ML14153A703

State of New York Reply in Support of Petition for Review of Atomic Safety and Licensing Board'S April 1, 2014 Decision Denying the State'S Motion to Reopen the Record and for Reconsideration of the Board'S November 27, 2013 Partial Initial

ML14153A703
Person / Time
Site:	Indian Point
Issue date:	06/02/2014
From:	Deluca K, Sipos J State of NY, Office of the Attorney General
To:	Apostolakis G, Macfarlane A, Magwood W, Ostendorff W, Kristine Svinicki NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 26017
Download: ML14153A703 (20)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE COMMISSIONERS KRISTINE L. SVINICKI, WILLIAM D. MAGWOOD, IV, GEORGE APOSTOLAKIS, AND WILLIAM C. OSTENDORFF AND CHAIRMAN ALLISON M. MACFARLANE

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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. June 2, 2014

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x STATE OF NEW YORK REPLY IN SUPPORT OF PETITION FOR REVIEW OF ATOMIC SAFETY AND LICENSING BOARDS APRIL 1, 2014 DECISION DENYING THE STATES MOTION TO REOPEN THE RECORD AND FOR RECONSIDERATION OF THE BOARDS NOVEMBER 27, 2013 PARTIAL INITIAL DECISION CONCERNING CONSOLIDATED CONTENTION NYS-12C Office of the Attorney General of the State of New York The Capitol State Street Albany, New York 12224

TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS ............................................... iv INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 1

1. Having Found That the State Raised a Significant Issue, the Board Erred in Ruling That the Issue Was Not Material...........................................................................1 A. Staff Changed Its 30-Year History of Repeating the Same Decontamination Times..............................................................................................................................1 B. The Consequence Study Is Relevant to the Indian Point Analysis ................................2 C. The State Did Not Ignore Averaging .........................................................................3 D. A Single Sentence in NUREG/CR-3673 Does Not Justify 60 and 120 Day Inputs..............................................................................................................................7

2. The States Motion to Reopen and Reconsider Was Timely ............................................8

3. The States Petition Is Consistent with NRC Regulations and the Commissions Order .................................................................................................................................9 CONCLUSION ............................................................................................................................. 10 i

TABLE OF AUTHORITIES Page(s)

DECISIONS U.S. Court of Appeals and District Courts Oxygenated Fuels Assn v. Pataki, 293 F. Supp. 2d 170 (N.D.N.Y 2003) .................................................................................8 Natl Assn of Regulatory Utility Commrs v. DOE, 680 F.3d 819 (D.C. Cir. 2012) ...........................................................................................10 San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006),

cert. denied, 549 U.S. 1166 (2007) ......................................................................................4 Sierra Club v. U. S. Army Corps of Engrs, 701 F.2d 1011 (2d Cir. 1983)...............................................................................................6 Nuclear Regulatory Commission AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-08-28, 68 N.R.C. 658 (2008)........................................................................................8 Consumers Power Co.

(Midland Plant, Units 1 and 2),

ALAB-123, 6 A.E.C. 331 (1973).........................................................................................6 Entergy Nuclear Generation Co.

(Pilgrim Nuclear Power Station),

CLI-10-11, 71 N.R.C. 287 (Mar. 26, 2010) .........................................................................6 Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3),

Partial Initial Decision (Ruling on Track 1 Contentions),

LBP-13-13, 78 N.R.C. __, slip op. (Nov. 27, 2013) .................................................. passim Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3),

Order of the Secretary on Behalf of the Commission (Feb. 28, 2014) .....................................................................................................................9 Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3),

Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contentions)

(Apr. 1, 2014) ............................................................................................................ passim ii

TABLE OF AUTHORITIES Page(s)

La. Power & Light Co.,

(Waterford Steam Electric Station, Unit 3)

ALAB-732, 17 N.R.C. 1076 (1983) ....................................................................................6 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-05, 75 N.R.C. 301 (2012)........................................................................................6 Pac. Gas & Elec. Co.

(Diablo Canyon Power Plant ISFSI),

CLI-06-27, 64 N.R.C. 399 (2006)........................................................................................7 Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation),

CLI-05-12, 61 N.R.C. 345 (2005)........................................................................................7 FEDERAL REGULATIONS 10 C.F.R.

§ 2.341..................................................................................................................................1

§ 2.341(b)(1) ........................................................................................................................9

§ 2.341(b)(6) ......................................................................................................................10

§ 2.341(c)(2) ......................................................................................................................10 40 C.F.R.

§ 1502.22(b)(4) ....................................................................................................................4 51 C.F.R.

Part 51, Subpart A, Appendix B, Table B-1 ........................................................................4 iii

GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS April 1 Order Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014) (ML14091A319)

April 28, 2014 Petition State of New York Petition for Review of Atomic Safety and Licensing Boards April 1, 2014 Decision Denying the States Motion to Reopen the Record and for Reconsideration of the Boards November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS-12C (ML14118A519)

Board Atomic Safety and Licensing Board Entergy Answer Applicants Answer Opposing New York States Petition for Review of April 1, 2014 Board Order Denying Reconsideration of LBP-13-13 (May 23, 2014)

(ML14143A411) 1 February 14, 2014 Petition State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS-12C (Feb. 14, 2014)

(ML14045A412)

FSEIS Final Supplemental Environmental Impact Statement NUREG-1437, Volumes 1-3: Supplement 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) (NRC000004) 2 (NYS00133A-J)

GEIS NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Vol. 1-2 (May 1996)

(NRC000002) 3 (NYS00131A-I)

Ghosh Aff. Affidavit of S. Tina Ghosh in Support of NRC Staffs Opposition to State of New Yorks Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Dec. 23, 2013)

(ML13357A775 package).

1 Entergy submitted an erratum to its answer on May 28, 2014 (ML14148A483).

2 NRC000004 is a one-page exhibit that [i]ncorporates New York Exhibit NYS000133A-J.

3 NRC000002 is a one-page exhibit that [i]ncorporates New York Exhibit NYS00131A-I.

iv

GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS Lemay Decl. Declaration of François Lemay in Support of the States Motion to Reopen the Record and for Reconsideration of NYS-12C (Jan. 22, 2014) (ML14022A273)

Lemay Rebuttal Test. Pre-filed Rebuttal Testimony of NYS Expert Lemay on Contention NYS-12C (Jun. 29, 2012) (NYS000420)

MACCS2 MELCOR Accident Consequence Code Systems Version 2 MELCOR Methods for Estimation of Leakages and Consequences of Releases NCF Non-Containment Failure NEPA National Environmental Policy Act NRC Nuclear Regulatory Commission NRC Staff Proposed NRC Staff Proposed Findings of Fact and Conclusions of Findings Law Part 5: Contention NYS-12C (Severe Accident Mitigation Alternatives Analysis Decontamination and Cleanup Costs) (March 22, 2013) (ML13081A698)

NRC Staff Test. Pre-filed Testimony of NRC Staff Witnesses Bixler, Ghosh, Jones, and Harrison on NYS-12/16 (Mar. 30, 2012)

(NRC000041)

NUREG/CR-3673 NUREG/CR-3673, Economic Risks of Nuclear Power Reactors Accidents (May 1984) (NRC000058)

NYS Proposed Findings State of New Yorks Proposed Findings of Fact and Conclusions of Law for Contention NYS-12/12A/12B/12C (Mar. 22, 2013) (ML13081A757)

NYS Reconsideration State of New York Motion to Reopen the Record and For Motion Reconsideration on Contention NYS-12C (Dec. 7, 2013)

(ML13341A002 (package with attachments))

NYS Reconsideration State of New York Reply in Support of Motion to Reopen Reply the Record and for Reconsideration of Contention NYS-12C (Jan. 22, 2014) (ML14022A275)

NYS-12C Consolidated Contention NYS-12/12A/12B/12C OECR Offsite Economic Cost Risk v

GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS Partial Initial Decision Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 N.R.C. __, slip op. (Nov. 27, 2013) (ML13331B465).

SAMA Severe Accident Mitigation Alternatives Sandia Sandia National Laboratories Sipos Decl. Declaration of Assistant Attorney General John Sipos in Support of State of New Yorks Motion to Reopen the Record and for Reconsideration of Board Ruling LBP-13-13 on Contention NYS-12C (Dec. 7, 2013) (Attachment 1, ML13341A003)

SOARCA NUREG-1935, State-of-the-Art Reactor Consequence Analysis Report Spent Fuel Pool Consequence Study of a Beyond Design Basis Earthquake Consequence Study Affecting the Spent Fuel Pool for a U.S. Mark 1 Boil Water Reactor, ML13256A342 (final) October 2013, and ML13133A132 (draft) June 2013 (Attachment 7 to States Motion to Reopen the Record and for Reconsideration of NYS-12C)

Staff Answer NRC Staff's Answer to the State of New York's Petition for Review of the Atomic Safety and Licensing Board's Order of April 1, 2014 (May 23, 2014) (ML14143A415)

TIMDEC MACCS input parameter for the time required for completion of decontamination levels Tr. Transcript of Evidentiary Hearing before Atomic Safety and Licensing Board, Docket Nos. 50-247-LR & 50-286-LR, ASLBP No. 07-858-03-LR-BD01 vi

Pursuant to 10 C.F.R. § 2.341, the State of New York submits this reply to Entergy and Staffs May 23, 2014 answers to the States petition to review the Atomic Safety and Licensing Boards April 1, 2014 Order denying the States December 7, 2013 motion to reopen the record and for reconsideration of the Boards November 27, 2013 Partial Initial Decision. 1 INTRODUCTION Although the Board found that the State raised a significant issue, it erred in ruling that the NRC Staffs TIMDEC inputs in another severe accident study were not material. Just one month after its witnesses testified that 60 and 120 day inputs were reasonable and the only inputs that had been used for decades, Staff used 365 day decontamination time inputs to the MACCS2 computer code to calculate severe accident impacts. Staff failed to correct its testimony and briefs or disclose in this proceeding its use of 365 days. In the Partial Initial Decision, the Board upheld the 60/120 day decontamination time input values based on Staffs testimony, resulting in an underestimation of severe accident costs for Indian Point and a flawed mitigation analysis.

Staffs use of 365 days in lieu of 60/120 days materially altered the record here.

ARGUMENT

1. Having Found That the State Raised a Significant Issue, the Board Erred in Ruling That the Issue Was Not Material A. Staff Changed Its 30-Year History of Repeating the Same Decontamination Times Staff unequivocally stated that the 60 and 120 day TIMDEC values have a long history of use and continue to be used in its March 2013 post-hearing submission to the Board even though four months earlier its own witnesses had used 365 day TIMDEC values for severe accident MACCS2 runs. Compare NRC Staff Proposed Findings ¶ 5.41 (March 22, 2013) 1 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014)

(ML14091A319) (April 1 Order); Partial Initial Decision, Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 N.R.C. __, slip op. (Nov. 27, 2013) (ML13331B465).

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(ML13081A698) with Ghosh Aff. ¶ 3 (confirming that the Consequence Study used 365 day TIMDEC inputs). 2 Contrary to NRC Staffs claim (Staff Answer at 17-18), the States filings on reconsideration have included record citations showing the unbroken repetition of 60 and 120 day values. 3 Staffs approval of the 60 and 120 day input values is all the more implausible given its actions one month after the evidentiary hearing on NYS-12C when it used 365 day input values for a MACCS2 analysis of the offsite radiation releases of various spent fuel pool severe accident scenarios, which are relevant to the accident scenarios modeled for Indian Point.

Despite find[ing] that New Yorks motion addressed a significant issue (April 1 Order at 2), the Board erred by not reopening NYS-12C and reconsidering its ruling. NRC Staff failed to disclose its about-face after telling the Board it had been examining the decontamination times for over 37 years and always used 60 and 120 days or an average of 90 days. NRC Staff Test. at 89-90. Allowing such prejudicial behavior on the part of Staff especially after it failed to disclose in this proceeding its MACCS2 runs using 365 days when the Board determined the issue is significant constitutes clear error, manifest injustice and meets any other standard referenced by Staff or Entergy. 4 B. The Consequence Study Is Relevant to the Indian Point Analysis The State submitted ample evidence showing that the Consequence Studys decontamination times are relevant to the Indian Point SAMA analysis. The fact that the Consequence Study examined severe spent fuel pool accidents does not mean it has nothing to 2

Staff submitted the Ghosh Affidavit to respond to the States reconsideration motion (ML13357A775).

3 See Sipos Decl. ¶¶ 16-18 (Dec. 7, 2013) (Attach. 1, ML13341A003); April 28, 2014 Petition at 6-8.

4 Staff and Entergy conflate and confuse the many applicable legal standards for this petition. These include standards governing (1) motions for reconsideration, (2) motions to reopen, (3) petitions for Commission review of a Board decision, and (4) NEPA. The State notes that most of the case law cited by Entergy and Staff address attempts to reopen the record to file 11th hour new contentions and, thus, those cases are irrelevant to the States motion. See Staff Answer at 8 and cases cited therein.

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do with severe reactor accidents as Entergy argues (Entergy Answer at 11). To the contrary, using the MACCS2 code, the Consequence Study modeled accident scenarios that are comparable to the Indian Point SAMA analysis modeled range of severe accidents, i.e. release categories. 5 All severe accidents, by definition, are challenging, low probability events. See NRC000002/NYS00131C, NUREG-1437 GEIS (May 1996) at 5-1 (A severe accident is one involving multiple failures of equipment or function and therefore, whose likelihood is generally lower than design-basis accidents but whose consequences are much higher.). The Consequence Studys frequency of occurrence of 10-7 per reactor year (Ghosh Aff. ¶ 3) in on par with the frequencies 6 of several of the accident scenarios, i.e. releases, examined by Entergy in its Indian Point SAMA analysis. ENT000464 at Tables 5, 6.

Both the Consequence Study accident scenarios and the Indian Point accident scenarios have associated source terms, contaminated land areas, and affected population. Lemay Decl. ¶

8. As the State explained, all of these factors can be compared using the number of workers required to decontaminate following the Consequence Study accident scenarios with the number of workers required to decontaminate following the Indian Point accident scenarios. Id. The State created a chart that compares the worker values for all accident scenarios (not just EARLY HIGH). Id. This chart shows the similarities between the Consequence Study accidents and the Indian Point SAMA accidents (i.e., release categories). Id.

C. The State Did Not Ignore Averaging The Consequence Studys TIMDEC inputs constitute additional evidence on a matter 5

The applicant selects eight different categories of severe accidents to model, called release categories.

NYS000420 Lemay Rebuttal Test. at 11; Tr. 1905:2-6 (Teagarden) (We have eight bins, so to speak, release categories postulated as part of the SAMA analysis for Indian Point of different types of releases that could occur to the environment.).

6 The frequency of a release category represents the likelihood that the release category is postulated to occur within one year. Essentially, frequency is a probability expressed on a per year basis.

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already considered by the Board namely, whether 60 and 120 day decontamination times are too low. The SAMA analysis is an analysis of severe accidents, not worst case scenarios. It is carried out as part of NRC Staffs obligation to take a hard look at impacts which have catastrophic consequences, even if their probability of occurrence is low. 40 C.F.R. § 1502.22(b)(4); see also Part 51, Subpart A, Appendix B, Table B-1; San Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016, 1028, 1030-34 (9th Cir. 2006), cert. denied, 549 U.S. 1166 (2007) (explaining the difference between a worst case scenario and NEPAs current requirements).

As the States expert explained, the MACCS2 input values should be be best estimate[s]

appropriate for the release category were trying to simulate. Tr. 1937:18-21 (Lemay). Staff and Entergy agreed. Tr. 1937:11-12 (Bixler) (use the best value that you think you have for that particular parameter.); Tr. 1937:2-3 (Teagarden). Although a no containment failure (NFC) accident was one of the release categories modeled by Entergy, all other categories had larger radiation releases, with EARLY HIGH exceeding Fukushima, and EARLY MEDIUM and LATE HIGH having releases similar to Fukushima:

Activity of Cs-137 released 1.00E+17 Fukushima 1.00E+16 Activity released (Bq) 1.00E+15 1.00E+14 IP2 1.00E+13 IP3 1.00E+12 1.00E+11 NCF EARLY EARLY EARLY LATE LATE LATE LOW LATE HIGH MEDIUM LOW HIGH MEDIUM LOWLOW Release Category NYS000420 Lemay Rebuttal Test. at 12 (using data from Entergys MACCS2 input and output 4

files as compared to Fukushima release data); see also Tr. 2184:6-2185:5 (Lemay).

Staff and Entergys criticisms of the State overlook the mechanics of the SAMA analysis:

• The applicant runs the MACCS2 code for each release category.

• The MACCS2 code outputs offsite economic costs for each release category.

• The applicant weights each release categorys costs by that categorys frequency.

• The applicant averages the frequency weighted costs for each of the eight release categories to determine the total costs (OECR) used in the SAMA analysis.

See generally NYS Petition at 27-30; see also Tr. 2191:20-22 (Teagarden) (MACCS does not actually multipl[y] the frequency, you do that yourself at the end.). As the State has explained, some of the eight modeled release categories have a relatively small economic impact, while others have a relatively large economic impact. See, e.g., Lemay Decl. ¶ 10. Nevertheless, Staff approved 60 day (light decontamination) and 120 day (heavy decontamination) values for all accident scenarios.

Release Category Entergy/NRC Staff (in ascending order based on TIMDEC Values Offsite Economic Cost Risk)

NCF 60 days, 120 days LATE LOWLOW 60 days, 120 days LATE LOW 60 days, 120 days EARLY LOW 60 days, 120 days LATE MEDIUM 60 days, 120 days EARLY MEDIUM 60 days, 120 days LATE HIGH 60 days, 120 days EARLY HIGH 60 days, 120 days The State demonstrated that using 365 day time inputs for the Indian Point SAMA analysis would almost double the costs (OECR). 7 Id. ¶ 12. This is a material difference. By using 7

Doubling of costs occurs both when using 365 day inputs for all the release categories and when using 365 day inputs for release categories with the highest contribution to total OECR (EARLY HIGH, EARLY MEDIUM, LATE HIGH, LATE MEDIUM) and continuing to use 60 and 120 days for the others (NCF, EARLY LOW, LATE LOW, LATE LOW LOW). Lemay Decl. ¶ 12.

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unreasonably short decontamination times for the more severe accidents at Indian Point, Staff significantly underestimates the total off-site economic cost risk (OECR). Id. ¶ 9.

Entergy and Staff incorrectly argue that materiality can only be shown if an alleged deficiency will make an additional SAMA cost effective. The Commission refers to this type of materiality in NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 N.R.C. 301 (2012)), which cites Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 N.R.C. 287, 317 (Mar. 26, 2010). Pilgrim CLI-10-11 does not cite any legal support for this proposition; nor could it, because the standard under NEPA is not materiality. The correct standard is whether the FSEIS qualifies as an adequate compilation of relevant information that can provide the basis for an informed evaluation or a reasoned decision. Sierra Club v. U.S. Army Corps of Engrs, 701 F.2d 1011, 1029-30 (2d Cir. 1983).

Moreover, in Pilgrim CLI-10-11, the applicant (Entergy) put forth evidence that changing the parameters cited by interveners would increase the SAMA costs by less than four percent, but the benefit would have to increase by more than 100 percent to make any additional SAMAs cost effective. Pilgrim CLI-10-11 at *6-7. Here, the States evidence shows a much greater impact because using 365 day TIMDEC values doubles SAMA costs. Lemay Decl. ¶ 12. Neither Entergy nor Staff has challenged the States MACCS2 runs, which are sufficient to meet the States burden on this contention to bring forth evidence demonstrating that the SAMA analysis for Indian Point is unreasonable. See La. Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076, 1093 (1983) (citing Consumers Power Co.

(Midland Plant, Units 1 and 2), ALAB-123, 6 A.E.C. 331, 345 (1973)).

As further evidence in this proceeding, the State pointed out that only an 11% increase in costs is required to render one more mitigation measure cost-beneficial. April 28, 2014 Petition 6

at 16. The 11% comes from Entergys efforts to analyze the effect that population input flaws would have on the required SAMA analysis in the context of NYS-16B. 8 At the hearing, the Board stated that the State could use this evidence in NYS-12C. Tr. 2338:10-20 (J. McDade). 9 Entergys witnesses did state that they would need to conduct additional analysis including MACCS2 runs to determine the exact effect of the SAMA cost-benefit analysis (Tr.

2525:20-2527:21 (J. McDade/Potts/Teagarden/Liberatore)), but neither Entergy nor Staff performed such an analysis, and the Commission should disregard Entergys counsel speculation on the matter. Entergy Answer at 18-19. 10 The bottom line is that a doubling of costs based on the 365 day inputs selected by Staff in the Consequence Study is sufficient to require Staff to review the Indian Point decontamination time inputs in a supplemental NEPA analysis. 11 D. A Single Sentence in NUREG/CR-3673 Does Not Justify 60 and 120 Day Inputs Staff and Entergy maintain that NUREG/CR-3673 along with repeated use of 60 and 120 days is sufficient to justify using those values for Indian Point. NUREG/CR-3673 assumes in a single sentence a mean time to completion of 90 days for the decontamination efforts.

8 See ENT000006 (G. Teagarden, MACCS2 IP2 Population Sensitivity Case, Jan. 2012); ENT000589 (MACCS2 Sensitivity Analysis for NYS-16 Using Dr. Sheppards Proposed Data, Oct. 9, 2012).

9 Staff incorrectly claims that the motion to reopen must be sufficient to withstand summary disposition (Staff Answer at 8). As Private Fuel Storage explained, longstanding agency practice holding that a party seeking to reopen a closed record to introduce a new issue (as opposed to additional evidence on a matter already considered) must back its claim with enough evidence to withstand summary disposition.

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 N.R.C. 345, 348 (2005) (emphasis added). Here, the State submitted further support that was previously unavailable on a matter it already raised in NYS-12C. The State did not run afoul of [the] prohibition against raising new arguments in a motion for reconsideration set out in the cases Entergy and Staff cite. See, e.g., Pac.

Gas & Elec. Co. (Diablo Canyon Power Plant ISFSI), CLI-06-27, 64 N.R.C. 399, 402 (2006).

10 The Commission should also reject the unsupported allegations of Dr. Ghosh cited by Entergy (Entergy Answer at 19). See NYS Proposed Findings ¶¶ 342-352.

11 Nor has the State ignored conservatisms undergirding the IPEC SAMA analysis. Entergy Answer at 18-19. This conservatism rationale was not adopted by the Board, likely because the record does not support a finding that uncertainty factors or the other types of alleged conservatism can account for the failure to develop site-specific inputs. See, e.g., NYS Reply Proposed Findings at 15-18.

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NRC000058 at 6-25; Tr. 2249:13-15 (Harrison) (the NUREG/CR-3673 authors just have a sentence that says the mean time to decontamination is 90 days.). Entergy attempts to assert that NUREG/CR-3673 examined source terms for different accidents, but nothing in NUREG/CR-3673 shows that 90 days represents anything close to an average decontamination time for numerous postulated accident scenarios (Decision at 283). There is no time data or even an explanation of any mathematical process to calculate an average value based on identifiable data. Attempts to read more into NUREG/CR-3673 are unsupported and should be disregarded.

Likewise, the repetition of 60 and 120 days in NRCs SOARCA study does not justify their continued use here. SOARCA does not consider costs associated with a reactor accident.

ENT000455, NUREG-1935, SOARCA Draft Report for Public Comment (Jan. 2012) at 63.

Thus, there is no reason to afford any weight to the fact that SOARCA repeats 60 and 120 days, especially when the Consequence Studys MACCS2 analysis used 365 days.

2. The States Motion to Reopen and Reconsider Was Timely As an initial matter, the Board . . . did not find the Motion to Reopen untimely, so whether the motion satisfied the timeliness requirements of 10 C.F.R. § 2.326(a)(1) is not at issue now. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 N.R.C. 658, 669 n.44 (2008). The State did not receive the native MACCS2 files until November 26, 2013. 12 Sipos Decl. ¶ 6. Following the November 27 Partial Initial Decision, the State timely filed its motion. The draft Consequence Study itself did not mention TIMDEC, and did not make clear that Staff and its Sandia consultants selected a different value than had been used in earlier MACCS2 analyses. Additionally, upon reviewing the draft Consequence Study in 12 In cases involving computer models, it is appropriate for a partys experts to have access to the native format files. See Oxygenated Fuels Assn v. Pataki, 293 F. Supp. 2d 170, 178 (N.D.N.Y 2003).

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July 2013, the State had asked for an extension of time to prepare and submit comments on the draft study in order to identify, contract, and consult with experts. NYS Reconsideration Motion, Attachment B (NYS August 1, 2013 Comment Letter). Staff denied that request. When the State submitted its comment letter on the draft Consequence Study, the State was not aware that Staff and its Sandia consultants (and witnesses in this proceeding) selected and used the 365-day value (expressed as 3.15x10E7) for the TIMDEC input for the MACCS2 analysis.

3. The States Petition Is Consistent with NRC Regulations and the Commissions Order The petition is not unauthorized (Entergy Answer at 8; Staff Answer at 5, n.22). First, NRC regulations set out procedures for petitions for review of a full or partial initial decision and any other decision or action by a presiding officer (10 C.F.R. § 2.341(b)(1)) such as the Boards April 1 Order. Second, far from containing an explicit directive (Entergy Answer at 9), the Secretary Order sought to anticipate the potential consequence[s] of the Boards ruling, which had not yet issued. 13 Nothing in the Secretarys Order foreclosed the possibility that the State could exercise its right to file a separate petition for review of an adverse Board decision on reconsideration. Nor did it require that the State amend, withdraw, or revise its petition.

NRC regulations do not provide a procedure for litigants to follow when faced with a deadline for a petition to review a partial initial decision vis--vis a pending motion for reconsideration of the same contention. 14 NRC regulations do not provide for amended, withdrawn, or revised petitions for review. Nor do the regulations require consultation with other parties before a petition is filed. Additionally, the State here had no reason to modify its 13 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), Order of the Secretary on Behalf of the Commission at 2 (Feb. 28, 2014) (ML14059A539).

14 The regulations only provide that [a] petition for review will not be granted as to issues raised before the presiding officer on a pending motion for reconsideration. 10 C.F.R. § 2.341(b)(6). The regulations do not toll the deadline for filing a petition for review if a motion for reconsideration is pending.

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petition for review of the Partial Initial Decision because the Boards April 1 Order did not modify the Partial Initial Decision. The States filing of a separate petition for review of the April 1 Order was necessary to comply with NRC regulations as written and to ensure that its February 14, 2014 Petition for review of the Partial Initial Decision remained timely.

Entergys argument that the States petition should be denied on procedural and fairness grounds rings hollow. By submitting separate answers to each New York petition, both Entergy and Staff had a fair opportunity to submit their views on the States petitions, and their combined briefs exceed the States page limitations. 15 If any party has suffered prejudice, it has been the State the use of 365 day TIMDEC values was never disclosed in this proceeding.

CONCLUSION The Commission should grant review of the Boards April 1, 2014 Order. In its discretion under 10 C.F.R. § 2.341(c)(2), the Commission should, as it deems appropriate, either require additional briefing or decide the matter, reversing the April 1, 2014 Order.

Respectfully submitted, Signed (electronically) by Signed (electronically) by John J. Sipos Kathryn M. DeLuca Assistant Attorneys General Assistant Attorney General Office of the Attorney General Office of the Attorney General of the State of New York of the State of New York The Capitol 120 Broadway Albany, New York 12224 New York, New York 10271 (518) 402-2251 (212) 416-8482 Dated: June 2, 2014 15 Additionally, the Commission should not accept Staffs invitation to disregard the States incorporation by reference, glossary, and timeline (Staffs Answer at 2, n.5). It was appropriate for the State to present highlights in the petition itself, but then direct the Commission to more complete information. The glossary and timeline were provided to assist the Commission given the amount of technical jargon and similarly-titled NUREG documents that are important to the resolution NYS-12C. Various federal courts have expressed an appreciation for such glossaries, chiding agencies for overuse of acronyms. See, e.g., Nat'l Ass'n of Regulatory Utility Commrs v. DOE, 680 F.3d 819, 820, n.1 (D.C. Cir. 2012).

10

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSIONERS

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x In re: Docket Nos. 50-247-LR and 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. June 2, 2014

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x CERTIFICATE OF SERVICE I hereby certify that on June 2, 2014, copies of the State of New York Reply in Support of Petition for Review of Atomic Safety and Licensing Boards April 1, 2014 Decision Denying the States Motion to Reopen the Record and for Reconsideration of the Boards November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS-12C were served electronically via the Electronic Information Exchange on the following recipients:

Lawrence G. McDade, Chair Carter Thurman, Esq., Law Clerk Richard E. Wardwell, Administrative Judge James Maltese, Esq., Law Clerk Michael F. Kennedy, Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Carter.Thurman@nrc.gov Lawrence.McDade@nrc.gov James.Maltese@nrc.gov Richard.Wardwell@nrc.gov Michael.Kennedy@nrc.gov Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 16 G4 Mailstop 3 F23 One White Flint North Two White Flint North 11555 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 ocaamail@nrc.gov 1

Office of the Secretary Bobby R. Burchfield, Esq.

Attn: Rulemaking and Adjudications Staff Matthew M. Leland, Esq.

U.S. Nuclear Regulatory Commission Clint A. Carpenter, Esq.

Mailstop 3 F23 McDermott Will & Emery LLC Two White Flint North 600 13th Street, NW 11545 Rockville Pike Washington, DC 20005-3096 Rockville, MD 20852-2738 bburchfield@mwe.com hearingdocket@nrc.gov mleland@mwe.com ccarpenter@mwe.com Sherwin E. Turk, Esq.

David E. Roth, Esq. Richard A. Meserve, Esq.

Beth N. Mizuno, Esq. Matthew W. Swinehart, Esq.

Brian G. Harris, Esq. Covington & Burling LLP Anita Ghosh, Esq. 1201 Pennsylvania Avenue, NW Office of the General Counsel Washington, DC 20004-2401 U.S. Nuclear Regulatory Commission rmeserve@cov.com Mailstop 15 D21 mswinehart@cov.com One White Flint North 11555 Rockville Pike Elise N. Zoli, Esq.

Rockville, MD 20852-2738 Goodwin Procter, LLP sherwin.turk@nrc.gov Exchange Place david.roth@nrc.gov 53 State Street beth.mizuno@nrc.gov Boston, MA 02109 brian.harris@nrc.gov ezoli@goodwinprocter.com anita.ghosh@nrc.gov William C. Dennis, Esq.

Kathryn M. Sutton, Esq. Assistant General Counsel Paul M. Bessette, Esq. Entergy Nuclear Operations, Inc.

Raphael Kuyler, Esq. 440 Hamilton Avenue Lance A. Escher, Esq. White Plains, NY 10601 Morgan, Lewis & Bockius LLP wdennis@entergy.com 1111 Pennsylvania Avenue, NW Washington, DC 20004 Robert D. Snook, Esq.

ksutton@morganlewis.com Assistant Attorney General pbessette@morganlewis.com Office of the Attorney General rkuyler@morganlewis.com State of Connecticut leascher@morganlewis.com 55 Elm Street P.O. Box 120 Martin J. ONeill, Esq. Hartford, CT 06141-0120 Morgan, Lewis & Bockius LLP robert.snook@ct.gov Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com 2

Melissa-Jean Rotini, Esq. Richard Webster, Esq.

Assistant County Attorney Public Justice, P.C.

Office of the Westchester County Attorney Suite 200 Michaelian Office Building 1825 K Street, NW 148 Martine Avenue, 6th Floor Washington, DC 20006 White Plains, NY 10601 rwebster@publicjustice.net MJR1@westchestergov.com Andrew B. Reid, Esq.

Theresa Knickerbocker, Mayor Springer & Steinberg, P.C.

Kevin Hay, Village Administrator 1600 Broadway, Suite 1200 Village of Buchanan Denver, CO 80202 Municipal Building areid@springersteinberg.com 236 Tate Avenue Buchanan, NY 10511-1298 Phillip Musegaas, Esq.

Administrator@villageofbuchanan.com Deborah Brancato, Esq.

theresak@villageofbuchanan.com Riverkeeper, Inc.

20 Secor Road Daniel Riesel, Esq. Ossining, NY 10562 Thomas F. Wood, Esq. phillip@riverkeeper.org Victoria S. Treanor, Esq. dbrancato@riverkeeper.org Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com Michael J. Delaney, Esq.

Director Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 mdelaney@dep.nyc.gov Signed (electronically) by Kathryn M. DeLuca Assistant Attorney General State of New York (212) 416-8482 Dated at New York, New York this 2nd day of June 2014 3