ML13123A445

Entergys Reply to New York States Proposed Findings of Fact and Conclusions of Law for Contention NYS-16B (Severe Accident Mitigation Alternatives Analysis Population Estimate)

ML13123A445
Person / Time
Site:	Indian Point
Issue date:	05/03/2013
From:	O'Neill M 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, NYS-16B
Download: ML13123A445 (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 STATES PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-16B (SEVERE ACCIDENT MITIGATION ALTERNATIVES ANALYSIS POPULATION ESTIMATE)

William B. Glew, Jr., Esq.

Kathryn M. Sutton, Esq.

William C. Dennis, Esq.

Paul M. Bessette, Esq.

Entergy Nuclear Operations, Inc.

MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, N.W.

White Plains, NY 10601 Washington, D.C. 20004 Phone: (914) 272-3202 Phone: (202) 739-5738 Fax: (914) 272-3205 Fax: (202) 739-3001 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com Martin J. ONeill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

TABLE OF CONTENTS Page

- i -

I.

INTRODUCTION................................................................................................ 1 II.

REPLY TO NEW YORKS FACTUAL FINDINGS AND LEGAL CONCLUSIONS.................................................................................................. 4 A.

Legal Standards................................................................................................... 4

1.

SAMA Analyses Performed Under NEPA................................................. 4

2.

The Boards Decision Can Supplement or Amend the FSEIS................... 6

3.

Contentions NYS-16B and NYS-12C Should be Evaluated Separately.. 13

4.

Entergy Shares in the Burden of Demonstrating that Its Population Estimate Is Reasonable............................................................................. 15

5.

New York Bears the Burden of Identifying a Material Deficiency in the IPEC SAMA Analysis.............................................................................. 16 B.

Entergys and the NRC Staffs Witnesses Are Well-Qualified to Testify About Entergys 2035 Population Estimate........................................ 17 C.

Development of the 2000 Resident Population Estimate................................ 20 D.

Entergy and the NRC Staff Reasonably Relied on 2000 U.S. Census Data Without Making Adjustments for Census Undercount.................... 23

1.

There is No Regulatory Requirement to Use Data That Has Been Adjusted for Census Undercount.......................................................... 23

2.

Dr. Sheppard Relied on Unreliable Data in Estimating the Alleged Undercounted IPEC Region Population............................................... 24 E.

Entergy Appropriately and Conservatively Accounted for Relevant Transient Populations in the 50-Mile SAMA Analysis Region...................... 29

1.

A SAMA Analysis Does Not Require Accounting for a Maximum or Peak Population................................................................................................. 29

2.

Entergy Characterized Its Transient Population Consistent with Industry Guidance and Included Additional Transients for Additional Conservatism...................................................................................................... 31

3.

Entergy Incorporated Additional Conservatisms that Sufficiently Account for the Presence of Commuters in the Region.................................. 32

4.

Even If It Were Appropriate to Include Commuters, Dr. Sheppard Substantially Overestimated the Number of Commuters Within the Region.................................................................................................................. 35

TABLE OF CONTENTS (continued)

Page

- ii-F.

None of New Yorks Arguments, Even if Accepted as Valid, Could Credibly Alter the IPEC SAMA Analysis Conclusions Regarding Which SAMA Candidates are Potentially Cost-Beneficial to Implement........................................................................................................... 39 III.

CONCLUSION.................................................................................................. 45

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

Docket Nos. 50-247-LR and

)

50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.

)

)

(Indian Point Nuclear Generating Units 2 and 3)

)

)

May 3, 2013 ENTERGYS REPLY TO NEW YORK STATES PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONTENTION NYS-16B (SEVERE ACCIDENT MITIGATION ALTERNATIVES ANALYSIS POPULATION ESTIMATE)

Pursuant to the Atomic Safety and Licensing Boards (Board) February 28, 2013 Order,1 Entergy Nuclear Operations, Inc. (Entergy) submits its Reply to New York States (New York) Proposed Findings of Fact and Conclusions of Law on Contention NYS-16B, which challenges the adequacy of the year 2035 population estimate used as an input to the severe accident mitigation alternatives (SAMA) analysis submitted by Entergy as part of the license renewal application (LRA) for Indian Point Energy Center (IPEC or Indian Point) Units 2 and 3 (IP2 and IP3). This Reply is based on the evidentiary record in this proceeding and is 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 1

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

(unpublished).

2 Contention NYS-16B,2 which relates to Entergys and the NRC Staffs compliance with the National Environmental Policy Act (NEPA),3 as implemented by the NRCs 10 C.F.R. Part 51 regulations. NYS-16B alleges that the NRC Staffs December 2010 final supplemental environmental impact statement (FSEIS) for IPEC license renewal is legally deficient because it accepts a SAMA analysis predicated on inaccurate population estimates.4

2.

In developing its population estimate for the SAMA analysis region, Entergy used officially published Census 2000 data. One of the few issues that the parties all agree on is that the Census 2000 data provide an appropriate starting point for Entergys population estimate.5 Most of the issues raised in this contention, however, remain in dispute.

3.

With respect to these disputed issues, New Yorks Proposed Findings make broad assertions that lack evidentiary support, fail to acknowledge contrary testimony or evidence, mischaracterize the record, and raise a new (unsupported) challenge to the other parties expert witness qualifications. For example, one of New Yorks arguments is that commuters should be 2

Entergys Proposed Findings of Fact and Conclusions of Law for Contention NYS-16B (SAMA Population Estimate) (Mar. 22, 2013) (Entergy Proposed Findings), available at ADAMS Accession No. ML13081A763; NRC Staffs Proposed Findings of Fact and Conclusions of Law Part 6: Contention NYS-16B (SAMA Analysis Population Estimate) (Mar. 22, 2013) (NRC Staff Proposed Findings), available at ADAMS Accession No. ML13081A717; State of New Yorks Proposed Findings of Fact and Conclusions of Law for Contention NYS-16/16A/16B (NYS-16B) (Mar. 22, 2013) (New York Proposed Findings), available at ADAMS Accession No. ML13081A769.

3 42 U.S.C. § 4321 et seq. (2006).

4 State of New York Initial Statement of Position Contention NYS-16/16A/16B (NYS-16B) at 14 (Dec. 16, 2011) (New York Position Statement) (NYS000206); NUREG-1437, Supp. 38, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report, (Dec. 2010) (FSEIS) (NYS00133A-J).

5 See Testimony of Entergy Witnesses Lori Potts, Kevin OKula, Grant Teagarden, and Jerry Riggs on Consolidated Contention NYS-16B (Severe Accident Mitigation Alternative Analysis) at 32 (A64) (Mar. 28, 2012) (Entergy Testimony) (ENT000003); NRC Staff Testimony of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones, and Donald G. Harrison Concerning NYS Contentions NYS 12/16 at 96 (A88) (Mar. 30, 2012) (NRC Staff Testimony) (NRC000041); Rebuttal Testimony of Dr. Stephen Sheppard, Ph.D Regarding Contention NYS-16/16A/16B (NYS-16B) at 17:10-15 (June 29, 2012) (New York Rebuttal Testimony) (NYS000404);

Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2407:20-2408:1 (Sheppard),

2408:4-9 (Teagarden, Jones) (Oct. 22, 2012) (Oct. 22, 2012 Tr.).

3 included in the population estimate because they will contribute to the cost of a severe accident.6 As discussed below, in support of this argument, New York selectively quotes and cites to NRC Staff and Entergy witness testimony but fails to acknowledge NRC Staff and Entergy testimony (appearing in the same response and even the same sentence) that explains why commuters need not be included in the population estimate.

4.

As discussed below, the record shows that Entergy reasonably and appropriately relied upon published 2000 U.S. Census Bureau datadata that were not adjusted for any purported census undercount or overcount. Federal, state, and local agencies (including New York itself) commonly rely upon published, unadjusted census data in assessments performed to comply with their legal or regulatory obligations. In addition, the documents that Dr. Sheppard relied upon to support his census undercount argument contain conclusions that have been discredited and superseded by more recent U.S. Census Bureau documentation that Dr. Sheppard failed to acknowledge in either his testimony or report. The more recent documentation actually indicates that the 2000 census data relied upon by Entergy slightly overcounted the total population.

5.

The record also shows that Entergy appropriately accounted for relevant transient populations in the 50-mile region and reasonably did not include commuters in its transient population estimate. As an initial matter, Entergys population estimate already includes a number of conservatisms that sufficiently account for the presence of commuters in the region. Moreover, in terms of modeling the costs associated with population dose and offsite economic losses, because the MACCS2 code treats all persons included in the modeled 50-mile SAMA analysis domain as permanent residents, the code already overestimates the costs associated with the transient portion of the population. Adding another set of overestimated costs associated with 6

New York Proposed Findings at 54 (¶ 127).

4 commuters would not represent a best estimate, as a SAMA analysis is intended to be.

However, if it were appropriate to consider commuters in the transient population, a best estimate analysis would have to take into account true daily commuters (and not double-count business travelers) and permanent residents that commute to work outside of the 50-mile SAMA analysis region, rather than a worst-case analysis that includes the hypothetical maximum number of commuters possible during a weekday rush hour.

6.

Finally, the record shows that Entergys sensitivity analyses demonstrate that neither New Yorks census undercount argument nor its commuter argument, even if they were accepted as valid, could credibly alter the IPEC SAMA analysis conclusions regarding which SAMA candidates are potentially cost-beneficial to implement. The record does not support any of New Yorks challenges to Entergys sensitivity analyses conclusions.

7.

For the reasons discussed below and in Entergys Proposed Findings, the Board should find that the NRC Staff and Entergy have carried their respective burdens of proof, and that, based on the entire record of this proceeding, the NRC Staff has satisfied its NEPA obligations under 10 C.F.R. Part 51. Nothing in New Yorks Proposed Findings alters this fundamental conclusion. The Board should therefore resolve NYS-16B in favor of the NRC Staff and Entergy.

II.

REPLY TO NEW YORKS FACTUAL FINDINGS AND LEGAL CONCLUSIONS A.

Legal Standards

1.

SAMA Analyses Performed Under NEPA

8.

As explained in Entergys Proposed Findings, under NEPA, the Board must apply a rule of reason in determining whether the NRC Staff took the requisite hard look at the

5 proposed actions environmental impacts and alternatives.7 As the Commission explained in Pilgrim, NEPA does not require agencies to use the best scientific methodology, and NEPA should be construed in the light of reason if it is not to demand virtually infinite study and resources.8 The Commission clarified that an environmental impact statement is not intended to be a research document, reflecting the frontiers of scientific methodology, studies and data.9 Nor does NEPA require agencies to use technologies and methodologies that are still emerging and under development, or to study phenomena for which there are not yet standard methods of measurement or analysis.10 In short, the Commission explained, NEPA allows agencies to select their own methodology as long as that methodology is reasonable.11

9.

A SAMA analysis is a site-specific environmental mitigation analysis performed under NEPA that identifies additional mitigation measuresi.e., procedural or hardware changesthat may be cost-beneficial to implement at a nuclear power plant to further reduce the already very low risk (probability or consequences) of a severe accident.12 Contrary to New Yorks assertion,13 SAMA analyses do not represent the NRCs NEPA analysis of potential severe 7

New York Natural Res. Def. Council v. Kleppe, 429 U.S. 1307, 1311 (1976); see also Dept of Transp. v. Pub.

Citizen, 541 U.S. 752, 767-69 (2004) (rule of reason is inherent in NEPA and its implementing regulations); see also Entergy Proposed Findings at 36-40 (¶¶ 70-77) (discussing legal standards applicable to SAMA analyses performed under NEPA).

8 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 315 (2010) (citation omitted).

9 Id.

10 Id.

11 Id. at 316.

12 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, slip. op. at 27 (Mar. 8, 2012).

13 See New York Proposed Findings at 67 (¶ 159) (The only site-specific analysis of severe accidents at Indian Pointand the only way NRC complies with Limerick Ecologys mandateis the SAMA analysis that is taking place in this proceeding.).

6 accident impacts.14 Rather, those impacts are analyzed generically for the industry in the NRCs Generic Environmental Impact Statement (GEIS) for license renewal.15 The GEIS also provides the technical basis for the Commissions conclusion in 10 C.F.R. Part 51 that the probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants.16

10.

As a mitigation analysis, a SAMA analysis is not based on either the best-case or the worst-case accident scenarios.17 Rather, a SAMA analysis estimates mean accident consequence values (both offsite population dose and economic costs), which are averaged over many hypothetical severe accident scenarios and over the examined 50-mile radius region surrounding the plant.18

2.

The Boards Decision Can Supplement or Amend the FSEIS

11.

As a threshold legal issue, New York incorrectly claims that the Boards decision cannot supplement or amend the FSEIS based on the hearing record.19 According to New York, supplementing or amending the FSEIS through the Boards initial decision is contrary to NEPA 14 A severe accident is a beyond design-basis accident involving multiple failures of equipment or function, whose likelihood is generally lower than that design-basis accidents but where consequences may be higher. NUREG-1437, Vols. 1 and 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants at Vol. 1 at 5-1 (May 1996) (GEIS) (NYS00131C).

15 GEIS (NYS00131A-C); see also Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC __, slip op. at 6 (June 7, 2012) ([A]lthough our rules require that potential severe accident mitigation alternatives be considered for license renewal, no site-specific severe accident impacts analysis need be done.).

16 GEIS at 5-115 (NYS000131C) (emphasis added).

17 Pilgrim, CLI-12-15, slip op. at 5.

18 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC __, slip op. at 20 (Feb. 9, 2012). Specifically, [t]he analysis uses the mean values of the accident consequence distributions for each accident category. These mean values are multiplied by the estimated frequency of the accident to determine population dose risk and offsite economic cost risk for each release category studied. Id. (citation omitted).

19 See New York Proposed Findings at 82 (¶ 192).

7 and the NRCs NEPA regulations.20 As discussed below, this argument ignores binding precedent and, if adopted, would likely establish an indefinite cycle of litigation over the FSEISs adequacy.

12.

New Yorks assertion that the FSEIS cannot be supplemented or revised based on the hearing record ignores binding Commission precedent.21 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.22 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.23

13.

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 an [FSEIS] precludes any suggestion that post hoc supplementation by the Board might be available to cure deficiencies in the challenged FSEIS.24 The Limerick Appeal Board rejected this argument in ALAB-819.25 In that case, an intervenor argued, like New York does here, that 20 See id. at 82-85 (¶¶ 192-196).

21 See Entergy Proposed Findings at 43-45 (¶¶ 84-88).

22 See id.

23 See, e.g., Hydro Res. Inc. (P.O. 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 51, 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).

24 New York Proposed Findings at 78-79 (¶ 187).

25 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

8 the Commissions decision not to 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.26 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.27 Further, the Appeal Board noted that nothing in current 10 C.F.R. § 51.102 precludes modification of an [FSEIS] by licensing board decision.28

14.

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.29 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.30 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 Board. See Entergy Nuclear Operations, Inc. (James L. FitzPatrick Nuclear Power Plant), CLI-08-19, 68 NRC 251, 260 n.23 (2008); Sequoyah Fuels Corp. (Gore, OK, site), CLI-94-11, 40 NRC 55, 59 n.2 (1994).

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

27 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 80-81(¶ 190).

28 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. See New York Proposed Findings at 86-87 (¶ 201). 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. Pt. 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.

29 New York Proposed Findings at 86 (¶ 200).

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

9 adjudicatory decision to supplement or amend an FSEIS.31 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 the 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.32

15.

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 involving other agencies.33 But the U.S. Courts of Appeals, across multiple circuits, have consistently upheld the NRCs practice as consistent with the Atomic Energy Act34 and NEPA.35 New York 31 See Entergy Proposed Findings at 43-44 (¶¶ 84-86) (citing Nuclear Innovation North Am. 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., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-04, 53 NRC 31, 53 (2001); Pilgrim, CLI 01, slip op. at 30; 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 85, 86

(¶¶ 198, 200) & n.18. 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. 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 86 n.18.

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

33 Appeals Boards have readily distinguished these cases, holding that they are inapplicable to the NRC hearing process. See Entergy Proposed Findings at 46-48 (¶¶ 90-95). 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).

34 Nuclear Info. & Res. Serv., 509 F.3d at 562, 568 (holding that supplementing an EIS through the hearing record does not violate the Atomic Energy Act).

10 attempts to dismiss some of these cases as inapplicable because they were decided under a superseded version of 10 C.F.R. § 51.52.36 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.37

16.

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,38 but these cases are readily distinguished because 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 on Entergys license renewal application. In contrast, in Pennaco Energy v. U.S.

Dept of Interior, the post hoc 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.39 35 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).

36 See New York Proposed Findings at 87, n.19-20.

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

38 See, e.g., New York Proposed Findings at 82-83 (¶¶ 193-194).

39 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 appear to 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 [Bureau of Land Management] hard look, those materials, in this case, present unresolved water quality issues.) (emphasis added); see also id. at 177

11

17.

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.40 First, in arguing that it would be unclear which part of the record the Board decision was relying upon to cure any NEPA deficiency,41 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 Staff42 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.43 Third, the Commission has already rejected the argument that supplementation is inconsistent with NEPAs public participation process because the hearing process allows for greater public participation than NEPA otherwise requires.44 Fourth, contrary to New Yorks argument, NEPA (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 ([W]hile 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 [Finding of No Significant Impact]).

40 See New York Proposed Findings at 87-88 (¶ 203) (arguing that supplementation would be fraught with problems).

41 Id.

42 Id.

43 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).

44 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 88 (¶ 204). 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.

12 does not preclude supplementation because it would mean that all the pertinent environmental information would no longer appear in one document.45

18.

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 FSEISeven if fully documented in the hearing recorddoes not require the publication of an FSEIS supplement for comment and subsequent hearing opportunity. 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.46 It would also undermine NEPAs ultimate purpose, which is not better documents but better decisions.47

19.

In summary, this adjudicatory proceeding is not immune to or 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.48 As discussed below and detailed in Entergys and the NRC Staffs Proposed Findings, to the extent any further NEPA analysis is required beyond the FSEIS, there is ample information in the record from which the Board can draw to supplement the FSEIS 45 New York Proposed Findings at 87-88 (¶ 203). 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).

46 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).

47 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.).

48 See New York Proposed Findings at 85 (¶ 198).

13

3.

Contentions NYS-16B and NYS-12C Should be Evaluated Separately

20.

New York also contends that, because Contentions NYS-16B and NYS-12C both concern inputs to the MACCS2 code, they must be viewed together.49 Although the cases cited by New York demonstrate that the Board may, in its discretion, choose to consider or discuss related contentions together for efficiency, they certainly do not require the Board to do so. In the Catawba proceeding, for example, the licensing board in that case elected to view seven contentions that shared overlapping factual and technical questions together.50 The Catawba board reframed and consolidated the contentions and then admitted two consolidated contentions at the contention admissibility stage.51 Similarly, the Midland licensing board order cited by New York discussed the admissibility of three related contentions together for efficiency, but the board admitted them as three separate contentions.52 The licensing board in Nine Mile Point also considered two contentions relating to the need for power and energy conservation that were closely related.53 As the board in that proceeding explained, it could not assess energy conservation measures as an alternative to the proposed action without assessing them in light of their ramifications on the need for power.54

21.

Here, NYS-16B and NYS-12C are only superficially related in that they both involve challenges to the IPEC SAMA analysis and certain inputs to the MACCS2 code used by Entergy to perform the offsite consequences portion of its SAMA analysis, but the similarities end 49 New York Proposed Findings at 77 (¶ 183) (emphasis added).

50 Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), LBP-04-4, 59 NRC 129, 149 (2004).

51 Id. at 166-67.

52 Consumers Power Co. (Midland Plant, Units 1 and 2), LBP-82-63, 16 NRC 571, 584 (1982).

53 Niagara Mohawk Power Corp. (Nine Mile Point, Unit 2), LBP-74-43, 7 AEC 1046, 1079 (1974).

54 Id.

14 there. NYS-12C and NYS-16B raise two distinct challengesseparately pled by New York and supported by two different experts (Dr. François Lemay and Dr. Stephen Sheppard), separately admitted by the Board, and separately addressed during the October 2012 hearings. NYS-16B, as has been discussed, challenges the FSEIS because it accepts a SAMA analysis predicated on inaccurate population estimates.55 NYS-16B challenges no other inputs to Entergys SAMA analysis. On the other hand, NYS-12C particularly focuses on the decontamination cost and decontamination time values used by Entergy as inputs to the MACCS2 code.56 There is no overlap or interrelationship between the two contentions in terms of the code inputs being challenged, the sources of those input values, or the methodology used to develop the values.

Notably, New York did not assert that NYS-12C and NYS-16B must be evaluated together until it made its June 2012 rebuttal filingsin an attempt to rebut Entergys sensitivity analysis that showed that New Yorks suggested population increases for NYS-16B would have no material effect on the SAMA analysis.57 As discussed further in paragraph 75 below, in making this argument, New York effectively concedes that NYS-16B does not independently identify an alleged deficiency that plausibly could alter the SAMA analysis cost-benefit conclusions material way.

22.

Accordingly, there is no legal requirement or factual or technical basis for the Board to consider Contentions NYS-16B and NYS-12C together. The Board can, and should, continue to adjudicate the contentions separately.

55 New York Position Statement at 14 (NYS000206).

56 See Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2054:23-2055:4 (Lemay)

(Oct. 17, 2012).

57 See G. Teagarden, Population Sensitivity for NYS-16 Incorporating Census Undercount and Commuters (Jan. 14, 2012) (MACCS2 Population Sensitivity Case 1) (ENT000006).

15

4.

Entergy Shares in the Burden of Demonstrating that Its Population Estimate Is Reasonable

23.

New York asserts that, [w]hile the applicant can participate in the adjudicatory proceeding and advocate that the Staff complied with its NEPA obligations, the compliance obligations remain with the NRC Staff alone.58 According to New York, [p]ost-hoc analyses conducted by the applicants witnesses cannot substitute for the hard look required by Staff, nor can they meet Staffs burden of showing that the FSEIS complies with NEPA.59

24.

Although it is true that the NRC Staff ultimately bears the burden of complying with NEPA, as noted in Entergys Proposed Findings, if the applicant becomes a proponent of a challenged position set forth in the environmental impact statement, the applicant also has the burden on that matter.60 Here, the NRC Staff, after conducting its own independent analysis to confirm the reasonableness of Entergys methodology and population projection, relied on Entergys 2035 population estimate in the IPEC FSEIS.61 As a proponent of the reasonableness of the population estimate, Entergy, also shares in the burden of its demonstration.

25.

Consequently, it is appropriate for the NRC Staff and the Board to consider and rely upon the sensitivity analyses and revised commuter analysis prepared by Entergys witnesses in direct response to New Yorks challenges as further confirmation that Entergys estimate is reasonable.

58 New York Proposed Findings at 16 (¶ 36).

59 Id.

60 Entergy Proposed Findings at 41-42 (¶¶ 80-81); see also La. Energy Servs., L.P. (Claiborne Enrichment Ctr.),

LBP-96-25, 44 NRC 331, 338-39 (1996) (citing Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-471, 7 NRC 477, 489 n.8 (1978), revd on other grounds, CLI-97-15, 46 NRC 294 (1997)).

61 See Entergy Proposed Findings at 65, 69-70 (¶¶ 129, 136-38) (summarizing the NRC Staffs independent and supplemental analyses); see also NRC Staff Proposed Findings at 21-22 (¶¶ 6.41-6.44) (summarizing same).

16

5.

New York Bears the Burden of Identifying a Material Deficiency in the IPEC SAMA Analysis

26.

Commission precedent makes clear that, in the context of a contention that challenges an applicants SAMA analysis:

The ultimate concern here is whether any additional SAMA should have been identified as potentially cost-beneficial, not whether further analysis may refine the details in the SAMA NEPA analysis.62

27.

In a subsequent decision in the same Pilgrim license renewal proceeding (CLI 11), the Commission clarified that, [u]nless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis, whose goal is only to determine what safety enhancements are cost-effective to implement.63 Notwithstanding the binding effect of this precedent on this Board, New York challenges the Commissions conclusions, asserting that the quoted passage from the Pilgrim CLI-10-11 decision does not cite any legal support for this proposition; nor could it, because the standard under NEPA is not materiality.64 In other words, New York asserts that the Commissions Pilgrim decision is wrong as a matter of law. According to New York, [u]nder the correct NEPA standard, the issue is whether an FSEIS that omits 1.2 million individuals from the population estimate qualifies as a reasonably adequate compilation of relevant information that can provide the basis for an informed evaluation or a reasoned decision.65 62 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 533 (2009) (citation omitted) (emphasis added).

63 Pilgrim, CLI-10-11, 71 NRC at 317 (emphasis added).

64 New York Proposed Findings at 75-76 (¶ 179).

65 Id. at 76 (¶ 180) (quoting Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011, 1029-30 (2d.

Cir. 1983)).

17

28.

Contrary to New Yorks suggestion, the Commissions materiality requirement is not mutually exclusive of the requirement that the FSEIS be a reasonably adequate compilation of relevant information. Both requirements apply. As the Commission explained in the Davis Besse license renewal proceeding, the proper question is not whether there are plausible alternative choices for use in the [SAMA] analysis, but whether the analysis that was done is reasonable under NEPA, and to contest an application, a petitioner must point with support to an asserted deficiency that renders the SAMA analysis unreasonable under NEPA.66 In other words, to show that a SAMA analysis is unreasonable under NEPA, an intervenor must point, with support, to a material deficiency in the analysis. Thus, [c]ontentions challenging a SAMA analysis therefore must identify a deficiency that plausibly could alter the overall result of the analysis in a material way.67 As discussed below, New York has not carried its burden.

B.

Entergys and the NRC Staffs Witnesses Are Well-Qualified to Testify About Entergys 2035 Population Estimate

29.

At the outset, New York challenges the qualifications of Entergy witnesses Ms.

Potts, Mr. Teagarden, and Dr. OKula, asserting that they lack expertise in analyzing demographic data to accurately estimate future populations.68 New York acknowledges Mr.

Riggs experience in demographic analysis and future population estimates, but counters that his expertise pales in comparison to that of Dr. Sheppard.69 Similarly, New York asserts that all four NRC Staff witnesses lack training in economics, sociology, human geography, regional 66 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-08, 75 NRC __, slip op. at 17-18 (Mar. 27, 2012) (quoting Seabrook, CLI-12-5, slip op. at 28-29).

67 Pilgrim, CLI-12-15, slip op. at 13 (emphasis added).

68 New York Proposed Findings at 22 (¶ 50).

69 Id.

18 commuting patterns, or census undercount.70 Accordingly, New York argues, Entergy and Staff witness testimony on these topics should be afforded little weight, and Dr. Sheppards testimony should prevail.71

30.

Even if it were true, as New York contends, that training in labor or urban economics, urban sociology, and human geography is needed to analyze demographic data,72 none of the parties expertsincluding Dr. Sheppardperformed any demographic data analysis that would require such training in the context of this contention. Entergys population estimate was based on published, widely-available census data and population projections out to 2030 (New York), 2025 (New Jersey), and 2020 (Connecticut and Pennsylvania), as reported by state and local entities. Using established mathematical techniques, Entergy extended those states projections to the year 2035.73 For purposes of the straightforward analysis of the alleged undercounted and commuter populations he prepared here, Dr. Sheppard did not take into consideration any economic and social forces that determine rates of migration, where populations live, and decisions about family size;74 nor did he consider age and demographic structure and the fertility behavior of the different populations.75 Rather, Dr. Sheppardlike the Entergy and Staff witnessesrelied solely on published data. As discussed further below, Dr.

70 Id. at 28 (¶ 61).

71 Id.; see also id. at 23-24 (¶¶ 52-53).

72 New York Proposed Findings at 23 (¶ 51).

73 See Entergy Proposed Findings at 63-66 (¶¶ 125-31) (discussing the development of Entergys 2035 population estimate).

74 New York Proposed Findings at 23 (¶ 51).

75 Id. at 58-59 (¶ 141). New York and Dr. Sheppard provided no reason to conclude that demographers working for the New York Statistical Information System, the New Jersey Department of Labor and Workforce Development, the Connecticut State Data Center and the Pennsylvania State Data Center did not consider economic and social forces that determine rates of migration, where populations live, decisions about family size, age and demographic structure, fertility behavior, etc. to create the states projections.

19 Sheppard used the Census Bureau commuter flow data to calculate the alleged commuter population in the IPEC region and data supplied by the U.S. Census Monitoring Board report to calculate the alleged undercounted population.76

31.

Moreover, NYS-16B is fundamentally a contention concerning the MACCS2 population input and the IPEC SAMA analysis. New York does not dispute that Entergy and NRC Staff witnesses have MACCS2 and SAMA analysis expertise.77 Nor does New York dispute that Dr. Sheppard lacks expertise in these areas.78

32.

Accordingly, the Board should find that all four Entergy witnessesMs. Potts, Mr.

Riggs, Mr. Teagarden, and Dr. OKulaand all four Staff witnessesDr. Bixler, Dr. Ghosh, Mr.

Jones, and Mr. Harrisonare qualified to testify as expert witnesses relative to the issues raised in NYS-16B.

33.

Significantly, Dr. Sheppard admitted that he does not have experience in the nuclear field, using the MACCS or MACCS2 computer codes, or performing SAMA analyses.79 He also stated that [t]he technical details of the use of the MACCS2 model in the SAMA analysis are not within [his] expertise,80 Therefore, it is inappropriate for Dr. Sheppard to opine about the reasonableness of a parameter input value when he does not understand how that input value is 76 See Report of Dr. Stephen C. Sheppard, Ph.D. in Support of Contention NYS-16/16A/16B (NYS-16B) at 4-5 (Dec. 16, 2011) (Sheppard Report) (NYS000209) (The U.S. Census Monitoring Board report provides estimated undercount rates for the states in the region surrounding IPEC that range from 0.52% to 4.49%.

Averaging the rates for various subgroups and rounding to the nearest percent gives 3% as a reasonable average percentage undercount.); id. at 6 (In order to estimate the number of commuters, I use data on county-to-county commuter flows in 2000 made available by the Census Bureau.).

77 See New York Proposed Findings at 23, 28 (¶¶ 50, 60).

78 See id. at 19-20 (¶ 43) (Dr. Sheppard does not have experience using the MACCS or MACCS2 computer codes, or performing SAMA analyses.).

79 Id.

80 New York Rebuttal Testimony at 37:12-13 (NYS000404); see also Oct. 22, 2012 Tr. at 2406:8-15 (Sheppard)

(agreeing that he has no expertise in SAMA analyses).

20 developed for use in MACCS2 and actually used by the code.81 At the very least, the Board should bear Dr. Sheppards self-acknowledged technical limitations in mind when weighing his testimony relative to that of Entergys and the Staffs MACCS2 experts.

C.

Development of the 2000 Resident Population Estimate

34.

As an initial matter, the parties agree that the Census 2000 data provide an appropriate starting point for the 2035 population estimate used in the IPEC SAMA analysis.82 However, New York contends that Entergys witnesses provided conflicting testimony on what data Entergy relied on in calculating the year 2000 resident (i.e.,permanent) population.83 According to New York, Entergys prefiled testimony states that Entergy used county-level population estimates from state and local governments to determine the 2000 permanent population, whereas Mr. Riggs hearing testimony indicates that Entergy used U.S. Census 2000 block-level data to determine the 2000 permanent population.84

35.

There is no conflict in Entergys testimony. New York confuses two different steps of the process by which Entergy estimated the 2035 population within the 50-mile SAMA analysis region. In short, Entergy used officially published U.S. Census 2000 block-level data to develop its baseline (year 2000) permanent population estimate for the SAMA analysis region.85 Entergy then used county-level projected population estimates obtained from state and local governments 81 See, e.g., Oct. 22, 2012 Tr. at 2428:8-11 (Sheppard) (It may well be -- and Im not an expert on the operation of the MACCS2 code -- the MACCS2 code has provisions for taking input of block or block group level data.).

82 See Entergy Testimony at 32 (A64) (ENT000003); NRC Staff Testimony at 96 (A88) (NRC000041); New York Rebuttal Testimony at 17:10-15 (NYS000404); Oct. 22, 2012 Tr. at 2407:20-2408:1 (Sheppard), 2408:4-9 (Teagarden, Jones).

83 New York Proposed Findings at 35 (¶ 77).

84 See id.

85 See Entergy Testimony at 32 (A64) (ENT000003); Enercon Services, Inc., Site Specific MACCS2 Input for Indian Point Energy Center, Rev. 1 at 1-1 to 1-3 (Dec. 1, 2009) (Enercon Report) (NYS000211); Oct. 22, 2012 Tr. at 2429:11-18, 2445:13-15 (Riggs); see also id. at 2447:19-21 (Teagarden).

21 to determine the projected (year 2035) population of each county.86 Finally, Entergy adjusted the county-level permanent population projection upward to account for the presence of the transient (business traveler and tourist) population.87 To be more specific, Entergy performed the following steps:

Estimation of Year 2000 Base Population for the 50-Mile Radius SAMA Analysis Region

• Entergy determined which counties are fully or partially within 50 miles of IPEC and defined land areas and their populations at the resolution of a census block.88

• Entergy overlaid the U.S. Census 2000 block-level data with the sector grid used in MACCS2, and apportioned the Census block populations into the sectors using a real weighting and summation.89 If a population within a census block was wholly encompassed by a sector, then Entergy assigned the entire population to that sector.90 For populations within a census block that overlapped multiple sectors, Entergy distributed the population into each sector proportionally.91 Specifically, Entergy determined the population proportions by weighting the partial geography of the block that overlapped the sector as a percentage of the total blocks area, and then assigning an equal percentage of the blocks population to that sector.92

• Once all blocks overlaid by a single sector were assigned their proportionate populations, Entergy summed those populations to produce a single population value for that sector.93 Entergy then summed all of the sectors to produce a baseline permanent population value for the year 2000 for the entire 50-mile SAMA analysis region.94 86 Entergy Testimony at 33 (A65) (ENT000003); Enercon Report at 2-1 to 2-2 (NYS000211); Oct. 22, 2012 Tr. at 2445:15-16 (Riggs) (The projection rate or the projection itself comes from the county data.); see also id. at 2447:22-2448:3 (Teagarden).

87 Entergy Testimony at 33 (A65) (ENT000003); Enercon Report at 2-2 to 2-5 (NYS000211);

88 See Entergy Testimony at 32 (A64) (ENT000003); Enercon Report at 1-1 to 1-3; Oct. 22, 2012 Tr. at 2429:11-13, 2441:6-10, 2444:12-17 (Riggs), 2455:20-21 (Bixler).

89 See Oct. 22, 2012 Tr. at 2429:11-16, 2441:21-24 (Riggs).

90 See id. at 2442:6-9 (Riggs), 2455:24-2456:2 (Bixler).

91 See id. at 2446:18-2447:5 (Riggs), 2456:2-6 (Bixler).

92 See id. at 2446:22-2447:1 (Riggs).

93 See id. at 2441:21-24, 2447:2-5 (Riggs) 94 See id. at 2429:17-18 (Riggs).

22 Projection of the 2000 Permanent Population to 2035

• Entergy used projected population estimates from state and local governments (which themselves were based on officially-reported U.S. Census data for the year 2000) to determine the projected population of each county.95 For each county, Entergy used the methods described in the Enercon Report to extrapolate the 2000 permanent population from the census data to 2035 permanent population values.96 Estimation of the 2035 Transient Population

• Entergy adjusted the county-level permanent population projection upward to account for the presence of transient (business traveler and tourist) populations.97 For each county, Entergy used state and local estimates of the transient population to estimate the ratio of the permanent-to-transient population in 2004.98 The year 2035 transient population was assumed to be the 2004 transient-to-permanent population ratio multiplied by the extrapolated 2035 permanent population.99

36.

Thus, Entergys witnesses provided sufficiently clear testimony on this point.

Accordingly, the Board should find that Entergy reasonably relied on U.S. Census 2000 block-level data in determining the year 2000 permanent population.100 The projected county-level population estimates obtained from state and local governments were used to calculate transient and projected populations for the year 2035not the baseline 2000 permanent population.

95 See Entergy Testimony at 33 (A65) (ENT000003) (citing Enercon Report at 2-1 (NYS000211)).

96 See id. (citing Enercon Report at 2-1 to -2 (NYS000211)).

97 See id. (citing Enercon Report at 2-2 to -5 (ENT000211)); FSEIS, Vol. 3, App. G at G-20 (NYS000133I).

98 See Entergy Testimony at 33 (A65) (ENT000005) (citing Enercon Report at 2-2 to -5 (ENT000211)).

99 See id. (citing Enercon Report at 2-5 (ENT000211); FSEIS, Vol. 3, App. G at G-20 (NYS000133I). Table 2 of Entergys prefiled testimony (as excerpted from the Enercon Report) presents these data on a county basis. See Entergy Testimony at 34 tbl. 2 (A65) (ENT000003).

100 Entergys methodology for projecting the 2000 population and developing the year 2035 population estimate also is described in its Proposed Findings at 64-66, 71-72 (¶¶ 128-31, 140-41).

23 D.

Entergy and the NRC Staff Reasonably Relied on 2000 U.S. Census Data Without Making Adjustments for Census Undercount

37.

New York continues to assert that Entergys population estimate is flawed because it does not account for census undercount.101 In particular, New York continues to stand by Dr.

Sheppards posited three percent as a reasonable average percentage undercount and based on that percentage, continues to assert that Entergy underestimated the 2035 population by 231,632 persons.102 According to New York, Entergys failure to account for census undercount caused Entergy to underestimate the costs of a severe accident in its SAMA analysis.103

38.

Entergy and the NRC Staff do not challenge Dr. Sheppards position that, as a general matter, census undercount can occur during the decennial census.104 As discussed below and in Entergys Proposed Findings, however, New Yorks argument that Entergys population estimate should be adjusted to account for census undercount is without basis.105

1.

There is No Regulatory Requirement to Use Data That Has Been Adjusted for Census Undercount

39.

As an initial matter, New York has not identified any regulation or other legal authority that requires the use of adjusted census data to account for census undercount in developing population estimates such as the one at issue in this contention, or for any other regulatory purpose. To the contrary, as Mr. Riggs testified, federal, state, and local governments 101 New York Proposed Findings at 48 (¶ 110).

102 See id. at 46-47 (¶¶ 104, 106).

103 Id. at 48 (¶ 111).

104 Oct. 22, 2012 Tr. at 2418:10-17 (Jones); id. at 2420:7-12 (Riggs).

105 New York points out in its Proposed Findings that NRC Staff witness Jones agreed that Entergy had underestimated its population by approximately one percent by failing to consider census undercount. New York Proposed Findings at 47-48 (¶ 107). But it fails to acknowledge Mr. Riggs contrary testimony on the same point

- that Entergy absolutely did not agree that the one percent undercount was valid. See Oct. 22, 2012 Tr. at 2418:18-21 (Riggs).

24 routinely use population data as they are reported by the U.S. Census Bureauwithout adjusting them for census undercount or overcountfor a variety of purposes.106 New York did not challenge any of the examples cited in Entergys testimony; nor did it identify contrary examples to counter Entergys testimony. In fact, New York itself has relied on published, unadjusted census data in support of its own position in this proceeding.107

40.

Accordingly, the Board should find that Entergy reasonably used published, unadjusted Census Bureau data in developing its population estimate.

2.

Dr. Sheppard Relied on Unreliable Data in Estimating the Alleged Undercounted IPEC Region Population

41.

As indicated in his initial testimony and report, Dr. Sheppard calculated that Entergy had underestimated the IPEC region population by 231,632 persons, assuming an overall estimated undercount of 1.11% in the region.108 In his rebuttal and hearing testimony, however, Dr. Sheppard focused on the 3% minority undercount figure, rather than the 1.11% overall undercount figure, as being the key component in his calculation of the undercounted IPEC region population.109 In response to Board questioning regarding how he derived the 3% undercount figure, Dr. Sheppard suggested at the hearing that he reviewed multiple sources of literature both in internal Census Bureau documents and in the published economics and demographic literature, established a range of estimated undercounts and averaged that range rounding to the nearest 106 Entergy Testimony at 42 (A79) (ENT000003); see also Entergy Proposed Findings at 75, 79 (¶ 147, 154)

(describing numerous examples of the usage of reported, unadjusted census data).

107 See, e.g., New York State Notice of Intention to Participate and Petition to Intervene at 164 n.37 (Nov. 30, 2007),

available at ADAMS Accession No. ML073400187 (citing U.S. Census Bureau, State and County QuickFacts, New York County, New York, available at http://quickfacts.census.gov/qfd/states/36/36061.html) (last accessed Jan. 30, 2012)) (The United States Census estimates that in 2006 Manhattans population was 1,611,581, over 40,000 more than Entergy asserts would be at risk 29 years later.).

108 Sheppard Report at 5, 8 (NYS000209).

109 See, e.g., New York Rebuttal Testimony at 23:3-10; Oct. 22, 2012 Tr. at 2417:1-20 (Sheppard).

25 percent of the average of estimated undercounts which came to three percent.110 However, as Dr.

Sheppard made clear in his prefiled testimony and expert report, the sole basis for his 3%

undercount figure was the U.S. Census Monitoring Board report (NYS000213):

The U.S. Census Monitoring Board report, Exh. NYS000213, provides estimated undercount rates for the states in the region surrounding IPEC that range from 0.52% to 4.49%. Averaging the rates and rounding to the nearest percent gives 3% as a reasonable average percentage undercount.111 Dr. Sheppard further explained that, [a]ssuming no undercount of the white population and applying this 3% undercount rate to the 2000 census figures for non-white population results in an overall estimated undercount of 1.11% in the IPEC region, slightly less than the 1.18% undercount estimated for the entire US.112

42.

At the hearing, Dr. Sheppard acknowledged that the U.S. Census Monitoring Board report was based on data from the Census Bureaus March 2001 Accuracy and Coverage Evaluation (A.C.E.).113 As Mr. Riggs explained, however, the Census Bureau discovered substantial errors in the March 2001 A.C.E. survey relied upon by Dr. Sheppard, and concluded that [t]he March 2001 A.C.E. estimates of Census 2000 coverage were determined to be unacceptable because A.C.E. failed to measure a significant number of erroneous census 110 Oct. 22, 2012 Tr. at 2417:14-19 (Sheppard).

111 Pre-Filed Written Testimony of Dr. Stephen Sheppard, Ph.D Regarding Contention NYS-16/16A/16B (NYS-16B) at 12:7-11 (Dec. 16, 2011) (New York Direct Testimony) (NYS000207); see also Sheppard Report at 5 (NYS000209) (stating the same). See also NRC Staff Testimony at 17 (A7) (NRC000041) (Dr. Sheppard develops this estimate by averaging values of.052% and 4.49% from Ex. NYS000213 (average is 3%)).

112 New York Direct Testimony at 12:11-16 (NYS000207); see also Sheppard Report at 5 (NYS000209) (stating the same).

113 See Oct. 22, 2012 Tr. at 2530:18-24 (Sheppard) (U.S. Census Monitoring Board report is based on A.C.E. I revisions).

26 enumerations.114 As reported by the Census Bureau, [t]he results of A.C.E. Revision II are substantially different from those of March 2001, changing the estimated net coverage of the total household population from a net undercount of 1.18 percent to a net overcount of 0.49 percent.115 In the A.C.E. Revision II Technical Assessment report, the Census Bureau also stated that the A.C.E. Revision II estimates are dramatically superior to the March 2001 A.C.E. estimates.116

43.

Neither New York nor Dr. Sheppard addressed or refuted these negative characterizations of the March 2001 A.C.E. estimates by the Census Bureau. Instead, Dr.

Sheppard and New York continue, without a rational explanation, to stand by the discredited March 2001 A.C.E. data upon which Dr. Sheppards proposed census undercount figure of 231,632 is based. In that regard, New York contends that [t]he A.C.E. Revision II did not supersede the original A.C.E. report, but instead confirmed that minority populations were undercounted in the 2000 census, citing a 1.84 percent net undercount for non-Hispanic Blacks.117

44.

New Yorks position is flawed for multiple reasons. First, as stated above, New York and Dr. Sheppard rely on March 2001 A.C.E. data that the Census Bureau has determined to be unacceptable.118

45.

Second, there is no clear evidentiary basis for Dr. Sheppards claims that A.C.E.

Revision II data essentially validate the 3% undercount figure that he assumed for the non-114 Entergy Testimony at 41 (A76) (ENT000003) (quoting A.C.E. Revision II Technical Assessment at 1 (Mar. 12, 2003 (A.C.E. Revision II Technical Assessment) (ENT000016)) (emphasis added).

115 Id. (quoting U.S. Census Bureau, Decision on Intercensal Population Estimates at 2 (Mar. 12, 2003)

(ENT000018)) (emphasis added); Oct. 22, 2012 Tr. at 2534:13-17 (Sheppard).

116 A.C.E. Revision II Technical Assessment at ii (ENT000016) (emphasis added).

117 New York Proposed Findings at 44 (¶ 95).

118 A.C.E. Revision II Technical Assessment at 1 (ENT000016).

27 white population in the IPEC region. In fact, Mr. Riggs testified that using the values cited by Dr. Sheppard,119 he calculated a net overcount of minorities within the IPEC SAMA analysis region.120 Furthermore, by his own admission, Dr. Sheppard focused only on the alleged undercount of the minority (non-white) populations within the SAMA analysis region.121 He simply disregarded what he called the hypothetical overcount of [the] predominately white population as controversial,122 despite the U.S. Census Bureaus representation that the A.C.E.

Revision II estimates are dramatically superior.123

46.

Third, as an economist with no expertise or experience in using MACCS2, Dr.

Sheppard overlooks the fact that MACCS2 does not differentiate between white and non-white populations within the 50-mile SAMA analysis region. As Mr. Teagarden noted, in MACCS2,

[a] person is a person, and is a resident.124 Here, Entergys baseline permanent population estimate is based on 2000 census data that slightly overcounted the total permanent population.

47.

Finally, the record shows that Dr. Sheppards estimated undercounteven if assumed to be correctwould not alter the SAMA analysis cost-benefit conclusions by resulting in the identification of an additional cost-beneficial SAMA. Dr. Sheppard calculated an overall estimated undercount of 1.2% in the 50-mile radial region for the year 2000, which equates to an underestimation of the 2035 population by 231,632 persons.125 Mr. Jones testified that this 119 See New York Rebuttal Testimony at 23:6-10 (NYS000404)).

120 Oct. 22, 2012 Tr. at 2420:14-2422:2 (Riggs).

121 Id. at 2422:19-2423:2 (Sheppard) (Im applying this undercount only to minority populations.).

122 Id. at 2423:3-9 (Sheppard) (And there is controversy amongst demographers, economists and sociologists about whether such an overcount could possibly be true.).

123 A.C.E. Revision II Technical Assessment at ii (ENT000016).

124 Oct. 22, 2012 Tr. at 2535:16-20 (Teagarden) (responding to the question, does MACCS2 differentiate between Hispanics, Asian-Americans, African-Americans, Caucasians, in any way?)

125 Sheppard Report at 8 (NYS000209).

28 approximately 1 percent increase would not affect the SAMA analysis conclusions.126 Dr.

OKula and Mr. Teagarden confirmed that conclusion through a MACCS2 sensitivity analysis,127 as discussed in Section IV.C.4 of Entergys Proposed Findings.128

48.

For the reasons stated here and in Entergys Proposed Findings,129 Entergy reasonably and appropriately relied upon published 2000 U.S. Census Bureau data. Notably, even after conducting two extensive studies to assess the results of the 2000 census (i.e., the March 2001 A.C.E. and A.C.E. Revision II), the Census Bureau decided not to adjust its 2000 census data for any undercount or overcount.130 Federal, state, and local agencies commonly rely upon published U.S. census data in assessments performed to comply with their legal or regulatory obligations. In addition, the documents that Dr. Sheppard relied upon contain conclusions regarding census undercount that have been discredited and superseded by more recent U.S.

Census Bureau documentation that Dr. Sheppard failed to acknowledge in either his testimony or 126 NRC Staff Testimony at 16-18 (A7) (NRC000041); see also Oct. 22, 2012 Tr. at 2418:1-9 (Jones) (We are down to a three percent undercount that results in 1.1 percent composite undercount. And there are fluctuations in the population on a daily basis such that when we start talking about values as low as one percent and I think today well talk about fractions of one percent in considerable amount and were just adding an artificial level of confidence to the data that were looking at.).

127 Entergy Testimony at 48-50 (A87-89) (ENT000003); see also Oct. 22, 2012 Tr. at 2516:14-18, 2516:24-2517:5 (Teagarden).

128 See Entergy Proposed Findings at 96-100 (¶¶ 188-97).

129 See Entergy Proposed Findings at 74-81 (¶¶ 145-57).

130 Entergy Testimony at 41-42 (A77) (ENT000003). Although Dr. Sheppard proposed conflicting theories for the agencys action, the Census Bureaus own documents speak for themselves. See e.g., U.S. Census Bureau, Decision on Intercensal Population Estimates at 1 (ENT000018) (Although A.C.E. Revision II represents a dramatic improvement from the March 2001 A.C.E. results, several technical concerns remain). At the hearing, Dr. Sheppard testified that the Census Bureau did propose adjustments to the 2000 census, but a court decided the census should not apply those adjustments, so none were applied due to the court order, not because of Census Bureau recommendations. Oct. 22, 2012 Tr. at 2534:20-2535:7 (Sheppard). In contrast, in his rebuttal testimony, Dr. Sheppard stated that [u]ltimately, the Census Bureau decided not to adjust the officially reported 2000 census figures. As I mentioned earlier the Census Bureau was working under strict deadlines to release final numbers. New York Rebuttal Testimony at 24:21-25:1 (NYS000404).

29 report. The more recent documentation actually indicates that the 2000 census data relied upon by Entergy slightly overcounted the total population.

E.

Entergy Appropriately and Conservatively Accounted for Relevant Transient Populations in the 50-Mile SAMA Analysis Region

49.

New York continues to assert that Entergys SAMA analysis underestimates the costs of a severe accident at IPEC also because Entergys population estimate does not include commuters.131 New York argues that Entergys transient population must include commuters, pursuant to NRC guidance on evacuation time estimates.132 New York further argues that it is appropriate to include commuters because commuters will contribute to the costs of a severe accident.133

1.

A SAMA Analysis Does Not Require Accounting for a Maximum or Peak Population

50.

A key principle that bears emphasis at the outset is that a SAMA analysis is not intended or required to be a hypothetical worst-case scenario that attempts to account for the maximum amount of people that could possibly be present within the 50-mile region at the same time, at any given hour, on any given day, as Dr. Sheppard and New York contend.134 Rather, as Mr. Teagarden and Dr. Ghosh testified, a SAMA analysis is a best-estimate analysis.135

51.

The relevant industry guidance for SAMA analyses is NEI-05-01, Rev. A, which provides:

131 New York Proposed Findings at 57 (¶ 137).

132 Id. at 49 (¶ 113-14).

133 Id. at 54 (¶ 127).

134 Pilgrim, CLI-12-15, slip op. at 5.

135 See Oct. 22, 2012 Tr. at 2460:18-19 (Teagarden) ([W]e seek for the SAMA analysis to pursue a best estimate approach.); see id. at 2462:11-12 (Ghosh) (The goal is to do a best estimate analysis.).

30 Typically, with increasing population, the predicted population is estimated for a year within the second half of the period of extended operation. Extrapolation to a later date, and therefore a larger population, adds conservatism to the analysis. Of course, if a population reduction is projected extrapolation to an earlier date would be more reasonable.136 Dr. Sheppard interprets this passage as suggesting that a licensee prepare a conservative population estimate,137 which he equates to a peak population that includes the most people who could be at risk in a typical 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> cyclefor example, during a typical rush hour, when commuters who reside inside and outside of the 50 mile zone may be crossing paths inside of the zone.138

52.

Contrary to Dr. Sheppards interpretation, NEI 05-01 nowhere states that the SAMA analysis must or should use a conservative population estimate that accounts for a peak commuter population. Nor does it mention using a peak population. Rather, as Mr.

Teagarden and Dr. Ghosh explained, because a postulated accident could occur on any day during the twenty-year period of extended operation, it is reasonable to use a best estimate approach that reflects an average value for the entire twenty-year period.139 As such, there is no basis in that document for Dr. Sheppards suggestion that anyone who enters the 50-mile region during a given 24-hour period should be included in the population estimate. Accordingly, the Board should find that Entergy is not required to account for a maximum or peak population in its population estimate for purposes of its SAMA analysis.

136 NEI-05-01, Rev. A, Severe Accident Mitigation Alternatives (SAMA) Analysis, Guidance Document at 13 (Nov.

2005) (NEI 05-01) (NYS000287). In paragraph 142 of its proposed findings, New York states that NEI 05-01 recommends extrapolation to a later date, and therefore a larger population unless a population reduction is projected. New York Proposed Findings at 59 (¶ 142). As quoted above, NEI 05-01 actually states:

Extrapolation to a later date, and therefore a larger population, adds conservatism to the analysis. This statement is a statement of fact, not a recommendation, as New York claims.

137 New York Rebuttal Testimony at 6:7-18 (NYS000404).

138 Id. at 16:2-10 (NYS000404).

139 Oct. 22, 2012 Tr. at 2460:18-19 (Teagarden), 2462:11-20 (Ghosh).

31

2.

Entergy Characterized Its Transient Population Consistent with Industry Guidance and Included Additional Transients for Additional Conservatism

53.

As explained in Entergys Proposed Findings, Mr. Riggs and Ms. Potts stated that NEI 05-01 recommends that the [t]ransient population included in the site emergency plan should be added to the census data before extrapolation.140 The IPEC site emergency plan incorporates population assumptions from the Indian Point Energy Center Development of Evacuation Time Estimates (ETE).141 The ETE defines transients as shoppers and recreational visitors (i.e.,

tourists) who enter the 10-mile emergency planning zone (EPZ) around IPEC and who leave on the same day or stay overnight in hotels or camping facilities.142

54.

Consistent with this guidance, Entergy included tourists within the 10-mile EPZ as part of the transient population.143 In addition, Entergy also included in the transient population estimate: (1) tourists beyond the 10-mile EPZ out to a 50-mile radius; and (2) business travelers within the entire 50-mile SAMA analysis region (an area far greater in size than the 10-mile EPZ governed by the site emergency plan and referenced in NEI 05-01).144 In total, Entergys transient population includes approximately 349,000 individuals.145

55.

In contrast, as Ms. Potts explained, if Entergy had included only the transients (shoppers and recreational visitors) and commuters/employees within the 10-mile EPZ that are discussed in the IPEC ETE, Entergys 2035 transient population estimate would have included 140 Entergy Testimony at 28-29 (A56) (ENT000003) (quoting NEI 05-01 at 13 (NYS000287)); see also Oct. 22, 2012 Tr. at 2492:8-12 (Jones).

141 KLD Associates, Inc., Indian Point Energy Center Development of Evacuation Time Estimates, Rev. 2 (Oct.

2004) (ENT000014).

142 Id. at 3-9.

143 Entergy Testimony at 28-29 (A56); Oct. 22, 2012 Tr. at 2499:12-15 (Teagarden).

144 Entergy Testimony at 28-29 (A56).

145 Oct. 22, 2012 Tr. at 2497:5-8 (Potts).

32 only approximately 160,000 people.146 In other words, had Entergy strictly applied the NEI 05-01 guidance and included only the shoppers, recreational visitors, and commuters within the 10-mile EPZ called for in the IPEC ETE, it would have included less than half of the approximately 349,000 people (tourists and business travelers) that Entergy ultimately included in its transient population estimate.147 New York does not dispute the testimony of Ms. Potts or Mr. Teagarden on this point.

56.

Thus, the Board should find that Entergys application of NEI 05-01 was not only consistent with the guidance, but it also resulted in a transient population estimate that was more conservative; i.e., more than two times larger than the estimate that would have been obtained had Entergy adhered to the specific approach recommended in NEI 05-01.

3.

Entergy Incorporated Additional Conservatisms that Sufficiently Account for the Presence of Commuters in the Region

57.

As noted in Entergys Proposed Findings, in addition to including transients within the entire 50-mile SAMA region, Entergys population estimate incorporates several additional conservatisms that sufficiently account for the presence of commuters in the region. First, as Entergys and the NRC Staffs witnesses explained, by extrapolating the population within the SAMA analysis region out to 2035 (i.e., the last year of the Indian Point, Unit 3 extended operating period and two years after the end of the Indian Point, Unit 2 extended operating period), Entergy used an approach that is significantly more conservative than that recommended in NEI 05-01, because it adds approximately 500,000 people to the population estimate due to the population growth that is projected to occur in the SAMA analysis region during the ten-year 146 Id. at 2497:9-13 (Potts).

147 Id. at 2497:1-13 (Potts); see also id. at 2500:7-10 (Teagarden) (So [the tourist and business traveler population]

was a readily available set of data that bounded by a factor of two or more the data that could have been used had a stricter [ ] application of the [NEI 05-01] guidance[been] used.).

33 period from 2025 to 2035.148 Thus, contrary to New Yorks claim, projecting the population out to 2035 is, in fact, an especially conservative choice.149

58.

In addition, the MACCS2 codes treatment of the population within the 50-mile region builds in additional conservatism into the IPEC SAMA analysis. In that regard, both Entergys and the NRC Staffs MACCS2 experts confirmed that MACCS2 treats all persons included in the projected population, whether transients or permanent residents, as permanent residents.150 That is, MACCS2 treats a tourist or business traveler as though they live in the area, they have a home in the area and as though theyre going to incur a dose over a 50-year committed period.151 As a result, Mr. Teagarden and Dr. OKula testified that MACCS2 attributes several types of economic costs to transients in the region, even though such costs are not applicable to individuals who reside outside of the 50-mile region because they do not reside or own real property in the region.152 Thus, as Mr. Jones confirmed, the codes treatment of transients as permanent residents results in an over-estimation of clean-up costs.153 148 See Oct. 22, 2012 Tr. at 2454:15-2455:3 (Potts) (By virtue of using 2035, we have added considerable conservatism to the analysis that would account for any minor variations in the projected numbers.); id. at 2456:7-9 (Bixler) (I think it is correct to say that extrapolating all the way out to 2035 leads to significant conservatism in the final answer.); id. at 2460:13-17 (Teagarden) (The Entergy analysis could have used the date such as 2025 and instead they choose to use a date of 2035. And that adds in something above a half a million people due to the growth that occurs in the 50 mile region over that last ten year period.); id. at 2500:16-20 (Teagarden) (Entergy has included several conservatisms going to the Year 2035 which even exceeds the life-extension date for Indian Point Plant 2 by including the transients for the full 50-mile region.).

149 New York Proposed Findings at 59 (¶ 142).

150 Entergy Testimony at 29 (A58) (ENT000003); Oct. 22, 2012 Tr. at 2508:15-23 (Jones) ([Entergy] kept

[transients] in that total and included them as though they were residents.).

151 Oct. 22, 2012 Tr. at 2465:2-8 (Jones).

152 See Entergy Testimony at 30-31 (A61) (ENT000003) (e.g., daily costs for evacuees, relocation/moving costs, property decontamination costs).

153 Id. at 2465:14-2466:6 (Jones).

34

59.

For its part, New York asserts that commuters should be included in the population estimate because they will contribute to the cost of a severe accident.154 In support of its position, New York selectively quotes and cites to Staff and Entergy witness testimony and fails to acknowledge contrary Staff and Entergy testimony that explains why commuters need not be included in the population estimate. For example, New York quotes Dr. Bixlers testimony that it does make sense to include commuters, business commuters in the dose part of the calculation.155 In the remainder of the quoted sentence, which New York omits from its Proposed Findings, Dr. Bixler stated, but it also makes sense to exclude them from the economic cost part of the calculation.156 Dr. Bixler also testified that it was not possible to calculate only the dose-related costs for commuters, without also calculating the economic costs, in the MACCS2 code.157 New York pointed out in its Proposed Findings that, on cross examination, Dr.

Bixler later acknowledged that it was possible to calculate the population dose risk for the commuter population by inputting just the commuter population;158 however, New York failed to include testimony directly following counsels exchange with Dr. Bixler in which Dr. Ghosh and Dr. Bixler provided some important clarifications to Dr. Bixlers response. In particular, Dr.

Ghosh and Dr. Bixler noted that in performing such a calculation, the MACCS2 code would assume that commuters are living in their workplaces 100 percent of the time, which clearly that wouldnt be the case.159 Similarly, New Yorks Proposed Findings indicate that Entergys 154 New York Proposed Findings at 54 (¶ 127).

155 Id. at 54 (¶ 129) (quoting Oct. 22, 2012 Tr. at 2469:8-16 (Bixler)).

156 Oct. 22, 2012 Tr. at 2469:16-18 (Bixler).

157 Id. at 2468:8-2469:1 (Bixler).

158 New York Proposed Findings at 54-55 (¶ 130) (quoting Oct. 22, 2012 Tr. at 2524:15-22 (Bixler)).

159 Oct. 22, 2012 Tr. at 2524:23-2525:7 (Ghosh, Bixler).

35 witnesses testified that commuters could be impacted by lost income.160 New York does not, however, acknowledge that within that same response, Mr. Teagarden and Dr. OKula also identified multiple other economic costs that would not apply to commuters.161

60.

As Mr. Teagarden testified, although Entergy could have added even more conservatisms to its population estimate by including commuters, it elected not to, in light of the codes misrepresentation of commuters dose and economic cost contributions and in light of the existing conservatisms (i.e., extrapolating the population to 2035 and including transients within the entire 50-mile region). As noted above, MACCS2 already over-estimates the economic costs associated with the transient population, because the code treats them as permanent residents.

Adding yet another conservatism to the analysis by adding another population segment for which MACCS2 would over-estimate the costs would defeat the purpose of performing a best-estimate analysis. In this case, Entergy determined that the existing conservatisms in the population estimate provided a more than sufficient level of conservatism.162 Accordingly, the Board should find that Entergys population estimate includes conservatisms that sufficiently account for the presence of commuters in the 50-mile region.

4.

Even If It Were Appropriate to Include Commuters, Dr. Sheppard Substantially Overestimated the Number of Commuters Within the Region

61.

In any event, even if it were appropriate to include commuters as transients, as explained in Entergys Proposed Findings, Dr. Sheppard has substantially overestimated the number of commuters within the 50-mile region. Dr. Sheppard attempted to estimate the number of commuters entering the SAMA analysis region using U.S. Census Bureau data on county-to-160 New York Proposed Findings at 55 (¶ 131) (quoting Entergy Testimony at 30 (A61) (ENT000003)).

161 See Entergy Testimony at 30 (A61) (ENT000003).

162 See Oct. 22, 2012 Tr. at 2500:16-2501:7 (Teagarden, Potts).

36 county commuter flows from 2000.163 Using the method described in his report and pre-filed direct testimony, Dr. Sheppard estimated that 995,778 commuters will enter the 50-mile radius region on an average day in 2035.164

62.

Entergys and the NRC Staffs experts showed that Dr. Sheppards analysis was flawed for several reasons. First, Entergy and NRC Staff witnesses testified that Dr. Sheppards analysis classified and counted each person from outside the 50-mile region who works within the region as a commuter, regardless of the persons residence county.165 Consequently, he counted residents of locations as far away as Hawaii, Alaska, and California as daily commuters into the IPEC 50-mile region.166 As Entergys witnesses explained, such people would need to secure overnight lodging when visiting the region and thus would be considered business travelers, which Entergy included in the transient population values used in the SAMA analysis.167 New York attempted to counter Entergys or the NRC Staffs testimony on this point by citing to Dr.

Sheppards testimony on super-commuters.168 However, it failed to note Dr. Sheppards concession during the hearing that super-commuters are not a large part of the number in any event, so they could be excluded from the commuter population.169

63.

The second flaw in Dr. Sheppards commuter analysis identified by Entergys witnesses was that it failed to account for commuters out of the 50-mile region surrounding 163 New York Direct Testimony at 14:13-15 (NYS000207).

164 Id. at 16:1-3.

165 Entergy Testimony at 45 (A83) (ENT000003); NRC Staff Testimony at 101-106 (A95) (NRC000041).

166 Entergy Testimony at 45 (A83) (ENT000003).

167 Id.

168 See New York Proposed Findings at 51-52 (¶ 121).

169 Oct. 22, 2012 Tr. at 2478:14-16 (Sheppard).

37 IPEC.170 Mr. Teagarden explained that if commuters were to be considered, it was appropriate to also account for residents commuting out of the region from a MACCS2 modeling perspective because, for individuals who are commuting out of the region for their workplace... MACCS would be counting them as having their disruption associated with their job when in actuality their job occurs outside the 50-mile region.171 Consequently, Ms. Potts and Mr. Riggs performed a revised analysis that resulted in a more accurate estimate of the work day population distribution within the 50-mile region.172 The revised analysis projected a net 2035 commuter population in the 50-mile region of 110,663 commuters, in contrast to the 995,778 commuters estimated by Dr.

Sheppard.173

64.

New York disagrees with Entergys approach to calculating a daytime or workday population by subtracting commuters out of the region.174 Dr. Sheppard claims that the population estimate for purposes of SAMA analysis should be conservative,175 and that [a]

work day population estimate involves many non-conservative assumptions.176 At hearing, Dr.

Sheppard testified that there can and will be circumstances under which both groups, the people commuting out of the 50-mile zone and the people commuting in will both be present within.177 Therefore, according to Dr. Sheppard, under the idea of wanting to consider peak population, 170 Entergy Testimony at 45 (A83) (ENT000003).

171 Oct. 22, 2012 Tr. at 2485:6-18 (Teagarden).

172 L. Potts and J. Riggs, Rebuttal Commuter Analysis (Jan. 2012) (ENT000027).

173 Entergy Testimony at 46-47 (A84) (ENT000003).

174 New York Proposed Findings at 56 (¶ 133); see also Oct. 22, 2012 Tr. at 2476:16-2477:24 (Sheppard) (No suggestion is made that we should net out the people who flow out.).

175 New York Rebuttal Testimony at 15:21-22 (NYS000404); Oct. 22, 2012 Tr. at 2477:13-17 (Sheppard) (That seems consistent to me with the principle of conservatism in the population estimate because there are times when both the out-commuters and the in-commuters are on the road....).

176 New York Rebuttal Testimony at 16:23-17:1 (NYS000404).

177 Oct. 22, 2012 Tr. at 2474:21-24 (Sheppard).

38 there is certainly the possibility that they will both be within there depending upon the timing of the commuting flows.178

65.

As discussed above, the nature of a SAMA analysis is not intended to model a single radiological release at a single moment in time; e.g., when the commuter-inclusive population within the 50-mile region is at its hypothetical maximum, as postulated by Dr.

Sheppard.179 Rather, it focuses on the mean annual consequences (both off-site population dose and economic costs) over the examined 50-mile region.180 Nor does NEI 05-01 mention or suggest the use of a peak commuter population. Consequently, there is no basis in that guidance for Dr. Sheppards suggestion that anyone who enters the 50-mile region during a given 24-hour period should be included in the population estimate.

66.

Accordingly, the Board should find that, even assuming that it were appropriate to include commuters in the transient population, Dr. Sheppard substantially overestimated the number of commuters by not accounting for residents commuting out of the region. Rather than the approximately one million commuter population that Dr. Sheppard proposes, a more accurate estimate of the net commuter population within the region includes approximately 110,000 commuters. As discussed below in Section II.F., the addition of these commutersor even the approximately one million commuters that Dr. Sheppard suggestswould have no material effect on IPEC SAMA analysis.

178 Id. at 2474:24-2475:3 (Sheppard).

179 Pilgrim, CLI-12-01, slip op. at 19 (Unlike for emergency planning, in which an actual plume must be tracked in real time, a SAMA analysis examines a spectrum of representative types of accidents.).

180 Id. at 19-20.

39

67.

For the reasons stated above and in Entergys Proposed Findings,181 the Board should find that Entergy appropriately accounted for relevant transient populations in the 50-mile region and reasonably did not include commuters in its transient population estimate. Entergys population estimate already includes a number of conservatisms that sufficiently account for the presence of commuters in the region. Moreover, in terms of modeling the costs associated with population dose and offsite economic losses, because the MACCS2 code treats all persons included in the population estimate as permanent residents, the code already overestimates the costs associated with the transient portion of the population. Adding another set of overestimated costs associated with commuters would not represent a best estimate, as a SAMA analysis is intended to be. However, if it were appropriate to consider commuters in the transient population, a best estimate analysis would need to account for true daily commuters (and not double-count business travelers) and permanent residents that commute to work outside of the 50-mile region, rather than a worst-case analysis that includes the maximum number of commuters possible during a weekday rush hour.

F.

None of New Yorks Arguments, Even if Accepted as Valid, Could Credibly Alter the IPEC SAMA Analysis Conclusions Regarding Which SAMA Candidates are Potentially Cost-Beneficial to Implement

68.

As discussed in Entergys Proposed Findings, Entergys experts performed two MACCS2 sensitivity analyses to evaluate the potential impacts of the population increases posited by Dr. Sheppard due to census undercount and commuter inflows into the 50-mile SAMA analysis region.182 Entergys second sensitivity analysis incorporated (1) the full census undercount and 181 See Entergy Proposed Findings at 81-95 (¶¶ 158-87).

182 Id. at 81-98(¶¶ 158-93); see also MACCS2 Population Sensitivity Case 1 (ENT000006); G. Teagarden, Indian Point License Renewal Proceeding: Supplemental Sensitivity Analysis Re NYS-16 (Oct. 19, 2012) (MACCS2 Population Sensitivity Case 2) (ENT000589); Oct. 22, 2012 Tr. at 2516:13-2518:14 (Teagarden).

40 commuter-related population increases proposed by Dr. Sheppard; (2) the peak populations for the three counties (New York, Rockland, and Westchester) projected to have population peaks prior to 2035; and (3) Dr. Sheppards proposed population distribution method.183 As Mr. Teagarden testified, Entergy determined that, when all of Dr. Sheppards proposed values and assumptions are accepted and factored into the MACCS2 analysis, the PDR and OECR increase by approximately 6.7% and 6.8%, respectively.184 The impact to the total estimated baseline accident costs (i.e., incorporating on-site costs, which are not calculated by MACCS2) resulting from the increased population was an estimated 6.15% increase.185 Entergys experts compared this 6.15%

increase to the margin that exists in the next potentially cost-beneficial SAMA candidate (approximately 11% for IP2 SAMA 025186) to demonstrate that New Yorks postulated population increaseseven if fully acceptedwould not have any material impact on the FSEIS SAMA analysis conclusions.187

69.

In its Proposed Findings, New York focuses on Entergys second sensitivity analysis and challenges that analysis on several grounds. First, New York asserts that neither the NRC Staff nor Entergy examined how the changes in PDR and OECR would affect all of the SAMA candidates and suggested that such changes could make some SAMA candidates even 183 See MACCS2 Population Sensitivity Case 2 at 2 (ENT000589); Oct. 22, 2012 Tr. at 2517:19-2518:2 (Teagarden).

184 Id. at 2518:3-7 (Teagarden) (We increased the total population... approximately 6.7 percent and the population dose risk increased approximately 6.7 percent and the cost risk increased approximately 6.8 percent.); MACCS2 Population Sensitivity Case 2 at 2, 5 (ENT000589).

185 MACCS2 Population Sensitivity Case 2 at 2, 8 (ENT000589).

186 NL-09-165, Letter from F. Dacimo, Entergy, to NRC, License Renewal Application - SAMA Reanalysis Using Alternative Meteorological Tower Data, Indian Point Nuclear Generating Units Nos. 2 and 3 at 30 Tbl. 6 (Dec.

11, 2009) (ENT000009).

187 Oct. 22, 2012 Tr. at 2518:8-14 (Teagarden); MACCS2 Population Sensitivity Case 2 at 2 (ENT000589).

41 more cost beneficial, giving Staff a stronger incentive to require their implementation.188 In support of this argument, New York cites an exchange among Judge McDade, New York counsel Ms. Liberatore, and Ms. Potts during the hearing on NYS-12C, but it incorrectly characterizes the exchange as testimony (presumably by Ms. Potts) that as the SAMA candidates become more cost-beneficial, the probability that Entergy will implement them increases.189

70.

To be clear, Ms. Potts never testified that Entergy is required to implement any SAMA identified as potentially cost-beneficial in the SAMA analysis. Rather, she stated: My understanding is that we are not required to implement the SAMAs that are potentially cost beneficial.190 Ms. Potts understanding is consistent with controlling Commission and judicial case law holding that NEPA neither requires nor authorizes the NRC to order implementation of mitigation measures analyzed in an environmental analysis.191 Ms. Potts also noted that, in accordance with current plant processes unrelated to license renewal, Entergy further evaluates possible implementation of potentially cost-beneficial SAMAs.192 Fairly read, the specific testimony cited by New York was that, if the difference between the implementation cost and the 188 New York Proposed Findings at 63-64 (¶ 152). The Commission has specifically stated that NEPA neither requires nor authorizes the NRC to order implementation of mitigation measures analyzed in an environmental analysis. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC __, slip op. at 11 (Mar. 30, 2012) (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 n.16 (1989)).

189 Id.

190 Oct. 17, 2012 Tr. at 1921:5-7 (Potts).

191 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-11-14, 74 NRC __, slip op. at 16 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 n.16 (1989))(Dec. 22, 2011);

see also Mass. v. NRC, No. 12-1404, 12-1772, slip op. at 39 n.27 (1st Cir. Feb. 25, 2013) (To the extent [the petitioner] seeks to impose a substantive requirement that the NRC must require certain mitigation measures under NEPA, that is foreclosed by the fact that NEPA is not outcome driven.).

192 See id. at 1921:7-10 Potts (What we do is enter them into our process for determining more detailed project implementation and make a decision as to whether they will be implemented or not.), 1923:17-25 (Potts)

(Entergy would take these items, these proposed, potentially cost beneficial SAMAs, and they would put them into the process that they have in place.); see also NL-09-165, Attach. 1 at 32 (citing relative potential for significant risk reduction and relative implementation cost) (ENT000009).

42 benefit of a particular SAMA was $100 versus $5 million, Entergy would consider that difference in determining whether to implement that SAMA in accordance with current plant processes.193

71.

New York also challenges Entergys second sensitivity analysis on the grounds that the difference between the outcome of the new sensitivity analysis and the increase necessary to make IP2 SAMA 025 cost-beneficial is only 4.85% (the difference between 6.15% and 11%).194 Such a small difference, New York argues, could be overcome by looking at the higher population growth rate proposed in the FSEIS, 15.98% compared to the 12.43% value that Entergy used... or scrutinizing the polynomial regression analysis Entergy completed for three counties that are expected to have peak populations before the end of the relicensing period.195

72.

As an initial matter, Entergys more recent sensitivity analysis does take into account the peak populations for the three counties that are expected to have peak populations prior to 2035.196 Moreover, New York has not explained whether or how using a 15.98%

population growth rate rather than a 12.43% rate would impact the SAMA cost-benefit analysis for IP2 SAMA 025. Nor has it cited any testimony or other evidence to support its speculative argument.

73.

New York also challenges Entergys sensitivity analysis on the ground that it fails to take into consideration that an increase in costs of 6.15% will increase the maximum attainable benefit.197 According to New York, if a SAMA candidate costs more than the maximum attainable benefit, Entergy removed it from further consideration at an early level of the SAMA 193 Official Transcript of Proceedings, Indian Point Nuclear Generating Units 2 & 3 at 2335:9-19 (Potts) (Oct. 18, 2012).

194 New York Proposed Findings at 64-65 (¶ 154).

195 Id.

196 See MACCS2 Population Sensitivity Case 2 (ENT000589).

197 New York Proposed Findings at 65 (¶ 155).

43 analysis.198 New York further asserts that, because a greater population leads to a greater maximum attainable benefit, Entergys sensitivity analysis is flawed because it should have determined whether Entergy removed SAMA candidates from further consideration that should not have been removed.199

74.

New Yorks challenge is without basis. Its Proposed Findings incorrectly characterize Entergys SAMA analysis, citing Figure 4.1 of the NRCs Frequently Asked Questions regarding license renewal.200 Figure 4.1, however, depicts the NRCs general description of SAMA analyses; it is not a description of the IPEC SAMA analysis. As indicated in the NRCs guidance document, it is permissible to remove SAMA candidates from consideration early in the process using the maximum attainable benefit as a screening criterion.201 However, Entergy did not use the maximum attainable benefit as a screening criterion to remove SAMA candidates from further consideration at IPEC. (Instead, it provided an estimated benefit with uncertainty for each of the applicable SAMA candidates.) Entergys Environmental Report describes the IPEC screening criteria as follows:

Potential SAMA candidates were screened out if they modified features not applicable to IP2, if they had already been implemented at IP2, or if they were similar in nature and could be combined with another SAMA candidate to develop a more comprehensive or plant-specific SAMA candidate.202

75.

Finally, New York challenges the second sensitivity analysis because it fails to analyze the combined impacts of the MACCS2 input changes suggested by New York in 198 Id.

199 Id.

200 Id.

201 Id.

202 IPEC, Applicants Environmental Report, Operating License Renewal Stage at Att. E, Sections E.2.2 and E.2.4.

44 Contentions NYS-12C and NYS-16B.203 In mounting this challenge, New York effectively concedes that NYS-16B does not independently satisfy the Commissions materiality requirement described above. According to New York, [c]onsidering the errors in other input parameters raised by NYS-12C along with the population errors in NYS-16B will yield results that would change the outcome of the SAMA analysis.204 But New York and Dr. Sheppard did not offer any analysis or testimony demonstrating that an additional SAMA candidate should have been identified as potentially cost-beneficial. As shown above, it is New Yorks burden to show that the 1.2 million persons Entergy allegedly omitted from the population estimate credibly could make a material difference to the SAMA analysis conclusions, not simply that the analysis might change in some fashion.205 New York has not identified a material difference that would result from incorporating its asserted NYS-16B assumptions or from incorporating New Yorks input values for NYS-12C. Moreover, as discussed above in Section II.A.3., there is no legal requirement or factual or technical basis for the Board to consider Contentions NYS-16B and NYS-12C together.

76.

Accordingly, the Board should dismiss New Yorks challenges to Entergys sensitivity analysis. The Board should further conclude that Entergys sensitivity analyses demonstrate that neither New Yorks census undercount argument nor its commuter argument, even if accepted as valid, could credibly alter the IPEC SAMA analysis conclusions regarding which SAMA candidates are potentially cost-beneficial to implement.

203 New York Proposed Findings at 64 (¶ 153).

204 Id. at 77 (¶ 183).

205 Pilgrim, CLI-12-15, slip op. at 15 (emphasis added).

45 III.

CONCLUSION

77.

In summary, the preponderance of the evidence shows that, in projecting the 2035 population estimate, Entergy reasonably and appropriately relied upon officially-published 2000 Census Bureau data, without any adjustment for alleged undercount, and conservatively addressed transient populations for the entire 50-mile region within the SAMA analysis, including tourists and business travelers. Accordingly, the Board finds that the NRC Staff and Entergy carried their respective burdens of proof, and that, based on the entire record of this proceeding, the NRC Staff has satisfied its NEPA obligations under 10 C.F.R. Part 51.

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

William B. Glew, Jr., Esq.

Kathryn M. Sutton, Esq.

William C. Dennis, Esq.

Paul M. Bessette, Esq.

ENTERGY SERVICES, INC.

MORGAN, LEWIS & BOCKIUS LLP 440 Hamilton Avenue 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, DC 20004 Phone: (914) 272-3202 Phone: (202) 739-3000 Fax: (914) 272-3205 Fax:

(202) 739-3001 E-mail: wglew@entergy.com E-mail: ksutton@morganlewis.com E-mail: wdennis@entergy.com E-mail: pbessette@morganlewis.com Martin J. ONeill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 Fax: (713) 890-5001 E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 3rd day of May 2013

47 DB1/ 73992887.4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of

)

Docket Nos. 50-247-LR and

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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.

)

)

(Indian Point Nuclear Generating Units 2 and 3)

)

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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 States Proposed Findings of Fact And Conclusions Of Law For Contention NYS-16B (Severe Accident Mitigation Alternatives Analysis Population Estimate) were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.

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

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