ML13081A769

State of New York'S Proposed Findings of Fact and Conclusions of Law for Contention NYS-16/16A/16B (NYS-16B)

ML13081A769
Person / Time
Site:	Indian Point
Issue date:	03/22/2013
From:	Heslin L, Liberatore K, Sipos J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24282, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13081A769 (94)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

---

x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. March 22, 2013

---

x STATE OF NEW YORKS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-16/16A/16B (NYS-16B)

Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS ............................................... G I. INTRODUCTION .............................................................................................................. 1 II. PROCEDURAL HISTORY................................................................................................ 2 III. LEGAL STANDARDS ...................................................................................................... 8 A. NEPAs Requirements ........................................................................................................ 8 B. Requirement to Complete a SAMA Analysis................................................................... 12 C. Burden of Proof for NEPA Contentions ........................................................................... 15 D. Evidentiary Standards for this Relicensing Proceeding.................................................... 16 IV. FINDINGS OF FACT....................................................................................................... 18 A. Witnesses and Qualifications............................................................................................ 18

1. State of New Yorks Witness........................................................................................ 18

2. Entergys Witnesses...................................................................................................... 20

3. NRC Staffs Witnesses ................................................................................................. 24 B. Background ....................................................................................................................... 30

1. Overview of the SAMA Analysis and MACCS2 Code................................................ 30

2. Population Estimate Used in Indian Points SAMA Analysis...................................... 35

3. The States Comments To NRC Staff Regarding the Population Estimate In The DSEIS and FSEIS............................................................................... 40 C. The SAMA Analysis Does Not Account For Census Undercount And Therefore Underestimates the Costs of a Severe Accident at Indian Point....................................... 42 D. The SAMA Analysis Does Not Include Commuters And Therefore Underestimates the Costs of a Severe Accident at Indian Point....................................... 48 E. Entergys Population Estimate Did Not Include Sufficient Conservatism To Account For Its Failure To Include Commuters and Those Missed Due To Census Undercount....................................................................... 57 i

F. NRC Staff Did Not Analyze the Effects of the Population Flaws on the SAMA Analysis 60 G. Entergys Witnesses Sensitivity Analyses are Flawed and Do Not Show the Effects of Contention 12C And Contention 16B on the SAMA Analysis ........................................ 61 V. CONCLUSIONS OF LAW .............................................................................................. 65 A. The FSEIS Violates NEPA, NRC Regulations, And CEQ Regulations Because It Accepts a SAMA Analysis Predicated on Inaccurate Population Estimates................ 65

1. Staff Has Failed to Meet Its Burden Under NEPA Because Its Reliance on Entergys Unreasonable Population Estimates Prevents Staff from Accurately Discussing and Reasonably Evaluating Mitigation Alternatives and Taking the Requisite Hard Look at Mitigating Severe Accidents Under NEPA .............................................................. 68

2. NRC Staff Failed to Adequately Respond to New Yorks Comments Regarding Entergys Unreasonable SAMA Analysis in Violation of NEPA ................................ 70

3. By Accepting Entergys Unreasonable 2035 Population Estimate in the FSEIS, NRC Staff Has Relied Upon and Presented Inaccurate Information to the Public, Violating the Requirement that the FSEIS Contain Accurate Scientific Information .................. 72

4. Staff and Entergy Have Failed to Prove that It Was Reasonable for the FSEIS to Exclude Commuters and Census Undercount............................................................... 73

5. The State Has Easily Met Its Prima Facie Evidentiary Burden in this Proceeding Through Its Pre-Filed Expert Testimony, Exhibits, Expert Report, and Dr. Sheppards Hearing Testimony, and the Board Should Resist Any Attempt By NRC Staff to Delegate Its NEPA Obligations .................................................................................... 74 B. The Board Should Afford No Weight to Testimony from Unqualified Witnesses or to the Unsupported Allegations and Conclusions of Entergys and NRC Staffs Witnesses............................................................................................... 74 C. Under the National Environmental Policy Act, the Appropriate Remedy for a Deficient Environmental Impact Statement is for the Atomic Safety and Licensing Board to Remand the Matter to NRC Staff to Perform a Reanalysis of Site-Specific Environmental Impacts and Prepare a Revised and Supplemental Environmental Impact Statement...... 78 IV. PROPOSED ORDER ....................................................................................................... 89 ii

GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS ASLB or Board Atomic Safety and Licensing Board CEQ Council on Environmental Quality DSEIS Draft Supplemental Environmental Impact Statement EIS Environmental Impact Statement FSEIS Final Supplemental Environmental Impact Statement LRA License Renewal Application MACCS2 MELCOR Accident Consequence Code Systems Version 2 NEPA National Environmental Policy Act NRC Nuclear Regulatory Commission NYS-16B Consolidated Contention 16/16A/16B OECR Offsite Economic Cost Risk SAMA Severe Accident Mitigation Alternatives SAMA Reanalysis Entergys December 2009 Reanalysis of Severe Accident Mitigation Alternatives Sandia Sandia National Laboratories Tr. Hearing Transcript G

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B I. INTRODUCTION

1. In accordance with 10 C.F.R. Section 2.1209 and the January 15, 2013 Order issued by the Atomic Safety and Licensing Board (Board), the State of New York (State) submits its proposed Findings of Fact and Conclusions of Law on the States admitted Contention 16/16A/16B (NYS-16B).

2. The population density surrounding Indian Point is higher than that surrounding any other nuclear power plant in the United States and, therefore, a severe release of radioactive materials at Indian Point could have more serious consequences than that same release at virtually any other NRC-licensed site. Consolidated Edison Co. of New York (Indian Point, Unit 2) and Power Authority of the State of New York (Indian Point, Unit 3), CLI-85-6, 21 N.R.C. 1043, 1049-50 (1985). NYS-16B asserts that Entergy and NRC Staff have underestimated the 2035 population within 50 miles of Indian Point in violation of the National Environmental Policy Act (NEPA). As a result of this error, the Final Supplemental Environmental Impact Statement (FSEIS) fails as a public information document because it does not disclose the full extent of population that could potentially be exposed to radiation as a result of a severe accident at Indian Point. Moreover, Entergy used its underestimated population figure in the severe accident mitigation alternatives (SAMA) analysiswhich NRC Staff accepted in the FSEIS. Because the SAMA analysis uses population to calculate costs associated with a severe accident, underestimating population leads Entergy and Staff to underestimate the costs of a severe accident and, in turn, the corresponding benefit of any given SAMA candidate.

3. The evidence shows that NRC Staffs FSEIS accepts Entergys estimate of the 2035 population within 50 miles of Indian Point despite two significant errors: (1) failure to 1

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B account for census undercount; and (2) failure to account for the commuter population present within the 50 mile zone. These deficiencies lead to a significant omission of approximately 1.2 million individuals. This exclusion is not a mere oversightit is a significant discrepancy that affects relicensing decisions in violation of NEPA. Further, by accepting a SAMA analysis based on inaccurate data, the FSEIS does not take the NEPA-required hard look at mitigation alternatives to the proposed action. Because of these errors in the FSEIS, Entergys application for renewed operating licenses for Indian Point Unit 2 and Unit 3 should be denied.

II. PROCEDURAL HISTORY

4. On April 23, 2007, Entergy submitted an application to the NRC to renew the Indian Point Energy Center (Indian Point) Unit 2 and Unit 3 (or IP2 andIP3) operating licenses (License Nos. DPR-26 and DPR-64) for an additional 20 years. The NRC issued a Commission Hearing Notice stating that any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a petition for leave to intervene in accordance with the provisions of 10 C.F.R. § 2.309. 72 Fed. Reg. 42,134 (Aug. 1, 2007); see 72 Fed. Reg. 55,834 (Oct. 1, 2007) (extending the period for filing requests for hearing in this matter).

5. On November 30, 2007, the State filed a petition for leave to intervene in this proceeding, asserting numerous contentions, including Contention 16 (NYS-16) and Contention 12 brought under NEPA and concerning the SAMA analysis. New York State Notice of Intention to Participate and Petition to Intervene (Nov. 30, 2007) (ML073400187). NYS-16 alleges that Entergys SAMA analysis for Indian Point Unit 2 and Unit 3 is flawed because it 2

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B will not present an accurate estimate of the costs of human exposure. Id. at 163.1 One of the bases for Contention 16 is that Entergys projections of the 2035 population likely to be living within 50 miles of Indian Point are suspect and underestimate the potential exposed population, and that this underestimation would, in turn, lead to an underestimation of the benefit obtained from implementing a SAMA. Id. at 164 n.37.

6. Following a three-day contention admissibility oral argument on March 10-12, 2008, the Board admitted NYS-16 as a NEPA contention to the extent that it challenges whether the population projections used by Entergy are underestimated. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing) LBP-08-13, 68 N.R.C. 43, 112 (Jul. 31, 2008) (ML082130436). The Board recognized that population size is a question of model input data material to the making of accurate SAMA analyses. Id. The Board also recognized that NYS-16 alleges that the SAMA was done, but that the analysis was significantly flawed due to the use of inaccurate factual assumptions. Id. at 113.

1 The State also 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. New York State Notice of Intention to Participate and Petition to Intervene (Nov. 30, 2007) (ML073400187) at 163-67. In August 2009, the State filed a motion for summary disposition on the aspect of Contention 16/16A concerning the use of the straight line Gaussian air dispersion model. State of New Yorks Motion for Summary Disposition on the Use of the Straight Line Gaussian Air Dispersion Model for the Environmental Impact Analysis of Significant Radiological Accidents at Indian Point and NYS Contention 16/16A (Aug. 28, 2009)

(ML092610906). The Board denied the States motion, finding that genuine issues of material fact remained. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Memorandum and Order (Ruling on Motions for Summary Disposition) (Nov. 3, 2009) (unpublished)

(ML093070521). The State has chosen not to pursue this part of Contention 16 and entered into a join stipulation with Entergy and Staff agreeing 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 . . . . State of New York, Entergy Nuclear Operations, Inc., and NRC Staff Joint Stipulation (Jan. 23, 2012) at 2.

3

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

7. On February 27, 2009, after NRC Staff released the Draft Supplemental Environmental Impact Statement (DSEIS), which failed to address any of the issues raised in NYS-16, New York submitted an amended contention, NYS-16A, in addition to filing comments on the DSEIS on March 18, 2009. New York State Contentions Concerning Staffs Draft Supplemental Environmental Impact Statement at 10 n.4 (Feb. 27, 2009) (ML090690303);

NYS000134 (New York State Attorney General, Comments on the Draft Supplemental Environmental Impact Statement, Indian Point Units 2 and 3, Mar. 18, 2009, ML090771328) at 42-43; NRC000004/NYS00133C (NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Supplement 38, Volumes 1-3, FSEIS, Dec. 2010) at A-6.2

8. The Board admitted NYS-16As challenge to Entergys population projections stating, to the degree that the Draft SEIS fails to address the issues raised by New York in NYS-16 as admitted by the Board, NYS-16-A is within the scope of the proceeding and is admitted as such. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Order (Ruling on New York States New and Amended Contentions) at 6 (June 16, 2009) (unpublished)

(ML091670435).

9. On March 11, 2010, after Entergys December 2009 Reanalysis of Severe Accident Mitigation Alternatives (SAMA Reanalysis) failed to address issues raised in admitted Contention NYS-16/16A, New York submitted an amended contention, Contention 16B. 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) 2 The Indian Point FSEIS (NRC000004) was also submitted by the State as NYS00133A-NYS00133J. NRC000004 is a one page document incorporating NYS00133A-NYS00133J.

4

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B (ML100780366). Among other things, Contention 16B argues that the population projections used by Entergy in its 2009 SAMA Reanalysis are suspect and underestimate the potential exposed population. See Id. at 8 n.3. The contention specifies Entergys exclusion of commuters as an example of its underestimation. Id.

10. At approximately the same time, the State provided NRC Staff with additional written comments concerning the December 2009 SAMA Reanalysis, which mention Entergys exclusion of commuters. See State of New York Supplemental Submission Concerning Draft Supplemental Environmental Impact Statement Regarding the License Renewal of Indian Point Units 2 and 3, and Recent Events Including the December 2009 Reanalysis of Severe Accident Mitigation Alternatives Analysis and the Federal Governments Decision to Withdraw the Application for Yucca Mountain at 28, n. 8 (March 19, 2010) (ML101120602) (The December 2009 SAMA Reanalysis does not adequately take into account tourists and daily commuters -

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.).

11. The Board admitted Contention 16B, finding that it addresses an input to the MACCS2 code used by Entergy in its SAMA analysis, and that it was timely because it arose out of the 2009 SAMA Reanalysis. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

Memorandum and Order (Ruling on the Admissibility of New Yorks New and Amended Contentions 12B, 16B, 35, and 36) LBP-10-13, at 14-15 (June 30, 2010) (unpublished)

(ML101810344). The Board noted that its rulings on NYS-16 and NYS-16A had established the admissibility of the question whether the population projections used by Entergy are underestimated. Id. at 14. It concluded that Contention 16B is admissible because the absence 5

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B of commuters might underestimate the exposed population in a severe accident and, in turn, underestimate the benefit achieved in implementing a SAMA. Id.

12. On December 16, 2011, the State of New York filed its initial statement of position (NYS000206), expert report (NYS000209), pre-filed expert testimony (NYS000207),

and exhibits (NYS000208, NYSR00211-NYS000222) for consolidated Contention NYS-16B.3 On January 30, 2012, Entergy filed a motion in limine seeking to exclude those portions of New Yorks pre-filed testimony, report, and exhibits for Contention NYS-16B that concern census undercount. 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 (Jan. 30, 2012) (ML12030A218). The Board denied Entergys motion, finding that the issue of undercount is neither outside the scope nor a new issue; rather it is within the scope of the Contentions reasonably inferred bounds. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Order (Granting in Part and Denying in Part Applicants Motions in Limine) at 10 (Mar. 6, 2012) (unpublished) (ML12066A170).

13. On March 28 and 30, 2012, Entergy and NRC Staff, respectively, filed their statements of position (ENT000002 and NRC000040), pre-filed expert testimony (ENT000003 and NRC000041), and exhibits for Contention 16B (ENT000004-ENT000011, ENT000013-ENT000027 and NRC000042-NRC000061). The State then submitted a revised statement of 3

NYS000211 is an excerpt of NYS00270A and NYS00270B. On February 14, 2013, the State filed an unopposed motion to replace NYS000211, NYS00270A, and NYS00270B with color versions of the underlying document entitled Enercon, Site Specific MACCS2 Input Data for Indian Point Energy Center, Revision 1 (Dec. 1, 2009). Unopposed Motion By State of New York For Leave To Submit Two Revised Exhibits (Feb. 14, 2013) (ML13045A855). On February 19, 2013, the Board granted the motion. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Order (Granting New Yorks Motion for Leave to Submit Revised Exhibits) (Feb. 19, 2013) (unpublished) (ML13050A294). Those exhibits are now: NYSR00211, NYSR0270A, and NYSR0270B.

6

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B position (NYS000403), rebuttal testimony (NYS000404), and additional exhibits (NYS000405-NYS000409) on June 29, 2012. On July 30, 2012, Entergy filed another motion in limine, seeking to exclude certain statements in the States rebuttal testimony, as well as references to those statements in the States revised statement of position. Entergy argued that Dr.

Sheppards statements concerning commuters effect on decontamination costs and Entergys failure to look at the combined impacts of Contentions 12C and 16B on the SAMA analysis lack an adequate technical foundation, and are beyond the scope of the admitted contention and proper rebuttal testimony. Entergys Motion in Limine to Exclude Portions of New York States Rebuttal Filings on Contention NYS-16B (July 30, 2012) (ML12212A417). The Board denied Entergys motion in limine at the evidentiary hearing on October 15, 2012. Hearing Transcript (Tr.) at 1266:6-12 (J. McDade).

14. On Friday evening, October 12, 2012, less than one business day before the start of the scheduled evidentiary hearings, Entergy disclosed for the first time new MACCS2 computer runs and calculations related to Contention 16B. At the hearing, the Board entered Entergys calculations as Exhibit ENT000589, subject to a later objection, recognizing the late time when [the State] received it. Tr. 2519:5-10 (J. McDade). In accordance with the Boards ruling on October 23, 2012 allowing the State 30 days to object, see Tr. 2729:11-2732:3 (J.

McDade), the State objected to the admission of ENT000589 as irrelevant, immaterial, and unreliable under 10 C.F.R. § 2.337(a). The State of New Yorks Objection to ENT000589 (Nov.

21, 2012) (ML12326B001). The Board overruled the States objection, finding that each of New Yorks arguments constitutes a merit-based assessment and factual determination and that the State was not prejudiced by the late-filed exhibit. Entergy Nuclear Operations, Inc. (Indian 7

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Point, Units 2 and 3), Order (Overruling New Yorks Objection to Exhibit ENT000589) at 2 (Dec. 5, 2012) (unpublished) (ML12340A190).

15. On October 22, 2012, the Board heard live testimony from the States witness, Dr.

Stephen Sheppard, Ph.D.; Staffs witnesses Dr. Nathan E. Bixler, Dr. S. Tina Ghosh, and Mr.

Joseph A. Jones; and Entergys witnesses Ms. Lori Potts, Dr. Kevin OKula, Mr. Grant Teagarden, and Mr. Jerry Riggs. See Tr. 2405:20-2537:4. Following the hearing, the State, Entergy, and Staff conferred and submitted proposed transcript errata to the Board on December 5, 2012. Joint Transmittal of Proposed Transcript Corrections in the Matter of Indian Point, Units 2 and 3 (Dec. 6, 2012) (ML12340A545 and ML12340A546). In a December 27, 2012 order, the Board adopted the parties proposed corrections for NYS-16B, stating [p]ursuant to 10 C.F.R. § 2.327(d), the Office of the Secretary will make the necessary physical corrections in the official transcript, so that it will incorporate the changes ordered. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Order (Adopting Proposed Transcript Corrections with Minor Edits) at 2 (Dec. 27, 2012) (unpublished) (ML12362A278).

III. LEGAL STANDARDS A. NEPAs Requirements

16. Contention NYS-16 asserts deficiencies in the FSEIS under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. §§ 4321-47), the NRC regulations implementing the agencys responsibilities pursuant to NEPA (10 C.F.R. Part 51), and the Council on Environmental Quality regulations implementing federal agencies NEPA obligations (40 C.F.R. §§ 1500-08).

17. NEPA is our basic national charter for protection of the environment. 40 C.F.R.

§ 1500.1(a). NRC must comply with NEPA. Calvert Cliffs Coordinating Comm. v. U. S.

8

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Atomic Energy Commn, 449 F.2d 1109 (D.C. Cir. 1971) (holding that NEPA applies to NRCs predecessor agency).

18. NEPA requires an agency to prepare an environmental impact statement (EIS) for major Federal actions significantly affecting the quality of the human environment. 42 U.S.C.

§ 4332(2)(C). NRCs renewal of a nuclear power plants operating license is a major Federal action triggering this NEPA requirement. 10 C.F.R. § 51.20(b)(2); Massachusetts v. United States, 522 F.3d 115, 119 (1st Cir. 2008) (citing 10 C.F.R. § 51.20).

19. The preparation of an EIS advances NEPAs goals in two ways: first, it causes the agency to take the requisite hard look at the environmental impacts of the proposed action; and second, by making the relevant information publicly available, it allows the public to participate in the decision-making process. See Dept of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004);

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989); Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996).

20. The first purpose ensures that an agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts. Methow Valley, 490 U.S. at 349 (1989). The second purpose guarantees that the relevant information [concerning environmental impacts] will be made available to the larger audience, including the public, that may also play a role in the decisionmaking process and the implementation of the decision. Id.

21. An environmental analysis is not simply meant to create paperwork for the agency but, instead, to inform the NRCs decision. See 40 C.F.R. § 1500.1(c) (Ultimately, of course, it is not better documents but better decisions that count. NEPAs purpose is not to generate paperworkeven excellent paperworkbut to foster excellent action. The NEPA process is 9

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.).

22. [G]rudging, pro forma compliance [with NEPA] will not do. Lathan v.

Brinegar, 506 F.2d 677, 693 (9th Cir.1974) (en banc). Courts have cautioned that NEPA review must not [be] reduce[d] . . . to a rubber-stamp of agency action. See North Carolina Wildlife Federation v. North Carolina Dept. of Transp., 677 F.3d 596, 601 (4th Cir. 2012) (citing Fed.

Mar. Commn v. Seatrain Lines, Inc., 411 U.S. 726, 745-46 (1973)).

23. In furtherance of NEPAs goal of informing agency decision-making, NRCs NEPA regulations require analysis of significant problems and objections raised by other Federal, State, and local agencies, by any affected Indian tribes, and by other interested persons.

10 C.F.R. § 51.71(b). The FSEIS must respond to any comments on the draft environmental impact statement or on any supplement to the draft environmental impact statement. 10 C.F.R. § 51.91(a)(1); see also 40 C.F.R. § 1503.4(a).

24. In preparing an EIS, NEPA requires that the NRC take a hard look at potential environmental impacts, consider a reasonable range of alternatives, and provide a rational basis for rejecting alternatives that are decidedly cost-effective. Methow Valley, 490 U.S. at 350-52; 40 C.F.R. § 1502.14. An EIS must contain high quality information and accurate scientific analysis. 40 C.F.R. § 1500.1(b); Lands Council v. Powell, 395 F.3d 1019, 1031-32 (9th Cir.

2005); Conservation Northwest v. Rey, 674 F. Supp. 2d 1232, 1249 (W.D. Wash. 2009) (citing Ctr. for Biological Diversity v. U.S. Forest Svc., 349 F.3d 1157, 1167 (9th Cir. 2003)).

25. NRC must [r]igorously explore and objectively evaluate all reasonable alternatives to a proposed action. 40 C.F.R. § 1502.14(a). Consideration of alternatives is the 10

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B heart of the environmental impact statement, mandating that the NRC present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public. 40 C.F.R. § 1502.14. NRC must to the fullest extent possible . . . consider alternatives to its action which would reduce environmental damage. Calvert Cliffs, 449 F.2d at 1128 (emphasis in original). The consideration of alternatives requirement seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance . . . [and] . . . allows those removed from the initial process to evaluate and balance the factors on their own.

Id. at 1114. Absent this comparative analysis, decisionmakers and the public can neither assess environmental trade-offs nor avoid environmental harms. See id; Methow Valley, 390 U.S. at 351-52.

26. An EIS must also contain a detailed discussion of possible mitigation measures and the extent to which adverse effects can be avoided. Methow Valley, 390 U.S. at 351-52. The discussion of adverse effects must not improperly minimize negative side effects. Western Watersheds Project v. Kraayenbrink, 632 F.3d 472, 491 (9th Cir. 2011) (quoting Earth Island Inst. v. U.S. Forest Serv., 442 F.3d 1147, 1159 (9th Cir. 2006), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)). The omission of a reasonably complete discussion of possible mitigation measures would undermine the action-forcing function of NEPA. Without such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects. Id.

11

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B B. Requirement to Complete a SAMA Analysis

27. The Severe Accident Mitigation Alternatives (SAMA) analysis is the vehicle by which Staff considers, in the FSEIS, the environmental impacts of a severe accident and alternative mitigation measures to reduce those impacts. 10 C.F.R. § 51.53(c)(3)(ii)(L); 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1. The purpose of a SAMA analysis is to ensure that any plant changesin hardware, procedures, or trainingthat have a potential for significantly improving severe accident safety performance are indentified and assessed. Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2)

CLI-02-17, 56 N.R.C. 1, 5 (2002).

28. The SAMA requirement is rooted in Limerick Ecology Action, Inc. v. U.S.

Nuclear Regulatory Commn, 869 F.2d 719 (3d Cir. 1989), which held that NEPA requires NRC to examine the environmental effects of significant accidents at nuclear power plants and measures to mitigate those effects. The Limerick court recognized that SAMA analyses must be site-specific [b]ecause the potential consequences [of a severe accident] will largely be the product of the location of the plant. Id. at 738.

29. Following the Third Circuits 1989 decision and mandate in Limerick, in 1996 NRC promulgated regulations outlining the procedure for evaluating the risk of severe accidents on a site-specific basis in a SAMA analysis, but deferred that analysis until a reactor sought to extend its initial operating license. Under 10 C.F.R. § 51.53(c)(3)(ii)(L), if the [S]taff 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, a consideration of alternatives to mitigate severe accidents must be provided. Because Indian 12

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Point Unit 2 and Unit 3 were not subject to the SAMA analysis requirement when they received permission to operate in 1973 and 1975,4 a SAMA analysis is required for relicensing.

30. The applicant first completes a SAMA analysis as part of its Environmental Report. 10 C.F.R. § 51.53(c)(3)(ii)(L). Then, Staff reviews the applicants SAMA analysis, and presents the results of its review in its supplemental environmental impact statement (i.e., DSEIS and FSEIS). 10 C.F.R. § 51.95(c)(4); 10 C.F.R. §§ 51.53(c)(3)(ii)(L) and 51.71(d). See also NYS000220 (NUREG-1555 Standard Review Plans for Environmental Reviews of Nuclear Power Plants Supplement 1: Operating License Renewal, Oct. 1999) at 5.1.1-1 (This environmental standard review plan (ESRP) directs the [S]taffs analysis and assessment of the severe accidents for the applicants plant . . . . The intent is to identify additional cases that might warrant either additional features or other actions that would prevent or mitigate the consequences of serious accidents.).

4 See 21 Fed. Reg. 3,085 (May 9, 1956), 31 Fed. Reg. 13,616-02 (Oct. 21, 1966), 34 Fed. Reg.

13,437-04 (Aug. 20, 1969) (issuance of construction licenses for Indian Point facilities).

According to AEC and NRC documents, Consolidated Edison received the following construction permits and operation licenses on the following dates: Unit 1s construction permit was issued on May 4, 1956, and its conditional operating license was issued on March 26, 1962.

Unit 2s construction permit was issued October 14, 1966, and its operating license was issued on September 28, 1973; Unit 3s construction permit was issued August 13, 1969, and its operating license was issued on December 12, 1975. See 21 Fed. Reg. 3,085 (May 9, 1956); 31 Fed. Reg. 13,616-17 (Oct. 21, 1966); 34 Fed. Reg. 13,437 (Aug. 20, 1969) (issuance of construction permits for Indian Point facilities); NUREG-1350, Volume 20, 2008 - 2009 Information Digest, at 103, 113 (Aug. 2008) (providing dates of construction permits and operating licenses for Indian Point facilities). Of the three reactors at the site, only Indian Point Unit 2 and Indian Point Unit 3 continue to operate. AEC issued Indian Point Unit 1 one of the first (provisional) operating licenses in the country (DPR-005) and the reactor operated sporadically for approximately 12 years from August 1962 until October 31, 1974. In 1974, the plant was shut down because its emergency core cooling system did not meet regulatory requirements, and NRC later withdrew its operating license. See generally Consolidated Edison Co. of New York, Inc. (Indian Point Units 1 and 2), Power Authority of the State of New York (Indian Point Unit No. 3), DD-80-5, 11 N.R.C. 351, 1980 NRC LEXIS 149 at

• 5-8 (Feb. 11, 1980).

13

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

31. According to the Board, [T]he FSEIS must demonstrate that the NRC [S]taff has received sufficient information to take a hard look at SAMAs as required by 10 C.F.R.

§ 51.53(c)(3)(ii)(L), has in fact taken that hard look, and has adequately explained its conclusions. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Memorandum and Order (Ruling on Motion and Cross-Motions for Summary Disposition of NYS-35/36) LBP 17, 74 N.R.C. 11, at *27 (July 14, 2011) (ML111950712). In drafting the EIS, NRC Staff may draw upon the SAMA analysis submitted by the applicant in its Environmental Report, however, NRC Staff must comply with NEPA by ensuring that the applicants analysis is reasonably based on accurate severe accident cost estimates. See 10 C.F.R. 51.14(a) (Environmental report means a document submitted to the Commission by an applicant for . . . renewal of a permit, license or other form of permission . . . , in order to aid the Commission in complying with section 102(2) of NEPA.) and 10 C.F.R. 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.).

32. NRC examined the impacts of severe accidents on a generic basis seventeen years ago, therefore, the only site-specific analysis of severe accidents at Indian Pointand the only way NRC complies with Limericks mandateis the SAMA analysis.5 NRC000002 (NUREG-1437, Volumes 1-2: Generic Environmental Impact Statement for License Renewal of Nuclear 5

See also NRC000004 (NYS00133B) at 5-3 to 5-4 (The NRC staff has not identified any new and significant information with regard to the consequences from severe accidents during its independent review of the IP2 and IP3 ER (Entergy 2007a), the site visit, the scoping process, or evaluation of other available information. Therefore, the NRC staff concludes that there are no impacts of severe accidents beyond those discussed in the GElS. However, in accordance with 10 CFR 51.53(c)(3)(ii)(L), the NRC staff has reviewed severe accident mitigation alternatives (SAMAs) for IP2 and IP3. The results of its review are discussed in Section 5.2 of this draft SEIS.)

14

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Plants, GEIS, May 1996) at Chapter 5; Part 51, Subpart A, Appendix B, Table B-1; 10 C.F.R.

§ 51.53(c)(3)(ii)(L). Ultimately, the SAMA analysis and Staffs review of the SAMA analysis is crucial to determining whether the Commission has taken all practical measures within its jurisdiction to avoid or minimize environmental harm from the alterative selected, and if not, to explain why those measures were not adopted. 10 C.F.R. § 51.103.

C. Burden of Proof for NEPA Contentions

33. The burden of complying with NEPA lies with NRC Staff alone.6 By placing the burden on NRC Staff, NEPA insures the integrity of the agency process by forcing it to face those stubborn, difficult-to-answer objections without ignoring them or sweeping them under the rug and serves as an environmental full disclosure law so that the public can weigh a projects benefits against its environmental costs. See Sierra Club v. U.S. States Army Corps of Engrs, 772 F.2d 1043, 1049 (2d Cir. 1985) (citing Silva v. Lynn, 482 F.2d 1282, 1284-85 (1st Cir.

1973)). Thus, NRC Staffs responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage. Calvert Cliffs, 449 F.2d at 1119.

34. Staff cannot shift the burden of ensuring that its environmental analysis is adequate to intervenors. See Harlem Val. Transp. Assn v. Stafford, 500 F.2d 328, 336 (2d Cir.

1974) (An agency cannot be content to place the burden on intervenors whose resources might be limited to challenge any environmental statements that the [applicants] might make in their 6

See, e.g., Progress Energy Florida, Inc., (Combined License Application, Levy County Nuclear Power Plant, Units 1 and 2), Nuclear Reg. Rep. P 31605, 2010 WL 87737, *5 (2010)

(Commission recognizes that the ultimate burden with respect to NEPA lies with the NRC Staff); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 N.R.C. 1041, 1049 (1983) (the applicant has the burden of proof on safety contentions, however NRC Staff has the burden of proof on NEPA contentions because NRC, not the applicant, has the burden of complying with NEPA); 10 C.F.R. § 51.70(b) (NRC Staff must independently evaluate and be responsible for the reliability of all information used in the draft environmental impact statement.).

15

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B applications.); Greene County Planning Board v. Federal Power Commn, 455 F.2d 412, 419-20 (2d Cir. 1972), cert. denied, 409 U.S. 849 (1972) (a federal agency cannot abdicate its responsibility to independently evaluate federal actions proposed to it by other, non-federal entities).

35. Nor can NRC Staff shift the burden onto the applicant. NEPA establishes environmental protection as an integral part of the Atomic Energy Commissions basic mandate.

The primary responsibility for fulfilling that mandate lies with the Commission. Calvert Cliffs, 449 F.2d at 1119. See also Public Citizen, 541 U.S. at 765 (Admittedly, the agency bears the primary responsibility to ensure that it complies with NEPA.); Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (U.S. 1978) (NEPA places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action); Greene County Planning Bd., 455 F.2d at 420.

36. While the applicant can participate in the adjudicatory proceeding and advocate that the NRC Staff complied with its NEPA obligations, the compliance obligations remain with NRC Staff alone. Post-hoc analyses conducted by the applicants witnesses cannot substitute for the hard look required by Staff, nor can they meet Staffs burden of showing that the FSEIS complies with NEPA. Cf. Dubois v. U.S. Dept of Agriculture, 102 F.3d 1273, 1289 (1st Cir.

1996) ([P]ost hoc rationalizations are inherently suspect, and in any event are no substitute for the agencys following statutorily mandated procedures.).

D. Evidentiary Standards for this Relicensing Proceeding

37. After a partys contention has been admitted, that party has the burden of introducing sufficient evidence to establish a prima facie case. The burden then shifts to NRC Staff to prove by a preponderance of the evidence that it complied with the requirements of 16

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B NEPA. See Progress Energy Florida, Inc., (Combined License Application, Levy County Nuclear Power Plant, Units 1 and 2), Nuclear Reg. Rep. P 31605, 2010 WL 87737, *5 (2010)

(Commission recognizes that the ultimate burden with respect to NEPA lies with the NRC Staff); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 N.R.C. 1041, 1049 (1983) (as the proponent of the agency action at issue, an applicant generally has the burden of proof in a licensing proceeding, see 10 C.F.R. § 2.325, when NEPA contentions are involved, the burden shifts to NRC Staff, because the NRC, not an applicant, has the burden of complying with NEPA); cf. Louisiana Power and Light Co., 17 N.R.C. 1076, 1093 (quoting Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 A.E.C. 331, 345 (1973)

(Once [intervener] 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.).

38. Under NRCs regulations, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. 10 C.F.R. § 2.337(a). Throughout this proceeding, rather than exclude evidence, this Board has generally opted to give all evidence its appropriate weight at evidentiary hearing in the context of evaluating the specific issue before [it]. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting in Part and Denying in Part Applicants Motions in Limine) at 20 (Mar. 6, 2012) (unpublished)

(ML12066A170); see also id. at 24 ([t]he weight and credibility we give to that testimony will be determined after the evidentiary hearing). Now that the Board is evaluating the evidence presented, it is important to note that unsupported reasoning and computations, are insufficient 17

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B and should be afforded little or no weight. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. 287, 315 (Mar. 26, 2010).

39. Lastly, there is nothing that prevents the Board from evaluating related contentionssuch as NYS-16B and NYS-12Ctogether. Indeed, Boards often consider related contentions jointly. See, e.g., Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), 59 N.R.C. 129, 149-150 (Mar. 5, 2004) (considering contentions with overlapping factual and technical questions together, as a group); Consumers Power Co. (Midland Plant, Units 1 and 2),

16 N.R.C. 571, 579 (Aug. 14, 1982) (where similar considerations govern the disposition of multiple contentions, those contentions will be reviewed together); Niagara Mohawk Power Corp. (Nine Mile Point, Unit 2), 7 A.E.C. 1046, 1079 (June 14, 1974) (considering closely related contentions together). Staff itself noted that [t]he Staffs testimony and exhibits filed with respect to consolidated contention NYS-16B and NYS-12C are identical due to the substantial overlap of issues between the MELCOR Accident Consequence Code System 2 (MACCS2) and Severe Accident Mitigation Alternatives (SAMA) analysis. NRC000040 (NRC Staffs Initial Statement of Position on Consolidated Contention NYS-16B, Mar. 30, 2012) at n.1.

IV. FINDINGS OF FACT A. Witnesses and Qualifications

1. State of New Yorks Witness

40. The State provided one witness on Contention 16: Dr. Stephen Sheppard, Ph.D.

Dr. Sheppard submitted an expert report and both direct and rebuttal written testimony.

NYS000209 (Report of Dr. Stephen C. Sheppard, Ph.D. in Support of Contention NYS-16B, Dec. 16, 2011); NYS000207 Initial Pre-filed Testimony of New York State Expert Dr. Stephen 18

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B C. Sheppard, Ph.D. on Contention NYS-16B (Sheppard Initial Test.) (Dec. 16, 2011);

NYS000404 Rebuttal Pre-filed Testimony of New York State Expert Dr. Stephen C. Sheppard, Ph.D. on Contention NYS-16B (Sheppard Rebuttal Test.) (June 29, 2012). Dr. Sheppard testified in person at the evidentiary hearing in Tarrytown, New York, on October 22, 2012. See Tr. 2405:20-2535:11.

41. Dr. Sheppard has a Ph.D. in economics and is a Professor of Economics at Williams College in Williamstown, Massachusetts. NYS000207 Sheppard Initial Test. at 1:20-2:6; NYS000208 (Curriculum Vitae of Stephen C. Sheppard, Sept. 23, 2011) at 1. He has over thirty years of experience conducting research and teaching on topics such as microeconomic theory, urban economics, land use regulation, housing markets, and environmental economics.

Sheppard Initial Test. at 2:6-9; NYS000208. Dr. Sheppards experience has given him in-depth knowledge of the economic and social forces that determine rates of migration, where populations live, and decisions about family size. NYS000404 Sheppard Rebuttal Test. at 2:13-3:14.

42. Dr. Sheppard has worked extensively with population data, including U.S. Census Bureau data. Tr. 2405:25-2406:7 (Dr. Sheppard); NYS000207 Sheppard Initial Test. at 2:9-11.

For example, in 2003, Dr. Sheppard received funding from the World Bank and the National Science Foundation to study urban expansion in cities around the world. Sheppard Initial Test.

at 2:12-17; NYS000208 at 6. As population is a critical input in creating models to predict urban sprawl, he worked with data from the U.S. census and fifty-five other countries around the world to create accurate population estimates for that study. Sheppard Initial Test. at 2:14-17.

43. Based on the foregoing, and his respective background and experience, Dr.

Sheppard is qualified to testify as an expert witness in demographics and population modeling.

19

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B While Dr. Sheppard does not have experience using the MACCS or MACCS2 computer codes, or performing SAMA analyses, this does not affect his ability to examine and critique the population numbers relied upon by Entergy in its SAMA analysis. NYS000404 Sheppard Rebuttal Test. at 2:13-3:2.

2. Entergys Witnesses

44. Entergy presented four witnesses regarding Contention 16: (1) Ms. Lori Potts; (2)

Dr. Kevin OKula; (3) Mr. Grant Teagarden; and (4) Mr. Jerry Riggs. These witnesses provided pre-filed written testimony and testified in person at the evidentiary hearing in Tarrytown, New York, on October 22, 2012.7 ENT000003 Pre-Filed Testimony of Entergy Experts Lori Potts, Kevin OKula, Grant Teagarden, and Jerry Riggs on Consolidated Contention NYS-16B (Entergy Test.) (Mar. 28, 2012). Each of these witnesses, except Jerry Riggs, offered pre-filed and live testimony on NYS-12C in addition to NYS-16B.

45. Ms. Potts is a senior consulting engineer to Entergy in the areas of SAMA analysis and fire probabilistic risk assessment (PRA). ENT000003 Entergy Test. at 1 (A2)

(Potts). Ms. Potts has a B.S. in nuclear engineering and over 30 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. Entergy Test. at 2 (A3) (Potts); see also ENT000004 (Curriculum Vitae of Lori A. Potts, Mar. 2012). This includes experience in performing SAMA analyses using the MACCS2 computer code. Entergy Test. at 2 (A3) (Potts). Ms. Potts is one of the authors of the Nuclear Energy Institutes (NEI) industry guidance document for performing 7

With the agreement of all parties, Dr. OKula departed the hearing prior to cross-examination.

Tr. 2520:8-2521:9.

20

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B SAMA analyses. Entergy Test. at 2 (Q3) (Potts); NYS000287 (NEI 05-01, Rev. A, Severe Accident Mitigation Alternatives [SAMA] Analysis Guidance Document, NEI 05-01, Rev. A, Nov. 2005). Ms. Potts has been involved with the IPEC SAMA analysis from its inception in 2005. Entergy Test. at 2 (A4) (Potts).

46. Dr. OKula is an Advisory Engineer with URS Safety Management Solutions, LLC with over 20 years of experience using and applying the MACCS2 code and its predecessor, the MACCS computer code. ENT000003 Entergy Test. at 3 (A6) and 4 (A7)

(OKula). He has a B.S. in Applied and Engineering Physics and a M.S. and Ph.D. in Nuclear Engineering. Entergy Test. at 4 (A7) (OKula); ENT000005 (Curriculum Vitae of Kevin R.

OKula, Mar. 2012). Dr. OKula has taught MACCS2 training courses for the Department of Energy (DOE) and its contractors, and was the lead author of a DOE guidance document on the use of MACCS and MACCS2 for DOE safety analysis applications. Entergy Test. at 4 (A7)

(OKula). He was also a member of the State-of-the-Art Reactor Consequence Analysis (SOARCA) Project Peer Review Committee, which provided comment to NRC on the use of integrated modeling of accident progression and offsite consequences from postulated severe accidents using both state-of-the-art computational analysis tools and best modeling practices.

Entergy Test. at 4-5 (A7) (OKula).

47. Mr. Teagarden is a Manager for Consequence Analysis for ERIN Engineering &

Research, Inc. with fourteen years of experience in the nuclear field. ENT000003 Entergy Test.

at 6 (A11 and A12) (Teagarden). He has a B.S. in Mechanical Engineering and training in the U.S. Navy nuclear program. Entergy Test. at 6 (A12) (Teagarden); ENT000007 (Curriculum Vitae of Grant Teagarden, Jan. 1, 2012). He has substantial experience using the MACCS2 computer code and preparing Level 3 PRA models for commercial nuclear power plants in the 21

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B United States. Entergy Test. at 7 (A12) (Teagarden). Although Mr. Teagarden testified that he has performed or overseen the performance of MACCS2 modeling in support of SAMA analyses for ten nuclear power plant sites, (id. at 6 (A12) (Teagarden)), he clarified at the hearing, I have not performed any SAMAs for Entergy (Tr. 2061:13-14 (Teagarden)).

48. Mr. Jerry Riggs has worked for six years as a Geographic Information System Specialist for Enercon Services, Inc.8 ENT000003 Entergy Test. at 8 (A15 and A16) (Riggs);

ENT000008 (Curriculum Vitae of Jerry Riggs, Mar. 2012). Mr. Riggs has a B.S. in biochemistry and an M.A. in geography, with an emphasis in Digital Geography, including GIS and Remote Sensing. Entergy Test. at 9 (A16) (Riggs). He has assisted in the development of combined license applications, license renewal applications, research and development of GIS operating procedures, demographic analysis, environmental justice analysis, socioeconomic impact analysis, mapping and spatial analysis, GPS data mapping, and project coordination.

Entergy Test. at 8 (A16) (Riggs). Mr. Riggs testified that the basis of his demographic knowledge is his work conducting literature reviews and performing demographic analyses for a number of NRC license applications which has caused him to be very familiar with U.S.

Census Bureau data and related literature. Entergy Test. at 8 (A16) (Riggs). Mr. Riggs also testified that his firm, Enercon assisted in the development of the year 2035 population projection used in the IPEC SAMA analysis. Entergy Test. at 9 (A17) (Riggs). Mr. Riggs did not testify that he was personally involved in developing this population projection.

8 Entergy contracted with Enercon to perform the SAMA analysis contained in Entergys 2007 Environmental Report in support of the license renewal application for Indian Point Unit 2 and Unit 3; Enercon also preformed the December 2009 SAMA Renalysis for Entergy. See NYSR00211 (excerpt) and NYSR00270A/B (Enercon, Site Specific MACCS2 Input Data for Indian Point Energy Center, Revision 1, Dec. 1, 2009).

22

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

49. The Enercon and Entergy employees who worked on the December 2009 SAMA Reanalysis were not presented as witnesses at the evidentiary hearing. See NYSR00270A (Enercon, Site Specific MACCS2 Input Data for Indian Point Energy Center, Revision 1, Dec. 1, 2009) at 1-2; ENT000464 (Entergy Calculation No. IP-CALC-09-00265, Rev. 0, Re-analysis of MACCS2 Models for IPEC, Dec. 2, 2009) at 1; Tr. 2528:19-2529:9 (Sipos, Potts). According to the December 2009 SAMA Reanalysis (ENT000464), the following Entergy employees worked on the reanalysis: K. Hong, M. Golshani, and C. Yeh. See Tr. 2528:19-2529:9 (Sipos, Potts).

50. While Ms. Potts, Dr. OKula, and Mr. Teagarden have experience with the MACCS2 code and SAMA analyses, they do not have any expertise in analyzing demographic data to accurately estimate future populations. Mr. Riggs has at least some experience with demographic analysis and future population estimates, but his expertise pales in comparison to Dr. Sheppards education, published articles, and over 30 years of experience.

51. Furthermore, due to his exclusive focus on the nuclear industry, Mr. Riggs lacks the breadth of experience necessary to accurately estimate future populations. See NYS000404 Sheppard Rebuttal Test. at 3 (To be able to analyze demographic data, one needs training in the economic and social forces that determine rates of migration, where populations live, and decisions about family size. Training in fields such as labor or urban economics, urban sociology, and human geography provides an understanding of how to analyze demographic data to accurately estimate future populations. Training in how to operate a computerized mapping system does not provide an understanding of demography or the economic and social forces that determine population levels.).

52. Given Entergys witnesses relative lack of knowledge and experience in demography and population estimation, especially in light of Dr. Sheppards expertise and 23

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B experience, the Board should afford little weight to Entergys testimony on these topics. See Nimely v. City of New York, 414 F.3d 381, 399 n.13 (2d Cir. 2005) (But it is worth emphasizing that, because a witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no means follows that he or she is qualified to express expert opinions as to other fields.); Duke Entergy Corp. (Catawba Nuclear Station, Units 1 and 2), 60 N.R.C. 21, 29 (2004) (Gaps in specific knowledge may go to the weight of the expert testimony rather than to its admissibility.); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 62 N.R.C. 328, 357 (2003) (Presiding officers have, in the past, accorded less weight to the testimony of a witness acknowledging no expertise in a specific area.).

53. If there is a conflict between Dr. Sheppards testimony and these witnesses testimony on demography and/or population estimation, Dr. Sheppards testimony should prevail. Pub. Serv. Elec. & Gas Co., Atlantic City Elec. Co. (Hope Creek Generating Station, Units 1 And 2), 7 N.R.C. 642, 647 n.8 (1978) (Mr. Caccia . . . has claimed no expertise in the area of flammable gas tanker traffic. We do not, therefore, accord the weight to his opinion that we do to the opinion of Commander Henn.); Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 61 N.R.C. 71, 80 (2005) ([W]here the opinions of two experts may appear to be in conflict, Federal Rule of Evidence 702 may serve as guidance . . .

Under Rule 702, a witness qualifies as an expert by knowledge, skill, experience, training, or education.. . .[T]he opinion must be based on the methods and procedures of science rather than on subjective belief or unsupported speculation.) .

3. NRC Staffs Witnesses

54. NRC Staff filed joint pre-filed expert testimony for contentions NYS-16B and NYS-12C, noting [t]he Staffs testimony and exhibits filed with respect to consolidated 24

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B contention NYS-16B and NYS-12C are identical due to the substantial overlap of issues between the MELCOR Accident Consequence Code System 2 (MACCS2) and Severe Accident Mitigation Alternatives (SAMA) analysis. NRC000040 at n.1.

55. NRC Staff presented four witnesses regarding NYS-16B and NYS-12C: (1) Mr.

Donald G. Harrison; (2) Dr. S. Tina Ghosh; (3) Dr. Nathan E. Bixler; and (4) Mr. Joseph A.

Jones. All except Mr. Harrison testified in person at the evidentiary hearing in Tarrytown, New York, on October 22, 2012.9 NRC000041 Pre-Filed Testimony of NRC Staff Experts Nathan E.

Bixler, S. Tina Ghosh, Joseph A. Jones, and Donald G. Harrison Concerning NYS Contentions NYS 12/16 (Staff Test.) (Mar. 30, 2012).

56. Mr. Harrison has worked for the NRC for twelve years and is currently the Branch Chief in the Probabilistic Risk Assessment Licensing Branch at NRC. NRC000041 Staff Test. at 2 (A1d) (Harrison). This branch has responsibility for the Indian Point license renewal SAMA review and corresponding portions of the SEIS. Staff Test. at 2 (A1d) and 4 (A2d)

(Harrison). Mr. Harrison has a B.S. in nuclear engineering. NRC000045 (Curriculum Vitae of Donald G. Harrison, Mar. 2012) at 1. In his role as Branch Chief he supervises technical staff; facilitates resolution of policy, technical, and administrative issues; plans and executes work activities; and communicates effectively with internal and external stakeholders. NRC000045 at 1.

57. Dr. Ghosh has worked for the NRC for seven years and is currently a Senior Program Manager. NRC000041 Staff Test. at 1 (A1b) (Ghosh). She has a B.S.E. in civil engineering and operations research, an S.M. in technology and policy, and a Ph.D. in nuclear 9

Tr. 2402:14-18 (Harris) (As we discussed before the break last week, Mr. Harrison is not available now. But were still prepared to go forward with New York-16.).

25

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B engineering. NRC000043 (Curriculum Vitae of S. Tina Ghosh, Mar. 2012) at 1. She has experience reviewing SAMA analyses in support of nuclear power plant license renewal applications and writing the corresponding portions of the NRCs supplemental environmental impact statements. Staff Test. at 3 (A2b) (Ghosh). Ms. Ghosh was not involved in NRC Staffs review of the SAMA analysis contained in the license renewal application for Indian Point Unit 2 and Unit 3, but she did provide some input for the FSEIS in the form of responses to public comments on the postulated accidents and SAMA portions of the DSEIS. Staff Test. at 5 (A3b)

(Ghosh).

58. Dr. Bixler has worked for Sandia National Laboratories (Sandia) for over 28 years as an engineer and computer software researcher in the areas of accident analysis and fluid mechanics and is currently a member of the Technical Staff. NRC000041 Staff Test. at 1 (A1a)

(Bixler); NRC000042 (Curriculum Vitae of Nathan E. Bixler, Mar. 2012). He has a B.S. and Ph.D. in chemical engineering. NRC000042 at 1. Dr. Bixler works on the development and application of the MACCS2 code for the NRC. Staff Test. at 2 (A2a) (Bixler). He has also taught trainings on the use of the MACCS2 code system for estimating health and economic consequences. NRC000042 at 1. Dr. Bixler was was not directly involved in the Staffs review of the LRA [license renewal application]. Staff Test. at 5 (A3a) (Bixler). He became involved in Contention 16/16A in 2009 when NRC Staff asked him to assess the States motion for summary disposition on the element of Contention 16/16A concerning Entergys air dispersion model. See NRC Staffs Unopposed Request for an Extension of Time to Respond to the State of New Yorks Motion for Partial Summary Disposition of NYS Contention 16/16A at 4 (Sept. 11, 2009) (ML092570780); see also Affidavit of Joseph A. Jones and Dr. Nathan E. Bixler Concerning the State of New Yorks Motion for Partial Summary Disposition of NYS 26

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Contention 16/16A (Oct. 12, 2009) (ML092870215). During his assessment, Dr. Bixler discovered a potential error in the wind rose used in the MACCS2 portion of the analysis which resulted in an NRC staff request for additional information to Entergy and, ultimately, resulted in Entergy performing a SAMA reanalysis in December 2009. Staff Test. at 5 (A3a) (Bixler).

See also Tr. 2346:24-2347:17 (J. McDade, Jones, Sipos, Harris) (Jones stating that Dr. Bixler discovered the error in the wind direction calculations during Sandias review); NYS000221 (NRC Staff email, from Robert Palla to Andrew Stuyvenberg, containing document on weather runs, Oct. 29, 2009) at 4 ([T]he MACCS2 input of averaged weather used in the analysis does not appear to reflect the annual weather conditions.); NYS000217 (Excerpt of License Renewal ApplicationSAMA Reanalysis Using Alternate Meteorological Tower Data, NL-09-165, Dec.

2009) at 1 ([T]he original SAMA analyses used five year averages of wind speed, wind direction, precipitation, and temperature. The averaging method for wind direction, however, was determined to be incorrect and, as a result, the averaged wind direction data was not representative of wind direction conditions in the region for the five year period (Reference 5).

Therefore, the SAMAs have been reanalyzed using a single representative year of meteorological data as described below.).

59. Mr. Jones has worked for Sandia for twenty-three years and is currently a member of the Technical Staff. NRC000041 Staff Test. at 1 (A1c) (Jones); NRC000044 (Curriculum Vitae of Joseph A. Jones, Mar. 2012). He has a B.S. in civil engineering and experience in the areas of radiological emergency preparedness, consequence management, and radioactive materials cleanup activities. Staff Test. at 1 (A1c) (Jones). At Sandia, Mr. Jones has provided technical review of the emergency response and evacuation time estimates for Indian Point.

NRC000044 at 1; Staff Test. at 4 (A2c) (Jones). Similar to Dr. Bixler, Mr. Jones was not 27

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B directly involved in the Staffs review of the LRA, but became involved in Contention 16/16A in 2009 when the State filed its motion for summary disposition. See NRC Staffs Unopposed Request for an Extension of Time to Respond to the State of New Yorks Motion for Partial Summary Disposition of NYS Contention 16/16A at 4 (Sept. 11, 2009) (ML092570780); see also Affidavit of Joseph A. Jones and Dr. Nathan E. Bixler Concerning the State of New Yorks Motion for Partial Summary Disposition of NYS Contention 16/16A (Oct. 12, 2009)

(ML092870215); Tr. 2346:24-2347:17 (Jones). Also, Mr. Jones testified that NRC staff relied on my review of contentions 12 and 16 in their evaluation of the issues related to those contentions in the FSEIS, Appendix G. Staff Test. at 5 (A3c) (Jones).

60. While Mr. Harrison, Dr. Ghosh, and Dr. Bixler have experience with the MACCS2 code and/or SAMA analyses and Mr. Jones has experience with issues regarding emergency response and evacuation time estimates, none of Staffs witnesses has expertise in analyzing demographic data to accurately estimate future populations.

61. Nothing in Staffs witnesses resumes or testimony indicates that they are well qualified to give expert opinions on population estimates, regional commuting patterns, or census undercount. All four of NRC Staffs witnesses are civil or nuclear engineers. NRC000045 at; NRC000043 at 1; NRC000042 at 1; NRC000044 at 1. They do not have training in economics, sociology, or human geography, and are not experts in demography or population modeling, which indicates that their testimony on these topics should be afforded little weight. See NYS000404 Sheppard Rebuttal Test. at 3 (discussing training and other qualifications necessary to be able to analyze demographic data). If there is a conflict between Dr. Sheppards testimony and these witnesses testimony on demography and/or population estimation, Dr. Sheppards testimony should prevail.

28

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

62. The qualifications of Mr. Jones, who provided the majority of Staffs testimony on future population estimates, merit even closer review. Although Mr. Jones has reviewed population estimates in the context of evacuation time estimates, at the hearing he admitted that these estimates are not translatable to the SAMA analysis. Tr. 2438:8-2439:17. Mr. Jones also testified that he was not directly involved in the Staffs review of the LRA. NRC000041 Staff Test. at 5 (A3c) (Jones). When asked by Judge McDade how he came to the conclusion that twenty-five percent of Dr. Sheppards commuter population estimate are business travelers, Mr.

Jones stated: Now I was aware and fully confident that it was not 100 percent of the commuters were business travelers and I was very confident that half the commuters were not business travelers in this part of the country. So I selected an estimate of 25 percent. Tr. 2480:9-13 (Mr.

Jones). He later characterized this estimate stating: Or my estimate of 25 percent, it was an assumption for a simple illustration. Tr. 2481:1-2 (Mr. Jones) (emphasis added). By Mr.

Joness own admission, he picked a number at random and assumed it was correct, demonstrating his lack of expertise in this area.

63. Especially in light of Dr. Sheppards qualifications and expertise, Mr. Jones opinion testimony should be rejected or afforded little weight. As the Board explained in Duke Cogema Stone & Webster, 61 N.R.C. at 88-89:

[Where an expert] concedes that [he] was making an educated guess . . . the Board must focus on whether the experts opinions are sufficiently grounded upon facts.

By merely stating [his opinion], without providing a factual basis for his opinion,

[the expert] fails to provide the foundation necessary to support his claim.

See South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), 14 N.R.C.

1140, 1163 (1981) (In all circumstances the Board has the right, indeed the duty, to satisfy itself that the conclusions expressed by expert witnesses on significant safety or environmental questions have a solid foundation); Phila. Elec. (Limerick Generating Station, Units 1 and 2),

29

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 22 N.R.C. 681, 735 (1985) (Where an asserted expert witness can supply no scientific basis for his statements (other than his belief) and disparages his own testimony, a board would be remiss in giving such testimony any weight whatsoever.). Cf. Amorgianos v. Amtrak, 303 F.3d 256, 266 (2d Cir. 2002) (Thus, when an expert opinion is based on data, a methodology, or studies that are simply inadequate to support the conclusions reached, . . . [the testimony is]

unreliable opinion testimony.).

B. Background

1. Overview of the SAMA Analysis and MACCS2 Code

64. The NRC defines an accident as any unintentional event outside the normal plant operational envelope that results in a release or the potential for release of radioactive materials into the environment. NRC000002/NYS00131C (NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Vol. 1, GEIS, May 1996) at 5-1.10 Accidents are categorized as either design basis or severe. NRC000002/NYS00131C at 5-1.

A design basis accident is one the plant is designed specifically to accommodate.

NRC000002/ NYS00131C at 5-1. A severe accident is one involving multiple failures of equipment or function, and therefore, whose likelihood is generally lower than design-basis accidents but where consequences may be higher. NRC000002/NYS00131C at 5-1.

65. The SAMA analysis is a site-specific process in which Staff and the applicant consider mitigation measures that have the potential to increase plant safety by reducing severe accident risk. ENT000003 Entergy Test. at 20-21 (A43) (Potts, OKula, Teagarden). The SAMA analysis quantifies the cost associated with a severe accident and compares the cost of 10 The 1996 GEIS (NRC000002) was also submitted by the State as NYS00131A-NYS00131I.

NRC000002 is a one page document incorporating NYS00131A-NYS00131I.

30

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B implementing mitigation measures with the benefit that will be obtained from the implementation of such measures to mitigate the effects of a severe accident. NRC000041 at 19 (A8) (Ghosh, Bixler). The purpose is to identify those mitigation measures that are cost-beneficial, i.e., those mitigation measures whose benefit is greater than their cost. NYS000287 at 1; Entergy Test. at 20-21 (A43) (Potts, OKula, Teagarden).

66. These mitigation measures, known as SAMA candidates, include physical plant modifications or operational changes, such as improved procedures and augmented training of plant personnel. ENT000003 Entergy Test. at 21 (A43) (Potts, OKula, Teagarden). From its original list of potential SAMA candidates, Entergy removes those candidates that are not applicable to the plant design, have already been implemented, are similar to another SAMA or have been combined with another SAMA, or do not have a significant safety benefit.

ENT000011 (NUREG-1850, Frequently Asked Questions on License Renewal of Nuclear Power Reactors, Mar. 2006) at 4-33, Figure 4.1 (cited in Entergy Test. at 23, Figure 1).

67. NRC and Entergy use a computer modeling tool, known as the MACCS2 model, to determine the cost of a plants severe accident risk. NRC000041 Staff Test. at 21 (A12)

(Ghosh, Bixler) and 25-26 (A19) (Bixler); ENT000003 Entergy Test. at 23 (A47) (OKula, Teagarden). Most, if not all, LRAs to date have used MACCS2 or one of its predecessors in the SAMA analysis. Entergy Test. at24 (A48) (OKula, Teagarden). MACCS2 estimates the radiological doses, health effects, and economic consequences that could result from postulated accidental releases of radioactive materials to the atmosphere during a severe accident at a nuclear plant. NYS000216 (Excerpt of NUREG/CR-6613, SAND97-0594, D. Chanin, M.L.

Young, J. Randall and K. Jamali, Code Manual for MACCS2: Volume 1, Users Guide, May 1998) at 2-1.

31

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

68. The MACCS2 model is executed in three modules: (1) ATMOS, calculates air and ground concentrations, plume size, and timing information for all radiation plume segments as a function of downwind distance; (2) EARLY, calculates the consequences due to exposure to radiation in the first seven days, which is the emergency phase of the accident; and (3)

CHRONC, calculates the consequence of the long-term effects of radiation and computes the decontamination and economic impacts incurred due to the accident. NYS000216 at 2-1 to 2-2.

Site-specific population data are used as inputs to the EARLY and CHRONC modules.

ENT000003 Entergy Test. at 24 (A49) (OKula, Teagarden).

69. The MACCS2 model determines the range and possibility of severe accident consequences for the subject nuclear plant by examining different radiological releases, weather sequences, and exposed populations. ENT000003 Entergy Test. at 24-25 (Q50) (OKula, Teagarden); See NYS000243 (NUREG/CR-6613, Code Manual for MACCS2, Vol. 1, Users Guide, May 1998). To do so, it utilizes a polar-coordinate spatial grid, with the plant at the center surrounded by a 50 mile radius. Entergy Test. at 25 (A51) (OKula, Teagarden, Potts, Riggs); NYS000243 at 2-3 to 2-5. The grid is divided into sections by radial rings at radii of 0.2, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 20, 30, 40 and 50 miles from the plant. NYSR00211 (Enercon, Site Specific MACCS2 Input Data for Indian Point Energy Center, Revision 1, Dec. 1, 2009) at 1-1; Entergy Test. at 25 (A51) (OKula, Teagarden, Potts, Riggs). Each of the radial rings is transected by 16 wind direction sectors emanating from the plant. Entergy Test. at 25 (A51)

(OKula, Teagarden, Potts, Riggs). Population is input to the MACCS2 code by grid spatial element, with 240 spatial elements in total. Entergy Test. at 35 (A66) (OKula, Teagarden, Potts, Riggs).

32

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Figure 1: MACCS2 Polar Coordinate Grid, Centered Around Analyzed Facility (Source: ENT000003 Entergy Test. at 26. Based on Figure 2-1 in NYS000243 at 2-5)

70. Using population data and other inputs, the MACCS2 model 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.

ENT000003 Entergy Test. at 26 (A52) (OKula, Teagarden).

71. The MACCS2 code outputs offsite economic cost consequence values and offsite population dose values, which are multiplied by the calculated severe accident frequency results.

ENT000003 Entergy Test. at 27 (A53) (OKula, Teagarden). The results of that calculation are the off-site economic cost risk (OECR) and the population dose risk (PDR), which are used in the SAMA analysis. Entergy Test. at 27 (A53) (OKula, Teagarden). The PDR and OECR together represent frequency-averaged cost associated with a severe accident at Indian Point without implementing any SAMA candidates. Entergy Test. at 27 (A53) (OKula, Teagarden).

33

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

72. Entergy uses the outputs from the MACCS2 model to calculate the maximum attainable benefit, which is the dollar value of the benefit if the risk could be reduced to zero.

ENT000011 at 4-33, Figure 4.1 (cited in ENT000003 Entergy Test. at 23, Figure 1). Entergy then removes from further consideration SAMA candidates costing more than the maximum attainable benefit. ENT000011 at 4-33, Figure 4.1 (cited in ENT000003 Entergy Test. at 23, Figure 1).

73. For each of the remaining SAMA candidates, the impact each SAMA candidate has on mitigating the effects of a severe accidenti.e. the benefit of the SAMA candidateis separately calculated using the MACCS2 code. See Tr. 1910:16-1911:3 (Teagarden); Tr.

1911:13-1913:14 (J. Kennedy, Teagarden). The cost of implementing each SAMA candidate is calculated, and that implementation cost is compared to the calculated benefit. Tr. 1911:4-12 (Teagarden). When the benefit achieved by a given SAMA candidate is greater than the costs of implementing that SAMA candidate, it is cost-beneficial. See ENT000003 Entergy Test. at 27 (A54) (OKula, Teagarden, Potts); NRC000041 at 19 (A9) (Ghosh, Bixler).

74. NEI 05-01, Rev. A provides guidance to applicants on how to conduct a SAMA analysis. NYS000287 (NEI 05-01 Rev A, Severe Accident Mitigation Alternatives [SAMA]

Analysis, Guidance Document, Nov. 2005). This document was prepared by the nuclear industry and endorsed by NRC Staff. See ENT000451 (72 Fed. Reg. 45,466, Aug. 14, 2007). It specifically discusses the population that should be used in the SAMA analysis:

Provide a predicted population within a 50-mile radius of the site. The predicted population distribution may be obtained by extrapolating publicly available census data. Transient population included in the site emergency plan should be added to the census data before extrapolation. Explain why the population distribution used in the analysis is appropriate and justify the method used for population extrapolation.

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 34

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B course, if a population reduction is projected, extrapolation to an earlier date would be more reasonable.

NYS000287 at 13.

2. Population Estimate Used in Indian Points SAMA Analysis

75. Entergys SAMA analysis for Indian Point utilized an estimated population for the year 2035the last year of Indian Point Unit 3s extended operating period and two years after the end of Unit 2s extended operating period. NYSR00211 at 2-1; Entergy Test. at 31-32 (A62) (Potts, Riggs). Entergy decided to extrapolate population to this date based on the industry guidance in NEI 05-01, Rev. A (NYS000287 at 13), which states that extrapolation to a later date in the period of extended operation adds conservatism to the analysis unless a population reduction is predicted. Entergy Test. at 31-32 (A62) (Potts, Riggs).

76. Entergy included two categories in its 2035 population estimate: (1) the population that resides within the 50 mile radius of Indian Point (resident population); and (2) tourists and business travelers that spend time within the 50 mile radius of Indian Point but do not reside there (transient population). NYSR00211 2-1 to 2-5; Entergy Test. at 32 (A63)

(Potts, Riggs); Entergy Test. at 33 (A65) (Potts, Riggs)

77. To estimate the resident population, Entergy first determined the year 2000 population within the 50-mile radius of Indian Point, and then projected that population out to the year 2035. NRC000004/NYS00133I at Appendix G, G-20; NYSR00211 at 2-1; Entergy Test. at 32 (A63) (Potts, Riggs). The record, however, is not clear as to how Entergy calculated the year 2000 resident population because Entergys witnesses gave conflicting testimony on this issue. In their pre-filed testimony, Ms. Potts and Mr. Riggs stated that Entergy used population estimates from state and local governments, based on published 2000 U.S. Census data, to determine the resident population of each county. Entergy Test. at 32 (A64) (Potts, Riggs); see 35

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B also Tr. 2427:25-2428:20 (Sheppard) (stating that according to the Enercon report, population estimates were calculated at the county level). At the hearing, however, Mr. Riggs testified that the 2000 resident population was not based on county-level data received from states, but instead, it was based on Census 2000 block level data. Tr. 2429:1-18, 2430:1-10, 2445:13-15 (Riggs). Census blocks are much smaller than counties, and therefore, census block data is of a higher resolution than county-level data. Tr. 2430:20-2431:12 (Riggs); Tr. 2444:12-20 (Riggs).

78. This discrepancy is significant because the former method is a less accurate way to estimate population than the later. The former method estimates population on the county level and assumes that population is distributed evenly throughout the county. Tr. 2427:25-2428:20 (Sheppard). The later method estimates population on the smallest geographic area for which the Census Bureau collects datathis method captures more detail and is therefore, more precise.

79. Since Entergy has never provided the data it used for this calculation, it is impossible to verify which method was actually used. However, the December 2009 Enercon Report, which describes how Entergy estimated the 2035 population and which was cited by Entergys witnesses in their written testimony, does not mention the use of census block level data as a baseline for the population estimate. See NYSR00211.

80. Regardless of whether the 2000 resident population was calculated at the county-level or the census block-level, the record shows that the population growth rates were calculated using county-level population projections provided by the states. Tr. 2429:1-2430:10 (Riggs);

NYSR00211 at 2-1; NRC000004/NYS00133I at Appendix G, G-20. Since the states did not provide projections out to the year 2035, Entergy used linear regression to extrapolate the county-level population projections to that date. NYSR00211 at 2-1; NRC000004/NYS00133I 36

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B at Appendix G, G-20; Entergy Test. at 33 (A65) (Potts, Riggs). Each countys growth rate was applied to the 2000 population in that county (or at the census block level within that county) to estimate the 2035 resident population. Tr. 2447:17-14 (Teagarden).

81. To calculate the tourists and business travelers, Entergys pre-filed testimony explains that through Enercon it obtained data on the number of annual visitors statewide from state tourism departments. Entergy Test. at 33 (Q65) (Potts, Riggs). It obtained 2004 data from Connecticut, New Jersey and New York. NYSR00211 at 2-2. For Pennsylvania, it could only obtain 2003 data, so the data was assumed to remain constant for 2004. NYSR00211 at 2-2.

Entergy has not disclosed which visitors are included in the state tourism data or how this data is collected by the states. NYS000404 Sheppard Rebuttal Test. at 13:10-12. See NYSR00211 at 2-2 to 2-3; Entergy Test. at 33 (A65) (Potts, Riggs).11

82. Entergy used the state-level tourism data to estimate the ratio of the resident to transient population in 2004. Entergy Test. at 33 (A65) (Potts, Riggs). It calculated the 2035 transient population by multiplying the 2004 resident-to-transient population ratio by the extrapolated 2035 resident population by county. NYSR00211 at 2-5; NRC000004/NYS00133I at Appendix G, G-20; Entergy Test. at 33 (A65) (Potts, Riggs). The resulting transient population is an average of person-visits per day per county. Sheppard Initial Test. at 7:14-15.

83. Entergy added the 2035 county-level transient population to the 2035 county-level resident population, then transferred the 2035 projected total population by county to the 240 11 At the hearing Mr. Riggs did not provide anymore detail on the state tourism data utilized in the transient population estimate. Explaining how Entergy and Enercon calculated the transient population, he testified: What we do is we get the information from the state tourism bureaus and its usually in state form and then we area weight those values into the counties to create an index. Then we convert that into the sector grid, using spatial area weight. Tr. 2464:10-15 (Riggs).

37

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B MACCS2 grid spatial elements, using areal weighting. NYSR00211 at 2-6; Entergy Test. at 35 (A66) (OKula, Teagarden, Potts, Riggs).

84. The first diagram that follows shows the population surrounding Indian Point by grid spatial elementthe darker the shade of the grid spatial element, the higher the population.

The second diagram shows that the predominate wind direction moves toward the grid spatial elements with the highest population. See Tr. 2294:4-6 and 9-20 (J. Wardwell, OKula) (For the area surrounding Indian Point, the wind blows predominantly from the north to the south.). The third diagram shows the meteorological data that Entergy input in the MACCS2 code before Dr.

Bixler realized it was flawed because it averaged five years of meteorological data and used the five year average as input data . . . rather than using the standard approach of sampling over a year of data. NYS000221; see Finding of Fact ¶ 58, above.

Figure 2: 2035 total population by grid element (dark red indicates the highest population). NYSR00211 at 2-7.

38

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Figure 3: Plot of Weather for Years 1999 - 2002 from the site 10 meter tower showing wind direction (percent by direction). NYS000221 at 3 (color version of figure available on ADAMS, ML093020492).

Figure 4: Plot of Entergy five year averaged weather from the site ten meter tower showing direction wind is blowing towards (percent by direction). NYS000221 at 3 (color version of figure available on ADAMS, ML093020492).

39

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

3. The States Comments To NRC Staff Regarding the Population Estimate In The DSEIS and FSEIS

85. In 2007, one year before NRCs publication of the DSEIS, New York brought Entergys population underestimation to the agencys attention. New York State Notice of Intention to Participate and Petition to Intervene, Contention 16, at 163 (Nov. 30, 2007)

(ML073400187). Nevertheless, NRC Staff did not address the States concerns in the DSEIS, and instead, it accepted, without questioning, Entergys population assumptions.

NRC000003/NYS00132D (NUREG-1437, Draft Supplemental Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Indian Point Units 2 and 3, Supplement 38, Volumes 1 and 2, DSEIS, Dec. 2008) at Appendix G, G-18 (The NRC [S]taff considers the methods and assumptions for estimating population reasonable and acceptable for the purposes of the SAMA evaluation.).12

86. Although New York again raised the issue of population underestimation in NYS-16A, Staff failed to question Entergys population estimates in the body of the FSEIS, and instead, merely repeated (nearly verbatim) the assessment it made of Entergys population estimates in the DSEIS. See NRC000004/NYS00133I at Appendix G, G-20. In FSEIS Appendix G, dedicated to addressing issues raised by New York Contentions 12 and 16, Staff purports to review Entergys baseline and projected population values and its population projection methodology. NRC000004/NYS00133I at Appendix G, G-24.

12 The DSEIS (NRC000003) was also submitted by the State as NYS00132A-NYS00132D.

NRC000003 is a one page document incorporating NYS00132A-NYS00132D.

40

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

87. NRC Staff employed Sandia National Laboratories (Sandia)13 to verify both Entergys population base and the methodology by which it extrapolated that base population out to the year 2035, but neither NRC nor Sandia examined the assumptions through which Entergy arrived at its base populationassumptions, which, as described below, are invalid. First, both NRCs analysis of Entergys population estimates and Sandias independent population estimates rely on 2000 census data without factoring in the effects of census undercount.

NRC000004/NYS00133I at Appendix G, G-24 to G-25. Second, despite referencing the very pleading in which New York argues that commuters must be included in any credible estimate of the population of the New York City metropolitan region, NRC Staff does not question Entergys exclusion of commuters from the transient population. NRC000004/NYS00133I at Appendix G, G-24 to G-25.

88. Sandias examination led Entergy to redo its SAMA analysis in December 2009.

See Staff Test. at 5 (A3a) (Bixler); Tr. 2346:24-2347:17 (Jones); NYS000221 at 4; NYS000217 at 1. Entergy changed several inputs to MACCS2 code, but it did not modify the 2035 population estimate. See NYS000217. Therefore, on March 19, 2010, the State submitted supplemental comments stating: The December 2009 SAMA Reanalysis does not adequately take into account tourists and daily commuters - individuals who are not included in New York Citys resident population, but who nevertheless could be affected by a severe accident while 13 In April 2011, the State filed a motion to compel NRC Staff to disclose the Sandia documents they relied upon in the FSEIS. State of New York Motion to Compel NRC Staff to Produce Documents Relied Upon in Staffs Final Supplemental Environmental Impact Statement (April 22, 2011) (ML11132A149). After oral argument before the Board, NRC agreed to provide the documents to settle the States motion. See Letter from Sherwin E. Turk to Janice A. Dean (May 25, 2011) (ML11146A058). By letter dated November 2, 2011, NRC Staff indicated that they were not asserting deliberative process privilege over the Sandia documents that were provided.

Letter from Sherwin E. Turk to Janice A. Dean (November 2, 2011) (ML11306A125). The documents produced concerned various issues including population estimates and air dispersion.

41

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B they are in the City. See State of New York Supplemental Submission Concerning Draft Supplemental Environmental Impact Statement Regarding the License Renewal of Indian Point Units 2 and 3, and Recent Events Including the December 2009 Reanalysis of Severe Accident Mitigation Alternatives Analysis and the Federal Governments Decision to Withdraw the Application for Yucca Mountain at 28, n. 8 (Mar. 19, 2010) (ML101120602). Staff did not respond to the States comments on the SAMA reanalysis.

C. The SAMA Analysis Does Not Account For Census Undercount And Therefore Underestimates the Costs of a Severe Accident at Indian Point

89. Census undercount is the persistent undercount of portions of the population by the U.S. Census Bureau in the decennial census. Tr. 2406:23-2407:16 (Dr. Sheppard);

NYS000207 Sheppard Initial Test. at 5:22-6:1 and 10:18-20. Census undercount consists of people who are actually resident at a particular location, but are not included in the census count of that location. Sheppard Initial Test. at 11:14-16.

90. The phenomenon of census undercount has been widely studied by demographers and the Census Bureau. Tr. 2406:24-2407:1 (Sheppard). Since at least the 1990s, demographers, economists, other social scientists, the U.S. Congress, and the U.S. Census Bureau have had a clear understanding that the census of population conducted by the U.S.

Census Bureau is subject to a systematic undercount. Tr. 2407:1-4 (Sheppard); NYS000209 at 4; NYS000404 Sheppard Rebuttal Test. At 18:8-10. See NYS000213 (U.S. Census Monitoring Board, Presidential Members Final Report to Congress, Sept. 1, 2001); NYS000212 (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).

42

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

91. At the hearing, both Staffs witness Mr. Jones and Entergys witness Mr. Riggs agreed with Dr. Sheppard that the decennial census is subject to census undercount. Tr. 2418:10-17 (Jones); Tr. 2420:7-12 (Riggs). Mr. Jones admitted that an undercount of approximately 1%

of the permanent population exists. Tr. 2418:10-17 (Jones). Mr. Riggs stated: Undercount is a standard occurrence in census. Thats when you omit people for whatever reason. The Census Bureau has historically tried to mitigate that effort [sic] by providing estimates to counter the undercount effect. Tr. 2420:7-12 (Riggs).

92. Census undercount is particularly prevalent in minority and poor populations, which are undercounted at higher rates than other populations. NYS000207 Sheppard Initial Test. at 10:20-21; NYS000209 at 4. These groups may, for one reason or another, fear adverse consequences if they are counted as part of the census population, and therefore, endeavor to not be counted. Tr. 2407:4-8 (Sheppard). For example, minorities and the poor may have a higher fraction of persons who are nervous about being counted due to a legal dispute, an outstanding warrant, or their immigration status. Tr. 2412:1-6 (Sheppard). For these reasons, they may avoid filling out census forms or answering questions from Census Bureau enumerators. Tr.

2412:10-15 (Sheppard). Accordingly, areas with particularly high minority populations are particularly vulnerable to census undercount. NYS000209 at 4.

93. The Census Bureau uses the Accuracy and Coverage Evaluation (A.C.E.)

process to better understand and estimate the extent of census undercount in each decennial census. Tr. 2409:1-7 (Sheppard); NYS000404 Sheppard Rebuttal Test. at 22:7-10. As with previous censuses, the A.C.E. found that Census 2000 was subject to an undercount of the minority population. See NYS000213 at 29, Table 2; NYS000214 (J.G. Robinson, ESCAP II:

Demographic Analysis Results, Executive Steering Committee for A.C.E. Policy II Report No. 1, 43

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Oct. 13, 2001) at 25, Table 7; ENT000016 (U.S. Census Bureau, Technical Assessment of A.C.E. Revision II, Mar. 12, 2003) at 12, Table 1.

94. The A.C.E. process has provided several different estimates of the magnitude of the census undercount in 2000. NYS000404 Sheppard Rebuttal Test. at 22:10-11; NYS000214 at 23, Table 6 and 25, Table 7; ENT000016 at 12, Table 1. According to the A.C.E. results, the undercount rate for minority populations in the 2000 census ranges from 5.8% for black males to less than 1% for Native Americans. Sheppard Rebuttal Test. at 22:13-17; NYS000214 at 19, Table 2; ENT00016 at 12, Table 1. The variation in estimates depends upon whether one relies on demographic analysis (births, deaths, and migration flows) or post-enumeration sampling to estimate the magnitude of the undercount. Tr. 2411: 1-9 (Sheppard); Sheppard Rebuttal Test. at 22:17-20.

95. The A.C.E. Revision II did not supersede the original A.C.E. report, but instead confirmed that minority populations were undercounted in the 2000 census. NYS000404 Sheppard Rebuttal Test. at 22-24; ENT000016 at ii (A.C.E. Revision II estimated . . . a net undercount of 1.84 percent for non-Hispanic Blacks.). Although the A.C.E. Revision IIs post enumeration sampling indicated a slight overcount of the white population, the demographic analysis showed a net undercount nationwide. ENT000016 at 33-35 (Table 13 reports a .12%

net undercount of the entire population).

96. While the record is unclear as to how exactly Entergy calculated its 2035 population estimate, it is clear that the estimate was based on U.S. Census Bureau data from the 2000 decennial censuseither census block data directly from the Census Bureau or county-level estimates from the states, which utilized Census Bureau data. See Finding of Fact ¶ 76, above.

44

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

97. The record is also clear that Entergy did not adjust this data to account for census undercount. NYS000404 Sheppard Rebuttal Test. 20:12-13, NRC000041 at 99-100 (A91)

(Jones).

98. There is no dispute that census data was the proper starting point for Entergy in forming a population estimate,14 but the 2000 census data on which Entergy based its 2035 population estimate was artificially low due to Entergys failure to adjust the 2000 census data to account for census undercount. NYS000207 Sheppard Initial Test. at 11:11-14.

99. The 50-mile radius surrounding Indian Point is particularly prone to census undercount because it has large minority and urban populations, which are disproportionately affected by census undercount. NYS000404 Sheppard Rebuttal Test. at 25:21-26:12.

Approximately forty percent of the population surrounding Indian Point is black or Hispanic.

Sheppard Rebuttal Test. at 26:6-9; Tr. 2412:22-2413:5 (Riggs). This is nearly double the national average. Sheppard Rebuttal Test. at 26:9-10; Tr. 2411:14-17 (Sheppard).

100. The relatively large share of population that is nonwhite implies that the undercount of minorities is almost certainly not equalized by the slight overcount of the white population found by the A.C.E. Revision II post enumeration sampling. Sheppard Rebuttal Test.

at 26:13-23. Moreover, there is controversy amongst demographers, economists, and sociologists about whether such an overcount could possibly be true. Tr. 2423:7-9 (Sheppard);

NYS000404 Sheppard Rebuttal Test. at 24:1-18. See also ENT000016 at 34, Table 13 (reporting a .12% net undercount of the entire population).

101. Furthermore, it has been documented that census undercount occurs at higher rates in places with larger populations. NYS000404 Sheppard Rebuttal Test. at 27:1-2. The 14 Sheppard Rebuttal Test. At 17:11-12; Tr. 2407:20-2408:9 (Sheppard, Teagarden, Jones).

45

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B A.C.E. Revision II found a net undercount in approximately 60% of places where the population is larger than 100,000. ENT000016 at 25, Table 10. As Indian Point is located twenty-four miles from the most populous city in the country, census undercount is more likely to affect this region than other, less populous regions of the county. Sheppard Rebuttal Test. at 27:5-8.

102. Therefore, Entergy should have adjusted its population estimate to account for the census undercount of minorities living within 50 miles of Indian Point. NYS000207 Sheppard Initial Test. at 13:10-17.

103. Adjusting for census undercount is uncontroversial among demographers.

NYS000404 Sheppard Rebuttal Test. at 18:7-15. Any controversy surrounding census undercount adjustment arises over the political implications of the adjustment, rather than the adjustment itself. Sheppard Rebuttal Test. at 18:16-19:5. Census data is used for apportioning seats in the U.S. House of Representatives, drawing boundaries of U.S. electoral districts, and allocating federal funds. Sheppard Rebuttal Test. at 18:16-19. Adjusting census data for census undercount or for any other reason can be politically controversial because of its consequencesa state may lose a congressional seat, an electoral districts boundaries may change, or a municipality may lose federal funding. Sheppard Rebuttal Test. at 18:19-19:1.

Such factors play no role in adjusting Entergys population estimate for census undercount.

Sheppard Rebuttal Test at 24:19-25:8.

104. It is possible to account for census undercount in Entergys 2035 population estimate. NYS000207 Sheppard Initial Test. at 12:5-7. The rate of census undercount for various groups in the 2000 census ranged from 0.52% to 4.49%. Sheppard Initial Test. at 12:7-9.

See also NYS000214 at 25, Table 7. Averaging these rates and rounding to the nearest percent gives 3% as a reasonable average percentage undercount. Sheppard Initial Test. at 12:10-11, Tr.

46

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 2416:18-2417:20 (Sheppard). Assuming no undercount of the white population and applying this 3% undercount rate to the 2000 census figures for non-white population results in an overall estimated undercount of 1.11% in the 50 mile zone surrounding Indian Point. Sheppard Initial Test. at 12:10-15; NYS000209 at 4-5.

105. In general, the growth rate of minority populations is somewhat faster than the growth rate of the population as a whole, but one can reasonably assume that the growth rate from 2000 to 2035 for the undercounted minority population will be the same as that for the population as a whole in each county. Sheppard Initial Test. at 12:17-21. Applying this growth rate and taking the share of land area in each county that is within 50 miles of Indian Point (equivalent to assuming that the undercounted population in each county is uniformly distributed over the county) as the share of required county adjustment provides the adjustment for census undercount for each county. Sheppard Initial Test. at 12:22-13:4.

106. Based on this calculation, Entergys failure to adjust for census undercount led it to underestimate the 2035 permanent population by approximately 231,632 people. Sheppard Initial Test. at 13:7-9; NYS000209 at 8, Table 1.

107. At the hearing, NRC Staffs witness Mr. Jones agreed that Entergys 2035 population was underestimated by approximately one percent because it failed to account for census undercount:

JUDGE McDADE: Were going to be getting into the significance of this data later this morning. But my question at this point is do you concede that Dr. Sheppards analysis that there is in all probability an undercount of the permanent population of approximately 1.18 percent is valid?15 MR. JONES: I agree that approximately one percent number is valid.

15 The State is citing to the corrected transcript. See January 30, 2013 Board Order, accepting the parties errata for the October 2012 hearing transcript; 10 C.F.R. § 2.327(d).

47

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Tr. 2418:10-17 (J. McDade, Jones).

108. An estimate that takes census undercount into account is more reasonable than one that does not because it provides a more accurate account of the total permanent population in an area. Sheppard Initial Test. at 13:10-17.

109. A population estimate that accounts for census undercount complies with NEI 05-01 Rev. A, which calls for conservatism in the population estimate. NYS000287 at 13.

110. Census undercount caused the 2035 resident population to be underestimated.

NYS000207 Sheppard Initial Test. at 5:15-6:8. Those missing residents contribute to both the PDR and the OECR in a severe accident scenario. NYS000404 Sheppard Rebuttal Test. at 35:21-36:12; see ENT000003 at 49 (A88) (OKula, Teagarden).

111. Therefore, Entergys failure to account for census undercount caused it to underestimate the costs of a severe accident in its SAMA analysis. NYS000207 Sheppard Initial Test. at 3:6-4:3; NYS000404 Sheppard Rebuttal Test. at 35:21-36:12. Staff approved Entergys SAMA analysis despite this underestimation. See NRC000003/NYS00132D at Appendix G, G-18 (The NRC [S]taff considers the methods and assumptions for estimating population reasonable and acceptable for the purposes of the SAMA evaluation.).

D. The SAMA Analysis Does Not Include Commuters And Therefore Underestimates the Costs of a Severe Accident at Indian Point 112. NEI 05-01, Rev. A instructs applicants to include transient population in the population estimate used for the SAMA analysis: Transient population included in the site emergency plan should be added to the census data before extrapolation. NYS000287 at 13; ENT000003 Entergy Test. at 28 (A56) (Potts, Riggs).

48

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 113. NEI 05-01 Rev. A does not define transient population, but instead refers to the transient population in the site emergency plan. NYS000287 at 13; Tr. 2499:10-11 (Teagarden).

In turn, a licensees site emergency plan utilizes the transient population from the sites evaluation of evacuation time estimates. Entergy Test. at 28 (A56) (Potts, Riggs). Evacuation time estimates include commuters in their transient populations pursuant to NRC guidance:

The transient population group includes visitors, tourists, shoppers, employees not residing in the area, and other people visiting the area temporarily. NYS000406 (Development of Evacuation Time Estimate Studies for Nuclear Power Plants, NUREG/CR-6863, Jan. 2005) at 6.

See NYS000405 (Excerpt of NUREG/CR-4831, State of the Art in Evacuation Time Estimate Studies for Nuclear Power Plants, Mar. 1992) at 3; NYS000407 (Excerpt of Criteria for Development of Evacuation Time Estimate Studies, NUREG/CR-7002, Nov. 2011) at 11-13.

114. Since the site emergency plan utilizes the definition of transient population from the evacuation time estimate report, and that definition includes commuters, the transient population included in the SAMA analysis must also include commuters. NYS000404 Sheppard Rebuttal Test. at 8:5-10:20.

115. Entergys SAMA analysis included only business travelers and tourists as transients. Tr. 2499:12-15 (Teagarden). The data Entergy used to estimate this transient population was gathered from state tourism agencies, and therefore includes only visitors, as defined by the individual states (i.e. tourists and business travelers). Sheppard Rebuttal Test. at 7:10-12; ENT000003 Entergy Test. at 28 (A55) (Potts, Riggs). Commutersthose who live outside the 50-mile radius of Indian Point and travel to workplaces within the 50-mile radius were not included in the population estimate. Tr. 2494:21-24 (Teagarden).

49

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 116. It is possible to estimate the commuter population that travels to workplaces within the 50-mile radius of Indian Point. Sheppard Initial Testimony at 14:11-15. The Census Bureau provides data on county-to-county commuter flows. Sheppard Initial Testimony at 14:11-15. This data is collected in the decennial census and is available for 2000the year utilized by Entergy to create the baseline population for the SAMA analysis. Sheppard Initial Testimony at 14:11-15; NYS000209 at 6. See NYS000215 (County-to-County Worker Flow Files for Connecticut, New Jersey, New York, and Pennsylvania).

117. The Census Bureau commuter flow data can be used to calculate the 2035 commuter population using the following steps: For each county that is 100 percent within the 50 mile radius of the two Indian Point reactors: (1) take 100 percent of the average daily commuter flows into that county that come from counties that are completely outside of the 50 mile boundary; and (2) take 100-S percent of the average daily commuter flows into that county that come from counties that have S percent of their area within the 50-mile boundary.

NYS000207 Sheppard Initial Testimony at 14:16-15:2. For each county that is partially within the 50 mile radius, where P percent is the percentage of land area in the county located within 50 miles of the Indian Point facilities: (1) take P percent of the average daily commuter flows into that county that come from counties that are completely outside the 50 mile radius; and (2) take P times (100-S) percent of the average daily commuter flows into that county that come from counties that have S percent of their area within the 50 mile boundary. Sheppard Initial Testimony at 15:3-10; NYS000209 at 5-7.

118. These calculations assume that employment locations are distributed evenly over the entire land area of each county. NYS000207 Sheppard Initial Testimony at 15:11-12. This procedure estimates the 2000 commuter population into that portion of each county that is within 50

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 50 miles of the Indian Point facilities. Sheppard Initial Testimony at 15:13-14. To get the 2035 commuter population, one can take the county population growth rates from 2000 to 2035 used in Entergys SAMA report as an estimate of growth in county employment, and apply those growth rates to total commuter population for each county. Sheppard Initial Testimony at 15:15-

19. This procedure provides an estimate that 995,778 commuters will enter the 50 mile region on an average day in 2035. Sheppard Initial Testimony at 16:1-3.

119. Neither Staffs nor Entergys witnesses deny the existence of close to one million commuters. In their rebuttal commuter analysis, Entergys witnesses admit that there are 964,093 such commuters. ENT000027 (L. Potts and J. Riggs, Rebuttal Commuter Analysis, Jan.

2012) at 2. NRC Staffs witness, Mr. Jones also agrees in his written testimony, stating: I evaluated commuters entering the SAMA area from locations outside the modeled area and agree with Dr. Sheppard (NYS000207 at 16) that about 1,000,000 commuters enter the SAMA area for a work shift and then return home. Staff Test. at 17 (A7) (Jones).

120. These approximately one million commuters do not include business travelers.

NYS000404 Sheppard Rebuttal Test. at 13:6-14:3; Staff Test. at 17 (A7) (Jones) (Business travelers that arrive on multi-day business trips are considered in the transient population, and are not a part of the commuter population.).

121. Scholars have documented that a small portion of the population commutes very long distances to jobs on a daily or weekly basis. Tr. 2478:16-19 (Sheppard); NYS000404 Sheppard Rebuttal Test. 13:12-14. These individual are known in the literature as super-commuters. Sheppard Rebuttal Test. 13:12-15; NYS000408 (Moss & Qing, The Emergence of the Supper-Commuter, Feb. 2012) at 9. Such individuals are properly characterized as commuters, not business travelers, because they have self-identified as commuters. Tr. 2478:2-9 51

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B (Sheppard); Tr. 2482:17-2483:2 (Sheppard). Furthermore, the majority of these individuals travel to and from their place of employment in the same day, meaning that they do not stay in hotels and would not be counted in the state tourism data on which Entergy based its transient population. Tr. 2479: 13-23 (Sheppard).

122. At the hearing, Staffs witness Mr. Jones admitted that he had no evidence to support his claim that Dr. Sheppards commuter estimate is inflated by twenty-five percent for business travelers. Explaining where this twenty-five percent number came from he testified: I was aware and fully confident that it was not 100 percent of the commuters were business travelers and I was very confident that half the commuters were not business travelers in this part of the country. So I selected an estimate of 25 percent. . . . [M]y estimate of 25 percent, it was an assumption for a simple illustration. Tr. 2480:9-2481:2 (Jones).

123. When further questioned about his twenty-five percent estimate, Mr. Jones admitted that business travelers should not be subtracted from Dr. Sheppards population estimate:

JUDGE McDADE: Mr. Jones, wouldnt you and I be considered business travelers into the 50-mile area, but not commuters?

MR. JONES: That is correct.

JUDGE McDADE: Wouldnt most business travelers be in that, if not vast majority of business travelers be in that same category?

MR. JONES: I would agree with that, yes.

JUDGE McDADE: So should they be deducted somehow from Dr. Sheppards commuter calculation?

MR. JONES: No, they should not. They are - I was attempting to say that they are included with the transients that was a population of about 300,000 plus that was defined as including the business travelers, tourists, and shoppers. And theyre a portion of that.

52

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Tr. 2483:25-2484-15 (J. McDade, Jones).

124. Excluding commuters from the population estimate, but including tourist and business travelers, is inconsistent and not reasonable. NYS000404 Sheppard Rebuttal Test. at 11:19-21. Tourists and business travelers do not necessarily spend more time than commuters within the 50 mile zone, and therefore, should not be considered differently for purposes of determining the population input to the MACCS2 code. Sheppard Rebuttal Test. at 11:7-10.

Tourism agencies, from which Entergy obtained its data, collect information from popular tourist destinations, surveys, and hotel registrations. These estimates include persons who enter a state for shopping or recreation and may not necessarily stay overnight. Sheppard Rebuttal Test. at 11:10-15; ENT000003 at 28 (A56) (Potts, Riggs) (stating that transients include shoppers and recreational visitors who enter the zone and who leave on the same day); Tr. 2464:16-2465:1 (Jones) (shoppers are included as transients, but they are in the SAMA area for day trips, not necessarily overnight trips.).

125. Commuters are more likely to be affected by a severe accident than tourists. A tourist is unlikely to return to the 50 mile zone after a severe accident, but by definition a commuter has a job within the 50 mile zone to which he or she must return. Sheppard Rebuttal Test. at 11:15-19.

126. In his written testimony, NRC Staffs witness Mr. Jones argued that it was reasonable for Entergy to include tourists and business travelers but not commuters in the population estimate because the former are in the modeled SAMA area for an extended time and could potentially accumulate dose as a result of an accident at Indian Point, while commuters are only in the SAMA area about a third of [the] day (8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> plus commuting time). Staff Test. at 101 (A94) (Jones). At the hearing, however, Staffs witness Mr. Jones 53

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B agreed that a commuter is at greater risk than a business traveler or tourist in the event of a severe accident:

JUDGE McDADE: [F]irst of all, do you accept my premise that a commuter would probably get more of a dose than a business traveler or a tourist or a shopper?

MR. JONES: I do accept that premise.

Tr. 2467:12-16 (J. McDade, Jones).

127. It is appropriate to include commuters in the population used in the SAMA analysis because commuters will contribute to the costs of a severe accident. NYS000404 Sheppard Rebuttal Test. at 31:1-18 and 32:4-33:3.

128. Commuters may be exposed to radiation in the emergency phase of an accident or in the longer term after a severe accident occurs, thus receiving a radiation dose. See Staff Test.

at 39 (A34) (Bixler) ([T]he returning population receives a dose that contributes to the population dose.); Tr. 2467:3-18 (Jones).

129. At the hearing, Staffs witness Dr. Bixler admitted that commuters would contribute to the PDR, assessed by the MACCS2 model, and therefore, they should be included in that part of the calculation:

JUDGE McDADE: Okay, but in figuring out the costs of a severe accident, wouldnt that be appropriate to take into consideration the dose through some mechanism, the dose that consumers would receive - commuters, not consumers?

DR. BIXLER: That would make a lot of sense to me if you went to - it does make sense to include the commuters, business commuters in the dose part of the calculation . . .

Tr. 2469:8-16 (J.McDade, Bixler).

130. Furthermore, Dr. Bixler agreed that it is possible to include commuters in the dose portion of the MACCS2 model:

54

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B MS. LIBERATORE: In order to calculate the population dose risk associated with only the commuter population, couldnt you simply run the MACCS2 code using only the commuter population, and use the population dose risk from that run to calculate that population dose risk associated with commuters?

DR. BIXLER: Yes, I think that would work. That would be one way to do it.

Tr. 2524:15-22 (Liberatore, Bixler); see Tr. 2468:8-22 (Bixler).

131. Commuters also contribute to the economic costs of a severe accident, as calculated by the OECR in the MACCS2 model. If commuters workplaces close due to contamination, they could lose incomeone of the costs included in the OECR. Entergys witnesses testified that commuters could be impacted by lost income, because their job sites would be impacted by interdiction. Entergy Test. at 30 (A61) (OKula, Teagarden). At the hearing, Staffs witness Dr. Bixler conceded that commuters would not normally be included as far as a loss of income since they reside outside of the 50 mile zone but that a portion of them would have some loss of income in the event of a severe accident. Tr. 2484:21-25 (Bixler).

132. Commuters increase the cost of decontamination, which contributes to the OECR and, thus, the costs of a severe accident used in the SAMA analysis. NYS000404 Sheppard Rebuttal Test. at 32:4-33:3. Commuters have an impact on building density because if there are more workers in a region, more buildings will be required to house those workers. These extra buildings will need to be decontaminated in the event of a severe accident. Therefore, even though commuters do not have residential property within 50 miles of Indian Point, their presence in the 50-mile zone will still contribute to decontamination costs. See NRC000041 Staff Test. at 41 (A35) (Jones, Bixler) (The cost of achieving the DF [decontamination factor] is input in terms of dollars per person ($/person). By using a per person basis, this approach takes into account the site-specific high population density of New York City and the correspondingly high density of buildings.). If commuters are not taken into account, the costs of 55

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B decontaminating the office buildings that they occupy will not be taken into consideration in the SAMA analysis.

133. The commuter population estimate should not be reduced either to reflect the amount of time commuters spend in the 50 mile zone or to account for permanent residents who work outside of the 50 mile zone. NYS000404 Sheppard Rebuttal Test. at 15:14-17:6. First, industry guidance, NEI 05-01 Rev. A, does not indicate that the transient population should be reduced to reflect the amount of time spent in the zone. NYS000287 at 13. It would be inconsistent to not reduce the number of shoppers, who may only spend a couple of hours in zone, but reduce the number of commuters, who spend significantly more time in the zone.

Sheppard Rebuttal Test. at 12:13-19 and 33:4-10.

134. Second, since it is impossible to predict when an accident will occur, NEI 05-01 Rev. A recommends conservatism in the population estimatei.e. including the peak population.

NYS000287 at 13 (Extrapolation to a later date, and therefore a larger population, adds conservatism to the analysis.). There can and will be circumstances under which both groups those commuting in and those commuting outwill be present within the 50 mile zone during a severe accident. Tr. 2474:21-24 (Sheppard); Sheppard Rebuttal Test. at 16:4-6. In this situation both groups would accrue radiation dose, both increasing the PDR. See Tr. 2469:8-16 (Bixler).

135. An estimate that takes commuters into account is superior to one that does not because it provides a more accurate account of the transient population in an area. NYS000207 Sheppard Initial Test. at 13:18-14: 10; NYS000404 Sheppard Rebuttal Test at 5:13-21.

Furthermore, a population estimate that accounts for commuters complies with NEI 05-01 Rev.

A, which calls for conservatism in the population estimate. NYS000287 at 13; Sheppard Rebuttal Test. at 5:5-21.

56

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 136. Since commuters were considered in Indian Points own site emergency plan, they must also be included in Indian Points SAMA analysis. See ENT000014 (KLD Associates, Inc. Indian Point Energy Center Development of Evacuation Time Estimates, Rev. 2, Oct. 2004) at 3-2 and 3-9; NYS000287 at 13. The fact that Entergy chose to label commuters as employees instead of transients in its site emergency plan and evacuation time estimate, does not excuse their absence in the SAMA analysis population. Sheppard Rebuttal Test. at 8:1-10:20. See Entergy Test. at 28 (A56) (Potts, Riggs); ENT000014 at 3-2 and 3-9.

137. Excluding commuters caused Entergys 2035 transient population to be underestimated. NYS000207 Sheppard Initial Test. at 5:15-6:8. Those missing commuters contribute to both the PDR and the OECR in a severe accident scenario. NYS000404 Sheppard Rebuttal Test. at 35:21-36:12. Therefore, Entergys failure to include commuters caused it to underestimate the costs of a severe accident in its SAMA analysis. NYS000207 Sheppard Initial Test. at 3:6-4:3; NYS000404 Sheppard Rebuttal Test. at 35:21-36:12. Staff approved Entergys SAMA analysis despite this underestimation. See NRC000003/NYS00132D at Appendix G, G-18 (The NRC [S]taff considers the methods and assumptions for estimating population reasonable and acceptable for the purposes of the SAMA evaluation.).

E. Entergys Population Estimate Did Not Include Sufficient Conservatism To Account For Its Failure To Include Commuters and Those Missed Due To Census Undercount 138. Sufficient conservatism has not been built into the Indian Point population estimate to account for its failure to include commuters and those missed due to the census undercount. NYS000404 Sheppard Rebuttal Test. at 5:13-7:3. Entergys witnesses argue that Entergy was required to include only the transient population within 10 miles of Indian Point because that was what was included in the site emergency plan. ENT000003 Entergy Test. at 19 57

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B (A41) (Potts, OKula, Teagarden, Riggs). Therefore, they argue that considerable conservatism was built into the population estimate because they chose to include the transient population for the entire 50 mile region. Tr. 2495:7-16 (Teagarden); Tr. 2497:1-13 (Potts); Tr. 2511:11-20 (Teagarden). However, Entergys witnesses fail to recognize the very different purposes of the site emergency plan and the SAMA analysis.

139. The site emergency plan, which includes the evacuation time estimate, is used by response organizations to support decisions with regard to potential evacuation of an emergency planning zone which is only the 10 miles around the nuclear power plant. Tr. 2439:8-12 (Jones). As that document is only concerned with the evacuation of the emergency planning zone, there is no need for it to consider transients throughout the 50 mile region.

140. However, the purpose of the SAMA analysis is to examine the costs of a severe accident, which is assumed to impact the 50 mile radius surrounding a nuclear plant. See NYS000287 at 13 (Provide a predicted population within a 50-mile radius of the site.). Since transients are located throughout this 50 mile zone and the impacts of a severe accident on the transients will contribute to PDR and OECR, it is necessary to include transients from the entire 50 mile zone in the SAMA analysis. NYS000404 Sheppard Rebuttal Test. at 31:1-33:3. As such, Entergy was not adding in extra conservatism when it decided to include in the population estimate business travelers and visitors within the 50 mile zone.

141. Staffs witness Mr. Jones argues that Entergy chose a conservative growth rate for 2035 because Entergy forecasted a larger population for 2010 than was found in the 2010 census.

NRC000041 Staff Test. at 97 (A89) (Jones). This is not a valid point of comparison.

NYS000404 Sheppard Rebuttal Test. at 27:10-29:22. Preparing a population forecast involves more than simple linear extrapolation of growth trends. It involves analysis of the age and 58

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B demographic structure and the fertility behavior of the different populations. Tr. 2450: 4-2453:21 (Sheppard). If the change in population between 2000 and 2010 is below the initial 2000 forecast, but the proportion of younger persons or persons from demographic groups that exhibit higher fertility rates is greater, then the subsequent population growth may compensate and even overshoot the original forecast. Tr. 2452:4-19 (Sheppard). One cannot simply look at one number in isolation because there are numerous variables that must be considered. Sheppard Rebuttal Test. at 29:9-11. As such, the difference between the forecasted 2010 population and the actual 2010 population does not prove that the 2035 population has been conservatively estimated. Sheppard Rebuttal Test. at 20:14-21:11.

142. Entergys witnesses also argue that Entergy was conservative in projecting the population to 2035, the last year of Indian Point Unit 3s potential extended operating license, when it could have projected it to any year in the second decade of the relicensing period. Tr.

2454:15- 2455:3 (Potts). However, NEI 05-01 recommends extrapolation to a later date, and therefore a larger population unless a population reduction is projected. NYS000287 at 13.

Since 2035 is the date of the largest population in the 50 mile zone surrounding Indian Point, this was the correct year for the SAMA analysis and not an especially conservative choice.

NYS000404 Sheppard Rebuttal Test. at 5:22-7:3.

143. Furthermore, for three counties, Entergy did not look to a year within the relicensing period when the population is predicted to be at its highest. NYS000404 Sheppard Rebuttal Test. at 5:22-7:3. According to Entergys population data, the population for New York, Rockland, and Westchester counties is projected to peak within the relicensing period.

NYSR00211 at 2-1; NRC000003/NYS00132D at Appendix G, G-25. Instead of looking at the peak population as suggested by NEI 05-01, Entergy conducted a regression analysis for these 59

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B three counties to determine how much the population will decline from its peak by the year 2035.

NYSR00211 at 2-1; NRC000003/NYS00132D at Appendix G, G-25; see NRC000041 Staff Test. at 95 (A86) (Jones). This non-conservative approach to estimating the population for three counties departed from the NEI 05-01 guidance. Sheppard Rebuttal Test. at 5:22-7:3; see NYS000287 at 13. Furthermore, at the hearing, Dr. Sheppard testified that it is unlikely that the population of New York County will peak in 2020, as predicted by Entergys population data.

Tr. 2523:16-2524:12.

F. NRC Staff Did Not Analyze the Effects of the Population Flaws on the SAMA Analysis 144. NRC Staff did not conduct a sensitivity analysis to analyze the impacts of the population errors on the SAMA analysis. Tr. 2510:11-18 (Jones); NYS000404 Sheppard Rebuttal Test. at 30:2-8. Instead, NRC Staffs witness Mr. Jones made a series of unsupported assumptions to show that the errors identified by Dr. Sheppard are not material. Sheppard Rebuttal Test. at 30:9-23. For example, referring to the error in the estimate that resulted from the census undercount, he testified that [i]n my opinion, the increase in cost from the addition of 230,000 people located in the outer limits of the SAMA area would not materially affect the conclusions of the SAMA analysis. Staff Test. at 100 (A92) (Jones). Mr. Jones presented no data or documentation to support this opinion and, therefore, it should be afforded no weight.

145. Mr. Jones also contended that commuters will not change the outcome of the SAMA analysis based on a series of unsupported assumptions, including that most commuters work in New York City and, in the event of a severe accident, will either leave before the plume arrives or be shielded by their buildings. Staff Test. at 101-106 (A95) (Jones). Once again, Mr.

Jones presented no data or documentation to support this opinion and, therefore, it should be afforded no weight. Even if Mr. Jones provided support for his assumptions, which he does not, 60

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B the MACCS2 code accounts for the location of population. As the MACCS2 model runs through various accident sequences utilizing meteorological data, it evaluates each grid element individually before determining whether decontamination is necessary. See ENT000003 Entergy Test. at 24-25 (Q50) (OKula, Teagarden) ([S]evere accident consequence assessments must examine numerous possible combinations of representative sets of radiological source terms, weather sequences, and exposed populations. To that end, MACCS2 uses a polar-coordinate spatial grid to correctly structure the transport downwind of a plume under conditions specified by the plant meteorological data onto grid elements with the appropriate population potentially exposed in the course of plume travel.); NYS000287 at 15; NYS000243 at 2-3 to 2-5.

MACCS2 will not decontaminate grid elements that are not contaminated by the plume.

146. At the hearing Mr. Jones testified that commuters would represent less than one percent effect on the SAMA analysis because they are only present within the SAMA area twenty percent of the time. Tr. 2509:19-2510:10 (Jones). However, upon further questioning, Mr. Jones admitted that the one percent is not the effect on the SAMA analysis but instead, it represents the percentage of increase that 200,000 commuters would have on the total populationi.e. 200,000 is one percent of twenty million. Tr. 2510:11-18 (J. Kennedy, Jones);

see NYS000404 Sheppard Rebuttal Test. at 14:20-14:13.

G. Entergys Witnesses Sensitivity Analyses Are Flawed And Do Not Show The Effects of Contention 12C and Contention 16B on the SAMA Analysis 147. While NRC Staff did not analyze the effect that population flaws would have on the required SAMA analysis, Entergys witnesses conducted two analyses, which they call sensitivity analyses. The first analysis, disclosed in March 2012, purported to analyze the effect that half of Dr. Sheppards commuter population estimate and all of his census undercount estimate (an additional 729,521 persons) would have on the SAMA analysis. Entergy Test. at 48 61

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B (A87) (OKula, Teagarden); ENT000006 (G. Teagarden, MACCS2 IP2 Population Sensitivity Case, Jan. 2012). Entergys witnesses concluded that this addition to the population estimate resulted in an increase of PDR and OECR of 3.1% and 3.2% respectively. Entergy Test. at 49 (A88) (OKula, Teagarden); ENT000006 at 5.

148. This first analysis was flawed for three reasons: (1) Entergys witnesses failed to analyze the effect on PDR and OECR of Dr. Sheppards entire 1.2 million person population increase; (2) Entergys witnesses utilized a flawed method of distributing the added population to the spatial grid elements; and (3) Entergys witnesses failed to analyze the combined impacts of the changes suggested in Contention 12C and Contention 16B on the SAMA analysis.

NYS000404 Sheppard Rebuttal Test. 31:19-37:23.

149. Entergys witnesses conducted a second analysis on the eve of the October evidentiary hearings that appears to be an attempt to address some of the States criticisms of the first analysis. See ENT000589 (MACCS2 Sensitivity Analysis for NYS-16 Using Dr.

Sheppards Proposed Data, Oct. 9, 2012). This time Entergys witnesses analyzed the effect of Dr. Sheppards full population increase, properly distributed the population increases by grid element, and used peak populations for three counties that were predicted to decline in population by 2035. ENT000589 at 2.

150. Entergys second analysis concludes [p]opulation dose risk and cost risk increase approximately 6.7% and 6.8% respectively, due to the population increase of 6.7%.

ENT000589 at 2. Entergys calculation includes a table showing that this increase leads to a 6.15% increase in the total costs used in the SAMA analysis. ENT000589 at 8 (Table titled Pop2 Sens Impact). This leads Entergy to conclude that [t]he SAMA impact is approximately 6.15%. ENT000589 at 2.

62

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 151. Entergys analysis focuses on IP2 SAMA 025, a SAMA candidate that Entergy determined was not cost-beneficial. ENT000003 Entergy Test. at 49-50 (A89) (OKula, Teagarden, Potts). Entergy contends that [c]ompared to the other SAMA candidates that are not cost-effective, at 11%, IP2 SAMA 025 has the smallest margin between the current benefit and the increased benefit to become cost effective. Entergy Test. at 49-50 (A89) (OKula, Teagarden, Potts). This 11% difference comes from the difference between the benefit with uncertainty of $430,516 and the estimated cost of $476,000 from a table in Entergys SAMA Reanalysis, reproduced below. ENT000009 (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) Attach. 1 at 30.

152. Entergys analysis directly compares the 11% difference between the costs and benefits of IP2 SAMA 025 with the 6.15% increase in total costs used in the SAMA analysis that 63

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B it calculated would occur with Dr. Sheppards population. See Entergy Test. at 49-50 (A89)

(citing NL-09-165, Attach. 1 at 30 (ENT000009)); ENT000589 at 2. Entergy concludes that the total costs have to increase by 11% for the population increase to be material. Entergy Test. at 49-50 (A89) (OKula, Teagarden, Potts). Neither Entergy nor Staff examined how the changes in PDR and OECR would affect all of the SAMA candidates by changing their cost-benefit ratios and thereby changing the outcome of the SAMA analysis. Such changes could make some SAMA candidates even more cost beneficial, giving Staff a stronger incentive to require their implementation. Cf. Tr. 2335:9-19 (J. McDade, Liberatore, Potts) (as the SAMA candidates become more cost-beneficial, the probability that Entergy will implement them increases).

153. Additionally, in the second analysis Entergys witnesses again failed to analyze the combined impacts of the MACCS2 input changes suggested in Contention 12C and Contention 16B. In fact, at the hearing, Entergy admitted that it did not determine what effect the errors outlined in NYS-12C would have on the SAMA analysis (Tr. 2226:22-2227:8 (J.

Wardwell, Teagarden)), let alone what effect the combined errors identified in NYS-12C and NYS-16B would have. NRC Staffs witnesses did not offer any evidence that they examined the combined impacts of Contention 12C and Contention 16B on the SAMA analysis.

154. Even taking Entergys new analysis at face value, the difference between the outcome of the new sensitivity analysis and the increase necessary to make IP2 SAMA 025 cost-beneficial is only 4.85% (the difference between 6.15% and 11%). Such a small difference could be overcome by looking at the higher population growth rate Sandia proposed in the FSEIS, 15.98% compared to the 12.43% value that Entergy used (NRC000004/NYS00133I at Appendix G, G-25), or scrutinizing the polynomial regression analysis Entergy completed for three counties that are expected to have peak populations before the end of the relicensing period 64

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B (ENT000589 at p. 2). NRC Staff itself admitted that there often can be percentage variances in population. Tr. 2418:3-9 (Jones). Without further scrutiny, such a small percentage difference is insufficient to deem this purported sensitivity analysis relevant, reliable, or material.

155. Lastly, Entergys analysis also fails to take into consideration that an increase in costs of 6.15% will increase the maximum attainable benefit, which is the dollar value of the benefit if the risk could be reduced to zero. ENT000011 at 4-33, Figure 4.1, cited in Entergy Test. at 23, Fig. 1. If a SAMA candidate costs more than the maximum attainable benefit, Entergy removed it from further consideration at an early level of the SAMA analysis.

ENT000011 at 4-33, Figure 4.1. Because a greater population leads to a greater maximum attainable benefit, Entergys sensitivity analysis should have determined whether the increased maximum attainable benefit would mean that Entergy removed SAMA candidates from further consideration that should not have been removed. See ENT000011 at 4-33, Figure 4.1, cited in Entergy Test. at 23, Fig. 1.

V. CONCLUSIONS OF LAW A. The FSEIS Violates NEPA, NRC Regulations, And CEQ Regulations Because It Accepts a SAMA Analysis Predicated on Inaccurate Population Estimates 156. NRC must comply with NEPA in determining whether or not to grant Entergys application for renewal of its combined operating license. Massachusetts v. United States, 522 F.3d at 119; Calvert Cliffs, 449 F.2d 1109; 10 C.F.R. § 51.20(b)(2). NRC Staff must independently evaluate and be responsible for the reliability of all information used in the draft environmental impact statement. 10 C.F.R. § 51.70(b). Staff cannot shift the burden of ensuring that its environmental analysis is adequate to Entergy or intervenors. See, e.g., Harlem Val. Transp., 500 F.2d at 336; Greene County Planning Board, 455 F.2d at 419-20; Progress 65

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Energy Florida, Inc., (Combined License Application, Levy County Nuclear Power Plant, Units 1 and 2), Nuclear Reg. Rep. P 31605, 2010 WL 87737, *5 (2010); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 N.R.C. 1041, 1049 (1983).

157. In evaluating NEPA compliance, the Board must engage in a searching and careful inquiry of the record, so that it may consider whether the [agency] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.

Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated in part by Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977) (abrogating Overton to the extent it recognized the APA as an independent grant of federal court subject matter jurisdiction). Ultimately, if NRCs NEPA compliance is challenged in federal court, it will be challenged under the Administrative Procedure Acts arbitrary and capricious standard, which amounts to a determination of whether NRC acted reasonably. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377 n.23 (1989) (noting courts adoption of arbitrary and capricious and reasonableness standards under the APA, and explaining that difference between the two is not of great pragmatic consequence).

158. Almost a quarter century ago, Limerick Ecology mandated that NRC consider severe accident mitigation measures on a site-specific basis at each individual nuclear plant.

Limerick Ecology Action, 869 F.2d 719. Severe accident mitigation must be examined on a plant-specific basis

[b]ecause the potential consequences [of a severe accident] will largely be the product of the location of the plant [and therefore] the risk will vary tremendously across all plants. As the NRC itself has noted, the population distribution in the vicinity of the site affects the magnitude and location of potential consequences from radiation releases. 48 Fed. Reg. at 16,020. This is particularly true for plants . . .

which were built near densely populated areas.

Id. at 738-79.

66

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 159. The only site-specific analysis of severe accidents at Indian Pointand the only way NRC complies with Limerick Ecologys mandateis the SAMA analysis that is taking place in this proceeding. See 10 C.F.R. § 51.53(c)(3)(ii)(L); Part 51, Subpart A, Appendix B, Table B-1. If the SAMA analysis as accepted by NRC Staff and incorporated into the FSEIS is inaccurate and unreasonable as it is here, NRC has violated NEPA.

160. It is particularly important that NRC rely on accurate population estimates in this relicensing proceeding, given the fact that the Commission has recognized that the population density surrounding Indian Point is higher than that surrounding any other plant in the United States, and that a severe release of radioactive materials at Indian Point could have more serious consequences than that same release at virtually any other NRC-licensed site. Consolidated Edison Co. of New York, 21 N.R.C. at 1049-50.

161. Entergys SAMA analysis underestimates the 2035 population within 50 miles of Indian Point causing the benefits of implementing a SAMA to be understated. Despite plain deficiencies in Entergys population estimate, and despite the fact that such deficiencies render Entergys SAMA analysis inaccurate and unreasonable, Staff uncritically accepted Entergys flawed population estimates and incorporated them into the December 2010 FSEIS. As such, the FSEIS is legally deficient in violation of NEPA and incapable of supporting a decision on license renewal.

162. Because Staff accepted Entergys unreasonable population estimate, the public lacks an accurate estimate of the population surrounding Indian Point that would be at risk in the event of a severe accident. Hence, the FSEIS fails as a public information document in violation NEPA. See, e.g., Methow Valley, 490 U.S. at 349 (One of the dual purposes of NEPA guarantees that the relevant information [concerning environmental impacts] will be made 67

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B available to the larger audience, including the public, that may also play a role in the decisionmaking process and the implementation of the decision.).

163. Because Staff accepted Entergys unreasonable population estimate, NRC lacks an accurate estimate of the population surrounding Indian Point that would be at risk in the event of a severe accident. Thus, the FSEIS violates NEPA because it cannot provide the basis for an informed evaluation of the environmental consequences of relicensing Indian Point and, thus, frustrates the purpose of NEPA to inform agency decision-making. See 40 C.F.R. § 1500.1(c)

(NEPAs purpose is not to create more paperwork for NRC but instead, to promote sound environmental decision-making by the agency); Sierra Club v. U.S. Army Corps of Engrs, 701 F.2d 1011, 1030 (2d Cir.1983) (An EIS that lacks a reasonably adequate compilation of relevant information or that sets forth statements that are inaccurate cannot provide the basis for an informed evaluation or a reasoned decision).

1. Staff Has Failed to Meet Its Burden Under NEPA Because Its Reliance on Entergys Unreasonable Population Estimates Prevents Staff from Accurately Discussing and Reasonably Evaluating Mitigation Alternatives and Taking the Requisite Hard Look at Mitigating Severe Accidents Under NEPA 164. Even though NRC Staffs responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage, Calvert Cliffs, 449 F.2d at 1119, the FSEIS fails to adequately explain why it was reasonable for Staff to accept Entergys exclusion of census undercount and commuters from its population estimates.

165. Because population size is used to calculate the economic costs associated with a severe accident, which is ultimately used to evaluate the costs and benefits of implementing each SAMA candidate, Entergys underestimated population projections lead to an underestimation of the economic costs associated with a severe accident. Consequently, the underestimated 68

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B population prevents Staff from accurately discussing and reasonably evaluating mitigation measures in violation of NEPA. See, e.g., Methow Valley, 490 U.S. at 351-52 (the omission of a reasonably complete discussion of possible mitigation measures would undermine the action-forcing function of NEPA.); Calvert Cliffs, 449 F.2d at 1114 (discussing the importance of studying, developing, and describing alternatives to comply with NEPA).

166. Likewise, Staffs failure to accurately and reasonably evaluate mitigation measures in light of the underestimated population prevents the Staff from determining whether the Commission has taken all practical measures within its jurisdiction to avoid or minimize environmental harm from the alterative selected, and if not, to explain why those measures were not adopted as required under 10 C.F.R. § 51.103(a)(4).

167. By accepting Entergys population estimates used in the SAMA analysis, NRC Staff has failed to take a hard look at the consequences of severe accidents and to accurately evaluate whether SAMAs are cost-beneficial. See Methow Valley, 490 U.S. at 350 (The sweeping policy goals announced in § 101 of NEPA are thus realized through a set of action-forcing procedures that require that agencies take a hard look at environmental consequences, and that provide for broad dissemination of relevant environmental information. (internal citations omitted)); Limerick Ecology, 869 F.2d at 737 ([T]he [Final Environmental Impact Statement] must contain sufficient discussion of the relevant issues and opposing viewpoints to enable the decisionmaker to take a hard look at the environmental factors and to make a reasoned decision.); see also Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

LBP-11-17, at 14 (The FSEIS must demonstrate that the NRC [S]taff has received sufficient information to take a hard look at SAMA candidates as required by 10 C.F.R. 69

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B

§ 51.53(c)(3)(ii)(L), has in fact taken that hard look, and has adequately explained its conclusions . . . .).

168. The FSEISs discussion of the SAMA analysis is unreasonable, given the fact that Entergy and Staff have admitted that census undercount exists and approximately one million commuters work within the 50-mile zone of Indian Point. Blue Mtns. Biodiversity Proj. v.

Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998) (general statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided. quoting Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1380 (9th Cir. 1998)). The absencewithout any discussion whatsoeverof these individuals from the population estimate used in the SAMA analysis of the FSEIS violates NEPA.

2. NRC Staff Failed to Adequately Respond to New Yorks Comments Regarding Entergys Unreasonable SAMA Analysis in Violation of NEPA 169. New York brought the issue of Entergys unreasonable population estimate to the attention of NRC Staff well before publication of the FSEIS. In addition to filing Contentions 16 and 16A, New York also submitted comments on the DSEIS. The State further submitted contention 16B and comments to NRC concerning Entergys 2009 SAMA Reanalysis. Yet NRC Staff failed to adequately address any of New Yorks comments, thereby violating NEPA, NRC regulations, and CEQ regulations that require Staff to respond, in the FSEIS, to comments on the DSEIS or any supplement to it. See 10 C.F.R. § 51.91(a)(1); 40 C.F.R. § 1503.4(a) (requiring agencies to assess and respond to comments in FSEISs); Sierra Club, 701 F.2d at 1030-1031 (finding an FEIS inadequate for failing to respond in good faith to critical comments on DEIS).

70

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 170. In responding to comments, NRC Staff must make factual corrections, if called for, or explain why the comments do not warrant further response, citing sources, authorities, or reasons for such a conclusion. See 10 C.F.R. § 51.91(a)(1)(iv) & (v) and 40 C.F.R. § 1503.4(a)(1)-(5). Although New Yorks March 19, 2010 comments (ML101120602) and Contention 16B alerted NRC Staff to Entergys failure to include commuters in its population estimate, Staff failed to address this point in the FSEIS or explain why it does not warrant a response. Under the heading Population Projections (NYS Contention 16/16A/16B),

Appendix G to the FSEIS wholly ignores the commuter issue. NRC000004/NYS00122I at Appendix G, G-24 to G-25. This does not constitute an adequate response to comments.

171. Although the States March 19, 2010 comments were submitted after the comment period on the FSEIS ended, the subject of those comments was the 2009 SAMA Reanalysis, which was released in December 2009 after the comment period on the DSEIS had already ended. See State of New York Supplemental Submission Concerning Draft Supplemental Environmental Impact Statement Regarding the License Renewal of Indian Point Units 2 and 3, and Recent Events Including the December 2009 Reanalysis of Severe Accident Mitigation Alternatives Analysis and the Federal Governments Decision to Withdraw the Application for Yucca Mountain at 28, n. 8 (Mar. 19, 2010) (ML101120602). The 2009 SAMA Reanalysis fundamentally altered the original SAMA Analysis and constituted new and significant information for which NRC Staff should have prepared a supplement to the DSEIS that was subject to public comment. See 10 C.F.R. § 51.92(a)(2) (NRC staff will prepare a supplement to a final environmental impact statement . . . if . . . [t]here are new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.), § 51.92(f)(1) (A supplement to a final environmental impact statement will be 71

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B accompanied by or will include a request for comments . . .). The failure of Staff to revise the DSEIS and recirculate it for public comment after the December 2009 SAMA Reanalysis constitutes a violation of NEPA.

3. By Accepting Entergys Unreasonable 2035 Population Estimate in the FSEIS, NRC Staff Has Relied Upon and Presented Inaccurate Information to the Public, Violating the Requirement that the FSEIS Contain Accurate Scientific Information 172. In underestimating the 2035 population by over a million persons, NRC Staff has failed to ensure that the FSEIS contains accurate information. See Native Ecosystems Council v.

U.S. Forest Serv., 418 F.3d 953, 964-65 (9th Cir. 2005) (NEPA requires that agencies rely on high quality data and accurate scientific analysis); 40 C.F.R. § 1500.1(b) (same), § 1502.24 (Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements); Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-11-17, at 11-12 (citing ShieldAlloy Metallugical Corp. v.

NRC, 624 F.3d 489, 492-93 (D.C. Cir. 2010)) (NRC would be acting arbitrarily and capriciously if it did not look at relevant data and sufficiently explain a rational nexus between the facts found in its review and the choice it makes as a result of that review.).

173. By accepting Entergys population estimate that did not take commuters or census undercount into consideration, NRC Staff did not ensure that the FSEIS is based on high quality data and accurate scientific analysis. As a result, NRC Staff presented to the public an inaccurate and unreasonable report of the environmental consequences of relicensing the Indian Point facility in violation of NEPA. Additionally, the unreasonable population estimate deprives NRC of the ability to take a hard look at environmental impacts in evaluating SAMAs. See Methow, 490 U.S. at 350, and Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-11-17, 72

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B at 17 ([T]he FSEIS must demonstrate that the NRC Staff has received sufficient information to take a hard look at SAMAs as required by 10 C.F.R. § 51.53(c)(3)(ii)(L) . . .).

4. Staff and Entergy Have Failed to Prove that It Was Reasonable for the FSEIS to Exclude Commuters and Census Undercount 174. NRC Staffs witness, Mr. Jones, attempts to show that the errors identified by Dr.

Sheppard do not constitute NEPA violations by relying on a series of unsupported assumptions and baseless conclusions. For example, referring to the error in the estimate that resulted from the census undercount, he states that [i]n my opinion, the increase in cost from the addition of 230,000 people located in the outer limits of the SAMA area would not materially affect the conclusions of the SAMA analysis, (Staff Test. at 100, A92) but presents no data or documentation to support this opinion. Mr. Jones also contends that commuters will not change the outcome of the SAMA analysis based on a series of unsupported assumptions, including that most commuters work in New York City and will either leave before the plume arrives or be shielded by their buildings. Staff Test. at 101-106, A95.

175. Unsupported assumptions and baseless conclusions cannot refute Dr. Sheppards criticism of the population estimates in the FSEIS. See Monroe County Conservation Council v.

Volpe, 472 F.2d 693, 697 (2d Cir. 1972)); Natural Res. Def. Council v. Callaway, 524 F.2d 79, 93 (2d Cir.1975); Wilderness Watch v. Mainella, 375 F.3d 1085, 1096 (11th Cir. 2004) (NEPA imposes procedural requirements before decisions are made in order to ensure that those decisions take environmental consequences into account. Permitting an agency to avoid a NEPA violation through a subsequent, conclusory statement that it would not have reached a different result even with the proper analysis would significantly undermine the statutory scheme.). To the contrary, the State has met its burden under NEPA and shown ample evidence regarding the unreasonableness of excluding commuters and census undercount from the population estimate, 73

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B and Staff must now conduct additional environmental analysis to address these deficiencies in the FSEIS.

5. The State Has Easily Met Its Prima Facie Evidentiary Burden in this Proceeding Through Its Pre-Filed Expert Testimony, Exhibits, Expert Report, and Dr. Sheppards Hearing Testimony, and the Board Should Resist Any Attempt By NRC Staff to Delegate Its NEPA Obligations 176. The States burden on this contention is to bring forth evidence demonstrating that the SAMA analysis for Indian Point is unreasonable. See Louisiana Power and Light Co., 17 N.R.C. 1076, 1093 (quoting Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 A.E.C. 331, 345 (1973)) (after a partys contention has been admitted, that party has the burden of introducing sufficient evidence to establish a prima facie case. The burden then shifts to NRC Staff to prove by a preponderance of the evidence that it complied with the requirements of NEPA.) It is not the States burden to perform an independent SAMA analysis.

The State easily meets its evidentiary burden by demonstrating that the SAMA analysis underestimated the population in the 50 mile radius surrounding Indian Point. In support of NYS-16B, the State submitted extensive support for its conclusions that it was unreasonable to exclude commuters and census undercount.

B. The Board Should Afford No Weight to Testimony from Unqualified Witnesses or to the Unsupported Allegations and Conclusions of Entergys and NRC Staffs Witnesses 177. Nothing in Staffs witnesses resumes or testimony indicates that they are well qualified to give expert opinions on population estimates, regional commuting patterns, or census undercount. All four of NRC Staffs witnesses are civil or nuclear engineers. NRC000045 at; NRC000043 at 1; NRC000042 at 1; NRC000044 at 1. They do not have training in economics, sociology, or human geography, and are not experts in demography or population modeling, 74

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B which indicates that their testimony on these topics should be afforded little weight. See NYS000404 Sheppard Rebuttal Test. at 3 (discussing training and other qualifications necessary to be able to analyze demographic data). Accordingly, the Board should reject and discount the testimony offered by the NRC Staff on population modeling.

178. In addition, given Entergys witnesses relative lack of knowledge and experience in demography and population estimation, especially in light of Dr. Sheppards expertise and experience, the Board should afford little weight to Entergys testimony on these topics. See Nimely v. City of New York, 414 F.3d 381, 399 n.13 (2d Cir. 2005) (But it is worth emphasizing that, because a witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no means follows that he or she is qualified to express expert opinions as to other fields.); Duke Entergy Corp. (Catawba Nuclear Station, Units 1 and 2), 60 N.R.C. 21, 29 (2004) (Gaps in specific knowledge may go to the weight of the expert testimony rather than to its admissibility.); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 62 N.R.C. 328, 357 (2003) (Presiding officers have, in the past, accorded less weight to the testimony of a witness acknowledging no expertise in a specific area.).

179. Entergys purported sensitivity analysis also fails to show that the exclusion of 1.2 million individuals from the SAMA analysis is reasonable. First, Entergy is incorrect that an intervenor can succeed only if it shows that a deficiency will have a material effect on the SAMA analysis by making an additional SAMA cost effective. As support for this proposition, Entergy cites to the recent Seabrook decision (NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 N.R.C. __ slip op. (Mar. 8, 2012)), which in turn cites to a 2010 decision in the Pilgrim relicensing proceeding (Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. 287, 317 (Mar. 26, 2010) (hereinafter, Pilgrim CLI 75

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 11)). However, the Pilgrim CLI-10-11 decision does not cite any legal support for this proposition; nor could it, because the standard under NEPA is not materiality.

180. Under the correct NEPA standard, the issue is whether an FSEIS that omits 1.2 million individuals from the population estimate qualifies as an adequate compilation of relevant information that can provide the basis for an informed evaluation or a reasoned decision. Sierra Club, 701 F.2d at 1029-30. Even if this omission does not make an additional SAMA cost effective, it is still unreasonable under NEPA because the agency has failed to take a hard look at the information it relied upon and failed to disclose to the public an accurate picture of the environmental costs of relicensing.

181. Second, through its sensitivity analyses, Entergy attempts to shoe-horn NYS-16B into the framework applied in Pilgrim CLI-10-11; however the facts in Pilgrim stand in stark contrast to those in NYS-16B. In Pilgrim, the intervenors challenged several input parameters used by the applicant (also Entergy) in its SAMA analysis. After running a sensitivity analysis to evaluate the effects of changing those input parameters, Entergy concluded that changing the parameters would increase the PDR and the OECR by less than four percent. Because the benefit would have to increase by more than 100 percent to make any additional SAMAs cost effective, those increases were insufficient. Pilgrim CLI-10-11 at *6-7. The additional SAMA that came closest to being cost effective would produce a benefit of $2.5 million but would cost

$5 million to implement. Id. at *7.

182. In comparison, according to Entergy an increase in benefits of eleven percent would make an additional SAMA (IP2 SAMA 025, Improve MSIV design) cost effective here.

Entergy Test. at 49-50 (A89) (OKula, Teagarden, Potts). Entergys second sensitivity analysis, which included all of Dr. Sheppards population increase, yielded increases in the PDR and 76

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B OECR of 6.7% and 6.8% respectively, leading to a 6.15% increase in the total costs used in the SAMA analysis. ENT000589 at 2.

183. The Commissions statements about materiality in Pilgrim CLI-10-11 were made in the context of a 96% difference, not a 4.85% difference as we have here, assuming Entergys sensitivity analysis is valid. Considering the errors in other input parameters raised by NYS-12C along with the population errors in NYS-16B will yield results that would change the outcome of the SAMA analysis. Since these contentions both concern inputs to the MACCS2 code, they must be viewed together. See, e.g., Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), 59 N.R.C. 129, 149-150 (Mar. 5, 2004) (considering contentions with overlapping factual and technical questions together, as a group); Consumers Power Co. (Midland Plant, Units 1 and 2),

16 N.R.C. 571, 579 (Aug. 14, 1982) (where similar considerations govern the disposition of multiple contentions, those contentions will be reviewed together); Niagara Mohawk Power Corp. (Nine Mile Point, Unit 2), 7 A.E.C. 1046, 1079 (June 14, 1974) (considering closely related contentions together); NRC000040 at n.1 (stating that there is substantial overlap of issues between Contention NYS-16B and NYS-12C). Therefore, under Pilgrim CLI-10-11, the State has shown that it is genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated. Pilgrim CLI-10-11 at *39.

184. Furthermore, Entergys second analysis underscores the validity of the States concerns regarding commuters and census undercount. Increasing the PDR and OECR by 6.7%

and 6.8% respectively will change the cost-benefit ratio of every SAMA candidate considered in the SAMA analysis, not simply IP2 SAMA 025. SAMAs that are already cost-beneficial, will become more cost-beneficial, meaning the difference between the costs of implementation and 77

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B the benefits will decrease and therefore make those SAMAs even more attractive to implement.

See Tr. 2335:9-19 (J. McDade, Liberatore, Potts) (as the SAMA candidates become more cost-beneficial, the probability that Entergy will implement them increases). In addition, an increase in costs of 6.15% will increase the maximum attainable benefit, which could mean that some SAMA candidates Entergy removed from further consideration should now be re-considered.

See ENT000011 at 4-33, Figure 4.1, cited in Entergy Test. at 23, Fig. 1. Therefore, simply running a sensitivity analysis to show how PDR and OECR will be impacted does not show how the overall results of the SAMA analysis will change.

185. In short, every SAMA candidate must be evaluated individually when the severe accident cost risks change. Once Entergys sensitivity analysis proved that the population changes will have an effect on PDR and OECR, the next step was to apply these changes to each individual SAMA candidate to determine how the cost-benefit ratio would change. Both Entergy and Staff failed to take this necessary step. They have not met their burden under NEPA of showing that changing the cost-benefit ratio of every SAMA candidate being considered will not affect which mitigation measures NRC Staff requires Entergy to implement.

186. Because of these errors in the FSEIS, Entergys application for renewed operating licenses for Indian Point Unit 2 and Unit 3 cannot be granted until Staff corrects the flaws in the SAMA analysis and revises its FSEIS accordingly.

C. Under the National Environmental Policy Act, the Appropriate Remedy for a Deficient Environmental Impact Statement is for the Atomic Safety and Licensing Board to Remand the Matter to NRC Staff to Perform a Reanalysis of Site-Specific Environmental Impacts and Prepare a Revised and Supplemental Environmental Impact Statement 187. The assertion by Entergy and NRC Staff that a deficient FSEIS can be cured after the fact by submissions of NRC Staff, the applicant, or interveners during the adjudicatory 78

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B hearing pursuant to Atomic Energy Act (AEA) § 189 (42 U.S.C. § 2239) is incorrect. First, the suggestion is inconsistent with federal regulations that emphasize the importance of the Environmental Impact Statement (EIS) document itself, as well as the publics right to review and participate in the process. Nor does any NRC regulation expressly authorize licensing boards themselves to fix or supplement a deficient FSEIS. Moreover, NRC regulations provide a specific means to supplement an FSEISa process similar to that used to prepare an EIS in the first instance. 10 C.F.R. § 51.92. Having promulgated a regulation for supplementing an FSEIS, NRC is bound by it. Further, the Commissions deliberate elimination of an earlier regulation that permitted licensing boards to modify the content of an EIS precludes any suggestion that post hoc supplementation by the Board might be available to cure deficiencies in the challenged FSEIS. Finally, federal courts have consistently recognized that when an EIS is deficient, NEPA requires it be remedied by remanding the proceeding to the administrative agency to re-initiate the EIS process.

188. NEPA directs agencies contemplating major [f]ederal actions significantly affecting the quality of the human environment to prepare an EIS demonstrating agency consideration of the reasonably foreseeable environmental effects. Brodsky v. U.S. Nuclear Regulatory Commn, 704 F.3d 113, 119 (2d Cir. 2013) (citing 42 U.S.C. § 4332(2)(C)). The statutes implementing regulations identify public scrutiny as an essential part of the NEPA process, 40 C.F.R. § 1500.1(b) (Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA). Brodsky, 704 F.3d at 120. Accordingly, NEPA regulations provide that NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. Brodsky, 704 F.3d at 120 (quoting 40 C.F.R. § 1500.1(b)). In addition to providing 79

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B crucial information to the decisionmaker, NEPA also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision. Sierra Club v. Watkins, 808 F. Supp. 852, 858 (D.D.C. 1991) (quoting Methow Valley, 490 U.S. at 349). That larger audience clearly includes the public. Id.

189. NRCs regulations show that an environmental impact statement is of critical importance in an environmental review under NEPA. 10 C.F.R. § 51.70 (general requirements for draft EIS); 10 C.F.R. § 51.71 (describing contents of draft EIS); 10 C.F.R. § 51.72 (supplement to draft EIS); 10 C.F.R. § 51.73 (comments on draft EIS); 10 C.F.R. § 51.74 (distribution of draft EIS); 10 C.F.R. § 51.90 (preparation of final EIS after receipt of comments on draft EIS); 10 C.F.R. § 51.91 (contents of final EIS); 10 C.F.R. § 51.92 (supplementation of final EIS); 10 C.F.R. § 51.93 (distribution of final EIS); 10 C.F.R. § 51.94 (Commission obligated to consider the final EIS); 10 C.F.R. § 51.95(a) (supplement to final EIS will include a request for comments as provided in § 51.73); 10 C.F.R. § 51.95(c) (EIS for license renewal stage); 10 C.F.R. § 51.100(a)(1)(i),(ii) (prohibiting Commission action until after draft or final EIS filed with the Environmental Protection Agency). NRCs regulations further recognize that

[a]n appendix to an environmental impact statement [itself] will . . . . [n]ormally consist of material which substantiates any analysis fundamental to the impact statement. 10 C.F.R. Part 51, Subpart A, Appendix A, 9(b) (format for presentation of material in EIS).

190. Nothing in the NRCs regulations expressly permits testimony or exhibits from an adjudicatory hearing to supplement an environmental impact statement. To the contrary, regulatory history confirms that the Agency lacks the power to deem modified an otherwise inadequate EIS. In 1980, NRC initiated a comprehensive revision to the NEPA regulations, 80

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B which it inherited from the Atomic Energy Commission. Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, 45 Fed. Reg. 13,739 (Mar. 3, 1980). As part of that regulatory revision, NRC eliminated an earlier version of 10 C.F.R. § 51.52, which had provided that:

an initial decision of the presiding officer may include findings and conclusions which affirm or modify the content of the final environmental impact statement prepared by the staff. To the extent that findings and conclusions different from those in the final environmental statement prepared by the staff are reached, the statement will be deemed modified to that extent and the initial decision will be distributed as provided in § 51.26(c).

10 C.F.R. § 51.52 (1975 version) (emphasis added). The rulemaking was finalized in 1984.

Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, 49 Fed. Reg. 9,352 (Mar. 12, 1984).

191. NRCs current NEPA-implementing regulations require a formal supplement to the FSEIS: NRC staff will prepare a supplement to a final environmental impact statement . . .

if . . . [t]here are new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 10 C.F.R. § 51.92(a)(2). The regulations require that a draft supplement be circulated for public review and comment and that NRC Staff must address the comments before NRC Staff may issue a final document. See 10 C.F.R. § 51.92(d) (The supplement to a final environmental impact statement will be prepared in the same manner as the final environmental impact statement except that a scoping process need not be used.); § 51.92(f)(1) (A supplement to a final environmental impact statement will be accompanied by or will include a request for comments . . . .). [J]udicial review of administrative choices under NEPA . . . focuses primarily on the procedural regularity of the decision, rather than on its substance. Brodsky, 704 F.3d at 118 (quoting Sierra Club, 772 F.2d at 1055).

81

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 192. Thus, when NRC established an Atomic Safety and Licensing Board (ASLB) under AEA § 189 and referred the Indian Point relicensing to that Board, the referral cited to 10 C.F.R. §§ 2.104, 2.300, 2.303, 2.309, 2.311, 2.318, and 2.321provisions which give the Board no authority to amend, modify, or correct NRC Staffs FSEIS. Establishment of Atomic Safety and Licensing Board, 72 Fed. Reg. 60,394 (Oct. 24, 2007). Rather, the Board is charged with ruling on, among other things, whether or not the Staff complied with NEPA in the FSEIS.

193. Courts have consistently held that a supplemental NEPA analysis, prepared by agency staff and open to public comment, is the appropriate remedy for a NEPA violation.

Materials prepared after the FSEIS are not a substitute for supplementation and recirculation for public comment. [S]tudies [prepared after the EIS was finalized] could not cure these particular inadequacies because they were [not included in an EIS supplement and were] not circulated for review and comment in accordance with procedures established to comply with NEPA. I-291 Why? Assn v. Burns, 517 F.2d 1077, 1081 (2d Cir. 1975); accord Brodsky, 704 F.3d at 120 (NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.) (quoting 40 C.F.R. § 1500.1(b)).

194. Likewise, the First Circuit has found no indication in the [NEPA] statute that Congress contemplated that studies or memoranda contained in the administrative record, but not incorporated in any way into an EIS, can bring into compliance with NEPA an EIS that by itself is inadequate. Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir. 1980)

(finding that even if agency staff made an informed, good faith decision to reject a proposed alternative, staff had nonetheless violated NEPAs procedural mandate by failing to explain that decision in the EIS). The Ninth Circuit, too, has made clear that a non-NEPA document . . .

82

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B cannot satisfy a federal agencys obligations under NEPA. South Fork Band Council of W.

Shoshone v. U.S. Dept of Interior, 588 F.3d 718, 726 (9th Cir. 2009) (citing Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 998 (9th Cir. 2004)). And the Tenth Circuit declined to consider an affidavit concluding that environmental impacts were adequately analyzed because no such conclusion was recorded in any NEPA document prior to the [agency action]and it is a post hoc analysis that does not satisfy the NEPA. Pennaco Energy v. U.S. Dept of Interior, 377 F.3d 1147, 1159 (10th Cir. 2004).

195. Furthermore, when an EIS is found deficient, courts often enjoin the agency action at issue until the supplement is completed, in order to ensure that the agency takes the supplemental information into consideration in its final decision. In Natural Resources Def.

Council v. Callaway, the Second Circuit held:

The Navy should not be permitted to proceed with further dumping at the New London site until . . . the serious deficiencies in the EIS [are] remedied. Otherwise application of a rule of reason would convert an EIS into a mere rubber stamp for post hoc rationalization of decisions already made. If the spirit as well as the letter of NEPA is to have any real meaning in this case, the Navy should prepare and circulate for consideration and comment a supplemental statement . . . .

524 F.2d 79, 94-95 (2d Cir. 1975) (emphasis added). Hence, at a minimum, if the FSEIS is found deficient, NRC Staff must revise and supplement it before the Board can make a decision on the license renewal application.

196. Although few federal agencies have internal administrative procedures for adjudicating or appealing NEPA decisions, one such example is the Interior Board of Land Appeals (IBLA) within the Department of Interior (DOI).16 Like the federal courts, the 16 The IBLA is an appellate review body that exercises the delegated authority of the Secretary of the Interior to issue final decisions for the Department of the Interior. Located within the Departments Office of Hearings and Appeals, IBLA is separate and independent from the Bureaus and Offices whose decisions it reviews.

83

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B IBLA has required that a deficient EIS be remedied through a formal supplement to the EIS.

See, e.g., Wyoming Outdoor Council, 158 IBLA 155 (IBLA 2003) (reversing the Bureau of Land Managements project approval because staff failed to take a hard look, and remanding for further NEPA analysis). Moreover, the IBLA has found that the relevant record for determining NEPA compliance is the record at the time of the agency action, not the record as supplemented by material prepared after the NEPA document is complete.17 197. Nor can Determinations of NEPA Adequacy (DNAs)which DOI staff use to evaluate the adequacy of previous NEPA assessmentsbe used to supplement a formal review after the fact. See Ctr. for Native Ecosystems, 170 IBLA 331, 332 (IBLA 2006) (DNAs cannot be used to supplement previous Environmental Assessments or EISs, or to address site-specific environmental effects not previously considered in them.). In Center for Native Ecosystems, because new and significant information developed after the initial NEPA statements were completed, a new NEPA statement was required. Id; see also Wyoming Wilderness Assoc., 158 IBLA 155, 171-72 (2003) (New information showed that the agency did not take the required hard look, [a]ccordingly, these cases must be remanded to BLM for an expanded examination of the water quality impacts); Biodiversity Conservation Alliance, 171 IBLA 313, 321 (IBLA 2007) (The DNA cannot supplement what is not sufficient in NEPA documentation) (quoting Native Ecosystems, 170 IBLA at 332).

17 For example, after an 18-day hearing in National Wildlife Federation, et al. v. Bureau of Land Management, 140 IBLA 85 (IBLA 1997), in which the National Wildlife Federation presented evidence of the environmental impacts of grazing, the administrative law judge (ALJ) found that regardless of which route the agency chose to go, an adequate environmental review is required. Id. at 95-96. Because the agency wrongfully determined that the action would not significantly affect the quality of the human environment, the ALJ stated that the agency was prohibited from going forward with that action until an adequate EIS was prepared and considered. Id.

84

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 198. The administrative cases upon which NRC Staff and the applicant rely either do not support their claim or are wrongly decided. In Louisiana Energy Services (Natl Enrichment Facility [New Mexico]), CLI-06-15, 63 N.R.C. 687, 707 n.91 (2006), the Commission affirmed two ASLB decisions in which intervenors raised challenges under NEPA. Both ASLB decisions involved the environmental impacts of near-surface disposal of depleted uranium. But all of the disposal sites under consideration were regulated by states or by the Department of Energy; none were regulated by the Commission. Id. at 691. Therefore, NRC Staff had no obligation to conduct a full-scale site-specific review, an inquiry in the purview of the responsible licensing agency. Id. at 690 (internal quotations omitted). After expressing its concern that the Board (and the underlying FEIS) may not have fully explored potential long-term effects from disposing of depleted uranium - whose radiological hazard gradually increases over time, the Commission affirmed the Board decisions as supplemented by our decision today. Id. at 689-

90. In a final footnote, the Board observed that [a]djudicatory findings on NEPA issues, including our own in this decision, become part of the environmental record of decision and in effect supplement the FEIS. Id. at 707 and n.91. Here, however, no adjudicatory findings could cure the defect in NYS-16B. NRC Staffs failure to account for census undercount and commuters in the population estimate cannot be remedied by adjudicatory findings because Staff has not meaningfully analyzed the impact of this exclusionor the other SAMA analysis deficiencies identified and explained in NYS-12Cin a document that has been circulated for public review and comment.

199. Moreover, in reviewing a subsequent petition for judicial review, the District of Columbia Circuit considered only whether the Boards supplementation of the FEIS by the hearing record violated the Atomic Energy Acts requirement (at 42 U.S.C. § 2243) that the EIS 85

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B be prepared before the administrative hearing was completed. It did not determine whether the Commissions method of supplementing the EIS violated the Commissions NEPA regulations, a question the court itself made clear was not at issue in the case. See Nuclear Info. & Res. Serv. v.

NRC, 509 F.3d 562, n.1 (D.C. Cir. 2007) (Petitioners have not argued that the NRCs method of supplementing the EIS violated its regulations implementing NEPA. See 10 C.F.R. § 51.92.).18 200. To the extent that Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 N.R.C. 681, 705-07 (1985) and Louisiana Energy Services, L.P.

(Claiborne Enrichment Center [Louisiana]), CLI-98-3, 47 N.R.C. 77, 94 (1998) suggest that a licensing board may supplement an environmental impact statement with the hearing record, they are inconsistent with 10 C.F.R. § 51.102(c) and NEPAs goals.

201. Section 51.102(c) provides that, in a contested proceeding, the record of decision is comprised of the initial decision of the presiding officer or the final decision of the Commissioners acting as a collegial body. However, neither the initial decision of the presiding officer nor the Commissioners final decision includes testimony or exhibits from the 18 Moreover, the legal framework, procedural history, and petitioners legal claims distinguish Louisiana Energy Services (LES) from the present situation. NRCs review of LESs application to operate an uranium enrichment facility was controlled by a highly specific and specialized amendment to the Atomic Energy Act, 42. U.S.C. § 2243. That provision required NRC to hold a single adjudicatory hearing (id. at § 2243(b)(1)), declared that the issuing of such a license shall be considered a major Federal action under NEPA thereby necessitating the preparation of an environmental impact statement (id. at § 2243 (a)(1)), and directed NRC to prepare that environmental impact statement before the adjudicatory hearing (id. at § 2243(a)(2)). Indeed, this special provision of the AEA seems to anticipate only one EIS, only one hearing, and that Staffs work on the EIS would be complete before the hearing. Petitioners single NEPA challenge was limited to a claim that NRC did not adequately address the environmental consequences of disposing the waste generated by the facility. Nuclear Info., 509 F.3d at 566. In the LES proceeding, NRC staff released the draft EIS for public review in September 2004 and then issued the final EIS in July 2005well before both the NRCs principal rulings on petitioners contentions and the mandatory hearing in March 2006 on the remaining, uncontested issues. Id. at 568.

86

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B adjudicatory proceeding. Nor does 10 C.F.R. § 51.103(c), which provides that [t]he record of decision may incorporate by reference material contained in a final environmental impact statement, make any similar provision for the incorporation by reference of testimony or exhibits in an adjudicatory hearing.

202. The situations in which courts have allowed board supplementation are distinguishable from this matter. In one case, NRC Staff was relying upon the opinion of another agency and the environmental report had been revised by the applicant.19 In another, the parties stipulated to add additional detail to the EIS, but not to change its conclusions.20 Neither of those circumstances is present here.

203. Permitting deficiencies in the December 2010 FSEIS to be deemed supplemented by the hearing record or by Board [or Commission] order is fraught with problems. First, it would not be clear to the decision-makers or the public which part of the record as a whole was curing the NEPA deficiency. Second, the information that was deemed to supplement the FSEIS would not necessarily have been analyzed in a meaningful way, or at all, by NRC Staff. Third, the procedure would be inconsistent with the notice, comment, and 19 New England Coal. on Nuclear Pollution v. N.R.C., 582 F.2d 87, 93-94 (1st Cir. 1978) (NRC did not violate NEPA when it required the applicant to revise its environmental report to reflect a new location for a cooling water intake tunnel, but did not redo its own FEIS, because EPA had decided that the new location would have a smaller impact on the aquatic environment than the original location and NRC was entitled to rely on the EPA conclusion.). As the text of the decision makes clear, this holding was based on the earlierand subsequently eliminated version of § 51.52.

20 Citizens for Safe Power, Inc. v. N.R.C., 524 F.2d 1291, 1294, n.5 (D.C. Cir. 1975) (Where a stipulation entered into by the parties refined portions of an EIS, and those refinements were deemed to be included in the EIS and published in the Federal Register as part of the Boards decision, the court stated: Not questioning the importance of full disclosure and the necessity of real opportunity for public input under NEPA, we believe in the circumstances that there was no departure from either the letter or spirit of the Act.). This decision was decided during the tenure of the superseded version of § 51.52.

87

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B response requirements in NRC and CEQ regulations. 10 C.F.R. § 51.92(f)(1); 40 C.F.R. § 1502.9(b). Fourth, all the pertinent environmental information would no longer appear in one document that contains the agencys analysis of that information. See Minn. Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1300 (8th Cir. 1976) (The detailed statement serves to gather in one place a discussion of the relative impact of alternatives so that the reasons for the choice of alternatives are clear.). Indeed, CEQ regulations direct federal agencies to adopt procedures for introducing a supplement into its formal administrative record... 40 C.F.R. § 1502.9(c)(3). In sum, allowing the FSEIS to be deemed supplemented by the hearing record would undermine the very purpose of conducting an environmental analysis in an EIS that is circulated for public comment. 10 C.F.R. § 51.92(f)(1) (A supplement to a final environmental impact statement will be accompanied by or will include a request for comments . . .); see also 40 C.F.R. § 1500.1(b) (public scrutiny [is] essential to implementing NEPA.).

204. This Board has implicitly recognized that remand to NRC Staff is the appropriate remedy when the Board concludes that the FSEIS is deficient. Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Ruling on Motion and Cross-Motions for Summary Disposition of NYS-35/36), CLI-11-17, 74 N.R.C. 11, at

• 27 (Jul. 14, 2011) (ML111950712). In the same way, for NYS-12C and NYS-16B, the proper remedy is a remand to NRC Staff. NRC Staff would either conduct the review itself or direct Entergy to perform a SAMA reanalysis to cure the MACCS2 input deficiencies identified by the State. NRC Staff would then evaluate the SAMA Reanalysis in a supplement to the FSEIS that is circulated for public comment. In finalizing the supplement to the FSEIS, NRC Staff must respond to public comments. Only then would the NEPA deficiencies identified in NYS-12C and NYS-16B be cured.

88

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B 205. The State has proffered evidence that shows that the NRC Staffs environmental analysis in the FSEIS is inadequate, inaccurate, incomplete, and/or entirely missing. By contrast, NRC Staff and the applicant have presented evidence intended to convince the Board that the FSEIS complies with NEPA. Ultimately, the Board has only two options: It may rule that the December 2010 FSEIS satisfies NEPA, or it may conclude that it does not, and remand to Staff to correct the deficiencies.

IV. PROPOSED ORDER For the foregoing reasons, the State of New Yorks Contention NYS-16B is resolved in favor of the State of New York. Accordingly, the Director of Nuclear Reactor Regulation is not authorized to issue, and may not issue, renewed operating licenses for the Indian Point nuclear power plants Units 2 and 3.

In accordance with 10 C.F.R. § 2.341(b)(1), any party to this proceeding may file a petition for review of this Initial Decision with the Commission within twenty-five (25) days after service of this initial decision. In accordance with 10 C.F.R. § 2.340(g) and § 2.1210, this Initial Decision shall constitute the final decision of the Commission forty (40) days after its issuance, unless there is a petition for Commission review filed, or the Commission decides to review this Initial Decision under 10 C.F.R. § 2.1210(a)(2) or (3).

89

State of New York Findings of Fact and Conclusions of Law Contention NYS-16B Respectfully submitted, Signed (electronically) by Signed (electronically) by Laura E. Heslin John J. Sipos Kathryn M. Liberatore Assistant Attorney General Assistant Attorneys General Office of the Attorney General Office of the Attorney General for the State of New York for the State of New York The Capitol 120 Broadway Albany, New York 12224 New York, New York 10271 (518) 402-2251 (212) 416-6091 (212) 416-8482 March 22, 2013 90