ML13123A458

Combined Reply to NRC and Entergy Findings of Fact and Conclusions of Law Regarding Contention EC-3A Regarding Environmental Justice

ML13123A458
Person / Time
Site:	Indian Point
Issue date:	05/03/2013
From:	Raimundi K, Webster R Hudson River Sloop Clearwater, Public Justice P C
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24476, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13123A458 (25)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell 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) )

) Date: May 3, 2013 COMBINED REPLY TO NRC AND ENTERGY FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING CONTENTION EC-3A REGARDING ENVIRONMENTAL JUSTICE

TABLE OF CONTENTS I. Introduction ..........................................................................................................................1 II. The NRC Has an Affirmative Obligation to Protect the Environment ................................2 III. The Effects of Severe Accidents on EJ Populations Must Be Assessed on a Site-Specific Basis .....................................................................................................................................3 IV. The FSEIS Failed to Identify Environmental Justice Communities and Factors Peculiar to These Communities .............................................................................................................6 V. The NRC Staff is Obliged to Do the Required NEPA Analyses ..........................................8 A. NEPA EJ Analysis is Different to Reasonable Assurance Under the Atomic Energy Act ...............................................................................................................9 B. NRC Staff Failed to Form An Independent View on Prison Evacuation ............... 11 C. Staff Failed to Correctly Assess NEPA Significance of the Disparate Impacts on Prisoners................................................................................................................. 11 VI. The Identified Disparate Impacts to Prisoners and Other EJ Populations are Within the Scope of NEPA and This Proceeding .................................................................................13 B. Indirect Impacts From Radiological Releases Are Within the Scope of the Hearing ..............................................................................................................................18 VII. Conclusions Regarding Witnesses Presented.....................................................................20 A. Staff Witnesses .......................................................................................................20 B. Entergy Witnesses ..................................................................................................20 C. Clearwater Witnesses .............................................................................................21 Conclusion ........................................................................................................................23

I. Introduction This reply to the Staff and Entergy does not repeat the arguments made in Clearwater's Proposed Findings and opening testimony.1 Instead, it refutes the arguments made by the opposing parties in their findings of fact and conclusions of law to the extent they were not fully anticipated in the Clearwaters Proposed Findings.

Despite clear guidance to study the potential disparate impacts upon Environmental Justice (EJ) populations that could be caused by severe accidents during license renewal, the Staff failed to do so here and for many other reactor relicensings. Apparently, Staff misinterpreted regulations regarding the generic findings made by the NRC. We find that this error led to a failure to identify peculiar factors within EJ communities that could lead to disparate impact during an accident. Depending upon the community, the most obvious such factors are incarceration, dependency on public transport, geographical isolation, and reduced ability to communicate in English. We find that these and other factors could well give rise to disparate impact, which the Staff has failed to identify. Even more surprisingly, the Staff failed to properly identify a disparate impact for prisoners in Sing-Sing, even though the Staff acknowledged during an accident that they could receive a radiation dose that is double the allowable dose for the general population. We find a doubling of the radiation dose during an accident is a disparate impact. The question remaining is whether it is significant. Because we heard no evidence on certain factors that could affect significance, such as how controversial and uncertain this impact is, we cannot assess its significance. We also find that the risk of violent disturbance is an issue that the Staff needs to assess more carefully because there is considerable disagreement about this issue that the Staff has failed to resolve with the hard look required by 1 Any failure by Clearwater to address an argument in this filing should be interpreted as an understanding that the argument is already fully addressed by Clearwaters Proposed Findings, not as a waiver of that argument.

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NEPA. Clearwater pointed to many other factors that could cause disparate impact on EJ populations other than prisoners..

The Staff must therefore do a comprehensive EJ analysis that identifies EJ communities and the factors that could give rise to disparate impact. Thereafter, the Staff needs to evaluate the extent that disparate impacts would occur and the magnitude of those disparate impacts. Finally, the Staff must assess the significance of these disparate impacts and what mitigation measures are appropriate. In assessing significance, the Staff must evaluate all the factors specified in the regulations and not focus solely upon whether the difference in impact is permitted by other regulations or guidance.

II. The NRC Has an Affirmative Obligation to Protect the Environment In interpreting NRC policies, it is essential to recognize that the NRC as agency has an affirmative duty to protect the environment, including environmental justice populations, that stems from statute and agency policy. The National Environmental Policy Act (NEPA) pronounces our national environmental policy as follows: it is the continuing policy of the Federal Government (. . .) to use all practicable means and measures (. . .) to create and maintain conditions under which man and nature can exist in productive harmony. 42 U.S.C. § 4331(a).

Environmental protection is part of NRCs core mission statement. The NRC licenses and regulates the Nation's civilian use of radioactive materials to protect public health and safety, promote the common defense and security, and protect the environment. NRC Mission Statement, http://www.nrc.gov/about-nrc.html. (Emphasis added). In implementing this policy the NRC can and does impose environmental conditions upon reactor operating licenses.

Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-31-04 (March 23, 2013) (slip op. at 140).

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This general overview confirms that where there is an ambiguity in the regulations they should be construed in a manner that is most protective of the environment to ensure that the Staff satisfies the goals of NEPA and the NRC itself. This duty does not apply only to the Staff, it also applies to this Board.

III. The Effects of Severe Accidents on EJ Populations Must Be Assessed on a Site-Specific Basis Both Staff and Entergy make the argument that because the GEIS2 covers all populations and found that the impacts associated with severe accidents are SMALL, this means the impact on EJ populations cannot be disproportionately high and adverse. NRC Staffs Proposed Findings of Fact and Conclusions of Law, Part 10: Contention CW-EC-3A (Environmental Justice) (Staff Br.) at 14; Entergys Findings of Fact and Conclusions of Law for Contention CW-EC-3A (Environmental Justice) (Entergy Br.) at 67. This argument is flawed both legally and factually. Legally, Clearwater showed in its original proposed findings that the GEIS did not cover Environmental Justice populations at all. Clearwater Findings of Fact and Conclusions of Law Supporting Contention EC-3A Regarding Environmental Justice (Clearwater Br.) at 46.

Confirming this, Table B-1 of 10 C.F.R. Part 51 states that the findings in the GEIS regarding environmental justice are NONE. In footnote 6 to Table B-1 the regulations state that Environmental Justice was not addressed in the GSEIS and that this issue will be addressed in individual license reviews. In an attempt to suggest that EJ is covered in the GEIS, the Staff cites another entry in the same table that states the consequences for severe accidents are small and then suggests that this conclusion applies to all populations. Staff Br. at 14. However, the Staff cites no authority for the proposition that the GEIS covers EJ impacts, which would be 2 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Vol. 1 (May 1996) (GEIS) (Ex. NYS00131A-I) 3

contrary to the specific entry in Table B-1 about EJ. We find that Clearwater is correct, because the entry in Table B-1 regarding Environmental Justice and footnote 6 make it plain that the conclusion regarding severe accident impacts does not apply to EJ populations. There is therefore no conflict between the generic finding of small impacts on the general population from severe accidents and the absence of any findings regarding EJ impacts. Thus, we find that the regulations state that EJ analyses must assess whether there are disproportionate impacts from severe accidents. Based on the general principle that parties may not use these hearings to challenge the regulations, this issue is not open for litigation in this proceeding.

Moreover, even if there were an ambiguity in the regulations, using standard methods of statutory construction the specific disavowal of any finding regarding EJ impacts would trump the more general finding regarding severe accidents. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031 (1992). The NRCs affirmative duty to protect the environment would also weigh strongly in favor of interpreting the regulations in the manner that Clearwater advocates. In addition, we have allowed this contention to proceed for over four and a half years on the basis that it alleges that the EJ impacts of severe accidents have not been properly assessed, because this Board has consistently found that severe accidents must be included in the EJ analysis.

The only additional argument that NRC Staff has added at this stage is that the Commissions findings regarding the GEIS in a case regarding the Pilgrim nuclear power plant show that the GEIS impacts analysis is bounding. Staff Br. at 14.3 That case concerned the inputs to the Severe Accident Mitigation Analysis, it did not concern environmental justice at all.

Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287 3 This argument is not actually new, because it was advanced by Entergy in its Statement of Position. Entergy SoP at 32-33.

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(2010). The Commission found that the generic analysis for severe accidents was bounding because it used 95% upper confidence bounding values for impact prediction. Id. at 316. Taken in context, the holding of this case says nothing at all about whether the factors peculiar to EJ populations were considered in the generic findings regarding the impacts of severe accidents. It therefore does not contradict the regulations stating that the severe impact analysis in the GEIS did not include environmental justice considerations.

On the same issue, Entergy argues that the NRC Staff relied on its own guidance in addition to the GEIS. Entergy Br. at 67-68. However, that guidance specifically recognizes that in the EJ analysis the staff needs to ask first whether the impact on EJ populations are greater than on the general population. LIC-203, Rev. 2, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues (Feb. 11, 2009) at C-8 (Ex.

ENT000264). It states that it is helpful to map the locations of EJ populations and provides examples of impacts that could affect EJ populations more than the general population. Such impacts include noise and traffic. Id. It then states, [i]n addition, the potential risks associated with accidents may have a disproportionate affect on minority and low-income populations living closest to the plant. Id. This shows that Staff guidance on how to do the EJ assessment explicitly calls for a site-specific assessment of the potential impacts on EJ populations associated with severe accidents. Thus, the Staffs position in this case is not only contrary to NRC regulations, it is also contrary to its own guidance.

Finally, factually both NRC Staff and Entergy have admitted that impacts on the EJ population may be worse than on the general population. E.g. Staff Br. at 55. The Staffs own guidance on EJ analysis confirms this point, stating that the effect of accidents on EJ populations close to nuclear plants may be disproportionate. Indeed, as Entergy itself has noted this is the 5

underlying premise of the EJ analysis. See Entergy Initial Statement of Position at 16 (stating that an environmental justice review under NEPA requires disclosing any disproportionately high and adverse impacts to [environmental justice] populations that, due to the populations unique characteristics, may differ from the impacts to the general population). Therefore, excluding impacts of severe accidents from the EJ analysis based on the GEIS finding that impacts from severe accidents on the general population are small is not only contrary to the applicable regulations and staff guidance, it also entirely illogical, because it would result in a failure to take account of the peculiar factors that could give rise to disparate impact among EJ populations.

IV. The FSEIS Failed to Identify Environmental Justice Communities and Factors Peculiar to These Communities There is some dispute between the parties about the definition of communities under the NRC EJ guidance. Entergy cautions that the Commission has found that the Staff need not divide the EJ community into vaguely defined shifting subgroups. Entergy Br. at 63-64.

However, the Staff has acknowledged that under current guidance it would have analyzed prisoners in Sing-Sing as a separate EJ community if it had been able to discern a potential disparate impact.4 Staff Br. at 50. In addition, the Staff acknowledges that in the past it has assessed impacts upon the transit-dependent portion of the EJ population. Staff Br. at 48-49. The Staff also points to other distinct groups that it considered as part of the EJ analysis, such as those reliant on subsistence fishing, who are classified as special pathway receptors. Staff Br. at 39-41. Finally, in response to a hypothetical, Mr. Rickoff confirmed that if there were an effect on a nearby EJ community that would not affect the general population or other EJ populations, 4

Given the Staff guidance, identifying accidents risk as such an impact should not have been difficult.

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the Staff would analyze that community separately. Staff Br. at 50. Thus, Staff practice undermines Entergy's interpretation of the case law.

We find that Entergy has interpreted the Private Fuel Storage case incorrectly. That case is inapposite here because it concerned monetary benefits rather than negative impacts. Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-02-20, 20, 56 NRC 147, 153 (2002). Furthermore, the flow of the benefits was the primary distinguishing feature of the sub-group at issue in that case. Here, we agree with the Staff that the populations of Sing-Sing and other prisons are not vaguely defined shifting sub-groups, they are well-defined distinct EJ communities who are differently situated to those who can move freely and are therefore vulnerable to disparate impact. Similarly, other distinct portions of the EJ population share characteristics that tend to lead to disparate impact. For example, Peekskill is a geographically EJ community with a high degree of transit dependency. Compared to the general population, hispanic populations tend to have less fluency in English, elderly populations in nursing homes tend to be lower-income, and populations with a high percentage of minorities tend to be in denser areas. Analysis of the census data provides a starting point for the analysis of these communities, but it does not provide an end-point because it may miss many of the factors peculiar to each community that could give rise to disparate impact. The Staff must therefore go beyond the census data when it has indications that impact is a possibility With regard to severe accidents, the Staffs own guidance coupled with the close proximity of EJ populations provided those indications.

Finally, Entergy's discussion about high dependency on public transportation in Manhattan completely misses the point. Entergy Br. at 63. Clearwater is not arguing that such dependency should define an EJ community. Instead, it is arguing that once an EJ population is 7

defined, the Staff should assess whether it is more dependent on public transport than the general population. This is fully congruent with Staff practice and the Policy Statement on EJ, which requires investigation into the peculiar factors that could give rise to disparate impact.

Entergy is therefore mistaken when it suggests that the EJ populations Clearwater has identified are vaguely defined and shifting. The NRC Staff itself has acknowledged that many of the distinct EJ communities identified by Clearwater are subject to separate assessment under current policy and guidance. This is because these populations have distinct characteristics that may lead to differing disparate impacts. As Entergy correctly stated, the purpose of the EJ assessment is to identify EJ communities that might otherwise be overlooked and then identify impacts that would occcur due to their uniqueness. Entergy Br. at 63. We therefore find that the NRC Staff needs to enhance its analysis by identifying communities and the the factors that are unique to those communities within the various EJ areas that it has identified on maps using the block group analysis. It may do this through the use of block level data, analysis of the existing emergency plans, and outreach to local government and communities.

V. The NRC Staff is Obliged to Do the Required NEPA Analyses Entergy consistently complains that Clearwater has failed to provide various analyses showing disparate impact. For example, it suggests that Clearwater did not cast doubt on the GEIS findings regarding the impacts of a severe accident. Entergy Br. at 68; 71. This complaint is based on two errors. First, as discussed above, there are no GEIS findings regarding disparate impacts on EJ populations. Second, it is the burden of the NRC Staff to carry out the EJ analysis. Staff Br. at 12-13. Clearwater has not sought to do that analysis for the Staff. Instead, it has shown through example that the EJ analysis is deficient with regard to the assessment of the disparate impact of severe accidents. This is hardly surprising, because, despite its own guidance to the contrary, the Staff did not attempt this analysis. Instead, it ignored the issue at 8

the FSEIS stage and then presented testimony at the hearing that arbitrarily dismissed identified disparate impacts upon prisoners in Sing-Sing as insignificant.

Similarly, Entergy suggests that Clearwater failed to present any compelling analysis regarding health effects. Entergy Br. at 72. As discussed below, this statement is incorrect, because Dr. Kanter was the only witness who correctly identified the health effects that could result from a 10 rem radiation dose. This statement also illustrates once again that Entergy is trying to shift the burden of doing the analysis onto Clearwater. We find that it is the Staff's role to analyze the disparate impacts. Here, Clearwater has presented testimony that shows that, among others, prisoners, transit-dependent populations, hispanics, the elderly, and the infirm would be subject to disparate impact. This is confirmed by the Staff guidance, which states that during accidents disparate impacts upon EJ populations may arise. Taken together, this is more than enough to illustrate that the Staffs failure to systematically analyze the potential for disparate impact from a severe accident is a defect in the NEPA analysis that must be rectified before the NRC can issue a renewed license for Indian Point.

A. NEPA EJ Analysis is Different to Reasonable Assurance Under the Atomic Energy Act Much of the Staffs proposed findings assert that there can be no disproportionate impact upon environmental justice populations because emergency plans are in place and all outcomes will be within existing guidance. Staff Br. at 61-86. Entergy makes a similar argument. Entergy Br. at 76-83. This factually and legally incorrect. Factually, the emergency plans envisage that disparate impact would occur during an accident. For example, the Staff has acknowledged that prisoners in Sing-Sing could get a higher radiation dose during an accident than members of the general population. Staff Br. at 66. Similarly, with regard to the transit-dependent population, Clearwater established that the bus-riding population of Westchester is disproportionately 9

minority and transit dependency is higher among minority and low-income populations.

CLE00034 & CLE00022.5 In addition, emergency evacuation bus stops are outdoors. Even if people are notified when a bus will be coming, as Staff claims, those riding the buses will inevitably be subject to greater radiation doses than those with private transportation due to wait times at bus stops. Therefore, there will be some disparate impact even if the emergency plans are implemented as planned. Although NRC and Entergy repeat the mantra that these impacts are considered acceptable by emergency planners for various reasons, that does not mean that they are insignificant in NEPA terms. As Clearwater showed, significance is determined by a multi-factor test, only one of which is whether the disparate impact is within guidance. 40 C.F.R.

§ 1508.27. Other relevant factors include the effect on public health and safety, whether the impact is controversial, and the degree of uncertainty. Id. To date, the Staff simply has not assessed these factors.

Legally, both Entergy and the NRC Staff have repeatedly suggested that Clearwater is challenging the adequacy of emergency plans for Indian Point. E.g. Staff Br. at 73, 75, 81; Entergy Br. at 69-72. We find this to be incorrect, because the EJ assessment for NEPA is totally different from the emergency planning requirements. As Ms. Milligan repeatedly stated at the hearing emergency planners simply do not consider differences in impact on different groups.

E.g. Tr. 2760:22-2761:2. In addition, as the hearing showed, the emergency planning guidelines allow for disparate impact to occur. Entergy Br. at 83. Thus, compliance with emergency planning regulations and guidance does not preclude a significant disparate impact on EJ populations, illustrating once more the distinction between a claim regarding compliance with 5 Entergy ignores this evidence when it suggests that Clearwater did not show that the environmental justice communities are disproportionately transit-dependent. Entergy Br. at 87.

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safety requirements and Clearwater's EJ contention concerning the need for a hard look at disparate impacts pursuant to NEPA.

B. NRC Staff Failed to Form An Independent View on Prison Evacuation NEPA requires that the NRC make an independent assessment of the environmental impacts of relicensing Indian Point. Clearwater Br. at 52. The Staff's proposed findings confirm that the Staff failed to reach its own opinion on prison evacuation issues. For example, the Staff stated that New York Department of Corrections (NYDoC) and its staff are confident of their ability to evacuate Sing-Sing in a timely manner. Staff Br. at 72. This is based upon the hearsay report about the opinion of Colonel Kirkpatrick of NYDoC that prisoners become more co-operative during emergencies. Staff Br. at 75. Although this assessment directly contradicts the testimony of Clearwater's witnesses, Staff has failed to provide its own reasoned assessment of this issue. Instead, Ms. Milligan for the Staff uncritically repeated Colonel Kirkpatrick's opinion without stating why she rejected the views of Clearwaters witnesses. This may because Ms.

Milligan was asked to reach conclusions on this matter, even though they are outside the scope of her expertise. Therefore, we find that the Staff has not given this issue the hard look required by NEPA. The Staff must use an appropriately qualified individual to reach its own assessment based upon scientific analyses, such as those cited by Dr. Edelstein, and the knowledge of those with experience, like Mr. Papa and Colonel Kirkpatrick. It cannot merely use an person who is unqualified in this area to chose who she believes without any scientific reasoning, as it has done here.

C. Staff Failed to Correctly Assess NEPA Significance of the Disparate Impacts on Prisoners With regard to the acknowledged disparate impacts on prison populations during severe accidents, both Staff and Entergy make multiple mistakes when analyzing these effects. The first 11

error is that both parties suggest that doses of radiation within the federal guidelines do not produce clinical effects. According to the Staff, Mr. Slobodien testified that there are no effects of radiation below approximately 50 rem. Staff Br. at 66. Entergy similarly suggest that the 10 rem maximum dose for prisoners envisaged by the EPA guidance is far less than the dose required to produce an adverse health effect. Entergy Br. at 85. Entergy suggests that Dr. Kanter was mistaken when he suggested that clinicians assume a linear no-threshold relationship for cancer risk caused by radiation. Id. In contrast, the Staff did not suggest Dr. Kanter was incorrect, but instead emphasized that the dose differential was within EPA guidance. Staff Br. at 68.

In fact, the EPA guidance itself shows that Dr. Kanter is correct and Mr. Slobodien is wrong. The second principle of the EPA guidance is that that there is a linear no-threshold relationship between radiation dose and cancer. ENT00284A at 1-5. Moreover, the official position of the NRC is that [a] linear no-threshold (LNT) dose-response relationship is used to describe the relationship between radiation dose and the occurrence of cancer. This dose-response model suggests that any increase in dose, no matter how small, results in an incremental increase in risk.6 Thus, a doubling of the dose doubles the risk of cancer. NRC sought to elide over this point, while Entergy flatly denied it. The public was certainly not put on notice of this point during the hearing and therefore one of the key purposes of NEPA has not yet been satisfied.

With regard to the significance of this doubling, NRC states that the impact cannot be disproportionately high and adverse because it is within federal guidelines. Staff Br. at 69. We that reasoning is straightforwardly arbitrary because, as discussed above, compliance with guidelines is only one of a number of factors that the staff must examine to determine 6

http://www.nrc.gov/about-nrc/radiation/health-effects/rad-exposure-cancer.html 12

significance of impact. 40 C.F.R. § 1508.27. Moreover, we find that the Staff conflated the question of whether there is disparate impact with the question of whether that disparate impact is significant. With regard to prisoners, the Staff has acknowledged that if evacuation of Sing-Sing goes according to plan there would be a doubling in impact on prisoners compared to the general population. There is therefore disparate impact. We decline to make the finding of significance for the staff, because there is insufficient evidence on the multiple factors needed for significance, including whether EPA guidelines will actually be met.7 We also note that other prisons may suffer a similar disparate impact and this analysis applies to other special populations such as hospital patients and nursing home residents. The Staff should therefore reconsider whether the special populations in the emergency plans could experience disparate impact and, if so, whether that impact could be significant in NEPA terms.

VI. The Identified Disparate Impacts to Prisoners and Other EJ Populations are Within the Scope of NEPA and This Proceeding Entergy asserts that Clearwater raised a number of issues related to non-radiological severe accident impacts that are outside the scope of CW-EC-3A and this proceeding. Ent. Br. at

72. We find that indirect impacts that would be caused by a radiation release during a severe accident, such as potential prison violence are both within the scope of NEPA and within the scope of CW-EC-3A.

A. Indirect Impacts on Prisoners and Others are Within the Scope of NEPA The Staff asserts that the indirect disparate impacts on prisoners identified by Clearwater are outside the scope of NEPA. Staff Br. at 11, 89. The assertion that these were purely psychological impacts has already been rejected by the Board when it decided not to strike any of Clearwaters testimony. In the Matter of Entergy Nuclear Operations (Indian Point Nuclear 7

Until the Staff reaches an independent decision on ability of New York State to evacuate Sing Sing in a timely manner, we cannot be certain whether the EPA guidelines would be met.

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Generating Units 2 and 3), ASLBP No. 07-858-03-LR-BD01, 33-35 (2011). Despite this Board ruling, the Staff claims that any such effects are psychological impacts that are outside the scope of NEPA under Metropolitan Edison. This argument is an inappropriate extension of Metropolitan Edisons reasonably close causal relationship standard, because the impacts at issue in that case assumed no release of radiation, whereas the indirect impacts at issue in this case would be caused by actual radiation release. Second, the Staff attempts to use Public Citizen for the proposition that impacts on prisoners are outside the scope of NEPA because the NRC does not have jurisdiction over the prisons. Again, however, that case is easily distinguished on its facts, because here NRC has the power completely to prevent impacts on environmental justice populations from severe accidents by refusing to grant the new license to Entergy, which is the no-action alternative..

In Metropolitan Edison, the Supreme Court established that an agency must evaluate the environmental impact of a proposed action when there exists a reasonably close causal relationship between a change in the physical environment and the effect at issue. Metro.

Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 767 (1983). The Staff inappropriately extends the reach of Metropolitan Edison into this case by bringing in the courts finding that fear arising from the risk of a nuclear accident was not an effect caused by a change in the physical environment and, thus, did not warrant consideration under NEPA. Staff Br. at 89. In Metropolitan Edison, residents who lived near a group of nuclear power plants objected to restarting a power plant that had been shut down for refueling when another nearby plant suffered a serious accident. The plaintiffs claimed that the NRC improperly failed to consider whether the psychological health of the nearby community residents might be 14

endangered by the risk of an accident at the plant, but the court found that the NRC was required to do no such assessment.

While Metropolitan Edisons standard of a reasonably close causal relationship is applicable to all cases under NEPA, its particular holding is based on facts that diverge sharply from this case. The court in Metropolitan Edison noted that there was no reasonably close causal relationship between a change in the physical environment and the effect at issue because the risk of an accident does not constitute a change in the environment. Therefore, the element of risk lengthens the causal chain beyond the reach of NEPA, and the NRC did not need to consider it. Metro. Edison, 460 U.S. at 775. In addition, the court found that the reasonably close causal relationship standard was not met because the harm alleged was psychological in nature, and therefore outside the scope of what an agency would be asked to investigate under NEPA. Id. at 776.

By contrast, the indirect impacts on prisoners have a direct causal connection to a radiation release. The NRC must consider the disproportionate physical harm that would befall inmates and corrections officers in such institutions in the event of an actual radiation release, which is a change in the physical environment. As shown by the testimony of Dr. Edelstein and Mr. Papa, this change in the physical environment would induce extreme fear and anxiety within the prison, which could in turn lead to violence and physical harm to both prison officers and inmates. The close causal connection of the physical harm to the radiation release, which is a foreseeable physical consequence of the proposed action, means that this impact must be considered in the NEPA analysis.

The Staff also attempts to break the close causal relationship between the release of radiation from the Indian Point nuclear plant and the disproportionate physical harm that could 15

befall prisoners at Sing-Sing and other correctional institutions, by misconstruing the case of Public Citizen.8 It suggests that NRCs lack of statutory authority over prisons, and other institutions, excuses a failure to examine the impacts upon EJ populations within those institutions. Staff Br. at 11, 89. The only support it offers for this proposition is Public Citizen, but that case actually shows that these impacts must be assessed. Moreover, if this proposition were true, NEPAs scope would be ludicrously narrow. Most of the impacts assessed in most environmental impact statements affect resources outside of the direct control of the agency authorizing the activity. For example, although FERC licenses dams, it does not directly have regulatory responsibility for the water quality of rivers. This lack of direct authority does not mean that the impacts upon water quality need not be assessed when FERC licenses a dam; such a result would be patently unreasonable.

In Public Citizen, the Federal Motor Carrier Safety Administration (FMCSA) was required to promulgate regulations (as well as conduct an environmental assessment) in response the Presidents lifting a ban on Mexican trucks coming into the United States. The plaintiffs claimed that the FMCSA should have conducted an environmental impact assessment - as opposed to the less stringent environmental assessment that it actually conducted - because of the close connection between the promulgation of the regulations and the entry of more Mexican trucks into the United States. The court found that the FMCSA did not need to conduct the more stringent study because it did not have the statutory authority to countermand the Presidents order and prevent the Mexican trucks from entering the United States. Staff attempts to use this holding to imply that the NRCs lack of statutory authority over prisons breaks the causal chain 8 Dept of Transp. v. Public Citizen, 541 U.S. 752 (2004).

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that would require the Board to examine the impact of a change in the physical environment on prisoners, but its arguments misconstrue the case and gloss over the critical facts at issue.

The Public Citizen court held that, where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant cause of the effect. Public Citizen, 541 U.S. 752 at 770.

However, the Staff glosses over a critical feature of this holding, namely that the agency had no ability to countermand the President's lifting of the moratorium or otherwise categorically to exclude Mexican motor carriers from operating within the United States. Id. at 766 (emphasis added). Unlike the FMCSCA - which had no authority to change the situation, whatever the results of its environmental study - the NRC here does have the ability to prevent disproportionate physical harm to prison inmates at Sing-Sing and other correctional institutions in the case of a nuclear accident, simply by refusing to grant the requested licenses to allow extended operation. The NRCs lack of statutory authority over prisons and other facilities does not have the chain-breaking effect of excusing it from examining impacts at these facilities, as Entergy incorrectly implies, because the NRC still has the power to prevent the ultimate result, contrary to the case in Public Citizen.

A more appropriate interpretation of Public Citizen can be found in Sierra Club v.

Mainella, 459 F. Supp. 2d 76, 94 (D.D.C. 2006). In Sierra Club, one allegation from environmental groups was that the National Park Service (NPS) should have considered the effects of surface drilling activities adjacent to a National Preserve before permitting directional oil and gas drilling operations under the National Preserve. In this case, the court did not accept an appeal to Public Citizen from the agency, noting that [t]he holding in Public Citizen extends 17

only to those situations where an agency has no ability because of lack of statutory authority to address the impact. Sierra Club. 459 F. Supp. 2d at 105.

Similarly, in this situation, despite its lack of statutory authority over prisons, the close causal relationship between re-licensing the plant and disproportionately harmful effects on prisoners in Sing-Sing and other institutionalized EJ populations, means that the NRC must include an assessment of the potential harm to this population in its EIS.

B. Indirect Impacts From Radiological Releases Are Within the Scope of the Hearing Entergy argues that this Board limited the scope of this contention to consider only significant and adverse radiological impacts on environmental justice populations within the scope of EC-3A. Ent. Br. at 72. [citing Indian Point LBP-08-13, 68 NRC 43, 200 (2008)]. We find that Entergy is incorrect because it misconstrued this Board Orders as it relates to the scope of this contention.

In that order, we admitted Clearwaters contention about prison populations, but rejected two other areas where Clearwater claimed disadvantaged populations would be disproportionately impacted. 68 NRC at 199-200. Instead of quoting the language of the order that applies to the admitted contention, Entergy has cherry-picked language from our rejection of a contention about cancer rates that stated [m]inority groups in the four-county region are more vulnerable to the adverse impacts of radiological and nuclear plant-induced chemical pollution in the environment than is the case for the general minority or total population of the United States, Id. at 200. (Emphasis provided.) (citing Hudson River Sloop Clearwater Inc.s Petition to Intervene and Request for Hearing (Dec. 10, 2007) at 41-42.

In the same order we proceeded to agree with Clearwater on its third claim that Entergy's ER is deficient because it does not supply sufficient information from which the 18

Commission may properly consider, and publicly disclose, environmental factors that may cause harm to minority and low-income populations that would be disproportionate to that suffered by the general population. 68 NRC at 200. Thus, the admitted contention includes both the direct and indirect disparate impacts.

In 2011, this Board admitted a slightly modified version of Clearwaters contention regarding EJ populations that could, potentially, be impacted by Entergys proposed actions. The amended contention stated, Entergys environmental report and the Final Supplemental Environmental Impact Statement contain seriously flawed environmental justice analyses that do not adequately assess the impacts of relicensing Indian Point on the minority, low-income and disabled populations in the area surrounding Indian Point. In the Matter of Entergy Nuclear Operations. (Indian Point Nuclear Generating Units 2 and 3), ASLBP No. 07-858-03-LR-BD01, 60 (2011). As this Board noted, the EJ populations of interest included not only the Sing Sing prisoners mentioned by in LBP-08-13, but also other EJ populations within 50 miles of Indian Point in preschools, nursing homes, shelters, hospitals, and minority and low-income residents in the region who lack access to private transportation. Id. at 56.

Furthermore, this Boards decisions on the admissibility of evidence matches the scope of the contention as interpreted by Clearwater. Despite Entergys attempt to exclude some impacts identified by Clearwater as psychological or indirect, this Board has repeatedly decided not to strike any of Clearwaters testimony accepting testimony and evidence addressing impacts claimed by Entergy to be purely psychological or concerning non-radiological impacts. In the Matter of Entergy Nuclear Operations (Indian Point Nuclear Generating Units 2 and 3), ASLBP No. 07-858-03-LR-BD01, 33-35 (2011).

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In sum, this Board did not limit the scope of the EJ contention to direct radiological impacts. Therefore, disparate impacts (both direct and indirect) that could affect environmental justice populations are within the scope of this contention.

VII. Conclusions Regarding Witnesses Presented A. Staff Witnesses The Staff presented two witnesses, Jeffery J. Rikcoff and Patricia A. Milligan. We find that Mr. Rickoff is experienced in carrying out environmental justice assessments and was involved in producing guidance about how such assessments should be conducted. However, we find it surprising that he failed to point out that the environmental justice portion of LIC-203, Rev. 2 explicitly states that accidents may cause disparate impact and instead stated that the regulations did not envisage assessment the disparate impacts of accidents. We therefore trteat Mr. Rickoffs testimony with caution. Ms Milligan is well qualified as an emergency planner, but does not have any experience with NEPA assessments of environmental justice. We therefore find she lacked expertise to judge the significance of disparate impacts under NEPA. She also failed to be forthright about the health effects of 10 rems of radiation.

B. Entergy Witnesses Entergy presented three witnesses, Donald P. Cleary, Jerry L. Riggs, and Michael Slobodien. With regard to Mr. Cleary, we find he is familiar with NRC rules and procedures, but failed to point out certain facets of those rules that are critical to resolving this case. This is of little import because these issues are primarily legal rather than factual. We find that Mr. Riggs is expert in using GIS analysis as part of environmental justice assessments. Finally, Mr.

Slobodien is well qualified and experienced in emergency planning, but his testimony was misleading with regard to the potential health effects of 10 rem of radiation. We therefore treat the rest of his testimony with caution.

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C. Clearwater Witnesses Clearwater presented a panel of nine witnesses in support of its contention. These witnesses were: (1) Dr. Michael Edelstein; (2) Stephen Filler; (3) Manna Jo Greene; (4) Dolores Guardado; (5) Dr. Andrew S. Kanter; (6) Dr. Erik Larsen; (7) Aaron Mair; (8) Anthony Papa; and (9) John Simms.

We find that Dr. Edelstein is well qualified and experienced to offer assessments on the disparate impacts that would be caused by a severe accident. Contrary to NRC and Entergy objections, we do not find his lack of formal experience in emergency planning or to be critical because contention CW-EC-3A is about assessment of impacts under NEPA, not about emergency planning. Moreover, his testimony drew reasonable inferences from the documents presented.

Mr. Filler provided an accurate and useful summary of the emergency planning documents. Although he is not an expert, we find he is a candid fact witness. Ms. Greene has training in healthcare and experience in environmental justice analysis. Most of her testimony summarized interviews that she had conducted with staff at EJ Institutions. Although the staff complains that she is not expert in the NRCs NEPA requirements, we find this is of little import because that is a legal issue, which we can resolve without factual testimony.

There is no dispute that Drs. Larsen and Kanter are well qualified and experienced in the areas in which they provided testimony. Mr. Aaron Mair has training in GIS analysis, long experience in environmental justice advocacy, and grew up in Peekskill. He is therefore extremely well suited to offer the testimony he has put forward in this matter, which largely concerns the nature of Peekskill and the degree to which minority communities are dependent on public transportation. Although Entergy complains that he does not have emergency planning 21

experience that is immaterial because he has pointed out factors unique to EJ communities that the Staff failed to take into account in the EJ assessment.

Similarly, both the Staff and Entergy complain that Mr. Papa and Mr. Simms do not have relevant expertise. However, they are testifying about facts that they are familiar with at first hand. Therefore these objections are irrelevant.

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CONCLUSION We find that the FSEIS and the Staffs hearing testimony fail to recognize proven disparate impacts and arbitrarily dismissed those impacts as insignificant. Furthermore, the Staff failed to do a comprehensive assessment of the potential disparate impacts resulting from severe accidents because it erroneously excluded them from consideration. We are unable to carry out the assessment for the Staff because we do not have sufficient information to do so and that is not the appropriate role of this Board. Therefore, the relicensing of Indian Point cannot proceed unless and until the NRC Staff amends the FSEIS to include the required analysis of environmental justice impacts that includes comprehensive and systematic consideration of the the potential disparate impacts resulting from severe accidents.

Respectfully submitted,

/s Richard Webster Public Justice 1825 K Street, NW Suite 200 Washington, D.C. 20006 Tel: (202) 797-8600 Karla Raimundi Environmental Action Legal Manager Hudson River Sloop Clearwater, Inc.

724 Wolcott Ave.

Beacon, NY 12508 845-265-8080 ext 7159 karla@clearwater.org Dated: May 3, 2013 23