ML13123A353
| ML13123A353 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 05/03/2013 |
| From: | Harris B NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24466, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13123A353 (30) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/ 50-286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
NRC STAFFS REPLY TO STATE OF NEW YORKS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-16/16A/16B (NYS-16B)
Brian G. Harris Counsel for NRC Staff May 3, 2013
ii TABLE OF CONTENTS I. Introduction ................................................................................................................ II. Applicable Legal Standards ........................................................................................ A. New York Waived Any Challenge to the Staffs Witnesses and Entergys Witnesses Expertise ....................................................................................... B. New Yorks Request That the Board Consolidate NYS-12C and NYS-16B Deprives the Parties of a Fair and Equitable Hearing ...................................... C. New Yorks Argument that the Hearing and Boards Decision Do Not Supplement the Staffs FSEIS is Contrary to Long Standing Precedent .......... III. Findings of Fact ........................................................................................................ A. New Yorks Assertions that Regarding the Level of Conservatism Necessary for a SAMA Analysis Is Unsupported ........................................... B. New Yorks Proposed Findings Attempt to Transform NYS-16B From a Contention Regarding the SAMA Analysis Conclusions to a Challenge Regarding the Total Population Within 50-miles of Indian Point in 2035........ C. The Staff Responded to Each of the States Timely Filed Comments on the DSEIS .............................................................................. D. New York Presented No Credible Evidence that the Census Undercount or the Commuter Population Alters the Conclusions of the SAMA Analysis in a Material Way .............................................................................................................. E. New York Present No Evidence that Staff or Entergy Erred by Examining the Most likely Mitigation Measure To Be Altered by the Dr. Sheppards Allegedly Missing Population ........................................................................................ IV. Summary of Findings................................................................................................ V. Conclusions of Law ..................................................................................................
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
NRC STAFFS REPLY TO STATE OF NEW YORKS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-16/16A/16B (NYS-16B)
I. Introduction1 6.56 In accordance with the Atomic Safety and Licensing Boards (Board) scheduling orders, 2 proposed findings of fact and conclusions of law concerning Contention NYS-16B (SAMA Analysis Population Estimate) (NYS-16B) were timely filed by Entergy Nuclear Operations, Inc. (Entergy or Applicant), the State of New York (New York), and the Staff of the NRC (Staff). Pursuant to the Boards orders, the staff herewith files its reply to State of New Yorks Proposed Findings of Fact and Conclusions of Law For Contention NYS-16/16A/16B (NYS-16B) (New Yorks Proposed Findings on NYS-16B).
II. Applicable Legal Standards A. New York Waived Any Challenge to the Staffs Witnesses and Entergys Witnesses Expertise 6.57 New York argues for the first time in its proposed findings of fact and conclusions of law that the experts presented by the Staff and Entergy in opposition to NYS-16B are not qualified to testify on issues related to the population estimate used in Entergys SAMA analysis.
1 The paragraph numbering system in these reply findings generally follows the numbering utilized in the NRC Staffs Reply To New Yorks Proposed Findings Of Fact And Conclusions Of Law On Part 6: Contention NYS-16B (SAMA Analysis Population Estimate), dated March 22, 2013.
2 See (1) Scheduling Order (July 1, 2010), at 19; and (2) Order (Scheduling Post-Hearing Matters and Ruling on Motions to File Additional Exhibits) (Jan. 15, 2013) at 1.
State of New Yorks Proposed Findings of Fact and Conclusions of Law for Contention NYS-16/16A/16B (New Yorks Proposed Findings on NYS-16B) at 23-24, 28-30.
6.58 New York waived any challenge to the expertise of the Staffs witnesses or Entergys witnesses by waiting until after the hearing before attempting to raise the issue with the Board. Macsenti v. Becker, 237 F.3d 1223, 1231 (10th Cir. 2001); Marbled Murrelet v.
Babbit, 83 F.3d 1060, 1066 (9th Cir. 1996); see also Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 410 (Tex. 1998); Garcia v. Health and Human Services, No. 05-0720V, 2010 WL 2507793 (Fed.Cl. May 19, 201). In order to prevent trial or appeal by ambush, the complaining party must object to the reliability of scientific evidence before trial or when the evidence is offered. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 410 (Tex. 1998).
Courts have consistently held that objections to expert reliability are waived when no objections were made at trial but held until after the close of all evidence. Macsenti v. Becker, 237 F.3d 1223, 1231 (10th Cir. 2001).
6.59 The Atomic Safety and Licensing Appeal Board, similar to both federal and state courts throughout the country, has summarily rejected challenges to expert witness qualifications after the close of the hearing. If a meritorious challenge to the qualifications of a witness is permitted to be withheld until after the taking of evidence is concluded, then one of two undesirable results would follow: either (1) the party sponsoring the witness would be deprived of its opportunity to present a different expert; or (2) the hearing or trial would have to be reopened to afford the sponsoring party that opportunity. Neither result would be tolerable. In the absence of a justification for the delay in bringing the challenge, [the] challenge must be rejected as untimely. Vermont Yankee Nuclear Power Corp., (Vermont Yankee Nuclear Power Station), ALAB-179, 7 AEC 159, 179 (1974); see also Houston Lighting & Power Comp. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-629, 13 NRC 75, 81 n. 8 (1981)
(summarily rejecting a challenge to a witnesses qualifications after the close of the hearing).
6.60 Here, New York waited to raise any objection to the expertise of the Staffs witnesses and Entergys witnesses. When motions in limine were due to be filed, New York waited in silence. During the Boards questioning of the witnesses, New York could have objected to the testimony and the witnesses qualifications; they again remained silent. During the unusual opportunity to conduct cross-examination, New York could have chosen to examine the witnesses qualifications further and again object to their expertise. Again, New York remained silent, but here on cross-examination unlike its passive silence during its previous opportunities to object the witnesses qualifications, New York actively avoided the witnesses qualifications choosing instead to elicit testimony from Entergys and Staffs witnesses on precisely the issues that they now complain were outside their expertise. Even when New York concluded its cross-examination, it did not object to any of the witnesses qualifications. It is precisely these types of inequitable trial tactics that caused the courts and Atomic Safety and Licensing Appeal Board to craft the concept of waiver when a party remains silent as to any objections to witness qualification.
6.61 New York proffered no excuse for its delay in raising this issue. In light the ample opportunities that New York had to raise the issue of witness qualification, it is difficult to understand its objection at this late juncture. New Yorks actions deprived the Board and the parties from having any opportunity to examine these claims or cure any unarticulated concerns New Yorks counsel may have had with respect to each witness' expertise. Raising these objections now only causes the intolerable results identified by the Atomic Safety and Licensing Appeal Board: having to conduct additional hearings on this issue and take additional testimony to detriment of the limited resources of the Board and other parties to the proceeding.
6.62 Under these long-standing principles of evidence and waiver, New Yorks failure to challenge the expertise of the witnesses when their testimony was proffered by filing motions in limine, timely objections to the witnesses testimony during the hearing, and the lack of any questions regarding witnesses qualifications during its cross-examination waived any challenge
New York may have had. Macsenti v. Becker, 237 F.3d 1223, 1231 (10th Cir. 2001); Marbled Murrelet v. Babbit, 83 F.3d 1060, 1066 (9th Cir. 1996).
6.63 Unlike the Staffs expert witnesses and Entergys expert witnesses, Dr. Sheppard explicitly admitted to the Board that he was not testifying with respect to the SAMA analysis and in fact had no expertise in the area of SAMA analysis. (Transcript at 2406.)
JUDGE McDADE: Your degrees are in economics, your areas of study, land use, urban economics and environmental economics.
You've worked extensively in population modeling. Your purpose in testifying here as I understand it is primarily to develop an accurate population model. Is that correct?
DR. SHEPPARD: That's correct.
JUDGE McDADE: Okay. And am I correct that your hypothesis is not that you have any expertise with regard to the conducting of SAMA analysis, but rather if population is a critical input parameter in a SAMA analysis, then if the population is incorrect, that the SAMA analysis would necessarily be flawed.
DR. SHEPPARD: Yes, Your Honor.
(Id. (emphasis added).) Simply, Dr. Sheppard admits that he is not qualified to challenge either the Staffs or Entergys conclusions that even assuming that Dr. Sheppards population estimate is correct, it would have no impact on which SAMA were determined to be potentially cost-beneficial. (Id. at 2516-18.)
B. New Yorks Request That the Board Consolidate NYS-12C and NYS-16B Deprives the Parties of a Fair and Equitable Hearing 6.64 In its proposed findings, New York has attempted to interject new bases into scope of Contention NYS-12C (SAMA Analysis Decontamination and Cleanup Costs) (NYS-12C) and NYS-16B, by asking the Board to consolidate these contentions into a single issue.
New Yorks Proposed Findings on NYS-16B at 61-65. New York should have and could have raised this issue of consolidation of the two contentions during one of its many amendments to NYS-12C and NYS-16B. 3 Consolidating the contentions at this late date deprives the Board the 3
New York amended NYS-12C four separate times and amended NYS-16B three separate times. See New York State Notice of Intention to Participate and Petition to Intervene, at 163 (Nov. 30,
opportunity to have these issues fairly presented during the hearing by the parties.
Consolidation at this late date would deprive Entergy and the Staff of an equitable hearing because the Board would decide the contentions on issues that were not briefed by the parties.
New Yorks delay deprived Entergy and the Staff of any reasonable notice of their claims.
6.65 New Yorks belated attempt to consolidate NYS-16B with NYS-12C through its filing of proposed findings comes too late, and fails to follow Commission requirements for the supplementation or amendment of contentions. Accordingly, New Yorks attempt to inject these issues into the proceeding by way of its proposed findings must be rejected as impermissible.
As the Commission recently stated:
We have long required contention claims to be set forth "with particularity," stressing that it "should not be necessary to speculate about what a pleading is supposed to mean." Our proceedings would prove unmanageable--and unfair to the other parties--if an intervenor could freely change an admitted contention "at will as litigation progresses," "stretching the scope of admitted contentions beyond their reasonably inferred bounds."
"Petitioners must raise and reasonably specify at the outset their objections to a license application."
Our rules allow for amendment of contentions and the submission of new contentions when good cause is shown. But [the Intervenor] here does not suggest that new information was introduced that it could not have known about earlier, and it never has sought to amend its contention. It instead insists that Contention 3 as proffered was intended, all along, to include this challenge . . . . We are not persuaded . . . .
Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 55-56 (2012) (footnotes omitted). Accord, Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-05, 71 NRC 90, 100-05 (2010);
2007); State of New York Contentions Concerning NRC Staff's Draft Supplemental Environmental Impact Statement at 9 (Feb. 27, 2009); State of New York Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement (Feb. 27, 2009), available at ADAMS Accession No. ML090690303. See also State of New Yorks New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (Mar. 11, 2010), available at ADAMS Accession No. ML100780366; State of New York New Contention 12-C Concerning NRC Staffs December 2010 Final Environmental Impact Statement and the Underestimation of Decontamination and Clean Up Costs Associated with a Severe Reactor Accident in the New York Metropolitan Area at 3-15 (Feb. 3, 2011), available at ADAMS Accession No. ML110680212.
Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 380-81, 386 (2002). Indeed, this Board has previously acknowledged that intervenors must amend their contentions to raise new issues that are beyond the scope of a contention as admitted, citing the Commissions admonition against allowing distinctly new complaints to be added at will as litigation progresses, [and thereby]
stretching the scope of admitted contentions beyond their reasonably inferred bounds. 4 Thus, adding NYS-12C bases to NYS-16B at this late date raises issue outside the admitted scope of this proceeding.
6.66 New York asserts that these issues should be decided together because the Staff chose to provide consolidated testimony on NYS-12C and NYS-16B. The Staff consolidated the testimony because each contention attempted to raise a challenge to the SAMA analysis. As such, the Staff felt that instead of repeating a substantial portion of the testimony laying out fundamental information about SAMA analyses, the MACCS2 code, the different levels of PRA analysis, the types of inputs needed, the sensitivity analysis, and the uncertainty analysis it would be more efficient for the Board to read the background of SAMA analyses once. For example, New York has repeatedly asserted that it is not challenging the MACCS2 code. In order to understand how the inputs into the MACCS2 code that New York is challenging, it was important to describe the modules of the MACCS2 code, how, they interact, and the function of each module.
6.67 The Staff never treated or discussed NYS-12C and NYS-16B as consolidated contentions and clearly indicated the testimony that was specific to each contention. (See NRC Staff Testimony Of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones, And Donald G. Harrison 4
Order (Granting in Part and Denying in Part Applicants Motions in Limine) (Mar. 6, 2012), slip op. at 3-4, citing, inter alia, Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 (2010) (emphasis added by the Board). In its Order, the Board found that certain issues raised in the intervenors testimony were within the scope of the contentions as admitted, while one issue (leaks from sources other than the spent fuel pools) was not. See, e.g., id., slip op. at 28-31.
Concerning NYS Contentions NYS 12/16 (NRC Staffs Testimony on NYS-16B at 32 and 94.)
Entergy never treated or discussed NYS-12C and NYS-16B as consolidated contentions. Only in the proposed findings, did New York treat the two contentions as needing to be consolidated.
New Yorks Proposed Findings on NYS-16B at 61-65.
6.68 New Yorks late arguments for consolidating NYS-12C and NYS-16B appears to recognize that in light of the Commissions precedent, it has not met its burden of going forward.
The Commission stated:
Ultimately, we hold adjudicatory proceedings on issues that are material to licensing decisions. With respect to a SAMA analysis in particular, unless a contention, submitted with adequate factual, documentary, or expert support, raises a potentially significant deficiency in the SAMA analysisthat is, a deficiency that could credibly render the SAMA analysis altogether unreasonable under NEPA standardsa SAMA-related dispute will not be material to the licensing decision, and is not appropriate for litigation in an NRC proceeding. 5 6.69 The Commission warned that in a highly predictive analysis such as a SAMA analysis, there are bound to be significant uncertainties, and therefore an uncertainty analysis is performed. 6 The Commission, anticipating the wide ranging disputes over individual aspects of the SAMA analysis, has said:
It always will be possible to conceive of yet another input or methodology that could have been used in the SAMA computer modeling, and many different inputs and approaches may all be reasonable choices. The SAMA analysis is not a safety review performed under the Atomic Energy Act. The mitigation measures examined are supplemental to those we already require under our safety regulations for reasonable assurance of safe operation. 7 6.70 In other words, it is simply not enough to take issue with a particular aspect of the SAMA analysis, an intervenor challenging the SAMA analysis must show that it was 5
Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 57 (2012) (emphasis added).
6 Id. at 58.
7 Id. at 57.
unreasonable on the whole. 8 The Commission recently stressed that the proper question is not whether there are plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA. 9 A petitioner may not simply assert a deficiency. Rather to challenge an applicants SAMA analysis a petitioner must point with support to an asserted deficiency that renders the SAMA analysis unreasonable under NEPA. 10 Specifically, [a] contention proposing alternative inputs or methodologies must present some factual or expert basis for why the proposed changes in the analysis are warranted. 11 Even more, intervenors must show why the inputs or methodology used is unreasonable, and the proposed changes or methodology would be more appropriate. 12 6.71 In NYS-16B, Entergys performance of two additional sensitivity analyses resolved each issue New York had with the population and determined categorically that the population had no impact on the SAMA analysis conclusions. With the exception of New Yorks late assertions regarding the consolidation on NYS-12C and NYS-16B, Entergys second sensitivity analysis resolved each of New Yorks concerns, including accounting for the entire population that Dr. Sheppard asserted as missing and distributing the population using an allegedly flawed method. (New Yorks Statement of Position on NYS-16B at XXX.)
6.72 New Yorks proposed findings admit that Entergys second analysis resolved New Yorks complaint regarding Dr. Sheppards missing population and appropriately distributed that population geographically. (New Yorks Statement of Position on NYS-16B at XXX.) The issue of the combined effects of NYS-12C and NYS-16B, however, was not raised until after the 8
Id. at 57-58.
9 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit1), CLI-12-08, 75 NRC 393, 418 (2012) (reversing the admission of contention challenging the costs to clean-up a severe accident) (internal citations omitted).
10 Id.
11 Id.
12 Id.
close of the hearing. New York offered no evidence in its pre-filed testimony, initial statement of position, or rebuttal statement of position regarding this issue. Neither of New Yorks witnesses provided any qualified testimony suggesting that the two issues should be combined into a single contention. Thus, we find that New Yorks request to consolidate NYS-12C and NYS-16B was not timely raised and we decline to add new bases to either contention after the close of the hearing.
6.73 Thus, NYS-16B should be resolved in the Staffs favor.
C. New Yorks Argument that the Hearing and Boards Decision Do Not Supplement the Staffs FSEIS is Contrary to Long Standing Precedent 6.74 New York contends that a deficient FSEIS cannot be cured by submissions during the adjudicatory hearing and that the appropriate remedy for a deficient Environmental Impact Statement is for the Board to remand the matter to the NRC Staff to re-analyze site-specific environmental impacts and prepare a supplemental EIS. 13 Entergy on the other hand asserts that after the Board considers the entire record of this proceeding, the FSEIS will be deemed supplemented by the Boards decisions on NEPA contentions and by any subsequent Commission decision. 14 For the reasons stated below, we find that the FSEIS will be deemed supplemented by this adjudicatory decision and by any subsequent Commission decision in this proceeding.
6.75 New York contends that the Commissions deliberate elimination of an earlier regulation, 10 C.F.R. § 51.52(b)(3), 15 permitting licensing boards to modify the content of an EIS precludes post hoc supplementation by the Board . . . to cure deficiencies in the challenged 13 New York Proposed Findings on NYS-16B at 78-89.
14 Entergy Proposed Findings on NYS-16B at 42-48.
15 An initial decision . . . 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).
FSEIS. 16 However, as Entergy notes, the Commission and licensing boards have routinely followed the process of supplementing EIS conclusions in reactor licensing and other proceedings through adjudicatory decisions to remedy an otherwise deficient EIS, not only in recent decisions, but also in cases dating back decades. 17 6.76 Moreover, the Appeal Board in Limerick explicitly addressed this issue and found that 10 C.F.R. § 51.102 essentially replaced the provision in section 51.52 such that amendment of an environmental statement by the adjudicatory hearing record and subsequent licensing board decision is entirely proper under NRC regulations and court precedent. 18 Further, the Appeal Board noted, We need not decide which regulation controls, for section 51.102 serves the same purpose as its differently worded predecessor, section 51.52(b)(3). LEA's argument is therefore without merit.
Section 51.102(a) states that [a] Commission decision on any action for which a final environmental impact statement has been prepared shall be accompanied by or include a concise public record of decision. Generally, that record is to be prepared by the staff. 10 C.F.R. § 51.102(b). When an adjudicatory hearing is held on the action, however, the initial decision of the [Licensing Board]
. . . will constitute the record of decision. An initial or final decision 16 New York Proposed Findings on NYS-16B at 79.
17 Entergy Findings on NYS-16B at 43-45, citing Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 61 (2012) (citing La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 731 (2005)); Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 526 (2008); Dominion Nuclear N.
Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-07-27, 66 NRC 215, 230 (2007) (But our own examination of the entire administrative record leads us to conclude that the Staff's underlying review was sufficiently detailed to qualify as reasonable and a hard look under NEPA even if the Staff's description of that review in the FEIS was not. Our explanation below provides an additional detailed discussion as part of the record on the alternative site review. We direct the Staff to include a similar level of detail in future FEIS analyses of alternative sites.) (emphasis in original); Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 53 (2001) ([T]he Presiding Officers incorporation into LBP-99-30 of a staff affidavit on costs and benefits also does not require FEIS supplementation . . . in an adjudicatory hearing, to the extent that any environmental findings by the Presiding Officer (or the Commission) differ from those in the FEIS, the FEIS is deemed modified by the decision.); Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-819, 22 NRC 681, 705-07 (1985), affd in part and review otherwise declined, CLI-86-5, 23 NRC 125 (1986), remanded in part on other grounds sub nom. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3d Cir. 1989); Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 NRC 347 (1975); S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-09-7, 69 NRC 613, 733 (2009).
18 Limerick, ALAB-819, 22 NRC at 705-07.
constituting the record of decision will be distributed as provided in
§ 51.93. 10 C.F.R. § 51.102(c). Section 51.103 describes the contents of the record of decision, noting that it may incorporate by reference any material in the final environmental statement. On its face, 10 C.F.R. § 51.102 thus merges the FES with any relevant licensing board decision to form the complete environmental record of decisionjust as former section 51.52(b)(3) did. But even under the stricter construction of section 51.102 urged by LEA, nothing in it precludes modification of an FES by licensing board decision. 19 6.77 New York contends, however, that to the extent the Limerick decision suggests that a licensing board may supplement an EIS, it is inconsistent with 10 C.F.R. § 51.102(c) in that section 52.102 does not contain any provision for the incorporation of testimony or exhibits in an adjudicatory hearing. 20 We disagree. As the Commission has explicitly stated, [t]he adjudicatory record and Board decision (and any Commission appellate decisions) become, in effect, part of the FEIS. 21 Moreover, we agree with Entergy that 10 C.F.R. § 51.102 governs the resolution of environmental issues following an adjudicatory hearing and requires the Board to consider the adjudicatory record as a whole when evaluating the environmental impacts of the proposed action, to supplement the FSEIS as necessary, and to modify the NEPA analysis and conclusions, if necessary. 22 6.78 New York also contends that supplementation of the FSEIS through an adjudicatory hearing is inconsistent with federal regulations that emphasize the importance of the EIS itself, as well as the publics right to review and participate in the process. 23 New York further asserts that materials prepared after the FSEIS such as studies and memoranda are not 19 Id. at 706.
20 New York Proposed Findings on NYS-16B at 86-87.
21 Hydro Res., CLI-01-04, 53 NRC at 53 (citing La. Energy Servs. (Claiborne Enrichment Center),
CLI-98-3, 47 NRC 77, 89 (1998)).
22 Entergy Proposed Findings on NYS-16B at 44.
23 New York Proposed Findings on NYS-16B at 79.
a substitute for supplementation and recirculation for public comment. 24 However, as Entergy notes, the Commission has uniformly rejected this argument and has found that, the hearing process itself allows for additional and more rigorous public scrutiny of the [environmental statement] than does the usual circulation for comment. 25 Moreover, as Entergy notes, the cases New York relies on regarding subsequent studies and memoranda have been previously considered and distinguished by the NRC Appeal Boards. 26 6.79 Additionally, New York asserts that the NRC Staff is bound by 10 C.F.R. § 51.92 which requires that the Staff prepare a supplemental EIS when there are substantial changes to the proposed action or new and significant information. 27 We find New Yorks argument unconvincing given that the Commission has repeatedly authorized the supplementation of the FSEIS through the adjudicatory record despite the existence of section 51.92. 28 Moreover, we agree with Entergys assertion that New Yorks argument would essentially give no effect to section 51.102(c) governing the resolution of environmental issues following an adjudicatory hearing. 29 6.80 Finally, New York asserts that federal courts have consistently recognized that under NEPA, the remedy to cure a deficient EIS is to remand the proceeding to the administrative agency to re-initiate the EIS process. 30 However, as New York itself acknowledges, few federal agencies have internal administrative procedures like the NRCs for 24 New York Proposed Findings on NYS-16B at 82.
25 Entergy Proposed Findings on NYS-16B at 45, citing Hydro Res., CLI-01-04, 53 NRC at 53 (quoting Limerick, ALAB-819, 22 NRC at 707).
26 See Entergy Findings on NYS-16B at 46-47.
27 New York Proposed Findings on NYS-16B at 78-79.
28 Supra n.18. See also Entergy Proposed Findings on NYS-16B at 43-45.
29 Entergy Proposed Findings on NYS-16B at 46.
30 New York Proposed Findings on NYS-16B at 79.
adjudicating or appealing NEPA issues. 31 Nevertheless, multiple federal courts of appeals have consistently upheld the NRCs practice of supplementing environmental impact statements through the adjudicatory process. 32 Accordingly, for the reasons described above, we find that the FSEIS will be deemed supplemented by the Boards decision in this proceeding and by any subsequent Commission decision.
III. Findings of Fact A. New Yorks Assertions that Regarding the Level of Conservatism Necessary for a SAMA Analysis Is Unsupported 6.81 New York argues that the population estimate is not conservative enough to account for its failure to include commuters and those missed due to the census undercount.
New Yorks Proposed Findings on NYS-16B at 57. New Yorks assertions misapprehend the nature of a SAMA analysis. As discussed by each of the witnesses, a SAMA analysis is the systematic search for potentially cost-beneficial mitigation measures. (Transcript at 1916; NRC Staff Testimony of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones, and Donald G. Harrison 31 New York Proposed Findings on NYS-16B at 83-84. New York refers to the Interior Board of Land Appeals (within the Department of Interior) as an example of an administrative board requiring a formal supplement to an EIS. Id. In contrast, Entergy notes that agencies such as the Federal Energy Regulatory Commission (FERC) have allowed supplementation through public hearings. Entergy Proposed Findings on NYS-16B at 44-45, citing Pacific Alaska LNG Co., 9 FERC ¶ 61,334, 61,709 (the CEQ General Counsel suggests that the matter should also be considered in the FEIS because the Commission proceeding does not provide the broad public review and comment required by NEPA. We disagree. Our final decision will address this issue in detail, based on the record in the proceeding. All interested parties have had an opportunity to contribute to that record, and our decision will therefore be based on full information. This procedure fully comports with the letter and spirit of NEPA.) (citing Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289, 320-21 (1975); Citizens For Safe Power, Inc. v.
NRC, 582 F.2d 87 (1st Cir. 1978)).
32 Entergy Proposed Findings on NYS-16B at 44, citing Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 1294 n. 5 (D.C. Cir. 1975) (holding that the deemed modified principled did not depart from either the letter or the spirit of NEPA); Ecology Action v. AEC, 492 F.2d 998, 1001-02 (2nd Cir. 1974)
(omissions from an FEIS can be cured by subsequent consideration of the issue in an agency hearing);
New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 94 (1st Cir. 1978) (having no trouble finding that the NRCs supplementation process satisfies NEPA). See also Pub. Serv. Co. of N.H.
(Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1 (1978). Although the Appeal Board in Limerick noted that federal courts of appeals approved the procedure set forth in former section 51.52(b)(3), providing for the amendment of an environmental statement through the adjudicatory process, the Appeal Board clarified that [t]here is no reason to believe that the courts would not be just as approving of the same procedure today, either as embodied in section 51.102 or, indeed, in the absence of any regulation, as a matter of board practice. Limerick, ALAB-819, 22 NRC at 705-07.
Concerning NYS Contentions NYS 12/16 (Staffs Testimony on NYS-16B), Ex. NRC000041, at 19.) As such, the population estimate needs to be of sufficient accuracy so as to not impact the overall conclusions of the SAMA analysis. (See Transcript at 2516-18; Staff Testimony on NYS-16B at 100-106; Testimony Of Entergy Witnesses Lori Potts, Kevin Okula, Grant Teagarden, And Jerry Riggs On Consolidated Contention NYS-16B (Severe Accident Mitigation Alternatives Analysis) (Entergys Testimony on NYS-16B) at 18.) Here, the testimony is uncontroverted that even when Dr. Sheppards allegedly missing population from census undercount and commuters is included in the SAMA analysis no new mitigation measures are identified as potentially cost-beneficial. (Transcript at 2516-18; Entergys Testimony on NYS-16B at 18.)
6.82 With respect to the conservatism in the analysis, New York argues that Entergys and the Staffs witnesses fail to understand the purpose of a SAMA analysis; comparing the population estimate to the census information from 2010 was not a valid comparison; and the population should have used the highest totals from each year. New Yorks Proposed Findings on NYS-16B at 58-59.
6.83 It is not the Staff or Entergy, however, that failed to understand the purpose of a SAMA analysis. New York describes the purpose of Indian Points SAMA analysis as the vehicle by which the Staff considers the environmental impacts of a severe accident and alternative mitigation measures. New Yorks Proposed Findings on NYS-16B at 12. New York is incorrect. The NRCs Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), NUREG-1437 (May 1996), 33 for license renewal generically evaluates severe accident impacts and provides the technical basis for the NRCs conclusion in 10 C.F.R. Part 51 that the probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe 33 Ex. NYS000131A-I.
accidents are small for all plants. (GEIS, Exhibit (Ex.). NYS000131A, at xliv; GEIS, Ex.
NYS000131C, at 5-115 116.) The GEIS thus addresses the impacts of severe accidents generically in bounding fashion. 34 New Yorks argument is a direct challenge to the Commissions regulations in Table B-1 and is therefore not within the scope of this licensing proceeding. 10 C.F.R. § 2.309(f)(1)(iii).
6.84 The Commission has limited contentions raising environmental issues in license renewal proceedings to those issues that are affected by license renewal and have not been addressed by rulemaking or on a generic basis. Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, units 3 and 4), CLI-01-17, 54 NRC 3, 11, 16 (2001). While severe accident mitigation alternatives is a Category 2 issue, 35 the impact finding of small for societal and economic impacts from severe accidents is a generic determination for all plants. See Table B-1. This generic finding, codified in NRCs regulations, is not subject to challenge absent a waiver. See 10 C.F.R. § 2.335(a). New York has not petitioned the Commission for a waiver.
6.85 Thus, the single narrow issue remaining for resolution by the Board in this contention is the population estimate used by Entergy in the SAMA analysis. New York and its witness argues that comparing the population that Entergys population estimate would project for 2010 U.S. Census with the U.S. Census Bureau actual population count is meaningless.
New Yorks Proposed Findings on NYS-16B at 58. It argues that a population estimate is too complicated to reliably look at some intermediate point in time and make any conclusions regarding the veracity or accuracy of a population estimate and assumptions. (Id.; Transcript at 34 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc., (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 709 (2012) (SAMA analysis must also be understood against the backdrop of our Generic Environmental Impact Statement (GEIS), which contains a bounding, generic severe accident impacts analysis, applicable to all plants.).
35 See Table B-1 (citing 10 C.F.R. § 51.53(c)(3)(ii)(L)) and noting that alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives). See also Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc., (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (2010).
2452.) This position seemingly ignores good scientific principles and would argue, if taken to its conclusion, that the 2010 census data would be an inappropriate starting point for making a population estimate had it been available at the time Entergy performed its SAMA analysis. All the experts agreed, however, that the most current census data available was the appropriate and correct starting point. (Transcript at 2407-08.) Thus, if the 2010 Census data had been available for Entergys SAMA analysis, it would have been the appropriate starting point. It remains the best information available to check the population projections at some intermediate point. (Staffs Testimony on NYS-16B, Ex. NRC000041, at 97; Transcript at 2454.)
6.86 Finally, Dr. Sheppard, who has no expertise with SAMA analysis, suggests that Entergy should have used the highest population observed in each county throughout the estimate. Dr. Sheppards argument that the highest population was required to be used ignores both the guidance, NEI 05-01, Rev. A (Ex. NYS000287 at 13), that he asserts and the purpose of NEPA to provide a best-estimate of the potential mitigation and not a worst- or best-case scenario. The guidance states:
Typically, with increasing population, the predicted population is estimated for a**ye.ar within the second half of the period of extended operation. Extrapolation to a later date, and therefore a larger population, adds conservatism to the analysis. Of course, if a population reduction is projected, extrapolation to an earlier date would be more reasonable. 36 It is clear that there is no requirement to utilize the highest population in the SAMA analysis or stitch together the highest projected population for each grid element.
6.87 As such, the conservatism already inherently present in Entergys SAMA analysis is sufficient because it uses the estimated population for 2035 for each subsequent additional year of operation including for example 2014, where it is not controverted that 2035 population is significantly larger than the population estimated for an earlier year. (Transcript at 2460.)
36 NEI 05-01, Rev. A, Ex. NYS000287 at 13
6.88 New York continues to misunderstand SAMA analysis. For example, New York asserts in its Findings of Fact for NYS-16B that cost of a severe accident is based only on the offsite economic costs risks (OECR) and population dose risk (PDR). NYS Proposed Findings on NYS-16B at 33. This assertion contradicts New Yorks other expert Dr. Lemay, the Staffs expert witnesses, and Entergy witnesses regarding the costs of a severe accident including: (1) the monetary value of occupational doses to decontamination workers; (2) onsite decontamination costs; (3) the cost to replace lost power; (4) offsite economic costs associated with evacuation and relocation of the population, decontamination of property, loss of use of property, and condemnation of property (OECR) and (5) a monetary value associated with doses to members of the public (PDR). (See, e.g., Staff Testimony on NYS-16B, Ex.
NRC000041 at 35.) As New York only accounts for costs from items 4 and 5 and fails to include the costs from items 1, 2, and 3, the level of conservatism in the SAMA analysis increases since the on-site costs (items 1, 2, and 3) are not affected by the population estimate. (See Transcript at 2510-11.)
6.89 New York presented no credible evidence regarding the level of conservatism necessary to produce a best-estimate SAMA analysis. New York has presented no credible evidence that the population estimate used in Entergys SAMA analysis reduced the level conservatism in a measurable and material manner. Thus, the Board should reject New Yorks assertions and arguments as unsupported speculation and find for the Staff with respect to NYS-16B.
B. New Yorks Proposed Findings Attempt to Transform NYS-16B From a Contention Regarding the SAMA Analysis Conclusions to a Challenge Regarding the Total Population Within 50-miles of Indian Point in 2035 6.90 New York asserts for the first time that 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. New Yorks Proposed Findings on NYS-16B at 1. In other words, New York alleges
that the FSEIS is inadequate because the population disclosed is too low., in addition to its other allegations. New Yorks Proposed Findings on NYS-16B at 1. It is clear from the Boards original ruling on the contention that the issue of the population projection is not a separate and independent issue from the SAMA analysis. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 112 (2008). The Board, in ruling on Entergys and the Staffs motions in limine, reemphasized that population projections challenged by New York are only relevant in the context of the SAMA analysis. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), Order (Granting in Part and Denying in Part Applicants Motions in Limine), slip op. at 10 (March 6, 2012) (New York is is merely calling into question the adequacy of certain data appearing in the context of this SAMA reanalysis.) (emphasis added).
6.91 First, New York ignores the considerable discussion in the FSEIS regarding 50-mile area surrounding Indian Point including population. (Final Supplemental Environmental Impact Statement (FSEIS), Ex. NYS000133A, at 2 2-2, 2-124 131.) New York has not challenged the FSEIS description of the population surrounding the Indian Point site. The only place where New York raised the issue of the population estimate was in relationship to the conclusions drawn by the Staff with respect to which mitigation measures are potentially cost-beneficial. (See New Yorks Statement of Position on NYS-16B at XXX.)
6.92 Thus, New York cannot raise a new challenge at this late date to the population described in the FSEIS in its proposed findings. The time for raising that challenge has passed and New York has not sought to amend its contentions or raise a new contention. Thus, for the the same reasons that New York should not be allowed to consolidate NYS-12C and NYS-16B, New Yorks new challenge regarding the population estimate must be rejected as impermissible.
C. The Staff Responded to Each of the States Timely Filed Comments on the DSEIS 6.93 New York argues that the Staffs FSEIS is inadequate because the Staff did not respond to its comments. NYS Proposed Findings on NYS-16B at 70-72. New York proposed
findings admit that the comments New York believes that the Staff should have responded to were filed well after the period for comments had closed. Id. at 71. New York presents a litany of filings with this Board and asserts that they were or should have been treated as comments on the DSEIS. See Id. at 40. The majority of these alleged comments, however, were simply New York asking the Board to apply its previously admitted contention to the Staffs DSEIS, Entergys Updated Analysis, and the Staffs FSEIS. See, e.g., New York State Contentions Concerning Staffs Draft Supplemental Environmental Impact Statement at 10 n.4 (Feb. 27, 2009) (ML090690303); State of New Yorks Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (Mar. 11, 2010) (ML100780366). It is clear from New Yorks actions in this proceeding that it was aware of the proper method for submitting comments to the NRC on the DSEIS and the correct period for filing comments. See NYS Proposed Findings on NYS-16B at 70-72 6.94 For the comments filed after the time for commenting had run, the Staff was under no obligation to respond to them. New York appears to argue that the comment period should have been reopened after the staff identified an error with Entergys SAMA analysis.
NYS Proposed Findings on NYS-16B at 71. New York, however, never requested that Staff re-open or extend the comment period for these issues. The error identified by the Staff was directed to the meteorological data used by Entergy and completely unrelated to the population estimate. Id. at 41. New York argues that under 10 C.F.R. § 51.92, the Staff violated NEPA because it did not recirculate the DSEIS for public comment. Id. at 71-72. Like so many of its other complaints regarding NYS-16B, New York remained silent as to its dispute until the close of the hearing and only proposed these new arguments and theories in its proposed findings of fact. Thus, New York waived this argument. As New York correctly concluded, the changes made to the SAMA analysis as the result of the Staffs identification of an error had no impact on the population estimate, the method utilized for the population estimate, or the types of persons
included in the population. Id. at 71-72. In other words, the issue that New York now asks for additional time to comment upon was not altered by the re-analysis. Id. New York has chosen to forgo pursuing its claims regarding the meteorological modeling, which was the subject of the 2009 SAMA re-analysis. See State of New York, Entergy Nuclear Operations, Inc., and NRC Staff Joint Stipulation (Jan. 23, 2012) at 2.
6.95 New York can hardly complain now that it was denied an opportunity it did not request for an issue it chose not to pursue. As such, its complaints regarding the Staffs responses to comments submitted well after the comment period had expired are unsupportable and the Board should rule in the Staffs favor.
6.96 New York also argues that the Staffs responses to its timely submitted comments were inadequate. New Yorks Proposed Findings on NYS-16B at 70-72. This complaint appears to be more form over function as New York complains that Staff addressed its comments in Appendix F of the FSEIS. See id. at 71.Complaints as to where the Staff decided to discuss certain issues raised in New Yorks few timely submitted comments cannot give rise to a NEPA violation. Despite New Yorks desire to rearrange the Staffs analysis, the information describing the Staffs independent verification of the population estimate was describe in sufficient detail in the FSEIS. (FSEIS, Ex. NYS000133I, at Appendix G, G G25. New York admits that the Staff performed an independent analysis of the population estimates as reflected in Appendix G. New Yorks Statement of Position on NYS-16B at 41.
Although, New York states that Sandia should have accounted for the census undercount in its independent analysis. Id. Dr. Sheppard even approved of the methods that the Staff used in its independent population estimate. (Transcript at 2437.) Dr. Sheppard speaking to Sandias independent population estimates said:
I would have estimated the growth rates between the years and extrapolated the growth rates.
Indeed, in Sandia's review of the population estimates, they speak of undertaking exactly that type of analysis, projecting the growth
rates from the individual state level population estimates out to 2035. And that results in a somewhat higher total population increase within the 50 mile area than the one used by the Applicant. I think that would be a better way of having approached it.
(Id.)
6.97 Thus, New Yorks complaint regarding the Staffs NEPA analysis is unsupported by the law or even New Yorks own expert. Further, New York cannot flyspeck the Staffs analysis merely because they would have preferred to have seen that analysis in a different section of the FSEIS. As such, the Board should rule in favor of the Staff.
D. New York Presented No Credible Evidence that the Census Undercount or the Commuter Population Alters the Conclusions of the SAMA Analysis in a Material Way 6.98 New York argues that the Staffs analysis of SAMAs in its FSEIS is inadequate because the population estimate did not account for the U.S. Census undercount and commuters. New Yorks Proposed Findings on NYS-16B at 48, 57. New York never provides any credible evidence that its concerns regarding the census undercount or commuters would alter the Staffs conclusions. Its bare assertions to the contrary are highly speculative and lack any evidentiary support or the testimony of a qualified witness.
6.99 New Yorks arguments regarding the census undercount amount to assertions regarding whether the undercount exists and its applicability and whether certain portions of the population can be overcounted. See id. at 43-44; (Transcript at 2412, 2423.) First, this misapprehends the issue presently before the Board. Unlike New Yorks assertion regarding the need for the population estimate to correct for the census undercount, the actual issue before the Board is whether the SAMA analysis was reasonable and would any of New Yorks assertions fundamentally alter the SAMA analyses conclusions. Here, Dr. Sheppard and New York remain silent as to the undercounts affect on SAMA analysis because both the Staffs witnesses and Entergys witness have provided uncontroverted evidence that census undercount has no impact on the SAMA analysis. (Transcript at 2516-2518.)
6.100 Second, while New York and its witness accepts the U.S. Census Bureau undercount analysis, they uncritically reject the U.S. Census Bureau analysis of the 2000 Census conclusions that certain portions of the population were overcounted and resulted in a net overcount overall. New Yorks Proposed Findings on NYS-16B at 45. New Yorks witness engaged in unsupported speculation as why over count should not exist. (Transcript at 2423.)
Dr. Sheppard rejected the U.S. Census Bureaus conclusions because he did not believe that there was any motive or reason for people to be counted more than once. (Id.) Dr. Sheppard pointed to no research, basis, assumptions, or methodology to support this belief. (Id.) Dr.
Sheppards preferential selection of only specific data supporting his theory is inherently unreasonable. Unlike selecting information from unrelated studies as being more or less reliable, Dr. Sheppard is excising the difficult data that is contrary to his conclusions from the same study that he draws on to support his conclusions. (See id.)
6.101 New Yorks assertions regarding commuters are similarly feeble in the face of uncontroverted evidence from the Staff and Entergy that New Yorks allegedly missing commuters do not impact the SAMA analysis conclusions. (Id. at 2516-2518.) Despite this overwhelming lack of materiality, New York argues that Entergys population estimate results in a fatal failure of the SAMA analysis based on a tortured reading of NEI 05-01, Rev. A; and the Staffs witnesses and Entergys witnesses acknowledgement that commuters exist but were not analyzed in the baseline cases; and that it might be possible to include commuters in the MACCS2 analysis with some not insignificant tinkering and additional data.
6.102 First, New Yorks interpretation of NEI 05-01, Rev. A, is tortured to parse out the inconvenient portions of the guidance. New York argues that the guidance instructs applicants to include all people within 50-miles of the plant that meet the definition of transient. New Yorks Proposed Findings on NYS-16B at 48-49. Had the guidance wanted to use a general applicable definition of transient it could have. Instead, the guidance identifies this population as the
[t]ransient population included in the site emergency plan . (NYS000287 at 13.) This is a
limited scope of people within approximately 10 miles of the site. Thus, Entergys inclusion of certain transients for the entire modeled area is conservative with respect the approved guidance. (Transcript at 2511.) This conservatism is not controverted by any evidence or qualified expert testimony.
6.103 New Yorks second argument elevates form over function. New York for unexplained reasons excludes from its arguments the sensitivity analyses which included all of Dr. Sheppards alleged commuters and showed no impact to the SAMA analysis conclusions. It would appear the New York would reject information as being inadequate merely because it is contained in a sensitivity analysis rather than the main analysis. The information that New York complains is missing has been provided and shows that the Staffs review of Entergys submittal took an appropriately hard look. Any additional tinkering that New York now urges on the Board is a mere editing session of no consequence.
6.104 New Yorks final argument is that it would be possible to include commuters in the SAMA analysis by running MACCS2 separately for commuters to account for all the differences between commuters and permanent residents of the modeled area. New Yorks Proposed Findings on NYS-16B at 54-55. Entergy has essentially done this through its sensitivity analysis, which treats the commuters as permanent residents incurring additional costs not properly attributable to them. (Transcript at 2516-18.) Thus, New Yorks concerns regarding the population estimate used in the SAMA analysis have been resolved; those concerns did not materially alter the SAMA analysis or its conclusions, and the Staffs review of the analysis took an appropriate hard look at the mitigation measures.
6.105 Alternatively, the Staffs experts and Entergys experts specifically looked at the impact on the SAMA analysis from including the additional population Dr. Sheppard asserts is missing and determined that no additional SAMAs are potentially cost-beneficial. Thus, the Board should resolve this contention in favor of the Staff.
E. New York Present No Evidence that Staff or Entergy Erred by Examining the Most likely Mitigation Measure To Be Altered by the Dr. Sheppards Allegedly Missing Population 6.106 New York also argues that Entergy and the Staff should have re-analyzed every single mitigation measure based for the effect of Dr. Sheppards population. New Yorks Proposed Findings on NYS-16B at 63-64. However, Entergy witnesses, who are SAMA experts, identified the SAMA measure most likely to be affected by Dr. Sheppards population changes, performed the reanalysis, and definitively concluded that it would not impact the SAMA analysis. Now, New York engages in pure speculation without any evidence that if Entergy would perform just one more analysis a different result would occur. New York has not presented any credible evidence that additional analysis would produce a different result.
6.107 New York asserts that the variance in the population from day to day renders Entergys sensitivity analysis unreliable. Id. at 64-65. New York even purports to claim that the Staffs expert witness, Mr. Jones, admitted that there often can be percentage variances in population. Id.at 65. New York statements are incorrect with respect to Mr. Jones testimony.
Mr. Jones was discussing the variance in population from day-to-day and was not discussing the necessary conditions for determining when a sensitivity analysis produced reliable results.
(Transcript at 2418.) Mr. Jones said:
What is wrong with the analysis is that we are trying to add what I would describe as an artificial confidence to the precision of this data. We are down to a three percent undercount that results in 1.1 percent composite undercount. And there are fluctuations in the population on a daily basis such that when we start talking about values as low as one percent and I think today we'll talk about fractions of one that was sent in of considerable amount that we're just adding an artificial level of confidence to the data that we're looking at.
(Id.)
6.108 New Yorks arguments regarding the reliability of the sensitivity analysis are unsupported.
6.109 Thus, the Board should decide this contention in the Staffs favor.
IV. Summary of Findings 6.110 In its testimony filed in this proceeding, the Staff concluded that Entergy made a reasonable and conservative population estimate for use in its SAMA analysis. The Staff independently verified Entergys population estimate using two alternative methodologies that confirmed that the population estimates used in the SAMA analysis were reasonable. Entergys two sensitivity analyses showed that even assuming Dr. Sheppards claims regarding the population estimate were applicable, they do not alter the SAMA analysis or the conclusions of the SAMA analysis.
6.111 We find that New York challenges to the expertise of Entergys witnesses and the Staffs witnesses to be inexcusably late. We find that the Staffs witness and Entergys witnesses are well-qualified to testify on the SAMA analysis, the appropriate level of conservatism for each of the necessary inputs, and the impact expected from changes to the SAMA analysis inputs. New Yorks challenge is without merit.
6.112 We find that New York request to consolidate NYS-12C and NYS-16B is equally without merit. Given the substantial history of these contentions and New Yorks multiple motions to amend each of these contentions, it was incumbent on New York to raise its request in a timely manner or justify its lateness. New York has done neither. We deny New Yorks request to consolidate NYS-12C and NYS-16B.
6.113 We find that New York has not meet its burden of going forward. In accordance with Commission precedent, Intervenors cannot simply rest challenges to a SAMA analysis by arguing that the Staff should use a different method or different inputs. Intervenors are charged with showing the method and inputs that the Staff chose are wholly unreasonable and would result in different conclusions. In this instance, New York has presented no evidence that utilizing Dr. Sheppards inputs would result in different conclusions and Dr. Sheppard specifically endorsed one of the Staffs independent verifications of the population surrounding Indian Point.
6.114 We agree, in general, with the Staffs conclusions. We find that Entergys population estimate and the Staffs review to be reasonable and to satisfy the hard look requirement under NEPA. We find that issues raised by New York in its contention are not material to the Staffs findings in its FSEIS. Accordingly, we conclude that the Staffs FSEIS adequately describes SAMA analyses and utilized reasonable population inputs.
V. Conclusions Of Law 6.115 The Licensing Board has considered all of the evidence presented by the parties on NYS-16B. Based upon a review of the entire record in this proceeding and the proposed findings of fact and conclusions of law submitted by the parties, and based upon the findings of fact set forth above, which are supported by reliable, probative and substantial evidence in the record, the Board has decided all matters in controversy concerning this contention and reaches the following conclusions.
6.116 We find that the Staffs FSEIS complies with the requirements of NEPA and 10 C.F.R. Part 51 regarding the discussion of SAMAs in license renewal proceedings. The FSEIS provided a reasonable estimate of the modeled population. The inclusion of additional persons to account for the census undercount and commuter populations would not alter the SAMA analysis, and the Staff fulfilled its obligations to conduct a hard look at the population estimates through its independent analysis of the population. Finally, we find that New Yorks comments on the DSEIS regarding the population estimate were submitted late and the Staff was under no obligation to address them in the FSEIS.
/Signed (electronically) by/
Brian G. Harris Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Dated at Rockville, Maryland this 3rd day of May 2013
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (revised), I hereby certify that NRC STAFFS REPLY TO STATE OF NEW YORKS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-16/16A/16B (NYS-16B) in the above-captioned proceeding have been served upon the Electronic Information Exchange, the NRCs E-Filing System, this 3rd day of May, 2013.
Signed (electronically) by Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Date of signature: May 3, 2013