ML13275A015

NRC Staff'S Answer to Riverkeeper, Inc.'S Consolidated Motion for Leave to File Amended Contention RK-EC-8A, and Amended Contention RK-EC-8A

ML13275A015
Person / Time
Site:	Indian Point
Issue date:	10/01/2013
From:	Sherwin Turk NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25134
Download: ML13275A015 (42)

Text

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

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS ANSWER TO RIVERKEEPER, INC.S CONSOLIDATED MOTION FOR LEAVE TO FILE AMENDED CONTENTION RK-EC-8A, AND AMENDED CONTENTION RK-EC-8A Sherwin E. Turk Anita Ghosh Counsel for NRC Staff October 1, 2013

-i-TABLE OF CONTENTS Page INTRODUCTION.1 BACKGROUND..2 A. Riverkeepers Initial Contention...2 B. Completion of the Consultation Process and Issuance of the FSEIS Supplement....4 C. Riverkeepers Amended Contention...7 DISCUSSION................................................................................................................................7 I. Applicable Legal Principles Governing the Admissibility of Contentions............................7 II. Amended Contention RK-EC-8A Is Inadmissible in that It Fails to State with Specificity Any Facts Showing that the FSEIS Supplement Is Inadequate........................................................................................................................10 III. Amended Contention RK-EC-8A Is Inadmissible in that It Fails To Raise a Genuine Dispute on a Material Issue of Fact or Law....11 A. Comments Concerning Endangered Species Were Properly Considered.......12

1. Riverkeepers Comments of August 20, 2012..12

2. Riverkeepers Comments of April 29, 2013..15

3. Riverkeepers Comments of November 23, 201218

4. NYSDECs Comments of March 25, 201319 B. The Staffs Reliance on NMFSs Biological Opinion......21

1. Requirements under NEPA and 10 C.F.R. Part 51.21

2. NEPA-Related Requirements under the Endangered Species Act..23

3. The Staff Did Not Blindly Rely Upon NMFSs Final BiOp...28 IV. Amended Contention RK-EC-8A Is Inadmissible Insofar as It Challenges the Adequacy or Merits of NMFSs BiOp. ....31 V. The Staff Was Not Required to State, in the FSEIS Supplement, the FSEIS Supplements Effect on the Staffs Recommendation to the Commission..33 CONCLUSION.35

- ii -

ATTACHMENTS : Biological Assessment of the Potential Effects on Federally Listed Endangered or Threatened Species from the Proposed Renewal of Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 (Appendix E to DSEIS (Exhibit NYS00132A-D)

(ADAMS Accession No. ML083570601)) : E-mail message from D. Logan, NRC, to J.

Crocker, NMFS (Aug. 10, 2009)

(ADAMS Accession No. ML092220524) : Excerpt of the FSEIS - Section 4.6 (Exhibit NYS00133B)

(ADAMS Accession No. ML11348A347)) : Letter from D. Wrona, NRC, to M. Colligan, NMFS (Dec. 10, 2010), enclosing Revised Biological Assessment of the Potential Effects on Federally Listed Endangered or Threatened Species from the Proposed Renewal of Indian Point Nuclear Generating Plant, Unit Nos. 2 and 3 (Dec. 10, 2010)

(ADAMS Accession No. ML102990043) : Letter from L. Bauer, NRC to M. Colligan, NMFS (July 26, 2011)

(ADAMS Accession No. ML11203A100) : E-mail from A. Stuyvenberg, NRC, to J.

Crocker, NMFS (Sept. 6, 2011)

(ADAMS Accession No. ML11249A210) : E-mail from A. Stuyvenberg, NRC, to J.

Crocker, NMFS (Sept. 6, 2011)

(ADAMS Accession No. ML11249A145) : Letter from D. Wrona, NRC, to P. Kurkul, NMFS (Sept. 20, 2011)

(ADAMS Accession No. ML11259A018)

- iii - : Letter from J. Susco, NRC, to P. Kurkul, NMFS (May 16, 2012), requesting reinitiation of ESA Section 7 consultations and transmitting Biological Assessment for Reinitiation of Section 7 Consultation for [IP2 and IP3] Due to Listing of Atlantic Sturgeon (May 2012)

(ADAMS Accession No. ML12100A082) 0: Draft FSEIS Supplement (June 27, 2012)

(ADAMS Accession No. ML12174A244) 1: E-mail from A. Stuyvenberg, NRC, to M.

Murray-Brown, et al., NMFS (Sept. 28, 2011)

(ADAMS Accession No. ML11271A154) 2: E-mail from D. Logan, NRC, to J. Crocker, NMFS (Nov. 9, 2012)

(ADAMS Accession No. ML12314A415) 3: Letter from E. Zoli, Goodwin Proctor LLP, to K.

Moser, NYSDEC (Apr. 26, 2013)

(ADAMS Accession No. ML13120A006) 4: Letter from J. Bullard, NMFS, to K. Moser, NYSDEC (May 31, 2013)

(ADAMS Accession No. ML13155A475) 5: FSEIS Supplement (ADAMS Accession No. ML13162A616) 6: Letter from M. Wong, NRC, to K. Moser, NYSDEC (July 3, 2013)

(ADAMS Accession No. ML13123A275) 7: Letter from M. Colligan, NMFS, to J. Lubinski, NRC (July 18, 2013)

(ADAMS Accession No. ML13200A094)

- iv - 8: Memorandum from Mary A. Colligan, Assistant Regional Administrator for Protected Resources, to John K. Bullard, Regional Administrator, Northeast Region, NMFS (Jan. 29, 2013) (NMFS Memorandum)

(ADAMS Accession No. ML13268A463)

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

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS ANSWER TO RIVERKEEPER, INC.S CONSOLIDATED MOTION FOR LEAVE TO FILE AMENDED CONTENTION RK-EC-8A, AND AMENDED CONTENTION RK-EC-8A INTRODUCTION Pursuant to 10 C.F.R. § 2.309(h)(1) and the Atomic Safety and Licensing Boards (Board) Scheduling Order of July 1, 2010 (Scheduling Order), 1 the NRC Staff (Staff) hereby responds to Riverkeeper, Inc.s (Riverkeeper) Consolidated Motion for Leave to file Amended Contention RK-EC-8A, and Amended Contention RK-EC-8A , filed on August 20, 2013. 2 For the reasons set forth below, the Staff respectfully submits that Amended Contention RK-EC-8A should be rejected because (a) it fails to present a genuine dispute of material fact with the Staff or Applicant, (b) it fails to demonstrate with specificity any facts showing that the Staffs discussion of endangered and threatened species in the FSEIS Supplement of June 2013 is deficient, 3 and (c) to the extent that it challenges the merits or adequacy of the National 1

This Answer is filed pursuant to a 15-day extension of time granted by the Board. See Order (Granting Staffs Motion for an Extension of Time) (Sept. 13, 2013). See also, Order (Extending Page Limitations. . . ) (Feb. 17, 2011), at 2 (answers to a consolidated motion for leave to file a new or amended contention and the contention, itself, may be up to 50 pages in length).

2 Riverkeeper, Inc. Consolidated Motion for Leave to File Amended Contention RK-EC-8A and Amended Contention RK-EC-8A (Aug. 20, 2013) (Motion).

3 See NUREG-1437, Supplement 38, Vol. 4, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report, Supplemental Report and Comment Responses (June 2013) (FSEIS Supplement) (ADAMS Accession No. ML13162A616) (Attachment 15 hereto).

--2--

Marine Fisheries Services (NMFS) Biological Opinion, (BiOp), 4 it raises an issue that is outside the scope of this license renewal proceeding and is not proper for adjudication herein.

BACKGROUND A. Riverkeepers Initial Contention In December 2010, the Staff issued Final Supplement 38 to the Generic Environmental Impact Statement for License Renewal (GEIS), concerning the environmental impacts of license renewal for Indian Point Units 2 and 3 (IP2 and IP3). 5 On February 3, 2011, Riverkeeper filed Contention RK-EC-8, 6 in which it asserted that the FSEIS failed to satisfy the NRCs obligations under Section 7 of the Endangered Species Act (ESA), 16 U.S.C. § 1536, and the National Environmental Policy Act (NEPA), 42 U.S.C. 4331 et seq., with respect to its evaluation of impacts to endangered and threatened species. Contention RK-EC-8 stated:

NRC Staffs FSEIS is deficient for failure to include or consider the assessment of . . . NMFS regarding impacts to endangered species due to incomplete ESA § 7 consultation procedures.

A supplemental EIS must be prepared by NRC Staff that fully considers the outcome of the consultation process, including NMFS forthcoming biological opinion, prior to any decision by the NRC regarding whether to relicense Indian Point.

Initial Contention at 1.

In support of its initial contention, Riverkeeper observed that the NRC is obliged to consult with NMFS regarding the impacts of license renewal to endangered and threatened 4

See Letter from J. Bullard, NMFS, to A. Hull, NRC (Jan. 30, 2013), transmitting Endangered Species Act Section 7 Consultation Biological Opinion: Continued Operation of [IP2 and IP3], Pursuant to Existing and Proposed Renewed Operating Licenses, NER-2012-25252 (Jan. 30, 2013) (Final BiOp),

attached to E-mail from J. Crocker, NMFS, to D. Logan, NRC (Jan. 30, 2013) (ADAMS Accession No. ML13032A256).

5 NUREG-1437, Supplement 38, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (Dec. 2010) (FSEIS) (Exhibit NYS00133A-J).

6 Riverkeeper, Inc. Consolidated Motion for Leave to File a New Contention and New Contention Concerning NRC Staffs Final Supplemental Environmental Impact Statement (Feb. 3, 2011) (Initial Contention).

--3--

species, and that this consultation had not concluded when the FSEIS was issued. Id.

Riverkeeper further asserted that NMFSs final assessment is necessary for NRC Staff to make informed conclusions in the FSEIS, Id. at 15, and without that final assessment, the findings in the FSEIS were flawed and patently deficient. Id. at 14, 17. Finally, Riverkeeper asserted that a supplement to FSEIS must be prepared that fully considers the outcome of the consultation process. Id. at 1. Answers to Riverkeepers initial contention were filed by the Staff and Entergy Nuclear Operations, Inc. (Entergy or Applicant) on March 7, 2011, 7 to which Riverkeeper replied on March 14, 2011. 8 On July 6, 2011, the Board admitted Contention RK-EC-8. 9 The Board observed that although the FSEIS incorporated the information the Staff had received from NMFS, it did not reflect NMFSs complete views, which were expected to be presented later, in NMFSs anticipated Biological Opinion (BiOp). Order at 69. The Board found that completion of the consultation process is necessary to the NRC Staffs fulfillment of its obligations under the ESA and NEPA; that NMFSs BiOp will aid the agency in making its licensing decision in this proceeding; and that [w]ithout receipt and consideration of that input from NMFS, the NRC Staff arguably has not taken the requisite hard look at the issue of impacts to endangered species, as required under NEPA. Order at 69-70. The Board further stated as follows:

7 See (1) Applicants Answer to Riverkeeper, Inc.s Motion for Leave and New Contention Concerning the Consideration of Endangered and Threatened Aquatic Species (Mar. 7, 2011); and (2) NRC Staffs Answer to Riverkeeper, Inc.s Motion for Leave to File a New Contention, and New Contention EC-8 Concerning NRC Staffs Final Supplemental Environmental Impact Statement (Mar. 7, 2011) (Staff Answer to Initial Contention). See also Supplement to NRC Staffs Answer to Riverkeeper, Inc.s Motion for Leave to File a New Contention, and New Contention EC-8 Concerning NRC Staffs Final Supplemental Environmental Impact Statement (Mar. 16, 2011).

8 Riverkeeper Inc. Combined Reply to NRC Staff and Entergy Answers to Riverkeepers Motion for Leave to File a New Contention and New Contention Concerning NRC Staffs Final Supplemental Environmental Impact Statement (Mar. 14, 2011).

9 Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) (unpublished), slip op. at 60-71 (Order).

--4--

Specifically, Riverkeeper has raised a question of whether the existing FSEIS fulfills the NRCs hard look obligations under NEPA. Moreover, while the remedy Riverkeeper requests is the supplementation of the FSEIS, a resolution of the question whether a supplemental FSEIS is necessary is a matter for adjudication. Therefore, Riverkeepers allegation that the NRC Staffs failure to take into account NMFSs BiOp violates the agencys duty to conduct a hard look at the environmental impacts of the proposed action raises a genuine dispute of law pursuant to 10 C.F.R. § 2.309(f)(1)(vi).

Id. at 70 (footnote omitted). 10 B. Completion of the Consultation Process and Issuance of the FSEIS Supplement Following the issuance of the Staffs FSEIS, consultations continued between the Staff and NMFS, in which the Applicant participated in accordance with Section 7 of the ESA. These consultations took place over an extended period of time, and involved numerous substantive communications in which the impacts of IP2/IP3 license renewal on endangered and threatened species were discussed by the consulting parties in detail. 11 In the interest of brevity, the Staff has prepared a chronological history of those consultations and various related substantive communications, as set forth in Appendix A hereto. 12 As further discussed infra at 28-29 and chronicled in Appendix A, the ESA Section 7 consultations included, inter alia, the Staffs preparation and transmittal to NMFS of an initial Biological Assessment (BA), a revised BA, a supplement to the revised BA, and an additional BA after the Atlantic sturgeon was listed as endangered. For its part, NMFS prepared and requested comments on an initial draft BiOp and final BiOp (concerning shortnose sturgeon), as 10 On July 17, 2013, Entergy filed a motion to dismiss Contention RK-EC-8 as moot. Entergy Motion to Dismiss Riverkeeper Contention RK-EC-8 (Endangered and Threatened Aquatic Species as Moot (July 17. 2013). Answers to that motion were filed by the Staff and Riverkeeper on August 6 and August 20, 2013, respectively. A Board ruling on that motion is pending.

11 Section 4.6 of the FSEIS describes the status of the consultation process at the time the FSEIS was issued. See FSEIS (Exhibit NYS00133B), at 4-57 and 4-60 (Attachment 3 hereto).

12 Appendix A provides a chronological history of substantive communications that occurred during the ESA Section 7 consultation process, as well as communications between non-consulting parties and the consulting parties, regarding NMFSs BiOp and the Staffs FSEIS Supplement.

--5--

well as a second draft BiOp and final BiOp (concerning both the shortnose and Atlantic sturgeon). During the consultations, the Staff (and Applicant) submitted considerable information to NMFS for its consideration, as well as detailed comments regarding NMFSs draft BiOp of August 2011, and its draft BiOp of October 2012. This consultation process culminated on January 30, 2013, when NMFS issued its Final BiOp concerning the impacts of license renewal on the shortnose and Atlantic sturgeon, superseding its BiOp on shortnose sturgeon of October 2011. 13 These communications, along with other documents reflecting the Staffs and NMFSs consideration of Riverkeepers (and New Yorks) comments are provided as Attachments 1-18 hereto.

Concurrently with its ESA consultations, the Staff proceeded to prepare a Supplement to its FSEIS, to consider new information it had received regarding the impacts of IP2/IP3 license renewal on aquatic resources, including endangered species. On June 26, 2012, the Staff issued its draft FSEIS Supplement, addressing new information concerning entrainment, impingement, the thermal effects of once-through cooling, NMFSs BiOp regarding shortnose sturgeon, and the reinitiation of consultations under Section 7 of the ESA. 14 In accordance with the deadline stated in the Federal Register, 15 on or before August 20, 2012, comments on the 13 Final BiOp at 8 (This Opinion supercedes the Opinion issued by us on October 14, 2011.).

14 See (1) Letter from S. Turk to the Board (June 26, 2012); and (2) Draft FSEIS Supplement (ADAMS Accession No. ML12174A244) (Attachment 10 hereto).

15 Entergy Nuclear Operations, Inc.; Indian Point Nuclear Generating, Units 2 and 3; Draft Supplement to Supplement 38 to the [GEIS] for License Renewal of Nuclear Plants; Availability, 77 Fed.

Reg. 40,091 (July 6, 2012) (Submit comments by August 20, 2012. Comments received after this date will be considered if it is practical to do so, but the NRC staff is able to ensure consideration only for comments received on or before this date.).

--6--

draft FSEIS Supplement were submitted by Riverkeeper, New York, Entergy, NMFS, and other persons and agencies, as shown in Appendix A of the FSEIS Supplement. 16 In early May 2013, the Staff completed the FSEIS Supplement, 17 which the NRC Office of Administration then published on June 20, 2013. Therein, the Staff revised its FSEIS evaluation of the impacts of license renewal on aquatic resources, including endangered species - and in Section 4 of the FSEIS Supplement, the Staff provided a detailed discussion of NMFSs BiOp and Incidental Take Statement (ITS), as part of its evaluation of impacts to endangered and threatened species. 18 Having considered the available information (including the Staffs revised weight of the evidence (WOE) analysis and NMFSs final BiOp), the Staff found that the level of impact of license renewal on endangered shortnose sturgeon and endangered Atlantic sturgeon would be SMALL. 19 The Staff concluded as follows:

Furthermore, development and implementation of an appropriate monitoring plan for these species at IP2 and IP3 [as required by NMFSs BiOp] would help ensure protection of these species. In addition, license renewal for the IP2 and IP3 would be subject to the terms and conditions of the ITS as stated by NMFS. After assessing this new information, the staff finds that the level of impact for aquatic special status species would be SMALL. 20 16 See FSEIS Supplement, Appendix A (Comments Received on the Draft Supplement to the FSEIS for License Renewal of Indian Point Units 2 and 3) (Attachment 15 hereto). In addition, on April 29, 2013, Riverkeeper submitted an additional set of comments on the draft FSEIS Supplement, to which she appended Riverkeepers November 23, 2012 comments on the draft BiOp. See letter from D.

Brancato, Riverkeeper, to Cindy Bladey, Chief, Rules, Announcements, and Directives Branch (RADB)

(Apr. 29, 2013) (ADAMS Accession No. ML13122A370) (Motion, Attachment 8).

17 th See Letter from S. Turk, Esq., to the Board (May 14, 2013); NRC Staffs 15 Status Report in Response to the [Boards] Order of February 16, 2012 (May 1, 2013), at 1.

18 See FSEIS Supplement, Section 4, at 23-30 (Attachment 15 hereto). The FSEIS Supplement was attached to a Letter from J. Lubinski, NRC, to Vice President, Operations, Entergy (June 20, 2013)

(ADAMS Accession No. 13161A389).

19 Id. at 30.

20 Id.

--7--

C. Riverkeepers Amended Contention Riverkeeper filed its Amended Contention RK-EC-8A on August 20, 2013. 21 Therein, Riverkeeper asserted that the FSEIS Supplement - which fully considered NMFSs final BiOp (as Riverkeeper had earlier urged) - was still deficient. According to Riverkeeper:

NRC Staffs FSEIS supplement pertaining to the license renewal of Indian Point is inadequate and, thus, violates the National Environmental Policy Act (NEPA) because it (1) fails to properly consider or address Riverkeepers comments regarding various deficiencies with NMFS analyses and conclusions resulting from the ESA § 7 consultation process, and, in turn, fails to adequately assess impacts to endangered species posed by the potential relicensing of Indian Point, and (2) fails to explain how the new and significant information assessed by NRC Staff in the FSEIS supplement affect NRC Staffs recommendation to the Commission regarding the appropriateness of the proposed license renewal of Indian Point. 22 As discussed below, Riverkeepers Amended Contention fails to present a genuine dispute of material fact, and lacks factual basis, contrary to 10 C.F.R. § 2.309(f)(1)(v)-(vi). Accordingly, Riverkeepers amended contention should be rejected.

DISCUSSION I. Applicable Legal Principles Governing the Admissibility of Contentions The Commission has established general requirements that govern the admissibility of contentions, as set forth in 10 C.F.R. § 2.309(f)(1). As stated therein, contentions must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted, . . . ;

(ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; 21 By Order of July 9, 2013, the Board had granted Riverkeeper (and New York) an extension of time of 30 days, until August 20, 2013, to file any contentions challenging the FSEIS Supplement.

22 Motion at 6-7; emphasis added.

--8--

(v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely . . .; [and]

(vi) . . . [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. . . .

10 C.F.R § 2.309(f)(1)(i)-(vi). 23 The Board in this proceeding has previously addressed these standards at length, in numerous Orders concerning contention admissibility. 24 As the Board observed, sound legal and policy considerations underlie the Commissions requirements for contention admissibility:

The purpose of the contention rule is to focus litigation on concrete issues and result in a clearer and more focused record for decision. The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. The Commission has emphasized that the rules on contention admissibility are strict by design. Failure to comply with any of these requirements is grounds for the dismissal of a contention. 25 As the Board further observed, these requirements have been strictly applied in NRC proceedings. For example, in a license renewal proceeding, the Commission stated:

To intervene in a Commission proceeding, including a license renewal proceeding, a person . . . must proffer at least one admissible contention as required by 10 C.F.R. §§ 2.309(f)(1)(i)-

(vi). The requirements for admissibility set out in 10 C.F.R.

§§ 2.309(f)(1)(i)-(vi) are "strict by design," and we will reject any contention that does not satisfy these requirements. Our rules require "a clear statement as to the basis for the contentions and 23 Further, petitioners must base their contentions on existing documents or other information available at the time the petition is to be filed . . . 10 C.F.R. § 2.309(f)(2). This requirement places an ironclad obligation on petitioners to examine available information with sufficient care to enable them to uncover any information that could serve as the foundation of a contention. See Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).

24 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),

LBP-08-13, 68 NRC 43 (2008); Id., Memorandum and Order (Denying the Village of Buchanans Hearing Request and Petition to Intervene) (Dec. 5, 2007), slip op. at 3; footnote omitted.

25 Id., slip op. at 4; footnote omitted.

--9--

the submission of . . . supporting information and references to specific documents and sources that establish the validity of the contention." "Mere 'notice pleading' does not suffice." Contentions must fall within the scope of the proceeding - here, license renewal - in which intervention is sought. 26 Moreover, contentions that are based on erroneous facts, misinterpretation, or misapprehension are also inadmissible. 27 A petitioners imprecise reading of a reference document cannot serve to generate an issue suitable for litigation. 28 Thus, in a proceeding where an intervenor asserted that mitigation measures were not addressed, when, in fact, they were addressed in the applicants environmental report, the contention was ruled inadmissible for failure to raise a genuine dispute. 29 Finally, it is well established that the purpose for the basis requirements is (1) to assure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) to establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) to put other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against or oppose. 30 A contention must be rejected if:

(1) it constitutes an attack on applicable statutory requirements; (2) it challenges the basic structure of the Commissions regulatory process or is an attack on the regulations; 26 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-119 (2006) (footnotes omitted; emphasis added).

27 See, e.g., Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 136 (2004).

28 Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 NRC 281, 300 (1995).

29 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 457 (2011). As the Board in another proceeding explained, [a]ny contention that fails directly to controvert the application or that mistakenly asserts the application does not address a relevant issue will be dismissed. Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP-10-7, 71 NRC 391, 421 (2010); cf Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200, 247-48 (1993), review declined, CLI-94-2, 39 NRC 91 (1994).

30 Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974); Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-91-19, 33 NRC 397, 400 (1991).

(3) it is nothing more than a generalization regarding the petitioners view of what applicable policies ought to be; (4) it seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or (5) it seeks to raise an issue which is not concrete or litigable. 31 II. Amended Contention RK-EC-8A Is Inadmissible in that It Fails to State with Specificity Any Facts Showing that the FSEIS Supplement Is Inadequate.

Of all the factors governing contention admissibility, recited above, perhaps the most important - the sine qua non32 of contention pleading - is the requirement that a contention must identify the specific facts upon which it is based. As the Appeal Board stated nearly 40 years ago, a primary purpose of the basis requirement in the Commissions contention rules is to help assure that other parties are sufficiently put on notice so that they will know at least generally what they will have to defend against or oppose. Peach Bottom, supra, 8 AEC at 20.

Riverkeepers Motion fails to meet this standard. To the contrary, Riverkeeper provides only broad assertions that its (or New Yorks) comment submittals were not considered by the Staff or NMFS - but it fails to point to any specific facts or statements in those submittals that it believes were overlooked. 33 As such, it is not possible to know precisely which facts or issues 31 Peach Bottom, ALAB-216, 8 AEC at 20-21.

32 Sine qua non or conditio sine qua non is defined in the Merriam-Webster Online Dictionary as something that is absolutely needed; something absolutely indispensable or essential, available at http://www.merriam-webster.com/dictionary/sine%20qua%20non (accessed Oct. 1, 2013).

33 In its Motion, Riverkeeper notes that it had submitted comments to NMFS regarding both the initial draft BiOp and the revised draft BiOp, and had submitted comments to the Staff regarding the Draft FSEIS Supplement. See Motion at 3-5 and nn. 7, 12, 18, and 20, citing (1) Letter from D. Brancato, Esq.,

to P. Kurkul, et al., NMFS, re: Draft BiOp (Sept. 15, 2011) (Motion, Attachment 2); (2) Letter from D.

Brancato, Esq., to J. Bullard, et al., NMFS, re: NMFSs Draft BiOp of October 26, 2012 (Nov. 23, 2012)

(Motion, Attachment 5), (3) Letter From D. Brancato, Esq., to NRC Rules, Announcements and Directives Branch Chief, transmitting Riverkeepers comments on the Draft FSEIS Supplement (Aug. 20, 2012)

(Motion, Attachment 7); and (4) Letter From D. Brancato, Esq., to NRC Rules, Announcements and Directives Branch Chief, transmitting Riverkeepers supplemental comments on the Draft FSEIS Supplement (April 29, 2013) (Motion, Attachment 8). Riverkeepers Motion appears to focus on its submittals following the reinitiation of consultations in 2012, rather than its comments of September 20111 concerning NMFSs earlier BiOp. In any event, inasmuch as NMFS issued a second and superseding draft BiOp following the reinitiation of consultations, which Riverkeeper then addressed in its comments of November 23, 2012, its comment submittal concerning that subsequent draft BiOp appear to be the focus of its concerns, and is addressed herein.

need to be addressed by the Staff, contrary to the Commissions requirements. Riverkeepers generalized assertions that its, or New Yorks, comment submittals were not addressed (which assertions, as discussed below, are not correct) fail to provide the specificity required by 10 C.F.R. § 2.309(f)(1)(v). Riverkeepers Amended Contention should therefore be rejected.

III. Amended Contention RK-EC-8A Is Inadmissible in that It Fails To Raise a Genuine Dispute on a Material Issue of Fact or Law.

As discussed supra at 3-4, in its decision admitting Riverkeeper Contention RK-EC-8, the Board found that Riverkeepers allegation that the NRC Staffs failure to take into account NMFSs BiOp violates the agencys duty to conduct a hard look at the environmental impacts of the proposed action raises a genuine dispute of law pursuant to 10 C.F.R. § 2.309(f)(1)(vi). 34 That dispute has now been conclusively resolved. The Staffs FSEIS Supplement provides a thorough evaluation of the impacts of IP2/IP3 license renewal on endangered and threatened species (the shortnose and Atlantic sturgeon), based on the Staffs own analysis and the analysis presented by NMFS in its final BiOp of January 2013. 35 In short, what Riverkeeper had once alleged was required, has now been completed.

In its Amended Contention, filed on August 20, 2013, Riverkeeper asserts that, notwithstanding the Staffs discussion and incorporation of NMFSs BiOp in the FSEIS Supplement, the Supplement is still inadequate. Motion at 1. According to Riverkeeper, this alleged inadequacy is due to the Staffs (1) failure to consider and respond to comments related to deficiencies in [ESA] Section 7 consultations and the resulting inadequacies in NRC Staffs assessment of the impact of relicensing Indian Point on endangered aquatic resources, and (2) failure to revise or update its recommendation on the appropriateness of renewing the operating licenses . . . in light of NRC Staffs assessment of new information and circumstances 34 Order of July 6, 2011, slip op. at 70.

35 See FSEIS Supplement (Vol. 4), Chapter 4, at 23-30 (Attachment 15 hereto); FSEIS (Vol. 1),§ 4.6, at 4 4-60 (Attachment 3 hereto).

in the FSEIS Supplement. Motion at 1-2. Riverkeepers assertions, amplified in its Motion, fail to establish a genuine dispute on a material issue of fact or law.

A. Comments Concerning Endangered Species Were Properly Considered.

Riverkeepers Motion asserts that comments related to deficiencies in [ESA] Section 7 consultations were not considered by the Staff, resulting in alleged inadequacies in the Staffs assessment of the impact of relicensing Indian Point on endangered aquatic resources.

Motion at 1. While Riverkeepers Motion refers to numerous comment submittals that were filed by itself and others, it does not indicate, specifically, which comments it believes were not considered, or why those comments would render the FSEIS Supplement inadequate. In fact, as shown in the following discussion, all of the comments that were filed concerning the Staffs FSEIS Supplement and NMFSs BiOp have been addressed by the Staff and/or NMFS, as appropriate.

1. Riverkeepers Comments of August 20, 2012 In accordance with the Federal Register Notice of Availability, comments on the Staffs Draft FSEIS were required to be filed on or before August 20, 2012. 36 In accordance with that deadline, on August 20, 2012, Riverkeeper timely submitted its comments concerning the draft FSEIS Supplement 37 - and the Staff then considered, addressed, and reproduced those comments in the final FSEIS Supplement, issued in June 2013. 38 In its Motion, however, Riverkeeper asserts that the Staff did not give its comments meaningful consideration, and did 36 Entergy Nuclear Operations, Inc.; Indian Point Nuclear Generating, Units 2 and 3; Draft Supplement to Supplement 38 to the [GEIS] for License Renewal of Nuclear Plants; Availability, 77 Fed.

Reg. 40,091 (July 6, 2012) (comments on the draft FSEIS Supplement due by August 20, 2012 (45 days after publication of the Federal Register Notice of Availability)).

37 Letter from D. Brancato, Riverkeeper, to Chief, Rules, Announcements, and Directives Branch (RADB), NRC, Riverkeeper, Inc.'s Comments on the [NRC]s [GEIS] for License Renewal of Nuclear Plants, Supplement 38, Vol. 4, Regarding [IP2 and IP3], Draft Report for Comment, Docket Nos. 50-247 and 50-286 (Aug. 20, 2012) (electronic submittal) (ADAMS Accession No. ML12236A207).

38 See FSEIS Supplement, Appendix A (Comments Received on the Draft Supplement to the FSEIS for License Renewal of Indian Point Units 2 and 3), at A-2 and A A-15 (Attachment 15 hereto).

not reproduce the (August 20, 2012) Pisces report or other materials that were attached to its comment submittal. Motion at 13. These assertions should be rejected.

First, despite Riverkeepers assertion that the Staffs response to its comments was not meaningful, nowhere does Riverkeeper point to or demonstrate any specific deficiency in the Staffs substantive response to its comments. While Riverkeeper may disagree with the Staffs assessment of its comments, the Motion fails to demonstrate any specific error in the Staffs analysis that would render the final FSEIS Supplement invalid. Absent any such showing, Riverkeepers assertions concerning the meaningfulness of the Staffs analysis of its comments fail to establish a genuine dispute of material fact or law.

Second, although the Staff did not reproduce the August 2012 Pisces report in the FSEIS Supplement, Riverkeeper nowhere asserts that the Staff failed to address any of its comments that were based on the Pisces report. See Motion, passim Thus, Riverkeepers Motion does not establish a genuine dispute of material fact concerning the Staffs handling of Riverkeepers comments, as distinct from the attachments thereto.

Third, Riverkeeper asserts (Motion at 15-16) that all comments on a draft EIS must be attached to the final EIS pursuant to 40 C.F.R. § 1503.4(b) - a regulation promulgated by the Council on Environmental Quality (CEQ). 39 As Riverkeeper notes, however, the CEQs regulations (like the NRCs regulations) do not strictly require the reproduction of all comments in a final EIS or EIS supplement; rather, both agencies regulations would allow the preparer to 39 CEQ regulations are not binding upon the NRC. As the Commission has stated, [w]e look to CEQ regulations for guidance . . . . But our longstanding policy is that the NRC, as an independent regulatory agency, is not bound by those portions of CEQ's NEPA regulations that . . . have a substantive impact on the way in which the Commission performs its regulatory functions." Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 443-44 (2011), citing Final Rule, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, 49 Fed. Reg. 9352, 9352 (Mar. 12, 1984),

and 10 C.F.R. § 51.10(a).

produce only a summary of the comments received, in appropriate circumstances. 40 Here, of course, the FSEIS Supplement did more than provide a summary, by reproducing the comments themselves.

Further, while Riverkeeper asserts that comments must be reproduced in an FSEIS Supplement under NRC and CEQ regulations, it fails to note that neither of those agencies regulations require that any or all of the attachments to the commenters substantive comments must be reproduced in the final EIS or EIS supplement, regardless how voluminous they may be. Indeed, Riverkeeper fails to point to any legal authority that would require an agency to reproduce in an EIS supplement all attachments to comments (as distinct from the comments themselves). 41 Accordingly, Riverkeepers assertions regarding reproduction of the Pisces report in the FSEIS Supplement fail to establish a genuine dispute of material fact or law.

Finally, while the Pisces report was not reproduced in the Final FSEIS Supplement, Riverkeeper fails to note that the FSEIS Supplement provided an alternate means for readers to view that report, in that the FSEIS Supplement (a) identified the ADAMS accession number for Riverkeepers comments and the attachments thereto (including the Pisces report), and (b) explained how readers could find and view Riverkeepers submittal, in the NRCs ADAMS electronic database. 42 Thus, the Staff provided ready access to Riverkeepers comments and the attachments thereto, including the Pisces report, in ADAMS.

40 See 10 C.F.R § 51.91(a)(2) (All substantive comments received on the draft [EIS] or any supplement to the draft [EIS] (or summaries thereof where the response has been exceptionally voluminous) will be attached to the final statement, whether or not each comment is discussed individually in the text of the statement.); cf. 40 C.F.R. § 1503.4(b) (All substantive comments received on the draft statement (or summaries thereof where the response has been exceptionally voluminous) should be attached to the final statement, whether or not the comment is thought to merit individual discussion by the agency in the text of the statement.).

41 See 40 C.F.R. § 1503.4(b); 10 C.F.R. § 51.91(a)(2). Although Riverkeeper points to 40 C.F.R.

§ 1503.4(b) as legal authority for its assertion; that regulation does not include any requirement that an agency reproduce in an EIS supplement all attachments to comments (as distinct from the comments themselves).

42 FSEIS Supplement, Appendix A, at A-1 and A-2.

2. Riverkeepers Comments of April 29, 2013 Riverkeeper points out that on April 29, 2013 (i.e., just before the FSEIS Supplement was issued), it submitted supplemental comments to the Staff, regarding the effect of NMFSs final BiOp on the draft FSEIS Supplement - to which it attached the comments it had sent to NMFS on November 23, 2012, concerning NMFSs draft BiOp. 43 Riverkeeper observes that the Staff did not address those comments in the FSEIS Supplement. Motion at 16.

While Riverkeeper is correct in stating that the Staff did not address its April 29, 2013 comments in the FSEIS Supplement, its claims fail to establish a genuine dispute of material fact or law. As Riverkeeper, itself, notes, the NRCs Federal Register Notice explicitly required that any comments on the Draft FSEIS Supplement were to be submitted no later than August 20, 2012. 44 As the Notice further stated, Comments received after this date [August 20, 2012] will be considered if it is practical to do so, but the NRC staff is able to ensure consideration only for comments received on or before this date. 45 In disregard of this requirement, Riverkeeper submitted its comments of April 29, 2013 eight months after the deadline for comments had passed - and just one day before the FSEIS Supplement was expected to be published.

43 Motion at 10-11; Motion, Attachment 8 (letter from D. Brancato, Riverkeeper, to Cindy Bladey, Chief, Rules, Announcements, and Directives Branch (RADB) (Apr. 29, 2013) (ADAMS Accession No. ML13122A370) (Motion, Attachment 8).

44 See Motion at 5 and 8-9. Riverkeepers submittal of April 29, 2013, explicitly recognized that the comment period had expired on August 20, 2012 (see Motion, Attachment 8, at 1). Nonetheless, Riverkeeper states, Although the comment period on the Draft FSEIS Supplement is no longer open and, in fact, NRC expects to issue a finalized FSEIS supplement imminently, Riverkeeper submits this supplemental comment in order to make our position regarding the effect of NMFS' January 30, 2013 Final BiOp clear on the record. Id. at 2.

45 77 Fed. Reg.at 40,091 (emphasis added). The Federal Register Notice requirement that comments be submitted by August 20, 2012 (i.e., within 45 days) to assure they are considered in the Final FSEIS Supplement, is consistent with requirements established by both the NRC and the CEQ.

See 10 C.F.R. § 51.73 (Each draft [EIS] and each supplement to a draft [EIS] . . . will be accompanied by or include a request for comments . . . and will state where the comments should be submitted and the date on which the comment period closes. A minimum comments period of 45 days will be provided);

cf. 40 C.F.R. § 1506.10(c) (agencies shall allow not less than 45 days for comments on draft statements); 40 C.F.R. § 1506.10(d) (The lead agency may extend prescribed periods. . . . Failure to file timely comments shall not be a sufficient reason for extending a period. . . . ).

Riverkeeper asserts that submission of its comments after the August 20, 2012 deadline was unavoidable since NMFS issued its final BiOp on January 30, 2013, after the close of the public comment period on the draft FSEIS Supplement. Motion at 9-10. This assertion is without merit. Significantly, Riverkeeper had been informed over the course of many months that the Staff intended to issue the FSEIS Supplement on or about April 30, 2013. 46 If Riverkeeper believed that its comments on the final BiOp merited Staff consideration in the final FSEIS Supplement, it should have submitted its comments more promptly, rather than waiting until April 29, 2013, to do so. Riverkeepers delay in submitting those comments rendered them too late to be considered, as a practical matter, in the FSEIS Supplement. No error was committed by the Staff by not addressing those comments in the final FSEIS Supplement. 47 Moreover, Riverkeepers comments of April 29, 2013, address the adequacy of NMFSs final BiOp - a document that was issued four months earlier, on January 30, 2013 - and its (attached) comments to NMFS of November 23, 2012, addressed the adequacy of NMFSs draft BiOp - a document that was issued six months earlier on October 26, 2012. 48 Riverkeeper 46 See, e.g., (1) NRC Staffs [11th] Status Report in Response to the [Boards] Order of February 16, 2012 (Jan. 1, 2013), at 1 (FSEIS Supplement to be issued on or before April 30, 2013);

(2) NRC Staffs [12th] Status Report in Response to the [Boards] Order of February 16, 2012 (Feb. 1, 2013), at 1 (same); (3) NRC Staffs 13th Status Report in Response to the [Boards] Order of February 16, 2012 (Mar. 1, 2013), at 1 (same); and (4) NRC Staffs 14th Status Report in Response to the [Boards] Order of February 16, 2012 (April 1, 2013), at 1 (same). After Riverkeeper had submitted its comments of April 29, 2013, the Staff announced that the FSEIS Supplement was being deferred by approximately 10 days. NRC Staffs 15th Status Report in Response to the [Boards] Order of February 16, 2012 (April 1, 2013), at 1 (May 1, 2013).

47 See, e.g., American Wild Horse Preservation v. Salazar, 859 F.Supp.2d 33, 46 (D.C. Cir. 2012)

(noting that the U.S. Department of the Interiors Bureau of Land Management (BLM) would have been justified in refusing to consider public comments on its environmental assessment that were untimely, citing Appalachian Power Co. v. EPA, 249 F.3d 1032, 1059 (D.C. Cir. 2001) (An agency is not required to consider issues and evidence in comments that are not timely filed (rulemaking case)); Personal Watercraft Indus. Ass'n v. Dep't of Commerce, 48 F.3d 540, 543 (D.C. Cir. 1995) (Agencies are free to ignore such late filings).

48 Significantly, the Staff had informed the Board and parties that NMFS had issued its draft BiOp on October 26, 2012, had requested comments thereon, and was expected to issue the final BiOp on or before November 28, 2012 . . . . NRC Staffs Ninth Status Report in Response to the [Boards] Order of February 16, 2012 (Nov. 1, 2012), at 3. Riverkeeper timely submitted its comments on the draft BiOp to NMFS on November 23, 2012, but it then waited five months, until April 29, 2013, to forward those comments to the Staff or to request that they be considered in the FSEIS Supplement.

offers no reason for having waited so long to submit those comments to the NRC for consideration in the FSEIS Supplement. By waiting until April 29, 2013, to submit its comments regarding NMFSs BiOp - just one day before the FSEIS Supplement was expected to be published - Riverkeeper effectively prevented the Staff from considering those comments in the FSEIS Supplement, thereby creating the problem of which it now complains. As discussed supra at 16 and n.47, no error was committed by the Staff by not addressing those comments in the final FSEIS Supplement. Riverkeepers suggestion that the Staff somehow acted in derogation of its NEPA responsibilities by failing to consider those comments (Motion at 7-16),

must therefore be rejected.

Finally, Riverkeepers comments of April 29, 2013 consisted of (a) a 2-page letter to the NRC, which essentially referred to and reargued the points Riverkeeper had previously made in its comments to NMFS of November 23, 2012, and (b) a copy of its comments of November 23, 2012. Indeed, as Riverkeeper itself notes, its April 29, 2013 supplemental comments to the NRC were not new information; rather, they essentially appended and incorporated by reference the comments Riverkeeper previously submitted to NMFS on November 23, 2012. 49 However, as discussed infra at 18-19, Riverkeepers comments of November 23, 2012, were explicitly considered and addressed by NMFS prior to issuance of its final BiOp - as shown in an internal Memorandum prepared by Mary A. Colligan, Assistant Regional Administrator for Protected Resources, Northeast Region, NMFS, dated January 29, 2013. 50 As the D.C. Circuit Court of Appeals has held, an action agency need not undertake a separate, independent 49 Motion at 10-11.

50 See Memorandum from Mary A. Colligan, Assistant Regional Administrator for Protected Resources, to John K. Bullard, Regional Administrator, Northeast Region, NMFS (Jan. 29, 2013) (NMFS Memorandum) (Attachment 18 hereto), at 9 and 22-28. Staff Counsel obtained a copy of this document from Counsel for NMFS, during the preparation of this Answer, and has been authorized by NMFS to make it publicly available. Accordingly, the document has been placed in ADAMS (ADAMS Accession No. ML13268A463) and is listed in the Staffs Hearing File Supplement of September 30, 2013 (Document No.56-009). Staff Counsel also transmitted a copy of the document to Counsel for Riverkeeper and Counsel for Entergy on September 30, 2013, and contacted Counsel for New York to inform New York about the document.

analysis of the issues addressed by the expert agency; 51 accordingly, the Staff was not required to undertake an independent analysis of Riverkeepers comments to NMFS of November 23, 2012. 52

3. Riverkeepers Comments of November 23, 2012 As discussed above, Riverkeeper attached to its submittal of April 29, 2013, the comments it had submitted to NMFS on November 23, 2012, regarding the draft BiOp.

Riverkeeper asserts that those comments should have been, but were not, addressed in the FSEIS Supplement. Motion at 12-16. These assertions fail to establish a genuine dispute of material fact or law.

First, as discussed above, Riverkeeper submitted its comments of November 23, 2012, concerning the draft BiOp, directly to NMFS. Prior to April 29, 2013, it never submitted those comments to the Staff for its consideration, 53 and prior to April 29, 2013, it never requested that 51 City of Tacoma, Washington v. FERC, 460 F.3d 53, 76 (D.C. Cir. 2006) (noting that if the law required the action agency to undertake an independent analysis, then the expertise of the consultant agency would be seriously undermined).

52 NMFS had earlier provided its draft BiOp to Riverkeeper, at the latters request, although it was not required to do so; this allowed Riverkeeper to review the draft BiOp and to submit comments thereon, notwithstanding the fact that it lacked standing to participate in the consultations as a matter of law under ESA Section 7. NMFS subsequently considered Riverkeepers comments, despite its recognition that neither the ESA nor the Section 7 regulations, or any law, requires NMFS to consider Riverkeepers comments. NMFS Memorandum (Attachment 18 hereto), at 9.

53 Riverkeepers Motion does not assert that, prior to April 29, 2013 it had transmitted its letter of November 23, 2012, to the Staff or requested that it be considered in the FSEIS Supplement. See Motion, passim. To be sure, on November 23, 2012, Riverkeeper sent an electronic copy of its letter to Staff Counsel, without comment or explanation, and without requesting that any action be taken by Staff Counsel or the Staff with respect thereto; rather, the E-mail message requested action by NMFS. See E-mail from D. Brancato, Riverkeeper, to J. Crocker, J. Williams and J. Bullard, NMFS (Nov. 23, 2012)

(ADAMS Accession No. ML13268A565); E-mail from D. Brancato, Riverkeeper, to P. Kurkul, J. Crocker and J. Williams, NMFS (Nov. 23, 2012) (ADAMS Accession No. ML13268A563), attaching Letter from D. Brancato, Riverkeeper, to NMFS (Nov. 23, 2012). Riverkeeper did not send its letter or E-mails to the address specified in the Federal Register Notice for comments on the draft FSEIS Supplement, or to any other person at the NRC. After transmitting a copy of its letter to Staff Counsel, Riverkeeper never sought to discuss its letter with Staff Counsel and never requested that Staff Counsel or the Staff take any action with respect thereto. If Riverkeeper had wanted the Staff to consider and address its comments to NMFS, it could and should have done so. Cf. Order (Concerning Certain Exhibits Submitted by WestCAN and Associated Petitioners) (Feb. 1, 2008), at 2 (Inconsistent, incomplete, and confusing filings . . . place an enormous burden on the Board [and] other litigants . . . This is unfair to all . . . parties

those comments be addressed by the Staff. Having failed to properly submit its comments to the Staff in a timely manner to secure their consideration in the FSEIS Supplement, 54 Riverkeeper cannot now reasonably argue that the Staff should have considered and addressed those comments in the FSEIS Supplement.

Second, contrary to Riverkeepers apparent belief, its comments of November 23, 2012, regarding the draft BiOp were considered prior to issuance of NMFSs final BiOp. In particular, as set forth in the NMFSs NMFS Memorandum of January 29, 2013 (Attachment B hereto),

NMFS - as the expert agency, and the agency to whom Riverkeeper had directed its comments of November 23, 2012 - considered and addressed those comments in detail prior to issuing the final BiOp. On January 30, 2013, after considering Riverkeepers comments, along with the comments submitted by Entergy and the Staff, NMFS proceeded to issue its final BiOp. While Riverkeeper may not share NMFSs views regarding the merits of its comments, Riverkeepers assertion that its comments on the draft BiOp were not considered is contrary to the facts, and therefore fails to state an admissible contention. 55 Thus, Riverkeepers claims regarding those comments should be rejected as failing to state a genuine dispute of material fact or law. 56

4. NYSDECs Comments of March 25, 2013 Riverkeeper states that the final FSEIS Supplement failed to consider comments by the New York State Department of Environmental Conservation (NYSDEC) concerning the final BiOp, which NYSDEC submitted to the NRC on March 25, 2013 (Motion at 12-16). In that letter, NYSDEC contested the adequacy of the BiOp, and argued that the final BiOp must be in this litigation, and it detracts from the Boards ability to give proper consideration to the substance of the petition itself).

54 The Federal Register Notice stated that comments on the draft FSEIS must be submitted to the NRCs Rules, Announcements and Directives Branch (RADB). Riverkeeper did not submit its comments of November 23, 2012, to RADB; in contrast, it did send its comments of August 20, 2012 and April 29, 2013, to RADB. See Motion, Attachments 7 and 8.

55 Private Fuel Storage, CLI-04-22, 60 NRC at 136.

56 Diablo Canyon, CLI-11-11, 74 NRC at 457.

remanded to NMFS for further analysis and evaluation. 57 Riverkeepers assertions regarding NYSDECs letter fail to state a genuine dispute of a material fact or law.

First, as stated above, comments on the draft FSEIS Supplement were required to be submitted to the NRC no later than August 20, 2012. In accordance with that requirement, NYSDEC timely submitted comments to the NRC regarding the draft FSEIS, on August 20, 2012 - which the Staff then considered and addressed in the final FSEIS Supplement. 58 Similarly, on August 20, 2012, John Sipos, Esq., of the New York Attorney Generals office, submitted comments on the draft FSEIS Supplement - which the Staff also considered and addressed in the final FSEIS Supplement. 59 In contrast, NYSDECs comments of March 25, 2013, were submitted seven months after the Federal Register deadline for comments on the draft FSEIS Supplement had passed, far too late to be considered as a practical matter in the final FSEIS Supplement. Accordingly, the fact that these comments were not addressed in the FSEIS Supplement does not raise a genuine issue of material fact or law.

Second, Riverkeeper fails to note that following the issuance of their final review documents (i.e., NMFSs final BiOp and the Staffs final FSEIS Supplement), both the Staff and NMFS considered NYSDECs comments of March 25, 2013, and determined that the NYSDEC comments did not warrant further action. 60 Thus, Riverkeepers arguments concerning NYSDECs March 25, 2013 comments are contrary to the facts.

In sum, inasmuch as (a) NYSDEC failed to submit its March 25, 2013 comments to the Staff in a timely manner, and (b) those comments were, in fact, considered by both the Staff and 57 Letter from K. Moser, NYSDEC, to Dr. A. Hull, NRC (Mar. 25, 2013) (Motion, Attachment 9),

at 6.

58 See FSEIS Supplement, Appendix A, at A-2 and A A-23 (Attachment 15 hereto).

59 See id., at A-2 and A A-34.

60 See (1) Letter from J. Bullard, NMFS, to K. Moser, NYSDEC (May 31, 2013) (ADAMS Accession No. ML13155A475) (Attachment 14 hereto); and (2) Letter from M. Wong, NRC, to K. Moser, NYSDEC (July 3, 2013) (ADAMS Accession No. ML13123A275) (Attachment 16 hereto).

NMFS, Riverkeepers claims concerning the FSEIS Supplements lack of response to those comments fail to state a genuine dispute of a material issue of fact or law.

B. The Staffs Reliance on NMFSs Biological Opinion.

In its Motion, Riverkeeper asserts that the Staffs FSEIS Supplement blindly relied upon NMFSs BiOp, that the Staff failed to provide meaningful consideration of the ESA consultation process, and that the Staff thereby failed to satisfy its obligation under NEPA to take a hard look at the environmental impacts of IP2/IP3 license renewal. Motion at 7, 8, &

13-15. These assertions fail to state a genuine dispute of material issue of fact or law.

1. Requirements under NEPA and 10 C.F.R. Part 51 In accordance with Section 102(2)(C) of NEPA, 61 federal agencies are required, inter alia, to prepare a detailed statement on the environmental impacts of major federal actions that may significantly affect the quality of the human environment, 62 and to consider reasonable and feasible alternatives to those proposed actions. 63 An agency need not, however, consider remote and highly speculative consequences. 64 As the courts have observed, NEPAs requirements serve two purposes: (a) that the agency will consider every significant aspect of 61 Section 102(2)(C) of NEPA requires federal agencies, "to the fullest extent possible," to "include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment; a detailed statement on (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 42 U.S.C. § 4332(2)(C). Section 102(2)(C) further states that, Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Id.

62 42 U.S.C. § 4332(2)(C); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 339 (1989); accord, Massachusetts v. NRC, 708 F.3d 63, 67 (1st Cir., Feb. 25, 2013).

63 st Beyond Nuclear v. NRC, 704 F.3d 12, 16 (1 Cir., Jan. 4, 2013), citing Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972), and Vt. Yank ee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551 (1978).

64 Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 837-38 (D.C. Cir. 1972).

the environmental impact of a proposed action, and (b) that the agency will inform the public that it has considered environmental concerns in its decisionmaking process. 65 The NRCs regulations implementing NEPA are set forth in 10 C.F.R. Part 51. 66 Under 10 C.F.R. § 51.20(b)(2), the NRC must prepare an environmental impact statement (EIS) for license renewals. The Commission has determined that, for many environmental issues related to license renewal, the NRC could draw generic conclusions applicable to all existing nuclear power plants, or to a specific subgroup of plants. 67 Accordingly, the NRC prepared a generic environmental impact statement (GEIS) for license renewal that assessed those impacts generically; 68 these are described as Category 1 impacts in 10 C.F.R. Part 51, Appendix B, Table B-1. In contrast, certain environmental impacts require a site-specific evaluation for license renewal; those impacts, listed as Category 2 impacts in Table B-1, require preparation of a supplement to the GEIS. 69 In Table B-1, the impacts for all Category 1 issues are described as SMALL, while the impacts for Category 2 issues may be SMALL, 65 Massachusetts v. NRC, 708 F.3d at 67, quoting Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983) (internal quotation marks and citations omitted);

rd accord, N.J. Dep't of Environmental Protection v. NRC, 561 F.3d 132, 134 (3 Cir. 2009).

66 The Commission has twice amended Part 51 to address the scope of license renewal environmental reviews. See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996) (Exhibit NYS000127), amended by 61 Fed. Reg.

66, 537 (Dec. 18 1996) (Exhibit NYS000128); Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282 (June 20, 2013); License Renewal of Nuclear Power Plants; Generic [EIS] and Standard Review Plans for Environmental Reviews, 78 Fed. Reg. 37,325 (June 20, 2013).

67 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 11 (2001).

68 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Final Report, Vols. 1 & 2 (May 1996) (GEIS) (Exhibit NYS00131A-I).

69 10 C.F.R. § 51.95(c).

MODERATE, or LARGE, depending upon site-specific considerations. 70 Following publication of a site-specific supplement to the GEIS, any further supplementation is required only if there are significant new circumstances or information . . . [that] paint[s] a dramatically different picture of impacts compared to the description of impacts in the EIS. 71 The impacts of license renewal on threatened or endangered species are considered by the NRC to be a Category 2 issue, requiring that a site-specific review of possible effects on such species be completed as part of the Staffs SEIS. 72 In this regard, 10 C.F.R. Part 51, Appendix B, states:

Generally, plant refurbishment and continued operation are not expected to adversely affect threatened or endangered species.

However, consultation with appropriate agencies would be needed at the time of license renewal to determine whether threatened or endangered species are present and whether they would be adversely affected.

2. NEPA-Related Requirements under the Endangered Species Act.

As part of its compliance with NEPA and 10 C.F.R. Part 51, the NRC Staff engages in consultation with other Federal agencies, as appropriate, under Section 7 of the ESA. The ESA requires federal agencies to insure that actions authorized, funded or carried out by them do not jeopardize the continued existence of an endangered species or result in the destruction or modification of habitat of such species. 73 When the possible effects of an agency action, such as a license renewal, affect marine species, the ESA requires consultation with NMFS. Under 70 10 C.F.R. Part 51, Table B-1 (Jan. 1, 2013), at 61-68. A SMALL impact means environmental effects are not detectable or are so minor that they will neither destabilize nor noticeably alter any important attribute or resource; MODERATE impacts are sufficient to alter noticeably, but not destabilize, important attributes of the resource; LARGE impacts are clearly noticeable and are sufficient to destabilize important attributes of the resource. Id. at 68, note 3.

71 Massachusetts v. NRC, 708 F.3d at 68-69, quoting Town of Winthrop v. FAA, 535 F.3d 1, 7, 12 st (1 Cir. 2008).

72 See 42 U.S.C. § 4332; see also 10 C.F.R. §§ 51.53(c)(3)(ii)(E) and 51.71(a); 10 C.F.R. Part 51, Table B-1, at 63.

73 See Tennessee Valley Authority v. Hill, 437 U.S. 153, 160 (1978); 15 U.S.C § 1536(a)(2).

the Section 7 consultation requirement, the first task of an agency is to request information from NMFS on whether a listed or proposed species or a designated or proposed critical habitat is present in the area. 74 If NMFS advises that an endangered or proposed species may be present, the agency must conduct a biological assessment, 75 which may be undertaken as part of the agencys compliance with NEPA. 76 If the BA indicates effects to a listed or proposed species or habitat, the agency must engage in formal consultation with NMFS. 77 In accordance with NMFSs procedures, during formal consultation, NMFS determines whether a proposed agency action(s) is likely to jeopardize the continued existence of a listed species . . . or destroy or adversely modify critical habitat. 78 At the close of formal consultation, NMFS will issue a biological opinion, with a finding of either jeopardy or no jeopardy. 79 If a no jeopardy opinion is issued, then no further action is required by the action agency. If a jeopardy opinion is issued, NMFS will indicate reasonable and prudent alternatives, if any exist. NMFS may also issue an incidental take statement 80 in conjunction with either a jeopardy or no jeopardy finding in its BiOp. Once consultation is initiated with NMFS, an agency cannot make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any 74 50 C.F.R. § 402.12(c).

75 50 C.F.R. § 402.12(b)(1).

76 50 C.F.R. § 402.06.

77 50 C.F.R. § 402.14.

78 Endangered Species Consultation Handbook, Procedures for Conducting Consultation and Conference Activities under Section 7 of the Endangered Species Act, U.S. Fish and Wildlife Service, National Marine Fisheries Service (Mar. 1998) at 4-1 (Attachment A to Staff Answer to Initial Contention).

79 50 C.F.R. § 402.14(h).

80 Section 7(b)(4) allows the Service to issue an incidental take statement for agency actions where the taking of an endangered species is incidental to the agency action. This written statement can set forth terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant.

reasonable and prudent alternatives that the BiOp may raise. 81 Only after consultation is complete can an agency determine whether and in what manner to proceed with the action in light of its Section 7 obligations and [NMFSs] biological opinion. 82 NMFS regulations anticipate an intersection between Section 7 consultation and an agencys NEPA review process. Specifically, 50 C.F.R. § 402.06 states that [c]onsultation, conference, and biological assessment procedures under Section 7 may be consolidated with interagency cooperation procedures required by other statutes, such as the National Environmental Policy Act; the regulations further state that the results of consultation under Section 7 should be included in the documents required by [NEPA], namely, the EIS. 83 The question of whether an action agency that engages in consultations with NMFS or FWS may rely on that agencys BiOp was directly addressed by the D.C. Circuit Court of Appeals, in City of Tacoma, Washington v. FERC, 460 F.3d 53, 75 (D.C. Cir. 2006). There, the court recognized that an action agency must rely, to some extent, on the NMFS or FWS determinations:

This interagency consultation process reflects Congress's awareness that expert agencies (such as the Fisheries Service and the Fish and Wildlife Service) are far more knowledgeable than other federal agencies about the precise conditions that pose a threat to listed species, and that those expert agencies are in the best position to make discretionary factual determinations about whether a proposed agency action will create a problem for a listed species and what measures might be appropriate to protect the species. Congress's recognition of this expertise suggests that Congress intended the action agency to defer, at least to some extent, to the determinations of the consultant agency, a point the Supreme Court recognized in Bennett v.

Spear, 520 U.S. 154, 169-170 [ ] (1997). In Bennett, the Court stated that an action agency disregards a jeopardy finding in a 81 50 C.F.R. § 402.09.

82 50 C.F.R. § 402.15.

83 50 C.F.R. § 402.06(a) & (b).

BiOp "at its own peril" and bears the burden of articulating the reasons for reaching its contrary conclusion. Id. 84 Based on these considerations, the court concluded that an action agency may rely upon the expert agencys BiOp, as long as the action agencys reliance on the BiOp was not arbitrary and capricious:

Accordingly, when we are reviewing the decision of an action agency to rely on a BiOp, the focus of our review is quite different than when we are reviewing a BiOp directly. In the former case, the critical question is whether the action agency's reliance was arbitrary and capricious, not whether the BiOp itself is somehow flawed. ALCOA v. Adm'r, Bonneville Power Admin., 175 F.3d 1156, 1160 (9th Cir. 1999); Pyramid Lake Paiute Tribe v. U.S.

Dep't of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990); Stop H-3 Ass'n v. Dole, 740 F.2d 1442, 1460 (9th Cir. 1984); cf. Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 422 F.3d 782, 790 (9th Cir. 2005) (direct review of a BiOp). Of course, the two inquiries overlap to some extent, because reliance on a facially flawed BiOp would likely be arbitrary and capricious, but the action agency "need not undertake a separate, independent analysis" of the issues addressed in the BiOp. Aluminum Co., 175 F.3d at 1161. In fact, if the law required the action agency to undertake an independent analysis, then the expertise of the consultant agency would be seriously undermined. Yet the action agency must not blindly adopt the conclusions of the consultant agency, citing that agency's expertise. Id. Rather, the ultimate responsibility for compliance with the ESA falls on the action agency. 16 U.S.C. § 1536(a)(1)-(2). In Pyramid Lake, the Ninth Circuit balanced these two somewhat inconsistent principles and articulated the following rule:

[E]ven when the [consultant agency's] opinion is based on "admittedly weak" information, another agency's reliance on that opinion will satisfy its obligations under the Act if a challenging party can point to no "new" information -- i.e., information the

[consultant agency] did not take into account --

which challenges the opinion's conclusions.

898 F.2d at 1415; see also Defenders of Wildlife v. U.S. EPA, 420 F.3d 946, 959, 976 (9th Cir. 2005); Stop H-3 Ass'n, 740 F.2d at 1459-60. 85 84 City of Tacoma, 460 F.3d at 75.

85 Id. at 75-76; emphasis added. See also Wild Fish Conservancy v. Salazar, 628 F.3d 513, 532 (9th Cir. 2010) (An agency's reliance on a biological opinion based on admittedly weak information satisfies its ESA obligations as long as the challenging party can point to no new information undercutting

In sum, while the ultimate responsibility for compliance with the ESA falls on the action agency (here the NRC), 86 the action agency may rely upon a BiOp prepared by NMFS or FWS, as the expert agency. The critical question is whether the action agency's reliance on the BiOp was arbitrary and capricious. 87 The action agency cannot meet its ESA Section 7 obligations by relying on a BiOp that is legally or facially flawed, or by failing to discuss information that would undercut the opinions conclusions. 88 It does not suffice, however, for a commenter, when urging an action agency to reject the BiOp of a consultant agency, simply to reargue factual issues which the consultant agency had already taken into consideration. Rather, as both the Ninth Circuit and the D.C. Circuit courts of appeal have held, an action agency's reliance on a biological opinion will satisfy its [ESA obligations] if a challenging party can point to no new information - i.e., information the [consultant agency] did not take into account - which challenges the opinion's conclusions. 89 Further, the action agency need not undertake a separate, independent analysis of the issues addressed in the BiOp. 90 the opinion's conclusions.); accord, Center for Biological Diversity v. BLM, 698 F.3d 1101 (9th Cir. 2012)

(finding that BLM violated its substantive duty under the ESA because it relied on a BiOp that was both legally flawed and inadequate with regard to evaluating potential impacts to species).

86 City of Tacoma, 460 F.3d at 76.

87 Id.

88 Center for Biological Diversity v. BLM, 698 F.3d 1101, 1127-28 (9th Cir. 2012) (finding that BLM violated its substantive duty under the ESA because it relied on a BiOp that was both legally flawed and inadequate with regard to evaluating potential impacts to species).

89 City of Tacoma, 460 F.3d at 76, citing Pyramid Lak e Paiute Tribe v. U.S. Dep't of Navy, 898 F.2d 1410, 1415 (9th Cir. 1990) (finding that [b]ecause Tacoma did not assert new information that called into question the factual conclusions of the BiOps, FERC was justified in relying on the BiOps and did not act arbitrarily and capriciously in doing so.). See also Wild Fish Conservancy v. Salazar, 628 F.3d 513, 532 (9th Cir. 2010) (An agency's reliance on a biological opinion based on admittedly weak information satisfies its ESA obligations as long as the challenging party can point to no new information undercutting the opinion's conclusions.).

90 City of Tacoma, 460 F.3d at 76 (noting that if the law required the action agency to undertake an independent analysis, then the expertise of the consultant agency would be seriously undermined).

3. The Staff Did Not Blindly Rely Upon NMFSs Final BiOp In its FSEIS and FSEIS Supplement, the Staff provided a thorough and detailed evaluation of the site-specific impacts of IP2/IP3 license renewal on endangered and threatened species. 91 As part of that evaluation, the Staff provided its own analysis and evaluation of the impacts of license renewal on aquatic species (including impingement, entrainment, and thermal impacts), discussed its consultation process with NMFS under Section 7 of the ESA; summarized NMFSs final BiOp (and the ITS and reasonable and prudent measures contained therein); and considered the environmental impacts to both the shortnose sturgeon and the Atlantic sturgeon, in light of its own and NMFSs evaluations. Based on all the available information, the Staff concluded, for purposes of NEPA, that license renewal of IP2 and IP3 is likely to have a SMALL impact on both the shortnose sturgeon and the Atlantic sturgeon. 92 Plainly, notwithstanding Riverkeepers unsupported assertions to the contrary, the Staff did not blindly rely on NMFSs final BiOp. As discussed supra at 4-5 and chronicled in Appendix A hereto, the Staff engaged in an extensive series of communications with NMFS regarding the impacts of IP2/IP3 license renewal on endangered and threatened species.

Rather than blindly adopting NMFSs final BiOp, the Staff conducted its own assessment of impacts to endangered and threatened species, in which it prepared and transmitted to NMFS, inter alia, an initial BA (December 2008), 93 a revised BA (December 2010), 94 a BA supplement (July 2011), 95 and a further BA (May 2012). 96 In addition, the Staff provided numerous 91 See FSEIS, § 4.6 (Attachment 3 hereto); FSEIS Supplement, Ch. 4 (Attachment 15 hereto).

92 See FSEIS Supplement (Attachment 15 hereto), at 30.

93 See Attachment 1 hereto.

94 See Attachment 4 hereto.

95 See Attachment 5 hereto.

96 See Attachment 9 hereto.

comments to NMFS regarding both its draft initial BiOp of August 2011 (September 2011) 97 and its draft revised BiOp of October 2012 (November 2012), 98 and it submitted other information to NMFS for its consideration, as well. 99 In sum, the Staff was extensively involved in assuring that NMFSs BiOp considered all of the information that was available.

Second, to the extent that the Staff relied upon NMFSs BiOp, its reliance on the BiOp was not arbitrary and capricious. 100 As stated above, rather than blindly adopt[ing] the conclusions of the consultant agency, citing that agency's expertise, 101 the Staff provided all available information to NMFS for its consideration. NMFS then considered the Staffs information and analyses, the information and analyses provided by Entergy - and the comments it had received from Riverkeeper (a non-consulting party under the ESA), prior to issuing its final BiOp. 102 NMFSs final BiOp, issued at the conclusion of this extensive consultation process, thus reflects the Staffs input as well as NMFSs independent evaluation, as the statutorily recognized and designated expert agency on endangered and threatened aquatic species. The Staffs acceptance and reliance upon NMFSs BiOp thus cannot reasonably be challenged as arbitrary and capricious.

Moreover, despite Riverkeepers assertion that NMFS BiOp was riddled with inadequacies, which NRC Staff did not properly consider in the FSEIS supplement, 103 it fails to identify, specifically, any new information that should have been but was not considered in NMFSs BiOp or the Staffs FSEIS Supplement, that would undercut the conclusions reached 97 See Attachments 6, 7, and 8 hereto.

98 See Attachments 12 hereto.

99 See, e.g., Attachment 11 hereto.

100 City of Tacoma, 460 F.3d at 75.

101 Id. at 76.

102 See NMFS Memorandum (Jan. 29, 2013) (Attachment 18 hereto), at 9 and 22-28.

103 Motion at 8.

therein. Instead, Riverkeeper asserts, in the most general terms, that the final BiOp (a) fails to address or consider critical comments regarding numerous deficiencies in NMFS analysis of how the ongoing and continued operation of Indian Point will impact endangered species, 104 and (b) that the FSEIS Supplement fails to adequately address the concerns raised in Riverkeepers comments of August 20, 2012 and April 29, 2013, and NYSDECs comments of March 25, 2013. 105 However, as shown in NMFSs Memorandum of January 29, 2013 (Attachment 18 hereto), NMFS explicitly considered the comments that Riverkeeper had submitted prior to issuance of the final BiOp. 106 Further, as discussed supra, at 19-21, following the issuance of the BiOp, NMFS also considered NYSDECs late-filed comments of March 25, 2013, and determined that they contained no new information that would undercut the final BiOp. 107 Likewise, the Staff considered NYSDECs comments, and determined that they did not require further consideration or action. 108 As far as can be ascertained, the only comment submittal cited by Riverkeeper that was not explicitly addressed by NMFS or the Staff, was Riverkeepers 2-page letter to the NRC of April 29, 2013. That submittal, however, merely reargued the points Riverkeeper had previously made in its comments of November 23, 2012, and provided no new information that would undercut the final BiOp or the FSEIS Supplement. Indeed, as Riverkeeper itself notes, its April 29, 2013 supplemental comments to the NRC were not new information; rather, they essentially appended and incorporated by reference the comments Riverkeeper previously submitted to 104 Motion at 7.

105 Motion at 10-13.

106 See NMFS Memorandum (Jan. 29, 2013), at 9 and 22-28.

107 See Letter from J. Bullard, NMFS, to K. Moser, NYSDEC (May 31, 2013) (ADAMS Accession No. ML13155A475) (Attachment 14 hereto).

108 See Letter from M. Wong, NRC, to K. Moser, NYSDEC (July 3, 2013) (ADAMS Accession No. ML13123A275) (Attachment 16 hereto).

NMFS on November 23, 2012. 109 Moreover, NMFS explicitly considered and addressed those comments at length, prior to issuing its final BiOp, as shown in NMFSs Memorandum of January 29, 2013 (Appendix B hereto). 110 As the D.C. Circuit Court of Appeals has held, an action agency need not undertake a separate, independent analysis of the issues addressed by the expert agency; 111 accordingly, the Staff was not required to undertake an independent analysis of Riverkeepers November 23, 2012, comments, separate from NMFSs evaluation of those comments during its preparation of the BiOp.

In sum, inasmuch as Riverkeeper has not pointed to any new information that was not considered by NMFS, i.e., information the [consultant agency] did not take into account - which challenges the opinion's conclusions, 112 the Staffs reliance on the final BiOp was not arbitrary and capricious. Riverkeepers assertions to the contrary fail to present a genuine issue of material fact or law, and its amended contention should therefore be rejected.

IV. Amended Contention RK-EC-8A Is Inadmissible Insofar as It Challenges the Adequacy or Merits of NMFSs BiOp.

As the Board is aware, this proceeding involves the Applicants request for NRC approval of its license renewal application for Indian Point Units 2 and 3. As part of the agencys consideration of that application, the Staff conducted an evaluation of the environmental impacts of license renewal, including the impacts to endangered and threatened species, in accordance with the agencys responsibilities under NEPA. That issue was addressed by the Staff in its (1) draft FSEIS of December 2008, (2) final FSEIS of December 2010, (3) draft FSEIS Supplement of June 2012, and (4) final FSEIS Supplement of June 2013.

109 Motion at 10-11.

110 As NMFS noted, neither the ESA nor the Section 7 regulations, or any law, requires NMFS to consider Riverkeepers comments. NMFS Memorandum (Attachment 18), at 9.

111 Id. at 76 (noting that if the law required the action agency to undertake an independent analysis, then the expertise of the consultant agency would be seriously undermined).

112 Pyramid Lak e, 898 F.2d at 1415.

During the course of its review, acting in accordance with NEPA and the ESA, the Staff initiated (and later, reinitiated) consultations with NMFS regarding the impacts of license renewal to endangered and threatened species. The Staff conducted those consultations in accordance with Congresss explicit designation of NMFS as this nations expert agency on threatened and endangered marine species. After consultations had concluded, NMFS issued its final Biological Opinion - and the Staff then issued its final FSEIS Supplement, in which it evaluated the impacts to endangered and threatened species, and considered and incorporated NMFSs expert opinion and the Incidental Take Statement and reasonable and prudent measures set forth therein. Having considered all the available information, the Staff concluded that the impacts of license renewal on threatened and endangered species is SMALL. Significantly, Riverkeeper points to no factual information whatsoever that would call this conclusion into question.

For a contention to be admissible in this proceeding, it must comply with the Commissions contention admissibility requirements, discussed supra at 7-10. Among these is the requirement that the contention may not seek to raise an issue which is not proper for adjudication in the proceeding or is not concrete or litigable. 113 Although Riverkeepers Motion is not entirely clear, it appears to attack not only the Staffs alleged reliance on NMFSs final BiOp, but the merits of NMFSs final BiOp, as well. Under the established principles discussed in City of Tacoma, that is impermissible. While Riverkeeper may permissibly allege that the Staff blindly relied on NMFSs final BiOp, or that the Staffs reliance on the final BiOp was arbitrary and capricious; it may not invoke the jurisdiction of the Commission and this Board to consider the merits or adequacy of NMFSs final BiOp; to do so would be to raise an issue that is beyond the permissible scope of this proceeding. 114 113 Peach Bottom, ALAB-216, 8 AEC at 20-21.

114 See generally, Peach Bottom, ALAB-216, 8 AEC at 20-21; Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-02-20, 56 NRC 147, 158-60 (2002).

In this regard, the holding of the U.S. Court of Appeals for the D.C. Circuit in City of Tacoma is instructive. As the court stated, when we are reviewing the decision of an action agency to rely on a BiOp, the focus of our review is quite different than when we are reviewing a BiOp directly. In the former case, the critical question is whether the action agency's reliance was arbitrary and capricious, not whether the BiOp itself is somehow flawed. Id.,

460 F.3d.at 75 (citations omitted). As the court further noted, reliance on a facially flawed BiOp would likely be arbitrary and capricious, but the action agency need not undertake a separate, independent analysis of the issues addressed in the BiOp. 115 Rather, the court adopted the rule established by the Ninth Circuit in its balancing of these principles:

[E]ven when the [consultant agency's] opinion is based on "admittedly weak" information, another agency's reliance on that opinion will satisfy its obligations under the Act if a challenging party can point to no "new" information -- i.e., information the

[consultant agency] did not take into account -- which challenges the opinion's conclusions. 116 V. The Staff Was Not Required to State, in the FSEIS Supplement, the FSEIS Supplements Effect on the Staffs Recommendation to the Commission Riverkeeper asserts that the Staffs FSEIS Supplement is deficient, in that the Staff had failed to explain how the new and significant information assessed by NRC Staff in the FSEIS supplement affect NRC Staffs recommendation to the Commission regarding the appropriateness of the proposed license renewal of Indian Point. Motion at 7. This claim fails to establish a genuine dispute on a material issue of fact or law.

In essence, Riverkeeper faults the Staff for not stating the obvious. The Staffs FSEIS, issued in December 2010, found that the impacts of an additional 20 years (beyond the current term) of operation and maintenance of the site on aquatic species that are Federally listed as 115 City of Tacoma at 76, citing ALCOA v. Adm'r, Bonneville Power Admin., 175 F.3d 1156, 1161 (9th Cir. 1999).

116 Id., citing Pyramid Lak e Paiute Tribe v. U.S. Dep't of Navy, 898 F.2d 1410, 1415 (9th Cir.

1990).

threatened or endangered is SMALL. 117 Based on its evaluation of the available information, and considering all of the determinations reached in the FSEIS (including the determination regarding impacts to threatened and endangered species), the FSEIS stated:

[T]he recommendation of the NRC staff is that the Commission determine that the adverse environmental impacts of license renewal for IP2 and IP3 are not so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.

Id. at 9-8. That conclusion was not altered by the information, analyses and evaluation contained in the FSEIS Supplement.

Specifically, in the FSEIS Supplement, the Staff considered additional information that was not considered in the FSEIS (including Entergys recently completed triaxial thermal plume study); corrected errors in the FSEIS analysis (which, inter alia, had overstated the adverse impacts to aquatic resources); and gave due consideration to NMFSs final BiOp - including its Incidental Take Statement and listing of reasonable and prudent measures that must be adopted by the Applicant, and its conclusion that continued plant operation is likely to adversely affect but is not likely to jeopardize the continued existence of shortnose sturgeon or the New York Bight, Gulf of Maine or Chesapeake Bay DPS [Distinct Population Segment] of Atlantic sturgeon. No critical habitat is designated in the action area; therefore, none will be affected by the proposed actions. Final BiOp at 126. Based upon its consideration of all the available information, the Staff concluded, the staff finds that the level of impact for aquatic special status species would be SMALL. 118 Thus, the Staff determined, in both the FSEIS and the FSEIS Supplement that the impacts of license renewal on threatened and endangered aquatic species is SMALL. Given the sameness of these two findings, Riverkeepers assertion that the FSEIS Supplement was 117 FSEIS at 4-60; emphasis added.

118 FSEIS Supplement at 30; emphasis added.

remiss for not explaining the effect of its findings on the Staffs prior recommendation to the Commission, fails to present a genuine dispute of material fact or law, or a concrete and material issue that is appropriate for litigation.

CONCLUSION For the reasons set forth above, Amended Contention RK-EC-8A fails to comply with the Commissions requirements governing the admissibility of contentions and, to the extent that it challenges the adequacy of NMFSs BiOp, raises an issue that is inappropriate for litigation in this proceeding. The Staff therefore opposes the admission of Amended Contention RK-EC-8A and recommends that it be rejected.

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov Executed in Accord with 10 C.F.R. 2.304(d)

Anita Ghosh Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-4113 E-mail: anita.ghosh@nrc.gov Dated at Rockville, MD this 1st day of October, 2013

CERTIFICATION OF COUNSEL In accordance with 10 C.F.R. § 2.323(b) and the Board's Scheduling Order of July 1, 2010, I certify that I made a sincere effort to make myself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues were unsuccessful.

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov Dated at Rockville, MD this 1st day of October, 2013

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

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO RIVERKEEPER, INC. CONSOLIDATED MOTION FOR LEAVE TO FILE AMENDED CONTENTION RK-EC-8A AND AMENDED CONTENTION RK-EC-8A, dated October 1, 2013, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above captioned proceeding, this 1st day of October, 2013.

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov