ML13123A444

Entergy'S Reply to New York State Findings of Fact and Conclusions of Law for Contention NYS-17B (Property Values)

ML13123A444
Person / Time
Site:	Indian Point
Issue date:	05/03/2013
From:	Bessette P, Dennis W, Glew W, Rund J, Sutton K Morgan, Morgan, Lewis & Bockius, LLP, Entergy Nuclear Operations
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24471, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13123A444 (50)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) May 3, 2013 ENTERGYS REPLY TO NEW YORK STATE FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-17B (PROPERTY VALUES)

William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

ENTERGY SERVICES, INC. Jonathan M. Rund, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, NW Phone: (914) 272-3202 Washington, DC 20004 Fax: (914) 272-3205 Phone: (202) 739-3000 E-mail: wglew@entergy.com Fax: (202) 739-3001 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. REPLY TO NEW YORKS PROPOSED FINDINGS ..................................................... 6 A. New York Incorrectly Claims That the Boards Decision Cannot Supplement or Amend the FSEIS .......................................................................... 6 B. Issues Not Disputed By New York ...................................................................... 12 C. New Yorks Postulated Changes in Property Values Are Not Directly Related to Significant Physical Environmental Impacts ...................................... 14 D. The FSEIS Offsite Land-Use Evaluation Is Consistent with NRC Guidance .............................................................................................................. 20 E. The Record Demonstrates That Property Value Impacts Would Be SMALL Under the Proposed Action and MODERATE Under the No-Action Alternative ................................................................................................ 23

1. Dr. Sheppards Property Value Impact Evaluation Relied on Questionable Assumptions and Departed from Standard Economic Methods.................................................................................................... 24

a. Dr. Sheppards Analysis Is Premised on Flawed Assumptions................................................................................. 24

b. Dr. Sheppard Failed to Apply Well-Established Economic Methods........................................................................................ 26

2. Dr. Tolleys Property Value Impact Assessments Are Reasonable ......... 29

a. Dr. Tolleys Hedonic Analysis Using Dr. Sheppards Assessor Data Does Not Support New Yorks Theory That Indian Point Adversely Impact Property Values ......................... 30

b. Dr. Tolleys MLS Hedonic Analysis Does Not Suggest That Indian Point Adversely Impacts Property Values................ 32

c. Dr. Tolleys MLS Analysis Sample Size Was Appropriate ........ 34

d. Dr. Tolleys Use of Asking Price Rather Than Sales Price in the MLS Analysis Was Valid .................................................. 35

e. Dr. Tolleys Treatment of the Rail Station Variable in the MLS Analysis Was Reasonable ................................................... 36

f. Hedonic Analysis Requires No Control Group or Event Window ........................................................................................ 36

3. Even Assuming Dr. Sheppards $1.07 Billion Increase The No-Action Alternative Would Result in a Net Negative Property Value Impact Compared to License Renewal .................................................... 37

a. Discount Rate ............................................................................... 38

-i-

TABLE OF CONTENTS (continued)

Page

b. Property Value Increase Timeframe ............................................ 39

c. PILOT and Property Tax Payments ............................................. 40

d. Comparing the No-Action Alternative to License Renewal ........ 42 F. New Yorks Future Positive Offsite Land-Use Impacts Are Remote and Speculative ........................................................................................................... 42 III. CONCLUSION ................................................................................................................ 45

- ii -

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) May 3, 2013 ENTERGYS REPLY TO NEW YORK STATE FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-17B (PROPERTY VALUES)

Pursuant to the Atomic Safety and Licensing Boards (Board) February 28, 2013 Order,1 Entergy Nuclear Operations, Inc. (Entergy) submits its Reply to the New York State (New York) Findings of Fact and Conclusions of Law on New York Contention 17B (NYS-17B). These Reply Findings and Conclusions are based on the evidentiary record in this proceeding, and are set out in numbered paragraphs, with corresponding citations to the record of this proceeding.

I. INTRODUCTION

1. On March 22, 2013, Entergy, the U.S. Nuclear Regulatory Commission (NRC or Commission) Staff, and New York filed proposed findings of fact and conclusions of law on NYS-17B.2 NYS-17B raises a National Environmental Policy Act (NEPA) challenge to 1

Licensing Board Order (Granting Parties Joint Motion for Alteration of Filing Schedule) at 1 (Feb. 28, 2013)

(unpublished).

2 Entergys Proposed Findings of Fact and Conclusions of Law for Contention NYS-17B Property Values (Mar.

22, 2013) (Entergy Proposed Findings), available at ADAMS Accession No. ML13081A764; NRC Staffs Proposed Findings of Fact and Conclusions of Law Part 7: New York State Contentions NYS-17B, NYS-17A and NYS-17B (Real Estate Values) (Mar. 22, 2013), available at ADAMS Accession No. ML13081A681; State of New Yorks Proposed Findings of Fact and Conclusions of Law Regarding Contention NYS-17B (Mar. 22, 2013) (New York Proposed Findings), available at ADAMS Accession No. ML13081A753.

whether the NRC Staff Final Supplemental Environmental Impact Statement (FSEIS)3 adequately examines and discloses the potential for substantial, positive offsite land-use and property value impacts that New York claims would result under the no-action alternative.

2. In its Proposed Findings, and as described further in Section II below, New York makes broad assertions that lack evidentiary support, inaccurately describes the record, frequently fails to acknowledge contrary testimony or evidence, and advocates for analysis directly contrary to New Yorks own practice under the state-equivalent of NEPA. As a threshold matter, NEPA only requires analysis of impacts that directly result from an actual impact to the physical environment.4 New York, however, never makes the required connection between any physical impacts and the alleged property value changes. Instead, New York simply juxtaposes a list of purported physical impacts (e.g., noise, aesthetic, traffic, and radiological leaks to groundwater) with its property value impact claim.5 But New York never establishes the environmental significance of these physical impacts or that these physical impacts actually caused the historic property value impacts allegedly found by its expert, Dr. Stephen C. Sheppard. Therefore, as a matter of law, NEPA does not require any further consideration of property value impacts.

3. Assuming, however, that it were necessary to address property value impacts associated with license renewal, the Commissions Generic Environmental Impact Statement 3

NUREG-1437, Supp. 38, Generic Environmental Impact Statement of License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Units Nos. 2 and 3, Final Report (Dec. 2010) (FSEIS)

(NYS00133A-J).

4 Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772-74 (1983). This standard was recently affirmed by the D.C. Circuit in a case involving New York and the NRC. See New York v. NRC, 681 F.3d 471, 482 (D.C. Cir. 2012) (noting that the NRC was not required to consider property value impacts because the petitioner (New York) failed to show whether and how those property value impacts are related to a change in the physical environment).

5 See New York Proposed Findings at 40-42 (¶¶ 120-24).

(GEIS) already does so.6 New York incorrectly dismisses the GEIS analysis as irrelevant even though the GEIS analyzes Indian Point Energy Centers (Indian Point or IPEC) property value impacts.7 New York also incorrectly claims that the GEIS is consistent with its position that Indian Point has significant property value impacts,8 distorting the broadly-founded overall conclusion in the GEIS that Indian Point has had no such impact.9 Consistent with the GEIS conclusion, the NRC Staffs environmental standard review plan, NUREG-1555, Supplement 1, directs the Staff to focus on issues it could not generically resolve in the GEISnamely, population-driven and tax-driven land-use impacts.10 New York has not specifically and substantially supported its challenge to the FSEIS by explaining why or how the FSEIS evaluation is materially inconsistent with the Staffs well-established guidance, which is accorded special weight.11

4. Even if New York were not required to overcome the special weight accorded to NRC Staff guidance, based on this proceedings entire record, there is insufficient evidence to conclude that the no-action alternative would cause a substantial increase in property values. On this issue, New York misconstrues the widely-differing expert opinions about the validity and conclusions of competing methodologies for estimating property value impacts, and fallaciously claims that it is undisputed that Indian Points impact on housing is LARGE.12 Saying a fact is 6

See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants at 4-101 to 4-103 (May 1996) (GEIS) (NYS00131B); id. at C-84 to -85 (NYS00131G).

7 See New York Proposed Findings at 32 (¶ 99).

8 See id. at 35-37 (¶¶ 103-08).

9 GEIS at 4-103 (NYS00131B); id. at C-84 to -85 (NYS00131G) (summarizing the GEIS Indian Point-specific case study).

10 NUREG-1555, Supp. 1, Standard Review Plans for Environmental Reviews for Nuclear Power Plants:

Operating License Renewal at 4.4.3-4 (Oct. 1999) (NUREG-1555, Supp. 1) (ENT00019B).

11 See, e.g., NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, slip op. at 16 n.78 (Mar. 8, 2012).

12 New York Proposed Findings at 37 (¶ 109) (emphasis added).

undisputed does not make it so. New York only reaches this conclusion by dismissing testimony from Entergys expert, Dr. George S. Tolley, that made clear that Dr. Sheppards

$1.07 billion property value gain was based on a repeat-sale analysis with flawed assumptions and that contravened generally-accepted economic methods.13

5. New York also ignores that Dr. Tolley performed two Indian Point-specific property value assessments using the widely-accepted hedonic economic modeling approach one that used the Multiple Listing Service (MLS) data set he assembled, and a second that used the same Assessor data set that Dr. Sheppard assembled.14 Notably, New York does not mentionlet alone challengeDr. Tolleys hedonic analysis using Dr. Sheppards Assessor data, even though that analysis does not show that Indian Point operations adversely impact property values.15 New York also mischaracterizes Dr. Tolleys MLS hedonic analysis, which also provides no support for New Yorks theory that Indian Point operations adversely impact property values.16

6. Additionally, the record also shows that even if one assumed Dr. Sheppards billion-dollar property value impact was correctwhich it clearly is notthe no-action alternative would result in a net negative property value impact compared to license renewal because the near-term loss of Entergys payments-in-lieu-of-taxes (PILOT) outweighs Dr. Sheppards alleged property value impacts that would occur many decades later.17

7. Finally, even assuming the no-action alternative would lead to increases in surrounding property values, New York points to no evidence that such increases would drive 13 See Section II.E.1 infra.

14 See Section II.E.2 infra.

15 See Section II.E.2.a infra.

16 See Section II.E.2.b-f infra.

17 See Section II.E.3 infra.

any reasonably foreseeable offsite land-use impacts requiring consideration under NEPA.

Again, New York inaccurately claims that it is undisputed that property values determine land use.18 To the contrary, Entergy and NRC Staff testimony directly contradicts New Yorks claim that it is appropriate to automatically equate property value and land-use impacts.19 This testimony, along with the Indian Point-specific study included in the GEIS and more recent, uncontested information in local land-use plans, fundamentally undermines New Yorks claim that there are unexamined, non-speculative, and significant land-use impacts under the no-action alternative. For significant land-use changes to occur, numerous uncertain future steps by unknown third parties would have to take place many decades in the future, including zoning changes, shutting down other nearby industrial facilities, and then developing surrounding properties. Because such long-term, significant future land-use changes are both contrary to historic development patterns and current local land-use plans, such possible changes are remote and speculative and thus need not be considered under NEPA.20

8. For the reasons fully set forth below, and for those expressed in the NRC Staffs and Entergys Proposed Findings, the NRC Staff and Entergy carried their respective burdens of proof. Based on the entire evidentiary record of this proceeding, the NRC has satisfied its NEPA obligations under 10 C.F.R. Part 51 with respect to NYS-17B. Nothing in New Yorks Proposed Findings alters these fundamental conclusions. The Board should therefore resolve NYS-17B in favor of the NRC Staff and Entergy.

18 New York Proposed Findings at 24 (¶ 79) (emphasis added).

19 See Section II.F infra.

20 See Socy Hill Towers Assn v. Rendell, 210 F.3d 168, 182 (3d Cir. 2000); USEC Inc. (Am. Centrifuge Plant),

CLI-06-10, 63 NRC 451, 466-69 (2006).

II. REPLY TO NEW YORKS PROPOSED FINDINGS A. New York Incorrectly Claims That the Boards Decision Cannot Supplement or Amend the FSEIS

9. As a threshold legal issue, New York incorrectly claims that the Boards decision cannot supplement or amend the FSEIS based on the hearing record.21 According to New York, supplementing or amending the FSEIS through the Boards initial decision is contrary to NEPA and NRCs NEPA regulations.22 As discussed below, this argument ignores binding precedent and, if adopted, would likely establish an indefinite cycle of litigation over the FSEISs adequacy.

10. New Yorks assertion that the FSEIS cannot be supplemented or revised based on the hearing record ignores binding Commission precedent.23 This precedent clearly mandates that if the entire record of this proceeding (including the hearing record) contains sufficient information to allow for an adequate environmental analysis of the issues raised in a contention, then the FSEIS, as supplemented and/or modified by Boards decision, will constitute the NRCs NEPA record of decision.24 As such, there is no need or basis for the Board to remand any and all FSEIS deficiencies or modifications to the NRC Staff so that it may prepare an FSEIS supplement that is circulated for public comment and that is subject to challenge in new or amended contentions.25

11. New York argues that the Commissions deliberate elimination of an earlier regulation, 10 C.F.R. § 51.52 (1983), that permitted licensing boards to modify the content of 21 See New York Proposed Findings at 82-92 (¶¶ 222-240).

22 See id.

23 See Entergy Proposed Findings at 46-53 (¶¶ 83-97).

24 See id.

25 See, e.g., Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 53 (2001)

(explaining that the hearing process itself allows for additional and . . . more rigorous public scrutiny of the

[FSEIS] than does the usual circulation for comment).

an [FSEIS] precludes any suggestion that post hoc supplementation by the Board might be available to cure deficiencies in the challenged FSEIS.26 The Limerick Appeal Board rejected this argument in ALAB-819.27 In that case, an intervenor argued, like New York does here, that the Commissions decision to not readopt the deemed modified language in 10 C.F.R. § 51.52 (1983) when it promulgated a new regulation, 10 C.F.R. § 51.102, as part of a 1984 rulemaking, means that any NEPA deficiency can only be cured by recirculating the FSEIS for public comment.28 The Appeal Board held that section 51.102 serves the same purpose as its differently worded predecessor, section 51.52(b)(3) and, [o]n its face, 10 C.F.R. § 51.102 thus merges the [FSEIS] with any relevant licensing board decision to form the complete environmental record of decisionjust as former 51.52(b)(3) did.29 Further, the Appeal Board noted that nothing in current 10 C.F.R. § 51.102 precludes modification of an [FSEIS] by licensing board decision.30 26 New York Proposed Findings at 82 (¶ 222), 84 (¶ 225).

27 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). Appeal Board precedent is binding on the Board. See Entergy Nuclear Operations, Inc. (James L. FitzPatrick Nuclear Power Plant), CLI-08-19, 68 NRC 251, 260 n.23 (2008) (citing Sequoyah Fuels Corp. (Gore, OK, Site), CLI-94-11, 40 NRC 55, 59 n.2 (1994)).

28 See Limerick, ALAB-819, 22 NRC at 705-06.

29 Id. at 706. In addition to the lack of support for New Yorks argument in the case law, nothing in the regulatory history of 10 C.F.R. § 51.102 or its predecessor suggests that the NRC lacks the power to follow its longstanding practice of using adjudicatory decisions to modify the Staffs NEPA analyses. New York Proposed Findings at 84 (¶ 225).

30 Limerick, ALAB-819, 22 NRC at 706. Contrary to this holding, New York also argues that 10 C.F.R.

§ 51.103(c) does not explicitly authorize the Board to incorporate by reference material in the hearing record and thus precludes supplementation because the Boards decision will not include testimony or exhibits.

New York points to nothing in NEPA (or any general administrative law principle) requiring that an agency decision actually include all underlying documents. To the contrary, agencies are encouraged to summarize relevant materials in their NEPA documents rather than simply wholesale include voluminous materials. See 10 C.F.R. Part 51, App. A, § (b); 40 C.F.R. § 1502.21. Nor does anything in 10 C.F.R. § 51.103(c) (or in any other regulation) preclude the Boards decision from including, as appropriate, relevant material from the hearing record in its decision. In fact, the parties proposed findings all request that the Board do just that and integrate relevant evidence into an initial decision.

12. Although New York cites ALAB-819, it does so only to claim that it, and later Commission decisions, are inconsistent with 10 C.F.R. § 51.102(c) and NEPA.31 ALAB-819, however, sets forth a contrary interpretation of both 10 C.F.R. § 51.102(c) and NEPA that is binding on this Board.32 Moreover, even aside from ALAB-819, New York ignores the numerous more recent decisions that continue to endorse the holding that it is entirely proper for an adjudicatory decision to supplement or amend an FSEIS.33 Thus, the governing case law is clear that the Commissions NEPA regulations allow an adjudicatory decision to supplement or amend an FSEIS. And although New York attempts to narrowly distinguish the D.C. Circuit decision in Nuclear Info. & Res. Serv. v. NRC as not interpreting NRCs NEPA regulations, it ignores the courts holding that the administrative record in that case, including the hearing record, showed that the NRC plainly met its NEPA obligation to take a hard look at the environmental consequences.34

13. Rather than fully acknowledge the considerable precedent that is directly adverse to its position, New York cites to general federal NEPA principles and non-binding cases 31 New York Proposed Findings at 89 (¶ 235).

32 See FitzPatrick, CLI-08-19, 68 NRC at 260 n.23; Sequoyah Fuels, CLI-94-11, 40 NRC at 59 n.2.

33 See Entergy Proposed Findings at 48-49 (¶¶ 87-89) (citing Nuclear Innovation North America LLC (South Texas Project, Units 3 & 4), CLI-11-6, 74 NRC __, slip op. at 8 n.33 (2011); Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 526-27 n.87 (2008);

Dominion Nuclear N. Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-07-27, 66 NRC 215, 230 n.79 (2007); Hydro Res., CLI-01-04, 53 NRC at 53; Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __, slip op. at 30 (Feb. 9, 2012); La. Energy Servs. L.P. (Natl Enrichment Facility), CLI-06-15, 63 NRC 687, 707 n.91 (2006); La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-05-28, 62 NRC 721, 731 (2005); La. Energy Servs., L.P. (Claiborne Enrichment Ctr.), CLI-98-3, 47 NRC 77, 87-89 (1998); S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-09-7, 69 NRC 613 (2009)). New York attempts, unsuccessfully, to distinguish two of these nine decisions: CLI-98-3 and CLI-06-15. See New York Proposed Findings at 88-89 (¶¶ 233-35 & n.14). All of these cases show that an adjudicatory decision may modify or supplement an FEIS in all types of NRC proceedings regardless of the whether the NRC ultimately regulates the environmental impact at issue. Indeed, in this case, as in CLI-06-15, the Commission does not regulate the environmental concern at issue, offsite land use. See id. at 88 (¶ 233)

(noting that CLI-06-15 involved the environmental impacts of an issue not regulated by the Commission depleted uranium disposal). Nor is there any significant difference between the procedural posture of this proceeding and the purportedly highly specific circumstances in CLI-98-3. See id. at 89 (¶ 235 n.14).

34 Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562, 569 (D.C. Cir. 2007).

involving other agencies.35 But the U.S. Courts of Appeals, across multiple circuits, have consistently upheld the NRCs practice as consistent with the Atomic Energy Act36 and NEPA.37 New York attempts to dismiss some of these cases as inapplicable because they were decided under a superseded version of 10 C.F.R. § 51.52.38 However, as the Limerick Appeal Board held, [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.39

14. New York argues that the Commissions practice of supplementing the NEPA record with its adjudicatory decisions is akin to impermissible post hoc rationalizations that courts have rejected,40 but these cases are readily distinguished. This hearing is part of the NRCs decisionmaking process, not a judicial review of the NRCs decision. The NRC has not yet issued renewed licenses for Indian Point and the hearing record is an element of the overall record of the NRCs decision. In contrast, in Pennaco Energy v. U.S. Dept of Interior, the 35 Appeals Boards have readily distinguished these cases, holding that they are inapplicable to the NRC hearing process. See Entergy Proposed Findings at 52-53 (¶¶ 94-96). Similarly, the potential supplementation of the record through the Boards decision does not violate the general NEPA principles recited in New Yorks new cases. See Brodsky v. NRC, 704 F.3d 113, 119 (2d Cir. 2013); Sierra Club v. Watkins, 808 F. Supp. 852, 858 (D.D.C. 1991); South Fork Band Council of W. Shoshone v. U.S. Dept of Interior, 588 F.3d 718, 726 (9th Cir.

2009).

36 Nuclear Info. & Res. Serv., 509 F.3d at 562 (holding that supplementing an EIS through the hearing record does not violate the Atomic Energy Act).

37 See id. at 568-69; Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 1294 n.5 (D.C. Cir. 1975) (holding that the deemed modified principle 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).

38 See New York Proposed Findings at 90 (¶ 237 n.15-16).

39 Limerick, ALAB-819, 22 NRC at 706-07.

40 See, e.g., New York Proposed Findings at 85-86 (¶ 229).

affidavit at issue in that case was prepared and submitted to the Interior Board of Land Appeals (IBLA) after the agency had acted by completing the disputed lease sale.41

15. Furthermore, there is no merit to New Yorks specter of harm that would ostensibly result from allowing supplementation or amendment of the FSEIS in this case.42 First, in arguing that it would be unclear which part of the record the Board decision was relying upon to cure any NEPA deficiency,43 New York overlooks that the Board is more than capable of writing a clear decision with citations to the record. Second, New Yorks claim that any supplemental information would not necessarily have been meaningfully analyzed by the NRC Staff44 ignores that Commission regulations authorize the Boardnot the NRC Staffto resolve NEPA disputes through the hearing process and that the Staff fully participated in that process as a party.45 Third, the Commission has already rejected the argument that supplementation is inconsistent with NEPAs public participation process because the hearing process allows for 41 See Pennaco Energy v. U.S. Dept of Interior, 377 F.3d 1147, 1152 (10th Cir. 2004). The Pennaco decision and the other IBLA cases cited by New York are inapplicable for a variety of additional reasons: (1) the 10th Circuits decisions are not binding outside of that circuit; (2) nothing in the IBLA jurisprudence undermines the validity of the NRCs processes under NEPA; and (3) New Yorks interpretations of the IBLA decisions are oversimplified and gloss over significant internal disputes over the interpretation of IBLAs precedent.

See, e.g., Wyoming Outdoor Council, 158 IBLA 155, 171 (IBLA 2003) (While the Board may look to post-EA [environmental assessment] generated materials in search of BLMs hard look, those materials, in this case, present unresolved water quality issues.) (emphasis added); see also id. at 177 (Admin. J. Grant, dissenting) (In evaluating whether BLM has taken a hard look at environmental impacts necessary to support a FONSI, this Board has found it proper to consider the entire record including comments, responses, and analysis generated before and after the EA was prepared); see also id. at 180 (while on appeal the appellants have made many assertions . . . these concerns have been addressed in the record, and when viewed in its entirety, the record supports the FONSI . . . .).

42 See New York Proposed Findings at 90-91 (¶ 238) (arguing that supplementation would be fraught with problems).

43 See id.

44 See id.

45 See 10 C.F.R. §§ 2.1202(b)(2)-(3), 51.104(a)(2)-(3). Contrary to New Yorks focus on the NRC Staff, NEPA is addressed to agencies as a whole, not only to their professional staffs. Calvert Cliffs Coordinating Comm. v. AEC, 449 F.2d 1109, 1118 (D.C. Cir. 1971).

greater public participation than NEPA otherwise requires.46 Fourth, contrary to New Yorks argument, NEPA does not preclude supplementation because it would mean that all the pertinent environmental information would no longer appear in one document.47

16. Finally, New Yorks proposal would elevate form over substance and would likely undermine the efficient resolution of this adjudicatory proceeding. Surely, any change in the FSEISparticularly one that is fully documented in the hearing recorddoes not require the publication of an FSEIS supplement for comment and subsequent hearing opportunity. If it did, then the result could be an endless series of challenges, hearings, and FSEIS supplements.

Drawing out the NEPA review in such an indefinite fashion would undermine the Commissions goals of an efficient, stable, and predictable regulatory process for license renewal.48 It would also undermine NEPAs ultimate purpose, which is not better documents but better decisions.49

17. In summary, this adjudicatory proceeding is not isolated from the requisite hard look required of the NRC by NEPA; it is a key part of it. The Board must follow binding NRC precedent and reject New Yorks claim that no adjudicatory findings could cure the defects New York purports to identify.50 As discussed below and detailed in Entergys and NRC Staffs 46 Hydro Res., CLI-01-04, 53 NRC at 53. For this same reason, New York incorrectly relies on the Boards decision granting New York summary disposition on NYS-35/36 as support for its claim that a remand to the NRC Staff is the appropriate remedy for any NEPA deficiency. See New York Proposed Findings at 91 (¶ 239). That decision is distinguishable because resolution of that contention did not involve an evidentiary hearing (i.e., there was no public airing of the issues). Entergy also respectfully notes that it believes that Board erred in that decision.

47 To the contrary, NEPA allows agencies to rely on environmental analyses in multiple documents. See, e.g.,

10 C.F.R. Part 51, App. A, § (b) (authorizing tiering and incorporation by reference).

48 See Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,461 (May 8, 1995);

Proposed Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 74 Fed. Reg. 38,117, 38,118 (July 31, 2009).

49 40 C.F.R. § 1500.1(c) (Ultimately, of course, it is not better documents but better decisions that count.

NEPAs purpose is not to generate paperworkeven excellent paperworkbut to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment.).

50 See New York Proposed Findings at 88 (¶ 233).

Proposed Findings, to the extent any further NEPA analysis is required beyond the FSEIS for this contention, there is ample information in the record from which Board can draw to supplement the FSEIS.

B. Issues Not Disputed By New York

18. As an initial matter, it is important to note that there are several relevant conclusions and findings on which Entergy and New York agree, or that New York does not challenge. Importantly, New York does not challenge that Entergys witnesses, Mr. Donald P.

Cleary, Mr. C. William Reamer, and Dr. Tolley are qualified to testify as experts on the issues raised in NYS-17B.51 In particular, New York does not dispute that Dr. Tolley has been a highly-respected practicing economist for more than fifty years, is well-versed in the economic techniques used to perform hedonic and repeat-sales analyses, and authored or co-authored some of the seminal economic publications in this area.52 Nor does New York dispute that NRC Staffs witnesses, Mr. Jeffrey J. Rikhoff, Mr. Andrew L. Stuyvenberg, and Mr. John P. Boska, are qualified to testify as experts on the issues raised in NYS-17B.53

19. New York also does not dispute key facts relating to two fundamental issues. The first concerns whether there is a direct relationship between any changes to the physical environment resulting from the no-action alternative and New Yorks alleged property value impact.54 New York claims that Indian Point has physical impacts on the environment that adversely affect property values (including noise, aesthetic, traffic, and spent fuel pool leak 51 See Entergy Proposed Findings at 54-56 (¶¶98-102).

52 See Supplemental Testimony of Entergy Witness George S. Tolley Regarding Contentions NYS-17B (Property Values) at 1-2 (A3) (Nov. 21, 2012) (Entergy Supplemental Testimony) (ENT000592).

53 See Entergy Proposed Findings at 56-57 (¶¶103-07).

54 As the Board previously recognized, NEPA is concerned with actual physical impacts to the environment. See Licensing Board Memorandum and Order (Denying Entergys Motion for the Summary Disposition of NYS Contention 17/17A) at 11-13 (Apr. 22, 2010) (unpublished) (Apr. 22, 2010 Order).

impacts).55 Importantly, however, New York does not dispute the GEIS and FSEIS conclusions that impacts from noise, aesthetics, traffic, and leaks are all SMALL (i.e., environmentally insignificant).56 These issues are discussed further in Section II.C below.

20. The second issue concerns New Yorks claim of significant property value impacts. On this issue, New York does not dispute Dr. Tolleys testimony indicating that there have been a number of peer-reviewed site-specific hedonic property value studies of nuclear power facilities and that studies focused on the local area around specific nuclear plants are the most relevant for assessing the likelihood for property value impacts from Indian Point.57 Nor does New York dispute Dr. Tolleys testimony indicating that these studies provide no reliable basis for concluding that proximity to nuclear power plants causes lower property values.58

21. In addition, New York does not dispute that Dr. Tolley performed two hedonic regressions analysisone that used the MLS data set he assembled, and a second that used the same Assessor data set that Dr. Sheppard assembled.59 Notably, New York does not challenge the conclusions of Dr. Tolleys hedonic analysis using Dr. Sheppards Assessor data. For example, New York does not dispute Dr. Tolleys hedonic analysis using Dr. Sheppards Assessor data, even though that analysis does not show that Indian Point operations adversely impact property values.60 Nor does New York dispute that Dr. Tolleys hedonic analysis using 55 New York Proposed Findings at 40-42 (¶¶ 119-24).

56 See GEIS at 4-3 to 4-6 (NYS00131B); FSEIS at 4-6, 4-43, 4-47, 4-69 (NYS00133B).

57 See Testimony of Entergy Witnesses Donald P. Cleary, C. William Reamer, and George S. Tolley Regarding Contention NYS-17B (Property Values) at 63-67 (A93-95) (Mar. 28, 2012) (Entergy Testimony)

(ENT000132).

58 See id.

59 Entergy Supplemental Testimony at 3 (A6) (ENT000592); George Tolley, Property Value Effects of Indian Point License Renewal at 15-22, 48-50 (Mar. 2012) (Tolley Report) (ENT000144); Entergy Testimony at 70-78 (A99-107), 129-131 (A159-62) (ENT000132).

60 Entergy Testimony at 130-131 (A162) (ENT000132); Tolley Report at 49-50 (ENT000144); Entergy Supplemental Testimony at 5-6 (A8), 15 (A19) (ENT000592).

Dr. Sheppards Assessor data demonstrates that Entergys PILOT distributions have a statistically-significant positive impact on property values.61 These issues are discussed further in Section II.E below.

C. New Yorks Postulated Changes in Property Values Are Not Directly Related to Significant Physical Environmental Impacts

22. While citing to the Boards ruling on Entergys summary disposition motion several times,62 New York fails to cite to one of the Boards key legal findings in that decision; i.e., that a question of fact exists on whether there is a direct relationship between any changes to the physical environment resulting from the no-action alternative and New Yorks alleged property value impact.63 As that ruling established, New York was required to put forth evidence demonstrating that its alleged property value changes are the direct result of physical impacts to the environment actually caused by license renewal or the no-action alternative. As discussed below, New York has not met its burden of going forward and establishing a prima facie case on this issue.64

23. In its Proposed Findings, New York lists several physical impacts discussed in FSEIS (e.g., noise, aesthetic, traffic, and radiological leaks to groundwater), and simply claims that, because of these impacts, Indian Point is a disamenity and nuisance that adversely impacts property values by approximately $1.07 billion.65 New York, however, simply 61 Tolley Report at 49 (ENT000144); Entergy Supplemental Testimony at 5-6 (A8) (ENT000592).

62 New York Proposed Findings at 3-5 (¶¶ 7-9), 20-21 (¶ 62), 21 (¶ 64).

63 See Apr. 22, 2010 Order at 12.

64 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 269 (2009), affd sub nom. N.J. Envtl. Fedn v. NRC, 645 F.3d 220 (2011); see also Vt. Yankee Nuclear Power Corp. v. Aeschliman, 435 U.S. 519, 554 (1978) (upholding this threshold test for intervenor participation in licensing proceedings); Phila. Elec. Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 191 (1975) (holding that the intervenors had the burden of introducing evidence to demonstrate that the basis for their contention was more than theoretical).

65 See New York Proposed Findings at 40-42 (¶¶ 120-24).

juxtaposes its list of physical impacts with its property value claim, but never demonstrates the required connection between those physical impacts and the alleged substantial property value change. Importantly, New York never shows how noise, aesthetics, traffic, and leaks from Indian Point caused the historic (1974 to 1976) property value impacts allegedly found in Dr. Sheppards study.

24. As an initial matter, pursuant to the GEIS and Table B-1, Appendix B to Subpart A of 10 C.F.R. Part 51 (Table B-1), noise and aesthetic impacts are resolved generically as Category 1 issues with SMALL impacts for all plants, including Indian Point.66 Absent a waiver, which New York has not sought, New York may not challenge those conclusions by claiming that noise and aesthetic impacts are greater than SMALL, as they relate to Indian Point.67 New York also does not refute the FSEIS findings that traffic and radiological leaks would have only SMALL impacts.68 By definition, SMALL impacts are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource.69 Logically, physical impacts that are already SMALL (i.e., undetectable or negligible) cannot be reduced under the no-action alternative in a manner that would significantly increase property values, and certainly New York provided no basis on which the Board could conclude that these SMALL impacts could generate LARGE ($1.07 billion) property value impacts.

66 10 C.F.R. Pt. 51, Subpt. A, App. B, Tbl. B-1.

67 See Entergy Nuclear Vt. Yankee LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 19-21 (2007); Fla. Power & Light Co. (Turkey Point Nuclear Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 22-23 (2001).

68 See GEIS at 4-50, 4-83, 4-119 (NYS00131B); FSEIS at 4-6, 4-43, 4-69 (NYS00133B).

69 10 C.F.R. Pt. 51, Subpt. A, App. B, Tbl. B-1.

25. As an example, New York indicates that [n]oise from IP2 and IP3 is detectable offsite70 and that Indian Point has a number of visible structures (e.g., fences, transmission lines, the IP1 superheater stack).71 These statements do not, however, establish that Indian Point causes significant noise and aesthetic impacts, much less impacts that could somehow influence property values by $1.07 billion within 3.1 miles from the Indian Point site (i.e., the range of Dr. Sheppards study).72 Nor has New York linked noise or aesthetic impacts to Dr. Sheppards key argument that the adverse impacts actually occurred when IP2 and IP3 commenced full power operations between 1974 and 1976. In particular, New York presented no evidence indicating that the noise or aesthetic impacts from Indian Point somehow increased after 1976, compared to before 1974. Based on common sense and undisputed evidence provided in this proceeding, such impacts actually would have decreased after construction was completed and operations began.73

26. New Yorks traffic-related impact claim fares no better. New York indicates that more than 3,500 vehicles traverse the stretch of Broadway immediately outside the complex 70 New York Proposed Findings at 40 (¶ 120).

71 Id. at 40-41 (¶¶ 120-22).

72 See id. at 1 (¶ 3), 49 (¶ 141). New York does not, for example, dispute that IP2 and IP3 meet the Village of Buchanans sound ordinance and that, with the exception of Broadway, IP2 and IP3 are shielded from view in the Village of Buchanan. See FSEIS at 2-123 (NYS00133B).

73 Indian Point, Unit 1 (IP1) construction began in 1956 and IP1 operations began before plans for Indian Point, Unit 2 (IP2) and Indian Point, Unit 3 (IP3) were announced. GEIS at C-89 (NYS00131G); Gene Smith, Con Edison Atomic Power Plant in Westchester Goes Critical, N.Y. Times, Aug. 3, 1962 (ENT000151).

With regard to aesthetics, IP1 structures and operations, and IP2 and IP3 construction would have affected the local landscape for years before the 1974 to 1976 period. See, e.g., FSEIS at 2-2 (NYS00133A) (indicating that the IP1 superheater stack was the tallest structure on the Indian Point site). Likewise, there would have been noise associated with IP1 operation, and IP2 and IP3 construction through the 1960s and early 1970s. See GEIS at C-80 (NYS00131G) (indicating that there would have been as many as 2400 workers onsite during the early 1970s when both IP2 and IP3 were under construction); ConEd Pouring Half Block-Long Base for Atom Plant, N.Y. Times, Dec. 16, 1966 (ENT000173) (Every three minutes today a big truck with a rotating drum filled with concrete from nearby Verplanck arrived at the waterfront to empty its load onto endless belts that feed the concrete into a hopper . . . .).

daily,74 but this figure is misleadingit merely represents the total number of vehicles using Broadway.75 It is not indicative of Indian Points impact, much less an adverse impact that could somehow impact property values within 3.1 miles of the site. To the contrary, the Environmental Report (ER) and FSEIS demonstrate that traffic impacts during the period of extended operation would be SMALL and New York offered no evidence contradicting these conclusions.76 Nor has New York linked traffic impacts to Dr. Sheppards study associated with IP2 and IP3 commencing full power operations between 1974 and 1976. Indeed, the record suggests that traffic impacts actually would have decreased after construction was completed and operations began.77

27. That leaves only New Yorks alleged groundwater impacts from radiological leaks, which New Yorks own independent assessment confirmed have only minimal impacts.78 Similarly, the FSEIS concludes that impacts from leaks to groundwater during the period of extended operation would be SMALL and again, New York offered no evidence to undermine that conclusion.79 Moreover, groundwater impacts from leaks could not have caused the property value impacts allegedly found in Dr. Sheppards study (i.e., impacts associated with operations commencing) because those leaks were identified decades later.80 74 New York Proposed Findings at 40-41 (¶ 120) (citing Indian Point Energy Center License Renewal Application, App. E, Applicants Environmental Report, Operating License Renewal Stage at 4-43 to -44 (Apr. 2007) (ER) (ENT00015B)).

75 ER at 4-44 (ENT00015B). Indian Point employs 1,255 workers during normal operations and staggers shift starting and quitting times to account for local traffic flows. Id. at 4-44.

76 See id.; FSEIS at 3-12, 4-47, 4-69 (NYS00133B); GEIS at C-87 (NYS00131G) (noting that local officials reported no major transportation impacts from IP2 and IP3 construction and operation).

77 See supra note 72.

78 See FSEIS at 2-111 to 2-112 (NYS00133A).

79 See id. at 2-104 to 2-114; id. at 4-41 to 4-42, 4-56, 4-61, 4-67 to 4-69 (NYS00133B).

80 New York Proposed Findings at 42 (¶ 123). Nor is New Yorks observation that the ER refers to the Indian Point site as a brownfield site relevant to this issue. New York Proposed Findings 42 (¶ 124 & n.4). New York suggests that Entergy used this term as it is defined in the Comprehensive Environmental Response,

28. The only remaining explanation for any property value impacts, if they exist, is perceived risk and fear of nuclear power. As Dr. Tolley pointed out, published, peer-reviewed journal articles (including those relied on by Dr. Sheppard) frequently cite public perception of risk and fear as the potential cause for nuclear power plant property value impacts.81 New York did not dispute or distinguish these studies. To the contrary, Dr. Sheppard conceded he made no attempt to disaggregate property value impacts associated with fear or public perception.82 Based on this evidence, any such property value impacts are likely the result of public perceptions of nuclear power. Under binding case law, NEPA does not require analysis of impacts that arise from fear rather than directly from an actual impact to the physical environment.83 Accordingly, as a matter of law, NEPA requires no further analysis of potential property value impacts.

29. Notwithstanding this directly applicable case law, New York cites three other cases and argues that the NRC must nonetheless consider Dr. Sheppards property value Compensation, and Liability Act (CERCLA); i.e., real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. 42 U.S.C. § 9601(39)(A). Nothing in the ER indicates that Entergy intended to adopt this CERCLA definition. To the contrary, the ER uses the term brownfield in the energy alternatives analysis to distinguish Indian Point (and other sites with existing generation facilities) from greenfield sites (i.e.,

previously undeveloped sites). See ER §§ 7.3, 8.2 (ENT00015B); see also NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants at 4-5, A.1 (Oct. 1999) (ENT00019A); NUREG-1555, Supp. 1 at 5-6 (ENT00019B). As noted above, even if that CERCLA definition were somehow relevant, New York has failed to show that the presence or potential presence of a hazardous substance, pollutant, or contaminant on site caused the historic property value impacts allegedly found in Dr. Sheppards study.

81 Entergy Testimony at 64 (A94), 83-84 (A111) (ENT000132) (documenting Dr. Sheppards reliance on studies that have attributed potential relationships between the presence of nuclear power plants and property values to public perceptions and preferences).

82 Pre-filed Rebuttal Testimony of Stephen C. Sheppard Regarding Contention NYS-17B at 13:3-5 (June 28, 2012) (New York Rebuttal Testimony) (NYS000434); see also Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2706:15-21 (Sheppard) (Oct. 22, 2012) (Oct. 22, 2012 Tr.).

83 Metro. Edison, 460 U.S. at 772-74; see also Olmstead Citizens for a Better Cmty. v. United States, 793 F.2d 201, 204-06 (8th Cir. 1986) (finding the impact on nearby property values need not be considered absent any significant impacts on the physical environment) (emphasis added); Final Rule, Changes to Requirements for Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 64 Fed. Reg. 48,496, 48,502 (Sept. 3, 1999) (finding that the GEIS did not have to consider property value impacts from spent fuel shipments because those impacts would arise from the publics perception of risk rather than from an impact to the physical environment).

analysis.84 First, New York cites Lee v. U.S. Air Force, which upheld an agency decision to rely on existing scientific studies in concluding that the increased noise from additional training flights would have no measurable impact on property values.85 Second, New York cites Norfolk

v. Reilly, which also upheld an agency decision to rely on existing scientific studies and to not quantify the adverse property value impact that could result from the construction and operation of a new landfill for sewage grit.86 Third, New York cites Britt v. U.S. Army Corps of Engineers, which, in passing, observed that an FEIS concerning the removal of a bridge discussed property value impacts, and then held that the FEIS was sufficient notwithstanding its failure to quantity the dollar value of traffic impacts because NEPA does not require that an FEIS discuss all impacts in exhaustive detail.87

30. As an initial matter, all three cases refute New Yorks claim that the Indian Point FSEIS is required to quantify property value impacts in a site-specific analysis because NEPA allows agencies to rely on existing studies and does not require that all impacts be discussed in exhaustive detail.88 Further, none of these cases supports New Yorks assertion that property value impacts that are not directly related to a projects physical impacts must be considered under NEPA because, in these cases, the connection between physical impacts was either established or not in dispute. For example, in Lee, the plaintiff clearly alleged that increased noise from additional training flights caused any property value impact.89 In contrast, the Board has already ruled that a question of fact exists on whether there is a direct connection between 84 See New York Proposed Finding at 43 (¶ 126).

85 Lee v. U.S. Air Force, 354 F.3d 1229, 1241-42 (10th Cir. 2004).

86 Norfolk v. Reilly, 761 F. Supp. 867, 887-88 (D. Mass. 1991), affd per curiam without opinion, 960 F.2d 143 (1st Cir. 1992).

87 Britt v. U.S. Army Corps of Engineers, 769 F.2d 84, 91 (2d Cir. 1985).

88 Id.

89 See Lee, 354 F.3d at 1241-42.

any physical impacts and New Yorks alleged property value impact, and, at hearing, New York failed establish such a connection.90 As such, New York has not met its burden to establish a prima facie case on this element of NYS-17B.91 Having not done so, NEPA does not require any further consideration of New Yorks property value impacts or any resulting offsite land-use impacts in this proceeding.

D. The FSEIS Offsite Land-Use Evaluation Is Consistent with NRC Guidance

31. New York argues that the FSEIS fails to properly analyze property values impacts and that the NRC Staff made no effort to investigate this issue.92 As discussed below, New York fails to acknowledge the context in which the FSEIS was prepared, including the analysis in the earlier adopted GEIS, which it incorrectly dismisses as irrelevant.93

32. As an initial matter, contrary to New Yorks claim,94 the GEIS Appendix C evaluation is not limited to refurbishment-related impacts, but also analyzes the impacts from IP2s and IP3s construction, operation, and license renewal.95 New York bases its argument on a statement in GEIS § 3.7.1 indicating that the Appendix C evaluation was used to forecast refurbishment-related impacts at seven nuclear power reactor case study sites, including Indian Point.96 But that does not mean that it evaluates only those impacts. Rather the GEIS makes 90 See Apr. 22, 2010 Order at 12.

91 See id.; see also New York, 681 F.3d at 482 (noting that the NRC was not required to consider property value impacts because the petitioner (New York) failed to show whether and how those property value impacts are related to a change in the physical environment).

92 New York Proposed Findings at 1-2 (¶ 4).

93 Id. at 32 (¶ 99).

94 Id.

95 See GEIS § 4.7.1 (Environmental Impacts of Operation; Socioeconomic Impacts; Housing) (NYS00131B),

§ C.4.4.2 (Description of Case Study Sites; Indian Point; Housing) (NYS00131F). The GEIS methodology involves first identifying housing impacts from construction and operation, and then using this information to project future housing impacts during the license renewal period. See id. at C-24 (NYS00131F); see generally id. at C-24 to -25, C-82 (NYS00131F-G).

96 New York Proposed Findings at 32 (¶ 99).

abundantly clear that Appendix C evaluates socioeconomic impacts during refurbishment and the license renewal term.97

33. Furthermore, New York incorrectly claims that because offsite land use and housing are Category 2 issues, as a matter of law, the Board is precluded from considering the GEIS evaluation.98 The GEIS considers land-use impacts, but does not generically resolve that issue for reasons having nothing to do with property values.99 In fact, the GEIS specifically considers property value impacts and generically finds that such impacts, if they exist, are SMALL.100 As such, the GEIS contains directly relevant information, which the Board can and should use to resolve this contention and satisfy NRCs NEPA obligations.101

34. In addition, New York mistakenly asserts that the GEIS is consistent with its position that Indian Point has significant property value impacts.102 New York, however, focuses on a few isolated observations reported in the GEIS, which the NRC found were not indicative of 97 GEIS at C-1 (NYS00131F) (emphasis added); see also id. at 4-99 (NYS00131B).

98 See New York Proposed Findings at 33 (¶ 100).

99 GEIS at 4-108 to -109 (NYS00131B) (indicating that the NRC was unable to generically classify offsite land-use impacts during the license renewal term as a Category 1 issue because tax-driven land use changes could range from small to large depending on the site).

100 Id. at 4-103; see also Entergy Testimony at 30-31 (A43) (ENT000132); NRC Staff Testimony of Jeffrey J.

Rikhoff, Andrew L. Stuyvenberg and John P. Boska Concerning Contentions NYS-17, 17A and 17B (Land Use) at 14-15 (A17) (Mar. 30, 2012) (revised Oct. 9, 2012) (NRC Staff Testimony) (NRCR00081).

101 See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

at 28,474 (NYS000127) (explaining that [t]he review of a Category 2 issue may focus on the particular aspect of the issue that causes the Category 1 criteria not to be met in the GEIS).

102 New York Proposed Findings at 34-37 (¶¶ 102-08). At the same time New York claims that the GEIS supports its position, New York discounts the GEIS as fourteen-year old anecdotal evidence. Id. at 35 (¶103). This argument lacks merit. First, the GEIS case study was comprehensive, and New York offered no evidence indicating that the GEIS departs from well-accepted methodologies in the social sciences or that insights gleaned from those knowledgeable in a local market, such as realtors, ought to be discounted as anecdotal.

See Entergy Proposed Findings at 42 (¶ 123). Second, Entergy and NRC Staff considered the GEIS case study in conjunction with more recent information in local land-use plans to provide a complete, up-to-date picture on the potential for property value and land-use impacts. See id. at 68-69 (¶ 128), 120-21 (¶ 229). Third, to the extent that New York implies that the GEIS is outdated, Dr. Sheppards opinion is based on events that happened nearly forty years ago and, therefore, New York has no basis to allege staleness. See New York Proposed Findings at 45 (¶ 132).

most realtors and local planners experiences.103 For example, New York highlights that the GEIS reports that one local realtor claimed that more development in nearby communities would have occurred but for Indian Point.104 Notwithstanding this one local realtors statement about local development, the GEIS clearly states: Local realtors agree that housing values in communities neighboring the plant have not been deflated because of the presence of Indian Point.105 Thus, New York distorts the more broadly-founded overall conclusion in the GEIS Indian Point has not depressed property values in neighboring communities.

35. New York also erroneously argues that the NRC Staffs environmental standard review plan, NUREG-1555, Supplement 1, supports its claim that property values require further analysis.106 That guidance incorporates the lessons learned from the GEIS property value evaluation and states that [a]t all case study sites, only small impacts on housing value and marketability are projected to continue.107 Given this, NUREG-1555, Supplement 1 directs the Staff to focus on issues it could not generically resolve in the GEISnamely, population-driven and tax-driven land-use impacts.108 The FSEIS addresses those issues consistent with this guidance and New York does not dispute those population-driven and tax-driven land-use impact evaluations.109 As such, NUREG-1555, Supplement 1 does not support New Yorks broad argument that the FSEIS must consider potential property value changes as part of the inclusive approach set forth in NRC guidance.110 Accordingly, because New York has not 103 See Entergy Proposed Findings at 66 (¶ 122).

104 New York Proposed Findings at 35-36 (¶ 105).

105 GEIS at C-83 (NYS00131G).

106 New York Proposed Findings at 39-40 (¶ 117).

107 NUREG-1555, Supp. 1 at 4.4.1-3 (ENT00019B).

108 Id. at 4.4.3-4.

109 See FSEIS at 4-46 to -47 (NYS00133B).

110 See New York Proposed Findings at 39-40 (¶ 117).

identified any material way in which the FSEIS evaluation of offsite land-use impacts is inconsistent with NRC Staff guidance, New York must specifically and substantially support its challenge to the FSEIS.111 As discussed below, New York has failed to do so.

E. The Record Demonstrates That Property Value Impacts Would Be SMALL Under the Proposed Action and MODERATE Under the No-Action Alternative

36. New York claims that it is undisputed that Indian Points impact on housing is LARGE.112 Saying a fact is undisputed does not make it so. As discussed below, New York largely ignores Dr. Tolleys expert testimony that Dr. Sheppards repeat-sale analysis included numerous incorrect assumptions and did not adhere to well-established economic methodologies.

New York fails to acknowledge that Dr. Tolley performed two hedonic regressions analysis one that used the MLS data set he assembled, and a second that used the same Assessor data set that Dr. Sheppard assembled and used for his repeat-sales analysis.113 Notably, New York does not challenge Dr. Tolleys hedonic analysis using Dr. Sheppards Assessor data, even though that analysis does not show that Indian Point operations adversely impact property values.114 New York also misconstrues Dr. Tolleys MLS hedonic analysis, which also provides no support for New Yorks theory that Indian Point operations adversely impact property values. The conclusions from these two hedonic analyses are fully consistent with peer-reviewed studies involving other nuclear power plants, which also provide no scientific basis for concluding that 111 See Seabrook, CLI-12-05, slip op. at 16 n.78; Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365, 375 n.26 (2005) (We recognize, of course, that guidance documents do not have the force and effect of law. Nonetheless, guidance is at least implicitly endorsed by the Commission and therefore is entitled to correspondingly special weight.) (citations and internal quotation marks omitted).

112 New York Proposed Findings at 37 (¶ 109) (emphasis added). This is one of several examples where New York claims that a fact is undisputed notwithstanding clear evidence to the contrary. See also id. at 24-25 (¶ 79), 43 (¶ 127).

113 Entergy Supplemental Testimony at 3 (A6) (ENT000592); Tolley Report at 15-22, 48-50 (ENT000144);

Entergy Testimony at 70-78, 129-131 (ENT000132).

114 Entergy Testimony at 130-131 (A162) (ENT000132); Tolley Report at 49-50 (ENT000144); Entergy Supplemental Testimony at 5-6 (A8), 15 (A19) (ENT000592).

nuclear plants adversely impact property values.115 Finally, the record also shows that even if one assumed Dr. Sheppards billion-dollar property value impact was correctwhich it clearly is notthe no-action alternative would result in a net negative property value impact compared to license renewal because the near-term loss of PILOT payments outweighs Dr. Sheppards alleged property value impacts that would occur many decades later.

1. Dr. Sheppards Property Value Impact Evaluation Relied on Questionable Assumptions and Departed from Standard Economic Methods

a. Dr. Sheppards Analysis Is Premised on Flawed Assumptions

37. The centerpiece of New Yorks Proposed FindingsDr. Sheppards repeat-sales analysisrelies on two fundamentally-flawed assumptions. First, New York relies on Dr. Sheppards unsupported claim that his repeat-sales analysis directly addresses exactly the question posed when we asked about the impact of the No Action Alternative.116 Dr. Sheppard made clear that his $1.07 billion calculation is actually an impact estimate associated with IP2 and IP3 commencing operations nearly forty years ago, in 1974 to 1976, and that he assumed that when IPEC is gone and the site is restored these changes will be undone.117 In other words, Dr. Sheppard did not zero in on the relevant issue (i.e., property value impacts under the no-action alternative), but instead attempted to estimate whether initial operations caused an impact in the 1970s and simply extrapolated those conclusions forty years into the future.

Dr. Sheppard, however, did not offer a persuasive justification for his assumption that any initial operational impact would equally reverse itself once operations cease.118 As such, the record 115 See Entergy Testimony at 63-67 (A93-95) (ENT000132).

116 New York Proposed Findings at 46 (¶ 135), 63-64 (¶¶ 175-76) (emphasis added).

117 Pre-filed Direct Testimony of Stephen C. Sheppard, Ph.D. Regarding Contention 17B at 39:3-16 (Dec. 16, 2011) (revised Jan. 30, 2012) (New York Direct Testimony) (NYSR00224); see also Oct. 22, 2012 Tr.

2585:8-20 (indicating that Dr. Sheppard was assuming property values would rebound the same amount so that the effect will undo itself).

118 See Oct. 22, 2012 Tr. at 2585:8-20 (Sheppard).

contains no valid basis to conclude that any such effects, to the extent they even exist, will simply reverse themselves when IP2 and IP3 shut down. Because Dr. Sheppard failed to provide sufficient grounds to link events forty years ago to his projected no-action outcome in the future, Dr. Sheppards $1.07 billion calculation is unreasonable and unsupported.119

38. Second, New York relies on Dr. Sheppards speculation that the full $1.07 billion gain would be realized within about ten years after operations end.120 New York, however, inexplicably ignores that Dr. Sheppards 10-year recovery timeframe, which appears to have been invented at the hearing,121 was a significant departure from positions he took in three written reports previously filed with the Board.122 Those reports identified the completion of site reclamation and decommissioning as the trigger for any property value increase, not some set number of years after shutdown.123 Dr. Sheppards unexplained and substantial change in position undermines his oral testimony on this issue. As it stands, Dr. Sheppard pointed to no data connecting any physical changes at Indian Point to his 10-year timeframe, but attempted to justify it by pointing to the average homeownership period in his data set.124 The Board should 119 Cf. New York, 681 F.3d at 482 (noting that the NRC was not required to consider property value impacts because the petitioner (New York) relied on a study that simply assumes a diminution in values caused by current plant operation and simply extends it mathematically but in no way asserts whether or how any harm to property values might occur nor how that harm is related to a change in the physical environment).

120 New York Proposed Finding at 2 (¶ 5).

121 See Oct. 22, 2012 Tr. at 2639:18-2640:19 (Sheppard).

122 See Stephen Sheppard, Impacts of the Indian Point Energy Center on Property Values at 12 (Dec. 2011)

(revised Jan. 30, 2012) (Dec. 2011 Sheppard Report) (NYSR00231); Stephen Sheppard, Potential Impacts Related to Property Value Diminution in Communities Surround the IPEC at 2 (Jan. 24, 2011) (Jan. 2011 Sheppard Report) (NYS000230); Stephen Sheppard, Potential Impacts of Indian Point Relicensing with Delayed Site Reclamation at 2 (Feb. 26, 2009) (2009 Sheppard Report) (NYS000227); see also New York Proposed Findings at 55 (¶ 153) (conceding that decommissioning of IPEC and reclamation of the site is what would generate Dr. Sheppards billion property value increase); Entergy Proposed Findings at 78 (¶ 214),

79-80 (¶ 217).

123 See Dec. 2011 Sheppard Report at 12 (NYSR00231); Jan. 2011 Sheppard Report at 2 (NYS000230); 2009 Sheppard Report at 2 (NYS000227).

124 Oct. 22, 2012 Tr. at 2639:14-23 (Sheppard); see also December 2011 Sheppard Report at 8, Table 1 (NYSR00231) (indicating that the mean ownership period in Dr. Sheppards sample is 8.19 years).

not accept this flimsy rationale. As Dr. Tolley reasonably pointed out, there is no logical reason to believe there is any relationship between that data point and the property value recovery period.125 Dr. Sheppard posits that the changing tempo of activity and physical features at Indian Point impacts property values, but this 10-year estimate is not rationally related to any physical changes such as removing structures or reducing activities at Indian Point.

Accordingly, New York has not substantiated Dr. Sheppards assumed 10-year recovery timeframe.

b. Dr. Sheppard Failed to Apply Well-Established Economic Methods

39. As discussed below, New York fails to rebut Entergy and NRC Staff criticisms that establish that Dr. Sheppards $1.07 billion calculation is not a reasonable estimate for the amount property values might increase under the no-action alternative.126

40. First, the record demonstrates that Dr. Sheppard failed to appropriately define his so-called event that forms the basis for his most recent opinion (i.e., IP2 and IP3 commencing commercial operations). As Dr. Tolley noted, Dr. Sheppards event does not account for anticipatory effects resulting from the fact that plans and construction for IP2 and IP3 were publicized well before Dr. Sheppards 1974 to 1976 event period.127 Nor does Dr. Sheppards event account for the fact that IP1 had already begun operations before plans for IP2 and IP3 were even announced.128 Dr. Sheppard himself acknowledged that property value changes occur 125 Entergy Supplemental Testimony at 21 (A25) (ENT000592).

126 See New York Proposed Findings § V.G.

127 Entergy Testimony at 124-125 (A152-53) (ENT000132).

128 Id. at 51 (A77), 125 (A153); see also M. Folsom, 2d Atom Generator Planned by Con Ed, N.Y. Times, Oct. 30, 1965 (ENT000152) (Buchanan later discovered [in the 1960s] that the plant was paying most of its taxes, so much so that the village could quadruple the one-man police force, build sewers and put in other improvements.).

at the moment that buyers and sellers in the marketplace become aware of new information.129 This means that if IP2 and IP3 operations were expected to have a disamenity effect, then buyers would have accounted for such an effect once Indian Points expansion plans were first reported in the 1960smany years before Dr. Sheppards 1974 to 1976 event.130 Similarly, any property value impact resulting from physical changes to the environment would have taken place years before Dr. Sheppards event.131

41. Second, and just as problematic, Dr. Sheppard did not properly account for other socioeconomic factors unrelated to Indian Points operations. As Dr. Tolley testified, any difference between the treatment and control group could reasonably be associated with numerous other confounding events and other socioeconomic factors unrelated to Indian Points operations (e.g., the oil embargo and the associated 1973 to 1975 recession).132 New Yorks claim that Dr. Sheppard controlled such factors (e.g., high interest rates)133 is unsubstantiated and contradicted by Dr. Tolleys testimony.134 On the one hand, Dr. Sheppard offered speculation that such factors might equally impact the treatment and control group.135 On the other, Dr. Tolley offered data demonstrating that the characteristics of Dr. Sheppards data make this implausible.136 129 Dec. 2011 Sheppard Report at 3 (NYSR00231).

130 Entergy Testimony at 124-125 (A152-53) (ENT000132).

131 See Section II.C supra.

132 See Entergy Testimony at 128 (158) (ENT000132).

133 See New York Proposed Findings at 46 (¶ 136).

134 Entergy Testimony at 128 (158) (ENT000132); Tolley Report at 39 (ENT000144).

135 Oct. 22, 2012 Tr. at 2563:11-2564:1 (Sheppard).

136 See Tolley Report at 39 (ENT000144) (indicating that Dr. Sheppards control group was much more heavily weighted toward the post-1999 period than the treatment group observations). Moreover, as Dr. Tolley testified, Dr. Sheppards approach also introduced undefined measurement error. Oct. 22, 2012 Tr. at 2588:15-25 (Tolley).

42. Third, New York claims that Dr. Sheppards focus on the 1974 to 1976 period constituted a narrow sample period that eliminates other potential explanations for his results.137 Contrary to Dr. Sheppards claimed focus on the 1974 to 1976 period, however, Dr. Sheppards sample contained sales from 1945 to 2009.138 As Dr. Tolley made clear, during this period, vast changes occurred that affect property values.139 As such, New York and Dr. Sheppard ask too much in claiming that the Board should accept that the rate of return difference in the control and treatment groups was due only to IP2 and IP3 commencing operations.140

43. Fourth, New York ignores Dr. Tolleys testimony demonstrating that Dr. Sheppards control group unjustifiably biased his results.141 The home price index New York included in its findings clearly shows that returns are not constant from year to year and would necessarily be higher in later years (when most of control group sales took place) due to the steep rise in home prices.142 New York also concedes that the treatment group had longer holding periods.143 Dr. Tolleys testimony convincingly shows that these factorswhich are unrelated to Indian Pointcaused the difference between Dr. Sheppards treatment and control groups, and thus shows that Dr. Sheppard used an invalid control group.144

44. Finally, Dr. Tolleys testimony demonstrates that Dr. Sheppards sample incorrectly included numerous non-residential and non-market transactions.145 New York never 137 See New York Proposed Findings at 54-55 (¶ 150).

138 New York Testimony at 27:5-6 (NYSR00224).

139 Tolley Report at 38-42 (ENT000144).

140 See New York Proposed Findings at 53-55 (¶¶ 148-50).

141 See Entergy Proposed Findings at 55-58 (¶¶ 154-61).

142 See New York Proposed Findings at 82-86 (¶ 148).

143 See id. at 54 (¶ 148 n.6).

144 Tolley Report at 38-42, 50-51 (ENT000144); Entergy Supplemental Testimony at 25-26 (A32) (ENT000592).

145 See Entergy Proposed Findings at 86-89 (¶¶ 162-67).

mentions Dr. Tolley testimony on this issue and, as a result, New York incorrectly claims that Dr. Sheppard only included residential arms length sales.146 The record, however, does not support that claim. Dr. Sheppards revised analysis prepared shortly before the hearing still contained a significant number of observationsroughly ten percent of the observations used in his final analysisthat should not have been included in his data set.147 This high error rate provides the Board with yet another reason to conclude that Dr. Sheppards analysis is unreliable.

45. In summary, New Yorks Proposed Findings fail to adequately refute the numerous reasonable criticisms of Dr. Sheppards $1.07 billion estimate, which individually and taken together, seriously undermine the validity of Dr. Sheppards analysis. Based on the record as a whole, the Board should not credit Dr. Sheppards $1.07 billion estimate as a reliable or reasonable estimate of Indian Points impact on nearby property values.148

2. Dr. Tolleys Property Value Impact Assessments Are Reasonable

46. As discussed above, Dr. Tolley performed two hedonic regressions analysisone that used the MLS data set he assembled, and a second that used the same Assessor data set that Dr. Sheppard assembled and used for his repeat-sales analysis.149 New York does not challenge 146 New York Proposed Findings at 48-49 (¶¶ 139-40).

147 See Oct. 22, 2012 Tr. at 2702:4-8 (Sheppard).

148 New York incorrectly claims that Dr. Tolley criticized Dr. Sheppards December 2011 analysis for not accounting for renters. New York Proposed Findings at 76-77 (¶¶ 208-09). Dr. Tolleys prefiled direct testimony makes clear that he was criticizing Dr. Sheppards earlier reports, not the December 2011 report.

See Entergy Testimony at 90-91 (A117) (ENT000132); Tolley Report at 30 (ENT000144) (located in Section

4. Criticism of Dr. Sheppards 2007 Report). It did not become apparent until later that Dr. Sheppard abandoned his earlier reports, making it unnecessary for the Board to address these criticisms of Dr.

Sheppards earlier reports. See New York Rebuttal Testimony (NYS000434) (failing to address criticisms of Dr. Sheppards earlier reports); Oct. 22, 2012 Tr. at 2571:17-21 (Sheppard) (agreeing with Judge Wardwells statement that the Board should focus only on the fifth analysis that [Dr. Sheppard] ran). Nevertheless, the Board should take into account the unexplained changes in several of Dr. Sheppards opinions and theories.

149 Entergy Supplemental Testimony at 3 (A6) (ENT000592); Tolley Report at 15-22, 48-50 (ENT000144);

Entergy Testimony at 70-78, 129-131 (ENT000132).

Dr. Tolleys hedonic analysis using Dr. Sheppards Assessor data, even though that analysis provides no support for New Yorks theory that Indian Point operations adversely impact property values.150 Instead, New York criticizes Dr. Tolleys MLS hedonic analysis because, according to New York, Dr. Tolley: (1) improperly dismissed findings suggesting that Indian Point is a disamenity; (2) used too small a sample; (3) used asking price rather than sales price; (4) treated the rail station variable improperly; and (5) did not use a control group and focused on too narrow a timeframe.151 As discussed below, the complete record of the proceeding including Dr. Tolleys Assessor hedonic analysis and his responses to New Yorks criticisms of the MLS hedonic analysisrefutes New Yorks property value claims.

a. Dr. Tolleys Hedonic Analysis Using Dr. Sheppards Assessor Data Does Not Support New Yorks Theory That Indian Point Adversely Impact Property Values

47. As noted above, New Yorks Proposed Findings fail to address Dr. Tolleys hedonic analysis using Dr. Sheppards own data. Dr. Tolley testified that the Assessor data set provided no statistically-significant evidence that Indian Point adversely impacted property values.152 Dr. Tolley also indicated that the results for almost all of the other variables were highly statistically significant and reflected the expected statistical relationships (e.g., sales prices were higher for newer homes than older homes and were higher for single family homes than condominiums or townhouses, etc.).153 Importantly, Dr. Tolley also found that Entergys 150 Entergy Testimony at 130-131 (A162) (ENT000132); Tolley Report at 49-50 (ENT000144); Entergy Supplemental Testimony at 5-6 (A8), 15 (A19) (ENT000592).

151 New York Proposed Findings at 59-62 (¶¶ 167-72).

152 Entergy Testimony at 130-131 (A162) (ENT000132).

153 Id. at 78 (A106).

PILOT distributions have a statistically-significant positive impact on property values.154 New York fails to discussmuch less disputeany of these conclusions.

48. New Yorks only reference to the Assessor data hedonic analysis is to justify why Dr. Sheppard decided not to perform such an analysis.155 New York concedes that hedonic analysis offers a relevant perspective, but overstates the difficulty in performing such an analysis with Dr. Sheppards data set.156 New York offered only two reasons why Dr. Sheppard elected not to perform such an analysis: (1) it was not possible to obtain a sufficiently large sample including sales from before Indian Point was builtto use the hedonic approach with a proper control group; and (2) there might be ambiguity about other nearby disamenities that could also impact property values.157

49. Both of these reasons ring hollow and do not undermine Dr. Tolleys hedonic analysis using Dr. Sheppards own data. First, a hedonic analysis does not require either a control group or sales before Indian Point was built, and there was a sufficiently large sample size of Assessor data for Dr. Tolley to perform such an analysis.158 Second, although Dr. Sheppard noted another nearby disamenity might cause the Assessor results to incorrectly identify an adverse Indian Point impact, he never established that such a problem actually existed with this data set.159 To the contrary, using Dr. Sheppards Assessor data set, Dr. Tolley found that Indian Point was not a statistically-significant disamenity.160 Thus, Dr. Tolleys hedonic regression using Dr. Sheppards Assessor data set establishes that there is no reasonable basis to 154 Tolley Report at 49 (ENT000144); Entergy Supplemental Testimony at 5-6 (A8) (ENT000592).

155 New York Proposed Findings at 52 (¶ 146), 65 (¶ 178).

156 See id. at 58-59 (¶ 163).

157 See id. at 59 (¶¶ 165-66).

158 See Entergy Proposed Findings at 90 (¶ 170), 92 (¶ 174), 105-06 (¶¶ 197-200).

159 See Oct. 22, 2012 Tr. 2557:21-2558.2 (Sheppard).

160 See Entergy Proposed Findings at 93-95 (¶¶176-77), 100 (¶ 187).

conclude that Indian Point depresses property values.

b. Dr. Tolleys MLS Hedonic Analysis Does Not Suggest That Indian Point Adversely Impacts Property Values

50. New York erroneously argues that Dr. Tolley willingly dismissed and ignored that his MLS hedonic analysis shows that Indian Point adversely impacts property values.161 According to New York, Dr. Tolley did not deny that Dr. Sheppard correctly translated his concession that the facility depresses property values of all houses, near or far.162 Nothing could be further from the truth. As discussed below, New York inexplicably ignores Dr. Tolleys oral and written supplemental testimony clearly and convincingly refuting Dr. Sheppards claim that the MLS hedonic analysis shows that Indian Point adversely impacts property values.163

51. Quadratic Functional Form. New York argues that Dr. Tolley misinterpreted the MLS quadratic functional form results, which Dr. Sheppard claims show that Indian Point becomes an increasingly-strong disamenity the farther one moves away from the facility.164 As an initial matter, Dr. Tolley is one of the foremost experts in his field and there is no credible basis for asserting that he somehow misinterpreted his own data. To the contrary, Dr. Tolley refuted this claim.165 Dr. Tolley convincingly demonstrated that an unobserved variable is likely the cause for this anomalous result and Dr. Sheppard himself conceded that this is a possibility.166 In addition, Dr. Tolley also refuted New Yorks claim about the MLS quadratic 161 See New York Proposed Findings at 62-63 (¶ 173), 66-74 (¶¶179-201).

162 Id. at 68 (¶ 187) (emphasis added).

163 See Entergy Proposed Findings at 96-104 (¶¶ 180-96).

164 New York Proposed Findings at 66-68 (¶¶ 180-87), 69-70 (¶ 190), 70 (¶ 193).

165 Entergy Proposed Findings at 98-100 (¶¶ 183-87).

166 See Oct. 22, 2012 Tr. at 2595:20-2596:16 (Tolley); Entergy Supplemental Testimony at 12-13 (A16)

(ENT000592); Entergy Testimony at 76 (A104) (ENT000132); Tolley Report at 75-76 (ENT000144); Oct. 22, form through testimony indicating that the quadratic functional form is not statistically significant when applied to Dr. Sheppards Assessor data.167 Thus, the quadratic functional form does not support New Yorks claim.

52. Square Root of Distance Functional Form. New York claims that the square root of distance functional form is an alternative functional form that Dr. Tolley should have considered and that shows that property values increase as you move farther away from Indian Point.168 Contrary to New Yorks argument, Dr. Tolley gave two reasons why the square root of distance results do not support New Yorks claim that Indian Point has an adverse property value impact.169 First, as Dr. Tolley explained, and as Dr. Sheppard should understand, the square root of distance functional form is a highly-unusual functional form that is not part of a well-established, state-of-the-practice economic analysis.170 Second, the MLS square root of distance results are inconsistent with the Assessor square root of distance results, which provide no evidence that Indian Point has significant negative impacts on property values.171

53. Square of Distance Functional Form. New York argues that the square of distance functional form is another alternative functional form that Dr. Tolley should have considered and that shows that property values increase as you move farther away from Indian Point.172 Notwithstanding New Yorks one-sided recitation of the hearing record, Dr. Tolley demonstrated that it would be illogical and contrary to common sense and economic theory to 2012 Tr. 2557:21-2558:2 (Sheppard); New York Proposed Findings at 59 (¶ 166) (noting that there are other nearby disamenities).

167 Entergy Supplemental Testimony at 13-14 (A17) (ENT000592); Entergy Testimony at 130-131 (A162)

(ENT000132); Tolley Report at 49-50 (ENT000144).

168 New York Proposed Findings at 69-70 (¶¶ 190-92), 72-73 (¶¶ 196-99).

169 Entergy Proposed Findings at 100-02 (¶¶ 188-91).

170 Oct. 22, 2012 Tr. at 2607:21-2610:12 (Tolley).

171 Entergy Supplemental Testimony at 5-6 (A8) (ENT000592).

172 New York Proposed Findings at 68 (¶ 184), 69 (¶ 188).

find that the MLS square of distance functional form results suggest Indian Point adversely impacts property values because the disamenitys strength should not increase the farther a property is from the plant.173 This is especially true since New York cites noise, traffic, and aesthetics as the purported cause of the disamenity, none of which would affect property values more than a short distance from the Indian Point site, and certainly do not get worse at increasing distances.

54. Linear Distance Functional Form. New York claims that the linear functional form is another alternative functional form that Dr. Tolley should have considered.174 Contrary to New Yorks argument, Dr. Tolley showed that the linear form is inappropriate in this case because the strength of any distance impact would decrease at greater distances.175 Accordingly, it would be unreasonable to interpret those results as supporting New Yorks claim.

c. Dr. Tolleys MLS Analysis Sample Size Was Appropriate

55. New York claims that Dr. Tolleys MLS hedonic analysis was flawed because the sample size was too small.176 The record, however, shows that Dr. Tolleys sample size was sufficiently large for the Board to consider and rely upon his work.177 As Dr. Tolley explained, any statistical analysis contains some uncertainty.178 For that reason, the Board should judge this 173 Entergy Proposed Findings at 102 (¶¶ 192-93).

174 New York Proposed Findings at 69-70 (¶ 190).

175 See Entergy Supplemental Testimony at 15-16 (A20) (ENT000592); see also Clark et al., Nuclear Power Plants and Residential Housing Prices, 28 Growth and Change 496, 503 (Sept. 1997) (NYS000236)

(Nonlinear forms are preferred on theoretical grounds.). Additionally, the linear distance term is not statistically significant when included in the quadratic form, rather than treated as a standalone form, which suggests that the linear term only becomes statistically significant because it is picking up the omitted squared terms effect (i.e., when the squared term is eliminated, the squared terms effect is hidden and erroneously attributed to the linear term). See Entergy Proposed Findings at 103-04 (¶ 195).

176 New York Proposed Findings at 59-60 (¶¶ 167-68), 65 (¶ 178).

177 See Entergy Proposed Findings at 105-06 (¶¶ 197-200).

178 Oct. 22, 2012 Tr. at 2592:15-25 (Tolley).

analysiss reliability using statistical measures such as standard error coefficients.179 New York does not dispute that Table 1 in Dr. Tolleys expert report provided these measures for his MLS regression.180 Nor does New York dispute that Dr. Tolleys sample size was sufficient to provide statistically-significant results for most relevant explanatory variables.181

56. New York also incorrectly claims that Dr. Sheppards repeat-sales sample included 1500 properties182 when, in fact, Dr. Sheppards repeat-sale analysis involved approximately the same number of individual properties as Dr. Tolleys hedonic analysis.183 Moreover, Dr. Sheppards opinion on this issue is undermined by the fact that, earlier in this proceeding, he relied heavily on a 1974 study involving an Illinois coal plant that had half as many observations as Dr. Tolleys hedonic analysis.184 For these reasons, Dr. Tolleys sample size was sufficiently large for this Board to consider and rely upon his work.

d. Dr. Tolleys Use of Asking Price Rather Than Sales Price in the MLS Analysis Was Valid

57. New York claims that Dr. Tolleys MLS hedonic analysis is flawed because it used asking price rather than sales price.185 New York bases this argument on the assertion that sellers list their homes higher than the actual sales price. Nothing in the record, however, demonstrates that asking prices are biased in a manner that invalidates Dr. Tolleys MLS regression results.186 179 Entergy Proposed Findings at 105 (¶ 198).

180 Tolley Report at 17 (ENT000144).

181 Entergy Proposed Findings at 105 (¶ 198).

182 New York Proposed Findings at 45 (¶ 132).

183 See Entergy Proposed Findings at 106 (¶ 199).

184 See id. at 106 (¶ 200).

185 New York Proposed Findings at 61 (¶ 170).

186 Entergy Proposed Finding at 107 (¶ 202).

58. Furthermore, this criticism is inapplicable to Dr. Tolleys Assessor hedonic analysis, which used sales, not asking prices.187 The Assessor analysis, like the MLS analysis, failed to support New Yorks theory that Indian Point operations adversely impact property values.188

e. Dr. Tolleys Treatment of the Rail Station Variable in the MLS Analysis Was Reasonable

59. New York argues that Dr. Tolley should have included both distance from the rail station and the square of distance from the rail station in his MLS regression.189 New York, however, points to no reason why this alternative functional form for the rail station is preferable to the one Dr. Tolley selected.190 To the contrary, Dr. Tolley testified that the linear distance functional form is widely used in cases where travel costs are important191 and Dr. Sheppard appeared to agree.192 Further, New York provided no evidence that adding a quadratic distance rail station variable materially alters Dr. Tolleys ultimate conclusion about Indian Point.193 Thus, Dr. Tolleys linear distance variable for rail stations is based on sound economic theory and New Yorks criticism about the rail station functional form is immaterial.

f. Hedonic Analysis Requires No Control Group or Event Window

60. New York argues that Dr. Tolleys MLS hedonic analysis failed to include a 187 Tolley Report at 48-50 (ENT000144).

188 Id. at 50.

189 New York Proposed Findings at 61-62 (¶ 172).

190 Id.

191 Entergy Supplemental Testimony at 15 (A20) (ENT000592).

192 Oct. 22, 2012 Tr. at 2669:6-12, 2682:11-16 (Sheppard).

193 Dr. Sheppard testified that including both the distance and the square of the distance from the nearest rail station reveals that both distance and the square of distance from the rail station are statistically significant.

New York Rebuttal Testimony at 33:1-3 (NYS000434) (emphasis added). Notably, he did not testify that including both the distance and the square of the distance from the nearest rail station reveals that both distance and the square of distance from Indian Point are statistically significant.

proper control group and focused on too narrow a timeframe.194 Contrary to New Yorks assertion, the record shows that hedonic regression analysis does not require a control group, an event, or a representative time period.195 Instead, hedonic modeling uses statistical regression analysis to estimate property value impacts by controlling for other housing characteristics that also impact property values.196 Numerous hedonic studies in the recordincluding studies on which Dr. Sheppard reliedillustrate that the hedonic technique does not require a control group or identifying an event.197

3. Even Assuming Dr. Sheppards $1.07 Billion Increase The No-Action Alternative Would Result in a Net Negative Property Value Impact Compared to License Renewal

61. New York fails to directly address the fundamental argument by Entergy and the NRC Staff that Dr. Sheppard presented a $1.07 billion post-operations property value rebound estimate, but never compared the impacts of the no-action alternative with license renewal impacts, leaving Dr. Sheppards analysis fundamentally incomplete.198 As Dr. Tolley explained, to conduct such a comparison requires that the Board consider the difference in the discounted net present value of property values changes under the no-action alternative and the license renewal alternative.199 Dr. Tolley testified that any reasonable comparison between the no-action alternative and license renewal must: (1) apply a horizon cut-off or discount rate to sensibly compare benefits and costs that occur in different time periods; (2) account for when the alleged 194 New York Proposed Findings at 60 (¶ 169), 61 (¶ 171).

195 Oct. 22, 2012 Tr. at 2598:18-23 (Tolley); see also Entergy Proposed Findings at 90 (¶ 170), 92 (¶ 174).

196 Tolley Report at 9 (ENT000144).

197 See, e.g., B. Prest, Measuring the Externalities of Nuclear Power: A Hedonic Study, unpublished thesis, Williams College (2009) (NYS000232); D. Clark and L. Nieves, An Interregional Hedonic Analysis of Noxious Facility Impacts on Local Wages and Property Values, 27 Journal of Environmental Economics and Management 235 (1994) (NYS000235). See also New York Direct Testimony at 5:4-17 (NYSR00224).

198 Oct. 22, 2012 Tr. at 2565:9-16 (Sheppard) (leaving it to the Board, or whomever to compare the no-action alternative to license renewal).

199 Entergy Testimony at 97 (A123) (ENT000132); Oct. 22, 2012 Tr. at 2630:6-2631:24 (Tolley).

property value change would happen under each scenario; and (3) account for differences in PILOT payments and property taxes under each scenario.200 As discussed below, New Yorks Proposed Findings largely ignore or obfuscate the significance of these issues.

a. Discount Rate

62. New York dismisses the importance of discount rates and simply argues that Dr. Sheppard applied no discount rate in his final report because he used the actual change in house prices in the broader region as a basis for estimating the impact of removing the IPEC disamenity and evaluated the impact as of a particular date (January 2011).201 This confusing explanation avoids the fundamental nature of this issue.

63. As Dr. Tolley made clear, using a discount rate in the evaluation of future scenarios is economically necessary to properly weigh the costs and benefits of a proposed action when these costs and benefits accrue in the future or at different points in time.202 In this case, that is important for two reasons. First, it allows one to compare Dr. Sheppards alleged property value recovery under the no-action alternative with the alleged recovery under the license renewal alternative (which would be delayed by twenty years). Second, it allows one to compare the loss of PILOT payments under the no-action alternative with the loss of PILOT payments under the license renewal (which would be delayed by twenty years).

64. Dr. Sheppard acknowledged that he did not apply a discount rate and instead asserted that his $1.07 billion gain merely provided an input that the Board can consider when comparing the no-action alternative and license renewal.203 Specifically, Dr. Sheppard testified that his study only provides an estimate of the dollar value magnitude of property value 200 Entergy Testimony at 97 (A123) (ENT000132); Oct. 22, 2012 Tr. at 2630:6-2631:24 (Tolley).

201 New York Proposed Findings at 76 (¶ 207).

202 Entergy Testimony at 97 (A123) (ENT000132).

203 See Oct. 22, 2012 Tr. at 2565:9-20, 2638:21-2639:17 (Sheppard).

recovery that can be expected after cessation of operations but that the the Board, or whomever can consider the difference between getting $1 billion now, or getting $1 billion in 2015 versus getting $1 billion 20 years later.204 To properly consider the difference between the no-action alternative and license renewal, however, the Board would have to consider a discount rate.205 Thus, it appears that New York has simply shifted its burden on this issue to the Board206 and has failed to substantiate its assertion that no discount rate is necessary to compare the no-action alternative and license renewal.207

b. Property Value Increase Timeframe

65. Dr. Sheppard testified that the full $1.07 billion gain would be realized within about ten years after operations end, well before the plant would be decommissioned and the site reclaimed.208 New York, however, never mentions that Dr. Sheppards testimony was a significant departure from positions he took on three separate occasions in written reports filed with the Board, which identified the completion of site reclamation and decommissioning as the 204 Oct. 22, 2012 Tr. at 2565:9-16 (Sheppard).

205 As discussed in the following section, Dr. Sheppard provides no support that his $1.07 billion property value increase would take place within ten years after operations cease. Even so, a discount rate would still be necessary to put in present dollars a property value increase that takes place over a 10-year period and to compare that to an increase that license renewal delays by twenty years.

206 See New York Proposed Findings at 58 (¶ 162).

207 New Yorks claim that Dr. Tolley confused the discount rate discussion in Dr. Sheppards 2009 report with Dr. Sheppards failure to use a discount rate in his December 2011 report is contrary to the hearing record. To support this argument, New York cites Dr. Tolleys prefiled testimony plainly criticizing Dr. Sheppards earlier (January 2011) report for applying a four percent discount rate instead of a seven percent discount rate.

Entergy Testimony at 99 (A126-127) (ENT000132). It was not until later that Dr. Sheppard submitted prefiled rebuttal testimony conceding that a seven discount rate is appropriate and, at the hearing, emphasized that the Board should focus on his final analysis in his December 2011 report. See New York Proposed Finding at 76

(¶ 207 n.11). Thus, Dr. Tolley was not confused about Dr. Sheppards earlier report. Of importance here, Dr. Tolley criticized Dr. Sheppards December 2011 report for failing to apply any discount rate. Entergy Testimony at 111 (A140) (ENT000132); Tr. at 2660:8-24 (Tolley).

208 New York Proposed Finding at 2 (¶ 5).

trigger for any property value increase.209 In fact, Dr. Sheppard pointed to no data connecting any physical changes at Indian Point to his 10-year timeframe and otherwise failed to substantiate that timeframe as the period for any potential property value recovery.210 As such, Dr. Sheppards 10-year assumption is entitled to no weight.

66. In contrast to Dr. Sheppards speculation, Entergys and NRC Staffs decommissioning experts established that a 60-year decommissioning timeframe constitutes a reasonable assumption for how long it would take for site reclamation and restoration to occur.211 As Dr. Tolley testified, any disamenity impact must therefore be discounted over the 60-year decommissioning period because no beneficial use of the site could occur and any purported disamenity impacts from Indian Point would remain, at least in part, for decades.212

67. In summary, based on the entire record, Dr. Sheppard failed to justify his 10-year recovery period, whereas the 60-year decommissioning constitutes a more reasonable assumption for considering the timeframe for any potential property value increase.

c. PILOT and Property Tax Payments

68. New York does not dispute that Entergys PILOT payments currently represent a significant portion of local government revenues.213 Instead, New York claims that Dr. Sheppard need not explicitly consider PILOT payments because: (1) his repeat-sales analysis implicitly 209 See New York Proposed Findings at 55 (¶ 153) (conceding that decommissioning of IPEC and reclamation of the site is what would generate Dr. Sheppards billion property value increase); see also Entergy Proposed Findings at 112-13 (¶ 214), 114-15 (¶ 217).

210 Oct. 22, 2012 Tr. at 2640:11-25 (Sheppard).

211 NRC Staff Testimony at 19-22 (A.24-A.25) (NRCR00081); Entergy Testimony at 94-96 (A122)

(ENT000132).

212 Entergy Testimony at 97-99 (A123-A128) (ENT000132); Oct. 22, 2012 Tr. at 2630:2-10, 2658:15-2659:17 (Tolley). Notwithstanding New Yorks claim to the contrary, see New York Proposed Findings at 27 (¶ 86),

NRCs initial approval of Entergys 60-year decommissioning period is not at issue in this proceeding. In any event even if decommissioning were to occur earlier, there is no evidence in the record that this would or even could occur within ten years.

213 FSEIS at 4-46 (NYS00133B); Declaration of Cory Gruntz at 2-4 (Nov. 21, 2012) (ENT000591).

accounted for PILOT distribution impacts on property values; and (2) Dr. Tolleys separate hedonic analysis on the different, MLS data set showed that PILOT payments have a statistically insignificant impact on property values.214 Both arguments lack merit.215

69. First, New Yorks claim that Dr. Sheppard implicitly accounts for PILOT payments ignores Dr. Tolleys rationale for explicitly including PILOT payments. Namely, Dr. Sheppards $1.07 billion impact estimate presumably accounted for net property value impacts (i.e., positive PILOT impacts minus disamenity impacts). However, any comparison between license renewal and the no-action alternative must account for the fact that PILOT distributions will significantly decrease far earlier than when property owners would realize any alleged property value increase associated with Indian Points decommissioning.216 New York does not dispute that while PILOT and tax payments would remain relatively unchanged under license renewal, those payments would decrease significantly once operations cease.217 Accordingly, New York has no basis to dispute that explicitly including PILOT payments calculations in the no-action alternative and license renewal comparison, as suggested by Dr. Tolley, is necessary to account for this difference when one compares the two.

70. Second, contrary to New Yorks claim, Dr. Tolley did not reject actual site-specific evidence on the flimsy ground that it is contrary to the body of received public finance literature on this point.218 To be sure, Dr. Tolley relied on decades of experience and established economic theory to support his view that PILOT payments have an effect on property 214 New York Proposed Findings at 74-75 (¶¶ 203-04); see also id. at 55-56 (¶¶ 154-56).

215 See Entergy Proposed Findings at 82-83 (¶¶ 222-23).

216 See Entergy Testimony at 103-06 (A132) (ENT000132).

217 See id. at 102-03 (A131).

218 New York Proposed Finding at 75 (¶ 206).

values.219 However, in addition to this established economic literature, Dr. Tolley also considered all of the evidence, including the site-specific statistically-significant results he developed using Dr. Sheppards own data, which Dr. Sheppard did not dispute.220 Thus, based on the entire record, it is clear that the no-action alternative and license renewal comparison should recognize, and take account of, differences in PILOT and property tax payments.221

d. Comparing the No-Action Alternative to License Renewal

71. Aside from the issues discussed above, New York does not dispute Dr. Tolleys calculations or conclusion that the no-action alternative would have a net negative impact on property values compared to license renewal if one accounts for discount rates, a 60-year decommissioning period, and differences in PILOT distributions. Thus, to the extent New York claims that the FSEIS did not adequately address a LARGE positive property value impact, the record shows that no such impact exists.222 F. New Yorks Future Positive Offsite Land-Use Impacts Are Remote and Speculative

72. At its core, NYS-17B is about property value-driven offsite land-use impacts, not simply property value changes (a purely economic phenomenon, standing alone).223 New York, however, incorrectly claims that it is undisputed that property values determine land use.224 Based on Dr. Sheppards testimony, New York asserts that [o]ne cannot understand the land use consequences of a decision or public policy without careful analysis of how the decision or 219 See id. at 75 (¶ 205); Entergy Proposed Finding at 117-18 (¶ 223).

220 Tolley Report at 49 (ENT000144); Entergy Supplemental Testimony at 5-6 (A8) (ENT000592).

221 Mr. Clearys testimony is not inconsistent with this conclusion as suggested by New York. See New York Proposed Findings at 75 (¶ 206). Consistent with the FSEIS, Mr. Cleary testified that population levels and land use conditions in the Town of Cortlandt, Village of Buchanan, and Westchester County have not changed significantly since Entergy started making payments to local jurisdictions. Entergy Testimony at 58 (A84)

(ENT000132). Mr. Cleary was discussing land-use impacts, not property value impacts, which he and Dr.

Tolley indicated cannot be equated in the broad-brushed manner suggested by Dr. Sheppard. Id. at 49 (A74).

Further, Mr. Clearys statement says nothing about the importance of PILOT payments under the no-action alternative.

222 See Entergy Testimony at 111-13 (A141) (ENT000132).

policy will affect house prices and property values.225 As support for this claim, New York quotes a book co-authored by Dr. Tolley, which states that the same things that influence house price also determine location patterns . . . city size and migration.226 New York also claims that the severity of the nationwide recession resulting from the 2007 housing market collapse illustrates that the no-action alternative would have LARGE positive land-use impacts.227

73. The record demonstrates that, even assuming the no-action alternative would eventually cause surrounding property values to increase, such an increase would not drive any reasonably foreseeable offsite land-use impacts.228 Dr. Sheppard provided no supporting analysis of particular future land-use development or changes. He only vaguely equated land-use impacts with his alleged property value impacts.229 Similarly, Dr. Sheppards reference to the national recession is just as vague and provides nothing that could assist the NRC in evaluating any potential land-use impacts.230 Further, at best, the quote from Dr. Tolleys book cited by New York says only that property values and land use are influenced by the same thingsnot that property value changes directly cause land-use impacts.231 Nor does that quote mention the magnitude of any land-use impacts. Thus, even if there were a property value increase under the no-action alternativean outcome that Dr. Tolley disputedthe quote from Dr. Tolley is entirely consistent with the conclusion that land-use impacts would, at most, be SMALL. As 223 See Indian Point, LBP-08-13, 68 NRC at 114-16.

224 New York Proposed Finding at 24-25 (¶ 79) (emphasis added); see also id. at 30 (¶ 95), 77 (¶¶ 210-11).

225 Id. at 24-25 (¶ 79).

226 Id.

227 Id. at 56-57 (¶¶ 157-59).

228 Entergy Proposed Findings at 119-23 (¶¶ 226-33).

229 New York Direct Testimony at 40:1-10 (NYSR00224).

230 Id. at 40:12-23 (NYSR00224).

231 New York Rebuttal Testimony at 8:13-18 (NYS000434).

such, it provides no support for New Yorks overly simplistic assertion that it is appropriate to equate property value impacts with offsite land-use impacts.

74. In addition, New Yorks argument that a property value impact assessment is central to a land-use evaluation is directly contrary to how New York itself evaluates land use under the New York State equivalent of NEPA. In the recent State Environmental Quality Review Act (SEQRA)232 FEIS for the Cricket Valley natural-gas plant, the New York State Department of Environmental Conservation (NYSDEC) reached conclusions consistent with those taken by Entergy and the NRC Staff in this proceeding.233 In the Cricket Valley FEIS, NYSDEC stated that there is no clear, consistent correlation between power plant location and reduced property values.234 Further, NYSDEC performed no quantitative or site-specific property value impact analysis, nor did it mention property value changes in its discussion of land-use impacts.235 Instead, the Cricket Valley FEIS land-use evaluation focused on historic land-use patterns, current land-use regulations and zoning ordinances, and tax rates and incentivesthe same issues addressed by Entergy and the NRC Staff.236 Once again, New Yorks position appears to be do as I say, not as I do.237

75. Entergy and NRC Staff testimony, along with the Indian Point-specific study included in the GEIS and more recent information in local land-use plans included in the record, undermines New Yorks claim that there are unexamined non-speculative and significant offsite 232 SEQRA is the New York State-level counterpart of NEPA. See Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d 400, 415, 494 N.E.2d 429, 434 (1986) (noting SEQRA is modeled after NEPA).

233 New York State Department of Environmental Conservation, Final Environmental Impact Statement, Cricket Valley Energy Project - Dover, NY at 6-67 to -68 (NRC000165).

234 Id. at 6-68 (noting that property values are driven by a myriad of factors which include externalities such as the quality of school systems, property taxes, and community services).

235 See id. at 6-1 to -2, 6-67 to -68.

236 See id. at 6-1 to -2.

237 See Entergys Proposed Findings of Fact and Conclusions of Law for Contention NYS-37 Energy Alternatives at 70-71 (¶ 128) (Mar. 22, 2013), available at ADAMS Accession No. ML13081A744.

land-use impacts under the no-action alternative.238 New York, however, never cites, let alone analyzes, the land-use plans from the jurisdictions directly surrounding Indian Point, including the Village of Buchanan (ENTR00137), the Town of Cortlandt (ENT000138), or Westchester County (ENT000139). As such, New York ignores that for significant offsite land-use changes to occur, numerous uncertain future steps by unknown third parties would have to take place, including zoning changes, shutting down other nearby industrial facilities along the Hudson River, and then developing the surrounding properties.239 Because such long-term, significant future land-use changes are both contrary to historic development patterns and current local land-use plans, such possible changes are remote and speculative and thus need not be considered under NEPA.240 III. CONCLUSION

76. For the foregoing reasons, and those expressed in the NRC Staffs and Entergys Proposed Findings, the NRC Staff and Entergy carried their respective burdens of proof, and, based on the entire evidentiary record of this proceeding, the NRC has satisfied its NEPA obligations under 10 C.F.R. Part 51 with respect to NYS-17B. In summary, the preponderance of the evidence shows that New Yorks alleged property value changes are not the result of any physical impact to the environment actually caused by Indian Point and, even if they were, the no-action alternative would not cause a substantial increase in property values. The preponderance of the evidence also shows that even assuming the no-action alternative would 238 See New York Proposed Findings § V.E.

239 Entergy Testimony at 60 (A87) (ENT000132).

240 See Socy Hill Towers Assn, 210 F.3d at 182 (NEPA does not require consideration of merely contemplated future actions or development that is unlikely or difficult to anticipate.); see also Natural Res. Def. Council

v. Callaway, 524 F.2d 79, 93 (1975) (holding that NEPA does not require consideration of significant changes in governmental policy or legislation); Shasta Res. Council v. U.S. Dept of Interior, 629 F. Supp. 2d 1045, 1059-60 (E.D. Cal. 2009) (holding that agency did not err by failing to consider alternative that would have required legislative appropriation of additional funds because chances of additional appropriations were remote and speculative).

eventually cause surrounding property values to increase, such an increase would not drive any reasonably foreseeable offsite land-use impacts. Nothing in New Yorks Proposed Findings alters these fundamental conclusions. The Board should therefore resolve NYS-17B in favor of the NRC Staff and Entergy.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

William B. Glew, Jr., Esq. Kathryn M. Sutton, Esq.

William C. Dennis, Esq. Paul M. Bessette, Esq.

ENTERGY SERVICES, INC. Jonathan M. Rund, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, NW Phone: (914) 272-3202 Washington, DC 20004 Fax: (914) 272-3205 Phone: (202) 739-3000 E-mail: wglew@entergy.com Fax: (202) 739-3001 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: jrund@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 3rd day of May 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) May 3, 2013 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, copies of Entergys Reply to New York State Proposed Findings of Fact and Conclusions of Law For Contention NYS-17B (Property Values) were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.

Signed (electronically) by Lance A. Escher Lance A. Escher, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5080 Fax: (202) 739-3001 E-mail: lescher@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

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