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Official Exhibit - NYS000240-00-BD01 - State of New York Statement of Position, Consolidated NYS-12C (NYS-12C SOP)
	ML12334A762
Person / Time
Site:	Indian Point
Issue date:	12/21/2011
From:	Sipos J J; State of NY, Office of the Attorney General
To:	; Atomic Safety and Licensing Board Panel
	SECY RAS
References
	RAS 21593, ASLBP 07-858-03-LR-BD01, 50-247-LR, 50-286-LR
	Download: ML12334A762 (46)
	v • d • e

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

xIn re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. December 21, 2011

x STATE OF NEW YORK INITIAL STATEMENT OF POSITION CONSOLIDATED CONTENTION NYS-12-C Office of the Attorney General for the State of New York

The Capitol

State Street

Albany, New York 12224 United States Nuclear Regulatory Commission Official Hearing Exhibit In the Matter of

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3)

ASLBP #:07-858-03-LR-BD01 Docket #:05000247 l 05000286 Exhibit #:

Identified:

Admitted: Withdrawn:

Rejected: Stricken: Other: NYS000240-00-BD01 10/15/2012 10/15/2012 NYS000240 Submitted: December 21, 2011 TABLE OF CONTENTS Page iINTRODUCTION...........................................................................................................................1PRELIMINARY STATEMENT.....................................................................................................3 PROCEDURAL HISTORY.............................................................................................................

4 A. New York State Contention 12......................................................................................4 B. New York State Contention 12-A..................................................................................6 C. New York State Contention 12-B..................................................................................7 D. New York State Contention 12-C..................................................................................8 LEGAL FRAMEWORK................................................................................................................

.9 A. NEPA Obligates the NRC to Consider the Environmental Impacts of License Renewal.................................................................9 B. NEPA Requires NRC to Take a Hard Look at Environmental Impacts, Analyze a Reasonable Range of Alternatives and Rely Upon High Quality and Accurate Scientific Information............................................................................11 C. NRC Must Perform a Site-Specific SAMA Analysis for Indian Point as Part of Its Environmental Analysis Under NEPA.................................................................................................11

SUMMARY

OF ARGUMENT AND SUPPORTING EVIDENCE.............................................12 A. The MACCS2 Code Is Designed to Calculate the Costs Associated With a Severe Accident Based on Site-Specific Inputs......................................................................................................14 1. Overview of the MACCS2 Code.....................................................................14

2. Overview of the CHRONC Module of the MACCS2 Code............................15 B. In Calculating Decontamination Costs, Entergy Largely Relied Upon Example MACCS2 Inputs Instead of Developing Site-Specific Inputs for Indian Point....................................................17 1. Developing Site-Specific Inputs to the MACCS2 Code..................................17

TABLE OF CONTENTS Page ii 2. Entergy's Use of "Sample Problem A" Values Instead of Developing Site-Specific Inputs to the MACCS2 Code.............................17 C. To Calculate Accurate Cost Estimates, the High Population and Building Density Surrounding Indian Point, Including the Properties of Particles That Would Be Released Following a Nuclear Reactor Accident Should Be Accounted for in Site-Specific MACCS2 Inputs.....................................................................................19 1. The Decontamination Factors Used By Entergy and Accepted By NRC Staff Are Not Rationally Related to Indian Point.............................21 2. The Nonfarm Decontamination Cost Used By Entergy and Accepted By NRC Staff Is Not Rationally Related to Indian Point................23

Approach A:

Site Restoration/Survey of Costs

..........................................26 Approach B: Reichmuth............................................................................28 Approach C: CONDO................................................................................29 Approach D: RISIO...................................................................................30

3. The Decontamination Times Used By Entergy and Accepted By NRC Staff Are Not Rationally Related to Indian Point.............................31 D. Using Sample Problem A Inputs in Lieu of Site-Specific Inputs Results In a Severe Underestimation of the Costs Associated With a Severe Accident At Indian Point......................................................................33 PROPOSED FINDINGS OF FACT..............................................................................................34 ARGUMENT.................................................................................................................................36 THE FSEIS DOES NOT COMPLY WITH NEPA REQUIREMENTSBECAUSE THE FSEIS FAILS TO ADEQUATELY RESPOND TO

THE STATE'S COMMENTS AND ARBITRARILY UNDERESTIMATES THE COSTS ASSOCIATED WITH A SEVERE ACCIDENT AT INDIAN POINT AND FAILS TO PROVIDE A RATIONAL BASIS AS TO SAMA

DECONTAMINATION COSTS AND MITIGATION ALTERNATIVES..........................................................................................................................36 TABLE OF CONTENTS Page iiiPOINT 1: THE FSEIS DOES NOT COMPLY WITH NEPA REQUIREMENTS BECAUSE IT SANCTIONS ENTERGY'S FAILURE TO DEVELOP

RATIONAL SITE-SPECIFIC DATA IN CALCULATING THE

DECONTAMINATION COSTS OF A SEVERE ACCIDENT AT INDIAN POINT, RELYING INSTEAD ON DATA DEVELOPED

FOR A RURAL SITE SURROUNDED BY FARMLAND..........................................................37 POINT 2: THE FSEIS VIOLATES NEPA REQUIRMENTS BY RELYING ON INACCURATE COST ESTIMATES IN THE SAMA ALTERNATIVES ANALYSIS.....................................................................................................41 CONCLUSION.....................................................................................................................

.........42 State of New York Initial Statement of Position Consolidated Contention NYS-12-C 1 INTRODUCTIONWhile calculating site-specific costs associated with a severe nuclear reactor accident can be complex and research intensive, ensuring that cost estimates are accurate is of the utmost importance for Indian Point. Entergy and the Nuclear Regulatory Commission ("NRC") use the estimate of the costs associated with a severe accident to weigh the costs and benefits of measures that could mitigate the effects of a severe accident (severe accident mitigation

alternatives or "SAMAs"). This SAMA analysis is crucial-it informs Entergy's selection of SAMAs to implement at Indian Point as well as NRC's evaluation of alternatives that can mitigate the environmental impacts in deciding whether to relicense the plant. Accurate cost estimates are especially important for Indian Point because the population density surrounding the site is higher than that surrounding any other nuclear power plant in the United States and, therefore, "a severe release of radioactive materials at Indian Point could have more serious consequences than that same release at virtually any other NRC-licensed site."

Consolidated Edison Company of New York (Indian Point, Unit 2) and Power Authority of the State of New York (Indian Point, Unit 3), CLI-85-6, 21 N.R.C. 1043, 1049-50 (1985). New York State challenged Entergy's, and eventually NRC's, analysis of the costs associated with a severe accident focusing on the need to have a site-specific SAMA analysis by alleging that Entergy's SAMA analysis "does not accurately reflect decontamination and clean up costs associated with a severe accident in the New York Metropolitan Area." NYS Contention 12, New York State Notice of Intention to Participate and Petition to Intervene, NRC Docket Nos. 50-247-LR and 50-286-LR, at 140 (Nov. 30, 2007) (ML073400187) ("Nov. 30, 2007 NYS Intervention Petition"). Entergy used the MELCOR Accident Consequence Code Systems-2 ("MACCS2")

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 2computer code to estimate the costs associated with a severe accident at Indian Point but did not apply that code to the site-specific characteristics of Indian Point. Analyses done by New York's retained experts prove that Entergy underestimates economic costs associated with a severe accident by at least a factor of four to seven. Although NRC Staff accepted Entergy's cost estimates in the Final Supplemental Environmental Impact Statement ("FSEIS"), those estimates

are largely based on sample MACCS2 code inputs developed in the 1980s for the Surry site, a nuclear reactor site surrounded by farmland in rural Virginia. NRC Staff's acceptance of Entergy's failure to even attempt to develop site-specific cost estimates that take into account the extremely high population and building density of the area surrounding Indian Point is arbitrary

and lacks a rational basis.Additionally, Entergy's MACCS2 code inputs fail to recognize that the type of particles released during a severe reactor accident would differ from the type of radionuclide particles released during a nuclear weapons accident, and would generally be more difficult to decontaminate. By sanctioning Entergy's use of example MACCS2 inputs that fail to recognize how costly decontamination would be in the area surrounding Indian Point and the concomitant use of the MACCS2 code to underestimate economic costs associated with a severe accident, NRC Staff has violated the National Environmental Policy Act ("NEPA"), and implementing

regulations adopted by the Council on Environmental Quality ("CEQ"), and NRC. Entergy's cost estimates are so fundamentally flawed that the Commission cannot rationally rely on those estimates to grant Entergy's application to relicense the reactors at Indian Point. Accordingly, the application should be denied.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 3 PRELIMINARY STATEMENT In accordance with 10 C.F.R. Section 2.107(a)(1) and the Atomic Safety and Licensing Board's ("Board") July 1, 2010 Scheduling Order, as amended on June 7 and October 7, 2011, the State of New York ("New York" or "State"), hereby submits its Initial Statement of Position on New York's admitted consolidated contentions 12, 12-A, 12-B, and 12-C (collectively "Consolidated Contention 12-C"). This consolidated contention asserts that the analysis set forth in NRC Staff's FSEIS concerning the SAMA analysis and the inputs to the computer code that were used to evaluate the decontamination and cleanup costs associated with severe accidents, does not meet the requirements of NEPA, and the regulations implementing NEPA adopted by the NRC and CEQ. New York asserts that Entergy and NRC Staff have significantly underestimated the economic costs associated with a severe accident at Indian Point by heavily relying upon computer code input values that are not specific to the area surrounding Indian Point and do not take into account the type of particles released during a severe reactor accident.

By significantly underestimating the costs associated with a severe accident, Entergy and NRC Staff have underestimated the benefit associated with the SAMAs. If the SAMA analysis used accurate, site-specific cost estimates, additional SAMAs could be deemed cost-beneficial.

In this proceeding, New York, an intervenor party, has satisfied the standards contained in 10 C.F.R. § 2.309 governing contention admissibility-standards that the NRC and Entergy

have described as "strict by design."

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 N.R.C. 349, 358 (2001), pet. for reconsideration denied, CLI-02-1, 55 N.R.C. 1 (2002). The State now submits this testimony to show that Entergy's license renewal application should be denied because neither Entergy's April 2007 Environmental Report, NRC Staff's December 2008 Draft Supplemental Environmental Impact State of New York Initial Statement of Position Consolidated Contention NYS-12-C 4Statement ("DSEIS"), Entergy's December 2009 SAMA Reanalysis, nor NRC Staff's December 2010 FSEIS provide an accurate estimate of costs associated with a severe accident at Indian

Point. Since the SAMA analysis relies upon an inaccurate calculation of the costs associated with a severe accident, it is erroneous.

1 PROCEDURAL HISTORY After reviewing Entergy's Environmental Report, the State filed Contention 12. The State updated the contention following the release of the DSEIS in Contention 12-A, Entergy's

2009 SAMA Reanalysis in Contention 12-B, and the FSEIS in Contention 12-C. As explained

below, Contentions 12, 12-A, 12-B, and 12-C were consolidated as Consolidated Contention 12-

C. The bases for Consolidated Contention 12-C are set forth below.

A. New York State Contention 12 On November 30, 2007, the State submitted Contention 12, which asserted that Entergy had not, in its Environmental Report, accurately modeled the cleanup and decontamination costs for a severe accident in the area surrounding Indian Point, which includes the New York City

Metropolitan Area. Nov. 30, 2007 NYS Intervention Petition. Contention 12 reads in its entirety: Entergy's severe accident mitigation alternatives (SAMA) for Indian Point 2 and Indian Point 3 does not accurately reflect decontamination and clean up costs 1 Any attempt by Entergy to remedy this deficiency in its license renewal application by performing additional runs of the MACCS2 code or by utilizing another methodology in an attempt to conduct an appropriate SAMA analysis should be filed with the Board, and all parties should be given a reasonable opportunity to file new contentions based on Staff's or Entergy's submittals.

See 10 C.F.R. § 2.309(f)(2) ("On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report.

The petitioner may amend those contentions or file new contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicant's documents.").

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 5associated with a severe accident in the New York Metropolitan Area and, therefore, Entergy's SAMA Analysis underestimates the cost of a severe accident in violation of 10 C.F.R. § 51.53(c)(3)(ii)(L).

Id. at 140. The bases for Contention 12 were that Entergy's SAMA analysis depends upon an accurate calculation of severe accident costs, but Entergy's use of the MACCS2 code did not

provide an accurate calculation of those costs.

Id. The State's bases explained that Entergy's use of the MACCS2 code does not take into account costs associated with decontaminating an urban/suburban area such as the area within the 50-mile Emergency Planning Zone for Indian

Point.Id. at 141. Additionally, the State's bases asserted that the MACCS2 code's calculation of clean up costs did not accurately take into account the characteristics of the particles likely to be released from a nuclear power plant accident.

Id. at 140-141. This results in an underestimation of the clean up costs.

Id. at 141. New York specifically referenced the need for an appropriate SAMA analysis for Indian Point to use specifically identified reports "to determine the present and future value of decontamination costs for the four counties in the 10-mile Emergency Planning Zone as well [as] other cities and towns in the New York City-Connecticut-New Jersey metropolitan area that are within [the] 50-mile Emergency Planning

Zone."Id. at 142. Following oral argument, the Board admitted Contention 12 on July 31, 2008.

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing) LBP-08-13 at 82-83, 68 N.R.C. 43 (July 31, 2008) (ML082130436). In admitting the contention, the Board found that "the contention challenges the cost data for decontamination and clean up used by MACCS2."

Id. at 64. In Contention 12, the State "is questioning whether 'specific inputs' and 'assumptions' State of New York Initial Statement of Position Consolidated Contention NYS-12-C 6made in [the] MACCS2 SAMA analyses are correct for the area surrounding Indian Point."

Id.In reaching its decision to admit Contention 12, the Board noted that "Entergy concedes that while the code itself would not be subject to challenge in this proceeding, it would be possible to make a particularized challenge to specific input parameters in the code or how the Applicant

uses the code."

Id. at 64, n.305. Contention 12 mirrors the State's scoping comments, which were submitted to NRC on November 30, 2007. The scoping comments discuss how Entergy underestimated economic costs associated with a severe accident at Indian Point and failed to recognize the type of particles released following a nuclear reactor accident. For example, in its scoping comments, the State asserted that, "as part of its analysis, the NRC should [consider] . . . the densely populated and developed New York City area, incorporate the region's property values, and ensure that the resulting financial costs are expressed in present value . . . ."

2B. New York State Contention 12-A In December 2008, NRC Staff released the DSEIS, which failed to address any of the issues raised in Contention 12 and accepted Entergy's severe accident cost estimates. After reviewing the DSEIS, the State submitted Contention 12-A on February 27, 2009, which asserted that Staff's DSEIS adopted the same flawed modeling contained in the ER, and therefore, also underestimated the true cost of decontamination and cleanup in the event of a severe accident.

State of New York Contentions Concerning NRC Staff's Draft Supplemental Environmental Impact Statement (February 27, 2009) (ML090690303). The bases for Contention 12-A were the same as the bases for Contention 12, but updated in light of NRC's publication of the DSEIS.

2 NYS Supplemental Comments Regarding Scope of NEPA Analysis Application for Relicensure by Entergy Nuclear Indian Point LLCs for Operating Licenses Nos. DPR-26 and DPR-64, at 2-4 (Nov. 30, 2007) (ML073600658) ("NYS Scoping Comments").

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 7 Id. Contention 12-A mirrors the State's comments on the DSEIS, which were submitted on March 18, 2008 and discuss how NRC Staff failed to address in the DSEIS Entergy's underestimation of the economic costs associated with a severe accident at Indian Point and

failure to recognize the type of particles released following a nuclear reactor accident. For example, the State's DSEIS comments asserted that "as part of its analysis, the NRC should

[consider] . . . the densely populated and developed New York City area, incorporate the region's property values, and ensure that the resulting financial costs are expressed in present value . . . ."

3The Board admitted Contention 12-A on June 16, 2009, and consolidated it with Contention 12.

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3) Order (Ruling on New York State's New and Amended Contentions) (June 16, 2009)

(ML091670435).C. New York State Contention 12-B On December 14, 2009, Entergy submitted a revised SAMA analysis which used revised meteorological data. Entergy, NL-09-165, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009). On March 11, 2010, the State filed Amended Contention 12-B, challenging Entergy's revised SAMA analysis. State of New York's Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (Mar. 11, 2010) (ML100780366). The bases for Contention 12-B were the same as the bases for Contentions 12 and 12-A, but updated

in light of Entergy's 2009 SAMA reanalysis.

Id.On June 30, 2010, the Board admitted Contention 12-B, and consolidated it with Contentions 12/12-A.Entergy Nuclear Operations, 3 Comments Submitted by the NYS Office of the Attorney General on the DSEIS Prepared by Staff on the NRC for the Renewal of the Operating Licenses for Indian Point Units 2 and 3, at 43-47 (Mar. 18, 2009) (ML090771328) (Exh. NYS000134) ("NYS DSEIS Comments").

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 8 Inc. (Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Ruling on the Admissibility of New York's New and Amended Contentions 12B, 16B, 35, and 36), LBP-10-13 at 9-10, 71 N.R.C. __ (June 30, 2010) (ML101810344).

D. New York State Contention 12-C On December 3, 2011, NRC Staff released its FSEIS, which was the first time NRC Staff addressed the State's concern that the economic costs of a severe accident at Indian Point have been significantly underestimated. See FSEIS Appendix G, § G.2.3, pp. G G-25 (Exh. NYS00133I). For the first time, and apparently in response to Contentions 12, 12-A, and 12-B, NRC Staff attempted to set forth its position concerning the consequences of Entergy's use of particular inputs and assumptions.

Id.

On February 3, 2011, the State filed Amended Contention 12-C, updating the State's previously submitted contentions by asserting that the FSEIS underestimates decontamination and clean up costs associated with a severe accident, in violation of NEPA and CEQ and NRC regulations implementing NEPA. State of New York's Motion for Leave to File New and Amended Contention 12-C Concerning NRC Staff's December 2010 Final Supplemental Environmental Impact Statement and the Underestimation of Decontamination and Clean Up Costs Associated with a Severe Reactor Accident in the New York Metropolitan Area (Feb. 3, 2011) (ML110680212).

The bases for Contention 12-C were the same as the bases for 12, 12-A, and 12-B, but updated in light of NRC Staff's acknowledgement of and partial response to the issues raised by

the State in 12, 12-A, and 12-B.

Id. The State's bases asserted that Entergy's use of the MACCS2 code relies on "inaccurate and inapplicable data input" and underestimates severe accident costs by failing to account for the "densely populated and developed New York City State of New York Initial Statement of Position Consolidated Contention NYS-12-C 9metropolitan area" and the particles dispersed from a nuclear power plant accident. Id. at Contention 12-C, 5-7. In Contention 12-C, the State also noted that the FSEIS relied on undisclosed and unidentified work from Sandia National Laboratories ("Sandia"), consultants to

NRC Staff.

4 Id. at Contention 12-C, 7. On July 6, 2011, the Board admitted Contention 12-C and consolidated it with NYS-

12/12-A/12-B as Consolidated NYS-12-C.In the Matter of Entergy Nuclear Operations, Inc.(Indian Point Nuclear Generating Units 2 and 3) NYS-12-C, 8-9 (July 6, 2011) (ML111870344).

The Board reiterated "the basic allegation found in the consolidated contention that NYS-12C

[sought] to amend - namely, that Entergy's and NRC Staff's use of the MACCS2 code leads to an underestimation of the cleanup costs from a severe accident" and characterized it as the

"overarching aspect of this contention . . . ."

Id. at 7-8. LEGAL FRAMEWORK A. NEPA Obligates the NRC to Consider the Environmental Impacts of License Renewal Our "basic national charter for protection of the environment" is NEPA. 42 U.S.C. §§ 4321-37; 40 C.F.R. § 1500.1(a). NEPA requires all federal agencies to examine environmental impacts that could be caused by their discretionary actions. As a federal agency, the NRC must comply with NEPA. Calvert Cliffs Coordinating Comm. v. U. S. Atomic Energy Comm'n , 449 F.2d 1109 (D.C. Cir. 1971) (NEPA applies to NRC's predecessor). NRC Staff draws upon the 4 After spending several months repeatedly and unsuccessfully requesting the documents detailing work performed by Sandia and another lab as part of NRC Staff's NEPA review, the State filed a motion to compel on April 22, 2011. State of New York Motion to Compel NRC Staff to Produce Documents Relied Upon in Staff's Final Supplemental Environmental Impact Statement (Apr. 22, 2011) (ML11132A149). On May 25, 2011 the State reached an agreement with NRC Staff, whereby NRC Staff produced some documents in response to the State's motion to compel.

SeeMay 25, 2011 letter from NRC Staff to the Board (ML11146A077) and May 25, 2011 letter from NRC Staff to New York State (ML11146A058).

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 10applicant's environmental report to produce an EIS for the license renewal. NEPA has two primary purposes: (1) to ensure that environmental values are fully considered in the agency's decision-making process; and (2) to inform the public of what the

agency has considered.

See Balt. Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 97 (1983);see also San Luis Obispo Mothers for Peace v. Nuclear Reg. Comm'n , 449 F.3d 1016, 1020 (9th Cir. 2006). The first purpose ensures that an agency, "in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts."

Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349 (1989). The second purpose "guarantees that the relevant information [concerning environmental impacts] will be made available to the larger audience," including the public, "that may also play a role in the decisionmaking process and the implementation of the decision."Id. The environmental analysis is not just a bureaucratic burden-it should inform the NRC's decision.

See 40 C.F.R. § 1500.1(c) ("Ultimately, of course, it is not better documents but better decisions that count. NEPA's purpose is not to generate paperwork-even excellent

paperwork-but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment."). In furtherance of NEPA's goal of informing agency decision-making, NRC's NEPA regulations require "analysis of significant problems and objections raised by other Federal, State, and local agencies, by any affected Indian tribes, and by other interested persons." 10 C.F.R. § 51.71(b). The FSEIS must respond to "any comments on the draft environmental impact statement or on any supplement to the draft environmental impact statement." 10 C.F.R. § 51.91(a)(1);

SUMMARY

OF ARGUMENT AND SUPPORTING EVIDENCE The FSEIS, which approves Entergy's SAMA analysis and cost estimates for a severe accident, is legally deficient under NEPA, CEQ regulations, and NRC regulations because it fails to take the requisite "hard look" at the impacts of the severe accident at Indian Point, relies on State of New York Initial Statement of Position Consolidated Contention NYS-12-C 13computer code inputs that are not site-specific to Indian Point, lacks high quality scientific analysis, fails to adequately respond to the State's contentions and comments in the FSEIS, and, ultimately, uses inaccurate information in the SAMA alternatives analysis. This Statement of Position is supported by the testimony of Dr. François Lemay, of International Safety Research ("ISR"), and exhibits thereto; and the expert report of ISR.

December 21, 2011 Report of ISR ("ISR Report") (Exh. NYS000242); Lemay Testimony. The ISR Report along with Dr. Lemay's testimony explain how the FSEIS underestimates the costs associated with a severe accident at Indian Point by: (i) relying upon inputs to the MACCS2 code that are not site-specific, thus failing to account for the unique characteristics of the New York

Metropolitan Area; and (ii) failing to recognize that particles released during a severe reactor accident would differ from the type of radionuclide particles released during a nuclear weapons accident and would generally be more difficult to decontaminate, particularly in the New York Metropolitan Area.Entergy used the MACCS2 code to estimate economic costs associated with a severe nuclear accident at Indian Point. FSEIS Appendix G at G-1. Entergy then used an output from the MACCS2 code called Offsite Economic Cost Risk ("OECR")

6 to represent economic costs associated with a severe accident at Indian Point in its SAMA cost-benefit analysis.

SeeEntergy's License Renewal Application, Environmental Report, Attachment E. After the State raised concerns that Entergy had underestimated the cost associated with a severe accident at Indian Point in Contentions 12, 12-A, and 12-B, NRC Staff evaluated Entergy's use of and 6 The OECR represents the per year frequency-averaged cost of a severe accident. Lemay Testimony at 25. As Dr. Lemay explained, "The real cost of clean-up following a severe nuclear reactor accident could be in the billions of dollars, but weighted by the actual frequency of a severe reactor event occurring per year, the cost can be expressed on a per year basis as OECR."

Id.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 14inputs to the MACCS2 code to calculate such costs in Appendix G to the FSEIS. FSEIS Appendix G at G G-24. NRC Staff also reviewed analyses that they asked Sandia to complete, and then concluded that "Entergy's decontamination cost estimates appear reasonable and acceptable."

Id. at G-24.A. The MACCS2 Code Is Designed to Calculate the Costs Associated With a Severe Accident Based on Site-Specific Inputs1. Overview of the MACCS2 Code Released in 1997, the MACCS2 code is a computer modeling tool developed by Sandia to evaluate impacts of severe accidents at nuclear power plants on the surrounding public. ISR Report at 4; Lemay Testimony at 12. The MACCS2 code simulates the atmospheric release of radioactivity following a severe accident based on meteorological inputs, and calculates radiological health and economic impacts based on user-defined inputs for various parameters such as decontamination factor ("DF"). ISR Report at 4-5; Lemay Testimony at 11-12. The DF is a factor representing the radiation dose reduction due to decontamination activities, decontamination cost per capita, and time required for decontamination.

Id. The MACCS2 code can model, among other things, economic costs of an accident.

Id.The latest of a series of computer modeling tools developed for this purpose, the MACCS2 code is an improved version of the MACCS code, which itself replaced the earlier CRAC2 code. ISR Report at 4; Lemay Testimony at 12-13. MACCS and MACCS2 incorporate many advancements in modeling flexibility in comparison to earlier codes such as CRAC2.

Id.Although the underlying models of the two codes are largely similar, the main difference between them is that a number of parameters are "hard-wired" and, thus, cannot be changed in the CRAC2 code, while in MACCS and MACCS2 those same parameters are user-defined and, State of New York Initial Statement of Position Consolidated Contention NYS-12-C 15 thus, can be derived from site-specific data.

Id. The MACCS2 User's Guide makes clear that the user is responsible for selecting appropriate input values.

7 NUREG/CR-6613, SAND97-0594, Vol. 1, Code Manual for MACCS2: User's Guide (May 1998) ("MACCS2 User Guide")

at p.1-7 (Exh. NYS000243).The MACCS2 model is executed in three steps: (1) ATMOS, calculates air and ground concentrations, plume size, and timing information for all plume segments as a function of

downwind distance; (2) EARLY, calculates the consequences due to exposure to radiation in the first seven days, which is the emergency phase of the accident; and (3) CHRONC, calculates the consequence of the long-term effects of radiation and computes the decontamination and economic impacts incurred due to the accident. ISR Report at 4; Lemay Testimony at 13-14.

All of the inputs used by Entergy in its SAMA analysis that are associated with decontamination and long-term economic costs are found in the CHRONC module of the code.

Id.2. Overview of the CHRONC Module of the MACCS2 Code MACCS2 determines the economic cost of a severe accident primarily on the basis of the CHRONC input parameters.

Id. The economic cost model of the MACCS2 code is intended to estimate the direct offsite costs from a severe nuclear accident. The following costs are calculated by the MACCS2 code: (1) Food and lodging costs for short-term relocation of people who are evacuated or relocated during the emergency phase of the accident; 7 In the forward to the MACCS User Guide, Brian W. Sheron, Director of Systems Research, Office of Nuclear Regulatory Research, NRC noted that "code flexibility, so that virtually all model parameters can now be provided by the user via input" was a major new and useful feature of MACCS. NUREG/CR-4691, SAND86-1562, Vol. 2, MELCOR Accident Consequence Code System (MACCS) (February 1990), at xii (Exh. NYS000288). He warned,

"[h]owever, that the user now has to prepare much more data, involving multiple disciplines, for input. . . . [which] introduces the potential of an inexperienced user to produce distorted results

because of improper or inconsistent data."

Id.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 16(2) Decontamination costs for property that can be returned to use if decontaminated; (3) Economic losses incurred while property, both farm and nonfarm, is temporarily interdicted by a period of time following decontamination to allow for radioactive decay to reduce ground contamination to acceptable

levels; (4) Economic losses resulting from milk and crop disposal; and (5) Economic losses due to condemnation of property. ISR Report at 5; Lemay Testimony at 15-16. If other indirect costs were included such as medical expenses regarding adverse health effects and the costs of disposal of contaminated

wastes, the total economic cost would increase.

CHRONC employs a mitigative actions module to determine what mitigative strategies to employ for a severe accident. ISR Report at 5; Lemay Testimony at 16-17. Mitigative actions are measures taken to reduce the radiation dose to the population after the emergency phase of an accident and include the following: (1) No mitigative actions (2) Decontaminate areas using the lowest selected DF; 8(3) Decontaminate areas using the highest selected DF; (4) Decontaminate areas using the highest selected DF and implement temporary interdiction for up to 30 years; or (5) Condemn the area.

Id. Dr. Lemay's testimony and the ISR report describe the mitigative actions module in more detail.Id.8 Mathematically, DF is equal to the dose from contamination present before clean up divided by the dose from contamination present after cleanup. ISR Report at 11-12. For example, a DF of 3 means that the radiation dose has been reduced to a value 3 times lower than the original (or a 66% reduction from the initial contamination) and a DF of 10 means that the radiation does has been reduced to a value 10 times lower (or a 90% reduction from the initial contamination).

Id.The ISR Report contains a thorough explanation of DFs as well as a table showing the percentage reduction in contamination for various factors.

Id.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 17B. In Calculating Decontamination Costs, Entergy Largely Relied Upon Example MACCS2 Inputs Instead of Developing Site-Specific Inputs for Indian Point1. Developing Site-Specific Inputs to the MACCS2 Code Developing site-specific inputs to the MACCS2 code is of the utmost importance since the inputs determine the economic cost output. As Dr. Lemay testified, Inputs to the MACCS2 code are dependant on the location of the nuclear reactor. The costs and methods of cleaning up after a severe accident will be very different depending on whether a reactor is surrounded by farmland, forests, suburban areas, urban areas, or hyper-urban areas. Thus, to determine reasonable input values, one must look at site-specific data or, where site-specific data is not available, modify

available data to reflect site-specific conditions. Lemay Testimony at 19-20. The area surrounding Indian Point has the greatest population density of any 50-mile Emergency Planning Zone for any reactor in the United States.

9 Consolidated Edison , 21 N.R.C.

at 1049-50. In fact, the New York Metropolitan Area is classified as hyper-urban, 10 meaning it has a very high population density and building density, mostly consisting of high-rise buildings.

Lemay Testimony at 20. There is very little data on actual severe reactor accidents in a hyper-urban area, so it is necessary to conduct research to accurately determine an appropriate range of

input values for the CHRONC module.

Id. 2. Entergy's Use of "Sample Problem A" Values Instead of Developing Site- Specific Inputs to the MACCS2 Code As explained in the FSEIS, for all but three of its MACCS2 inputs related to 9 In Consolidated Contention 16, the State asserts that Entergy's population estimates, which were accepted by NRC Staff in the FSEIS, underestimate the total population within 50 miles of Indian Point.

See State of New York Initial Statement of Position for Contention NYS-16/16A/16B (Exh. NYS000206).

10 As opposed to urban, which would typically consist of mixed commercial and residential suburbs surrounding a downtown core. Lemay Testimony at 20.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 18decontamination, Entergy relied upon example inputs contained in the MACCS2 User Guide adjusted using the Consumer Price Index ("CPI"). FSEIS Appendix G at G-23. These inputs are contained in an example called Sample Problem A. ISR Report at 7-8; Lemay Testimony at 21-

23. The value of nonfarm wealth along with the value of farm wealth and the long-term exposure period were the only values not derived from Sample Problem A.

11 Id. Sample Problem A is one of fourteen sample problems containing example sets of inputs

included in the MACCS2 User Guide.

Id.The User Guide's sample problems are not default values; rather, they were provided so that a user could test whether the MACCS2 code was

installed and running properly.

12 Id. As NRC Staff acknowledged in the FSEIS, Sample Problem A incorporates site-specific data for the Surry site in Virginia. FSEIS, Appendix G, at G-23. The Surry site in Virginia is largely surrounded by farmland and, thus, differs 11 NRC Staff describes Entergy's MACCS2 input parameters in Appendix G of the FSEIS at G-23:In the MACCS2 input files, Entergy used decontamination cost parameters that were typically higher than the MACCS2 Sample Problem A values by a factor of 1.7. (Sample Problem A values were primarily developed for the Surry plant analysis in NUREG-1150 and represent best estimate information for that site and time.) As described in the ER, the values were obtained by adjusting the generic Sample Problem A economic data with the consumer price index of 195.3, which accounts for inflation between 1986 and 2005. Farm and nonfarm values for Indian Point were based on site-specific data and were not extrapolated from Sample Problem A.

12 In fact, David Chanin, the developer of the MACCS2 code, explained how the code developers purposely avoided providing default values: "We also went so far as to scrupulously avoid using the common 'default value' in referring to the code's provided 'Sample Problem' input data files. 'Sample data' and 'example usage' were the terms used to remind the analyst that they, and

they alone, were responsible for reviewing MACCS and MACCS2 input data and resultant code outputs to ensure appropriateness for their application." D. Chanin, The Development of MACCS2: Lessons Learned , Energy Facilities Contractor Operating Group Safety Analysis Working Group, Annual Workshop, April 29-May 5, 2005, Santa Fe, NM (2005)(NYS000247).

Likewise, the NEI Guidance provides Sample Problem A values as an example in Table 5. NEI 05-01 [Rev A], Severe Accident Mitigation Alternatives (SAMA) Analysis, Guidance Document (November 2005) at pp.14, 37 (Exh. NYS000287) ("NEI SAMA Guidance").

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 19dramatically from Indian Point.

13 Id. Additionally, the data developed for the Surry site may have failed to take into account the types of radionuclides released during a severe nuclear reactor accident.

14 The only adjustment Entergy made to the Sample Problem A inputs was for inflation from the 1986-based dollars of the Surry inputs to the 2005-based dollars of the Entergy's SAMA analysis. ISR Report at 12-13; Lemay Testimony at 23. ISR concluded that Entergy's use of the generic input values contained in Sample Problem A caused Entergy to underestimate the economic costs of a severe accident at IP.

C. To Calculate Accurate Cost Estimates, the High Population and Building Density, Surrounding Indian Point Including the Properties of Particles That Would Be Released Following a Nuclear Reactor Accident Should Be Accounted for in Site-Specific MACCS2 Inputs In its filings in this proceeding, and in scoping comments and comments on the DSEIS, New York emphasized that a fundamental problem with the SAMA analysis is the failure to take into account concerns raised in Site Restoration

.15 Unfortunately, in the FSEIS, NRC Staff chose to ignore this criticism. Now ISR, relying on Site Restoration and other analyses and documents, has done some of the work the Staff's should have done by demonstrating, in supporting 13 The Sample Problem A inputs were developed in connection with NUREG-1150. MACCS2 User Guide at 2-11; see also ISR Report at 7; Lemay Testimony at 21-22. The NUREG-1150 authors chose five commercial nuclear plants of different designs to estimate the risks of a severe accident. NUREG-1150, Severe Accident Risks: An Assessment for Five US Nuclear Power Plants (June 1989) (Exh. NYSS00252A - NYS00252D). One of these, the Surry reactor, is located near Williamsburg, Virginia.

Id. Using the Surry reactor in Sample Problem A allowed the NUREG-1150 authors to test a food chain model because it is largely surrounded by farmland. ISR Report at 7; Lemay Testimony at 22.

14 SeeD. Chanin & W. Murfin, SAND96-0957, Site Restoration: Estimation of Attributable Costs From Plutonium-Dispersal Accidents (May 1996)("

Site Restoration

") at p. 2-10 (Exh. NYS NYS000249) ("Data on recovery from nuclear explosions that have been publicly available since the 1960s appear to have been misinterpreted, which has led to long-standing underestimates of the potential economic costs of severe reactor accidents.").

15 See, e.g., NYS Scoping Comments at 2-4; NYS DSEIS Comments at 43-47; Nov. 30, 2007 NYS Petition to Intervene at 142 (Contention 12, Bases 11).

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 20 evidence not only that the SAMA analysis substantially understates the site-specific decontamination and cleanup costs for the New York Metropolitan Area, but also providing a range of calculations that provide some bounding of the magnitude of that understatement.

Before evaluating Entergy's MACCS2 inputs and developing ranges of appropriate, site-specific inputs for Indian Point, ISR performed a sensitivity analysis to determine which MACCS2 input parameters have the greatest effect on economic costs, i.e., OECR. ISR Report at 9-10; Lemay Testimony at 23-27. ISR then focused its efforts on evaluating each of these variables to determine whether Entergy's input value was reasonable for the site-specific conditions at Indian Point. ISR Report at 11; Lemay Testimony at 27. ISR's evaluation focused on the building and population surrounding Indian Point as well as the properties of the types of particles released during a severe nuclear reactor accident. The following sections summarize this analysis. The figure below shows the area within 50 miles of Indian Point-the specific area the MACCS2 inputs must take into account to properly estimate costs for the site-specific SAMA analysis required by 10 C.F.R. § 51.53(c)(3)(ii)(L).

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 21 Region within 50 miles of IPEC 161. The Decontamination Factors Used By Entergy and Accepted By NRC Staff Are Not Rationally Related to Indian Point Decontamination factor, DF, is a MACCS2 input that is expressed by a mathematical equation which includes the radiation dose from contamination before clean-up divided by the dose from contamination after cleanup. ISR Report at 11; Lemay Testimony at 27. Table 1, which is taken from the ISR Report and reproduced below, expresses DFs as clean-up

percentages.

16 Report of Dr. Stephen C. Sheppard (Exh. NYS000209).

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 22 Table 1: Reduction in contamination for each DF DFReduction in contamination 2 50% 3 67% 5 80% 7 85.7% 10 90% 15 93.3% 20 95% DFs may be classified as light, moderate, or heavy. ISR Report at 12; Lemay Testimony at 28-29. As shown in the following chart, these classifications correlate with differing activities

and degrees of cleanup.

Summary of Light, Moderate, and Heavy Decontamination Factors Type Range of Factors Range of Percentages Activities and Techniques Light 2 to 5 50% to 80% All structural exteriors would be promptly vacuumed, followed by detergent scrubbing. Building interiors would be vacuumed and/or shampooed. Turf or lawn areas that could not be decontaminated would be removed. Tree foliage would be hosed down, and the

wash water would be collected to avoid run-off. Moderate 5 to 10 80% to 90% Roofing and landscape material would be removed and replaced. Interiors of buildings would be emptied of all removable contents including items such as desks, chairs, and personal items.

Heavy Greater than 10 Greater than 90%Based on experience following the Chernobyl accident decontamination of an entire building to a level greater than 10 may not be possible without complete demolition and disposal in a licensed burial facility.

17 Id. Although, as shown in the above chart, decontamination of an entire building to a level greater than 10 may not be possible without complete demolition and disposal in a licensed 17 See ISR Report at 12 (citing Site Restoration (Exh. NYS000249); CONDO (Exh.

NYS000250); RISO (Exh. NYS000251)).

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 23burial facility, Entergy used DFs of 3 and 15, taken directly from Sample Problem A. ISR Report at 12; Lemay Testimony at 29. Entergy did not supply a rationale for its reliance on Sample Problem A.

Other decontamination cost parameters, including nonfarm decontamination cost and decontamination time, are associated with the DF selected. ISR Report at 12-13; Lemay Testimony at 29-30. This means that the nonfarm decontamination cost and decontamination time must correspond to the costs and time it takes to carry out light and heavy decontamination following a severe accident.

Id.As discussed in the following sections, Entergy's inputs fail to do so.2. The Nonfarm Decontamination Cost Used By Entergy and Accepted By NRC Staff Is Not Rationally Related to Indian Point Nonfarm Decontamination Cost ("CDNFRM") is a MACCS2 input that defines the cost of decontaminating land that is not farmland. ISR Report at 13; Lemay Testimony at 30. MACCS2 requires the user to input a CDNFRM in dollars per person for each DF specified.

Id.Entergy used values of $5,184/person for a DF of 3 and $13,824/person for a DF of 15. ISR Report at 11; Lemay Testimony at 30. Entergy obtained these values by adjusting Sample Problem A values of $3,000/person and $8,000/person by the CPI change from 1986 to 2005.

Entergy failed to supply a rationale for its reliance on Sample Problem A. ISR Report at 12; Lemay Testimony at 30.

ISR developed a methodology and four approaches to calculate site-specific CDNFRM

values for Indian Point: (1) ISR divided the spatial grid defined in the Entergy MACCS2 site input file into two discrete areas within the 50 mile radius of IP for the purpose of evaluation. ISR called these the "NYC Metropolitan Area" and "the areas outside of the NYC Metropolitan Area."

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 24(2) For each of these two areas, ISR calculated the costs of light and/or heavy decontamination using the per square kilometer decontamination costs obtained from

the following four sources: Approach A is based on data from Site Restoration as modified by Luna's Survey of Costs 18 which describe the results from U.S. plutonium dispersal tests; Approach B relies upon data from Barbara Reichmuth's presentation of results from radiological dispersal device economic consequence analysis in the U.S.;

19 Approach C uses CONDO, 20 a decontamination cost estimation tool from the United Kingdom ("UK") National Radiological Protection Board, and its

database; Approach D relies upon data from RISO 21 presenting results from decontamination analyses completed by RISO National Laboratory in Denmark. (3) For each approach, ISR calculated a single total cost for the 50-mile radius area surrounding the IP power plant for light and/or heavy decontamination; (4) For each approach, ISR divided the total cost by the total population, as reported by Entergy, in the 50-mile radius area surrounding the IP power plant to obtain a per capita cost for both light and heavy decontamination; and (5) ISR updated the per capita cost for each approach to 2005 dollars, using the CPI. Figure 3 from the ISR report is a flowchart which depicts ISR's methodology and approaches for determining CDNFRM. ISR Report at 13-14, Figure 3 (methodology flowchart); Lemay Testimony at 31-32. Table 11 and Figure 4 from the ISR Report, reproduced below, summarize ISR's results 18 R. Luna, H. Yoshimura & M. Soo Hoo. Survey of Costs Arising from Potential Radionuclide Scattering Events, WM2008 Conference, February 24-28, 2008, Phoenix AZ. ("

Survey of Costs"). (Exh. NYS000255).

19 B. Reichmuth, S. Short, T. Wood, Economic Consequences of a Rad/Nuc Attack: Cleanup Standards Significantly Affect Risk, Pacific Northwest Laboratory, Working Together Conference, April 28, 2005, Boston, MA. ("Reichmuth") (Exh. NYS000256).

20 CONDO: Software for estimating the consequences of decontamination options, Report for CONDO version 2.1, T Charnock, J Brown, AL Jones, W Oatway and M Morrey, NRPB-W43 (May 2003). ("CONDO") (Exh. NYS000250).

21 J. Roed, K.G. Anderson, H. Prip. 1995. Practical Means for Decontamination 9 Years after a Nuclear Accident. RISO National Laboratory, Roskilde, Denmark. RISO-R-828(EN)

(December 1995). ("RISO") (Exh. NYS000251).

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 25from calculating CDNFRM.

22 The range of decontamination costs ISR calculated by using the four approaches, described in more detail below, are much higher than the decontamination costs calculated by Entergy using Sample Problem A.

Table 11: Summary of ISR's decontamination costs CDNFRM ($/person, 2005) Approach Reference or Source of Data Light Decontamination Heavy Decontamination - Entergy (Sample Problem A) 5,184 13,824 A Site Restoration/Luna 136,000 - 272,000 449,000 - 898,000 B Reichmuth Not available 200,000 - 252,000 C CONDO 19,000 - 30,000 90,000 - 140,000 D RISO 36,000 - 59,000 Not available

-Aggregate 19,000 - 272,000 90,000 - 898,000 Figure 4: Graphical summary of decontamination costs with ranges $100,0$200,0

$300,0

$400,0$500,0$600,0

$700,0

$800,0$900,0$1,000,000Entergy(SampleProblemA)Chanin/LunaReichmuth*CONDORISO*AggregateofthefoursourcesexaminedinthisreportPercapitanonfarmdecontaminationcostReferenceorsourceofdataLightdecontaminationHeavydecontamination*Therewasnodataailableforlightdecontaminationbasedoneichmuth'sstudiesorforheavydecontaminatibasedRISO'sstudiesColumnsindicatethemidpointofheangeepresentedythehighlowvalues 22 The authors of the MACCS2 code limited the value of CDNFRM to less than $100,000 per person. ISR Report at 22; Lemay Testimony at 50. Thus, to input the CDNFRM values ISR calculated, ISR had to modify the MACCS2 source code to allow for the greater decontamination costs it calculated.

Id.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 26 Approach A:

Site Restoration

/Survey of Costs Using approach A, Site Restoration

/Survey of Costs , ISR modified the cost of decontamination values from Sandia's Site Restoration using information from Luna's Survey of Costs and U.S. Census data to calculate CDNFRM. ISR Report at 16; Lemay Testimony at 34. Survey of Costs used the Site Restoration data and analysis for Albuquerque, New Mexico, as a basis for calculating the cost of cleanup of the hyper-dense population area of New York City.

Id. ISR modified the analysis in Survey of Costs and Site Restoration using U.S. Census data to better account for the actual building density.

23 Id. The methodology, analysis, and results are explained in detail in the ISR Report and Dr. Lemay's testimony. ISR Report at 16-18; Lemay Testimony at 34-40.

Decontamination following any radioactive release will vary considerably in cost and time depending on the chosen DF and the radionuclide involved. ISR Report at 17-18; Lemay Testimony at 36-40.

Site Restoration used historical data from various actual releases of plutonium and other radionuclides to derive the costs of a cleanup following plutonium dispersal

in Albuquerque.

Id. But cesium is the radionuclide of primary concern in the event of a severe nuclear reactor accident.

Id. Unlike the larger-sized plutonium particles, the small-sized cesium particles are soluble and have the ability to ion exchange with sodium and potassium present in materials such as concrete.

Id. Thus, cesium will migrate rapidly in porous materials such as concrete.Id. This migration increases with time and, therefore, decontamination of cesium is more difficult as more time passes after the release.

Id. Because Site Restoration derived the costs of a cleanup following a plutonium dispersal, 23 Consequently, in NRC Staff's analysis of Site Restoration in the FSEIS ignores the fact that New York City has a much higher building density than Albuquerque. ISR Report at 40; Lemay Testimony at 69.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 27ISR determined that it needed to adjust the Site Restoration values to account for the fact that cesium, and not plutonium, would be the radionuclide of primary concern in a severe nuclear accident at Indian Point.

Id. The details of this analysis are set forth in the testimony and report.

Id. In the FSEIS, NRC Staff discusses the difference between plutonium and cesium, noting that plutonium is an alpha emitter that is more difficult and expensive to characterize and verify in the field than gamma emitters like cesium. FSEIS Appendix G at G-24. Also, NRC Staff states that plutonium is primarily an inhalation hazard with a much longer half-life than cesium, which is primarily an external health hazard.

Id. Thus, NRC Staff claims the need for evacuating the public is much greater with plutonium because if inhaled, the health consequences

can be severe.

Id. ISR points out that, by discussing the expense associated with detecting and characterizing plutonium following a severe accident, NRC Staff implies that radionuclide detection and characterization is a large part of the decontamination costs. ISR Report at 36-37; Lemay Testimony at 65-66. ISR asserts that, while detection and characterization of plutonium may be more costly than for cesium, it comprises a small part of decontamination costs, less than 1% of the decontamination costs, according to Site Restoration

.Id.The main cost of decontamination is not radionuclide detection/characterization, but decontamination, removal, transport, and storage of waste and/or building demolition. Id. Additionally, NRC Staff's discussion of the need for evacuation is inappropriate because public evacuation and the associated costs are not part of the MACCS2 code's assessment of economic costs.

Id. The SAMA analysis includes the costs of longer-term dose reduction measures such as permanent relocation and decontamination.

Id. It is the cost of these measures that should be assessed for State of New York Initial Statement of Position Consolidated Contention NYS-12-C 28plutonium and cesium.

Id. ISR also addresses NRC Staff's claim in the FSEIS that, based on work done by Sandia, the activities in Site Restoration required to support clean-up of moderate plutonium contamination align more closely with clean-up activities for heavy cesium contamination. ISR Report at 37-39; Lemay Testimony at 66-68. In support of this claim, Sandia uses an example of decontaminating a road, claiming that complete removal of a road is needed for plutonium, but

not for cesium decontamination.

Id.After a detailed explanation, ISR concludes that any effective decontamination technique will result in some removal of cesium, plutonium, and any other radionuclides-all of which are present, albeit plutonium in small quantities, after a severe

nuclear reactor accident.

Id. ISR explains that, using the example of road decontamination presented by Sandia, if complete removal of the road is justified for plutonium, it will also result in the full decontamination of cesium.

Id. Using approach A, ISR's modifications to Site Restoration

/Survey of Costs results in a range of appropriate values for CDNFRM of between $135,927 and $271,854 per person for light decontamination, while the cost of heavy decontamination would be between $448,889 and

$897,778 per person. ISR Report at 18; Lemay Testimony at 39-40. These site-specific input values are much higher than Entergy's CPI-adjusted, Sample Problem A values of $5,184/person and $13,824/person for light and heavy decontamination, respectively.

Id. Approach B: Reichmuth Using approach B, ISR determined decontamination costs using current U.S. data from studies conducted by Barbara Reichmuth, Senior Research Engineer at Pacific Northwest National Laboratory. ISR Report at 18-19; Lemay Testimony at 41-42. Reichmuth's studies were commissioned by the U.S. Department of Homeland Security and the U.S. EPA to identify State of New York Initial Statement of Position Consolidated Contention NYS-12-C 29the economic extent of the threat of a cesium-based radiological dispersal device ("RDD"), and to determine the efficacy of novel decontamination methods on cesium-contaminated surfaces.

Id. Reichmuth has conducted many of these studies evaluating the economic consequences of nuclear weapons and RDD effects on major metropolitan centers in the U.S. and Canada, including New York City and Vancover.

Id. ISR determined that Reichmuth's work with RDDs involving cesium can be used to determine a range of CDNFRM values for Indian Point. ISR Report at 18-19; Lemay Testimony at 41-42. The details of ISR's analysis are set forth in the ISR Report and Dr. Lemay's testimony.

Id. ISR concluded, using Reichmuth's results, that the cost for nonfarm heavy decontamination at Indian Point (equivalent to Entergy's DF of 15) would be between $200,000 and $252,000 per person, which is significantly higher than Entergy's selected value of $13,824/person for heavy decontamination.

Id. Approach C: CONDO Using approach C, ISR derived decontamination costs using CONDO, a software tool for estimating the consequences of decontamination options. ISR Report at 19-21; Lemay Testimony at 42-45. CONDO was developed by the UK National Radiological Protection Board and is linked to a database that supplies DFs and associated cost and labor values for the decontamination of cesium and plutonium using various decontamination techniques.

Id. The ISR report and Dr. Lemay's testimony describe how ISR used CONDO to calculate CDNFRM

values for the New York City Metropolitan Area, which is comprised of both urban and hyper-urban population densities and areas outside the New York City Metropolitan Area, which is comprised of both urban and suburban population densities.

Id. Using CONDO, ISR obtained a range of decontamination values for light decontamination, Entergy's DF of 3, and heavy State of New York Initial Statement of Position Consolidated Contention NYS-12-C 30decontamination, Entergy's DF of 15.

Id. The values obtained from CONDO are for decontamination of cesium and were derived using population densities and decontamination techniques relevant to the remediation of an accident at Indian Point.

Id. Applying CONDO to the 50-mile area surrounding IP, the cost of light decontamination would be between $25,000 and $39,000 per person, while the cost of heavy decontamination

would be between $104,000 and $162,000 per person.

Id. The ranges from CONDO are higher than Entergy's inputs of $5,184/person and $13,824/person for DFs of 3 and 15, respectively.

Id. Approach D: RISO Using approach D, ISR repeated the methodology used for the CONDO approach, but substituted the costs reported by the Riso National Laboratory ("RISO") for the costs reported in the CONDO dataset. ISR Report at 21-22; Lemay Testimony at 46-48. Like CONDO, the values ISR obtained from RISO are for decontamination of cesium and were derived using population densities and decontamination techniques relevant to the remediation of an accident at

Indian Point.

Id. All of the RISO decontamination techniques are only recommended for light decontamination, so ISR calculated a CDNFRM input value for light decontamination

corresponding to Entergy's DF of 3.

Id. Details concerning the RISO method and calculations are provided in the ISR Report and Dr. Lemay's testimony.

Id. Using RISO, ISR determined that the cost of light contamination would be between $35,714 and $58,894 per person, which is significantly higher than Entergy's selected values of $5,184/person for light decontamination.

Id.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 313. The Decontamination Times Used By Entergy and Accepted By NRC Staff Are Not Rationally Related to Indian Point After developing approaches to calculate site-specific values for CDNFRM, ISR evaluated the next sensitive MACCS2 input parameter related to decontamination costs:

Decontamination Time ("TIMDEC"). ISR Report at 24-25; Lemay Testimony at 51-55.

TIMDEC is a MACCS2 input parameter used by the code to account for the time it would take to decontaminate following a severe accident.

Id. Site-specific characteristics such as building and population density as well as the type of radionuclides released during a severe reactor accident influence the time it takes to decontaminate and, thus, influence TIMDEC.

Id. The MACCS2 code requires users to input two decontamination times: one for the lower DF; and one for the

higher DF.

Id. Once again, Entergy took its inputs directly from Sample Problem A for TIMDEC.

Id.Entergy's inputs are 60 days for a DF of 3 and 120 days for DF of 15.Id. By comparing Entergy's inputs to two actual severe accidents-Chernobyl and Fukushima-ISR determined that Entergy's TIMDEC inputs are unreasonable estimates of the time it would take to decontaminate following a severe accident at Indian Point.

Id. For Chernobyl, large-scale decontamination of the area affected by the accident terminated 4 years after the accident.

Id. This included the decontamination of tens of thousands of buildings in the most contaminated cities and villages of the former Union of Soviet Socialist

Republics.

Id. Although decontamination following the Fukushima nuclear accident has barely begun, some estimates suggests that the decontamination could last for decades.

Id. Based on Chernobyl and Fukushima, ISR concluded that Entergy's decontamination times of 60 and 120 days are unreasonable and have not been justified with supportive evidence.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 32 Id. Considering large-scale decontamination took 4 years after Chernobyl, it is reasonable to expect that the decontamination time would be at least 4 years of continuous time for a severe accident at IP, which is surrounded by a much more densely populated and developed area than

that which surrounds Chernobyl.

Id. It is difficult to develop a precise estimate of the time it would take to decontaminate a large urban area after a severe nuclear accident, given the fact that the Chernobyl clean-up was stopped after 4 years and given estimates that the Fukushima clean-up could last several decades.

Id. Thus, in order to assess the impact of longer decontamination times more generally, ISR calculated the OECR from a range of 2 to 15 years for a DF of 3 and a range of 4 to 30 years for

a DF of 15.

24 Id. ISR determined that, if all other inputs by Entergy remain unchanged, the resulting OECR calculated by ISR based on changing TIMDEC alone is 3 to 5.7 times higher than the OECR calculated by Entergy (2.12E+05 $/year for IP2).

Id. Figure 6 from the ISR report and reproduced below is a graphical depiction of the effect of decontamination time on cost in MACCS2 and shows that OECR increases as TIMDEC increases.

Id. This is because relocation costs increase as decontamination time increases.

Id. As the OECR increases due to decontamination time, it becomes more cost-effective to condemn infrastructure and buildings and, therefore, the OECR plateaus. The point at which the MACCS2 code will condemn buildings rather than decontaminate them is governed by the value of nonfarm wealth, another

MACCS2 input.

24 The MACCS2 code limits decontamination times to a maximum of one year. ISR Report at 24; Lemay Testimony at 54. Thus, ISR had to modify the source code to allow for the likelihood that decontamination would take longer than the values from Sample problem A and longer than

one year.Id.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 330.00E+002.00E+05 4.00E+05 6.00E+05 8.00E+051.00E+061.20E+061.40E+06051015202530OECR($/yr)Decontamination(DF=15)time(years)Decontamination(DF=3)timeishalfaslongFigure 6: OECR for decontamination times up to 30 years D. Using Sample Problem A Inputs in Lieu of Site-Specific Inputs Results in a Severe Underestimation of the Costs Associated With a Severe Accident at Indian Point Although NRC Staff concluded that Entergy's "decontamination cost estimates are consistent with those used in accepted SAMA analyses performed for other nuclear power plants" (FESIS at G-24), it appears this is the case because other nuclear power plants rely upon Sample Problem A input values. ISR Report at 30-31; Lemay Testimony at 62-63. In fact, ISR gathered MACCS2 code input data for other U.S. power plants and found that that no matter the specific location or attributes of the facility, the input values remain constant because, with the exception of the value for nonfarm wealth, all inputs were derived from Sample Problem A.

Id.Table 12 from the ISR Report, reproduced below, shows the results of ISR's comparison.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 34Table 12: Comparison of sensitive parameter values for IP with other US nuclear stations (costs in 2005 USD)

Station Year CDNFRM (DF=3)CDNFRM (DF=15)TIMDEC (DF=3/DF=15)VALWNF DPRATE DSRATE POPCST FRNFIMSurry

1987 $5,158 $13,754 60 d/ 120 d$144,412 0.2 0.12 $8,596 0.8 Clinton 2000 $5,172 $13,791 60 d/ 120 d$121,265 0.2 0.12 $8,620 0.8 North Anna 2000 $3,981 $10,616 60 d/ 120 d$160,148 0.2 0.12 $8,279 0.8 Arkansas 2002 $5,191 $13,846 NA $136,903 0.2 0.12 $8,649 NA Indian Point (Entergy) 2005 $5,184 $13,824 60 d/ 120 d$208,838 0.2 0.12 $8,640 0.8 Levy 2007 $5,415 $14,441 60 d/ 120 d$178,217 0.2 0.12 $9,025 NA NA - not available in public documentation *MACCS2 Sample Problem A input parameter values NRC Staff's analysis ignores the requirement that SAMA analyses be site-specific. For Indian Point, simply relying upon Sample Problem A values adjusted by the CPI results in a significant underestimation of the costs associated with a severe accident. If all of the ISR proposed inputs are used, the OECR is determined to be between 4 and 7 times the currently calculated Entergy value. ISR Report at 32; Lemay Testimony at 71.

PROPOSED FINDINGS OF FACT This Statement of Position along with its supporting evidence provide ample bases for the Board to find the following facts regarding Consolidated Contention 12. Each of these findings supports the conclusion that the Entergy has significantly underestimated the cost of a severe accident at Indian Point. 1.As part of its license renewal application, Entergy performed a cost-benefit, or SAMA, analysis to determine which mitig ation alternatives, SAMAs, would be cost-beneficial. 2.Entergy used the CHRONC module of the MACCS2 code to calculate the economic cost of a severe accident at Indian Point for use in its SAMA cost-benefit analysis.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 353.As the MACCS2 User Guide explains, the MACCS2 code was designed so that users could define inputs based on site-specific data. 3.1.Site-specific cost estimates are particularly important for Indian Point because the surrounding population density is higher than that surrounding any other nuclear plant in the United States. 3.2.Additionally, due to the population density and building density, a severe release of radioactive materials at Indian Point would have more serious consequences than that same release at any other nuclear reactor site.4.Largely ignoring direction to develop site-specific data, Entergy adopted all CHRONC input parameters, with the exception of farm and nonfarm wealth, from sample inputs. 4.1.Entergy's inputs were from the MACCS2 User Guide's Sample Problem A, adjusted only for the Consumer Price Index ("CPI") to account for inflation.4.2.Sample Problem A is one of 14 sample problems in the MACCS2 User Guide containing sets of example inputs that were designed to be used to test that the MACCS2 code was installed and running properly. 4.3.Sample Problem A is not a set of default values; the MACCS2 code developers used the terms "sample" and "example" to remind users that they are responsible for developing their own site-specific input values.4.4.Sample Problem A incorporates site-specific data for the Surry site in Virginia, largely surrounded by farmland, to test a food chain model in a study of severe accident risks at five nuclear reactors (NUREG-1150). 5.Entergy's use of Sample Problem A values for the cost sensitive parameters does not accurately incorporate available decontamination data, and the population and building characteristics of the New York City Metropolitan Area and other areas

surrounding Indian Point. 6.Although Entergy actually relied upon site-specific data for the value of nonfarm wealth input, its input was based in part upon data in 1997 dollars not adjusted for inflation and, thus, contributed to the underestimation of the costs of a severe accident. 7.In the FSEIS, NRC Staff approved of and adopted Entergy's use of the MACCS2 code and its estimate of severe accident costs.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 367.1.NRC Staff recognized that Entergy based its decontamination cost parameters on the Sample Problem A input values and that the Sample Problem A values were developed for the Surry plant analysis in NUREG-

1150.7.2.Nonetheless, NRC Staff found Entergy's decontamination cost calculations and estimates to be reasonable, acceptable, and consistent with those performed for other nuclear power plants. 7.3.NRC Staff did not require Entergy to develop site-specific inputs to the MACCS2 code. 8.Entergy's inputs to the MACCS2 code, as approved by NRC Staff, to calculate costs associated with a severe accident are unrealistic given current known decontamination data and the complexities of an urban to hyper-urban area such

as that surrounding Indian Point. 9.If a reasonable range of site-specific inputs is substituted for Entergy's inputs, the costs associated with a severe accident increase by a factor of 4 to 7. 10.Entergy's underestimation of severe accident costs could influence the determination of which SAMAs are cost-beneficial and, thus, could affect the selection of mitigation alternatives.

ARGUMENT THE FSEIS DOES NOT COMPLY WITH NEPA REQUIREMENTS BECAUSE THE FSEIS ARBITRARILY UNDERESTIMATES THE COSTS ASSOCIATED WITH A SEVERE ACCIDENT AT INDIAN POINT AND FAILS TO PROVIDE A RATIONAL BASIS AS TO SAMA DECONTAMINATION COSTS AND MITIGATION ALTERNATIVES By ignoring its own requirement that a site-specific SAMA analysis be performed and by accepting Entergy's SAMA analysis that is based upon significantly underestimated economic costs associated with a severe accident, NRC has violated NEPA, CEQ regulations, and NRC regulations. As New York previously indicated, "[t]he FSEIS conclusions regarding decontamination costs are flawed because they: (a) underestimate the costs associated with a severe accident in the densely populated and developed New York City Metropolitan Area; and (b) underestimate the costs associated with the dispersion of small particle radiation from a State of New York Initial Statement of Position Consolidated Contention NYS-12-C 37nuclear power facility accident."Contention 12-C at 4 (Feb. 2, 2011).Instead of developing site-specific MACCS2 code inputs, Entergy largely relied upon inputs developed decades ago for a nuclear power plant that is surrounded by farmland-not the dense population and buildings surrounding Indian Point. Entergy also failed to take the properties of the large and small sized particles released during a nuclear reactor accident into account in many of its input parameters. NRC Staff failed to adequately respond to the State's contentions and comments. NRC Staff accepted Entergy's SAMA analysis, which relied upon Entergy's erroneously low cost estimates calculated by the MACCS2 code, without requiring any adjustment for the demographics of the area surrounding Indian Point. If high quality, accurate information and analysis are used to determine site-specific inputs for the area surrounding Indian Point, the estimates of costs increase by a factor of 4 to 7. If accurate and scientifically defensible cost estimates were used, additional SAMAs could have been deemed cost-beneficial.

POINT 1 THE FSEIS DOES NOT COMPLY WITH NEPA REQUIREMENTS BECAUSE IT FAILS TO ADEQUATELY RESPOND TO THE STATE'S COMMENTS AND SANCTIONS ENTERGY'S FAILURE TO DEVELOP RATIONAL SITE-SPECIFIC DATA IN CALCULATING THE DECONTAMINATION COSTS OF A SEVERE ACCIDENT AT INDIAN POINT, RELYING INSTEAD ON DATA DEVELOPED FOR A RURAL SITE SURROUNDED BY FARMLAND Despite the fact that NRC Staff is obligated to conduct a site-specific SAMA analysis as part of its environmental obligations under NEPA during the review of Entergy's license renewal application, NRC Staff failed to adequately respond to the State's comments and accepted Entergy's reliance, in large part, on MACCS2 inputs developed decades ago for a rural site that is largely surrounded by farmland. As the Limerick court recognized, SAMA analyses must be State of New York Initial Statement of Position Consolidated Contention NYS-12-C 38 site-specific: [b]ecause the potential consequences [of a severe accident] will largely be the product of the location of the plant, the risk will vary tremendously across all plants.

As the NRC itself has noted, the population distribution in the vicinity of the site affects the magnitude and location of potential consequences from radiation releases. 869 F.2d at 738 (internal quotation omitted). The Limerick court went on to acknowledge that the importance of conducting a site-specific analysis "is particularly true for plants such as Limerick which were built near densely populated areas."

Id. Entergy and NRC Staff, however, ignore the fact that Indian Point was built near more densely populated areas than any other United States nuclear reactor and instead rely on example inputs to the MACCS2 code. By not developing site-specific cost estimates, based on site-specific inputs to the MACCS2 code, NRC Staff has disregarded the very purpose of a SAMA analysis-that a site-specific analysis of alternatives to mitigate a severe accident at Indian Point be performed. Additionally, in Appendix G to the FSEIS NRC Staff provided only a cursory and general response to the State's comments. NRC Staff's failure to fully consider and respond to the State's comments is a violation of NEPA's requirement that the FSEIS respond adequately to comments. 10 C.F.R. § 51.91(a)(1) (FSEIS shall include factual corrections and supplementation to or modification of analyses in response to comments on a draft environmental impact statement).

NRC Staff's acceptance of Entergy's flawed analysis flies in the face of NEPA's requirement that agencies "shall insure the professional integrity, including scientific integrity" of the analysis in an EIS, and shall identify the methodologies used and make "explicit reference

by footnote" to the scientific and other sources for their conclusions.

25 40 C.F.R. § 1502.24.

25 Likewise, the NEI Guidance instructs that while "[d]escription of the method [used to State of New York Initial Statement of Position Consolidated Contention NYS-12-C 39NEPA requires that an EIS contain "high quality" information and "accurate scientific analysis," 40 C.F.R. § 1500.1(b), and obligates NRC Staff to "independently evaluate and be responsible for the reliability of all information used in the draft environmental impact statement." 10C.F.R.

§ 51.70(b); Native Ecosystems Council v. U.S. Forest Svc., 418 F.3d 953, 964-65 (9th Cir. 2005).

S ee also 10C.F.R. § 51.92(a); 40 C.F.R. § 1502.24 (Staff must ensure "the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements.").

Furthermore, NRC Staff accepted the fact that Entergy did not even attempt to explain

why the Sample Problem A inputs were adequate for the Indian Point site or why it did not rely upon site-specific inputs. This is not valid under NEPA because an EIS must be sufficient to enable those who did not have a part in its completion to understand and consider meaningfully the factors involved.

Envtl. Defense Fund v. Army Corps of Eng'rs, 492 F.2d 1123 (5th Cir.

1974).Cf.Dunlop v. Bachowski, 421 U.S. 560, 572 (1975) (noting that a statement by an agency of the reasons for its determination is crucial to effective judicial review). In fact, NRC Staff failed to disclose that Sample Problem A contains a faulty assumption:

that a DF of 15 can actually be achieved. As the ISR Report and literature cited therein explain, based on experience following the Chernobyl accident, decontamination of an entire building to a level greater than 10, let alone 15, may not be possible without complete demolition and disposal in a licensed burial facility. By not disclosing the fact that Entergy's MACCS2 input

for a DF of 15 likely is not achievable, NRC Staff violated NEPA.SeePowell, 395 F.3d at 1031-32 (agency's "withholding of information violated NEPA, which requires up-front calculate economic costs] may be no more than a reference to the document describing the method. . . . [,] the various input parameters and associated assumptions must still be described."

NEI SAMA Guidance at p. 13.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 40disclosures of relevant shortcomings in the data or models"). As support for its approval of Entergy's flawed cost estimate, NRC Staff state that Entergy's "decontamination cost estimates are consistent with those used in accepted SAMA analyses performed for other nuclear power plants." FESIS at G-24. Even if Sample Problem A input values were sufficient in the past for other plants and in other locales, this is not a credible basis for using the same data to estimate costs associated with a severe accident at Indian Point-which is surrounded by the most densely-populated area of any U.S. nuclear power plant and sits approximately 38 miles from the financial center of the United States. By accepting Entergy's reliance on such overtly flawed input values, NRC Staff has violated NEPA.

See Sierra Club v.

U.S. Dept. of Agr., No. 96-2244, 1997 WL 295308, *13-*14 (7th Cir. May 28, 1997) (reliance upon 10-year old data as an input to a computer model when newer data was available was arbitrary and capricious and in violation of NEPA's requirement that agencies rely upon high-quality information and accurate scientific analysis);

Nw. Ecosystem Alliance v. Rey , 380 F.Supp. 2d 1175 (W.D. Wash. 2005) (the fact that older data had been used for a previous NEPA analysis is not a justification for its continued use where more recent data dictated a different

result).

Even beyond its use in the SAMA analysis, accurately estimating the costs associated with a severe accident at Indian Point is a fundamental part of NEPA's analysis of direct, indirect, and cumulative impacts.

See 40 C.F.R. § 1508.8 (impacts include "ecological, aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.").

Recently, former NRC Commissioner Victor Gilinsky discussed the risks associated with severe State of New York Initial Statement of Position Consolidated Contention NYS-12-C 41accidents and the resulting long-lasting and costly contamination from cesium.

26 Indian Point:

The Next Fukushima?, V. Gilinsky, The New York Times (Dec. 16, 2011) (Exh. NYS000286). Without an accurate cost estimate, NRC Staff cannot take NEPA's required "hard look" at the environmental consequences of relicensing Indian Point.

POINT 2 THE FSEIS VIOLATES NEPA REQUIREMENTS BY RELYING ON INACCURATE COST ESTIMATES IN THE SAMA ALTERNATIVES ANALYSIS In preparing the EIS, NRC must "[r]igorously explore and objectively evaluate all reasonable alternatives" to a proposed action. 40 C.F.R. § 1502.14(a). Consideration of alternatives is "the heart of the environmental impact statement," mandating that the NRC "present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public."

Id. NRC must "to the fullest extent possible . . . consider alternatives to its action which would reduce environmental damage."

Calvert Cliffs', 449 F.2d at 1128 (emphasis in original). Absent this comparative analysis, decisionmakers and the public can neither assess environmental trade-offs nor avoid environmental harms.

See id. at 1114 (The consideration of alternatives requirement "seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance" and "allows those removed from the initial process to evaluate and balance

the factors on their own.").

26 Furthermore, since the Price Anderson Act, 42 U.S.C. § 2210, obligates the federal government to indemnify the nuclear industry for the vast majority of clean up costs in the event of a severe nuclear reactor accident, properly estimating the costs of a severe accident is important to determine the government's potential exposure.

State of New York Initial Statement of Position Consolidated Contention NYS-12-C 42 As the Board has already recognized, "[t]he FSEIS must demonstrate that the NRC [S]taff has received sufficient information to take a hard look at SAMAs as required by 10

C.F.R. § 51.53(c)(3)(ii)(L), has in fact taken that hard look, and has adequately explained its conclusions . . ." July 14, 2011 Board Order at 14. Because it relies upon a fatally-flawed estimate of the economic costs associated with a severe accident that fails to take into account

the population and building density of the area surrounding Indian Point or the type of

radionuclide particles that would be released following a severe nuclear reactor accident, the SAMA analysis is erroneous. Even the most conservative estimate of the costs associated with a severe accident is still four times higher than Entergy's estimate. Since the SAMA analysis is a cost-benefit analysis of mitigation alternatives, additional mitigation alternatives could be deemed cost beneficial if this critical analysis was based on rational, site-specific cost estimates. By accepting an alternatives cost-benefits analysis based on arbitrary and inaccurate cost estimates, NRC Staff has failed to comply with NEPA.

CONCLUSION For the above reasons Entergy's application to renew the operating licenses for Indian

Point Unit 2 and Unit 3 should be denied.

Respectfully submitted, Signed (electronically) by Kathryn M. Liberatore Assistant Attorney General John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12227 (518) 402-2251 Dated: December 21, 2011

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