ML13123A200

State of New York'S Reply to Entergy'S and NRC Staff'S Proposed Findings of Fact and Conclusions of Law for Consolidated Contention NYS-37

ML13123A200
Person / Time
Site:	Indian Point
Issue date:	05/03/2013
From:	Feiner L, Sipos J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24462, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13123A200 (12)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50

-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07

-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.

May 3, 2013

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x

STATE OF NEW YORK'S REPLY TO ENTERGY

'S AND NRC STAFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR CONSOLIDATED CONTENTION NYS

-37

Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224 i TABLE OF CONTENTS Page INTRODUCTION ................................

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1 POINT I NRC Staff Was Required to Analyze the Environmental Impacts of Conservation, Energy Efficiency and Renewable Generation in the No-Action Alternative

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2 POINT II The NYSDEC's Environmental Analysis of a Proposed Natural Gas-Fired Power Plant Is Not Inconsistent With t h e S t a t e's Position In This Case

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8 CONCLUSION

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10 State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 1 Pursuant to 10 C.F.R. § 2.712, the Atomic Safety Licensing Board's ("ASLB" or "Board") July 1, 2010 Scheduling Order at ¶ N, and the Board's February 28, 2013 Order, the State of New York hereby replies to Entergy and NRC Staff's Proposed Post-Hearing Findings of Fact and Conclusions of Law.

INTRODUCTION Entergy's and NRC Staff's Proposed Findings of Fact and Conclusions of Law provide no basis in fact or law to support a Board decision that the NRC Staff's analysis of the environmental impacts of the no

-action alternative in the Final Supplemental Environmental Impact Statement 1 ("FSEIS") adequately assessed the beneficial and adverse impacts of a decision to deny Entergy's application for renewal of its Indian Point Units 2 and 3 operating licenses for another 20 years. Thus, the Board should rule in New York's favor on Contention NYS

-37, find the no

-action alternative review inadequate, and remand the FSEIS to NRC Staff for further review.

New York State

's Post-Hearing Proposed Findings of Fact and Conclusions of Law ("State Proposed Findings") extensively delineate d the inadequacies of NRC Staff's no-action alternative analysis and will not be repeated here.

In their proposed findings, Entergy and NRC Staff both argue that Staff had no legal obligation to discuss energy conservation

, energy efficiency

, or renewable generation as possible consequence s of the no-action alternative

. According to Entergy and NRC Staff, because the stated purpose of the proposed action is to preserve Indian Point's provision of 2158 MW(e) of baseload generation capacity, evaluation of reduced

1 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Units Nos. 2 and 3, Final Report. NYS00133A

-133D.

State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 2 electricity use or non-baseload renewables in the no-action alternative does not advance that purpose and may be disregarded

.2 In response to New York's Contention 3 3 and its DSEIS comments, NRC Staff sought to address conservation/efficiency and renewable generation as potential environmental impacts of the no-action alternative in the FSEIS

. Staff's review and analysis, while more expansive than th at for prior

, unrelated license renewal applications, do no t satisfy NEPA's requirements

. POINT I NRC STAFF WAS REQUIRED TO ANALYZE THE ENVIRONMENTAL IMPACTS OF CONSERVATION, ENERGY EFFICIENCY AND RENEWA BLE GENERATION IN THE NO

-ACTION ALTERNATIVE Section 8.2 of the Generic Environmental Impact Statement for License Renewal provides the following guidance to NRC Staff for analyzing the environmental impacts of the no-action alternative:

Denial of a renewed license as a power

-generating capability may lead to a variety of potential outcomes. In some cases, denial may lead to the selection of other electric generating sources to meet energy demands as determined by appropriate state and utility officials.

In other cases, denial may lead to conservation measures and/or decisions to import power. In addition, denial may result in a combination of these different outcomes.

Therefore, the environmental impacts of such resulting alternatives would be included as the environmental impact s of the no-action alternative.

3 2 NRC Staff's Proposed Findings of Fact and Conclusions of Law Part 8: New York State Contentions 9, 33 and 37 (No

-Action Alternative)

(Mar. 22, 2013) ("NRC Staff Proposed Findings") at ¶¶ 8.39 , 8.80; Entergy's Proposed Findings of Fact and Conclusions of Law for Contention N YS-37 (Energy Alternatives)

(Mar. 22, 2013) ("Entergy Proposed Findings") at ¶¶ 118, 124-127. 3 NYS00131D, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Main Report, Final Report, U.S. Nuclear Regulatory Commission, NUREG 14 37, Vol. 1(1996) ("GEIS") at 8

-2 (emphasis added).

State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 3 In light of this language in the GEIS, it is hard to comprehend how NRC Staff and Entergy can argu e that conservation need not be considered in the no

-action alternative analysis. As Judge Wardwell noted during the initial oral argument on contention admissibility, this language from the GEIS is "pretty persuasive

" that energy conservation must be considered in the no

-action alternative. Transcript ("T r.") 227:19-228:07 (J. Wardwell).

Notably, Entergy was not able to explain why this language does not mean what it says.

See Tr. 228:21-231:05. Not surprisingly, Entergy and NRC Staff sidestep this GEIS language that explicitly directs Staff to include the environmental impacts of conservation

, or of a combination of different outcomes

, in the no-action alternative analysis.4 Indeed, this language underlies the Board's admission of Contention NYS-9/33/37 that Entergy's Environmental Report and the FSEIS's analysis of the no

-action alternative a re deficient.

5 Instead of acknowledging the language in the GEIS prescription for the no-action alternative, Entergy and NRC Staff mistakenly rely on its language related to the alternatives analysis

.6 According to the GEIS, the alternatives analysis is the appropriate context in which to ask what alternative single, discrete, technically feasible and

4 Instead, both Entergy and NRC Staff quote the much vaguer language in the GEIS from the introduction to the section Alternatives to License Renewal, "that energy conservation is a possible consequence of the no-action alternative.

" This introductory language precedes Section 8.2 which specifically addresses "the environmental impacts of the no-action alternative."

Entergy Proposed Findings at ¶ 127; Staff Proposed Findings at ¶ 8.43. 5 Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing),

LBP-08-13, 68 N.R.C. 43 (Jul. 31, 2008) (ML082130436) at 51

. 6 NRC Staff Proposed Findings at ¶ 8.39; Enterg y Proposed Findings at ¶ 118.

State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 4 commercially viable electric generating sources could provide the same baseload capacity as the proposed baseload generating project.7 The no-action alternative analysis in a license renewal proceeding asks an entirely different question

-- what are the "potential outcomes" of replacing Indian Point generation if its licenses are not renewed

.8 As set forth in the GEIS, those possible consequences or outcomes include the reduction in demand for power from Indian Point Unit 2 or Unit 3 through conservation and energy efficiency , the selection of other generating sources

, and the importation of power; the no-action analysis must include the impacts of "such resulting alternatives

."9 Entergy suggests that the baseload power limitation applies to the no

-action analysis, because the "NRC should appropriately consider an applicant's economic goals (e.g., the goal of generating baseload power) when developing reasonable alternatives "10 and that this consideration should inform the no-action alternative as well. However, the issue presented in four of the five cases cited by Entergy for this proposition is consideration of the applicant's economic goals in the alternatives analysis.11 In the no-action alternative, the applicant is not proposing any alternative to its preferred goal

- relicensing. Rather, the issue is what is likely to arise to replace the capacity of a shuttered Indian Point facility , regardless of the applicant

's preference.

7 NY S00131D, GEIS at 8-1. 8 NYS00131D, GEIS at 8

-2. 9 Id. 10 Entergy Proposed Findings at ¶ 126.

11 See, e.g., Beyond Nuclear v. U.S. Nuclear Regulatory Commission, 704 F.3d 12, 15 (1st Cir. 2013); Envtl. Law and Policy Center v. U.S.N.R.C., 470 F.3d 676, 679 (7th Cir. 2006), NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI 05, 75 N.R.C. __, slip op. at 49 (Mar. 8, 2012); FirstEnergy Nuclear Op. Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI 08, 75 N.R.C. __, slip op. at 9 (Mar. 27, 2012)

.

State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 5 In the fifth case , Matter of USEC, Inc. (American Centrifuge Plant)

,12 the applicant sought a license from the NRC to construct and operate a uranium enrichment facility.

The Commission rejected a contention from a proposed intervenor that the no-action alternative would be "more beneficial to the site than the proposed action" because "Piketon could be an industrial heaven employing many thousands if it were cleaned up."13 American Centrifuge provides no support for Entergy

's claim that an applicant' s economic preference to produce baseload power must prevail in the no-action analysis in a license renewal proceeding. The alleged no

-action alternative in American Centrifuge was essentially the intervenor

's speculation regarding what might occur on the site if the new uranium enrichment facility w as not built. Here, in contrast, the NRC has recognize d in the GEIS for an existing facility license renewal that conservation and increases in renewables are likely consequences of the no-action alternative and direct ed NRC Staff to analyze them to inform the Board and Commission's consideration of a license renewal application.

NRC Staff was required by NEPA and the Staff's own GEIS to analyze the impacts of conservation and renewable generation in the no

-action alternative in the FSEIS , but that analysis was deficient, as delineated in detail in the State

's initial proposed findings and as briefly summarized here.

In particular, NRC Staff's erroneous inclusion of a lengthy , 10-page discussion of new coal-fired generation as a theoretically possible consequence of the no

-action alternative

--even while, at the same time, claiming to exclude coal from the range of reasonable alternatives

- distorts the "no action"

12 CLI-06-10, 63 N.R.C. 451 (2006)

. 13 Id. at 466.

State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 6 alternative and, therefore, the environmental review, towards relicensing. See Tr. 3104:25 - 3105:19 (Stuyvenberg)

. New coal generation in the N ew York City metropolitan area (Zones H, I , J, K) is not a viable alternative, as recognized by NRC Staff, and therefore not a likely consequence of the no

-action alternative. See Tr. 3105:09-11; 3022:04-16; NYS00133C at 8-1, 8-28 , 8-43. In fact, the New York State Public Service Commission

's recent approvals of two new large capacity power projects from natural gas generation and hydroelectric importation definitively demonstrates that new coal generation will not be considered as an option in New York.14 Moreover, although the FSEIS asserts that no alternative was excluded from consideration due to constraints in the transmission system,15 it also states in Section 9.1.2 "that significant resource commitments would also be required for development of transmission capacity.

"16 When questioned by the Board about this contradiction, NRC Staff acknowledged that the "significant resource" language was a holdover from the DSEIS and should have been removed from the FSEIS because it was inconsistent with Staff's position that transmission constraints will not eliminate any energy alternative from consideration.17 Finally, in response to the Board's incisive questions, NRC Staff's candid acknowledgement that it did not assess the positive effects of energy conservation, 14 State of New York Public Service Commission, Case 11

-E-0593, Order Granting Certificate of Public Convenience and Necessity, Petition of Cricket Valley Energy Center, LLC (Feb. 14, 2013); State of New York Public Service Commission, Case 10-T-0139, Order Granting Certificate of Environmental Compatibility and Public Need, Application of Champlain Hudson Power Express, Inc.

The State has filed a motion to introduce these PSC Orders into evidence

see also NYS000443, NYS000444, NYS000445, and NYS00448A

-B. 15 NYS00133C at 8

-27. 16 NYS00133C at 9

-6. 17 Tr. 3214:24

- 321 7: 01 (Stuyvenberg).

State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 7 demand reduction and other alternate energy sources, underscores the fundamental flaws in both the site-specific FSEIS review in this proceeding and the Commission's approach to NEPA compliance.18 The Commission's NEPA regulation sets the standard of review: to determine whether or not "the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be unreasonable.

"19 However, with respect to the Northeast and New York, th e Commission's 1996 regulation is premised upon a largely obsolete/outdated energy market structure founded upon State Public Utility Commis sion regulation of integrated utilities.20 Since deregulation in 1995, the private corporate New York State Independent System Operator ("

NYISO") controls the State's energy market

the New York State Public Service Commission does not. Merchant generators like Entergy participate in the NYISO market, but are not bound to State transmission or energy diversity policy, which have remained the province of the New York State Public Service Commission.

Thus, the NRC's NEPA standard, which on its face appears deferential to State interests, actually skews the no-action analysis and environmental review process towards relicensing , effectively "outsourcing" the Commission's NEPA determination to the

18 As discussed in the State's initial Proposed Findings at ¶ 179, "the FSEIS provides no discussion of the positive economic benefits of conservation and efficiency because its NEPA process only permits analysis of negative impacts,"

-- a limitation which NRC Staff witness Stuyvenberg acknowledged is "perhaps a kind of a flaw in the system the agency uses.

" State Proposed Findings at ¶¶ 118-120. In fact, the CEQ regulation s require that beneficial impacts be identified, acknowledged and discussed in a NEPA review. 40 C.F.R. § 1508.27(b)(1).

19 10 C.F.R. § 51.95(c)

(4). 20 62 Fed. Reg. 44071, Final Policy Statement on the Restructuring and Economic Deregulation of the Electric Utility Industry (Aug. 19, 1997).

State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 8 existing merchant generator. These material problems in the FSEIS collectively give an inaccurate impression to the decision maker

, s ee Tr. 3213: 04-16 (J. McDade), are contrary to NEPA and abdicate the Commission's responsibility under th at statute.

POINT II THE NYSDEC'S ENVIRONMENTAL ANALYSIS OF A PROPOSED NATURAL GAS-FIRED POWER PLANT IS NOT INCONSISTENT WITH THE STATE'S POSITION IN THIS CASE The New York State Department of Environmental Conservation ("DEC") conducted an environmental impact analysis of the proposed Cricket Valley Energy Center , a new natural gas electric generating facility , under the State Environmental Quality Review Act ("SEQR A"), the state analog to the National Environmental Policy Act ("NEPA").21 In the SEQR A alternatives analysis, DEC considered demand side management and renewable wind or solar generation as alternatives to the new project, and rejected them because they would not replace the baseload electric generating capacity that the project would supply.22 NRC Staff and Entergy assert that DEC's analysis in these SEQR findings is inconsistent with the State's position here, that energy conservation and renewables must be considered as possible consequences of refusing to relicense Indian Point, even though they do not replace baseload generation.23 There is no inconsistency in position because Entergy is not comparing "apples to apples.

" First of all, Entergy and NRC Staff overlook the fact that the GEIS calls for the analysis of energy conservation and

21 NYS000444 State Environmental Quality Review (SEQR), Findings Statement (Sept

. 26, 2012).

22 NYS000444 at 29

. 23 NRC Staff Proposed Findings at ¶ 8.44 n.40; Entergy Proposed Findings at ¶ 128.

State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 9 efficiency, under the NEPA no

-action alternative.24 Furthermore, the fact that DEC limited its SEQRA alternatives analysis to other baseload generation is simply not relevant to the State's position here that the impacts of energy conservation and renewables must be considered as possible consequences of the no-acti on alternative if Indian Point is not relicensed.

NRC Staff and Entergy's argument otherwise is based on their conflati on of the alternatives analysis in the FSEIS, which is not at issue in Contention NYS 9/33/37

, and the no

-action analysis

, which is. Regarding the Cricket Valley SEQR A review, Entergy also notes that DEC "provided no separate evaluation of conservation measures and renewables under the no

-action alternative.

"25 This observation is also irrelevant and fails to demonstrate any inconsistency in the State's position. The need to consider the impacts of conservation and renewables in this proceeding derives from the NRC's GEIS for license renewal of nuclear generating facilities, specifically the recognition that if the facility is not relicensed, the capacity of the facility may need to be replaced

- and efficiency and conservation can provide that capacity

. In a similar way, renewables and purchased power can also provide capacity.

Thus, there is no inconsistency between DEC's SEQR findings for the new Cricket Valley gas-fired power plant and the State's position that energy conservation and renewables must be considered in the no

-action alternative analysis in this license renewal proceeding.

24 NYS00131D GEIS at 8

-2. 25 Entergy Proposed Findings at ¶ 128.

State of New York Reply Proposed Findings of Fact and Conclusions of Law Consolidated Contention NYS

-37 10 CONCLUSION For the foregoing reasons, and those expressed in the State's Proposed Findings, NRC Staff's and Entergy's Proposed Findings of Fact and Conclusions of Law provide no basis in fact or law for the Board to find in favor of Entergy and/or NRC Staff on Consolidated Contention NYS

-37. The Board should find for the State of New York on Consolidated Contention NYS

-37 and remand to NRC Staff to correct the deficiencies in the FSEIS.

Respectfully submitted, Signed (electronically) by Signed (electronically) by Lisa Feiner Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway New York, New York 10271 (212) 416-84 7 9 John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251 Dated: May 3, 2013