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{{#Wiki_filter:INDIAN POINT UNIT 2 AND UNIT 3Coastal Zone Management Act Consistency Certification in Support ofRenewal of Indian Point Unit 2 and Unit 3 USNRC Operating LicensesSubmitted by:Entergy Nuclear Indian Point 2, LLCEntergy Nuclear Indian Point 3, LLCEntergy Nuclear Operations, Inc.EntergySUPPLEMENTAL INFORMATION ONGROUNDWATER QUALITY ISSUESMARCH 31, 2014 JGOODWIN PROCTER Matin R. Healy Goodwin Procter LLP617.570.1371 Counselors at Lawmhealy@goodwinprocter.com Exchange PlaceBoston, MA 02109T: 617.570.1000 F: 617.523.1231 March 31, 2014BY FEDERAL EXPRESS AND E-MAILLinda M. BaldwinGeneral CounselNew York State Department of StateCounsel's OfficeOne Commerce Plaza99 Washington StreetAlbany, NY 1223 1-0001Re: New York State Department of State File #F-2012-1028 Consistency Certification for Entergy Nuclear Indian Point 2 andEntergv Nuclear Indian Point 3 License Renewal Application
==Dear Ms. Baldwin:==
This letter provides supplemental information requested by the New York State Department of State (the"Department")
in connection with the consistency certification (the "Consistency Certification")
submitted on December 17, 2012, by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear IndianPoint 3, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy")
for Entergy's Indian Point2 and 3 ("Indian Point") License Renewal Application pending before the Nuclear Regulatory Commission
("NRC").
During its consultation session with Entergy on December 3, 2013, theDepartment requested Entergy to provide information regarding past unplanned releases of radiological materials at Indian Point and the potential effects of those releases on groundwater quality.
In particular, the Department inquired whether the Unit 2 spent fuel pool leak discovered in August of 2005 has beenadequately addressed, and whether Entergy can provide more up-to-date information on the results ofgroundwater monitoring at Indian Point.In response to the Department's
: requests, Entergy is providing information regarding groundwater quality issues at Indian Point previously filed by Entergy with NRC in connection with current plantoperations and the ongoing NRC license renewal proceeding for Indian Point,' and with the New York1 NRC has exclusive jurisdiction to regulate radiological releases at Indian Point. See, e.g., Train v. Colorado Public InterestD Research Group, Inc., 426 U.S. 1, 16 n.12 (1976)("States are precluded from playing any role in several significant areas ofregulation, including the setting of limitations on radioactive discharges from nuclear power plants.");
N. States Power Co. v.Minnesota, 447 F.2d 1143, 1151 (81h Cir. 1971) (stating "Congress intended to pre-empt the field of the licensing and GOODWIN PROCTERP Linda M. BaldwinGeneral CounselMarch 31, 2014Page 2State Department of Environmental Conservation
("NYSDEC")
in connection with its pendingadjudicatory proceeding concerning Indian Point's Water Quality Certification.
2 In addition, to assistthe Department with its review of this technical information, Entergy is also providing a "white paper"that sets forth the relevant facts about groundwater at Indian Point.Entergy reiterates that it is proceeding with federal consistency review by the Department under a fullreservation of its rights under state and federal law, including, by way of example and withoutlimitation, its right to argue that: (i) Indian Point is within a "grandfathering" exemption from federalconsistency review under the New York Coastal Management Plan (the "CMP"); (ii) Indian Point hasbeen previously reviewed for consistency with the CMP; and (iii) the Department's purported federalconsistency review under the CMP intrudes upon exclusive areas of federal regulatory authority and ispreempted.
Entergy additionally notes that the information being requested by the Department in thiscase was not requested by the Department in connection with its previous federal consistency reviews ofnuclear power plants. Further, Entergy does not concede the relevance of the requested information tothe Department's review of Indian Point for consistency with the CMP.Nonetheless, detailed information has already been prepared for both NRC and NYSDEC whichdemonstrates, as a factual matter, that: (i) the sources of past unplanned releases of radiological materials to groundwater at Indian Point have been eliminated or the causes have been addressed; (ii) thepast unplanned releases of radiological materials to groundwater at Indian Point have not caused, and arenot causing, threats to the public health or the environment; and (iii) the past unplanned releases ofradiological materials to groundwater at Indian Point have not caused, and are not causing, a violation ofstate water quality standards.
That supplemental information is being submitted in support of theConsistency Certification.
Due to the voluminous records associated with the aforementioned NRC and NYSDEC proceedings, Entergy has sought to identify and provide to the Department the subset of documents from thoseregulation of nuclear reactors to the exclusion of the states and that it did not intend to provide for dual regulation of radiation hazards")
aff'd 405 U.S. 1035 (1972); United States v. Kentuckv, 252 F.3d 816, 823 (6"h Cir. 2001) (stating that "The [AtomicEnergy Act (AEA) of 1954] preempts an)' state attempt to regulate materials covered by the Act for safety purposes");
UnitedStates v. Manning, 527 F.3d 828, 838 (9' Cir. 2008) (finding that a state law that seeks to regulate "AEA materials out ofconcern for the health and environmental risks that increased contamination will cause...
falls squarely within the fieldpreempted by the AEA"); Missouri
: v. Westinghouse Elec., LLC, 487 F. Supp. 2d 1076, 1087-88 (E.D. Mo. 2007) (refusing toratify a proposed consent decree because it attempted "to regulate the safety of a site that contains nuclear contamination
-afield completely pre-empted by the Atomic Energy Act," and stating that "[t]he presence of radiation hazards is sufficient togive rise to the NRC's exclusive jurisdiction").
2 This information is being submitted to the Department in fulfillment of the undertaking by Entergy, as set forth in its letterto the Department dated December 20, 2013, to provide to the Department by March 31, 2014, "information developed byEntergy before [NYSDEC]
about groundwater quality issues at Indian Point."
'-4GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 3proceedings that most directly address groundwater quality issues. Those documents (hard copies ofwhich are enclosed) are listed on the charts below:Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")
DatabaseRIV000066 RK-EC-3/
GZA, GeoEnvironmental, 12/22/2011 ML12335A626 CW-EC-1 Inc., Hydrogeologic SiteInvestigation Report, IndianPoint Energy Center, January7, 2008, IPEC00195418 RIV000067 RK-EC-3/
Letter from Marsha K. 12/22/2011 ML12335A624 CW-EC-1 Gamberoni, NRC, to JosephPollock,
: Entergy, "IndianPoint Nuclear Generating Units 1 & 2 -NRCInspection Report Nos.05000003/2007010 and05000247/2007010 (datedMay 13, 2008)3RIV000068 RK-TC-2 Entergy, Groundwater 12/22/2011 ML12335A623 Investigation Executive
: Summary, Indian Point_Energy Center, Buchanan, 3 NRC periodically prepares inspection reports of its inspections pertaining to Indian Point. NRC inspection reports areavailable to the public at http://www.nrc.gov/NRR/OVERSIGHT/ASSESS/listofrpts body.html#inp.
NRC inspection reports through 2009 are available at http://www.nrc.gov/info-finder/reactor/ip/correspondence.htmi.
In addition, NRCinspection reports are available at the NRC "ADAMS" database http://www.nrc.gov/reading-rm/adams.html using thefollowing ADAMS Accession
: Numbers, among others: ML12335A624, ML12338A648, ML12089A601, MLI 1356A520.
6GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 4Mandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")
DatabaseNY (January 2008)RIVROO091 RK-EC-3/
Liquid Radioactive Release 12/22/2011 ML12335A608 CW-EC-1 Lessons Learned Task ForceFinal Report, U.S. NRC(September 1, 2006)NRC000095 RK-EC-3/CW-EC-1Ltr. To NRC from Entergyre: Remediation and LongTerm Monitoring of SiteGroundwater 13/30/2012 ML12339A651 ENT000300 RK-EC-3/CW-EC-1Entergy's Statement ofPosition on Consolidated Contention RK-TC-3/CW-EC-1 (Spent Fuel PoolLeaks)3/29/2012
\4L12089A574 ENT000301 RK-EC-3/
Testimony of Entergy 3/29/2012 ML 12338A621 CW-EC-I Witness Donald M. Mayer,Alan B. Cox, Thomas C.Esselman, Matthew J.Barvenik, Carl J. Paperiello, and F. Owen HoffmanRegarding Consolidated Contention RK-EC-3/CW-EC-I (Spent Fuel Pool Leaks)ENT000302 RK-EC-3/
Curriculum Vitae of Donald 3/29/2012 ML12338A700 CW-EC-1 M. MayerENT000303 RK-EC-3/
Curriculum Vitae of Thomas 3/29/2012 ML 12338A667 CW-EC-1 C. EsselmanENT000304 R-K-EC-3/
ý"W-EC- 1Curriculum Vitae of MatthewJ. Barvenik3/29/2012 ML12338A679 WqF[NT000305 R-K-EC-3/
Curriculum Vitae of Carl J. 13/29/2012 iML12089A659 GOODWINPROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 5Mandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")
DatabaseCW-EC-1 Paperiello ENT000306 RK-EC-3/
Curriculum Vitae ofF. Owen 3/29/2012 ML12089A637 CW-EC-1 HoffmanENT000313 RK-EC-3/
2010 Annual Radiological 3/29/2012 ML12339A710 CW-EC-1 Environmental Operating Report (NL-1 1-038) (May16, 201 1)4ENT000319 RK-EC-3/
2010 Annual Radioactive 3/29/2012 ML12089A670 CW-EC-1 Effluent Release Report, Rev.I (NL- 11-068) (June 10,2011)'ENT000321 RK-EC-3/
Lawrence C. Skinner and 3/29/2012 ML12338A680 CW-EC-1 Timothy J. Sinnot,Measurement of Strontium (90Sr) and Otheradionuclides in EdibleTissues and Bone/Carapace of Fish and Blue Crabs fromthe Lower Hudson River(Nov. 2009)ENT000332 R-EC-3/ GZA GeoEnvironmental, 3/29/2012 ML12089A649
' Entergy annually provides reports to NRC regarding radiological environmental monitoring.
The reports are available tothe public at the NRC "ADAMS" database http://www.nrc.gov/readiny-rm/adams.html using the following ADAMSAccession
: Numbers, among others: M L061290085, ML071420088, ML081420476, M L091410203, ML 101390564, MLII 143A052, ML12144A412, ML13144A133.
' Entergy annually provides reports to NRC regarding radiological effluent releases.
Those reports are available to the publicat htp://www.nrc.gov/info-fnder/reactor/ip/ip-groundwater-leakaye/on-going-activities/on-going-activities I0.html, and atthe NRC "ADAMS" database http://www.nrc.gov/reading-rm/adams.html using the following ADAMS Accession Numbers,among others: ML061240373, ML071230305, ML081280744, ML091260208, ML101240989, MLII 172A042,ML12132A122, ML!31570158.
GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 6Mandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")
DatabaseCW-EC-1 Inc., Changes in Computed"Fritium Plume Total ActivityOver Time -Exponential Decay Curve Trending ofQuarterly Data through Q32011ENT000333 RK-EC-3/
GZA GeoEnvironmental, 3/29/2012 ML12089A663 CW-EC-1 Changes in ComputedStrontium Plume TotalActivity Over Time -Exponential Decay CurveTrending of Quarterly Datathrough Q3 2011ENT000343 RK-EC-3/
Letter from Darrel J. Roberts, 3/29/2012 ML12338A648 CW-EC-1 NRC, to Joseph Pollock,Entergy,
"[IPI, IP2 & IP 3]NRCInspection Report Nos.05000003/2009008; 05000247/2009008; and05000286/2009008" (Oct. 19,2009)6ENT000344 RK-EC-3/
Letter from D. C. Lew, NRC, 3/29/2012 MLI2089A601 CW-EC-1 to J. E. Pollock, Entergy,'Annual Assessment Letter -Indian Point NuclearGenerating Units 2 and 3,(Reports 05000247/2010001 6 See footnote 3, supra.
GOODWINPROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 7Mandatory Log Numbercontentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")
Database& 05000286/20100001)"
(Mar. 3, 2010)7ENT000345 RK-EC-3/
NYSDEC Community Fact 3/29/2012 ML12089A608 CW-EC-1 Sheet (May 2008)ENT000360 RK-EC-3/
EPA, Basic Information 3/29/2012 MLI2089A666 CW-EC-1 about Radionuclides inDrinking Water, web pageENT000371 RK-EC-3/CW-LetterNL-08-023, from J. 3/29/2012 ML12089A679 EC-I Pollock,
: Entergy, to NRC,Results of Ground WaterContamination Investigation (Jan. 11, 2008)NRCROO088 RK-EC-3/
NRC Staff Testimony of 9/21/2012 ML12340A747 CW-EC-I Stephen P. Klementowicz and James D. NoggleConcerning Contention Riverkeeper EC-3/Clearwater EC-I (Spent Fuel PoolLeaks)NRC00089 RK-EC-3/
Professional Qualifications, 9/21/2012 ML12339A646 CW-EC-1 Stephen P. Klementowicz NRCROO090 RK-EC-3/
James D. Noggle, Statement 9/21/2012 ML12265A720 CW-EC-1 of Professional Qualifications 7 See footnote 3, supra.
GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 8Mandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")
DatabaseENT00575 A RK-EC-3/
GZA GeoEnvironmental, 10/2/2012 ML12276A480 CW-EC-1 Inc., Final IPEC Quarterly Long-Term Groundwater Monitoring Report, QuartersOne Through Four 2011(Sept. 26, 2012)8Entergy is providing to NRC quarterly updates of its groundwater monitoring reports.
Those updated groundwater reportsare available to the public at http://www/safesecurevital.com.
Groundwater reports from 2008 through 2011 are available atthe NRC "ADAMS" database http://www.nrc.gov/reading-rm/adams.html using the following ADAMS Accession Numbers,among others: M1L080320540, ML12338A639, MLI2089A597, ML12089A615, ML12089A614, MLI2089A616, ML12338A637, ML12089A591, ML12089A596, ML12089A598, ML12094A1 17, ML12276A480, ML12276A486, ML12277A057, ML12276A493, ML12276A492.
GOODWIN PROCTERW Linda M. BaldwinGeneral CounselMarch 31,2014Page 9In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, andEntergy Nuclear Operations Inc. 'sJoint Application for CWA § 401 Water Quality Certification DEC App. Nos. 3-5522-00011/00030 (IP2)Selected Testimony, Exhibits and BriefingEntergy Date Submitted ToExhibit # ssue Addressed ocument Description TribunalN/A Issue #3: Pre-filed Testimony of Matthew J. Barvenik in 7/22/2011 Radiological 9  Support of Entergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC and EntergyNuclear Operations, Inc. (adopted under oath onJanuary 23, 2012)N/A Issue #3: Pre-filed Testimony of F. Owen Hoffman in 7/22/2011 Radiological Support of Entergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC and EntergyNuclear Operations, Inc. (adopted under oath onJanuary 11,2012)N/A Issue #3: Combined Pre-filed Rebuttal Testimony of 10/4/2011 Radiological thomas C. Esselman, Ph.D., Matthew J. Barvenik, and F. Owen Hoffman, Ph.D. (adopted under oathon January 11 & 23, 2012)80 Issue #3: NYSDEC Community Fact Sheet (Sept. 2007) 10/04/2011 Radiological 121 Issue #3: [PEC's Yearly Discharges vs Commonly 1/11/2012 Radiological Occurring Doses/A Issue #3: Proposed Findings of Fact ("PFF") of Entergy 4/27/2012 Radiological Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3, LLC, and Entergy NuclearOperations, Inc. Radiological IssuesN/A ssue #3: Post Hearing Memorandum of Entergy Nuclear /27/2012Radiological Indian Point 2, LLC, Entergy Nuclear Indian Point9 In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy NuclearO Operations Inc. 's Joint Application for CWA § 401 Water Quality Certification
("WQC"),
DEC App. Nos. 3-5522-00011/00030 (IP2), Issues List, p. I (Dec. 13, 2010) (defining issue #3 as "[w]hether Department Staff properly denied theWQC application based upon radiological considerations").
GOODWIN :PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 10Entergy Issue Addressed Document Description Date Submitted ToExhibit # sribunal3, LLC, and Entergy Nuclear Operations, Inc.,Radiological IssuesN/A Issue #3: Post Hearing Reply Memorandum of Entergy 10/5/2012 Radiological Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3, LLC, and Entergy NuclearOperations, Inc., Radiological Issues, datedOctober 5, 2012Several categories of documents listed above (e.g., quarterly groundwater monitoring
: reports, annualradioactive effluent release reports) are updated and filed, or are otherwise made available to NRC, on aquarterly or annual basis. For such categories of documents, Entergy is providing to the Department written copies of documents that are most directly responsive to its specific information requests.
For.the Department's convenience, Entergy is also providing references to where related documents (e.g.,earlier or later versions of certain enclosed
: reports, as applicable) are publically available for theDepartment's examination.
In addition, several documents being provided to the Department containcitations to supporting testimony and exhibits that are not specifically identified above or enclosed.
Ifthe Department would like copies of any such supporting testimony or exhibits, or other additional information with respect to unplanned radiological releases to groundwater, please let me know.We look forward to discussing this supplemental information with you at your convenience.
Sincerely, Martin R. HealyMRHcc:U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk (w/encl.
except forADAMS documents)
Douglas V. Pickett, Senior Project Manager, NRC NRR DORL (w/encl.
except for ADAMSdocuments)
William M. Dean, Regional Administrator, NRC Region I (w/encl.
except for ADAMSdocuments)
GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 11NRC Resident Inspectors Office (w/encl.
except for ADAMS documents)
William Sharp, Principal Attorney (w/encl.)
Kari Gathen, Associate Attorney (w/encl.)
Jeffrey Herter, Assistant Bureau Chief, Division of Development (w/encl.)
Gregory Capobianco,
: Director, Division of Development (w/encl.)
Jeffrey Zappieri, Supervisor, Consistency Review Unit (w/encl.)
Matt Maraglio, Consistency Reviewer (w/encl.)
Fred Dacimo, Vice President License Renewal, Indian Point Energy Center (w/encl.)
William B. Glew, Jr., Associate General Counsel, Entergy Services, Inc. (w/encl.)
Kelli Dowell, Assistant General Counsel, Environmental, Entergy Services, Inc. (w/encl.)
Dara Gray, Chemistry/Environmental, Indian Point Energy Center (w/encl.)
March 31, 2014Response to New York State Department of State Request for Supplemental Information Regarding Groundwater Ouality Issues at Indian PointI. Request for Supplemental Information.
On December 3, 2013, Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3,LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy")
and the New York StateDepartment of State (the "Department")
engaged in a consultation session at which theDepartment requested supplemental information regarding past unplanned releases ofradiological material to groundwater at Indian Point and the potential effects of those releases ongroundwater quality.
In Entergy's letter to the Department dated December 20, 2013, Entergyundertook to provide to the Department supplemental information on that topic on or beforeMarch 31, 2014.II. The Source of Information Regarding Radiological Releases.
Indian Point, like all operating nuclear power plants, is designed and operated in accordance withstrict Nuclear Regulatory Commission
("NRC") criteria that require, among other things, thatany radiological
: releases, including unplanned
: releases, must comply with applicable NRCsafety and health standards and, as appropriate, must be closely monitored.
See, e.g., Reference 1 (establishing annual dose limits to individual members of the public from the licensed activity),
and Reference 2 (establishing standards to maintain releases of radiological materials to the environment as low as reasonably achievable
("ALARA")).
In furtherance of its statutory responsibilities, NRC has conducted periodic inspections of Indian Point, and has requiredEnergy to file periodic reports concerning any radiological releases to the environment.
See,e.g., Reference 3 (providing guidance to operators on the regulatory requirement to measure,evaluate and report radiological releases).
In response to the discovery of unplanned releases ofradiological material at Indian Point, and in order to minimize the possibility of a futureunplanned or unmonitored
: release, NRC is overseeing Entergy's implementation of a rigorousgroundwater monitoring program.
See, e.g., Reference
: 4. Moreover, in connection with LicenseRenewal at Indian Point (the "NRC Proceeding"),
Entergy has submitted, and NRC has closelyevaluated, detailed information regarding the potential effects on public health or theenvironment of unplanned radiological releases to groundwater.
See, e.g., Reference
: 5. Finally,in connection with the New York State Department of Environmental Conservation
("NYSDEC")
adjudicatory hearing for Indian Point (the "NYSDEC Proceeding"),
Entergy hassubmitted evidence demonstrating that the unplanned releases of radiological materials togroundwater have not violated state water quality standards.
III. Summary of Facts Regarding Unplanned Radiological Releases to Groundwater atIndian Point.A. The Sources of Past Unplanned Releases of Radiological Materials to Groundwater Have Been Eliminated or Their Causes Have Been Addressed.
The removal of all fuel from and the draining and de-sludging of the Unit 1 spent fuel pools wascompleted in late 2008. As a result, Unit 1 no longer is an active source of radionuclides to thesubsurface.
See Reference 6 at 43. In addition, the prior identified unplanned releases associated with Unit 2 have been repaired, and a robust monitoring system is in place to promptly identifyand respond to any future releases.
Reference 6 at 50; Reference 7 at pp. 15-19. There has beenno identified unplanned spent fuel pool release to the environment from Unit 3.Based upon an independent review, NYSDEC concluded that, with the removal of the activecontamination source at Indian Point, planned use of monitored natural attenuation is anacceptable approach to managing the remaining radionuclide plumes. See Reference 8.B. The Past Unplanned Releases of Radiological Materials to Groundwater Have NotCaused, and Are Not Causing, Threats to Public Health or the Environment.
: i. There is no credible scientific basis to conclude that Indian Point's unplanned releases have impaired, or will impair, the public health or environment.
One of Entergy's groundwater
: experts, Dr. Hoffman, a pre-eminent scientist in the field ofradiological health and safety: (i) identified the sources and amounts of radiological materials released into the environment from Indian Point; (ii) determined whether there were anyexposure pathways for humans or aquatic biota to those radionuclides; (iii) calculated theradiation dose to humans or aquatic biota resulting from those exposure pathways; and (iv)translated that dose to risk to human health or impact on aquatic biota. See Reference 9 at 6-9,11, 14.2 To put things in perspective, Dr. Hoffman concluded that the annual dose in 2010 from IndianPoint's unplanned releases (the year for which the most recent data was then available) to thehypothetical maximally-exposed individual was 0.0002 mrem, a small fraction of the dose thatan individual would get from eating a single banana. See Reference 7 at ¶ 119, 127, 143;Reference 10.s Yerl Dicare vs Co mol Ocurn Doses840320240160s00.0060*Ms. Am"uI' -,,w~ ea...t XR Cmu04w.Cum EaftonRUN"" ft" -OWU SaMshopff PW Boo&eý oft e M ...FEC Liuid WK GrOmmd a*k, I B, WODom U"l D00. a"Dr. Hoffman then applied the linear no-threshold model to convert these doses into a risk topeople of developing cancer in later life, finding that in order for such releases to cause a singleincidence of cancer-related illness in later life, five billion people would have to be maximally exposed to Entergy's unplanned releases.
Reference 7 at ¶ 136. After noting that an exposure tosuch a large population was impossible, Dr. Hoffman's conclusion was clear and uncontested:
his expert opinion is that the unplanned releases from Indian Point are expected to have zeroimpact on the health of the public. Reference 7 at ¶ 138.For purposes of evaluating impacts to the environment, Dr. Hoffman applied the two commonlyaccepted scientific methods for analyzing the potential dose to aquatic biota from radiological releases (the RESRAD-BIOTA dose model and the UNSCEAR model) to Indian Point'sunplanned releases in 2010. Reference 7 at 1 139-141.
His analysis confirmed that the doserate (dose-per-day) to aquatic biota resulting from Indian Point's unplanned releases was "ordersof magnitude" lower than the scientifically accepted threshold for protection of aquatic biota.Reference 7 at ¶ 142.3 ii. There has been no discernible impact on the level of radionuclides in the HudsonRiver due to unplanned releases.
Based on extensive, ongoing sampling and testing of Hudson River water in the vicinity ofIndian Point and at control locations away from Indian Point, the migration of low levels ofradionuclides to the Hudson River has no discernible effect on the levels of radionuclides contained in Hudson River water. Reference 6 at 99. NYSDEC sampling showed no significant difference between Strontium-90 in the flesh of fish caught near the site and fish caught as far as70 miles upstream.
See Reference
: 8. The radionuclide plumes in groundwater have not affectedproperties surrounding Indian Point. See Reference 11 at p. 30 n. 21 and Reference
: 12. Overtime, the radionuclide plumes are diminishing in size. Reference 7 at ¶66.Between November 2005 (when the Unit 2 unplanned release was first addressed) andNovember 2011, estimated radionuclide concentrations in the plume associated with the Unit 2unplanned release had diminished by approximately 89%. Reference 7 at ¶67.ENTODD33Sibn*ae:
Mgd" 29.20120.16 ESTIMATED TRITIUM PLUME ACTIVITY OVER TIME89% Reduction 0.14 IIUpperEstimte
*Lowsr Estimate lBoundiiActlvkty 0.120.110.084 0.060.040.02i Z0 8NOV.% No**6 Nov07 NoVIS NWv. NOV-10 Nov114 Between October 2008 (when the Unit 1 spent fuel pools were drained) and October 2011,estimated radionuclide concentrations associated with the Unit 1 unplanned release haddiminished by approximately 71%. Reference 7 at ¶68.ENT000333 SuAnbifod Mad,29 20120.00014 ESTIMATED STRONTIUM PLUME ACTIVITY OVER TIME___ 71% Reduction 0.00012 E[ .Uppertt
.L.w. Etmt,,e.
1.- 0.0001 :J"S 0.00008E~ 0,0000645~ 00000D4OP
-40.000022t/ 80 -Oct-OS Apr-09 Oct-09 Apr-10 Oct-10 Apr-lU Oct-liC. The Past Unplanned Releases of Radiological Materials to Groundwater Have NotCaused a Violation of State Water Quality Standards.
The Hudson River near Indian Point is classified as "SB" saline surface waters. See Reference 13 at Table 1, Item 2. "The best usages of Class SB waters are primary and secondary contactrecreation and fishing.
These waters shall be suitable for fish, shellfish and wildlife propagation and survival."
Reference
: 14. Primary contact recreation consists of recreational activities wherethe human body may come in direct contact with raw water to the point of complete bodysubmergence.
Primary contact recreation
: includes, but is not limited to, swimming, diving,water skiing, skin diving and surfing.
See Reference
: 15. Secondary contact recreation consistsof recreational activities where contact with the water is minimal and where ingestion of thewater is not probable.
Secondary contact recreation
: includes, but is not limited to, fishing andboating.
See Reference 16.Dr. Hoffman's
: analyses, described above, establish that Indian Point's unplanned releases do notviolate state water quality standards.
First, Dr. Hoffman demonstrates that members of thepublic engaging in recreational activities on the Hudson River are unaffected by Indian Point'sunplanned releases.
See Section III.B.ii.
Accordingly, there is no credible scientific basis toconclude that Indian Point's unplanned releases have impaired or will impair the use of theHudson River for primary or secondary contact recreation, such as swimming,
: fishing, andboating.
Second, Dr. Hoffman establishes that Indian Point's unplanned releases were "orders ofmagnitude" lower than the scientifically accepted threshold for protection of aquatic biota. SeeSection III.B.ii.
Accordingly, there is no credible scientific basis to conclude that releases of5 radionuclides to groundwater that has migrated to the Hudson River have impaired or will impairthe suitability of the Hudson River for fish, shellfish, and wildlife propagation and survival.
IV. Conclusions The sources of past unplanned releases of radionuclides at Indian Point have been eliminated ortheir causes have been addressed.
Those releases have not caused, and are not causing, threats tothe public health or the environment.
Nor have those releases caused a violation of state waterquality standards.
6 REFERENCES
: 1. Radiation Dose Limits for Individual Members of the Public, 10 C.F.R. Part 20, SubpartD.2. Numerical Guides for Design Objectives and Limiting Conditions for Operation to Meetthe Criterion "As Low as is Reasonably Achievable" for Radioactive Material in Light-Water-Cooled Nuclear Power Reactor Effluents, 10 C.F.R. Part 50, Appendix I, SectionII.3. NRC, Regulatory Guide 1.21, Measuring, Evaluating, And Reporting Radioactive Material In Liquid And Gaseous Effluents And Solid Waste, Rev. 2 ( June 2009).4. Letter dated October 19, 2009, from Darrel J. Roberts, NRC, to Joseph Pollock, Entergy,
==Subject:==
Indian Point Nuclear Generating Units 1, 2 &3-NRC Inspection Report Nos.05000003/2009008; 05000247/2009008; and 0400286/2009008 (ML12338A648).
: 5. Contentions RK-EC-3 and CW-EC- 1, presented to and dismissed by the Atomic Safetyand Licensing Board in connection with NRC Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 (Entergy Nuclear Operations, Inc.-Indian Point Units2 and 3).6. NRC Proceeding, Entergy Exhibit ENT00030 1, Testimony of Entergy Witness DonaldM. Mayer, Alan B. Cox, Thomas C. Esselman, Matthew J. Barvenik, Carl J. Paperiello, and F. Owen Hoffman Regarding Consolidated Contention RK-EC-3/CW-EC-1 (SpentFuel Pool Leaks) (March 29, 2012) (ML12338A621).
: 7. NYSDEC Proceeding, Proposed Findings of Fact of Entergy Nuclear Indian Point 2,LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.Radiological Issues Entergy Proposed Findings of Fact (Apr. 29, 2012).8. NRC Proceeding, Entergy Exhibit ENT000345, NYSDEC Community Fact Sheet (May2008) (ML 12089A608).
: 9. NYSDEC Proceeding, Prefiled Testimony of F. Owen Hoffman in Support of EntergyNuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC and Entergy NuclearOperations, Inc. (July 22, 2011).10. NYSDEC Proceeding, Entergy Exhibit 121, IPEC's Yearly Discharges vs CommonlyOccurring Doses.11. NYSDEC Proceeding, Post Hearing Reply Memorandum of Entergy Nuclear IndianPoint 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc., Radiological Issues (October 5, 2012).7
: 12. NYSDEC Proceeding, Entergy Exhibit 80, NYSDEC Community Fact Sheet (Sept.2007).13. 6 NYCRR § 864.8.14. 6 NYCRR § 701.11.15. 6 NYCRR § 700.1(49).
: 16. 6 NYCRR § 700.1(56).
8 INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO0 Evidentiary HearingSelected Hearing ExhibitsMandatory LogNumber Identification Contentions ExhibitfoNRAgnywd Tab # Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab Exhbit ateDocuments Access andExhibit DateManagement System("ADAMS")
Database1. RIV000066 RK-EC-3/.
GZA, GeoEnvironmental, 12/22/2011 ML12335A626 CW-EC-l Inc., Hydrogeologic SiteInvestigation Report,Indian Point EnergyCenter, January 7, 2008,IPEC00195418
: 2. RIV000067 RK-EC-3/
Letter from Marsha K. 12/22/2011 ML12335A624 CW-EC-1 Gamberoni, NRC, toJoseph Pollock, Entergy,"Indian Point NuclearGenerating Units 1 & 2 -NRC Inspection ReportNos. 05000003/2007010 and 05000247/2007010 (dated May 13, 2008)3. RIV000068 RK-TC-2 Entergy, Groundwater 12/22/2011 ML12335A623 Investigation Executive
: Summary, Indian PointEnergy Center, Buchanan, NY (January 2008)4. RIVROO091 RK-EC-3/
Liquid Radioactive 12/22/2011 ML12335A608 CW-EC-1 Release Lessons LearnedTask Force Final Report,U.S. NRC (September 1,2006)5. RC000095 RK-EC-3/
Ltr. To NRC from Entergy 3/30/2012 ML12339A651 CW-EC-1 re: Remediation and LongTerm Monitoring of SiteGroundwater INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01 Evidentiary HearingSelected Hearing ExhibitsMandatory LogNumber Identification Contentions ExhibitfoNRAgnywd Tab # Exhibit # Addressed by Exhibit Name Submission Documents Access andExhibit DateManagement System_("ADAMS")
Database6. ENT000300 RK-EC-3/
Entergy's Statement of 3/29/2012 ML12089A574 CW-EC-1 Position on Consolidated Contention RK-TC-3/CW-EC-1 (Spent Fuel PoolLeaks)7. ENT000301 RK-EC-3/
Testimony of Entergy 3/29/2012 ML12338A621 CW-EC-1 Witness Donald M.Mayer, Alan B. Cox,Thomas C. Esselman, Matthew J. Barvenik, CarlJ. Paperiello, and F. OwenHoffman Regarding Consolidated Contention RK-EC-3/CW-EC-1 (Spent Fuel Pool Leaks)8. ENT000302 RK-EC-3/
Curriculum Vitae of 3/29/2012 ML12338A700 CW-EC-1 Donald M. Mayer9. ENT000303 RK-EC-3/
Curriculum Vitae of 3/29/2012 ML12338A667 CW-EC-1 Thomas C. Esselman10. ENT000304 RK-EC-3/
Curriculum Vitae of 3/29/2012 ML12338A679 CW-EC-1 Matthew J. Barvenik11. ENT000305 RK-EC-3/
Curriculum Vitae of Carl 3/29/2012 ML12089A659 CW-EC-1 J. Paperiello
: 12. ENT000306 RK-EC-3/
Curriculum Vitae ofF. 3/29/2012 ML12089A637 CW-EC-1 Owen Hoffman13. ENT000313 RK-EC-3/
2010 Annual Radiological 3/29/2012 ML12339A710 CW-EC- 1 Environmental Operating Report (NL- 11-038) (May16,2011)14. ENT000319 RK-EC-3/
2010 Annual Radioactive 3/29/2012 L12089A670 CW-EC-1 Effluent Release Report,_ _ _Rev. I (NL-11-068)
(June INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDOI Evidentiary HearingSelected Hearing ExhibitsMandatory LogNumber Identification Contentions ExhibitfoNRAgnywd Tab # Exhibit # Addressed by Exhibit Name Submission Documents Access andExhibit DateManagement System("ADAMS")
Database10,2011)15. ENT000321 RK-EC-3/
Lawrence C. Skinner and 3/29/2012 ML12338A680 CW-EC-1 Timothy J. Sinnot,Measurement of Strontium (90Sr) and OtherRadionuclides in EdibleTissues andBone/Carapace of Fish andBlue Crabs from theLower Hudson River(Nov. 2009)16. ENT000332 RK-EC-3/
GZA GeoEnvironmental, 3/29/2012 ML12089A649 CW-EC-1 Inc., Changes inComputed Tritium PlumeTotal Activity Over Time -Exponential Decay CurveTrending of Quarterly Data through Q3 201117. ENT000333 RK-EC-3/
GZA GeoEnvironmental, 3/29/2012 ML12089A663 CW-EC-1 Changes in ComputedStrontium Plume TotalActivity Over Time -Exponential Decay CurveTrending of Quarterly Data through Q3 2011 INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDOI Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # xhibit Documents Access andManagement System("ADAMS")
Database18. ENT000343 RK-EC-3/
Letter from Darrel J. 3/29/2012 ML12338A648 CW-EC-1 Roberts, NRC, to JosephPollock,
: Entergy,
"[IP 1,P2 & IP 3] NRCInspection Report Nos.05000003/2009008; 05000247/2009008; and05000286/2009008" (Oct.19, 2009)19. ENT000344 RK-EC-3/
Letter from D. C. Lew, 3/29/2012 ML12089A601 CW-EC-1 NRC, to J. E. Pollock,Entergy, "AnnualAssessment Letter -Indian Point NuclearGenerating Units 2 and 3(Reports05000247/2010001
&05000286/20100001)"
(Mar. 3, 2010)20. ENT000345 RK-EC-3/
NYSDEC Community 3/29/2012 ML12089A608 CW-EC-1 Fact Sheet (May 2008)21. ENT000360 RK-EC-3/
EPA, Basic Information 3/29/2012 ML12089A666 CW-EC-1 about Radionuclides inDrinking Water, web page22. ENT000371 RK-EC-3/CW-EC-1 Letter NL-08-023, from J. 3/29/2012 ML12089A679
: Pollock, Entergy, to NRC,Results of Ground WaterContamination Investigation (Jan. 11,2008)
INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory Log,Number Identification Contentions ExhibitfoNRAgnywd Tab # Exhibit # Addressed by Exhibit Name Submission Documents Access andExhibit DateManagement System_("ADAMS")
Database23. NRCROO088 RK-EC-3/
NRC Staff Testimony of 9/21/2012 ML12340A747 CW-EC-l Stephen P. Klementowicz and James D. NoggleConcerning Contention Riverkeeper EC-3/Clearwater EC-1 (SpentFuel Pool Leaks)24. NRC00089 RK-EC-3/
Professional 9/21/2012 ML12339A646 CW-EC-1 Qualifications, Stephen P.Klementowicz
: 25. NRCROO090 RK-EC-3/
James D. Noggle, 9/21/2012 ML12265A720 CW-EC-1 Statement of Professional Qualifications
: 26. ENT00575 A RK-EC-3/
GZA GeoEnvironmental, 10/2/2012 ML12276A480 CW-EC-1 Inc., Final IPEC Quarterly Long-Term Groundwater Monitoring Report,Quarters One ThroughFour 2011 (Sept. 26, 2012)
INDEX OF DOCUMENTS SUBMITTED PART TWO: In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3,LLC, and Entergy Nuclear Operations Inc.'s Joint Application forCWA § 401 Water Quality Certification DEC App. Nos. 3-5522-00011/00030 (IP2)Selected Testimony, Exhibits and BriefingTab # Entergy Issue Document Description Date Submitted Exhibit # Addressed eTo Tribunal27. N/A Issue #3: Pre-filed Testimony of Matthew J. 7/22/2011 Radiological Barvenik in Support of Entergy NuclearIndian Point 2, LLC, Entergy NuclearIndian Point 3, LLC and Entergy NuclearOperations, Inc. (adopted under oath onJanuary 23, 2012)28. N/A Issue #3: Pre-filed Testimony of F. Owen Hoffmnan 7/22/2011 Radiological in Support of Entergy Nuclear Indian Point2, LLC, Entergy Nuclear Indian Point 3,LLC and Entergy Nuclear Operations, Inc.(adopted under oath on January 11, 2012)29. N/A Issue #3: Combined Pre-filed Rebuttal Testimony of 10/4/2011 Radiological Thomas C. Esselman, Ph.D., Matthew J.Barvenik, and F. Owen Hoffman, Ph.D.(adopted under oath on January 11 & 23,2012)30. 80 Issue #3: NYSDEC Community Fact Sheet (Sept. 10/04/2011 Radiological 2007)31. 121 Issue #3: IPEC's Yearly Discharges vs Commonly 1/11/2012 Radiological Occurring Doses32. N/A Issue #3: Proposed Findings of Fact ("PFF") of 4/27/2012 Radiological Entergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, andEntergy Nuclear Operations, Inc.Radiological Issues33. N/A Issue #3: Post Hearing Memorandum of Entergy 4/27/2012 Radiological Nuclear Indian Point 2, LLC, EntergyNuclear Indian Point 3, LLC, and EntergyNuclear Operations, Inc., Radiological Issues34.N/AIssue #3:Radiological Post Hearing Reply Memorandum ofEntergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, andEntergy Nuclear Operations, Inc.,Radiological Issues, dated October 5, 201210/5/2012 PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # xhhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")
Database1. RIV000066 RK-EC-3/
GZA, GeoEnvironmental, 12/22/2011 ML12335A626 CW-EC- 1 Inc., Hydrogeologic SiteInvestigation Report,Indian Point EnergyCenter, January 7, 2008,IPEC00 195418 PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")
Database2. RIV000067 RK-EC-3/
Letter from Marsha K. 12/22/2011 ML12335A624 CW-EC-1 Gamberoni, NRC, toJoseph Pollock, Entergy,"Indian Point NuclearGenerating Units 1 & 2 -NRC Inspection ReportNos. 05000003/2007010 and 05000247/2007010 (dated May 13, 2008)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit # ddreDocuments Access andExhibit DateManagement System("ADAMS")
Database3. RIV000068 RK-TC-2 Entergy, Groundwater 12/22/2011 ML12335A623 Investigation Executive
: Summary, Indian PointEnergy Center, Buchanan, NY (January 2008)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit # ddreDocuments Access andExhibit DateManagement System("ADAMS")
Database4. RIVROO091 RK-EC-3/
Liquid Radioactive 12/22/2011 ML12335A608 CW-EC-1 Release Lessons LearnedTask Force Final Report,U.S. NRC (September 1,F006)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification xhibit # ddressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andxhibit ate Management System("ADAMS")
Database5. NRC000095 RK-EC-3/
Ltr. To NRC from Entergy 3/30/2012 ML12339A651 CW-EC-1 re: Remediation and LongTerm Monitoring of SiteProundwater PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Documents Access andManagement System("ADAMS")
Database6. ENT000300 RK-EC-3/
Entergy's Statement of 3/29/2012 ML12089A574 CW-EC- 1 Position on Consolidated Contention RK-TC-3/CW-C-1 (Spent Fuel PoolLeaks)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")
Database7. ENT000301 RK-EC-3/
Testimony of Entergy 3/29/2012 ML12338A621 CW-EC-1 Witness Donald M.Mayer, Alan B. Cox,Thomas C. Esselman, Matthew J. Barvenik, Carl.Paperiello, and F. OwenHoffman Regarding Consolidated Contention RK-EC-3/CW-EC-1(Spent Fuel Pool Leaks)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Documents Access andManagement System("ADAMS")
Database8. ENT000302 RK-EC-3/
Curriculum Vitae of 3/29/2012 ML12338A700 CW-EC-1 Donald M. Mayer PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit # ddreDocuments Access andExhibit DateManagement System("ADAMS")
Database9. ENT000303 RK-EC-3/
Curriculum Vitae of 3/29/2012 ML12338A667 CW-EC-1 Thomas C. Esselman PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ssdyDocuments Access andExhibit DateManagement System("ADAMS")
Database10. ENT000304 RK-EC-3/
Curriculum Vitae of 3/29/2012 L12338A679 CW-EC-1 Matthew J. Barvenik PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # xht DeDocuments Access andExhibit DateManagement System("ADAMS")
Database11. ENT000305 RK-EC-3/
Curriculum Vitae of Carl 3/29/2012 L12089A659 CW-EC- 1 J. Paperiello PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Documents Access andManagement System_("ADAMS")
Database12. ENT000306 RK-EC-3/
Curriculum Vitae of F. 3/29/2012 L12089A637 CW-EC-1 Owen Hoffman PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andManagement System("ADAMS")
Database13. ENT000313 RK-EC-3/
2010 Annual Radiological 3/29/2012 ML12339A710 CW-EC- 1 Environmental Operating Report (NL- 11-038) (May16, 2011)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhbit #ate dbDocuments Access andExhibit DateManagement System("ADAMS")
Database14. ENT000319 RK-EC-3/
2010 Annual Radioactive 3/29/2012 ML12089A670 CW-EC-1 Effluent Release Report,Rev. 1 (NL- 11-068) (June10, 2011)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO!
Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit # ddreDocuments Access andExhibit DateManagement System("ADAMS")
Database15. ENT000321 RK-EC-3/
Lawrence C. Skinner and 3/29/2012 ML12338A680 CW-EC-1 Timothy J. Sinnot,Measurement of Strontium (90Sr) and Otheradionuclides in EdibleTissues andBone/Carapace of Fish andBlue Crabs from theLower Hudson River(Nov. 2009)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")
Database16. ENT000332 RK-EC-3/
GZA GeoEnvironmental, 3/29/2012 ML12089A649 CW-EC-1 Inc., Changes inComputed Tritium PlumeTotal Activity Over Time -xponential Decay Curverending of Quarterly Data through Q3 2011 PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andManagement System("ADAMS")
Database17. ENT000333 RK-EC-3/
GZA GeoEnvironmental, 3/29/2012 ML12089A663 CW-EC- 1 Changes in ComputedStrontium Plume TotalActivity Over Time -xponential Decay CurveTrending of Quarterly Data through Q3 2011 PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andManagement System("ADAMS")
Database18. ENT000343 RK-EC-3/
Letter from Darrel J. 3/29/2012 ML12338A648 CW-EC-1 Roberts, NRC, to JosephPollock,
: Entergy,
"[IPI,IP2 & IP 3] NRCInspection Report Nos.05000003/2009008; 05000247/2009008; and05000286/2009008" (Oct.19, 2009)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDOI Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # xhhibit DtDocuments Access andExhibit DateManagement System("ADAMS")
Database19. ENT000344 RK-EC-3/
Letter from D. C. Lew, 3/29/2012 ML12089A601 CW-EC-1 NRC, to J. E. Pollock,Entergy, "AnnualAssessment Letter -Indian Point NuclearGenerating Units 2 and 3(Reports)5000247/2010001
&)5000286/20100001)"
(Mar. 3, 2010)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO0 Evidentiary HearingSelected Hearing ExhibitsMandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")
DatabaseENT000345 RK-EC-3/
NYSDEC Community Fact 3/29/2012 ML12089A608 CW-EC-1 Sheet (May 2008)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andManagement System("ADAMS")
Database21. ENT000360 RK-EC-3/
EPA, Basic Information 3/29/2012 ML12089A666 CW-EC-1 about Radionuclides inDrinking Water, web page PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # xhibitt D ddr bDocuments Access andExhibit DateManagement System("ADAMS")
Database22. ENT000371 RK-EC-3/CW-EC-Letter NL-08-023, from J. 3/29/2012 ML12089A679
: Pollock, Entergy, to NRC,Results of Ground WaterContamination Investigation (Jan. 11,2008)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # hbt Documents Access andManagement System("ADAMS")
Database23. NRCROO088 RK-EC-3/
NRC Staff Testimony of 9/21/2012 ML12340A747 CW-EC-1 Stephen P. Klementowicz and James D. NoggleConcerning Contention Riverkeeper EC-3/Clearwater EC-1 (SpentFuel Pool Leaks)
PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab# E Datbie ddres yDocuments Access andExhibit DateManagement System("ADAMS")
Database24. NRC00089 RK-EC-3/
Professional 9/21/2012 ML12339A646 CW-EC- 1 Qualifications, Stephen P.Klementowicz PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")
Database25. NRCROO090 RK-EC-3/
James D. Noggle, 9/21/2012 ML12265A720 CW-EC- 1 Statement of Professional Qualifications PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsExhibit NameExhibitSubmission DateMandatory LogNumber Identification for NRC Agency-wide Documents Access andManagement System("ADAMS")
Database-EC-3/ GZA GeoEnvironmental, 10/2/2012 ML12276A480
-EC-1 Inc., Final IPEC Quarterly Long-Term Groundwater Monitoring Report,Quarters One ThroughFour 2011 (Sept. 26, 2012)
STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, DEC App. Nos. 3-5522-00011/00030 (IP2)and Entergy Nuclear Operations Inc.'s 3-5522-00105/00031 (IP3)Joint Application for CWA § 401 WaterQuality Certification PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC, ENTERGYNUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.ISSUE FOR ADJUDICATION NO. 3 -RADIOLOGICAL MATERIALS ENTERGY NUCLEAR INDIAN POINT 2,LLC, ENTERGY NUCLEAR INDIAN POINT3, LLC, AND ENTERGY NUCLEAROPERATIONS, INC.By its attorneys, John C. Englander Elise N. ZoliU. Gwyn WilliamsRobert Fitzgerald Goodwin Procter LLP53 State StreetBoston, Massachusetts 02109July 22, 2011 Tel.: 617.570.1000 Fax: 617.523.1231 PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.TABLE OF CONTENTSI. IN TRO DU CTIO N ........................................................................................................
III. SUMMARY OF EXPERT OPINIONS
..........................................................................
2III. Q U A LIFICA TION S .......................................................................................................
3IV. INDIAN POINT SITE HYDROGEOLOGY AND RADIONUCLIDE CHARACTERIZATION
.................................................................................................
4V. DESCRIPTION OF RELEASES TO GROUNDWATER
.............................................
7VI. DETAILS OF GZA'S SITE HYDROGEOLOGY STUDY ..............................................
11VII. CURRENT GROUNDWATER MONITORING PROGRAM ....................................
13VIII. RESULTS OF HYDROGEOLOGIC INVESTIGATION AND CONTINUED GROUNDWATER MONITORING AT INDIAN POINT ...........................................
16IX. INDEPENDENT ASSESSMENTS OF SFPS AT INDIAN POINT .............................
17X. SUMMARY AND CONCLUSIONS
..........................................................................
21-i-PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.o 1 i. INTRODUCTION 2 Q: Please state your name, current position, and business address.3 A: My name is Matthew J. Barvenik.
I am a Senior Principal with GZA GeoEnvironmental, 4 Inc., One Edgewater Drive, Norwood, MA 02062.5 Q: Are you offering this testimony on behalf of Entergy in support of its application for6 a Water Quality Certification (DEC App. Nos. 3-5522-00011/00030
("1P2") and 3-7 5522-00105/00031
("4P3"))
for Indian Point Units 2 and 3 (collectively the8 "Proceeding")?
9 A: Yes. I am offering my testimony with respect to Issue for Adjudication No. 3 concerning 10 "radiological materials."
In the Notice of Denial, DEC Staff states that "radiological 11 leaks have the potential to impair the best use of the water designated in 6 NYCRR@2 § 701.11."
I understand from counsel that § 701.11 contains the best usage classification 13 for the use of the Hudson River in the vicinity of Indian Point, and states that the "best14 usages of Class SB waters are primary and secondary contact recreation and fishing.15 These waters shall be suitable for fish, shellfish and wildlife propagation and survival."
16 Accordingly, I will offer expert testimony concerning the hydrogeology of the Indian17 Point site, i.e. how groundwater is distributed and moves in the soil and bedrock beneath18 the site, as well as the work GZA has done to create a network of monitoring installations 19 to allow Entergy to characterize the extent of existing radionuclides in the groundwater 20 beneath the site and ultimately to the Hudson River, and to detect and respond to21 potential future releases to groundwater from continued operation of the plant during the22 license renewal period. In support of my testimony I am submitting, inter alia, a report0 entitled "Hydrogeologic Site Investigation Report for the Indian Point Energy Center, PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 (January 2008) ("Site Investigation Report) (Exh. 33).2 II. SUMMARY OF EXPERT OPINIONS3 Q: What opinions are you offering today with respect to this Proceeding?
4 A: GZA has studied the hydrogeology of the Indian Point site and the groundwater flow5 mechanisms at the site, and has installed a broad network of groundwater monitoring 6 wells to test for radionuclides in order to monitor past releases and detect future releases7 of radionuclides to groundwater at the Indian Point site. As a result of this work, I have8 concluded the following:
9
* Principally as a result of past releases of water from Indian Point Unit I ("IP I") and10 Unit 2 ("IP2") spent fuel pools ("SFPs"),
some of the groundwater beneath the site11 contains detectable levels of radionuclides, principally tritium (mostly resulting from0 12 the IP2 SFP), and strontium (resulting from the now-drained IPI SFP). This13 groundwater migrates to the Hudson River, resulting in low levels of tritium and14 strontium reaching the river, amounts orders of magnitude below the allowable 15 federal regulatory limits for radiological effluent releases.
These previously 16 identified releases from the IPI and IP2 SFPs have been stopped, as documented in17 the Site Investigation Report, which has and should continue to result in a decrease in18 radionuclide activity (also commonly referred to as concentration) in the groundwater 19 and reaching the river.20
* Based on sampling and testing of Hudson River water in the vicinity of Indian Point21 and at control locations away from Indian Point, the low level migration of22 radionuclides to the Hudson River has had no discernible effect on the level of@0 3 radionuclides contained in Hudson River water.
PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.I W Entergy's network of groundwater monitoring wells is sufficient to allow Entergy to2 detect comparable potential future releases to groundwater at the site and respond3 rapidly and appropriately to such releases.
4 Q: Do you hold each of your opinions to a reasonable degree of scientific certainty?
5 A: Yes.6 III. QUALIFICATIONS 7 Q: Please describe your educational and professional qualifications, including relevant8 professional activities.
9 A: My professional and educational qualifications are summarized in the attached10 curriculum vitae (Exh. 54). In brief, I hold a BS degree in civil engineering from11 Northeastern University and a MS degree in geotechnical engineering from the0 2 Massachusetts Institute of Technology.
I have over 35 years of professional experience 13 in hydrogeology, civil, geotechnical and instrumentation engineering.
I am currently a14 senior principal and senior VP at GZA GeoEnvironmental, Inc., a company that provides15 a wide-range of geotechnical engineering, environmental consulting, and remediation 16 services, where I have overall responsibility for projects and contract signing authority.
I17 also hold the position of Senior Technical Consultant, GZA's highest technical position18 through which I provide technical input and quality control for the firm's district offices.
119 have also served on the board of directors for six years. I am a member of the American20 Nuclear Society ("ANS"),
where I served on the Working Group responsible for writing21 the recently completed ANS standard for Evaluation of Subsurface Radionuclide 22 Transport at Commercial Nuclear Power Plants, and I am currently a member of twonewly formed Working Groups responsible for drafting future standards.
PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 Q: Please describe the basis for your analysis of Indian Point's site hydrogeology and2 your opinions contained herein.3 A: In my capacity as the lead technical investigator for Entergy, I was responsible for4 directing the technical aspects of the hydrogeologic site characterization.
Based on my5 direct involvement with issues related to the Indian Point hydrogeologic site investigation 6 and the ongoing groundwater monitoring, I am very familiar with the Indian Point7 hydrogeologic setting and groundwater flow patterns, identified contaminant sources and8 transport, historical and ongoing groundwater monitoring, and remediation plans.9 Additionally, based on this experience, I am familiar with the history and status of Indian10 Point SFP releases, dose assessments, and associated NRC inspection activities, as well11 as other independent assessments of the SFP releases.
S0 2 IV. INDIAN POINT SITE HYDROGEOLOGY AND RADIONUCLIDE 13 CHARACTERIZATION 14 Q: What is hydrogeology?
15 A: Hydrogeology is the study of movement, distribution, and quality of ground water. In the16 context of Indian Point, the site hydrogeology work consisted in part of studying the17 subsurface of the site in order to understand how groundwater is distributed and how it18 moves across the site (we refer to that understanding as the "conceptual site model").
A19 fuller description of the methods used to gain an understanding of the distribution and20 movemfent of groundwater is contained below in Section IV. Our site hydrogeology work21 also consisted of the construction of a broad network of groundwater monitoring 22 installations (also generally referred to as "wells"),
which allow us to take samples of the23 groundwater beneath the site at dozens of locations on a periodic basis, in order to test the0 PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.I samples for the presence of plant-related radionuclides.
Presently, the monitoring 2 network installed by OZA contains 65 monitoring installations, including over 1503 sampling intervals, which allow us to sample groundwater at various depths from the4 groundwater surface to well below the top of bedrock.
A depiction of the current array of5 groundwater monitoring installations contained in Exhibit 42. In addition to these6 installations, included in the overall groundwater monitoring program are approximately 7 75 storm drains and 25 sumps throughout the Indian Point site, from which samples are8 periodically taken and tested by the Indian Point Chemistry Department.
This broad9 network of monitoring locations allows us to characterize the extent and concentration of10 radionuclides present in the groundwater from past releases, and to detect potential future11 releases of radionuclides to the groundwater at the site.* 12 Q: As a result of your site hydrogeology work, have you made any conclusions about13 how water is distributed and moves beneath the site?14 A: Yes. The conceptual site model demonstrates that groundwater flows into the Indian15 Point power block area from the North, East and South, and then flows to the Hudson16 River to the West; groundwater, and thus any radionuclides contained in the groundwater, 17 does not flow off the site from the power block area, except to the river.18 Q: As a result of your site hydrogeology work, have you identified the presence of19 plant-related radionuclides in the groundwater beneath the site?20 A: Yes. As a result of our groundwater monitoring
: program, we have identified two distinct" 21 "plumes" of groundwater containing radionuclides, one containing principally tritium,22 and one containing principally strontium.
As a result of our site hydrogeology work, and@ 3 further investigation by Entergy, we have concluded that the "tritium plume" is primarily PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1S a result of past releases of water from the IP2 SFP, described more fully below. The2 concentration of tritium in the groundwater beneath the site, and therefore the overall3 tritium plume, has been generally decreasing over time. A depiction of the change in the4 tritium plume activity over the span of our groundwater monitoring program is contained 5 at Exhibit 41. Based on our site hydrogeology work and further investigation by Entergy,6 we have concluded that the "strontium plume" is primarily a result of a past release of7 water from IPI SFPs, described more fully below. While the plume from the IP1 SFPs8 consists primarily of strontium, groundwater testing has also identified tritium and9 sporadic observations of cesium-1 37, nickel-63, and cobalt-60 within the plume. See Site10 Investigation Report at 89 n.61. The IPI SFPs no longer contain any spent fuel and have11 since been drained and, therefore, are no longer a current or potential future source of*12 radionuclide releases to the environment.
13 Q: As a result of your site hydrogeology work, have you been able to conclude whether14 any radionuclides detected in groundwater have reached the Hudson River?15 A: Yes. Because the groundwater beneath the site moves from the site to the river, the16 groundwater containing both tritium and strontium (and potentially trace sporadic17 amounts of cesium-137, nickel-63, and cobalt-60) eventually discharges to the Hudson18 River. Our understanding of groundwater flow and distribution, coupled with our19 network of monitoring wells, has allowed us to estimate the amount of radionuclides that20 have reached the river on an annual basis as a result of the releases to groundwater.
21 These amounts are low, orders of magnitude below the allowable federal regulatory 22 limits for radiological effluent releases.
Below is a table containing estimates of the& annual levels of radionclides that have reached the river as a result of releases to PREFILED TESTIMONY OF MATTHEW 1. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 groundwater since our monitoring program began, as reported in Entergy's Annual2 Radiological Effluent Release Reports ("ARERRs"):
3 Total Tritium Released from Groundwater 4 2006 0.19 curies5 2007 0.064 curies* 6 2008 0.2 curies7 2009 0.07 curies8 2010 0.12 curies* 9 Total Other Radionuclides Released from Groundwater 10 2006 0.00057 curies@11 2007 0.00008 curies* 12 2008 0.00016 curies13 2009 0.00025 curies14 2010 0.000042 curies15 See Entergy's ARERR's, 2006-10, at Section H.16 These levels of radionuclides are orders of magnitude below the allowable federal17 regulatory limits for radiological effluent releases.
18 V. DESCRIPTION OF RELEASES TO GROUNDWATER 19 Q: Please describe the past release of water from the IP2 SFP to groundwater.
20 A: In August 2005, Entergy began excavating adjacent to the south wall of the IP2 SFP, in21 preparation for installation of a crane. While removing material along the south exterior22 wall of the SFP, Entergy discovered a hairline crack, roughly 1/64" in width and 7 feet in*3 length, at approximately the 65 foot elevation of the IP2 SFP south wall, that exhibited PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 moisture.
As excavation continued over the course of the next two weeks, Entergy2 discovered two additional hairline cracks, this time at around the 60 foot elevation.
3 Entergy, as a precautionary
: measure, installed a temporary collection device over the4 cracks to collect any leaking liquid. A permanent collection box installation was5 completed in January 2006 and all collected water is piped to an adjacent building where6 it is collected for final disposition.
The discovery of this release is what prompted7 Entergy to contract with GZA to conduct its investigation, develop the site conceptual 8 model, and install the network of monitoring wells discussed above.9 In September 2007, in the course of its investigation of the source of the IP2 SFP10 release, Entergy drained the IP2 SFP canal used to transfer spent fuel from the reactor to11 the spent fuel pool in order to inspect the liner of the transfer canal. At that time, Entergy9 2 identified a pinhole leak in a single small weld imperfection, which, in December 2007,13 was repaired.
Also, the entire surface and all the welds of the transfer canal were14 inspected, but no further imperfections were identified.
The accessible surfaces of the15 adjoining fuel pool were also inspected and no additional imperfections were identified.
16 As of December 2007, Entergy had repaired all then-identified imperfections in the IP217 SFP.18 Q: Does Entergy's monitoring program establish that these repairs were successful?
19 A: Yes. As stated above, from both qualitative and quantitative perspectives, the overall20 quarterly monitoring data indicates that tritium activity in the IP2 SFP plume has been21 generally decreasing and the plume undergoing long-term, overall reductions in activity.
22 Q: Please describe past release of water from SFP1 to groundwater.
* A: IPI ceased commercial operation on October 31, 1974. In 1992, the previous owner of PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 IPI identified a release of water from the IP1 SFP at a net leak rate of 25 gallons per day2 (i.e., 10 drops per second).
The water released to the groundwater from IP1 SFP3 contained plant-related radionuclides, principally strontium.
See Site Investigation 4 Report at 89 n.61. Both NRC and NYSDEC were aware of the release, and the prior5 owner's management of the release.
The investigation performed at that time concluded 6 the releases were well within the 10 C.F.R. Part 50 dose guidelines.
7 The release of water from the IP1 SFPs continued until late 2008, when all the8 fuel rods were removed from the IPI SFPs and the pool water was subsequently drained.9 See E-mail notification from Donald Mayer, Director, IPEC Unit 1, Entergy, to John10 White, Branch Chief, Radiation Protection, NRC Region 1, "
==Subject:==
Indian Point 1"11 (Nov. 5, 2008) (Exh. 47). As such, the IPI SFPs are no longer an active source of@12 radionuclides to the subsurface.
While the defueling process caused an initial increase in13 the release rate from IPI SFP, and therefore an increase in the measured levels of14 strontium in the groundwater beneath the site, those levels have been decreasing as that15 water flushes through the subsurface to the river, and have generally reached pre-16 defueling levels.17 Q: Please provide an overview of the history of any SFP conditions relevant to releases18 of water at IP3.19 A: No releases of water from the IP3 SFP to groundwater have been identified.
The absence20 of IP3 SFP releases to groundwater is attributed to the design upgrades incorporated in21 the more recently constructed IP3-SFP, including the stainless steel liner (consistent with22 IP2 but not included in the IP 1 design) and the secondary leak detection drain system not@3 included in the IP2 design. The IP3 SFP contains a tell-tale leak collection system, which PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@e i is regularly inspected to verify it is in good working condition.
Following the discovery 2 of IP2 SFP releases, additional monitoring wells were put in place to monitor the3 groundwater beneath IP3 as a proactive and precautionary measure.4 Q: Has the groundwater monitoring program allowed you to indentify and/or5 characterize any additional releases to groundwater?
6 Yes. As stated above, Entergy's broad array of monitoring installations, in addition to7 characterizing the extent and movement of existing radionuclides in groundwater, is also8 designed to assist Entergy in identifying possible future releases of radionuclides to the9 groundwater beneath the site, and to assist Entergy in identifying and remediating the10 source of such releases.
This is part of Entergy's Long Term Monitoring Program11 ("LTMP"),
which is described more fully below. For example, since the LTMP began,0 2 we have identified and/or characterized additional releases to groundwater beneath the13 site:14
* In the first quarter of 2009, a leakage of water occurred in a distillation tank valve15 located within the IP I chemical systems building.
The result of this leakage was the16 identification of a brief increase in tritium levels in a monitoring location in the area17 of the chemical systems building.
Since the leakage was repaired, levels in that18 monitoring well have gone down to pre-leak levels. There is no indication that this19 brief leakage caused any material increase in the amount of tritium reaching the river.20
* In the fourth quarter of 2009, a leakage of water occurred during a temporary 21 operation to filter the water in the Refueling Water Storage Tank. This leakage22 resulted in a temporary increase in tritium levels in various monitoring wells. Theleak was immediately fixed, and tritium levels have since gone down to pre-leak PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.I levels. Entergy has subsequently determined that the radionuclide dose consequence 2 as a result of this leak was immaterial.
3
* Beginning in the third quarter of 2010, we noticed increased tritium levels in a4 monitoring location adjacent to the IP2 SFP, which generally coincided with an5 increase in the rate of water flowing into the leak-collection box on the outside of the6 IP2 SFP. As an initial finding of the on-going investigation, the increased flow7 appears to be attributable to the periodic raising of the SFP water level, resulting in a8 leak path from light boxes near the top of the SFP, allowing water to get behind the9 stainless steel liner plates on the face of the SFP. This leak path has had a temporary 10 repair applied, through sealing of the light boxes. Those light boxes are planned to beI 1 removed and permanently sealed in the near future. There is no indication that this@12 leakage has resulted in any material increase in the tritium plume but additional 13 evaluations
: continue, so as to fully understand this issue.14 While the concentrations of tritium identified above have resulted in no material increase15 in the offsite dose analyses regularly performed by Entergy, all such instances are16 enveloped by the reporting and analysis requirements of the NRC's effluent regulations.
17 As such, they are included in the annual environmental and effluent release reporting 18 documents provided to the NRC.19 In my professional
: opinion, Entergy's ability to identify, characterize, and20 respond appropriately to these sporadic
: releases, which occur at any large industrial 21 facility, demonstrates the efficacy of the LTMP.22 VI. DETAILS OF GZA'S SITE HYDROGEOLOGY STUDYQ: Please provide an overview of the purpose and objectives of Indian Point's PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 hydrogeologic groundwater investigation.
2 A: As previously stated, following the discovery of the IP2 SFP hairline cracks in September 3 2005, Entergy contracted with GZA to conduct a comprehensive groundwater 4 investigation.
GZA executed its investigation by utilizing a three-phased approach5 between September 2005 and September 2007. Phase I investigations began in6 September 2005 and focused on identifying groundwater flow pathways from the IP27 SFP, and evaluating how radionuclides move through the environment beneath the site.8 During this phase, groundwater sampling focused on tritium.
A large portion of the work9 in Phase I included development of the initial Conceptual Site Model ("CSM") to10 understand the groundwater flow and radionuclide transport at Indian Point. Among11 other things, activities during Phase I included the installation of four stilling wells (i.e.,@12 wells constructed of slotted pipe, and placed in surface water bodies to house pressure13 transducers for monitoring surface water elevation fluctuations),
borehole testing to14 locate potential fractures in the bedrock that could conduct groundwater flow, and15 extensive sampling and analysis of groundwater from a large number of monitoring 16 wells. See Investigation Report, Section 2.1 at 6-7; Section 4.2 at 17.17 Phase 11 of the investigation commenced in January 2006. The focus of Phase 1118 work was to confirm the initial Phase I findings, better estimate the concentration of19 radionuclides in groundwater at Indian Point, and augment the network of wells across20 the site to allow identification of potential releases to groundwater on a long-term basis.21 In support of these objectives, GZA drilled additional boreholes to locate potential 22 fractures in the bedrock that could conduct groundwater flow. As with the prior phase,3 Phase II involved groundwater testing; while initially focused on tritium, in 2006 the PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@ 1 testing was expanded to encompass all radionuclides typically associated with nuclear2 power generation (although tritium and strontium remained the principal constituents of3 interest).
See Investigation Report, Section 2.2 at 7-8.4 In June 2006, the Phase III investigations began. Phase III of the investigation 5 focused on further defining the extent of strontium detected during Phase II, and6 augmenting the characterization of bedrock aquifer properties to allow evaluation of7 potential remedial options.
Phase III also involved the installation of additional wells to8 further define the horizontal and vertical extent of contamination.
During Phase III, GZA9 conducted various pumping and tracer tests to better assess the hydraulic properties of the10 bedrock and to augment its understanding of contaminant migration and transport 11 mechanisms.
See Investigation Report, Section 2.3 at 8..012 VII. CURRENT GROUNDWATER MONITORING PROGRAM13 Q: Will Entergy continue to monitor groundwater to detect possible radionuclide 14 releases at Indian Point?15 Yes. To monitor groundwater for future releases, Entergy has established a long-term 16 groundwater monitoring program ("LTMP").
There are essentially four objectives to the17 LTMP:18
* Monitor groundwater flow rate and radionuclide concentrations 19 to both detect and characterize current and potential future20 releases of radionuclides from groundwater to the Hudson21 River;22
* Monitor groundwater proximate to Indian Point systems,& structures, and components that may result in releases of PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@0 1 radionuclides to groundwater at Indian Point;2
* Monitor groundwater along the property boundary and off-site3 to confirm that groundwater containing radionuclides is not4 migrating off of the property to locations other than the river;5 and6
* Monitor groundwater plumes identified onsite to demonstrate 7 overall reductions in total activity over time.8 The LTMP is designed to detect potential leaks from systems, structures, and components 9 that may result in releases of radionuclides to the groundwater at Indian Point. In order10 to monitor SSCs, a broad network of on-site monitoring installations are used, in additionI I to the numerous storm drains and sumps throughout the site, as described above. For.0 12 these monitoring wells, Entergy established investigation levels consisting of preset13 quantitative radionuclide concentrations above which further action would be undertaken.
14 Those levels are well below applicable NRC limits, and therefore allow for timely15 detection of potential new releases should they occur. This process is consistent with16 NRC regulatory reporting guidance which recognizes that nuclear power plant operations 17 may have abnormal operational occurrences that take place and result in releases that18 would be expected to be small fractions of regulatory limits. The LTMP positions 19 Entergy to investigate these occurrences should they occur and have an impact on20 groundwater beneath the site.21 Q: Please describe briefly what GZA has done to develop and execute the LTMP.22 A: Under the LTMP, GZA continues to conduct groundwater monitoring and samplingW activities that are reported quarterly in the "Quarterly Long-Term Groundwater PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@1 Monitoring Report."
See, e.g., GZA, Final IPEC Quarterly Long-Term Groundwater 2 Monitoring Report, Quarter Two 2010 (Report No. 10) (Feb. 15, 2011) (Exh. 40); GZA,3 Final IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter One 20094 (Report No. 5) (June 22, 2010) (Exh. 38). The groundwater monitoring activities are5 conducted in support of Indian Point's long-term monitoring efforts related to6 radionuclide releases to groundwater.
The overall foundation for the development and7 execution of this LTMP is based on the CSM, as described in the Site Investigation 8 Report. Generally, the scope of work involved five separate areas:9 First, GZA installed dedicated sampling equipment in the majority of monitoring 10 installations designated for sampling as part of this program.
The use of dedicated 11 sampling equipment limits the possibility of cross-contamination between monitoring 2 installations or individual multi-level sampling intervals within a single installation.
13 Second, GZA maintains transducers and dataloggers, as part of the monitoring 14 instrumentation located across the site, which record groundwater elevation and15 temperature measurements at regular time intervals.
These data are then downloaded on16 a quarterly basis.17 Third, GZA collects groundwater samples for radionuclide analysis from the18 scheduled sampling intervals within select monitoring installations.
If unexpected 19 quarterly results are encountered, mid-quarter and confirmatory samples may also be20 collected.
When requested, split groundwater samples from select locations are provided21 to NRC and NYSDEC.22 Fourth, GZA collects water samples from drain lines in several manholes onsite to& characterize discharge from foundation drains around and below the IP2 and IP3 PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.S1 Containment Structures.
These drains are part of the early leak detection monitoring 2 network.3 Fifth, GZA performs general wellhead maintenance tasks, such as housekeeping 4 of well vaults and roadboxes, and replacement of dedicated sampling equipment, tubing5 and transducers, as required.
6 VIII. RESULTS OF HYDROGEOLOGIC INVESTIGATION AND CONTINUED 7 GROUNDWATER MONITORING AT INDIAN POINT8 Q: Do you believe that Entergy's monitoring system provides reliable assurances that9 future releases to groundwater will be detected?
10 A: Yes. A primary purpose of the groundwater monitoring
: program, including GZA'sII installations of a series of additional wells, was to do exactly that. It is my conclusion 12 that the current groundwater monitoring
: program, including the system of ground water13 monitoring installations dispersed throughout the site, should detect future releases of14 radionuclides to the groundwater from the operation of Indian Point comparable to those15 described above, which are far below allowable federal regulatory limits. Entergy will16 therefore be able to take timely and appropriate corrective action upon the detection of17 any such releases.
18 Q: Is the extent and level of groundwater contamination from the release of water from19 the SFPs decreasing?
20 Yes. It is our conclusion that the tritium and strontium plumes due to the historic21 releases from the IP I and IP2 SFPs have reached their maximum sizes and are22 decreasing.
These IP1 and IP2 plumes, however, are decreasing at varied rates, and with23 periodic fluctuations, as expected.
See Site Investigation Report at 97-101. The IP2 PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.S1I tritium plume is generally decreasing faster than the IP I strontium plume given that2 tritium does not partition to geologic and anthropogenic solid surfaces, while strontium 3 does. Data collected during and since the site investigation indicate that the tritium4 concentrations in the IP2 plume have decreased.
Similarly, the IPI strontium plume has5 decreased since 2009 and by removing all spent fuel and water from the spent fuel pools6 the source has been eliminated.
Our continued quarterly monitoring program has7 confirmed these results.
See, e.g., GZA Q2 2010 Quarterly Monitoring Report at 3-13 to8 3-22.9 IX. INDEPENDENT ASSESSMENTS OF SFPS AT INDIAN POINT10 Q: Were any independent organizations involved with Entergy's assessments of theI 1 impacts of the SFP releases?
.12 A: Yes. Throughout the two-year hydrogeologic site investigation study Entergy provided13 full and open access, including holding regular meetings attended by the NRC, USGS,14 NYSDEC, and the NY Public Service Commission.
For example, early in the15 investigation
: process, NYSDEC requested that the NYSDOH assess the presence of16 drinking water supply wells in the vicinity of Indian Point.17 Q: Did NYSDEC conduct its own independent investigation?
18 A: Yes. NYSDEC (with support from NYSDOH) actively monitored Entergy's 19 hydrological investigation, collected split samples of onsite and offsite monitoring wells,20 and made recommendations on the work being performed.
Importantly, NYSDEC21 performed its own independent assessment of potential public health impacts.
See22 NYSDEC Community Fact Sheet (2007) (Exh. 46).* 3 Q: What did NYSDEC conclude during its own independent assessment?
PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 A: In brief, NYSDEC's conclusions were consistent with the findings made in the Site2 Investigation Report. As to any strontium contamination, NYSDEC concluded that3 removal of the spent fuel and water from the IPI SFP will (and did) halt the active source4 of contamination.
While public exposure can occur through consumption of fish from the5 Hudson River, NYSDEC determined strontium levels in fish near the site are no higher6 than those collected from other statewide locations.
Here, NYSDEC corroborated 7 Entergy's finding that calculated doses to the public through fish consumption (0.000278 mrem whole body and 0.00099 mrem organ dose) are less than 1% of the allowable NRC9 dose limits. See NYSDEC Community Fact Sheet (2007) (Exh. 46). NYSDEC's10 findings support the conclusion that there is no effect on fish from the radionuclide II releases to groundwater, and no public health concern associated with eating fish from0 12 the Hudson River. Finally, NYSDEC concluded that any radionuclides reaching the13 Hudson River as a result of the radionuclide releases to groundwater did not violate state14 and federal drinking water levels.15 In addition, in 2007, NYSDEC conducted an enhanced, independent radiological 16 surveillance of several aquatic species in the lower Hudson River. The results from this17 assessment were published in 2009. See Lawrence C. Skinner & Timothy J. Sinnot,18 Measurement of Strontium (90Sr) and Other Radionuclides in Edible Tissues and19 Bone/Carapace of Fish and Crabs from the Lower Hudson River, New York (Nov. 2009)20 (Exh. 39). NYSDEC concluded that there were no significant differences in the21 concentrations of strontium in fish and shellfish samples near the Indian Point site and22 those sampled upriver at reference locations (which included an additional reference
*3 ,location in the river, 50 miles north of Indian Point). Id. at 8. In addition, NYSDEC PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@0 1 concluded that the levels of all radionuclides (including strontium) in fish and shellfish at2 all of the sampling locations were two to five orders of magnitude lower than established 3 criteria for protection of freshwater ecosystems.
Id.4 Q: Please provide a brief background of NRC inspection activities at Indian Point since5 the September 2005 discovery of a crack in the IP2 SFP wall.6 A: After Entergy informed the NRC of the identified hairline cracks in the IP2 SFP wall,7 which led to the discovery of low levels of radioactive tritium contamination in the8 groundwater, NRC initiated a special inspection on September 20, 2005. Although9 Entergy did not exceed any specific thresholds in the NRC Reactor Oversight Process10 ("ROP") Action Matrix mandating additional regulatory oversight, NRC Staff11 nonetheless increased its oversight relative to issues associated with the IP2 SFP. See0 2 Request for Deviation from the Reactor Oversight Process Action Matrix to Provide13 Increased NRC Oversight of Specific Issues at Indian Point Energy Center (Oct. 28,14 2005), available at ADAMS Accession No. ML053010404 (Exh. 31). The purpose of15 the inspection was to examine Entergy's performance and determine if the contaminated 16 groundwater
: affected, or could affect, public health and safety. Id.17 NRC issued a special inspection report in March 2006 that assessed Entergy's 18 performance and plans for more extensive site characterization, and reported that the19 groundwater contamination did not and was not likely to adversely affect public health20 and safety. See NRC Special Inspection Report No. 05000247/2005011 (Mar. 16, 2006)21 (Exh. 32). In that report, and subsequent public meetings, the NRC indicated that a final22 conclusion would be reached after Entergy completed its groundwater characterization
& initiative.
While groundwater characterization was ongoing, NRC continued frequent PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1S inspections and implemented a monitoring regime for Entergy's onsite groundwater 2 monitoring activities.
3 Subsequently, the NRC continued to closely monitor Entergy's groundwater 4 characterization
: efforts, performed independent inspections and testing, and5 independently evaluated radiological and hydrological conditions affecting groundwater 6 onsite. Additionally, the NRC independently verified groundwater radionuclide levels by7 conducting split monitoring well sampling with Entergy and NYSDEC.8 After receiving the results from the hydrogeologic site characterization 9 investigation contained in the Site Investigation Report in January 2008, including 10 Entergy's plan for remediation and long-term monitoring of onsite groundwater systems,11 the NRC conducted its own, detailed review and inspection.
The results of the NRC@12 Staff s May 13, 2008 inspection report confirmed the conclusionsin the Site13 Investigation Report. See NRC Inspection Report Nos. 05000003/2007010 and14 05000247/2007010, available at ADAMS Accession No. ML081340425 (May 13, 2008)15 ("May 13, 2008 Inspection Report")
(Exh. 34). In the May 13, 2008 inspection report,16 the NRC made several important
: findings, including:
(1) Entergy had properly identified 17 the source of groundwater releases as resulting from the IP I and IP2 SFPs; (2) no18 releases were observed or detected from IP3; (3) Entergy's hydrogeologic site19 characterization studies provide sufficiently detailed field observations, monitoring, and20 test data that supported the development and confirmation of a reasonable CSM; (4) the21 CSM provides a reasonable basis to support the finding that liquid effluent releases from22 the SFPs migrate west towards the Hudson River and do not otherwise migrate offsite;(5) there are no drinking water sources that can be impacted by the contaminated PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.I groundwater conditions; (6) the annual calculated exposure to the maximum exposed2 hypothetical individual relative to the liquid effluent aquatic food exposure pathway is3 currently, and is expected to remain, less than 0.1 % of the ALARA guidelines in4 Appendix I of 10 C.F.R. Part 50, which are considered to be negligible with respect to5 public health, safety, and the environment; (7) there is no evidence of any significant leak6 or loss of radioactive water inventory from the site that was discernable in the offsite7 environment; and (8) Entergy's plans for long-term monitoring of residual groundwater 8 contamination were reasonable.
Id at vi to viii.9 In reaching these conclusions regarding Entergy's hydrogeologic site10 characterization, the NRC relied on an independent analysis of groundwater transport 11 through fractured bedrock utilizing geophysical well logging data that was conducted by*12 the U.S. Geological Survey ("USGS").
As the NRC pointed out in its inspection report,13 the USGS assessment corroborated the groundwater transport characteristics that were14 measured by GZA. Id. at vii. The NRC also worked closely with NYSDEC by sharing15 data and assessment information, coordinating independent split sampling of various16 sample media, and providing a combined oversight of licensee performance.
Id. at 1.17 X. SUMMARY AND CONCLUSIONS 18 Q: Please summarize the results of your work at Indian Point since 2005, at it relates to19 the past and potential future release of radionuclides to the Hudson River.20 A: GZA has used state of the practice methods to investigate the site hydrogeology and21 develop the CSM to understand how groundwater flows beneath the site. As part of that,22 GZA has installed a broad groundwater monitoring
: network, consisting of 65 monitoring
* 3 installations, including over 150 sampling intervals, in order to characterize the extent of PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.S1 past radionuclide releases to groundwater, and to proactively monitor for potential future2 releases of radionuclides to groundwater from the operation of Indian Point. As a result,3 GZA has concluded that low levels of radionuclides, principally tritium and strontium, 4 have migrated to the river as a result of past releases to groundwater, in amounts that are5 orders of magnitude below allowable federal regulatory limits for radiological effluent6 releases.
: Finally, GZA has concluded that the network of monitoring wells is sufficient 7 to allow Entergy to identify future potential comparable releases of radionuclides to8 groundwater, and respond quickly and appropriately to such potential releases.
9 Q: As a result of your work in this matter, have you formed an opinion as to whether10 the releases
.of radionuclides to the Hudson River from groundwater have impaired, 11 or have the potential to impair, the quality of the water in the Hudson River for its@ 12 best uses?13 A: I have. As stated above, the levels of radionuclides released to the Hudson River from14 groundwater are low, orders of magnitude below the allowable federal regulatory limits15 for radiological effluent releases.
Furthermore, the levels of radionuclides in the Hudson16 River water in the vicinity of Indian Point are indistinguishable from the background 17 levels of radionuclides in Hudson River water taken from control locations far removed18 from Indian Point, demonstrating that the releases do not have an effect on the19 radionuclide levels of the Hudson River. As such, there is no scientific basis to conclude20 that these releases will impair the quality of the Hudson River for its best uses.21 Q: As a result of your work in this matter, have you formed an opinion as to whether22 the releases of radionuclides to the Hudson River from groundwater have impaired,
@ 3 or have the potential to impair, the suitability of the Hudson River for fish, shellfish, PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.0i and wildlife propagation and survival?
2 A: I have. As stated above, the levels of radionuclides released to the Hudson River from3 groundwater are extremely low, orders of magnitude below the allowable federal4 regulatory limits for radiological effluent releases.
As such, there is no scientific basis to5 conclude that these releases have impaired the suitability of the Hudson River for fish,6 shellfish, and wildlife propagation and survival.
7 Q: As a result of your work in this matter, have you formed an opinion as to whether8 there are reasonable assurances that no potential future releases of radionuclides to9 groundwater at Indian Point will result in releases to the river that impair the10 quality of the Hudson River water for its best uses?11 A: Yes, as stated above, I believe that the network of monitoring wells is sufficient to allow@0 12 Entergy to identify comparable potential future releases of radionuclides to groundwater 13 and to take action to investigate and respond appropriately to any such releases.
As a14 result, I believe that there are reasonable assurances that no future comparable release of15 radionuclides to groundwater at Indian Point, should it occur, will result in releases to the16 river that will impair the quality of the Hudson River for its best uses.
STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, DEC App. Nos. 3-5522-00011/00030 (IP2)and Entergy Nuclear Operations Inc.'s 3-5522-00105/00031 (IP3)Joint Application for CWA § 401 WaterQuality Certification PREFILED TESTIMONY OF F. OWEN HOFFMANIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC, ENTERGYNUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.ISSUE FOR ADJUDICATION NO. 3 -RADIOLOGICAL MATERIALS ENTERGY NUCLEAR INDIAN POINT 2,LLC AND ENTERGY NUCLEAR INDIANPOINT 3, LLC, AND ENTERGY NUCLEAROPERATIONS, INC.By its attorneys,
,AllJohn C. Englander Elise N. ZoliU. Gwyn WilliamsRobert Fitzgerald Goodwin Procter LLP53 State StreetBoston, Massachusetts 02109July 22, 2011 Tel.: 617.570.1000 Fax: 617.523.1231 PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.TABLE OF CONTENTSI. IN TR O DU CTIO N .........................................................................................................
III. SUMMARY OF EXPERT OPINIONS
...............................................................................
IIII. Q UA LIFICA TION S .......................................................................................................
3IV. OVERVIEW AND METHODOLOGIES
......................................................................
3V. SUMMARY AND CONCLUSIONS
...........................................................................
18-i-PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 I. INTRODUCTION 2 Q: Please state your name, current position, and business address.3 A: My name is F. Owen Hoffman.
I am president and director of SENES Oak Ridge, Inc.4 Center for Risk Analysis, an organization that specializes in human health and ecological 5 risk estimation, risk assessment, and risk communication.
SENES Oak Ridge is located6 at 102 Donner Drive, Oak Ridge, TN, 37830.7 Q: Are you offering this testimony on behalf of Entergy in support of its application for8 a Water Quality Certification (DEC App. Nos. 3-5522-00011/00030
("IP2") and 3-9 5522-00105/00031
("1P3"))
for Indian Point Units 2 and 3 (collectively the10 "Proceeding")?
11 A: Yes. I am offering my testimony with respect to Issue for Adjudication No. 3 concerning 12 "radiological materials".
I will offer expert testimony concerning the lack of any material13 effects on human beings or aquatic biota that result from the low-level releases of14 radionuclides from Indian Point that have migrated through groundwater to the Hudson15 River.16 II. SUMMARY OF EXPERT OPINIONS17 Q: What is the purpose of your testimony?
18 A: In the Notice of Denial, DEC Staff states that "radiological leaks have the potential to19 impair the best use of the water designated in 6 NYCRR § 701.11 ." I understand from20 counsel that § 701.11 contains the best usage classification for the use of the Hudson21 River in the vicinity of Indian Point, and states that the "best usages of Class SB waters22 are primary and secondary contact recreation and fishing.
These waters shall be suitable-I-PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I for fish, shellfish and wildlife propagation and survival."
Accordingly, the purpose of my2 testimony is to analyze the calculated levels of radionuclides that have migrated to the3 Hudson River as a result of past releases to groundwater at Indian Point, in order to4 determine whether such releases have impaired, or have the potential to impair, the5 Hudson River for the best usages set forth in 6 NYCRR § 701.11.6 Q: Please briefly describe the analysis you performed in preparing your testimony?
7 A: In preparing my testimony, I: (i) reviewed the estimates of radionuclides (principally 8 tritium and strontium) that migrated to the Hudson River as a result of past releases to9 groundwater from Indian Point; (ii) reviewed Entergy's estimated radiological dose10 calculations to humans as a result of such releases; (iii) performed my own independent 9 11 estimated dose calculations to aquatic biota as a result of such releases; and (iv) based on12 my knowledge and expertise in the field, determined whether such releases have had, or13 could have, any effect on the best usages of the Hudson River set forth in 6 NYCRR14 § 701.11.15 Q: Based on your analysis, do you believe that radionuclide releases to groundwater at16 Indian Point have impaired, or have the potential to impair, the best usages of17 Hudson River?18 A: No. Based on my analysis, the calculated levels of radiological materials reaching the19 Hudson River as a result of releases to the groundwater at Indian Point are extremely low.20 Moreover, based on my review of monitoring results of radionuclide levels in Hudson21 River samples taken both in the vicinity of Indian Point and at control locations away22 from Indian Point, this low-level migration of radionuclides from groundwater at Indian PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 Point to the Hudson River has had no discernible effect on the level of radionuclides 2 present in the Hudson River from sources unrelated to the operation of Indian Point. As3 such, there is no credible scientific basis to conclude that releases of radionuclides to the4 Hudson River from past releases to groundwater at Indian Point have impaired or will5 impair the best usage of the Hudson River.6 Q: Do you hold each of your opinions to a reasonable degree of scientific certainty?
7 A: Yes.8 III. QUALIFICATIONS 9 Q: Please describe your educational and professional qualifications, including relevant10 professional activities.
* 11 A: My professional and educational qualifications are summarized in the attached12 curriculum vitae (Exh. 53). In brief, I hold a Bachelor's degree in Biological 13 Conservation from the San Jose State College, a Master's degree in Fisheries Limnology 14 from Oregon State University, and a Ph.D in Ecology from the University of Tennessee.
15 I have more than 39 years of experience in issues related to the evaluation of human and16 ecological risk from the release and transport of radionuclides and chemicals in terrestrial 17 and aquatic systems.
I am a Distinguished Emeritus Member of the National Council on18 Radiation Protection
& Measurements
("NCRP")
and a corresponding member of the19 International Commission on Radiological Protection.
20 IV. OVERVIEW AND METHODOLOGIES 21 Q: Please describe the exposure to radiation that a typical individual receives on an22 annual basis.
PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 A: According to a recent report of the NCRP, the average annual radiation dose per person2 in the United States is 620 millirem
("mrem").
See NRCP Report No. 160 (Exh. 37).3 Approximately half of this radiation exposure comes from natural background sources:4 cosmic radiation from space, naturally occurring radioactive minerals in the ground and5 in your body, and from the radioactive gases radon and thoron, which are created when6 other naturally occurring elements undergo radioactive decay. Approximately 48% of7 that dose comes from medical procedures and treatments.
See8 http://www.epa.pov/radiation/understand/perspective.html#average.
9 Q: What is tritium?10 A: Tritium is a naturally occurring radioactive form of hydrogen that is produced naturally
@ 11 in the atmosphere when cosmic rays collide with air molecules.
As a result, tritium is12 found in very small or trace amounts in water throughout the world. Tritum has a half13 life of 12.3 years. Tritium is also a byproduct of the production of electricity at nuclear14 power plants, such as Indian Point. Tritium emits a weak form of radiation, a low-energy 15 beta particle similar to an electron.
The tritium radiation does not travel very far in air16 and cannot penetrate the skin. See NRC Backgrounder on Tritium, available at17 http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/tritium-radiation-fs.html.
18 Because tritium emits a very weak form of radiation and leaves the body relatively 19 quickly, it is one of the least dangerous radionuclides.
See NRC: Frequently Asked20 Questions About Liquid Radioactive
: Releases, available at21 http://www.nrc.gov/reactors/operating/operating/ops-experience/tritium/faqs.html.
PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I Like normal hydrogen, tritium can bond with oxygen to form water. The resulting 2 water is called "tritiated water", which is chemically identical to normal water and the3 tritium cannot be filtered out of the water.4 Q: Are people routinely exposed to tritium?5 A: Yes. Everyone is exposed to small amounts of tritium every day, because it occurs in the6 environment and the foods we eat due to natural causes and prior weapons testing in the7 atmosphere primarily during the 1950s and early 1960s.8 Q: What is strontium?
9 A: Strontium is a soft, silvery metallic element found in rocks, soil, dust, coal and oil.10 Strontium-90 is a radioactive form of strontium.
Strontium-90 is formed in nuclearS11 reactors or during the explosion of nuclear weapons.
Strontium-90'has a half live of12 approximately 29 years.-13 Q: Are people regularly exposed to strontium?
14 A: Yes. Everyone is exposed to small amounts of strontium-90, since it is widely dispersed 15 in the environment and the food chain. The vast majority of strontium-90 in the16 environment and food chain (approximately 99%) is a result of weapons testing that17 occurred worldwide from approximately 1963 to 1980. See NRC: Frequently Asked18 Questions About Liquid Radioactive
: Releases, available at19 Most20 of the remaining strontium-90 is attributable to the Chernobyl nuclear power plant21 accident.
Id. Strontium-90 from releases from nuclear power plants is a small fraction of22 the strontium-90 in the environment.
Id.
PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I A. Liquid Effluent Radiolo-ical Dose Limits and Environmental Monitoring 2 Requirements 3 Q: Please provide an overview of the regulations that establish dose limits for members4 of the public for nuclear power plants.5 A: NRC regulations in 10 C.F.R. Part 20, "Standards for Protection Against Radiation,"
are6 applicable to all nuclear power plants, including Indian Point, and establish several7 relevant dose limitations.
The regulations found in Part 20 establish standards for8 protection against ionizing radiation resulting from activities of NRC licensees and are9 intended to control, among other things, the possession and use of licensed materials such10 that the total dose to an individual member of the public does not exceed radiation I I protection standards.
Pursuant to 10 C.F.R. § 20.1301(a),
licensees must conduct12 operations so that the maximum allowable concentrations of radionuclides in air and13 water above background at the boundary of unrestricted areas (i.e., areas for which access14 is not limited or controlled by a licensee) does not exceed an annual total effective dose15 equivalent of 100 mrem in a year to individual members of the public.16 Furthermore, 10 C.F.R. § 20.1301(e) incorporates by reference the U.S.17 Environmental Protection Agency's
("EPA") environmental radiation protection standard18 found at 40 C.F.R. § 190.10. Section 190.10 imposes the following dose limits to any19 member of the public resulting from planned discharges of radioactive materials to the20 general environment from uranium fuel cycle operations (which includes nuclear power21 plant operations):
25 mrem/yr to the whole body; 75 mrem/yr to the thyroid; and 2522 mremL/yr to any other organ.
PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I In addition, to demonstrate compliance with dose limits for members of the2 public, 10 C.F.R. § 20.1302 requires that licensees conduct surveys of radiation levels in3 both unrestricted and controlled areas, and of radioactive materials in effluents released4 to both unrestricted and controlled areas.5 In addition to the Part 20 and EPA limits, 10 C.F.R. Part 50 places additional 6 restrictions on public dose from the operations of nuclear power plants such as IP2 and7 IP3. Specifically, 10 C.F.R. § 50.36a imposes conditions on operating licensees in the8 form of technical specifications on effluents from nuclear power reactors.
These9 specifications are intended to keep releases of radioactive materials to unrestricted areas10 during normal operations, including expected operational occurrences, "as low as@ 11 reasonably achievable"
("ALARA").
Appendix I to 10 C.F.R. Part 50, "Numerical 12 Guides for Design Objectives and Limiting Conditions for Operation to Meet the13 Criterion
'As Low as is Reasonably Achievable' for Radioactive Material in Light-14 Water-Cooled Nuclear Power Reactor Effluents,"
provides numerical guidance on dose-15 design objectives and limiting conditions for operation of light-water reactor effluents to16 meet the ALARA requirement.
Appendix I also establishes requirements for the17 demonstration of compliance with the design objective, actions to be taken if the effluent18 releases in any calendar quarter exceed any of the annual design objectives by one-half, 19 and requirements to conduct surveillance and monitoring programs to demonstrate 20 compliance.
21 The numerical design objectives of Appendix I to Part 50 are a fraction of the22 Part 20 limits (including the EPA 40 C.F.R. § 190.10 limits).
Thus, in practice, because PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I the Part 50, Appendix I design objections are far more restrictive than Part 20 allowable 2 dose limits or effluent concentration levels, the Part 50, Appendix I ALARA objectives 3 and guidelines are controlling for power reactor licensees.
4 To implement 10 C.F.R. Part 50, Appendix I, the NRC Staff developed 5 Regulatory Guide 1.109, "Calculation of Annual Doses to Man from Routine Releases of6 Reactor Effluents for the Purpose of Evaluating Compliance with 10 CFR Part 50,7 Appendix I," Rev. 1 (Oct. 1977) ("Regulatory Guide 1.109").
Regulatory Guide 1.1098 describes basic features for calculation models and suggests parameters for the estimation 9 of radiation doses to members of the general public from effluent releases.
The following 10 are the design objectives of Appendix I, 10 C.F.R. Part 50, as summarized in Table 1,* 11 NRC Regulatory Guide 1.109, for the maximum exposed individual (integrated total dose12 on an annual basis):13 Liquid Effluents 14 , Annual dose to the total body from all pathways
-3 mrem per reactor -location15 of highest dose offsite evaluated at a location that is anticipated to be occupied16 during the plant lifetime or evaluated with respect to such potential land and water17 usage and food pathways as could actually exist during the term of plant18 operation.
19 e Annual dose to any organ from all pathways
-10 mrem per reactor -location20 same as above.21 In addition, 10 C.F.R. § 50.36a requires licensees to have technical specifications 22 (i.e., license conditions) to ensure compliance with Sections 20.1301 and 50.34a, and to PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 use operating procedures and radioactive waste systems to maintain radioactive effluents 2 ALARA-both during the current and extended periods of operation.
Section 50.36a3 also requires that licensees submit to the NRC an Annual Radiological Effluent Release4 Report that specifies the quantity of each of the principal radionuclides released to the5 unrestricted areas in liquid and in gaseous effluents during the previous 12 months.6 Further, in accordance with 10 C.F.R. Part 50 Appendix I, Section IV.B, NRC regulations 7 require that nuclear power plant operators monitor the environment in the vicinity of the8 nuclear power plant to assess the cumulative impact of the radionuclides that have been9 released and, on an annual basis, to submit the results of this environmental monitoring 10 program to the NRC in an Annual Radiological Environmental Operating Report.11 Q: Do NRC regulations require that a licensee account for inadvertent or unanticipated 12 releases?
13 A: Yes. The NRC limits and ALARA dose controls apply to both normal effluent14 discharges and unplanned releases such as leaks or spills containing radionuclides.
15 Regardless of the source, each nuclear power plant is required to account for the16 radionuclides released to the environment, including planned and unplanned releases.
17 Each licensee is responsible for accounting for the release, evaluating the release relative18 to NRC regulatory requirements, and reporting the quantity of radionuclides released and19 the highest dose to any theoretical member of the public. See SECY- 11-0019, Senior20 Management Review of Overall Regulatory Approach to Groundwater Protection, End.21 2, Regulatory Framework at 2 (Exh. 44). Along with all other releases, unplanned or22 abnormal releases are specifically identified in the required Annual Radiological Effluent PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I Release Report provided to the NRC.2 Q: Have you reviewed Entergy's Offsite Dose Calculation Manual ("ODCM")?
3 A: Yes.4 Q: Does Entergy's ODCM comply with the NRC requirements for calculating the doses5 of radiological releases from Indian Point?6 A: Yes. Entergy's ODCM calculates dose in a manner consistent with the specification 7 requirements of Regulatory Guide 1.109 and the design objectives of 10 C.F.R. Part 508 Appendix I.9 Q: Have you reviewed the calculations of the amount of tritium released to the Hudson10 River from groundwater in 2006-10?* 11 A: Yes. The estimates of the total tritium released to the Hudson River from groundwater 12 are contained in Entergy's Annual Radiological Effluent Release Reports ("ARERR"),
at13 Section H. They are summarized in the following table:14 Total Tritium Released from Groundwater 15 2006 0.19 curies16 2007 0.064 curies17 2008 0.2 curies18 2009 0.07 curies19 2010 0.12 curies20 See Entergy's ARERRs, 2006-10, at Section H.21 Q: Have you reviewed the calculations of the annual dose from the tritium released to22 the Hudson River from groundwater for 2006-10?
PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I A: Yes. The calculations of the annual dose from the tritium released to the Hudson River2 from groundwater are contained in Entergy's ARERRs, at Section H. They are3 summarized in the following table:4 Annual Dose from Tritium Released from Groundwater
* 5 2006 2.1 x 10.6 mrem6 2007 2.6 x l0"7 mrem7 2008 2.2 x 10-7 mrem8 2009 1.4 x 10-7 mrem9 2010 1.9 x 10-7 mrem10 See Entergy's ARERRs, 2006-10, at Section H.S 11 Q: Were Entergy's calculation of annual radiation dose from the tritium released from12 groundwater to the Hudson River consistent with the OCDM and the requirements 13 of NRC?14 A: Yes.15 Q: Do you have an.opinion as to the effect on human health as a result of the releases of16 tritium from groundwater to the Hudson River?17 A: I do. The level of tritium released to the river from groundwater on an annual basis is18 orders of magnitude lower than the allowable the allowable federal regulatory limits for19 radioactive effluents, and orders of magnitude below allowable federal regulatory levels20 of tritium that Entergy releases to the river on an annual basis through the discharge canal21 pursuant to its NRC licenses, which levels are designed to protect human health and the22 environment.
See Entergy's ARERR's, 2006-10, at Table 2A. More importantly, the-II-PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 dose is so small as to be inconsequential to human health or the environment.
To provide2 an example, in 2010, the total annual radiation dose to a hypothetical maximally exposed3 human being from the tritium released from groundwater was 0.00000019 mrem. As4 stated above, the average annual radiation exposure for the typical individual in the5 United States is 620 mrem. Indeed, the typical radiation exposure from eating a banana,6 which contains small amounts of radioactive potassium, is 0.01 mrem. The low level of7 tritium, and the low dose consequences from that tritium, demonstrates conclusively that8 there is no material negative effect on human health or the environment from the releases9 of tritium from groundwater to the Hudson River.10 Q: Have you reviewed the calculations of the radionuclides released to the Hudson9 11 River from groundwater as a result of past releases from the IP SFP?12 A: Yes. While I understand that this proceeding relates solely to the continued operation of13 Indian Point Unit 2 and Unit 3, and does not relate to any activity related to Unit 1, I have14 also reviewed Entergy's estimates of radionuclides (principally strontium, and trace15 amounts of cesium and cobalt) that have been released to the Hudson River as a result of16 the past release to groundwater from IPI SFP. These estimates are contained in17 Entergy's ARERRs, at Section H. They are summarized in the following table:18 Total Radionuclides Released from IPI SFP19 2006 0.00057 curies20 2007 0.00008 curies21 2008 0.00016 curies22 2009 0.00025 curies PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 2010 0.000042 curies2 See Entergy's ARERRs, 2006-10, at Section H.3 Q: Have you reviewed the calculations of the annual radiation dose from radionuclides 4 released to the Hudson River from groundwater as a result of past releases from the5 IPM SFP?6 A: Yes. The calculations of the annual radiation dose from the radionuclides released to the7 Hudson River from groundwater as a result of past releases from the IP1 SFP are8 contained in Entergy's ARERRs, at Section H. They are summarized in the following 9 table:10 Annual Dose from Radionuclides Released from IP I SFPS 11 Total Body Adult Bone12 2006 0.00178 mrem 0.00721 mrem13 2007 0.000266 mrem 0.000994 mrem14 2008 0.000286 mrem 0.000935 mrem15 2009 0.000256 mrem 0.00103 mrem16 2010 0.000173 mremn 0.000706 mrem17 See Entergy's ARERRs, 2006-10, at Section H.18 Q: Were Entergy's calculation of annual radiation dose from radionuclides released to19 the Hudson River from groundwater as a result of past releases from the IPN SFP20 consistent with the OCDM and the requirements of NRC?21 A: Yes.22 Q: Do you have an opinion as to the effect on human health from the radionuclides PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 released to the Hudson River from groundwater as a result of past releases from the2 IPI SFP?3 A: I do. The level of radionuclides released to the river on an annual as a result of past4 releases to groundwater from the IP1 SFP is extremely low. Indeed, the level of5 radionuclides released from groundwater is orders of magnitude lower than the allowable 6 federal regulatory limits for radioactive effluents, which levels are designed to protect7 human health and the environment.
More importantly, the radiation dose is so small as to8 be inconsequential to human health or the environment.
To provide an example, in 2010,9 the total annual dose to the most affected human being from the radionuclides released10 from the IPI SFP was 0.000173 mrem. As stated above, the average annual radiation
* 11 exposure for the typical individual in the United States is 620 mrem. Again, the typical12 radiation exposure from eating a banana, which contains small amounts of radioactive 13 potassium,.
is 0.01 mrem. The low level of radionuclides, and the low dose consequences 14 from those radionuclides, demonstrates conclusively that there is no material negative15 effect on human health or the environment from the release of groundwater to the Hudson16 River containing radionuclides as a result of releases from the IP I SFP.17 Q: Have you. reviewed the results of the testing of radionuclides in Hudson River water1 8 samples?19 A: Yes. The Annual Radiological Environmental Operating Reports ("AREOR")
for Indian20 Point contain the results of testing for plant related radionuclides in the vicinity of Indian21 Point, and at the Hudson River inlet, which is used as a control location.
This is-22 important, as there are low levels of "background" radionuclides in surface waters rPREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I throughout the world as a result of nuclear weapons testing and the Chernobyl incident.
2 As such, comparing the levels of radionuclides in river water in the vicinity of the plant3 to that of a control location can assist one in determining whether the radiological 4 releases from the plant are having a measurable effect on the Hudson River. I have5 reviewed the AREORs from 2006 through 2010, and have concluded that there are no6 material differences in the levels of radionuclides contained in the samples taken from the7 vicinity of the plant and from the control location over that time period. This is as I8 would expect, given the low levels of radionuclides being released, and the large volume9 of water in the river.10 Q: Do you have an opinion as to the effect on aquatic biota as a result of the releases of@ 11 radionuclides from groundwater to the Hudson River?12 A: Yes. The Department of Energy ("DOE") has promulgated a guideline for radiation dose-13 rates from environmental media, which recommends limiting the dose to aquatic biota to14 less than 1.0 rad/day (0.01 Gy/day).
See DOE-STD-1153-2002, DOE Standard, A15 Graded Approach for Evaluating Radiation Doses to Aquatic and Terrestrial Biota (2002)16 (excerpts included at Exh. 45). These guidelines were developed on the basis of17 experimental data that indicated that there would not be any negative population-level 18 effects at these doses.19 Q: Did you perform any dose rate calculations for aquatic biota in the area in the20 vicinity of the IPEC site?21 A: Yes. As part of my preparation in this matter, I used the DOE's RESRAD-BIOTA dose22 evaluation model (v.1.5/level
: 3) to calculate the dose rate to aquatic organisms in the PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I vicinity of the IPEC site. Furthermore, I compared the estimates of dose rate obtained2 with RESRAD-BIOTA with dose rates calculated with the use of biota dose coefficients 3 for tritium and strontium-90 documented for external and internal exposures in4 UNSCEAR 2008 (Vol. II, Annex E) (Exh. 35-36), and an assumed water-to-whole 5 organism bioconcentration factor of 320 for strontium-90.
To perform these calculations, 6 I used conservative upper-bound estimates of the rolling average concentration of both7 tritium and strontium in the groundwater migrating to the River. Using the RESRAD-8 BIOTA dose model, I calculated a dose rate to aquatic organisms in the vicinity of the9 IPEC site of 2.05 x 10-9 rad/d for tritium, and 3.71 x 10-4 rad/d for strontium-90.
Using10 the UNSCEAR approach, I calculated a dose rate to aquatic organisms in the vicinity of11 the IPEC site of 2.9 x 10-9 rad/d for tritium, and 4.7 x 10-4 rad/d for strontium-90.
These12 dose rates are orders of magnitude below the DOE I rad/d guideline, and support my13 conclusion that effluent releases from the IP SFPs have not resulted in any negative14 effects on the ecosystem.
15 Q: Are you aware of any other independent dose assessments of the impact of releases16 of radionuclides to groundwater on aquatic biota in the vicinity of the IPEC site?17 A: Yes. In 2009, the NYSDEC published the results of enhanced, independent radiological 18 surveillance of several aquatic species in the lower Hudson River conducted in 2007. See19 Lawrence C. Skinner & Timothy J. Sinnot, Measurement of Strontium (90Sr) and Other20 Radionuclides in Edible Tissues and Bone/Carapace of Fish and Crabs from the Lower21 Hudson River, New York (Nov. 2009) (Exh. 39). The NYSDEC study involved an22 independent assessment of fish and invertebrates sampling performed as part of Entergy's PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I Radiological Environmental Monitoring Program ("REMP").
Typically, radiological 2 surveillance under the REMP involves samples of edible tissues of two or more important 3 commercial or recreational fish or invertebrate species (e.g., striped bass, white perch,4 American eel, catfish,
: sunfish, or blue crab) performed in spring and fall of each year at5 two locations-in the vicinity of the IPEC site (approximately river mile 42) and the6 vicinity of Roseton Generating Station (the traditional reference station at approximate 7 river mile 65). The one-time design modifications for the 2007 effort included:
the8 addition of carp to the target species list; adding strontium to the list of radionuclide 9 analyzed; analysis of fish bone or crab carapace; and sampling fish at a third location in10 the Catskill Region between river miles 107 and 125 to help assure appropriate separation
@ 11 of fish populations that are resident to the river, and, consequently, assure isolation of12 resident fish populations from the potential influence of IPEC.13 Sampling was conducted by Normandeau Associates, Inc., under contract with14 Entergy.
Samples were split three ways between Entergy's contract laboratory, AREVA,15 Inc.; the NRC for analysis at Oak Ridge Institute for Science and Education; and16 NYSDOH Wadsworth Center for Labs and Research.
The NYSDEC study found that17 there were no spatial differences in the concentrations of strontium-90 or radium-224 18 from the three locations in the lower Hudson River. In contrast, K-40 levels were19 somewhat greater in the vicinity of Roseton Generating Station.
Furthermore, the20 NYSDEC study calculated dose rates from strontium-90, uranium-238, and thorium-232 21 and compared those rates to the DOE standard for protecting aquatic biota. NYSDEC22 concluded that the levels of radionuclides-including strontium-90--were two to five PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I orders of magnitude lower than the 1.0 rad/day criterion established for protection of2 freshwater ecosystems.
3 V. SUMMARY AND CONCLUSIONS 4 Q: As a result of your work in this matter, have you formed an opinion as to whether* 5 the releases of radionuclides to groundwater that has migrated to the Hudson River6 have impaired, or have the potential to impair, the use of the Hudson River for7 recreation activities such as swimming,
: fishing, and boating?8 A: I have. As stated above, the levels of radionuclides released to the Hudson River from9 groundwater are extremely low, with an immaterial effect on annual dose consequence to10 man or aquatic biota. Moreover, given the low levels of these releases, and the large11 volume of water in the Hudson River, there is no credible evidence that the releases of12 radionuclides from groundwater have any measurable effect on the level of radionuclides 13 present in the Hudson River from historical sources.
As such, there is no credible14 scientific basis to conclude that releases of radionuclides to groundwater that has15 migrated to the Hudson River have impaired or will impair the use of the Hudson for16 primary or secondary contact recreation, such as swimming,
: fishing, and boating.17 Q: As a result of your work in this matter, have you formed an opinion as to whether18 the releases of radionuclides to groundwater that has migrated to the Hudson River19 have impaired, or have the potential to impair, the suitability of the Hudson River20 for fish, shellfish, and wildlife propagation and survival?
21 A: I have. As stated above, the levels of radionuclides released to the Hudson River from-22 groundwater are extremely low, with an immaterial effect on annual dose consequence to PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 aquatic biota. Moreover, given the low levels of these releases, and the large volume of2 water in the Hudson River, there is no evidence that the releases of radionuclides from3 groundwater have any material effect on the level of radionuclides present in the Hudson4 River from historical sources.
Given all this, there is no credible scientific basis to5 conclude that releases of radionuclides to groundwater that has migrated to the Hudson6 River have impaired or will impair the suitability of the Hudson River for fish, shellfish, 7 and wildlife propagation and survival.
8 STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, DEC App. Nos. 3-5522-00011/00030 (IP2)and Entergy Nuclear Operations Inc.'s 3-5522-00105/00031 (IP3)Joint Application for CWA § 401 WaterQuality Certification COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., MATTHEW J. BARVENIK, AND F. OWEN HOFFMAN, PH.DRADIOLOGICAL
-ISSUE FOR ADJUDICATION NO. 3ENTERGY NUCLEAR INDIAN POINT 2,LLC, ENTERGY NUCLEAR INDIAN POINT3, LLC, AND ENTERGY NUCLEAROPERATIONS, INC.By its attorneys, John C. EnglaerElise N. ZoliU. Gwyn WilliamsWilliam J. TrachGoodwin Procter LLP53 State StreetBoston, Massachusetts 02 109Tel.: 617.570.1000 October 4, 2011 Fax: 617.523.1231 COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., AND MATT7HEW J.BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL TABLE OF CONTENTSI. Introduction
........................................................................................................................
1II. B ackground
........................................................................................................................
2I11. Rebuttal to Testimony of Mr. Gunderson
..................................................................
7IV. Rebuttal to Testimony of Mr. Kolakowski
................................................................
39ii COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 I. Introduction 2 Q: Please identify yourselves.
3 A: Dr. Esselman:
My name is Thomas C. Esselman.
I am a Principal of Lucius4 Pitkin, Inc., 304 Hudson Street, New York, NY 10013. I have over thirty-five 5 years experience in engineering including the areas of component and structure 6 performance, aging, stress analysis,
: dynamics, seismic design and analysis, 7 mechanical design, thermo-hydraulics, materials, materials degradation, and8 failure analysis, including extensive experience with nuclear power facilities.
My9 responsibilities have included performance and management of a large variety of10 engineering, engineering development, and engineering evaluation issues. I11 consult frequently on power generation and delivery, generating plant design and12 operation, material degradation, plant and system aging issues, and materials 13 evaluations.
A copy of my resume is attached as Exhibit 77.14 A: Mr. Barvenik:
My name is Matthew Barvenik.
I am a Senior Principal with15 GZA GeoEnvironmental, Inc., One Edgewater Drive, Norwood, MA 02062. 116 submitted direct prefiled testimony, which included my qualifications and resume,17 on July 22, 2011.18 A: Dr. Hoffman:
My name is F. Owen Hoffman.
I am president and director of19 SENES Oak Ridge, Inc. Center for Risk Analysis, an organization that specializes 20 in human health and ecological risk estimation, risk assessment, and risk21 communication.
SENES Oak Ridge is located at 102 Donner Drive, Oak Ridge,22 TN, 37830. I submitted direct prefiled testimony which included my23 qualifications and resume, on July 22, 2011.-I -
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D.. ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN:
PH.DRADIOLOGICAL 1 Q: Please state the purpose of your rebuttal testimony.
2 A: All Experts:
The purpose of our testimony is to address certain portions of the3 prefiled direct testimony of Mr. Arnold Gunderson (Riverkeeper),
and Mr. Paul4 Kolakowski (NYSDEC) with respect to Issue for Adjudication No. 35 (Radiological Issues).
We have each individually reviewed Mr. Gunderson's and6 Mr. Kolakowski's testimony.
In our individual professional
: opinions, their7 testimony and conclusions contain numerous errors, inaccuracies, and8 deficiencies.
For ease of reference, the initials of the individual or individuals 9 responsible for providing the testimony in response to each particular question are10 provided herein.I 1 II. Background 12 Q: Please describe any background information on radiation exposure and13 regulations necessary to provide context for your rebuttal testimony.
14 A: (TCE, MJB, FOH): While Mr. Gunderson and Mr. Kolakowski discuss in detail15 Entergy's unplanned releases of radionuclides from groundwater to the Hudson16 River, neither discusses the effects of such releases or the relevant regulatory 17 guidelines that govern such releases.
That basic information, provided herein,18 provides an important context for our rebuttal testimony.
19 According to a recent report of the National Council on Radiation 20 Protection and Measurements
("NCRP"),'
the average annual radiation dose perThe NRCP is an organization chartered by the U.S. Congress in 1964 to, inter alia, "collect,
: analyze, develop and disseminate in the public interest information and recommendations about(a) protection against radiation
...and (b) radiation measurements, quantities and units,particularly those concerned with radiation protection."
See COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I person in the United States is 620 millirem
("mrem").
See NCRP Report No. 1602 (Exh. 37), Approximately half of this radiation exposure comes from natural3 background
: sources, such as cosmic radiation from space, naturally occurring 4 radioactive minerals in the ground and in your body, and from the radioactive 5 gases radon and thoron, which are created when other naturally occurring 6 elements undergo radioactive decay. Accordingly, the average individual will7 receive over 300 mrem of radiation exposure each year from naturally occurring 8 background radiation.
Another 48% of the average total radiation exposure of9 620 mrem received each year is from medical procedures, many routine.
Below10 is a chart detailing the average sources of radiation exposure:
sourcesCosmic (space) -5Terrestrial (Soil) -3%Internal
-5%of Radiation Exposure in the United States-Radon and.Trho=o- 3796Occupational
-1Consumer Products
-2~FNuclear Medlcine 1.2%111213140 Natural Sources -50% M9 Manmade Sources -50%-310 millirem (0.31 rem) -310 mIllilrem (0,31 rem)se pClP K0poI .160(2009,
'I ts "dw:e ca tNhe NCRP web s" at -w.ACRPp~Ih na. r.As is evident from above, the average radiation exposure resulting fromindustrial and occupational activities, which includes but is not limited toexposure resulting from the operation of nuclear facilities, contributes just 0.1%hitp://wwwv.ncrponline.orglAboutNCRP/About NCRP.htnil.
2345678COMBINED PREFILIED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN:
PH.DRADIOLOGICAL of the average annual radiation exposure.
Both state and federal regulators (including NYSDEC) have promulgated regulations setting limits on the increased radiation exposure to individuals fromindustrial facilities.
While the relevant federal regulations arc discussed in detailin the pre-filed testimony of Dr. Hoffman, below is a chart setting forth thefederal and state regulations regarding potential dose from industrial facilities, aswell as the calculated dose resulting from Indian Point's liquid effluents, and fromthe unplanned releases of radionuclides specifically:
Annual Dose (mrem/yr whole body)320 r 310240200160 ...--1201008040[ 25io0.0032 0.0002Natural NRC Effluentsl10 EPA-40CFR 190 NYSDECOHSM NRCDesign ObJ IPEC Uquid IPEC Ground &Background CFR 20 RADOS-01 1OCFRSO App. I Effluents Dose Storm Water DoseUquid 2010 .201091011In addition to the relevant federal regulatory limits, NYSDEC haspromulgated limits for the dose resulting from the operation of industrial facilities COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I subject to its jurisdiction.
Those limits are contained in two relevant regulations.
2 First, NYSDEC's radiological regulations at 6 NYCRR Part 380, "requires parties3 who discharge radioactive material to keep records of the radioactive material4 discharged and to maintain those discharges as low as reasonably achievable 5 ("ALARA").
The regulations set radiation dose limits and emission levels above6 which a party must obtain a radiation control permit from NYSDEC."
See7 http://www.dec.ny.gov/chemical/23475.hti-l.
Accordingly, 6 NYCRR Part 380-8 5.1, entitled "Dose Limits for Individual Members of the Public."
sets a limit of9 100 mrern/year resulting from discharges of radioactive material to the10 environment.
2 NYSDEC also has promulgated guidance for cleanup of sitesI I contaminated with radiological materials that sets a 10 mrem/year dose limit. See12 NYSDEC DSHM-RAD-05-01, "Cleanup Guidelines for Soils Contaminated with13 Radioactive Materials"
("The total effective dose equivalent to the maximally 14 exposed individual of the general public, from radioactive material remaining at a15 site after'cleanup, shall be as low as reasonably achievable and less than 10 mrem16 above that received from background levels of radiation in any one year.").17 Furthermore, NYSDEC has applied this guidance when analyzing impacts from18 the release of radionuclides, and has determined that dose levels that are 10,00019 times higher than the doses from Entergy's unplanned releases presented no harm20 to public health or the environment.
Specifically, GZA reviewed NYSDEC'sBecause of federal preemption, the limits in Part 380 expressly do not apply to nuclear facilities subject to NRC regulation, such as Indian Point. See 6 NYCRR Part 380-1.2 ("This Part does notapply to any person to the extent that such person is subject to regulation by the U.S. NuclearRegulatory Commission or the U.S. Department of Energy.").
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN, PH.DRADIOLOGICAL I investigation of naturally occurring radioactive materials (NORM) associated 2 with oil and gas drilling in New York State. See An Investigation of Naturally 3 Occurring Radioactive Materials (NORM) in Oil and Gas Wells in New York4 State, http://www.dec.ny.gov/chemical/23473.html.
The focus of NYSDEC's5 work on this issue was to evaluate the potential impact to the public and the6 environment associated with this industry.
As part of this investigation, 7 NYSDEC specifically evaluated the spreading of hydrofracking brine generated 8 by this industry, which contains NORM, on local roads. The dose computed by9 NYSDEC for brine spread on roads for snow removal and dust control was10 between 1.7 and 2.9 mrem/year.
Based on these potential exposure levels,11 NYSDEC concluded that: "Even given the "worst-case" assumptions cited above,12 the output from the RESRAD model showed that the dose rate upon the 20th year13 of exposure (the year of highest possible exposure) from all radium isotopes and14 its progeny would still be well below the NYSDEC [DSHM-RAD-05-0O]
cleanup15 guideline of 10 mrem/yr.
This result was based upon conservative modeling and16 demonstrates that there is no reason to believe that the public health or the17 environment would be threatened."
As such, in performing this analysis, 18 NYSDEC concluded that a 2.9 mrem/year exposure results in "no reason to19 believe that the public health or the environment would be threatened."
By20 contrast, the whole body dose in 2010 at Indian Point for all radionuclides 21 resulting from unplanned releases was 0.0002 mrem/year, an exposure more than22 10,000 times lower than that considered acceptable by NYSDEC. As such,23 according to NYSDEC's own analysis, the release of radionuclides to the Hudson COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I River at Indian Point constitutes no threat to public health or the environment.
2 In sum, the total calculated potential radiation dose from Entergy's 3 unplanned releases of radiological materials in all of 2010 was 0.0002 mrem. To4 provide some context as to the insignificant dose from Entergy's unplanned 5 releases, it is helpful to understand the radiation dose from certain common,6 everyday activities:
eating a single banana: 0.01 mrem; a single cross-country 7 flight: 2 mrem; a single chest x-ray: 4 mrem. Each of these common activities 8 results in a dose that is orders of magnitude more than the total annual dose from9 Entergy's unplanned releases.
10 111. Rebuttal to Testimony of Mr. Gunderson 11 Q: Mr. Gunderson's testimony references, at several points, EPA limits for12 tritium.
Are there any aspects of Mr. Gunderson's testimony regarding EPA13 limits for tritium with which you disagree?
14 A: (MJB, FOH) Yes. Mr. Gunderson's statements regarding what he characterizes as15 leaks of tritium at nuclear plants in excess of EPA limits are misleading.
For16 instance, Mr. Gunderson's testimony states that "According to an NRC document17 entitled List of Historical Leaks and Spills at U.S. Commercial Nuclear Power18 Plants, 38 of the 65 nuclear power plant sites have reported tritium leaks in excess19 of U.S. Environmental Protection Agency (EPA) limits."
This statement is a20 mischaracterization of the document on which Mr. Gunderson purports to rely.21 To demonstrate this mischaracterization, some background on the referenced 22 regulatory limits is necessary.
In 1976, EPA issued standards under the Safe23 Drinking Water Act, which apply to "drinking water providers" as defined in the COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN:
PH.DRADIOLOGICAL Act, and includes dose-based drinking water standards for, inter alia, tritium and2 strontium.
The EPA established a maximum contaminant level of 20,0003 picocuries per liter (pCi/L) for tritium and 8 picocuries per liter for strontium.
4 This regulation applies to drinking water sources (i.e., at the tap). It does not5 apply to wells on the site at Indian Point which are not used as a drinking water6 source. See Http://www.nrc.pgov/reading-rm/doc-collections/fact-sheets/tritium-7 radiation-fs.html.
8 The NRC document on which Mr. Gunderson purports to rely for his9 statement that "38 of the 65 nuclear power plant sites have reported tritium leaks10 in excess of U.S. Environmental Protection Agency (EPA) limits" demonstrates 11 clearly the falsity of this testimony.
In fact, that document states that no nuclear12 facility has ever had leaks that resulted in drinking water levels in excess of EPA13 limits:14 "There are 65 sites with operating commercial nuclear power15 plants in the United States. Records indicate 38 of these sites have16 had leaks or spills that involved tritium in excess of 20,000 pCi/L17 at some time during their operating history.
Fourteen sites are18 currently reporting
: tritium, from a leak or spill, in excess of 20,00019 pCi/L. Although many sites have had leaks or spills involving 20 tritium, no site is currently detecting tritium in the offsite21 environment, or in drinking water, in excess of 20,000 pCi/L.22 COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 This list demonstrates that in all of that time, and with all the2 leaks and spills that have occurred, no drinking water supply3 has exceeded the allowable level for tritium specified in EPA's4 Safe Drinking Water Act."5 See List of Historical Leaks and Spills at U.S. Commercial Nuclear Power6 Plants, Rev 7 (emphasis added) (Ex. AG-Rad-2).
7 Q: Beginning at page 6, line 12 of his pre-filed testimony, Mr. Gunderson 8 references a report of the U.S. General Accounting Office ("GAO"),
stating9 that the "GAO concludes that the elimination or reduction in the frequency 10 of radioactive leaks into the soil has not been solved by industry initiatives 11 and is likely to continue or worsen as nuclear plants continue to age." Do12 you agree with Mr. Gunderson's summary of the GAO's conclusions?
13 A: (TCE, MJB) No. First, the GAO report was an independent review of tritium14 leaks by two panels of experts from the National Academy of Sciences.
They15 examined tritium leaks that had occurred at three nuclear power plants16 specifically (Braidwood Generating
: Station, Oyster Creek Generating
: Station, and17 Vermont Yankee Nuclear Power Station),
and also looked broadly at the issue18 across the nuclear industry.
As part of their work, they also visited the Indian19 Point Nuclear Station.
Mr. Gunderson mischaracterizes the GAO report and its20 conclusions in several significant ways. Contrary to Mr. Gunderson's testimony, 21 the GAO report did not conclude that "the elimination or reduction in the22 frequency of radioactive leaks into the soil has not been solved by industry23 initiatives."
Rather, the report highlights the NRC's conclusion "that licensees' COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 groundwater monitoring programs implemented under the voluntary groundwater 2 initiative go beyond what the agency requires for groundwater monitoring and3 could enhance licensees' prevention of and response to potential leaks by4 detecting them early." (Ex. AG-Rad-4 at 22-23).5 Further, the principal conclusion of the GAO report was that no6 discernible public health effect and no discernible off site environmental 7 effects had occurred from any of the studied leaks. The two panels'8 conclusions were clear and unequivocal:
9 "According to the experts in our public health discussion group, no10 impacts on public health have been discernible from leaks at the11 three case study nuclear power plants we [the GAO] asked the12 experts to consider.
13 Id. at 9.14 "Based on the information that is available on the case studies15 considered by the experts, the experts in our environmental 16 impacts discussion group concluded that the leaks have had no17 discernible impact on off-site environmental resources."
18 Id. at 10 (emphasis added).19 While the GAO Report did state that "occurrence of leaks at nuclear power plants20 from underground piping systems is expected to continue as nuclear power plants21 age" id. at 22, the entire purpose of the industry initiatives highlighted in the22 report (both the Groundwater Protection Initiative and the Buried23 Piping/Underground Piping and Tanks Integrity Initiative) is to greatly reduce the COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I likelihood that leaks will occur and to detect leaks more quickly and more2 effectively than had been done in the past. Id. at 22-23.3 Q: Mr. Gunderson relies on the Indian Point Independent Safety Evaluation 4 ("ISE") Report and the Supplemental Report of the Public Oversight Panel5 Regarding the Comprehensive Reliability Assessment of the Vermont6 Yankee Nuclear Power Plant ("VY Report")
to support statements on pages7 7, 20, and 21 that Entergy "appears" not to be committing adequate8 resources to maintain its nuclear reactors, including Indian Point. Do you9 agree with Mr. Gunderson's characterization of the referenced
: reports, and10 his assertion that Entergy is not committing adequate resources to maintain11 its nuclear reactors?
12 A: (TCE, MJB) No. First, Mr. Gunderson's conclusory characterization of the ISE13 and VY Reports is not accurate.
On page 20 of his testimony, Mr. Gunderson 14 contends that the ISE Report demonstrates that "Entergy is failing to sufficiently 15 fund its maintenance programs."
This is not correct.
To provide context, the ISE16 report resulted from Entergy's commission of a panel of experts (the "ISE Panel")17 to conduct "an independent evaluation of Indian Point's safety, security, and18 emergency preparedness."
ISE Report at 6 (Ex. 78). The ISE Panel, consisting of19 distinguished experts in the nuclear field with no professional ties to Entergy or20 Indian Point, "represented virtually every facet of nuclear plant safety, security, 21 and emergency preparedness, from a variety of vantage points, and with full22 independence."
Id The ISE Panel specifically concluded that Indian Point had23 been adequately maintained:
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I "The Panel found that Indian Point nuclear safety meets the U.S.2 nuclear industry highest standards in most respects.
Indian Point3 nuclear operations are conducted competently and4 professionally, plant safety systems are well maintained, 5 reliable and are backed with full resource commitment by the6 plant owner. Control Room operations
-- a key indicator of plant7 nuclear safety culture -were observed frequently by the Nuclear8 Safety Team and other ISE Panelists and found to be consistently 9 professional and effective.
Indian Point management, at all10 levels, is clearly attentive to nuclear safety."11 Id. at 146. The ISE did find that while station personnel paid close attention to12 the plant safety systems, there were some deficiencies in the physical condition of13 some non-safety parts of the plant. Entergy has heavily invested in the14 improvement of such non-safety portions of the plant. Indeed, as the ISE Report15 concluded:
"Entergy has invested heavily in improving the overall material16 condition of the plant." Id. at 47. Since the issuance of the ISE Report, Entergy17 has continued to invest heavily in the overall material condition of the plant.18 Likewise, contrary to Mr. Gunderson's statement, the VY Report19 referenced on page 7 of Mr. Gunderson's testimony, which resulted from a review20 of the reliability of the Vermont Yankee plant, actually says nothing about21 Entergy Nuclear Operations' "corporate structure,"
and neither evaluated nor22 commented on "resource weakness within Entergy's corporate structure."
Other23 than a passing reference to the unrelated ISE Report, the VY Report says nothing COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 about the operation of or conditions at Indian Point. As such, it provides no basis2 to make conclusions as to the funding of maintenance operations at Indian Point.3 Setting aside the conclusions of the ISE and VY Reports, an analysis of4 the operation of Indian Point during the time Entergy has owned it demonstrates 5 that Entergy is adequately funding its maintenance.
Specifically, two factors6 concerning the operation of a nuclear plant are highly indicative of the quality of a7 nuclear power plant's owner/operator:
gross generation and capacity factor.8 "Gross generation" measures the total annual amount of electricity generated by9 Indian Point Units 2 and 3. Below is a chart representing gross generation in10 megawatt-hours from 1977 to 2010:
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMA'iTHEW J. BARVENIK, AND F. OWEN IIOFFMAN, PH.DRADIOLOGICAL Power Produced at IPEC per Year19,000,000 18,000,000
-Pre---.wn 17,000,000 "16,000,000
.15,000,000 14,000.000 13,000,000 12,000.000 11,000,000
.10,000,000
.9,000,000 8,000,000 7,000,000 6,000,000 5,000,000 4,000,000 3,000,000 2,000,000 1,000,000 0 l "W i CD .r, ) , C') Uo o C") U') 0 0 " 0" '- " " "- " '- )r-ar" ' 2 There are two conclusions that can be drawn from this data. First, power3 production since 2001, when Entergy completed acquisition of both units, has4 been higher each year than it ever had been previously.
Fntergy has operated the5 plant at a high level of efficiency since they took ownership.
Second. the6 operation of Indian Point has been consistent since 2001. The annual power7 generation varies between 16,000,000 and 18,000,000 Megawatt-hours.
Such8 consistent, high-efficiency operation of a facility for a ten year period cannot be9 achieved without having a strong focus on the efficiency of operation, the10 efficiency of maintenance, and a focus on safety.
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 The second important metric that can provide insight into the quality of2 maintenance at Indian Point is the capacity factor in comparison to the average in3 the industry.
The "capacity factor" of a power plant is the ratio of the actual4 output of a power plant over a period of time and its potential output if it had5 operated at full power for the entire time. A consistently high capacity factor over6 a number of years is a strong indicator the plant is being run well and adequately 7 maintained.
Capacity factors for US nuclear plants are published in the NRC's8 annual Information Digest, NUREG 1350 (available at9 http://www.nrc.gov/reading-rmldoc-collections/nuregs/staff/sr1350/).
Below is a10 table of capacity factors of the Indian Point plants, the Entergy fleet, and the11 industry average from 2001 to 2010:I Capacity FactorsAll Entergy Plants US PlantsYear Indian PointAverage Average2010 90.5% 93.2% 91.2%2009 91.5% 93.5% 91.1%2008 99.2% 91.1% 92.0%2007 92.9% 91.4% 91.8%2006 94.5% 95.4% 91.0%2005 94.5% 88.8% 90.1%2004 94.5% 93.2% 90.9%
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 2003 93.5% 90.7% 88.0%2002 94.5% 89.3% 90.9%2001 93.7% 93.3% 90.9%12 As the chart shows, Entergy operated the Indian Point stations at greater than 90%3 capacity factor every year for the past ten years. The Indian Point average4 capacity factor for the ten years is 93.9%. The average capacity factor in the5 industry for this ten year period is 90.9% -- 3 percentage points lower than the6 average at the Indian Point stations.
The average for all the Entergy plants was7 92.0% which also exceeded the industry average by 1.1%. Further, Indian Point8 was one of only six multiple plant sites in the United States to operate with a site9 average capacity factor that exceeded 90% in each year between 2001 and 2010.10 These results cannot have been attained without sustained management 11 commitment to adequate maintenance funding.12 These statistics demonstrate that Mr. Gunderson's conclusory statement 13 that "Entergy appears to have failed to adequately fund [Indian Point's]14 maintenance" is not correct.
The operating results from the last ten years clearly15 indicate that Entergy has consistently and efficiently operated the Indian Point16 stations, and that the maintenance has been appropriately funded.17 Q: On page 7 of his testimony, Mr. Gunderson states that "more than half18 (59%) of U.S. nuclear power plants are leaking tritium and other longer-19 lived radioactive isotopes while almost three-quarters (73%) of Entergy's COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I nuclear plant sites are leaking tritium and other longer-lived radioactive 2 isotopes,"
and further states that Entergy's "older" nuclear reactors located3 in the northern part of the U.S. are more prone to experience piping failures4 as a result of their age. How do you interpret this data?5 A: (TCE, MJB) Mr. Gunderson's statement implies that Entergy's operation of its6 facilities is worse than the rest of the industry and communicates a false7 impression of Entergy's performance to date on a fleet-wide basis and at Indian8 Point. First, Mr. Gunderson's assertion implies that the age of the nuclear reactor9 is the principal factor affecting the likelihood of piping failures.
However.10 experience with corrosion of piping that is buried or encased underground shows11 that the chemistry of the soil and groundwater, as well as the design of the piping,12 are more important contributors to corrosion than age. For this reason, plant13 buried piping programs, including the Entergy programs, focus principally on14 design and environmental conditions rather than on age. In this regard, an15 analysis of the NRC data on nuclear plant leaks identified in the June 2011 NRC16 Report shows that the age of a plant is not a correlated with leakage (see chart17 below). This chart plots the maximum tritium concentration experienced for18 plants with reported historical leaks versus the number of years from the start of19 commercial operation to the time of detection of the maximum tritium20 concentration.
Indian Point, the Entergy "northern" nuclear reactors (i.e. the21 "older" reactors in Mr. Gunderson's testimony),
and the other Entergy plants are22 identified separately from the remainder of the industry:
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL Years from Commercial Operation to MaximumTritium Concentration 20,000,000.
rL 18,000,000 ES16,000,000
-14,000,000 E 12,000,000
.......2 10,000,000
..'U1C *- 8,000,000 0.................................
.... ........
...... .. ........
.... ...........
.... ... .. .. .. ......... .....................................
.... .. .... ...40* Non-Entergy Plants* Indian Point* Other EntergyNorth PlantsA Ahihpr Fntrarm'V123456789101112136,000,000 PlantsnotlnF the North4,000,000 __.2 2,000,000
...... ..o,.0 4 8 12 16 20 24 28 32 36 40 44 48Years from Commercial Operation to Maximum TritiumThis figure provides a basis for two conclusions:
" The first conclusion is that the occurrence of maximum concentration oftritium is not dependent on the age of the plant. Many plants experienced their maximum concentration of tritium with operating times of less thantwenty years.* The second conclusion is that the performance of Indian Point and the otherEntergy plants is not worse than the industry
: standard, and isindistinguishable from the other plants in the industry.
Despite the lack of any evidence that Entergy's "older" plants areexperiencing greater likelihood of leakage just because they are old, Entergy istaking a number of actions by implementing initiatives that will reduce thelikelihood of leakage and will provide greater assurance that any leakage is COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 detected.
These programs include both inspections to accurately determine the2 condition of piping and systems as well as physical modifications that will greatly3 reduce the likelihood of corrosion.
A physical modification that is in the process4 of being implemented is the addition of cathodic protection to selected buried5 piping. Cathodic protection is a method that is used to control the corrosion of a6 metal surface by making it the cathode of an electrochemical cell, basically, to7 transfer a preference for corrosion away from the pipe to another location.
This is8 accomplished by imposing a voltage between the metal to be protected with9 another more easily corroded metal. The result is that the rate of corrosion in the10 metal to be protected is either greatly reduced or eliminated.
For example,11 Entergy is adding cathodic protection to selected piping below ground at lower12 elevations of the plant where the water table is relatively high in comparison to13 the elevation of the buried piping. See Entergy SEP-UIP-IPEC Rev 0 "Indian14 Point 2 & 3, Underground Components Inspection Plan." (Ex. 79).15 Q: On page nine of his testimony, Mr. Gunderson states that: "In September 16 2005, Entergy discovered a crack in the Unit 2 pool and observed seepage of17 water out of the pool. Monitoring of liquid radioactive waste leaks did not18 begin at the Indian Point site until this time." Do you agree that monitoring 19 of liquid radioactive waste leaks did not occur until September 2005?20 A: (MJB) No, this statement is incorrect.
Upon completing the purchase on of the21 Indian Point units in November 2001, Entergy quickly concluded that the22 identified IPI SFP leakage was an issue that could be further addressed with a23 more effective and efficient system. After the previous owner discovered that the COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 IPI SFPs may be leaking to the subsurface and into the North Curtain Drain2 ("NCD") in the early 1990s, the NCD was re-piped to allow its discharge to be3 redirected from the storm drain system to internal storage.
This water was4 monitored, and monitoring indicated that the total release activity was below5 ALARA standards.
In addition, to further monitor this release, additional 6 Radiological Environmental Monitoring Program ("REMP")
sampling was7 implemented along the southern portion of the plant property proximate to the8 Algonquin pipe line.9 While routine monitoring and treatment of the NCD discharge was already10 ongoing and indicated that the discharge complied with regulatory limits, Entergy11 nonetheless decided to do more to address this release.
In 2002, Entergy12 formulated a plan and committed to, among other items, an analysis to validate13 the NCD removal efficiency, and monitoring of the NCD. As part of this plan,14 routine monthly sampling of the NCD, prior to processing, was implemented by15 April 2003, less than 18 months after Entergy assumed full ownership of the16 plant. To further this plan, a separate treatment system was designed, constructed 17 and installed on the NCD, and was fully operational by February 2004. This18 system was proactively implemented by Entergy, even though the release it19 addressed was below regulatory limits. Since it was installed, this system has20 been removing radionuclides captured from the IP 1 SFPs leakage prior to release21 of this water through monitored pathways.
This new system also allowed both the22 influent and effluent radionuclide levels to be routinely monitored on a monthly23 basis. As such, contrary to Mr. Gunderson's statement, Entergy was actively 12345678910S 111213141516171819202122___ 23COMB[NED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL monitoring the groundwater associated with IPI leakage well before 2005. Inaddition, not only was routine monitoring in place before 2005, but Entergy wasalso already capturing and treating the identified leakage.Q: On page 9 of his testimony, Mr. Gunderson states that Entergy's groundwater "monitoring detected elevated levels of cesium, strontium,
: tritium, and other radionuclides well in excess of EPA MaximumContaminant Levels...
[at] hundreds and thousands times EPA limits."
Doyou agree with this statement?
A: (MJB) Mr. Gunderson's statement is misleading.
First, as explained above, Mr.Gunderson wrongly states that the leakage from Indian Point resulted in levels ofradionuclides "in excess of EPA Maximum Contaminant Levels."
EPAMaximum Contaminant Levels ("MCLs")
are for drinking water from defineddrinking water providers.
Indian Point is not a drinking water provider, and noplant-related radionuclides attributable to the Indian Point leakage have affecteddrinking water wells in the vicinity of Indian Point, let alone in excess of EPAMCLs. This has been confirmed by NYSDEC, NYSDOH, and the NRC. SeeNYSDEC 2007 Community Fact Sheet (Ex. 80) ("There are no known impacts toany drinking water sources [from Indian Point leaks]");
NYSDEC 2008Community Fact Sheet (Exh. 46) ("No drinking water sources are effected
[byIndian Point leaks]");
2008 NRC Inspection Report at vii (Exh. 34) ("Currently, there is no drinking water exposure pathway to humans that is affected by thecontaminated groundwater conditions at Indian Point Energy Center. Potablewater sources in the area of concern are not presently derived from groundwater COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 sources or the Hudson River, a fact confirmed by the New York State Department 2 of Health.").
Furthermore, the well data referenced by Mr. Gunderson (which are3 groundwater monitoring wells, and not drinking water wells), has not reached4 levels of "thousands times" EPA limits for drinking water. Ex. AG-Rad-l 1.5 Moreover, these data are taken from the early stages of the investigation, before6 the weld imperfection identified in the IP2 SFP liner was repaired and before the7 IP1 SFPs were defueled and drained.
Current conditions reflect decreasing trends8 in activity as a direct result of the interdiction measures completed by Entergy,9 with the result that Mr. Gunderson's statement is even less correct with respect to10 current conditions.
11 Q: On page nine of his testimony, Mr. Gunderson states that in 2006, the Unit 112 pool 'leak collection system' was found to be "completely failing."
Do you13 agree with this statement?
14 A: (TCE, MJB) No, this statement is incorrect and highly misleading.
As stated15 above, once the IPI SFPs were found to be leaking by the prior owner, the NCD16 and the sphere foundation drain sump ("SFDS")
were modified to monitor and17 collect groundwater and, only as appropriate, release it through monitored 18 pathways.
Shortly after completing the purchase of Indian Point, Entergy19 installed a system to treat the groundwater collected by the NCD. Entergy20 believed that the leak-collection system was adequately capturing the leakage21 from the Unit 1 SFPs until 2006, when it was discovered that some of the leakage22 had bypassed the system (as documented in the Site Investigation Report, Exhibit23 33). By this time, Entergy already had begun the project to empty and drain the 12345678910S 1112131415i6171819202122___ 23COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL Unit 1 SFPs as a proactive
: measure, which was ultimately completed in 2008.While the NCD and SFDS were not fully successful in containing all the leakagefrom the IPI SFPs (as described in Exhibit 33), they did, and currently still do,contain the vast majority of this historical leakage and subsequent residualcontaminant migration.
More specifically, while the IPI SFPs still contained spent fuel and water,the NCD and SFDS were collecting 20 to 40 times more strontium than wasdischarging to the river through the groundwater.
These drains were thenparticularly effective during the period when the water level in the IPI SFPs hadto be raised to allow defueling.
During this period of time, the two drains werecapturing nearly 300 times as much strontium as was discharging to the riverthrough the groundwater.
In addition, even now that the IPI SFPs have beenemptied and are no longer a source of releases, these collection drains are stillserving to capture residual contamination partitioning off of the subsurface materials into the groundwater.
Currently, the NCD and SFDS drains are stillcapturing approximately ten times as much strontium as is discharging to the riverthrough the groundwater.
As such, these drains function as a valuable ongoingsource control portion of the Monitored Natural Attenuation at the Indian Pointsite, and routine sampling and analysis of their discharge is incorporated into theLong-Term Monitoring Program.Q: On pages 9-10 of his testimony, Mr. Gunderson states that "leaks from theUnit 2 refueling pool have also been a substantial problem."
Do you agreewith this statement?
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 A: (TCE, MJB) No. Mr. Gunderson's statement, and the out-of-context email cited2 in support of it, implies that the Unit 2 refueling pool has been a source of the3 leakage to groundwater that has occurred from the Unit 2 SFP. This is not the4 case. The email referred to in Mr. Gunderson's testimony is associated with5 leakage that has occurred from the Containment Reactor Refuel Cavity. This is a6 structure that is located entirely within the Unit 2 Containment
: building, and is7 not part of the SFP or the building in which it is contained.
The Reactor Refuel8 Cavity is flooded with water each time the reactor is refueled, approximately for9 two weeks every two years. Leakage from the Reactor Refuel Cavity is collected 10 within the Containment structure, without release to the environment, and11 appropriately processed.
The Containment structure is constructed with walls that12 are approximately 4.5 feet thick of reinforced concrete with a steel liner. The13 basement of the containment incorporates a steel liner that is 0.25 inches thick,14 embedded three feet below the reinforced concrete floor, with an additional nine15 feet of reinforced concrete below the steel liner. The combination of the16 Containment drainage collection system and construction configuration of the17 Containment Structure is designed to ensure that any resulting leakage that occurs18 from the Reactor Refuel Cavity during the short period of time it is flooded is19 contained and is appropriately processed.
20 Q: On page 10 of his testimony, Mr. Gunderson states that "a buried pipe leak21 in 2009 resulted in more than 100,000 gallons of tritiated water being22 released to the Hudson River." Do you agree with this statement?
23 A: (TCE, MJB) Mr. Gunderson's statement is misleading.
In February
: 2009, COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 Entergy did identify a leak in an 8-inch diameter buried piping line at Indian Point2 Unit 2. This pipe returned water from the Condensate System pump discharge 3 and the Auxiliary Feedwater
("AFW") Pump discharge recirculation lines to the4 Condensate Storage Tank ("CST").
The leakage resulted in water containing low5 levels of tritium reaching the subsurface beneath the site, but that water was not6 released directly to the Hudson River as Mr. Gunderson claims. The cause of the7 pipe leak was attributed to external corrosion of the pipe at a location where the8 corrosion protection covering on the pipe was damaged during initial9 construction, combined with the water table elevation being at approximately the10 same elevation as the pipe. See Entergy Root Cause Analysis Report CR-IP2-11 2009-00666 (Ex. 81).12 While the total amount of leakage from the pipe cannot be determined 13 accurately, using the reference sources identified by Mr. Gunderson, an14 estimation of approximately 100,000 gallons is reasonable.
: However, what Mr.15 Gunderson fails to state is that the water contained in this pipe had very low16 concentrations of tritium.
A review of sample analysis performed by the Entergy17 chemistry department of the leaked water identified varying levels of tritium, with18 the maximum value of the tested samples of 2,700 pCi/l, and with many other19 samples being significantly lower than this recorded value. As such, the release20 of tritium from this event is an extremely small value in comparison to Entergy's 21 permitted
: releases, and as a result had insignificant affect on the health and safety22 of the public or the environment.
23 Moreover, as set forth in greater detail above, to preclude reoccurrence of COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I such an event in the future, Entergy is currently in the process of installing 2 cathodic protection to protect certain buried piping from external corrosion.
See3 IPEC SEP-UIP-IPEC, Rev 0 "Indian Point 2 & 3 Underground Components 4 Inspection Plan." (Ex. 79).5 Q: On page 10 of his testimony, Mr. Gunderson states that "a crack in a6 condenser blowdown line in 1988 resulted in 8400 gallons of contaminated 7 water leaking into the Hudson River." Do you agree with this statement?
8 A: (TCE, MJB) Mr. Gunderson's statement is misleading.
In March 1988. Indian9 Point Unit 2's prior owners determined that a leak in the Refueling Water Storage10 Tank ("RWST")
heating coil had allowed approximately 8400 gallons of RWSTII water to drain from the tank into the house service boiler system over a period of12 approximately 90 hours. Again, contrary to Mr. Gunderson's testimony, water13 did not leak into the Hudson River. Rather, this water drained into the house14 service boiler system, which eventually discharges into the discharge canal, is15 monitored, and is released pursuant to Indian Point's NRC license.
The former16 owner of the plant calculated the total activity released to the river to be17 approximately 0.028 curies. This is less than 0.01% of the Maximum Permissible 18 Concentration
("MPC").
This level of radioactivity is well within the limits of19 what Indian Point is routinely allowed to release.
See May 13, 2008 NRC20 Inspection Report at 4 (Ex. 34).21 Q: On page 11 of his testimony, Mr. Gunderson says that "Indian Point is more22 susceptible to washout which results in radioactive rain falling on landscape 23 and directly into Hudson River (i.e., clouds of tritiated water migrating COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I offsite and depositing tritium into the Hudson River)."
Do you agree with2 that statement?
3 A: (MJB, FOH) The term "washout" is simply a term that describes the natural result4 of mixing warm effluents and cooler air or rain. It is not a unique process to5 Indian Point or to radioactive effluents, and Indian Point is no more susceptible to6 this natural phenomenon than other facilities.
At Indian Point, washout can occur7 when small fraction of airborne tritium is condensed and removed from the air. It8 is useful to put this condensation into perspective relative to the overall effluent9 monitoring and dose limitation requirements.
In accordance with NRC10 regulations and guidance, Indian Point monitors a number of liquid and gaseousI I radioactive effluent pathways.
The concentration and the dose to an individual in12 the environment are generally too low to be detected; therefore, it is necessary to13 measure it at the effluent source prior to dilution.
NRC requires detailed14 calculations estimating the dose based on the effluent concentrations onsite. See15 USNRC Regulatory Guide 1.21, Regulatory Guide 1.109, NUREG-1301.
These16 calculated levels are subject to dose limitations contained in 10 CFR 50,17 Appendix I, as follows:18
* Liquid Effluents (dose to a hypothetical offsite individual):
19 o 3 mrem/year whole body dose20 o 10 mrem/year highest organ dose21
* Gaseous Effluents (dose to an offsite location where a member of the22 public may be present):
23 o 5 mrem/year whole body dose COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL o 15 mrem/year skin dose2 Tritium in liquid effluents is monitored and/or accounted for from monitor tank3 discharges and other similar planned releases, groundwater, and storm drains.4 Airborne effluents include releases from the ventilation systems from plant5 buildings and releases from steam generator blowdown.
The liquid and gaseous6 releases are converted into dose values by methods described in the Offsite Dose7 Calculation Manual ("ODCM"),
which is consistent with NRC guidance (USNRC8 Regulatory Guides 1.21 and 1.109, and NUREG- 1301). Tritium is included in the9 gaseous dose calculation.
In addition, the tritium condensed will be detected in10 storm drains and will be added to any dose from storm drain effluent estimates.
11 This may result in conservative double counting of the activity (accounted in12 gaseous effluents, then recounted in storm drains).
In any case, the total dose13 from all liquid releases is less than 1% of the 3 mrem/year whole body limit. The14 table below shows the doses from the 2010 Annual Radiological Environmental 15 Operating Report. The amount attributable to the condensation/washout 16 phenomenon is a small fraction of the liquid effluent dose.172010 IPEC LiquidNatural Background Effluent Limit Effluent Whole BodyType of Release (mrem/yr)
(mrem/yr)*
Dose** (mrem/yr)
Liquid 310 3 0.0032*Effluent Limits are the IOCFR50 Design Objectives, which are de facto NRC limits, and they areapplicable per unit; however, for purposes of this table, it is conservatively shown as a site limit.18 ** Sum of all units, all liquid pathways COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I Q: On page 13 of his testimony, Mr. Gunderson states the "level of2 [groundwater]
contamination will likely remain high for the foreseeable 3 future."
Do you agree with these statements?
4 A: (MJB) No. Contrary to Mr. Gunderson's misleading characterization, the5 "current" state of radionuclides in groundwater is not "high." In the context of6 evaluating a leak, a "high" level of contamination is best understood as one that7 has a negative effect on human health or the environment.
As set forth in detail in8 the initial pre-filed testimony of Dr. Hoffman, the radiation dose and impact on9 the environment from Entergy's groundwater contamination has always been10 extremely low. Mr. Gunderson alludes to "the breadth and extensive nature of the11 contamination" in reference to the plumes presented in the figures in Entergy's 12 quarterly groundwater reports.
As explained in these reports, the tritium plume13 boundary3 (i.e., the plume shading in Figure 6A of Exhibit 40), demarks the14 estimated boundary that separates tritium levels greater than 5,000 pCi/L from15 those below this value, a level of one-quarter the drinking water standard.
Two16 portions of this overall figure, which shows plume attenuation over time, are17 excepted and included below. As shown, the tritium plume boundary no longer18 even extends to the river.We focus here on the tritium plume boundary because the Unit 2 SFP leakage was the principal source of the tritium plume, and did not contribute to the strontium plume. I understand from counselthat the present proceeding concerns the continued operation of Units 2 and 3, and does not concernUnit 1.
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL TRITIUM PLUMEInvest. Data Thru 8Ecerpted from Fig 6A, Exhibit 40Ful figure indudos multesn tahpehot showing plumOvO( tifne aflor t wlinsiuonl of WdnuMtWrt Wake1n7'"!22....9.''.*p :~"'.'~ I4'*UNIT Itu -I5,000 pCiLPlume BoundaryAjKu7~I HtDSOIo..="I.-.~ ~-ft,' ~.5-2*I ~ -I ~;f& 5.ii ...*,.a-I,-5..2*IL-t-14,1*.1I.Ic~V RIVERI COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, Pli.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PI.DRADIOLOGICAL TRITIUM PLUMEQ2 -2010Excerpted from Fig GA. Exhlbit 40fijr* ir oudes mullp4 mnapshost showuo plum* deaeas.ov'r mae afitr t oWtron ct oaIf, L..ksA UNIT 1* .... ..I. -UNIT 2 tU ~Plume BoundaryI HUDSON RIVEU?-4II.HU.SON RIVER' ..,.2,,,n
; -..;
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I Further, viewing both the tritium and strontium groundwater radionuclide 2 plumes in terms of their potential impact on the public health and the environment 3 demonstrates just how incorrect it is to claim that the contamination is "high." As4 shown on the figure below, the total dose from all sources released to the Hudson5 River from unplanned releases in 2010 was only two ten-thousandths (0.0002) of6 a single mrem. This is only 5 percent of the dose associated with radionuclides 7 released as part of normal plant operations.
The vanishingly small potential 8 impact of the groundwater release is stark when contrasted to the NRC permitted 9 dose level; the potential groundwater dose impact is less than 0.01% of the NRC10 permitted dose as set forth 10 CFR Part 50, Appendix
: 1. Finally, it is most11 important to recognize that even the NRC permitted level is less than one percent12 of the level experienced by the general public due to natural background exposure13 during every day activities.
As such, the potential exposure due to Indian Point14 radionuclides in groundwater is an insignificant fraction of natural background 15 radiation
: exposure, as shown in the following figure:
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL Annual Dose (mrem/yr whole body320 r-....240200-120100803 0.0032 0.0002Natural NRC Effluents 10 EPA-40 CFR 190 NYSDEC DHSM NRC Design ObJf IPEC Uquld IPEC Ground &Background CFR 20 RADO-O5-10CFRSO App. F Effluents Dose Storm Water DoseLiquid 2010 -201012345678910Finally, the actual current levels of radionuclides detected in thegroundwater monitoring wells beneath the Indian Point site have shown dramaticdecreases since the groundwater investigation began in 2005 (as shown in the twographs below and further discussed in Exhibit 40 "Plume Total Activity
: Analysis, pp. 3-19), with the result that the initially low levels of tritium and strontium inthe plumes have decreased even further in response to the interdiction measuresimplemented by Entergy.
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL
°''
PLUME AC'TIVITY OVER TIME 89% Reduction "0.12.0."0 ........................
.+.. .-.-........
..No.% NoV-0* Nov.7 NovAs Nov.09 Nov-O N<ov-ISTRONTIUM PLUME ACTIVITY OVER TIME70% Reduction o0.0012 a Uppr Eatitow Lower UEmttiu00001000"s3700006. 4200000..'
Oct-OS Apr-" Oct.11 Apl-L0 00+/-0 Apibr-t Oct 122 Q: On page 13 of his testimony, Mr. Gunderson quotes from a GZA3 groundwater monitoring report that "approximately 70% of the sampling4 intervals exhibited an increase in Tritium levels."
Can you provide context5 for this quoted language?
6 A: (MJB) Yes. First, by quoting this statement out of context, Mr. Gunderson gives7 the impression that the current groundwater tritium plume is increasing.
In fact,8 the opposite is true. The 2010 Second Quarter Groundwater Monitoring Report9 referred to by Mr. Gunderson in his testimony, in discussing the "Unit 2 Tritium10 Plume Attenuation,"
concludes:
"Based on the data and analyses provided11 above, our conclusion is that the Tritium plume associated with the historic Unit 212 SFP leaks is undergoing
: overall, long-term reductions in activity which are COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I consistent with Monitored Natural Attenuation (MNA), the remedial technology 2 selected for the IPEC Site." See Report at pp. 3-22 (Ex. 40).3 More specifically, while Mr. Gunderson quotes from the cited report that:4 "approximately 70% of the sampling intervals exhibited an increase in tritium5 levels,"
the report clearly states that this short term increase was as a result of an6 inadvertent mobile skid spill by a subcontractor (described more fully at pp. 10-1 17 of Mr. Barvenik's initial pre-filed testimony) and is not associated with the Unit 28 SFP or any other in-place system, structure, or component.
As the Report9 concludes:
"As such, the increase in total Tritium activity is likely to be transient 10 in nature, as was the surface spill [mobile R. 0. skid]. However, even accounting 11 for this current peak, the total Tritium activity in the plume has still decreased 2812 percent since Q2 2007, and has decreased by 86 percent when compared to the13 bounding level [concentrations at start of monitoring]
Tritium concentrations."
14 Id. pp. 3-19.15 Q: At several points in his testimony, Mr. Gunderson states that Entergy does16 not have adequate aging-management methods in place in order to be able to17 detect and prevent future leaks. Do you agree with this assessment?
18 (TCE, MJB) No. In fact, Entergy has developed and is implementing aging-19 management programs that include, among other things , inspecting the highest20 priority buried and underground piping and tanks at Indian Point. The Entergy21 Underground Piping and Tanks program was developed to ensure that the22 systems, structures, and components with the greatest potential for leakage to the23 environment are given top priority.
Other potential sources of radionuclides COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 gaining access to the subsurface, e.g., from leaks in above ground storage tanks,2 have also been identified and included in the program.
The prioritization leads to3 a direct examination of selected piping and tanks to determine the condition based4 on a direct examination of the component and the coating.
In many cases, this5 requires excavation of the piping. The potential for leaks from buried piping will6 be significantly reduced by the continuing implementation of Entergy's programs.
7 Active monitoring of wells will also be ongoing to provide notice of any increase8 in releases to groundwater.
Entergy's aging-management programs coupled with9 ongoing monitoring will be effective in reducing the likelihood of leaks and to10 assure that any leaks are detected so as to prevent any harm to the off-site11 environment.
Furthermore, Entergy's aging-management
: programs, which are12 subject to regulation by the NRC, are being reviewed in connection with13 Entergy's federal relicensing proceeding.
14 Q: Mr. Gunderson states that Monitored Natural Attenuation "is not a valid15 remedial approach."
Do you agree with this statement?
16 (MJB) No. In direct contrast to Gunderson's statement, Monitored Natural17 Attenuation
("MNA") is a recognized and proven remedial approach that allows18 natural processes to reduce contaminant concentrations.
EPA has long recognized 19 MNA as an appropriate remedial approach to reduce contaminant concentrations.
20 EPA's guidance on the use of Monitored Natural Attenuation (MNA), OSWER21 Directive 9200.4-1 7P, states that:22 "The term 'monitored natural attenuation,'
as used in this Directive, 23 refers to the reliance on natural attenuation processes (within the COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I context of a carefully controlled and monitored site cleanup2 approach) to achieve site-specific remediation objectives within a3 time frame that is reasonable compared to that offered by other more4 active methods.
The 'natural attenuation processes' that are at work5 in such a remediation approach include a variety of physical, 6 chemical, or biological processes that, under favorable conditions, 7 act without human intervention to reduce the mass, toxicity, 8 mobility, volume, or concentration of contaminants in soil or9 groundwater.
These in-situ processes include biodegradation; 10 dispersion; dilution; sorption; volatilization; radioactive decay; and11 chemical or biological stabilization, transformation, or destruction of12 contaminants."
(Ex. 82 at p. 3).13 OSWER Directive 9200.4-17P also states that: "EPA advocates using the14 most appropriate technology for a given site. EPA does not consider MNA to be a15 'presumptive' or 'default' remedy-it is merely one option that should be16 evaluated with other applicable remedies.
EPA does not view MNA to be a 'no17 action' or "walk-away"
: approach, but rather considers it to be an alternative 18 means of achieving remediation objectives that may be appropriate for specific, 19 well-documented site circumstances where its use meets the applicable statutory 20 and regulatory requirements."
Id at 1.21 Moreover, also contrary to Mr. Gunderson's statement, NYSDEC22 specifically endorsed M`NA as the appropriate remedial approach for addressing 23 the tritium and strontium plumes: "With the removal of the active contamination COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 source, Entergy's planned use of monitored natural attenuation is an acceptable 2 approach to managing the remaining Sr-90 and H-3 plumes."
See NYSDEC3 Community Fact Sheet (Ex. 32).4 Q: Does GZA continue to believe that Monitored Natural Attenuation is the5 correct remediation strategy for Indian Point's groundwater contamination?
6 (MJB) Yes. GZA selected, and continues to recommend, Monitored Natural7 Attenuation as the remediation strategy for Indian Point because:8 0 Interdiction measures to date have eliminated and/or controlled the9 identified active sources of groundwater contamination.
10
* Groundwater flow at the Site precludes off-Site migration of contaminated 11 groundwater to the North, South or East.12 0 Consistent with the Conceptual Site Model, no Indian Point contaminants 13 have been detected above regional background in any of the off-Site14 monitoring locations or drinking water supply systems in the region.15 0 The only on-Site exposure route for the documented contamination is16 through direct exposure.
Because the majority of the Site is capped by17 impermeable
: surfaces, there is no uncontrolled direct contact with18 contaminants.
19 9 Our studies indicate that under existing conditions, the spatial extent of the20 groundwater plume should continue to decrease with time. Overall21 decreases in the plume have been observed since the original22 recommendation for MNA was made.
COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 Groundwater is not used as a source of drinking water on the Site or in the2 immediate vicinity of the Site, and there is no reason to believe that this3 practice will change in the foreseeable future.4 At the locations where contaminated groundwater discharges to the Hudson5 River, the concentrations have been, and will continue to be, reduced by sorption, 6 hydrodynamic dispersion,
: dilution, and radioactive decay. As set forth in my7 initial pre-filed testimony, and in the pre-filed testimony of Dr. Hoffman, given8 the extremely small dose to the public and aquatic organisms resulting from the9 unplanned
: releases, the use of MNA will provide reasonable assurances that10 Entegy's unplanned releases will comply with New York water quality standards I and other applicable law.12 IV. Rebuttal to Testimony of Mr. Kolakowski 13 Q: On page 11 of his testimony, Mr. Kolakowski claims that the radionuclides 14 that have reached the Hudson River from groundwater as described in15 GZA's 2008 Site Investigation Report are "high-level radioactive waste," and16 that their discharge is proscribed by law. First, do you agree that the17 radionuclide releases described in GZA's 2008 Site Investigation Report are18 "high-level radioactive waste" as that term is defined in ECL &sect; 17-0807?19 A: (FOH) No. ECL &sect; 17-0807, which is part of New York State's legislation 20 implementing SPDES, prohibits "the discharge of any radiological, chemical or21 biological warfare agent or high-level radioactive waste, as such terms are defined22 by the Act or pursuant thereto."
As set forth in ECL &sect; 17-0801, "the Act"23 referred to in &sect; 17-0807 is the federal Clean Water Act. The federal Clean Water COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I Act has an identical provision, which prohibits any permit from authorizing the2 discharge of high-level radioactive waste. See 33 U.S.C &sect; 1311. While the Clean3 Water Act does not define "high-level radioactive waste," EPA regulations define4 "high-level radioactive waste" according to the definition contained in the5 Nuclear Waste Policy Act of 1982. See 40 CFR 191.02(h)
("High-level 6 radioactive waste, as used in this part, means high-level radioactive waste as7 defined in the Nuclear Waste Policy Act of 1982 (Pub. L. 97-425)").
The8 Nuclear Waste Policy Act defines "high-level radioactive waste" as:9 "(A) the highly radioactive material resulting from the10 reprocessing of spent nuclear fuel, including liquid waste produced11 directly in reprocessing and any solid material derived from such12 liquid waste that contains fission products in sufficient 13 concentrations; and14 (B) other highly radioactive material that the Commission, 15 consistent with existing law, determines by rule requires16 permanent isolation."
17 42 U.S.C. &sect; 10101(12).
The water containing principally tritium and strontium 18 identified in GZA's 2008 Site Investigation Report is not "high-level radioactive 19 waste" as that term is defined by law.20 Q: While Entergy believes that NYSDEC's legal position that Entergy's 21 unplanned radionuclide releases are proscribed by law is erroneous, are22 there measures that could be taken during the license renewal term to23 provide reasonable assurances that groundwater containing these COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I radionuclides will not reach the Hudson River?2 A: (MJB) Yes. As set forth in my initial prefiled testimony, the Indian Point site is3 primarily underlain by bedrock.
As such, the volume of groundwater moving4 beneath the site toward the Hudson River is constrained to flow through relatively 5 thin fractures in the bedrock.
This, in part, accounts for the small total6 radionuclide activity actually reaching the Hudson River from groundwater on an7 annual basis. Further, as demonstrated in the Site Investigation Report (Ex. 33).8 the groundwater containing the identified tritium and strontium plumes discharges 9 to the river through a relatively small section of waterfront along the perimeter of10 the site.11 Based on my knowledge of the Indian Point site hydrogeology, and my12 experience with groundwater remediation, I have performed an analysis of13 possible measures that could be taken to prevent these radionuclides from14 reaching the Hudson River. Based on that analysis, I have concluded that Entergy15 could install a sufficient number of groundwater extraction wells so as to contain16 these radionuclides on-site by establishing a groundwater gradient reversal.
A17 gradient reversal in this context refers to a change in the direction of groundwater 18 flow; rather than the current flow from the site to the Hudson River, the extraction 19 wells would result in groundwater flowing from the Hudson River toward the20 wells located on-site.
Entergy would then extract the groundwater containing 21 radionuclides from the subsurface, and process that groundwater in an appropriate 22 manner. I believe that the installation of such extraction wells would provide23 reasonable assurances that groundwater containing these radionuclides will not COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I reach the Hudson River as a result of the operation of Indian Point during the2 license renewal term.3 Q: Are extraction wells a proven, reliable method for creating a gradient4 reversal in order to prevent groundwater containing contaminants from5 moving away from a site?6 A: (MJB) The use of extraction wells specifically to prevent groundwater from7 moving away from a site is, and has been a commonly employed technique for8 approximately 40 years, including at EPA superfund sites, as well as many other9 non-superfund sites. In its Report No. 2003-P-000006 dated March 27, 2003,10 EPA concluded that: "Pumping contaminated groundwater from the subsurface and11 treating the water to rid it of contamination has been a generally accepted means of12 remediation in the Superfund program.
In January 2002, EPA reported that although13 the number of Records of Decision selecting the pump-and-treat remedy decreased 14 from 92 percent in 1986 to 30 percent in 1999, pump-and-treat remedies are still the15 most common groundwater cleanup remedies used at National Priority List [NPL]16 sites. ...EPA estimates that over 700 groundwater pump-and-treat systems are17 operating at National Priority List sites." (Ex. 83). This equates to the use of18 groundwater extraction for containment and/or cleanup at 57 percent of the NPL sites19 (700/1233).
In this regard, I have been personally involved in the investigation 20 and remediation design for a number of superfund sites, as well as state-led 21 remediation sites, employing this technique, beginning in the 1970s. One such22 site, Grace Chemical and the Town of Acton, Massachusetts, was the second EPA23 NPL enforcement action in the nation resulting in a remedial action consent COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I decree. Another such site, the Gilson Road/Sylvester Site, was the nation's first2 cooperatively funded Superfund hazardous waste site hydrodynamic 3 isolation/cutoff wall remediation.
As part of this remediation of chlorinated 4 solvents in groundwater, GZA used extraction wells to capture and contain the5 contaminated groundwater flowing through the bedrock on site. This work was6 completed on behalf of the State of NH and the EPA. In recognition of this work,7 GZA was awarded the ASCE Outstanding Engineering Achievement Award, the8 ACEC New England Grand Conceptor Award and the National ACEC Grand9 Award for Engineering Excellence, as well as a $250,000 sole-source R&D full-10 scale test section contract by EPA.1112 END OF TESTIMONY NYS Department of Environmental Conservation.
Community Fact SheetPrepared for the 9/19/07 NRC Relicensing Environmental Scoping Meeting forIndian Point Energy CenterIIie. .--.. IIf you would like more information
* about.the DEC or DOH activities..
i:relative to the groundwater
--investigations at Indian Point pleasecontact one of the .representatives I listed below.Groundwater Investigation The New York State Department of Environmental Conservation (DEC). and the New York StateDepartment of Health (DOM) have been participating in the ongoing groundwater investigation ofradionuclide contamination in groundwater under the plant, and the release of that water to theHudson River. The purpose of our involvement is to protect the interests of the citizens and theenvironment of the State of New York by helping to ensure that Entergy performs a timely,comprehensive characterization of site groundwater contamination, takes appropriate actions toidentify and stop the sources of the leak, and undertakes any necessary remedial actions.Mr. Tim RiceEnv. Radiation Specialist, Project LeadNYSDEC*Div. of Solid & Hazardous Materials 625 Broadway
.., ..Albany. NY 12233-7255 (518) 402-8579 Mr. Larry Rodn-mann Engineering G4logistNYSDECDiv. of Solid & Hazardous Materials 625 BroadwayAlbany, NY 12233-7258 (518) 402-8594larosenm@gw.dec.state.ny.us
.!r. Robert Snyder *" "
Specialist
...,BureauWof Env. RadiatbionProtection
*60 River Street:Troy. NY- 12180(800)458-1158 ext. 27550BERP@health.state.ny us* Background/History.
Theilndian Point Energy Center is a-nddalr energy powered electrical ge n tiegstation located in'tuhan: -NY. It is wholly owned byEntergy Nucear. There are threecommerCial reactors on the pr6perty.
Unit. I stopped operation in the 1.970sand is currently maintained In~ari un-fueled state pending.,.
.* .:.decommissioning.
Spent.fuel.still remains in storagein the spent'fuel Pool:. Units.2 & 3 continue togenerate electricity.
Ehtergyhas
* applied to the Nuclear Regulatory
'Commission (NRC) to renew its:operating license for both operating Units for an additional 20 years.The investigation of the leaks from.the Unit 1 & 2 spent fuel pools intogroundwater oni-site is nearing;.completion..
Entergy is performing ther!vestigation under the direct*egulatoryauthority of the NRC, with* tate review provided by DEC andSDOH.GeneralIn 2005 Entergy waspreparing to install a newcrane at the Unit 2 SpentFuel Pool (SFP) to supportits dry cask spent fuelstorage operation.
Duringthat work, Entergydiscovered water leakingfrom a crack in the exteriorof the concrete SFP wall.The subsequent investigation identified tritium *(radioactive hydrogen or H-) contamination ingroundwater on-site comingfrom the vicinity of the Unit2 SFP and radioactive Strontium-90 (Sr-90) andother isotopes coming fromthe Unit 1 SFP.Entergy hired a hydrology contractor who, withinvolvement from the NRC,USGS, DEC, and DOH,determined that there weretwo active groundwater plumes on site;-a H-3 plume coming fromthe Unit 2 SFP, and-a Sr-90 plume coming formthe Unit 1 SFP.State Activities
* Collecting split samples ofwater from on-site and off-site monitoring wells,focusing on wells alongthe riverfront and to thesouth of the sources of theleaks,* Recommended thatEntergy enhance itsHudson River fishsampling program thisyear to help answerquestions regarding potential Sr-90 impacts.* Collected split samples offish flesh from thisenhanced effort, as well asunilaterally analyze bonesamples.* Analyzing samples at theDOHWadsworth Centerpublic health laboratory.
Compare results withEntergy's.
* Participating in andprovide recommendations on the hydrology investigation into.theextent and movement ofcontaminated groundwater on the site, including independent review ofcontractor work.4! Performed an independent assessment of potential public health impacts..Participating in periodicstakeholder calls andmeetings.
Key Findings to Date" There are no residential ormunicipal drinking waterwells or surface reservoirs near the plant.* There are no knownimpacts to any drinkingwater source." No contaminated groundwater is movingtowards surrounding properties.
" Contaminated groundwater is moving into the HudsonRiver." Public exposure can occurfrom the groundwater entering the Hudson Riverthrough consumption offish.* The DOH has confirmed Entergy's calculated doseto humans from fish." Sr-90 levels in fish nearthe site (18.8 pCi/kg) areno higher than those in fishcollected from background locations across the state." Recent Sr-90 data in fish islimited.
(New samples arebeing analyzed.)
Ongoing Activities
* Coordinate an enhancedfish sampling effort." Continue to participate inpublic communication activities.
" Continue to monitorEntergy's progress ondetermining the source ofthe Unit 2 H-3 plume." Participate in the finalassessment of groundwater conditions on the site.* Evaluate any plans for leakrepairs or site remediation.
" Continue to provide anindependent source ofinformation for thecounties and otherinterested parties on topicsrelated to the groundwater investigation.
* Evaluate Iong-term momtonng plans..
Ia a a- 0 a*ujEnhanced Fish SamplingDEC and DOH worked withEntergy and the NRC to developthis year's enhanced fish samplingeffort. The intent is to meet thesethree goals: 1. develop a morescientifically rigorous samplingprogram,
: 2. evaluate thelappropriateness of Entergy's environmental background (control)
: location, and 3. perform a thoroughevaluation of this potential humanexposure pathway.
To accomplish this:Sampling focused on speciesthat do not migrate oversignificant distances in the riverand are expected to be presentat all sampling locations, or areof commercial or recreational importance, including stripedbass, blue crab, carp, whiteperch, American eel, catfish,and sunfish." Samples were collected fromthe area near Indian Point, theexisting upstream control area.near Roseton, and from far-upstream near the Village ofCatskill.
(see map)* Samples of edible portions ofeach species at each locationare being analyzed by NYS,NRC, and Entergy.* Bone samples are beinganalyzed by NYS.* Both flesh and bone are.being analyzed for Sr-90 and gammaemitting radionuclides.
* NYS will review thedata toassess the currentenvironmental monitoring
: program, and to evaluate anypotential impacts to publichealth and the environment.
Fish Results to DateNRC fish results have beenreceived and show no detectable Sr-90 or gamma emitters.
Entergy andState analyses are not yet available from our respective labs, but will be.reported to stakeholders whenreceived.
Regulatory Authority The federal government regulates the use of radioactive materials atIndian Point under the federalAtomic Energy Act.At present, there are no off-sitegroundwater
: impacts, and releasesof contaminated groundwater to theriver do not violate state surfacewater standards for H-3 (20,000pCi/l) and Sr-90 (8 pCi/l).Remedial ActionsTritiumBecause tritium (H-3) is actually anisotope of hydrogen, it is notfeasible to remediate H-3contaminated groundwater otherthan by removing the source ofcontamination.
Entergy hasidentified a leak in a portion of theUnit 2 SFP (a probable source ofthe H-3 plume) and will repair thisleak (and any others discovered) after completion of its inspection ofthe stainless steel liner.Strontium Unlike H-3, Sr-90 contamination can be removed from water throughreadily available treatment processes.
Entergy has reduced thesource of the Sr-90 plume by >97%through operation of a watertreatment system in the Unit 1 SFP.This has resulted in measurable reductions in Sr-90 groundwater concentrations.
The company hasalso agreed to remove the spent fueland remaining contaminated waterfrom the'Unit I SFP in 2008,stopping the contamination source.The agencies will be monitoring theprogress of these sourceremediation efforts closely and willbe reviewing and commenting onthe final site hydrology report andlong-term monitoring plans Entergyis anticipated to finalize in the nextcouple Of month. Ask S a S a a a aw U I IOU U pg pg a640 620 mrom560480400320 NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
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.. .. ..In the Matter ofEntergy Nuclear Indian Pont 2. LLC, EntergyNuclear Indian Point 3. LLC, and EntergyNuclear Operations, Inc.'s Joint Application for CWA &sect;401 Water Quality Certification DEC App. Nos.3-5522-00011/00030 (IP2)3-5522-00105/00031 (IP3)PROPOSED FINDINGS OF FACT OFENTERGY NUCLEAR INDIAN POINT 2. LLC, ENTERGY NUCLEAR INDIANPOINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS.
INC.RADIOLOGICAL ISSUESENTERGY NUCLEAR INDIAN POINT 2, LLCENTERGY NUCLEAR INDIAN POINT 3, LLCENTERGY NUCLEAR OPERATIONS, INC.By Their Attorneys, John C. Englaocder, Esq4.Elise N. Zoli. Esq.William J. Trach. Esq.Robert H. Fitzgerald, Esq.GoodwiniProcter I.,LPExchange PlaceBoston. MA 02109-2881 (617) 570-1000Dated: April 27, 2012 TABLE OF CONTENTS1. Nuclear Regulatory Commission
("NRC') Regulation of Indian PointPlanned and Unplanned Radiological Discharges
....................................................
I11. The Indian Point Site .........................................................................................................
1111. Unplanned Releases of Radiological Materials at Indian Point ....................................
2IV. Enter "'s Corrective Actions ....................................................................................
15V. Entergy's Long Term Monitoring Program ............................................................
17VI. Monitored Natural Attenuation
..................................................................................
19VIL. WQC Process ..............................................................................................................
21VIII. Hearing Testimony
....................................................................................................
24A .W itnesses
........................................................................................................
24B. Compliance with Applicable Dose Limits ......................................................
29C. Absence of Impacts to the Best Usages of the Hudson River ................................
32D. Inapplicability of ECL &sect; 17-0801(L) and 6 NYCRR &sect;750-1.3(a)
.....................
40E. Inapplicability of ECL &sect; 17-0801(4)
.............................
40F. Inapplicability of ECL &sect; 17-0501 as a separate basis for the Notice ................
40G. Inapplicability of EPA's Safe Drinking Water Standards
...............................
41i
!. Nuclear Regulatory Commission
("NRC") Regulation of Indian Point Planned andUnplanned Radiological Discharges.
: 1. Indian Point Units 2 and 3 have operated pursuant to 40-year licenses issued bythe Nuclear Regulatory Commission
("NRC") vith nominal expiration dates of September 28,2013 and December 12, 2015. respectively, subject to renewal.
Entergy Ex. #161,1 JointApplication Form, Supplemental Response to Item 9.2. Operations at Units 2 and 3 result in "planned" or routine releases ofradionuclides incident to everyday operations, as well as "unplanned" or non-routine discharges that occur as a result of operational occurrences such as leaks or spills. Hoffman Prefiled at 9.23. Both planned and unplanned releases are subject to NRC regulation and oversight.
Hoffman Prefilcd at 9; NRC Regulatory Guide 1.21 (Measuring, Evaluating, and Reporting Radioactive Material in Liquid and Gaseous Effluents and Solid Waste) at &sect;&sect; .5 (Monitoring Leaks and Spills) and 1.10 (Abnormal Releases and Abnormal Discharges);
NRC Policy Issue,"'Senior Management Review of Regulatory Approach to Groundwater Protection,"
SECY-I I-00 19. Feb. 9. 2011, Enclosure 2 at p. 2; Entergy Ex. #32 at vii; Riverkeeper Ex. #7 at 4-9.4. The New York State Department of Environmental Conservation
("NYSDEC")
has never regulated Indian Point's radiological releases through the State Pollutant Discharge Elimination System ("SPDES")
permit program, but rather consistently has maintained that ithas no authority to do so. Entergy Ex. #120. at 90-91.IL. The Indian Point Site5. The Indian Point Energy Center is located on the eastern bank of theHudson River, in the Village of Buchanan.
in upper Westchester County. New York. EntergyElx. #161. Att. A and B.References to record exhibits are cited "'Party Namel Ex...Rcferenccs to prefiled testimony are cited "[Witness Name] Prefited atI
: 6. IPEC consists of three nuclear reactors and associated equipment, referred to asUnits 1, 2 and 3. Hearing Tr. at 2699 (Kolakowski) 3; Entergy Ex. #33 at 2.7. Unit I ceased operations in October 1974 and is currently in safe storagecondition
("SAFSTOR").
Kolakowski Prefiled at 10. Hearing Tr. at 2709 (Kolakowski);
Barvenik Prefiled at 8. Entergy Ex. #33 at 129; Entergy Ex. #34 at &sect;4.0.1 (Report Details).
: 8. Indian Point does not utilize groundwater either tbr plant operations or for potablewater. Entergy Ex. #33 at 13.9. There are no active potable water wells or other production wells in the vicinity ofIndian Point. Entergy Ex. #33 at 13-14.10. In the vicinity of Indian Point, the Hudson River is not used for drinking waterpurposes.
Entergy Ex. #46.H I. Drinking water in the area surrounding Indian Point is supplied from surfacewater reservoirs located in Westchester County and the Catskills region. Entergy Ex. #33 at 14.The nearest of these reservoirs is the Camp Field Reservoir, which is located 3.3 miles north-northeast of Indian Point, in a cross-gradient direction (i.e., perpendicular to the direction thatgroundwater flows), several watersheds away and at an elevation hundreds of feet above theIndian Point power block. Entergy Ex. #33 at 14.III. Unplanned Releases of Radiological Materials at Indian Point12. Indian Point's three Units include spent fuel pools ("SFP"),
which are structures typically consisting of two containment barriers
-one of thick-walled concrete and one of steel -used to store on a temporary basis spent fuel from the operation of the nuclear reactor.
EntergyEx. #32 at Report Details.
: p. 2; Hearing Tr. at 3163-3164 (Esselman);
Hearing 'fr. at 3171-3172 Ref'erences to the hearing transcripts are cited "Hearing Tr. at(Witness Name)."
(Esselman).
The Unit 1 SFP complex was constructed of reinlorced concrete with an internallow permeability
: coating, but its design did not include a stainless steel liner. Entergy Ex. #33 at102. The Unit 2 SFP consists of four- to six-feet thick concrete that is heavily reinforced withsteel rebar. The inside of the SFP is lined with 1/4-inch stainless steel plate anchored to theconcrete such that the plate and concrete are in contact, with only a small interstitial areabetween.
Entergy Ex. #32 at 2 (Report Details);
Entergy Ex. #33 at 92. The Unit 3 SFP issimilar in design to the Unit 2 SFP but also includes a tell-tale leak collection system designed tocollect any leakage through the stainless steel liner. Entergy Ex. #32 at 14; Barvenik Prefiled at9-10.13. In August 2005. Entergy began excavating adjacent to the south wall of the Unit 2SFP to install a crane for Unit 2's dry cask storage system. Entergy Ex. #31 at 1: Entergy Ex.#32 at iv; Barvenik Prefiled at 7.14. During the excavation, concrete shrinkage cracks (1/64" wide and seven feet inlength) were observed to exhibit moisture in and near the cracks. Entergy Ex. #31 at 1; EntergyEx. #32 at iv.; Barvenik Prefiled at 7-8; Hearing Tr. at 3912 (Barvenik).
: 15. Entergy installed a temporary device to collect any fluids emanating from thecracks and prevent the addition of these materials to the groundwater.
Barvenik Prefiled at 8.The first measureable liquid sample collected by the device was 12 ml collected on September
: 13. 2005. During the next several weeks, the average leakage rate was between I and 2 liters perday, which then declined to minimal by late December 2005. Entergy Ex. #032 at I (ReportDetails).
: 16. The primary radioactive constituent of the moisture was identified as tritium.ELntcruy Ex. #32 at iv.
: 17. Tritium is a naturally occurring radioactive form of hydrogen that is producednaturally in the atmosphere when cosmic rays collide with air molecules.
As a result. tritium isfound in very small or trace quantities in water throughout the world. Tritium is also a byproduct of the production of electricity at nuclear power plants, such as Indian Point. Tritium has a half-life of 12.3 years and emits a weak form of radiation.
a low-energy beta particle similar to anelectron.
The tritium radiation does not travel very far in air and cannot penetrate the skin.Because tritium emits a very weak form of radiation and leaves the body relatively quickly.
it isone of the least dangerous radionuclides.
Hoffman Prefiled at 4.18. A permanent collection box was installed around the shrinkage cracks in January2006, and all collected water is piped to an adjacent building where it is collected for finaldisposition.
Barvenik Prefiled at 8; Entergy Ex. #32 at 2 (Report Details).
: 19. Entergy retained GZA GeoEnvironmental, Inc. ("GZA") to perform ahydrogeologic investigation at Indian Point with respect to the radionuclides evident in themoisture from the shrinkage cracks at the Unit 2 SFP. Hearing Tr. at 3912-3913 (Barvenik).
: 20. The purpose of the hydrogeologic investigation was to study the nature, scope,distribution and quality of groundwater at and moving from the Indian Point site, specifically asit related to radionuclides associated with the Unit 2 SFP. Barvenik Prefiled at 4-5; Hearing Tr.at 3912-3913 (Barvenik);
Entergy Ex. #33 at 1-2.21. The fundamental components of the groundwater investigation, theimplementation of which "'as overseen by NRC and involved stakeholders such as NYSDECand the New York State Department of IHcalth (."NYSDOH"),
generally included:
: a. T'he drilling of boreholes into the subsurface to extract geological materials tbr study;4
: b. The installation of instruments for the determination of radionuclide concentrations, groundwater elevations, groundwater flow direction and speed; andc. The preparation of a Conceptual Site Model, which embodies the understanding ofthe nature. distribution and quality of groundwater moving below the Indian Pointsite.Ilearing Tr. at 3913 (Barvenik);
Barvenik Prefiled at 1-5, 8, 12-13: see also Entergy Ex. #33 at6-8 (Scope of Work for hydrogeological investigation);
Entergy Ex. 434 at iv.22. Several months into the investigation, strontium-90 was detected in a groundwater sample. Entergy Ex. #32 at 9.23. Strontium is a soft, silvery metallic element found in rocks, soil, dust, coal andoil. Strontium-90 is a radioactive form of strontium with a half-life of 29 years, and is formed innuclear reactors or during the explosion of nuclear weapons.
The vast majority of strontium-90 in the environment and food chain (approximately 99%) is a result of weapons testing thatoccurred worldwide.
Strontium-90 from releases of nuclear power plants is a small fraction ofthe strontium-90 in the environment.
Hoffman Prefiled at 5.24. As a result of the detection of strontium-90, GZA's hydrogeologic investigation was expanded to investigate the source of the strontium-90 and cover potential radionuclide releases from all three Units, and was performed under NRC's oversight over the two-yearperiod from September 2005 to September 2007. Entergy Ex. #33 at 1; Hearing 'Tr. at 3913-3914 (i3arvenik);
Barvenik Prefiled at 12-13; Entergy Ex. #34 at iv. NRC performed independent (or split) sampling, laboratory analysis and review of the information obtainedpursuant to the hydrogeologic investigation.
Entergy Ex. #32 at 4-5 (Report Details).
: 25. On January 7. 2008, GZA issued its "Hydrogeologic Site Investigation Report"(the "'GZA Report"),
providing the details of its investigations and the conclusions reached as aresult. Entergy Ex. #33.26. The GZA Report included GZA's Conceptual Site Model ("CSM"),
a description of the site understanding.
including that regarding the hydrogeologic setting at and in the vicinityof Indian Point, general groundwater flow patterns in the vicinity of Indian Point, identified unplanned and planned radionuclide release sources at Indian Point, radiological contaminants ofpotential
: concern, and identified receptors, including the Hudson River. Entergy Ex. #33 at 9.27. As information was collected during the hydrogeologic investigation, the CSMwas updated and refined to lit conditions observed in the field and, by the conclusion of theinvestigation, the CSM was consistent with both the site-specific project data and published dataon the hydrogeology of the Indian Point area. Entergy Ex. #33 at 9. The CSM is essentially an"'understanding" of hydrogeologic conditions at and around the Indian Point site, as they relate tothe movement of groundwater and radionuclides attributable to Indian Point. Barvenik Prefiledat 4.28. The conclusions from the GZA Report include the following:
: a. Two plumes of radiologically contaminated water, the first primarily contaminated with tritium ([1-3) ("tritium plume") and the second primarily contaminated withstrontium-90 (Sr-90) ("strontium plume").
Entergy Ex. #33 at 114.b. The tritium and strontium plumes ultimately discharge to the Hudson River, but donot otherwise migrate f'rom the Indian Point site to the North, East or South. EnterevEx. #33 at viii. 114, 127; 1 learing lr. at 3925-3926 (Barvenik);
see also Entergy Ex.#38 at 1-1; Entergy Ex. 940 at I-1.6
: c. The source of the tritium plume was the Unit 2 SFP and the source of the strontium plume was the Unit I SFP. Entergy Ex. #33 at viii, Barvenik Prefiled at 5-6; HearingTr. at 2708 (Kolakowski).
: d. Unit 3 was not a source of radionuclide groundwater contamination at Indian Point.Entergy Ex. #33 at viii. 128; Barvenik Prefiled at 9-10: Hearing Tr. at 2703(Kolakowski).
: 29. As part of an extensive public process involving a variety of stakeholders.
NYSDEC (with support from NYSDOIH) actively monitored Entergy's hydrological investigation, independently analyzed split samples from onsite and offsite monitoring wells, andmade recommendations on the work being performed.
Hearing Tr. at 3920-3922 (Barvenik);
Entergy Ex. #32 at 5, Entergy Ex. #34 at &sect; 4.0.3(a)
(Report Details);
Entergy Ex. #46; EntergyEx. #80.30. Among the individuals at NYSDEC who participated in the investigation was TimRice of NYSDEC's radiation protection section.
Hearing Tr. at 3921-3922 (Barvenik).
: 31. Mr. Rice did not testify on behalf of NYSDEC Staff in this proceeding.
HearingTr.. passim.32. Based upon its own analysis, NYSDEC and NYSDOH made several findings, including the following, each of which is consistent with the findings of Entergy and GZA:a. Groundwater from the site flows cast to west and does not flow to surrounding properties; Entergy Ex. #46 at 1.b. Contaminated groundwater is moving into the Hudson River, but the levels ofradionuclides in the River are below state surface water standards for tritium andstrontium; Entergy Ex. #46 at 1.7
: c. No drinking water sources are affected because the Hudson River in this area isbrackish and is not used as a drinking water source: Entergy Ex. #46 at 1.d. Because the Hudson River is not used as a drinking water source in this area, the onlypathway for a dose to the public from groundwater entering the River is through fishconsumption; Entergy Ex. #46 at 1.e. Entergy's characterization of the extent and levels of contamination reported in theGZA Report is acceptable; Entergy Ex. #46 at 1.f. With the removal of the active contamination source, Entergy's planned use ofmonitored natural attenuation is an acceptable approach to managing the remaining strontium and tritium plumes; Entergy Ex. #46 at I.g. NYSDOH confirmed Entergy's calculated doses to the public through fishconsumption which are less than 1% of the NRC dose limits; Entergy Ex. #46 at I.h. An enhanced fish sampling effort in 2007 showed no significant difference betweenstrontium-90 in the flesh of fish caught near the site and fish caught as far as 70 milesupstream.
Entergy Ex. #46 at 2.33. NYSDEC also conducted an enhanced, independent radiological survey of severalaquatic species in the lower Hudson River and published the results of this assessment inNovember 2009 ("2009 Fish Report").
Entergy Ex. #39.34. The 2009 Fish Report reached two conclusions:
: a. There are no apparent excursions above criteria for the protection of biota based onthe radionuclide data available.
The levels of radionuclides
-including
[strontium-901 -were two to five orders of magnitude lower than criteria established forprotection of freshwater ecosystems.
8
: b. There were no spatial differences in concentrations of [strontium-90]
and (radium-224] in resident fish from the three locations sampled in the lower Hudson River (i.e..Indian Point Nuclear Power Plant. and the reference sites at the Roseton Generating Station and at Catskill).
In contrast,
[potassium-401 levels were somewhat greater inthe vicinity of Roseton Generating
: Station, but the differing concentrations have noknown significance.
Entergy Ex. #39 at 8.35. 1'hroughout the Entergy, GZA, NYSDEC and NYSDOH investigations, NRC wasperforming its regulatory oversight function and reaching findings consistent with those ofNYSDEC, NYSDOH, Entergy and GZA. On September 20, 2005, NCR's Region I initiated aSpecial Inspection regarding identified leaks from the Unit 2 SFP and the potential for associated groundwater contamination.
Entergy Ex. #31 at 1-2.36. On October 5, 2005, Entergy reported to the NRC the detection of tritium in anon-site test well and, thereafter, the scope of the Special Inspection was expanded to include areview of the extent of onsite groundwater contamination.
Entergy Ex. #31 at 1-3; Entergy Ex.#32 at iv.37. As expanded.
the purpose of the Special Inspection was to oversee and evaluateEntergy's efforts to: (a) determine the location of the Unit 2 SFP leak(s),
repair the affectedarea(s),
and install a leak detection/-monitoring system; and (b) characterize the on-site tritiumcontamination, determining the source(s) of the contamination, and establishing appropriate monitoring and control.
Entergy Ex. 43 I at 2-3; Entergy Ex. 432 at iv; Entergy Ex. #32 atAttachment A6-3 to A6-4.9
: 38. On October 28, 2005. the NRC's Region I Executive Director of Operations requested approval from the NRC's Office of Nuclear Reactor Regulation for permission toexpand NRC's oversight of the leak investigation and groundwater contamination.
Entergy Ex.#31 at 1. At the time of this request, NRC Region I stated that "we see no hazard to publichealth and safety. and we expect any off-site radiological releases to be very small (i.e.. offsitedoses, if any would be negligible with respect to normal background)."
Entergy Ex. #31 at 2.39. NRC Region 1's expanded oversight efforts at Indian Point were to continue'until the NRC is satisfied that the leakage of water from the Unit 2 spent fuel pool has eitherbeen stopped or is being effectively monitored and controlled; and on-site tritium contamination has been properly characterized, and is being effectively monitored and controlled."
Entcrgy Ex.#31 at3.40. On March 16, 2006, the NRC issued its first Special Inspection Report. Theinspection consisted of a selected examination of procedures and representative records,observations of activities, interviews with Entergy personnel, and independent analyses ofgroundwater samples.
Entergy Ex. at #32 at 1.41. NRC's Special Inspection Report reached the following conclusions with respectto Entergy's activities from the discovery of the Unit 2 SPF leak to the close of the SpecialInspection:
: a. Entergy's response to identified conditions was reasonable and technically sound.Entergy Ex. 432 at 2.b. The existence ofonsite groundwater contamination, as well as the underlying sourcesof leakage, are conditions warranting continued eflbrts by Entergy to resolve, but do10 not present significant risk to public health and safety and the environment.
EntergyEx. at 2., iv-v. 6 (Report Details).
: c. Public health has not been, nor is likely to be, adversely
: affected, and the doseconsequence to the public that can be attributed to current onsite conditions isnegligible with respect to conservatively established NRC regulatory limits. EntergyEx. #32 at 2, iv-v and 6 (Report Details).
: d. A refined calculation, based upon tritium detected in monitoring well samples, of thedose estimate to the public indicated a whole body dose to the maximally exposedindividual of 1.5 x 10s mrem/year, which represents 0.00005%
of the 3 mrem/year limit for liquid effluent releases.
Entergy Ex. #32 at v.e. Independent sampling and analysis ofonsite and offsite groundwater samplinglocations by Entergy, NYSDEC and NRC produced results that were in goodagreement, and no plant-related radioactivity was identified in any offsite sample ofsurface or groundwater.
Entergy Ex. #32 at v-vi.f. Entergy's measurements of radioactivity in various samples taken to ascertain theextent of groundwater contamination were of good quality and of sufficient sensitivity to assess radiological impact. and the quality of Entergy's measurements were confirmed by various split samples analyzed by NRC., NYSDFC and NYSDOH.Entergy Ex. 432 at 3 (Report Details).
: u. The inspectors found no circumstance that could reasonably be viewed as a failure ofEntergy to follow standards or take measures that would have prevented the currentonsite conditions, or react to circumstances and conditions that would have led toearlier detection.
Entergy Ex. 132 at vi.II hi. Entergy is adequately following its corrective action process relative to the currentonsite conditions, including conditions affecting the Unit 2 SPF. Entergy Ex. #32 atvii.i. There is no drinking water pathway associated with groundwater or the Hudson Riverin the region surrounding Indian Point. and samples taken in support of the NRC-required Radiological Environmental Monitoring Program continue to indicate nodetectable plant-related radioactivity in groundwater beyond the site boundary, including in samples collected from local municipal drinking water reservoirs andother groundwater monitoring wells located in the immediate vicinity of Indian Point.Entergy Ex. #32 at viii.j. The identified groundwater release was classified by Entergy as an abnormal release,as specified in NRC Regulatory Guide 1.21, and will be included in effluent releasereports as required.
Entergy Ex. #32 at vii.k. All releases from the Unit I SPF are documented in the NRC-required annual effluentand environmental monitoring reports.
Entergy Ex. #32 at I I (Report Details).
: 42. Throughout the performance of NRC's Special Inspection, NRC coordinated itsactivities with NYSDEC which had initiated its own independent assessment of the groundwater conditions.
including observation of NRC's inspection activities.
Entergy Ex. #34 at iv.43. On November
: 7. 2007. the NRC initiated another inspection of Indian Point. thepurpose of which was to assess Entergy's groundwater investigation to evaluate the extent ofcontamination, the effectiveness of actions.
taken or planned, to effect appropriate mitigation andremediation of the conditions resulting from the Unit I and Unit 2 SFP leaks. Entergy Ex. #34 atI.12
: 44. NRC's inspection, which concluded on May 7. 2008. determined that publichealth and safety had not been, and was not likely to be, adversely affected.
and the doseconsequence to the public attributable to on-site conditions associated with groundwater contamination was negligible.
Entergy Ex. #34 at 1-2.45. In its inspection report dated May 13, 2008, the NRC made several findingsincluding the following:
: a. The radiological significance from the groundwater conditions at Indian Point iscurrently, and is expected to remain, negligible with respect to impact on publichealth and safety and the environment.
Entergy Ex. #34 at v.b. NRC confirmed with NYSDOH that drinking water is not derived from groundwater or the Hudson River in the areas surrounding or influenced by effluent release fromIndian Point and, therefore, the only human exposure pathway of merit is from thepossible consumption of aquatic foods from the Hudson River, such as fish andinvertebrates.
Entergy Ex. #34 at v-vi.c. Entergy's actions to investigate the radiological release conformed to therequirements of NRC regulations
-10 C.F.R. &sect;20.1501
-to ensure compliance withdose limits for individual members of the public. Entergy Ex. #34 at vi.d. No evidence was found that indicated that the events at Indian Point. that resulted inthe onsite groundwater contamination were the result of Entergy's failure to meet aregulatory requirement or standard.
Entergy Ex. #34 at vi.e. Off-site groundwater samples collected since the fall of 2005 have never detected anyoff-site groundwater contamination.
Entergy Ex. #34 at iv.13
: f. Entergy had properly identified the source of groundwater releases as the Unit 1 andUnit 2 SFPs. Entergy Ex. #34 at vi.g. No releases were observed or detected from Unit 3. Entergy Ex. #34 at viii.h. Entergy's hydrogeologic site characteri7ation studies provide sufficient detailed fieldobservations, monitoring, and test data that supported the development andcontbrmation of a reasonable Conceptual Site Model. Entergy Ex. #34 at vii.i. The Conceptual Site Model provides a reasonable basis to support the finding thatliquid effluent releases from the SFPs migrate west toward the Hudson River and donot otherwise migrate offsite.
Entergy Ex. #34 at vii.j. No radioactivity distinguishable from background was detected during the mostrecent sampling and analysis of fish and crabs taken from the affected portion of theHudson River and designated control locations.
Entergy Ex. #34 at vii.k. The annual calculated exposure to the hypothetically maximally exposed individual relative to the liquid effluent aquatic food exposure pathway is currently, and isexpected to remain, less than 0.1 percent of the ALARA guidelines in Appendix I of10 C.F.R. Part 50, which are considered to be negligible with respect to public health,safety and the environment.
Entergy Ex. #34 at vii.1. There is no evidence of any significant leak or loss of radioactive water inventory from the site that was discernable in the offsite environment.
Entergy Ex. 434 at viii.m. Entergy's remediation approach (i.e., Monitored Natural Attenuation) and plans forlong-term monitoring of residual groundwater contamination were reasonable.
Entergy Ex. 434 at vi-viii.14
: 46. In reaching these conclusions, NRC staff relied, in part, on an independent analysis of groundwater transport through fractured bedrock (utilizing geophysical well loggingdata) conducted by the United States Geological Survey which confirmed GZA's conclusions.
Entergy Ex. #34 at vii.IV. Entergy's Corrective Actions47. In 2007 and 2008, Entergy performed a comprehensive assessment of theaccessible portions of the Unit 2 SFP for the purpose of identifying potential sources of thetritium plume. Hearing Tr. at 3168, 3173 (Esselman).
: 48. Sixty-five percent (65%) or more of the liner of the entire Unit 2 SFP, including the fuel transfer canal area. has been inspected.
Hearing Tr. at 3174 (Esselman);
BarvenikPrefiled at 8.49. In September 2007. Entergy drained the fuel transfer canal within the Unit 2 SFPin order to inspect the liner of that canal; during that process, Entergy identified one weldimperfection, i.e., the source of the tritium contamination, that was subsequently repaired inDecember 2007. Barvenik Prefiled at 8.50. Other than the shrinkage cracks discussed in Paragraph 14 above and the oneweld imperfection that was repaired in December 2007, no other leaks were identified as a resultof the inspection of the SFP liner, including the fuel transfer canal. Barvenik Prefiled at 8.5 1. The inspection of the Unit 2 SFP liner has not identified any degradation mechanisms (e.g., corrosion) that would cause a SFII leak or would increase the size of anyundetected existing leak. Ilearing Tr. at 3169-3170 (Esselman).
: 52. Iyntergy implemented a program to remove the spent fuel and all water fromwithin the Unit I SFP: that process was completed in 2008. Barvenik Prefiled at 9; Entergv Ex.#47.15
: 53. Because the Unit 1 SFPs have been drained of their contents, they are no longer asource of radionuclides to the subsurface.
Barvenik Prefiled at 9. 1learing Tr. at 2710(Kolakowski);
Hearing Tr. at 3920 (Barvenik).
: 54. In addition to work on the Unit I and Unit 2 SFPs,. Entergy retained Lucius Pitkin,Inc. ("LP"I")
in 2010 to assist in the development of an underground piping management program.
Hearing Tr. at 3110 (Essleman);
see also Entergy Ex. #77 and Entergy Ex. #79.55. Entergy's underground piping program consists of a four-step process as follows:a. Conduct an inventory of underground pipes and their design characteristics;
: b. Prioritize piping systems on the basis of the consequences of a leak or failure and thesusceptibility of the pipe to degradation;
: c. Perform inspections of piping systems to gain information; andd. Perform an engineering evaluation of the inspection data to determine remedialactions required.
if any.Ilearing Tr. at 3111 (Esselman);
Entergy Ex. #79.56. The first two steps of this process have been completed at Indian Point, andinspections of underground piping occurred in 2008 (prior to the implementation of thisprogram) and continue each year, with 38 pipe inspections completed through 2011 and nineadditional pipe inspections scheduled in 2012. Hearing Tr. at 3111-3113 (Esselman).
: 57. Pipe inspections under this program utilize a variety of techniques to gaininformation regarding pipe conditions, including new ultrasonic technologies that allow for aninspection of pipe lengths that have not been exposed by excavation.
Hearing Tr. at 3114-3115 (Esselman).
16
: 58. The results of these inspections indicated that many of the pipe locations weredetermined to be satisfactory, while a relatively small number of locations with indications of thepossibility of corrosion.
Hearing rFr. at 3112-3113 (Esselman).
: 59. In response to the information indicating the possibility of corrosion, Entergyinstalled a cathodic protection system -a commonly used and well understood device whichintroduces a sacrificial anode that corrodes while the pipe itself is protected.
Hearing 'Fr. at3113-3114 (Esselman).
: 60. The implementation of this program reduces the likelihood and potential severityof leaks over time. Hearing Tr. at 3117 (Esselman).
V. Entergy's Long Term Monitoring Program61. After the completion of the hydrogeologic investigation, Entergy established aLong-Term Groundwater Monitoring Program (1.,TMP");
the LTMP's purposes are: (1) tocontinue to assess the tritium and strontium plumes associated with the historic Unit I and Unit 2SFP leaks; and (2) to monitor for potential new radionuclide releases through the groundwater monitoring network consisting of an array of groundwater monitoring wells located nearsystems.
structures and components that have the potential to impact the groundwater shouldthey leak in the future. Barvenik Prefiled at 13-16: Hearing Tr. at 3914-3915 (Barvenik).
: 62. The current groundwater monitoring array consists of 65 separate groundwater monitoring well locations, with over 150 monitoring intervals at different depths within those 65installations.
Barvenik Pretiled at 4-5; 1learing Tr. at 3917-3918
( Barvenik);
Entergy Ex. #124.63. In addition to the groundwater monitoring well installations, included in theoverall groundwater monitoring network are approximately 75 storm drains and 25 sumpslocated throughout the Indian Point site, frorn which samples are periodically collected foratnalysis.
Barvenik Prefiled at 5.17
: 64. Fhis groundwater monitoring network of over 250 diftfrent monitoring points isamong the most extensive of Mr. Barvenik's professional experience for any site subject to agroundwater investigation.
Hearing Tr. at 3914 (Barvenik).
: 65. Under the LTMP, Entergy conducts ongoing periodic groundwater monitoring and sampling activities, and evaluates the sampled data, for fbur primary purposes:
: a. Monitor groundwater flow rate and radionuclide concentrations to both detect andcharacterize current and potential future releases of radionuclides from groundwater to the Iludson River;b. Monitor groundwater proximate to Indian Point systems, structures, and components that may result in releases of radionuclides to groundwater at Indian Point;c. Monitor groundwater along the property boundary and off-site to confirm thatgroundwater containing radionuclides is not migrating off oftthe property to locations other than the Hudson River; andd. Monitor groundwater plumes identified onsite to determine overall reductions in totalradioactivity over time.Bar-venik Prefiled at 13-14.66. Based upon the data collected during the hydrogeologic investigation and theLTMP. the tritium and strontium plumes resulting from historic releases from the Unit 1 andUnit 2 SFPs had reached their maximum sizes and have been decreasing at varied rates withperiodic fluctuations, as would be expected.
Barvenik Prefiled at 16: Entcrgy Ex. #33 at 97-101.67. The groundwater data collected since the installation in 2005 of the temporary collection device on the exterior of the Unit 2 SIP wall indicates that the amount of tritium in the18 groundwater beneath Indian Point has diminished by 89%. Prefiled Rebuttal at 29-34; HearingTr. at 3918-3920 (Barvenik);
Entergy Ex. #126.68. Since the draining of the Unit I SFPs. groundwater data indicate that the amountof strontium-90 in the groundwater beneath Indian Point has diminished by 70%. PrefiledRebuttal at 29-34; Hearing Tr. at 3920 (Barvenik);
Entergy Ex. #126.69. The LTMP will detect future releases of radionuclides to the groundwater comparable to those associated with the historic corrected Unit I and Unit 2 SFP leaks, therebyallowing Entergy to take timely and appropriate corrective action upon the detection of suchreleases, should they occur. Barvenik Prefiled at 16; Hearing Tr. 3914-3915 (Barvenik).
: 70. Entergy has played a leadership role in the development of the tritiumgroundwater investigation process on a nationwide basis. For example, the LTMP at IndianPoint predates the recommendation of experts contributing to a report by the United StatesGovernment Accountability Office ("GAO") to place groundwater monitoring wells near system,structures and components with a potential for leaking and impacting groundwater.
In June2011, the GAO recommended an increased focus on on-site groundwater monitoring at nuclearpower plant sites for prompt leak detection, and (2) additional efforts to provide reasonable assurance of underground piping systems' structural and leak-tight integrity.
As noted above,Entergy already had implemented the LTMP before this recommendation appeared in the GAO'sreport. Riverkeeper Ex. #7 at 11 see also Prefiled Rebuttal at 9-Il.VI. Monitored Natural Attenuation
: 71. As a result of the hydrogeologic investigation.
GZA and Entergy selectedMonitored Natural Attenuation as the appropriate remedial action lbr the groundwater at IndianPoint. Prefiled Rebuttal at 38.19
: 72. Monitored Natural Attenuation is a recognized and proven remedial approach forcontaminated groundwater sites that allows natural processes to reduce contaminant concentrations.
Prefiled Rebuttal at 36.73. The United States Environmental Protection Agency ("EPA") has recognized Monitored Natural Attenuation as a valid remedial approach generally, and Entergy, the NRCand NYSDEC concluded that it is the correct remediation strategy for Indian Point for severalreasons:a. Interdiction measures to date have eliminated and/or controlled the identified activesources of groundwater contamination.
: b. Groundwater flow at the Site precludes off-Site migration of contaminated groundwater to the North, South or East.c. Consistent with the Conceptual Site Model, no Indian Point contaminants have beendetected above regional background in any of the off-Site monitoring locations ordrinking water supply systems in the region.d. The only on-Site exposure route for the documented contamination is through directexposure and, because the majority of the Site is capped by impermeable
: surfaces, there is no uncontrolled direct contact with contaminants.
: e. The spatial extent of the groundwater plume should continue to decrease with time.f. Groundwater is not used as a source of drinking water on the Site or in the immediate vicinity of the Site, and there is no reason to believe that this practice will change inthe lbreseeable future.Prefiled Rebuttal at 36-39: Entergy Ex. #34 at vi-viii:
Entergy Ex. #46: Entergy Ex. #82.20
: 74. In addition to Monitored Natural Attenuation, Entergy continues to extractgroundwater from foundation drains located near the Unit I SFP. removing radionuclides ingroundwater for collection and discharge through monitored pathways.
Prefiled Rebuttal at 22-23.75. These drains have captured approximately 10 times the quantity of strontium-90 entering the Hudson River via the groundwater.
Prefiled Rebuttal at 23.VII. WQC Process76. By letter dated April 3. 2009, Entergy Nuclear Indian Point 2, LLC, EntergyNuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc., (collectively.
"Entergy"),
submitted to NYSDEC an application for a water quality certificate
("WQC") under &sect;401 of thefederal Clean Water Act (the "Application").
Entergy Ex. #161.77. The Application was submitted in relation to Entergy's application to the NRC torenew the NRC-issued operating licenses for Units 2 and 3, which would extend the operation ofUnit 2 to September 28, 2033, and Unit 3 to December 12, 2035. Entergy Ex. #161, JointApplication Form, Supplemental Response to Item 9.78. Entergy has not applied to NYSDEC for a WQC for the operation of Unit I.Entergy Ex. #161; Hearing Tr. at 2709 (Kolakowski).
: 79. On May 13, 2009. NYSDEC staff requested additional information from Entergyrelating to the Application, including with respect to whether releases of radiological materials from Indian Point to the Hudson River comply with New York State water quality standards
("NYWQS").
Entergy Ex. 499.80. On IFebruary 12, 2010, Entergy responded to NYSDEC Stairs request.
statingthat i) the Department had no authority to regulate radiological releases from Indian Point underthe federal Clean Water Act (the "CWA") and as a result of the doctrine of federal preemption, 21 and (ii) the releases of radiological materials from Indian Point do not violate NYWQS. EntergyEx. #100.81. By letter dated April 2. 2010 (the "Notice"),
N YSDEC staff proposed to deny theApplication due to. among other things, the releases of radiological materials from Indian Pointto the Hudson River. Entergy Ex. #9 at 11.82. Specifically, the Notice stated that "radioactive material (including tritium,strontium-90.
cesium, and nickel) from spent fuel pools, pipes, tanks, and other systems.structures and components at Indian Point has reached the Hudson River via groundwater flowfrom the site and, moreover, continue to do so," Entergy Ex. #9 at II.83. The Notice asserted that "'the discharge of radiological substances (including, butnot limited to, radioactive
: liquids, radioactive solids, radioactive gases, and stormwater) from theIndian Point site into a water of the State, here the Hudson River, are 'deleterious substances*
and could impair the water for their best usage [citing 6 NYCRR &sect;703.21" and that "radiological leaks have the potential to impair the best use of the water designated in 6 NYCRR &sect;701.11."
Entergy Ex. #9 at 11; Hearing Tr. at 2730 (Kolakowski).
The Notice relied upon a standardnecessitating a finding of impairment to support noncompliance.
: 84. The Notice did not mention or otherwise distinguish the conclusions reached byNYSDEC and NYSDOH in their capacity as stakeholders in the NRC's Special Inspection andsubsequent inspection of Indian Point that no human health or environmental impacts wereassociated with or attributable to the "unplanned" releases from Indian Point prior to the date theNotice was issued. Entergy Ex. 49 at 11.
: 85. The Notice did not state any other reason for the denial of Entergy's Application on the basis of radiological releases from Indian Point. Entergy Ex. 9; Hearing Tr. at 2729-2730 (Kolakowski).
: 86. On April 29, 2010, Entergy submitted a request for adjudicatory hearing tochallenge the Notice. arguing again that Department Staffis attempt to deny the Application based upon radiological releases was: (i) outside NYSDEC's statutory authority under the CWA;(ii) preempted by federal law, and (iii) without factual basis. See Request for Adjudicatory Hlearing on NYSDEC Staff s April 2, 2010 Notice of Denial of Joint Application for CWASection 401 Water Quality Certification.
NRC License Renewal -Entergy Nuclear Indian PointUnits 2 and 3, dated April 29, 2010.87. On December 13, 2010, the Ruling on Proposed Issues for Adjudication andPetitions for Party Status (the "Issues Ruling")
concluded that the issue of federal preemption remained an "open question,"
and set for adjudication the issue of "whether Department Staffproperly denied the Application based upon radiological considerations."
Issues Ruling at 25-27,40.88. The Issues Ruling did not address the issue of whether the regulation ofradiological releases was outside NYSDEC's statutory authority under the Clean Water Act.Issues Ruling, passim.89. Direct prefiled testimony from the parties' witnesses was received on July 22,2011. and rebuttal preliled testimony was received on October 4. 2011.90. In direct preliled testimony submitted on behalf of NYSDEC Staff, NYSDECStalLf for the first time, advance the following new legal position:
"The discharge of suchradiological materials, including high-level radioactive waste, from spent fuel pools, pipes, tanks, and other systems.
structures, and components at the Indian Point nuclear facilities intogroundwaters and surface waters of the State is prohibited by ECL &sect; 17-0807 and 6 NYCRR&sect;750-1.3, and could impair the waters for their best usages (6 NYCRR &sect;703.2)."
Kolakowski Prefiled at 11. In other words, in its direct prefiled testimony, NYSDEC Staff advanced a newlegal position that there was a categoric prohibition on the discharge of radiological substances tothe Hudson River.91. In rebuttal prefiled testimony, NYSDEC Staff's witness clarified his directprefiled testimony, stating:
"The unintentional discharge, leak or spill of such radiological materials, including high-level radioactive waste, from spent fuel pools, pipes, tanks, and othersystems, structures, and components at the Indian Point nuclear facilities into groundwaters andsurface waters of the State is prohibited by ECL &sect;17-0807(1),
(4), and 6 NYCRR &sect;750-1.3(a)."
Kolakowski Rebuttal Prefiled at 4. Thus, NYSDEC Staff echoed its position that radiological releases were subject to a categoric prohibition, but limited the scope of the prohibition tounintentional or unplanned releases.
: 92. A hearing on this issue was held on November 15-16, 2011, January If, 2012,and January 231 2012.VIII. Hearing Testimony A. Witnesses
: 93. Entergy provided three highly qualified expert witnesses in support of its case. allof whom are leaders on the subjects on which they testified, with longstanding direct andrelevant experience in their respective fields: (1) Dr. F. Owen Hoffman, a leading national experton radiological dose assessment and environmental impact, including the release, transport andbehavior of'radionuclides in the aquatic environment" (2) Mr. Nvlatihew
: Barvenik, a well regardedhN drogeologist who acted as the lead technical investigator of the Indian Point site investigation 24 associated with the unplanned releases of radiological materials; and (3) Dr. Thomas Esselman, an expert in aging management at nuclear facilities.
particularly for structures and components involved in the handling or storage of radiological materials.
Barvenik Prefiled at 1-4; HoffmanPrefiled at 1-3: Prefiled Rebuttal at 1: Hearing Tr. at 3086-3089 (Hoffman),
3108-3110 (Esselnan),
3912 (Barvenik);
Entergy Ex. #53, Entergy Ex. #54, Entergy Ex. #77.94. Dr. F. Owen Hoffman provided testimony concerning the potential effects onhuman beings or aquatic biota of radiological materials that have migrated with the groundwater beneath Indian Point to the Hudson River. Hoffman Prefiled at 1.95. Dr. Hoffman is president and director of SENES Oak Ridge, Inc. Center for RiskAnalysis, an organization that specializes in human health and ecological risk estimation, riskassessment, and risk communication.
Dr. Hoffman has more than 39 years of experience inissues related to evaluating human and ecological risk from the release and transport ofradionuclides and chemicals in terrestrial and aquatic systems.
lie is a Distinguished EmeritusMember of the National Council on Radiation Protection
& Measurements
("NCRP"),
and acorresponding member of tie International Commission on Radiological Protection
("ICRP").
Dr. Hoffman is also a consultant to the United Nations Scientific Committee on the Effects ofAtomic Radiation
("UNSCEAR").
He holds a Bachelor of Science degree in Biological Conservation from the San Jose State College, a Master of Science degree in Fisheries limnology from Oregon State University, and a Ph.D in Ecology, with a specialty in Radiation Ecology.
Entergy Ex. #53; Hoffman Prefiled at 1. 3; Hearing Tr. at 3086-3089 (Hoffman).
: 96. Dr. Hoffman has extensive experience assessing human health and aquatic biotaimpacts from radionuclide
: releases, including releases to aquatic environments.
He is familiar\with the Indian Point OtTsite Dose Calculation Manual, Annual Radioactive Effluent Release Reports.
and Annual Radiological Environmental Operating
: Reports, as well as Indian Point'scompliance with NRC dose regulations.
Hoffman Prefiled at 6-11. 14-16. Dr. Hoffman has alsoindependently assessed the radiological impacts to the Hudson River ecosystem from IndianPoint SFP leaks to site groundwater.
Hoffman Prefiled at 15-16.97. Mr. Matthew J. Barvenik provided testimony regarding unplanned releases ofradiological materials from Indian Point Units 1 and 2. Entergy's corrective actions undertaken in response to unplanned
: releases, and the investigation of groundwater contamination at IndianPoint. Barvenik Prefiled at 1-2.98. Mr. Barvenik is a Senior Principal and Senior Technical Consultant with GZAGeoEnvironmental, Inc. ("GZA"),
a national consulting firm that provides wide-ranging geotechnical engineering, environmental consulting, and remediation services.
Mr. Barvenik hasover 35 years of professional experience in hydrogeology, civil, geotechnical, andinstrumentation engineering, and has focused on contaminated soil and groundwater investigation and remediation.
lie holds a Bachelor of Science degree in Civil Engineering fromNortheastern University and a Master of Science degree in Geotechnical Engineering from theMassachusetts Institute of Technology.
Mr. Barvenik is a registered Licensed Site Professional in Massachusetts and a member of the American Nuclear Society ("ANS").
He served on theANS Working Group responsible for the recently completed standard for Evaluation ofSubsurfiace Radionuclide Transport at Commercial Nuclear Power Plants, and is a member oftwo newly formed ANS Working Groups responsible fbr drafting future standards on theevaluation of groundwater supplies and remediation methods lbr nuclear power sites. EntergyEx. #54; Barvenik Pretiled at 1, 3; Hearing F'r. at 3912 (Barvenik).
26
: 99. Mr. Barvenik was the lead technical investigator for the Indian Pointhydrogeologic site characterization program resulting in the January 7. 2008 Site Investigation Report. As a result of these duties, Mr. Barvenik became very familiar with the Indian Pointhydrogeologic setting and groundwater flow patterns, identified contaminant sources andtransport.
historical and ongoing groundwater monitoring.
remediation plans, the history andstatus of releases of radiological materials from Indian Point spent fuel pools, dose assessments, and associated NRC inspection activities, as well as other independent assessments of the SFPreleases.
Barvenik Prefiled at 4.100. Dr. Thomas C. Esselman provided testimony with regard to, among other things,Entergy's underground piping inspection program and Entergy's inspection of the Unit 2 SFP.Combined Prefiled Rebuttal at passim.101. Dr. Esselman is a Principal at Lucius Pitkin. Inc., which provides engineering services to the nuclear power industry, among others. Dr. Essleman has over 35 years ofengineering experience, including experience in component and structure performance, aging,stress analysis, materials, materials degradation, and failure analysis, including extensive experience with nuclear power facilities.
He holds a Bachelor of Science degree in Mechanical Engineering, and a Master of Science degree and a Ph.D. in Engineering Mechanics, all fromCase Western Reserve University.
Entergy Ex. #77; Combined Prefiled Rebuttal at I; HearingTr. at 3108-3110 (Esselman).
102. lhroughout his career. D)r. Esselman has worked periodically with the IndianPoint plants, including on the development of an underground piping management program andthe investigation of the integrity of the Unit 2 SFP. Hearing Tr. at 3109, 3162 (Esselman).
27 103. Dr. Hoffman and Dr. Esselman provided
: limited, live direct testimony and werecross-examined on January 11. 2012. Hearing Tr. 3071. Mr. Barvenik provided
: limited, livedirect testimony and was cross-examined on January 23, 2012. Hearing Tr. at 3895.104. Mr. Paul J. Kolakowski provided prefiled and rebuttal testimony, on behalf ofN YSDEC Staff, regarding those aspects of the Notice dealing with the release of radiological materials to the Hudson River from groundwater beneath Indian Point. Kolakowski Prefiled atI; Kolakowski Prefiled Rebuttal at 1.105. Mr. Kolakowski holds a BS in Civil/Environmental Engineering, and has been anEnvironmental Engineer with NYSDEC since 1989. Staff Ex. #1. Mr. Kolakowski has noeducational or work experience related to nuclear engineering, radiation protection, humanhealth effects of exposure to radiation, dose assessment from the exposure to radiological materials, or the ecological effects of radiological materials in the environment.
Hearing Tr. at2690-2692 (Kolakowski);
Staff Ex. #1. He performed no scientific analysis of the recordevidence provided by Entergy.
See Paragraphs 144, 147, 149-151 and 156-157 below.106. Mr. Arnold Gundersen provided prefiled and rebuttal testimony, on behalf ofRiverkeeper, Inc., Scenic Hudson, Inc.. and Natural Resources Defense Council, Inc., regarding radiological materials.
Gundersen Prefiled at 1; Gundersen Prefiled Rebuttal at 1.107. Mr. Gundersen holds an MS in Nuclear Engineering from Rensselaer Polytechnic University and has more than 39 years of experience on nuclear matters generally.
Gundersen Prefiled at 1-2. Mr. Gundersen performed no dose assessment associated with the radiological releases from Indian Point. Hearing Tr. at 2897, 2922. 2976 (Gundersen).
108. Mr. Kolakowski and Mr. Gundersen provided
: limited, live direct tcstimonv andwere cross-examined on November 15-16, 2011. 1learing Tr. at 2654. 2973.
109. On November 15.2011, after hearing from the parties on Entergy's motion inlinine to exclude, among other things, Mr. Gundersen's testimony regarding the impacts ofplanned releases of radionuclides from Indian Point. this Tribunal granted Entergy's motion andstruck Mr. Gundersen's testimony associated with the planned releases from Indian Point.Hearing Tr. at 2806 (Judge Villa).B. Compliance with Applicable Dose Limits110. Entergy conducts periodic environmental monitoring surveys to assess thecumulative potential impact of radionuclides that have been released from Indian Point. and, onan annual basis, submits the results of these surveys to the NRC in Annual Radioactive EffluentRelease Reports ("ARERR").
I-loffman Prefiled at 9-13..111. NRC imposes technical specifications on effluents from nuclear power stations inorder to keep releases of radioactive materials "as low as reasonable achievable"
("ALARA").
Hoffman Prefiled at 7.112. The ARERRs include quantification of both planned and unplanned releases ofradiological materials; since 2006, the Indian Point ARERRs have included estimates of theradionuclides entering the lHudson River via groundwater based upon the Indian Pointhydrogeologic investigation and the subsequent ITMP. H loffman Prefiled at 10-13.113. The ARERRs indicate that the amount of radioactivity associated with tritiumreleased from groundwater and stormwv-ater (i.e., rainwater collected onsite and discharged to theI ludson River via storm drains) to the Hudson River since 2006 on an annual basis is as tbllows:0.28 curies (2006). 0.064 curies ('2007),
0.2 curies (2008); 0.07 curies (2009), and 0.12 curies(2010). These levels of radionuclide releases arc orders of magnitude below the allowable tbderal regulatory limits. Barvenik Prefiled at 6-7: 1learing Tr. at 3922-3923 (Barvenik).
:9 114. The ARERRs also indicate the amount of radioactivity associated with allradionuclides other than tritium released from groundwater and stormwater to the Hudson Riversince 2006 on an annual basis are as follows:
0.00057 curies (2006); 0.00008 curies (2007);0.00016 curies (2008); 0.00025 curies (2009); and 0.000042 curies (2010). These levels ofradionuclide release are orders of magnitude below the allowable federal regulatory limits.Barvenik Prefiled at 6-7; Hearing Tr. at 3922-3923 (Barvenik).
115. NRC Regulations require all NRC licensed facilities to calculate the annualrelease ofradiological materials to the environment, and to calculate the dose to a hypothetically maximally exposed individual to ensure compliance with ALARA design objectives.
HoffmanPrefiled at 7-9.116. Entergy's Offsite Dose Calculation Manual ("ODCM")
specifies the methods tobe used in calculating estimated off site doses of radiation, consistent with the NRC's Regulatory Guide 1. 109, which was developed to provide the methodology to estimate radiation doses to thepublic. Hoffman Prefiled at 8; Hearing Tr. at 3092 (hoffman).
117. In addition to documenting the quantity of radioactivity released to theenvironment.
Entergy's ARERRs also contain estimates of the dose associated with suchreleases, which were correctly calculated in accordance with methodologies required by NRC'sRegulatory Guide 1.109 and memorialized in Entergy's ODCM. Hoffman Prefiled at 10-13.118. Dose calculation methodologies are conservative, and focus on a hypothetically maxinmally-exposed individual.
Entergy Ex. #43 at 1; Hearing l'r. at 3103-3104 (Hoffman).
Thus. dose assessment typically overstates potential radiation risk. Entergy Ex. #43 at I.119. Based upon the dose calculations perlbrmed in Entergv's ARERRs. the annualwhole body dose associated with releases from Indian Point to the Hudson River via30 groundwater and stormwater in 2010 was 0.0002 millirem
("*mrem").
Prefiled Rebuttal at 4. Thewhole body dose for the years 2006-2009 was a small fraction of a millirem.
similar to the 2010figure. Hoffman Prefiled Testimony at 11, 13.120. This calculated dose is several orders of magnitude lower than the dose limits formembers of the public established by NRC's Standards for Protection Against Radiation at 10C.F.R. Part 20 (100 mrem whole body), EPA's radiation protection standard at 40 C.F.R. Part190 (25 mrem whole body), and the NRCs design objectives at 10 C.F.R. Part 50, Appendix 1 (3mrem whole body). Hoffman Prefiled at 6-9, 11, 14; Combined Prefiled Rebuttal at 28; EntergyEx. #34 at vii, Barvenik Prefiled at 20-21.121. As noted previously, the NRC reached the same conclusions as Dr. Hoffman:a. The annual calculated exposure to the hypothetically maximally exposed individual relative to the liquid effluent aquatic food exposure pathway is expected to remain,less than 0.1 percent of the ALARA guidelines in Appendix I of 10 C.F.R. Part 50,which are considered to be negligible with respect to public health, safety and theenvironment.
Entergy Ex. #34 at vii.b. NRC's inspection determined that public health and safety had not been. and was notlikely to be, adversely affected.
and the dose consequence to the public attributable toon-site conditions associated with groundwater contamination was negligible.
lEntergy Ex. `34 at 1-2.c. Public health has not been, nor is likely to be, adversely
: affected, and the doseconsequence to the public that can be attributed to current onsite conditions isnegligible with respect to conservatively established NRC regulatory limits. EntcrgytL!x. 4.32 at 2, iv and 5 (Rcport Details).
31 122. NYSDEC also reached the same conclusions as Dr. Hoffman and the NRC -thatE'ntergy's calculated doses to the public through fish consumption which are less than 1% of theNRC dose limits. Entergy Ex. #46 at 1.123. Neither Mr. Kolakowski nor Mr. Gundersen testified that Entergy was not incompliance with applicable NRC dose limits. Ilearing T"r., passim.C. Absence of Impacts to the Best Usages of the Hudson River124. The scientific approach to evaluating whether the radiological materials within thegroundwater at Indian Point impact the best usages of the Hudson River consists of:(1) identifying the sources and amounts of radiological materials released into the environment; (2) calculating the concentrations of radiological materials in environmental media (e.g., soil,groundwater, etc.); (3) identifying any "exposure pathways"
-that is, any means by whichpeople or other biota could come into contact with these materials (i.e., through drinking water,swimming, fish consumption, etc.); (4) calculate the dose received to people or other biota basedupon any completed exposure pathway; and (5) translate those doses into risks -i.e., in the caseof human health, the risk of developing a radiation-related cancer in later life; in the case ofaquatic biota. comparing doses against accepted impact thresholds deemed to be of no risk.I loffrman Prefiled at 2, 17; Hearing Tr. at 3090, 3105 (Hoffman).
125. The effective dose is the most commonly used indicator of the potential biological effects associated with human exposure to radiation.
Entergy Ex. #35 at 5.126. Although radiation may cause cancers at high dose rates (i.e., 50,000 mrem orgreater),
currently there are no data to establish unequivocally the occurrence of cancer fbllowing exposure to low doses and dose rates below 10.,000 mrem. Entergy Ex. #43.127. l)r. Hoffman employed this approach in his independent assessment of the risks tohuman health and aquatic biota associated with the unplanned releases of tritium and strontium-90 to the Hudson River in 2010 via groundwater and stormwater from Indian Point. Specifically.
Dr. Hoffman obtained the sources and concentrations of tritium and strontium-90 entering theHudson River via groundwater based upon Entergy's ARERR for 2010. He then reviewedEntergy's NRC-required Offsite Dose Calculation Manual, which both identifies the potential exposure pathways for the planned and unplanned release of these materials and calculates thedoses to humans and other biota associated with completed
: pathways, based upon on-site andoff-site sampling of groundwater and surface water conducted by Entergy, and confirmed thatEntergy's calculations were correct and satisfied NRC's required methodologies.
Then, hetranslated the doses to the hypothetical maximally-exposed individual, assuming completed exposure pathways into an increased cancer risk in humans. Finally, he compared the dosespotentially received by aquatic biota to accepted impact threshold standards using two separateapproaches.
Hoffman Prefiled at 7-11, 15-16; Hearing Tr. at 3092-3107 (Hoffman).
128. No witness other than Dr. Hoffman testified as to the proper approach to assessing whether the best usages of the Hudson River would be impaired by the release of radiological materials in the environment, and no other witness challenged Dr. Hoffman's approach.
Hearingrr., passim.129. Given that demonstrating any increased risk from low doses of radioactivity isbeyond the limits of epidemiological detection, the conversion of calculated doses to an estimateof risk to human health requires the use of a model, typically the "linear no-threshold model"described in the 2006 National Research Council of the National Academies report entitled"IHealth Risks from Exposure to Low Levels of Ionizing Radiation" commonly referred to as theBiological Effects ot Ionizing Radiation
("BEIR")
VII Report. Entergy Ex. #43 at 1: EntergyEx. 101: Hearing Tr. at 3098-3 102 (Hoffman).
130. The BEIR VII Report indicates that, as a result of exposure to all sources ofcarcinogens including natural background radiation, the risk of developing cancer in later life is0.42 or 42%. Entergy Ex. # 101 at 7; Entergy Ex. #123A-123C; Hearing Tr. at 3100-3101 (Hoffman).
131. The BEIR VII Report also indicates that. if a population of 100 individuals has alifetime exposure to ionizing radiation dose of 10,000 mrem in addition to the lifetime exposureto natural background radiation and all other sources of carcinogens, that additional exposure to10,000 mrem results in one excess cancer in the population
-in other words, a 1 in 100 chanceof developing cancer. Hearing Tr. at 3100-3101; Entergy Ex. #123B.132. To estimate the risk of cancer at excess doses lower than 10,000 mrem, the BEIRVI Report applies a "linear no-threshold" model to calculate the risk of cancer in later life due toexcess exposures to ionizing radiation over a lifetime.
Entergy Ex. 4101 at 6-7.133. The" linear no-threshold model" assumes a reduction in risk that is proportional to a reduction in dose -for example, a lifetime excess exposure to a dose of I mrem equates to arisk that is I in 1,000,000 or I/ 10,000 the risk associated with an excess dose of 10,000 mrem.I Tearing Tr. at 3102 (Hoffman).
While this linear no-threshold model may not actually mirrorexperienced conditions, it is a conservative methodology for calculating increased risk as ameasure of dose. Entergy Ex. #43.134. Pursuant to the BIER VII linear no-threshold model, in order to experience one(1) excess cancer in a given population, one million (IL000,000) people would need to beexposed to the I mrem excess dose. Hearing Tr. at 3102 (Hoffman).
34 135. As noted above, the excess dose associated with the radiological materials entering the Hudson River via groundwater and stormwater from Indian Point in 2010 was0.0002 millirem.
See Paragraph 119 above.136. Using the BEIR VII linear no-threshold model. this excess dose level equates to arisk of I in 5 billion -in other words, five billion (5.000,000,000) people would have to beexposed to the maximum excess dose attributable to Indian Point groundwater and stormwater in20 10 in order to expect one (1) additional case of cancer. Hearing Tr. at 3102-3103 (Hoffman).
137. This risk is based upon the human consumption of fish maximally exposed to theradionuclides entering the Hudson River from groundwater and stormwater at Indian Point, andalso assumes that each human being in the population consumes one (I) pound of these fish eachweek during the entire one-year period. Hearing Tr. at 3103-3015 (Hoffman).
138. As a practical matter, it is not possible for five billion (5,000.000,000) people toconsume that quantity of fish; let alone fish maximally exposed to radionuclides entering theHudson River from groundwater and stormwater at Indian Point; therefore, the actual risk tohuman health associated with the 2010 unplanned releases to the Hudson River fromgroundwater and stormwater at Indian Point is expected to be zero. Hearing Tr. at. 3104-3105 (Hoffman).
139. With respect to potential impacts to aquatic biota. the United States Department of Energy ("DOE") has promulgated guidelines for radiation dose rates from environmental media that are widely employed to calculate impacts to biota and considered authoritative on theissue, the DOE guidelines recommend limiting the dose to aquatic biota to less than 1.0 radtlday.
Hoffman Prefiled at 15: Entergy Ex. #45 at MI-I. MI-4.
140. Using the DOE's RESRAD-BIOTA dose model, Dr. Hotiman calculated the doserates to aquatic organisms associated with the maximum concentrations of radionuclides estimated to be migrating to the Hudson River related to unplanned releases via groundwater andstormwater at Indian Point in 2010 to be 0.00000000205 rad/day for tritium and 0.000371rad/day for strontium.
Hoffman Prefiled at 15-16.141. Dr. Hoffman also calculated dose rates to aquatic biota using dose coefficients fortritium and strontium-90 documented for external and internal exposures developed by theUnited Nations Scientific Committee on Exposure to Atomic Radiation
("UNSCEAR"),
andthose doses were 0.0000000029 rad/day and 0.00047 rad/day for tritium and strontium-90.
respectively.
Hoffman Prefiled at 16. Dr. Hoffmnan indicated that these doses effectively equateto zero risk to the ecosystem.
Hoffman Prefiled at 16; Hearing Tr. at 3105-3107 (Hoffman).
142. The doses to aquatic biota calculated using DOE's RESRAD-BIOTA model andthe UNSCEAR dose coefficients are orders of magnitude below DOE's 1 rad/day guideline.
Hoffman Prefiled at 16.143. To provide context for the doses at issue in this case, the excess dose of .0002mrem associated with Indian Point's 2010 releases to the Hudson River via groundwater andstormwater is orders of magnitude lower than the average radiation dose experienced by anindividual in the United States (620 millirem).
a single chest x-ray (4 mrem), a one-way crosscountry flight (2 inrern).
or eating a single banana. which contains naturally occurring radioactive potassium (0.01 mrem). Rebuttal Prefiled at 2-3; 1 learing Tr. at 3095-3097; EntergyEx. 121: Entergy Ex. #37 at 12; Entergy Ex. #.43.144. No other witness suggested another calculation methodology for assessing theimpact ofradiological releases to aquatic organisms, or identified any error in l)r. Hioflhman's 36 approach or calculations.
Prefiled and Rebuttal Testimony of Kolakowski and Gundersen; Hearing Tr., passim.145. Assuming comparable levels of releases to the I Iudson River throughout thelicense renewal period for Units 2 and 3. the resulting risk to human health and the environment is similarly expected to be zero. Hearing 'r. at 3107 (Hoffman).
146. To the extent any small, undetected leak from the Unit 2 SFP may still exist, itmust be smaller than those identified and repaired by Entergy given the subsequent attenuation of the tritium plume. Hearing Tr. at 3970-3971 (Bar'enik);
Entergy Ex. 433 at 92.147. No other witness analyzed the effects on human health or aquatic biota of thereleases of radiological materials to the Hudson River via the groundwater at Indian Point.Hearing Tr., passim.148. Mr. Kolakowski acknowledged that the potential impairment to the best usages ofthe Hludson River was a reason for the denial of the Section 401 WQC. Kowalski Prefiled at 11,Hearing Tr. at 2728 (Kowalski).
149. Mr. Kolakowski stated that Entergy provides to NYSDEC copies of its annualradiological release reports, but he did not review them for purposes of preparing his testimony.
Hearing Tr. at 2771-2772 (Kolakowski).
150. Analyzing the impacts of radiological releases on Hudson River aquaticorganisms was beyond Mr. Kolakowski's area of expertise.
Hearing Tr. at 2768 (Kolakowski).
151. Mr. Kolakowski reviewed GZA's Site Investigation Report and the testimony ofl.ntergy's experts.
Kolakowski Pretiled at 12; Kolakowski Rebuttal at 6.37 152. Mr. Kolakowski agreed with Entergy's experts on the absence of impacts on thebest uses of the Hudson Ri\'er associated with unplanned releases of radiological materials togroundwater at Indian Point. Hearing Tr. at 2745 (Kolakowski).
153. Mr. Kolakowski admitted that any discharge into the waters of the state, if insufficient concentration, could impair the waters for their best usages. ilearing Tr. at 2746(Kolakowski).
154. Mr. Kolakowski agreed with NYSDEC's conclusion on the absence of impacts toHudson River fish from Indian Point's unplanned releases.
Hearing Tr. at 2768 (Kolakowski).
155. Mr. Kolakowski agreed with NRC's conclusions on the absence of impacts topublic health and safety and the environment from Indian Point's unplanned releases.
HearingTr. at 2770-2771 (Kolakowski).
156. Mr. Kolakowski had no evidence of impacts to the best usages of the HudsonRiver based on Indian Point's unplanned releases.
Hearing Tr. at 2750 (Kolakowski).
157. Mr. Kolakowski had no factual basis for believing that the continued operation ofUnits 2 and 3 during license renewal would result in a leak sufficiently large to impair theHudson River for its best usages. Hearing Tr. at 2759-2760.
158. Mr. Gundersen's dose assessment testimony in Finestone
: v. Florida Power &Light Co.. 2006 WL 267330 (S.D. Fla.) was rejected as "belied by the contemporaneous reportsof the NRC and the [Florida Department of'Health and Radiological Safety]"
and "rife w%:ithconclusorv statements".
id at
* 10, which on appeal were characterized as a "scientifically unsupported leap of faith" that disqualified him as an expert. Finestone
: v. florida Power &Light Co.. 2006 WL 267330, at *11 (S.D. Fla. Jan. 6, 2006); Finestone
: v. Florida Power & LightCo. 272 Fed. Appx. 761, 768 (1 lth Cir. 2008); [fearing lr. at 2885, 2887 (Gundersen).
38 159. Since the decision in Finestone, Mr. Gundersen has not pursued any education ortraining in the area of dose assessment.
lHeafing Tr. at 2889-2990 (Gundersen).
160. Mr. Gundersen did not perform a dose assessment to evaluate whether theunplanned releases of radiological materials at Indian Point were in amounts that will impair theHudson River for its best usages. Hearing Tr. at 2897, 2922. 2976.161. Instead.,
Mr. Gundersen assumed that an impairment would result if any amountof radiological materials reached the Hudson River. Hearing Tr. at 2815 (Gundersen).
162. Mr. Gundersen did not review or comment on the testimony provided byFntergy's
: witness, Dr. F. Owen Hoffman, stating the he had "no idea who Dr. Hoffman is orwhat he wrote." Hearing Trans at 2892 (Gundersen).
163. Mr. Gundersen agreed that tritium has not been detected in water samplescollected from the Hudson River. Hearing Tr. at 2977 (Gundersen).
164. When asked on the stand to calculate the increased risk of cancer associated withthe 2010 unplanned releases from Indian Point to the Hudson River, Mr. Gundersen applied theBEIR VII "linear no-threshold model" and arrived at the same risk level calculated by Dr.Hoffman -i.e., one in five billion.
Hearing Tr. at 2919 (Gundersen).
165. Mr. Gundersen did not perform any calculations to determine whether strontium-90 released from Indian Point was found in Hudson River fish. HearingT
: r. at 2977(Gundersen).
166. When questioned about the significance of a particular release associated with apipe leak at Indian Point, Mr. Gundersen stated that the concentrations of tritium in that waterwas less than one tenth of the federal safe drinking water standards.
Hearing Tr. at 2959.39 167. Neither Mr. Kolakowski nor Mr. Gundersen provided any scientific basis tosupport the conclusion that radiological releases from Indian Point have the potential to impairthe Hudson River for its best usages for primary and secondary contact recreation and fishing.Hoffman Prefiled at 14, 18; Hearing Tr. at 3102-3107 (Hofihman);
Kolakowski Prefiled andPrefiled
: Rebuttal, passim; Gundersen Prefiled and Prefiled
: Rebuttal, passim; Hearing Tr.(Kolakowski),
passim; Hearing Tr. (Gundersen),
passim.D. Inapplicability of ECL &sect;17-0807(1) and 6 NYCRR &sect;750-1.3(a) 168. The radiological materials associated with the unplanned releases at issue in thiscase are neither radiological warfare agents nor high-level radioactive wastes. Prefiled Rebuttalat 39-40; Htearing Tr. at 2734-2737 (Kolakowski).
169. Mr. Kolakowski recanted his position that the radiological releases at issue in thisproceeding were prohibited by ECL &sect; 17-0807(1) and 6 NYCRR &sect;750-1.3(a) because heconcluded that such releases did not constitute "the discharge of any radiological,
: chemical, orbiological warfare agent or high-level radioactive waste" as prohibited by those provisions.
I learing Tr. at 2734-2737 (Kolakowski).
E. Inapplicability of ECL &sect;17-0807(4) 170. It is feasible to install a sufficient number of groundwater extraction wells at theperimeter of the Indian Point site to reverse the hydraulic gradient at Indian Point sufficient toensure that no radionuclides from the identified Indian Point groundwater plumes would reachthe Hudson River via the groundwater pathway during license renewal term. See PrefiledRebuttal at 40-41: 1learing Tr. at 4038. 4041, 4093-4094 (Barvenik).
F. Inapplicability of ECL &sect;17-0501 as a separate basis for the Notice.171. After taking the stand, Mr. Kolakowski inserted another basis for denial of theApplication, specificallx ECL &sect;17-0501.
Hearing ir. at 2736 (Kolakowski).
40 172. This basis for denial did not appear in the Notice or in Mr. Kolakowski's prefiledtestimony.
Entergy Ex. 49; Kolakowski Prefiled; Kolakowski Prefiled Rebuttal.
173. Mr. Kolakowski testified that ECL &sect; 17-0501 was not an independent basis fordenial of the Application but, instead, constituted the statutory authority for the Department toclassify waters for their best usages and to adopt standards for the protection of the best usage ofthose waters. Hearing Tr. at 2742-2743 (Kolakowski).
G. Inapplicability of EPA's Safe Drinking Water Standards 174. For purposes of evaluating the Application, Department Staff did not evaluatewhether unplanned radiological releases from Indian Point impair the groundwater beneathIndian Point for its best usages. Hearing l'r. at 2759-2763 (Kolakowski).
175. Department Staff did. however, review the groundwater concentrations ofradionuclides presented in the GZA Report and concluded that those concentrations did notexceed the Department's groundwater standards.
Hearing Tr. at 2763 (Kolakowski).
176. The federal Safe Drinking Water Act ("SDWA")
sets forth "maximumcontaminant levels" for various contaminants, which is defined as "the maximum permissible level of a contaminant in water which is delivered to any user of a public water system."
42U.S.C. &sect;300f(3)
(emphasis added). The maximum contaminant levels do not apply to levels ofcontamination contained in groundwater, but rather apply at the "tap" where that water isdelivered.
Prclilcd Rebuttal at 8. Furthermore, the term "public water system" is defined in theSDWA as "a system for the provision to the public of water lbr human consumption throughpipes or other constructed conveyances, if such system has at least fifteen service connections orregularly serves at least twenty-five individuals."
42 U.S.C. &sect;&sect;300f(l)
-(4), 300g. As such, theEPA's maximum contaminant levels do not apply to wells on the site at Indian Point which arenot used as a drinking water source at all, much less to a public water system. Entergy 1':x. 33 at41 1 3- 14: see also itt p: /ww. nrc. gzov/readin i-rrn/doc-coI ections/flact-sheiets/tri t i uIm-rad iat ion-t'.h i ni1.42S STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC.Entergy Nuclear Indian Point 3, LLC, DEC App. Nos. 3-5522-00011/00030 (IP2)and Entergy Nuclear Operations Inc.'s 3-5522-00105/00031 (IP3)Joint Application for CWA &sect; 401 WaterQuality Certification CERTIFICATE OF SERVICE1. William J. Trach. hereby certify that, on this 27th day of April, 2012, 1 caused a true andaccurate copy of:1. Post Hcaring Memorandum of Entergy Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3. LLC, and Entergy Nuclear Operations, Inc. -Radiological Issues; and2. Proposed Findings of Fact of Entergy Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3, LLC, and Entergy Nuclear Operations, Inc. -Radiological Issues,to be served on all counsel of record in the above-captioned action via First Class Mail and/or e-mail as specified in the appended Service List.William JjTrachDated: April 27. 2012.1 ..- _1298 ,i_5 I SERVICE LISTI Updated 4/27/2012)
Service by E-mail and First Class NMailMIaria E. VillaDaniel P. O'Connell Administrative Law JudgesOffice of Hearings and Mediation ServicesNew York State Department ofEnvironmental Conservation 625 Broadway, First FloorAlbany. New York 12233-1550 5 18-402-9003 518-402-9037 (tfax)mevilla(iaw.dec.state.nv.us dInoconne(a.
2w.dec.state.nv.us Mark D. Sanza, Esq.Assistant CounselWilliam G. Little, Esq.Associate CounselCOUNSEL FOR DEPARTMENT STAFFNew York State Department of Environmental Conservation Division of Legal Aflairs625 Broadway.
14"h FloorAlbany, New York 12233-1500 518-402-9195 518-402-9018 (fax)wgfittle(&gw.dec.state.n
: v. usmdsanza)gw.dec.
state. ny. usRobert L. Sweeney, Esq.COUNSEL FOR AFRICAN AMERICANENVIRONMENTALIST ASSOCIATION Whiteman Osterman
& HannaOne Commerce PlazaAlbany, New York 12260518-487-7670 518-487-7777 (fax)rsweencv(,woh.com Mark Lucas, Esq.COUNSEL FOR RIVERKEEPER INC.,SCENIC HUDSON, INC. and THENATURAL RESOURCES DEFENSECOUNCILRiverkecper, Inc.20 Sccor RoadOssining.
New York 10562914-478-4501, ext. 241914-478-4527 (fax)rtroutman(awriverkeeper.org iiil cas@riverkeeper.org Richard L. Brodskv'121 Saw Mill River RoadWhite Plains, NY 10607Tel: 914.720.8830 richardlIhrodsk v'd.:wmail
.comMclissa-Jean Rotini, Esq.Assistant County Attorney.
Of CounselWcstchestcr County Attorney's OfficeMichaelian Office Building148 Martine Avenue, 6"' FloorWhite Plains, NY 10601914-995-3630 9 14-995-3132 (Fax)Email: NIJ RI~ I(wstchcstertgov.
com01.31,A1_'2-
;S08 1 Thomas F. Wood, Esq.lTown Attorney.
Town of. Cortlandt D)aniel Riesel, Esq.COUNSEL.
FOR TOWN OFCORTLANDT Sive. Paget & Riesel. P.C.460 Park Avenue, 10th FloorNew York, New York 100222 12-421-2150 212-421-1891 (fax)driesel(iedsprlaw.com Michael J. Delaney.
[-sq.Director, Energy Regulatory AffairsNew York City Department ofEnvironmental Protection 59-17 Junction Boulevard
: Flushing, NY 11373(718) 595-3982mdelaney(2iAdep.nve.gov Robert J. Glasser, Esq.Robert J. Glasser.
P.C.COUNSEL.
FOR CENTRAL.
HUDSON GAS &ELECTRIC CORPORATION 284 South AvenuePouphkccpsie, New York 12601Cellphone (preferred):
646-318-0522 845-486-5292 845-486-5782 Bob. alasserC(,robertiigasserpc.com Norris McDonaldPresident Center for Environment, Commerce
& EnergyAFRICAN AMERICAN ENVIRONMENTALIST ASSOCIATION 1629 K Street, N.W., Suite 300Washington, D.C. 20006301-265-8185 (direct)443-569-5102 norrismcdonald
@&msn.com www,'.aaenvironment
.com/CECE.htm I)anicl Ricscl. E-sq.Victoria Shiah. Esq.Adam Stolorow, Esq.Sive. Paget & Riescl, P.C.460 Park Avenue. 10"' FloorNew York, NY 10022driesel(&,sprlaw.corn vshiah(iisprlaw.com astolorow(ZF-sprlaw.
coinService E-mail OnlyIJii,*\ ~3~'t~M I Ned SullivanPresident, Scenic Hudson, Inc.One Civic Center Plaza, Suite 200Poughkeepsie, New York 10591845-473-4440, ext. 224845-452-7567 (fax )usul li van(cvsccnichudson.oru HIayley Mauskapt',
Esq.Environmental Advocacy Associate Scenic Hudson. Inc.One Civic Center Plaza, Suite 200Poughkeepsie, NY 10591845-473-4440, ext. 210845-473-2649 (fax)hmauskaofrd/iscenich udson.ori Paul Schwartzberg Land Projects Specialist Scenic Hudson. Inc.One Civic Center Plaza. Suite 200Poughkeepsie, New York 10591845 242-2915845 255-2827 (fax)schwartzberL,,ui&#xfd;sceni chudson .ori,Karl S. Coplan, Esq.Daniel E. Estrin, Esq.Supervising Attorney/Adjunct Professor ofLawPace Environmental Litigation Clinic, Inc.Pace University School of Law78 North BroadwayWhite Plains, New York 10603914-422-4343 914-422-4661 (fax)kcoplan6iaaw.pace.
cdudestrin(Wlaw.pace.edu Intems:Amber Patersonapaierson(r'law.pace.edu Kimberly Kleinkklein(a:.alw.pace.edu Geoffrey H. Fettus, Esq.Senior Project AttorneyCOUNSEL FOR NATURALRESOURCES DEFENSE' C)UNCII.1200 New York Avenue, N.W., 400Washington, D.C. 20005202-289-237 1202-289-1060 (fax),., fettus(,i,.nrdc.ora Deborah Brancato.,
Esq.Staff AttorneyRiverkeeper, Inc.828 South BroadwavTarrytown.
New York 10591914-478-4501.
ext. 230914-478-4527 (fax)dbrancato(iw.riverkcepcr.or, 1.1f.\.\22 731(:', i Phillip H. Musegaas, Esq.Hudson River Program l)irector Riverkeeper.
Inc.828 South BroadwayTarrvtown.
New York 10591914-478-4501.
ext. 224phillipaiiriverkccepr.orgi Frank V. Bifira, Esq.COUNSEL.
FOR MIRANT BOWL.INEI liscock & Barclay.
LIT.P50 Beaver StreetAlbany, New York 12207518-429-4224 518-427-3487 (fax)fbi fcra(241hblaw.com Sam M. Laniado.
Esq.David B. Johnson, Esq.Read and Laniado.
LLPCOUNSEL FOR INDEPENDENT POWER PRODUCERS OF NEW YORK25 Eagle StreetAlbany, New York 12207-1901 518-465-9313 51 8-465-93 15 (fax)smJl(ireadlaniado.corn dbj.Zz.:rcadlaniado.corn Steven Blow, Esq.Assistant General CounselNew York State Department of PublicServiceAgency Building ThrceEmpire State PlazaAlbany, New York 12223-1350 518-474-6955 518-486-5710 (fax)steven.blow(i&dps.nv.
twovKelli M. Dowell, Esq.Assistant General Counscl/.-nvironmental Frntergy Services.
Inc.308 East Pearl Street. Suite 700Jackson, MS 39201601-969-2596 Cell: 601-519-6823 601-969-2696 Faxkdowell~entergy.com 41,J3A:2.2-7
)., I NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, ILLC, Entergy DEC App. Nos. 3-5522-00011/00030 (Unit 2)Nuclear Indian Point 3, LLC, and Entergy 3-5522-00105100031 (IP3)Nuclear Operations, lnc.'s Joint Application for CWA &sect;401 Water Quality Certification POST HEARING MEMORANDUM OF ENTERGY NUCLEARINDIAN POINT 2, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC,AND ENTERGY NUCLEAR OPERATIONS, INC.RADIOLOGICAL ISSUESENTERGY NUCLEAR INDIAN POINT 2, LLCENTERGY NUCLEAR INDIAN POINT 3, LLCENTERGY NUCLEAR OPERATIONS, INC.By Their Attorneys, John C._ Englanater, Esq.-'Elise N. Zoli, Esq.William J. Trach. Esq.Robert 1I. Fitzgerald.
Esq.GoodwinProcter llPExchange PlaceBoston. MA 02109-2881 (617) 570-1000Dated: April 27, 2012 TABLE OF CONTENTSPagePRELIMINARY STATEMENT
..................................................................................................
1RELEVANT FACTS ...........................................................................................................
: 31. Indian Point's Radiological Releases
..................................................................
: 32. Site G roundwater Investigation
.........................................................................
: 43. Regulatory Oversight of Entergy's Unplanned Releases
...................................
: 54. Compliance with All Regulatory Requirements
.................................................
6PROCEDURAL HISTORY ......................................................................................................
9ARGUMENT
................................................................................................................................
11!. NYSDEC Staff's Denial of the Application on the Basis of Radiological Releases from Indian Point Is Outside NYSDEC's Statutory CWA Authority and Is Preempted by Federal Law .................................................................................
11A. NYSDEC has no statutory authority to regulate radiological releases fromNRC-regulated facilities under the CWA ........................................................
I IB. NYSDEC is preempted from regulating Indian Point's radiological releases
...........................................................................................................
..131. The evidence adduced at hearing mandates a determination that theNotice is preempted, which the Issues Ruling recognized as apossibility depending on the facts .........................................................
13a. The NRC does regulate Indian Point's unplanned radiological releases
......................................................................
15.b. Entergy's unplanned releases fully comply with NRCradiation protection limits and other applicable regulations
.........
182. New case law post-dating the Issues Ruling confirms thatNYSDEC has no authority to regulate Indian Point's radiological re lease s ......................................................................................................
2()!1. Even if NVSDEC Has Some Authority to Regulate Radiological Releasesfrom Indian Point, NYSDEC Staff's Attempt to Deny the WQC on the Basisof Radiological Releases Is Unsupported and Improper
........................................
21A. The Notice is improper on its face, as NYSDEC Staff employed the wrongstandard in purporting to deny the Application
.....................................................
2i B. The unplanned release of radiological materials from Indian Point has notimpaired the Hudson River for its best usage .................................................
231. Entergy's witnesses and evidence demonstrate that there is noscientitic basis to conclude that unplanned releases from IndianPoint have impaired or will impair the Iludson River for its bestuses ....................................................................................................
..2 32. Both NYSDEC and the NRC agree with Entergy's conclusion thatunplanned releases have not impaired the best usage of the HudsonR iver .....................................................................................................
..263. DEC Staff offered no evidence to support its assertion thatunplanned releases have the potential to impair the best usage ofthe H udson River ................................................................................
284. Riverkeeper's witness offered no relevant testimony regarding theeffect of Indian Point's unplanned releases on the best usage of theH udson R iver ......................................................................................
..3 15. Entergy has demonstrated that there are reasonable assurances thatany potential unplanned radiological releases from Indian Pointduring the license renewal period will not impair the best uses ofthe H udson River ...................................................................................
32a. The sources of past unplanned releases from Indian Pointhave been eliminated or remediated
.........................................
32b. Entergy has implemented programs to prevent future leaksof radiological materials from Indian Point ..............................
34c. Entergy's long-term groundwater monitoring system hasbeen designed to identify releases from systems, structures and components containing radiological materials shouldthey leak in the ffiture ...............................................................
35C. DEC Stafrs attempts to support the proposed denial of the Application ongrounds other than those set forth in the Notice are improper and shouldbe rejected
............................................................................................................
3 61. NYSDEC Staff s attempt to support the proposed denial ongrounds not set forth in the Notice should be rejected as a matter oflaw ....................................................................................................
... .3 72. Mr. Kolakowski conceded that ECL &sect; 17-0807(1) and 6 NYCRR&sect;750-1.3(a) are not proper grounds for denying Entergy's A pplication
........................................................................................
..403. Radiological discharges from NRC-licensed lhcilities are notregulated under the SPDES program and, therefore, ECL &sect; 17-0807(4) cannot be a basis for denying Entergy's Application
..............
404. Mr. Kolakowski's insertion of an allegedly new ground for denialon the stand is simply the statutory authority for the regulatory requirement that discharges comply with applicable water qualitystandards
............................................................................................
..42ii D. The Department did not deny Entergy's Application on the basis ofgroundwater concentrations, and any attempt to do so would likewise bepreempted and unsupported in law and fact ...................................................
431. Federal law pre-empts any state regulation of radiological groundwater concentrations beneath Indian Point ...............................
432. Even if the regulation of onsite groundwater was not pre-empted.
&sect;401 of the CWA applies only to discharges to surface waters ............
433. EPA's Safe Drinking Water Act standards do not apply to thegroundwater beneath Indian Point ........................................................
44REQ UESTED RELIEF ..........................................................................................................
45III Entergy Nuclear Indian Point 2, LLC, Eniergy Nuclear Indian Point 3. LLC and EntergyNuclear Operations, Inc. (collectively, "Entergy")
submit this post-hearing memorandum andaccompanying proposed findings of fact to demonstrate that this Tribunal should disregard theNew York State Department of Environmental Conservation
("NYSDEC" or "Department")
Stalfs April 2, 2010 proposed notice of denial (the "Notice")
of Entergy's application (the"Application")
for a Water Quality Certification
("WQC") under &sect; 401 of the federal CleanWater Act ("CWA") on the basis of unplanned releases of radiological materials firom IndianPoint to the Hudson River.PRELIMINARY STATEMENT The Notice's proposal that the Commissioner deny Entergy's WQC Application based onthe discharge to the Hudson River of groundwater containing inconsequential amounts ofradionuclides resulting from the operation of Indian Point Units I and 2 is without basis in law orfact. First, NYSDEC lacks jurisdiction to regulate radiological releases from Indian Point under&sect; 401 of the CWA because Congress has expressly exempted radiological materials subject toregulation by the Nuclear Regulatory Commission
("NRC") from the reach of the CWA.Furthermore, even if regulation of Indian Point's releases were not outside the scope ofNYSDEC's statutory authority under the CWA, federal field preemption prohibits the proposeddenial by NYSDEC Staff on radiological
: grounds, as sole authority over the regulation ofradiological materials from NRC-licensed facilities has been given to the NRC by the AtomiclEnergy Act ("AEA".).
Indeed, NYSDEC has repeatedly acknowledged its lack of authority under the CWA to regulate radionuclide releases from Indian Point and other nuclear facilities, and NYSDEC Staff provides no credible basis tbr its inconsistent position in this case.Furthermore, even if N YSI)EC possessed jurisdiction to regulate Indian Point'sunplanned
: releases, the Notice is deficient as a matter of law. NYSDEC Staff premised the Notice on the unsubstantiated assertion that Indian Point's radiological releases "could"potentially impair the Hudson River for its best uses. The Notice was thus infirm when issued inApril 2010. because it was based not on an analysis
-as required by law -of whether there werereasonable assurances that Indian Point's unplanned releases would comply with the designated best uses of the Hudson River, but rather on mere speculation about the possibility of futurereleases impairing the best uses of the Hudson River. Such speculation cannot as a matter of lawsupport the Notice. particularly in light of the uncontroverted findings of the NRC, NYSDECradiological
: experts, and the New York State Department of I lealth ("NYSDOH"),
all of whomconcluded that the radiological releases at issue in this proceeding (i) did not violate any federalor state radiological release standards, and (ii) posed no threat to public health and safety or theenvironment.
The evidence adduced at hearing proves the utter lack of any factual basis for NYSDECStaff's Notice. The uncontroverted testimony of Entergy's leading radiological experts is thatthe unplanned radionuclide releases from Indian Point are insignificant, with a total annual doseto a hypothetical maximally-exposed individual of less than that received by eating a singlebanana. Consequently.
there is no evidence that there has been any impact on human health orsafety or Hudson River biota from the releases.
This evidence is corroborated by theindependent assessment performed by NRC investigators and NYSDEC's own radiological
: experts, which confirmed that Indian Point's releases have had no effect on the best uses of theIludson River and are otherwise in compliance with applicable law. In what can only be seen asan acknowledgement of the lack of any credible evidence to support its position.
N YSDEC Staffrefused to present the testimony of its radiological experts who actually participated in theinvestigation of Entergy's unplanned
: releases, instead oftering the testimony of a single staff engineer.
Paul Kolakowski.
who conceded that he had no radiological
: training, education, orexpertise, had performed no dose or risk assessment, and offered no criticism of the evidenceoffered by Entergy.
Indeed, time and again, Mr. Kolakowski conceded that NYSDEC Staff sposition.
as reflected in the Notice and his prefiled testimony, was either incorrect or not inconformity with applicable law.For all of these reasons, as set forth in greater detail below, this Tribunal should find thatNYSDEC Staff did not properly purport to deny the Application based on radiological considerations.
RELEVANT FACTS'1. Indian Point's Radioloeical ReleasesIndian Point Units 2 and 3 have operated pursuant to 40-year NRC-issued licenses since1973 and 1975, respectively.
Proposed Findings of Fact ("PFF"),
at &#xb6; 1. Pursuant to therequirements of those licenses, releases of radiological materials from Units 2 and 3 into theHudson River must comply with all release requirements of the AEA, and NRC regulations promulgated pursuant thereto.
These include "planned" or routine releases of radiological materials incident to the everyday operation of the Units, as well as "unplanned,"
or non-routine releases that occur as a result of operational occurrences such as leaks or spills.2 PFF at &#xb6; 2.Both such -planned" and "unplanned" releases are regulated by the NRC pursuant to its authority under the AEA. and are authorized by Entergy's federal NRC operating licenses.
See PFF at 11 3.The factual citations in the Memorandum of Law are to lintergy's Proposed Findings of Fact ("PFF"),submitted along with the Memorandum of Law. All citations to the record are in the format set ftrth in thePFF.I.Entergy notes that the Notice only asserts regulatory authority over Indian Point's unplanned discharges, anddoes not seek to regulate Indian Point's planned discharges.
This Tribunal granted Entergy's motion in limineto preclude any evidence regarding the effect of Indian Point's planned discharpes on the Hudson River. SeePFF at &#xb6; 108. As set ftrth in Section I, below. NYSDEC Staff's attempt to distinguish between Indian Point'splanned and unplanned releases is without basis in law, as both are regulated by the NRC pursuant to itsexclusive authoritv over radiological releases from licensed nuclear facilities.
: 2. Site Groundwater Investigation In 2005, Entergy identified the presence of small, unplanned releases of radionuclides togroundwater at Indian Point. PIF at &#xb6;&#xb6; 13-14. Two sources of radionuclides ultimately wereidentified:
(1) the Unit 2 spent fuel pool ("SFP"),
and (2) the Unit I SFPs. PFF at &#xb6;&#xb6; 14. 28(c),45(g).3 The identified unplanned releases from the Unit I and the Unit 2 SFPs have been thesubject of a comprehensive NRC-overseen investigation (in which NYSDEC and NYSDOHhave participated as stakeholders),
with the sources of radionuclides
: located, eliminated, andredressed.
PFF at &#xb6;&#xb6; 35-46. The groundwater conditions as a result of these past releases alsohave been intensively investigated under NRC's oversight, and are currently being monitored through an extensive groundwater monitoring network that has demonstrated, and is expected tocontinue to demonstrate, decreases
-or attenuation
-of the original identified radionuclide conditions.
PFF at &#xb6;&#xb6; 35-46, 61-69. Thus, it is undisputed that the sources of past unplanned releases of radionuclides at Indian Point have been identified and remediated.
Entergy furtherdetermined that some amount of those radionuclides discharged into the I ludson River, althoughin extremely small amounts that were a fraction of the allowable radiation protection limitspursuant to Indian Point's NRC licenses and NRC regulations, and that had no impact on the bestuses of the Hudson River. PFF at &#xb6;&#xb6; 32(b), (g), 38, 45(k), 119-20.Specifically, following the discovery in August 2005 of shrinkage cracks exhibiting moisture on an excavated exterior Unit 2 SFP wall. Entergy retained GZA GeoEnvironmental, Inc. ("GZA").
a leading hydrogeologic consulting firm. to perform a comprehensive.
multi-year groundwater investigation of all three Indian Point units and surrounding areas, fbcusing onpotential discharges of radionuclides to groundwater and the potential movement of thatThere have been no past releases of radionuclides from the Unit 3 SFP, which contains a tell-tale drain systemthat provides high confidence that no potential future radionuclide releases to the environment will occur. PFFat&#xb6;&#xb6; 12, 28(d).4 groundwater on and off the Indian Point site. PFF at &#xb6;&#xb6; 19-20. 24. The purpose of theinvestigation was to identify the nature and extent of radiological groundwater contamination and, by using state-of-the-practice science and technologies, to develop a comprehensive understanding of the Indian Point site hydrogeology.
PFF at &#xb6;! 20-21, 24. This led to thedevelopment of the January 7, 2008 Site Investigation Report ("GZA Report"),
a key component of which was the Conceptual Site Model, which provides a thorough understanding of sitegroundwater flow (and thus radionuclide transport) at Indian Point. PFF at &#xb6;&#xb6; 25-26.Specifically, the GZA Report identifies two distinct "plumes" of groundwater containing radionuclides.
one containing principally
: tritium, and one containing principally strontium.
PFFat &#xb6; 28(a). The "tritium plume" is primarily a result of past releases of water from the Unit 2SFP, and the "strontium plume" is primarily a result of past releases of water from Unit I SFPs.PFF at &#xb6; 28(a), (c). The total radiological activities of these two plumes have been decreasing since source termination, with periodic, localized fluctuations in activity and overall reductions in the rate of decrease, as would be expected.
PFF at &#xb6; 66. The total amount of tritium in theUnit 2 plume has decreased substantially
-approximately 89 percent -since the shrinkage crackleaks were contained in late 2005. PFF at &#xb6;&#xb6; 67. Likewise, the total amount of strontium in theUnit I plume has decreased substantially
-approximately 70 percent -since the spent fuel wasremoved from the Unit I SFPs and the pool water was subsequently drained in late 2008. PFF at'! 68.3. Regulatory Oversight of Entergy's Unplanned ReleasesPursuant to its exclusive regulatory jurisdiction over Indian Point's unplanned
: releases, the NRC oversaw Indian Point's groundwater investigation, issuing a comprehensive reportanalyzing the results of the investigation and evaluating Indian Point's compliance with liederal radiation protection limits. The conclusion of the NRC was identical to Entergy's, namely, thatthe low-level discharges of radiological materials to the Hudson River from releases from theUnit 1 and Unit 2 SFPs were in full compliance with all federal radiation protection requirements.
and that the releases did not, and in the future would not, have any impact onpublic health and safety or the environment.
PFF at &#xb6;&#xb6; 41, 45. 111-12.NYSDEC and NYSDOH also participated as stakeholders in Entergy's site investigation, analyzing split samples of groundwater to confirm the accuracy of Entergy's
: testing, performing a test of Hudson River fish to confirm the releases had no impact on fish, and providing inputinto the analysis, direction, and interpretation of the results of the investigation.
See PFF at I&#xb6;32-34. NYSDEC issued findings at the end of its investigation that mirrored those of Entergyand the NRC, concluding that: (i) the discharges from the SFP releases to the IHudson Rivercomplied with all state surface water radiological limits; (ii) there was no evidence that thereleases had any effect on aquatic biota in the Hudson River; and (iii) Entergy's remedialapproach for the releases was acceptable.
PFF at &#xb6;&#xb6; 32-34.4. Compliance with All Regulatory Requirements NRC regulations for the release of radiological materials require all NRC-licensed nuclear facilities to calculate the annual release of radiological materials to the environment, andto calculate the dose to a hypothetical maximally-exposed individual resulting from thosereleases, in order to ensure compliance with NRC's radiation protection standards and "As LowAs Reasonabl, Achievable"
("ALARA")
design objectives.
10 C.F.R. Part 50, Appendix 1; PFFat &#xb6;1 110-11, 115-17. NRC's regulations do not differentiate between planned releases andunplanned
: releases, both of which are subject to NRC's regulation and must be quantified.
PFFat &#xb6; 110. 112. Consistent with NRC guidance and regulations, Entergy's Offsitc Dose6 Calculation Manual ("ODCM")
specifies the methods for performing the required quantification and dose assessment of all pathways of exposure, including radionuclides from unplanned releases entering the Hudson River. PFF at I 116. Consistent with its ODCM. Entergy performscalculations annually to account for the dose from its unplanned releases.
PFF at &#xb6;&#xb6; 110, 117.119. Entergy's unplanned releases comply with all NRC radiological discharge limits by a verywide margin, as the NRC itself confirmed in its comprehensive review of Indian Point's sitegroundwater investigation.
PFF at &#xb6; 12 1(a). Indeed, the combined dose from Entergy's unplanned releases is less than 0.1 percent of the NRC's ALARA guidelines.
PFF at &#xb6; 121(a).Specifically, the annual dose to a hypothetical maximally-exposed individual from theunplanned releases from Indian Point since Entergy began calculating such doses (in 2005) hasbeen a small fraction of one millirem, as compared to the annual average dose of 620 milliremthat the typical U.S. resident receives in one year from all radiation sources.
PFF at &#xb6;&#xb6; 121-22,119, 143. The estimated dose attributable to unplanned releases in 2010. the year for which themost recent data were available, was 0.0002 mrem. PFF at II&#xb6; 119, 143. In comparison, the dosethat an individual receives from eating a single banana, which contains small amounts ofradioactive potassium, is 0.01 mrem, orders of magnitude higher than the dose to thehypothetical maximally-exposed user of the Hudson River from Indian Point's entire annualunplanned releases.
PFF at &#xb6; 143.The dose from Indian Point's unplanned releases can be translated into health risk. as itwas by a leading radiological dose assessment expert. Dr. Owen Hoffman, using a well-accepted model for calculating cancer risk from radiation exposure.
Dr. Hoffman concluded that livebillion people would have to be maximally-exposed to an entire year of Entergy's unplanned radiological releases for there to be an expectation of one increased incidence of cancer in later7 life, a conclusion that was undisputed by any other witness, whether for NYSDEC Staff orRiverkeeper.
PFF at 4,&#xb6; 136. 147. Given the likelihood that no individuals are maximally-exposed to Indian Point's unplanned
: releases, Dr. Hoffman concluded that there will be zeroadverse health impacts expected to individuals using the Hudson River (as measured by theexpectation of excess cases of radiation-induced disease) as a result of Entergy's unplanned
: releases, both historically and during the license renewal term. PFF at &#xb6;&#xb6; 138, 145.Moreover, all investigations to date, including those performed by the radiological division of NYSDEC, have concluded there is no evidence of radiological material from IndianPoint in Hudson River aquatic biota. PFF at &#xb6;&#xb6; 33-34. Further, using commonly-accepted methods for calculating the dose to aquatic biota in the vicinity of Indian Point from theunplanned
: releases, Dr. Hoffman concluded, and it is undisputcd, that the dose per day to aquaticorganisms is orders of magnitude below all accepted limits for the protection of aquatic biota.PFF at &#xb6;&#xb6; 139-142.
As such, there is no evidence that Indian Point's unplanned releases have, orcould in the future have, an adverse effect on Hudson River aquatic biota. PFF at &#xb6; 141.While effects on groundwater are not subject to state certification requirements under&sect; 40 1. it is equally clear that drinking water has not been affected by Indian Point's unplanned releases.
It is undisputed that Indian Point does not utilize groundwater either for plantoperational or for potable purposes.
PFF at &#xb6; 8. In fact, there are no active potable water orother production wells in the vicinity of Indian Point. PFF at &#xb6; 9. Likewise.
in the vicinity ofIndian Point, the Hudson River is not used for drinking water purposes.
PFF at &#xb6; 10. Instead,drinking water in the vicinity of Indian Point is supplied from surface water reservoirs located inWestchester County and the Catskills region; the nearest of these reservoirs to Indian Point is theCamp Field Reservoir, which is located 3.3 miles north-northeast of Indian Point. in a cross-8 gradient direction (i.e.. perpendicular to the direction that groundwater flows), severalwatersheds away and at an elevation of several hundred feet above the Indian Point power block.PFF at &#xb6; 11. Moreover, it is undisputed that groundwater beneath the Indian Point power blockdoes not flow off-site to anywhere other than the Hudson River. Thus, it is undisputed that nopotable water or other production wells are reasonably subject to influence by on-site conditions at Indian Point.PROCEDURAL HISTORYBy letter dated April 3. 2009, and subject to a reservation of rights,4 Entergy submitted toNYSDEC the Application for water quality certifications for Unit 2 and Unit 3 under &sect; 401 ofthe CWA. PFF at &#xb6; 76. The Application was submitted in relation to Entergy's application tothe NRC to renew the federal operating licenses for Indian Point Units 2 and 3 for an additional 20 years, which would extend the operation of Unit 2 to September 28, 2033 and Unit 3 toDecember 12, 2035. PFF at &#xb6; 77. On May 13, 2009, NYSDEC Staff requested additional information from Entergy, including with respect to whether releases of radiological materials from Indian Point to the Hudson River comply with New York State water quality standards
(-NYWQS").
PFF at&#xb6; 79. On February 12, 2010, Entergy responded to NYSDEC Staff'srequest, asserting (i) that NYSDEC had no authority to regulate radiological releases from IndianPoint either under the CWA or as a result of the doctrine of federal preemption, and (ii) that evenThe issue of whether &sect; 401 applies at all to the renewal of a federal operating license is certainly not assured.See. e.g.. NRC, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding James A. FitzPatrick Nuclear Power Plant (NUREG-1437, Supplement
: 31) Final Report (Jan. 2008). at A-18("we do not believe that an entirely new Section 401(aX l) certification must always be tendered as part of therenewal application,"
e.g., where existing WQC "did not include an expiration date" or certification "isevidenced by a valid state water quality permit which is effective into the renewal period").
Specifically, Entergy does not concede any obligation to obtain a new WQC, in light of its existing SPDES permit andWQCs. See, e.g., Indian Point License Renewal Application, App. E (Environmental Report),
at &sect;9.4 (Apr. 30.2007). Entergy nonetheless has pursued the Application, reserving all rights, in the interest of cooperation andavoiding disputes that could result in litigation and material practical interference with Entergy's licenserenewal application before the NRC. See Entergy Ex.# 161 at 5.9 if NYSDEC had authority to regulate Indian Point's radiological
: releases, such releases did notviolate NYWQS. PFF at &#xb6;. 80.On April 2. 2010. NYSDEC Staff issued the Notice, proposing to deny the WQCApplication due to. among other things, the release of radiological materials from the IndianPoint site to the Hudson River. PFF at &#xb6; 81. Specifically, the Notice asserted that "the discharge of radiological substances (including, but not limited to. radioactive
: liquids, radioactive solids,radioactive gases, and stormwater) from the Indian Point site into a water of the State, here theI ludson River. are 'deleterious substances' and could impair the water for their best usage [citing6 NYCRR &sect;703.2]"
and that "radiological leaks have the potential to impair the best use of thewater designated in 6 NYCRR &sect;70 .1 L." PFF at &#xb6; 83. Notably, the Notice did not reach aconclusion that releases of radiological materials either had impaired, or will impair during thelicense renewal term, the Hudson River for its best uses, but merely that they "could" or "had thepotential" to do so. Furthermore, the Notice did not attempt to reconcile the conclusion thatIndian Point's unplanned releases "could" result in an impairment of the best usage of theHudson River with the contrary conclusion made by NYSDEC's and NYSDOH's radiological experts participating in the Indian Point site investigation.
: Finally, the Notice did not state anyother reason for the denial of the Application on the basis of radiological releases from IndianPoint. PFF at &#xb6;185.On April 29, 2010, Entergy submitted a request tbr adjudicatory hearing to challenge theNotice, again asserting that NYSDEC Staff's attempt to deny the Application based uponradiological releases
%vas: (i) outside NYSDEC's statutory authority under the CWA;(ii) preempted by 1ederal law: and (iii) without lhctual basis. PFF at &#xb6; 86. On December 13,2010. this Tribunal issued the Ruling on Proposed Issues for Adjudication and Petitions for Party10 Status in this proceeding (the Issues Ruling").
A3 to Entergy's legal arguments, the IssuesRuling: (i) did not address the issue of whether the regulation of radiological releases wasoutside NYSDEC's statutory authority under the CWA; and (ii) concluded that the issue ofwhether NYSDEC was preempted from regulating Indian Point's radiological releases remainedan "open question."
PFF at &#xb6;&#xb6; 87-88. Accordingly, the Tribunal set for adjudication thefollowing issue: "Whether Department Staff properly denied the WQC application based uponradiological considerations."
PFF at 1 87.Prefiled testimony from the parties' witnesses was received on July 22, 2011, and rebuttalprefiled testimony was received on October 4, 2011. PFF at &#xb6; 88. A hearing on this issue washeld on November 15-16, 2011, January 1l1,2012, and January 23, 2012. PFF at &#xb6;91.ARGUMENT1. NYSDEC Staff's Denial of the Application on the Basis of Radiological Releasesfrom Indian Point Is Outside NYSDEC's Statutory CWA Authority and IsPreempted by Federal Law.As Entergy has already argued in prior briefing, without definitive ruling from thisTribunal, NYSDEC Staf'os attempt to deny Entergy's Application on the basis of radiological releases from Indian Point is both outside NYSDEC's statutory CWA authority and otherwise preempted by federal law. Entergy expressly incorporates the arguments previously made in itsMemorandum of Law Regarding Threshold Legal Issues. and its Post-Issues Conference ReplyB3rief. and provides further argument to address the issues, including in light of the relevantevidence adduced at hearing.A. NYSDEC has no statutory authority to regulate radiologaical releases from NRC-regulatcd facilities under the CWA.A threshold issue in this proceeding, which Entergy has raised but the Tribunal has neverruled on and that must be decided before the Tribunal may assess the impacts of Indian Point'sII unplanned
: releases, is whether NYSDEC's certification authority under &sect; 401 of the CWAallows for regulation of discharges of radiological materials from an NRC-regulated facility.
Under &sect; 401(a) of the CWA, a reviewing state's authority is limited to determining whether any"discharge" from a facility, as that term is defined in the CWA, will comply with relevant statewater quality standards promulgated pursuant to state authority granted by the CWA. To thatend, &sect; 401(a) states as follows:Any applicant for a Federal license or permit to conduct anyactivity including, but not limited to. the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency acertification from the State in which the discharge originates orwill originate, that any such discharge will comply with theapplicable provisions of sections 1311, 1312, 1313, 1316, and1317 [i.e., &sect;&sect; 301, 302, 303, 306, and 307 of the CWA].33 U.S.C. &sect; 1341(a)(1).
Thus, &sect; 401(a) only permits states to certify compliance of "discharges" as that term is defined by the CWA. According to 33 U.S.C. &sect; 1362(16),
the word "discharge" refers a "discharge of a pollutant,"
and a "discharge of pollutants,"
as those terms are defined inthe CWA. As set forth below, radiological releases from NRC-regulated facilities are not"discharges" under the CWA, and therefore cannot be regulated pursuant to NYSDEC's CWAauthority.
The U.S. Supreme Court has held that Congress has expressly limited the ability of eitherthe federal government
(.through the EPA) or states to regulate, pursuant to their CWA authority.
releases of radiological materials from NRC-regulated facilities.
See Train v. Colorado PublicInterest Research Group. Inc. 426 U.S. I (1976). In Train, the Court unequivocally held thatCongress expressly exempted the regulation of radiological releases from nuclear facilities fromthe reach of the CWA. holding that the discharge of NRC-regulated materials did not constitute 12 the "discharge of a pollutant" as defined under the CWA. 1M at 15.5 Accordingly, under theCWA, neither the EPA nor the states may issue or enforce WQS relating to radiological releasesfriom NRC-regulated facilities, and the limited ability of a state to certify the compliance of"discharges" with WQS under &sect; 401 (a) of the CWA does not extend to radiological releasesfrom AEA-regulated facilities.
Recognizing this limitation, NYSDEC has never regulated Indian Point's radiological releases through the SPDES permit program, but rather has consistently maintained that it has noauthority to do so. This position was set forth clearly by NYSDEC in the current, ongoingSPDES permit renewal proceeding:
[R]adioactive releases or discharges from nuclear power generation facilities areregulated, today, by the NRC, not NYS.... [C]oncems for possible radioactive releases in the cooling water discharged from Indian Point, or concerns forpossible health effects from radioactive emissions, should be addressed directly tothe NRC, not the Department, either as a license compliance matter or in thecourse of license extension proceedings.
Such concerns cannot be addressed inconditions to a SPDES permit.See Entergy Ex. #120, pp. 90-91. Accordingly, because Entergy's radiological releases are not'discharges" subject to CWA regulation, NYSDEC Staff has no statutory authority under &sect; 401of the CWA to address those releases, and this Tribunal should recommend that theCommissioner decline to deny the WQC based on Indian Point's unplanned radiological releases.
: 13. NYSDEC is preempted from regulating Indian Point's radiological releases.
I. 'lhe evidence adduced at hearing mandates a determination that the Notice ispreempted.
which the Issues Ruling recognized as a possibility depending on thefacts.Enterev notes that this limitation is separate and apart from the limitation of federal preemption resulting fromthe passage of the AEA; rather, it is a statutory limitation of authority pursuant to the CWA, and is an issue thisTribunal has never decided.13 The Tribunal has already recognized that the issue of field preemption may apply to barNYSDEC's regulation of Indian Point's unplanned
: releases, holding that the issue was an "openquestion" to be decided on the facts of the case. Issues Ruling, p. 25. Specifically, the IssuesRuling raised the possibility that the field of exclusive federal regulation over radiological materials under the AEA might not extend to unplanned releases (i.e., leaks from pipes or othercomponents) of those materials lirom NRC-licensed facilities.
See Issues Ruling, p. 26 (statingthat federal precedent "does not appear to contemplate a situation where, as here, radioactive materials are leaking from a facility" or "a situation where radioactive material is leaking from anuclear power plant and entering groundwater").
The Issues Ruling thus found that the "openquestion" regarding the applicability of federal preemption was premised on what this Tribunalviewcd as two kcy factual issues: whether the radiological rcleascs from Indian Point werc(i) regulated by the NRC,6 and (ii) in compliance with NRC regulations.
See Issues Ruling, p. 26(stating that nuclear plants at issue in certain federal cases were found to be operating incompliance with federal radiation protection standards, but "'[that is not the case here, becausethe radioactive material that has escaped from the Facilities is not a regulated discharge").
7 Ananalysis of NRC rules and regulations, as well as the evidence adduced at hearing, demonstrates The Issues Ruling also concluded, without explanation, that the leaks of radiological materials at issue in thiscase were not releases "incident to operation."
Issues Ruling. p. 26. This conclusion is not supported in therecord. The leaks involved in this case were associated with operational activities conducted at Indian Point,including the storage of materials in spent fuel pools. PIF at &#xb6;&#xb6;1 14-16. 28(c). These activities are -under anyreasonable interpretation of the term -"incident to" the operation of the Indian Point nuclear facilities.
SeeWebster's Third New International Dictionary (2002) (defining "incident" as "occurring or likely to occur esp.as a minor consequence or accompaniment"):
Oxford English Dictionary (defining "incident" as "liable or aptto befall or occur to;" "'relating or pertinent to;" "occurring or liable to occur by the way. or in the course ofsomething else of which it forms no essential part.").Entergy disagrees with the Issues Ruling's conclusion that the question of the applicability of federalpreemption turns on a factual determination of whether radiological releases from a nuclear facility are incompliance with NRC regulations.
As discussed in detail below, and in Entergy's Issues Ruling briefing, thefederal g-overnment.
through the NRC. retains exclusive authority in the area of radiation hazards posed byAEA-licensed facilities and materials.
thus. the determination of whether a facility is in or out ofcompliance with NRC radiation protection regulations is exclusively within the authority of the NRC to determine.
14 conclusively that Indian Point's unplanned releases are both subject to NRC regulation, and infull compliance with all applicable NRC regulations, and as such require a finding thatNYSDEC's attempt to regulate Indian Point's radiological releases is preempted.
: a. The NRC does regulate Indian Point's unplanned radiological releases.
NRC's rules and regulations.
as well as the uncontroverted evidence adduced at hearingdemonstrate that the NRC does in fact regulate unplanned releases from nuclear facilities, andhas specifically exercised that regulatory authority with respect to Indian Point's unplanned releases.
The law and the evidence adduced at hearing demonstrates that all NRC licensees arerequired to operate and maintain their licensed facilities and materials so as to keep radiological doses to the public below specified, protective standards, 8 and that these requirements applyequally to planned and unplanned releases.
NRC itself made this clear in a recent policystatement regarding its regulatory review of NRC licensee's groundwater protection programs:
As with any industrial
: facility, a nuclear power plant may deviate from normaloperation with a spill or leak of liquid material.
: However, the plant design andthe NRC's inspection program both provide reasonable assurance that safetylimits will be met -even in situations where leaks occur. The NRC limits andALARA dose controls apply to both normal effluent discharges andunplanned releases such as leaks or spills containing radioactive materials.
Regardless of the source, each nuclear power plant is required to account for theradioactivity released to the environment, including planned and unplanned releases.
Each licensee is responsible for accounting for the release, evaluating Specifically.
those standards include "Radiation Dose Limits for Individual Members of the Public" found at10 C.F.R. Part 20. Subpart D. See PFF at &#xb6; 45(c). These provisions establish annual dose limits to individual members of the public from the licensed activity (i.e.. operation of the nuclear power plant and possession anduse of radiological materials).
See 10 C.F.R. &sect;20.1301(a).
Surveys of radiation levels throughout the licensedfacility
-including areas where access is not restricted-are mandatory, and the results of those surveys mustdemonstrate compliance with the dose limits for individual members of the public. See 10 C.F.R. &sect;20.1302(a).
: Moreover, nuclear power plants are designed with the objective of maintaining releases of radiological materials to the environment as low as reasonably achievable
("ALARA")
-that is, far below the radiation standards deemed protective of the public and the environment under 10 C.F.R. Part 20. These designobjectives are set forth in Appendix I to 10 C.F.R. Part 50 and establish standards which are a fraction of thePart 20 limits. Compare 10 C.F.R. Part 50, Appendix I, Section II (establishing annual total body dose limit of3 millirem from all exposure pathways) with 10 C.F.R. &sect;20.1301(a)
(establishing annual total body dose limitof 100 millirem) and 40 C.F.R. &sect; 190. 10(a) (establishing annual total body dose limit of 25 millirem).
Appendix I requires a licensee to conduct surveys of radiological conditions at its facility to demonstrate compliance with these design objectives.
See 10 C.F.R. Part 50, Appendix
: 1. Section IV.B.15 the release relative to NRC regulatory requirements, and reporting the quantity ofradioactivity released and the highest radiation dose to any member of the public.See NRC Policy Issue, "Senior Management Review of Regulatory Approach toGroundwater Protection,"
SECY-1 1-0019, Feb. 9,2011, Enclosure 2 at p. 2 (emphasis added). Moreover, that NRC's limits and ALARA dose controls apply to unplanned releases is reflected in NRC Regulatory Guide 1.21, entitled "Measuring, Evaluating, andReporting Radioactive Material in Liquid and Gaseous Effluents and Solid Waste."which sets forth, in part, the regulatory requirement for measuring and evaluating unplanned
: releases, including from leaks and spills, to ensure compliance with NRCrequirements.
Id. at &sect;&sect; 1.5 ("Monitoring Leaks and Spills"),
: 1. 10 ("Abnormal Releasesand Abnormal Discharges").
If more were needed, the uncontroverted testimony athearing from Dr. Hoffman.
setting forth the framework for NRC regulation of releasesfrom nuclear facilities, made clear that NRC's regulations apply equally to planned andunplanned
: releases, both of which must be reported in the site's Annual Radioactive Effluent Release Reports ("ARERRs"),
and the resulting dose from such releases must becalculated and reported in accordance with the site's Offsite Dose Calculation Manual("ODCM").
PFF at &#xb6;&#xb6; 110-120.
Accordingly, it is simply uncontestable that theunplanned releases at issue in this proceeding are subject to NRC's exclusive regulatory authority.
In confirmation of the fact that Indian Point's unplanned releases are subject to theNRC's oversiuht, the NRC in fact exercised its regulatory oversight over Indian Point'sunplanned releases in this case. Once Entergy notified the NRC that it had identified thepossibility of groundwater contamination at Indian Point, the NRC immediately initiated aspecial inspection to assess this possibility.
See Entergy Ex. #32 (NRC March 16, 200616 Inspection Report) at 1. The NRC documented the initial results of its investigation in a report,which describes the extensive scope of NRC's regulatory oversight of Entergy's unplanned releases:
The inspection examined activities conducted under your license as they relate tosafety and compliance with the Commission's rules and regulations.
and with theconditions of 'our license.
Within these areas, the inspection consisted of aselected examination of procedures and representative
: records, observations ofactivities, interviews with personnel, and independent analyses of water samples.Id. Further, the NRC determined in its preliminary investigation "that public health and safetyhas not been, nor is likely to be, adversely affected; and the dose consequence to the public thatcan be attributed to current onsite conditions is negligible with respect to conservatively established NRC regulatory limits."
Id. at 2.The NRC continued with its investigation, and upon the completion of Entergy's groundwater investigation, issued a second inspection report. See Entergy Ex. #34 (NRC May13, 2008 Inspection Report).
Once again, the NRC confirmed the breadth of the regulatory oversight it exercised with respect to Entergy's unplanned releases and subsequent groundwater investigation:
In September 2005, a crack was discovered leaking on the outside of the Unit 2spent fuel pool south wall (approximately 30 feet below the top) duringexcavation of the spent fuel building loading bay. The NRC initiated a specialinspection on September 21, 2005, to investigate the implications of the observedUnit 2 spent fuel pool leakage....
Though the radiological significance of thecircumstance was negligible, the condition was unexpected.
Accordingly, NRCRegion I was authorized by the Executive Director of Operations (EDO) toconduct additional oversight inspection of licensee performance and thecircumstances surrounding this contamination
....Id. at I (Report Details).
: Moreover, the NRC increased the scope of its regulatory reviewthroughout Entergy's groundwater investigation:
"]he EDO renewed the increased inspection authorization each year to permitactive and frequent inspection oversight.
As a result, inspection of the Indian17 Point contaminated groundwater conditions evolved to include not onlyradiological environmental and effluent expertise from Region 1. but alsohydrological assessment expertise from NRC's Office of Research, and later,from the US Geological Survey (USGS). The application of such resources permitted the NRC to conduct several independent reviews and assessments ofdata, information, and analysis on which the licensee based its conclusions anddeterminations.
1i. As such, a review of the relevant law, regulations, and the uncontroverted evidence athearing makes clear that Entergy's unplanned releases are subject to NRC oversight.
: b. Entergy " unplanned releasesflidly comply with NRC radiation protection limits and other applicable regulations.
[he evidence adduced at hearing also proved that Indian Point's unplanned releases arein full compliance with all applicable federal radiation protection standards.
As set forth above,the NRC conducted an extensive, multi-year review of Indian Point's unplanned
: releases, thepurpose of which was to review the releases "as they relate to safety and compliance with theCommission's rules and regulations."
Entergy Ex. #32 at 1 (emphasis added). The NRC'sfindings were unequivocal, concluding that no violation of NRC regulations resulted from thereleases.
First, NRC confirmed that Indian Point adequately surveyed and estimated theunplanned releases to ensure compliance with the NRC radiological dose limits:Upon the initial identification of conditions that provided evidence of anabnormal radiological effluent release affecting ground water. the licenseeimplemented actions that conformed to the radiological survey requirements of 10CFR 20.1501 to ensure compliance with dose limits for individual members of thepublic as specified in 10 CFR 20.1302 ....L'ntergv Lx. 434 at vi. NRC then determined that the unplanned releases were a small fraction ofthe regulatory limits lbr radiological discharges:
The annual calculated exposure to the maximum exposed hypothetical individual, based on application of Regulatory Guide 1. 109,. "Calculation of Annual Doses toMan from Routine Release of Reactor Effluents for the Purpose of Evaluation Compliance with 10 CFR Part 50. Appendix I." relative to the liquid effluentaquatic food exposure pathway is currently, and expected to remain, less than 0.118
% of the NRC's "'As Low As is Reasonably Achievable (ALARA)'"
guidelines ofAppendix 1 of Part 50 (3 mremlyr total body and 10 mrern'yr maximum organ),which is considered to be negligible with respect to public health and safety. andthe environment.
hi. at vii. As such, the unequivocal and uncontested conclusion of the NRC. after a multi-year investigation into Indian Point's unplanned
: releases, is that no violation of NRC regulations occurred.
Furthermore, Dr. Hoffman's testimony is completely consistent with the findings of theNRC: he reviewed the Indian Point ODCM and ARERRs, confirmed that the calculations wereperformed correctly, and concluded that radiation levels associated with these leaks were ordersof magnitude lower than the allowable federal regulatory limits designed to protect human healthand the environment.
See PFF at &#xb6;1&#xb6; 114-117, 120-21. The Department agrees with Dr.Hoffman.
See PFF at &#xb6;I 32(g). No contrary evidence was offered during the hearing.Accordingly, the evidence at hearing demonstrates conclusively that Entergy's unplanned releases comply with all NRC rules and regulations.
According to these facts, under the terms of the Issues Ruling, the Notice's proposal todeny the Application based on radiological releases is preempted by federal law. As recognized by this Tribunal in the Issues Ruling, courts have repeatedly cited to federal field preemption ofregulation of radiological releases from NRC-regulated nuclear facilities to invalidate stateattempts to regulate such releases.
Issues Ruling p. 25. The Issues Ruling's sole basis fbrsuggesting that preemption remained an "open question" was the possibility that Indian Point'sradiological releases were either (i) not regulated by the NRC. or 60i) not in compliance witht1deral laws and regulations.
Because the law and evidcnce adduced at hearing demonstrate thatthese liacts are simply untrue, NYSI)EC Staffs proposal to foreclose the relicensing of Indian19 Point based on releases of radiological materials that are both regulated by the NRC and in 4compliance with all NRC requirements is plainly preempted.
: 2. New case law post-dating the Issues Ruling confirms that NYSDEC has noauthority to regulate Indian Point's radioloical releases.
: Moreover, while the case law cited in Entergy's Issues Ruling briefing delineating thescope of federal AFA preemption demonstrates clearly that NYSDEC is preempted fromregulating Indian Point's unplanned
: releases, the recent decision in Entergy Nuclear VermontYankee, LLC v. Shumlin,
--- F.Supp.2d
.... 2012 WL 162400 (D. Vt. 2012), removes anyremaining doubt and reaffirms that regulation of Entergy's radiological releases by NYSDEC ispreempted.
Containing the most recent and most extensive review of federal preemption of stateregulation of radiological materials, the decision invalidated the state of Vermont's attempt toregulate the relicensing of the Vermont Yankee nuclear power plant on preemption grounds.
Indoing so, the court held that the state's attempted regulation of the Vermont Yankee relicensing process was both motivated by radiological safety concerns and had the effect of regulating radiological safety aspects of the operation of an NRC-regulated nuclear facility.
Id at *36.After reviewing the case law setting forth the extent of AEA preemption, including the verysame cases relied upon by Entergy in its Issues Ruling briefing, the court concluded that'"[w]here radiological safety concerns are the sole purpose for an enactment or regulation, courtshave easily concluded the state action is preempted."
Id. at *34. The court then concluded thatVermont's attempt to regulate the relicensing of Vermont Yankee was based on concerns aboutradiological safety, including specifically the release of tritium from groundwater into a water ofthe stateof Vermont.
and struck down the statute as preempted under the AEA. IdThe reasoning of U;ertnonl Yankee requires the conclusion that NYSDEC Staff's proposeddenial of the WQC Application based on radiological considerations is preempted.
There can be20 0 no doubt that NYSDEC Staff's Notice, to the extent it relates to radiological considerations, isbased solely upon radionuclide discharges, and therefore perceived radiological safietyconsiderations, associated with the operation of Indian Point. In particular, the Notice stated thatradiological releases from Indian Point could impair the Hudson River for its best usages -thatis, they could pose a hazard to swimmers,
: boaters, and fish.9 Mr. Kolakowski also agreed thatthis was a basis for denial stated in the Notice. See PFF at &#xb6; 83. Accordingly, the Notice fallssquarely within the field reserved to the federal government
-the regulation of radionuclide releases associated with AEA-licensed facilities
-and is preempted.
I!. Even if NYSDEC Has Some Authority to Regulate Radiological Releases fromIndian Point, NYSDEC Staff's Attempt to Deny the WQC on the Basis ofRadiological Releases Is Unsupported and Improper.
For the reasons stated above Entergy continues to maintain that NYSDEC has noauthority to regulate radiological releases from Indian Point. Nevertheless, Entergy hereinaddresses each of the WQS that NYSDEC Staff has contended applies to Indian Point'sunplanned radiological
: releases, and demonstrates that there is no factual basis to conclude thatIndian Point will not comply with those standards during the license renewal term. Accordingly, a denial of the requested WQC would be inappropriate.
A. The Notice is improper on its face. as NYSDEC Staffemploved the wrong standard inpurorting to deny the Application.
To begin, it is clear from the outset that the Notice -at least insofar as it is based onradiological considerations
-was improper and should be disregarded:
the Notice is faciallydeficient in that. it applied the wrong standard in purporting to determine that Indian Point did notcomply with applicable WQS. In its Notice. NYSDEC Staff asserted that the radiological As discussed in further detail in Section I!. the best usages of the Hudson River near Indian Point include itssuitability for primary and secondary contact recreation and fish, shellfish and wildlife propagation andsurvival.
21 materials released from Indian Point are "deleterious substances" that "could" or "have thepotential to" impair the Hudson River for its best usages. Entergy Ex. #9, p. 11 (emphasis added)."'
But even if NYSDEC did possess authority to apply CWA-derived WQS to IndianPoint's NRC-regulated radiological
: releases, the permissible scope of NYSDEC Staff's review islimited to determining whether there are "reasonable assurances" of an applicant's compliance with applicable WQS during the license renewal term, not simply whether releases "couldimpair the waters for their best usage." See 40 C.F.R. &sect; 121.2(a)(3);
In re Erie Boulevard Hydropower L.P., Decision of the Deputy Commissioner, No. 4-6103-00027/00001-9, 2006 WL2951127, at *7 (Oct. 6, 2006) ("It is also well settled that Clean Water Act &sect; 401 provides theState with only a limited role.. .to certify whether a 'reasonable assurance' exists that theproject will not violate applicable water quality standards promulgated by the State and approvedby the federal Environmental Protection Agency ("EPA") pursuant to Clean Water Act &sect; 303.")As NYSDEC Staff's lone witness conceded during this proceeding, the release of anymaterial to the waters of the state "could" impair the waters for their best usage, and therefbre themere possibility of ruture impairment is not the proper standard to apply to a WQC application.
See PFF at &#xb6; 153. The failure to apply the proper standard is rendered even more egregious by10 The narrative water quality standard for "deleterious substances" consists of two components.
It prohibits thedischarge of deleterious substances in amounts which will either (i) adversely affect the taste, color or odor ofwater, or (ii) impair the waters for their best usages. ,See 6 NYCRR &sect;703.2. NYSDEC Staffs Notice does notsay anything about the first component of the narrative
: standard, and Mr. Kolakowski testified thai he had noevidence that the radionuclides at issue in this case adversely affect the taste, color or odor of water. SeeHearing Tr. at 2749 (Kolakwoski}
("Q: Do you have any evidence that the radionuclides identified in the GZAreport adversely affect the taste, color or odor of the water'? A: No."). No contrary evidence is Fbund in therecord. As such, the reference to Indian Point's releases as 'deleterious substances" simply prohibits theirdischarge in amounts that will "impair the waters for their best usages."
rendering the bases Ibr denialessentially redundant.
Entergy further notes that the two provisions cited by NYSDEC Staff, 6 NYCRR&sect;&sect;701.11 and 703.2. are both WQS promulgated by NYSDEC pursuant to the state of New York's authority topromulgate WQS under the CWA. and pursuant to the authority granted NYSDEC by the New Yorklegislature in the state's SPDES implementing legislation.
NYSDEC Staff have never explained whyNYSDEC has no authority to apply these provisions to Entergy's radiological releases in the context of itsSPDES permit, but somehow does have authority to apply these same provisions in the context of&sect; 401(a).Indeed, as Entergy has maintained from the start of this proceeding, there is no basis in law or logic for thisposition.
22 the fact that NYSDEC Staff's witness admitted that the releases of radiological materials that hadoccurred prior to the Notice had not actually impaired the Hudson River for its best uses; and histestimony made clear that he had done no analysis to determine the likelihood that any potential future releases could occur in sufficient amounts to impair the Hudson River for its best uses.See PFF at 9IM 147, 149-50. Department Staff's decision to deny the WQC on radiological considerations contradicted its own previous tindings.
was wholly speculative, and without anyfactual support.
As such, it was improper and should be disregarded.
B. The unplanned release of radiological materials from Indian Point has not impaired, andwill not impair, the Hudson River for its best usapge.Further, even if NYSDEC had authority to regulate Indian Point's radiological releasesunder the CWA, the best usage standard is clearly met by Entergy, and accordingly there is nofactual basis to deny the WQC Application.
The evidence at hearing demonstrates conclusively that unplanned releases from Indian Point have not impaired, and will not impair, eitherrecreational uses of the Hudson River or aquatic biota."1 Accordingly, NYSDEC Staff'sproposed denial of Entergy's Application on this basis is unsupported and improper.
I. Entergy's witnesses and evidence demonstrate that there is no scientific basis toconclude that unplanned releases from Indian Point have impaired or will impairthe Hudson River for its best uses.The record evidence supports only one conclusion
-that the unplanned releases ofradiological materials from Indian Point have not impaired the Hudson River for its best usages.Only Entergy provided any evidence and analysis by which to evaluate the question of theThe Hudson River near Indian Point is classified as -'SB" saline surface waters. See 6 NYCRR &sect;864.8. TableI. Item 2. The best usages of SB waters are set forth in 6 NYCRR &sect;701.1 I: "The best usages of[Class SBwaters are primary and secondary contact recreation and fishing.
These waters shall be suitable for fish.shellfish and wildlife propagation and survival."
Primary contact recreation consists of recreational activities where the human body may come in direct contact with raw water to the point of complete body submergence.
Primary contact recreation
: includes, but is not limited to. swimming, diving, water skiing, skin diving andsurfing.
6 NYCRR &sect;700. 1(49). Secondary contact recreation consists of recreational activities where contactwith the water is minimal and where ingestion of the water is not probable.
Secondary contact recreation includes.
but is not limited to, fishing and boating.
6 NYCRR &sect;700.1(56).
1'j potential impacts of Indian Point's unplanned releases of radiological materials on the best usesof the Hudson River. Dr. Hoffman, a pre-eminent scientist in the field of radiological health andsafety, set forth the scientifically accepted method to evaluate whether radiological releases tothe environment have impaired, or have the potential to impair, the best uses of the HudsonRiver. As he explained, to perform such an analysis, one must: (i) identify the sources andamounts of radiological materials released into the environment; (ii) determine whether there areany exposure pathways for humans or aquatic biota to those radionuclides; (iii) calculate theradiation dose to humans or aquatic biota resulting from those exposure pathways; and(iv) translate that dose to risk to human health or impact on aquatic biota. PFF at T&#xb6; 120.Dr. Hloffman testified that he performed the above analysis in connection with IndianPoint's unplanned
: rcleascs, and concluded unequivocally that the radiological releases andresulting potential exposure was so low as to be inconsequential, and could have no impact onthe best uses of the Hudson River. PFF at &#xb6;&#xb6;127-144.
With respect to potential impacts tohumans from the designated best uses of the river (in other words, potential impacts to humansusing the Hudson River in the vicinity of Indian Point for recreation or fishing),
Dr. Hoffmanidentified the sources and concentrations of radiological materials based upon the uncontroverted findings of the GZA Report and the Indian Point Annual Radiological Effluent Release Reports.,
both in terms of the type and concentration of radionuclides estimated to be reaching the HudsonRiver from Indian Point's unplanned releases.
PFF at 4! 127. He further reviewed and confirmed the accuracy of the methods for calculating off-site doses associated with the migration of on-sitegroundwater to the Hudson River as documented in Entergy's NRC-required ODCM. PFF at&#xb6; 127. In doing so, he concluded that the annual dose in 2010 from Indian Point's unplanned releases to the hypothetical maximally-exposed individual was 0.0002 mrem, a small fraction of2 40 the dose that an individual would ,et from eating a single banana. PFF at 4,11 119. 127. 143. Hethen applied the commonly accepted linear no-threshold model to convert these doses into a riskto people of developing cancer in later life, finding that in order for such releases to cause asingle incidence of cancer-related illness in later life, five billion people would have to bemaximally exposed to Entergy's unplanned releases.
PFF at &#xb6; 136. After noting that anexposure to such a large population was impossible, Dr. Hloffman's conclusion was clear anduncontested:
his expert opinion is that the unplanned releases from Indian Point are expected tohave zero impact on the health of the public. PFF at &#xb6;&#xb6; 138.Based on this scientific
: analysis, Dr. Hoffman made the following conclusion:
[T]he levels of radionuclides released to the Hudson River from groundwater areextremely low, with an immaterial effect on annual dose consequence to man or aquaticbiota. Moreover, given the low levels of these releases, and the large volume of water inthe Hudson River, there is no credible evidence that the releases of radionuclides fromgroundwater have any measurable effect on the level of radionuclides present in theHudson River from historical sources.
As such, there is no credible scientific basis toconclude that releases of radionuclides to groundwater that has migrated to theHudson River have impaired or will impair the use of the Hudson for primary orsecondary contact recreation, such as swimming,
: fishing, and boating.Hoffman Prefiled at 18 (emphasis added).With respect to the potential impact of Indian Point's unplanned releases on the bestusage of the Hudson River for fish, shellfish, and wildlife propagation and survival, Dr. Hoffmantestified that there are two commonly accepted scientific methods for analyzing the potential dose to aquatic biota from radiological releases.
the RESRAD-BIOTA dose model and theUNSCEAR model, both of which he applied to Indian Point's unplanned releases.
PFF at4&#xb6;1 139-141.
Dr. Hofllman testified that he personally analyzed the radiation dose to aquatic biotafrom Entergy's unplanned releases in 2010 (the year fbr which the most recent data wasavailable),
using the maximum concentrations of radionuclides estimated to be reaching the riverN5 at the shoreline of the Indian Point site. PFF at &#xb6;, 140. Hlls analysis confirmed that the dose rate(dose-per-day) to aquatic biota resulting from Indian Point's unplanned releases was "orders ofrnagitude" lower than the scientifically accepted threshold for protection of aquatic biota. PFFat &#xb6; 142. Based on his scientific
: analysis, Dr. Hoffman made the blblowing conclusion:
[Tjhe levels of radionuclides released to the Hudson River from groundwater areextremely low, with an immaterial effect on annual dose consequence to aquatic biota.Moreover, given the low levels of these releases, and the large volume of water in theHudson River, there is no evidence that the releases of radionuclides from groundwater have any material effect on the level of radionuclides present in the Hudson River fromhistorical sources.
Given all this, there is no credible scientific basis to conclude thatreleases of radionuclides to groundwater that has migrated to the Hudson Riverhave impaired or will impair the suitability of the Hudson River for fish, shellfish, and wildlife propagation and survival.
Hoffman Prefiled at 18-19 (emphasis added).Dr. Iloffman's conclusion that the unplanned releases from Indian Point have nopotential to impair the best uses of the Hudson River was uncontested, and requires a finding thatNYSDEC Staff erred in purporting to deny the Application based on radiological considerations.
: Moreover, as set tbrth below, this conclusion was corroborated by independent analysisperformed by both NYSDEC and the NRC, and no other party to this proceeding offered anycontradictory analysis in support of the Notice.2. Both NYSDEC and the NRC agree with Entergy's conclusion that unplanned releases have not impaired the best usage of the Hudson River.Dr. Hoffmfan's conclusions regarding tile lack of any effect on the best uses of theI ludson River from Entergy's unplanned releases are well supported by other evidence in therecord, including independent analysis performed by NYSDEC. As Mr. Barvenik.
who led theIndian Point site investigation, explained, NYSDEC actively participated in the siteinvestigation, including:
(i) analyzing split samples of groundwater to confirm Entergy's radionuclide calculations; (ii) attending meetings to discuss the results of the investigation:
and1j< i0 (iii) participating in major decisions regarding the scope and conclusions of the investigation.
PFF at &#xb6; 29. Among the individuals at NYSDEC who participated in the investigation was TimRice. an expert in NYSDEC's radiation protection division.
PFF at &#xb6; 30. NYSDEC andNYSDOH issued two documents that set forth their conclusions regarding the ongoing siteinvestigation, including a community fact sheet in May 2008 ("2008 Fact Sheet").
PFF at &#xb6;&#xb6; 32-33. The 2008 Fact Sheet documents New York State's involvement during the course ofFntergy's groundwater investigation, including its collection of split samples of groundwater andfish flesh and independent assessment of potential public health impacts.
PFF at &#xb6; 32. In thatdocument, NYSDEC and NYSDOH confirmed that the levels of radionuclides entering theHudson River from the groundwater beneath Indian Point are below State surface waterstandards for tritium and strontium-90, and that Entcrgy's calculated dose to the public throughfish consumption is less than 1% of the NRC dose limits. PFF at &#xb6; 32(b), (g). NYSDEC alsoconcluded that Entergy's use of monitored natural attenuation as the remediation action for thegroundwater contamination at Indian Point was appropriate.
PFF at &#xb6; 32(f).In addition, the Department conducted a study of concentrations of strontium-90 in fishcollected near Indian Point and compared them to concentrations found in fish collected fromareas far removed from Indian Point's influence, documenting its results in a 2009 report (the62009 Fish Report").
PFF at &#xb6; 33. The 2009 Fish Report reached two conclusions:
I. There are no apparent excursions above criteria for the protection of biota basedon the radionuclide data available.
The levels of radionuclides
-including
[strontium-90]
-were two to five orders of magnitude lower than criteriaestablished for protection of freshwater ecosystems.
: 2. There were no spatial differences in concentrations of [strontium-901 and[radium-224]
in resident fish from the three locations sampled in the lowerHudson River (i.e., Indian Point Nuclear Power Plant. and the reference sites atthe Roseton Generating Station and at Catskill).
In contrast,
[potassium-401 27 levels were somewhat greater in the vicinity of Roseton Generating Station.
butthe differing concentrations have no known significance.
Entergy Ex. 38, at 8.Thus, the conclusions of NYSDEC and NYSDOH staff members who had both personalknowledge of and involvement in the Indian Point groundwater investigation and who had actualexpertise to analyze the effects of radionuclide releases to the public are identical to those of Dr.Hoffman:
namely, that Entergy's unplanned releases did not violate state water quality standards and had no effect on aquatic biota in the Hudson River.Moreover, the conclusions of the NRC also corroborate Dr. Hoffman's testimony.
Afterconducting a comprehensive investigation of Indian Point's unplanned
: releases, documented in afull site investigation report, the NRC concluded that "radiological significance from thegroundwater conditions at Indian Point is currently, and is expected to remain, negligible withrespect to impact on public health and safety and the environment."
PFF at &#xb6; 45(a). NRC alsoconfirmed that no violation of any federal radiological discharge standards
: occurred, concluding that Entergy's releases were less than 1% of NRC discharge limits. PFF at &#xb6; 45(k).3. DEC Staff offered no evidence to support its assertion that unplanned releaseshave the potential to impair the best usage of the Hudson River.As set forth above, NYSDEC Staff offered no witness at the hearing who conducted ananalysis of the effect of Indian Point's unplanned releases on the best uses of the Hudson River.This is so despite the fact that experts in radiological analysis from NYSDEC Staff werepersonally involved in the Indian Point groundwater investigation and had both the knowledge and expertise to opine on the question at issue in this proceeding.
: Instead, NYSDEC Staffoffered the testimony of only one witness.
Mr. Kolakowski, a staff engineer who readilyadmitted that he has no educational or work experience on matters of potential relevance to this28 issue for adjudication, e.g., nuclear engineering, radiation protection, human health effects ofexposure to radiation, dose assessment from the exposure to radiological materials, or theecological effects of radiological materials in the environment.
PFF at &#xb6;&#xb6; 104-105.
Mr.Kolakowski testified that the sum total of the "analysis" he performed was reading the GZAReport, which confirmed that radiological materials were entering the I ludson River due tounplanned releases at Indian Point at the time Entergy applied for its WQC. PFF at &#xb6; 151. Mr.Kolakowski, without analysis or explanation.
then concluded that such radiological materials "could impair the waters for their best usage." PFF at &#xb6; 153. When pressed as to whether he hadany actual evidence that the radiological materials identified in the GZA Report had in factimpaired the waters for the best usage, Mr. Kolakowski unequivocally admitted that he hadnone:Q. Do you have any evidence that the past leakage of radiological materials identified in the GZA report have impaired the Hudson River for primary and secondary contact recreation and fishing?Kolakowski:
No.Q. Do you have any evidence that the radiological materials identified in the GZAreport have impaired the Hudson River for its suitability for fish, shellfish and wildlifepropagation and survival?
Kolakowski:
No..See Hearing Tr. at 2750 (Kolakowski),
PFF at &#xb6; 156. Furthermore, Mr. Kolakowski testified thatbased on the information he reviewed, there was "'no factual basis" to conclude that a leak oftritium from either Unit 2 or Unit 3 during license renewal could result in an impairment of thewaters fbr their best usage. PFF at &#xb6; 157. Indeed, when asked, in conjunction with questions regading NYSDI.C's 2009 Fish Study, whether he had conducted "analysis that suggests thatthe release of radionuclides from Indian Point has affected fish in the Hudson River." Mr.Kolakowski admitted that he had not and that such an analysis is "outside my area of expertise."
29 Hearing Tr. at 2768 (Kolakowski);
PFF at &#xb6; 150. Morcover, Mr. Kolakowski went further..
admitting on cross-examination that he agreed with the expert conclusions of the NRC inconnection with its oversight of Entergy's site investigation that "radiological significance fromthe groundwater conditions at Indian Point is currently, and is expected to remain, negligible with respect to impact on public health and safety and the environment."
I learing Tr. at 2770(Kolakowski)
(emphasis added), PFF at &#xb6; 155.In light of Mr. Kolakowski's admissions on cross-examination that (i) he had performed no independent analysis of the effect of Entergy's releases on the best usage of the HudsonRiver, (ii) he had no factual basis to conclude that past or future releases from Unit 2 or Unit 3have or could in the future impair the waters for their best uses, and (iii) he agreed with theexpert conclusion of Entcrgy's witnesses, NYSDEC radiological staff, and NRC that the releaseshave had, and are not expected to have, any effect on the environment, the Notice's unsupported assertion that unplanned releases from Indian Point "could impair the waters for their best usage"has no basis whatsoever in law or fact. Simply put, Mr. Kolakowski had no relevant evidence tosupport his opinions or NYSDEC Staffs position.'
2 Given that this unsupported testimony, much of which Mr. Kolakowski effectively recanted on cross-examination, is the only basis tosupport the Notice's conclusion that unplanned releases could impair the waters for their bestusage, the Notice lacks any factual basis, and must be disregarded.
(Given Mr. Kolakowski's lack of education,
: training, expertise, or personal knowledge to opine on the issue ofthe eftect of Indian Point's releases on the best usage of(the Hudson River. and NYSDEC Staffs refusal tootffer the testimony of(or even allow Entergy to speak to) its own radiation expert who actually participated inthe investigation into these releases, Entergy moved to have an adverse infi.rence drawn against NYSDECStaff, that if called to testify.,
Mr. lim Rice, NYDSEC's lead radiological expert who participated in theinvestigation, would have testitied consistently with Entergy's experts that there was no basis to conclude thatunplanned releases from Indian Point would impair the best uses of the River. Hearing.
Tr. at 4110-4120.
TheTribunal denied the motion, but held that "the motion goes to the weight to be afforded to the testimony of Mr.Kolakowvski" and that "laill evidence with respect to this issue will be considered and accorded the appropriate weight."
See Jan. 27, 2012 Memorandum Order at 2. Consistent with that ruling, Entergy argues that Mr.Kolakowski's unsupported testimony, for which he lacks any expert qualification and which is backed by noexperta nalysis, should be afforded no weight.30 Thus, the evidence in the record supports only one conclusion
-that the unplanned releases from Indian Point have not impaired the Hudson River for its best usages.4. Riverkeeper's witness offered no relevant testimony regarding the effect of IndianPoint's unplanned releases on the best usage of the Hudson River.Riverkeeper's
: witness, Mr. Gundersen, provided no testimony to even address, let aloneto refute, the uncontroverted conclusions of Entergy's witnesses, NYSDEC and NYSDOHradiation
: experts, and the NRC, regarding the lack of any effect of Indian Point's unplanned releases on the Hudson River's best uses. He said he did not review Dr. Hoffman's testimony and did not perform either a human or aquatic biota dose assessment
-a critical step in theassessment of impact from radiological materials
-saying "1 was not contracted to do a dosecalculation fbr Indian Point."'3 Hearing Tr. at 2922 (Gundersen);
PFF at &#xb6; 160, 162. Instead,Mr. Gundersen assumed that the introduction of any amount of a "deleterious substance" wouldresult in a per se impairment of the best uses of the Hudson River. PFF at &#xb6; 161. However, sucha "zero discharge" standard is not supported in law and is inconsistent with the water qualitystandard at issue here, which only prohibits the release of deleterious substances in such amountsthat would result in an impairment of the designated best usages.14 See 6 NYCRR 703.2.Accordingly, Mr. Gundersen's testimony regarding the releases of radiological materials atIndian Point is irrelevant to the question of whether those releases will impair the best uses of theltudson River. amounts to no more than speculation, lacks the scientific foundation for anappropriate expert opinion on the matter, and should be afforded no weight." Riverkeeper's decision not to have Mr. Gundersen perform a dose assessment may be attributed to the fact thathis prior dose assessment testimony has been rejected in federal court as "rife with conclusory statements" which on appeal were characterized as a "scientifically unsupported leap of faith." Fineestone
%. Florida Power& Lighi Co., 2006 WL 267330. at *11 (S.D. Fla. Jan. 6. 2006): Finestone
: v. Horida Power & Light Co.. 272Fed. Appx. 761. 768 (1 Ith Cir. 2008): PFF at&#xb6; 158. Since the Fioestone decision.
he has not pursued anyeducation in the area of dose assessment.
PFF at &#xb6; 159.' Entergy notes that a "'zero discharge" standard would also conflict with NRC regulations.
which plainly permitdischarges from NRC-re-ulated facilities in compliance with its radiation protection standards.
31
: 5. Enteriv has demonstrated that there are reasonable assurances that any potential unplanned radiological releases from Indian Point during the license renewalperiod will not impair the best uses of the Hudson River.The record demonstrates that there are reasonable assurances that any potential unplanned releases of radiological materials from Indian Point during the license renewal periodwill not impair the Hudson River for its best uses. As noted above, it is undisputed that the pastreleases from Indian Point have not impaired the Hudson River for its best usages, nor wouldfuture releases of similar magnitude, if they were to occur during the license renewal period.Moreover.
the potential for any future releases of similar magnitude is significantly reduced based upon initiatives already being implemented at Indian Point and among theindustry in general, as a result of the discovery of tritium conditions at other nuclear powerplants throughout the nation. First, the known sources of past releases either have beeneliminated or remediated by Entergy.
Second, Entergy has undertaken substantial operations andmaintenance
: programs, including new underground piping assessments, designed to manageproactively those systems, structures and components that could be a source of future releases.
Third, Entergy has installed, and will maintain, an extensive, state-of-the-practice monitoring well array designed to detect and allow rapid response to future releases, should they occur. It is,therefore, unreasonable to conclude that future unplanned releases from Indian Point could be ofsuch significance as to impair the Hudson River for its best uses.a. Die sources ofpast unplanned releases.rinom hIdian Point have beeneliminated or remediated The evidence at hearing demonstrated that the past unplanned releases from Indian Pointhave been eliminated or rernediated.
GZA's groundwater investigation, which covered all "'areasof the Site where credible potential sources of leakage might exist. and encompassed all threereactor units." concluded that the radiological contamination of groundwater at Indian Point is3.)
the result of releases from the Unit I and Unit 2 SFPs.'5 Entergy Ex. #33 at viii ; PFF at &#xb6;24-28.GZA found no evidence of any radiological release to groundwater from the Unit 3 SFP. PFF at&#xb6; 28. Thus, with regard to Unit 3, there is no evidence of past radiological releases that couldresult in even speculative assertions about potential releases from Unit 3 during license renewalterm.With respect to Unit 1, GZA concluded that the source of strontium-90 found in theIndian Point groundwater was the Unit I SFPs. PFF at &#xb6; 28. There is no dispute that the fueland water from the Unit I SFPs has been removed from the pools, thereby eliminating the poolsas a continuing source of radiological materials to the groundwater beneath Indian Point. PFF at&#xb6; 52-53. Accordingly, the Unit I SFPs cannot be a source of future releases of radiological materials to the environment during the license renewal period. Moreover, it is uncontested thatthe concentration of strontium-90 in on-site groundwater has been reduced by 70% since thedefueling and draining of the Unit 1 SFPs. PFF at &#xb6; 68.With respect to Unit 2, GZA concluded that the leaks from the SFP resulted in a plume oftritium in the groundwater beneath Indian Point. PFF at 1 28. GZA summarized the actionstaken by Entergy in response to this leak as follows:[he releases were due to: 1) historic damage in 1990 to the [spent fuel pool] liner,with subsequent discovery and repair in 1992; and 2) a weld imperfection in thestainless steel Transfer Canal liner identified by Entergy in September 2007. andrepaired in December 2007....
To the extent possible, the Unit 2 pool liner hasbeen fully tested and repairs have been completed.
Specifically, Entergy has: 1)confirmed that the damage to the liner associated with the 1992 release wasrepaired by the prior owner and is no longer leaking;
: 2) installed a containment system (collection box) at the site of the leakage discovered in 2005, whichprecludes further release to the groundwater; and 3) after an exhaustive linerinspection, identified a weld imperfection in the Transfer Canal that was thenNo one contested the methodologies used in. or the conclusions drawn from, the GZA Report. Indeed, theDepartment participated actively in the GZA investigalion, collecting split samples of groundwater andindependently analyzing them fbr contaminant concentrations, and stated unequivocally that it agreed withGZA's approach and conclusions.
PFF at q&#xb6; 29-34.
prevented from leaking by draining the canal. The weld was then subsequently repaired by Entergy in mid-December 2007. Therefore, all identified Unit 2[spent fuel pooll leaks have been addressed.
Entergy Ex. #33 at viii-ix.
As a result of Entergy's
: efforts, the concentration of tritium in thegiroundwater beneath Indian Point has been reduced by 89% since 2005. PFF at &#xb6; 67. Whilefuture leaks from the Unit 2 SFP cannot be completely ruled out. Mr. Barvenik testified that thesize of any persistent leaks would have to be very small in order to evade the wells used tomonitor groundwater at Indian Point. PFF at &#xb6; 146. Thus, any ongoing migration of tritium tothe Hudson River, consistent with the inconsequential past releases, is expected to have noimpact on human health or aquatic biota. The NRC has confirmed this conclusion.
rherefore, the sources of past releases to groundwater at Indian Point -specifically theSFPs at Units I and 2 -have been identified,
: repaired, and remediated, with corresponding reductions in tritium and strontium-90 concentrations since the repairs were instituted.
: b. Entergy has implemented programs to prevent future leaks of radiological mwaerials from Indian Point.In addition to the remedial measures described in the GZA Report, Entergy hasdeveloped and implemented various initiatives to reduce the likelihood and severity of futurereleases of radiological materials.
Entergy has developed an underground piping management
: program, the purpose of which is to decrease the likelihood of future unplanned releases to theenvironment from underground pipes. PFF at &#xb6; 54. That program involves a four-step processas fbllows:
(I conduct an inventory of underground pipes and their design characteristics; (2)prioritize piping systems on the basis of the consequences of a leak or failure and thesusceptibility of the pipe to degradation; (3) perform inspections on piping systems to gaininformation; and (4) perform an engineering evaluation of the inspection data to determine remedial actions required, if any. I1FF at &#xb6; 55. The first two steps of this process have been34 completed at Indian Point, and inspections of underground piping have been ongoing since 2008.PFF at &#xb6; 56. The inspections utilize a variety of techniques to gain information regarding pipeconditions, including new ultrasonic technologies that allow for an inspection of pipe lengths thathave not been exposed by excavation.
PFF at &#xb6; 57.As Dr. Esselman testified, the implementation of this program reduces the likelihood ofleaks over time:Q: Should Indian Point Units 2 and 3 be relicensed, what is your opinionabout the effect that Indian Point's enhanced buried-piping program will have onthe likelihood of future leaks from underground piping during license renewal?Dr. Esselman:
These programs were designed to reduce the likelihood of leaksoccurring in the future. They are being implemented as they were designed.
Thelikelihood of leaks in buried piping occurring should and is expected to go downwith the passage of time. Particularly as this program is implemented.
there willbe more inspections in 2012 that will provide more information.
There will beinspections in 2013 that will provide more information.
There should be adecreasing likelihood of the lack of integrity of buried pipes with the passage oftime.Hearing Tr. at 3117 (Esselman),
PFF at &#xb6; 60.c. Entergy's long-term groundwater monitoring system has been designed toidentf'f, releases from systems, structures and components containing radiological materials should they leak in the future.Following the completion of GZA's groundwater investigation, the number ofgroundwater monitoring locations was expanded to include monitoring locations near structures, systems and components
("SSC") that have the potential to impact groundwater should they leakin the future. PFF at &#xb6;&#xb6; 61-65. According to Mr. Barvenik, GZA's lead investigator:
[W]e targeted those specific SSCs with additional borings so that we could theneffectively monitor those and use those to quickly determine, because they're veryclose to the SSCs. quickly determine if there was a leak, to allow Entergy then toreact quickly to the leak and address it.
Hearing Tr. at 3915 (Barvenik).
Thus, in addition to the underground piping program, whichactively evaluates underground piping systems and, where necessary, requires remedial actionwith respect to piping showing significant degradation, Entergy's long-term groundwater monitoring program assists in identifying
: releases, connecting them to their likely sources, andallowing targeted remedial action to proceed as needed.Based upon the above, there are reasonable assurances that releases of radiological materials during the license renewal period, if any, will not impair the Hudson River for its bestuses. The past releases of radiological materials identified by GZA's comprehensive groundwater investigation have resulted in no impacts to human health or the environment, andtheir sources have been identified and repaired, leading to significantly reduced concentrations ofradiological materials in Indian Point groundwater over time. Moreover, Entergy hasimplemented an underground piping program that systematically evaluates the condition ofunderground pipes containing radiological materials at Indian Point and requires corrective action where necessary.
In addition.
Entergy's long term groundwater monitoring programassists in identifying leaks should they occur and targets likely sources for prompt investigation.
Accordingly, there is no reasonable basis to conclude that unplanned releases of radiological materials during the license renewal period will impair the best usages of the Iludson River.C. DEC Staff's attempts to support the proposed denial of the Application ongrounds other than those set forth in the Notice are improper and should bereiected.
While. as demonstrated above, the actual reasons stated in the Notice fbr proposing todeny the Application are without any basis in fact or law. in its pre-tiled testimony NYSDECStaffattempted to provide belated support for the Notice by citing to other provisions of NewYork law that were supposedly violated by Indian Point's unplanned releases.
In particular, inhis initial pre-tiled testimony.
NYSDEC Stalffs witness, for the first time, contended that Indian36 Point's radiological releases are "'prohibited by ECL &sect; 17-0807 and 6 NYCRR &sect;750-1.3.*'
Kolakowski Prefiled at I1, PFF at &#xb6; 90. In his prefiled rebuttal testimony.
NYSDEC Staffswitness clarified this testimony, stating more specifically that Indian Point's "unintentional" releases are "prohibited by ECL &sect; 17-0807(1),(4),
and 6 NYCRR &sect;750-1,3(a)."
Kolakowski Rebuttal Prefiled at 4. PFF at &#xb6;1 91. Notably, nowhere in the Notice is NYSDEC Staffscontention that Entergy's unplanned releases are subject to the categorical prohibitions of "ECL&sect; 17-0807 and 6 NYCRR &sect;750-1.3."
PFF at &#xb6;&#xb6; 83, 85. For the reasons stated below, NYSDECStaff's attempt to support the Notice by asserting new bases not set forth in the Notice is incontravention of DEC regulations, and therefore must be rejected as a matter of law. Moreover, as set forth below, no reasonable view of the evidence amassed at hearing would support denialof the WQC Application, even under NYSDEC Staff's belatedly-asserted legal theories.
: 1. NYSDEC Staff's attempt to support the proposed denial on grounds not set forthin the Notice should be rejected as a matter of law.NYSDEC Staff's eleventh-hour assertion of new legal bases for denial of the WQCApplication is impermissible.
According to 6 NYCRR &sect;621.10(a),
NYSDEC Staff is required toprovide a permit applicant such as Entergy with "a decision in the form of: a permit, a permitwith conditions or a statement that the permit applied for has been denied. with an explanation
/or the denial" (emphasis added). Furthermore, according to 6 NYCRR &sect;624.4(c)(1)(ii),
in thecontext of a proposed denial of a permit application by NYSDEC Staff, an issue is adjudicable if"it relates to a matter cited by the department stalK as a basis io denly the permit and is contested by the applicant" (emphasis added). The purpose of these provisions is to provide adequatenotice of the grounds on which NYSDEC Staff proposed to deny the application, for suitableissues to be adjudicated, and tbr discovery 1o proceed on those issues in advance of hearing.37 Indeed, in applying this principle, the Commissioner has routinely denied NYSDEC Staff'sattempt to support a notice of denial on bases other than those actually set forth in the notice.For instance, I7 the Maiter of William laley, .Alpplicant, DEC No. 1-4736-06627/00001.
2009 WL 2141501 (N.Y. Dept. Env. Conserv, June 22. 2009), involved an interim appeal of anIssues Ruling by an applicant who had initially applied for both a freshwater wetlands permit anda tidal wetlands permit. NYSDEC Staff issued a notice of denial, stating only that NYSDECStaff had concluded that the application failed to satisfy the requirements for a freshwater wetlands permit. Id. The Applicant appealed.,
and after the Issues Conference, the ALJadvanced for adjudication both the issue of whether the application demonstrated compliance with the requirements for freshwater and tidal wetlands permits.
Id. The applicant appealed theIssues Ruling to the Commissioner, arguing that it was impermissible to require the applicant toadjudicate an issue that was not set forth as a basis for denial by NYSDEC Staff in the notice.On appeal, the Commissioner agreed with the applicant, citing to 6 NYCRR&sect; 62 1. 1 0(a)*s requirement that the notice set forth the reasons and bases for NYSDEC Staff'sproposed permit denial, and held that the failure to identify deficiencies with the application for atidal wetlands permit precluded NYSDEC Staff from attempting to support the denial of theapplication on that ground. In doing so, the Commissioner noted that the fact that an applicant has the burden of proof to demonstrate compliance with all applicable laws and regulations "doesnot relieve Department staff of the obligation to identify, in a timely fashion, those issuesrelating to a permit application upon which its denial is based." hi. Further, the Commissioner held that "[a]n applicant is entitled to know the grounds upon which its permit application isdenied so that. if it seeks a hearing on the denial. it is able to prepare its case including theidentilication and development of witnesscs, the organization of documentary evidence and the38 development of legal argument."
Id. Finally, the Commissioner concluded:
In a notice of permit denial. Department staff is required to clearly state thesubstantive reasons for denial of the permit application, relate those reasons to thepermitting standards, and, in situations such as this where more than one permithas been applied for, address each permit application that Department staffdetermines does not satisfy applicable standards.
A failure to state the basis fordenying a permit application or the mere suggestion that there might be an issuethat warrants denial is insufficient to satisfy the regulatory standard of 6 NYCRR621.10(a).
ki. (footnote omitted).
As a result, the Commissioner granted the applicant's appeal, and did notallow the issue of whether the applicant had demonstrated compliance with the tidal wetlandsrequirements to move forward to adjudication.
IdThe Commissioner's reasoning is directly applicable here, and should foreclose NYSDEC Staff s attempt to support the Notice based on statutes and regulations not cited in theNotice. As set forth above, the Notice proposed to deny the WQC based on radiological considerations for one: that the unplanned releases from Indian Point that had entered theHudson River were "deleterious substances" that "could impair the waters for their best usage."PFF at &#xb6;&#xb6; 81-83. However, in the pre-filed testimony of Mr. Kolakowski, NYSDEC Staff- forthe first time -took positions other than those stated in the Notice, asserting that Indian Point'sunplanned releases are "'prohibited by ECL &sect; 17-0807 and 6 NYCRR &sect;750-1.3(a)."
PFF atgo.16As the Commissioner has held, such post-hoc justifications of NYSDEC Stall's denialof Entergy's Application are impermissible.
In Mhe Valier of William haley, .4lpplicant, 2009WL 2141501.
In fact, as noted above, they are not even adjudicable.
Id. Accordingly, anyground for denial that does not appear in the Notice should be stricken from the record." During his cross examination, Mr. Kolakowski readily confirmed that these bases for denial did not appear inNYSDEC Staff's Notice. Hearing Tr. at 2729-2730 i.Kolakowski):
PFF at T 85.39
: 2. Mr. Kolakowski conceded that ECL $ 17-0807(1) and 6 NYCRR V750-1.3(a) arenot proper grounds for denying Entergy's Application.
Even if this Tribunal determines that NYSDEC Staff's post hoc attempts to support theNotice are permissible, it is clear that none of the statutes or regulations identified by Mr.Kolakowski in his testimony provide any basis for denial of the WQC. To begin, ECL &sect;17-0807(1) prohibits "the discharge of any radiological, chemical or biological warfare agent orhigh-level radioactive waste, as such terms are defined in the Act17 or pursuant thereto."
Section750-1.3(a) of 6 NYCRR sets forth the same prohibition on "the discharge of any radiological, chemical or biological warfare agent or high-level radioactive waste, pursuant to section 301(f)of the Act."At hearing, Mr. Kolakowski recanted his pre-filed testimony and agreed that neither ECL&sect; 17-0807(1) nor 6 NYCRR &sect;750-1.3(a) applies to the radiological discharges at issue in thiscase. In particular, Mr. Kolakowski confirmed that these materials are not "radiological warfareagents" or "high-level radioactive waste." PFF at I&#xb6; 168-169.
Thus, Mr. Kolakowski's testimony confirms that there is no factual basis for the Department to deny Entergy's Application on the basis of ECL &sect; 17-0807(1) and 6 NYCRR &sect;750-1.3(a).
: 3. Radiological discharges f'rom NRC-licensed facilities are not regulated under theSPDES program and, therefore.
ECL &sect;17-0807(4) cannot be a basis for denyingEntergy's Application.
NYSDEC Staff's witness also claimed that ECL &sect; 17-0807(4),
which prohibits thedischarge of pollutants regulated under the SPDES program without first obtaining a SPDESpermit. was a separate basis for denying the WQC.18 Mr. Kolakowski's belated reliance on17 1he "Act" as referenced in ECI. &sect; 17-0807(
: 1) refers to the CWA.19 This was the Department's position.
as articulated by Mr. Kolakowski:
Q: So this section, which includes 17-0807.
this is the state's implementation of the SPDES program tinderthe Clean Water Act, correct?40 ECL &sect; 17-0807(4) is incorrect as matter of law, however, because the Department has stated onmany occasions that it has no authority to regulate radiological discharges from Indian Pointunder the SPDES program.
PFF at &#xb6; 4. The plain language of ECL &sect;17-0807(4) makes clearthat its prohibition on unpermitted releases applies only to those releases that are subject to andregulated by New York's SPDES program.
Given that radiological discharges from Indian Pointare not within the regulatory scope of the C\WA and thereibre are outside the scope of regulated discharges under New York's SPDES program, ECL &sect; 17-0807(4)'s prohibition does not apply.Accordingly, NYSDEC Staff cannot rely on ECL &sect; 17-0807(4) to deny the Application.
: However, even if NYSDEC Staff were correct that unplanned radiological releases fromIndian Point were categorically prohibited by ECL &sect; 17-0807(4),
the evidence adduced at hearingdemonstrates that such would still be an improper basis on which to propose denial of the WQC.This is so because the uncontroverted evidence introduced at the hearing demonstrated thatElntergy could prevent such unplanned releases from reaching the Hudson River during thelicense renewal term. PFF at &#xb6; 170. Entergy presented evidence during the hearing thatsufficient extraction wells could be installed at the perimeter of the Indian Point site to reversethe hydraulic gradient at Indian Point sufficient to ensure that no radionuclides from theidentified Indian Point groundwater plumes would reach the I ludson River via the groundwater pathway during the license renewal term. PFF at &#xb6; 170. Neither NYSDEC Staff nor Riverkeeper A: Yes. it is.Q: So. is it Nour position.
then, that the reason the discharges at issue in this case are prohibited by section17-0807 is because Entergy did not get a SPIDES permit to authorize the releases at issue in this case?A: That was my read of that, yes.Q: And so ifEntergy had a SPDES permit that authorized the discharges that are described in the GZAreport 17-08070,)
would not apply.A: I believe so, yes.Ifearing Tr. at 2740-42 (Kolako\kski).
.41 disputed the ability of Entergy to install such wells, or the ability of such wells to ensure thatduring license renewal term no radionuclides from the identified groundwater plumes wouldreach the Hudson River via the groundwater pathway.
Given this uncontroverted
: evidence, there is no basis to conclude that there are not "reasonable assurances" that radiological releasesfrom Indian Point during the license renewal term will comply with the purported requirements of ECL &sect; 17-0807(4).
: 4. Mr. Kolakowski's insertion of an allegedly new ground for denial on the stand issimply the statutory authority for the regulatory requirement that discharges comply with applicable water quality standards.
In addition to attempting to assert new bases to support the Notice in his pre-filed testimony, for the first time when taking the stand Mr. Kolakowski inserted a reference to ECL&sect; 17-0501 as another potential basis for denial -a basis not only absent from the Notice. but alsofrom Mr. Kolakowski's pre-filed testimony.
See Hearing Tr. at 2736 (Kolakowski);
PFF at&#xb6;&#xb6; 171-172.
: However, on cross-examination, Mr. Kolakowski readily admitted that Section 17-0501 was merely the statutory requirement that prohibits discharges to the waters of the state inamounts that impair the best usage of the Hudson River, and therefore provided no independent basis fbr denial of Entergy's Application.'
9 Thus, despite the eleventh-hour insertion of thisprovision into Mr. Kolakowski's testimony, ECL &sect;17-0501 does not provide an independent ground for denying Entergy's Application.
Furthermore.
since the uncontroverted evidence athearing demonstrated conclusively that Indian Point's unplanned radiological releases do not,Q: So, really, this new prohibition is another way of stating the opinion that exists in your testimony already.which is that the discharge of these materials could impair the waters fbr the best usage. correct?A: Yes.Q: And, as you testified
: earlier, that is the actual reason stated in the Notice for why the water qualitycertification was denied.A: Yes. I believe that was.I learing Tr. at 2743 (Kolakovski);
PIT at &#xb6; 173.42 and will not, impair the best uses of the Hudson River, there is no basis to den, the Application on the grounds of ECL &sect;17-0501.
D. The Department did not deny Entergv's Application on the basis of groundwater concentrations, and any attempt to do so would likewise be preempted and unsupported in law and fact.NYSDEC Staff did not purport to deny Entergy's Application on the basis of on-site oroff-site groundwater concentrations of radiological materials.
Nothing in the Notice or Mr.Kolakowski's testimony indicates that NYSDEC Staff proposed to deny Entergy's Application on this basis. In fact, Mr. Kolakowski confirmed during the hearing that Department Staff didnot consider groundwater concentrations.
in and of themselves, during his analysis of Entergy's Application.
PFF at &#xb6; 174. In this instance, the NYSDEC Staffis approach was appropriate.
Asdiscussed below, any attempt to deny Entergy's Application due to on-site groundwater contamination is preempted by federal law, outside the scope of &sect; 401, and otherwise improper.
I. Federal law pre-empts any state regulation of radiological groundwater concentrations beneath Indian Point.As discussed in detail in Section I above, the federal government retains exclusive jurisdiction over all AEA-regulated radionuclides at NRC-licensed facilities.
Of course, thisconclusion applies with equal force to radionuclides found within the boundaries of an NRC-licensed facility.
On the basis of the arguments set tbrth in Section I above, and in Entergy's prior briefing on this issue, any attempt by the Department to deny Entergy's Application on thebasis of on-site groundwater contamination is preempted by federal law.'&deg;2. Even if the regulation of onsite groundwater was not pre-empted.
&sect; 401 of theCWA applies only to discharges to surface waters.20 There is no dispute that the groundwater beneath the Irdian Point power block area flows only in ihe direction of the Hudson River and does not flow to adjacent properties, PFF at 41 28(b). 32(a), and that radiological materials from Indian Point have never been detected in oft-site groundwater.
PFF at &#xb6;&#xfd; 41(e).4.3 NYSDEC's authority to issue certifications under &sect; 401 of the CWA is limited toregulation of a proposed "discharge" as that term is delined in the CWA. The CWA makes clearthat discharges subject to its regulatory scope are limited to discharges to surface waters, and notgroundwater.
See 33 U.S.C. &sect;1362(12)
(-discharge of a pollutant" means "(A) any addition ofany pollutant to navigable waters from any point source, [and] (B) any addition of any pollutant to the waters of the contiguous Zone or ihe ocean from any point source other than a vessel orother floating craft" (emphasis added));
see also WYademan
: v. Concra.,
13 F.Supp.2d 295, 303-304 (N.D.N.Y.
1998) (CWA does not regulate groundwater).
Accordingly, it would be improperto withhold a certification under &sect; 401(a) of the CWA on the basis of groundwater conditions.
Mr. Kolakowski confirmed that the Department's review of Entergy's Application properlyfocused on impacts to surface waters only. PFF at &#xb6; 174.3. EPA's Safe Drinking Water Act standards do not apply to the groundwater beneath Indian Point.The record includes testimony from various witnesses regarding certain maximumcontaminant levels ("MCLs")
for drinking water established by EPA under the federal SafeDrinking Water Act ("SDWA").
In particular, there was testimony that certain individual samples of groundwater beneath Indian Point contained concentrations ofl tritium or strontium-90 exceeding the SDWA MCLs.The SDWA does not apply to the groundwater beneath Indian Point. The primary andsecondary drinking water regulations developed pursuant to the SDWA apply to "public watersystems,"
defined by statute to be "a system for the provision to the public of water for humanconsumption through pipes or other constructed conveyances, if such system has at least fifteenservice connections or regularly serves at least twenty-live individuals."
42 U.S.C. &sect;&sect;300I I) --44 (4). 300g. The groundwater beneath Indian Point is not collected and delivered to the public.PFF at &#xb6;&#xb6; 8-9.Moreover, the term "maximum contaminant level" is defined by statute to be "themaximum permissible level of a contaminant in water which is delivered to any user of a publicwater system."
42 U.S.C. &sect;300f(3).
In other words, the SDWA sets MCLs for water **at thetap," rather than at the source. PFF at &#xb6; 176. Accordingly, even if the water beneath IndianPoint were to be used for drinking water purposes.
the MCLs for any contaminant would notapply to the concentration of that contaminant within the groundwater.
Id.Thus, EPA's MCLs under the SDWA have no relevance to the issues presented in thiscase. It is undisputed that the groundwater beneath Indian Point is not a source of water for a"public water system,"
and, even if it were, the MCLs referenced during the hearing do not applyto groundwater but, instead, would apply to any water delivered to a tap at the end of a publicwater system. IdRecognizing these facts, NYSDEC Staff did not at the time of the Notice, and did not inthis proceeding, argue that contamination of Indian Point groundwater was a basis for denyingIndian Point's WQC. As is clear from above, there would be no basis in fact or law to do so.REQUESTED RELIEFFor the reasons set forth above and in its prior briefs, Entergy respectfully requests thatthis Tribunal vacate any and all grounds alleged by NYSDEC Staff for denial of Entergy's Application due to radiological releases.
including by:I. Finding that NYSDEC lacks authority under the CWA to regulate releases ofradionuclides from Indian Point;45
: 2. Finding that NYSDEC Stall's proposed denial of Entergy's Application on the basis ofradiological releases to the environment is preempted by federal law:3. Finding that there are reasonable assurances that radiological releases from Indian Pointduring the license renewal period, if any, will not impair the Hudson River for its best usages;4. Finding that NYSDEC Staff's attempt to add bases for denial of Entergy's Application that are not included in the Notice are improper and barred from adjudication or, in thealternative, lack merit;5. Finding that testimony adduced at hearing related to EPA's MCLs under the SDWA haveno bearing on the adjudicable issues in this case; and6. Any other relief this Tribunal deems just and proper.46 Respectfully submitted.
ENTERGY NUCLEAR INDIAN POINT 2, LLCENTERGY NUCLEAR INDIAN POINT 3, LLCENTERGY NUCLEAR OPERATIONS.
INC.Bv its attorneys, John C. Englaider Elise N. ZoliWilliam J. TrachRobert H. Fitzgerald GoodwinjProcter LLP53 State StreetBoston, Massachusetts 02109Tel.: 617.570.
1000Fax: 617.523.1231 Signed and dated in Boston, MA this 27th day of April, 2012.47 STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2. LLC.Entergy Nuclear Indian Point 3, LLC,and Entergy Nuclear Operations Inc.'sJoint Application for CWA &sect; 401 WaterQuality Certification DEC App. Nos. 3-5522-00011/00030 (IP2)3-5522-00105/00031 (IP3)CERTIFICATE OF SERVICE1. William J. Trach, hereby certify that, on this 27h day of April, 2012, 1 caused a true andaccurate copy of:1. Post Hearing Memorandum of Entergy Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3. LLC, and Entergy Nuclear Operations, Inc. -Radiological Issues; and2. Proposed Findings of Fact of Entergy Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3., LLC, and Entergy Nuclear Operations, Inc. -Radiological Issues,to be served on all counsel of record in the above-captioned action via First Class Mail and/or e-mail as specified in the appended Service List.William JlTrach'Dated: April 27, 2012I.II.J22985 I
SERVICE LIST(Updated 412712012)
Service bh E-mail and First Class MailMaria E. VillaDaniel P. O'Connell Administrative Law JudgesOffice of Hearings and Mediation ServicesNew York State Department ofEnvironmental Conservation 625 Broadway.
First FloorAlbany. New York 12233-1550 51 S-402-9003 518-402-9037 (fax)mevilla(d'gw.dec.state.nv.us dpoconne(
)gwv.dec.state.nv.us Mark Lucas, Esq.COUNSEL FOR RIVERKEEPER INC.,SCENIC HUDSON, INC. and THENATURAL RESOURCES DEFENSECOUNCILRiverkeeper, Inc.20 Sccor RoadOssining.
New York 10562914-478-450
: 1. ext. 241914-478-4527 (fax)rtroutman(dnriverkeepr.orgt rnlucas@riverkeeper.or.
Mark D. Sanza, Esq.Assistant CounselWilliam G. Little, Esq.Associate CounselCOUNSEL FOR DEPARTMENT STAFFNew York State Department of Environmental Conservation Division of Legal Aftairs625 Broadway, 14'h FloorAlbany, New York 12233-1500 518-402-9 195518-402-9018 (fax)wglittle(dUgw.dec, state. nv. usmdsanza(&gw.dec.state.
nv.usRobert L. Sweeney, Esq.COUNSEL FOR AFRICAN AMERICANENVIRONMENTALIST ASSOCIATION Whiteman Osterman
& HannaOne Commerce PlazaAlbany, New York 12260518-487-7670 518-487-7777 (fax)rsweeneyv4Zwoh.com Richard L. 13rodskv2 121 Saw Mill River White Plains. NY 10607Tel: 914.720.8830 richard I brodsk v~it mai I.coinMelissa-Jean Rotini, I-sq.Assistant County Attornev.
Of'Counsel Wcstchester County Attorney's OfficeMichaelian Office Building148 Martine Avenue, 6th FloorWhite Plains, NY 10601914-995-3630 914-995-3 132 (Fax)Email: MJR I ,i4'wesichester&#xfd;,ov.coiiI l'homas F. Wood. Esq.T'own Attorney.
Town of Cortlandt Daniel Riescl, Esq.COL'NSEL FOR TOWN OFCORTIANDT Sive. Pawet & Riesel. P.C.460 Park Avenue, 10"' FloorNew York. New York 1002221 2-421-2150 212-421-1891 (fax)driesel(ilsprlaw.com Michael J. Delaney.
Esq.Director.
Energy Regulatory AffairsNew York City Department ofEnvironmental Protection 59-17 Junction Boulevard
: Flushing, NY 11373(718) 595-3982mdelanye(adcp.n vc.govRobert J. Glasser.
Esq.Robert J. Glasser.
P.C.COUNSEL FOR CFNTRAI.
HUDSON GAS &ELECTRIC CORPORATION 284 South A\venuePoughkeepsie, New York 12601Cellphone (preferred):
646-318-0-522 845-486-5292 845-486-5782 Bob. i.lasser(wroberti-glasserpc.eom Norris McDonaldPresident Center tor Environment, Commerce
& EnergyAFRICAN AMERICAN ENVIRONMENTALIST ASSOCIATION 1629 K Street, N.W., Suite 300Washington, D.C. 20006301-265-8185 (direct)443-569-5102 norrisincdonald@mnsn.com www.aaenvironinent.com/CEC E.htmD1aniel Riescl, EIsq.Victoria Shiah. [-sq.Adam Stolorow.
Esq.Sive, Paget & Riescl, P.C.460 Park Avenue. 10"' FloorNew York. NY 10022driesel(isprlaw.
cornvshiah(liasprlaw.com astolorow(&sprlaw, cornService E-mail OnlyII .I i it -,\ Si 1 I Ned SullivanPresident.
Scenic Hudson. Inc.One Civic Center Plaza, Suite 200Poughkeepsie, New York 10591845-473-4440, ext. 224845-452-7567 (fax)nsulli van(&#xfd;iiscnichudson.org Havlcy Mauskapf, Esq.Eiironmental Advocacy Associate Scenic Hudson, Inc.One Civic Center Plaza. Suite 200Poughkeepsie, NY 10591845-473-4440, ext. 210845-473-2649 (fax)hmauskapf'(d~scenichudson.oriz Paul Schwartzberg Land Projects Specialist Scenic Hudson. Inc.One Civic Center Plaza. Suite 200Poughkeepsie.
New York 10591845 242-2915845 255-2827 (fax)schwartzberwgi;scenichudson.ori Karl S. Coplan. Esq.Daniel E. Estrin, Esq.Supervising Attorney/Adjunct Professor ofLawPace Environmental Litigation Clinic, Inc.Pace University School of Law78 North BroadwayWhite Plains, New York 10603914-422-4343 914-422-4661 (fax)kcoplan(&-law.pace.edu destrin Oolaw .pace.edu Interns:Amber Patersonapatersoniljaw.pace.edu Kimberly Kleinkklcin(a.law.pace.edu Gcoffrev
: 11. Fettus, Esq.Senior Project AttorneyCOUNSEL FOR NATURALRESOURCES DEFENSE COUNCIL1200 New York Avenue, N.W.. # 400Washington, D.C. 20005202-289-237 1202-289-1060 (fax).,2fettus(i.nrdc.org Deborah Brancato, Esq.Staff AttorneyRiverkeeper, Inc.828 South BroadwayTarrytown, New York 105914-478-4501.
ext. 230914-478-4527 (fax)dbrancato(riverkeepcr.org 91LI I 1 22 713S, C,1&#xfd; I Phillip H. Musegaas, Esq.I Iudson River Program DirectorRiverkeeper.
Inc.828 South BroadwayTarrytown, New Nork 10591'J14-478-450
: 1. ext. 224phillip(-i riverkceper.orgy Steven Blow, Esq.Assistant General CounselNew York State Department of PublicSerniceAgency Building ThreeEmpire State PlazaAlbany, New York 12223-1350 518-474-6955 518-486-5710 (fax)steven.blow(&dps.nv.
govKelli M. Dowell, Esq.Assistant Gcneral Counselil-nvironmental Entergy Services.
Inc.308 East Pearl Street. Suite 700Jackson, MS 39201601-969-2596 Cell: 601-519-6823 601-969-2696 Faxkdowel letentergy.com Frank V. Bifira. Esq.COUNSEl..
FOR MIRANT BOWI.NEIliscock
& Barclay.
LIP50 Beaver StreetAlbany. New York 12207518-429-4224 518-427-3487 (fax)fbi fera(tiihblaw.com Sam M. Laniado.
Esq.[)avid B. Johnson, Esq.Read and Laniado, LLPCOUNSEL FOR INDEPENDENT POWER PRODUCERS OF NEW YORK25 Eagle StreetAlbany. New York 12207-1901 518-465-9313 518-465-9315 (fax)sinl(irrcad I ani ado. coin aniado. corn04II.BA.;2273Q.R.,
I NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC, Entergy DEC App. Nos. 3-5522-00011/00030 (Unit 2)Nuclear Indian Point 3, LLC, and Entergy 3-5522-00105/00031 (Unit 3)Nuclear Operations, Inc.'s Joint Application for CWA &sect;401 Water Quality Certification POST HEARING REPLY MEMORANDUM OF ENTERGY NUCLEARINDIAN POINT 2, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC,AND ENTERGY NUCLEAR OPERATIONS, INC.RADIOLOGICAL ISSUESENTERGY NUCLEAR INDIAN POINT 2, LLCENTERGY NUCLEAR INDIAN POINT 3, LLCENTERGY NUCLEAR OPERATIONS, INC.By Their Attorneys, John C. Englander, EW.Elise N. Zoli, Esq.William J. Trach, Esq.Robert H. Fitzgerald, Esq.GoodwiniProcter LLPExchange PlaceBoston, MA 02109-2881 (617) 570-1000Dated: October 5, 2012LIBA/2306566.3 TABLE OF CONTENTSPageIN TR O D UCTIO N ..........................................................................................................................
II. DEC has no legal authority to deny a WQC application on the basis ofradiological releases from NRC-regulated facilities
......................................................
5A. DEC Staff's proposed denial of Entergy's WQC Application on the basisof unplanned radiological releases is clearly preempted
....................................
5B. Department Staff and Riverkeeper ignore the jurisdictional limits of &sect; 401of th e C W A ............................................................................................................
11C. DEC Staff's attempt to support the proposed denial by reference tosections of the ECL that are not WQS promulgated pursuant to the CWAcontradicts N ew York law ....................................................................................
11II. Even if DEC had authority to regulate the radionuclide discharges from IndianPoint, the only conclusion supported by the record is that Department Staffimproperly proposed denial of Entergy's Application on the basis of unplanned releases of AEA m aterials
............................................................................................
14A. Department Staff and Riverkeeper failed to meet their burden to produceevidence contrary to Entergy's position and, therefore, Department Staff'spurported denial of Entergy's application is arbitrary and capricious
..............
14B. DEC Staff fails to apply properly the New York law it claims governs thisissue ........................................................................................................................
15C. In addition to applying an improper standard of review to Entergy's Application, Department Staff failed to apply the best usages standard forClass SB waters and, instead, applied a legally unsupportable "zerodischarge" standard
..........................................................................................
18D. Entergy produced ample evidence to demonstrate that the unplanned releases of radiological materials at Indian Point comply with purportedly applicable water quality standards
....................................................................
20E. The Tribunal should reject Department Staff's attempt to add yet anotherlegal argument found nowhere in the Notice of Denial for denyingEntergy's A pplication
.......................................................................................
24F. DEC is not entitled to any deference on this issue ..........................................
26iLIBA2306566.3 G. Riverkeeper's argument that Department Staff should have proposed todeny the WQC based on impacts to groundwater has no basis in law orfact, and should be rejected
..............................................................................
281. The CWA, including Section 401, applies only to discharges tosurface waters .......................................................................................
282. Riverkeeper's argument that &sect; 401(d) permits the denial ofEntergy's application on the basis of radiological contamination ofgroundwater is equally misplaced
....................................................
293. The evidence presented by Riverkeeper demonstrates that thegroundwater beneath Indian Point meets the best use standard
..........
30C O N C L U SIO N ............................................................................................................................
31LIBA/23065
==66.3 INTRODUCTION==
This post-hearing reply brief, submitted on behalf of Entergy Nuclear Indian Point 2,LLC, Entergy Nuclear Indian Point 3, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy"),
sets forth why the New York State Department of Environmental Conservation
("DEC" or "DEC") Staff's April 2, 2010 Notice of Denial ("Notice"),
which proposed to denyEntergy a water quality certification
("WQC") based on radiological releases from Indian Point,was not supported by law or fact. For the reasons stated herein and in Entergy's opening brief,DEC Staff's attempt to use its authority under &sect; 401 of the federal Clean Water Act ("CWA") toregulate the release of radiological materials regulated by the Nuclear Regulatory Commission
("NRC") and governed by the Atomic Energy Act of 1954, as amended (the "AEA") is federally preempted by the AEA and outside the jurisdiction granted to DEC under the CWA. Further, theevidence adduced at trial demonstrates that even if DEC had jurisdiction to regulate radiological releases from an NRC-licensed nuclear facility, the unplanned releases at issue in this proceeding fully complied with New York water quality standards
("WQS").This reply brief is divided into two sections.
The first section focuses on the settled,controlling law demonstrating that DEC is both preempted and lacks jurisdiction under the CWAto regulate releases of radiological materials governed by the AEA from an NRC-regulated nuclear facility.
Either is fatal to Department Staff's Notice of Denial. In this section, Entergyalso addresses DEC Staff's improper and belated efforts to introduce a non-CWA rationale forthe Notice of Denial. The second section demonstrates that, even assuming that DEC hadauthority to regulate Indian Point's radiological
: releases, which it does not, the evidence adducedat hearing demonstrates conclusively that there are reasonable assurances that unplanned releasesLIBA/2306566.3 of radiological materials from Indian Point during the license renewal term will not impair thewaters of the state for their best usages, or otherwise contravene WQS.DEC Lacks Jurisdiction to Regulatethe Radiological Releases from Indian Point at Issue in This Proceeding More specifically with respect to DEC's preempted activity and lack of jurisdiction, thefollowing facts and legal principles are undisputed:
* Indian Point is an NRC-regulated nuclear facility operating pursuant to a licensegranted under the terms of the AEA." Under settled, controlling United States Supreme Court precedent, the AEAgranted exclusive jurisdiction to the NRC to regulate the release of radiological materials as defined in the AEA ("AEA materials"),
and preempted states, andtherefore DEC, from any such regulation.
* Under settled, controlling United States Supreme Court precedent, the authority granted to the states, and therefore DEC, under the federal CWA does not includethe authority to regulate AEA materials.
" The radiological materials released from Indian Point at issue in this proceeding are AEA materials that are regulated by the NRC.* The NRC has determined that the unplanned release of radiological materials from Indian Point at issue in this proceeding have never violated NRCregulations.
Given these fundamental facts and legal principles, it is plain that the Notice, which proposed todeny Entergy's WQC application based on the release of AEA materials from an NRC-regulated nuclear facility, is both preempted by the NRC's exclusive jurisdiction and outside the scope ofDEC's authority under the CWA. Entergy addressed these arguments in detail in its openingpost-hearing brief, and in this brief addresses DEC Staff's and Riverkeeper's attempts to arguewhy, despite the undisputed facts and law set forth above, this Tribunal should nevertheless findthat DEC has jurisdiction to regulate AEA materials released from an NRC-regulated nuclearfacility.
As set forth below, those arguments have no merit.DEC Staff fails even to mention preemption in its opening brief, despite the fact that theIssues Ruling explicitly (at DEC Staff's urging) advanced the radiological issue to adjudication, 2L1BA/2306566.3 in part on the ground that DEC Staff claimed there were factual issues necessary to decide thescope of preemption.
DEC Staff's failure to address the fundamental issue of preemption or thejurisdictional limits of the CWA is telling, as it means that DEC Staff has advanced no crediblelegal argument that DEC has the authority to regulate the release of AEA materials from IndianPoint.Riverkeeper briefly addresses the issues of preemption and the lack of state jurisdiction toregulate the release of AEA materials from NRC-licensed facilities, but in doing so concocts anargument regarding preemption that finds no support in the case law, and is expressly rejected byrelevant preemption law that Riverkeeper fails to mention in its brief.Of course, DEC's lack of authority to regulate AEA materials under the CWA, and thebroader prohibition of such regulation as a result of federal preemption, ends the inquiry, andrequires the conclusion that the Notice, to the extent it is based on "radiological considerations,"
cannot stand.Even if DEC Possessed Jurisdiction, the Evidence at Trial Fails to Support the NoticeEven absent the clear jurisdictional limits of the CWA and preemptive effect of the AEA,the evidence adduced at hearing demonstrates that the unplanned release of radiological materials from Indian Point has not impaired the Hudson River for its best usages and that thereare reasonable assurances that no such impairment will occur during the license renewal period.Thus, the Notice's suggestion that such an impairment "could" occur, even if that were a crediblefinding sufficient to support the Notice (which it is not), is not borne out by the facts. On thispoint, the following facts are undisputed:
* Entergy's experts have established that the radiological releases at issue in thisproceeding have not impaired the Hudson River for its best usages and that thereare reasonable assurances that no such impairment will occur during the licenserenewal period.3LIBA/2306566.3
" The NRC has investigated the radiological releases at issue in this proceeding anddetermined that they have not affected, and will not in the future affect, publichealth, safety and the environment, and also are "negligible" with respect toconservatively established NRC regulations designed to protect public health,safety, and the environment.
" DEC Staffis actual experts in radiological
: releases, who have been monitoring Indian Point's unplanned releases and Entergy's response thereto from the outset(but who were, over Entergy's objection, prevented from providing testimony byDEC Staff counsel),
have determined and publicly stated that the unplanned releases at issue in this proceeding:
(i) have never exceeded state water qualitystandards
("WQS") for tritium and strontium; (ii) have had no measurable effecton Hudson River aquatic biota; and (iii) are less than 1% of NRC standards deemed protective of public health, safety, and the environment.
" DEC Staff's lone witness in this proceeding, who conceded his lack ofradiological expertise, agreed with Entergy's witnesses regarding the lack of anyevidence of an effect on the best usages of the Hudson River.These undisputed facts compel a finding that the Notice, which proposed denying Indian Point'sWQC on the basis that the unplanned releases of radiological materials "could" impair theHudson River for its best usages, cannot stand.Despite the undisputed facts adduced at hearing, DEC Staff and Riverkeeper nonetheless attempt to resuscitate the Notice through various specious arguments.
These include:
(i) applyingthe wrong standard of review; (ii) arguing for the application of a "zero discharge" standard thathas no basis in New York law; (iii) attempting to apply WQS absent from the Notice andinapplicable to Indian Point; and (iv) ignoring the undisputed facts regarding the absence of anyenvironmental impact from the releases at issue in this proceeding.
For these reasons, as detailedbelow, Entergy respectfully requests that the Tribunal, should it determine DEC possesses jurisdiction to regulate Indian Point's radiological
: releases, reject DEC Staff's and Riverkeeper's claims and find, consistent with every competent expert to examine Indian Point's unplanned radiological
: releases, that there are reasonable assurances that such releases will not impair NewYork waters for their best usages or otherwise contravene WQS for the duration of Indian Point'slicense renewal term.4L1BA/2306566-3
: 1. DEC has no legal authority to deny a WQC application on the basis of radiological releases from NRC-regulated facilities.
This section addresses three legal arguments.
First, under any formulation of the federalpreemption
: inquiry, including as described by this Tribunal in the Issues Ruling, DEC Staff'sproposed denial of Entergy's WQC is preempted by the AEA. Second, even if it were notpreempted, the proposed denial exceeds the jurisdictional limits of the CWA as defined by theU.S. Supreme Court. Third, Department Staff's argument that it can deny Entergy's application on the basis of state law other than WQS exceeds the jurisdictional limits of New York law asdefined by the New York Court of Appeal. For these reasons, Department Staff's Notice ofDenial should be rejected.
A. DEC Staff s proposed denial of Enteray's WQC Application on the basis ofunplanned radiological releases is clearly preempted.
In its Post-Issues Conference
: Briefing, DEC Staff argued in favor of advancing theradiological issue to adjudication over Entergy's objection that DEC Staff was preempted fromregulating the release of radiological materials from Indian Point. DEC Staff contended thatthere was a factual question as to whether the unplanned releases were regulated by the NRC orwere in compliance with NRC requirements and, therefore, whether such releases were subject tothe AEA's preemptive effect. See Initial Post-Issues Conference Brief by the Staff of theDepartment of Environmental Conservation at 15. As discussed in Entergy's opening post-hearing brief, this Tribunal adopted DEC Staff s reasoning and advanced the radiological issue toadjudication on the basis that there were two factual questions necessary to determine the issueof preemption:
whether the radiological releases from Indian Point were (i) regulated by theNRC, and (ii) in compliance with NRC regulations.
See Post Hearing Memorandum of EntergyNuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy NuclearOperations, Inc. Radiological Issues ("Entergy Br.") at 15-19; Ruling on Proposed Issues For5L1BA/2306566.3 Adjudication and Petitions for Party Status ("Issues Ruling")
at 26-27. Thus, following theTribunal's reasoning, to avoid a finding of preemption DEC Staff and Riverkeeper had toestablish that the radiological releases at issue in this Proceeding were not regulated by the NRC,and were not in compliance with NRC regulations.'
In fact, however, both parties now concedethat the radiological releases at issue in this proceeding are both regulated by the NRC and incompliance with NRC regulations.
This must end the inquiry, as DEC Staff and Riverkeeper have failed to provide any basis that the radiological releases at issue are not subject to thepreemptive effect of the AEA.Specifically, Department Staff now acknowledges, as it must, that the Indian Pointunplanned releases are in fact regulated by the NRC, and are in compliance with NRCrequirements.
See Brief of the Department of Environmental Conservation in Support of Denialof the Application for a Water Quality Certificate for Indian Point Unit 2 and Indian Point Unit3; Issue: Radiological Releases to the Hudson River ("DEC Staff Br.") at 10 ("it has becomeabundantly clear that standard operating procedures at Indian Point [and perhaps all nuclearenergy power producing facilities in the U.S.] contemplate unplanned discharges of radiological materials from the facility during normal facility operations");
12 ("NRC's regulatory oversight for licensed nuclear power generation facilities
'normalizes' unplanned leaks....
The NRC'sregulatory regime considers unplanned leaks to be 'normal operations'....").
This irrefutable conclusion is amply supported in the record because (i) Entergy's witnesses testified consistently that NRC regulated the radionuclides discharged from Indian Point, including unplanned releasesof those radionuclides, and that those releases were well within NRC discharge limits;Entergy again states that it does not agree with the Issues Ruling's determination that whether the unplanned releases were in fact regulated by the NRC or in compliance with NRC's requirements were necessary orappropriate to determine the scope 'of federal preemption.
Rather, the law is to the contrary.
Train v. ColoradoPub. Int. Research Grp., 426 U.S. 1, 16 n.12 ("States are precluded from playing any role in several significant areas of regulation including the setting of limitations on radioactive discharges from nuclear power plants.").
6LIBA/2306W6.3 (ii) Entergy submitted into evidence multiple NRC inspection reports regarding the unplanned releases of radionuclides at issue in this proceeding which demonstrate that NRC is in factregulating those releases and which conclude that those releases complied with all applicable NRC regulations.
See Hoffman Prefiled at 8-9, 11-13; Barvenik Prefiled at 9, 15, 19-21; HearingTr. at 3092 (Hoffman),
Hearing Tr. at 3920-21 (Barvenik);
Entergy Ex. #31, 32, 34. Thus, thefact that NRC regulates Indian Point's radionuclide discharges, including unplanned discharges, is now undisputed and compels a finding that DEC Staff is preempted from regulating thosereleases.
For DEC Staff or Riverkeeper to prevail, they would have to provide this Tribunal with acredible basis for circumventing Train. Both have failed to do so. Rather than attempting todeal with the threshold factual questions that DEC Staff initially advanced and the Issues Rulingidentifies as necessary to determine the issue of preemption, DEC Staff ignores them completely.
Indeed, the word preemption shows up nowhere in DEC Staff's brief. Instead, DEC Staffattempts to advance two alternative arguments for why DEC has jurisdiction to regulate IndianPoint's NRC-regulated releases.
First, DEC Staff seeks to rely on the broad purpose of the CWAto protect state waters as providing the legal basis to support the regulation of radiological releases from an AEA-regulated facility.
DEC Staff Br. at 17-18. This argument is unavailing.
The Train decision anticipates and expressly refutes this very argument.
Specifically, the Courtheld that, despite the broad authority granted to the states to protect state waters (as set forth in33 U.S.C. &sect; 1251, the same authority relied upon by DEC Staff in its brief), Congress did notintend that authority to apply to AEA-regulated materials, as doing so would be whollyinconsistent with the exclusive authority over such materials granted to the NRC. See Train, 426U.S. at 16 & n. 13. Thus, DEC Staff's reliance on the broad purpose of the CWA cannotovercome the holding in Train and support the proposed Notice of Denial.7LIBA/2306566-3 DEC Staff's second argument is that NRC regulations are not strict enough, and that thestate should be permitted to apply more stringent standards to the discharge of Indian Point'sunplanned releases than those applied by the NRC.2 DEC Staff Br. at 12. Applying morestringent state standards to the release of radiological materials from an NRC-regulated
: facility, however, is precisely the sort of regulation that courts repeatedly have found to be preempted.
See, e.g., Train, 426 U.S. at 16 n.12 & 17 ("States are precluded from playing any role in severalsignificant areas of regulation including the setting of limitations on radioactive discharges fromnuclear power plants.");
Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1144, 1149n.6, 1154 (8th Cir. 1971) (affirming that "the United States Government has the sole authority under the doctrine of pre-emption to regulate radioactive waste releases from nuclear powerplants to the exclusion of the states");
United States v. City of New York, 463 F. Supp. 604, 614(S.D.N.Y.
1978) (holding that city of New York's attempt to require Columbia University toobtain a license to operate nuclear reactor preempted by federal government's exclusive jurisdiction);
Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 838 F. Supp. 2d 183, 230-31(D. Vt. 2012) (preempting state legislation intended to regulate radiological health and safety atAEA-licensed nuclear power plant). In sum, DEC Staff's argument reflects a textbook case ofpreempted state action.Riverkeeper also ignores the Tribunal's directive with respect to the factual issuesrelevant to preemption, and attempts to advance two flawed arguments regarding DEC'sregulation of AEA materials.
First, Riverkeeper argues that AEA preemption only applies toIn doing so, DEC Staff cites to the NRC's Groundwater Task Force Final Report, and argues incorrectly that inthat document "NRC acknowledges that it does not have regulatory authority to actually prevent leaks ofradiological materials from nuclear facilities in the first instance..."
DEC Staff Br. at 12-13 n.7. To thecontrary, NRC did not conclude that it lacks regulatory authority to prevent all leaks; rather, NRC stated thatits regulatory framework does not require that licensees have no leaks. See U.S. Nuclear Regulatory Commission, Groundwater Task Force Final Report, June 2010, at 4 ("NRC's regulatory framework does notexplicitly state that all activities under a licensee's control must be accomplished with no leakage.").
8LrBA/2306566.3 "direct state regulation of radiological hazards from nuclear facilities,"
and that "application ofrelevant State standards under CWA &sect; 401 in a federal licensing proceeding does not constitute direct regulation of nuclear facilities."
Post-Hearing Closing Brief of Intervenors Riverkeeper, Natural Resources Defense Council, and Scenic Hudson Regarding Issue for Adjudication No. 3-Radiological Materials
("Rkp. Br.") at 13 (emphasis added). According to Riverkeeper, preemption only applies where a state seeks "to directly enforce health and environmental regulations based on independent state authority,"
but does not apply to state enforcement ofsuch regulations pursuant to federal authority, such as the CWA. Id. at 14. Riverkeeper's argument has no basis in the law. First, this argument is belied by Train itself, which held thatCongress vested the NRC with exclusive jurisdiction over AEA materials and that neither EPAnor the states could promulgate or apply water quality standards for the discharge of AEAmaterials under the CWA. See Train, 426 U.S. at 16 n. 12, 25.Moreover, Riverkeeper's purported distinction has been rejected by controlling NewYork Court of Appeals precedent.
In a case interpreting DEC's authority under &sect; 401 the Courtof Appeals held, in direct contradiction to Riverkeeper's
: argument, that federal preemption applied to DEC's attempt to regulate a federal licensee under &sect; 401:Settled law in New York has consistently supported the view that section 401gives the State regulatory entity only a limited role of review, based onrequirements affecting water quality, not on all State water quality provisions.
Review by State agencies that would overlap or duplicate the Federal purview andprerogatives was not contemplated and would infringe on and potentially conflictwith an area of the law dominated by the nationally uniform Federal statutory scheme.Niagara Mohawk Power Corp. v. N. Y. Dept. of Env. Conserv.,
82 N. Y.2d 191, 196 (1993).Riverkeeper's attempt to rely on a California Appeals Court decision does nothing torefute clear New York law contradicting Riverkeeper's position.
See Karuk Tribe v. Cal.Regional Water Quality Control Board, 183 Cal. App. 4th 330 (2010). That case (which has9I.IBA/2306566.3 nothing to do with the scope of AEA preemption or the regulation of radiological materials) stands only for the unremarkable proposition that, when Congress has preempted state action in acertain area (in that case, the regulation of hydroelectric plants),
it can nonetheless through otherlegislation provide states with some role in the process of federal licensing, such as through thecertification authority under &sect; 401. Id. at 359-60. Entergy has never contended that states haveno role in federal licensing proceedings through their &sect; 401 authority; rather, the specificquestion before this Tribunal is whether that role includes the authority to regulate AEAmaterials.
Indeed, the holding of Karuk Tribe, which Riverkeeper omits, is that "it is Congressthat determines what is the extent of state input." Id at 360. As such, the question at issue inthis proceeding is simple: did Congress, in passing the CWA, provide states with the authority toregulate the discharges of AEA materials by nuclear facilities?
As Train makes clear, the answeris unequivocally no.Riverkeeper's second flawed argument is that DEC Staff's purported conditioning authority under &sect; 401 (d) provides some residual state authority over radionuclides regulated byNRC that is somehow immune from preemption.
Rkp. Br. at 17-18. This argument fails becausethe clear holding of Train is that in passing the CWA, which of course includes
&sect; 401(d),Congress did not intend for state or federal authority under the CWA to apply to NRC-regulated radionuclides or otherwise alter the exclusive NRC jurisdiction over such materials as set forth inthe AEA. Riverkeeper's claim is based on the unfounded assertion that a subsequent SupremeCourt decision somehow altered the clear holding in Train and the law of federal preemption, specifically PUD No. 1 v. Washington Dept. of Ecology, 511 U.S. 700 (1994). In fact, nothingin PUD authorizes states to deny a water quality certification based on discharges that states arenot authorized to regulate under &sect; 401(a), or any other provision of the CWA, and are otherwise federally preempted from regulating by the AEA.10LIBA/2306566.3 Accordingly, DEC Staff's purported denial of Entergy's WQC Application on the basisof unplanned releases of radiological materials at Indian Point must be rejected as preempted byfederal law.B. Department Staff and Riverkeeper ignore the jurisdictional limits of 4 401 of theCWA.Because the radionuclide discharges at issue in this proceeding are governed by the AEA,under settled, controlling United States Supreme Court precedent, those materials are outside thescope of permissible regulation under the CWA. As such, the regulation of those discharges cannot form a legal basis for the Notice of Denial. The United States Supreme Court has heldthat, in passing the CWA, Congress did not confer on any agency administering the CWA theauthority to address radionuclides regulated by NRC. See Train v. Colorado Public InterestResearch Group, 426 U.S. 1, 23-25 (1976). The Train decision, the holding of which hasremained black letter law for more than thirty years, has clear, direct and incontrovertible consequences here: Department Staff's effort to ground its Notice of Denial on "radiological considerations"
-specifically the unplanned release of radionuclides from Indian Point to theHudson River -cannot stand.Consequently, DEC's authority under the CWA does not extend to the regulation ofradionuclides discharged from Indian Point, whether unplanned or not. As such, Department Staff's Notice of Denial under &sect; 401 of that Act based on radiological considerations must berejected as ultra vires and otherwise unlawful.
C. DEC Staff's attempt to support the proposed denial by reference to sections of theECL that are not WOS promulgated pursuant to the CWA contradicts New Yorklaw.DEC Staff's opening brief references, as an apparent additional and separate basis for theNotice of Denial, provisions of the ECL that are not state WQS contained in 6 NYCRR &sect;&sect; 701-11LIBA12306S66.3 704. See, e.g., DEC Staff Br. at 5-6, 15-16 (citing to ECL &sect;&sect; 17-0105(5),
(17), (19), 17-0301,17-0511, 17-0807(4)).
Settled New York law makes clear, however, that the state's authority under &sect; 401(a) is limited to a determination of whether the proposed activity will comply withstate WQS contained in 6 NYRCC &sect;&sect; 701-704, and cannot extend to other provisions of theenvironmental law that are not CWA-authorized WQS:The Clean Water Act reads simply that a certification shall issue if adetermination is reached 'that any such discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307 of this Act.'.....
DEC concedesthat in New York the water quality standards promulgated pursuant to section 303are linked and found only in 6 NYCRR parts 701 to 704. Thus, there is nothing inthe new language or legislative history of section 401 that would empower DECto deny certification on the basis of broader environmental provisions of NewYork law or regulation, nor is there adequate support for DEC's contention thatthe operation and reach of section 401 has been altered in a way that requires thisCourt to upset its settled analysis and resolution of the interrelated questions inMatter of de Rham v. Diamond (32 NY2d 34, supra) and Matter of Power Auth. v.Williams (60 NY2d 315, supra).See Niagara Mohawk, 82 N.Y.2d at 200 (1993). Accordingly, the law is clear that DEC has noauthority to do what Department Staff proposes here, which is to use its certification authority under &sect; 401(a) of the CWA to apply provisions of the ECL that are not WQS promulgated in 6NYCRR &sect;&sect; 701-704.To the extent that DEC Staff and Riverkeeper purport to rely on the conditioning authority of &sect; 401(d) of the CWA to apply other provisions of the ECL to Indian Point's WQCrequest, the law is clear that &sect; 401(d) cannot serve as a basis to deny an application, but onlypermits a state to place conditions on a WQC that has been granted pursuant to &sect; 401(a). Thisconclusion is required by the plain language of &sect; 401(d), which states:Any certification provided under this section shall set forth any effluentlimitations and other limitations, and monitoring requirements necessary to assurethat any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title,standard of performance under section 1316 of this title, or prohibition, effluentstandard, or pretreatment standard under section 1317 of this title, and with any12LIBA/2306566.3 other appropriate requirement of State law set forth in such certification, and shallbecome a condition on any Federal license or permit subject to the provisions ofthis section.33 U.S.C &sect; 1341(d).
Indeed, DEC made precisely this argument in the Niagara Mohawk case,contending that &sect; 401 (d)'s reference to "other applicable state laws" permitted DEC to review anapplication for a WQC for compliance with all aspects of the ECL that bear on water quality.
82N.Y.2d at 199-200.
In rejecting this argument, the New York Court of Appeals held that:[S]ection 401 (d) does not control the analysis or outcome here. That subdivision applies only to the conditioning authority on a certificate issued by DEC. DEC'senlarged reading of 'appropriate requirement of State law' under section 401 (d)would enable DEC to impose onerous conditions that could contradict orundermine Federal licensing by superimposing unrelated conditions not within theEPA mandates and specifications.
Such a strained construction wouldcountermand the carefully worded authority of section 401 (a) (1).Id. (emphasis added). Accordingly, DEC's attempt to support the proposed denial by reference to sections of the ECL that are not state WQS passed pursuant to the CWA is contrary to settledNew York law.3In sum, the evidence set forth at trial, which is undisputed by the parties, is that theunplanned radiological releases at issue in this proceeding are governed by the AEA andregulated by the NRC pursuant to its authority under the AEA. As such, DEC is preempted fromregulating the release of those materials by federal law, and possesses no jurisdiction to regulatethose materials under the CWA. In addition, DEC Staff's attempt to base its Notice of Denial onstate law other than WQS exceeds its jurisdiction under New York law. Thus, the Notice ofDenial is contrary to law and must be rejected.
3 The Court of Appeals' decision in Niagara Mohawk is consistent with federal law interpreting
&sect; 40 1 (d),including the U.S. Supreme Court's decision in PUD. That case upheld a state's use of its conditioning authority under &sect; 401(d) to place conditions on a granted WQC to ensure that non-discharge related aspects ofthe applicant's activity would comply with state WQS passed pursuant to the CWA. Id at 713-14. It did nothold that a state had authority to deny a WQC under &sect; 401(d); indeed, nothing in the language of&sect; 401(d)would permit such an interpretation.
13LIBA/23065663 II. Even if DEC had authority to regulate the radionuclide discharges from IndianPoint, the only conclusion supported by the record is that Department Staffimproperly proposed denial of Entergy's Application on the basis of unplanned releases of AEA materials.
Even if DEC were not preempted from regulating the radiological releases at issue in thisproceeding, and even if the regulation of such releases were not outside the authority conferred on DEC through the CWA, DEC Staff's proposal to deny the WQC based on such radiological releases would still be improper under New York law. For the reasons set forth below, Entergyhas more than demonstrated that prior radiological releases from Indian Point fully compliedwith any even arguably applicable WQS, and that there are reasonable assurances that any futurereleases would also comply with such standards.
In short, DEC Staff and Riverkeeper failed todemonstrate any basis to support the proposed Notice of Denial.A. Department Staff and Riverkeeper failed to meet their burden to produce evidencecontrary to Entergy's position and, therefore, Department Staff's purported denialof Enteray's application is arbitrary and capricious.
While a permit applicant bears the burden of production and persuasion that itsapplication complies with applicable law, "[o]nce an applicant produces evidence sufficient toestablish a prima facie case, the burden of production may shift to other parties in theproceeding, including Department staff, to produce evidence either in rebuttal to the applicant'
[sic] evidence or in support of contrary factual assertions, or both." Matter of Karta Corp.,Decision of the Deputy Commissioner, DEC No. 3-5512-0054/00004, 2006 WL 1111345, at *2(N.Y. Dept. Env. Conserv.
Apr. 20, 2006). Department Staff did not meet its burden here. Notonly did Department Staff and Riverkeeper fail to offer any credible evidence relevant to thepurportedly applicable legal standards, Department Staff also departed without explanation orsupport from its prior accurate conclusions that the unplanned releases of radiological materials from Indian Point have not adversely impacted water quality or aquatic biota. Department 14LIBA/23065663 Staff's failure to adhere to the law and to explain its contrary conclusions is the very definition ofarbitrary and capricious agency action. See Matter of Charles A. Field Delivery Serv., 66 N.Y.2d516, 516-517 (1985) ("A decision of an administrative agency which neither adheres to its ownprior precedent nor indicates its reasons for reaching a different result on essentially the samefacts is arbitrary and capricious.").
For the reasons set forth both in Entergy's opening brief andbelow, the evidence adduced at hearing demonstrates that the radiological releases at issue in thisproceeding were in compliance with all applicable WQS, and neither DEC Staff nor Riverkeeper provided any evidence to refute Entergy's position.
4B. DEC Staff fails to apply properly the New York law it claims governs this issue.Even if DEC had jurisdiction to regulate the radiological releases at issue in thisproceeding, the standard to be applied to Entergy's Application is whether there are "reasonable assurances" that the operation of Indian Point during the license renewal term will comply withapplicable WQS. See Issues Ruling at 1; Long Lake Energy Corp. v. N. Y. Dept. of Env.Conserv.,
164 A.D.2d 396, 402 (3rd Dept. 1990) ("reasonable assurances" standard applies toreview of &sect; 401 WQC determinations)
(quoting Matter of de Rham v. Diamond, 32 N.Y.2d 34,44 (1973); Power Auth. ofthe State of N. Y. v. Williams, 101 A.D.2d 659, 659 (3rd Dept. 1984)(applying "reasonable assurance" standard);
In re Erie Boulevard Hydropower L.P., Decision ofthe Deputy Commissioner, No. 4-6103-00027/00001-9, 2006 WL 2951127, at *4 (Oct. 6, 2006)(certification under &sect; 401 is "whether a 'reasonable assurance' exists that the project will notviolate applicable water quality standards").
This is not only the law, but logical:
applications under &sect; 401 of the CWA for a WQC are necessarily forward looking -i.e., an evaluation of4 Riverkeeper advances an argument that the radionuclides at issue in this case constitute "high-level radioactive waste." See Rkp. Br. at 93-94. There is no evidence in the record to support this argument, and even DECStaff disclaimed this argument at hearing.
See Hearing Tr. at 2734-2737 (Kolakowski).
Riverkeeper's argument is with legal or factual merit.151IBAi2306566.3 future compliance during the federal licensing period.5 Therefore, reasonable assurance of futurecompliance is not only the best that an applicant can provide; it is also the only rational standarda regulator could enforce.Department Staff's brief appears to acknowledge that its obligation is to apply thereasonable assurance standard.
See, e.g., DEC Staff Br. at 20, n. 17. However, nowhere in itsopening brief does Department Staff actually apply this standard to the facts of this case.6Rather, and contrary to this Tribunal's clear recitation of the "reasonable assurance" standard inthe Issues Ruling, see Issues Ruling at 1, Department Staff s brief elsewhere advocates astandard of "certainty" regarding Indian Point's future radiological releases.
Specifically, Department Staff asserts, as grounds for supporting the proposed denial, thatEntergy's groundwater concentration and dose data "does not reflect with certainty theforthcoming period of the intended WQC." DEC Staff Br. at 12 (emphasis added). In addition, Department Staff concluded that Entergy's evidence provided "no predictive certainty as to whenthe [radiological]
discharges will cease, or whether the discharges will decrease over time in themanner predicted by GZA." Id. at 13 (emphasis added). Department Staff states affirmatively that these conclusions "necessarily inform the Department's regulatory decision making whenweighing the capacity for the Indian Point facilities to demonstrate compliance with the State'swater quality standards."
Id at 12. Thus, to the extent Department Staff applied a heightened standard in issuing the Notice, it must be rejected as ultra vires. To the extent Department StaffDepartment Staff agrees that WQC determinations are "forward looking."
See Hearing Tr. at 2696, 2711(Kolakowski).
6 Mr. Kolakowski does not mention the standard of review in his pre-filed direct testimony.
: Further, in his pre-filed rebuttal testimony.
he acknowledges only that Entergy "must demonstrate compliance with" applicable WQS, see Kolakowski Pre-filed Rebuttal Testimony at 3, and, when asked on cross-examination to identifywhat standard should be applied to Entergy's demonstration of future compliance, Mr. Kolakowski stated thathe could not do so and was unfamiliar with the "reasonable assurance" standard.
See Hearing Tr. at 2698-2699 (Kolakowski).
In other words, while DEC Staff counsel acknowledges the applicable standard to be applied toEntergy's application, DEC Staff responsible for issuing the Notice of Denial apparently have not.16LIBAi2306566.3 asks this Tribunal to apply that heightened standard to its review of Entergy's Application, thatposition lacks any legal foundation.
Riverkeeper's argument that Department Staff is free to require certainty, becausecertainty is a "more stringent requirement" than reasonable assurances, is meritless.
Riverkeeper ignores both the Issues Ruling and applicable New York law holding that the "reasonable assurance" standard is to be applied to WQC applications in New York. Instead, it relegates itsdiscussion of the reasonable assurance standard to a footnote in which it makes a purported "plain language" argument that "merely providing a 'reasonable assurance' of compliance withwater quality standards is a less stringent standard than the requirement that an applicant
'mustdemonstrate compliance' in order to satisfy 6 NYCRR &sect;608.9(a)."
Rkp. Br. at 20, n.87. Again,Riverkeeper's argument lacks any citation to legal authority, and fails to distinguish the directlycontrary and controlling holdings of New York courts on this issue.Moreover, the provision of the CWA that addresses states' ability to pass "morestringent" standards than federal standards-upon which Riverkeeper premises its argument-is totally irrelevant to the standard of review to be applied to WQC applications.
The statutory provision authorizing states to impose more stringent standards applies in specified circumstances, none of which is present here. According to &sect; 510 of the CWA:Except as expressly provided in this chapter, nothing in this chapter shall ...preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges ofpollutants, or (B) any requirement respecting control or abatement of pollution; except that if an effluent limitation, or other limitation, effluent
: standard, prohibition, pretreatment
: standard, or standard of performance is in effect underthis chapter, such State or political subdivision or interstate agency may not adoptor enforce any effluent limitation, or other limitation, effluent
: standard, prohibition, pretreatment
: standard, or standard of performance which is lessstringent than the effluent limitation, or other limitation, effluent
: standard, prohibition, pretreatment
: standard, or standard of performance under this chapter17LIBA/2306566.3 33 U.S.C. &sect; 1370 (emphasis added). The standard of review applied to Entergy's Application isneither a "standard or limitation respecting discharges of pollutants,"
nor a "requirement respecting control or abatement of pollution."
: Further, nothing in Section 510 of the CWAallows a state agency to require the impossible
-the certain prediction of the future -fromapplicants for WQCs. Indeed, if Riverkeeper's position were correct, Entergy questions how anyproposed project could ever obtain a WQC, as doing so would require an applicant todemonstrate that it will never experience an unplanned release.
In all respects, Riverkeeper's baseless argument must be rejected.
7C. In addition to a=plying an improper standard of review to Entergy's Application.
Department Staff failed to apply the best usages standard for Class SB waters and,instead, applied a legally unsupportable "zero discharge" standard.
There is no dispute that the narrative standard applicable to the discharge of deleterious substances into Class SB waters such as the Hudson River near Indian Point is:None in amounts that will adversely affect the taste, color or odor thereof, orimpair the waters for their best usages.6 NYCRR &sect;703.2 (emphasis added). Thus, even if it were legally permissible to apply thedeleterious substance standard for Class SB waters to Indian Point's Application, the standard tobe applied is not whether any deleterious substances will be discharged, but whether theamount of deleterious substances discharged will impair the waters for their best usages.87 This legally unfounded notion -that the State of New York has plenary power to regulate Indian Point'sunplanned radiological releases under the guise of being "more stringent" than federal law -is notablyadvanced by Riverkeeper at the same time it argues (in its attempt to avoid the reach of federal preemption) that New York is not regulating Indian Point at all when it reaches a decision with regard to Entergy's Application.
That Riverkeeper continues to pursue legally inconsistent positions underscores how untethered its arguments are to the controlling law at issue in this case.Notably, where the Department's narrative water quality standards prohibit the discharge of any amount of amaterial, the language of the standard clearly indicates as much. See 6 NYCRR &sect;703.2 (narrative standard for"garbage,
: cinders, ashes, oils, sludge and other refuse" is "None in any amounts.").
Furthermore, theDepartment's narrative standard for radioactivity
-which only applies to the more protected Class-A Specialwaters and not to the Class SB waters that apply to the Hudson River in the vicinity of Indian Point -is"[s]hould be kept at the lowest practical levels, and in any event should be controlled to the extent necessary toprevent harmful effects on health."
6 NYCRR &sect; 703.2 (emphasis added), In other words, the narrative 18LIBA/2306566.3 In apparent recognition that the proper inquiry requires an analysis of whether the"amount of" Indian Point's discharges impaired the waters for their best usages, Department Staff argues in its brief that deleterious substances discharged to the Hudson River, in anyamount will impair the water for its best usages. See DEC Staff Br. at 9 (claiming there is a"legitimate concern that any leak from Indian Point's generating units could cause impairment ofthe State's waters.").
In other words, Department Staff urges this Tribunal to apply a "zerodischarge" standard to Entergy's Application, without any analysis of whether the discharges actually impair the best usages of the Hudson River. That Department Staff applies such astandard is evident from its brief. Department Staff asserts that Entergy must "demonstrate thaton-going discharges to the Hudson River would cease" during the license renewal period, DECStaff Br. at 3, that Department Staff "cannot ignore the fact that [Monitored Natural Attenuation]
will not stop the radiological discharges to the Hudson River," id. at 11, that there is noindication "as to when, if ever, the releases of radiological materials into the groundwater anddischarges into the Hudson River will stop" or whether they "will ever cease during the periodfor which Entergy seeks a WQC." Id. at 9, 12. Indeed, Department Staff has simply declared thedischarge of deleterious substances to be detrimental to water quality:Discharges of deleterious substances are detrimental to the quality of the State'swaters, since the substances are additive, man-made, contributed from a knownsource, and in addition to the natural background of the water body.Id. at 16. To be clear, there is no legal citation in support of this statement, nor is it consistent with the language of the best usages standard itself.9 Simply put, whether a particular substance standard for radioactivity even in the State's most protective water classification is not "none" but rather isconsistent with the "as low as reasonably achievable" standard with which Entergy already complies as amatter of NRC regulation.
See 10 C.F.R. &sect; 50.36a(a).
Thus, as a matter of fact, Indian Point's radiological discharges would comply with the heightened narrative standard for radioactivity even if it applied to IndianPoint's application, which it does not.9 Mr. Gundersen provided testimony that similarly assumed that the discharge of any deleterious substance would result in a per se impairment of the Hudson River's best usages: "Q: And do you have an opinion about19LIBA/2306566.3 is "detrimental to the quality of the State's waters" is not the legal standard to be applied here.The best usages standard on which Department Staff denied Entergy's Application requires aninquiry into the amount of deleterious substance released and whether that amount will resultin an impairment of best usages. As set forth in detail below, when the proper standard isapplied to Indian Point's releases, Entergy's evidence demonstrates that the unplanned releasesat issue in this proceeding have not impaired the Hudson River for its best usages, and that thereare reasonable assurances that any future releases will also not impair the Hudson River for itsbest usages. Neither Department Staff nor Riverkeeper provided any evidence to the contrary.
D. Entergy produced ample evidence to demonstrate that the unplanned releases ofradiolop-ical materials at Indian Point comply with purportedly applicable waterquality standards.
In this case, the only party to have addressed the actual best usages standard cited byDepartment Staff in its Notice of Denial is Entergy.1 0 Entergy's witnesses documented theamount of unplanned releases to groundwater that have occurred over time, the amountentering the Hudson River over that same period, whether the amount of radionuclides entering the Hudson River over that period had impaired the best usages of the Hudson River,and whether the amount of radionuclides reasonably expected to the Hudson River during thelicense renewal period would be sufficient to result in an impairment of best usages.Entergy's witnesses' conclusions were clear, unrebutted and unchallenged:
whether the radiological leaks at Indian Point during the license renewal term could impair the best usages ofthe Hudson River for swimming and recreational purposes?"
Mr. Gundersen:
"It appears that the radiation ismoving toward the river and not laterally up river and or down river. So, what's in the ground will eitherdecay away or over time enter the river. And it's a deleterious substance, so. yes, it will adversely affectswimming and fishing."
Hearing Tr. at 2816 (Gundersen)
(emphasis added).0 Indeed, Department Staff failed to present or develop any technical information on this issue. Its sole exhibitwas Mr. Kolakowski's curriculum vitae, which discloses that he is not qualified
-as he testified
-to addressthe human or environmental effects of radionuclides in the environment.
See Hearing Tr. at 2768(Kolakowski);
DEC Staff Ex. #1.20LIBAr2306566.3
" the amount of radionuclides from unplanned releases from Indian Point that havealready reached the Hudson River are extremely small and have had no impact onthe best usages of the Hudson River, see Hearing Tr. at 3104-07 (Hoffman);"
* the amount of radionuclides reasonably expected to reach the Hudson Riverfrom unplanned releases at Indian Point will decline over time and, in any event,is reasonably likely to be less than the amount associated with groundwater conditions over the past several years, see Hearing Tr. at 3117 (Esselman),
3915,3918-3920 (Barvenik),
3971 (Barvenik);
" there are reasonable assurances that unplanned releases of radionuclides togroundwater at Indian Point during the license renewal period, if any, will notimpair the Hudson River for its best usages, see Hearing Tr. at 3107 (Hoffman).12 No other conclusion can be supported by the record.'3The record could not be more clear that both Department Staff and Riverkeeper havewholly failed to evaluate whether the amount of radionuclides released to the Hudson River via11 Mr. Kolakowski testified that he had no contrary evidence.
See Hearing Tr. at 2750 (Kolakowski).
12 Mr. Kolakowski testified that he had no contrary evidence with regard to tritium entering the Hudson River.See Hearing Tr. at 2759-2760 (Kolakowski)
("Q: So, I guess I am asking: Do you have any factual basis forbelieving that the continued operation of units 2 and 3 during license renewal will result in a leak of tritiumsufficiently large to impair the waters for their narrative best usage? A: Specific to tritium and specific tosurface water, I don't. There doesn't appear that there would be a best usage impact based on the data that wehave in front of us now."). He provided no contrary evidence with respect to any other radionuclide.
13 Department Staff mischaracterize Dr. Hoffman's testimony by claiming that "an epidemiological risk ispresent even below the levels that can be observed or measured."
DEC Staff Br. at 14. What Dr. Hoffmansaid was that epidemiological studies would have tremendous difficulties identifying a statistically significant excess risk at the levels of radiation at issue here. See Hearing Tr. at 3099-3100 (Hoffman).
It is undisputed that there are no data to establish that the occurrence of cancer follows exposure to dose rates below 10,000mrem, and people living at higher elevations and, therefore, subject to more than three times the naturalbackground levels of radiation (i.e. 1,000 mrem as compared to 310 mrem) have shown no adverse effects.See Entergy Ex. #43. The linear-no-threshold model conservatively assumes that risk is present below thelevels of epidemiological detection (i.e., below 10,000 mrem) and, therefore, a nonzero risk can be calculated for very low levels of exposure to radiation
-even such low levels as 0.0002 mrem associated with IndianPoint's unplanned releases.
See Hearing Tr. at 3102-3105 (Hoffman).
Of course, Department Staff did not askor address the central question
-whether the amount of radionuclides released could lead to a level of risk thatcould reasonably be said to constitute an impairment of the waters of the Hudson River -which Dr. Hoffmananswered with a resounding "no."21LIBA/2306566.3 unplanned releases to groundwater will impair the Hudson for its best usages. On directexamination, Mr. Kolakowski testified only that the groundwater beneath Indian Point flows tothe Hudson River. See Hearing Tr. at 2663 (Kolakowski).
His direct testimony said nothingabout the concentrations or quantities of materials in the groundwater or the amounts of thosematerials entering the Hudson River as a result, see Kolakowski Pre-filed Direct Testimony, andhis rebuttal testimony asserted only that the relative concentrations of radionuclides in somemonitoring locations "were higher at times during 2010 than in 2009," but did not discuss theactual amount of radionuclides entering the Hudson River during any time period, or whetherthose amounts could reasonably be expected to result in a violation of the best usages standardfor SB waters. See Kolakowski Pre-filed Rebuttal Testimony, at 4-5.On cross examination, Mr. Kolakowski testified that he was well aware that a finding ofimpairment "depend[ed]
on the concentrations of the radiological components,"
Hearing Tr. at2752 (Kolakowski).
He also testified that he did not review any of Indian Point's annualradiological effluent release reports, which document the amount of radiological releases to theenvironment, in connection with his analysis
-despite the fact that these reports are regularly submitted to the Department.
Id. at 2771-2772 (Kolakowski).
Additionally, Mr. Kolakowski said that he had no reason to disagree with DEC's study which concluded that the release ofradionuclides to the Hudson River at Indian Point was not affecting the fish in the river. Id. at2767-2768 (Kolakowski).
Nor did he provide any prefiled or live testimony to dispute priorpublic statements by the Department confirming that the unplanned releases at Indian Pointcomplied with WQS and applicable NRC limits or explain why the Notice of Denial contradicted these earlier Department pronouncements.
Thus, there is no legitimate dispute that Department Staff failed to address whether the amount of radionuclides reasonably expected to enter theHudson River from unplanned releases to groundwater during the license renewal period will22LIBA/2306566.3 impair the best usages of the Hudson River. Further, Department Staff did not address thisargument and, therefore, failed to provide any rationale for reaching a conclusion in thisproceeding that is directly at odds with its prior assurances to the public regarding the absence ofpublic health and environmental impacts from Indian Point's unplanned releases.
Riverkeeper also failed to address the issue of whether the amount of radionuclides atissue in this proceeding has impaired, or reasonably could impair, the best usages of the HudsonRiver. Mr. Gundersen's analysis of this issue was summed up succinctly in his response to thequestion:
"What if any effect have radiological leaks from Indian Point had on the HudsonRiver?":The radiological leaks introduced deleterious substances into the river. Thataccording to BEIR, BEIR VII, any amount of radiation can cause a cancer. So, ithas introduced deleterious material into the river.Hearing Tr. at 2814-2815 (Gundersen).
Aside from being entirely circular in his reasoning, Mr.Gundersen did not analyze the amount of radionuclides entering the Hudson River or whetherthose amounts could reasonably be said to impair the best usages of the Hudson River.14 Hisdirect and pre-filed testimony are similarly lacking in any analysis of the amount ofradionuclides entering the Hudson River from Indian Point's unplanned discharges.
SeeGundersen Pre-filed Testimony, at 12-15; Gundersen Pre-filed Rebuttal Testimony, at 13-16.Moreover, on cross examination Mr. Gundersen admitted that he did not perform an assessment of whether the amount of radionuclides entering the Hudson River could reasonably be expectedto result in an increase in human cancer or impacts to aquatic biota, and that he did not even read14 This position also underscores the failure to apply the reasonable assurances
: standard, as well as the failure toapply the narrative best usages standard as written.
The standard is not whether any amount of a substance poses a risk of cancer. The standard is whether there is a reasonable assurance that the amount of the substance released will not impair the water for its best usages. Neither Mr. Kolakowski nor Mr. Gundersen addressed that question.
Dr. Hoffman addressed it directly, and concluded that the unplanned releases have had no effecton human health (i.e., via primary or secondary recreational activities) or aquatic biota -that is, no impairment of the best usages of the Hudson River. See Hearing Tr. at 3104-3105 (Hoffman).
23LIBA/2306566.3 or review Dr. Hoffman's testimony on that point. See, e.g., Hearing Tr. at 2891-2893, 2897,2976 (Gundersen).'5 Thus, Riverkeeper equally failed to address the actual best usages standardat issue.E. The Tribunal should reiect Department Staff's attempt to add yet another legalargument found nowhere in the Notice of Denial for denying Entergy's Application.
As detailed in Entergy's initial brief, in its witnesses' pre-filed testimony, Department Staff improperly attempted to advance reasons for its denial of Entergy's Application foundnowhere in its Notice of Denial. Department Staff's own witness admitted that his owntestimony included grounds for denial of Entergy's Application that were not contained in andnot evaluated at the time of the Notice. This is contrary to basic due process guarantees beforethis Tribunal and, consequently, those newly advanced theories should be stricken from therecord. 16In its opening brief, Department Staff continues to advance arguments to support theNotice that are found nowhere in the Notice, and are otherwise unsupported by fact or law, andtherefore should be rejected.
For instance, Department Staff now argues -for the first time -thatthe radionuclides at issue here are "industrial waste" and, therefore, their discharge is prohibited by New York law. For a number of reasons, this late addition to Department Staff's legal15 Riverkeeper implies that Dr. Hoffman did not consider the exposure pathway associated with swimming in theHudson River as part of his analysis.
: However, Dr. Hoffman testified that all pathways are considered andexcluded if not present in the area under consideration.
See Hearing Tr. at 3278 (Hofftman).
: Moreover, Dr.Hoffman testified that "[flor aquatic releases of radionuclides, such as strontium 90, the maximum exposures occur from eating fish. If you had swimming,
: boating, et cetera, at that same location, they would add aninconsequential amount to the exposures that you would get from fishing.
So the fishing pathway gives youthe maximum indication of what the exposures would be." Id16 In Matter of William Haley, Applicant the Commissioner noted that: "An applicant is entitled to know thegrounds upon which its permit application is denied so that, if it seeks a hearing on the denial, it is able toprepare its case including the identification and development of witnesses, the organization of documentary evidence and the development of legal argument.
In addition, Department staff needs to inform an applicant ofthe specific grounds for denial to afford an applicant the opportunity to consider revisions to a project orrelated mitigation measures...."
DEC No. 1-4736-06627/00001, 2009 WL 2141501, at *3 (N.Y. Dept. Env.Conserv.
June 22, 2009).24LIBA/2306566.3 theories should be rejected.
First, this position is found nowhere in the Notice of Denial.Accordingly, for the same reasons articulated in Entergy's opening brief, this theory should bestricken from the record. Second, characterizing the radionuclides at issue in this case as"industrial waste" is not even relevant to the narrative WQS at issue here. Department Staff'sNotice of Denial says that radionuclides are "deleterious substances" and subject to the narrative standard regarding best usages quoted above. Nowhere does that standard use the words"industrial waste," a defined term in the Department's WQS regulations.
Its absence ismeaningful, because the term "industrial waste" does appear in other narrative standards, inparticular the narrative standards for suspended, colloidal and settleable solids ("None fromsewage, industrial wastes or other wastes that will cause deposition or impair the waters for theirbest usages.")
and oil and floating substances
("No residue attributable from sewage, industrial wastes or other wastes, nor visible oil film nor globules of grease.").
6 NYCRR &sect;703.2(emphasis added). Thus, Department Staff is advancing yet another argument completely untethered from the Notice of Denial and the language of the WQS at issue here.Finally, the state regulations regarding discharges of industrial waste do not contain anabsolute ban; rather, the definition of industrial waste itself notes that such discharge isproblematic only if it reasonably can be expected to lead to violations of WQS:Industrial waste means any liquid, gaseous, solid or waste substance, or acombination
: thereof, resulting from any process of industry, manufacturing, trade,or business or from the development or recovery of any natural resources, thatmay cause or might reasonably be expected to cause pollution of the waters of theState in contravention of the standards adopted pursuant to [Article 17 of theECL.6 NYCRR &sect;700.1(26)
(emphasis added). Thus, Department Staff's position that the discharge of"industrial waste" is prohibited under New York law is false, as Department Staff routinely authorize such discharges to waters of the State. Moreover, even the definition of industrial 25LIBA/230656.3 waste confirms that the inquiry is not whether any industrial waste is discharged but whether thedischarge of such waste might "reasonably be expected" to result in a violation of WQS -i.e., inquantities sufficient to violate WQS. As set forth above, the uncontroverted evidence in this caseis that Entergy's unplanned releases have not violated any even potentially applicable WQS, andthere are reasonable assurances that any future releases will not violate such standards.
Thus,Department Staff's latest attempt to revise the Notice of Denial and the Department's ownregulations is both prohibited by Department precedent and lacking in merit.F. DEC is not entitled to any deference on this issue.Department Staff ask this Tribunal to defer to its expertise with regard to the impact ofIndian Point's radionuclides on the Hudson River. See DEC Staff Br. at 22 ("The Department should be accorded deference in its decision making, including weighing and balancing of theabove facts, opinions, and circumstances in the context of applicable State water qualitystandards.").
Department Staff's position is legally untenable and factually absurd. First, as discussed above, Department Staff failed to apply the correct legal standards to Entergy's Application.
Second, Department Staff did not offer the expertise of those Staff members who (a) not onlyactually participated in and concurred with the Indian Point groundwater investigation andremediation
: strategy, but also issued public notices confirming the absence of impairment, (b)had expertise in radiological materials and their potential impacts on the environment, and (c)concluded that Entergy's unplanned releases had not violated Hudson River water qualitystandards.
: Instead, Department Staff chose to rely on a witness who (i) by his own admission, isunqualified in the area of radiological health and safety or the assessment of impacts associated with radionuclides in the environment, (ii) did not participate in the Indian Point groundwater investigation, and (iii) could not and did not perform an analysis of the impacts of unplanned 26LIBA/2306566.3 releases on Hudson River fish because it was "outside
[his] area of expertise."
Hearing Tr. at 52768 (Kolakowski).
"An administrative agency's interpretation of the statute it is charged with implementing is entitled to varying degrees ofjudicial deference depending upon the extent to which theinterpretation relies upon the special competence the agency is presumed to have developed in itsadministration of the statute."
Claim of Gruber, 89 N.Y.2d 225, 231 (1996) (emphasis added)(quoting Matter of Rosen v. Public Employment Relations Bd., 72 N.Y.2d 42, 47 (1988); see alsoSchneider
: v. Ambach, 135 A.D.2d 284, 290 (3rd Dept. 1988) ("An administrative agency seekingto support a discriminatory regulation on the basis of considerations outside the scope of itsgeneral statutory mandate and specialized knowledge is not entitled to the deference whichcourts customarily give to agency determinations....")
(emphasis added). Simply put,Department Staff s conclusions do not rely on those staff members who were directly involvedand contributed to the groundwater investigation at Indian Point. Instead, Department Staffknowingly put forth testimony ungrounded in relevant expertise and flatly contradicted by theDepartment's communications to the public on this issue. See Entergy Ex. #46, 80. As thisTribunal has already indicated, the absence of relevant expertise applied to the Department's position is a matter of the weight to be afforded Department Staff's testimony.
Not only shouldDepartment Staff receive no deference under these circumstances, its testimony should beafforded no weight at all.1717 Indeed, if it were not for Entergy's inclusion in the record of the Department's Community Fact Sheetsdocumenting the Department's independent findings associated with the Indian Point groundwater investigation, this Tribunal would not have been aware of them at all, since Department Staff did not disclosethem to the Tribunal or the parties.27LIBA/2306566.3 G. Riverkeeper's argument that Department Staff should have proposed to deny theWOC based on impacts to groundwater has no basis in law or fact, and should berejected.
Riverkeeper argues that, although Department Staff did not propose to deny the WQCbased on impacts to groundwater and is on record stating that the CWA does not permitconsiderations of impacts to groundwater, the Tribunal should recommend denial of Entergy's Application on the basis of radiological contamination of the groundwater beneath Indian Point.For multiple
: reasons, Riverkeeper's arguments are both legally and factually flawed. IS1. The CWA, including Section 401, applies only to discharges to surfacewaters.Section 401 of the CWA requires applicants for federal licenses to provide a certification from the State in which its "discharge" originates that "any such discharge will comply with theapplicable provisions of scetions
[301,302, 303,306 and 307] of [the CWA]." 33 U.S.C.&sect; 1341 (a)(1). The CWA defines the term "discharge" to include a "discharge of a pollutant, anda discharge of pollutants."
33 U.S.C. &sect; 1362(16).
In turn, the phrases "discharge of a pollutant" and "discharges of pollutants" are defined to be:any addition of any pollutant to navigable waters from any point source, (and] anyaddition of any pollutant to the waters of the contiguous zone or the ocean fromany point source other than a vessel or other floating craft.33 U.S.C. &sect; 1362(12)
(emphasis added). Thus, the certification required under &sect; 401(a) of theCWA is limited to a certification that releases of pollutants to navigable waters or waters of thecontiguous zone or ocean comply with the relevant sections of the CWA. The impacts toIS Most fundamentally, Riverkeeper's arguments go beyond the issue for adjudication:
"whether Department Staff properly denied the WQC application based upon radiological considerations."
See Issues Ruling at 25-27, 40. Department Staff did not, in fact, deny Entergy's application on the basis of the concentration ofradionuclides in groundwater.
The Notice of Denial does not address this topic, and Mr. Kolakowski confirmed during cross examination that the scope of Department Staffs inquiry was on the effect ofunplanned releases of radiological materials to groundwater on surface waters -i.e., the Hudson River. SeeHearing Tr. at 2759-2763 (Kolakowski).
Thus, Riverkeeper's arguments should be rejected as beyond thescope of this hearing.28LIBA/2306566.3 groundwater of a release from a facility are completely outside the scope of &sect; 401's certification requirement.1 9 Accordingly, Riverkeeper's argument falls under the plain language of &sect; 401 (a),a fact that Department Staff plainly acknowledged in this proceeding.
See DEC Staff Br. at 15,17.2. Riverkeeper's argument that &sect; 401(d) permits the denial of Entergy 'sapplication on the basis of radiological contamination of groundwater isequally misplaced.
As discussed above, &sect; 401 (d) of the CWA does not provide authority to states to deny aWQC application.
At most, &sect; 401(d) authorizes states to condition a WQC to the extentnecessary to comply with, among other things, "any other appropriate requirement of State law."Thus, Riverkeeper's reliance on &sect; 401(d) as a basis for the denial of Entergy's Application findsno support in &sect; 40 1 (d).Riverkeeper further argues that the U.S. Supreme Court decision in PUD authorizes states to circumvent the limitations of the CWA, as established in Train, and the pre-emptive effect of the AEA, and to regulate the unplanned releases of NRC-regulated materials intogroundwater pursuant to the state's groundwater quality standards.
What Riverkeeper fails tomention is that PUD neither (a) addressed the discharge of pollutants to groundwater, nor (b)addressed the release of NRC-regulated materials into groundwater.
Thus, PUD is not a licenseto ignore the jurisdictional limits of the CWA to surface waters or to ignore the exclusive authority of the NRC to regulate radionuclides under the AEA. Riverkeeper cites no relevantauthority to support its position that state groundwater quality standards can be applied to NRC-regulated materials found in groundwater beneath NRC-regulated facilities.
1 Moreover, the U.S Supreme Court held in Train that the definition of "pollutant" under the CWA does notinclude materials regulated by the NRC under the AEA. This argument applies with equal force here, as thephrase "discharge of a pollutant" necessarily is limited by the same definition of "pollutant" provided by theU.S. Supreme Court. Thus, even if the &sect; 401(a) applied to groundwater
-which it plainly does not- thedischarge of AEA materials to groundwater is also beyond the reach of the CWA pursuant to Train.29LIBA/2306566.3
: 3. The evidence presented by Riverkeeper demonstrates that the groundwater beneath Indian Point meets the best use standard.
Even if the limits of the CWA did not preclude Riverkeeper's
: argument, the evidenceadduced at trial provides no support for Riverkeeper's position.
Entergy's groundwater monitoring network consists of more than 250 different monitoring points. See Hearing Tr. at3917-3918 (Barvenik),
Barvenik Prefiled at 5. Water samples collected from the substantial majority of these locations contain radionuclides well below the maximum contaminant levels("MCLs")
that Riverkeeper purports apply here (i.e., 20,000 piC/1 for tritium and 8.0 piC/! forstrontium).
See Riverkeeper Ex. #14, 19, 22. Thus, even if the MCLs applied to thegroundwater, there are multiple locations that groundwater could be removed from beneathIndian Point with concentrations below the MCLs.20However, as discussed in Entergy's initial brief, the MCLs do not apply to groundwater.
The MCLs established by EPA under the federal Safe Drinking Water Act ("SDWA")
apply to"public water systems" at the point at which water "is delivered to" any user of that public watersystem (i~e., at the tap). See Entergy Br. at pp. 44-45. The groundwater beneath Indian Point isneither itself a public water system, nor is it delivered to any drinking water user and, therefore, the MCLs do not apply to the groundwater as it resides beneath Indian Point. Thus,Riverkeeper's arguments fail as a matter of fact as well as law.2'20 Riverkeeper repeatedly alleges that Entergy has "refused" to employ groundwater extraction wells at IndianPoint. See, e.g., Rkp. Br. at 83, 88. This is simply not true -neither the NRC nor DEC have requiredextraction wells. In collaboration with both DEC and NRC, Entergy has employed a remedial strategy ofmonitored natural attenuation.
There is no public health or environmental protection basis for requiring more,as Dr. Hoffman testified that there are "zero" impacts associated with the unplanned releases at issue. SeeHearing Tr. 3104-3107 (Hoffman).
To the extent extraction wells were required at Indian Point, no one hascontested Entergy's conceptual plan to implement that remedial strategy.
21 It is disputed that unplanned releases of radionuclides from Indian Point have not contaminated any drinkingwater sources or any off-site groundwater.
See Entergy Ex. #33, at viii, 114; Entergy Ex. #34, at v-vi; EntergyEx. #38 at 1-I, Entergy Ex. #40 at I-I; Entergy Ex. #46; Hearing Tr. at 3925-26 (Barvenik).
30LIBA1.3065663 CONCLUSION In sum, both Congress's decision to preclude the regulation of NRC-regulated radiological materials from the scope of the CWA and the preemptive effect of the AEA clearlyprohibit Department Staff's attempt to deny Entergy's Application based upon the unplanned releases of AEA-governed radiological materials.
: Further, even if DEC possessed authority toregulate Indian Point's radiological
: releases, which it does not, the evidence adduced at trialdemonstrates that Department Staff have repeatedly advanced rationales for its denial ofEntergy's Application found nowhere in the Notice of Denial, in direct violation of applicable precedent and fundamental notions of due process.
Both Department Staff and Riverkeeper claim that Entergy must predict the future with certainty in order to obtain a WQC, anotherposition directly contradicted by controlling precedent which both parties neglected to cite to thisTribunal.
They then argue that the discharge of any amount of deleterious substance to thewaters of the State is prohibited by New York law -a position flatly refuted by the Department's own regulations authorizing concentrations of these substances in State waters and its routineauthorization of such discharges around the state -even though the narrative WQS cited in theNotice of Denial expressly requires an evaluation of whether the amount of deleterious substances will impair the waters for its best usages. And to top it off, Department Staffdemands that this Tribunal defer to its decision making despite its multiple failures to apply thelaw or the expertise of Staff with knowledge and experience in radiological
: matters, including the Indian Point groundwater investigation.
The record demonstrates uncontrovertibly that the unplanned releases from Indian Pointhave not posed a threat to public health, the environment or the best usages of the Hudson River,and that there are reasonable assurances that any future unplanned releases will not impair such31 0LIBA/23065663 usages. Entergy respectfully requests that the Tribunal rule conclusively and completely inEntergy's favor.32LIBAt2306566.3}}

Revision as of 23:23, 1 July 2018

Indian Point, Units 2 and 3 - Coastal Zone Management Act Consistency Certification in Support of Renewal of Operating Licenses
ML14097A326
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 03/31/2014
From:
Entergy Nuclear Indian Point 2, Entergy Nuclear Indian Point 3, Entergy Nuclear Operations
To:
Office of Nuclear Reactor Regulation
Shared Package
ML14097A324 List:
References
F-2012-1028
Download: ML14097A326 (286)
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Text

INDIAN POINT UNIT 2 AND UNIT 3Coastal Zone Management Act Consistency Certification in Support ofRenewal of Indian Point Unit 2 and Unit 3 USNRC Operating LicensesSubmitted by:Entergy Nuclear Indian Point 2, LLCEntergy Nuclear Indian Point 3, LLCEntergy Nuclear Operations, Inc.EntergySUPPLEMENTAL INFORMATION ONGROUNDWATER QUALITY ISSUESMARCH 31, 2014 JGOODWIN PROCTER Matin R. Healy Goodwin Procter LLP617.570.1371 Counselors at Lawmhealy@goodwinprocter.com Exchange PlaceBoston, MA 02109T: 617.570.1000 F: 617.523.1231 March 31, 2014BY FEDERAL EXPRESS AND E-MAILLinda M. BaldwinGeneral CounselNew York State Department of StateCounsel's OfficeOne Commerce Plaza99 Washington StreetAlbany, NY 1223 1-0001Re: New York State Department of State File #F-2012-1028 Consistency Certification for Entergy Nuclear Indian Point 2 andEntergv Nuclear Indian Point 3 License Renewal Application

Dear Ms. Baldwin:

This letter provides supplemental information requested by the New York State Department of State (the"Department")

in connection with the consistency certification (the "Consistency Certification")

submitted on December 17, 2012, by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear IndianPoint 3, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy")

for Entergy's Indian Point2 and 3 ("Indian Point") License Renewal Application pending before the Nuclear Regulatory Commission

("NRC").

During its consultation session with Entergy on December 3, 2013, theDepartment requested Entergy to provide information regarding past unplanned releases of radiological materials at Indian Point and the potential effects of those releases on groundwater quality.

In particular, the Department inquired whether the Unit 2 spent fuel pool leak discovered in August of 2005 has beenadequately addressed, and whether Entergy can provide more up-to-date information on the results ofgroundwater monitoring at Indian Point.In response to the Department's

requests, Entergy is providing information regarding groundwater quality issues at Indian Point previously filed by Entergy with NRC in connection with current plantoperations and the ongoing NRC license renewal proceeding for Indian Point,' and with the New York1 NRC has exclusive jurisdiction to regulate radiological releases at Indian Point. See, e.g., Train v. Colorado Public InterestD Research Group, Inc., 426 U.S. 1, 16 n.12 (1976)("States are precluded from playing any role in several significant areas ofregulation, including the setting of limitations on radioactive discharges from nuclear power plants.");

N. States Power Co. v.Minnesota, 447 F.2d 1143, 1151 (81h Cir. 1971) (stating "Congress intended to pre-empt the field of the licensing and GOODWIN PROCTERP Linda M. BaldwinGeneral CounselMarch 31, 2014Page 2State Department of Environmental Conservation

("NYSDEC")

in connection with its pendingadjudicatory proceeding concerning Indian Point's Water Quality Certification.

2 In addition, to assistthe Department with its review of this technical information, Entergy is also providing a "white paper"that sets forth the relevant facts about groundwater at Indian Point.Entergy reiterates that it is proceeding with federal consistency review by the Department under a fullreservation of its rights under state and federal law, including, by way of example and withoutlimitation, its right to argue that: (i) Indian Point is within a "grandfathering" exemption from federalconsistency review under the New York Coastal Management Plan (the "CMP"); (ii) Indian Point hasbeen previously reviewed for consistency with the CMP; and (iii) the Department's purported federalconsistency review under the CMP intrudes upon exclusive areas of federal regulatory authority and ispreempted.

Entergy additionally notes that the information being requested by the Department in thiscase was not requested by the Department in connection with its previous federal consistency reviews ofnuclear power plants. Further, Entergy does not concede the relevance of the requested information tothe Department's review of Indian Point for consistency with the CMP.Nonetheless, detailed information has already been prepared for both NRC and NYSDEC whichdemonstrates, as a factual matter, that: (i) the sources of past unplanned releases of radiological materials to groundwater at Indian Point have been eliminated or the causes have been addressed; (ii) thepast unplanned releases of radiological materials to groundwater at Indian Point have not caused, and arenot causing, threats to the public health or the environment; and (iii) the past unplanned releases ofradiological materials to groundwater at Indian Point have not caused, and are not causing, a violation ofstate water quality standards.

That supplemental information is being submitted in support of theConsistency Certification.

Due to the voluminous records associated with the aforementioned NRC and NYSDEC proceedings, Entergy has sought to identify and provide to the Department the subset of documents from thoseregulation of nuclear reactors to the exclusion of the states and that it did not intend to provide for dual regulation of radiation hazards")

aff'd 405 U.S. 1035 (1972); United States v. Kentuckv, 252 F.3d 816, 823 (6"h Cir. 2001) (stating that "The [AtomicEnergy Act (AEA) of 1954] preempts an)' state attempt to regulate materials covered by the Act for safety purposes");

UnitedStates v. Manning, 527 F.3d 828, 838 (9' Cir. 2008) (finding that a state law that seeks to regulate "AEA materials out ofconcern for the health and environmental risks that increased contamination will cause...

falls squarely within the fieldpreempted by the AEA"); Missouri

v. Westinghouse Elec., LLC, 487 F. Supp. 2d 1076, 1087-88 (E.D. Mo. 2007) (refusing toratify a proposed consent decree because it attempted "to regulate the safety of a site that contains nuclear contamination

-afield completely pre-empted by the Atomic Energy Act," and stating that "[t]he presence of radiation hazards is sufficient togive rise to the NRC's exclusive jurisdiction").

2 This information is being submitted to the Department in fulfillment of the undertaking by Entergy, as set forth in its letterto the Department dated December 20, 2013, to provide to the Department by March 31, 2014, "information developed byEntergy before [NYSDEC]

about groundwater quality issues at Indian Point."

'-4GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 3proceedings that most directly address groundwater quality issues. Those documents (hard copies ofwhich are enclosed) are listed on the charts below:Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")

DatabaseRIV000066 RK-EC-3/

GZA, GeoEnvironmental, 12/22/2011 ML12335A626 CW-EC-1 Inc., Hydrogeologic SiteInvestigation Report, IndianPoint Energy Center, January7, 2008, IPEC00195418 RIV000067 RK-EC-3/

Letter from Marsha K. 12/22/2011 ML12335A624 CW-EC-1 Gamberoni, NRC, to JosephPollock,

Entergy, "IndianPoint Nuclear Generating Units 1 & 2 -NRCInspection Report Nos.05000003/2007010 and05000247/2007010 (datedMay 13, 2008)3RIV000068 RK-TC-2 Entergy, Groundwater 12/22/2011 ML12335A623 Investigation Executive
Summary, Indian Point_Energy Center, Buchanan, 3 NRC periodically prepares inspection reports of its inspections pertaining to Indian Point. NRC inspection reports areavailable to the public at http://www.nrc.gov/NRR/OVERSIGHT/ASSESS/listofrpts body.html#inp.

NRC inspection reports through 2009 are available at http://www.nrc.gov/info-finder/reactor/ip/correspondence.htmi.

In addition, NRCinspection reports are available at the NRC "ADAMS" database http://www.nrc.gov/reading-rm/adams.html using thefollowing ADAMS Accession

Numbers, among others: ML12335A624, ML12338A648, ML12089A601, MLI 1356A520.

6GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 4Mandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")

DatabaseNY (January 2008)RIVROO091 RK-EC-3/

Liquid Radioactive Release 12/22/2011 ML12335A608 CW-EC-1 Lessons Learned Task ForceFinal Report, U.S. NRC(September 1, 2006)NRC000095 RK-EC-3/CW-EC-1Ltr. To NRC from Entergyre: Remediation and LongTerm Monitoring of SiteGroundwater 13/30/2012 ML12339A651 ENT000300 RK-EC-3/CW-EC-1Entergy's Statement ofPosition on Consolidated Contention RK-TC-3/CW-EC-1 (Spent Fuel PoolLeaks)3/29/2012

\4L12089A574 ENT000301 RK-EC-3/

Testimony of Entergy 3/29/2012 ML 12338A621 CW-EC-I Witness Donald M. Mayer,Alan B. Cox, Thomas C.Esselman, Matthew J.Barvenik, Carl J. Paperiello, and F. Owen HoffmanRegarding Consolidated Contention RK-EC-3/CW-EC-I (Spent Fuel Pool Leaks)ENT000302 RK-EC-3/

Curriculum Vitae of Donald 3/29/2012 ML12338A700 CW-EC-1 M. MayerENT000303 RK-EC-3/

Curriculum Vitae of Thomas 3/29/2012 ML 12338A667 CW-EC-1 C. EsselmanENT000304 R-K-EC-3/

ý"W-EC- 1Curriculum Vitae of MatthewJ. Barvenik3/29/2012 ML12338A679 WqF[NT000305 R-K-EC-3/

Curriculum Vitae of Carl J. 13/29/2012 iML12089A659 GOODWINPROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 5Mandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")

DatabaseCW-EC-1 Paperiello ENT000306 RK-EC-3/

Curriculum Vitae ofF. Owen 3/29/2012 ML12089A637 CW-EC-1 HoffmanENT000313 RK-EC-3/

2010 Annual Radiological 3/29/2012 ML12339A710 CW-EC-1 Environmental Operating Report (NL-1 1-038) (May16, 201 1)4ENT000319 RK-EC-3/

2010 Annual Radioactive 3/29/2012 ML12089A670 CW-EC-1 Effluent Release Report, Rev.I (NL- 11-068) (June 10,2011)'ENT000321 RK-EC-3/

Lawrence C. Skinner and 3/29/2012 ML12338A680 CW-EC-1 Timothy J. Sinnot,Measurement of Strontium (90Sr) and Otheradionuclides in EdibleTissues and Bone/Carapace of Fish and Blue Crabs fromthe Lower Hudson River(Nov. 2009)ENT000332 R-EC-3/ GZA GeoEnvironmental, 3/29/2012 ML12089A649

' Entergy annually provides reports to NRC regarding radiological environmental monitoring.

The reports are available tothe public at the NRC "ADAMS" database http://www.nrc.gov/readiny-rm/adams.html using the following ADAMSAccession

Numbers, among others: M L061290085, ML071420088, ML081420476, M L091410203, ML 101390564, MLII 143A052, ML12144A412, ML13144A133.

' Entergy annually provides reports to NRC regarding radiological effluent releases.

Those reports are available to the publicat htp://www.nrc.gov/info-fnder/reactor/ip/ip-groundwater-leakaye/on-going-activities/on-going-activities I0.html, and atthe NRC "ADAMS" database http://www.nrc.gov/reading-rm/adams.html using the following ADAMS Accession Numbers,among others: ML061240373, ML071230305, ML081280744, ML091260208, ML101240989, MLII 172A042,ML12132A122, ML!31570158.

GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 6Mandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")

DatabaseCW-EC-1 Inc., Changes in Computed"Fritium Plume Total ActivityOver Time -Exponential Decay Curve Trending ofQuarterly Data through Q32011ENT000333 RK-EC-3/

GZA GeoEnvironmental, 3/29/2012 ML12089A663 CW-EC-1 Changes in ComputedStrontium Plume TotalActivity Over Time -Exponential Decay CurveTrending of Quarterly Datathrough Q3 2011ENT000343 RK-EC-3/

Letter from Darrel J. Roberts, 3/29/2012 ML12338A648 CW-EC-1 NRC, to Joseph Pollock,Entergy,

"[IPI, IP2 & IP 3]NRCInspection Report Nos.05000003/2009008; 05000247/2009008; and05000286/2009008" (Oct. 19,2009)6ENT000344 RK-EC-3/

Letter from D. C. Lew, NRC, 3/29/2012 MLI2089A601 CW-EC-1 to J. E. Pollock, Entergy,'Annual Assessment Letter -Indian Point NuclearGenerating Units 2 and 3,(Reports 05000247/2010001 6 See footnote 3, supra.

GOODWINPROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 7Mandatory Log Numbercontentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")

Database& 05000286/20100001)"

(Mar. 3, 2010)7ENT000345 RK-EC-3/

NYSDEC Community Fact 3/29/2012 ML12089A608 CW-EC-1 Sheet (May 2008)ENT000360 RK-EC-3/

EPA, Basic Information 3/29/2012 MLI2089A666 CW-EC-1 about Radionuclides inDrinking Water, web pageENT000371 RK-EC-3/CW-LetterNL-08-023, from J. 3/29/2012 ML12089A679 EC-I Pollock,

Entergy, to NRC,Results of Ground WaterContamination Investigation (Jan. 11, 2008)NRCROO088 RK-EC-3/

NRC Staff Testimony of 9/21/2012 ML12340A747 CW-EC-I Stephen P. Klementowicz and James D. NoggleConcerning Contention Riverkeeper EC-3/Clearwater EC-I (Spent Fuel PoolLeaks)NRC00089 RK-EC-3/

Professional Qualifications, 9/21/2012 ML12339A646 CW-EC-1 Stephen P. Klementowicz NRCROO090 RK-EC-3/

James D. Noggle, Statement 9/21/2012 ML12265A720 CW-EC-1 of Professional Qualifications 7 See footnote 3, supra.

GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 8Mandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")

DatabaseENT00575 A RK-EC-3/

GZA GeoEnvironmental, 10/2/2012 ML12276A480 CW-EC-1 Inc., Final IPEC Quarterly Long-Term Groundwater Monitoring Report, QuartersOne Through Four 2011(Sept. 26, 2012)8Entergy is providing to NRC quarterly updates of its groundwater monitoring reports.

Those updated groundwater reportsare available to the public at http://www/safesecurevital.com.

Groundwater reports from 2008 through 2011 are available atthe NRC "ADAMS" database http://www.nrc.gov/reading-rm/adams.html using the following ADAMS Accession Numbers,among others: M1L080320540, ML12338A639, MLI2089A597, ML12089A615, ML12089A614, MLI2089A616, ML12338A637, ML12089A591, ML12089A596, ML12089A598, ML12094A1 17, ML12276A480, ML12276A486, ML12277A057, ML12276A493, ML12276A492.

GOODWIN PROCTERW Linda M. BaldwinGeneral CounselMarch 31,2014Page 9In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, andEntergy Nuclear Operations Inc. 'sJoint Application for CWA § 401 Water Quality Certification DEC App. Nos. 3-5522-00011/00030 (IP2)Selected Testimony, Exhibits and BriefingEntergy Date Submitted ToExhibit # ssue Addressed ocument Description TribunalN/A Issue #3: Pre-filed Testimony of Matthew J. Barvenik in 7/22/2011 Radiological 9 Support of Entergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC and EntergyNuclear Operations, Inc. (adopted under oath onJanuary 23, 2012)N/A Issue #3: Pre-filed Testimony of F. Owen Hoffman in 7/22/2011 Radiological Support of Entergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC and EntergyNuclear Operations, Inc. (adopted under oath onJanuary 11,2012)N/A Issue #3: Combined Pre-filed Rebuttal Testimony of 10/4/2011 Radiological thomas C. Esselman, Ph.D., Matthew J. Barvenik, and F. Owen Hoffman, Ph.D. (adopted under oathon January 11 & 23, 2012)80 Issue #3: NYSDEC Community Fact Sheet (Sept. 2007) 10/04/2011 Radiological 121 Issue #3: [PEC's Yearly Discharges vs Commonly 1/11/2012 Radiological Occurring Doses/A Issue #3: Proposed Findings of Fact ("PFF") of Entergy 4/27/2012 Radiological Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3, LLC, and Entergy NuclearOperations, Inc. Radiological IssuesN/A ssue #3: Post Hearing Memorandum of Entergy Nuclear /27/2012Radiological Indian Point 2, LLC, Entergy Nuclear Indian Point9 In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy NuclearO Operations Inc. 's Joint Application for CWA § 401 Water Quality Certification

("WQC"),

DEC App. Nos. 3-5522-00011/00030 (IP2), Issues List, p. I (Dec. 13, 2010) (defining issue #3 as "[w]hether Department Staff properly denied theWQC application based upon radiological considerations").

GOODWIN :PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 10Entergy Issue Addressed Document Description Date Submitted ToExhibit # sribunal3, LLC, and Entergy Nuclear Operations, Inc.,Radiological IssuesN/A Issue #3: Post Hearing Reply Memorandum of Entergy 10/5/2012 Radiological Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3, LLC, and Entergy NuclearOperations, Inc., Radiological Issues, datedOctober 5, 2012Several categories of documents listed above (e.g., quarterly groundwater monitoring

reports, annualradioactive effluent release reports) are updated and filed, or are otherwise made available to NRC, on aquarterly or annual basis. For such categories of documents, Entergy is providing to the Department written copies of documents that are most directly responsive to its specific information requests.

For.the Department's convenience, Entergy is also providing references to where related documents (e.g.,earlier or later versions of certain enclosed

reports, as applicable) are publically available for theDepartment's examination.

In addition, several documents being provided to the Department containcitations to supporting testimony and exhibits that are not specifically identified above or enclosed.

Ifthe Department would like copies of any such supporting testimony or exhibits, or other additional information with respect to unplanned radiological releases to groundwater, please let me know.We look forward to discussing this supplemental information with you at your convenience.

Sincerely, Martin R. HealyMRHcc:U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk (w/encl.

except forADAMS documents)

Douglas V. Pickett, Senior Project Manager, NRC NRR DORL (w/encl.

except for ADAMSdocuments)

William M. Dean, Regional Administrator, NRC Region I (w/encl.

except for ADAMSdocuments)

GOODWIN PROCTERLinda M. BaldwinGeneral CounselMarch 31, 2014Page 11NRC Resident Inspectors Office (w/encl.

except for ADAMS documents)

William Sharp, Principal Attorney (w/encl.)

Kari Gathen, Associate Attorney (w/encl.)

Jeffrey Herter, Assistant Bureau Chief, Division of Development (w/encl.)

Gregory Capobianco,

Director, Division of Development (w/encl.)

Jeffrey Zappieri, Supervisor, Consistency Review Unit (w/encl.)

Matt Maraglio, Consistency Reviewer (w/encl.)

Fred Dacimo, Vice President License Renewal, Indian Point Energy Center (w/encl.)

William B. Glew, Jr., Associate General Counsel, Entergy Services, Inc. (w/encl.)

Kelli Dowell, Assistant General Counsel, Environmental, Entergy Services, Inc. (w/encl.)

Dara Gray, Chemistry/Environmental, Indian Point Energy Center (w/encl.)

March 31, 2014Response to New York State Department of State Request for Supplemental Information Regarding Groundwater Ouality Issues at Indian PointI. Request for Supplemental Information.

On December 3, 2013, Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3,LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy")

and the New York StateDepartment of State (the "Department")

engaged in a consultation session at which theDepartment requested supplemental information regarding past unplanned releases ofradiological material to groundwater at Indian Point and the potential effects of those releases ongroundwater quality.

In Entergy's letter to the Department dated December 20, 2013, Entergyundertook to provide to the Department supplemental information on that topic on or beforeMarch 31, 2014.II. The Source of Information Regarding Radiological Releases.

Indian Point, like all operating nuclear power plants, is designed and operated in accordance withstrict Nuclear Regulatory Commission

("NRC") criteria that require, among other things, thatany radiological

releases, including unplanned
releases, must comply with applicable NRCsafety and health standards and, as appropriate, must be closely monitored.

See, e.g., Reference 1 (establishing annual dose limits to individual members of the public from the licensed activity),

and Reference 2 (establishing standards to maintain releases of radiological materials to the environment as low as reasonably achievable

("ALARA")).

In furtherance of its statutory responsibilities, NRC has conducted periodic inspections of Indian Point, and has requiredEnergy to file periodic reports concerning any radiological releases to the environment.

See,e.g., Reference 3 (providing guidance to operators on the regulatory requirement to measure,evaluate and report radiological releases).

In response to the discovery of unplanned releases ofradiological material at Indian Point, and in order to minimize the possibility of a futureunplanned or unmonitored

release, NRC is overseeing Entergy's implementation of a rigorousgroundwater monitoring program.

See, e.g., Reference

4. Moreover, in connection with LicenseRenewal at Indian Point (the "NRC Proceeding"),

Entergy has submitted, and NRC has closelyevaluated, detailed information regarding the potential effects on public health or theenvironment of unplanned radiological releases to groundwater.

See, e.g., Reference

5. Finally,in connection with the New York State Department of Environmental Conservation

("NYSDEC")

adjudicatory hearing for Indian Point (the "NYSDEC Proceeding"),

Entergy hassubmitted evidence demonstrating that the unplanned releases of radiological materials togroundwater have not violated state water quality standards.

III. Summary of Facts Regarding Unplanned Radiological Releases to Groundwater atIndian Point.A. The Sources of Past Unplanned Releases of Radiological Materials to Groundwater Have Been Eliminated or Their Causes Have Been Addressed.

The removal of all fuel from and the draining and de-sludging of the Unit 1 spent fuel pools wascompleted in late 2008. As a result, Unit 1 no longer is an active source of radionuclides to thesubsurface.

See Reference 6 at 43. In addition, the prior identified unplanned releases associated with Unit 2 have been repaired, and a robust monitoring system is in place to promptly identifyand respond to any future releases.

Reference 6 at 50; Reference 7 at pp. 15-19. There has beenno identified unplanned spent fuel pool release to the environment from Unit 3.Based upon an independent review, NYSDEC concluded that, with the removal of the activecontamination source at Indian Point, planned use of monitored natural attenuation is anacceptable approach to managing the remaining radionuclide plumes. See Reference 8.B. The Past Unplanned Releases of Radiological Materials to Groundwater Have NotCaused, and Are Not Causing, Threats to Public Health or the Environment.

i. There is no credible scientific basis to conclude that Indian Point's unplanned releases have impaired, or will impair, the public health or environment.

One of Entergy's groundwater

experts, Dr. Hoffman, a pre-eminent scientist in the field ofradiological health and safety: (i) identified the sources and amounts of radiological materials released into the environment from Indian Point; (ii) determined whether there were anyexposure pathways for humans or aquatic biota to those radionuclides; (iii) calculated theradiation dose to humans or aquatic biota resulting from those exposure pathways; and (iv)translated that dose to risk to human health or impact on aquatic biota. See Reference 9 at 6-9,11, 14.2 To put things in perspective, Dr. Hoffman concluded that the annual dose in 2010 from IndianPoint's unplanned releases (the year for which the most recent data was then available) to thehypothetical maximally-exposed individual was 0.0002 mrem, a small fraction of the dose thatan individual would get from eating a single banana. See Reference 7 at ¶ 119, 127, 143;Reference 10.s Yerl Dicare vs Co mol Ocurn Doses840320240160s00.0060*Ms. Am"uI' -,,w~ ea...t XR Cmu04w.Cum EaftonRUN"" ft" -OWU SaMshopff PW Boo&eý oft e M ...FEC Liuid WK GrOmmd a*k, I B, WODom U"l D00. a"Dr. Hoffman then applied the linear no-threshold model to convert these doses into a risk topeople of developing cancer in later life, finding that in order for such releases to cause a singleincidence of cancer-related illness in later life, five billion people would have to be maximally exposed to Entergy's unplanned releases.

Reference 7 at ¶ 136. After noting that an exposure tosuch a large population was impossible, Dr. Hoffman's conclusion was clear and uncontested:

his expert opinion is that the unplanned releases from Indian Point are expected to have zeroimpact on the health of the public. Reference 7 at ¶ 138.For purposes of evaluating impacts to the environment, Dr. Hoffman applied the two commonlyaccepted scientific methods for analyzing the potential dose to aquatic biota from radiological releases (the RESRAD-BIOTA dose model and the UNSCEAR model) to Indian Point'sunplanned releases in 2010. Reference 7 at 1 139-141.

His analysis confirmed that the doserate (dose-per-day) to aquatic biota resulting from Indian Point's unplanned releases was "ordersof magnitude" lower than the scientifically accepted threshold for protection of aquatic biota.Reference 7 at ¶ 142.3 ii. There has been no discernible impact on the level of radionuclides in the HudsonRiver due to unplanned releases.

Based on extensive, ongoing sampling and testing of Hudson River water in the vicinity ofIndian Point and at control locations away from Indian Point, the migration of low levels ofradionuclides to the Hudson River has no discernible effect on the levels of radionuclides contained in Hudson River water. Reference 6 at 99. NYSDEC sampling showed no significant difference between Strontium-90 in the flesh of fish caught near the site and fish caught as far as70 miles upstream.

See Reference

8. The radionuclide plumes in groundwater have not affectedproperties surrounding Indian Point. See Reference 11 at p. 30 n. 21 and Reference
12. Overtime, the radionuclide plumes are diminishing in size. Reference 7 at ¶66.Between November 2005 (when the Unit 2 unplanned release was first addressed) andNovember 2011, estimated radionuclide concentrations in the plume associated with the Unit 2unplanned release had diminished by approximately 89%. Reference 7 at ¶67.ENTODD33Sibn*ae:

Mgd" 29.20120.16 ESTIMATED TRITIUM PLUME ACTIVITY OVER TIME89% Reduction 0.14 IIUpperEstimte

  • Lowsr Estimate lBoundiiActlvkty 0.120.110.084 0.060.040.02i Z0 8NOV.% No**6 Nov07 NoVIS NWv. NOV-10 Nov114 Between October 2008 (when the Unit 1 spent fuel pools were drained) and October 2011,estimated radionuclide concentrations associated with the Unit 1 unplanned release haddiminished by approximately 71%. Reference 7 at ¶68.ENT000333 SuAnbifod Mad,29 20120.00014 ESTIMATED STRONTIUM PLUME ACTIVITY OVER TIME___ 71% Reduction 0.00012 E[ .Uppertt

.L.w. Etmt,,e.

1.- 0.0001 :J"S 0.00008E~ 0,0000645~ 00000D4OP

-40.000022t/ 80 -Oct-OS Apr-09 Oct-09 Apr-10 Oct-10 Apr-lU Oct-liC. The Past Unplanned Releases of Radiological Materials to Groundwater Have NotCaused a Violation of State Water Quality Standards.

The Hudson River near Indian Point is classified as "SB" saline surface waters. See Reference 13 at Table 1, Item 2. "The best usages of Class SB waters are primary and secondary contactrecreation and fishing.

These waters shall be suitable for fish, shellfish and wildlife propagation and survival."

Reference

14. Primary contact recreation consists of recreational activities wherethe human body may come in direct contact with raw water to the point of complete bodysubmergence.

Primary contact recreation

includes, but is not limited to, swimming, diving,water skiing, skin diving and surfing.

See Reference

15. Secondary contact recreation consistsof recreational activities where contact with the water is minimal and where ingestion of thewater is not probable.

Secondary contact recreation

includes, but is not limited to, fishing andboating.

See Reference 16.Dr. Hoffman's

analyses, described above, establish that Indian Point's unplanned releases do notviolate state water quality standards.

First, Dr. Hoffman demonstrates that members of thepublic engaging in recreational activities on the Hudson River are unaffected by Indian Point'sunplanned releases.

See Section III.B.ii.

Accordingly, there is no credible scientific basis toconclude that Indian Point's unplanned releases have impaired or will impair the use of theHudson River for primary or secondary contact recreation, such as swimming,

fishing, andboating.

Second, Dr. Hoffman establishes that Indian Point's unplanned releases were "orders ofmagnitude" lower than the scientifically accepted threshold for protection of aquatic biota. SeeSection III.B.ii.

Accordingly, there is no credible scientific basis to conclude that releases of5 radionuclides to groundwater that has migrated to the Hudson River have impaired or will impairthe suitability of the Hudson River for fish, shellfish, and wildlife propagation and survival.

IV. Conclusions The sources of past unplanned releases of radionuclides at Indian Point have been eliminated ortheir causes have been addressed.

Those releases have not caused, and are not causing, threats tothe public health or the environment.

Nor have those releases caused a violation of state waterquality standards.

6 REFERENCES

1. Radiation Dose Limits for Individual Members of the Public, 10 C.F.R. Part 20, SubpartD.2. Numerical Guides for Design Objectives and Limiting Conditions for Operation to Meetthe Criterion "As Low as is Reasonably Achievable" for Radioactive Material in Light-Water-Cooled Nuclear Power Reactor Effluents, 10 C.F.R. Part 50, Appendix I, SectionII.3. NRC, Regulatory Guide 1.21, Measuring, Evaluating, And Reporting Radioactive Material In Liquid And Gaseous Effluents And Solid Waste, Rev. 2 ( June 2009).4. Letter dated October 19, 2009, from Darrel J. Roberts, NRC, to Joseph Pollock, Entergy,

Subject:

Indian Point Nuclear Generating Units 1, 2 &3-NRC Inspection Report Nos.05000003/2009008; 05000247/2009008; and 0400286/2009008 (ML12338A648).

5. Contentions RK-EC-3 and CW-EC- 1, presented to and dismissed by the Atomic Safetyand Licensing Board in connection with NRC Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 (Entergy Nuclear Operations, Inc.-Indian Point Units2 and 3).6. NRC Proceeding, Entergy Exhibit ENT00030 1, Testimony of Entergy Witness DonaldM. Mayer, Alan B. Cox, Thomas C. Esselman, Matthew J. Barvenik, Carl J. Paperiello, and F. Owen Hoffman Regarding Consolidated Contention RK-EC-3/CW-EC-1 (SpentFuel Pool Leaks) (March 29, 2012) (ML12338A621).
7. NYSDEC Proceeding, Proposed Findings of Fact of Entergy Nuclear Indian Point 2,LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.Radiological Issues Entergy Proposed Findings of Fact (Apr. 29, 2012).8. NRC Proceeding, Entergy Exhibit ENT000345, NYSDEC Community Fact Sheet (May2008) (ML 12089A608).
9. NYSDEC Proceeding, Prefiled Testimony of F. Owen Hoffman in Support of EntergyNuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC and Entergy NuclearOperations, Inc. (July 22, 2011).10. NYSDEC Proceeding, Entergy Exhibit 121, IPEC's Yearly Discharges vs CommonlyOccurring Doses.11. NYSDEC Proceeding, Post Hearing Reply Memorandum of Entergy Nuclear IndianPoint 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc., Radiological Issues (October 5, 2012).7
12. NYSDEC Proceeding, Entergy Exhibit 80, NYSDEC Community Fact Sheet (Sept.2007).13. 6 NYCRR § 864.8.14. 6 NYCRR § 701.11.15. 6 NYCRR § 700.1(49).
16. 6 NYCRR § 700.1(56).

8 INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO0 Evidentiary HearingSelected Hearing ExhibitsMandatory LogNumber Identification Contentions ExhibitfoNRAgnywd Tab # Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab Exhbit ateDocuments Access andExhibit DateManagement System("ADAMS")

Database1. RIV000066 RK-EC-3/.

GZA, GeoEnvironmental, 12/22/2011 ML12335A626 CW-EC-l Inc., Hydrogeologic SiteInvestigation Report,Indian Point EnergyCenter, January 7, 2008,IPEC00195418

2. RIV000067 RK-EC-3/

Letter from Marsha K. 12/22/2011 ML12335A624 CW-EC-1 Gamberoni, NRC, toJoseph Pollock, Entergy,"Indian Point NuclearGenerating Units 1 & 2 -NRC Inspection ReportNos. 05000003/2007010 and 05000247/2007010 (dated May 13, 2008)3. RIV000068 RK-TC-2 Entergy, Groundwater 12/22/2011 ML12335A623 Investigation Executive

Summary, Indian PointEnergy Center, Buchanan, NY (January 2008)4. RIVROO091 RK-EC-3/

Liquid Radioactive 12/22/2011 ML12335A608 CW-EC-1 Release Lessons LearnedTask Force Final Report,U.S. NRC (September 1,2006)5. RC000095 RK-EC-3/

Ltr. To NRC from Entergy 3/30/2012 ML12339A651 CW-EC-1 re: Remediation and LongTerm Monitoring of SiteGroundwater INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01 Evidentiary HearingSelected Hearing ExhibitsMandatory LogNumber Identification Contentions ExhibitfoNRAgnywd Tab # Exhibit # Addressed by Exhibit Name Submission Documents Access andExhibit DateManagement System_("ADAMS")

Database6. ENT000300 RK-EC-3/

Entergy's Statement of 3/29/2012 ML12089A574 CW-EC-1 Position on Consolidated Contention RK-TC-3/CW-EC-1 (Spent Fuel PoolLeaks)7. ENT000301 RK-EC-3/

Testimony of Entergy 3/29/2012 ML12338A621 CW-EC-1 Witness Donald M.Mayer, Alan B. Cox,Thomas C. Esselman, Matthew J. Barvenik, CarlJ. Paperiello, and F. OwenHoffman Regarding Consolidated Contention RK-EC-3/CW-EC-1 (Spent Fuel Pool Leaks)8. ENT000302 RK-EC-3/

Curriculum Vitae of 3/29/2012 ML12338A700 CW-EC-1 Donald M. Mayer9. ENT000303 RK-EC-3/

Curriculum Vitae of 3/29/2012 ML12338A667 CW-EC-1 Thomas C. Esselman10. ENT000304 RK-EC-3/

Curriculum Vitae of 3/29/2012 ML12338A679 CW-EC-1 Matthew J. Barvenik11. ENT000305 RK-EC-3/

Curriculum Vitae of Carl 3/29/2012 ML12089A659 CW-EC-1 J. Paperiello

12. ENT000306 RK-EC-3/

Curriculum Vitae ofF. 3/29/2012 ML12089A637 CW-EC-1 Owen Hoffman13. ENT000313 RK-EC-3/

2010 Annual Radiological 3/29/2012 ML12339A710 CW-EC- 1 Environmental Operating Report (NL- 11-038) (May16,2011)14. ENT000319 RK-EC-3/

2010 Annual Radioactive 3/29/2012 L12089A670 CW-EC-1 Effluent Release Report,_ _ _Rev. I (NL-11-068)

(June INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDOI Evidentiary HearingSelected Hearing ExhibitsMandatory LogNumber Identification Contentions ExhibitfoNRAgnywd Tab # Exhibit # Addressed by Exhibit Name Submission Documents Access andExhibit DateManagement System("ADAMS")

Database10,2011)15. ENT000321 RK-EC-3/

Lawrence C. Skinner and 3/29/2012 ML12338A680 CW-EC-1 Timothy J. Sinnot,Measurement of Strontium (90Sr) and OtherRadionuclides in EdibleTissues andBone/Carapace of Fish andBlue Crabs from theLower Hudson River(Nov. 2009)16. ENT000332 RK-EC-3/

GZA GeoEnvironmental, 3/29/2012 ML12089A649 CW-EC-1 Inc., Changes inComputed Tritium PlumeTotal Activity Over Time -Exponential Decay CurveTrending of Quarterly Data through Q3 201117. ENT000333 RK-EC-3/

GZA GeoEnvironmental, 3/29/2012 ML12089A663 CW-EC-1 Changes in ComputedStrontium Plume TotalActivity Over Time -Exponential Decay CurveTrending of Quarterly Data through Q3 2011 INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDOI Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # xhibit Documents Access andManagement System("ADAMS")

Database18. ENT000343 RK-EC-3/

Letter from Darrel J. 3/29/2012 ML12338A648 CW-EC-1 Roberts, NRC, to JosephPollock,

Entergy,

"[IP 1,P2 & IP 3] NRCInspection Report Nos.05000003/2009008; 05000247/2009008; and05000286/2009008" (Oct.19, 2009)19. ENT000344 RK-EC-3/

Letter from D. C. Lew, 3/29/2012 ML12089A601 CW-EC-1 NRC, to J. E. Pollock,Entergy, "AnnualAssessment Letter -Indian Point NuclearGenerating Units 2 and 3(Reports05000247/2010001

&05000286/20100001)"

(Mar. 3, 2010)20. ENT000345 RK-EC-3/

NYSDEC Community 3/29/2012 ML12089A608 CW-EC-1 Fact Sheet (May 2008)21. ENT000360 RK-EC-3/

EPA, Basic Information 3/29/2012 ML12089A666 CW-EC-1 about Radionuclides inDrinking Water, web page22. ENT000371 RK-EC-3/CW-EC-1 Letter NL-08-023, from J. 3/29/2012 ML12089A679

Pollock, Entergy, to NRC,Results of Ground WaterContamination Investigation (Jan. 11,2008)

INDEX OF DOCUMENTS SUBMITTED PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory Log,Number Identification Contentions ExhibitfoNRAgnywd Tab # Exhibit # Addressed by Exhibit Name Submission Documents Access andExhibit DateManagement System_("ADAMS")

Database23. NRCROO088 RK-EC-3/

NRC Staff Testimony of 9/21/2012 ML12340A747 CW-EC-l Stephen P. Klementowicz and James D. NoggleConcerning Contention Riverkeeper EC-3/Clearwater EC-1 (SpentFuel Pool Leaks)24. NRC00089 RK-EC-3/

Professional 9/21/2012 ML12339A646 CW-EC-1 Qualifications, Stephen P.Klementowicz

25. NRCROO090 RK-EC-3/

James D. Noggle, 9/21/2012 ML12265A720 CW-EC-1 Statement of Professional Qualifications

26. ENT00575 A RK-EC-3/

GZA GeoEnvironmental, 10/2/2012 ML12276A480 CW-EC-1 Inc., Final IPEC Quarterly Long-Term Groundwater Monitoring Report,Quarters One ThroughFour 2011 (Sept. 26, 2012)

INDEX OF DOCUMENTS SUBMITTED PART TWO: In the Matter of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3,LLC, and Entergy Nuclear Operations Inc.'s Joint Application forCWA § 401 Water Quality Certification DEC App. Nos. 3-5522-00011/00030 (IP2)Selected Testimony, Exhibits and BriefingTab # Entergy Issue Document Description Date Submitted Exhibit # Addressed eTo Tribunal27. N/A Issue #3: Pre-filed Testimony of Matthew J. 7/22/2011 Radiological Barvenik in Support of Entergy NuclearIndian Point 2, LLC, Entergy NuclearIndian Point 3, LLC and Entergy NuclearOperations, Inc. (adopted under oath onJanuary 23, 2012)28. N/A Issue #3: Pre-filed Testimony of F. Owen Hoffmnan 7/22/2011 Radiological in Support of Entergy Nuclear Indian Point2, LLC, Entergy Nuclear Indian Point 3,LLC and Entergy Nuclear Operations, Inc.(adopted under oath on January 11, 2012)29. N/A Issue #3: Combined Pre-filed Rebuttal Testimony of 10/4/2011 Radiological Thomas C. Esselman, Ph.D., Matthew J.Barvenik, and F. Owen Hoffman, Ph.D.(adopted under oath on January 11 & 23,2012)30. 80 Issue #3: NYSDEC Community Fact Sheet (Sept. 10/04/2011 Radiological 2007)31. 121 Issue #3: IPEC's Yearly Discharges vs Commonly 1/11/2012 Radiological Occurring Doses32. N/A Issue #3: Proposed Findings of Fact ("PFF") of 4/27/2012 Radiological Entergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, andEntergy Nuclear Operations, Inc.Radiological Issues33. N/A Issue #3: Post Hearing Memorandum of Entergy 4/27/2012 Radiological Nuclear Indian Point 2, LLC, EntergyNuclear Indian Point 3, LLC, and EntergyNuclear Operations, Inc., Radiological Issues34.N/AIssue #3:Radiological Post Hearing Reply Memorandum ofEntergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, andEntergy Nuclear Operations, Inc.,Radiological Issues, dated October 5, 201210/5/2012 PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # xhhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")

Database1. RIV000066 RK-EC-3/

GZA, GeoEnvironmental, 12/22/2011 ML12335A626 CW-EC- 1 Inc., Hydrogeologic SiteInvestigation Report,Indian Point EnergyCenter, January 7, 2008,IPEC00 195418 PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")

Database2. RIV000067 RK-EC-3/

Letter from Marsha K. 12/22/2011 ML12335A624 CW-EC-1 Gamberoni, NRC, toJoseph Pollock, Entergy,"Indian Point NuclearGenerating Units 1 & 2 -NRC Inspection ReportNos. 05000003/2007010 and 05000247/2007010 (dated May 13, 2008)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit # ddreDocuments Access andExhibit DateManagement System("ADAMS")

Database3. RIV000068 RK-TC-2 Entergy, Groundwater 12/22/2011 ML12335A623 Investigation Executive

Summary, Indian PointEnergy Center, Buchanan, NY (January 2008)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit # ddreDocuments Access andExhibit DateManagement System("ADAMS")

Database4. RIVROO091 RK-EC-3/

Liquid Radioactive 12/22/2011 ML12335A608 CW-EC-1 Release Lessons LearnedTask Force Final Report,U.S. NRC (September 1,F006)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification xhibit # ddressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andxhibit ate Management System("ADAMS")

Database5. NRC000095 RK-EC-3/

Ltr. To NRC from Entergy 3/30/2012 ML12339A651 CW-EC-1 re: Remediation and LongTerm Monitoring of SiteProundwater PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Documents Access andManagement System("ADAMS")

Database6. ENT000300 RK-EC-3/

Entergy's Statement of 3/29/2012 ML12089A574 CW-EC- 1 Position on Consolidated Contention RK-TC-3/CW-C-1 (Spent Fuel PoolLeaks)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")

Database7. ENT000301 RK-EC-3/

Testimony of Entergy 3/29/2012 ML12338A621 CW-EC-1 Witness Donald M.Mayer, Alan B. Cox,Thomas C. Esselman, Matthew J. Barvenik, Carl.Paperiello, and F. OwenHoffman Regarding Consolidated Contention RK-EC-3/CW-EC-1(Spent Fuel Pool Leaks)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Documents Access andManagement System("ADAMS")

Database8. ENT000302 RK-EC-3/

Curriculum Vitae of 3/29/2012 ML12338A700 CW-EC-1 Donald M. Mayer PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit # ddreDocuments Access andExhibit DateManagement System("ADAMS")

Database9. ENT000303 RK-EC-3/

Curriculum Vitae of 3/29/2012 ML12338A667 CW-EC-1 Thomas C. Esselman PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ssdyDocuments Access andExhibit DateManagement System("ADAMS")

Database10. ENT000304 RK-EC-3/

Curriculum Vitae of 3/29/2012 L12338A679 CW-EC-1 Matthew J. Barvenik PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # xht DeDocuments Access andExhibit DateManagement System("ADAMS")

Database11. ENT000305 RK-EC-3/

Curriculum Vitae of Carl 3/29/2012 L12089A659 CW-EC- 1 J. Paperiello PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Documents Access andManagement System_("ADAMS")

Database12. ENT000306 RK-EC-3/

Curriculum Vitae of F. 3/29/2012 L12089A637 CW-EC-1 Owen Hoffman PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andManagement System("ADAMS")

Database13. ENT000313 RK-EC-3/

2010 Annual Radiological 3/29/2012 ML12339A710 CW-EC- 1 Environmental Operating Report (NL- 11-038) (May16, 2011)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhbit #ate dbDocuments Access andExhibit DateManagement System("ADAMS")

Database14. ENT000319 RK-EC-3/

2010 Annual Radioactive 3/29/2012 ML12089A670 CW-EC-1 Effluent Release Report,Rev. 1 (NL- 11-068) (June10, 2011)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO!

Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit # ddreDocuments Access andExhibit DateManagement System("ADAMS")

Database15. ENT000321 RK-EC-3/

Lawrence C. Skinner and 3/29/2012 ML12338A680 CW-EC-1 Timothy J. Sinnot,Measurement of Strontium (90Sr) and Otheradionuclides in EdibleTissues andBone/Carapace of Fish andBlue Crabs from theLower Hudson River(Nov. 2009)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")

Database16. ENT000332 RK-EC-3/

GZA GeoEnvironmental, 3/29/2012 ML12089A649 CW-EC-1 Inc., Changes inComputed Tritium PlumeTotal Activity Over Time -xponential Decay Curverending of Quarterly Data through Q3 2011 PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andManagement System("ADAMS")

Database17. ENT000333 RK-EC-3/

GZA GeoEnvironmental, 3/29/2012 ML12089A663 CW-EC- 1 Changes in ComputedStrontium Plume TotalActivity Over Time -xponential Decay CurveTrending of Quarterly Data through Q3 2011 PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andManagement System("ADAMS")

Database18. ENT000343 RK-EC-3/

Letter from Darrel J. 3/29/2012 ML12338A648 CW-EC-1 Roberts, NRC, to JosephPollock,

Entergy,

"[IPI,IP2 & IP 3] NRCInspection Report Nos.05000003/2009008; 05000247/2009008; and05000286/2009008" (Oct.19, 2009)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDOI Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # xhhibit DtDocuments Access andExhibit DateManagement System("ADAMS")

Database19. ENT000344 RK-EC-3/

Letter from D. C. Lew, 3/29/2012 ML12089A601 CW-EC-1 NRC, to J. E. Pollock,Entergy, "AnnualAssessment Letter -Indian Point NuclearGenerating Units 2 and 3(Reports)5000247/2010001

&)5000286/20100001)"

(Mar. 3, 2010)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO0 Evidentiary HearingSelected Hearing ExhibitsMandatory Log NumberContentions xhibit Identification for NRCExhibit # Addressed by Exhibit Name Submission Agency-wide Documents Exhibit Date Access and Management System ("ADAMS")

DatabaseENT000345 RK-EC-3/

NYSDEC Community Fact 3/29/2012 ML12089A608 CW-EC-1 Sheet (May 2008)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # Documents Access andManagement System("ADAMS")

Database21. ENT000360 RK-EC-3/

EPA, Basic Information 3/29/2012 ML12089A666 CW-EC-1 about Radionuclides inDrinking Water, web page PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # xhibitt D ddr bDocuments Access andExhibit DateManagement System("ADAMS")

Database22. ENT000371 RK-EC-3/CW-EC-Letter NL-08-023, from J. 3/29/2012 ML12089A679

Pollock, Entergy, to NRC,Results of Ground WaterContamination Investigation (Jan. 11,2008)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide ab # hbt Documents Access andManagement System("ADAMS")

Database23. NRCROO088 RK-EC-3/

NRC Staff Testimony of 9/21/2012 ML12340A747 CW-EC-1 Stephen P. Klementowicz and James D. NoggleConcerning Contention Riverkeeper EC-3/Clearwater EC-1 (SpentFuel Pool Leaks)

PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab# E Datbie ddres yDocuments Access andExhibit DateManagement System("ADAMS")

Database24. NRC00089 RK-EC-3/

Professional 9/21/2012 ML12339A646 CW-EC- 1 Qualifications, Stephen P.Klementowicz PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsMandatory LogContentions xhibit Number Identification Exhibit # Addressed by Exhibit Name Submission for NRC Agency-wide Tab # Exhibit D ddr bDocuments Access andExhibit DateManagement System("ADAMS")

Database25. NRCROO090 RK-EC-3/

James D. Noggle, 9/21/2012 ML12265A720 CW-EC- 1 Statement of Professional Qualifications PART ONE: Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 Evidentiary HearingSelected Hearing ExhibitsExhibit NameExhibitSubmission DateMandatory LogNumber Identification for NRC Agency-wide Documents Access andManagement System("ADAMS")

Database-EC-3/ GZA GeoEnvironmental, 10/2/2012 ML12276A480

-EC-1 Inc., Final IPEC Quarterly Long-Term Groundwater Monitoring Report,Quarters One ThroughFour 2011 (Sept. 26, 2012)

STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, DEC App. Nos. 3-5522-00011/00030 (IP2)and Entergy Nuclear Operations Inc.'s 3-5522-00105/00031 (IP3)Joint Application for CWA § 401 WaterQuality Certification PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC, ENTERGYNUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.ISSUE FOR ADJUDICATION NO. 3 -RADIOLOGICAL MATERIALS ENTERGY NUCLEAR INDIAN POINT 2,LLC, ENTERGY NUCLEAR INDIAN POINT3, LLC, AND ENTERGY NUCLEAROPERATIONS, INC.By its attorneys, John C. Englander Elise N. ZoliU. Gwyn WilliamsRobert Fitzgerald Goodwin Procter LLP53 State StreetBoston, Massachusetts 02109July 22, 2011 Tel.: 617.570.1000 Fax: 617.523.1231 PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.TABLE OF CONTENTSI. IN TRO DU CTIO N ........................................................................................................

III. SUMMARY OF EXPERT OPINIONS

..........................................................................

2III. Q U A LIFICA TION S .......................................................................................................

3IV. INDIAN POINT SITE HYDROGEOLOGY AND RADIONUCLIDE CHARACTERIZATION

.................................................................................................

4V. DESCRIPTION OF RELEASES TO GROUNDWATER

.............................................

7VI. DETAILS OF GZA'S SITE HYDROGEOLOGY STUDY ..............................................

11VII. CURRENT GROUNDWATER MONITORING PROGRAM ....................................

13VIII. RESULTS OF HYDROGEOLOGIC INVESTIGATION AND CONTINUED GROUNDWATER MONITORING AT INDIAN POINT ...........................................

16IX. INDEPENDENT ASSESSMENTS OF SFPS AT INDIAN POINT .............................

17X. SUMMARY AND CONCLUSIONS

..........................................................................

21-i-PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.o 1 i. INTRODUCTION 2 Q: Please state your name, current position, and business address.3 A: My name is Matthew J. Barvenik.

I am a Senior Principal with GZA GeoEnvironmental, 4 Inc., One Edgewater Drive, Norwood, MA 02062.5 Q: Are you offering this testimony on behalf of Entergy in support of its application for6 a Water Quality Certification (DEC App. Nos. 3-5522-00011/00030

("1P2") and 3-7 5522-00105/00031

("4P3"))

for Indian Point Units 2 and 3 (collectively the8 "Proceeding")?

9 A: Yes. I am offering my testimony with respect to Issue for Adjudication No. 3 concerning 10 "radiological materials."

In the Notice of Denial, DEC Staff states that "radiological 11 leaks have the potential to impair the best use of the water designated in 6 NYCRR@2 § 701.11."

I understand from counsel that § 701.11 contains the best usage classification 13 for the use of the Hudson River in the vicinity of Indian Point, and states that the "best14 usages of Class SB waters are primary and secondary contact recreation and fishing.15 These waters shall be suitable for fish, shellfish and wildlife propagation and survival."

16 Accordingly, I will offer expert testimony concerning the hydrogeology of the Indian17 Point site, i.e. how groundwater is distributed and moves in the soil and bedrock beneath18 the site, as well as the work GZA has done to create a network of monitoring installations 19 to allow Entergy to characterize the extent of existing radionuclides in the groundwater 20 beneath the site and ultimately to the Hudson River, and to detect and respond to21 potential future releases to groundwater from continued operation of the plant during the22 license renewal period. In support of my testimony I am submitting, inter alia, a report0 entitled "Hydrogeologic Site Investigation Report for the Indian Point Energy Center, PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 (January 2008) ("Site Investigation Report) (Exh. 33).2 II. SUMMARY OF EXPERT OPINIONS3 Q: What opinions are you offering today with respect to this Proceeding?

4 A: GZA has studied the hydrogeology of the Indian Point site and the groundwater flow5 mechanisms at the site, and has installed a broad network of groundwater monitoring 6 wells to test for radionuclides in order to monitor past releases and detect future releases7 of radionuclides to groundwater at the Indian Point site. As a result of this work, I have8 concluded the following:

9

  • Principally as a result of past releases of water from Indian Point Unit I ("IP I") and10 Unit 2 ("IP2") spent fuel pools ("SFPs"),

some of the groundwater beneath the site11 contains detectable levels of radionuclides, principally tritium (mostly resulting from0 12 the IP2 SFP), and strontium (resulting from the now-drained IPI SFP). This13 groundwater migrates to the Hudson River, resulting in low levels of tritium and14 strontium reaching the river, amounts orders of magnitude below the allowable 15 federal regulatory limits for radiological effluent releases.

These previously 16 identified releases from the IPI and IP2 SFPs have been stopped, as documented in17 the Site Investigation Report, which has and should continue to result in a decrease in18 radionuclide activity (also commonly referred to as concentration) in the groundwater 19 and reaching the river.20

  • Based on sampling and testing of Hudson River water in the vicinity of Indian Point21 and at control locations away from Indian Point, the low level migration of22 radionuclides to the Hudson River has had no discernible effect on the level of@0 3 radionuclides contained in Hudson River water.

PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.I W Entergy's network of groundwater monitoring wells is sufficient to allow Entergy to2 detect comparable potential future releases to groundwater at the site and respond3 rapidly and appropriately to such releases.

4 Q: Do you hold each of your opinions to a reasonable degree of scientific certainty?

5 A: Yes.6 III. QUALIFICATIONS 7 Q: Please describe your educational and professional qualifications, including relevant8 professional activities.

9 A: My professional and educational qualifications are summarized in the attached10 curriculum vitae (Exh. 54). In brief, I hold a BS degree in civil engineering from11 Northeastern University and a MS degree in geotechnical engineering from the0 2 Massachusetts Institute of Technology.

I have over 35 years of professional experience 13 in hydrogeology, civil, geotechnical and instrumentation engineering.

I am currently a14 senior principal and senior VP at GZA GeoEnvironmental, Inc., a company that provides15 a wide-range of geotechnical engineering, environmental consulting, and remediation 16 services, where I have overall responsibility for projects and contract signing authority.

I17 also hold the position of Senior Technical Consultant, GZA's highest technical position18 through which I provide technical input and quality control for the firm's district offices.

119 have also served on the board of directors for six years. I am a member of the American20 Nuclear Society ("ANS"),

where I served on the Working Group responsible for writing21 the recently completed ANS standard for Evaluation of Subsurface Radionuclide 22 Transport at Commercial Nuclear Power Plants, and I am currently a member of twonewly formed Working Groups responsible for drafting future standards.

PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 Q: Please describe the basis for your analysis of Indian Point's site hydrogeology and2 your opinions contained herein.3 A: In my capacity as the lead technical investigator for Entergy, I was responsible for4 directing the technical aspects of the hydrogeologic site characterization.

Based on my5 direct involvement with issues related to the Indian Point hydrogeologic site investigation 6 and the ongoing groundwater monitoring, I am very familiar with the Indian Point7 hydrogeologic setting and groundwater flow patterns, identified contaminant sources and8 transport, historical and ongoing groundwater monitoring, and remediation plans.9 Additionally, based on this experience, I am familiar with the history and status of Indian10 Point SFP releases, dose assessments, and associated NRC inspection activities, as well11 as other independent assessments of the SFP releases.

S0 2 IV. INDIAN POINT SITE HYDROGEOLOGY AND RADIONUCLIDE 13 CHARACTERIZATION 14 Q: What is hydrogeology?

15 A: Hydrogeology is the study of movement, distribution, and quality of ground water. In the16 context of Indian Point, the site hydrogeology work consisted in part of studying the17 subsurface of the site in order to understand how groundwater is distributed and how it18 moves across the site (we refer to that understanding as the "conceptual site model").

A19 fuller description of the methods used to gain an understanding of the distribution and20 movemfent of groundwater is contained below in Section IV. Our site hydrogeology work21 also consisted of the construction of a broad network of groundwater monitoring 22 installations (also generally referred to as "wells"),

which allow us to take samples of the23 groundwater beneath the site at dozens of locations on a periodic basis, in order to test the0 PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.I samples for the presence of plant-related radionuclides.

Presently, the monitoring 2 network installed by OZA contains 65 monitoring installations, including over 1503 sampling intervals, which allow us to sample groundwater at various depths from the4 groundwater surface to well below the top of bedrock.

A depiction of the current array of5 groundwater monitoring installations contained in Exhibit 42. In addition to these6 installations, included in the overall groundwater monitoring program are approximately 7 75 storm drains and 25 sumps throughout the Indian Point site, from which samples are8 periodically taken and tested by the Indian Point Chemistry Department.

This broad9 network of monitoring locations allows us to characterize the extent and concentration of10 radionuclides present in the groundwater from past releases, and to detect potential future11 releases of radionuclides to the groundwater at the site.* 12 Q: As a result of your site hydrogeology work, have you made any conclusions about13 how water is distributed and moves beneath the site?14 A: Yes. The conceptual site model demonstrates that groundwater flows into the Indian15 Point power block area from the North, East and South, and then flows to the Hudson16 River to the West; groundwater, and thus any radionuclides contained in the groundwater, 17 does not flow off the site from the power block area, except to the river.18 Q: As a result of your site hydrogeology work, have you identified the presence of19 plant-related radionuclides in the groundwater beneath the site?20 A: Yes. As a result of our groundwater monitoring

program, we have identified two distinct" 21 "plumes" of groundwater containing radionuclides, one containing principally tritium,22 and one containing principally strontium.

As a result of our site hydrogeology work, and@ 3 further investigation by Entergy, we have concluded that the "tritium plume" is primarily PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1S a result of past releases of water from the IP2 SFP, described more fully below. The2 concentration of tritium in the groundwater beneath the site, and therefore the overall3 tritium plume, has been generally decreasing over time. A depiction of the change in the4 tritium plume activity over the span of our groundwater monitoring program is contained 5 at Exhibit 41. Based on our site hydrogeology work and further investigation by Entergy,6 we have concluded that the "strontium plume" is primarily a result of a past release of7 water from IPI SFPs, described more fully below. While the plume from the IP1 SFPs8 consists primarily of strontium, groundwater testing has also identified tritium and9 sporadic observations of cesium-1 37, nickel-63, and cobalt-60 within the plume. See Site10 Investigation Report at 89 n.61. The IPI SFPs no longer contain any spent fuel and have11 since been drained and, therefore, are no longer a current or potential future source of*12 radionuclide releases to the environment.

13 Q: As a result of your site hydrogeology work, have you been able to conclude whether14 any radionuclides detected in groundwater have reached the Hudson River?15 A: Yes. Because the groundwater beneath the site moves from the site to the river, the16 groundwater containing both tritium and strontium (and potentially trace sporadic17 amounts of cesium-137, nickel-63, and cobalt-60) eventually discharges to the Hudson18 River. Our understanding of groundwater flow and distribution, coupled with our19 network of monitoring wells, has allowed us to estimate the amount of radionuclides that20 have reached the river on an annual basis as a result of the releases to groundwater.

21 These amounts are low, orders of magnitude below the allowable federal regulatory 22 limits for radiological effluent releases.

Below is a table containing estimates of the& annual levels of radionclides that have reached the river as a result of releases to PREFILED TESTIMONY OF MATTHEW 1. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 groundwater since our monitoring program began, as reported in Entergy's Annual2 Radiological Effluent Release Reports ("ARERRs"):

3 Total Tritium Released from Groundwater 4 2006 0.19 curies5 2007 0.064 curies* 6 2008 0.2 curies7 2009 0.07 curies8 2010 0.12 curies* 9 Total Other Radionuclides Released from Groundwater 10 2006 0.00057 curies@11 2007 0.00008 curies* 12 2008 0.00016 curies13 2009 0.00025 curies14 2010 0.000042 curies15 See Entergy's ARERR's, 2006-10, at Section H.16 These levels of radionuclides are orders of magnitude below the allowable federal17 regulatory limits for radiological effluent releases.

18 V. DESCRIPTION OF RELEASES TO GROUNDWATER 19 Q: Please describe the past release of water from the IP2 SFP to groundwater.

20 A: In August 2005, Entergy began excavating adjacent to the south wall of the IP2 SFP, in21 preparation for installation of a crane. While removing material along the south exterior22 wall of the SFP, Entergy discovered a hairline crack, roughly 1/64" in width and 7 feet in*3 length, at approximately the 65 foot elevation of the IP2 SFP south wall, that exhibited PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 moisture.

As excavation continued over the course of the next two weeks, Entergy2 discovered two additional hairline cracks, this time at around the 60 foot elevation.

3 Entergy, as a precautionary

measure, installed a temporary collection device over the4 cracks to collect any leaking liquid. A permanent collection box installation was5 completed in January 2006 and all collected water is piped to an adjacent building where6 it is collected for final disposition.

The discovery of this release is what prompted7 Entergy to contract with GZA to conduct its investigation, develop the site conceptual 8 model, and install the network of monitoring wells discussed above.9 In September 2007, in the course of its investigation of the source of the IP2 SFP10 release, Entergy drained the IP2 SFP canal used to transfer spent fuel from the reactor to11 the spent fuel pool in order to inspect the liner of the transfer canal. At that time, Entergy9 2 identified a pinhole leak in a single small weld imperfection, which, in December 2007,13 was repaired.

Also, the entire surface and all the welds of the transfer canal were14 inspected, but no further imperfections were identified.

The accessible surfaces of the15 adjoining fuel pool were also inspected and no additional imperfections were identified.

16 As of December 2007, Entergy had repaired all then-identified imperfections in the IP217 SFP.18 Q: Does Entergy's monitoring program establish that these repairs were successful?

19 A: Yes. As stated above, from both qualitative and quantitative perspectives, the overall20 quarterly monitoring data indicates that tritium activity in the IP2 SFP plume has been21 generally decreasing and the plume undergoing long-term, overall reductions in activity.

22 Q: Please describe past release of water from SFP1 to groundwater.

  • A: IPI ceased commercial operation on October 31, 1974. In 1992, the previous owner of PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 IPI identified a release of water from the IP1 SFP at a net leak rate of 25 gallons per day2 (i.e., 10 drops per second).

The water released to the groundwater from IP1 SFP3 contained plant-related radionuclides, principally strontium.

See Site Investigation 4 Report at 89 n.61. Both NRC and NYSDEC were aware of the release, and the prior5 owner's management of the release.

The investigation performed at that time concluded 6 the releases were well within the 10 C.F.R. Part 50 dose guidelines.

7 The release of water from the IP1 SFPs continued until late 2008, when all the8 fuel rods were removed from the IPI SFPs and the pool water was subsequently drained.9 See E-mail notification from Donald Mayer, Director, IPEC Unit 1, Entergy, to John10 White, Branch Chief, Radiation Protection, NRC Region 1, "

Subject:

Indian Point 1"11 (Nov. 5, 2008) (Exh. 47). As such, the IPI SFPs are no longer an active source of@12 radionuclides to the subsurface.

While the defueling process caused an initial increase in13 the release rate from IPI SFP, and therefore an increase in the measured levels of14 strontium in the groundwater beneath the site, those levels have been decreasing as that15 water flushes through the subsurface to the river, and have generally reached pre-16 defueling levels.17 Q: Please provide an overview of the history of any SFP conditions relevant to releases18 of water at IP3.19 A: No releases of water from the IP3 SFP to groundwater have been identified.

The absence20 of IP3 SFP releases to groundwater is attributed to the design upgrades incorporated in21 the more recently constructed IP3-SFP, including the stainless steel liner (consistent with22 IP2 but not included in the IP 1 design) and the secondary leak detection drain system not@3 included in the IP2 design. The IP3 SFP contains a tell-tale leak collection system, which PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@e i is regularly inspected to verify it is in good working condition.

Following the discovery 2 of IP2 SFP releases, additional monitoring wells were put in place to monitor the3 groundwater beneath IP3 as a proactive and precautionary measure.4 Q: Has the groundwater monitoring program allowed you to indentify and/or5 characterize any additional releases to groundwater?

6 Yes. As stated above, Entergy's broad array of monitoring installations, in addition to7 characterizing the extent and movement of existing radionuclides in groundwater, is also8 designed to assist Entergy in identifying possible future releases of radionuclides to the9 groundwater beneath the site, and to assist Entergy in identifying and remediating the10 source of such releases.

This is part of Entergy's Long Term Monitoring Program11 ("LTMP"),

which is described more fully below. For example, since the LTMP began,0 2 we have identified and/or characterized additional releases to groundwater beneath the13 site:14

  • In the first quarter of 2009, a leakage of water occurred in a distillation tank valve15 located within the IP I chemical systems building.

The result of this leakage was the16 identification of a brief increase in tritium levels in a monitoring location in the area17 of the chemical systems building.

Since the leakage was repaired, levels in that18 monitoring well have gone down to pre-leak levels. There is no indication that this19 brief leakage caused any material increase in the amount of tritium reaching the river.20

  • In the fourth quarter of 2009, a leakage of water occurred during a temporary 21 operation to filter the water in the Refueling Water Storage Tank. This leakage22 resulted in a temporary increase in tritium levels in various monitoring wells. Theleak was immediately fixed, and tritium levels have since gone down to pre-leak PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.I levels. Entergy has subsequently determined that the radionuclide dose consequence 2 as a result of this leak was immaterial.

3

  • Beginning in the third quarter of 2010, we noticed increased tritium levels in a4 monitoring location adjacent to the IP2 SFP, which generally coincided with an5 increase in the rate of water flowing into the leak-collection box on the outside of the6 IP2 SFP. As an initial finding of the on-going investigation, the increased flow7 appears to be attributable to the periodic raising of the SFP water level, resulting in a8 leak path from light boxes near the top of the SFP, allowing water to get behind the9 stainless steel liner plates on the face of the SFP. This leak path has had a temporary 10 repair applied, through sealing of the light boxes. Those light boxes are planned to beI 1 removed and permanently sealed in the near future. There is no indication that this@12 leakage has resulted in any material increase in the tritium plume but additional 13 evaluations
continue, so as to fully understand this issue.14 While the concentrations of tritium identified above have resulted in no material increase15 in the offsite dose analyses regularly performed by Entergy, all such instances are16 enveloped by the reporting and analysis requirements of the NRC's effluent regulations.

17 As such, they are included in the annual environmental and effluent release reporting 18 documents provided to the NRC.19 In my professional

opinion, Entergy's ability to identify, characterize, and20 respond appropriately to these sporadic
releases, which occur at any large industrial 21 facility, demonstrates the efficacy of the LTMP.22 VI. DETAILS OF GZA'S SITE HYDROGEOLOGY STUDYQ: Please provide an overview of the purpose and objectives of Indian Point's PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 hydrogeologic groundwater investigation.

2 A: As previously stated, following the discovery of the IP2 SFP hairline cracks in September 3 2005, Entergy contracted with GZA to conduct a comprehensive groundwater 4 investigation.

GZA executed its investigation by utilizing a three-phased approach5 between September 2005 and September 2007. Phase I investigations began in6 September 2005 and focused on identifying groundwater flow pathways from the IP27 SFP, and evaluating how radionuclides move through the environment beneath the site.8 During this phase, groundwater sampling focused on tritium.

A large portion of the work9 in Phase I included development of the initial Conceptual Site Model ("CSM") to10 understand the groundwater flow and radionuclide transport at Indian Point. Among11 other things, activities during Phase I included the installation of four stilling wells (i.e.,@12 wells constructed of slotted pipe, and placed in surface water bodies to house pressure13 transducers for monitoring surface water elevation fluctuations),

borehole testing to14 locate potential fractures in the bedrock that could conduct groundwater flow, and15 extensive sampling and analysis of groundwater from a large number of monitoring 16 wells. See Investigation Report, Section 2.1 at 6-7; Section 4.2 at 17.17 Phase 11 of the investigation commenced in January 2006. The focus of Phase 1118 work was to confirm the initial Phase I findings, better estimate the concentration of19 radionuclides in groundwater at Indian Point, and augment the network of wells across20 the site to allow identification of potential releases to groundwater on a long-term basis.21 In support of these objectives, GZA drilled additional boreholes to locate potential 22 fractures in the bedrock that could conduct groundwater flow. As with the prior phase,3 Phase II involved groundwater testing; while initially focused on tritium, in 2006 the PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@ 1 testing was expanded to encompass all radionuclides typically associated with nuclear2 power generation (although tritium and strontium remained the principal constituents of3 interest).

See Investigation Report, Section 2.2 at 7-8.4 In June 2006, the Phase III investigations began. Phase III of the investigation 5 focused on further defining the extent of strontium detected during Phase II, and6 augmenting the characterization of bedrock aquifer properties to allow evaluation of7 potential remedial options.

Phase III also involved the installation of additional wells to8 further define the horizontal and vertical extent of contamination.

During Phase III, GZA9 conducted various pumping and tracer tests to better assess the hydraulic properties of the10 bedrock and to augment its understanding of contaminant migration and transport 11 mechanisms.

See Investigation Report, Section 2.3 at 8..012 VII. CURRENT GROUNDWATER MONITORING PROGRAM13 Q: Will Entergy continue to monitor groundwater to detect possible radionuclide 14 releases at Indian Point?15 Yes. To monitor groundwater for future releases, Entergy has established a long-term 16 groundwater monitoring program ("LTMP").

There are essentially four objectives to the17 LTMP:18

  • Monitor groundwater flow rate and radionuclide concentrations 19 to both detect and characterize current and potential future20 releases of radionuclides from groundwater to the Hudson21 River;22
  • Monitor groundwater proximate to Indian Point systems,& structures, and components that may result in releases of PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@0 1 radionuclides to groundwater at Indian Point;2
  • Monitor groundwater along the property boundary and off-site3 to confirm that groundwater containing radionuclides is not4 migrating off of the property to locations other than the river;5 and6
  • Monitor groundwater plumes identified onsite to demonstrate 7 overall reductions in total activity over time.8 The LTMP is designed to detect potential leaks from systems, structures, and components 9 that may result in releases of radionuclides to the groundwater at Indian Point. In order10 to monitor SSCs, a broad network of on-site monitoring installations are used, in additionI I to the numerous storm drains and sumps throughout the site, as described above. For.0 12 these monitoring wells, Entergy established investigation levels consisting of preset13 quantitative radionuclide concentrations above which further action would be undertaken.

14 Those levels are well below applicable NRC limits, and therefore allow for timely15 detection of potential new releases should they occur. This process is consistent with16 NRC regulatory reporting guidance which recognizes that nuclear power plant operations 17 may have abnormal operational occurrences that take place and result in releases that18 would be expected to be small fractions of regulatory limits. The LTMP positions 19 Entergy to investigate these occurrences should they occur and have an impact on20 groundwater beneath the site.21 Q: Please describe briefly what GZA has done to develop and execute the LTMP.22 A: Under the LTMP, GZA continues to conduct groundwater monitoring and samplingW activities that are reported quarterly in the "Quarterly Long-Term Groundwater PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@1 Monitoring Report."

See, e.g., GZA, Final IPEC Quarterly Long-Term Groundwater 2 Monitoring Report, Quarter Two 2010 (Report No. 10) (Feb. 15, 2011) (Exh. 40); GZA,3 Final IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter One 20094 (Report No. 5) (June 22, 2010) (Exh. 38). The groundwater monitoring activities are5 conducted in support of Indian Point's long-term monitoring efforts related to6 radionuclide releases to groundwater.

The overall foundation for the development and7 execution of this LTMP is based on the CSM, as described in the Site Investigation 8 Report. Generally, the scope of work involved five separate areas:9 First, GZA installed dedicated sampling equipment in the majority of monitoring 10 installations designated for sampling as part of this program.

The use of dedicated 11 sampling equipment limits the possibility of cross-contamination between monitoring 2 installations or individual multi-level sampling intervals within a single installation.

13 Second, GZA maintains transducers and dataloggers, as part of the monitoring 14 instrumentation located across the site, which record groundwater elevation and15 temperature measurements at regular time intervals.

These data are then downloaded on16 a quarterly basis.17 Third, GZA collects groundwater samples for radionuclide analysis from the18 scheduled sampling intervals within select monitoring installations.

If unexpected 19 quarterly results are encountered, mid-quarter and confirmatory samples may also be20 collected.

When requested, split groundwater samples from select locations are provided21 to NRC and NYSDEC.22 Fourth, GZA collects water samples from drain lines in several manholes onsite to& characterize discharge from foundation drains around and below the IP2 and IP3 PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.S1 Containment Structures.

These drains are part of the early leak detection monitoring 2 network.3 Fifth, GZA performs general wellhead maintenance tasks, such as housekeeping 4 of well vaults and roadboxes, and replacement of dedicated sampling equipment, tubing5 and transducers, as required.

6 VIII. RESULTS OF HYDROGEOLOGIC INVESTIGATION AND CONTINUED 7 GROUNDWATER MONITORING AT INDIAN POINT8 Q: Do you believe that Entergy's monitoring system provides reliable assurances that9 future releases to groundwater will be detected?

10 A: Yes. A primary purpose of the groundwater monitoring

program, including GZA'sII installations of a series of additional wells, was to do exactly that. It is my conclusion 12 that the current groundwater monitoring
program, including the system of ground water13 monitoring installations dispersed throughout the site, should detect future releases of14 radionuclides to the groundwater from the operation of Indian Point comparable to those15 described above, which are far below allowable federal regulatory limits. Entergy will16 therefore be able to take timely and appropriate corrective action upon the detection of17 any such releases.

18 Q: Is the extent and level of groundwater contamination from the release of water from19 the SFPs decreasing?

20 Yes. It is our conclusion that the tritium and strontium plumes due to the historic21 releases from the IP I and IP2 SFPs have reached their maximum sizes and are22 decreasing.

These IP1 and IP2 plumes, however, are decreasing at varied rates, and with23 periodic fluctuations, as expected.

See Site Investigation Report at 97-101. The IP2 PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.S1I tritium plume is generally decreasing faster than the IP I strontium plume given that2 tritium does not partition to geologic and anthropogenic solid surfaces, while strontium 3 does. Data collected during and since the site investigation indicate that the tritium4 concentrations in the IP2 plume have decreased.

Similarly, the IPI strontium plume has5 decreased since 2009 and by removing all spent fuel and water from the spent fuel pools6 the source has been eliminated.

Our continued quarterly monitoring program has7 confirmed these results.

See, e.g., GZA Q2 2010 Quarterly Monitoring Report at 3-13 to8 3-22.9 IX. INDEPENDENT ASSESSMENTS OF SFPS AT INDIAN POINT10 Q: Were any independent organizations involved with Entergy's assessments of theI 1 impacts of the SFP releases?

.12 A: Yes. Throughout the two-year hydrogeologic site investigation study Entergy provided13 full and open access, including holding regular meetings attended by the NRC, USGS,14 NYSDEC, and the NY Public Service Commission.

For example, early in the15 investigation

process, NYSDEC requested that the NYSDOH assess the presence of16 drinking water supply wells in the vicinity of Indian Point.17 Q: Did NYSDEC conduct its own independent investigation?

18 A: Yes. NYSDEC (with support from NYSDOH) actively monitored Entergy's 19 hydrological investigation, collected split samples of onsite and offsite monitoring wells,20 and made recommendations on the work being performed.

Importantly, NYSDEC21 performed its own independent assessment of potential public health impacts.

See22 NYSDEC Community Fact Sheet (2007) (Exh. 46).* 3 Q: What did NYSDEC conclude during its own independent assessment?

PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1 A: In brief, NYSDEC's conclusions were consistent with the findings made in the Site2 Investigation Report. As to any strontium contamination, NYSDEC concluded that3 removal of the spent fuel and water from the IPI SFP will (and did) halt the active source4 of contamination.

While public exposure can occur through consumption of fish from the5 Hudson River, NYSDEC determined strontium levels in fish near the site are no higher6 than those collected from other statewide locations.

Here, NYSDEC corroborated 7 Entergy's finding that calculated doses to the public through fish consumption (0.000278 mrem whole body and 0.00099 mrem organ dose) are less than 1% of the allowable NRC9 dose limits. See NYSDEC Community Fact Sheet (2007) (Exh. 46). NYSDEC's10 findings support the conclusion that there is no effect on fish from the radionuclide II releases to groundwater, and no public health concern associated with eating fish from0 12 the Hudson River. Finally, NYSDEC concluded that any radionuclides reaching the13 Hudson River as a result of the radionuclide releases to groundwater did not violate state14 and federal drinking water levels.15 In addition, in 2007, NYSDEC conducted an enhanced, independent radiological 16 surveillance of several aquatic species in the lower Hudson River. The results from this17 assessment were published in 2009. See Lawrence C. Skinner & Timothy J. Sinnot,18 Measurement of Strontium (90Sr) and Other Radionuclides in Edible Tissues and19 Bone/Carapace of Fish and Crabs from the Lower Hudson River, New York (Nov. 2009)20 (Exh. 39). NYSDEC concluded that there were no significant differences in the21 concentrations of strontium in fish and shellfish samples near the Indian Point site and22 those sampled upriver at reference locations (which included an additional reference

  • 3 ,location in the river, 50 miles north of Indian Point). Id. at 8. In addition, NYSDEC PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.@0 1 concluded that the levels of all radionuclides (including strontium) in fish and shellfish at2 all of the sampling locations were two to five orders of magnitude lower than established 3 criteria for protection of freshwater ecosystems.

Id.4 Q: Please provide a brief background of NRC inspection activities at Indian Point since5 the September 2005 discovery of a crack in the IP2 SFP wall.6 A: After Entergy informed the NRC of the identified hairline cracks in the IP2 SFP wall,7 which led to the discovery of low levels of radioactive tritium contamination in the8 groundwater, NRC initiated a special inspection on September 20, 2005. Although9 Entergy did not exceed any specific thresholds in the NRC Reactor Oversight Process10 ("ROP") Action Matrix mandating additional regulatory oversight, NRC Staff11 nonetheless increased its oversight relative to issues associated with the IP2 SFP. See0 2 Request for Deviation from the Reactor Oversight Process Action Matrix to Provide13 Increased NRC Oversight of Specific Issues at Indian Point Energy Center (Oct. 28,14 2005), available at ADAMS Accession No. ML053010404 (Exh. 31). The purpose of15 the inspection was to examine Entergy's performance and determine if the contaminated 16 groundwater

affected, or could affect, public health and safety. Id.17 NRC issued a special inspection report in March 2006 that assessed Entergy's 18 performance and plans for more extensive site characterization, and reported that the19 groundwater contamination did not and was not likely to adversely affect public health20 and safety. See NRC Special Inspection Report No. 05000247/2005011 (Mar. 16, 2006)21 (Exh. 32). In that report, and subsequent public meetings, the NRC indicated that a final22 conclusion would be reached after Entergy completed its groundwater characterization

& initiative.

While groundwater characterization was ongoing, NRC continued frequent PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.1S inspections and implemented a monitoring regime for Entergy's onsite groundwater 2 monitoring activities.

3 Subsequently, the NRC continued to closely monitor Entergy's groundwater 4 characterization

efforts, performed independent inspections and testing, and5 independently evaluated radiological and hydrological conditions affecting groundwater 6 onsite. Additionally, the NRC independently verified groundwater radionuclide levels by7 conducting split monitoring well sampling with Entergy and NYSDEC.8 After receiving the results from the hydrogeologic site characterization 9 investigation contained in the Site Investigation Report in January 2008, including 10 Entergy's plan for remediation and long-term monitoring of onsite groundwater systems,11 the NRC conducted its own, detailed review and inspection.

The results of the NRC@12 Staff s May 13, 2008 inspection report confirmed the conclusionsin the Site13 Investigation Report. See NRC Inspection Report Nos. 05000003/2007010 and14 05000247/2007010, available at ADAMS Accession No. ML081340425 (May 13, 2008)15 ("May 13, 2008 Inspection Report")

(Exh. 34). In the May 13, 2008 inspection report,16 the NRC made several important

findings, including:

(1) Entergy had properly identified 17 the source of groundwater releases as resulting from the IP I and IP2 SFPs; (2) no18 releases were observed or detected from IP3; (3) Entergy's hydrogeologic site19 characterization studies provide sufficiently detailed field observations, monitoring, and20 test data that supported the development and confirmation of a reasonable CSM; (4) the21 CSM provides a reasonable basis to support the finding that liquid effluent releases from22 the SFPs migrate west towards the Hudson River and do not otherwise migrate offsite;(5) there are no drinking water sources that can be impacted by the contaminated PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.I groundwater conditions; (6) the annual calculated exposure to the maximum exposed2 hypothetical individual relative to the liquid effluent aquatic food exposure pathway is3 currently, and is expected to remain, less than 0.1 % of the ALARA guidelines in4 Appendix I of 10 C.F.R. Part 50, which are considered to be negligible with respect to5 public health, safety, and the environment; (7) there is no evidence of any significant leak6 or loss of radioactive water inventory from the site that was discernable in the offsite7 environment; and (8) Entergy's plans for long-term monitoring of residual groundwater 8 contamination were reasonable.

Id at vi to viii.9 In reaching these conclusions regarding Entergy's hydrogeologic site10 characterization, the NRC relied on an independent analysis of groundwater transport 11 through fractured bedrock utilizing geophysical well logging data that was conducted by*12 the U.S. Geological Survey ("USGS").

As the NRC pointed out in its inspection report,13 the USGS assessment corroborated the groundwater transport characteristics that were14 measured by GZA. Id. at vii. The NRC also worked closely with NYSDEC by sharing15 data and assessment information, coordinating independent split sampling of various16 sample media, and providing a combined oversight of licensee performance.

Id. at 1.17 X. SUMMARY AND CONCLUSIONS 18 Q: Please summarize the results of your work at Indian Point since 2005, at it relates to19 the past and potential future release of radionuclides to the Hudson River.20 A: GZA has used state of the practice methods to investigate the site hydrogeology and21 develop the CSM to understand how groundwater flows beneath the site. As part of that,22 GZA has installed a broad groundwater monitoring

network, consisting of 65 monitoring
  • 3 installations, including over 150 sampling intervals, in order to characterize the extent of PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.S1 past radionuclide releases to groundwater, and to proactively monitor for potential future2 releases of radionuclides to groundwater from the operation of Indian Point. As a result,3 GZA has concluded that low levels of radionuclides, principally tritium and strontium, 4 have migrated to the river as a result of past releases to groundwater, in amounts that are5 orders of magnitude below allowable federal regulatory limits for radiological effluent6 releases.
Finally, GZA has concluded that the network of monitoring wells is sufficient 7 to allow Entergy to identify future potential comparable releases of radionuclides to8 groundwater, and respond quickly and appropriately to such potential releases.

9 Q: As a result of your work in this matter, have you formed an opinion as to whether10 the releases

.of radionuclides to the Hudson River from groundwater have impaired, 11 or have the potential to impair, the quality of the water in the Hudson River for its@ 12 best uses?13 A: I have. As stated above, the levels of radionuclides released to the Hudson River from14 groundwater are low, orders of magnitude below the allowable federal regulatory limits15 for radiological effluent releases.

Furthermore, the levels of radionuclides in the Hudson16 River water in the vicinity of Indian Point are indistinguishable from the background 17 levels of radionuclides in Hudson River water taken from control locations far removed18 from Indian Point, demonstrating that the releases do not have an effect on the19 radionuclide levels of the Hudson River. As such, there is no scientific basis to conclude20 that these releases will impair the quality of the Hudson River for its best uses.21 Q: As a result of your work in this matter, have you formed an opinion as to whether22 the releases of radionuclides to the Hudson River from groundwater have impaired,

@ 3 or have the potential to impair, the suitability of the Hudson River for fish, shellfish, PREFILED TESTIMONY OF MATTHEW J. BARVENIKIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.0i and wildlife propagation and survival?

2 A: I have. As stated above, the levels of radionuclides released to the Hudson River from3 groundwater are extremely low, orders of magnitude below the allowable federal4 regulatory limits for radiological effluent releases.

As such, there is no scientific basis to5 conclude that these releases have impaired the suitability of the Hudson River for fish,6 shellfish, and wildlife propagation and survival.

7 Q: As a result of your work in this matter, have you formed an opinion as to whether8 there are reasonable assurances that no potential future releases of radionuclides to9 groundwater at Indian Point will result in releases to the river that impair the10 quality of the Hudson River water for its best uses?11 A: Yes, as stated above, I believe that the network of monitoring wells is sufficient to allow@0 12 Entergy to identify comparable potential future releases of radionuclides to groundwater 13 and to take action to investigate and respond appropriately to any such releases.

As a14 result, I believe that there are reasonable assurances that no future comparable release of15 radionuclides to groundwater at Indian Point, should it occur, will result in releases to the16 river that will impair the quality of the Hudson River for its best uses.

STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, DEC App. Nos. 3-5522-00011/00030 (IP2)and Entergy Nuclear Operations Inc.'s 3-5522-00105/00031 (IP3)Joint Application for CWA § 401 WaterQuality Certification PREFILED TESTIMONY OF F. OWEN HOFFMANIN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC, ENTERGYNUCLEAR INDIAN POINT 3, LLC AND ENTERGY NUCLEAR OPERATIONS, INC.ISSUE FOR ADJUDICATION NO. 3 -RADIOLOGICAL MATERIALS ENTERGY NUCLEAR INDIAN POINT 2,LLC AND ENTERGY NUCLEAR INDIANPOINT 3, LLC, AND ENTERGY NUCLEAROPERATIONS, INC.By its attorneys,

,AllJohn C. Englander Elise N. ZoliU. Gwyn WilliamsRobert Fitzgerald Goodwin Procter LLP53 State StreetBoston, Massachusetts 02109July 22, 2011 Tel.: 617.570.1000 Fax: 617.523.1231 PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.TABLE OF CONTENTSI. IN TR O DU CTIO N .........................................................................................................

III. SUMMARY OF EXPERT OPINIONS

...............................................................................

IIII. Q UA LIFICA TION S .......................................................................................................

3IV. OVERVIEW AND METHODOLOGIES

......................................................................

3V. SUMMARY AND CONCLUSIONS

...........................................................................

18-i-PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 I. INTRODUCTION 2 Q: Please state your name, current position, and business address.3 A: My name is F. Owen Hoffman.

I am president and director of SENES Oak Ridge, Inc.4 Center for Risk Analysis, an organization that specializes in human health and ecological 5 risk estimation, risk assessment, and risk communication.

SENES Oak Ridge is located6 at 102 Donner Drive, Oak Ridge, TN, 37830.7 Q: Are you offering this testimony on behalf of Entergy in support of its application for8 a Water Quality Certification (DEC App. Nos. 3-5522-00011/00030

("IP2") and 3-9 5522-00105/00031

("1P3"))

for Indian Point Units 2 and 3 (collectively the10 "Proceeding")?

11 A: Yes. I am offering my testimony with respect to Issue for Adjudication No. 3 concerning 12 "radiological materials".

I will offer expert testimony concerning the lack of any material13 effects on human beings or aquatic biota that result from the low-level releases of14 radionuclides from Indian Point that have migrated through groundwater to the Hudson15 River.16 II. SUMMARY OF EXPERT OPINIONS17 Q: What is the purpose of your testimony?

18 A: In the Notice of Denial, DEC Staff states that "radiological leaks have the potential to19 impair the best use of the water designated in 6 NYCRR § 701.11 ." I understand from20 counsel that § 701.11 contains the best usage classification for the use of the Hudson21 River in the vicinity of Indian Point, and states that the "best usages of Class SB waters22 are primary and secondary contact recreation and fishing.

These waters shall be suitable-I-PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I for fish, shellfish and wildlife propagation and survival."

Accordingly, the purpose of my2 testimony is to analyze the calculated levels of radionuclides that have migrated to the3 Hudson River as a result of past releases to groundwater at Indian Point, in order to4 determine whether such releases have impaired, or have the potential to impair, the5 Hudson River for the best usages set forth in 6 NYCRR § 701.11.6 Q: Please briefly describe the analysis you performed in preparing your testimony?

7 A: In preparing my testimony, I: (i) reviewed the estimates of radionuclides (principally 8 tritium and strontium) that migrated to the Hudson River as a result of past releases to9 groundwater from Indian Point; (ii) reviewed Entergy's estimated radiological dose10 calculations to humans as a result of such releases; (iii) performed my own independent 9 11 estimated dose calculations to aquatic biota as a result of such releases; and (iv) based on12 my knowledge and expertise in the field, determined whether such releases have had, or13 could have, any effect on the best usages of the Hudson River set forth in 6 NYCRR14 § 701.11.15 Q: Based on your analysis, do you believe that radionuclide releases to groundwater at16 Indian Point have impaired, or have the potential to impair, the best usages of17 Hudson River?18 A: No. Based on my analysis, the calculated levels of radiological materials reaching the19 Hudson River as a result of releases to the groundwater at Indian Point are extremely low.20 Moreover, based on my review of monitoring results of radionuclide levels in Hudson21 River samples taken both in the vicinity of Indian Point and at control locations away22 from Indian Point, this low-level migration of radionuclides from groundwater at Indian PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 Point to the Hudson River has had no discernible effect on the level of radionuclides 2 present in the Hudson River from sources unrelated to the operation of Indian Point. As3 such, there is no credible scientific basis to conclude that releases of radionuclides to the4 Hudson River from past releases to groundwater at Indian Point have impaired or will5 impair the best usage of the Hudson River.6 Q: Do you hold each of your opinions to a reasonable degree of scientific certainty?

7 A: Yes.8 III. QUALIFICATIONS 9 Q: Please describe your educational and professional qualifications, including relevant10 professional activities.

  • 11 A: My professional and educational qualifications are summarized in the attached12 curriculum vitae (Exh. 53). In brief, I hold a Bachelor's degree in Biological 13 Conservation from the San Jose State College, a Master's degree in Fisheries Limnology 14 from Oregon State University, and a Ph.D in Ecology from the University of Tennessee.

15 I have more than 39 years of experience in issues related to the evaluation of human and16 ecological risk from the release and transport of radionuclides and chemicals in terrestrial 17 and aquatic systems.

I am a Distinguished Emeritus Member of the National Council on18 Radiation Protection

& Measurements

("NCRP")

and a corresponding member of the19 International Commission on Radiological Protection.

20 IV. OVERVIEW AND METHODOLOGIES 21 Q: Please describe the exposure to radiation that a typical individual receives on an22 annual basis.

PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 A: According to a recent report of the NCRP, the average annual radiation dose per person2 in the United States is 620 millirem

("mrem").

See NRCP Report No. 160 (Exh. 37).3 Approximately half of this radiation exposure comes from natural background sources:4 cosmic radiation from space, naturally occurring radioactive minerals in the ground and5 in your body, and from the radioactive gases radon and thoron, which are created when6 other naturally occurring elements undergo radioactive decay. Approximately 48% of7 that dose comes from medical procedures and treatments.

See8 http://www.epa.pov/radiation/understand/perspective.html#average.

9 Q: What is tritium?10 A: Tritium is a naturally occurring radioactive form of hydrogen that is produced naturally

@ 11 in the atmosphere when cosmic rays collide with air molecules.

As a result, tritium is12 found in very small or trace amounts in water throughout the world. Tritum has a half13 life of 12.3 years. Tritium is also a byproduct of the production of electricity at nuclear14 power plants, such as Indian Point. Tritium emits a weak form of radiation, a low-energy 15 beta particle similar to an electron.

The tritium radiation does not travel very far in air16 and cannot penetrate the skin. See NRC Backgrounder on Tritium, available at17 http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/tritium-radiation-fs.html.

18 Because tritium emits a very weak form of radiation and leaves the body relatively 19 quickly, it is one of the least dangerous radionuclides.

See NRC: Frequently Asked20 Questions About Liquid Radioactive

Releases, available at21 http://www.nrc.gov/reactors/operating/operating/ops-experience/tritium/faqs.html.

PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I Like normal hydrogen, tritium can bond with oxygen to form water. The resulting 2 water is called "tritiated water", which is chemically identical to normal water and the3 tritium cannot be filtered out of the water.4 Q: Are people routinely exposed to tritium?5 A: Yes. Everyone is exposed to small amounts of tritium every day, because it occurs in the6 environment and the foods we eat due to natural causes and prior weapons testing in the7 atmosphere primarily during the 1950s and early 1960s.8 Q: What is strontium?

9 A: Strontium is a soft, silvery metallic element found in rocks, soil, dust, coal and oil.10 Strontium-90 is a radioactive form of strontium.

Strontium-90 is formed in nuclearS11 reactors or during the explosion of nuclear weapons.

Strontium-90'has a half live of12 approximately 29 years.-13 Q: Are people regularly exposed to strontium?

14 A: Yes. Everyone is exposed to small amounts of strontium-90, since it is widely dispersed 15 in the environment and the food chain. The vast majority of strontium-90 in the16 environment and food chain (approximately 99%) is a result of weapons testing that17 occurred worldwide from approximately 1963 to 1980. See NRC: Frequently Asked18 Questions About Liquid Radioactive

Releases, available at19 Most20 of the remaining strontium-90 is attributable to the Chernobyl nuclear power plant21 accident.

Id. Strontium-90 from releases from nuclear power plants is a small fraction of22 the strontium-90 in the environment.

Id.

PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I A. Liquid Effluent Radiolo-ical Dose Limits and Environmental Monitoring 2 Requirements 3 Q: Please provide an overview of the regulations that establish dose limits for members4 of the public for nuclear power plants.5 A: NRC regulations in 10 C.F.R. Part 20, "Standards for Protection Against Radiation,"

are6 applicable to all nuclear power plants, including Indian Point, and establish several7 relevant dose limitations.

The regulations found in Part 20 establish standards for8 protection against ionizing radiation resulting from activities of NRC licensees and are9 intended to control, among other things, the possession and use of licensed materials such10 that the total dose to an individual member of the public does not exceed radiation I I protection standards.

Pursuant to 10 C.F.R. § 20.1301(a),

licensees must conduct12 operations so that the maximum allowable concentrations of radionuclides in air and13 water above background at the boundary of unrestricted areas (i.e., areas for which access14 is not limited or controlled by a licensee) does not exceed an annual total effective dose15 equivalent of 100 mrem in a year to individual members of the public.16 Furthermore, 10 C.F.R. § 20.1301(e) incorporates by reference the U.S.17 Environmental Protection Agency's

("EPA") environmental radiation protection standard18 found at 40 C.F.R. § 190.10. Section 190.10 imposes the following dose limits to any19 member of the public resulting from planned discharges of radioactive materials to the20 general environment from uranium fuel cycle operations (which includes nuclear power21 plant operations):

25 mrem/yr to the whole body; 75 mrem/yr to the thyroid; and 2522 mremL/yr to any other organ.

PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I In addition, to demonstrate compliance with dose limits for members of the2 public, 10 C.F.R. § 20.1302 requires that licensees conduct surveys of radiation levels in3 both unrestricted and controlled areas, and of radioactive materials in effluents released4 to both unrestricted and controlled areas.5 In addition to the Part 20 and EPA limits, 10 C.F.R. Part 50 places additional 6 restrictions on public dose from the operations of nuclear power plants such as IP2 and7 IP3. Specifically, 10 C.F.R. § 50.36a imposes conditions on operating licensees in the8 form of technical specifications on effluents from nuclear power reactors.

These9 specifications are intended to keep releases of radioactive materials to unrestricted areas10 during normal operations, including expected operational occurrences, "as low as@ 11 reasonably achievable"

("ALARA").

Appendix I to 10 C.F.R. Part 50, "Numerical 12 Guides for Design Objectives and Limiting Conditions for Operation to Meet the13 Criterion

'As Low as is Reasonably Achievable' for Radioactive Material in Light-14 Water-Cooled Nuclear Power Reactor Effluents,"

provides numerical guidance on dose-15 design objectives and limiting conditions for operation of light-water reactor effluents to16 meet the ALARA requirement.

Appendix I also establishes requirements for the17 demonstration of compliance with the design objective, actions to be taken if the effluent18 releases in any calendar quarter exceed any of the annual design objectives by one-half, 19 and requirements to conduct surveillance and monitoring programs to demonstrate 20 compliance.

21 The numerical design objectives of Appendix I to Part 50 are a fraction of the22 Part 20 limits (including the EPA 40 C.F.R. § 190.10 limits).

Thus, in practice, because PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I the Part 50, Appendix I design objections are far more restrictive than Part 20 allowable 2 dose limits or effluent concentration levels, the Part 50, Appendix I ALARA objectives 3 and guidelines are controlling for power reactor licensees.

4 To implement 10 C.F.R. Part 50, Appendix I, the NRC Staff developed 5 Regulatory Guide 1.109, "Calculation of Annual Doses to Man from Routine Releases of6 Reactor Effluents for the Purpose of Evaluating Compliance with 10 CFR Part 50,7 Appendix I," Rev. 1 (Oct. 1977) ("Regulatory Guide 1.109").

Regulatory Guide 1.1098 describes basic features for calculation models and suggests parameters for the estimation 9 of radiation doses to members of the general public from effluent releases.

The following 10 are the design objectives of Appendix I, 10 C.F.R. Part 50, as summarized in Table 1,* 11 NRC Regulatory Guide 1.109, for the maximum exposed individual (integrated total dose12 on an annual basis):13 Liquid Effluents 14 , Annual dose to the total body from all pathways

-3 mrem per reactor -location15 of highest dose offsite evaluated at a location that is anticipated to be occupied16 during the plant lifetime or evaluated with respect to such potential land and water17 usage and food pathways as could actually exist during the term of plant18 operation.

19 e Annual dose to any organ from all pathways

-10 mrem per reactor -location20 same as above.21 In addition, 10 C.F.R. § 50.36a requires licensees to have technical specifications 22 (i.e., license conditions) to ensure compliance with Sections 20.1301 and 50.34a, and to PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 use operating procedures and radioactive waste systems to maintain radioactive effluents 2 ALARA-both during the current and extended periods of operation.

Section 50.36a3 also requires that licensees submit to the NRC an Annual Radiological Effluent Release4 Report that specifies the quantity of each of the principal radionuclides released to the5 unrestricted areas in liquid and in gaseous effluents during the previous 12 months.6 Further, in accordance with 10 C.F.R. Part 50 Appendix I, Section IV.B, NRC regulations 7 require that nuclear power plant operators monitor the environment in the vicinity of the8 nuclear power plant to assess the cumulative impact of the radionuclides that have been9 released and, on an annual basis, to submit the results of this environmental monitoring 10 program to the NRC in an Annual Radiological Environmental Operating Report.11 Q: Do NRC regulations require that a licensee account for inadvertent or unanticipated 12 releases?

13 A: Yes. The NRC limits and ALARA dose controls apply to both normal effluent14 discharges and unplanned releases such as leaks or spills containing radionuclides.

15 Regardless of the source, each nuclear power plant is required to account for the16 radionuclides released to the environment, including planned and unplanned releases.

17 Each licensee is responsible for accounting for the release, evaluating the release relative18 to NRC regulatory requirements, and reporting the quantity of radionuclides released and19 the highest dose to any theoretical member of the public. See SECY- 11-0019, Senior20 Management Review of Overall Regulatory Approach to Groundwater Protection, End.21 2, Regulatory Framework at 2 (Exh. 44). Along with all other releases, unplanned or22 abnormal releases are specifically identified in the required Annual Radiological Effluent PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I Release Report provided to the NRC.2 Q: Have you reviewed Entergy's Offsite Dose Calculation Manual ("ODCM")?

3 A: Yes.4 Q: Does Entergy's ODCM comply with the NRC requirements for calculating the doses5 of radiological releases from Indian Point?6 A: Yes. Entergy's ODCM calculates dose in a manner consistent with the specification 7 requirements of Regulatory Guide 1.109 and the design objectives of 10 C.F.R. Part 508 Appendix I.9 Q: Have you reviewed the calculations of the amount of tritium released to the Hudson10 River from groundwater in 2006-10?* 11 A: Yes. The estimates of the total tritium released to the Hudson River from groundwater 12 are contained in Entergy's Annual Radiological Effluent Release Reports ("ARERR"),

at13 Section H. They are summarized in the following table:14 Total Tritium Released from Groundwater 15 2006 0.19 curies16 2007 0.064 curies17 2008 0.2 curies18 2009 0.07 curies19 2010 0.12 curies20 See Entergy's ARERRs, 2006-10, at Section H.21 Q: Have you reviewed the calculations of the annual dose from the tritium released to22 the Hudson River from groundwater for 2006-10?

PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I A: Yes. The calculations of the annual dose from the tritium released to the Hudson River2 from groundwater are contained in Entergy's ARERRs, at Section H. They are3 summarized in the following table:4 Annual Dose from Tritium Released from Groundwater

  • 5 2006 2.1 x 10.6 mrem6 2007 2.6 x l0"7 mrem7 2008 2.2 x 10-7 mrem8 2009 1.4 x 10-7 mrem9 2010 1.9 x 10-7 mrem10 See Entergy's ARERRs, 2006-10, at Section H.S 11 Q: Were Entergy's calculation of annual radiation dose from the tritium released from12 groundwater to the Hudson River consistent with the OCDM and the requirements 13 of NRC?14 A: Yes.15 Q: Do you have an.opinion as to the effect on human health as a result of the releases of16 tritium from groundwater to the Hudson River?17 A: I do. The level of tritium released to the river from groundwater on an annual basis is18 orders of magnitude lower than the allowable the allowable federal regulatory limits for19 radioactive effluents, and orders of magnitude below allowable federal regulatory levels20 of tritium that Entergy releases to the river on an annual basis through the discharge canal21 pursuant to its NRC licenses, which levels are designed to protect human health and the22 environment.

See Entergy's ARERR's, 2006-10, at Table 2A. More importantly, the-II-PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 dose is so small as to be inconsequential to human health or the environment.

To provide2 an example, in 2010, the total annual radiation dose to a hypothetical maximally exposed3 human being from the tritium released from groundwater was 0.00000019 mrem. As4 stated above, the average annual radiation exposure for the typical individual in the5 United States is 620 mrem. Indeed, the typical radiation exposure from eating a banana,6 which contains small amounts of radioactive potassium, is 0.01 mrem. The low level of7 tritium, and the low dose consequences from that tritium, demonstrates conclusively that8 there is no material negative effect on human health or the environment from the releases9 of tritium from groundwater to the Hudson River.10 Q: Have you reviewed the calculations of the radionuclides released to the Hudson9 11 River from groundwater as a result of past releases from the IP SFP?12 A: Yes. While I understand that this proceeding relates solely to the continued operation of13 Indian Point Unit 2 and Unit 3, and does not relate to any activity related to Unit 1, I have14 also reviewed Entergy's estimates of radionuclides (principally strontium, and trace15 amounts of cesium and cobalt) that have been released to the Hudson River as a result of16 the past release to groundwater from IPI SFP. These estimates are contained in17 Entergy's ARERRs, at Section H. They are summarized in the following table:18 Total Radionuclides Released from IPI SFP19 2006 0.00057 curies20 2007 0.00008 curies21 2008 0.00016 curies22 2009 0.00025 curies PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 2010 0.000042 curies2 See Entergy's ARERRs, 2006-10, at Section H.3 Q: Have you reviewed the calculations of the annual radiation dose from radionuclides 4 released to the Hudson River from groundwater as a result of past releases from the5 IPM SFP?6 A: Yes. The calculations of the annual radiation dose from the radionuclides released to the7 Hudson River from groundwater as a result of past releases from the IP1 SFP are8 contained in Entergy's ARERRs, at Section H. They are summarized in the following 9 table:10 Annual Dose from Radionuclides Released from IP I SFPS 11 Total Body Adult Bone12 2006 0.00178 mrem 0.00721 mrem13 2007 0.000266 mrem 0.000994 mrem14 2008 0.000286 mrem 0.000935 mrem15 2009 0.000256 mrem 0.00103 mrem16 2010 0.000173 mremn 0.000706 mrem17 See Entergy's ARERRs, 2006-10, at Section H.18 Q: Were Entergy's calculation of annual radiation dose from radionuclides released to19 the Hudson River from groundwater as a result of past releases from the IPN SFP20 consistent with the OCDM and the requirements of NRC?21 A: Yes.22 Q: Do you have an opinion as to the effect on human health from the radionuclides PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 released to the Hudson River from groundwater as a result of past releases from the2 IPI SFP?3 A: I do. The level of radionuclides released to the river on an annual as a result of past4 releases to groundwater from the IP1 SFP is extremely low. Indeed, the level of5 radionuclides released from groundwater is orders of magnitude lower than the allowable 6 federal regulatory limits for radioactive effluents, which levels are designed to protect7 human health and the environment.

More importantly, the radiation dose is so small as to8 be inconsequential to human health or the environment.

To provide an example, in 2010,9 the total annual dose to the most affected human being from the radionuclides released10 from the IPI SFP was 0.000173 mrem. As stated above, the average annual radiation

  • 11 exposure for the typical individual in the United States is 620 mrem. Again, the typical12 radiation exposure from eating a banana, which contains small amounts of radioactive 13 potassium,.

is 0.01 mrem. The low level of radionuclides, and the low dose consequences 14 from those radionuclides, demonstrates conclusively that there is no material negative15 effect on human health or the environment from the release of groundwater to the Hudson16 River containing radionuclides as a result of releases from the IP I SFP.17 Q: Have you. reviewed the results of the testing of radionuclides in Hudson River water1 8 samples?19 A: Yes. The Annual Radiological Environmental Operating Reports ("AREOR")

for Indian20 Point contain the results of testing for plant related radionuclides in the vicinity of Indian21 Point, and at the Hudson River inlet, which is used as a control location.

This is-22 important, as there are low levels of "background" radionuclides in surface waters rPREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I throughout the world as a result of nuclear weapons testing and the Chernobyl incident.

2 As such, comparing the levels of radionuclides in river water in the vicinity of the plant3 to that of a control location can assist one in determining whether the radiological 4 releases from the plant are having a measurable effect on the Hudson River. I have5 reviewed the AREORs from 2006 through 2010, and have concluded that there are no6 material differences in the levels of radionuclides contained in the samples taken from the7 vicinity of the plant and from the control location over that time period. This is as I8 would expect, given the low levels of radionuclides being released, and the large volume9 of water in the river.10 Q: Do you have an opinion as to the effect on aquatic biota as a result of the releases of@ 11 radionuclides from groundwater to the Hudson River?12 A: Yes. The Department of Energy ("DOE") has promulgated a guideline for radiation dose-13 rates from environmental media, which recommends limiting the dose to aquatic biota to14 less than 1.0 rad/day (0.01 Gy/day).

See DOE-STD-1153-2002, DOE Standard, A15 Graded Approach for Evaluating Radiation Doses to Aquatic and Terrestrial Biota (2002)16 (excerpts included at Exh. 45). These guidelines were developed on the basis of17 experimental data that indicated that there would not be any negative population-level 18 effects at these doses.19 Q: Did you perform any dose rate calculations for aquatic biota in the area in the20 vicinity of the IPEC site?21 A: Yes. As part of my preparation in this matter, I used the DOE's RESRAD-BIOTA dose22 evaluation model (v.1.5/level

3) to calculate the dose rate to aquatic organisms in the PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I vicinity of the IPEC site. Furthermore, I compared the estimates of dose rate obtained2 with RESRAD-BIOTA with dose rates calculated with the use of biota dose coefficients 3 for tritium and strontium-90 documented for external and internal exposures in4 UNSCEAR 2008 (Vol. II, Annex E) (Exh. 35-36), and an assumed water-to-whole 5 organism bioconcentration factor of 320 for strontium-90.

To perform these calculations, 6 I used conservative upper-bound estimates of the rolling average concentration of both7 tritium and strontium in the groundwater migrating to the River. Using the RESRAD-8 BIOTA dose model, I calculated a dose rate to aquatic organisms in the vicinity of the9 IPEC site of 2.05 x 10-9 rad/d for tritium, and 3.71 x 10-4 rad/d for strontium-90.

Using10 the UNSCEAR approach, I calculated a dose rate to aquatic organisms in the vicinity of11 the IPEC site of 2.9 x 10-9 rad/d for tritium, and 4.7 x 10-4 rad/d for strontium-90.

These12 dose rates are orders of magnitude below the DOE I rad/d guideline, and support my13 conclusion that effluent releases from the IP SFPs have not resulted in any negative14 effects on the ecosystem.

15 Q: Are you aware of any other independent dose assessments of the impact of releases16 of radionuclides to groundwater on aquatic biota in the vicinity of the IPEC site?17 A: Yes. In 2009, the NYSDEC published the results of enhanced, independent radiological 18 surveillance of several aquatic species in the lower Hudson River conducted in 2007. See19 Lawrence C. Skinner & Timothy J. Sinnot, Measurement of Strontium (90Sr) and Other20 Radionuclides in Edible Tissues and Bone/Carapace of Fish and Crabs from the Lower21 Hudson River, New York (Nov. 2009) (Exh. 39). The NYSDEC study involved an22 independent assessment of fish and invertebrates sampling performed as part of Entergy's PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I Radiological Environmental Monitoring Program ("REMP").

Typically, radiological 2 surveillance under the REMP involves samples of edible tissues of two or more important 3 commercial or recreational fish or invertebrate species (e.g., striped bass, white perch,4 American eel, catfish,

sunfish, or blue crab) performed in spring and fall of each year at5 two locations-in the vicinity of the IPEC site (approximately river mile 42) and the6 vicinity of Roseton Generating Station (the traditional reference station at approximate 7 river mile 65). The one-time design modifications for the 2007 effort included:

the8 addition of carp to the target species list; adding strontium to the list of radionuclide 9 analyzed; analysis of fish bone or crab carapace; and sampling fish at a third location in10 the Catskill Region between river miles 107 and 125 to help assure appropriate separation

@ 11 of fish populations that are resident to the river, and, consequently, assure isolation of12 resident fish populations from the potential influence of IPEC.13 Sampling was conducted by Normandeau Associates, Inc., under contract with14 Entergy.

Samples were split three ways between Entergy's contract laboratory, AREVA,15 Inc.; the NRC for analysis at Oak Ridge Institute for Science and Education; and16 NYSDOH Wadsworth Center for Labs and Research.

The NYSDEC study found that17 there were no spatial differences in the concentrations of strontium-90 or radium-224 18 from the three locations in the lower Hudson River. In contrast, K-40 levels were19 somewhat greater in the vicinity of Roseton Generating Station.

Furthermore, the20 NYSDEC study calculated dose rates from strontium-90, uranium-238, and thorium-232 21 and compared those rates to the DOE standard for protecting aquatic biota. NYSDEC22 concluded that the levels of radionuclides-including strontium-90--were two to five PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.I orders of magnitude lower than the 1.0 rad/day criterion established for protection of2 freshwater ecosystems.

3 V. SUMMARY AND CONCLUSIONS 4 Q: As a result of your work in this matter, have you formed an opinion as to whether* 5 the releases of radionuclides to groundwater that has migrated to the Hudson River6 have impaired, or have the potential to impair, the use of the Hudson River for7 recreation activities such as swimming,

fishing, and boating?8 A: I have. As stated above, the levels of radionuclides released to the Hudson River from9 groundwater are extremely low, with an immaterial effect on annual dose consequence to10 man or aquatic biota. Moreover, given the low levels of these releases, and the large11 volume of water in the Hudson River, there is no credible evidence that the releases of12 radionuclides from groundwater have any measurable effect on the level of radionuclides 13 present in the Hudson River from historical sources.

As such, there is no credible14 scientific basis to conclude that releases of radionuclides to groundwater that has15 migrated to the Hudson River have impaired or will impair the use of the Hudson for16 primary or secondary contact recreation, such as swimming,

fishing, and boating.17 Q: As a result of your work in this matter, have you formed an opinion as to whether18 the releases of radionuclides to groundwater that has migrated to the Hudson River19 have impaired, or have the potential to impair, the suitability of the Hudson River20 for fish, shellfish, and wildlife propagation and survival?

21 A: I have. As stated above, the levels of radionuclides released to the Hudson River from-22 groundwater are extremely low, with an immaterial effect on annual dose consequence to PREFILED TESTIMONY OF F. OWEN HOFFMAN, PH.D.IN SUPPORT OF ENTERGY NUCLEAR INDIAN POINT 2, LLC,ENTERGY NUCLEAR INDIAN POINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS, INC.1 aquatic biota. Moreover, given the low levels of these releases, and the large volume of2 water in the Hudson River, there is no evidence that the releases of radionuclides from3 groundwater have any material effect on the level of radionuclides present in the Hudson4 River from historical sources.

Given all this, there is no credible scientific basis to5 conclude that releases of radionuclides to groundwater that has migrated to the Hudson6 River have impaired or will impair the suitability of the Hudson River for fish, shellfish, 7 and wildlife propagation and survival.

8 STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC,Entergy Nuclear Indian Point 3, LLC, DEC App. Nos. 3-5522-00011/00030 (IP2)and Entergy Nuclear Operations Inc.'s 3-5522-00105/00031 (IP3)Joint Application for CWA § 401 WaterQuality Certification COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., MATTHEW J. BARVENIK, AND F. OWEN HOFFMAN, PH.DRADIOLOGICAL

-ISSUE FOR ADJUDICATION NO. 3ENTERGY NUCLEAR INDIAN POINT 2,LLC, ENTERGY NUCLEAR INDIAN POINT3, LLC, AND ENTERGY NUCLEAROPERATIONS, INC.By its attorneys, John C. EnglaerElise N. ZoliU. Gwyn WilliamsWilliam J. TrachGoodwin Procter LLP53 State StreetBoston, Massachusetts 02 109Tel.: 617.570.1000 October 4, 2011 Fax: 617.523.1231 COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., AND MATT7HEW J.BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL TABLE OF CONTENTSI. Introduction

........................................................................................................................

1II. B ackground

........................................................................................................................

2I11. Rebuttal to Testimony of Mr. Gunderson

..................................................................

7IV. Rebuttal to Testimony of Mr. Kolakowski

................................................................

39ii COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 I. Introduction 2 Q: Please identify yourselves.

3 A: Dr. Esselman:

My name is Thomas C. Esselman.

I am a Principal of Lucius4 Pitkin, Inc., 304 Hudson Street, New York, NY 10013. I have over thirty-five 5 years experience in engineering including the areas of component and structure 6 performance, aging, stress analysis,

dynamics, seismic design and analysis, 7 mechanical design, thermo-hydraulics, materials, materials degradation, and8 failure analysis, including extensive experience with nuclear power facilities.

My9 responsibilities have included performance and management of a large variety of10 engineering, engineering development, and engineering evaluation issues. I11 consult frequently on power generation and delivery, generating plant design and12 operation, material degradation, plant and system aging issues, and materials 13 evaluations.

A copy of my resume is attached as Exhibit 77.14 A: Mr. Barvenik:

My name is Matthew Barvenik.

I am a Senior Principal with15 GZA GeoEnvironmental, Inc., One Edgewater Drive, Norwood, MA 02062. 116 submitted direct prefiled testimony, which included my qualifications and resume,17 on July 22, 2011.18 A: Dr. Hoffman:

My name is F. Owen Hoffman.

I am president and director of19 SENES Oak Ridge, Inc. Center for Risk Analysis, an organization that specializes 20 in human health and ecological risk estimation, risk assessment, and risk21 communication.

SENES Oak Ridge is located at 102 Donner Drive, Oak Ridge,22 TN, 37830. I submitted direct prefiled testimony which included my23 qualifications and resume, on July 22, 2011.-I -

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D.. ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN:

PH.DRADIOLOGICAL 1 Q: Please state the purpose of your rebuttal testimony.

2 A: All Experts:

The purpose of our testimony is to address certain portions of the3 prefiled direct testimony of Mr. Arnold Gunderson (Riverkeeper),

and Mr. Paul4 Kolakowski (NYSDEC) with respect to Issue for Adjudication No. 35 (Radiological Issues).

We have each individually reviewed Mr. Gunderson's and6 Mr. Kolakowski's testimony.

In our individual professional

opinions, their7 testimony and conclusions contain numerous errors, inaccuracies, and8 deficiencies.

For ease of reference, the initials of the individual or individuals 9 responsible for providing the testimony in response to each particular question are10 provided herein.I 1 II. Background 12 Q: Please describe any background information on radiation exposure and13 regulations necessary to provide context for your rebuttal testimony.

14 A: (TCE, MJB, FOH): While Mr. Gunderson and Mr. Kolakowski discuss in detail15 Entergy's unplanned releases of radionuclides from groundwater to the Hudson16 River, neither discusses the effects of such releases or the relevant regulatory 17 guidelines that govern such releases.

That basic information, provided herein,18 provides an important context for our rebuttal testimony.

19 According to a recent report of the National Council on Radiation 20 Protection and Measurements

("NCRP"),'

the average annual radiation dose perThe NRCP is an organization chartered by the U.S. Congress in 1964 to, inter alia, "collect,

analyze, develop and disseminate in the public interest information and recommendations about(a) protection against radiation

...and (b) radiation measurements, quantities and units,particularly those concerned with radiation protection."

See COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I person in the United States is 620 millirem

("mrem").

See NCRP Report No. 1602 (Exh. 37), Approximately half of this radiation exposure comes from natural3 background

sources, such as cosmic radiation from space, naturally occurring 4 radioactive minerals in the ground and in your body, and from the radioactive 5 gases radon and thoron, which are created when other naturally occurring 6 elements undergo radioactive decay. Accordingly, the average individual will7 receive over 300 mrem of radiation exposure each year from naturally occurring 8 background radiation.

Another 48% of the average total radiation exposure of9 620 mrem received each year is from medical procedures, many routine.

Below10 is a chart detailing the average sources of radiation exposure:

sourcesCosmic (space) -5Terrestrial (Soil) -3%Internal

-5%of Radiation Exposure in the United States-Radon and.Trho=o- 3796Occupational

-1Consumer Products

-2~FNuclear Medlcine 1.2%111213140 Natural Sources -50% M9 Manmade Sources -50%-310 millirem (0.31 rem) -310 mIllilrem (0,31 rem)se pClP K0poI .160(2009,

'I ts "dw:e ca tNhe NCRP web s" at -w.ACRPp~Ih na. r.As is evident from above, the average radiation exposure resulting fromindustrial and occupational activities, which includes but is not limited toexposure resulting from the operation of nuclear facilities, contributes just 0.1%hitp://wwwv.ncrponline.orglAboutNCRP/About NCRP.htnil.

2345678COMBINED PREFILIED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN:

PH.DRADIOLOGICAL of the average annual radiation exposure.

Both state and federal regulators (including NYSDEC) have promulgated regulations setting limits on the increased radiation exposure to individuals fromindustrial facilities.

While the relevant federal regulations arc discussed in detailin the pre-filed testimony of Dr. Hoffman, below is a chart setting forth thefederal and state regulations regarding potential dose from industrial facilities, aswell as the calculated dose resulting from Indian Point's liquid effluents, and fromthe unplanned releases of radionuclides specifically:

Annual Dose (mrem/yr whole body)320 r 310240200160 ...--1201008040[ 25io0.0032 0.0002Natural NRC Effluentsl10 EPA-40CFR 190 NYSDECOHSM NRCDesign ObJ IPEC Uquid IPEC Ground &Background CFR 20 RADOS-01 1OCFRSO App. I Effluents Dose Storm Water DoseUquid 2010 .201091011In addition to the relevant federal regulatory limits, NYSDEC haspromulgated limits for the dose resulting from the operation of industrial facilities COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I subject to its jurisdiction.

Those limits are contained in two relevant regulations.

2 First, NYSDEC's radiological regulations at 6 NYCRR Part 380, "requires parties3 who discharge radioactive material to keep records of the radioactive material4 discharged and to maintain those discharges as low as reasonably achievable 5 ("ALARA").

The regulations set radiation dose limits and emission levels above6 which a party must obtain a radiation control permit from NYSDEC."

See7 http://www.dec.ny.gov/chemical/23475.hti-l.

Accordingly, 6 NYCRR Part 380-8 5.1, entitled "Dose Limits for Individual Members of the Public."

sets a limit of9 100 mrern/year resulting from discharges of radioactive material to the10 environment.

2 NYSDEC also has promulgated guidance for cleanup of sitesI I contaminated with radiological materials that sets a 10 mrem/year dose limit. See12 NYSDEC DSHM-RAD-05-01, "Cleanup Guidelines for Soils Contaminated with13 Radioactive Materials"

("The total effective dose equivalent to the maximally 14 exposed individual of the general public, from radioactive material remaining at a15 site after'cleanup, shall be as low as reasonably achievable and less than 10 mrem16 above that received from background levels of radiation in any one year.").17 Furthermore, NYSDEC has applied this guidance when analyzing impacts from18 the release of radionuclides, and has determined that dose levels that are 10,00019 times higher than the doses from Entergy's unplanned releases presented no harm20 to public health or the environment.

Specifically, GZA reviewed NYSDEC'sBecause of federal preemption, the limits in Part 380 expressly do not apply to nuclear facilities subject to NRC regulation, such as Indian Point. See 6 NYCRR Part 380-1.2 ("This Part does notapply to any person to the extent that such person is subject to regulation by the U.S. NuclearRegulatory Commission or the U.S. Department of Energy.").

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN, PH.DRADIOLOGICAL I investigation of naturally occurring radioactive materials (NORM) associated 2 with oil and gas drilling in New York State. See An Investigation of Naturally 3 Occurring Radioactive Materials (NORM) in Oil and Gas Wells in New York4 State, http://www.dec.ny.gov/chemical/23473.html.

The focus of NYSDEC's5 work on this issue was to evaluate the potential impact to the public and the6 environment associated with this industry.

As part of this investigation, 7 NYSDEC specifically evaluated the spreading of hydrofracking brine generated 8 by this industry, which contains NORM, on local roads. The dose computed by9 NYSDEC for brine spread on roads for snow removal and dust control was10 between 1.7 and 2.9 mrem/year.

Based on these potential exposure levels,11 NYSDEC concluded that: "Even given the "worst-case" assumptions cited above,12 the output from the RESRAD model showed that the dose rate upon the 20th year13 of exposure (the year of highest possible exposure) from all radium isotopes and14 its progeny would still be well below the NYSDEC [DSHM-RAD-05-0O]

cleanup15 guideline of 10 mrem/yr.

This result was based upon conservative modeling and16 demonstrates that there is no reason to believe that the public health or the17 environment would be threatened."

As such, in performing this analysis, 18 NYSDEC concluded that a 2.9 mrem/year exposure results in "no reason to19 believe that the public health or the environment would be threatened."

By20 contrast, the whole body dose in 2010 at Indian Point for all radionuclides 21 resulting from unplanned releases was 0.0002 mrem/year, an exposure more than22 10,000 times lower than that considered acceptable by NYSDEC. As such,23 according to NYSDEC's own analysis, the release of radionuclides to the Hudson COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I River at Indian Point constitutes no threat to public health or the environment.

2 In sum, the total calculated potential radiation dose from Entergy's 3 unplanned releases of radiological materials in all of 2010 was 0.0002 mrem. To4 provide some context as to the insignificant dose from Entergy's unplanned 5 releases, it is helpful to understand the radiation dose from certain common,6 everyday activities:

eating a single banana: 0.01 mrem; a single cross-country 7 flight: 2 mrem; a single chest x-ray: 4 mrem. Each of these common activities 8 results in a dose that is orders of magnitude more than the total annual dose from9 Entergy's unplanned releases.

10 111. Rebuttal to Testimony of Mr. Gunderson 11 Q: Mr. Gunderson's testimony references, at several points, EPA limits for12 tritium.

Are there any aspects of Mr. Gunderson's testimony regarding EPA13 limits for tritium with which you disagree?

14 A: (MJB, FOH) Yes. Mr. Gunderson's statements regarding what he characterizes as15 leaks of tritium at nuclear plants in excess of EPA limits are misleading.

For16 instance, Mr. Gunderson's testimony states that "According to an NRC document17 entitled List of Historical Leaks and Spills at U.S. Commercial Nuclear Power18 Plants, 38 of the 65 nuclear power plant sites have reported tritium leaks in excess19 of U.S. Environmental Protection Agency (EPA) limits."

This statement is a20 mischaracterization of the document on which Mr. Gunderson purports to rely.21 To demonstrate this mischaracterization, some background on the referenced 22 regulatory limits is necessary.

In 1976, EPA issued standards under the Safe23 Drinking Water Act, which apply to "drinking water providers" as defined in the COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN:

PH.DRADIOLOGICAL Act, and includes dose-based drinking water standards for, inter alia, tritium and2 strontium.

The EPA established a maximum contaminant level of 20,0003 picocuries per liter (pCi/L) for tritium and 8 picocuries per liter for strontium.

4 This regulation applies to drinking water sources (i.e., at the tap). It does not5 apply to wells on the site at Indian Point which are not used as a drinking water6 source. See Http://www.nrc.pgov/reading-rm/doc-collections/fact-sheets/tritium-7 radiation-fs.html.

8 The NRC document on which Mr. Gunderson purports to rely for his9 statement that "38 of the 65 nuclear power plant sites have reported tritium leaks10 in excess of U.S. Environmental Protection Agency (EPA) limits" demonstrates 11 clearly the falsity of this testimony.

In fact, that document states that no nuclear12 facility has ever had leaks that resulted in drinking water levels in excess of EPA13 limits:14 "There are 65 sites with operating commercial nuclear power15 plants in the United States. Records indicate 38 of these sites have16 had leaks or spills that involved tritium in excess of 20,000 pCi/L17 at some time during their operating history.

Fourteen sites are18 currently reporting

tritium, from a leak or spill, in excess of 20,00019 pCi/L. Although many sites have had leaks or spills involving 20 tritium, no site is currently detecting tritium in the offsite21 environment, or in drinking water, in excess of 20,000 pCi/L.22 COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 This list demonstrates that in all of that time, and with all the2 leaks and spills that have occurred, no drinking water supply3 has exceeded the allowable level for tritium specified in EPA's4 Safe Drinking Water Act."5 See List of Historical Leaks and Spills at U.S. Commercial Nuclear Power6 Plants, Rev 7 (emphasis added) (Ex. AG-Rad-2).

7 Q: Beginning at page 6, line 12 of his pre-filed testimony, Mr. Gunderson 8 references a report of the U.S. General Accounting Office ("GAO"),

stating9 that the "GAO concludes that the elimination or reduction in the frequency 10 of radioactive leaks into the soil has not been solved by industry initiatives 11 and is likely to continue or worsen as nuclear plants continue to age." Do12 you agree with Mr. Gunderson's summary of the GAO's conclusions?

13 A: (TCE, MJB) No. First, the GAO report was an independent review of tritium14 leaks by two panels of experts from the National Academy of Sciences.

They15 examined tritium leaks that had occurred at three nuclear power plants16 specifically (Braidwood Generating

Station, Oyster Creek Generating
Station, and17 Vermont Yankee Nuclear Power Station),

and also looked broadly at the issue18 across the nuclear industry.

As part of their work, they also visited the Indian19 Point Nuclear Station.

Mr. Gunderson mischaracterizes the GAO report and its20 conclusions in several significant ways. Contrary to Mr. Gunderson's testimony, 21 the GAO report did not conclude that "the elimination or reduction in the22 frequency of radioactive leaks into the soil has not been solved by industry23 initiatives."

Rather, the report highlights the NRC's conclusion "that licensees' COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 groundwater monitoring programs implemented under the voluntary groundwater 2 initiative go beyond what the agency requires for groundwater monitoring and3 could enhance licensees' prevention of and response to potential leaks by4 detecting them early." (Ex. AG-Rad-4 at 22-23).5 Further, the principal conclusion of the GAO report was that no6 discernible public health effect and no discernible off site environmental 7 effects had occurred from any of the studied leaks. The two panels'8 conclusions were clear and unequivocal:

9 "According to the experts in our public health discussion group, no10 impacts on public health have been discernible from leaks at the11 three case study nuclear power plants we [the GAO] asked the12 experts to consider.

13 Id. at 9.14 "Based on the information that is available on the case studies15 considered by the experts, the experts in our environmental 16 impacts discussion group concluded that the leaks have had no17 discernible impact on off-site environmental resources."

18 Id. at 10 (emphasis added).19 While the GAO Report did state that "occurrence of leaks at nuclear power plants20 from underground piping systems is expected to continue as nuclear power plants21 age" id. at 22, the entire purpose of the industry initiatives highlighted in the22 report (both the Groundwater Protection Initiative and the Buried23 Piping/Underground Piping and Tanks Integrity Initiative) is to greatly reduce the COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I likelihood that leaks will occur and to detect leaks more quickly and more2 effectively than had been done in the past. Id. at 22-23.3 Q: Mr. Gunderson relies on the Indian Point Independent Safety Evaluation 4 ("ISE") Report and the Supplemental Report of the Public Oversight Panel5 Regarding the Comprehensive Reliability Assessment of the Vermont6 Yankee Nuclear Power Plant ("VY Report")

to support statements on pages7 7, 20, and 21 that Entergy "appears" not to be committing adequate8 resources to maintain its nuclear reactors, including Indian Point. Do you9 agree with Mr. Gunderson's characterization of the referenced

reports, and10 his assertion that Entergy is not committing adequate resources to maintain11 its nuclear reactors?

12 A: (TCE, MJB) No. First, Mr. Gunderson's conclusory characterization of the ISE13 and VY Reports is not accurate.

On page 20 of his testimony, Mr. Gunderson 14 contends that the ISE Report demonstrates that "Entergy is failing to sufficiently 15 fund its maintenance programs."

This is not correct.

To provide context, the ISE16 report resulted from Entergy's commission of a panel of experts (the "ISE Panel")17 to conduct "an independent evaluation of Indian Point's safety, security, and18 emergency preparedness."

ISE Report at 6 (Ex. 78). The ISE Panel, consisting of19 distinguished experts in the nuclear field with no professional ties to Entergy or20 Indian Point, "represented virtually every facet of nuclear plant safety, security, 21 and emergency preparedness, from a variety of vantage points, and with full22 independence."

Id The ISE Panel specifically concluded that Indian Point had23 been adequately maintained:

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I "The Panel found that Indian Point nuclear safety meets the U.S.2 nuclear industry highest standards in most respects.

Indian Point3 nuclear operations are conducted competently and4 professionally, plant safety systems are well maintained, 5 reliable and are backed with full resource commitment by the6 plant owner. Control Room operations

-- a key indicator of plant7 nuclear safety culture -were observed frequently by the Nuclear8 Safety Team and other ISE Panelists and found to be consistently 9 professional and effective.

Indian Point management, at all10 levels, is clearly attentive to nuclear safety."11 Id. at 146. The ISE did find that while station personnel paid close attention to12 the plant safety systems, there were some deficiencies in the physical condition of13 some non-safety parts of the plant. Entergy has heavily invested in the14 improvement of such non-safety portions of the plant. Indeed, as the ISE Report15 concluded:

"Entergy has invested heavily in improving the overall material16 condition of the plant." Id. at 47. Since the issuance of the ISE Report, Entergy17 has continued to invest heavily in the overall material condition of the plant.18 Likewise, contrary to Mr. Gunderson's statement, the VY Report19 referenced on page 7 of Mr. Gunderson's testimony, which resulted from a review20 of the reliability of the Vermont Yankee plant, actually says nothing about21 Entergy Nuclear Operations' "corporate structure,"

and neither evaluated nor22 commented on "resource weakness within Entergy's corporate structure."

Other23 than a passing reference to the unrelated ISE Report, the VY Report says nothing COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 about the operation of or conditions at Indian Point. As such, it provides no basis2 to make conclusions as to the funding of maintenance operations at Indian Point.3 Setting aside the conclusions of the ISE and VY Reports, an analysis of4 the operation of Indian Point during the time Entergy has owned it demonstrates 5 that Entergy is adequately funding its maintenance.

Specifically, two factors6 concerning the operation of a nuclear plant are highly indicative of the quality of a7 nuclear power plant's owner/operator:

gross generation and capacity factor.8 "Gross generation" measures the total annual amount of electricity generated by9 Indian Point Units 2 and 3. Below is a chart representing gross generation in10 megawatt-hours from 1977 to 2010:

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMA'iTHEW J. BARVENIK, AND F. OWEN IIOFFMAN, PH.DRADIOLOGICAL Power Produced at IPEC per Year19,000,000 18,000,000

-Pre---.wn 17,000,000 "16,000,000

.15,000,000 14,000.000 13,000,000 12,000.000 11,000,000

.10,000,000

.9,000,000 8,000,000 7,000,000 6,000,000 5,000,000 4,000,000 3,000,000 2,000,000 1,000,000 0 l "W i CD .r, ) , C') Uo o C") U') 0 0 " 0" '- " " "- " '- )r-ar" ' 2 There are two conclusions that can be drawn from this data. First, power3 production since 2001, when Entergy completed acquisition of both units, has4 been higher each year than it ever had been previously.

Fntergy has operated the5 plant at a high level of efficiency since they took ownership.

Second. the6 operation of Indian Point has been consistent since 2001. The annual power7 generation varies between 16,000,000 and 18,000,000 Megawatt-hours.

Such8 consistent, high-efficiency operation of a facility for a ten year period cannot be9 achieved without having a strong focus on the efficiency of operation, the10 efficiency of maintenance, and a focus on safety.

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 The second important metric that can provide insight into the quality of2 maintenance at Indian Point is the capacity factor in comparison to the average in3 the industry.

The "capacity factor" of a power plant is the ratio of the actual4 output of a power plant over a period of time and its potential output if it had5 operated at full power for the entire time. A consistently high capacity factor over6 a number of years is a strong indicator the plant is being run well and adequately 7 maintained.

Capacity factors for US nuclear plants are published in the NRC's8 annual Information Digest, NUREG 1350 (available at9 http://www.nrc.gov/reading-rmldoc-collections/nuregs/staff/sr1350/).

Below is a10 table of capacity factors of the Indian Point plants, the Entergy fleet, and the11 industry average from 2001 to 2010:I Capacity FactorsAll Entergy Plants US PlantsYear Indian PointAverage Average2010 90.5% 93.2% 91.2%2009 91.5% 93.5% 91.1%2008 99.2% 91.1% 92.0%2007 92.9% 91.4% 91.8%2006 94.5% 95.4% 91.0%2005 94.5% 88.8% 90.1%2004 94.5% 93.2% 90.9%

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 2003 93.5% 90.7% 88.0%2002 94.5% 89.3% 90.9%2001 93.7% 93.3% 90.9%12 As the chart shows, Entergy operated the Indian Point stations at greater than 90%3 capacity factor every year for the past ten years. The Indian Point average4 capacity factor for the ten years is 93.9%. The average capacity factor in the5 industry for this ten year period is 90.9% -- 3 percentage points lower than the6 average at the Indian Point stations.

The average for all the Entergy plants was7 92.0% which also exceeded the industry average by 1.1%. Further, Indian Point8 was one of only six multiple plant sites in the United States to operate with a site9 average capacity factor that exceeded 90% in each year between 2001 and 2010.10 These results cannot have been attained without sustained management 11 commitment to adequate maintenance funding.12 These statistics demonstrate that Mr. Gunderson's conclusory statement 13 that "Entergy appears to have failed to adequately fund [Indian Point's]14 maintenance" is not correct.

The operating results from the last ten years clearly15 indicate that Entergy has consistently and efficiently operated the Indian Point16 stations, and that the maintenance has been appropriately funded.17 Q: On page 7 of his testimony, Mr. Gunderson states that "more than half18 (59%) of U.S. nuclear power plants are leaking tritium and other longer-19 lived radioactive isotopes while almost three-quarters (73%) of Entergy's COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I nuclear plant sites are leaking tritium and other longer-lived radioactive 2 isotopes,"

and further states that Entergy's "older" nuclear reactors located3 in the northern part of the U.S. are more prone to experience piping failures4 as a result of their age. How do you interpret this data?5 A: (TCE, MJB) Mr. Gunderson's statement implies that Entergy's operation of its6 facilities is worse than the rest of the industry and communicates a false7 impression of Entergy's performance to date on a fleet-wide basis and at Indian8 Point. First, Mr. Gunderson's assertion implies that the age of the nuclear reactor9 is the principal factor affecting the likelihood of piping failures.

However.10 experience with corrosion of piping that is buried or encased underground shows11 that the chemistry of the soil and groundwater, as well as the design of the piping,12 are more important contributors to corrosion than age. For this reason, plant13 buried piping programs, including the Entergy programs, focus principally on14 design and environmental conditions rather than on age. In this regard, an15 analysis of the NRC data on nuclear plant leaks identified in the June 2011 NRC16 Report shows that the age of a plant is not a correlated with leakage (see chart17 below). This chart plots the maximum tritium concentration experienced for18 plants with reported historical leaks versus the number of years from the start of19 commercial operation to the time of detection of the maximum tritium20 concentration.

Indian Point, the Entergy "northern" nuclear reactors (i.e. the21 "older" reactors in Mr. Gunderson's testimony),

and the other Entergy plants are22 identified separately from the remainder of the industry:

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL Years from Commercial Operation to MaximumTritium Concentration 20,000,000.

rL 18,000,000 ES16,000,000

-14,000,000 E 12,000,000

.......2 10,000,000

..'U1C *- 8,000,000 0.................................

.... ........

...... .. ........

.... ...........

.... ... .. .. .. ......... .....................................

.... .. .... ...40* Non-Entergy Plants* Indian Point* Other EntergyNorth PlantsA Ahihpr Fntrarm'V123456789101112136,000,000 PlantsnotlnF the North4,000,000 __.2 2,000,000

...... ..o,.0 4 8 12 16 20 24 28 32 36 40 44 48Years from Commercial Operation to Maximum TritiumThis figure provides a basis for two conclusions:

" The first conclusion is that the occurrence of maximum concentration oftritium is not dependent on the age of the plant. Many plants experienced their maximum concentration of tritium with operating times of less thantwenty years.* The second conclusion is that the performance of Indian Point and the otherEntergy plants is not worse than the industry

standard, and isindistinguishable from the other plants in the industry.

Despite the lack of any evidence that Entergy's "older" plants areexperiencing greater likelihood of leakage just because they are old, Entergy istaking a number of actions by implementing initiatives that will reduce thelikelihood of leakage and will provide greater assurance that any leakage is COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 detected.

These programs include both inspections to accurately determine the2 condition of piping and systems as well as physical modifications that will greatly3 reduce the likelihood of corrosion.

A physical modification that is in the process4 of being implemented is the addition of cathodic protection to selected buried5 piping. Cathodic protection is a method that is used to control the corrosion of a6 metal surface by making it the cathode of an electrochemical cell, basically, to7 transfer a preference for corrosion away from the pipe to another location.

This is8 accomplished by imposing a voltage between the metal to be protected with9 another more easily corroded metal. The result is that the rate of corrosion in the10 metal to be protected is either greatly reduced or eliminated.

For example,11 Entergy is adding cathodic protection to selected piping below ground at lower12 elevations of the plant where the water table is relatively high in comparison to13 the elevation of the buried piping. See Entergy SEP-UIP-IPEC Rev 0 "Indian14 Point 2 & 3, Underground Components Inspection Plan." (Ex. 79).15 Q: On page nine of his testimony, Mr. Gunderson states that: "In September 16 2005, Entergy discovered a crack in the Unit 2 pool and observed seepage of17 water out of the pool. Monitoring of liquid radioactive waste leaks did not18 begin at the Indian Point site until this time." Do you agree that monitoring 19 of liquid radioactive waste leaks did not occur until September 2005?20 A: (MJB) No, this statement is incorrect.

Upon completing the purchase on of the21 Indian Point units in November 2001, Entergy quickly concluded that the22 identified IPI SFP leakage was an issue that could be further addressed with a23 more effective and efficient system. After the previous owner discovered that the COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 IPI SFPs may be leaking to the subsurface and into the North Curtain Drain2 ("NCD") in the early 1990s, the NCD was re-piped to allow its discharge to be3 redirected from the storm drain system to internal storage.

This water was4 monitored, and monitoring indicated that the total release activity was below5 ALARA standards.

In addition, to further monitor this release, additional 6 Radiological Environmental Monitoring Program ("REMP")

sampling was7 implemented along the southern portion of the plant property proximate to the8 Algonquin pipe line.9 While routine monitoring and treatment of the NCD discharge was already10 ongoing and indicated that the discharge complied with regulatory limits, Entergy11 nonetheless decided to do more to address this release.

In 2002, Entergy12 formulated a plan and committed to, among other items, an analysis to validate13 the NCD removal efficiency, and monitoring of the NCD. As part of this plan,14 routine monthly sampling of the NCD, prior to processing, was implemented by15 April 2003, less than 18 months after Entergy assumed full ownership of the16 plant. To further this plan, a separate treatment system was designed, constructed 17 and installed on the NCD, and was fully operational by February 2004. This18 system was proactively implemented by Entergy, even though the release it19 addressed was below regulatory limits. Since it was installed, this system has20 been removing radionuclides captured from the IP 1 SFPs leakage prior to release21 of this water through monitored pathways.

This new system also allowed both the22 influent and effluent radionuclide levels to be routinely monitored on a monthly23 basis. As such, contrary to Mr. Gunderson's statement, Entergy was actively 12345678910S 111213141516171819202122___ 23COMB[NED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL monitoring the groundwater associated with IPI leakage well before 2005. Inaddition, not only was routine monitoring in place before 2005, but Entergy wasalso already capturing and treating the identified leakage.Q: On page 9 of his testimony, Mr. Gunderson states that Entergy's groundwater "monitoring detected elevated levels of cesium, strontium,

tritium, and other radionuclides well in excess of EPA MaximumContaminant Levels...

[at] hundreds and thousands times EPA limits."

Doyou agree with this statement?

A: (MJB) Mr. Gunderson's statement is misleading.

First, as explained above, Mr.Gunderson wrongly states that the leakage from Indian Point resulted in levels ofradionuclides "in excess of EPA Maximum Contaminant Levels."

EPAMaximum Contaminant Levels ("MCLs")

are for drinking water from defineddrinking water providers.

Indian Point is not a drinking water provider, and noplant-related radionuclides attributable to the Indian Point leakage have affecteddrinking water wells in the vicinity of Indian Point, let alone in excess of EPAMCLs. This has been confirmed by NYSDEC, NYSDOH, and the NRC. SeeNYSDEC 2007 Community Fact Sheet (Ex. 80) ("There are no known impacts toany drinking water sources [from Indian Point leaks]");

NYSDEC 2008Community Fact Sheet (Exh. 46) ("No drinking water sources are effected

[byIndian Point leaks]");

2008 NRC Inspection Report at vii (Exh. 34) ("Currently, there is no drinking water exposure pathway to humans that is affected by thecontaminated groundwater conditions at Indian Point Energy Center. Potablewater sources in the area of concern are not presently derived from groundwater COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 sources or the Hudson River, a fact confirmed by the New York State Department 2 of Health.").

Furthermore, the well data referenced by Mr. Gunderson (which are3 groundwater monitoring wells, and not drinking water wells), has not reached4 levels of "thousands times" EPA limits for drinking water. Ex. AG-Rad-l 1.5 Moreover, these data are taken from the early stages of the investigation, before6 the weld imperfection identified in the IP2 SFP liner was repaired and before the7 IP1 SFPs were defueled and drained.

Current conditions reflect decreasing trends8 in activity as a direct result of the interdiction measures completed by Entergy,9 with the result that Mr. Gunderson's statement is even less correct with respect to10 current conditions.

11 Q: On page nine of his testimony, Mr. Gunderson states that in 2006, the Unit 112 pool 'leak collection system' was found to be "completely failing."

Do you13 agree with this statement?

14 A: (TCE, MJB) No, this statement is incorrect and highly misleading.

As stated15 above, once the IPI SFPs were found to be leaking by the prior owner, the NCD16 and the sphere foundation drain sump ("SFDS")

were modified to monitor and17 collect groundwater and, only as appropriate, release it through monitored 18 pathways.

Shortly after completing the purchase of Indian Point, Entergy19 installed a system to treat the groundwater collected by the NCD. Entergy20 believed that the leak-collection system was adequately capturing the leakage21 from the Unit 1 SFPs until 2006, when it was discovered that some of the leakage22 had bypassed the system (as documented in the Site Investigation Report, Exhibit23 33). By this time, Entergy already had begun the project to empty and drain the 12345678910S 1112131415i6171819202122___ 23COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL Unit 1 SFPs as a proactive

measure, which was ultimately completed in 2008.While the NCD and SFDS were not fully successful in containing all the leakagefrom the IPI SFPs (as described in Exhibit 33), they did, and currently still do,contain the vast majority of this historical leakage and subsequent residualcontaminant migration.

More specifically, while the IPI SFPs still contained spent fuel and water,the NCD and SFDS were collecting 20 to 40 times more strontium than wasdischarging to the river through the groundwater.

These drains were thenparticularly effective during the period when the water level in the IPI SFPs hadto be raised to allow defueling.

During this period of time, the two drains werecapturing nearly 300 times as much strontium as was discharging to the riverthrough the groundwater.

In addition, even now that the IPI SFPs have beenemptied and are no longer a source of releases, these collection drains are stillserving to capture residual contamination partitioning off of the subsurface materials into the groundwater.

Currently, the NCD and SFDS drains are stillcapturing approximately ten times as much strontium as is discharging to the riverthrough the groundwater.

As such, these drains function as a valuable ongoingsource control portion of the Monitored Natural Attenuation at the Indian Pointsite, and routine sampling and analysis of their discharge is incorporated into theLong-Term Monitoring Program.Q: On pages 9-10 of his testimony, Mr. Gunderson states that "leaks from theUnit 2 refueling pool have also been a substantial problem."

Do you agreewith this statement?

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 A: (TCE, MJB) No. Mr. Gunderson's statement, and the out-of-context email cited2 in support of it, implies that the Unit 2 refueling pool has been a source of the3 leakage to groundwater that has occurred from the Unit 2 SFP. This is not the4 case. The email referred to in Mr. Gunderson's testimony is associated with5 leakage that has occurred from the Containment Reactor Refuel Cavity. This is a6 structure that is located entirely within the Unit 2 Containment

building, and is7 not part of the SFP or the building in which it is contained.

The Reactor Refuel8 Cavity is flooded with water each time the reactor is refueled, approximately for9 two weeks every two years. Leakage from the Reactor Refuel Cavity is collected 10 within the Containment structure, without release to the environment, and11 appropriately processed.

The Containment structure is constructed with walls that12 are approximately 4.5 feet thick of reinforced concrete with a steel liner. The13 basement of the containment incorporates a steel liner that is 0.25 inches thick,14 embedded three feet below the reinforced concrete floor, with an additional nine15 feet of reinforced concrete below the steel liner. The combination of the16 Containment drainage collection system and construction configuration of the17 Containment Structure is designed to ensure that any resulting leakage that occurs18 from the Reactor Refuel Cavity during the short period of time it is flooded is19 contained and is appropriately processed.

20 Q: On page 10 of his testimony, Mr. Gunderson states that "a buried pipe leak21 in 2009 resulted in more than 100,000 gallons of tritiated water being22 released to the Hudson River." Do you agree with this statement?

23 A: (TCE, MJB) Mr. Gunderson's statement is misleading.

In February

2009, COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 Entergy did identify a leak in an 8-inch diameter buried piping line at Indian Point2 Unit 2. This pipe returned water from the Condensate System pump discharge 3 and the Auxiliary Feedwater

("AFW") Pump discharge recirculation lines to the4 Condensate Storage Tank ("CST").

The leakage resulted in water containing low5 levels of tritium reaching the subsurface beneath the site, but that water was not6 released directly to the Hudson River as Mr. Gunderson claims. The cause of the7 pipe leak was attributed to external corrosion of the pipe at a location where the8 corrosion protection covering on the pipe was damaged during initial9 construction, combined with the water table elevation being at approximately the10 same elevation as the pipe. See Entergy Root Cause Analysis Report CR-IP2-11 2009-00666 (Ex. 81).12 While the total amount of leakage from the pipe cannot be determined 13 accurately, using the reference sources identified by Mr. Gunderson, an14 estimation of approximately 100,000 gallons is reasonable.

However, what Mr.15 Gunderson fails to state is that the water contained in this pipe had very low16 concentrations of tritium.

A review of sample analysis performed by the Entergy17 chemistry department of the leaked water identified varying levels of tritium, with18 the maximum value of the tested samples of 2,700 pCi/l, and with many other19 samples being significantly lower than this recorded value. As such, the release20 of tritium from this event is an extremely small value in comparison to Entergy's 21 permitted

releases, and as a result had insignificant affect on the health and safety22 of the public or the environment.

23 Moreover, as set forth in greater detail above, to preclude reoccurrence of COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I such an event in the future, Entergy is currently in the process of installing 2 cathodic protection to protect certain buried piping from external corrosion.

See3 IPEC SEP-UIP-IPEC, Rev 0 "Indian Point 2 & 3 Underground Components 4 Inspection Plan." (Ex. 79).5 Q: On page 10 of his testimony, Mr. Gunderson states that "a crack in a6 condenser blowdown line in 1988 resulted in 8400 gallons of contaminated 7 water leaking into the Hudson River." Do you agree with this statement?

8 A: (TCE, MJB) Mr. Gunderson's statement is misleading.

In March 1988. Indian9 Point Unit 2's prior owners determined that a leak in the Refueling Water Storage10 Tank ("RWST")

heating coil had allowed approximately 8400 gallons of RWSTII water to drain from the tank into the house service boiler system over a period of12 approximately 90 hours0.00104 days <br />0.025 hours <br />1.488095e-4 weeks <br />3.4245e-5 months <br />. Again, contrary to Mr. Gunderson's testimony, water13 did not leak into the Hudson River. Rather, this water drained into the house14 service boiler system, which eventually discharges into the discharge canal, is15 monitored, and is released pursuant to Indian Point's NRC license.

The former16 owner of the plant calculated the total activity released to the river to be17 approximately 0.028 curies. This is less than 0.01% of the Maximum Permissible 18 Concentration

("MPC").

This level of radioactivity is well within the limits of19 what Indian Point is routinely allowed to release.

See May 13, 2008 NRC20 Inspection Report at 4 (Ex. 34).21 Q: On page 11 of his testimony, Mr. Gunderson says that "Indian Point is more22 susceptible to washout which results in radioactive rain falling on landscape 23 and directly into Hudson River (i.e., clouds of tritiated water migrating COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I offsite and depositing tritium into the Hudson River)."

Do you agree with2 that statement?

3 A: (MJB, FOH) The term "washout" is simply a term that describes the natural result4 of mixing warm effluents and cooler air or rain. It is not a unique process to5 Indian Point or to radioactive effluents, and Indian Point is no more susceptible to6 this natural phenomenon than other facilities.

At Indian Point, washout can occur7 when small fraction of airborne tritium is condensed and removed from the air. It8 is useful to put this condensation into perspective relative to the overall effluent9 monitoring and dose limitation requirements.

In accordance with NRC10 regulations and guidance, Indian Point monitors a number of liquid and gaseousI I radioactive effluent pathways.

The concentration and the dose to an individual in12 the environment are generally too low to be detected; therefore, it is necessary to13 measure it at the effluent source prior to dilution.

NRC requires detailed14 calculations estimating the dose based on the effluent concentrations onsite. See15 USNRC Regulatory Guide 1.21, Regulatory Guide 1.109, NUREG-1301.

These16 calculated levels are subject to dose limitations contained in 10 CFR 50,17 Appendix I, as follows:18

  • Liquid Effluents (dose to a hypothetical offsite individual):

19 o 3 mrem/year whole body dose20 o 10 mrem/year highest organ dose21

  • Gaseous Effluents (dose to an offsite location where a member of the22 public may be present):

23 o 5 mrem/year whole body dose COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL o 15 mrem/year skin dose2 Tritium in liquid effluents is monitored and/or accounted for from monitor tank3 discharges and other similar planned releases, groundwater, and storm drains.4 Airborne effluents include releases from the ventilation systems from plant5 buildings and releases from steam generator blowdown.

The liquid and gaseous6 releases are converted into dose values by methods described in the Offsite Dose7 Calculation Manual ("ODCM"),

which is consistent with NRC guidance (USNRC8 Regulatory Guides 1.21 and 1.109, and NUREG- 1301). Tritium is included in the9 gaseous dose calculation.

In addition, the tritium condensed will be detected in10 storm drains and will be added to any dose from storm drain effluent estimates.

11 This may result in conservative double counting of the activity (accounted in12 gaseous effluents, then recounted in storm drains).

In any case, the total dose13 from all liquid releases is less than 1% of the 3 mrem/year whole body limit. The14 table below shows the doses from the 2010 Annual Radiological Environmental 15 Operating Report. The amount attributable to the condensation/washout 16 phenomenon is a small fraction of the liquid effluent dose.172010 IPEC LiquidNatural Background Effluent Limit Effluent Whole BodyType of Release (mrem/yr)

(mrem/yr)*

Dose** (mrem/yr)

Liquid 310 3 0.0032*Effluent Limits are the IOCFR50 Design Objectives, which are de facto NRC limits, and they areapplicable per unit; however, for purposes of this table, it is conservatively shown as a site limit.18 ** Sum of all units, all liquid pathways COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I Q: On page 13 of his testimony, Mr. Gunderson states the "level of2 [groundwater]

contamination will likely remain high for the foreseeable 3 future."

Do you agree with these statements?

4 A: (MJB) No. Contrary to Mr. Gunderson's misleading characterization, the5 "current" state of radionuclides in groundwater is not "high." In the context of6 evaluating a leak, a "high" level of contamination is best understood as one that7 has a negative effect on human health or the environment.

As set forth in detail in8 the initial pre-filed testimony of Dr. Hoffman, the radiation dose and impact on9 the environment from Entergy's groundwater contamination has always been10 extremely low. Mr. Gunderson alludes to "the breadth and extensive nature of the11 contamination" in reference to the plumes presented in the figures in Entergy's 12 quarterly groundwater reports.

As explained in these reports, the tritium plume13 boundary3 (i.e., the plume shading in Figure 6A of Exhibit 40), demarks the14 estimated boundary that separates tritium levels greater than 5,000 pCi/L from15 those below this value, a level of one-quarter the drinking water standard.

Two16 portions of this overall figure, which shows plume attenuation over time, are17 excepted and included below. As shown, the tritium plume boundary no longer18 even extends to the river.We focus here on the tritium plume boundary because the Unit 2 SFP leakage was the principal source of the tritium plume, and did not contribute to the strontium plume. I understand from counselthat the present proceeding concerns the continued operation of Units 2 and 3, and does not concernUnit 1.

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL TRITIUM PLUMEInvest. Data Thru 8Ecerpted from Fig 6A, Exhibit 40Ful figure indudos multesn tahpehot showing plumOvO( tifne aflor t wlinsiuonl of WdnuMtWrt Wake1n7'"!22....9..*p :~"'.'~ I4'*UNIT Itu -I5,000 pCiLPlume BoundaryAjKu7~I HtDSOIo..="I.-.~ ~-ft,' ~.5-2*I ~ -I ~;f& 5.ii ...*,.a-I,-5..2*IL-t-14,1*.1I.Ic~V RIVERI COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, Pli.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PI.DRADIOLOGICAL TRITIUM PLUMEQ2 -2010Excerpted from Fig GA. Exhlbit 40fijr* ir oudes mullp4 mnapshost showuo plum* deaeas.ov'r mae afitr t oWtron ct oaIf, L..ksA UNIT 1* .... ..I. -UNIT 2 tU ~Plume BoundaryI HUDSON RIVEU?-4II.HU.SON RIVER' ..,.2,,,n

-..;

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I Further, viewing both the tritium and strontium groundwater radionuclide 2 plumes in terms of their potential impact on the public health and the environment 3 demonstrates just how incorrect it is to claim that the contamination is "high." As4 shown on the figure below, the total dose from all sources released to the Hudson5 River from unplanned releases in 2010 was only two ten-thousandths (0.0002) of6 a single mrem. This is only 5 percent of the dose associated with radionuclides 7 released as part of normal plant operations.

The vanishingly small potential 8 impact of the groundwater release is stark when contrasted to the NRC permitted 9 dose level; the potential groundwater dose impact is less than 0.01% of the NRC10 permitted dose as set forth 10 CFR Part 50, Appendix

1. Finally, it is most11 important to recognize that even the NRC permitted level is less than one percent12 of the level experienced by the general public due to natural background exposure13 during every day activities.

As such, the potential exposure due to Indian Point14 radionuclides in groundwater is an insignificant fraction of natural background 15 radiation

exposure, as shown in the following figure:

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL Annual Dose (mrem/yr whole body320 r-....240200-120100803 0.0032 0.0002Natural NRC Effluents 10 EPA-40 CFR 190 NYSDEC DHSM NRC Design ObJf IPEC Uquld IPEC Ground &Background CFR 20 RADO-O5-10CFRSO App. F Effluents Dose Storm Water DoseLiquid 2010 -201012345678910Finally, the actual current levels of radionuclides detected in thegroundwater monitoring wells beneath the Indian Point site have shown dramaticdecreases since the groundwater investigation began in 2005 (as shown in the twographs below and further discussed in Exhibit 40 "Plume Total Activity

Analysis, pp. 3-19), with the result that the initially low levels of tritium and strontium inthe plumes have decreased even further in response to the interdiction measuresimplemented by Entergy.

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL

°

PLUME AC'TIVITY OVER TIME 89% Reduction "0.12.0."0 ........................

.+.. .-.-........

..No.% NoV-0* Nov.7 NovAs Nov.09 Nov-O N<ov-ISTRONTIUM PLUME ACTIVITY OVER TIME70% Reduction o0.0012 a Uppr Eatitow Lower UEmttiu00001000"s3700006. 4200000..'

Oct-OS Apr-" Oct.11 Apl-L0 00+/-0 Apibr-t Oct 122 Q: On page 13 of his testimony, Mr. Gunderson quotes from a GZA3 groundwater monitoring report that "approximately 70% of the sampling4 intervals exhibited an increase in Tritium levels."

Can you provide context5 for this quoted language?

6 A: (MJB) Yes. First, by quoting this statement out of context, Mr. Gunderson gives7 the impression that the current groundwater tritium plume is increasing.

In fact,8 the opposite is true. The 2010 Second Quarter Groundwater Monitoring Report9 referred to by Mr. Gunderson in his testimony, in discussing the "Unit 2 Tritium10 Plume Attenuation,"

concludes:

"Based on the data and analyses provided11 above, our conclusion is that the Tritium plume associated with the historic Unit 212 SFP leaks is undergoing

overall, long-term reductions in activity which are COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I consistent with Monitored Natural Attenuation (MNA), the remedial technology 2 selected for the IPEC Site." See Report at pp. 3-22 (Ex. 40).3 More specifically, while Mr. Gunderson quotes from the cited report that:4 "approximately 70% of the sampling intervals exhibited an increase in tritium5 levels,"

the report clearly states that this short term increase was as a result of an6 inadvertent mobile skid spill by a subcontractor (described more fully at pp. 10-1 17 of Mr. Barvenik's initial pre-filed testimony) and is not associated with the Unit 28 SFP or any other in-place system, structure, or component.

As the Report9 concludes:

"As such, the increase in total Tritium activity is likely to be transient 10 in nature, as was the surface spill [mobile R. 0. skid]. However, even accounting 11 for this current peak, the total Tritium activity in the plume has still decreased 2812 percent since Q2 2007, and has decreased by 86 percent when compared to the13 bounding level [concentrations at start of monitoring]

Tritium concentrations."

14 Id. pp. 3-19.15 Q: At several points in his testimony, Mr. Gunderson states that Entergy does16 not have adequate aging-management methods in place in order to be able to17 detect and prevent future leaks. Do you agree with this assessment?

18 (TCE, MJB) No. In fact, Entergy has developed and is implementing aging-19 management programs that include, among other things , inspecting the highest20 priority buried and underground piping and tanks at Indian Point. The Entergy21 Underground Piping and Tanks program was developed to ensure that the22 systems, structures, and components with the greatest potential for leakage to the23 environment are given top priority.

Other potential sources of radionuclides COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 gaining access to the subsurface, e.g., from leaks in above ground storage tanks,2 have also been identified and included in the program.

The prioritization leads to3 a direct examination of selected piping and tanks to determine the condition based4 on a direct examination of the component and the coating.

In many cases, this5 requires excavation of the piping. The potential for leaks from buried piping will6 be significantly reduced by the continuing implementation of Entergy's programs.

7 Active monitoring of wells will also be ongoing to provide notice of any increase8 in releases to groundwater.

Entergy's aging-management programs coupled with9 ongoing monitoring will be effective in reducing the likelihood of leaks and to10 assure that any leaks are detected so as to prevent any harm to the off-site11 environment.

Furthermore, Entergy's aging-management

programs, which are12 subject to regulation by the NRC, are being reviewed in connection with13 Entergy's federal relicensing proceeding.

14 Q: Mr. Gunderson states that Monitored Natural Attenuation "is not a valid15 remedial approach."

Do you agree with this statement?

16 (MJB) No. In direct contrast to Gunderson's statement, Monitored Natural17 Attenuation

("MNA") is a recognized and proven remedial approach that allows18 natural processes to reduce contaminant concentrations.

EPA has long recognized 19 MNA as an appropriate remedial approach to reduce contaminant concentrations.

20 EPA's guidance on the use of Monitored Natural Attenuation (MNA), OSWER21 Directive 9200.4-1 7P, states that:22 "The term 'monitored natural attenuation,'

as used in this Directive, 23 refers to the reliance on natural attenuation processes (within the COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I context of a carefully controlled and monitored site cleanup2 approach) to achieve site-specific remediation objectives within a3 time frame that is reasonable compared to that offered by other more4 active methods.

The 'natural attenuation processes' that are at work5 in such a remediation approach include a variety of physical, 6 chemical, or biological processes that, under favorable conditions, 7 act without human intervention to reduce the mass, toxicity, 8 mobility, volume, or concentration of contaminants in soil or9 groundwater.

These in-situ processes include biodegradation; 10 dispersion; dilution; sorption; volatilization; radioactive decay; and11 chemical or biological stabilization, transformation, or destruction of12 contaminants."

(Ex. 82 at p. 3).13 OSWER Directive 9200.4-17P also states that: "EPA advocates using the14 most appropriate technology for a given site. EPA does not consider MNA to be a15 'presumptive' or 'default' remedy-it is merely one option that should be16 evaluated with other applicable remedies.

EPA does not view MNA to be a 'no17 action' or "walk-away"

approach, but rather considers it to be an alternative 18 means of achieving remediation objectives that may be appropriate for specific, 19 well-documented site circumstances where its use meets the applicable statutory 20 and regulatory requirements."

Id at 1.21 Moreover, also contrary to Mr. Gunderson's statement, NYSDEC22 specifically endorsed M`NA as the appropriate remedial approach for addressing 23 the tritium and strontium plumes: "With the removal of the active contamination COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 source, Entergy's planned use of monitored natural attenuation is an acceptable 2 approach to managing the remaining Sr-90 and H-3 plumes."

See NYSDEC3 Community Fact Sheet (Ex. 32).4 Q: Does GZA continue to believe that Monitored Natural Attenuation is the5 correct remediation strategy for Indian Point's groundwater contamination?

6 (MJB) Yes. GZA selected, and continues to recommend, Monitored Natural7 Attenuation as the remediation strategy for Indian Point because:8 0 Interdiction measures to date have eliminated and/or controlled the9 identified active sources of groundwater contamination.

10

  • Groundwater flow at the Site precludes off-Site migration of contaminated 11 groundwater to the North, South or East.12 0 Consistent with the Conceptual Site Model, no Indian Point contaminants 13 have been detected above regional background in any of the off-Site14 monitoring locations or drinking water supply systems in the region.15 0 The only on-Site exposure route for the documented contamination is16 through direct exposure.

Because the majority of the Site is capped by17 impermeable

surfaces, there is no uncontrolled direct contact with18 contaminants.

19 9 Our studies indicate that under existing conditions, the spatial extent of the20 groundwater plume should continue to decrease with time. Overall21 decreases in the plume have been observed since the original22 recommendation for MNA was made.

COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL 1 Groundwater is not used as a source of drinking water on the Site or in the2 immediate vicinity of the Site, and there is no reason to believe that this3 practice will change in the foreseeable future.4 At the locations where contaminated groundwater discharges to the Hudson5 River, the concentrations have been, and will continue to be, reduced by sorption, 6 hydrodynamic dispersion,

dilution, and radioactive decay. As set forth in my7 initial pre-filed testimony, and in the pre-filed testimony of Dr. Hoffman, given8 the extremely small dose to the public and aquatic organisms resulting from the9 unplanned
releases, the use of MNA will provide reasonable assurances that10 Entegy's unplanned releases will comply with New York water quality standards I and other applicable law.12 IV. Rebuttal to Testimony of Mr. Kolakowski 13 Q: On page 11 of his testimony, Mr. Kolakowski claims that the radionuclides 14 that have reached the Hudson River from groundwater as described in15 GZA's 2008 Site Investigation Report are "high-level radioactive waste," and16 that their discharge is proscribed by law. First, do you agree that the17 radionuclide releases described in GZA's 2008 Site Investigation Report are18 "high-level radioactive waste" as that term is defined in ECL § 17-0807?19 A: (FOH) No. ECL § 17-0807, which is part of New York State's legislation 20 implementing SPDES, prohibits "the discharge of any radiological, chemical or21 biological warfare agent or high-level radioactive waste, as such terms are defined22 by the Act or pursuant thereto."

As set forth in ECL § 17-0801, "the Act"23 referred to in § 17-0807 is the federal Clean Water Act. The federal Clean Water COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I Act has an identical provision, which prohibits any permit from authorizing the2 discharge of high-level radioactive waste. See 33 U.S.C § 1311. While the Clean3 Water Act does not define "high-level radioactive waste," EPA regulations define4 "high-level radioactive waste" according to the definition contained in the5 Nuclear Waste Policy Act of 1982. See 40 CFR 191.02(h)

("High-level 6 radioactive waste, as used in this part, means high-level radioactive waste as7 defined in the Nuclear Waste Policy Act of 1982 (Pub. L.97-425)").

The8 Nuclear Waste Policy Act defines "high-level radioactive waste" as:9 "(A) the highly radioactive material resulting from the10 reprocessing of spent nuclear fuel, including liquid waste produced11 directly in reprocessing and any solid material derived from such12 liquid waste that contains fission products in sufficient 13 concentrations; and14 (B) other highly radioactive material that the Commission, 15 consistent with existing law, determines by rule requires16 permanent isolation."

17 42 U.S.C. § 10101(12).

The water containing principally tritium and strontium 18 identified in GZA's 2008 Site Investigation Report is not "high-level radioactive 19 waste" as that term is defined by law.20 Q: While Entergy believes that NYSDEC's legal position that Entergy's 21 unplanned radionuclide releases are proscribed by law is erroneous, are22 there measures that could be taken during the license renewal term to23 provide reasonable assurances that groundwater containing these COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I radionuclides will not reach the Hudson River?2 A: (MJB) Yes. As set forth in my initial prefiled testimony, the Indian Point site is3 primarily underlain by bedrock.

As such, the volume of groundwater moving4 beneath the site toward the Hudson River is constrained to flow through relatively 5 thin fractures in the bedrock.

This, in part, accounts for the small total6 radionuclide activity actually reaching the Hudson River from groundwater on an7 annual basis. Further, as demonstrated in the Site Investigation Report (Ex. 33).8 the groundwater containing the identified tritium and strontium plumes discharges 9 to the river through a relatively small section of waterfront along the perimeter of10 the site.11 Based on my knowledge of the Indian Point site hydrogeology, and my12 experience with groundwater remediation, I have performed an analysis of13 possible measures that could be taken to prevent these radionuclides from14 reaching the Hudson River. Based on that analysis, I have concluded that Entergy15 could install a sufficient number of groundwater extraction wells so as to contain16 these radionuclides on-site by establishing a groundwater gradient reversal.

A17 gradient reversal in this context refers to a change in the direction of groundwater 18 flow; rather than the current flow from the site to the Hudson River, the extraction 19 wells would result in groundwater flowing from the Hudson River toward the20 wells located on-site.

Entergy would then extract the groundwater containing 21 radionuclides from the subsurface, and process that groundwater in an appropriate 22 manner. I believe that the installation of such extraction wells would provide23 reasonable assurances that groundwater containing these radionuclides will not COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I reach the Hudson River as a result of the operation of Indian Point during the2 license renewal term.3 Q: Are extraction wells a proven, reliable method for creating a gradient4 reversal in order to prevent groundwater containing contaminants from5 moving away from a site?6 A: (MJB) The use of extraction wells specifically to prevent groundwater from7 moving away from a site is, and has been a commonly employed technique for8 approximately 40 years, including at EPA superfund sites, as well as many other9 non-superfund sites. In its Report No. 2003-P-000006 dated March 27, 2003,10 EPA concluded that: "Pumping contaminated groundwater from the subsurface and11 treating the water to rid it of contamination has been a generally accepted means of12 remediation in the Superfund program.

In January 2002, EPA reported that although13 the number of Records of Decision selecting the pump-and-treat remedy decreased 14 from 92 percent in 1986 to 30 percent in 1999, pump-and-treat remedies are still the15 most common groundwater cleanup remedies used at National Priority List [NPL]16 sites. ...EPA estimates that over 700 groundwater pump-and-treat systems are17 operating at National Priority List sites." (Ex. 83). This equates to the use of18 groundwater extraction for containment and/or cleanup at 57 percent of the NPL sites19 (700/1233).

In this regard, I have been personally involved in the investigation 20 and remediation design for a number of superfund sites, as well as state-led 21 remediation sites, employing this technique, beginning in the 1970s. One such22 site, Grace Chemical and the Town of Acton, Massachusetts, was the second EPA23 NPL enforcement action in the nation resulting in a remedial action consent COMBINED PREFILED REBUTTAL TESTIMONY OF THOMAS C. ESSELMAN, PH.D., ANDMATTHEW J. BARVENIK, AND F. OWEN HOFFMAN; PH.DRADIOLOGICAL I decree. Another such site, the Gilson Road/Sylvester Site, was the nation's first2 cooperatively funded Superfund hazardous waste site hydrodynamic 3 isolation/cutoff wall remediation.

As part of this remediation of chlorinated 4 solvents in groundwater, GZA used extraction wells to capture and contain the5 contaminated groundwater flowing through the bedrock on site. This work was6 completed on behalf of the State of NH and the EPA. In recognition of this work,7 GZA was awarded the ASCE Outstanding Engineering Achievement Award, the8 ACEC New England Grand Conceptor Award and the National ACEC Grand9 Award for Engineering Excellence, as well as a $250,000 sole-source R&D full-10 scale test section contract by EPA.1112 END OF TESTIMONY NYS Department of Environmental Conservation.

Community Fact SheetPrepared for the 9/19/07 NRC Relicensing Environmental Scoping Meeting forIndian Point Energy CenterIIie. .--.. IIf you would like more information

  • about.the DEC or DOH activities..

i:relative to the groundwater

--investigations at Indian Point pleasecontact one of the .representatives I listed below.Groundwater Investigation The New York State Department of Environmental Conservation (DEC). and the New York StateDepartment of Health (DOM) have been participating in the ongoing groundwater investigation ofradionuclide contamination in groundwater under the plant, and the release of that water to theHudson River. The purpose of our involvement is to protect the interests of the citizens and theenvironment of the State of New York by helping to ensure that Entergy performs a timely,comprehensive characterization of site groundwater contamination, takes appropriate actions toidentify and stop the sources of the leak, and undertakes any necessary remedial actions.Mr. Tim RiceEnv. Radiation Specialist, Project LeadNYSDEC*Div. of Solid & Hazardous Materials 625 Broadway

.., ..Albany. NY 12233-7255 (518) 402-8579 Mr. Larry Rodn-mann Engineering G4logistNYSDECDiv. of Solid & Hazardous Materials 625 BroadwayAlbany, NY 12233-7258 (518) 402-8594larosenm@gw.dec.state.ny.us

.!r. Robert Snyder *" "

Specialist

...,BureauWof Env. RadiatbionProtection

  • 60 River Street:Troy. NY- 12180(800)458-1158 ext. 27550BERP@health.state.ny us* Background/History.

Theilndian Point Energy Center is a-nddalr energy powered electrical ge n tiegstation located in'tuhan: -NY. It is wholly owned byEntergy Nucear. There are threecommerCial reactors on the pr6perty.

Unit. I stopped operation in the 1.970sand is currently maintained In~ari un-fueled state pending.,.

.* .:.decommissioning.

Spent.fuel.still remains in storagein the spent'fuel Pool:. Units.2 & 3 continue togenerate electricity.

Ehtergyhas

  • applied to the Nuclear Regulatory

'Commission (NRC) to renew its:operating license for both operating Units for an additional 20 years.The investigation of the leaks from.the Unit 1 & 2 spent fuel pools intogroundwater oni-site is nearing;.completion..

Entergy is performing ther!vestigation under the direct*egulatoryauthority of the NRC, with* tate review provided by DEC andSDOH.GeneralIn 2005 Entergy waspreparing to install a newcrane at the Unit 2 SpentFuel Pool (SFP) to supportits dry cask spent fuelstorage operation.

Duringthat work, Entergydiscovered water leakingfrom a crack in the exteriorof the concrete SFP wall.The subsequent investigation identified tritium *(radioactive hydrogen or H-) contamination ingroundwater on-site comingfrom the vicinity of the Unit2 SFP and radioactive Strontium-90 (Sr-90) andother isotopes coming fromthe Unit 1 SFP.Entergy hired a hydrology contractor who, withinvolvement from the NRC,USGS, DEC, and DOH,determined that there weretwo active groundwater plumes on site;-a H-3 plume coming fromthe Unit 2 SFP, and-a Sr-90 plume coming formthe Unit 1 SFP.State Activities

  • Collecting split samples ofwater from on-site and off-site monitoring wells,focusing on wells alongthe riverfront and to thesouth of the sources of theleaks,* Recommended thatEntergy enhance itsHudson River fishsampling program thisyear to help answerquestions regarding potential Sr-90 impacts.* Collected split samples offish flesh from thisenhanced effort, as well asunilaterally analyze bonesamples.* Analyzing samples at theDOHWadsworth Centerpublic health laboratory.

Compare results withEntergy's.

  • Participating in andprovide recommendations on the hydrology investigation into.theextent and movement ofcontaminated groundwater on the site, including independent review ofcontractor work.4! Performed an independent assessment of potential public health impacts..Participating in periodicstakeholder calls andmeetings.

Key Findings to Date" There are no residential ormunicipal drinking waterwells or surface reservoirs near the plant.* There are no knownimpacts to any drinkingwater source." No contaminated groundwater is movingtowards surrounding properties.

" Contaminated groundwater is moving into the HudsonRiver." Public exposure can occurfrom the groundwater entering the Hudson Riverthrough consumption offish.* The DOH has confirmed Entergy's calculated doseto humans from fish." Sr-90 levels in fish nearthe site (18.8 pCi/kg) areno higher than those in fishcollected from background locations across the state." Recent Sr-90 data in fish islimited.

(New samples arebeing analyzed.)

Ongoing Activities

  • Coordinate an enhancedfish sampling effort." Continue to participate inpublic communication activities.

" Continue to monitorEntergy's progress ondetermining the source ofthe Unit 2 H-3 plume." Participate in the finalassessment of groundwater conditions on the site.* Evaluate any plans for leakrepairs or site remediation.

" Continue to provide anindependent source ofinformation for thecounties and otherinterested parties on topicsrelated to the groundwater investigation.

  • Evaluate Iong-term momtonng plans..

Ia a a- 0 a*ujEnhanced Fish SamplingDEC and DOH worked withEntergy and the NRC to developthis year's enhanced fish samplingeffort. The intent is to meet thesethree goals: 1. develop a morescientifically rigorous samplingprogram,

2. evaluate thelappropriateness of Entergy's environmental background (control)
location, and 3. perform a thoroughevaluation of this potential humanexposure pathway.

To accomplish this:Sampling focused on speciesthat do not migrate oversignificant distances in the riverand are expected to be presentat all sampling locations, or areof commercial or recreational importance, including stripedbass, blue crab, carp, whiteperch, American eel, catfish,and sunfish." Samples were collected fromthe area near Indian Point, theexisting upstream control area.near Roseton, and from far-upstream near the Village ofCatskill.

(see map)* Samples of edible portions ofeach species at each locationare being analyzed by NYS,NRC, and Entergy.* Bone samples are beinganalyzed by NYS.* Both flesh and bone are.being analyzed for Sr-90 and gammaemitting radionuclides.

  • NYS will review thedata toassess the currentenvironmental monitoring
program, and to evaluate anypotential impacts to publichealth and the environment.

Fish Results to DateNRC fish results have beenreceived and show no detectable Sr-90 or gamma emitters.

Entergy andState analyses are not yet available from our respective labs, but will be.reported to stakeholders whenreceived.

Regulatory Authority The federal government regulates the use of radioactive materials atIndian Point under the federalAtomic Energy Act.At present, there are no off-sitegroundwater

impacts, and releasesof contaminated groundwater to theriver do not violate state surfacewater standards for H-3 (20,000pCi/l) and Sr-90 (8 pCi/l).Remedial ActionsTritiumBecause tritium (H-3) is actually anisotope of hydrogen, it is notfeasible to remediate H-3contaminated groundwater otherthan by removing the source ofcontamination.

Entergy hasidentified a leak in a portion of theUnit 2 SFP (a probable source ofthe H-3 plume) and will repair thisleak (and any others discovered) after completion of its inspection ofthe stainless steel liner.Strontium Unlike H-3, Sr-90 contamination can be removed from water throughreadily available treatment processes.

Entergy has reduced thesource of the Sr-90 plume by >97%through operation of a watertreatment system in the Unit 1 SFP.This has resulted in measurable reductions in Sr-90 groundwater concentrations.

The company hasalso agreed to remove the spent fueland remaining contaminated waterfrom the'Unit I SFP in 2008,stopping the contamination source.The agencies will be monitoring theprogress of these sourceremediation efforts closely and willbe reviewing and commenting onthe final site hydrology report andlong-term monitoring plans Entergyis anticipated to finalize in the nextcouple Of month. Ask S a S a a a aw U I IOU U pg pg a640 620 mrom560480400320 NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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.. .. ..In the Matter ofEntergy Nuclear Indian Pont 2. LLC, EntergyNuclear Indian Point 3. LLC, and EntergyNuclear Operations, Inc.'s Joint Application for CWA §401 Water Quality Certification DEC App. Nos.3-5522-00011/00030 (IP2)3-5522-00105/00031 (IP3)PROPOSED FINDINGS OF FACT OFENTERGY NUCLEAR INDIAN POINT 2. LLC, ENTERGY NUCLEAR INDIANPOINT 3, LLC, AND ENTERGY NUCLEAR OPERATIONS.

INC.RADIOLOGICAL ISSUESENTERGY NUCLEAR INDIAN POINT 2, LLCENTERGY NUCLEAR INDIAN POINT 3, LLCENTERGY NUCLEAR OPERATIONS, INC.By Their Attorneys, John C. Englaocder, Esq4.Elise N. Zoli. Esq.William J. Trach. Esq.Robert H. Fitzgerald, Esq.GoodwiniProcter I.,LPExchange PlaceBoston. MA 02109-2881 (617) 570-1000Dated: April 27, 2012 TABLE OF CONTENTS1. Nuclear Regulatory Commission

("NRC') Regulation of Indian PointPlanned and Unplanned Radiological Discharges

....................................................

I11. The Indian Point Site .........................................................................................................

1111. Unplanned Releases of Radiological Materials at Indian Point ....................................

2IV. Enter "'s Corrective Actions ....................................................................................

15V. Entergy's Long Term Monitoring Program ............................................................

17VI. Monitored Natural Attenuation

..................................................................................

19VIL. WQC Process ..............................................................................................................

21VIII. Hearing Testimony

....................................................................................................

24A .W itnesses

........................................................................................................

24B. Compliance with Applicable Dose Limits ......................................................

29C. Absence of Impacts to the Best Usages of the Hudson River ................................

32D. Inapplicability of ECL § 17-0801(L) and 6 NYCRR §750-1.3(a)

.....................

40E. Inapplicability of ECL § 17-0801(4)

.............................

40F. Inapplicability of ECL § 17-0501 as a separate basis for the Notice ................

40G. Inapplicability of EPA's Safe Drinking Water Standards

...............................

41i

!. Nuclear Regulatory Commission

("NRC") Regulation of Indian Point Planned andUnplanned Radiological Discharges.

1. Indian Point Units 2 and 3 have operated pursuant to 40-year licenses issued bythe Nuclear Regulatory Commission

("NRC") vith nominal expiration dates of September 28,2013 and December 12, 2015. respectively, subject to renewal.

Entergy Ex. #161,1 JointApplication Form, Supplemental Response to Item 9.2. Operations at Units 2 and 3 result in "planned" or routine releases ofradionuclides incident to everyday operations, as well as "unplanned" or non-routine discharges that occur as a result of operational occurrences such as leaks or spills. Hoffman Prefiled at 9.23. Both planned and unplanned releases are subject to NRC regulation and oversight.

Hoffman Prefilcd at 9; NRC Regulatory Guide 1.21 (Measuring, Evaluating, and Reporting Radioactive Material in Liquid and Gaseous Effluents and Solid Waste) at §§ .5 (Monitoring Leaks and Spills) and 1.10 (Abnormal Releases and Abnormal Discharges);

NRC Policy Issue,"'Senior Management Review of Regulatory Approach to Groundwater Protection,"

SECY-I I-00 19. Feb. 9. 2011, Enclosure 2 at p. 2; Entergy Ex. #32 at vii; Riverkeeper Ex. #7 at 4-9.4. The New York State Department of Environmental Conservation

("NYSDEC")

has never regulated Indian Point's radiological releases through the State Pollutant Discharge Elimination System ("SPDES")

permit program, but rather consistently has maintained that ithas no authority to do so. Entergy Ex. #120. at 90-91.IL. The Indian Point Site5. The Indian Point Energy Center is located on the eastern bank of theHudson River, in the Village of Buchanan.

in upper Westchester County. New York. EntergyElx. #161. Att. A and B.References to record exhibits are cited "'Party Namel Ex...Rcferenccs to prefiled testimony are cited "[Witness Name] Prefited atI

6. IPEC consists of three nuclear reactors and associated equipment, referred to asUnits 1, 2 and 3. Hearing Tr. at 2699 (Kolakowski) 3; Entergy Ex. #33 at 2.7. Unit I ceased operations in October 1974 and is currently in safe storagecondition

("SAFSTOR").

Kolakowski Prefiled at 10. Hearing Tr. at 2709 (Kolakowski);

Barvenik Prefiled at 8. Entergy Ex. #33 at 129; Entergy Ex. #34 at §4.0.1 (Report Details).

8. Indian Point does not utilize groundwater either tbr plant operations or for potablewater. Entergy Ex. #33 at 13.9. There are no active potable water wells or other production wells in the vicinity ofIndian Point. Entergy Ex. #33 at 13-14.10. In the vicinity of Indian Point, the Hudson River is not used for drinking waterpurposes.

Entergy Ex. #46.H I. Drinking water in the area surrounding Indian Point is supplied from surfacewater reservoirs located in Westchester County and the Catskills region. Entergy Ex. #33 at 14.The nearest of these reservoirs is the Camp Field Reservoir, which is located 3.3 miles north-northeast of Indian Point, in a cross-gradient direction (i.e., perpendicular to the direction thatgroundwater flows), several watersheds away and at an elevation hundreds of feet above theIndian Point power block. Entergy Ex. #33 at 14.III. Unplanned Releases of Radiological Materials at Indian Point12. Indian Point's three Units include spent fuel pools ("SFP"),

which are structures typically consisting of two containment barriers

-one of thick-walled concrete and one of steel -used to store on a temporary basis spent fuel from the operation of the nuclear reactor.

EntergyEx. #32 at Report Details.

p. 2; Hearing Tr. at 3163-3164 (Esselman);

Hearing 'fr. at 3171-3172 Ref'erences to the hearing transcripts are cited "Hearing Tr. at(Witness Name)."

(Esselman).

The Unit 1 SFP complex was constructed of reinlorced concrete with an internallow permeability

coating, but its design did not include a stainless steel liner. Entergy Ex. #33 at102. The Unit 2 SFP consists of four- to six-feet thick concrete that is heavily reinforced withsteel rebar. The inside of the SFP is lined with 1/4-inch stainless steel plate anchored to theconcrete such that the plate and concrete are in contact, with only a small interstitial areabetween.

Entergy Ex. #32 at 2 (Report Details);

Entergy Ex. #33 at 92. The Unit 3 SFP issimilar in design to the Unit 2 SFP but also includes a tell-tale leak collection system designed tocollect any leakage through the stainless steel liner. Entergy Ex. #32 at 14; Barvenik Prefiled at9-10.13. In August 2005. Entergy began excavating adjacent to the south wall of the Unit 2SFP to install a crane for Unit 2's dry cask storage system. Entergy Ex. #31 at 1: Entergy Ex.#32 at iv; Barvenik Prefiled at 7.14. During the excavation, concrete shrinkage cracks (1/64" wide and seven feet inlength) were observed to exhibit moisture in and near the cracks. Entergy Ex. #31 at 1; EntergyEx. #32 at iv.; Barvenik Prefiled at 7-8; Hearing Tr. at 3912 (Barvenik).

15. Entergy installed a temporary device to collect any fluids emanating from thecracks and prevent the addition of these materials to the groundwater.

Barvenik Prefiled at 8.The first measureable liquid sample collected by the device was 12 ml collected on September

13. 2005. During the next several weeks, the average leakage rate was between I and 2 liters perday, which then declined to minimal by late December 2005. Entergy Ex. #032 at I (ReportDetails).
16. The primary radioactive constituent of the moisture was identified as tritium.ELntcruy Ex. #32 at iv.
17. Tritium is a naturally occurring radioactive form of hydrogen that is producednaturally in the atmosphere when cosmic rays collide with air molecules.

As a result. tritium isfound in very small or trace quantities in water throughout the world. Tritium is also a byproduct of the production of electricity at nuclear power plants, such as Indian Point. Tritium has a half-life of 12.3 years and emits a weak form of radiation.

a low-energy beta particle similar to anelectron.

The tritium radiation does not travel very far in air and cannot penetrate the skin.Because tritium emits a very weak form of radiation and leaves the body relatively quickly.

it isone of the least dangerous radionuclides.

Hoffman Prefiled at 4.18. A permanent collection box was installed around the shrinkage cracks in January2006, and all collected water is piped to an adjacent building where it is collected for finaldisposition.

Barvenik Prefiled at 8; Entergy Ex. #32 at 2 (Report Details).

19. Entergy retained GZA GeoEnvironmental, Inc. ("GZA") to perform ahydrogeologic investigation at Indian Point with respect to the radionuclides evident in themoisture from the shrinkage cracks at the Unit 2 SFP. Hearing Tr. at 3912-3913 (Barvenik).
20. The purpose of the hydrogeologic investigation was to study the nature, scope,distribution and quality of groundwater at and moving from the Indian Point site, specifically asit related to radionuclides associated with the Unit 2 SFP. Barvenik Prefiled at 4-5; Hearing Tr.at 3912-3913 (Barvenik);

Entergy Ex. #33 at 1-2.21. The fundamental components of the groundwater investigation, theimplementation of which "'as overseen by NRC and involved stakeholders such as NYSDECand the New York State Department of IHcalth (."NYSDOH"),

generally included:

a. T'he drilling of boreholes into the subsurface to extract geological materials tbr study;4
b. The installation of instruments for the determination of radionuclide concentrations, groundwater elevations, groundwater flow direction and speed; andc. The preparation of a Conceptual Site Model, which embodies the understanding ofthe nature. distribution and quality of groundwater moving below the Indian Pointsite.Ilearing Tr. at 3913 (Barvenik);

Barvenik Prefiled at 1-5, 8, 12-13: see also Entergy Ex. #33 at6-8 (Scope of Work for hydrogeological investigation);

Entergy Ex. 434 at iv.22. Several months into the investigation, strontium-90 was detected in a groundwater sample. Entergy Ex. #32 at 9.23. Strontium is a soft, silvery metallic element found in rocks, soil, dust, coal andoil. Strontium-90 is a radioactive form of strontium with a half-life of 29 years, and is formed innuclear reactors or during the explosion of nuclear weapons.

The vast majority of strontium-90 in the environment and food chain (approximately 99%) is a result of weapons testing thatoccurred worldwide.

Strontium-90 from releases of nuclear power plants is a small fraction ofthe strontium-90 in the environment.

Hoffman Prefiled at 5.24. As a result of the detection of strontium-90, GZA's hydrogeologic investigation was expanded to investigate the source of the strontium-90 and cover potential radionuclide releases from all three Units, and was performed under NRC's oversight over the two-yearperiod from September 2005 to September 2007. Entergy Ex. #33 at 1; Hearing 'Tr. at 3913-3914 (i3arvenik);

Barvenik Prefiled at 12-13; Entergy Ex. #34 at iv. NRC performed independent (or split) sampling, laboratory analysis and review of the information obtainedpursuant to the hydrogeologic investigation.

Entergy Ex. #32 at 4-5 (Report Details).

25. On January 7. 2008, GZA issued its "Hydrogeologic Site Investigation Report"(the "'GZA Report"),

providing the details of its investigations and the conclusions reached as aresult. Entergy Ex. #33.26. The GZA Report included GZA's Conceptual Site Model ("CSM"),

a description of the site understanding.

including that regarding the hydrogeologic setting at and in the vicinityof Indian Point, general groundwater flow patterns in the vicinity of Indian Point, identified unplanned and planned radionuclide release sources at Indian Point, radiological contaminants ofpotential

concern, and identified receptors, including the Hudson River. Entergy Ex. #33 at 9.27. As information was collected during the hydrogeologic investigation, the CSMwas updated and refined to lit conditions observed in the field and, by the conclusion of theinvestigation, the CSM was consistent with both the site-specific project data and published dataon the hydrogeology of the Indian Point area. Entergy Ex. #33 at 9. The CSM is essentially an"'understanding" of hydrogeologic conditions at and around the Indian Point site, as they relate tothe movement of groundwater and radionuclides attributable to Indian Point. Barvenik Prefiledat 4.28. The conclusions from the GZA Report include the following:
a. Two plumes of radiologically contaminated water, the first primarily contaminated with tritium ([1-3) ("tritium plume") and the second primarily contaminated withstrontium-90 (Sr-90) ("strontium plume").

Entergy Ex. #33 at 114.b. The tritium and strontium plumes ultimately discharge to the Hudson River, but donot otherwise migrate f'rom the Indian Point site to the North, East or South. EnterevEx. #33 at viii. 114, 127; 1 learing lr. at 3925-3926 (Barvenik);

see also Entergy Ex.#38 at 1-1; Entergy Ex. 940 at I-1.6

c. The source of the tritium plume was the Unit 2 SFP and the source of the strontium plume was the Unit I SFP. Entergy Ex. #33 at viii, Barvenik Prefiled at 5-6; HearingTr. at 2708 (Kolakowski).
d. Unit 3 was not a source of radionuclide groundwater contamination at Indian Point.Entergy Ex. #33 at viii. 128; Barvenik Prefiled at 9-10: Hearing Tr. at 2703(Kolakowski).
29. As part of an extensive public process involving a variety of stakeholders.

NYSDEC (with support from NYSDOIH) actively monitored Entergy's hydrological investigation, independently analyzed split samples from onsite and offsite monitoring wells, andmade recommendations on the work being performed.

Hearing Tr. at 3920-3922 (Barvenik);

Entergy Ex. #32 at 5, Entergy Ex. #34 at § 4.0.3(a)

(Report Details);

Entergy Ex. #46; EntergyEx. #80.30. Among the individuals at NYSDEC who participated in the investigation was TimRice of NYSDEC's radiation protection section.

Hearing Tr. at 3921-3922 (Barvenik).

31. Mr. Rice did not testify on behalf of NYSDEC Staff in this proceeding.

HearingTr.. passim.32. Based upon its own analysis, NYSDEC and NYSDOH made several findings, including the following, each of which is consistent with the findings of Entergy and GZA:a. Groundwater from the site flows cast to west and does not flow to surrounding properties; Entergy Ex. #46 at 1.b. Contaminated groundwater is moving into the Hudson River, but the levels ofradionuclides in the River are below state surface water standards for tritium andstrontium; Entergy Ex. #46 at 1.7

c. No drinking water sources are affected because the Hudson River in this area isbrackish and is not used as a drinking water source: Entergy Ex. #46 at 1.d. Because the Hudson River is not used as a drinking water source in this area, the onlypathway for a dose to the public from groundwater entering the River is through fishconsumption; Entergy Ex. #46 at 1.e. Entergy's characterization of the extent and levels of contamination reported in theGZA Report is acceptable; Entergy Ex. #46 at 1.f. With the removal of the active contamination source, Entergy's planned use ofmonitored natural attenuation is an acceptable approach to managing the remaining strontium and tritium plumes; Entergy Ex. #46 at I.g. NYSDOH confirmed Entergy's calculated doses to the public through fishconsumption which are less than 1% of the NRC dose limits; Entergy Ex. #46 at I.h. An enhanced fish sampling effort in 2007 showed no significant difference betweenstrontium-90 in the flesh of fish caught near the site and fish caught as far as 70 milesupstream.

Entergy Ex. #46 at 2.33. NYSDEC also conducted an enhanced, independent radiological survey of severalaquatic species in the lower Hudson River and published the results of this assessment inNovember 2009 ("2009 Fish Report").

Entergy Ex. #39.34. The 2009 Fish Report reached two conclusions:

a. There are no apparent excursions above criteria for the protection of biota based onthe radionuclide data available.

The levels of radionuclides

-including

[strontium-901 -were two to five orders of magnitude lower than criteria established forprotection of freshwater ecosystems.

8

b. There were no spatial differences in concentrations of [strontium-90]

and (radium-224] in resident fish from the three locations sampled in the lower Hudson River (i.e..Indian Point Nuclear Power Plant. and the reference sites at the Roseton Generating Station and at Catskill).

In contrast,

[potassium-401 levels were somewhat greater inthe vicinity of Roseton Generating

Station, but the differing concentrations have noknown significance.

Entergy Ex. #39 at 8.35. 1'hroughout the Entergy, GZA, NYSDEC and NYSDOH investigations, NRC wasperforming its regulatory oversight function and reaching findings consistent with those ofNYSDEC, NYSDOH, Entergy and GZA. On September 20, 2005, NCR's Region I initiated aSpecial Inspection regarding identified leaks from the Unit 2 SFP and the potential for associated groundwater contamination.

Entergy Ex. #31 at 1-2.36. On October 5, 2005, Entergy reported to the NRC the detection of tritium in anon-site test well and, thereafter, the scope of the Special Inspection was expanded to include areview of the extent of onsite groundwater contamination.

Entergy Ex. #31 at 1-3; Entergy Ex.#32 at iv.37. As expanded.

the purpose of the Special Inspection was to oversee and evaluateEntergy's efforts to: (a) determine the location of the Unit 2 SFP leak(s),

repair the affectedarea(s),

and install a leak detection/-monitoring system; and (b) characterize the on-site tritiumcontamination, determining the source(s) of the contamination, and establishing appropriate monitoring and control.

Entergy Ex. 43 I at 2-3; Entergy Ex. 432 at iv; Entergy Ex. #32 atAttachment A6-3 to A6-4.9

38. On October 28, 2005. the NRC's Region I Executive Director of Operations requested approval from the NRC's Office of Nuclear Reactor Regulation for permission toexpand NRC's oversight of the leak investigation and groundwater contamination.

Entergy Ex.#31 at 1. At the time of this request, NRC Region I stated that "we see no hazard to publichealth and safety. and we expect any off-site radiological releases to be very small (i.e.. offsitedoses, if any would be negligible with respect to normal background)."

Entergy Ex. #31 at 2.39. NRC Region 1's expanded oversight efforts at Indian Point were to continue'until the NRC is satisfied that the leakage of water from the Unit 2 spent fuel pool has eitherbeen stopped or is being effectively monitored and controlled; and on-site tritium contamination has been properly characterized, and is being effectively monitored and controlled."

Entcrgy Ex.#31 at3.40. On March 16, 2006, the NRC issued its first Special Inspection Report. Theinspection consisted of a selected examination of procedures and representative records,observations of activities, interviews with Entergy personnel, and independent analyses ofgroundwater samples.

Entergy Ex. at #32 at 1.41. NRC's Special Inspection Report reached the following conclusions with respectto Entergy's activities from the discovery of the Unit 2 SPF leak to the close of the SpecialInspection:

a. Entergy's response to identified conditions was reasonable and technically sound.Entergy Ex. 432 at 2.b. The existence ofonsite groundwater contamination, as well as the underlying sourcesof leakage, are conditions warranting continued eflbrts by Entergy to resolve, but do10 not present significant risk to public health and safety and the environment.

EntergyEx. at 2., iv-v. 6 (Report Details).

c. Public health has not been, nor is likely to be, adversely
affected, and the doseconsequence to the public that can be attributed to current onsite conditions isnegligible with respect to conservatively established NRC regulatory limits. EntergyEx. #32 at 2, iv-v and 6 (Report Details).
d. A refined calculation, based upon tritium detected in monitoring well samples, of thedose estimate to the public indicated a whole body dose to the maximally exposedindividual of 1.5 x 10s mrem/year, which represents 0.00005%

of the 3 mrem/year limit for liquid effluent releases.

Entergy Ex. #32 at v.e. Independent sampling and analysis ofonsite and offsite groundwater samplinglocations by Entergy, NYSDEC and NRC produced results that were in goodagreement, and no plant-related radioactivity was identified in any offsite sample ofsurface or groundwater.

Entergy Ex. #32 at v-vi.f. Entergy's measurements of radioactivity in various samples taken to ascertain theextent of groundwater contamination were of good quality and of sufficient sensitivity to assess radiological impact. and the quality of Entergy's measurements were confirmed by various split samples analyzed by NRC., NYSDFC and NYSDOH.Entergy Ex. 432 at 3 (Report Details).

u. The inspectors found no circumstance that could reasonably be viewed as a failure ofEntergy to follow standards or take measures that would have prevented the currentonsite conditions, or react to circumstances and conditions that would have led toearlier detection.

Entergy Ex. 132 at vi.II hi. Entergy is adequately following its corrective action process relative to the currentonsite conditions, including conditions affecting the Unit 2 SPF. Entergy Ex. #32 atvii.i. There is no drinking water pathway associated with groundwater or the Hudson Riverin the region surrounding Indian Point. and samples taken in support of the NRC-required Radiological Environmental Monitoring Program continue to indicate nodetectable plant-related radioactivity in groundwater beyond the site boundary, including in samples collected from local municipal drinking water reservoirs andother groundwater monitoring wells located in the immediate vicinity of Indian Point.Entergy Ex. #32 at viii.j. The identified groundwater release was classified by Entergy as an abnormal release,as specified in NRC Regulatory Guide 1.21, and will be included in effluent releasereports as required.

Entergy Ex. #32 at vii.k. All releases from the Unit I SPF are documented in the NRC-required annual effluentand environmental monitoring reports.

Entergy Ex. #32 at I I (Report Details).

42. Throughout the performance of NRC's Special Inspection, NRC coordinated itsactivities with NYSDEC which had initiated its own independent assessment of the groundwater conditions.

including observation of NRC's inspection activities.

Entergy Ex. #34 at iv.43. On November

7. 2007. the NRC initiated another inspection of Indian Point. thepurpose of which was to assess Entergy's groundwater investigation to evaluate the extent ofcontamination, the effectiveness of actions.

taken or planned, to effect appropriate mitigation andremediation of the conditions resulting from the Unit I and Unit 2 SFP leaks. Entergy Ex. #34 atI.12

44. NRC's inspection, which concluded on May 7. 2008. determined that publichealth and safety had not been, and was not likely to be, adversely affected.

and the doseconsequence to the public attributable to on-site conditions associated with groundwater contamination was negligible.

Entergy Ex. #34 at 1-2.45. In its inspection report dated May 13, 2008, the NRC made several findingsincluding the following:

a. The radiological significance from the groundwater conditions at Indian Point iscurrently, and is expected to remain, negligible with respect to impact on publichealth and safety and the environment.

Entergy Ex. #34 at v.b. NRC confirmed with NYSDOH that drinking water is not derived from groundwater or the Hudson River in the areas surrounding or influenced by effluent release fromIndian Point and, therefore, the only human exposure pathway of merit is from thepossible consumption of aquatic foods from the Hudson River, such as fish andinvertebrates.

Entergy Ex. #34 at v-vi.c. Entergy's actions to investigate the radiological release conformed to therequirements of NRC regulations

-10 C.F.R. §20.1501

-to ensure compliance withdose limits for individual members of the public. Entergy Ex. #34 at vi.d. No evidence was found that indicated that the events at Indian Point. that resulted inthe onsite groundwater contamination were the result of Entergy's failure to meet aregulatory requirement or standard.

Entergy Ex. #34 at vi.e. Off-site groundwater samples collected since the fall of 2005 have never detected anyoff-site groundwater contamination.

Entergy Ex. #34 at iv.13

f. Entergy had properly identified the source of groundwater releases as the Unit 1 andUnit 2 SFPs. Entergy Ex. #34 at vi.g. No releases were observed or detected from Unit 3. Entergy Ex. #34 at viii.h. Entergy's hydrogeologic site characteri7ation studies provide sufficient detailed fieldobservations, monitoring, and test data that supported the development andcontbrmation of a reasonable Conceptual Site Model. Entergy Ex. #34 at vii.i. The Conceptual Site Model provides a reasonable basis to support the finding thatliquid effluent releases from the SFPs migrate west toward the Hudson River and donot otherwise migrate offsite.

Entergy Ex. #34 at vii.j. No radioactivity distinguishable from background was detected during the mostrecent sampling and analysis of fish and crabs taken from the affected portion of theHudson River and designated control locations.

Entergy Ex. #34 at vii.k. The annual calculated exposure to the hypothetically maximally exposed individual relative to the liquid effluent aquatic food exposure pathway is currently, and isexpected to remain, less than 0.1 percent of the ALARA guidelines in Appendix I of10 C.F.R. Part 50, which are considered to be negligible with respect to public health,safety and the environment.

Entergy Ex. #34 at vii.1. There is no evidence of any significant leak or loss of radioactive water inventory from the site that was discernable in the offsite environment.

Entergy Ex. 434 at viii.m. Entergy's remediation approach (i.e., Monitored Natural Attenuation) and plans forlong-term monitoring of residual groundwater contamination were reasonable.

Entergy Ex. 434 at vi-viii.14

46. In reaching these conclusions, NRC staff relied, in part, on an independent analysis of groundwater transport through fractured bedrock (utilizing geophysical well loggingdata) conducted by the United States Geological Survey which confirmed GZA's conclusions.

Entergy Ex. #34 at vii.IV. Entergy's Corrective Actions47. In 2007 and 2008, Entergy performed a comprehensive assessment of theaccessible portions of the Unit 2 SFP for the purpose of identifying potential sources of thetritium plume. Hearing Tr. at 3168, 3173 (Esselman).

48. Sixty-five percent (65%) or more of the liner of the entire Unit 2 SFP, including the fuel transfer canal area. has been inspected.

Hearing Tr. at 3174 (Esselman);

BarvenikPrefiled at 8.49. In September 2007. Entergy drained the fuel transfer canal within the Unit 2 SFPin order to inspect the liner of that canal; during that process, Entergy identified one weldimperfection, i.e., the source of the tritium contamination, that was subsequently repaired inDecember 2007. Barvenik Prefiled at 8.50. Other than the shrinkage cracks discussed in Paragraph 14 above and the oneweld imperfection that was repaired in December 2007, no other leaks were identified as a resultof the inspection of the SFP liner, including the fuel transfer canal. Barvenik Prefiled at 8.5 1. The inspection of the Unit 2 SFP liner has not identified any degradation mechanisms (e.g., corrosion) that would cause a SFII leak or would increase the size of anyundetected existing leak. Ilearing Tr. at 3169-3170 (Esselman).

52. Iyntergy implemented a program to remove the spent fuel and all water fromwithin the Unit I SFP: that process was completed in 2008. Barvenik Prefiled at 9; Entergv Ex.#47.15
53. Because the Unit 1 SFPs have been drained of their contents, they are no longer asource of radionuclides to the subsurface.

Barvenik Prefiled at 9. 1learing Tr. at 2710(Kolakowski);

Hearing Tr. at 3920 (Barvenik).

54. In addition to work on the Unit I and Unit 2 SFPs,. Entergy retained Lucius Pitkin,Inc. ("LP"I")

in 2010 to assist in the development of an underground piping management program.

Hearing Tr. at 3110 (Essleman);

see also Entergy Ex. #77 and Entergy Ex. #79.55. Entergy's underground piping program consists of a four-step process as follows:a. Conduct an inventory of underground pipes and their design characteristics;

b. Prioritize piping systems on the basis of the consequences of a leak or failure and thesusceptibility of the pipe to degradation;
c. Perform inspections of piping systems to gain information; andd. Perform an engineering evaluation of the inspection data to determine remedialactions required.

if any.Ilearing Tr. at 3111 (Esselman);

Entergy Ex. #79.56. The first two steps of this process have been completed at Indian Point, andinspections of underground piping occurred in 2008 (prior to the implementation of thisprogram) and continue each year, with 38 pipe inspections completed through 2011 and nineadditional pipe inspections scheduled in 2012. Hearing Tr. at 3111-3113 (Esselman).

57. Pipe inspections under this program utilize a variety of techniques to gaininformation regarding pipe conditions, including new ultrasonic technologies that allow for aninspection of pipe lengths that have not been exposed by excavation.

Hearing Tr. at 3114-3115 (Esselman).

16

58. The results of these inspections indicated that many of the pipe locations weredetermined to be satisfactory, while a relatively small number of locations with indications of thepossibility of corrosion.

Hearing rFr. at 3112-3113 (Esselman).

59. In response to the information indicating the possibility of corrosion, Entergyinstalled a cathodic protection system -a commonly used and well understood device whichintroduces a sacrificial anode that corrodes while the pipe itself is protected.

Hearing 'Fr. at3113-3114 (Esselman).

60. The implementation of this program reduces the likelihood and potential severityof leaks over time. Hearing Tr. at 3117 (Esselman).

V. Entergy's Long Term Monitoring Program61. After the completion of the hydrogeologic investigation, Entergy established aLong-Term Groundwater Monitoring Program (1.,TMP");

the LTMP's purposes are: (1) tocontinue to assess the tritium and strontium plumes associated with the historic Unit I and Unit 2SFP leaks; and (2) to monitor for potential new radionuclide releases through the groundwater monitoring network consisting of an array of groundwater monitoring wells located nearsystems.

structures and components that have the potential to impact the groundwater shouldthey leak in the future. Barvenik Prefiled at 13-16: Hearing Tr. at 3914-3915 (Barvenik).

62. The current groundwater monitoring array consists of 65 separate groundwater monitoring well locations, with over 150 monitoring intervals at different depths within those 65installations.

Barvenik Pretiled at 4-5; 1learing Tr. at 3917-3918

( Barvenik);

Entergy Ex. #124.63. In addition to the groundwater monitoring well installations, included in theoverall groundwater monitoring network are approximately 75 storm drains and 25 sumpslocated throughout the Indian Point site, frorn which samples are periodically collected foratnalysis.

Barvenik Prefiled at 5.17

64. Fhis groundwater monitoring network of over 250 diftfrent monitoring points isamong the most extensive of Mr. Barvenik's professional experience for any site subject to agroundwater investigation.

Hearing Tr. at 3914 (Barvenik).

65. Under the LTMP, Entergy conducts ongoing periodic groundwater monitoring and sampling activities, and evaluates the sampled data, for fbur primary purposes:
a. Monitor groundwater flow rate and radionuclide concentrations to both detect andcharacterize current and potential future releases of radionuclides from groundwater to the Iludson River;b. Monitor groundwater proximate to Indian Point systems, structures, and components that may result in releases of radionuclides to groundwater at Indian Point;c. Monitor groundwater along the property boundary and off-site to confirm thatgroundwater containing radionuclides is not migrating off oftthe property to locations other than the Hudson River; andd. Monitor groundwater plumes identified onsite to determine overall reductions in totalradioactivity over time.Bar-venik Prefiled at 13-14.66. Based upon the data collected during the hydrogeologic investigation and theLTMP. the tritium and strontium plumes resulting from historic releases from the Unit 1 andUnit 2 SFPs had reached their maximum sizes and have been decreasing at varied rates withperiodic fluctuations, as would be expected.

Barvenik Prefiled at 16: Entcrgy Ex. #33 at 97-101.67. The groundwater data collected since the installation in 2005 of the temporary collection device on the exterior of the Unit 2 SIP wall indicates that the amount of tritium in the18 groundwater beneath Indian Point has diminished by 89%. Prefiled Rebuttal at 29-34; HearingTr. at 3918-3920 (Barvenik);

Entergy Ex. #126.68. Since the draining of the Unit I SFPs. groundwater data indicate that the amountof strontium-90 in the groundwater beneath Indian Point has diminished by 70%. PrefiledRebuttal at 29-34; Hearing Tr. at 3920 (Barvenik);

Entergy Ex. #126.69. The LTMP will detect future releases of radionuclides to the groundwater comparable to those associated with the historic corrected Unit I and Unit 2 SFP leaks, therebyallowing Entergy to take timely and appropriate corrective action upon the detection of suchreleases, should they occur. Barvenik Prefiled at 16; Hearing Tr. 3914-3915 (Barvenik).

70. Entergy has played a leadership role in the development of the tritiumgroundwater investigation process on a nationwide basis. For example, the LTMP at IndianPoint predates the recommendation of experts contributing to a report by the United StatesGovernment Accountability Office ("GAO") to place groundwater monitoring wells near system,structures and components with a potential for leaking and impacting groundwater.

In June2011, the GAO recommended an increased focus on on-site groundwater monitoring at nuclearpower plant sites for prompt leak detection, and (2) additional efforts to provide reasonable assurance of underground piping systems' structural and leak-tight integrity.

As noted above,Entergy already had implemented the LTMP before this recommendation appeared in the GAO'sreport. Riverkeeper Ex. #7 at 11 see also Prefiled Rebuttal at 9-Il.VI. Monitored Natural Attenuation

71. As a result of the hydrogeologic investigation.

GZA and Entergy selectedMonitored Natural Attenuation as the appropriate remedial action lbr the groundwater at IndianPoint. Prefiled Rebuttal at 38.19

72. Monitored Natural Attenuation is a recognized and proven remedial approach forcontaminated groundwater sites that allows natural processes to reduce contaminant concentrations.

Prefiled Rebuttal at 36.73. The United States Environmental Protection Agency ("EPA") has recognized Monitored Natural Attenuation as a valid remedial approach generally, and Entergy, the NRCand NYSDEC concluded that it is the correct remediation strategy for Indian Point for severalreasons:a. Interdiction measures to date have eliminated and/or controlled the identified activesources of groundwater contamination.

b. Groundwater flow at the Site precludes off-Site migration of contaminated groundwater to the North, South or East.c. Consistent with the Conceptual Site Model, no Indian Point contaminants have beendetected above regional background in any of the off-Site monitoring locations ordrinking water supply systems in the region.d. The only on-Site exposure route for the documented contamination is through directexposure and, because the majority of the Site is capped by impermeable
surfaces, there is no uncontrolled direct contact with contaminants.
e. The spatial extent of the groundwater plume should continue to decrease with time.f. Groundwater is not used as a source of drinking water on the Site or in the immediate vicinity of the Site, and there is no reason to believe that this practice will change inthe lbreseeable future.Prefiled Rebuttal at 36-39: Entergy Ex. #34 at vi-viii:

Entergy Ex. #46: Entergy Ex. #82.20

74. In addition to Monitored Natural Attenuation, Entergy continues to extractgroundwater from foundation drains located near the Unit I SFP. removing radionuclides ingroundwater for collection and discharge through monitored pathways.

Prefiled Rebuttal at 22-23.75. These drains have captured approximately 10 times the quantity of strontium-90 entering the Hudson River via the groundwater.

Prefiled Rebuttal at 23.VII. WQC Process76. By letter dated April 3. 2009, Entergy Nuclear Indian Point 2, LLC, EntergyNuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc., (collectively.

"Entergy"),

submitted to NYSDEC an application for a water quality certificate

("WQC") under §401 of thefederal Clean Water Act (the "Application").

Entergy Ex. #161.77. The Application was submitted in relation to Entergy's application to the NRC torenew the NRC-issued operating licenses for Units 2 and 3, which would extend the operation ofUnit 2 to September 28, 2033, and Unit 3 to December 12, 2035. Entergy Ex. #161, JointApplication Form, Supplemental Response to Item 9.78. Entergy has not applied to NYSDEC for a WQC for the operation of Unit I.Entergy Ex. #161; Hearing Tr. at 2709 (Kolakowski).

79. On May 13, 2009. NYSDEC staff requested additional information from Entergyrelating to the Application, including with respect to whether releases of radiological materials from Indian Point to the Hudson River comply with New York State water quality standards

("NYWQS").

Entergy Ex. 499.80. On IFebruary 12, 2010, Entergy responded to NYSDEC Stairs request.

statingthat i) the Department had no authority to regulate radiological releases from Indian Point underthe federal Clean Water Act (the "CWA") and as a result of the doctrine of federal preemption, 21 and (ii) the releases of radiological materials from Indian Point do not violate NYWQS. EntergyEx. #100.81. By letter dated April 2. 2010 (the "Notice"),

N YSDEC staff proposed to deny theApplication due to. among other things, the releases of radiological materials from Indian Pointto the Hudson River. Entergy Ex. #9 at 11.82. Specifically, the Notice stated that "radioactive material (including tritium,strontium-90.

cesium, and nickel) from spent fuel pools, pipes, tanks, and other systems.structures and components at Indian Point has reached the Hudson River via groundwater flowfrom the site and, moreover, continue to do so," Entergy Ex. #9 at II.83. The Notice asserted that "'the discharge of radiological substances (including, butnot limited to, radioactive

liquids, radioactive solids, radioactive gases, and stormwater) from theIndian Point site into a water of the State, here the Hudson River, are 'deleterious substances*

and could impair the water for their best usage [citing 6 NYCRR §703.21" and that "radiological leaks have the potential to impair the best use of the water designated in 6 NYCRR §701.11."

Entergy Ex. #9 at 11; Hearing Tr. at 2730 (Kolakowski).

The Notice relied upon a standardnecessitating a finding of impairment to support noncompliance.

84. The Notice did not mention or otherwise distinguish the conclusions reached byNYSDEC and NYSDOH in their capacity as stakeholders in the NRC's Special Inspection andsubsequent inspection of Indian Point that no human health or environmental impacts wereassociated with or attributable to the "unplanned" releases from Indian Point prior to the date theNotice was issued. Entergy Ex. 49 at 11.
85. The Notice did not state any other reason for the denial of Entergy's Application on the basis of radiological releases from Indian Point. Entergy Ex. 9; Hearing Tr. at 2729-2730 (Kolakowski).
86. On April 29, 2010, Entergy submitted a request for adjudicatory hearing tochallenge the Notice. arguing again that Department Staffis attempt to deny the Application based upon radiological releases was: (i) outside NYSDEC's statutory authority under the CWA;(ii) preempted by federal law, and (iii) without factual basis. See Request for Adjudicatory Hlearing on NYSDEC Staff s April 2, 2010 Notice of Denial of Joint Application for CWASection 401 Water Quality Certification.

NRC License Renewal -Entergy Nuclear Indian PointUnits 2 and 3, dated April 29, 2010.87. On December 13, 2010, the Ruling on Proposed Issues for Adjudication andPetitions for Party Status (the "Issues Ruling")

concluded that the issue of federal preemption remained an "open question,"

and set for adjudication the issue of "whether Department Staffproperly denied the Application based upon radiological considerations."

Issues Ruling at 25-27,40.88. The Issues Ruling did not address the issue of whether the regulation ofradiological releases was outside NYSDEC's statutory authority under the Clean Water Act.Issues Ruling, passim.89. Direct prefiled testimony from the parties' witnesses was received on July 22,2011. and rebuttal preliled testimony was received on October 4. 2011.90. In direct preliled testimony submitted on behalf of NYSDEC Staff, NYSDECStalLf for the first time, advance the following new legal position:

"The discharge of suchradiological materials, including high-level radioactive waste, from spent fuel pools, pipes, tanks, and other systems.

structures, and components at the Indian Point nuclear facilities intogroundwaters and surface waters of the State is prohibited by ECL § 17-0807 and 6 NYCRR§750-1.3, and could impair the waters for their best usages (6 NYCRR §703.2)."

Kolakowski Prefiled at 11. In other words, in its direct prefiled testimony, NYSDEC Staff advanced a newlegal position that there was a categoric prohibition on the discharge of radiological substances tothe Hudson River.91. In rebuttal prefiled testimony, NYSDEC Staff's witness clarified his directprefiled testimony, stating:

"The unintentional discharge, leak or spill of such radiological materials, including high-level radioactive waste, from spent fuel pools, pipes, tanks, and othersystems, structures, and components at the Indian Point nuclear facilities into groundwaters andsurface waters of the State is prohibited by ECL §17-0807(1),

(4), and 6 NYCRR §750-1.3(a)."

Kolakowski Rebuttal Prefiled at 4. Thus, NYSDEC Staff echoed its position that radiological releases were subject to a categoric prohibition, but limited the scope of the prohibition tounintentional or unplanned releases.

92. A hearing on this issue was held on November 15-16, 2011, January If, 2012,and January 231 2012.VIII. Hearing Testimony A. Witnesses
93. Entergy provided three highly qualified expert witnesses in support of its case. allof whom are leaders on the subjects on which they testified, with longstanding direct andrelevant experience in their respective fields: (1) Dr. F. Owen Hoffman, a leading national experton radiological dose assessment and environmental impact, including the release, transport andbehavior of'radionuclides in the aquatic environment" (2) Mr. Nvlatihew
Barvenik, a well regardedhN drogeologist who acted as the lead technical investigator of the Indian Point site investigation 24 associated with the unplanned releases of radiological materials; and (3) Dr. Thomas Esselman, an expert in aging management at nuclear facilities.

particularly for structures and components involved in the handling or storage of radiological materials.

Barvenik Prefiled at 1-4; HoffmanPrefiled at 1-3: Prefiled Rebuttal at 1: Hearing Tr. at 3086-3089 (Hoffman),

3108-3110 (Esselnan),

3912 (Barvenik);

Entergy Ex. #53, Entergy Ex. #54, Entergy Ex. #77.94. Dr. F. Owen Hoffman provided testimony concerning the potential effects onhuman beings or aquatic biota of radiological materials that have migrated with the groundwater beneath Indian Point to the Hudson River. Hoffman Prefiled at 1.95. Dr. Hoffman is president and director of SENES Oak Ridge, Inc. Center for RiskAnalysis, an organization that specializes in human health and ecological risk estimation, riskassessment, and risk communication.

Dr. Hoffman has more than 39 years of experience inissues related to evaluating human and ecological risk from the release and transport ofradionuclides and chemicals in terrestrial and aquatic systems.

lie is a Distinguished EmeritusMember of the National Council on Radiation Protection

& Measurements

("NCRP"),

and acorresponding member of tie International Commission on Radiological Protection

("ICRP").

Dr. Hoffman is also a consultant to the United Nations Scientific Committee on the Effects ofAtomic Radiation

("UNSCEAR").

He holds a Bachelor of Science degree in Biological Conservation from the San Jose State College, a Master of Science degree in Fisheries limnology from Oregon State University, and a Ph.D in Ecology, with a specialty in Radiation Ecology.

Entergy Ex. #53; Hoffman Prefiled at 1. 3; Hearing Tr. at 3086-3089 (Hoffman).

96. Dr. Hoffman has extensive experience assessing human health and aquatic biotaimpacts from radionuclide
releases, including releases to aquatic environments.

He is familiar\with the Indian Point OtTsite Dose Calculation Manual, Annual Radioactive Effluent Release Reports.

and Annual Radiological Environmental Operating

Reports, as well as Indian Point'scompliance with NRC dose regulations.

Hoffman Prefiled at 6-11. 14-16. Dr. Hoffman has alsoindependently assessed the radiological impacts to the Hudson River ecosystem from IndianPoint SFP leaks to site groundwater.

Hoffman Prefiled at 15-16.97. Mr. Matthew J. Barvenik provided testimony regarding unplanned releases ofradiological materials from Indian Point Units 1 and 2. Entergy's corrective actions undertaken in response to unplanned

releases, and the investigation of groundwater contamination at IndianPoint. Barvenik Prefiled at 1-2.98. Mr. Barvenik is a Senior Principal and Senior Technical Consultant with GZAGeoEnvironmental, Inc. ("GZA"),

a national consulting firm that provides wide-ranging geotechnical engineering, environmental consulting, and remediation services.

Mr. Barvenik hasover 35 years of professional experience in hydrogeology, civil, geotechnical, andinstrumentation engineering, and has focused on contaminated soil and groundwater investigation and remediation.

lie holds a Bachelor of Science degree in Civil Engineering fromNortheastern University and a Master of Science degree in Geotechnical Engineering from theMassachusetts Institute of Technology.

Mr. Barvenik is a registered Licensed Site Professional in Massachusetts and a member of the American Nuclear Society ("ANS").

He served on theANS Working Group responsible for the recently completed standard for Evaluation ofSubsurfiace Radionuclide Transport at Commercial Nuclear Power Plants, and is a member oftwo newly formed ANS Working Groups responsible fbr drafting future standards on theevaluation of groundwater supplies and remediation methods lbr nuclear power sites. EntergyEx. #54; Barvenik Pretiled at 1, 3; Hearing F'r. at 3912 (Barvenik).

26

99. Mr. Barvenik was the lead technical investigator for the Indian Pointhydrogeologic site characterization program resulting in the January 7. 2008 Site Investigation Report. As a result of these duties, Mr. Barvenik became very familiar with the Indian Pointhydrogeologic setting and groundwater flow patterns, identified contaminant sources andtransport.

historical and ongoing groundwater monitoring.

remediation plans, the history andstatus of releases of radiological materials from Indian Point spent fuel pools, dose assessments, and associated NRC inspection activities, as well as other independent assessments of the SFPreleases.

Barvenik Prefiled at 4.100. Dr. Thomas C. Esselman provided testimony with regard to, among other things,Entergy's underground piping inspection program and Entergy's inspection of the Unit 2 SFP.Combined Prefiled Rebuttal at passim.101. Dr. Esselman is a Principal at Lucius Pitkin. Inc., which provides engineering services to the nuclear power industry, among others. Dr. Essleman has over 35 years ofengineering experience, including experience in component and structure performance, aging,stress analysis, materials, materials degradation, and failure analysis, including extensive experience with nuclear power facilities.

He holds a Bachelor of Science degree in Mechanical Engineering, and a Master of Science degree and a Ph.D. in Engineering Mechanics, all fromCase Western Reserve University.

Entergy Ex. #77; Combined Prefiled Rebuttal at I; HearingTr. at 3108-3110 (Esselman).

102. lhroughout his career. D)r. Esselman has worked periodically with the IndianPoint plants, including on the development of an underground piping management program andthe investigation of the integrity of the Unit 2 SFP. Hearing Tr. at 3109, 3162 (Esselman).

27 103. Dr. Hoffman and Dr. Esselman provided

limited, live direct testimony and werecross-examined on January 11. 2012. Hearing Tr. 3071. Mr. Barvenik provided
limited, livedirect testimony and was cross-examined on January 23, 2012. Hearing Tr. at 3895.104. Mr. Paul J. Kolakowski provided prefiled and rebuttal testimony, on behalf ofN YSDEC Staff, regarding those aspects of the Notice dealing with the release of radiological materials to the Hudson River from groundwater beneath Indian Point. Kolakowski Prefiled atI; Kolakowski Prefiled Rebuttal at 1.105. Mr. Kolakowski holds a BS in Civil/Environmental Engineering, and has been anEnvironmental Engineer with NYSDEC since 1989. Staff Ex. #1. Mr. Kolakowski has noeducational or work experience related to nuclear engineering, radiation protection, humanhealth effects of exposure to radiation, dose assessment from the exposure to radiological materials, or the ecological effects of radiological materials in the environment.

Hearing Tr. at2690-2692 (Kolakowski);

Staff Ex. #1. He performed no scientific analysis of the recordevidence provided by Entergy.

See Paragraphs 144, 147, 149-151 and 156-157 below.106. Mr. Arnold Gundersen provided prefiled and rebuttal testimony, on behalf ofRiverkeeper, Inc., Scenic Hudson, Inc.. and Natural Resources Defense Council, Inc., regarding radiological materials.

Gundersen Prefiled at 1; Gundersen Prefiled Rebuttal at 1.107. Mr. Gundersen holds an MS in Nuclear Engineering from Rensselaer Polytechnic University and has more than 39 years of experience on nuclear matters generally.

Gundersen Prefiled at 1-2. Mr. Gundersen performed no dose assessment associated with the radiological releases from Indian Point. Hearing Tr. at 2897, 2922. 2976 (Gundersen).

108. Mr. Kolakowski and Mr. Gundersen provided

limited, live direct tcstimonv andwere cross-examined on November 15-16, 2011. 1learing Tr. at 2654. 2973.

109. On November 15.2011, after hearing from the parties on Entergy's motion inlinine to exclude, among other things, Mr. Gundersen's testimony regarding the impacts ofplanned releases of radionuclides from Indian Point. this Tribunal granted Entergy's motion andstruck Mr. Gundersen's testimony associated with the planned releases from Indian Point.Hearing Tr. at 2806 (Judge Villa).B. Compliance with Applicable Dose Limits110. Entergy conducts periodic environmental monitoring surveys to assess thecumulative potential impact of radionuclides that have been released from Indian Point. and, onan annual basis, submits the results of these surveys to the NRC in Annual Radioactive EffluentRelease Reports ("ARERR").

I-loffman Prefiled at 9-13..111. NRC imposes technical specifications on effluents from nuclear power stations inorder to keep releases of radioactive materials "as low as reasonable achievable"

("ALARA").

Hoffman Prefiled at 7.112. The ARERRs include quantification of both planned and unplanned releases ofradiological materials; since 2006, the Indian Point ARERRs have included estimates of theradionuclides entering the lHudson River via groundwater based upon the Indian Pointhydrogeologic investigation and the subsequent ITMP. H loffman Prefiled at 10-13.113. The ARERRs indicate that the amount of radioactivity associated with tritiumreleased from groundwater and stormwv-ater (i.e., rainwater collected onsite and discharged to theI ludson River via storm drains) to the Hudson River since 2006 on an annual basis is as tbllows:0.28 curies (2006). 0.064 curies ('2007),

0.2 curies (2008); 0.07 curies (2009), and 0.12 curies(2010). These levels of radionuclide releases arc orders of magnitude below the allowable tbderal regulatory limits. Barvenik Prefiled at 6-7: 1learing Tr. at 3922-3923 (Barvenik).

9 114. The ARERRs also indicate the amount of radioactivity associated with allradionuclides other than tritium released from groundwater and stormwater to the Hudson Riversince 2006 on an annual basis are as follows:

0.00057 curies (2006); 0.00008 curies (2007);0.00016 curies (2008); 0.00025 curies (2009); and 0.000042 curies (2010). These levels ofradionuclide release are orders of magnitude below the allowable federal regulatory limits.Barvenik Prefiled at 6-7; Hearing Tr. at 3922-3923 (Barvenik).

115. NRC Regulations require all NRC licensed facilities to calculate the annualrelease ofradiological materials to the environment, and to calculate the dose to a hypothetically maximally exposed individual to ensure compliance with ALARA design objectives.

HoffmanPrefiled at 7-9.116. Entergy's Offsite Dose Calculation Manual ("ODCM")

specifies the methods tobe used in calculating estimated off site doses of radiation, consistent with the NRC's Regulatory Guide 1. 109, which was developed to provide the methodology to estimate radiation doses to thepublic. Hoffman Prefiled at 8; Hearing Tr. at 3092 (hoffman).

117. In addition to documenting the quantity of radioactivity released to theenvironment.

Entergy's ARERRs also contain estimates of the dose associated with suchreleases, which were correctly calculated in accordance with methodologies required by NRC'sRegulatory Guide 1.109 and memorialized in Entergy's ODCM. Hoffman Prefiled at 10-13.118. Dose calculation methodologies are conservative, and focus on a hypothetically maxinmally-exposed individual.

Entergy Ex. #43 at 1; Hearing l'r. at 3103-3104 (Hoffman).

Thus. dose assessment typically overstates potential radiation risk. Entergy Ex. #43 at I.119. Based upon the dose calculations perlbrmed in Entergv's ARERRs. the annualwhole body dose associated with releases from Indian Point to the Hudson River via30 groundwater and stormwater in 2010 was 0.0002 millirem

("*mrem").

Prefiled Rebuttal at 4. Thewhole body dose for the years 2006-2009 was a small fraction of a millirem.

similar to the 2010figure. Hoffman Prefiled Testimony at 11, 13.120. This calculated dose is several orders of magnitude lower than the dose limits formembers of the public established by NRC's Standards for Protection Against Radiation at 10C.F.R. Part 20 (100 mrem whole body), EPA's radiation protection standard at 40 C.F.R. Part190 (25 mrem whole body), and the NRCs design objectives at 10 C.F.R. Part 50, Appendix 1 (3mrem whole body). Hoffman Prefiled at 6-9, 11, 14; Combined Prefiled Rebuttal at 28; EntergyEx. #34 at vii, Barvenik Prefiled at 20-21.121. As noted previously, the NRC reached the same conclusions as Dr. Hoffman:a. The annual calculated exposure to the hypothetically maximally exposed individual relative to the liquid effluent aquatic food exposure pathway is expected to remain,less than 0.1 percent of the ALARA guidelines in Appendix I of 10 C.F.R. Part 50,which are considered to be negligible with respect to public health, safety and theenvironment.

Entergy Ex. #34 at vii.b. NRC's inspection determined that public health and safety had not been. and was notlikely to be, adversely affected.

and the dose consequence to the public attributable toon-site conditions associated with groundwater contamination was negligible.

lEntergy Ex. `34 at 1-2.c. Public health has not been, nor is likely to be, adversely

affected, and the doseconsequence to the public that can be attributed to current onsite conditions isnegligible with respect to conservatively established NRC regulatory limits. EntcrgytL!x. 4.32 at 2, iv and 5 (Rcport Details).

31 122. NYSDEC also reached the same conclusions as Dr. Hoffman and the NRC -thatE'ntergy's calculated doses to the public through fish consumption which are less than 1% of theNRC dose limits. Entergy Ex. #46 at 1.123. Neither Mr. Kolakowski nor Mr. Gundersen testified that Entergy was not incompliance with applicable NRC dose limits. Ilearing T"r., passim.C. Absence of Impacts to the Best Usages of the Hudson River124. The scientific approach to evaluating whether the radiological materials within thegroundwater at Indian Point impact the best usages of the Hudson River consists of:(1) identifying the sources and amounts of radiological materials released into the environment; (2) calculating the concentrations of radiological materials in environmental media (e.g., soil,groundwater, etc.); (3) identifying any "exposure pathways"

-that is, any means by whichpeople or other biota could come into contact with these materials (i.e., through drinking water,swimming, fish consumption, etc.); (4) calculate the dose received to people or other biota basedupon any completed exposure pathway; and (5) translate those doses into risks -i.e., in the caseof human health, the risk of developing a radiation-related cancer in later life; in the case ofaquatic biota. comparing doses against accepted impact thresholds deemed to be of no risk.I loffrman Prefiled at 2, 17; Hearing Tr. at 3090, 3105 (Hoffman).

125. The effective dose is the most commonly used indicator of the potential biological effects associated with human exposure to radiation.

Entergy Ex. #35 at 5.126. Although radiation may cause cancers at high dose rates (i.e., 50,000 mrem orgreater),

currently there are no data to establish unequivocally the occurrence of cancer fbllowing exposure to low doses and dose rates below 10.,000 mrem. Entergy Ex. #43.127. l)r. Hoffman employed this approach in his independent assessment of the risks tohuman health and aquatic biota associated with the unplanned releases of tritium and strontium-90 to the Hudson River in 2010 via groundwater and stormwater from Indian Point. Specifically.

Dr. Hoffman obtained the sources and concentrations of tritium and strontium-90 entering theHudson River via groundwater based upon Entergy's ARERR for 2010. He then reviewedEntergy's NRC-required Offsite Dose Calculation Manual, which both identifies the potential exposure pathways for the planned and unplanned release of these materials and calculates thedoses to humans and other biota associated with completed

pathways, based upon on-site andoff-site sampling of groundwater and surface water conducted by Entergy, and confirmed thatEntergy's calculations were correct and satisfied NRC's required methodologies.

Then, hetranslated the doses to the hypothetical maximally-exposed individual, assuming completed exposure pathways into an increased cancer risk in humans. Finally, he compared the dosespotentially received by aquatic biota to accepted impact threshold standards using two separateapproaches.

Hoffman Prefiled at 7-11, 15-16; Hearing Tr. at 3092-3107 (Hoffman).

128. No witness other than Dr. Hoffman testified as to the proper approach to assessing whether the best usages of the Hudson River would be impaired by the release of radiological materials in the environment, and no other witness challenged Dr. Hoffman's approach.

Hearingrr., passim.129. Given that demonstrating any increased risk from low doses of radioactivity isbeyond the limits of epidemiological detection, the conversion of calculated doses to an estimateof risk to human health requires the use of a model, typically the "linear no-threshold model"described in the 2006 National Research Council of the National Academies report entitled"IHealth Risks from Exposure to Low Levels of Ionizing Radiation" commonly referred to as theBiological Effects ot Ionizing Radiation

("BEIR")

VII Report. Entergy Ex. #43 at 1: EntergyEx. 101: Hearing Tr. at 3098-3 102 (Hoffman).

130. The BEIR VII Report indicates that, as a result of exposure to all sources ofcarcinogens including natural background radiation, the risk of developing cancer in later life is0.42 or 42%. Entergy Ex. # 101 at 7; Entergy Ex. #123A-123C; Hearing Tr. at 3100-3101 (Hoffman).

131. The BEIR VII Report also indicates that. if a population of 100 individuals has alifetime exposure to ionizing radiation dose of 10,000 mrem in addition to the lifetime exposureto natural background radiation and all other sources of carcinogens, that additional exposure to10,000 mrem results in one excess cancer in the population

-in other words, a 1 in 100 chanceof developing cancer. Hearing Tr. at 3100-3101; Entergy Ex. #123B.132. To estimate the risk of cancer at excess doses lower than 10,000 mrem, the BEIRVI Report applies a "linear no-threshold" model to calculate the risk of cancer in later life due toexcess exposures to ionizing radiation over a lifetime.

Entergy Ex. 4101 at 6-7.133. The" linear no-threshold model" assumes a reduction in risk that is proportional to a reduction in dose -for example, a lifetime excess exposure to a dose of I mrem equates to arisk that is I in 1,000,000 or I/ 10,000 the risk associated with an excess dose of 10,000 mrem.I Tearing Tr. at 3102 (Hoffman).

While this linear no-threshold model may not actually mirrorexperienced conditions, it is a conservative methodology for calculating increased risk as ameasure of dose. Entergy Ex. #43.134. Pursuant to the BIER VII linear no-threshold model, in order to experience one(1) excess cancer in a given population, one million (IL000,000) people would need to beexposed to the I mrem excess dose. Hearing Tr. at 3102 (Hoffman).

34 135. As noted above, the excess dose associated with the radiological materials entering the Hudson River via groundwater and stormwater from Indian Point in 2010 was0.0002 millirem.

See Paragraph 119 above.136. Using the BEIR VII linear no-threshold model. this excess dose level equates to arisk of I in 5 billion -in other words, five billion (5.000,000,000) people would have to beexposed to the maximum excess dose attributable to Indian Point groundwater and stormwater in20 10 in order to expect one (1) additional case of cancer. Hearing Tr. at 3102-3103 (Hoffman).

137. This risk is based upon the human consumption of fish maximally exposed to theradionuclides entering the Hudson River from groundwater and stormwater at Indian Point, andalso assumes that each human being in the population consumes one (I) pound of these fish eachweek during the entire one-year period. Hearing Tr. at 3103-3015 (Hoffman).

138. As a practical matter, it is not possible for five billion (5,000.000,000) people toconsume that quantity of fish; let alone fish maximally exposed to radionuclides entering theHudson River from groundwater and stormwater at Indian Point; therefore, the actual risk tohuman health associated with the 2010 unplanned releases to the Hudson River fromgroundwater and stormwater at Indian Point is expected to be zero. Hearing Tr. at. 3104-3105 (Hoffman).

139. With respect to potential impacts to aquatic biota. the United States Department of Energy ("DOE") has promulgated guidelines for radiation dose rates from environmental media that are widely employed to calculate impacts to biota and considered authoritative on theissue, the DOE guidelines recommend limiting the dose to aquatic biota to less than 1.0 radtlday.

Hoffman Prefiled at 15: Entergy Ex. #45 at MI-I. MI-4.

140. Using the DOE's RESRAD-BIOTA dose model, Dr. Hotiman calculated the doserates to aquatic organisms associated with the maximum concentrations of radionuclides estimated to be migrating to the Hudson River related to unplanned releases via groundwater andstormwater at Indian Point in 2010 to be 0.00000000205 rad/day for tritium and 0.000371rad/day for strontium.

Hoffman Prefiled at 15-16.141. Dr. Hoffman also calculated dose rates to aquatic biota using dose coefficients fortritium and strontium-90 documented for external and internal exposures developed by theUnited Nations Scientific Committee on Exposure to Atomic Radiation

("UNSCEAR"),

andthose doses were 0.0000000029 rad/day and 0.00047 rad/day for tritium and strontium-90.

respectively.

Hoffman Prefiled at 16. Dr. Hoffmnan indicated that these doses effectively equateto zero risk to the ecosystem.

Hoffman Prefiled at 16; Hearing Tr. at 3105-3107 (Hoffman).

142. The doses to aquatic biota calculated using DOE's RESRAD-BIOTA model andthe UNSCEAR dose coefficients are orders of magnitude below DOE's 1 rad/day guideline.

Hoffman Prefiled at 16.143. To provide context for the doses at issue in this case, the excess dose of .0002mrem associated with Indian Point's 2010 releases to the Hudson River via groundwater andstormwater is orders of magnitude lower than the average radiation dose experienced by anindividual in the United States (620 millirem).

a single chest x-ray (4 mrem), a one-way crosscountry flight (2 inrern).

or eating a single banana. which contains naturally occurring radioactive potassium (0.01 mrem). Rebuttal Prefiled at 2-3; 1 learing Tr. at 3095-3097; EntergyEx. 121: Entergy Ex. #37 at 12; Entergy Ex. #.43.144. No other witness suggested another calculation methodology for assessing theimpact ofradiological releases to aquatic organisms, or identified any error in l)r. Hioflhman's 36 approach or calculations.

Prefiled and Rebuttal Testimony of Kolakowski and Gundersen; Hearing Tr., passim.145. Assuming comparable levels of releases to the I Iudson River throughout thelicense renewal period for Units 2 and 3. the resulting risk to human health and the environment is similarly expected to be zero. Hearing 'r. at 3107 (Hoffman).

146. To the extent any small, undetected leak from the Unit 2 SFP may still exist, itmust be smaller than those identified and repaired by Entergy given the subsequent attenuation of the tritium plume. Hearing Tr. at 3970-3971 (Bar'enik);

Entergy Ex. 433 at 92.147. No other witness analyzed the effects on human health or aquatic biota of thereleases of radiological materials to the Hudson River via the groundwater at Indian Point.Hearing Tr., passim.148. Mr. Kolakowski acknowledged that the potential impairment to the best usages ofthe Hludson River was a reason for the denial of the Section 401 WQC. Kowalski Prefiled at 11,Hearing Tr. at 2728 (Kowalski).

149. Mr. Kolakowski stated that Entergy provides to NYSDEC copies of its annualradiological release reports, but he did not review them for purposes of preparing his testimony.

Hearing Tr. at 2771-2772 (Kolakowski).

150. Analyzing the impacts of radiological releases on Hudson River aquaticorganisms was beyond Mr. Kolakowski's area of expertise.

Hearing Tr. at 2768 (Kolakowski).

151. Mr. Kolakowski reviewed GZA's Site Investigation Report and the testimony ofl.ntergy's experts.

Kolakowski Pretiled at 12; Kolakowski Rebuttal at 6.37 152. Mr. Kolakowski agreed with Entergy's experts on the absence of impacts on thebest uses of the Hudson Ri\'er associated with unplanned releases of radiological materials togroundwater at Indian Point. Hearing Tr. at 2745 (Kolakowski).

153. Mr. Kolakowski admitted that any discharge into the waters of the state, if insufficient concentration, could impair the waters for their best usages. ilearing Tr. at 2746(Kolakowski).

154. Mr. Kolakowski agreed with NYSDEC's conclusion on the absence of impacts toHudson River fish from Indian Point's unplanned releases.

Hearing Tr. at 2768 (Kolakowski).

155. Mr. Kolakowski agreed with NRC's conclusions on the absence of impacts topublic health and safety and the environment from Indian Point's unplanned releases.

HearingTr. at 2770-2771 (Kolakowski).

156. Mr. Kolakowski had no evidence of impacts to the best usages of the HudsonRiver based on Indian Point's unplanned releases.

Hearing Tr. at 2750 (Kolakowski).

157. Mr. Kolakowski had no factual basis for believing that the continued operation ofUnits 2 and 3 during license renewal would result in a leak sufficiently large to impair theHudson River for its best usages. Hearing Tr. at 2759-2760.

158. Mr. Gundersen's dose assessment testimony in Finestone

v. Florida Power &Light Co.. 2006 WL 267330 (S.D. Fla.) was rejected as "belied by the contemporaneous reportsof the NRC and the [Florida Department of'Health and Radiological Safety]"

and "rife w%:ithconclusorv statements".

id at

  • 10, which on appeal were characterized as a "scientifically unsupported leap of faith" that disqualified him as an expert. Finestone
v. florida Power &Light Co.. 2006 WL 267330, at *11 (S.D. Fla. Jan. 6, 2006); Finestone
v. Florida Power & LightCo. 272 Fed. Appx. 761, 768 (1 lth Cir. 2008); [fearing lr. at 2885, 2887 (Gundersen).

38 159. Since the decision in Finestone, Mr. Gundersen has not pursued any education ortraining in the area of dose assessment.

lHeafing Tr. at 2889-2990 (Gundersen).

160. Mr. Gundersen did not perform a dose assessment to evaluate whether theunplanned releases of radiological materials at Indian Point were in amounts that will impair theHudson River for its best usages. Hearing Tr. at 2897, 2922. 2976.161. Instead.,

Mr. Gundersen assumed that an impairment would result if any amountof radiological materials reached the Hudson River. Hearing Tr. at 2815 (Gundersen).

162. Mr. Gundersen did not review or comment on the testimony provided byFntergy's

witness, Dr. F. Owen Hoffman, stating the he had "no idea who Dr. Hoffman is orwhat he wrote." Hearing Trans at 2892 (Gundersen).

163. Mr. Gundersen agreed that tritium has not been detected in water samplescollected from the Hudson River. Hearing Tr. at 2977 (Gundersen).

164. When asked on the stand to calculate the increased risk of cancer associated withthe 2010 unplanned releases from Indian Point to the Hudson River, Mr. Gundersen applied theBEIR VII "linear no-threshold model" and arrived at the same risk level calculated by Dr.Hoffman -i.e., one in five billion.

Hearing Tr. at 2919 (Gundersen).

165. Mr. Gundersen did not perform any calculations to determine whether strontium-90 released from Indian Point was found in Hudson River fish. HearingT

r. at 2977(Gundersen).

166. When questioned about the significance of a particular release associated with apipe leak at Indian Point, Mr. Gundersen stated that the concentrations of tritium in that waterwas less than one tenth of the federal safe drinking water standards.

Hearing Tr. at 2959.39 167. Neither Mr. Kolakowski nor Mr. Gundersen provided any scientific basis tosupport the conclusion that radiological releases from Indian Point have the potential to impairthe Hudson River for its best usages for primary and secondary contact recreation and fishing.Hoffman Prefiled at 14, 18; Hearing Tr. at 3102-3107 (Hofihman);

Kolakowski Prefiled andPrefiled

Rebuttal, passim; Gundersen Prefiled and Prefiled
Rebuttal, passim; Hearing Tr.(Kolakowski),

passim; Hearing Tr. (Gundersen),

passim.D. Inapplicability of ECL §17-0807(1) and 6 NYCRR §750-1.3(a) 168. The radiological materials associated with the unplanned releases at issue in thiscase are neither radiological warfare agents nor high-level radioactive wastes. Prefiled Rebuttalat 39-40; Htearing Tr. at 2734-2737 (Kolakowski).

169. Mr. Kolakowski recanted his position that the radiological releases at issue in thisproceeding were prohibited by ECL § 17-0807(1) and 6 NYCRR §750-1.3(a) because heconcluded that such releases did not constitute "the discharge of any radiological,

chemical, orbiological warfare agent or high-level radioactive waste" as prohibited by those provisions.

I learing Tr. at 2734-2737 (Kolakowski).

E. Inapplicability of ECL §17-0807(4) 170. It is feasible to install a sufficient number of groundwater extraction wells at theperimeter of the Indian Point site to reverse the hydraulic gradient at Indian Point sufficient toensure that no radionuclides from the identified Indian Point groundwater plumes would reachthe Hudson River via the groundwater pathway during license renewal term. See PrefiledRebuttal at 40-41: 1learing Tr. at 4038. 4041, 4093-4094 (Barvenik).

F. Inapplicability of ECL §17-0501 as a separate basis for the Notice.171. After taking the stand, Mr. Kolakowski inserted another basis for denial of theApplication, specificallx ECL §17-0501.

Hearing ir. at 2736 (Kolakowski).

40 172. This basis for denial did not appear in the Notice or in Mr. Kolakowski's prefiledtestimony.

Entergy Ex. 49; Kolakowski Prefiled; Kolakowski Prefiled Rebuttal.

173. Mr. Kolakowski testified that ECL § 17-0501 was not an independent basis fordenial of the Application but, instead, constituted the statutory authority for the Department toclassify waters for their best usages and to adopt standards for the protection of the best usage ofthose waters. Hearing Tr. at 2742-2743 (Kolakowski).

G. Inapplicability of EPA's Safe Drinking Water Standards 174. For purposes of evaluating the Application, Department Staff did not evaluatewhether unplanned radiological releases from Indian Point impair the groundwater beneathIndian Point for its best usages. Hearing l'r. at 2759-2763 (Kolakowski).

175. Department Staff did. however, review the groundwater concentrations ofradionuclides presented in the GZA Report and concluded that those concentrations did notexceed the Department's groundwater standards.

Hearing Tr. at 2763 (Kolakowski).

176. The federal Safe Drinking Water Act ("SDWA")

sets forth "maximumcontaminant levels" for various contaminants, which is defined as "the maximum permissible level of a contaminant in water which is delivered to any user of a public water system."

42U.S.C. §300f(3)

(emphasis added). The maximum contaminant levels do not apply to levels ofcontamination contained in groundwater, but rather apply at the "tap" where that water isdelivered.

Prclilcd Rebuttal at 8. Furthermore, the term "public water system" is defined in theSDWA as "a system for the provision to the public of water lbr human consumption throughpipes or other constructed conveyances, if such system has at least fifteen service connections orregularly serves at least twenty-five individuals."

42 U.S.C. §§300f(l)

-(4), 300g. As such, theEPA's maximum contaminant levels do not apply to wells on the site at Indian Point which arenot used as a drinking water source at all, much less to a public water system. Entergy 1':x. 33 at41 1 3- 14: see also itt p: /ww. nrc. gzov/readin i-rrn/doc-coI ections/flact-sheiets/tri t i uIm-rad iat ion-t'.h i ni1.42S STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC.Entergy Nuclear Indian Point 3, LLC, DEC App. Nos. 3-5522-00011/00030 (IP2)and Entergy Nuclear Operations Inc.'s 3-5522-00105/00031 (IP3)Joint Application for CWA § 401 WaterQuality Certification CERTIFICATE OF SERVICE1. William J. Trach. hereby certify that, on this 27th day of April, 2012, 1 caused a true andaccurate copy of:1. Post Hcaring Memorandum of Entergy Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3. LLC, and Entergy Nuclear Operations, Inc. -Radiological Issues; and2. Proposed Findings of Fact of Entergy Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3, LLC, and Entergy Nuclear Operations, Inc. -Radiological Issues,to be served on all counsel of record in the above-captioned action via First Class Mail and/or e-mail as specified in the appended Service List.William JjTrachDated: April 27. 2012.1 ..- _1298 ,i_5 I SERVICE LISTI Updated 4/27/2012)

Service by E-mail and First Class NMailMIaria E. VillaDaniel P. O'Connell Administrative Law JudgesOffice of Hearings and Mediation ServicesNew York State Department ofEnvironmental Conservation 625 Broadway, First FloorAlbany. New York 12233-1550 5 18-402-9003 518-402-9037 (tfax)mevilla(iaw.dec.state.nv.us dInoconne(a.

2w.dec.state.nv.us Mark D. Sanza, Esq.Assistant CounselWilliam G. Little, Esq.Associate CounselCOUNSEL FOR DEPARTMENT STAFFNew York State Department of Environmental Conservation Division of Legal Aflairs625 Broadway.

14"h FloorAlbany, New York 12233-1500 518-402-9195 518-402-9018 (fax)wgfittle(&gw.dec.state.n

v. usmdsanza)gw.dec.

state. ny. usRobert L. Sweeney, Esq.COUNSEL FOR AFRICAN AMERICANENVIRONMENTALIST ASSOCIATION Whiteman Osterman

& HannaOne Commerce PlazaAlbany, New York 12260518-487-7670 518-487-7777 (fax)rsweencv(,woh.com Mark Lucas, Esq.COUNSEL FOR RIVERKEEPER INC.,SCENIC HUDSON, INC. and THENATURAL RESOURCES DEFENSECOUNCILRiverkecper, Inc.20 Sccor RoadOssining.

New York 10562914-478-4501, ext. 241914-478-4527 (fax)rtroutman(awriverkeeper.org iiil cas@riverkeeper.org Richard L. Brodskv'121 Saw Mill River RoadWhite Plains, NY 10607Tel: 914.720.8830 richardlIhrodsk v'd.:wmail

.comMclissa-Jean Rotini, Esq.Assistant County Attorney.

Of CounselWcstchestcr County Attorney's OfficeMichaelian Office Building148 Martine Avenue, 6"' FloorWhite Plains, NY 10601914-995-3630 9 14-995-3132 (Fax)Email: NIJ RI~ I(wstchcstertgov.

com01.31,A1_'2-

S08 1 Thomas F. Wood, Esq.lTown Attorney.

Town of. Cortlandt D)aniel Riesel, Esq.COUNSEL.

FOR TOWN OFCORTLANDT Sive. Paget & Riesel. P.C.460 Park Avenue, 10th FloorNew York, New York 100222 12-421-2150 212-421-1891 (fax)driesel(iedsprlaw.com Michael J. Delaney.

[-sq.Director, Energy Regulatory AffairsNew York City Department ofEnvironmental Protection 59-17 Junction Boulevard

Flushing, NY 11373(718) 595-3982mdelaney(2iAdep.nve.gov Robert J. Glasser, Esq.Robert J. Glasser.

P.C.COUNSEL.

FOR CENTRAL.

HUDSON GAS &ELECTRIC CORPORATION 284 South AvenuePouphkccpsie, New York 12601Cellphone (preferred):

646-318-0522 845-486-5292 845-486-5782 Bob. alasserC(,robertiigasserpc.com Norris McDonaldPresident Center for Environment, Commerce

& EnergyAFRICAN AMERICAN ENVIRONMENTALIST ASSOCIATION 1629 K Street, N.W., Suite 300Washington, D.C. 20006301-265-8185 (direct)443-569-5102 norrismcdonald

@&msn.com www,'.aaenvironment

.com/CECE.htm I)anicl Ricscl. E-sq.Victoria Shiah. Esq.Adam Stolorow, Esq.Sive. Paget & Riescl, P.C.460 Park Avenue. 10"' FloorNew York, NY 10022driesel(&,sprlaw.corn vshiah(iisprlaw.com astolorow(ZF-sprlaw.

coinService E-mail OnlyIJii,*\ ~3~'t~M I Ned SullivanPresident, Scenic Hudson, Inc.One Civic Center Plaza, Suite 200Poughkeepsie, New York 10591845-473-4440, ext. 224845-452-7567 (fax )usul li van(cvsccnichudson.oru HIayley Mauskapt',

Esq.Environmental Advocacy Associate Scenic Hudson. Inc.One Civic Center Plaza, Suite 200Poughkeepsie, NY 10591845-473-4440, ext. 210845-473-2649 (fax)hmauskaofrd/iscenich udson.ori Paul Schwartzberg Land Projects Specialist Scenic Hudson. Inc.One Civic Center Plaza. Suite 200Poughkeepsie, New York 10591845 242-2915845 255-2827 (fax)schwartzberL,,uiýsceni chudson .ori,Karl S. Coplan, Esq.Daniel E. Estrin, Esq.Supervising Attorney/Adjunct Professor ofLawPace Environmental Litigation Clinic, Inc.Pace University School of Law78 North BroadwayWhite Plains, New York 10603914-422-4343 914-422-4661 (fax)kcoplan6iaaw.pace.

cdudestrin(Wlaw.pace.edu Intems:Amber Patersonapaierson(r'law.pace.edu Kimberly Kleinkklein(a:.alw.pace.edu Geoffrey H. Fettus, Esq.Senior Project AttorneyCOUNSEL FOR NATURALRESOURCES DEFENSE' C)UNCII.1200 New York Avenue, N.W., 400Washington, D.C. 20005202-289-237 1202-289-1060 (fax),., fettus(,i,.nrdc.ora Deborah Brancato.,

Esq.Staff AttorneyRiverkeeper, Inc.828 South BroadwavTarrytown.

New York 10591914-478-4501.

ext. 230914-478-4527 (fax)dbrancato(iw.riverkcepcr.or, 1.1f.\.\22 731(:', i Phillip H. Musegaas, Esq.Hudson River Program l)irector Riverkeeper.

Inc.828 South BroadwayTarrvtown.

New York 10591914-478-4501.

ext. 224phillipaiiriverkccepr.orgi Frank V. Bifira, Esq.COUNSEL.

FOR MIRANT BOWL.INEI liscock & Barclay.

LIT.P50 Beaver StreetAlbany, New York 12207518-429-4224 518-427-3487 (fax)fbi fcra(241hblaw.com Sam M. Laniado.

Esq.David B. Johnson, Esq.Read and Laniado.

LLPCOUNSEL FOR INDEPENDENT POWER PRODUCERS OF NEW YORK25 Eagle StreetAlbany, New York 12207-1901 518-465-9313 51 8-465-93 15 (fax)smJl(ireadlaniado.corn dbj.Zz.:rcadlaniado.corn Steven Blow, Esq.Assistant General CounselNew York State Department of PublicServiceAgency Building ThrceEmpire State PlazaAlbany, New York 12223-1350 518-474-6955 518-486-5710 (fax)steven.blow(i&dps.nv.

twovKelli M. Dowell, Esq.Assistant General Counscl/.-nvironmental Frntergy Services.

Inc.308 East Pearl Street. Suite 700Jackson, MS 39201601-969-2596 Cell: 601-519-6823 601-969-2696 Faxkdowell~entergy.com 41,J3A:2.2-7

)., I NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, ILLC, Entergy DEC App. Nos. 3-5522-00011/00030 (Unit 2)Nuclear Indian Point 3, LLC, and Entergy 3-5522-00105100031 (IP3)Nuclear Operations, lnc.'s Joint Application for CWA §401 Water Quality Certification POST HEARING MEMORANDUM OF ENTERGY NUCLEARINDIAN POINT 2, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC,AND ENTERGY NUCLEAR OPERATIONS, INC.RADIOLOGICAL ISSUESENTERGY NUCLEAR INDIAN POINT 2, LLCENTERGY NUCLEAR INDIAN POINT 3, LLCENTERGY NUCLEAR OPERATIONS, INC.By Their Attorneys, John C._ Englanater, Esq.-'Elise N. Zoli, Esq.William J. Trach. Esq.Robert 1I. Fitzgerald.

Esq.GoodwinProcter llPExchange PlaceBoston. MA 02109-2881 (617) 570-1000Dated: April 27, 2012 TABLE OF CONTENTSPagePRELIMINARY STATEMENT

..................................................................................................

1RELEVANT FACTS ...........................................................................................................

31. Indian Point's Radiological Releases

..................................................................

32. Site G roundwater Investigation

.........................................................................

43. Regulatory Oversight of Entergy's Unplanned Releases

...................................

54. Compliance with All Regulatory Requirements

.................................................

6PROCEDURAL HISTORY ......................................................................................................

9ARGUMENT

................................................................................................................................

11!. NYSDEC Staff's Denial of the Application on the Basis of Radiological Releases from Indian Point Is Outside NYSDEC's Statutory CWA Authority and Is Preempted by Federal Law .................................................................................

11A. NYSDEC has no statutory authority to regulate radiological releases fromNRC-regulated facilities under the CWA ........................................................

I IB. NYSDEC is preempted from regulating Indian Point's radiological releases

...........................................................................................................

..131. The evidence adduced at hearing mandates a determination that theNotice is preempted, which the Issues Ruling recognized as apossibility depending on the facts .........................................................

13a. The NRC does regulate Indian Point's unplanned radiological releases

......................................................................

15.b. Entergy's unplanned releases fully comply with NRCradiation protection limits and other applicable regulations

.........

182. New case law post-dating the Issues Ruling confirms thatNYSDEC has no authority to regulate Indian Point's radiological re lease s ......................................................................................................

2()!1. Even if NVSDEC Has Some Authority to Regulate Radiological Releasesfrom Indian Point, NYSDEC Staff's Attempt to Deny the WQC on the Basisof Radiological Releases Is Unsupported and Improper

........................................

21A. The Notice is improper on its face, as NYSDEC Staff employed the wrongstandard in purporting to deny the Application

.....................................................

2i B. The unplanned release of radiological materials from Indian Point has notimpaired the Hudson River for its best usage .................................................

231. Entergy's witnesses and evidence demonstrate that there is noscientitic basis to conclude that unplanned releases from IndianPoint have impaired or will impair the Iludson River for its bestuses ....................................................................................................

..2 32. Both NYSDEC and the NRC agree with Entergy's conclusion thatunplanned releases have not impaired the best usage of the HudsonR iver .....................................................................................................

..263. DEC Staff offered no evidence to support its assertion thatunplanned releases have the potential to impair the best usage ofthe H udson River ................................................................................

284. Riverkeeper's witness offered no relevant testimony regarding theeffect of Indian Point's unplanned releases on the best usage of theH udson R iver ......................................................................................

..3 15. Entergy has demonstrated that there are reasonable assurances thatany potential unplanned radiological releases from Indian Pointduring the license renewal period will not impair the best uses ofthe H udson River ...................................................................................

32a. The sources of past unplanned releases from Indian Pointhave been eliminated or remediated

.........................................

32b. Entergy has implemented programs to prevent future leaksof radiological materials from Indian Point ..............................

34c. Entergy's long-term groundwater monitoring system hasbeen designed to identify releases from systems, structures and components containing radiological materials shouldthey leak in the ffiture ...............................................................

35C. DEC Stafrs attempts to support the proposed denial of the Application ongrounds other than those set forth in the Notice are improper and shouldbe rejected

............................................................................................................

3 61. NYSDEC Staff s attempt to support the proposed denial ongrounds not set forth in the Notice should be rejected as a matter oflaw ....................................................................................................

... .3 72. Mr. Kolakowski conceded that ECL § 17-0807(1) and 6 NYCRR§750-1.3(a) are not proper grounds for denying Entergy's A pplication

........................................................................................

..403. Radiological discharges from NRC-licensed lhcilities are notregulated under the SPDES program and, therefore, ECL § 17-0807(4) cannot be a basis for denying Entergy's Application

..............

404. Mr. Kolakowski's insertion of an allegedly new ground for denialon the stand is simply the statutory authority for the regulatory requirement that discharges comply with applicable water qualitystandards

............................................................................................

..42ii D. The Department did not deny Entergy's Application on the basis ofgroundwater concentrations, and any attempt to do so would likewise bepreempted and unsupported in law and fact ...................................................

431. Federal law pre-empts any state regulation of radiological groundwater concentrations beneath Indian Point ...............................

432. Even if the regulation of onsite groundwater was not pre-empted.

§401 of the CWA applies only to discharges to surface waters ............

433. EPA's Safe Drinking Water Act standards do not apply to thegroundwater beneath Indian Point ........................................................

44REQ UESTED RELIEF ..........................................................................................................

45III Entergy Nuclear Indian Point 2, LLC, Eniergy Nuclear Indian Point 3. LLC and EntergyNuclear Operations, Inc. (collectively, "Entergy")

submit this post-hearing memorandum andaccompanying proposed findings of fact to demonstrate that this Tribunal should disregard theNew York State Department of Environmental Conservation

("NYSDEC" or "Department")

Stalfs April 2, 2010 proposed notice of denial (the "Notice")

of Entergy's application (the"Application")

for a Water Quality Certification

("WQC") under § 401 of the federal CleanWater Act ("CWA") on the basis of unplanned releases of radiological materials firom IndianPoint to the Hudson River.PRELIMINARY STATEMENT The Notice's proposal that the Commissioner deny Entergy's WQC Application based onthe discharge to the Hudson River of groundwater containing inconsequential amounts ofradionuclides resulting from the operation of Indian Point Units I and 2 is without basis in law orfact. First, NYSDEC lacks jurisdiction to regulate radiological releases from Indian Point under§ 401 of the CWA because Congress has expressly exempted radiological materials subject toregulation by the Nuclear Regulatory Commission

("NRC") from the reach of the CWA.Furthermore, even if regulation of Indian Point's releases were not outside the scope ofNYSDEC's statutory authority under the CWA, federal field preemption prohibits the proposeddenial by NYSDEC Staff on radiological

grounds, as sole authority over the regulation ofradiological materials from NRC-licensed facilities has been given to the NRC by the AtomiclEnergy Act ("AEA".).

Indeed, NYSDEC has repeatedly acknowledged its lack of authority under the CWA to regulate radionuclide releases from Indian Point and other nuclear facilities, and NYSDEC Staff provides no credible basis tbr its inconsistent position in this case.Furthermore, even if N YSI)EC possessed jurisdiction to regulate Indian Point'sunplanned

releases, the Notice is deficient as a matter of law. NYSDEC Staff premised the Notice on the unsubstantiated assertion that Indian Point's radiological releases "could"potentially impair the Hudson River for its best uses. The Notice was thus infirm when issued inApril 2010. because it was based not on an analysis

-as required by law -of whether there werereasonable assurances that Indian Point's unplanned releases would comply with the designated best uses of the Hudson River, but rather on mere speculation about the possibility of futurereleases impairing the best uses of the Hudson River. Such speculation cannot as a matter of lawsupport the Notice. particularly in light of the uncontroverted findings of the NRC, NYSDECradiological

experts, and the New York State Department of I lealth ("NYSDOH"),

all of whomconcluded that the radiological releases at issue in this proceeding (i) did not violate any federalor state radiological release standards, and (ii) posed no threat to public health and safety or theenvironment.

The evidence adduced at hearing proves the utter lack of any factual basis for NYSDECStaff's Notice. The uncontroverted testimony of Entergy's leading radiological experts is thatthe unplanned radionuclide releases from Indian Point are insignificant, with a total annual doseto a hypothetical maximally-exposed individual of less than that received by eating a singlebanana. Consequently.

there is no evidence that there has been any impact on human health orsafety or Hudson River biota from the releases.

This evidence is corroborated by theindependent assessment performed by NRC investigators and NYSDEC's own radiological

experts, which confirmed that Indian Point's releases have had no effect on the best uses of theIludson River and are otherwise in compliance with applicable law. In what can only be seen asan acknowledgement of the lack of any credible evidence to support its position.

N YSDEC Staffrefused to present the testimony of its radiological experts who actually participated in theinvestigation of Entergy's unplanned

releases, instead oftering the testimony of a single staff engineer.

Paul Kolakowski.

who conceded that he had no radiological

training, education, orexpertise, had performed no dose or risk assessment, and offered no criticism of the evidenceoffered by Entergy.

Indeed, time and again, Mr. Kolakowski conceded that NYSDEC Staff sposition.

as reflected in the Notice and his prefiled testimony, was either incorrect or not inconformity with applicable law.For all of these reasons, as set forth in greater detail below, this Tribunal should find thatNYSDEC Staff did not properly purport to deny the Application based on radiological considerations.

RELEVANT FACTS'1. Indian Point's Radioloeical ReleasesIndian Point Units 2 and 3 have operated pursuant to 40-year NRC-issued licenses since1973 and 1975, respectively.

Proposed Findings of Fact ("PFF"),

at ¶ 1. Pursuant to therequirements of those licenses, releases of radiological materials from Units 2 and 3 into theHudson River must comply with all release requirements of the AEA, and NRC regulations promulgated pursuant thereto.

These include "planned" or routine releases of radiological materials incident to the everyday operation of the Units, as well as "unplanned,"

or non-routine releases that occur as a result of operational occurrences such as leaks or spills.2 PFF at ¶ 2.Both such -planned" and "unplanned" releases are regulated by the NRC pursuant to its authority under the AEA. and are authorized by Entergy's federal NRC operating licenses.

See PFF at 11 3.The factual citations in the Memorandum of Law are to lintergy's Proposed Findings of Fact ("PFF"),submitted along with the Memorandum of Law. All citations to the record are in the format set ftrth in thePFF.I.Entergy notes that the Notice only asserts regulatory authority over Indian Point's unplanned discharges, anddoes not seek to regulate Indian Point's planned discharges.

This Tribunal granted Entergy's motion in limineto preclude any evidence regarding the effect of Indian Point's planned discharpes on the Hudson River. SeePFF at ¶ 108. As set ftrth in Section I, below. NYSDEC Staff's attempt to distinguish between Indian Point'splanned and unplanned releases is without basis in law, as both are regulated by the NRC pursuant to itsexclusive authoritv over radiological releases from licensed nuclear facilities.

2. Site Groundwater Investigation In 2005, Entergy identified the presence of small, unplanned releases of radionuclides togroundwater at Indian Point. PIF at ¶¶ 13-14. Two sources of radionuclides ultimately wereidentified:

(1) the Unit 2 spent fuel pool ("SFP"),

and (2) the Unit I SFPs. PFF at ¶¶ 14. 28(c),45(g).3 The identified unplanned releases from the Unit I and the Unit 2 SFPs have been thesubject of a comprehensive NRC-overseen investigation (in which NYSDEC and NYSDOHhave participated as stakeholders),

with the sources of radionuclides

located, eliminated, andredressed.

PFF at ¶¶ 35-46. The groundwater conditions as a result of these past releases alsohave been intensively investigated under NRC's oversight, and are currently being monitored through an extensive groundwater monitoring network that has demonstrated, and is expected tocontinue to demonstrate, decreases

-or attenuation

-of the original identified radionuclide conditions.

PFF at ¶¶ 35-46, 61-69. Thus, it is undisputed that the sources of past unplanned releases of radionuclides at Indian Point have been identified and remediated.

Entergy furtherdetermined that some amount of those radionuclides discharged into the I ludson River, althoughin extremely small amounts that were a fraction of the allowable radiation protection limitspursuant to Indian Point's NRC licenses and NRC regulations, and that had no impact on the bestuses of the Hudson River. PFF at ¶¶ 32(b), (g), 38, 45(k), 119-20.Specifically, following the discovery in August 2005 of shrinkage cracks exhibiting moisture on an excavated exterior Unit 2 SFP wall. Entergy retained GZA GeoEnvironmental, Inc. ("GZA").

a leading hydrogeologic consulting firm. to perform a comprehensive.

multi-year groundwater investigation of all three Indian Point units and surrounding areas, fbcusing onpotential discharges of radionuclides to groundwater and the potential movement of thatThere have been no past releases of radionuclides from the Unit 3 SFP, which contains a tell-tale drain systemthat provides high confidence that no potential future radionuclide releases to the environment will occur. PFFat¶¶ 12, 28(d).4 groundwater on and off the Indian Point site. PFF at ¶¶ 19-20. 24. The purpose of theinvestigation was to identify the nature and extent of radiological groundwater contamination and, by using state-of-the-practice science and technologies, to develop a comprehensive understanding of the Indian Point site hydrogeology.

PFF at ¶! 20-21, 24. This led to thedevelopment of the January 7, 2008 Site Investigation Report ("GZA Report"),

a key component of which was the Conceptual Site Model, which provides a thorough understanding of sitegroundwater flow (and thus radionuclide transport) at Indian Point. PFF at ¶¶ 25-26.Specifically, the GZA Report identifies two distinct "plumes" of groundwater containing radionuclides.

one containing principally

tritium, and one containing principally strontium.

PFFat ¶ 28(a). The "tritium plume" is primarily a result of past releases of water from the Unit 2SFP, and the "strontium plume" is primarily a result of past releases of water from Unit I SFPs.PFF at ¶ 28(a), (c). The total radiological activities of these two plumes have been decreasing since source termination, with periodic, localized fluctuations in activity and overall reductions in the rate of decrease, as would be expected.

PFF at ¶ 66. The total amount of tritium in theUnit 2 plume has decreased substantially

-approximately 89 percent -since the shrinkage crackleaks were contained in late 2005. PFF at ¶¶ 67. Likewise, the total amount of strontium in theUnit I plume has decreased substantially

-approximately 70 percent -since the spent fuel wasremoved from the Unit I SFPs and the pool water was subsequently drained in late 2008. PFF at'! 68.3. Regulatory Oversight of Entergy's Unplanned ReleasesPursuant to its exclusive regulatory jurisdiction over Indian Point's unplanned

releases, the NRC oversaw Indian Point's groundwater investigation, issuing a comprehensive reportanalyzing the results of the investigation and evaluating Indian Point's compliance with liederal radiation protection limits. The conclusion of the NRC was identical to Entergy's, namely, thatthe low-level discharges of radiological materials to the Hudson River from releases from theUnit 1 and Unit 2 SFPs were in full compliance with all federal radiation protection requirements.

and that the releases did not, and in the future would not, have any impact onpublic health and safety or the environment.

PFF at ¶¶ 41, 45. 111-12.NYSDEC and NYSDOH also participated as stakeholders in Entergy's site investigation, analyzing split samples of groundwater to confirm the accuracy of Entergy's

testing, performing a test of Hudson River fish to confirm the releases had no impact on fish, and providing inputinto the analysis, direction, and interpretation of the results of the investigation.

See PFF at I¶32-34. NYSDEC issued findings at the end of its investigation that mirrored those of Entergyand the NRC, concluding that: (i) the discharges from the SFP releases to the IHudson Rivercomplied with all state surface water radiological limits; (ii) there was no evidence that thereleases had any effect on aquatic biota in the Hudson River; and (iii) Entergy's remedialapproach for the releases was acceptable.

PFF at ¶¶ 32-34.4. Compliance with All Regulatory Requirements NRC regulations for the release of radiological materials require all NRC-licensed nuclear facilities to calculate the annual release of radiological materials to the environment, andto calculate the dose to a hypothetical maximally-exposed individual resulting from thosereleases, in order to ensure compliance with NRC's radiation protection standards and "As LowAs Reasonabl, Achievable"

("ALARA")

design objectives.

10 C.F.R. Part 50, Appendix 1; PFFat ¶1 110-11, 115-17. NRC's regulations do not differentiate between planned releases andunplanned

releases, both of which are subject to NRC's regulation and must be quantified.

PFFat ¶ 110. 112. Consistent with NRC guidance and regulations, Entergy's Offsitc Dose6 Calculation Manual ("ODCM")

specifies the methods for performing the required quantification and dose assessment of all pathways of exposure, including radionuclides from unplanned releases entering the Hudson River. PFF at I 116. Consistent with its ODCM. Entergy performscalculations annually to account for the dose from its unplanned releases.

PFF at ¶¶ 110, 117.119. Entergy's unplanned releases comply with all NRC radiological discharge limits by a verywide margin, as the NRC itself confirmed in its comprehensive review of Indian Point's sitegroundwater investigation.

PFF at ¶ 12 1(a). Indeed, the combined dose from Entergy's unplanned releases is less than 0.1 percent of the NRC's ALARA guidelines.

PFF at ¶ 121(a).Specifically, the annual dose to a hypothetical maximally-exposed individual from theunplanned releases from Indian Point since Entergy began calculating such doses (in 2005) hasbeen a small fraction of one millirem, as compared to the annual average dose of 620 milliremthat the typical U.S. resident receives in one year from all radiation sources.

PFF at ¶¶ 121-22,119, 143. The estimated dose attributable to unplanned releases in 2010. the year for which themost recent data were available, was 0.0002 mrem. PFF at II¶ 119, 143. In comparison, the dosethat an individual receives from eating a single banana, which contains small amounts ofradioactive potassium, is 0.01 mrem, orders of magnitude higher than the dose to thehypothetical maximally-exposed user of the Hudson River from Indian Point's entire annualunplanned releases.

PFF at ¶ 143.The dose from Indian Point's unplanned releases can be translated into health risk. as itwas by a leading radiological dose assessment expert. Dr. Owen Hoffman, using a well-accepted model for calculating cancer risk from radiation exposure.

Dr. Hoffman concluded that livebillion people would have to be maximally-exposed to an entire year of Entergy's unplanned radiological releases for there to be an expectation of one increased incidence of cancer in later7 life, a conclusion that was undisputed by any other witness, whether for NYSDEC Staff orRiverkeeper.

PFF at 4,¶ 136. 147. Given the likelihood that no individuals are maximally-exposed to Indian Point's unplanned

releases, Dr. Hoffman concluded that there will be zeroadverse health impacts expected to individuals using the Hudson River (as measured by theexpectation of excess cases of radiation-induced disease) as a result of Entergy's unplanned
releases, both historically and during the license renewal term. PFF at ¶¶ 138, 145.Moreover, all investigations to date, including those performed by the radiological division of NYSDEC, have concluded there is no evidence of radiological material from IndianPoint in Hudson River aquatic biota. PFF at ¶¶ 33-34. Further, using commonly-accepted methods for calculating the dose to aquatic biota in the vicinity of Indian Point from theunplanned
releases, Dr. Hoffman concluded, and it is undisputcd, that the dose per day to aquaticorganisms is orders of magnitude below all accepted limits for the protection of aquatic biota.PFF at ¶¶ 139-142.

As such, there is no evidence that Indian Point's unplanned releases have, orcould in the future have, an adverse effect on Hudson River aquatic biota. PFF at ¶ 141.While effects on groundwater are not subject to state certification requirements under§ 40 1. it is equally clear that drinking water has not been affected by Indian Point's unplanned releases.

It is undisputed that Indian Point does not utilize groundwater either for plantoperational or for potable purposes.

PFF at ¶ 8. In fact, there are no active potable water orother production wells in the vicinity of Indian Point. PFF at ¶ 9. Likewise.

in the vicinity ofIndian Point, the Hudson River is not used for drinking water purposes.

PFF at ¶ 10. Instead,drinking water in the vicinity of Indian Point is supplied from surface water reservoirs located inWestchester County and the Catskills region; the nearest of these reservoirs to Indian Point is theCamp Field Reservoir, which is located 3.3 miles north-northeast of Indian Point. in a cross-8 gradient direction (i.e.. perpendicular to the direction that groundwater flows), severalwatersheds away and at an elevation of several hundred feet above the Indian Point power block.PFF at ¶ 11. Moreover, it is undisputed that groundwater beneath the Indian Point power blockdoes not flow off-site to anywhere other than the Hudson River. Thus, it is undisputed that nopotable water or other production wells are reasonably subject to influence by on-site conditions at Indian Point.PROCEDURAL HISTORYBy letter dated April 3. 2009, and subject to a reservation of rights,4 Entergy submitted toNYSDEC the Application for water quality certifications for Unit 2 and Unit 3 under § 401 ofthe CWA. PFF at ¶ 76. The Application was submitted in relation to Entergy's application tothe NRC to renew the federal operating licenses for Indian Point Units 2 and 3 for an additional 20 years, which would extend the operation of Unit 2 to September 28, 2033 and Unit 3 toDecember 12, 2035. PFF at ¶ 77. On May 13, 2009, NYSDEC Staff requested additional information from Entergy, including with respect to whether releases of radiological materials from Indian Point to the Hudson River comply with New York State water quality standards

(-NYWQS").

PFF at¶ 79. On February 12, 2010, Entergy responded to NYSDEC Staff'srequest, asserting (i) that NYSDEC had no authority to regulate radiological releases from IndianPoint either under the CWA or as a result of the doctrine of federal preemption, and (ii) that evenThe issue of whether § 401 applies at all to the renewal of a federal operating license is certainly not assured.See. e.g.. NRC, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding James A. FitzPatrick Nuclear Power Plant (NUREG-1437, Supplement

31) Final Report (Jan. 2008). at A-18("we do not believe that an entirely new Section 401(aX l) certification must always be tendered as part of therenewal application,"

e.g., where existing WQC "did not include an expiration date" or certification "isevidenced by a valid state water quality permit which is effective into the renewal period").

Specifically, Entergy does not concede any obligation to obtain a new WQC, in light of its existing SPDES permit andWQCs. See, e.g., Indian Point License Renewal Application, App. E (Environmental Report),

at §9.4 (Apr. 30.2007). Entergy nonetheless has pursued the Application, reserving all rights, in the interest of cooperation andavoiding disputes that could result in litigation and material practical interference with Entergy's licenserenewal application before the NRC. See Entergy Ex.# 161 at 5.9 if NYSDEC had authority to regulate Indian Point's radiological

releases, such releases did notviolate NYWQS. PFF at ¶. 80.On April 2. 2010. NYSDEC Staff issued the Notice, proposing to deny the WQCApplication due to. among other things, the release of radiological materials from the IndianPoint site to the Hudson River. PFF at ¶ 81. Specifically, the Notice asserted that "the discharge of radiological substances (including, but not limited to. radioactive
liquids, radioactive solids,radioactive gases, and stormwater) from the Indian Point site into a water of the State, here theI ludson River. are 'deleterious substances' and could impair the water for their best usage [citing6 NYCRR §703.2]"

and that "radiological leaks have the potential to impair the best use of thewater designated in 6 NYCRR §70 .1 L." PFF at ¶ 83. Notably, the Notice did not reach aconclusion that releases of radiological materials either had impaired, or will impair during thelicense renewal term, the Hudson River for its best uses, but merely that they "could" or "had thepotential" to do so. Furthermore, the Notice did not attempt to reconcile the conclusion thatIndian Point's unplanned releases "could" result in an impairment of the best usage of theHudson River with the contrary conclusion made by NYSDEC's and NYSDOH's radiological experts participating in the Indian Point site investigation.

Finally, the Notice did not state anyother reason for the denial of the Application on the basis of radiological releases from IndianPoint. PFF at ¶185.On April 29, 2010, Entergy submitted a request tbr adjudicatory hearing to challenge theNotice, again asserting that NYSDEC Staff's attempt to deny the Application based uponradiological releases

%vas: (i) outside NYSDEC's statutory authority under the CWA;(ii) preempted by 1ederal law: and (iii) without lhctual basis. PFF at ¶ 86. On December 13,2010. this Tribunal issued the Ruling on Proposed Issues for Adjudication and Petitions for Party10 Status in this proceeding (the Issues Ruling").

A3 to Entergy's legal arguments, the IssuesRuling: (i) did not address the issue of whether the regulation of radiological releases wasoutside NYSDEC's statutory authority under the CWA; and (ii) concluded that the issue ofwhether NYSDEC was preempted from regulating Indian Point's radiological releases remainedan "open question."

PFF at ¶¶ 87-88. Accordingly, the Tribunal set for adjudication thefollowing issue: "Whether Department Staff properly denied the WQC application based uponradiological considerations."

PFF at 1 87.Prefiled testimony from the parties' witnesses was received on July 22, 2011, and rebuttalprefiled testimony was received on October 4, 2011. PFF at ¶ 88. A hearing on this issue washeld on November 15-16, 2011, January 1l1,2012, and January 23, 2012. PFF at ¶91.ARGUMENT1. NYSDEC Staff's Denial of the Application on the Basis of Radiological Releasesfrom Indian Point Is Outside NYSDEC's Statutory CWA Authority and IsPreempted by Federal Law.As Entergy has already argued in prior briefing, without definitive ruling from thisTribunal, NYSDEC Staf'os attempt to deny Entergy's Application on the basis of radiological releases from Indian Point is both outside NYSDEC's statutory CWA authority and otherwise preempted by federal law. Entergy expressly incorporates the arguments previously made in itsMemorandum of Law Regarding Threshold Legal Issues. and its Post-Issues Conference ReplyB3rief. and provides further argument to address the issues, including in light of the relevantevidence adduced at hearing.A. NYSDEC has no statutory authority to regulate radiologaical releases from NRC-regulatcd facilities under the CWA.A threshold issue in this proceeding, which Entergy has raised but the Tribunal has neverruled on and that must be decided before the Tribunal may assess the impacts of Indian Point'sII unplanned

releases, is whether NYSDEC's certification authority under § 401 of the CWAallows for regulation of discharges of radiological materials from an NRC-regulated facility.

Under § 401(a) of the CWA, a reviewing state's authority is limited to determining whether any"discharge" from a facility, as that term is defined in the CWA, will comply with relevant statewater quality standards promulgated pursuant to state authority granted by the CWA. To thatend, § 401(a) states as follows:Any applicant for a Federal license or permit to conduct anyactivity including, but not limited to. the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency acertification from the State in which the discharge originates orwill originate, that any such discharge will comply with theapplicable provisions of sections 1311, 1312, 1313, 1316, and1317 [i.e., §§ 301, 302, 303, 306, and 307 of the CWA].33 U.S.C. § 1341(a)(1).

Thus, § 401(a) only permits states to certify compliance of "discharges" as that term is defined by the CWA. According to 33 U.S.C. § 1362(16),

the word "discharge" refers a "discharge of a pollutant,"

and a "discharge of pollutants,"

as those terms are defined inthe CWA. As set forth below, radiological releases from NRC-regulated facilities are not"discharges" under the CWA, and therefore cannot be regulated pursuant to NYSDEC's CWAauthority.

The U.S. Supreme Court has held that Congress has expressly limited the ability of eitherthe federal government

(.through the EPA) or states to regulate, pursuant to their CWA authority.

releases of radiological materials from NRC-regulated facilities.

See Train v. Colorado PublicInterest Research Group. Inc. 426 U.S. I (1976). In Train, the Court unequivocally held thatCongress expressly exempted the regulation of radiological releases from nuclear facilities fromthe reach of the CWA. holding that the discharge of NRC-regulated materials did not constitute 12 the "discharge of a pollutant" as defined under the CWA. 1M at 15.5 Accordingly, under theCWA, neither the EPA nor the states may issue or enforce WQS relating to radiological releasesfriom NRC-regulated facilities, and the limited ability of a state to certify the compliance of"discharges" with WQS under § 401 (a) of the CWA does not extend to radiological releasesfrom AEA-regulated facilities.

Recognizing this limitation, NYSDEC has never regulated Indian Point's radiological releases through the SPDES permit program, but rather has consistently maintained that it has noauthority to do so. This position was set forth clearly by NYSDEC in the current, ongoingSPDES permit renewal proceeding:

[R]adioactive releases or discharges from nuclear power generation facilities areregulated, today, by the NRC, not NYS.... [C]oncems for possible radioactive releases in the cooling water discharged from Indian Point, or concerns forpossible health effects from radioactive emissions, should be addressed directly tothe NRC, not the Department, either as a license compliance matter or in thecourse of license extension proceedings.

Such concerns cannot be addressed inconditions to a SPDES permit.See Entergy Ex. #120, pp. 90-91. Accordingly, because Entergy's radiological releases are not'discharges" subject to CWA regulation, NYSDEC Staff has no statutory authority under § 401of the CWA to address those releases, and this Tribunal should recommend that theCommissioner decline to deny the WQC based on Indian Point's unplanned radiological releases.

13. NYSDEC is preempted from regulating Indian Point's radiological releases.

I. 'lhe evidence adduced at hearing mandates a determination that the Notice ispreempted.

which the Issues Ruling recognized as a possibility depending on thefacts.Enterev notes that this limitation is separate and apart from the limitation of federal preemption resulting fromthe passage of the AEA; rather, it is a statutory limitation of authority pursuant to the CWA, and is an issue thisTribunal has never decided.13 The Tribunal has already recognized that the issue of field preemption may apply to barNYSDEC's regulation of Indian Point's unplanned

releases, holding that the issue was an "openquestion" to be decided on the facts of the case. Issues Ruling, p. 25. Specifically, the IssuesRuling raised the possibility that the field of exclusive federal regulation over radiological materials under the AEA might not extend to unplanned releases (i.e., leaks from pipes or othercomponents) of those materials lirom NRC-licensed facilities.

See Issues Ruling, p. 26 (statingthat federal precedent "does not appear to contemplate a situation where, as here, radioactive materials are leaking from a facility" or "a situation where radioactive material is leaking from anuclear power plant and entering groundwater").

The Issues Ruling thus found that the "openquestion" regarding the applicability of federal preemption was premised on what this Tribunalviewcd as two kcy factual issues: whether the radiological rcleascs from Indian Point werc(i) regulated by the NRC,6 and (ii) in compliance with NRC regulations.

See Issues Ruling, p. 26(stating that nuclear plants at issue in certain federal cases were found to be operating incompliance with federal radiation protection standards, but "'[that is not the case here, becausethe radioactive material that has escaped from the Facilities is not a regulated discharge").

7 Ananalysis of NRC rules and regulations, as well as the evidence adduced at hearing, demonstrates The Issues Ruling also concluded, without explanation, that the leaks of radiological materials at issue in thiscase were not releases "incident to operation."

Issues Ruling. p. 26. This conclusion is not supported in therecord. The leaks involved in this case were associated with operational activities conducted at Indian Point,including the storage of materials in spent fuel pools. PIF at ¶¶1 14-16. 28(c). These activities are -under anyreasonable interpretation of the term -"incident to" the operation of the Indian Point nuclear facilities.

SeeWebster's Third New International Dictionary (2002) (defining "incident" as "occurring or likely to occur esp.as a minor consequence or accompaniment"):

Oxford English Dictionary (defining "incident" as "liable or aptto befall or occur to;" "'relating or pertinent to;" "occurring or liable to occur by the way. or in the course ofsomething else of which it forms no essential part.").Entergy disagrees with the Issues Ruling's conclusion that the question of the applicability of federalpreemption turns on a factual determination of whether radiological releases from a nuclear facility are incompliance with NRC regulations.

As discussed in detail below, and in Entergy's Issues Ruling briefing, thefederal g-overnment.

through the NRC. retains exclusive authority in the area of radiation hazards posed byAEA-licensed facilities and materials.

thus. the determination of whether a facility is in or out ofcompliance with NRC radiation protection regulations is exclusively within the authority of the NRC to determine.

14 conclusively that Indian Point's unplanned releases are both subject to NRC regulation, and infull compliance with all applicable NRC regulations, and as such require a finding thatNYSDEC's attempt to regulate Indian Point's radiological releases is preempted.

a. The NRC does regulate Indian Point's unplanned radiological releases.

NRC's rules and regulations.

as well as the uncontroverted evidence adduced at hearingdemonstrate that the NRC does in fact regulate unplanned releases from nuclear facilities, andhas specifically exercised that regulatory authority with respect to Indian Point's unplanned releases.

The law and the evidence adduced at hearing demonstrates that all NRC licensees arerequired to operate and maintain their licensed facilities and materials so as to keep radiological doses to the public below specified, protective standards, 8 and that these requirements applyequally to planned and unplanned releases.

NRC itself made this clear in a recent policystatement regarding its regulatory review of NRC licensee's groundwater protection programs:

As with any industrial

facility, a nuclear power plant may deviate from normaloperation with a spill or leak of liquid material.
However, the plant design andthe NRC's inspection program both provide reasonable assurance that safetylimits will be met -even in situations where leaks occur. The NRC limits andALARA dose controls apply to both normal effluent discharges andunplanned releases such as leaks or spills containing radioactive materials.

Regardless of the source, each nuclear power plant is required to account for theradioactivity released to the environment, including planned and unplanned releases.

Each licensee is responsible for accounting for the release, evaluating Specifically.

those standards include "Radiation Dose Limits for Individual Members of the Public" found at10 C.F.R. Part 20. Subpart D. See PFF at ¶ 45(c). These provisions establish annual dose limits to individual members of the public from the licensed activity (i.e.. operation of the nuclear power plant and possession anduse of radiological materials).

See 10 C.F.R. §20.1301(a).

Surveys of radiation levels throughout the licensedfacility

-including areas where access is not restricted-are mandatory, and the results of those surveys mustdemonstrate compliance with the dose limits for individual members of the public. See 10 C.F.R. §20.1302(a).

Moreover, nuclear power plants are designed with the objective of maintaining releases of radiological materials to the environment as low as reasonably achievable

("ALARA")

-that is, far below the radiation standards deemed protective of the public and the environment under 10 C.F.R. Part 20. These designobjectives are set forth in Appendix I to 10 C.F.R. Part 50 and establish standards which are a fraction of thePart 20 limits. Compare 10 C.F.R. Part 50, Appendix I, Section II (establishing annual total body dose limit of3 millirem from all exposure pathways) with 10 C.F.R. §20.1301(a)

(establishing annual total body dose limitof 100 millirem) and 40 C.F.R. § 190. 10(a) (establishing annual total body dose limit of 25 millirem).

Appendix I requires a licensee to conduct surveys of radiological conditions at its facility to demonstrate compliance with these design objectives.

See 10 C.F.R. Part 50, Appendix

1.Section IV.B.15 the release relative to NRC regulatory requirements, and reporting the quantity ofradioactivity released and the highest radiation dose to any member of the public.See NRC Policy Issue, "Senior Management Review of Regulatory Approach toGroundwater Protection,"

SECY-1 1-0019, Feb. 9,2011, Enclosure 2 at p. 2 (emphasis added). Moreover, that NRC's limits and ALARA dose controls apply to unplanned releases is reflected in NRC Regulatory Guide 1.21, entitled "Measuring, Evaluating, andReporting Radioactive Material in Liquid and Gaseous Effluents and Solid Waste."which sets forth, in part, the regulatory requirement for measuring and evaluating unplanned

releases, including from leaks and spills, to ensure compliance with NRCrequirements.

Id. at §§ 1.5 ("Monitoring Leaks and Spills"),

1. 10 ("Abnormal Releasesand Abnormal Discharges").

If more were needed, the uncontroverted testimony athearing from Dr. Hoffman.

setting forth the framework for NRC regulation of releasesfrom nuclear facilities, made clear that NRC's regulations apply equally to planned andunplanned

releases, both of which must be reported in the site's Annual Radioactive Effluent Release Reports ("ARERRs"),

and the resulting dose from such releases must becalculated and reported in accordance with the site's Offsite Dose Calculation Manual("ODCM").

PFF at ¶¶ 110-120.

Accordingly, it is simply uncontestable that theunplanned releases at issue in this proceeding are subject to NRC's exclusive regulatory authority.

In confirmation of the fact that Indian Point's unplanned releases are subject to theNRC's oversiuht, the NRC in fact exercised its regulatory oversight over Indian Point'sunplanned releases in this case. Once Entergy notified the NRC that it had identified thepossibility of groundwater contamination at Indian Point, the NRC immediately initiated aspecial inspection to assess this possibility.

See Entergy Ex. #32 (NRC March 16, 200616 Inspection Report) at 1. The NRC documented the initial results of its investigation in a report,which describes the extensive scope of NRC's regulatory oversight of Entergy's unplanned releases:

The inspection examined activities conducted under your license as they relate tosafety and compliance with the Commission's rules and regulations.

and with theconditions of 'our license.

Within these areas, the inspection consisted of aselected examination of procedures and representative

records, observations ofactivities, interviews with personnel, and independent analyses of water samples.Id. Further, the NRC determined in its preliminary investigation "that public health and safetyhas not been, nor is likely to be, adversely affected; and the dose consequence to the public thatcan be attributed to current onsite conditions is negligible with respect to conservatively established NRC regulatory limits."

Id. at 2.The NRC continued with its investigation, and upon the completion of Entergy's groundwater investigation, issued a second inspection report. See Entergy Ex. #34 (NRC May13, 2008 Inspection Report).

Once again, the NRC confirmed the breadth of the regulatory oversight it exercised with respect to Entergy's unplanned releases and subsequent groundwater investigation:

In September 2005, a crack was discovered leaking on the outside of the Unit 2spent fuel pool south wall (approximately 30 feet below the top) duringexcavation of the spent fuel building loading bay. The NRC initiated a specialinspection on September 21, 2005, to investigate the implications of the observedUnit 2 spent fuel pool leakage....

Though the radiological significance of thecircumstance was negligible, the condition was unexpected.

Accordingly, NRCRegion I was authorized by the Executive Director of Operations (EDO) toconduct additional oversight inspection of licensee performance and thecircumstances surrounding this contamination

....Id. at I (Report Details).

Moreover, the NRC increased the scope of its regulatory reviewthroughout Entergy's groundwater investigation:

"]he EDO renewed the increased inspection authorization each year to permitactive and frequent inspection oversight.

As a result, inspection of the Indian17 Point contaminated groundwater conditions evolved to include not onlyradiological environmental and effluent expertise from Region 1. but alsohydrological assessment expertise from NRC's Office of Research, and later,from the US Geological Survey (USGS). The application of such resources permitted the NRC to conduct several independent reviews and assessments ofdata, information, and analysis on which the licensee based its conclusions anddeterminations.

1i. As such, a review of the relevant law, regulations, and the uncontroverted evidence athearing makes clear that Entergy's unplanned releases are subject to NRC oversight.

b. Entergy " unplanned releasesflidly comply with NRC radiation protection limits and other applicable regulations.

[he evidence adduced at hearing also proved that Indian Point's unplanned releases arein full compliance with all applicable federal radiation protection standards.

As set forth above,the NRC conducted an extensive, multi-year review of Indian Point's unplanned

releases, thepurpose of which was to review the releases "as they relate to safety and compliance with theCommission's rules and regulations."

Entergy Ex. #32 at 1 (emphasis added). The NRC'sfindings were unequivocal, concluding that no violation of NRC regulations resulted from thereleases.

First, NRC confirmed that Indian Point adequately surveyed and estimated theunplanned releases to ensure compliance with the NRC radiological dose limits:Upon the initial identification of conditions that provided evidence of anabnormal radiological effluent release affecting ground water. the licenseeimplemented actions that conformed to the radiological survey requirements of 10CFR 20.1501 to ensure compliance with dose limits for individual members of thepublic as specified in 10 CFR 20.1302 ....L'ntergv Lx. 434 at vi. NRC then determined that the unplanned releases were a small fraction ofthe regulatory limits lbr radiological discharges:

The annual calculated exposure to the maximum exposed hypothetical individual, based on application of Regulatory Guide 1. 109,. "Calculation of Annual Doses toMan from Routine Release of Reactor Effluents for the Purpose of Evaluation Compliance with 10 CFR Part 50. Appendix I." relative to the liquid effluentaquatic food exposure pathway is currently, and expected to remain, less than 0.118

% of the NRC's "'As Low As is Reasonably Achievable (ALARA)'"

guidelines ofAppendix 1 of Part 50 (3 mremlyr total body and 10 mrern'yr maximum organ),which is considered to be negligible with respect to public health and safety. andthe environment.

hi. at vii. As such, the unequivocal and uncontested conclusion of the NRC. after a multi-year investigation into Indian Point's unplanned

releases, is that no violation of NRC regulations occurred.

Furthermore, Dr. Hoffman's testimony is completely consistent with the findings of theNRC: he reviewed the Indian Point ODCM and ARERRs, confirmed that the calculations wereperformed correctly, and concluded that radiation levels associated with these leaks were ordersof magnitude lower than the allowable federal regulatory limits designed to protect human healthand the environment.

See PFF at ¶1¶ 114-117, 120-21. The Department agrees with Dr.Hoffman.

See PFF at ¶I 32(g). No contrary evidence was offered during the hearing.Accordingly, the evidence at hearing demonstrates conclusively that Entergy's unplanned releases comply with all NRC rules and regulations.

According to these facts, under the terms of the Issues Ruling, the Notice's proposal todeny the Application based on radiological releases is preempted by federal law. As recognized by this Tribunal in the Issues Ruling, courts have repeatedly cited to federal field preemption ofregulation of radiological releases from NRC-regulated nuclear facilities to invalidate stateattempts to regulate such releases.

Issues Ruling p. 25. The Issues Ruling's sole basis fbrsuggesting that preemption remained an "open question" was the possibility that Indian Point'sradiological releases were either (i) not regulated by the NRC. or 60i) not in compliance witht1deral laws and regulations.

Because the law and evidcnce adduced at hearing demonstrate thatthese liacts are simply untrue, NYSI)EC Staffs proposal to foreclose the relicensing of Indian19 Point based on releases of radiological materials that are both regulated by the NRC and in 4compliance with all NRC requirements is plainly preempted.

2. New case law post-dating the Issues Ruling confirms that NYSDEC has noauthority to regulate Indian Point's radioloical releases.
Moreover, while the case law cited in Entergy's Issues Ruling briefing delineating thescope of federal AFA preemption demonstrates clearly that NYSDEC is preempted fromregulating Indian Point's unplanned
releases, the recent decision in Entergy Nuclear VermontYankee, LLC v. Shumlin,

--- F.Supp.2d

.... 2012 WL 162400 (D. Vt. 2012), removes anyremaining doubt and reaffirms that regulation of Entergy's radiological releases by NYSDEC ispreempted.

Containing the most recent and most extensive review of federal preemption of stateregulation of radiological materials, the decision invalidated the state of Vermont's attempt toregulate the relicensing of the Vermont Yankee nuclear power plant on preemption grounds.

Indoing so, the court held that the state's attempted regulation of the Vermont Yankee relicensing process was both motivated by radiological safety concerns and had the effect of regulating radiological safety aspects of the operation of an NRC-regulated nuclear facility.

Id at *36.After reviewing the case law setting forth the extent of AEA preemption, including the verysame cases relied upon by Entergy in its Issues Ruling briefing, the court concluded that'"[w]here radiological safety concerns are the sole purpose for an enactment or regulation, courtshave easily concluded the state action is preempted."

Id. at *34. The court then concluded thatVermont's attempt to regulate the relicensing of Vermont Yankee was based on concerns aboutradiological safety, including specifically the release of tritium from groundwater into a water ofthe stateof Vermont.

and struck down the statute as preempted under the AEA. IdThe reasoning of U;ertnonl Yankee requires the conclusion that NYSDEC Staff's proposeddenial of the WQC Application based on radiological considerations is preempted.

There can be20 0 no doubt that NYSDEC Staff's Notice, to the extent it relates to radiological considerations, isbased solely upon radionuclide discharges, and therefore perceived radiological safietyconsiderations, associated with the operation of Indian Point. In particular, the Notice stated thatradiological releases from Indian Point could impair the Hudson River for its best usages -thatis, they could pose a hazard to swimmers,

boaters, and fish.9 Mr. Kolakowski also agreed thatthis was a basis for denial stated in the Notice. See PFF at ¶ 83. Accordingly, the Notice fallssquarely within the field reserved to the federal government

-the regulation of radionuclide releases associated with AEA-licensed facilities

-and is preempted.

I!. Even if NYSDEC Has Some Authority to Regulate Radiological Releases fromIndian Point, NYSDEC Staff's Attempt to Deny the WQC on the Basis ofRadiological Releases Is Unsupported and Improper.

For the reasons stated above Entergy continues to maintain that NYSDEC has noauthority to regulate radiological releases from Indian Point. Nevertheless, Entergy hereinaddresses each of the WQS that NYSDEC Staff has contended applies to Indian Point'sunplanned radiological

releases, and demonstrates that there is no factual basis to conclude thatIndian Point will not comply with those standards during the license renewal term. Accordingly, a denial of the requested WQC would be inappropriate.

A. The Notice is improper on its face. as NYSDEC Staffemploved the wrong standard inpurorting to deny the Application.

To begin, it is clear from the outset that the Notice -at least insofar as it is based onradiological considerations

-was improper and should be disregarded:

the Notice is faciallydeficient in that. it applied the wrong standard in purporting to determine that Indian Point did notcomply with applicable WQS. In its Notice. NYSDEC Staff asserted that the radiological As discussed in further detail in Section I!. the best usages of the Hudson River near Indian Point include itssuitability for primary and secondary contact recreation and fish, shellfish and wildlife propagation andsurvival.

21 materials released from Indian Point are "deleterious substances" that "could" or "have thepotential to" impair the Hudson River for its best usages. Entergy Ex. #9, p. 11 (emphasis added)."'

But even if NYSDEC did possess authority to apply CWA-derived WQS to IndianPoint's NRC-regulated radiological

releases, the permissible scope of NYSDEC Staff's review islimited to determining whether there are "reasonable assurances" of an applicant's compliance with applicable WQS during the license renewal term, not simply whether releases "couldimpair the waters for their best usage." See 40 C.F.R. § 121.2(a)(3);

In re Erie Boulevard Hydropower L.P., Decision of the Deputy Commissioner, No. 4-6103-00027/00001-9, 2006 WL2951127, at *7 (Oct. 6, 2006) ("It is also well settled that Clean Water Act § 401 provides theState with only a limited role.. .to certify whether a 'reasonable assurance' exists that theproject will not violate applicable water quality standards promulgated by the State and approvedby the federal Environmental Protection Agency ("EPA") pursuant to Clean Water Act § 303.")As NYSDEC Staff's lone witness conceded during this proceeding, the release of anymaterial to the waters of the state "could" impair the waters for their best usage, and therefbre themere possibility of ruture impairment is not the proper standard to apply to a WQC application.

See PFF at ¶ 153. The failure to apply the proper standard is rendered even more egregious by10 The narrative water quality standard for "deleterious substances" consists of two components.

It prohibits thedischarge of deleterious substances in amounts which will either (i) adversely affect the taste, color or odor ofwater, or (ii) impair the waters for their best usages. ,See 6 NYCRR §703.2. NYSDEC Staffs Notice does notsay anything about the first component of the narrative

standard, and Mr. Kolakowski testified thai he had noevidence that the radionuclides at issue in this case adversely affect the taste, color or odor of water. SeeHearing Tr. at 2749 (Kolakwoski}

("Q: Do you have any evidence that the radionuclides identified in the GZAreport adversely affect the taste, color or odor of the water'? A: No."). No contrary evidence is Fbund in therecord. As such, the reference to Indian Point's releases as 'deleterious substances" simply prohibits theirdischarge in amounts that will "impair the waters for their best usages."

rendering the bases Ibr denialessentially redundant.

Entergy further notes that the two provisions cited by NYSDEC Staff, 6 NYCRR§§701.11 and 703.2. are both WQS promulgated by NYSDEC pursuant to the state of New York's authority topromulgate WQS under the CWA. and pursuant to the authority granted NYSDEC by the New Yorklegislature in the state's SPDES implementing legislation.

NYSDEC Staff have never explained whyNYSDEC has no authority to apply these provisions to Entergy's radiological releases in the context of itsSPDES permit, but somehow does have authority to apply these same provisions in the context of§ 401(a).Indeed, as Entergy has maintained from the start of this proceeding, there is no basis in law or logic for thisposition.

22 the fact that NYSDEC Staff's witness admitted that the releases of radiological materials that hadoccurred prior to the Notice had not actually impaired the Hudson River for its best uses; and histestimony made clear that he had done no analysis to determine the likelihood that any potential future releases could occur in sufficient amounts to impair the Hudson River for its best uses.See PFF at 9IM 147, 149-50. Department Staff's decision to deny the WQC on radiological considerations contradicted its own previous tindings.

was wholly speculative, and without anyfactual support.

As such, it was improper and should be disregarded.

B. The unplanned release of radiological materials from Indian Point has not impaired, andwill not impair, the Hudson River for its best usapge.Further, even if NYSDEC had authority to regulate Indian Point's radiological releasesunder the CWA, the best usage standard is clearly met by Entergy, and accordingly there is nofactual basis to deny the WQC Application.

The evidence at hearing demonstrates conclusively that unplanned releases from Indian Point have not impaired, and will not impair, eitherrecreational uses of the Hudson River or aquatic biota."1 Accordingly, NYSDEC Staff'sproposed denial of Entergy's Application on this basis is unsupported and improper.

I. Entergy's witnesses and evidence demonstrate that there is no scientific basis toconclude that unplanned releases from Indian Point have impaired or will impairthe Hudson River for its best uses.The record evidence supports only one conclusion

-that the unplanned releases ofradiological materials from Indian Point have not impaired the Hudson River for its best usages.Only Entergy provided any evidence and analysis by which to evaluate the question of theThe Hudson River near Indian Point is classified as -'SB" saline surface waters. See 6 NYCRR §864.8. TableI. Item 2. The best usages of SB waters are set forth in 6 NYCRR §701.1 I: "The best usages of[Class SBwaters are primary and secondary contact recreation and fishing.

These waters shall be suitable for fish.shellfish and wildlife propagation and survival."

Primary contact recreation consists of recreational activities where the human body may come in direct contact with raw water to the point of complete body submergence.

Primary contact recreation

includes, but is not limited to. swimming, diving, water skiing, skin diving andsurfing.

6 NYCRR §700. 1(49). Secondary contact recreation consists of recreational activities where contactwith the water is minimal and where ingestion of the water is not probable.

Secondary contact recreation includes.

but is not limited to, fishing and boating.

6 NYCRR §700.1(56).

1'j potential impacts of Indian Point's unplanned releases of radiological materials on the best usesof the Hudson River. Dr. Hoffman, a pre-eminent scientist in the field of radiological health andsafety, set forth the scientifically accepted method to evaluate whether radiological releases tothe environment have impaired, or have the potential to impair, the best uses of the HudsonRiver. As he explained, to perform such an analysis, one must: (i) identify the sources andamounts of radiological materials released into the environment; (ii) determine whether there areany exposure pathways for humans or aquatic biota to those radionuclides; (iii) calculate theradiation dose to humans or aquatic biota resulting from those exposure pathways; and(iv) translate that dose to risk to human health or impact on aquatic biota. PFF at T¶ 120.Dr. Hloffman testified that he performed the above analysis in connection with IndianPoint's unplanned

rcleascs, and concluded unequivocally that the radiological releases andresulting potential exposure was so low as to be inconsequential, and could have no impact onthe best uses of the Hudson River. PFF at ¶¶127-144.

With respect to potential impacts tohumans from the designated best uses of the river (in other words, potential impacts to humansusing the Hudson River in the vicinity of Indian Point for recreation or fishing),

Dr. Hoffmanidentified the sources and concentrations of radiological materials based upon the uncontroverted findings of the GZA Report and the Indian Point Annual Radiological Effluent Release Reports.,

both in terms of the type and concentration of radionuclides estimated to be reaching the HudsonRiver from Indian Point's unplanned releases.

PFF at 4! 127. He further reviewed and confirmed the accuracy of the methods for calculating off-site doses associated with the migration of on-sitegroundwater to the Hudson River as documented in Entergy's NRC-required ODCM. PFF at¶ 127. In doing so, he concluded that the annual dose in 2010 from Indian Point's unplanned releases to the hypothetical maximally-exposed individual was 0.0002 mrem, a small fraction of2 40 the dose that an individual would ,et from eating a single banana. PFF at 4,11 119. 127. 143. Hethen applied the commonly accepted linear no-threshold model to convert these doses into a riskto people of developing cancer in later life, finding that in order for such releases to cause asingle incidence of cancer-related illness in later life, five billion people would have to bemaximally exposed to Entergy's unplanned releases.

PFF at ¶ 136. After noting that anexposure to such a large population was impossible, Dr. Hloffman's conclusion was clear anduncontested:

his expert opinion is that the unplanned releases from Indian Point are expected tohave zero impact on the health of the public. PFF at ¶¶ 138.Based on this scientific

analysis, Dr. Hoffman made the following conclusion:

[T]he levels of radionuclides released to the Hudson River from groundwater areextremely low, with an immaterial effect on annual dose consequence to man or aquaticbiota. Moreover, given the low levels of these releases, and the large volume of water inthe Hudson River, there is no credible evidence that the releases of radionuclides fromgroundwater have any measurable effect on the level of radionuclides present in theHudson River from historical sources.

As such, there is no credible scientific basis toconclude that releases of radionuclides to groundwater that has migrated to theHudson River have impaired or will impair the use of the Hudson for primary orsecondary contact recreation, such as swimming,

fishing, and boating.Hoffman Prefiled at 18 (emphasis added).With respect to the potential impact of Indian Point's unplanned releases on the bestusage of the Hudson River for fish, shellfish, and wildlife propagation and survival, Dr. Hoffmantestified that there are two commonly accepted scientific methods for analyzing the potential dose to aquatic biota from radiological releases.

the RESRAD-BIOTA dose model and theUNSCEAR model, both of which he applied to Indian Point's unplanned releases.

PFF at4¶1 139-141.

Dr. Hofllman testified that he personally analyzed the radiation dose to aquatic biotafrom Entergy's unplanned releases in 2010 (the year fbr which the most recent data wasavailable),

using the maximum concentrations of radionuclides estimated to be reaching the riverN5 at the shoreline of the Indian Point site. PFF at ¶, 140. Hlls analysis confirmed that the dose rate(dose-per-day) to aquatic biota resulting from Indian Point's unplanned releases was "orders ofrnagitude" lower than the scientifically accepted threshold for protection of aquatic biota. PFFat ¶ 142. Based on his scientific

analysis, Dr. Hoffman made the blblowing conclusion:

[Tjhe levels of radionuclides released to the Hudson River from groundwater areextremely low, with an immaterial effect on annual dose consequence to aquatic biota.Moreover, given the low levels of these releases, and the large volume of water in theHudson River, there is no evidence that the releases of radionuclides from groundwater have any material effect on the level of radionuclides present in the Hudson River fromhistorical sources.

Given all this, there is no credible scientific basis to conclude thatreleases of radionuclides to groundwater that has migrated to the Hudson Riverhave impaired or will impair the suitability of the Hudson River for fish, shellfish, and wildlife propagation and survival.

Hoffman Prefiled at 18-19 (emphasis added).Dr. Iloffman's conclusion that the unplanned releases from Indian Point have nopotential to impair the best uses of the Hudson River was uncontested, and requires a finding thatNYSDEC Staff erred in purporting to deny the Application based on radiological considerations.

Moreover, as set tbrth below, this conclusion was corroborated by independent analysisperformed by both NYSDEC and the NRC, and no other party to this proceeding offered anycontradictory analysis in support of the Notice.2. Both NYSDEC and the NRC agree with Entergy's conclusion that unplanned releases have not impaired the best usage of the Hudson River.Dr. Hoffmfan's conclusions regarding tile lack of any effect on the best uses of theI ludson River from Entergy's unplanned releases are well supported by other evidence in therecord, including independent analysis performed by NYSDEC. As Mr. Barvenik.

who led theIndian Point site investigation, explained, NYSDEC actively participated in the siteinvestigation, including:

(i) analyzing split samples of groundwater to confirm Entergy's radionuclide calculations; (ii) attending meetings to discuss the results of the investigation:

and1j< i0 (iii) participating in major decisions regarding the scope and conclusions of the investigation.

PFF at ¶ 29. Among the individuals at NYSDEC who participated in the investigation was TimRice. an expert in NYSDEC's radiation protection division.

PFF at ¶ 30. NYSDEC andNYSDOH issued two documents that set forth their conclusions regarding the ongoing siteinvestigation, including a community fact sheet in May 2008 ("2008 Fact Sheet").

PFF at ¶¶ 32-33. The 2008 Fact Sheet documents New York State's involvement during the course ofFntergy's groundwater investigation, including its collection of split samples of groundwater andfish flesh and independent assessment of potential public health impacts.

PFF at ¶ 32. In thatdocument, NYSDEC and NYSDOH confirmed that the levels of radionuclides entering theHudson River from the groundwater beneath Indian Point are below State surface waterstandards for tritium and strontium-90, and that Entcrgy's calculated dose to the public throughfish consumption is less than 1% of the NRC dose limits. PFF at ¶ 32(b), (g). NYSDEC alsoconcluded that Entergy's use of monitored natural attenuation as the remediation action for thegroundwater contamination at Indian Point was appropriate.

PFF at ¶ 32(f).In addition, the Department conducted a study of concentrations of strontium-90 in fishcollected near Indian Point and compared them to concentrations found in fish collected fromareas far removed from Indian Point's influence, documenting its results in a 2009 report (the62009 Fish Report").

PFF at ¶ 33. The 2009 Fish Report reached two conclusions:

I. There are no apparent excursions above criteria for the protection of biota basedon the radionuclide data available.

The levels of radionuclides

-including

[strontium-90]

-were two to five orders of magnitude lower than criteriaestablished for protection of freshwater ecosystems.

2. There were no spatial differences in concentrations of [strontium-901 and[radium-224]

in resident fish from the three locations sampled in the lowerHudson River (i.e., Indian Point Nuclear Power Plant. and the reference sites atthe Roseton Generating Station and at Catskill).

In contrast,

[potassium-401 27 levels were somewhat greater in the vicinity of Roseton Generating Station.

butthe differing concentrations have no known significance.

Entergy Ex. 38, at 8.Thus, the conclusions of NYSDEC and NYSDOH staff members who had both personalknowledge of and involvement in the Indian Point groundwater investigation and who had actualexpertise to analyze the effects of radionuclide releases to the public are identical to those of Dr.Hoffman:

namely, that Entergy's unplanned releases did not violate state water quality standards and had no effect on aquatic biota in the Hudson River.Moreover, the conclusions of the NRC also corroborate Dr. Hoffman's testimony.

Afterconducting a comprehensive investigation of Indian Point's unplanned

releases, documented in afull site investigation report, the NRC concluded that "radiological significance from thegroundwater conditions at Indian Point is currently, and is expected to remain, negligible withrespect to impact on public health and safety and the environment."

PFF at ¶ 45(a). NRC alsoconfirmed that no violation of any federal radiological discharge standards

occurred, concluding that Entergy's releases were less than 1% of NRC discharge limits. PFF at ¶ 45(k).3. DEC Staff offered no evidence to support its assertion that unplanned releaseshave the potential to impair the best usage of the Hudson River.As set forth above, NYSDEC Staff offered no witness at the hearing who conducted ananalysis of the effect of Indian Point's unplanned releases on the best uses of the Hudson River.This is so despite the fact that experts in radiological analysis from NYSDEC Staff werepersonally involved in the Indian Point groundwater investigation and had both the knowledge and expertise to opine on the question at issue in this proceeding.
Instead, NYSDEC Staffoffered the testimony of only one witness.

Mr. Kolakowski, a staff engineer who readilyadmitted that he has no educational or work experience on matters of potential relevance to this28 issue for adjudication, e.g., nuclear engineering, radiation protection, human health effects ofexposure to radiation, dose assessment from the exposure to radiological materials, or theecological effects of radiological materials in the environment.

PFF at ¶¶ 104-105.

Mr.Kolakowski testified that the sum total of the "analysis" he performed was reading the GZAReport, which confirmed that radiological materials were entering the I ludson River due tounplanned releases at Indian Point at the time Entergy applied for its WQC. PFF at ¶ 151. Mr.Kolakowski, without analysis or explanation.

then concluded that such radiological materials "could impair the waters for their best usage." PFF at ¶ 153. When pressed as to whether he hadany actual evidence that the radiological materials identified in the GZA Report had in factimpaired the waters for the best usage, Mr. Kolakowski unequivocally admitted that he hadnone:Q. Do you have any evidence that the past leakage of radiological materials identified in the GZA report have impaired the Hudson River for primary and secondary contact recreation and fishing?Kolakowski:

No.Q. Do you have any evidence that the radiological materials identified in the GZAreport have impaired the Hudson River for its suitability for fish, shellfish and wildlifepropagation and survival?

Kolakowski:

No..See Hearing Tr. at 2750 (Kolakowski),

PFF at ¶ 156. Furthermore, Mr. Kolakowski testified thatbased on the information he reviewed, there was "'no factual basis" to conclude that a leak oftritium from either Unit 2 or Unit 3 during license renewal could result in an impairment of thewaters fbr their best usage. PFF at ¶ 157. Indeed, when asked, in conjunction with questions regading NYSDI.C's 2009 Fish Study, whether he had conducted "analysis that suggests thatthe release of radionuclides from Indian Point has affected fish in the Hudson River." Mr.Kolakowski admitted that he had not and that such an analysis is "outside my area of expertise."

29 Hearing Tr. at 2768 (Kolakowski);

PFF at ¶ 150. Morcover, Mr. Kolakowski went further..

admitting on cross-examination that he agreed with the expert conclusions of the NRC inconnection with its oversight of Entergy's site investigation that "radiological significance fromthe groundwater conditions at Indian Point is currently, and is expected to remain, negligible with respect to impact on public health and safety and the environment."

I learing Tr. at 2770(Kolakowski)

(emphasis added), PFF at ¶ 155.In light of Mr. Kolakowski's admissions on cross-examination that (i) he had performed no independent analysis of the effect of Entergy's releases on the best usage of the HudsonRiver, (ii) he had no factual basis to conclude that past or future releases from Unit 2 or Unit 3have or could in the future impair the waters for their best uses, and (iii) he agreed with theexpert conclusion of Entcrgy's witnesses, NYSDEC radiological staff, and NRC that the releaseshave had, and are not expected to have, any effect on the environment, the Notice's unsupported assertion that unplanned releases from Indian Point "could impair the waters for their best usage"has no basis whatsoever in law or fact. Simply put, Mr. Kolakowski had no relevant evidence tosupport his opinions or NYSDEC Staffs position.'

2 Given that this unsupported testimony, much of which Mr. Kolakowski effectively recanted on cross-examination, is the only basis tosupport the Notice's conclusion that unplanned releases could impair the waters for their bestusage, the Notice lacks any factual basis, and must be disregarded.

(Given Mr. Kolakowski's lack of education,

training, expertise, or personal knowledge to opine on the issue ofthe eftect of Indian Point's releases on the best usage of(the Hudson River. and NYSDEC Staffs refusal tootffer the testimony of(or even allow Entergy to speak to) its own radiation expert who actually participated inthe investigation into these releases, Entergy moved to have an adverse infi.rence drawn against NYSDECStaff, that if called to testify.,

Mr. lim Rice, NYDSEC's lead radiological expert who participated in theinvestigation, would have testitied consistently with Entergy's experts that there was no basis to conclude thatunplanned releases from Indian Point would impair the best uses of the River. Hearing.

Tr. at 4110-4120.

TheTribunal denied the motion, but held that "the motion goes to the weight to be afforded to the testimony of Mr.Kolakowvski" and that "laill evidence with respect to this issue will be considered and accorded the appropriate weight."

See Jan. 27, 2012 Memorandum Order at 2. Consistent with that ruling, Entergy argues that Mr.Kolakowski's unsupported testimony, for which he lacks any expert qualification and which is backed by noexperta nalysis, should be afforded no weight.30 Thus, the evidence in the record supports only one conclusion

-that the unplanned releases from Indian Point have not impaired the Hudson River for its best usages.4. Riverkeeper's witness offered no relevant testimony regarding the effect of IndianPoint's unplanned releases on the best usage of the Hudson River.Riverkeeper's

witness, Mr. Gundersen, provided no testimony to even address, let aloneto refute, the uncontroverted conclusions of Entergy's witnesses, NYSDEC and NYSDOHradiation
experts, and the NRC, regarding the lack of any effect of Indian Point's unplanned releases on the Hudson River's best uses. He said he did not review Dr. Hoffman's testimony and did not perform either a human or aquatic biota dose assessment

-a critical step in theassessment of impact from radiological materials

-saying "1 was not contracted to do a dosecalculation fbr Indian Point."'3 Hearing Tr. at 2922 (Gundersen);

PFF at ¶ 160, 162. Instead,Mr. Gundersen assumed that the introduction of any amount of a "deleterious substance" wouldresult in a per se impairment of the best uses of the Hudson River. PFF at ¶ 161. However, sucha "zero discharge" standard is not supported in law and is inconsistent with the water qualitystandard at issue here, which only prohibits the release of deleterious substances in such amountsthat would result in an impairment of the designated best usages.14 See 6 NYCRR 703.2.Accordingly, Mr. Gundersen's testimony regarding the releases of radiological materials atIndian Point is irrelevant to the question of whether those releases will impair the best uses of theltudson River. amounts to no more than speculation, lacks the scientific foundation for anappropriate expert opinion on the matter, and should be afforded no weight." Riverkeeper's decision not to have Mr. Gundersen perform a dose assessment may be attributed to the fact thathis prior dose assessment testimony has been rejected in federal court as "rife with conclusory statements" which on appeal were characterized as a "scientifically unsupported leap of faith." Fineestone

%. Florida Power& Lighi Co., 2006 WL 267330. at *11 (S.D. Fla. Jan. 6. 2006): Finestone

v. Horida Power & Light Co.. 272Fed. Appx. 761. 768 (1 Ith Cir. 2008): PFF at¶ 158. Since the Fioestone decision.

he has not pursued anyeducation in the area of dose assessment.

PFF at ¶ 159.' Entergy notes that a "'zero discharge" standard would also conflict with NRC regulations.

which plainly permitdischarges from NRC-re-ulated facilities in compliance with its radiation protection standards.

31

5. Enteriv has demonstrated that there are reasonable assurances that any potential unplanned radiological releases from Indian Point during the license renewalperiod will not impair the best uses of the Hudson River.The record demonstrates that there are reasonable assurances that any potential unplanned releases of radiological materials from Indian Point during the license renewal periodwill not impair the Hudson River for its best uses. As noted above, it is undisputed that the pastreleases from Indian Point have not impaired the Hudson River for its best usages, nor wouldfuture releases of similar magnitude, if they were to occur during the license renewal period.Moreover.

the potential for any future releases of similar magnitude is significantly reduced based upon initiatives already being implemented at Indian Point and among theindustry in general, as a result of the discovery of tritium conditions at other nuclear powerplants throughout the nation. First, the known sources of past releases either have beeneliminated or remediated by Entergy.

Second, Entergy has undertaken substantial operations andmaintenance

programs, including new underground piping assessments, designed to manageproactively those systems, structures and components that could be a source of future releases.

Third, Entergy has installed, and will maintain, an extensive, state-of-the-practice monitoring well array designed to detect and allow rapid response to future releases, should they occur. It is,therefore, unreasonable to conclude that future unplanned releases from Indian Point could be ofsuch significance as to impair the Hudson River for its best uses.a. Die sources ofpast unplanned releases.rinom hIdian Point have beeneliminated or remediated The evidence at hearing demonstrated that the past unplanned releases from Indian Pointhave been eliminated or rernediated.

GZA's groundwater investigation, which covered all "'areasof the Site where credible potential sources of leakage might exist. and encompassed all threereactor units." concluded that the radiological contamination of groundwater at Indian Point is3.)

the result of releases from the Unit I and Unit 2 SFPs.'5 Entergy Ex. #33 at viii ; PFF at ¶24-28.GZA found no evidence of any radiological release to groundwater from the Unit 3 SFP. PFF at¶ 28. Thus, with regard to Unit 3, there is no evidence of past radiological releases that couldresult in even speculative assertions about potential releases from Unit 3 during license renewalterm.With respect to Unit 1, GZA concluded that the source of strontium-90 found in theIndian Point groundwater was the Unit I SFPs. PFF at ¶ 28. There is no dispute that the fueland water from the Unit I SFPs has been removed from the pools, thereby eliminating the poolsas a continuing source of radiological materials to the groundwater beneath Indian Point. PFF at¶ 52-53. Accordingly, the Unit I SFPs cannot be a source of future releases of radiological materials to the environment during the license renewal period. Moreover, it is uncontested thatthe concentration of strontium-90 in on-site groundwater has been reduced by 70% since thedefueling and draining of the Unit 1 SFPs. PFF at ¶ 68.With respect to Unit 2, GZA concluded that the leaks from the SFP resulted in a plume oftritium in the groundwater beneath Indian Point. PFF at 1 28. GZA summarized the actionstaken by Entergy in response to this leak as follows:[he releases were due to: 1) historic damage in 1990 to the [spent fuel pool] liner,with subsequent discovery and repair in 1992; and 2) a weld imperfection in thestainless steel Transfer Canal liner identified by Entergy in September 2007. andrepaired in December 2007....

To the extent possible, the Unit 2 pool liner hasbeen fully tested and repairs have been completed.

Specifically, Entergy has: 1)confirmed that the damage to the liner associated with the 1992 release wasrepaired by the prior owner and is no longer leaking;

2) installed a containment system (collection box) at the site of the leakage discovered in 2005, whichprecludes further release to the groundwater; and 3) after an exhaustive linerinspection, identified a weld imperfection in the Transfer Canal that was thenNo one contested the methodologies used in. or the conclusions drawn from, the GZA Report. Indeed, theDepartment participated actively in the GZA investigalion, collecting split samples of groundwater andindependently analyzing them fbr contaminant concentrations, and stated unequivocally that it agreed withGZA's approach and conclusions.

PFF at q¶ 29-34.

prevented from leaking by draining the canal. The weld was then subsequently repaired by Entergy in mid-December 2007. Therefore, all identified Unit 2[spent fuel pooll leaks have been addressed.

Entergy Ex. #33 at viii-ix.

As a result of Entergy's

efforts, the concentration of tritium in thegiroundwater beneath Indian Point has been reduced by 89% since 2005. PFF at ¶ 67. Whilefuture leaks from the Unit 2 SFP cannot be completely ruled out. Mr. Barvenik testified that thesize of any persistent leaks would have to be very small in order to evade the wells used tomonitor groundwater at Indian Point. PFF at ¶ 146. Thus, any ongoing migration of tritium tothe Hudson River, consistent with the inconsequential past releases, is expected to have noimpact on human health or aquatic biota. The NRC has confirmed this conclusion.

rherefore, the sources of past releases to groundwater at Indian Point -specifically theSFPs at Units I and 2 -have been identified,

repaired, and remediated, with corresponding reductions in tritium and strontium-90 concentrations since the repairs were instituted.
b. Entergy has implemented programs to prevent future leaks of radiological mwaerials from Indian Point.In addition to the remedial measures described in the GZA Report, Entergy hasdeveloped and implemented various initiatives to reduce the likelihood and severity of futurereleases of radiological materials.

Entergy has developed an underground piping management

program, the purpose of which is to decrease the likelihood of future unplanned releases to theenvironment from underground pipes. PFF at ¶ 54. That program involves a four-step processas fbllows:

(I conduct an inventory of underground pipes and their design characteristics; (2)prioritize piping systems on the basis of the consequences of a leak or failure and thesusceptibility of the pipe to degradation; (3) perform inspections on piping systems to gaininformation; and (4) perform an engineering evaluation of the inspection data to determine remedial actions required, if any. I1FF at ¶ 55. The first two steps of this process have been34 completed at Indian Point, and inspections of underground piping have been ongoing since 2008.PFF at ¶ 56. The inspections utilize a variety of techniques to gain information regarding pipeconditions, including new ultrasonic technologies that allow for an inspection of pipe lengths thathave not been exposed by excavation.

PFF at ¶ 57.As Dr. Esselman testified, the implementation of this program reduces the likelihood ofleaks over time:Q: Should Indian Point Units 2 and 3 be relicensed, what is your opinionabout the effect that Indian Point's enhanced buried-piping program will have onthe likelihood of future leaks from underground piping during license renewal?Dr. Esselman:

These programs were designed to reduce the likelihood of leaksoccurring in the future. They are being implemented as they were designed.

Thelikelihood of leaks in buried piping occurring should and is expected to go downwith the passage of time. Particularly as this program is implemented.

there willbe more inspections in 2012 that will provide more information.

There will beinspections in 2013 that will provide more information.

There should be adecreasing likelihood of the lack of integrity of buried pipes with the passage oftime.Hearing Tr. at 3117 (Esselman),

PFF at ¶ 60.c. Entergy's long-term groundwater monitoring system has been designed toidentf'f, releases from systems, structures and components containing radiological materials should they leak in the future.Following the completion of GZA's groundwater investigation, the number ofgroundwater monitoring locations was expanded to include monitoring locations near structures, systems and components

("SSC") that have the potential to impact groundwater should they leakin the future. PFF at ¶¶ 61-65. According to Mr. Barvenik, GZA's lead investigator:

[W]e targeted those specific SSCs with additional borings so that we could theneffectively monitor those and use those to quickly determine, because they're veryclose to the SSCs. quickly determine if there was a leak, to allow Entergy then toreact quickly to the leak and address it.

Hearing Tr. at 3915 (Barvenik).

Thus, in addition to the underground piping program, whichactively evaluates underground piping systems and, where necessary, requires remedial actionwith respect to piping showing significant degradation, Entergy's long-term groundwater monitoring program assists in identifying

releases, connecting them to their likely sources, andallowing targeted remedial action to proceed as needed.Based upon the above, there are reasonable assurances that releases of radiological materials during the license renewal period, if any, will not impair the Hudson River for its bestuses. The past releases of radiological materials identified by GZA's comprehensive groundwater investigation have resulted in no impacts to human health or the environment, andtheir sources have been identified and repaired, leading to significantly reduced concentrations ofradiological materials in Indian Point groundwater over time. Moreover, Entergy hasimplemented an underground piping program that systematically evaluates the condition ofunderground pipes containing radiological materials at Indian Point and requires corrective action where necessary.

In addition.

Entergy's long term groundwater monitoring programassists in identifying leaks should they occur and targets likely sources for prompt investigation.

Accordingly, there is no reasonable basis to conclude that unplanned releases of radiological materials during the license renewal period will impair the best usages of the Iludson River.C. DEC Staff's attempts to support the proposed denial of the Application ongrounds other than those set forth in the Notice are improper and should bereiected.

While. as demonstrated above, the actual reasons stated in the Notice fbr proposing todeny the Application are without any basis in fact or law. in its pre-tiled testimony NYSDECStaffattempted to provide belated support for the Notice by citing to other provisions of NewYork law that were supposedly violated by Indian Point's unplanned releases.

In particular, inhis initial pre-tiled testimony.

NYSDEC Stalffs witness, for the first time, contended that Indian36 Point's radiological releases are "'prohibited by ECL § 17-0807 and 6 NYCRR §750-1.3.*'

Kolakowski Prefiled at I1, PFF at ¶ 90. In his prefiled rebuttal testimony.

NYSDEC Staffswitness clarified this testimony, stating more specifically that Indian Point's "unintentional" releases are "prohibited by ECL § 17-0807(1),(4),

and 6 NYCRR §750-1,3(a)."

Kolakowski Rebuttal Prefiled at 4. PFF at ¶1 91. Notably, nowhere in the Notice is NYSDEC Staffscontention that Entergy's unplanned releases are subject to the categorical prohibitions of "ECL§ 17-0807 and 6 NYCRR §750-1.3."

PFF at ¶¶ 83, 85. For the reasons stated below, NYSDECStaff's attempt to support the Notice by asserting new bases not set forth in the Notice is incontravention of DEC regulations, and therefore must be rejected as a matter of law. Moreover, as set forth below, no reasonable view of the evidence amassed at hearing would support denialof the WQC Application, even under NYSDEC Staff's belatedly-asserted legal theories.

1. NYSDEC Staff's attempt to support the proposed denial on grounds not set forthin the Notice should be rejected as a matter of law.NYSDEC Staff's eleventh-hour assertion of new legal bases for denial of the WQCApplication is impermissible.

According to 6 NYCRR §621.10(a),

NYSDEC Staff is required toprovide a permit applicant such as Entergy with "a decision in the form of: a permit, a permitwith conditions or a statement that the permit applied for has been denied. with an explanation

/or the denial" (emphasis added). Furthermore, according to 6 NYCRR §624.4(c)(1)(ii),

in thecontext of a proposed denial of a permit application by NYSDEC Staff, an issue is adjudicable if"it relates to a matter cited by the department stalK as a basis io denly the permit and is contested by the applicant" (emphasis added). The purpose of these provisions is to provide adequatenotice of the grounds on which NYSDEC Staff proposed to deny the application, for suitableissues to be adjudicated, and tbr discovery 1o proceed on those issues in advance of hearing.37 Indeed, in applying this principle, the Commissioner has routinely denied NYSDEC Staff'sattempt to support a notice of denial on bases other than those actually set forth in the notice.For instance, I7 the Maiter of William laley, .Alpplicant, DEC No. 1-4736-06627/00001.

2009 WL 2141501 (N.Y. Dept. Env. Conserv, June 22. 2009), involved an interim appeal of anIssues Ruling by an applicant who had initially applied for both a freshwater wetlands permit anda tidal wetlands permit. NYSDEC Staff issued a notice of denial, stating only that NYSDECStaff had concluded that the application failed to satisfy the requirements for a freshwater wetlands permit. Id. The Applicant appealed.,

and after the Issues Conference, the ALJadvanced for adjudication both the issue of whether the application demonstrated compliance with the requirements for freshwater and tidal wetlands permits.

Id. The applicant appealed theIssues Ruling to the Commissioner, arguing that it was impermissible to require the applicant toadjudicate an issue that was not set forth as a basis for denial by NYSDEC Staff in the notice.On appeal, the Commissioner agreed with the applicant, citing to 6 NYCRR§ 62 1. 1 0(a)*s requirement that the notice set forth the reasons and bases for NYSDEC Staff'sproposed permit denial, and held that the failure to identify deficiencies with the application for atidal wetlands permit precluded NYSDEC Staff from attempting to support the denial of theapplication on that ground. In doing so, the Commissioner noted that the fact that an applicant has the burden of proof to demonstrate compliance with all applicable laws and regulations "doesnot relieve Department staff of the obligation to identify, in a timely fashion, those issuesrelating to a permit application upon which its denial is based." hi. Further, the Commissioner held that "[a]n applicant is entitled to know the grounds upon which its permit application isdenied so that. if it seeks a hearing on the denial. it is able to prepare its case including theidentilication and development of witnesscs, the organization of documentary evidence and the38 development of legal argument."

Id. Finally, the Commissioner concluded:

In a notice of permit denial. Department staff is required to clearly state thesubstantive reasons for denial of the permit application, relate those reasons to thepermitting standards, and, in situations such as this where more than one permithas been applied for, address each permit application that Department staffdetermines does not satisfy applicable standards.

A failure to state the basis fordenying a permit application or the mere suggestion that there might be an issuethat warrants denial is insufficient to satisfy the regulatory standard of 6 NYCRR621.10(a).

ki. (footnote omitted).

As a result, the Commissioner granted the applicant's appeal, and did notallow the issue of whether the applicant had demonstrated compliance with the tidal wetlandsrequirements to move forward to adjudication.

IdThe Commissioner's reasoning is directly applicable here, and should foreclose NYSDEC Staff s attempt to support the Notice based on statutes and regulations not cited in theNotice. As set forth above, the Notice proposed to deny the WQC based on radiological considerations for one: that the unplanned releases from Indian Point that had entered theHudson River were "deleterious substances" that "could impair the waters for their best usage."PFF at ¶¶ 81-83. However, in the pre-filed testimony of Mr. Kolakowski, NYSDEC Staff- forthe first time -took positions other than those stated in the Notice, asserting that Indian Point'sunplanned releases are "'prohibited by ECL § 17-0807 and 6 NYCRR §750-1.3(a)."

PFF atgo.16As the Commissioner has held, such post-hoc justifications of NYSDEC Stall's denialof Entergy's Application are impermissible.

In Mhe Valier of William haley, .4lpplicant, 2009WL 2141501.

In fact, as noted above, they are not even adjudicable.

Id. Accordingly, anyground for denial that does not appear in the Notice should be stricken from the record." During his cross examination, Mr. Kolakowski readily confirmed that these bases for denial did not appear inNYSDEC Staff's Notice. Hearing Tr. at 2729-2730 i.Kolakowski):

PFF at T 85.39

2. Mr. Kolakowski conceded that ECL $ 17-0807(1) and 6 NYCRR V750-1.3(a) arenot proper grounds for denying Entergy's Application.

Even if this Tribunal determines that NYSDEC Staff's post hoc attempts to support theNotice are permissible, it is clear that none of the statutes or regulations identified by Mr.Kolakowski in his testimony provide any basis for denial of the WQC. To begin, ECL §17-0807(1) prohibits "the discharge of any radiological, chemical or biological warfare agent orhigh-level radioactive waste, as such terms are defined in the Act17 or pursuant thereto."

Section750-1.3(a) of 6 NYCRR sets forth the same prohibition on "the discharge of any radiological, chemical or biological warfare agent or high-level radioactive waste, pursuant to section 301(f)of the Act."At hearing, Mr. Kolakowski recanted his pre-filed testimony and agreed that neither ECL§ 17-0807(1) nor 6 NYCRR §750-1.3(a) applies to the radiological discharges at issue in thiscase. In particular, Mr. Kolakowski confirmed that these materials are not "radiological warfareagents" or "high-level radioactive waste." PFF at I¶ 168-169.

Thus, Mr. Kolakowski's testimony confirms that there is no factual basis for the Department to deny Entergy's Application on the basis of ECL § 17-0807(1) and 6 NYCRR §750-1.3(a).

3. Radiological discharges f'rom NRC-licensed facilities are not regulated under theSPDES program and, therefore.

ECL §17-0807(4) cannot be a basis for denyingEntergy's Application.

NYSDEC Staff's witness also claimed that ECL § 17-0807(4),

which prohibits thedischarge of pollutants regulated under the SPDES program without first obtaining a SPDESpermit. was a separate basis for denying the WQC.18 Mr. Kolakowski's belated reliance on17 1he "Act" as referenced in ECI. § 17-0807(

1) refers to the CWA.19 This was the Department's position.

as articulated by Mr. Kolakowski:

Q: So this section, which includes 17-0807.

this is the state's implementation of the SPDES program tinderthe Clean Water Act, correct?40 ECL § 17-0807(4) is incorrect as matter of law, however, because the Department has stated onmany occasions that it has no authority to regulate radiological discharges from Indian Pointunder the SPDES program.

PFF at ¶ 4. The plain language of ECL §17-0807(4) makes clearthat its prohibition on unpermitted releases applies only to those releases that are subject to andregulated by New York's SPDES program.

Given that radiological discharges from Indian Pointare not within the regulatory scope of the C\WA and thereibre are outside the scope of regulated discharges under New York's SPDES program, ECL § 17-0807(4)'s prohibition does not apply.Accordingly, NYSDEC Staff cannot rely on ECL § 17-0807(4) to deny the Application.

However, even if NYSDEC Staff were correct that unplanned radiological releases fromIndian Point were categorically prohibited by ECL § 17-0807(4),

the evidence adduced at hearingdemonstrates that such would still be an improper basis on which to propose denial of the WQC.This is so because the uncontroverted evidence introduced at the hearing demonstrated thatElntergy could prevent such unplanned releases from reaching the Hudson River during thelicense renewal term. PFF at ¶ 170. Entergy presented evidence during the hearing thatsufficient extraction wells could be installed at the perimeter of the Indian Point site to reversethe hydraulic gradient at Indian Point sufficient to ensure that no radionuclides from theidentified Indian Point groundwater plumes would reach the I ludson River via the groundwater pathway during the license renewal term. PFF at ¶ 170. Neither NYSDEC Staff nor Riverkeeper A: Yes. it is.Q: So. is it Nour position.

then, that the reason the discharges at issue in this case are prohibited by section17-0807 is because Entergy did not get a SPIDES permit to authorize the releases at issue in this case?A: That was my read of that, yes.Q: And so ifEntergy had a SPDES permit that authorized the discharges that are described in the GZAreport 17-08070,)

would not apply.A: I believe so, yes.Ifearing Tr. at 2740-42 (Kolako\kski).

.41 disputed the ability of Entergy to install such wells, or the ability of such wells to ensure thatduring license renewal term no radionuclides from the identified groundwater plumes wouldreach the Hudson River via the groundwater pathway.

Given this uncontroverted

evidence, there is no basis to conclude that there are not "reasonable assurances" that radiological releasesfrom Indian Point during the license renewal term will comply with the purported requirements of ECL § 17-0807(4).
4. Mr. Kolakowski's insertion of an allegedly new ground for denial on the stand issimply the statutory authority for the regulatory requirement that discharges comply with applicable water quality standards.

In addition to attempting to assert new bases to support the Notice in his pre-filed testimony, for the first time when taking the stand Mr. Kolakowski inserted a reference to ECL§ 17-0501 as another potential basis for denial -a basis not only absent from the Notice. but alsofrom Mr. Kolakowski's pre-filed testimony.

See Hearing Tr. at 2736 (Kolakowski);

PFF at¶¶ 171-172.

However, on cross-examination, Mr. Kolakowski readily admitted that Section 17-0501 was merely the statutory requirement that prohibits discharges to the waters of the state inamounts that impair the best usage of the Hudson River, and therefore provided no independent basis fbr denial of Entergy's Application.'

9 Thus, despite the eleventh-hour insertion of thisprovision into Mr. Kolakowski's testimony, ECL §17-0501 does not provide an independent ground for denying Entergy's Application.

Furthermore.

since the uncontroverted evidence athearing demonstrated conclusively that Indian Point's unplanned radiological releases do not,Q: So, really, this new prohibition is another way of stating the opinion that exists in your testimony already.which is that the discharge of these materials could impair the waters fbr the best usage. correct?A: Yes.Q: And, as you testified

earlier, that is the actual reason stated in the Notice for why the water qualitycertification was denied.A: Yes. I believe that was.I learing Tr. at 2743 (Kolakovski);

PIT at ¶ 173.42 and will not, impair the best uses of the Hudson River, there is no basis to den, the Application on the grounds of ECL §17-0501.

D. The Department did not deny Entergv's Application on the basis of groundwater concentrations, and any attempt to do so would likewise be preempted and unsupported in law and fact.NYSDEC Staff did not purport to deny Entergy's Application on the basis of on-site oroff-site groundwater concentrations of radiological materials.

Nothing in the Notice or Mr.Kolakowski's testimony indicates that NYSDEC Staff proposed to deny Entergy's Application on this basis. In fact, Mr. Kolakowski confirmed during the hearing that Department Staff didnot consider groundwater concentrations.

in and of themselves, during his analysis of Entergy's Application.

PFF at ¶ 174. In this instance, the NYSDEC Staffis approach was appropriate.

Asdiscussed below, any attempt to deny Entergy's Application due to on-site groundwater contamination is preempted by federal law, outside the scope of § 401, and otherwise improper.

I. Federal law pre-empts any state regulation of radiological groundwater concentrations beneath Indian Point.As discussed in detail in Section I above, the federal government retains exclusive jurisdiction over all AEA-regulated radionuclides at NRC-licensed facilities.

Of course, thisconclusion applies with equal force to radionuclides found within the boundaries of an NRC-licensed facility.

On the basis of the arguments set tbrth in Section I above, and in Entergy's prior briefing on this issue, any attempt by the Department to deny Entergy's Application on thebasis of on-site groundwater contamination is preempted by federal law.'°2. Even if the regulation of onsite groundwater was not pre-empted.

§ 401 of theCWA applies only to discharges to surface waters.20 There is no dispute that the groundwater beneath the Irdian Point power block area flows only in ihe direction of the Hudson River and does not flow to adjacent properties, PFF at 41 28(b). 32(a), and that radiological materials from Indian Point have never been detected in oft-site groundwater.

PFF at ¶ý 41(e).4.3 NYSDEC's authority to issue certifications under § 401 of the CWA is limited toregulation of a proposed "discharge" as that term is delined in the CWA. The CWA makes clearthat discharges subject to its regulatory scope are limited to discharges to surface waters, and notgroundwater.

See 33 U.S.C. §1362(12)

(-discharge of a pollutant" means "(A) any addition ofany pollutant to navigable waters from any point source, [and] (B) any addition of any pollutant to the waters of the contiguous Zone or ihe ocean from any point source other than a vessel orother floating craft" (emphasis added));

see also WYademan

v. Concra.,

13 F.Supp.2d 295, 303-304 (N.D.N.Y.

1998) (CWA does not regulate groundwater).

Accordingly, it would be improperto withhold a certification under § 401(a) of the CWA on the basis of groundwater conditions.

Mr. Kolakowski confirmed that the Department's review of Entergy's Application properlyfocused on impacts to surface waters only. PFF at ¶ 174.3. EPA's Safe Drinking Water Act standards do not apply to the groundwater beneath Indian Point.The record includes testimony from various witnesses regarding certain maximumcontaminant levels ("MCLs")

for drinking water established by EPA under the federal SafeDrinking Water Act ("SDWA").

In particular, there was testimony that certain individual samples of groundwater beneath Indian Point contained concentrations ofl tritium or strontium-90 exceeding the SDWA MCLs.The SDWA does not apply to the groundwater beneath Indian Point. The primary andsecondary drinking water regulations developed pursuant to the SDWA apply to "public watersystems,"

defined by statute to be "a system for the provision to the public of water for humanconsumption through pipes or other constructed conveyances, if such system has at least fifteenservice connections or regularly serves at least twenty-live individuals."

42 U.S.C. §§300I I) --44 (4). 300g. The groundwater beneath Indian Point is not collected and delivered to the public.PFF at ¶¶ 8-9.Moreover, the term "maximum contaminant level" is defined by statute to be "themaximum permissible level of a contaminant in water which is delivered to any user of a publicwater system."

42 U.S.C. §300f(3).

In other words, the SDWA sets MCLs for water **at thetap," rather than at the source. PFF at ¶ 176. Accordingly, even if the water beneath IndianPoint were to be used for drinking water purposes.

the MCLs for any contaminant would notapply to the concentration of that contaminant within the groundwater.

Id.Thus, EPA's MCLs under the SDWA have no relevance to the issues presented in thiscase. It is undisputed that the groundwater beneath Indian Point is not a source of water for a"public water system,"

and, even if it were, the MCLs referenced during the hearing do not applyto groundwater but, instead, would apply to any water delivered to a tap at the end of a publicwater system. IdRecognizing these facts, NYSDEC Staff did not at the time of the Notice, and did not inthis proceeding, argue that contamination of Indian Point groundwater was a basis for denyingIndian Point's WQC. As is clear from above, there would be no basis in fact or law to do so.REQUESTED RELIEFFor the reasons set forth above and in its prior briefs, Entergy respectfully requests thatthis Tribunal vacate any and all grounds alleged by NYSDEC Staff for denial of Entergy's Application due to radiological releases.

including by:I. Finding that NYSDEC lacks authority under the CWA to regulate releases ofradionuclides from Indian Point;45

2. Finding that NYSDEC Stall's proposed denial of Entergy's Application on the basis ofradiological releases to the environment is preempted by federal law:3. Finding that there are reasonable assurances that radiological releases from Indian Pointduring the license renewal period, if any, will not impair the Hudson River for its best usages;4. Finding that NYSDEC Staff's attempt to add bases for denial of Entergy's Application that are not included in the Notice are improper and barred from adjudication or, in thealternative, lack merit;5. Finding that testimony adduced at hearing related to EPA's MCLs under the SDWA haveno bearing on the adjudicable issues in this case; and6. Any other relief this Tribunal deems just and proper.46 Respectfully submitted.

ENTERGY NUCLEAR INDIAN POINT 2, LLCENTERGY NUCLEAR INDIAN POINT 3, LLCENTERGY NUCLEAR OPERATIONS.

INC.Bv its attorneys, John C. Englaider Elise N. ZoliWilliam J. TrachRobert H. Fitzgerald GoodwinjProcter LLP53 State StreetBoston, Massachusetts 02109Tel.: 617.570.

1000Fax: 617.523.1231 Signed and dated in Boston, MA this 27th day of April, 2012.47 STATE OF NEW YORKDEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2. LLC.Entergy Nuclear Indian Point 3, LLC,and Entergy Nuclear Operations Inc.'sJoint Application for CWA § 401 WaterQuality Certification DEC App. Nos. 3-5522-00011/00030 (IP2)3-5522-00105/00031 (IP3)CERTIFICATE OF SERVICE1. William J. Trach, hereby certify that, on this 27h day of April, 2012, 1 caused a true andaccurate copy of:1. Post Hearing Memorandum of Entergy Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3. LLC, and Entergy Nuclear Operations, Inc. -Radiological Issues; and2. Proposed Findings of Fact of Entergy Nuclear Indian Point 2, LLC, Entergy NuclearIndian Point 3., LLC, and Entergy Nuclear Operations, Inc. -Radiological Issues,to be served on all counsel of record in the above-captioned action via First Class Mail and/or e-mail as specified in the appended Service List.William JlTrach'Dated: April 27, 2012I.II.J22985 I

SERVICE LIST(Updated 412712012)

Service bh E-mail and First Class MailMaria E. VillaDaniel P. O'Connell Administrative Law JudgesOffice of Hearings and Mediation ServicesNew York State Department ofEnvironmental Conservation 625 Broadway.

First FloorAlbany. New York 12233-1550 51 S-402-9003 518-402-9037 (fax)mevilla(d'gw.dec.state.nv.us dpoconne(

)gwv.dec.state.nv.us Mark Lucas, Esq.COUNSEL FOR RIVERKEEPER INC.,SCENIC HUDSON, INC. and THENATURAL RESOURCES DEFENSECOUNCILRiverkeeper, Inc.20 Sccor RoadOssining.

New York 10562914-478-450

1. ext. 241914-478-4527 (fax)rtroutman(dnriverkeepr.orgt rnlucas@riverkeeper.or.

Mark D. Sanza, Esq.Assistant CounselWilliam G. Little, Esq.Associate CounselCOUNSEL FOR DEPARTMENT STAFFNew York State Department of Environmental Conservation Division of Legal Aftairs625 Broadway, 14'h FloorAlbany, New York 12233-1500 518-402-9 195518-402-9018 (fax)wglittle(dUgw.dec, state. nv. usmdsanza(&gw.dec.state.

nv.usRobert L. Sweeney, Esq.COUNSEL FOR AFRICAN AMERICANENVIRONMENTALIST ASSOCIATION Whiteman Osterman

& HannaOne Commerce PlazaAlbany, New York 12260518-487-7670 518-487-7777 (fax)rsweeneyv4Zwoh.com Richard L. 13rodskv2 121 Saw Mill River White Plains. NY 10607Tel: 914.720.8830 richard I brodsk v~it mai I.coinMelissa-Jean Rotini, I-sq.Assistant County Attornev.

Of'Counsel Wcstchester County Attorney's OfficeMichaelian Office Building148 Martine Avenue, 6th FloorWhite Plains, NY 10601914-995-3630 914-995-3 132 (Fax)Email: MJR I ,i4'wesichesterý,ov.coiiI l'homas F. Wood. Esq.T'own Attorney.

Town of Cortlandt Daniel Riescl, Esq.COL'NSEL FOR TOWN OFCORTIANDT Sive. Pawet & Riesel. P.C.460 Park Avenue, 10"' FloorNew York. New York 1002221 2-421-2150 212-421-1891 (fax)driesel(ilsprlaw.com Michael J. Delaney.

Esq.Director.

Energy Regulatory AffairsNew York City Department ofEnvironmental Protection 59-17 Junction Boulevard

Flushing, NY 11373(718) 595-3982mdelanye(adcp.n vc.govRobert J. Glasser.

Esq.Robert J. Glasser.

P.C.COUNSEL FOR CFNTRAI.

HUDSON GAS &ELECTRIC CORPORATION 284 South A\venuePoughkeepsie, New York 12601Cellphone (preferred):

646-318-0-522 845-486-5292 845-486-5782 Bob. i.lasser(wroberti-glasserpc.eom Norris McDonaldPresident Center tor Environment, Commerce

& EnergyAFRICAN AMERICAN ENVIRONMENTALIST ASSOCIATION 1629 K Street, N.W., Suite 300Washington, D.C. 20006301-265-8185 (direct)443-569-5102 norrisincdonald@mnsn.com www.aaenvironinent.com/CEC E.htmD1aniel Riescl, EIsq.Victoria Shiah. [-sq.Adam Stolorow.

Esq.Sive, Paget & Riescl, P.C.460 Park Avenue. 10"' FloorNew York. NY 10022driesel(isprlaw.

cornvshiah(liasprlaw.com astolorow(&sprlaw, cornService E-mail OnlyII .I i it -,\ Si 1 I Ned SullivanPresident.

Scenic Hudson. Inc.One Civic Center Plaza, Suite 200Poughkeepsie, New York 10591845-473-4440, ext. 224845-452-7567 (fax)nsulli van(ýiiscnichudson.org Havlcy Mauskapf, Esq.Eiironmental Advocacy Associate Scenic Hudson, Inc.One Civic Center Plaza. Suite 200Poughkeepsie, NY 10591845-473-4440, ext. 210845-473-2649 (fax)hmauskapf'(d~scenichudson.oriz Paul Schwartzberg Land Projects Specialist Scenic Hudson. Inc.One Civic Center Plaza. Suite 200Poughkeepsie.

New York 10591845 242-2915845 255-2827 (fax)schwartzberwgi;scenichudson.ori Karl S. Coplan. Esq.Daniel E. Estrin, Esq.Supervising Attorney/Adjunct Professor ofLawPace Environmental Litigation Clinic, Inc.Pace University School of Law78 North BroadwayWhite Plains, New York 10603914-422-4343 914-422-4661 (fax)kcoplan(&-law.pace.edu destrin Oolaw .pace.edu Interns:Amber Patersonapatersoniljaw.pace.edu Kimberly Kleinkklcin(a.law.pace.edu Gcoffrev

11. Fettus, Esq.Senior Project AttorneyCOUNSEL FOR NATURALRESOURCES DEFENSE COUNCIL1200 New York Avenue, N.W.. # 400Washington, D.C. 20005202-289-237 1202-289-1060 (fax).,2fettus(i.nrdc.org Deborah Brancato, Esq.Staff AttorneyRiverkeeper, Inc.828 South BroadwayTarrytown, New York 105914-478-4501.

ext. 230914-478-4527 (fax)dbrancato(riverkeepcr.org 91LI I 1 22 713S, C,1ý I Phillip H. Musegaas, Esq.I Iudson River Program DirectorRiverkeeper.

Inc.828 South BroadwayTarrytown, New Nork 10591'J14-478-450

1. ext. 224phillip(-i riverkceper.orgy Steven Blow, Esq.Assistant General CounselNew York State Department of PublicSerniceAgency Building ThreeEmpire State PlazaAlbany, New York 12223-1350 518-474-6955 518-486-5710 (fax)steven.blow(&dps.nv.

govKelli M. Dowell, Esq.Assistant Gcneral Counselil-nvironmental Entergy Services.

Inc.308 East Pearl Street. Suite 700Jackson, MS 39201601-969-2596 Cell: 601-519-6823 601-969-2696 Faxkdowel letentergy.com Frank V. Bifira. Esq.COUNSEl..

FOR MIRANT BOWI.NEIliscock

& Barclay.

LIP50 Beaver StreetAlbany. New York 12207518-429-4224 518-427-3487 (fax)fbi fera(tiihblaw.com Sam M. Laniado.

Esq.[)avid B. Johnson, Esq.Read and Laniado, LLPCOUNSEL FOR INDEPENDENT POWER PRODUCERS OF NEW YORK25 Eagle StreetAlbany. New York 12207-1901 518-465-9313 518-465-9315 (fax)sinl(irrcad I ani ado. coin aniado. corn04II.BA.;2273Q.R.,

I NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter ofEntergy Nuclear Indian Point 2, LLC, Entergy DEC App. Nos. 3-5522-00011/00030 (Unit 2)Nuclear Indian Point 3, LLC, and Entergy 3-5522-00105/00031 (Unit 3)Nuclear Operations, Inc.'s Joint Application for CWA §401 Water Quality Certification POST HEARING REPLY MEMORANDUM OF ENTERGY NUCLEARINDIAN POINT 2, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC,AND ENTERGY NUCLEAR OPERATIONS, INC.RADIOLOGICAL ISSUESENTERGY NUCLEAR INDIAN POINT 2, LLCENTERGY NUCLEAR INDIAN POINT 3, LLCENTERGY NUCLEAR OPERATIONS, INC.By Their Attorneys, John C. Englander, EW.Elise N. Zoli, Esq.William J. Trach, Esq.Robert H. Fitzgerald, Esq.GoodwiniProcter LLPExchange PlaceBoston, MA 02109-2881 (617) 570-1000Dated: October 5, 2012LIBA/2306566.3 TABLE OF CONTENTSPageIN TR O D UCTIO N ..........................................................................................................................

II. DEC has no legal authority to deny a WQC application on the basis ofradiological releases from NRC-regulated facilities

......................................................

5A. DEC Staff's proposed denial of Entergy's WQC Application on the basisof unplanned radiological releases is clearly preempted

....................................

5B. Department Staff and Riverkeeper ignore the jurisdictional limits of § 401of th e C W A ............................................................................................................

11C. DEC Staff's attempt to support the proposed denial by reference tosections of the ECL that are not WQS promulgated pursuant to the CWAcontradicts N ew York law ....................................................................................

11II. Even if DEC had authority to regulate the radionuclide discharges from IndianPoint, the only conclusion supported by the record is that Department Staffimproperly proposed denial of Entergy's Application on the basis of unplanned releases of AEA m aterials

............................................................................................

14A. Department Staff and Riverkeeper failed to meet their burden to produceevidence contrary to Entergy's position and, therefore, Department Staff'spurported denial of Entergy's application is arbitrary and capricious

..............

14B. DEC Staff fails to apply properly the New York law it claims governs thisissue ........................................................................................................................

15C. In addition to applying an improper standard of review to Entergy's Application, Department Staff failed to apply the best usages standard forClass SB waters and, instead, applied a legally unsupportable "zerodischarge" standard

..........................................................................................

18D. Entergy produced ample evidence to demonstrate that the unplanned releases of radiological materials at Indian Point comply with purportedly applicable water quality standards

....................................................................

20E. The Tribunal should reject Department Staff's attempt to add yet anotherlegal argument found nowhere in the Notice of Denial for denyingEntergy's A pplication

.......................................................................................

24F. DEC is not entitled to any deference on this issue ..........................................

26iLIBA2306566.3 G. Riverkeeper's argument that Department Staff should have proposed todeny the WQC based on impacts to groundwater has no basis in law orfact, and should be rejected

..............................................................................

281. The CWA, including Section 401, applies only to discharges tosurface waters .......................................................................................

282. Riverkeeper's argument that § 401(d) permits the denial ofEntergy's application on the basis of radiological contamination ofgroundwater is equally misplaced

....................................................

293. The evidence presented by Riverkeeper demonstrates that thegroundwater beneath Indian Point meets the best use standard

..........

30C O N C L U SIO N ............................................................................................................................

31LIBA/23065

66.3 INTRODUCTION

This post-hearing reply brief, submitted on behalf of Entergy Nuclear Indian Point 2,LLC, Entergy Nuclear Indian Point 3, LLC and Entergy Nuclear Operations, Inc. (collectively, "Entergy"),

sets forth why the New York State Department of Environmental Conservation

("DEC" or "DEC") Staff's April 2, 2010 Notice of Denial ("Notice"),

which proposed to denyEntergy a water quality certification

("WQC") based on radiological releases from Indian Point,was not supported by law or fact. For the reasons stated herein and in Entergy's opening brief,DEC Staff's attempt to use its authority under § 401 of the federal Clean Water Act ("CWA") toregulate the release of radiological materials regulated by the Nuclear Regulatory Commission

("NRC") and governed by the Atomic Energy Act of 1954, as amended (the "AEA") is federally preempted by the AEA and outside the jurisdiction granted to DEC under the CWA. Further, theevidence adduced at trial demonstrates that even if DEC had jurisdiction to regulate radiological releases from an NRC-licensed nuclear facility, the unplanned releases at issue in this proceeding fully complied with New York water quality standards

("WQS").This reply brief is divided into two sections.

The first section focuses on the settled,controlling law demonstrating that DEC is both preempted and lacks jurisdiction under the CWAto regulate releases of radiological materials governed by the AEA from an NRC-regulated nuclear facility.

Either is fatal to Department Staff's Notice of Denial. In this section, Entergyalso addresses DEC Staff's improper and belated efforts to introduce a non-CWA rationale forthe Notice of Denial. The second section demonstrates that, even assuming that DEC hadauthority to regulate Indian Point's radiological

releases, which it does not, the evidence adducedat hearing demonstrates conclusively that there are reasonable assurances that unplanned releasesLIBA/2306566.3 of radiological materials from Indian Point during the license renewal term will not impair thewaters of the state for their best usages, or otherwise contravene WQS.DEC Lacks Jurisdiction to Regulatethe Radiological Releases from Indian Point at Issue in This Proceeding More specifically with respect to DEC's preempted activity and lack of jurisdiction, thefollowing facts and legal principles are undisputed:
  • Indian Point is an NRC-regulated nuclear facility operating pursuant to a licensegranted under the terms of the AEA." Under settled, controlling United States Supreme Court precedent, the AEAgranted exclusive jurisdiction to the NRC to regulate the release of radiological materials as defined in the AEA ("AEA materials"),

and preempted states, andtherefore DEC, from any such regulation.

  • Under settled, controlling United States Supreme Court precedent, the authority granted to the states, and therefore DEC, under the federal CWA does not includethe authority to regulate AEA materials.

" The radiological materials released from Indian Point at issue in this proceeding are AEA materials that are regulated by the NRC.* The NRC has determined that the unplanned release of radiological materials from Indian Point at issue in this proceeding have never violated NRCregulations.

Given these fundamental facts and legal principles, it is plain that the Notice, which proposed todeny Entergy's WQC application based on the release of AEA materials from an NRC-regulated nuclear facility, is both preempted by the NRC's exclusive jurisdiction and outside the scope ofDEC's authority under the CWA. Entergy addressed these arguments in detail in its openingpost-hearing brief, and in this brief addresses DEC Staff's and Riverkeeper's attempts to arguewhy, despite the undisputed facts and law set forth above, this Tribunal should nevertheless findthat DEC has jurisdiction to regulate AEA materials released from an NRC-regulated nuclearfacility.

As set forth below, those arguments have no merit.DEC Staff fails even to mention preemption in its opening brief, despite the fact that theIssues Ruling explicitly (at DEC Staff's urging) advanced the radiological issue to adjudication, 2L1BA/2306566.3 in part on the ground that DEC Staff claimed there were factual issues necessary to decide thescope of preemption.

DEC Staff's failure to address the fundamental issue of preemption or thejurisdictional limits of the CWA is telling, as it means that DEC Staff has advanced no crediblelegal argument that DEC has the authority to regulate the release of AEA materials from IndianPoint.Riverkeeper briefly addresses the issues of preemption and the lack of state jurisdiction toregulate the release of AEA materials from NRC-licensed facilities, but in doing so concocts anargument regarding preemption that finds no support in the case law, and is expressly rejected byrelevant preemption law that Riverkeeper fails to mention in its brief.Of course, DEC's lack of authority to regulate AEA materials under the CWA, and thebroader prohibition of such regulation as a result of federal preemption, ends the inquiry, andrequires the conclusion that the Notice, to the extent it is based on "radiological considerations,"

cannot stand.Even if DEC Possessed Jurisdiction, the Evidence at Trial Fails to Support the NoticeEven absent the clear jurisdictional limits of the CWA and preemptive effect of the AEA,the evidence adduced at hearing demonstrates that the unplanned release of radiological materials from Indian Point has not impaired the Hudson River for its best usages and that thereare reasonable assurances that no such impairment will occur during the license renewal period.Thus, the Notice's suggestion that such an impairment "could" occur, even if that were a crediblefinding sufficient to support the Notice (which it is not), is not borne out by the facts. On thispoint, the following facts are undisputed:

  • Entergy's experts have established that the radiological releases at issue in thisproceeding have not impaired the Hudson River for its best usages and that thereare reasonable assurances that no such impairment will occur during the licenserenewal period.3LIBA/2306566.3

" The NRC has investigated the radiological releases at issue in this proceeding anddetermined that they have not affected, and will not in the future affect, publichealth, safety and the environment, and also are "negligible" with respect toconservatively established NRC regulations designed to protect public health,safety, and the environment.

" DEC Staffis actual experts in radiological

releases, who have been monitoring Indian Point's unplanned releases and Entergy's response thereto from the outset(but who were, over Entergy's objection, prevented from providing testimony byDEC Staff counsel),

have determined and publicly stated that the unplanned releases at issue in this proceeding:

(i) have never exceeded state water qualitystandards

("WQS") for tritium and strontium; (ii) have had no measurable effecton Hudson River aquatic biota; and (iii) are less than 1% of NRC standards deemed protective of public health, safety, and the environment.

" DEC Staff's lone witness in this proceeding, who conceded his lack ofradiological expertise, agreed with Entergy's witnesses regarding the lack of anyevidence of an effect on the best usages of the Hudson River.These undisputed facts compel a finding that the Notice, which proposed denying Indian Point'sWQC on the basis that the unplanned releases of radiological materials "could" impair theHudson River for its best usages, cannot stand.Despite the undisputed facts adduced at hearing, DEC Staff and Riverkeeper nonetheless attempt to resuscitate the Notice through various specious arguments.

These include:

(i) applyingthe wrong standard of review; (ii) arguing for the application of a "zero discharge" standard thathas no basis in New York law; (iii) attempting to apply WQS absent from the Notice andinapplicable to Indian Point; and (iv) ignoring the undisputed facts regarding the absence of anyenvironmental impact from the releases at issue in this proceeding.

For these reasons, as detailedbelow, Entergy respectfully requests that the Tribunal, should it determine DEC possesses jurisdiction to regulate Indian Point's radiological

releases, reject DEC Staff's and Riverkeeper's claims and find, consistent with every competent expert to examine Indian Point's unplanned radiological
releases, that there are reasonable assurances that such releases will not impair NewYork waters for their best usages or otherwise contravene WQS for the duration of Indian Point'slicense renewal term.4L1BA/2306566-3
1. DEC has no legal authority to deny a WQC application on the basis of radiological releases from NRC-regulated facilities.

This section addresses three legal arguments.

First, under any formulation of the federalpreemption

inquiry, including as described by this Tribunal in the Issues Ruling, DEC Staff'sproposed denial of Entergy's WQC is preempted by the AEA. Second, even if it were notpreempted, the proposed denial exceeds the jurisdictional limits of the CWA as defined by theU.S. Supreme Court. Third, Department Staff's argument that it can deny Entergy's application on the basis of state law other than WQS exceeds the jurisdictional limits of New York law asdefined by the New York Court of Appeal. For these reasons, Department Staff's Notice ofDenial should be rejected.

A. DEC Staff s proposed denial of Enteray's WQC Application on the basis ofunplanned radiological releases is clearly preempted.

In its Post-Issues Conference

Briefing, DEC Staff argued in favor of advancing theradiological issue to adjudication over Entergy's objection that DEC Staff was preempted fromregulating the release of radiological materials from Indian Point. DEC Staff contended thatthere was a factual question as to whether the unplanned releases were regulated by the NRC orwere in compliance with NRC requirements and, therefore, whether such releases were subject tothe AEA's preemptive effect. See Initial Post-Issues Conference Brief by the Staff of theDepartment of Environmental Conservation at 15. As discussed in Entergy's opening post-hearing brief, this Tribunal adopted DEC Staff s reasoning and advanced the radiological issue toadjudication on the basis that there were two factual questions necessary to determine the issueof preemption:

whether the radiological releases from Indian Point were (i) regulated by theNRC, and (ii) in compliance with NRC regulations.

See Post Hearing Memorandum of EntergyNuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy NuclearOperations, Inc. Radiological Issues ("Entergy Br.") at 15-19; Ruling on Proposed Issues For5L1BA/2306566.3 Adjudication and Petitions for Party Status ("Issues Ruling")

at 26-27. Thus, following theTribunal's reasoning, to avoid a finding of preemption DEC Staff and Riverkeeper had toestablish that the radiological releases at issue in this Proceeding were not regulated by the NRC,and were not in compliance with NRC regulations.'

In fact, however, both parties now concedethat the radiological releases at issue in this proceeding are both regulated by the NRC and incompliance with NRC regulations.

This must end the inquiry, as DEC Staff and Riverkeeper have failed to provide any basis that the radiological releases at issue are not subject to thepreemptive effect of the AEA.Specifically, Department Staff now acknowledges, as it must, that the Indian Pointunplanned releases are in fact regulated by the NRC, and are in compliance with NRCrequirements.

See Brief of the Department of Environmental Conservation in Support of Denialof the Application for a Water Quality Certificate for Indian Point Unit 2 and Indian Point Unit3; Issue: Radiological Releases to the Hudson River ("DEC Staff Br.") at 10 ("it has becomeabundantly clear that standard operating procedures at Indian Point [and perhaps all nuclearenergy power producing facilities in the U.S.] contemplate unplanned discharges of radiological materials from the facility during normal facility operations");

12 ("NRC's regulatory oversight for licensed nuclear power generation facilities

'normalizes' unplanned leaks....

The NRC'sregulatory regime considers unplanned leaks to be 'normal operations'....").

This irrefutable conclusion is amply supported in the record because (i) Entergy's witnesses testified consistently that NRC regulated the radionuclides discharged from Indian Point, including unplanned releasesof those radionuclides, and that those releases were well within NRC discharge limits;Entergy again states that it does not agree with the Issues Ruling's determination that whether the unplanned releases were in fact regulated by the NRC or in compliance with NRC's requirements were necessary orappropriate to determine the scope 'of federal preemption.

Rather, the law is to the contrary.

Train v. ColoradoPub. Int. Research Grp., 426 U.S. 1, 16 n.12 ("States are precluded from playing any role in several significant areas of regulation including the setting of limitations on radioactive discharges from nuclear power plants.").

6LIBA/2306W6.3 (ii) Entergy submitted into evidence multiple NRC inspection reports regarding the unplanned releases of radionuclides at issue in this proceeding which demonstrate that NRC is in factregulating those releases and which conclude that those releases complied with all applicable NRC regulations.

See Hoffman Prefiled at 8-9, 11-13; Barvenik Prefiled at 9, 15, 19-21; HearingTr. at 3092 (Hoffman),

Hearing Tr. at 3920-21 (Barvenik);

Entergy Ex. #31, 32, 34. Thus, thefact that NRC regulates Indian Point's radionuclide discharges, including unplanned discharges, is now undisputed and compels a finding that DEC Staff is preempted from regulating thosereleases.

For DEC Staff or Riverkeeper to prevail, they would have to provide this Tribunal with acredible basis for circumventing Train. Both have failed to do so. Rather than attempting todeal with the threshold factual questions that DEC Staff initially advanced and the Issues Rulingidentifies as necessary to determine the issue of preemption, DEC Staff ignores them completely.

Indeed, the word preemption shows up nowhere in DEC Staff's brief. Instead, DEC Staffattempts to advance two alternative arguments for why DEC has jurisdiction to regulate IndianPoint's NRC-regulated releases.

First, DEC Staff seeks to rely on the broad purpose of the CWAto protect state waters as providing the legal basis to support the regulation of radiological releases from an AEA-regulated facility.

DEC Staff Br. at 17-18. This argument is unavailing.

The Train decision anticipates and expressly refutes this very argument.

Specifically, the Courtheld that, despite the broad authority granted to the states to protect state waters (as set forth in33 U.S.C. § 1251, the same authority relied upon by DEC Staff in its brief), Congress did notintend that authority to apply to AEA-regulated materials, as doing so would be whollyinconsistent with the exclusive authority over such materials granted to the NRC. See Train, 426U.S. at 16 & n. 13. Thus, DEC Staff's reliance on the broad purpose of the CWA cannotovercome the holding in Train and support the proposed Notice of Denial.7LIBA/2306566-3 DEC Staff's second argument is that NRC regulations are not strict enough, and that thestate should be permitted to apply more stringent standards to the discharge of Indian Point'sunplanned releases than those applied by the NRC.2 DEC Staff Br. at 12. Applying morestringent state standards to the release of radiological materials from an NRC-regulated

facility, however, is precisely the sort of regulation that courts repeatedly have found to be preempted.

See, e.g., Train, 426 U.S. at 16 n.12 & 17 ("States are precluded from playing any role in severalsignificant areas of regulation including the setting of limitations on radioactive discharges fromnuclear power plants.");

Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1144, 1149n.6, 1154 (8th Cir. 1971) (affirming that "the United States Government has the sole authority under the doctrine of pre-emption to regulate radioactive waste releases from nuclear powerplants to the exclusion of the states");

United States v. City of New York, 463 F. Supp. 604, 614(S.D.N.Y.

1978) (holding that city of New York's attempt to require Columbia University toobtain a license to operate nuclear reactor preempted by federal government's exclusive jurisdiction);

Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 838 F. Supp. 2d 183, 230-31(D. Vt. 2012) (preempting state legislation intended to regulate radiological health and safety atAEA-licensed nuclear power plant). In sum, DEC Staff's argument reflects a textbook case ofpreempted state action.Riverkeeper also ignores the Tribunal's directive with respect to the factual issuesrelevant to preemption, and attempts to advance two flawed arguments regarding DEC'sregulation of AEA materials.

First, Riverkeeper argues that AEA preemption only applies toIn doing so, DEC Staff cites to the NRC's Groundwater Task Force Final Report, and argues incorrectly that inthat document "NRC acknowledges that it does not have regulatory authority to actually prevent leaks ofradiological materials from nuclear facilities in the first instance..."

DEC Staff Br. at 12-13 n.7. To thecontrary, NRC did not conclude that it lacks regulatory authority to prevent all leaks; rather, NRC stated thatits regulatory framework does not require that licensees have no leaks. See U.S. Nuclear Regulatory Commission, Groundwater Task Force Final Report, June 2010, at 4 ("NRC's regulatory framework does notexplicitly state that all activities under a licensee's control must be accomplished with no leakage.").

8LrBA/2306566.3 "direct state regulation of radiological hazards from nuclear facilities,"

and that "application ofrelevant State standards under CWA § 401 in a federal licensing proceeding does not constitute direct regulation of nuclear facilities."

Post-Hearing Closing Brief of Intervenors Riverkeeper, Natural Resources Defense Council, and Scenic Hudson Regarding Issue for Adjudication No. 3-Radiological Materials

("Rkp. Br.") at 13 (emphasis added). According to Riverkeeper, preemption only applies where a state seeks "to directly enforce health and environmental regulations based on independent state authority,"

but does not apply to state enforcement ofsuch regulations pursuant to federal authority, such as the CWA. Id. at 14. Riverkeeper's argument has no basis in the law. First, this argument is belied by Train itself, which held thatCongress vested the NRC with exclusive jurisdiction over AEA materials and that neither EPAnor the states could promulgate or apply water quality standards for the discharge of AEAmaterials under the CWA. See Train, 426 U.S. at 16 n. 12, 25.Moreover, Riverkeeper's purported distinction has been rejected by controlling NewYork Court of Appeals precedent.

In a case interpreting DEC's authority under § 401 the Courtof Appeals held, in direct contradiction to Riverkeeper's

argument, that federal preemption applied to DEC's attempt to regulate a federal licensee under § 401:Settled law in New York has consistently supported the view that section 401gives the State regulatory entity only a limited role of review, based onrequirements affecting water quality, not on all State water quality provisions.

Review by State agencies that would overlap or duplicate the Federal purview andprerogatives was not contemplated and would infringe on and potentially conflictwith an area of the law dominated by the nationally uniform Federal statutory scheme.Niagara Mohawk Power Corp. v. N. Y. Dept. of Env. Conserv.,

82 N. Y.2d 191, 196 (1993).Riverkeeper's attempt to rely on a California Appeals Court decision does nothing torefute clear New York law contradicting Riverkeeper's position.

See Karuk Tribe v. Cal.Regional Water Quality Control Board, 183 Cal. App. 4th 330 (2010). That case (which has9I.IBA/2306566.3 nothing to do with the scope of AEA preemption or the regulation of radiological materials) stands only for the unremarkable proposition that, when Congress has preempted state action in acertain area (in that case, the regulation of hydroelectric plants),

it can nonetheless through otherlegislation provide states with some role in the process of federal licensing, such as through thecertification authority under § 401. Id. at 359-60. Entergy has never contended that states haveno role in federal licensing proceedings through their § 401 authority; rather, the specificquestion before this Tribunal is whether that role includes the authority to regulate AEAmaterials.

Indeed, the holding of Karuk Tribe, which Riverkeeper omits, is that "it is Congressthat determines what is the extent of state input." Id at 360. As such, the question at issue inthis proceeding is simple: did Congress, in passing the CWA, provide states with the authority toregulate the discharges of AEA materials by nuclear facilities?

As Train makes clear, the answeris unequivocally no.Riverkeeper's second flawed argument is that DEC Staff's purported conditioning authority under § 401 (d) provides some residual state authority over radionuclides regulated byNRC that is somehow immune from preemption.

Rkp. Br. at 17-18. This argument fails becausethe clear holding of Train is that in passing the CWA, which of course includes

§ 401(d),Congress did not intend for state or federal authority under the CWA to apply to NRC-regulated radionuclides or otherwise alter the exclusive NRC jurisdiction over such materials as set forth inthe AEA. Riverkeeper's claim is based on the unfounded assertion that a subsequent SupremeCourt decision somehow altered the clear holding in Train and the law of federal preemption, specifically PUD No. 1 v. Washington Dept. of Ecology, 511 U.S. 700 (1994). In fact, nothingin PUD authorizes states to deny a water quality certification based on discharges that states arenot authorized to regulate under § 401(a), or any other provision of the CWA, and are otherwise federally preempted from regulating by the AEA.10LIBA/2306566.3 Accordingly, DEC Staff's purported denial of Entergy's WQC Application on the basisof unplanned releases of radiological materials at Indian Point must be rejected as preempted byfederal law.B. Department Staff and Riverkeeper ignore the jurisdictional limits of 4 401 of theCWA.Because the radionuclide discharges at issue in this proceeding are governed by the AEA,under settled, controlling United States Supreme Court precedent, those materials are outside thescope of permissible regulation under the CWA. As such, the regulation of those discharges cannot form a legal basis for the Notice of Denial. The United States Supreme Court has heldthat, in passing the CWA, Congress did not confer on any agency administering the CWA theauthority to address radionuclides regulated by NRC. See Train v. Colorado Public InterestResearch Group, 426 U.S. 1, 23-25 (1976). The Train decision, the holding of which hasremained black letter law for more than thirty years, has clear, direct and incontrovertible consequences here: Department Staff's effort to ground its Notice of Denial on "radiological considerations"

-specifically the unplanned release of radionuclides from Indian Point to theHudson River -cannot stand.Consequently, DEC's authority under the CWA does not extend to the regulation ofradionuclides discharged from Indian Point, whether unplanned or not. As such, Department Staff's Notice of Denial under § 401 of that Act based on radiological considerations must berejected as ultra vires and otherwise unlawful.

C. DEC Staff's attempt to support the proposed denial by reference to sections of theECL that are not WOS promulgated pursuant to the CWA contradicts New Yorklaw.DEC Staff's opening brief references, as an apparent additional and separate basis for theNotice of Denial, provisions of the ECL that are not state WQS contained in 6 NYCRR §§ 701-11LIBA12306S66.3 704. See, e.g., DEC Staff Br. at 5-6, 15-16 (citing to ECL §§ 17-0105(5),

(17), (19), 17-0301,17-0511, 17-0807(4)).

Settled New York law makes clear, however, that the state's authority under § 401(a) is limited to a determination of whether the proposed activity will comply withstate WQS contained in 6 NYRCC §§ 701-704, and cannot extend to other provisions of theenvironmental law that are not CWA-authorized WQS:The Clean Water Act reads simply that a certification shall issue if adetermination is reached 'that any such discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307 of this Act.'.....

DEC concedesthat in New York the water quality standards promulgated pursuant to section 303are linked and found only in 6 NYCRR parts 701 to 704. Thus, there is nothing inthe new language or legislative history of section 401 that would empower DECto deny certification on the basis of broader environmental provisions of NewYork law or regulation, nor is there adequate support for DEC's contention thatthe operation and reach of section 401 has been altered in a way that requires thisCourt to upset its settled analysis and resolution of the interrelated questions inMatter of de Rham v. Diamond (32 NY2d 34, supra) and Matter of Power Auth. v.Williams (60 NY2d 315, supra).See Niagara Mohawk, 82 N.Y.2d at 200 (1993). Accordingly, the law is clear that DEC has noauthority to do what Department Staff proposes here, which is to use its certification authority under § 401(a) of the CWA to apply provisions of the ECL that are not WQS promulgated in 6NYCRR §§ 701-704.To the extent that DEC Staff and Riverkeeper purport to rely on the conditioning authority of § 401(d) of the CWA to apply other provisions of the ECL to Indian Point's WQCrequest, the law is clear that § 401(d) cannot serve as a basis to deny an application, but onlypermits a state to place conditions on a WQC that has been granted pursuant to § 401(a). Thisconclusion is required by the plain language of § 401(d), which states:Any certification provided under this section shall set forth any effluentlimitations and other limitations, and monitoring requirements necessary to assurethat any applicant for a Federal license or permit will comply with any applicable effluent limitations and other limitations, under section 1311 or 1312 of this title,standard of performance under section 1316 of this title, or prohibition, effluentstandard, or pretreatment standard under section 1317 of this title, and with any12LIBA/2306566.3 other appropriate requirement of State law set forth in such certification, and shallbecome a condition on any Federal license or permit subject to the provisions ofthis section.33 U.S.C § 1341(d).

Indeed, DEC made precisely this argument in the Niagara Mohawk case,contending that § 401 (d)'s reference to "other applicable state laws" permitted DEC to review anapplication for a WQC for compliance with all aspects of the ECL that bear on water quality.

82N.Y.2d at 199-200.

In rejecting this argument, the New York Court of Appeals held that:[S]ection 401 (d) does not control the analysis or outcome here. That subdivision applies only to the conditioning authority on a certificate issued by DEC. DEC'senlarged reading of 'appropriate requirement of State law' under section 401 (d)would enable DEC to impose onerous conditions that could contradict orundermine Federal licensing by superimposing unrelated conditions not within theEPA mandates and specifications.

Such a strained construction wouldcountermand the carefully worded authority of section 401 (a) (1).Id. (emphasis added). Accordingly, DEC's attempt to support the proposed denial by reference to sections of the ECL that are not state WQS passed pursuant to the CWA is contrary to settledNew York law.3In sum, the evidence set forth at trial, which is undisputed by the parties, is that theunplanned radiological releases at issue in this proceeding are governed by the AEA andregulated by the NRC pursuant to its authority under the AEA. As such, DEC is preempted fromregulating the release of those materials by federal law, and possesses no jurisdiction to regulatethose materials under the CWA. In addition, DEC Staff's attempt to base its Notice of Denial onstate law other than WQS exceeds its jurisdiction under New York law. Thus, the Notice ofDenial is contrary to law and must be rejected.

3 The Court of Appeals' decision in Niagara Mohawk is consistent with federal law interpreting

§ 40 1 (d),including the U.S. Supreme Court's decision in PUD. That case upheld a state's use of its conditioning authority under § 401(d) to place conditions on a granted WQC to ensure that non-discharge related aspects ofthe applicant's activity would comply with state WQS passed pursuant to the CWA. Id at 713-14. It did nothold that a state had authority to deny a WQC under § 401(d); indeed, nothing in the language of§ 401(d)would permit such an interpretation.

13LIBA/23065663 II. Even if DEC had authority to regulate the radionuclide discharges from IndianPoint, the only conclusion supported by the record is that Department Staffimproperly proposed denial of Entergy's Application on the basis of unplanned releases of AEA materials.

Even if DEC were not preempted from regulating the radiological releases at issue in thisproceeding, and even if the regulation of such releases were not outside the authority conferred on DEC through the CWA, DEC Staff's proposal to deny the WQC based on such radiological releases would still be improper under New York law. For the reasons set forth below, Entergyhas more than demonstrated that prior radiological releases from Indian Point fully compliedwith any even arguably applicable WQS, and that there are reasonable assurances that any futurereleases would also comply with such standards.

In short, DEC Staff and Riverkeeper failed todemonstrate any basis to support the proposed Notice of Denial.A. Department Staff and Riverkeeper failed to meet their burden to produce evidencecontrary to Entergy's position and, therefore, Department Staff's purported denialof Enteray's application is arbitrary and capricious.

While a permit applicant bears the burden of production and persuasion that itsapplication complies with applicable law, "[o]nce an applicant produces evidence sufficient toestablish a prima facie case, the burden of production may shift to other parties in theproceeding, including Department staff, to produce evidence either in rebuttal to the applicant'

[sic] evidence or in support of contrary factual assertions, or both." Matter of Karta Corp.,Decision of the Deputy Commissioner, DEC No. 3-5512-0054/00004, 2006 WL 1111345, at *2(N.Y. Dept. Env. Conserv.

Apr. 20, 2006). Department Staff did not meet its burden here. Notonly did Department Staff and Riverkeeper fail to offer any credible evidence relevant to thepurportedly applicable legal standards, Department Staff also departed without explanation orsupport from its prior accurate conclusions that the unplanned releases of radiological materials from Indian Point have not adversely impacted water quality or aquatic biota. Department 14LIBA/23065663 Staff's failure to adhere to the law and to explain its contrary conclusions is the very definition ofarbitrary and capricious agency action. See Matter of Charles A. Field Delivery Serv., 66 N.Y.2d516, 516-517 (1985) ("A decision of an administrative agency which neither adheres to its ownprior precedent nor indicates its reasons for reaching a different result on essentially the samefacts is arbitrary and capricious.").

For the reasons set forth both in Entergy's opening brief andbelow, the evidence adduced at hearing demonstrates that the radiological releases at issue in thisproceeding were in compliance with all applicable WQS, and neither DEC Staff nor Riverkeeper provided any evidence to refute Entergy's position.

4B. DEC Staff fails to apply properly the New York law it claims governs this issue.Even if DEC had jurisdiction to regulate the radiological releases at issue in thisproceeding, the standard to be applied to Entergy's Application is whether there are "reasonable assurances" that the operation of Indian Point during the license renewal term will comply withapplicable WQS. See Issues Ruling at 1; Long Lake Energy Corp. v. N. Y. Dept. of Env.Conserv.,

164 A.D.2d 396, 402 (3rd Dept. 1990) ("reasonable assurances" standard applies toreview of § 401 WQC determinations)

(quoting Matter of de Rham v. Diamond, 32 N.Y.2d 34,44 (1973); Power Auth. ofthe State of N. Y. v. Williams, 101 A.D.2d 659, 659 (3rd Dept. 1984)(applying "reasonable assurance" standard);

In re Erie Boulevard Hydropower L.P., Decision ofthe Deputy Commissioner, No. 4-6103-00027/00001-9, 2006 WL 2951127, at *4 (Oct. 6, 2006)(certification under § 401 is "whether a 'reasonable assurance' exists that the project will notviolate applicable water quality standards").

This is not only the law, but logical:

applications under § 401 of the CWA for a WQC are necessarily forward looking -i.e., an evaluation of4 Riverkeeper advances an argument that the radionuclides at issue in this case constitute "high-level radioactive waste." See Rkp. Br. at 93-94. There is no evidence in the record to support this argument, and even DECStaff disclaimed this argument at hearing.

See Hearing Tr. at 2734-2737 (Kolakowski).

Riverkeeper's argument is with legal or factual merit.151IBAi2306566.3 future compliance during the federal licensing period.5 Therefore, reasonable assurance of futurecompliance is not only the best that an applicant can provide; it is also the only rational standarda regulator could enforce.Department Staff's brief appears to acknowledge that its obligation is to apply thereasonable assurance standard.

See, e.g., DEC Staff Br. at 20, n. 17. However, nowhere in itsopening brief does Department Staff actually apply this standard to the facts of this case.6Rather, and contrary to this Tribunal's clear recitation of the "reasonable assurance" standard inthe Issues Ruling, see Issues Ruling at 1, Department Staff s brief elsewhere advocates astandard of "certainty" regarding Indian Point's future radiological releases.

Specifically, Department Staff asserts, as grounds for supporting the proposed denial, thatEntergy's groundwater concentration and dose data "does not reflect with certainty theforthcoming period of the intended WQC." DEC Staff Br. at 12 (emphasis added). In addition, Department Staff concluded that Entergy's evidence provided "no predictive certainty as to whenthe [radiological]

discharges will cease, or whether the discharges will decrease over time in themanner predicted by GZA." Id. at 13 (emphasis added). Department Staff states affirmatively that these conclusions "necessarily inform the Department's regulatory decision making whenweighing the capacity for the Indian Point facilities to demonstrate compliance with the State'swater quality standards."

Id at 12. Thus, to the extent Department Staff applied a heightened standard in issuing the Notice, it must be rejected as ultra vires. To the extent Department StaffDepartment Staff agrees that WQC determinations are "forward looking."

See Hearing Tr. at 2696, 2711(Kolakowski).

6 Mr. Kolakowski does not mention the standard of review in his pre-filed direct testimony.

Further, in his pre-filed rebuttal testimony.

he acknowledges only that Entergy "must demonstrate compliance with" applicable WQS, see Kolakowski Pre-filed Rebuttal Testimony at 3, and, when asked on cross-examination to identifywhat standard should be applied to Entergy's demonstration of future compliance, Mr. Kolakowski stated thathe could not do so and was unfamiliar with the "reasonable assurance" standard.

See Hearing Tr. at 2698-2699 (Kolakowski).

In other words, while DEC Staff counsel acknowledges the applicable standard to be applied toEntergy's application, DEC Staff responsible for issuing the Notice of Denial apparently have not.16LIBAi2306566.3 asks this Tribunal to apply that heightened standard to its review of Entergy's Application, thatposition lacks any legal foundation.

Riverkeeper's argument that Department Staff is free to require certainty, becausecertainty is a "more stringent requirement" than reasonable assurances, is meritless.

Riverkeeper ignores both the Issues Ruling and applicable New York law holding that the "reasonable assurance" standard is to be applied to WQC applications in New York. Instead, it relegates itsdiscussion of the reasonable assurance standard to a footnote in which it makes a purported "plain language" argument that "merely providing a 'reasonable assurance' of compliance withwater quality standards is a less stringent standard than the requirement that an applicant

'mustdemonstrate compliance' in order to satisfy 6 NYCRR §608.9(a)."

Rkp. Br. at 20, n.87. Again,Riverkeeper's argument lacks any citation to legal authority, and fails to distinguish the directlycontrary and controlling holdings of New York courts on this issue.Moreover, the provision of the CWA that addresses states' ability to pass "morestringent" standards than federal standards-upon which Riverkeeper premises its argument-is totally irrelevant to the standard of review to be applied to WQC applications.

The statutory provision authorizing states to impose more stringent standards applies in specified circumstances, none of which is present here. According to § 510 of the CWA:Except as expressly provided in this chapter, nothing in this chapter shall ...preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges ofpollutants, or (B) any requirement respecting control or abatement of pollution; except that if an effluent limitation, or other limitation, effluent

standard, prohibition, pretreatment
standard, or standard of performance is in effect underthis chapter, such State or political subdivision or interstate agency may not adoptor enforce any effluent limitation, or other limitation, effluent
standard, prohibition, pretreatment
standard, or standard of performance which is lessstringent than the effluent limitation, or other limitation, effluent
standard, prohibition, pretreatment
standard, or standard of performance under this chapter17LIBA/2306566.3 33 U.S.C. § 1370 (emphasis added). The standard of review applied to Entergy's Application isneither a "standard or limitation respecting discharges of pollutants,"

nor a "requirement respecting control or abatement of pollution."

Further, nothing in Section 510 of the CWAallows a state agency to require the impossible

-the certain prediction of the future -fromapplicants for WQCs. Indeed, if Riverkeeper's position were correct, Entergy questions how anyproposed project could ever obtain a WQC, as doing so would require an applicant todemonstrate that it will never experience an unplanned release.

In all respects, Riverkeeper's baseless argument must be rejected.

7C. In addition to a=plying an improper standard of review to Entergy's Application.

Department Staff failed to apply the best usages standard for Class SB waters and,instead, applied a legally unsupportable "zero discharge" standard.

There is no dispute that the narrative standard applicable to the discharge of deleterious substances into Class SB waters such as the Hudson River near Indian Point is:None in amounts that will adversely affect the taste, color or odor thereof, orimpair the waters for their best usages.6 NYCRR §703.2 (emphasis added). Thus, even if it were legally permissible to apply thedeleterious substance standard for Class SB waters to Indian Point's Application, the standard tobe applied is not whether any deleterious substances will be discharged, but whether theamount of deleterious substances discharged will impair the waters for their best usages.87 This legally unfounded notion -that the State of New York has plenary power to regulate Indian Point'sunplanned radiological releases under the guise of being "more stringent" than federal law -is notablyadvanced by Riverkeeper at the same time it argues (in its attempt to avoid the reach of federal preemption) that New York is not regulating Indian Point at all when it reaches a decision with regard to Entergy's Application.

That Riverkeeper continues to pursue legally inconsistent positions underscores how untethered its arguments are to the controlling law at issue in this case.Notably, where the Department's narrative water quality standards prohibit the discharge of any amount of amaterial, the language of the standard clearly indicates as much. See 6 NYCRR §703.2 (narrative standard for"garbage,

cinders, ashes, oils, sludge and other refuse" is "None in any amounts.").

Furthermore, theDepartment's narrative standard for radioactivity

-which only applies to the more protected Class-A Specialwaters and not to the Class SB waters that apply to the Hudson River in the vicinity of Indian Point -is"[s]hould be kept at the lowest practical levels, and in any event should be controlled to the extent necessary toprevent harmful effects on health."

6 NYCRR § 703.2 (emphasis added), In other words, the narrative 18LIBA/2306566.3 In apparent recognition that the proper inquiry requires an analysis of whether the"amount of" Indian Point's discharges impaired the waters for their best usages, Department Staff argues in its brief that deleterious substances discharged to the Hudson River, in anyamount will impair the water for its best usages. See DEC Staff Br. at 9 (claiming there is a"legitimate concern that any leak from Indian Point's generating units could cause impairment ofthe State's waters.").

In other words, Department Staff urges this Tribunal to apply a "zerodischarge" standard to Entergy's Application, without any analysis of whether the discharges actually impair the best usages of the Hudson River. That Department Staff applies such astandard is evident from its brief. Department Staff asserts that Entergy must "demonstrate thaton-going discharges to the Hudson River would cease" during the license renewal period, DECStaff Br. at 3, that Department Staff "cannot ignore the fact that [Monitored Natural Attenuation]

will not stop the radiological discharges to the Hudson River," id. at 11, that there is noindication "as to when, if ever, the releases of radiological materials into the groundwater anddischarges into the Hudson River will stop" or whether they "will ever cease during the periodfor which Entergy seeks a WQC." Id. at 9, 12. Indeed, Department Staff has simply declared thedischarge of deleterious substances to be detrimental to water quality:Discharges of deleterious substances are detrimental to the quality of the State'swaters, since the substances are additive, man-made, contributed from a knownsource, and in addition to the natural background of the water body.Id. at 16. To be clear, there is no legal citation in support of this statement, nor is it consistent with the language of the best usages standard itself.9 Simply put, whether a particular substance standard for radioactivity even in the State's most protective water classification is not "none" but rather isconsistent with the "as low as reasonably achievable" standard with which Entergy already complies as amatter of NRC regulation.

See 10 C.F.R. § 50.36a(a).

Thus, as a matter of fact, Indian Point's radiological discharges would comply with the heightened narrative standard for radioactivity even if it applied to IndianPoint's application, which it does not.9 Mr. Gundersen provided testimony that similarly assumed that the discharge of any deleterious substance would result in a per se impairment of the Hudson River's best usages: "Q: And do you have an opinion about19LIBA/2306566.3 is "detrimental to the quality of the State's waters" is not the legal standard to be applied here.The best usages standard on which Department Staff denied Entergy's Application requires aninquiry into the amount of deleterious substance released and whether that amount will resultin an impairment of best usages. As set forth in detail below, when the proper standard isapplied to Indian Point's releases, Entergy's evidence demonstrates that the unplanned releasesat issue in this proceeding have not impaired the Hudson River for its best usages, and that thereare reasonable assurances that any future releases will also not impair the Hudson River for itsbest usages. Neither Department Staff nor Riverkeeper provided any evidence to the contrary.

D. Entergy produced ample evidence to demonstrate that the unplanned releases ofradiolop-ical materials at Indian Point comply with purportedly applicable waterquality standards.

In this case, the only party to have addressed the actual best usages standard cited byDepartment Staff in its Notice of Denial is Entergy.1 0 Entergy's witnesses documented theamount of unplanned releases to groundwater that have occurred over time, the amountentering the Hudson River over that same period, whether the amount of radionuclides entering the Hudson River over that period had impaired the best usages of the Hudson River,and whether the amount of radionuclides reasonably expected to the Hudson River during thelicense renewal period would be sufficient to result in an impairment of best usages.Entergy's witnesses' conclusions were clear, unrebutted and unchallenged:

whether the radiological leaks at Indian Point during the license renewal term could impair the best usages ofthe Hudson River for swimming and recreational purposes?"

Mr. Gundersen:

"It appears that the radiation ismoving toward the river and not laterally up river and or down river. So, what's in the ground will eitherdecay away or over time enter the river. And it's a deleterious substance, so. yes, it will adversely affectswimming and fishing."

Hearing Tr. at 2816 (Gundersen)

(emphasis added).0 Indeed, Department Staff failed to present or develop any technical information on this issue. Its sole exhibitwas Mr. Kolakowski's curriculum vitae, which discloses that he is not qualified

-as he testified

-to addressthe human or environmental effects of radionuclides in the environment.

See Hearing Tr. at 2768(Kolakowski);

DEC Staff Ex. #1.20LIBAr2306566.3

" the amount of radionuclides from unplanned releases from Indian Point that havealready reached the Hudson River are extremely small and have had no impact onthe best usages of the Hudson River, see Hearing Tr. at 3104-07 (Hoffman);"

  • the amount of radionuclides reasonably expected to reach the Hudson Riverfrom unplanned releases at Indian Point will decline over time and, in any event,is reasonably likely to be less than the amount associated with groundwater conditions over the past several years, see Hearing Tr. at 3117 (Esselman),

3915,3918-3920 (Barvenik),

3971 (Barvenik);

" there are reasonable assurances that unplanned releases of radionuclides togroundwater at Indian Point during the license renewal period, if any, will notimpair the Hudson River for its best usages, see Hearing Tr. at 3107 (Hoffman).12 No other conclusion can be supported by the record.'3The record could not be more clear that both Department Staff and Riverkeeper havewholly failed to evaluate whether the amount of radionuclides released to the Hudson River via11 Mr. Kolakowski testified that he had no contrary evidence.

See Hearing Tr. at 2750 (Kolakowski).

12 Mr. Kolakowski testified that he had no contrary evidence with regard to tritium entering the Hudson River.See Hearing Tr. at 2759-2760 (Kolakowski)

("Q: So, I guess I am asking: Do you have any factual basis forbelieving that the continued operation of units 2 and 3 during license renewal will result in a leak of tritiumsufficiently large to impair the waters for their narrative best usage? A: Specific to tritium and specific tosurface water, I don't. There doesn't appear that there would be a best usage impact based on the data that wehave in front of us now."). He provided no contrary evidence with respect to any other radionuclide.

13 Department Staff mischaracterize Dr. Hoffman's testimony by claiming that "an epidemiological risk ispresent even below the levels that can be observed or measured."

DEC Staff Br. at 14. What Dr. Hoffmansaid was that epidemiological studies would have tremendous difficulties identifying a statistically significant excess risk at the levels of radiation at issue here. See Hearing Tr. at 3099-3100 (Hoffman).

It is undisputed that there are no data to establish that the occurrence of cancer follows exposure to dose rates below 10,000mrem, and people living at higher elevations and, therefore, subject to more than three times the naturalbackground levels of radiation (i.e. 1,000 mrem as compared to 310 mrem) have shown no adverse effects.See Entergy Ex. #43. The linear-no-threshold model conservatively assumes that risk is present below thelevels of epidemiological detection (i.e., below 10,000 mrem) and, therefore, a nonzero risk can be calculated for very low levels of exposure to radiation

-even such low levels as 0.0002 mrem associated with IndianPoint's unplanned releases.

See Hearing Tr. at 3102-3105 (Hoffman).

Of course, Department Staff did not askor address the central question

-whether the amount of radionuclides released could lead to a level of risk thatcould reasonably be said to constitute an impairment of the waters of the Hudson River -which Dr. Hoffmananswered with a resounding "no."21LIBA/2306566.3 unplanned releases to groundwater will impair the Hudson for its best usages. On directexamination, Mr. Kolakowski testified only that the groundwater beneath Indian Point flows tothe Hudson River. See Hearing Tr. at 2663 (Kolakowski).

His direct testimony said nothingabout the concentrations or quantities of materials in the groundwater or the amounts of thosematerials entering the Hudson River as a result, see Kolakowski Pre-filed Direct Testimony, andhis rebuttal testimony asserted only that the relative concentrations of radionuclides in somemonitoring locations "were higher at times during 2010 than in 2009," but did not discuss theactual amount of radionuclides entering the Hudson River during any time period, or whetherthose amounts could reasonably be expected to result in a violation of the best usages standardfor SB waters. See Kolakowski Pre-filed Rebuttal Testimony, at 4-5.On cross examination, Mr. Kolakowski testified that he was well aware that a finding ofimpairment "depend[ed]

on the concentrations of the radiological components,"

Hearing Tr. at2752 (Kolakowski).

He also testified that he did not review any of Indian Point's annualradiological effluent release reports, which document the amount of radiological releases to theenvironment, in connection with his analysis

-despite the fact that these reports are regularly submitted to the Department.

Id. at 2771-2772 (Kolakowski).

Additionally, Mr. Kolakowski said that he had no reason to disagree with DEC's study which concluded that the release ofradionuclides to the Hudson River at Indian Point was not affecting the fish in the river. Id. at2767-2768 (Kolakowski).

Nor did he provide any prefiled or live testimony to dispute priorpublic statements by the Department confirming that the unplanned releases at Indian Pointcomplied with WQS and applicable NRC limits or explain why the Notice of Denial contradicted these earlier Department pronouncements.

Thus, there is no legitimate dispute that Department Staff failed to address whether the amount of radionuclides reasonably expected to enter theHudson River from unplanned releases to groundwater during the license renewal period will22LIBA/2306566.3 impair the best usages of the Hudson River. Further, Department Staff did not address thisargument and, therefore, failed to provide any rationale for reaching a conclusion in thisproceeding that is directly at odds with its prior assurances to the public regarding the absence ofpublic health and environmental impacts from Indian Point's unplanned releases.

Riverkeeper also failed to address the issue of whether the amount of radionuclides atissue in this proceeding has impaired, or reasonably could impair, the best usages of the HudsonRiver. Mr. Gundersen's analysis of this issue was summed up succinctly in his response to thequestion:

"What if any effect have radiological leaks from Indian Point had on the HudsonRiver?":The radiological leaks introduced deleterious substances into the river. Thataccording to BEIR, BEIR VII, any amount of radiation can cause a cancer. So, ithas introduced deleterious material into the river.Hearing Tr. at 2814-2815 (Gundersen).

Aside from being entirely circular in his reasoning, Mr.Gundersen did not analyze the amount of radionuclides entering the Hudson River or whetherthose amounts could reasonably be said to impair the best usages of the Hudson River.14 Hisdirect and pre-filed testimony are similarly lacking in any analysis of the amount ofradionuclides entering the Hudson River from Indian Point's unplanned discharges.

SeeGundersen Pre-filed Testimony, at 12-15; Gundersen Pre-filed Rebuttal Testimony, at 13-16.Moreover, on cross examination Mr. Gundersen admitted that he did not perform an assessment of whether the amount of radionuclides entering the Hudson River could reasonably be expectedto result in an increase in human cancer or impacts to aquatic biota, and that he did not even read14 This position also underscores the failure to apply the reasonable assurances

standard, as well as the failure toapply the narrative best usages standard as written.

The standard is not whether any amount of a substance poses a risk of cancer. The standard is whether there is a reasonable assurance that the amount of the substance released will not impair the water for its best usages. Neither Mr. Kolakowski nor Mr. Gundersen addressed that question.

Dr. Hoffman addressed it directly, and concluded that the unplanned releases have had no effecton human health (i.e., via primary or secondary recreational activities) or aquatic biota -that is, no impairment of the best usages of the Hudson River. See Hearing Tr. at 3104-3105 (Hoffman).

23LIBA/2306566.3 or review Dr. Hoffman's testimony on that point. See, e.g., Hearing Tr. at 2891-2893, 2897,2976 (Gundersen).'5 Thus, Riverkeeper equally failed to address the actual best usages standardat issue.E. The Tribunal should reiect Department Staff's attempt to add yet another legalargument found nowhere in the Notice of Denial for denying Entergy's Application.

As detailed in Entergy's initial brief, in its witnesses' pre-filed testimony, Department Staff improperly attempted to advance reasons for its denial of Entergy's Application foundnowhere in its Notice of Denial. Department Staff's own witness admitted that his owntestimony included grounds for denial of Entergy's Application that were not contained in andnot evaluated at the time of the Notice. This is contrary to basic due process guarantees beforethis Tribunal and, consequently, those newly advanced theories should be stricken from therecord. 16In its opening brief, Department Staff continues to advance arguments to support theNotice that are found nowhere in the Notice, and are otherwise unsupported by fact or law, andtherefore should be rejected.

For instance, Department Staff now argues -for the first time -thatthe radionuclides at issue here are "industrial waste" and, therefore, their discharge is prohibited by New York law. For a number of reasons, this late addition to Department Staff's legal15 Riverkeeper implies that Dr. Hoffman did not consider the exposure pathway associated with swimming in theHudson River as part of his analysis.

However, Dr. Hoffman testified that all pathways are considered andexcluded if not present in the area under consideration.

See Hearing Tr. at 3278 (Hofftman).

Moreover, Dr.Hoffman testified that "[flor aquatic releases of radionuclides, such as strontium 90, the maximum exposures occur from eating fish. If you had swimming,
boating, et cetera, at that same location, they would add aninconsequential amount to the exposures that you would get from fishing.

So the fishing pathway gives youthe maximum indication of what the exposures would be." Id16 In Matter of William Haley, Applicant the Commissioner noted that: "An applicant is entitled to know thegrounds upon which its permit application is denied so that, if it seeks a hearing on the denial, it is able toprepare its case including the identification and development of witnesses, the organization of documentary evidence and the development of legal argument.

In addition, Department staff needs to inform an applicant ofthe specific grounds for denial to afford an applicant the opportunity to consider revisions to a project orrelated mitigation measures...."

DEC No. 1-4736-06627/00001, 2009 WL 2141501, at *3 (N.Y. Dept. Env.Conserv.

June 22, 2009).24LIBA/2306566.3 theories should be rejected.

First, this position is found nowhere in the Notice of Denial.Accordingly, for the same reasons articulated in Entergy's opening brief, this theory should bestricken from the record. Second, characterizing the radionuclides at issue in this case as"industrial waste" is not even relevant to the narrative WQS at issue here. Department Staff'sNotice of Denial says that radionuclides are "deleterious substances" and subject to the narrative standard regarding best usages quoted above. Nowhere does that standard use the words"industrial waste," a defined term in the Department's WQS regulations.

Its absence ismeaningful, because the term "industrial waste" does appear in other narrative standards, inparticular the narrative standards for suspended, colloidal and settleable solids ("None fromsewage, industrial wastes or other wastes that will cause deposition or impair the waters for theirbest usages.")

and oil and floating substances

("No residue attributable from sewage, industrial wastes or other wastes, nor visible oil film nor globules of grease.").

6 NYCRR §703.2(emphasis added). Thus, Department Staff is advancing yet another argument completely untethered from the Notice of Denial and the language of the WQS at issue here.Finally, the state regulations regarding discharges of industrial waste do not contain anabsolute ban; rather, the definition of industrial waste itself notes that such discharge isproblematic only if it reasonably can be expected to lead to violations of WQS:Industrial waste means any liquid, gaseous, solid or waste substance, or acombination

thereof, resulting from any process of industry, manufacturing, trade,or business or from the development or recovery of any natural resources, thatmay cause or might reasonably be expected to cause pollution of the waters of theState in contravention of the standards adopted pursuant to [Article 17 of theECL.6 NYCRR §700.1(26)

(emphasis added). Thus, Department Staff's position that the discharge of"industrial waste" is prohibited under New York law is false, as Department Staff routinely authorize such discharges to waters of the State. Moreover, even the definition of industrial 25LIBA/230656.3 waste confirms that the inquiry is not whether any industrial waste is discharged but whether thedischarge of such waste might "reasonably be expected" to result in a violation of WQS -i.e., inquantities sufficient to violate WQS. As set forth above, the uncontroverted evidence in this caseis that Entergy's unplanned releases have not violated any even potentially applicable WQS, andthere are reasonable assurances that any future releases will not violate such standards.

Thus,Department Staff's latest attempt to revise the Notice of Denial and the Department's ownregulations is both prohibited by Department precedent and lacking in merit.F. DEC is not entitled to any deference on this issue.Department Staff ask this Tribunal to defer to its expertise with regard to the impact ofIndian Point's radionuclides on the Hudson River. See DEC Staff Br. at 22 ("The Department should be accorded deference in its decision making, including weighing and balancing of theabove facts, opinions, and circumstances in the context of applicable State water qualitystandards.").

Department Staff's position is legally untenable and factually absurd. First, as discussed above, Department Staff failed to apply the correct legal standards to Entergy's Application.

Second, Department Staff did not offer the expertise of those Staff members who (a) not onlyactually participated in and concurred with the Indian Point groundwater investigation andremediation

strategy, but also issued public notices confirming the absence of impairment, (b)had expertise in radiological materials and their potential impacts on the environment, and (c)concluded that Entergy's unplanned releases had not violated Hudson River water qualitystandards.
Instead, Department Staff chose to rely on a witness who (i) by his own admission, isunqualified in the area of radiological health and safety or the assessment of impacts associated with radionuclides in the environment, (ii) did not participate in the Indian Point groundwater investigation, and (iii) could not and did not perform an analysis of the impacts of unplanned 26LIBA/2306566.3 releases on Hudson River fish because it was "outside

[his] area of expertise."

Hearing Tr. at 52768 (Kolakowski).

"An administrative agency's interpretation of the statute it is charged with implementing is entitled to varying degrees ofjudicial deference depending upon the extent to which theinterpretation relies upon the special competence the agency is presumed to have developed in itsadministration of the statute."

Claim of Gruber, 89 N.Y.2d 225, 231 (1996) (emphasis added)(quoting Matter of Rosen v. Public Employment Relations Bd., 72 N.Y.2d 42, 47 (1988); see alsoSchneider

v. Ambach, 135 A.D.2d 284, 290 (3rd Dept. 1988) ("An administrative agency seekingto support a discriminatory regulation on the basis of considerations outside the scope of itsgeneral statutory mandate and specialized knowledge is not entitled to the deference whichcourts customarily give to agency determinations....")

(emphasis added). Simply put,Department Staff s conclusions do not rely on those staff members who were directly involvedand contributed to the groundwater investigation at Indian Point. Instead, Department Staffknowingly put forth testimony ungrounded in relevant expertise and flatly contradicted by theDepartment's communications to the public on this issue. See Entergy Ex. #46, 80. As thisTribunal has already indicated, the absence of relevant expertise applied to the Department's position is a matter of the weight to be afforded Department Staff's testimony.

Not only shouldDepartment Staff receive no deference under these circumstances, its testimony should beafforded no weight at all.1717 Indeed, if it were not for Entergy's inclusion in the record of the Department's Community Fact Sheetsdocumenting the Department's independent findings associated with the Indian Point groundwater investigation, this Tribunal would not have been aware of them at all, since Department Staff did not disclosethem to the Tribunal or the parties.27LIBA/2306566.3 G. Riverkeeper's argument that Department Staff should have proposed to deny theWOC based on impacts to groundwater has no basis in law or fact, and should berejected.

Riverkeeper argues that, although Department Staff did not propose to deny the WQCbased on impacts to groundwater and is on record stating that the CWA does not permitconsiderations of impacts to groundwater, the Tribunal should recommend denial of Entergy's Application on the basis of radiological contamination of the groundwater beneath Indian Point.For multiple

reasons, Riverkeeper's arguments are both legally and factually flawed. IS1. The CWA, including Section 401, applies only to discharges to surfacewaters.Section 401 of the CWA requires applicants for federal licenses to provide a certification from the State in which its "discharge" originates that "any such discharge will comply with theapplicable provisions of scetions

[301,302, 303,306 and 307] of [the CWA]." 33 U.S.C.§ 1341 (a)(1). The CWA defines the term "discharge" to include a "discharge of a pollutant, anda discharge of pollutants."

33 U.S.C. § 1362(16).

In turn, the phrases "discharge of a pollutant" and "discharges of pollutants" are defined to be:any addition of any pollutant to navigable waters from any point source, (and] anyaddition of any pollutant to the waters of the contiguous zone or the ocean fromany point source other than a vessel or other floating craft.33 U.S.C. § 1362(12)

(emphasis added). Thus, the certification required under § 401(a) of theCWA is limited to a certification that releases of pollutants to navigable waters or waters of thecontiguous zone or ocean comply with the relevant sections of the CWA. The impacts toIS Most fundamentally, Riverkeeper's arguments go beyond the issue for adjudication:

"whether Department Staff properly denied the WQC application based upon radiological considerations."

See Issues Ruling at 25-27, 40. Department Staff did not, in fact, deny Entergy's application on the basis of the concentration ofradionuclides in groundwater.

The Notice of Denial does not address this topic, and Mr. Kolakowski confirmed during cross examination that the scope of Department Staffs inquiry was on the effect ofunplanned releases of radiological materials to groundwater on surface waters -i.e., the Hudson River. SeeHearing Tr. at 2759-2763 (Kolakowski).

Thus, Riverkeeper's arguments should be rejected as beyond thescope of this hearing.28LIBA/2306566.3 groundwater of a release from a facility are completely outside the scope of § 401's certification requirement.1 9 Accordingly, Riverkeeper's argument falls under the plain language of § 401 (a),a fact that Department Staff plainly acknowledged in this proceeding.

See DEC Staff Br. at 15,17.2. Riverkeeper's argument that § 401(d) permits the denial of Entergy 'sapplication on the basis of radiological contamination of groundwater isequally misplaced.

As discussed above, § 401 (d) of the CWA does not provide authority to states to deny aWQC application.

At most, § 401(d) authorizes states to condition a WQC to the extentnecessary to comply with, among other things, "any other appropriate requirement of State law."Thus, Riverkeeper's reliance on § 401(d) as a basis for the denial of Entergy's Application findsno support in § 40 1 (d).Riverkeeper further argues that the U.S. Supreme Court decision in PUD authorizes states to circumvent the limitations of the CWA, as established in Train, and the pre-emptive effect of the AEA, and to regulate the unplanned releases of NRC-regulated materials intogroundwater pursuant to the state's groundwater quality standards.

What Riverkeeper fails tomention is that PUD neither (a) addressed the discharge of pollutants to groundwater, nor (b)addressed the release of NRC-regulated materials into groundwater.

Thus, PUD is not a licenseto ignore the jurisdictional limits of the CWA to surface waters or to ignore the exclusive authority of the NRC to regulate radionuclides under the AEA. Riverkeeper cites no relevantauthority to support its position that state groundwater quality standards can be applied to NRC-regulated materials found in groundwater beneath NRC-regulated facilities.

1 Moreover, the U.S Supreme Court held in Train that the definition of "pollutant" under the CWA does notinclude materials regulated by the NRC under the AEA. This argument applies with equal force here, as thephrase "discharge of a pollutant" necessarily is limited by the same definition of "pollutant" provided by theU.S. Supreme Court. Thus, even if the § 401(a) applied to groundwater

-which it plainly does not- thedischarge of AEA materials to groundwater is also beyond the reach of the CWA pursuant to Train.29LIBA/2306566.3

3. The evidence presented by Riverkeeper demonstrates that the groundwater beneath Indian Point meets the best use standard.

Even if the limits of the CWA did not preclude Riverkeeper's

argument, the evidenceadduced at trial provides no support for Riverkeeper's position.

Entergy's groundwater monitoring network consists of more than 250 different monitoring points. See Hearing Tr. at3917-3918 (Barvenik),

Barvenik Prefiled at 5. Water samples collected from the substantial majority of these locations contain radionuclides well below the maximum contaminant levels("MCLs")

that Riverkeeper purports apply here (i.e., 20,000 piC/1 for tritium and 8.0 piC/! forstrontium).

See Riverkeeper Ex. #14, 19, 22. Thus, even if the MCLs applied to thegroundwater, there are multiple locations that groundwater could be removed from beneathIndian Point with concentrations below the MCLs.20However, as discussed in Entergy's initial brief, the MCLs do not apply to groundwater.

The MCLs established by EPA under the federal Safe Drinking Water Act ("SDWA")

apply to"public water systems" at the point at which water "is delivered to" any user of that public watersystem (i~e., at the tap). See Entergy Br. at pp. 44-45. The groundwater beneath Indian Point isneither itself a public water system, nor is it delivered to any drinking water user and, therefore, the MCLs do not apply to the groundwater as it resides beneath Indian Point. Thus,Riverkeeper's arguments fail as a matter of fact as well as law.2'20 Riverkeeper repeatedly alleges that Entergy has "refused" to employ groundwater extraction wells at IndianPoint. See, e.g., Rkp. Br. at 83, 88. This is simply not true -neither the NRC nor DEC have requiredextraction wells. In collaboration with both DEC and NRC, Entergy has employed a remedial strategy ofmonitored natural attenuation.

There is no public health or environmental protection basis for requiring more,as Dr. Hoffman testified that there are "zero" impacts associated with the unplanned releases at issue. SeeHearing Tr. 3104-3107 (Hoffman).

To the extent extraction wells were required at Indian Point, no one hascontested Entergy's conceptual plan to implement that remedial strategy.

21 It is disputed that unplanned releases of radionuclides from Indian Point have not contaminated any drinkingwater sources or any off-site groundwater.

See Entergy Ex. #33, at viii, 114; Entergy Ex. #34, at v-vi; EntergyEx. #38 at 1-I, Entergy Ex. #40 at I-I; Entergy Ex. #46; Hearing Tr. at 3925-26 (Barvenik).

30LIBA1.3065663 CONCLUSION In sum, both Congress's decision to preclude the regulation of NRC-regulated radiological materials from the scope of the CWA and the preemptive effect of the AEA clearlyprohibit Department Staff's attempt to deny Entergy's Application based upon the unplanned releases of AEA-governed radiological materials.

Further, even if DEC possessed authority toregulate Indian Point's radiological
releases, which it does not, the evidence adduced at trialdemonstrates that Department Staff have repeatedly advanced rationales for its denial ofEntergy's Application found nowhere in the Notice of Denial, in direct violation of applicable precedent and fundamental notions of due process.

Both Department Staff and Riverkeeper claim that Entergy must predict the future with certainty in order to obtain a WQC, anotherposition directly contradicted by controlling precedent which both parties neglected to cite to thisTribunal.

They then argue that the discharge of any amount of deleterious substance to thewaters of the State is prohibited by New York law -a position flatly refuted by the Department's own regulations authorizing concentrations of these substances in State waters and its routineauthorization of such discharges around the state -even though the narrative WQS cited in theNotice of Denial expressly requires an evaluation of whether the amount of deleterious substances will impair the waters for its best usages. And to top it off, Department Staffdemands that this Tribunal defer to its decision making despite its multiple failures to apply thelaw or the expertise of Staff with knowledge and experience in radiological

matters, including the Indian Point groundwater investigation.

The record demonstrates uncontrovertibly that the unplanned releases from Indian Pointhave not posed a threat to public health, the environment or the best usages of the Hudson River,and that there are reasonable assurances that any future unplanned releases will not impair such31 0LIBA/23065663 usages. Entergy respectfully requests that the Tribunal rule conclusively and completely inEntergy's favor.32LIBAt2306566.3

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