:24-2517:5 (Teagarden).
533 Entergy Testimony at 49-50 (A89) (ENT000003) (citing NL-09-165, Attach. 1 at 30 (ENT000009)).
534 Id.; see also Oct. 22, 2012 Tr. at 2518:8-14 (Teagarden).
535 Entergy Testimony at 49-50 (A89) (ENT000003); Oct. 22, 2012 Tr. at 2518:8-14 (Teagarden) ([T]hat still falls short of what would be necessary to impact the next... essentially cost beneficial SAMA.).
536 New York Rebuttal Testimony at 32:7-10 (NYS000404); Oct. 22, 2012 Tr. at 2474:19-2475:3 (Sheppard)
([T]here can and will be circumstances under which both groups, the people commuting out of the 50-mile zone and the people commuting in, will both be present within the 50-mile zone.).
537 New York Rebuttal Testimony at 34:11-22 (NYS000404).
98 193.
Dr. OKula and Mr. Teagarden performed a second MACCS2 sensitivity analysis before the hearing to address these additional criticisms in Dr. Sheppards rebuttal testimony.538 Towards that end, the second sensitivity analysis incorporated (1) the full census undercount and commuter-related population increases proposed by Dr. Sheppard, (2) the peak populations for the three counties (New York, Rockland, and Westchester) projected to have population peaks prior to 2035, and (3) Dr. Sheppards proposed population distribution method.539 194.
Dr. OKula and Mr. Teagarden determined that, when all of Dr. Sheppards proposed values and assumptions are accepted and factored into the MACCS2 analysis, the PDR and OECR increase by approximately 6.7% and 6.8%, respectively.540 The impact to the total estimated baseline accident costs (i.e., incorporating on-site costs, which are not calculated by MACCS2) resulting from the increased population was an estimated 6.15% increase.541 Entergys experts again compared this 6.15% increase to the margin that exists in the next potentially cost-beneficial SAMA candidate (approximately 11% for IP2 SAMA 025542) to demonstrate that New Yorks postulated population increaseseven if fully acceptedwould not have any material impact on the FSEIS SAMA analysis conclusions.543 195.
Mr. Teagarden explained that these results are consistent with his prior experience that the MACCS2 dose risk and cost risk essentially scale linearly with uniform population 538 See Oct. 22, 2012 Tr. at 2517:19-2518:14 (Teagarden); MACCS2 Population Sensitivity Case 2 at 2 (ENT000589).
539 See MACCS2 Population Sensitivity Case 2 at 2 (ENT000589); Oct. 22, 2012 Tr. at 2517:19-2518:2 (Teagarden).
540 Id. at 2518:3-7 (Teagarden) (We increased the total population... approximately 6.7 percent and the population dose risk increased approximately 6.7 percent and the cost risk increased approximately 6.8 percent.); MACCS2 Population Sensitivity Case 2 at 2, 5 (ENT000589).
541 MACCS2 Population Sensitivity Case 2 at 2, 8 (ENT000589).
542 NL-09-165 at 30 tbl. 6 (ENT000009).
543 Oct. 22, 2012 Tr. at 2518:8-14; MACCS2 Population Sensitivity Case 2 at 2 (ENT000589).
99 changes, as evidenced by the approximately linear change in PDR and OECR based on the change in population (PDR and OECR increased by 6.7% and 6.8%, respectively, for a 6.7%
increase in population).544 196.
Based on the above discussion, the Board rejects New Yorks allegation that Entergy has materially underestimated the 2035 population by ignoring alleged census undercount or excluding commuters. But even if New York had substantiated the alleged undercounting, Entergys MACCS2 sensitivity analyses demonstrate that including the additional populations posited by New York would not change the cost-benefit conclusions for the SAMA candidates evaluated the NRC Staffs 2010 FSEIS.545 Thus, New York has not met its burden to demonstrate the existence of a material deficiency in the IPEC SAMA analysis.546 197.
The Board concludes with one final point. In its rebuttal submissions, New York newly criticized Entergy for viewing Contentions NYS-12C and NYS-16B in isolation, and not considering the combined impact of the SAMA input changes asserted in those two contentions.547 It is true that Entergys MACCS2 sensitivity studies focused exclusively on Dr.
Sheppards proposed population increases. But, in the Boards view, that focus is entirely reasonable given the discrete, site-specific nature of Entergys 2035 population estimatethe sole MACCS2 input parameter at issue in NYS-16B. Dr. Sheppard provided no testimony on NYS-12C, which the Board admitted as a separate contention, separately addressed at hearing, 544 See Oct. 22, 2012 Tr. at 2517:15-18 (Teagarden) (So it is reasonable that as you add population, you would see these two metrics [OECR and PDR] increase somewhat linearly with population.).
545 See MACCS2 Population Sensitivity Case 1 (ENT000006); MACCS2 Population Sensitivity Case 2 (ENT000589); Oct. 22, 2012 Tr. at 2518:8-14 (Teagarden) ([T]hat still falls short of what would be necessary to impact the next... potentially cost beneficial SAMA.).
546 See Pilgrim, CLI-12-15, slip op. at 13 (Contentions challenging a SAMA analysis therefore must identify a deficiency that plausibly could alter the overall result of the analysis in a material way.).
547 New York Rebuttal Testimony at 37:2-5 (NYS000404).
100 and resolved in a separate analysis. Accordingly, we find no basis to conclude that Entergy should have prepared a MACCS2 sensitivity analysis using New Yorks suggested inputs from both contentions.
V.
SUMMARY
OF PROPOSED FINDINGS AND CONCLUSIONS 198.
Based upon a review of the entire record of this proceeding and the parties proposed findings of fact and conclusions of law, and based upon the findings set forth above, which are supported by reliable, probative, and substantive evidence in the record, the Board has decided all matters in controversy in NYS-16B in favor of Entergy and the NRC Staff.
199.
Regarding the Staffs obligations under NEPA, the Board finds that the NRC Staff has independently reviewed Entergys SAMA analysis, including Entergys population input to the MACCS2 code. The Board concludes that the Staff is justified in relying upon Entergys data, modeling assumptions, and SAMA analysis results in meeting its obligation under NEPA to provide a reasonably complete discussion of possible mitigation measures.548 200.
The Board concludes that the Staff has provided a reasoned evaluation of whether and to what extent the issues raised in NYS-16B credibly could or would alter the Entergys SAMA analysis conclusions on which SAMAs are potentially cost-beneficial.549 In particular, with respect to New Yorks challenge to Entergys year 2035 population estimate, we find that the overwhelming preponderance of the evidence demonstrates:
- a.
Entergy reasonably and appropriately relied upon published 2000 U.S. Census Bureau datadata that were not adjusted for any postulated census undercount or overcount.
Federal, state, and local agencies commonly rely upon published U.S. census data in assessments 548 Robertson, 490 U.S. at 352.
549 Pilgrim, CLI-10-22, 72 NRC at 208.
101 performed to comply with their legal or regulatory obligations. In addition, the documents that Dr. Sheppard relied upon contain conclusions regarding census undercount that have been discredited and superseded by more recent U.S. Census Bureau documentation that Dr. Sheppard failed to acknowledge in either his testimony or report. The more recent documentation actually indicates that the 2000 census data relied upon by Entergy slightly overcounted the total population.
- b.
Entergy conservatively included transient populations (i.e., tourists and business travelers) for the entire 50-mile region within the SAMA analysis. The relevant SAMA industry guidance, NEI 05-01, Rev. A, suggests that the transient population assumed in the SAMA analysis should be consistent with the transient population included in the site emergency plan.
The relevant IPEC emergency planning document defines transients as shoppers and recreational visitors, which is consistent with the definition Entergy used in its SAMA analysis. For purposes of its SAMA analysis, Entergy went beyond the suggested 10-mile EPZ and included within its SAMA population projection estimated transient business travelers and tourists within the entire 50-mile region. The 50-mile transient population included by Entergy far exceeds that which could have been used based on the 10-mile EPZ populationcommuters includedper NEI 05-01 guidance.
- c.
Dr. Sheppards commuter population calculations significantly overstate the net commuter population into the 50-mile SAMA analysis region, such that their use in the IPEC SAMA analysis is not reasonable under NEPA. Dr. Sheppards concept of commuter is overbroad in that it considers individuals from all over the country who work within the 50-mile region to be commuters into the region, rather than business travelers, for which Entergy already
102 accounts. Dr. Sheppard also failed to consider the effect of business travelers and commuters who travel or commute out of the 50-mile SAMA analysis region.
- d.
Even if New Yorks criticisms were valid (which they are not) and Entergy were to increase the year 2035 population value as suggested by Dr. Sheppard (i.e., adjusting for census undercount and commuters), Entergys MACCS2 sensitivity cases demonstrate that there would be no material impact on the IPEC SAMA analysis cost-benefit conclusions as to which SAMAs are cost-beneficial to implement.
201.
We therefore find that the IPEC SAMA analysis 2035 population estimate, including the assumptions and methods underlying that estimate, are sufficient, and that further refinements would not change the cost-benefit conclusions for the SAMA candidates evaluated.
Accordingly, we conclude that the modeling and data used in the IPEC SAMA analysis are reasonable and adequate for use by the NRC in satisfaction of its obligations under NEPA.
202.
In summary, we have reviewed all the issues, motions, and arguments presented for this contention. We conclude that the preponderance of the evidence establishes that, in projecting the 2035 population estimate, Entergy reasonably and appropriately relied upon officially-published 2000 Census Bureau data, without any adjustment for alleged undercount, and conservatively addressed transient populations for the entire 50-mile region within the SAMA analysis, including tourists and business travelers. Accordingly, the Board finds that the NRC Staff and Entergy carried their respective burdens of proof, and that, based on the entire record of this proceeding, the NRC Staff has satisfied its NEPA obligations under 10 C.F.R. Part
- 51. Issues, motions, and arguments presented by the parties but not addressed herein have been found to be without merit, unnecessary, or not relevant to the Boards findings on NYS-16B.
103 VI.
ORDER WHEREFORE, IT IS ORDERED, pursuant to 10 C.F.R. §§ 2.1210 and 51.104(a)(3), that the Contention NYS-16B is resolved on the merits in favor of Entergy and the NRC Staff.
IT IS FURTHER ORDERED, this Partial Initial Decision will constitute a final decision of the Commission forty (40) days from the date of issuance (or the first agency business day following that date if it is a Saturday, Sunday, or federal holiday, see 10 C.F.R. § 2.306(a)),
unless a petition for review is filed in accordance with 10 C.F.R. § 2.1212, or the Commission directs otherwise.
IT IS FURTHER ORDERED that any party wishing to file a petition for review on the grounds specified in 10 C.F.R. § 2.341(b)(4) must do so within twenty-five (25) days after service of this Partial Initial Decision. The filing of a petition for review is mandatory for a party to have exhausted its administrative remedies before seeking judicial review. Within twenty-five (25) days after service of a petition for review, parties to the proceeding may file an answer supporting or opposing Commission review. Any petition for review and any answer shall conform to the requirements of 10 C.F.R. § 2.341(b)(2)-(3).
Although this ruling resolves all matters before the Board in connection with Contention NYS-16B, NRC Staff issuance of the renewed operating licenses under 10 C.F.R. Part 54 must abide, among other things, the resolution of the remaining admitted contentions, including those contentions designated for future hearings.
104 Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
William B. Glew, Jr., Esq.
Kathryn M. Sutton, Esq.
William C. Dennis, Esq.
Paul M. Bessette, Esq.
ENTERGY SERVICES, INC.
MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, DC 20004 Phone: (914) 272-3202 Phone: (202) 739-3000 Fax: (914) 272-3205 Fax:
(202) 739-3001 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com Martin J. ONeill, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.
Dated in Washington, D.C.
this 22nd day of March 2013
105 DB1/ 73192375 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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Docket Nos. 50-247-LR and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
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(Indian Point Nuclear Generating Units 2 and 3)
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March 22, 2013 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of Entergys Proposed Findings of Fact And Conclusions Of Law For Contention NYS-16B (SAMA Population Estimate) were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Lance A. Escher Lance A. Escher, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5080 Fax: (202) 739-3001 E-mail: lescher@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.