ML13095A497

Riverkeeper Answer in Opposition to Motion and Memorandum by Applicant Entergy Nuclear Operations, Inc. for Declaratory Order That It Has Already Obtained the Required New York State Costal Management Program Consistency Review of Indian Po

ML13095A497
Person / Time
Site:	Indian Point
Issue date:	04/05/2013
From:	Brancato D, Musegaas P Riverkeeper
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24357, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13095A497 (30)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3)

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Docket Nos.

50-247-LR and 50-286-LR

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RIVERKEEPER ANSWER IN OPPOSITION TO "MOTION AND MEMORANDUM BY APPLICANT ENTERGY NUCLEAR OPERATIONS, INC. FOR DECLARATORY ORDER THAT IT HAS ALREADY OBTAINED THE REQUIRED NEW YORK STATE COASTAL MANAGEMENT PROGRAM CONSISTENCY REVIEW OF INDIAN POINT UNITS 2 AND 3 FOR RENEWAL OF THE OPERATING LICENSES" April 5, 2013

TABLE OF CONTENTS LIST OF ATTACHMENTS......................................................................................................... ii BACKGROUND........................................................................................................................... 1 ARGUMENT................................................................................................................................ 8 I.

THE ASLB IS NOT AN APPROPRIATE FORUM FOR ENTERGY'S MOTION FOR DECLARATORY ORDER..................................................................................... 8 II. NYSDOS HAS NEVER PREVIOUSLY CONDUCTED A FEDERAL CONSISTENCY REVIEW IN RELATION TO INDIAN POINT AND IS REQUIRED AND ENTITLED TO DO SO IN CONNECTION WITH THE PROPOSED LICENSE RENEWAL OF INDIAN POINT.......................................... 10 III. THE PROPOSED LICENSE RENEWAL OF INDIAN POINT WILL RESULT IN SUBSTANTIALLY DIFFERENT EFFECTS ON COASTAL RESOURCES.... 15 A. A Determination of Substantially Different Coastal Effects Under 15 C.F.R.

§ 930.51(e) is Not Necessary Since NYSDOS Has Not Conducted Any Prior Federal Consistency Reviews of Indian Point............................................................ 16 B. In Any Event, the Current Operation of Indian Point Causes, and the Proposed Future Operation of Indian Point Will Cause, Substantially Different Coastal Effects, for which a Federal Consistency Review and Determination is Unequivocally Required and Necessary..................................................................... 17

1.

Increased Power Output............................................................................................. 19

2.

Cylindrical Wedgewire Screens and/or Other Cooling Water Intake Structure Technology.................................................................................................................. 20

3.

Radiological Leaks and Groundwater Contamination............................................... 22

4.

Long-Term Onsite Nuclear Waste Storage................................................................. 23 CONCLUSION........................................................................................................................... 25

Attachment 1

2 3

4 5

6 7

8 LIST OF ATTACHMENTS Description NOAA Office of Ocean and Coastal Resource Management, CZMA Federal Consistency Overview (Feb. 20, 2009)

U.S. NRC, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues. NRR Office Instruction No. LIC-203, Revision 2 (Feb. 2009)

Letter from S. Watson (General Counsel, NYSDOS) to E. Leeds (Director, Nuclear Reactor Regulation, NRC), Re: DOS File#: 0-2009-0006, NRC Docket#: 50-247 & 50-286, Application to Renew Operating Licenses for Indian Point Nuclear Power Reactors Unit 2 and Unit 3, Hudson River, Village of Buchanan, Westchester County, General Correspondence-NL-12-107 (August 8, 2012)

NYSDOS, In the Matter of the Petition of Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC, Petitioner, For a Declaratory Ruling, Response to Request for Declaratory Ruling (Jan. 9, 2013)

Excerpt ofNYSDEC, In the Matter ofEntergy Nuclear Indian Point 2, LLC, and Entergy Indian Point 3, LLC, and Entergy Nuclear Operations, Inc's Joint Application for a CWA § 401 Water Quality Certification, DEC App. Nos.: 3-5522-00011/00030 (IP2), 3-5522-00105/00031 (IP3),

Combined Prefiled Rebuttal Testimony of Thomas C. Esselman, Ph.D.,

Matthew J. Barvenik, and F. Owen Hoffman, PhD, Radiological - Issue for Adjudication No.3 (October 4, 2011)

Gordon R. Thompson, Risk Related Impacts from Continued Operation of the Indian Point Nuclear Power Plants (Nov. 28, 2007)

Pisces Conservation Ltd, The Status of Fish Populations and the Ecology of the Hudson, April 2008 NYSDEC, In the Matter of a Renewal and Modification of a SPDES Permit, DEC# 3-5522-00011/00004, SPDES # NY-0004472 and In the Matter of the Application by Entergy Nuclear Indian Point 2, LLC, and Entergy Indian Point 3, LLC, for a Certificate Pursuant to §401 of the Federal Clean Water Act, DEC# 3-5522-00011/00030, 3-5522-00011/00031, Direct Testimony of Dr. Peter A. Henderson Regarding Entergy's Proposed Cylindrical Wedgwire [sic] Screens, on Behalf of Interveners, Riverkeeper Inc., Scenic Hudson, Inc. and Natural Resources Defense Council, Inc. (July 22, 2011) ii

9 10 11 12 13 NYSDEC, In the Matter of a Renewal and Modification of a SPDES Permit by Entergy, DEC# 3-5522-00011/00004, SPDES # NY-0004472, and In the Matter of the Application by Entergy for a Certificate Pursuant to §401 of the Federal Clean Water Act, DEC# 3-5522-00011/00030, DEC # 3-5522-00011/00031, Post-Hearing Closing Brief of Intervenors Riverkeeper, Natural Resources Defense Council, and Scenic Hudson Regarding Issue for Adjudication No. 3 -Radiological Materials (April 27, 2012)

Comments by Alliance for Nuclear Accountability, et al. on Scope of Waste Confidence Environmental Impact Statement (January 2, 2013)

Lynn R. Sykes et al., Observations and Tectonic Setting of Historic and Instrumentally Located Earthquakes in the Greater New York City-Philadelphia Area, Bulletin of the Seismological Society of America, Vol.

98, No.4, pp. 1696-1719, August 2008 Bill Dedman, What are the odds? US nuke plants ranked by quake risk (March 17, 2011)

NYS Sea Level Rise Task Force Report (December 31, 2010) iii

In accordance with 10 C.F.R. § 2.323(c), the Atomic Safety and Licensing Board's

("ASLB") July 1, 2010 Scheduling Order, 1 and the ASLB's February 28,2013 Order,2 Riverkeeper, Inc. ("Riverkeeper"), hereby submits this answer in opposition to the "Motion and Memorandum by Applicant Entergy Nuclear Operations, Inc. ["Entergy"] for Declaratory Order that it has Already Obtained the Required New York State Coastal Management Program Consistency Review of Indian Point Units 2 and 3 for Renewal ofthe Operating Licenses," dated July 30,2012 (hereinafter "Entergy's Motion for Declaratory Order"). For the reasons discussed below, the ASLB must decline to rule upon, and otherwise deny, Entergy's request for a declaratory order that coastal consistency certification review required under the Federal Coastal Zone Management Act ("CZMA") is "neither necessary nor appropriate" in relation to the proposed license renewal of Indian Point.

BACKGROUND The Federal CZMA was enacted in 1972 to enable coastal states to establish programs for managing natural resources found in the coastal zone. 3 In order to ensure the protection of coastal resources, the CZMA encourages states with coastal zones to establish and implement their own Coastal Management Program ("CMP") pursuant to federal requirements. 4 State CMPs are comprehensive management plans that, inter alia, describe the uses subject to the management program and the authorities and enforceable policies of the program. 5 1 In the Matter ofEntergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.

50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Scheduling Order (July 1, 2010), at~ G.

2 In the Matter ofEntergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.

50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Order (Granting Parties Joint Motion for Alteration of Filing Schedule) (Feb. 28, 2013).

3 Coastal Zone Management Act of 1972 ["CZMA"], 16 U.S.C. §1451 et seq.

4 Id 5 Id § 307, 16 U.S.C. 1456; NOAA Office of Ocean and Coastal Resource Management, CZMA Federal Consistency Overview (Feb. 20, 2009), at 3 (Attachment ("Att.") 1) (hereinafter "CZMA Federal Consistency Overview (Att. 1)").

The "cornerstone of the CZMA" is the federal consistency provision, which "provides states with an important tool to manage coastal uses and resources" within the state. 6 The CZMA requires that Federal agency actions resulting in effects on any land or water use or natural resource of the coastal zone must be consistent with the enforceable policies of a state's CMP.7 Federal actions include Federal licensing activities, including certain Federal license renewal activities. 8 Guidance published by the National Oceanic and Atmospheric Administration ("NOAA") explains that there are four elements for determining that an authorization from a Federal agency is a "federal license or permit" subject to federal consistency review. First, federal law requires that an applicant obtain a federal authorization. Second, the purpose of the federal authorization is to allow a non-federal applicant to conduct a proposed activity. Third, the activity proposed has reasonably foreseeable effects on a state's coastal uses or resources, and fourth, the proposed activity was not previously reviewed for federal consistency by the state CMP agency (unless the authorization is a renewal... pursuant to §930.51(b) [which provides that certain license renewal activities that were previously reviewed are still subject to consistency review]). 9 The "state CMP agency," i.e., the State agency responsible for conducting the Federal consistency review process, must make a determination about whether the proposed Federal licensing activity is consistent with State coastal policies; if the state finds that the activity is not consistent with the state CMP, i.e., by objecting to the Coastal Consistency Certification submitted by an applicant, the Federal agency involved cannot authorize the proposed licensing action. 10 6 CZMA Federal Consistency Overview, supra Note 5 at 3.

7 CZMA § 307, 16 U.S.C. §1456(c)(1)(A).

8 15 C.F.R. § 930.51.

9 CZMA Federal Consistency Overview, supra Note 5 at 12 (emphasis added).

10 See 15 C.F.R. Part 930, Subpart D; CZMA Federal Consistency Overview, supra Note 5 at 15 ("If state objects [to applicant's coastal consistency certification], Federal agency does not authorize the activity to commence. If a state issues a conditional concurrence and the applicant does not amend its federal application to include a state's conditions, a state's conditional concurrence automatically becomes an objection... Applicant may appeal a state's objection to the Secretary of Commerce within 30 days of the objection.... If the Secretary does not override a state's objection, the Federal agency does not authorize the project.").

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States that develop management programs pursuant to the CZMA are required to generate a list of Federal agency activities that are expected to affect coastal use or resources "and which the State agency wishes to review for consistency with the management program.

11 NOAA guidance explains that "[a]ll federal license or permit activities occurring in the coastal zone are deemed to affect coastal uses or resources if the state CMP has listed the particular federal license, permit or authorization in its federally approved CMP." 12 U.S. Nuclear Regulatory Commission ("NRC") guidance acknowledges and memorializes the clear regulatory scheme established under the CZMA and its implementing regulations. 13 NRC's guidance recognizes that "[a]ctivities ofFederal agencies that are reasonably likely to affect coastal zones are required to be consistent with the approved CMP of the State or territory to the maximum extent practical." 14 NRC's guidance further recognizes that "[i]f a Federal agency receives an application for a permiting [sic ]/licensing activity that has been pre-listed in a State's CMP, that agency has an obligation to withhold the permit/license approval until the State has concurred on the consistency determination." 15 NRC's guidance explains that nuclear power plant license renewals are "typically" "listed activities." 16 Furthermore, NRC's guidance acknowledges that NOAA "regulations specifically require Federal consistency certification for license renewal... that will affect any coastal use or resource" and explicitly states that nuclear power plant "license renewal applications" constitute 11 15 C.F.R. § 930.53; CZMA Federal Consistency Overview (Att. 1), supra Note 5 at 11.

12 CZMA Federal Consistency Overview (Att. 1), supra Note 5 at 13 (emphasis in original).

13 U.S. NRC, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues. NRR Office Instruction No. LIC-203, Revision 2 (Feb. 2009) at 7-9 (Att. 2).

14 Jd. at 7.

15 Jd. at 8.

16 ld. at 9; see id. ("Upon receipt of an application for a listed activity (e.g. license renewal, [NRC Staff shall]

ensure that the licensee has provided a Federal consistency certification.") (emphasis in original).

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"NRR [NRC Office ofNuclear Reactor Regulation] licensing actions requiring a Federal consistency certification." 17 In New York, in recognition of the unique and critical nature of State coastal resources and various threats thereto, the New York State Department of State ("NYSDOS") prepared a CMP, originally approved by NOAA in 1982, which contains forty-four (44) coastal policies with which Federal agency actions must be consistent. 18 The NYS CMP explains the significance and importance of the Hudson River estuary, which is home to "an extraordinarily rich variety offish species," "one ofthe major spawning grounds for several commercially significant Atlantic species," and "many important wildlife habitats." 19 The NYS CMP designates the NYSDOS "as the State's agency responsible for reviewing federal activities as to their consistency with the CMP."20 NYSDOS has clarified that in accordance with the CZMA, under the NYS CMP, "DOS has been designated as the sole state agency able to make federal consistency determinations pursuant to the CZMA and its regulations."21 This is consistent with the mandate of the CZMA.22 The NYS CMP explains how "[ o ]nly one State agency may be designated as the sole reviewer ofF ederal consistency 17 /d. at 8.

18 NOAA, Office of Coastal Zone Management, New York State Coastal Management Program and Final Environmental Impact Statement (Attachment 3 to Entergy's Motion for Declaratory Order) (hereinafter referred to as "NYS CMP").

19 NYS CMP at§ 11-2,6-7.

20 !d. at§ 11-9, 8.

21 Letter from S. Watson (General Counsel, NYSDOS) to E. Leeds (Director, Nuclear Reactor Regulation, NRC),

Re: DOS File#: 0-2009-0006, NRC Docket#: 50-247 & 50-286, Application to Renew Operating Licenses for Indian Point Nuclear Power Reactors Unit 2 and Unit 3, Hudson River, Village of Buchanan, Westchester County, General Correspondence-NL-12-107 (August 8, 2012) at 1 (Att. 3) (hereinafter "NYSDOS Letter in Response to Entergy Correspondence NL-12-1 07 (Att. 3 )") (emphasis added); see id. (No other New York state agency -

neither the NYS Public Service Commission (PSC), nor the NYS Department of Environmental Conservation (DEC), nor the non-state agency Power Authority of the State ofNew York-is authorized to make or issue consistency determinations under the CZMA that are binding on federal agencies.").

22 CZMA § 306(d)(6), 16 U.S.C. § 1455 (regarding designation of a "single State agency"); 15 C.F.R. § 930.11(o)

(defining "State agency" for purposes ofFederal coastal consistency determinations as "the agency of the State government designated pursuant to section 306(d)(6) of the Act").

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determinations (15 CFR 9/30.18 [sic]). The Department of State's mandate makes it most suitable for the variety of policies in the Program."23 NYSDOS "must ensure" that federal activities, including activities requiring federal licenses, are consistent with the NYS CMP.24 The NYS CMP explains that "[a]ctivities in or outside ofNew York's coastal zone, which require federal permits, licenses and other regulatory authorizations and affect land and water uses and natural resources in the coastal zone, are subject to review by DOS for their consistency with the State's CMP" and explicitly states that

"[t]his requirement also applies to renewals... to such regulatory approvals."25 The NYS CMP indicates that the Federal agency may not issue a license "unless: (a) DOS concurs or concurs with conditions with the applicant's consistency certification; (b) DOS' concurrence is conclusively presumed; or (c) the U.S. Secretary of Commerce overrides DOS' objection to the applicant's consistency certification."26 Per Federal regulations, the NYS CMP includes a list of "[t]he specific federal regulatory activities subject to consistency review by DOS."27 The list of Federal licensing activities that are unequivocally "subject to the consistency provisions of the Coastal Zone Management Act, its implementing regulations in 15 CFR Part 930, Subpart D, and the New York Coastal Management Program" includes the following actions undertaken by the NRC: "[l]icensing and certification of the siting, construction, and operation of nuclear power plants, pursuant to Atomic Energy Act of 1954, Title II of the Energy Reorganization Act of 1974 and the National Environmental Policy Act of 1969."28 This specifically encompasses "renewals... to such 23 NYS CMP at§ IX, 20.

24 Id 25 Id at§ 11-9, 11 (emphasis added).

26 Id (emphasis added).

27 Id at § 11-9, 12.

28 Id at§ 11-9, 18, 20 (emphasis added).

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regulatory approvals."29 NYS "DOS will review these activities for their consistency with New York's CMP."30 NYSDOS recently explicitly confirmed that the licensing and operation of a nuclear plant "is [a] listed federal activity in the CMP mandating a submission of a federal consistency certification to DOS." 31 Ostensibly in light of the unambiguous Federal consistency certification scheme established under the CZMA, recognized by the NRC, and implemented in New York via the NYS CMP, and on or about April23, 2007, Entergy filed a License Renewal Application

("LRA") with the NRC pertaining to the proposed relicensing of the Indian Point nuclear power plant that included a discussion ofEntergy's intention to submit an application to the NYSDOS for a coastal consistency certification. 32 In the LRA, Entergy aptly recognized that the CZMA and implementing regulations undoubtedly require a Federal consistency determination that the license renewal oflndian Point "would be consistent with the state's federally approved coastal zone management program."33 In accordance with NRC's guidance discussed above, NRC Staff has also appropriately recognized that, based on New York State's Federally approved coastal zone management program and the location oflndian Point within the state's coastal zone, the "license renewal of IP2 and IP3 will require a State coastal consistency certification."34 Over five years after acknowledging its clear obligation to file an application for and obtain a Federal coastal consistency determination from NYSDOS in connection with the proposed license renewal of Indian Point, and despite NRC Staffs confirmatory statements to 29 Id at§ 11-9, 11.

30 Jd at§ 11-9, 12 (emphasis added).

31 NYSDOS Letter in Response to Entergy Correspondence NL-12-1 07 (Att. 3), supra Note 21, at 1.

32 See Indian Point Energy Center License Renewal Application, Appendix E, § 9.3, available at, http://www.nrc.gov/reactors/operating/licensing/renewal/applications/indian-point/2-ipec-lra-appendix-e 3-9.pdf 33 Jd 34 Generic Environmental Impact Statement for License Renewal ofNuclear Plants, NUREG-1437, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1437/supplement38/ (last visited April2, 2013), at pp.2-141 to 2-142 (emphasis added).

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this effect, on July 24, 2012, in a bizarre and unsubstantiated change in position, Entergy filed a supplement to its LRA in which Entergy now alleges that "IP2 and IP3 already have obtained the necessary consistency reviews from the State ofNew York and that... IP2 and IP3 require no further consistency review in connection with this proceeding."35 The timing of this filing is questionable at best given that it was not based on any alleged changes in circumstances, but only on an apparent "reassessment" conducted by Entergy. 36 Entergy's LRA supplement was followed shortly by Entergy's Motion for Declaratory Order (filed on July 30, 2012) which seeks an order from the ASLB that would echo the position Entergy takes in its July 24,2012 LRA supplement, i.e., "that NRC may renew the IP2 and IP3 licenses without requiring a further consistency certification."37 This position is based on spurious arguments that the proposed licensing activity has been "previously reviewed" and that the relicensing of Indian Point would not result in substantially different coastal effects. 38 As explained fully below, these arguments are unfounded and incorrect, since the proposed activity has not been reviewed already for the purposes of Federal coastal consistency certification by the CMP agency, i.e. the NYSDOS, 39 and since numerous substantially different coastal effects will occur as a result of any relicensing of Indian Point. 4° For these, and other reasons discussed below, Entergy's Motion for Declaratory Order must be rejected.

In addition, on December 17, 2012, Entergy in fact filed a coastal consistency certification with the NRC and NYSDOS alleging that the license renewal of Indian Point "is 35 NL-12-107, Letter from F. Dacimo (Entergy) to U.S. NRC, Re: Supplement to License Renewal Application-Compliance with Coastal Zone Management Act, Indian Point Nuclear Generating Unit Nos. 2 & 3, Docket Nos.

50-247 and 50-286, License Nos. DPR-26 and DPR-64 (July 24, 2012) (Attachment 1 to Entergy's Motion for Declaratory Order) (hereinafter "Entergy Attachment 1, NL-12-107").

36 Entergy Attachment 1, NL-12-1 07 at 1.

37 Entergy's Motion for Declaratory Order at 25.

3s Id 39 See irifi'a pp. 10-15.

40 See irifi'a pp. 17-25.

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consistent with the applicable and enforceable policies of the New York State Coastal Management Program."41 This application is currently under review by the NYSDOS, and will ostensibly undergo a six-month review process upon a determination that Entergy's application is complete, in accordance with applicable regulations. 42 The filing ofEntergy's application for coastal consistency certification renders Entergy's Motion for Declaratory Order effectively moot and unnecessary, since the coastal consistency review process that Entergy claims is not required is already underway and will result in the necessary determination by NYSDOS.

Despite these circumstances, and without waiving any rights to assert mootness arguments, Riverkeeper responds to Entergy's Motion for Declaratory Order as follows.

ARGUMENT I.

THE ASLB IS NOT AN APPROPRIATE FORUM FOR ENTERGY'S MOTION FOR DECLARATORY ORDER As an initial matter, Riverkeeper respectfully submits that the ASLB should decline to rule upon Entergy's Motion for Declaratory Order, since the ALSB does not appear to be a correct forum wherein the matters raised in the motion can be decided upon. Entergy states that "the NRC is vested with exclusive responsibility to decide whether the coastal zone effects from license renewal are substantially different than those previously reviewed by the State."43 For the reasons explained fully below, because NYSDOS has never "previously reviewed" the coastal effects posed by the operation of Indian Point, a "determination of substantially different coastal effects... by the Federal agency" discussed in 15 C.F.R. § 930.5l(e), is not necessary or 41 Letter from K. Sutton (Entergy) to ASLB, re: Notification ofEntergy's Consistency Certification Pursuant to the Coastal Zone Management Act (December 17, 2012); Letter from F. Dacimo (Entergy) to Secretary Cesar A.

Perales (NYSDOS), Re: Consistency Certification for Entergy Nuclear Indian point 2 and Entergy Nuclear Indian Point 3 License Renewal Application (Dec. 17, 2012); Indian Point Unit 2 and Unit 3, Coastal Zone Management Act Consistency Certification in Support ofUSNRC's Renewal oflndian Point Unit 2 and 3 Operating Licenses, Submitted by Entergy, Prepared by AKRF, Inc. and Entergy (December 2012).

42 See 15 C.F.R. §§ 930.60, 930.61; see generally 15 C.F.R. Part 930, Subpart D 43 Entergy's Motion for Declaratory Order at 4.

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appropriate. 44 As a result, there is no reason for NRC to be called upon to make the determination Entergy now requests under 15 C.F.R. § 930.5l(e).

However, even if input from NRC was necessary to make a "determination of substantially different coastal effects," which it is not, 45 Entergy has failed to justify how bringing the matter before the ASLB is appropriate. In particular, Atomic Safety and Licensing Board panels are adjudicatory bodies that "conduct [] public hearings concerning contested issues that arise in the course of licensing... proceedings" and which "afford the public... an opportunity to challenge proposed licensing activities."46 As the parties in this proceeding are keenly aware, "the issues in contested NRC licensing adjudications fall into two generic categories: (1) safety/technical issues arising under the AEA; and (2) environmental issues arising under the National Environmental Policy Act (NEPA)."47 Indeed, the ASLB in the instant proceeding was convened in order to rule upon various petitions proffering contested issues, i.e., contentions, in relation to the proposed license renewal of Indian Point, and to conduct hearings on those issues that the ASLB determined met strict contention admissibility criteria. 48 In contrast, the ASLB was not convened for the purpose of ruling upon any issues that may arise in relation to ancillary Federal and State environmental processes. Notably, the ASLB has expressly denied to offer any opinions or guidance in relation to the impact of an ongoing State proceeding pending with the New York State Department of Environmental Conservation ("NYSDEC") relating to the license renewal of Indian Point, in 44 See 15 C.F.R. § 930.5l(b)(3), (e); See infra pp. 10-16.

45 See infra p. 16.

46 U.S. NRC, ASLBP Responsibilities, http://www.nrc.gov/about-nrc/regulatory/adjudicatory/aslbp-respons.html (last visited April3, 2013).

47 /d.

48 See In the Matter ofEntergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing) (July 31, 2008), 68 N.R.C. 43, ADAMS Accession No. ML082130436.

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apparent recognition of the adjudicatory, and not other, purposes for which the board was constituted. 49 The matters raised in Entergy's Motion for Declaratory Order do not relate to and are not a part of any admitted or pending contention in the Indian Point license renewal proceeding, and will not and could not be subject to a hearing before the ASLB. As such, Riverkeeper respectfully submits that it is not within the purview of the ASLB's authority to make the determinations requested, and the ASLB should decline to rule upon Entergy's Motion for Declaratory Order. In the event that the ASLB does decide to rule upon the merits ofEntergy's Motion for Declaratory Order, Riverkeeper offers the following responses to the substantive issues raised in the motion, without waiving any rights to assert the foregoing position.

II.

NYSDOS HAS NEVER PREVIOUSLY CONDUCTED A FEDERAL CONSISTENCY REVIEW IN RELATION TO INDIAN POINT AND IS REQUIRED AND ENTITLED TO DO SO IN CONNECTION WITH THE PROPOSED LICENSE RENEWAL OF INDIAN POINT Entergy alleges that Indian Point has been subject to reviews for consistency with the NYS CMP in the past, and that as a result, an alleged "further" review by NYSDOS is only necessary if the proposed relicensing of Indian Point will result in any coastal effects that are substantially different than those "previously reviewed."50 However, Entergy's foundational premise for this assertion-that the licensing activity at issue has been "previously reviewed" for purposes of a Federal coastal consistency determination-is patently wrong and a clear attempt to subvert the purposes of the comprehensive coastal zone management program and Federal consistency review process established in New York State pursuant to the CZMA.

49 See Official Transcript of Proceedings, Nuclear Regulatory Commission, Entergy Nuclear Operations Indian Point, Units 2 & 3 Pre-hearing Conference, Docket Number: 50-247-LR and 50-286-LR, ASLBP Number: 07-858-03-LR-BDOI (April19, 2010), Pages 795-900, ADAMS Accession No. ML101160416, at 899-900 (in response to inquiry about whether the Board "could speak to the impact of' the "decision by the New York State [Department]

ofEnvironmental Conservation to deny 401 water quality [cert]ification" to Indian Point, ASLB Chairman McDade indicating that "The answer is the Board can't." (emphasis added)).

50 Entergy's Motion for Declaratory Order at 1, 14-21 10

Despite Entergy' s unfounded assertions about prior consistency reviews, the fact of the matter is that the New York State agency solely charged with making coastal consistency determinations in relation to proposed Federal licensing activities, NYSDOS, has never made such a determination in relation to the operation of Indian Point. In fact, in response to the novel and unfounded assertions contained in Entergy's July 24,2012 LRA supplement, NYSDOS explicitly explained that "DOS has never conducted a federal consistency review nor issued a determination for the licensing and operation of Indian Point Units 2 and 3."51 As NYSDOS has explained, the CZMA "does not provide for exceptions or exclusions from federal consistency review" but rather dictates that "[a]ll federal actions affecting land or water uses or natural resources of the coastal zone, including permit or licensing activities, are subject to federal consistency reviews."52 In New York, the NYS CMP has explicitly listed Federal activities related to the licensing and operation of nuclear power plants, including license renewals, as subject to consistency review. 53 As the state agency vested with the exclusive authority to conduct a Federal consistency review, 54 and because no such review has occurred to date, NYSDOS has the obligation and right to make a consistency determination in relation to the proposed license renewal of Indian Point.

Yet, Entergy claims that a hodgepodge of alleged reviews conducted by other State and non-State entities is somehow sufficient to satisfy Entergy's obligation to obtain a coastal consistency certification in connection with Entergy's request to extend the operating life of 51 NYSDOS Letter in Response to Entergy Correspondence NL-12-107 (Att. 3), supra Note 21, at 1.

52 NYSDOS, In the Matter of the Petition of Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC, Petitioner, For a Declaratory Ruling, Response to Request for Declaratory Ruling (Jan. 9, 2013) (Att. 4) (citing CZMA, 16 U.S.C. § 1456) (hereinafter "NYSDOS Jan. 9, 2013 Response to Request for Declaratory Ruling (Att. 4)").

53 NYS CMP at§ 11-9, 11-12, 18, 20; NYSDOS Letter in Response to Entergy Correspondence NL-12-107 (Att. 3),

supra Note 21, at 1.

54 NYS CMP at§ 11-9, 8, §IX, 20; NYSDOS Letter in Response to Entergy Correspondence NL-12-107 (Att. 3),

supra Note 21, at 1.

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Indian Point. Entergy argues that Federal regulations "recognize that NYSDOS may designate other state agencies to conduct consistency reviews in particular circumstances"55 and apparently asserts that such "other" state agencies have been so designated in relation to certain previous activities involving the operation of Indian Point. 56 However, this is clearly not the case. The fact that the NYS CMP mentions other entities and the obligation of such entities to ensure compliance with the NYS CMP in the context of state consistency determinations, does not equate to NYSDOS ceding authority to such entities and/or designating such entities for the purposes of a Federal coastal consistency review and determination. And in fact, in response to Entergy's confused and incorrect understanding of the Federal consistency certification requirements stemming from the NYS CMP, NYSDOS explicitly clarified that

[ n ]o other New York state agency-neither the NYS Public Service Commission (PSC), nor the NYS Department of Environmental Conservation (DEC), nor the non-state agency Power Authority ofthe State ofNew York ["NYPA"]- is authorized to make or issue consistency determinations under the CZMA that are binding on federal agencies. 57 In relation to Indian Point, NYSDOS has not designated any other entities to conduct a Federal consistency review, and remains the "sole" state agency with the authority to do so. 58 An examination of the alleged prior reviews Entergy raises in its motion clearly reveals that there is no validity to Entergy's claims that the operation of Indian Point has been sufficiently reviewed for purposes of Federal coastal consistency requirements. First, Entergy points to "[t]he CMP itself," simply because it contains a statement that NYS has recognized "the national interest in energy facilities by the number and scope of facilities... already 55 Entergy's Motion for Declaratory Order at 7.

56 Id at 9-11, 14-21.

57 NYSDOS Letter in Response to Entergy Correspondence NL-12-107 (Att. 3), supra Note 21, at 1.

58 Id; NYS CMP at§ 11-9,8, §IX, 20; NYSDOS Letter in Response to Entergy Correspondence NL-12-107 (Att.

3), supra Note 21, at 1.

12

located in... New York's coastal area" including nuclear units. 59 This general statement clearly does not amount to determination that the operation of Indian Point is consistent with the coastal policies contained in the NYS CMP, and it is certainly not equivalent to an affirmative review of a Federal activity that is explicitly listed elsewhere in the NYS CMP as necessitating a review, i.e., the license renewal of a nuclear plant. 60 To allow such a statement to supplant Federal consistency reviews would completely undermine the entire Federal consistency scheme established in NYS pursuant to the CZMA.

Second, Entergy points to alleged consistency reviews that were conducted when the operating licenses of Indian Point Units 3 and 2 were transferred from NYP A in 2000 and Consolidated Edison in 2001 to Entergy, respectively. 61 In relation to the former transfer, Entergy points to an alleged review conducted by NYP A, a non-state agency for purposes of Federal consistency review (despite Entergy' s representations otherwise), in which NYP A concluded that the license transfer of Indian Point Unit 3 to Entergy was consistent with the coastal policies ofNYS.62 As no Federal consistency review was conducted by the only actual state agency authorized to do so, i.e. NYSDOS, NYPA's "conclusion" does not constitute "a conclusive determination" of Federal consistency, or a prior Federal consistency decision. 63 Any conclusions drawn by NYP A in relation to a state consistency determination is simply not binding on NYSDOS. 64 In fact, Entergy concedes that there is no record that NYSDOS ever concurred with NYPA's conclusions. 65 59 Entergy's Motion for Declaratory Order at 14-15 (citing NYS CMP at II-9, 3).

60 NYS CMP at§ II-9, 11-12, 18, 20; NYSDOS Letter in Response to Entergy Correspondence NL-12-107 (Att. 3),

supra Note 21, at I.

61 Entergy's Motion for Declaratory Order at 15-19.

62 !d. at 16-17.

63 NYSDOS Letter in Response to Entergy Correspondence NL-12-107 (Att. 3}, supra Note 21, at 1; NYS CMP at§ II-9, 8, §IX, 20.

64 NYSDOS Letter in Response to Entergy Correspondence NL-12-107 (Att. 3), supra Note 21, at I.

65 Entergy's Motion for Declaratory Order at 17.

13

Similarly, in relation to the latter transfer of the operating license of Indian Point Unit 2 to Entergy, once again, Entergy points to an alleged review that was not conducted by NYSDOS, but instead, by the NYS PSC.66 Once again, the State agency with the power to conduct Federal consistency determinations was not involved in the process Entergy discusses. 67 Entergy explicitly acknowledges that there was no record of any application for federal consistency certification even submitted to NYSDOS in relation to the license transfer, let alone a Federal consistency concurrence by NYSDOS with regard to any such certification. 68 Any conclusions made by the NYS PSC relating to a state consistency determination were, thus, not "conclusive" or binding for purposes ofF ederal coastal consistency review. 69 Third, and lastly, Entergy points to "repeated" determinations of coastal consistency in the context of "dozens of state permits" that have been issued to Indian Point since the aforementioned license transfers. 70 Entergy cites to statements made by the NYSDEC in a final environmental impact statement prepared in 2003 in connection with a State Pollutant Discharge Elimination System ("SPDES") permit renewal proceeding for Indian Point about coastal zone impacts. 71 Such statements related to state coastal consistency findings did not implicate a Federal consistency review process. Indeed, a SPDES permit renewal is a state permit process and not a Federal licensing activity that requires a Federal consistency determination. Entergy cannot rely upon findings made in the context of state coastal consistency assessments as a 66 Id at 17-18.

67 Id; NYSDOS Letter in Response to Entergy Correspondence NL-12-107 (Att. 3), supra Note 21, at I; NYS CMP at§ 11-9, 8, §IX, 20.

68 Entergy's Motion for Declaratory Order at 18.

69 NYSDOS Letter in Response to Entergy Correspondence NL-12-1 07 (Att. 3 ), supra Note 21, at 1; NYS CMP at § 11-9, 8, § IX, 20.

70 Entergy's Motion for Declaratory Order at 19-21 (emphasis added).

71 Id at20.

14

substitute for a required Federal consistency determination that only NYSDOS can make, and which is unquestionably required in relation to the proposed license renewal of Indian Point. 72 As stated best by the NYSDOS itself, "( c ]obbling together disparate state agency reviews does not approximate the federal review required by the CZMA."73 Entergy's twisted reading of applicable requirements would tum the regulatory scheme stemming from the CZMA and implemented in NYS through the NYS CMP on its head and improperly flout clear Federal requirements. NYSDOS has never performed a Federal consistency review in relation to Indian Point, and, pursuant to the CZMA, implementing regulations, and the NYS CMP, is required and entitled to conduct one now, in relation to the proposed license renewal of the plant.

III.

THE PROPOSED LICENSE RENEWAL OF INDIAN POINT WILL RESULT IN SUBSTANTIALLY DIFFERENT EFFECTS ON COASTAL RESOURCES Based on Entergy's invalid position that the operation of Indian Point has previously been subject to Federal consistency review, Entergy alleges that "further" review by NYSDOS is only necessary ifthe proposed relicensing of Indian Point will result in any coastal effects that are "substantially different" than those "previously reviewed."74 As a result, Entergy's Motion for Declaratory Order attempts to portray Indian Point as an unchanging facility that does not have new, previously unanticipated effects on coastal resources in New York State, and which will not have new and varying and significant effects on coastal resources in the state should the plant continue operating an additional 20 years as Entergy has requested. This portrayal is a pure fiction that blatantly ignores numerous changed circumstances that have occurred in recent years and are continuing to occur at Indian Point that will indisputably result in new and varying coastal impacts that have not been subject to a Federal consistency determination by NYSDOS.

72 NYSDOS Letter in Response to Entergy Correspondence NL-I2-I 07 (Att. 3 }, supra Note 2I, at I; NYS CMP at § 11-9, 8, II-I2, I8, 20, §IX, 20.

73 NYSDOS Letter in Response to Entergy Correspondence NL-I2-I07 (Att. 3}, supra Note 2I, at 2.

74 Entergy's Motion for Declaratory Order at I, 21-24.

15

A. A Determination of Substantially Different Coastal Effects Under 15 C.F.R. § 930.51(e) is Not Necessary Since NYSDOS Has Not Conducted Any Prior Federal Consistency Reviews of Indian Point As an initial matter, the question of whether the license renewal of Indian Point will result in "substantially different" coastal impacts is only relevant if the Federal license renewal activity at issue was "previously reviewed by the State agency." 75 If a previous review of a Federal license renewal activity "by the State agency" has occurred, federal regulations explain that the renewal is still subject to Federal consistency requirements if it "will cause an effect on any coastal use or resource substantially different than those originally reviewed by the State agency."76 Entergy's Motion for Declaratory Order expressly recognizes that a determination regarding whether there are "substantially different" coastal effects hinges upon the notion that the renewal has been "previously reviewed by the State agency" per 15 C.F.R. § 930.51(b)(3). 77 However, as the discussion above plainly establishes, "the State agency" referenced in 15 C.F.R. § 930.51(b)(3), NYSDOS, has never "previously reviewed" the operation of Indian Point for the purposes of Federal coastal consistency. 78 Instead, the proposed license renewal of Indian Point is subject to Federal coastal consistency requirement because it falls squarely under 15 C.F.R. § 930.51(b)(1) as a "[r]enewal[] of [a] federal license... not previously reviewed by the State agency. " 79 As a result, there is absolutely no need for a determination by "the Federal agency" pursuant to 15 C.F.R. § 930.51(e) regarding "substantially different coastal effects."80 Accordingly, the ASLB should dismiss Entergy's Motion for Declaratory Order since it requests a determination by the NRC that is not necessary or appropriate.

75 15 C.F.R. § 930.5l(b)(3).

76 !d.

77 See Entergy's Motion for Declaratory Order at I, 4.

78 See supra pp. 10-15.

79 15 C.F.R. § 930.5l(b)(l) (emphasis added).

80 See 15 C.F.R. § 930.5l(b)(3), (e).

16

B. In Any Event, the Current Operation of Indian Point Causes, and the Proposed Future Operation oflndian Point Will Cause, Substantially Different Coastal Effects, for which a Federal Consistency Review and Determination is Unequivocally Required and Necessary Without waiving any rights to assert the position that NRC is not required to make any determination in this matter, Riverkeeper submits that, in any event, the current operation of Indian Point causes, and the proposed future operation oflndian Point will undoubtedly cause substantially different coastal effects that necessitate a Federal consistency review. That is, even if a "determination of substantially different coastal effects" under 15 C.F.R. § 930.51 (e) was needed, which it is not, Entergy's Motion for Declaratory Order still must be denied, since various new coastal effects are more than enough to warrant Federal consistency review.

To begin with, 15 C.P.R.§ 930.51(e) states that "[t]he determination of substantially different coastal effects under paragraphs (b)(3), and (c) of this section is made on a case-by-case basis by the Federal agency after consulting with the State agency, and applicant." 81 This regulation clearly indicates that a Federal agency such as NRC cannot unilaterally make a finding regarding whether there are "substantially different coastal effects." In relation to Indian Point, there is no evidence that NRC has conducted this necessary consultation. Thus, it is clearly not possible for the ASLB to rule upon Entergy's request for an order declaring that the proposed license renewal of Indian Point "will not cause coastal effects that are 'substantially different"' 82 when there has been no indication that NRC has conferred at all with NYSDOS on the matter.

Notwithstanding NRC's failure to properly confer with NYSDOS, the language of 15 C.F.R. § 930.51 (e), in conjunction with the position that has been expressed by NYSDOS in a separate forum, necessitate a finding that "substantially different coastal effects" exist which 81 15 C.F.R. § 930.51(e) (emphasis added).

82 Entergy's Motion for Declaratory Order at 25.

17

require a Federal consistency review. In particular, 15 C.F.R. § 930.51(e) states that in making a determination regarding substantially different coastal effects, "[t]he Federal agency shall give considerable weight to the opinion of the State agency" and that the term "substantially different" "shall be construed broadly to ensure that the State agency has the opportunity to review activities and coastal effects not previously reviewed. 83 In response to a request for a declaratory ruling filed with NYSDOS by Entergy on or about November 5, 2012, NYSDOS stated its position that "the activities at IP2 and IP3 and the regulatory landscape have substantially changed since the original licenses were issued 40 years ago so that federal consistency is warranted and required." 84 In its response, NYSDOS explained this position at length and outlined the various substantial and material changes to the operation of Indian Point and/or regulatory changes that have occurred in recent years. 85 In the event a determination by NRC about "substantially different coastal effects" is necessary, which it is not, NRC must afford "considerable weight" to these opinions, and broadly construe the differences identified to ensure that NYSDOS has the opportunity to review the proposed activity. 86 Accordingly, it is clear that NRC would have to make a finding of"substantially different coastal effects" if any such determination was necessary.

Indeed, numerous changed circumstances and conditions at Indian Point have resulted and will continue to result in substantially different coastal effects that necessitate a Federal consistency review, and which would support a positive finding under 15 C.F.R. § 930.51(e) to the extent a determination pursuant to said regulation would ever be required. Entergy's representation that "[t]he plants' operations have not changed" and that Entergy's seeks to 83 15 C.F.R. § 930.51(e) (emphasis added).

84 NYSDOS Jan. 9, 2013 Response to Request for Declaratory Ruling (Att. 4), supra Note 52 at 12 (emphasis added).

85 Id at 12-15.

86 15 C.F.R. § 930.51(e) (emphasis added).

18

continue operating Indian Point Units 2 and 3 "in the same manner as those units have operated for the last forty years" 87 is disingenuous at best. Such statements are belied by clear evidence to the contrary. Various changed circumstances and substantial differences relating to the current and/or future operation of Indian Point indisputably result in, or will result in, new and varying coastal impacts that have not been subject to a Federal consistency determination by NYSDOS.

These substantial differences include the following:

1. Increased Power Output Entergy's claim that plant operations at Indian Point have not changed over the last forty years is a patent misrepresentation. In point of fact, operating conditions at Indian Point Units 2 and 3 changed in 2004 and 2005 when Entergy implemented power increases of 3.26% and 4.85%, respectively. 88 Moreover, Entergy has touted that "power production since 2001, when Entergy completed acquisition of both units, has been higher each year than it ever had been previously."89 Entergy's increased power output increases the likelihood of plant components succumbing to the effects of various aging mechanisms,90 posing an increased risk of accidents 87 Entergy's Motion for Declaratory Order at 22.

88 See NRC Staff Safety Evaluation Report Related to the License Renewal oflndian Point Nuclear Generating Units 2 and 3, Docket Nos. 50-247, 50-286, NUREG-1930, Volume 2, at pp. 3-25 to 3-29, ADAMS Accession No. ML093170671.

89 NYSDEC, In the Matter ofEntergy Nuclear Indian Point 2, LLC, and Entergy Indian Point 3, LLC, and Entergy Nuclear Operations, Inc's Joint Application for a CWA § 401 Water Quality Certification, DEC App. Nos.: 3-5522-00011/00030 (IP2), 3-5522-00105/00031 (IP3), Combined Prefiled Rebuttal Testimony of Thomas C. Esselman, Ph.D., Matthew J. Barvenik, and F. Owen Hoffman, PhD, Radiological-Issue for Adjudication No.3 (October 4, 2011), at 14 (Att. 5).

90 See, e.g., Riverkeeper, Inc.'s Request for Hearing and Petition to Intervene in the License Renewal Proceedings for the Indian Point Nuclear Power Plant (November 30, 2007), ADAMS Accession No. ML073410093, at 15-23 (discussing how the power increases that occurred in 2004 and 2005 at Indian Point "affect velocities, temperatures, coolant chemistry and steam moisture" and thereby affects Entergy's ability to adequately detect and manage the aging phenomenon of flow accelerated corrosion).

19

that could indisputably result in radiological releases and associated impacts to the Hudson River, i.e., the coastal resources ofNew York State. 91

2. Cylindrical Wedgewire Screens and/or Other Cooling Water Intake Structure Technology Entergy's statement that it seeks to operate Indian Point in the same manner as it currently operates the plant is a disingenuous, self-serving, gross misrepresentation. In reality, Indian Point currently operates pursuant to a 25-year old, outdated, administratively extended SPDES permit, which is currently the subject of renewal proceeding before the NYSDEC. 92 It is undisputed that this proceeding will result in the modification ofEntergy's "current" permit to ensure Entergy implements the best technology available ("BTA") for minimizing the adverse environmental impacts caused by the operation of Indian Point's existing once-through cooling water intake structures. 93 In particular, because the existing cooling water system is highly destructive and causes devastating and significant impacts to NYS coastal resources, 94 NYSDEC has issued a draft SPDES permit that requires the implementation of BTA, i.e., a closed-cycle cooling water intake structure to reduce current aquatic impacts; however Entergy proposes instead to operate with the installation of cylindrical wedgewire screens ("CWWS").95 Moreover, NYSDEC properly 91 See, e.g., Gordon R. Thompson, Risk Related Impacts from Conti~ued Operation of the Indian Point Nuclear Power Plants (Nov. 28, 2007) (Att. 6) (discussing radiological harm from unplanned radiological releases to the environment as a result of accidents due to a variety of causes, including equipment failures).

92 See Letter from William R. Adriance (Chief Permit Administrator) to Dara F. Gray (Entergy), Re: Joint Application for CWA § 401 Water Quality Certification NRC License Renewal-Entergy Nuclear Indian Point Units 2 and 3 DEC Nos.: 3-5522-00011100030 (IP2) and 3-5522-00105/00031 (IP3) Notice of Denial (April2, 2010), available at, http://www.dec.ny.gov/docs/permits ej operations pdf/ipdenial4210.pdf, at 5-7, 13-16

("NYSDEC Notice of Denial").

93 See id (explaining how Entergy's "current" permit does not comply with existing BTA requirements).

94 Id at 8, 11 ("the withdrawal of approximately 2.5 billion gallons of Hudson River water per day" causes "the mortality of nearly one billion aquatic organisms per year from the operation of Units 2 and 3"); see generally Pisces Conservation Ltd, The Status of Fish Populations and the Ecology of the Hudson, April 2008 (Att. 7) (finding 10 of 13 "key" species of the Hudson River in decline) ("2008 Pisces Report (Att. 7)"); see id at 37-38 ("The impact of Indian Point is the largest of several impacts from once-through cooling on the Hudson.").

95 See NYSDEC Notice of Denial, supra Note 92 at 15, 17-18.

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denied Entergy's request for a necessary water quality certification ("WQC") pursuant to Clean Water Act ("CWA") § 401, based upon Indian Point's present and continuing violations of the New York water quality standards, including NYS' s BT A requirement. 96 It cannot be refuted that under any outcomes of the currently pending SPDES permit renewal proceeding, as well as an administrative appeal Entergy has initiated in relation to NYSDEC's denial ofCWA § 401 WQC, it is likely that, ifEntergy continues to operate Indian Point at all, the plant will be required to operate in a manner that differs considerably from its current operations. 97 This is foreseeable since, in order to keep operating, Entergy is unambiguously and unequivocally required to comply with the CW A and all State water quality standards and criteria, which it has yet to do. Any design and operational changes resulting from the outcome of ongoing NYSDEC proceedings will unquestionably result in substantial differences in the impact oflndian Point's operation on the Hudson River.

The construction and operation ofEntergy's CWWS proposal would undoubtedly impact the physical, chemical, and biological parameters of water quality and impact and/or displace benthic fauna and habitat and otherwise directly and indirectly impact various critical fish species in the Hudson River. As proposed, these screens would require an enormous set of underwater structures-144 screens each of 72 inches in diameter, made of a metal alloy with toxicity implications-that would rest on the floor of the Hudson, where, aquatic organisms are present for foraging, migrating, and avoiding unsuitable thermal temperatures occurring at higher elevations due to thermal discharges from Indian Point.98 Furthermore Entergy's CWWS 96 See generally NYSDEC Notice of Denial, supra Note 92; Furthermore, Indian Point's current violation NYS's BT A requirement is established as a matter of law. See In the Matter of Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC, Interim Decision of the Assistant Commissioner, 2008 N.Y. ENV LEXIS 52,

• 34.

97 See NYSDEC Notice of Denial, supra Note 92 at 5-7, 13-16.

98 See Enercon Services, Inc., Evaluation of Alternative Intake Technologies at Indian Point Units 2 and 3 (February 12, 2010, at 56, available at, http://www.dec.ny.gov/docs/permits ej operations pdf/alttechrep.pdf; Enercon WWS 21

proposal would, at best, only marginally reduce the devastating entrainment impacts of Indian Point's current cooling water system, and will result in ongoing various cumulative environmental impacts on the aquatic ecology of the Hudson River. 99 Yet, Entergy has failed to reveal the implications of its CWWS proposal for the purposes of determining Federal coastal consistency, 100 despite Entergy's affirmative efforts to seek approval of the proposal from NYSDEC, and despite the fact that the proposal would result in significant environmental impacts to NYS coastal resources as well as exacerbate the existing circumstances facing such resources. 101 The reality of the ongoing proceedings pending with the NYSDEC, no matter what the outcomes, represents circumstances that will result in substantially different coastal effects that are relevant to, and indeed necessarily require, a Federal consistency review.

3. Radiological Leaks and Groundwater Contamination Accidental radiological water leaks have been a persistent problem at Indian Point. 102 These leaks have occurred from spent fuel pools ("SFPs") as well as a variety of other Power Point Presentation (Entergy Exhibit 15) at 1 (indicating Entergy's chosen CWWS specifications as follows:

144 72" diameter screens made of Z-alloy, with 2 mm screen slot velocity and 0.25 fps through-screen velocity).

99 See, e.g., NYSDEC, In the Matter of a Renewal and Modification of a SPDES Permit, DEC # 3-5522-00011100004, SPDES # NY -00044 72 and In the Matter of the Application by Entergy Nuclear Indian Point 2, LLC, and Entergy Indian Point 3, LLC, for a Certificate Pursuant to §401 of the Federal Clean Water Act, DEC# 3-5522-00011/00030,3-5522-00011/00031, Direct Testimony of Dr. Peter A. Henderson Regarding Entergy's Proposed Cylindrical Wedgwire [sic] Screens, on Behalf oflnterveners, Riverkeeper Inc., Scenic Hudson, Inc. and Natural Resources Defense Council, Inc. (July 22, 2011) (Att. 8) (hereinafter "Henderson Testimony (Att. 8)").

100 In the context ofthe ongoing SPDES permit renewal proceeding, Entergy very recently, on March 29, 2013, published an alleged "Certification of Consistency with New York's Coastal Policies in Connection with Installation and Operations of Cylindrical Wedgewire Screens." While Riverkeeper has yet to fully analyze the representations made in this document, based on reviews ofEntergy's CWWS proposal conducted to date, it is apparent to Riverkeeper that Entergy's proposal would not necessarily be consistent with all relevant coastal policies contained in the NYS CMP. Riverkeeper maintains this position notwithstanding Entergy's most recent submission.

Moreover, this document appears to constitute Entergy's tacit acknowledgement of the relevance of its CWWS proposal for purposes of Federal consistency review, and, in any event, does not alter the fact that the outcome of the current Indian Point SPDES permit renewal proceeding is squarely relevant to a Federal coastal consistency determination, and will result in substantially different coastal effects.

101 See, e.g., Henderson Testimony (Att. 8), supra Note 99; see also 2008 Pisces Report (Att. 7), supra Note 94.

102 See generally NYSDEC, In the Matter of a Renewal and Modification of a SPDES Permit by Entergy, DEC # 3-5522-00011/00004, SPDES # NY-0004472, and In the Matter of the Application by Entergy for a Certificate 22

components. 103 Decades of inadvertent releases of radioactive water have resulted in at least two extensive groundwater plumes underlying the site, which indisputably leach through the bedrock and discharge into the Hudson River and thereby impact critical coastal resources ofNYS. 104 Because of the aging and degraded condition of susceptible plant components, coupled with Entergy's failure to implement measures to anticipate and avert future accidental radiological leaks, it is highly foreseeable that the operation of Indian Point for a 20-year license renewal term will result in additional accidental releases of radioactive water. 105 Accidental radiological releases at Indian Point implicate a variety of environmental impacts to waters ofNYS 106 and are, thus, undeniably relevant to a Federal coastal consistency review and determination. Though radiological leaks and releases have occurred at Indian Point for decades, Entergy only "discovered" the groundwater plumes contaminating the Hudson River relatively recently in 2005 107 - i.e., after all of the alleged "prior" consistency reviews Entergy points to. The potential impacts of radiological leaks have clearly never been subject to a Federal coastal consistency by NYSDOS, and must be in light of the clear relevance of these substantially different circumstances at Indian Point.

4. Long-Term Onsite Nuclear Waste Storage In June 2012, the U.S. Court of Appeals for the D.C. Circuit vacated the NRC's "Waste Confidence Decision," which proclaimed confidence in the Federal government's ability to come Pursuant to §401 of the Federal Clean Water Act, DEC# 3-5522-00011/00030, DEC# 3-5522-00011/00031, Post-Hearing Closing Brief oflntervenors Riverkeeper, Natural Resources Defense Council, and Scenic Hudson Regarding Issue for Adjudication No.3-Radiological Materials (April27, 2012) (Att. 9).

103 Id at 24-38.

104 Id at 2, 25, 31, 38-43, 56-60.

lOS fd at 43-56.

106 Jd at 60-65,66-96 (explaining how radiological leaks from Indian Point may have already had, and may in the future cause, impacts to the aquatic ecology of the Hudson River, including, inter alia, bioaccumulation of toxic radionuclides in aquatic organisms, impacts to the use of the Hudson River as a drinking water source, impacts to the nearby state and Federally designated critical coastal habitat, impacts to recreational uses of the Hudson River, and violations ofvarious State environmental standards).

107 See id at 25, 31 (explaining how an Entergy site hydrogeologic investigation initiated in 2005 in response to the discovery of SFP leaks at Indian Point uncovered the existence of large contamination plumes).

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up with a permanent national nuclear waste disposal solution, and thereby exempted from environmental analysis any impacts stemming from "temporary" onsite nuclear waste storage while nuclear plants await such a permanent disposal solution. 108 This landmark court decision recognized that no long-term nuclear waste disposal solution may ever materialize, which would result in spent nuclear fuel being stored at nuclear plants "on a permanent basis," and ruled that the NRC must adequately account for and assess such an eventuality. 109 Approximately 1,500 metric tons of high level nuclear waste is already stored onsite at Indian Point, and if the plant is relicensed and continues to operate for 20 years, Units 2 and 3 would produce approximately 1,000 additional tons of such waste. The long-term and/or permanent storage of thousands of tons of spent nuclear fuel at Indian Point is a previously unanticipated, i.e. substantially different, circumstance that will result in a variety of impacts that have never been assessed in the context of a Federal coastal consistency review. Given the fact that a CZMA consistency review of a license renewal activity requires consideration of whether the facility's future operation will be consistent with the state's coastal policies, the previously unforeseen and significant impacts posed by the long-term, perhaps permanent, storage of thousands of tons of nuclear waste on the banks of the Hudson are directly relevant.

For example, the prospect of permanent onsite nuclear waste storage at Indian Point poses numerous risks of SFP fires and radiological leaks, as well as risks to dry casks, which, at the plant, were licensed for the purpose of storing nuclear waste for just 20 years. 110 The permanent use of aging and already degraded nuclear waste storage structures at Indian Point is likely to result in environmental impacts, especially in light of increased risks of natural disasters 108 See New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012).

109 Id at 473,478-79.

110 See generally Comments by Alliance for Nuclear Accountability, et al. on Scope of Waste Confidence Environmental Impact Statement (January 2, 2013) (Att. 10).

24

(including risks posed by earthquakes, storm surges, hurricanes, sea level rise, etc), which could affect the structural integrity of such structures. 111 Such impacts may result in wide-ranging and serious coastal effects that are squarely relevant to a Federal consistency determination.

Thus, the current and future operation of Indian Point clearly implicates various substantially different coastal effects for which a Federal coastal consistency determination is necessary and appropriate, and which would support a positive determination under 15 C.F.R. § 930.51 (e), to the extent such a determination would ever be required.

CONCLUSION Based on the foregoing, the ASLB should deny Entergy' s Motion for Declaratory Order outright as not properly within the purview of the ASLB or NRC to decide upon, or otherwise deny the relief requested since NYSDOS has never reviewed the operation of Indian Point for Federal coastal consistency and since substantially different coastal effects posed by the ongoing and future operation of Indian Point unequivocally warrant a Federal consistency review.

Respectfully submitted, Signed (electronically) by Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road Ossining, NY 10562 (914) 478-4501, ext. 230 dbrancato@riverkeeper.org Dated: AprilS, 2013 Signed (electronicallv) bv Phillip Musegaas, Esq.

Riverkeeper, Inc.

20 Secor Road Ossining, NY 10562 (914) 478-4501, ext. 224 phillip@riverkeeper.org 111 See Lynn R. Sykes et al., Observations and Tectonic Setting of Historic and Instrumentally Located Earthquakes in the Greater New York City-Philadelphia Area, Bulletin ofthe Seismological Soc'y of Am., Vol. 98, No.4, pp.

1696-1719, Aug. 2008 (Att. 11) (concluding that Indian Point is not in an area oflow seismicity as was previously thought and that it is "quite possible" that the region surrounding the Indian Point plant could experience upwards of a 7.0 magnitude earthquake); Bill Dedman, What are the odds? US nuke plants ranked by quake risk (March 17, 2011 (Att. 12) (explaining NRC seismic hazard analysis finding that IP3 has the highest risk for core damage from an earthquake); NYS Sea Level Rise Task Force Report to the Legislature (Dec. 31, 2010) (Att. 13) (explaining drastic future sea level rise projections and associated increases in shoreline inundation, flooding, storm surges, and severe weather events.

25

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3)

)

)

)

)

)

)

Docket Nos.

50-247-LR and 50-286-LR AprilS, 2013

_________________________________ )

Certification Pursuant to 10 C.F.R. § 2.323(b)

In accordance with 10 C.P.R.§ 2.323(b) and the~ G.7 ofthe ASLB's July 1, 2010 Scheduling Order in the above-reference proceeding, I certify that I have made a sincere effort to make myselfavailab1e to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues have been unsuccessful.

Signed (electronically) by Deborah Brancato Deborah Brancato, Esq.

1