ML090960470

State of New York Combined Reply to Entergy Nuclear Operations, Inc., and NRC Staff in Support of Contentions 12-A, 16-A, 17-A, 33, and 34

ML090960470
Person / Time
Site:	Indian Point
Issue date:	03/31/2009
From:	Jeremy Dean State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-237
Download: ML090960470 (41)

Text

/Q Ed3~ 'ý DOCKETED USNRC UNITED STATES April 3, 2009 (8:30am)

NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY RULEMAKINGS AND ATOMIC SAFETY LICENSING BOARD ADJUDICATIONS STAFF In re:

Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and* DPR-26, DPR-64 Entergy Nuclear Operations, Inc.

STATE OF NEW YORK COMBINED REPLY TO ENTERGY NUCLEAR OPERATIONS, INC., AND NRC STAFF IN SUPPORT OF CONTENTIONS 12-A, 16-A, 17-A, 33, AND 34 Filed on March 31, 2009 774 v 'Zý7~c:-- og ýf 03

TABLE OF CONTENTS PRELIM INARY STATEM ENT .................................................. 1 REGULATORY FRAMEW ORK ................................................. 2 Legal Requirements for Admissibility of NEPA Contentions B ased on the D SEIS ...................................................... 2 NEPA Obligates NRC Staff, Not the Applicant, to Prepare a Thorough Environmental Impact Statement That Identifies and Substantively Analyzes Environmental Impacts and Alternatives ................. 7 Congress Has Directed NRC Staff to Consider and Analyze Significant New Information .............. ........................... 10 THE STATE OF NEW YORK'S REPLY TO ENTERGY AND NRC STAFF'S ANSW ERS BY CONTENTION ................................................ 11 CON TEN TION 12-A ................................................... 11 CON TEN TION 16-A ................................................... 12 CON TEN TION 17-A .................................................... 14 CO N TEN TIO N 33 ..................................................... 17 CON TEN TION 34 ..................................................... 25 ENTERGY'S MOOTNESS ARGUMENT IS UNTIMELY, PROCEDURALLY IMPROPER, AND WITHOUT MERIT .......................................... 29 Contention 9 is N ot M oot . ............................................... 30 Contention 17 is N ot M oot . .............................................. 31 C O N C LU SIO N ............................................................. 32

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PRELIMINARY STATEMENT Petitioner State of New York respectfully submits this combined reply to the Answers of Staff and Entergy. On February 27, 2008, Petitioner State of New York filed five contentions based on Staff's Draft Supplemental Environmental Impact Statement ("DSEIS"). The State did so within the timeframe for submission of DSEIS comments established by the Board. See Memorandum and Order (summarizing prehearing conference), In the Matter of Entergy Nuclear Operations,Inc. (Indian Point Units 2 and 3)(Feb. 4, 2009). On March 24, 2009, Entergy filed the Answer of Entergy Nuclear Operations, Inc. Opposing New and Amended Environmental Contentions of New York State ("Entergy Answer"), and Staff filed its Answer to Amended and New Contentions Filed by the State of New York and Riverkeeper, Inc.,

Concerning the Draft Supplemental Environmental Impact Statement ("Staff Answer").

Staff and Entergy did not object, in substance, to Contention 12-A, though procedurally Entergy would prefer to litigate a challenge to the DSEIS within the scope of existing Contention 12, which as written currently only challenges the applicant's Environmental Report

("ER"). Staff opposes Contention 16-A under the mistaken belief, refuted below, that Contention 16-A raises issues not raised in Contention 16. Both Staff and Entergy object to Contentions 33 and 34 on a panoply of grounds including timeliness and scope. As described below, Staff s and Entergy's objections to the State's DSEIS contentions are groundless and without basis in fact or law.

REGULATORY FRAMEWORK Legal Requirements for Admissibility of Contentions Based on the DSEIS In the following discussion of generic legal principles, the State of New York rebuts many of the legal arguments advanced by Entergy and Staff to several of the Contentions. As a matter of efficiency these rebuttals are not repeated in the ensuing Contention-specific discuss but are meant to apply to those arguments advanced by Staff and Entergy in opposition to individual Contentions.

Except for the normal regulatory requirements applicable to the admissibility of all contentions (10 C.F.R. § 2.309(f)(1)), the only criteria applicable to a timely filed DSEIS contention is set forth in 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.

Otherwise, contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that...

Id. (emphasis added). In the SOC, the Commission confirms that if these criteria are met and the contention meets the normal requirements of § 2.309(1), then the contention is to be admitted. The Commission has stated that:

new or amended environmental contentions may.be admitted if the petitioner shows that the new or amended contention is based on data or conclusions in the NRC's environmental documents that differ significantly from the data or conclusions in the applicant's documents. Of course, new or amended environmental documents must be submitted promptly after the NRC's environmental documents are issued. For all other new or amended contentions the rule makes clear that the criteria in § 2.309(f)(2)(i) through (iii) must be satisfied for admission.

SOC, 69 Fed. Reg. at 2221 (emphasis added). The standard against which the State's contentions should be measured is a "less stringent" rule than the contention admissibility requirements for other new contentions. See In the Matter of Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), 63 NRC 568, 572, n. 12 (May 25, 2006)("[n]ew NEPA contentions are not subject to the three conditions specified in (f)(2)(i)-(iii)... [N]ew or amended environmental contentions may be admitted if the petitioner shows that the new or amended contention is based on data or conclusions in the NRC's environmental documents that differ significantly from the data or conclusions in the applicant's documents..."). Entergy and Staff assertions that the State must meet the late filed contention requirements of § 2.309(f)(2) or the non-timely filing requirements of § 2.309(c) lack merit because they ignore the clear language of the regulations and the Commission's clear statement when it adopted the regulatory provision and because they are inconsistent with NEPA's directives to federal agencies.

While citing to Louisiana Energy Services, L.P. (Claiborne Enrichment Center),

CLI-98-3, 47 NRC 77, 89 (1998) which stands for the well-accepted proposition that environmental contentions should be raised in the first instance at the time of the filing of the ER, Staff adds a proposition that is not only not supported by the Claiborne case, but conflicts with the cited language from the case. Staff has argued that "[a]n intervenor must file contentions raising environmental issues based on the environmental report or promptly after the information supportingthe contentions becomes available, rather than waiting for the Draft SEIS to be published, in accordance with 10 C.F.R. § 2.309(f)(2)." Staff Answer at 11 (emphasis added). Staff is plainly wrong.

First, Staff fails t6 mention that neither 10 C.F.R. § 2.309(f)(2) nor the outdated 10 C.F.R. § 2.714(b)(2) contains the operative phrase "promptlyafter the informdtion supporting the contentions becomes available" which Staff puts forward as the standard here. Staff has created that standard out of whole cloth. In addition, the Claibornecase makes clear in the language cited by Staff that with respect to contentions arising out of NEPA, the initial time to file a contention based on the ER is when the ER is filed, and the time to file a contention based on the DSEIS is after the DSEIS is filed. There is no requirement that information which arises before the DSEIS is filed and after the ER is filed, if the information is obviously not addressed in the ER, can only be used in a contention by seeking to amend the ER contention, rather than waiting for publication of the DSEIS which might actually address the new information. Yet that is precisely what Staff argues in its opposition to Contention 17-A. See Staff Answer at 15 (arguing that Contention 17-A's reliance on the Commission's October 9, 2008 proposed rule making on waste confidence is inappropriate and should have been raised as the basis for an amendment to the original Contention 17 within 30 days of the proposed rulemaking). Thus, Staff's argument is based on a distortion of the holding in Claiborne.

Staff also mischaracterizes the Commission's contention admissibility standards when it argues that an intervenor may not add bases to its initial statement of bases when a contention was admitted without seeking leave to file a contention amendment. Staff asserts that in adding a new basis in support of the Contention 17-A, which allegedly could have been raised at the time the original contention was filed,1 New York State has violated a "rule" against adding new bases to support admitted contentions. Not only is there no citation to support this novel theory, but, once again, it is directly contrary to relevant case law and the regulations. In Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station), LBP-04-28 (Nov. 22, 2004) at 9, n. 12, the Board, citing to the original Statement of Considerations that accompanied the adoption of the predecessor of § 2.309(f),

concluded that the requirement that a contention include a "brief explanation of the basis for the contention" was not a requirement that all bases then knowable must be included in the contention and was not a requirement that subsequent bases could not be raised unless they passed the twin gauntlets of §§ 2.309(c) and 2.309(f)(2)(i-iii). Those. Statements of Consideration make clear, in responding to concerns that the burden being imposed on an intervernor would be too great, that the purpose of contention admissibility proceedings was to determine whether there was any basis for a contention, not to require an exhaustive list of all knowable bases. 54 Fed. Reg. at 33170 (Aug. 11, 1989)("This requirement does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.") As the Vermont Yankee Board concluded, "it is the admissibility of the contention, not the basis, that must be determined. 10 C.F.R.

§ 2.309(a)." Id. at 10.

In the discussion infra, the State of New York demonstrates that its new basis could not havebeen raised until sometime after October 9, 2008, at which time the Commission announced its conclusion that the date for removal of spent fuel from a nuclear plant site might well be in the indefinite future and certainly would not be within 30 years of shutdown of an extended license plant, as the original waste confidence rule had assumed.

r, I NEPA Obligates NRC Staff, Not the Applicant, to Prepare a Thorough Environmental Impact Statement That Identifies and Substantively Analyzes Environmental Impacts and Alternatives The National Environmental Policy Act of 1969 ("NEPA") requires that federal agencies take a "hard look" at the environmental impacts of proposed actions, specifically

.(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved if the proposed action should be implemented.

42 U.S.C. § 4332. As the Commission has recognized, NEPA establishes a "broad national commitment to protecting and promoting environmental quality." In the Matter of Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98,3, 47 NRC 77 (1998), quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989), citing 42 U.S.C.

§ 4331. "To ensure that this commitment is 'infused into' the actions of the federal government, NEPA mandates particular 'action-forcing' procedures. Claiborne,CLI-98-3, 47 NRC 77 quoting 115 Cong. Rec. 40,416 (1970) (remarks of Sen. Jackson).

Congress, through the enactment of NEPA, placed, specific, non-delegable obligations on NRC Staff as opposed to the Applicant, and the State's contentions are focused on deficiencies in the Staff s recently issued environmental analysis. As identified by the Supreme 7

Court, NEPA has twin purposes. The first purpose is to ensure that environmental values are fully considered in the agency's decision-making process, and the second purpose is to inform the general public of what the agency has considered duringthe agency process. See Baltimore Gas & Elec. Co. v. NaturalRes. Def Council, 462 U.S. 87, 97 (1983); see also San Luis Obispo Mothersfor Peace v. Nuclear Reg. Comm 'n, 449 F.3d 1016, 1020 (9th Cir. 2006). As made clear in the regulations promulgated by the NEPA-created Council on Environmental Quality ("CEQ"), NEPA was designed to "provide full and fair discussion of significant environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality, of the human environment." 40 C.F.R. § 1502.1.

The State has submitted five NEPA contentions for the Board's consideration. The State raised these issues in a timely fashion, within a Board-authorized timeframe after the release of the DSEIS. All of the State's contentions address analyses or omissions of analyses contained in the DSEIS. As discussed below, the State is not obligated to raise issues related to the DSEIS prior to the is'suance of the document, and likewise, remains free to raise contentions based on the DSEIS which address the Staff s shortcomings, if any, under NEPA subsequent to the document's release. As Staff has acknowledged, the Staff "bears the ultimate burden of demonstrating that environmental issues have been adequately considered." See Staff Answer at 11, quoting Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 89 (1998).

Congress Has Directed NRC Staff to Consider and Analyze Significant New Information The State of New York has identified a substantial body of new and significant information which has not been evaluated in conducting the GEIS or any other environmental review related to Indian Point. This new and significant information involves matters of substantial environmental significance. The new information, which was unavailable when the NRC issued the GEIS some 13 years ago, includes an NRC policy change made public in late

.2008 concerning the length of time for which waste is now expected to remain at the site of each reactor and the Indian Point-specific consequences that could flow from the long-term on-site storage of waste, including in particular the impact to off-site land values, and the numerous efforts made by the State and federal government since publication of the GEIS in 1996 concerning energy efficiency and renewable energy sources* many of which were made in recent years or months and are for that reason particularly important to consider. NEPA obligates NRC Staff to consider this significant new information, which was not included in the GEIS, the ER, or the DSEIS.

The controlling legal authority concerning significant new information is Marsh v.

Oregon NaturalResources Council, 490 U.S. 360 (1989). In that case the Supreme Court was asked to determine whether new information, in the form of several reports, warranted a supplement to the previously prepared EIS for a dam project in Oregon. The Court reached several conclusions which are directly relevant here. First, the Court held that "NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Marsh, 490 U.S. at 371 (internal citations omitted). Second, the Court held that:

It would be incongruous with this approach to environmental protection, and with the Act's manifest concern with preventing uninformed action, for the blinders to adverse environmental effects, once unequivocally removed, to be restored prior to the completion of agency action simply because the relevant proposal has received initial approval.

Marsh, 490 U.S. at 371. Third the Court held that:

The CEQ regulations, which we have held are entitled to substantial deference, see Robertson, 490 U.S. at 355-356; Andrus v. Sierra Club, 442 U.S. 347 (1979),

impose a duty on all federal agencies to prepare supplements to either draft or final EIS's if there "are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts."

Marsh, 490 U.S. at 372 (further internal citations omitted). Fourth, the Court held that "NEPA does require that agencies take a 'hard look' at the environmental effects of their planned action, even after a proposal has received initial approval." Marsh, 490 U.S. at 374. Fifth, the Court held that:

in the context of reviewing a decision not to supplement an EIS, courts should not automatically defer to the agency's express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance-or lack of significance-of the new information.

Marsh, 490 U.S. at 378.

The DSEIS does not even give lip service to these fundamental NEPA obligations. It does not refer to the new and significant information which was submitted as part of the scoping comments from the State of New York. In many instances this same information was also part of the contentions raised by the State in its Petition to Intervene. In one instance, with regard to Contention 17, the new and significant information was information that formed the basis for I

the Board's admission of the contention. See Memorandum and Order, In the Matter of Entergy Nuclear Operations,Inc. (Indian Point Units 2 and 3)(July 31, 2008), at 82-83. Obviously "no look" is not a "hard look."

According to the applicable NRC Regulatory Guide for the Preparation of Supplemental Environmental Impact Reports, "[i]n developing the final SEIS, the NRC staff will consider comments received on the draft, prepare responses, and modify the SEIS as warranted. The staff will determine whether such comments identify new and significant information not considered in NUREG-1437 nor addressed in the applicant's ER." See Supplement 1 to Regulatory Guide 4.2 (Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses)(Sept. 2000), ML003710495, at 4.2-S-3. The Regulatory Guide defines "new and significant information" as "(1) information that identifies a significant environmental issue, that was not considered in NUREG-1437 and, consequently, not codified in Appendix B to Subpart A of 10 CFR Part 51, or (2) information that was not considered in the analyses summarized in NUREG- 1437 and that leads to an impact finding different from that codified in 10 CFR Part 51." Id. at 4.2-S-4. The Regulatory Guide specifically contemplates NRC Staff incorporating significant new information raised by the public into the SEIS. Id.

All of the information to which the State of New York makes reference has come to light subsequent-to the time the NRC prepared the GEIS, some 13 years ago, and much of it has come to light subsequent to the ER and to the filing of the State's initial contentions. Staff s Answer and argument fails to account for CEQ's statement to the NRC in 1992 concerning the GEIS, in which CEQ expressed concern that if the GEIS were applied to license renewal, making many issues a foregone conclusion, "[mI]embers of the public would be virtually precluded"from challenging the. application of generic conclusions for a particular license renewal application" and that "[ujnder NEPA, the agency may not determine, on the basis of the GEIS, that the generic environmental issues addressed .are finally resolved and, absent a reconsideration of the regulation itself, refuse to consider those generic issues in a particular relicensing proceeding."

See Letter, Lucinda Low Swartz, CEQ Deputy General Counsel, to Samuel J. Chilk, Secretary of the Commission (Mar. 16, 1992). CEQ's concerns have played out in this proceeding because the GEIS has not been updated in more than 13 years, yet Staff relies on it as controlling authority here. In short, NEPA compels NRC Staff to identify and discuss significant new information*related to issues addressed in the GEIS to the extent required for a full, fair environmental review. The DSEIS is little more than a statement of a pre-existing .set of assumptions without any effort to address new and significant information that challenges those preexisting assumptions. As the following discussion demonstrates, many of these factors are directly applicable to the environmental impacts associated with new, and previously unexamined information.

THE STATE OF NEW YORK'S REPLY TO ENTERGY AND NRC STAFF'S ANSWERS BY CONTENTION CONTENTION 12-A Neither Staff nor Entergy oppose the consideration of Contention 12-A's challenge to the DSEIS. Staff does not oppose the contention (Staff Answer at 12), and Entergy states that Contention 12 may be appropriately treated as an admitted challenge to the DSEIS without amendment or re-designation as 12-A (Entergy Answer at 13). Accordingly, there appears to be no dispute that the State's SAMA/clean-up cost contention now includes a challenge to the DSEIS. As the State noted in its submission on February 27, 2009 and as Entergy notes in its Answer on page 12, the State submitted Contention 12-A out of an abundance of caution to ensure that the State's challenge to the SAMA/clean-up cost issue included a challenge to the DSEIS. The State does not express a preference here for the inclusion of Contention 12-A as a separate contention or the inclusion of a DSEIS challenge within the hearing's discussion of Contention 12 and leaves that issue to the Board's discretion.

CONTENTION 16-A NRC Staff does not object to Contention 16-A to the extent it is limited to the issues the Licensing Board admitted in accepting Contention 16. However, Staff alleges that Contention 16-A contains two new assertions about Entergy's SAMA analysis and the NRC Staff s acceptance of it - one, according to Staff, was already excluded by the Board when it ruled on Contention 16 and the second could have been raised earlier and is therefore now barred.

Staff s objections either misstate the factual record or misinterpret the State's assertion.

According to Staff, in.paragraph 12 of Contention 16-A, the State "asserts, for the first time, that the Staff must use 'a more accurate EPA approved air dispersion model"' for its SAMA analysis. Staff Answer at page 13 (emphasis in original). Staff is wrong. An objective review of Contention 16 in the State's November 30, 2007 Petition reveals that the State specifically raised this same assertion in the State's initial pleading. Paragraph 10 of Contention 16 states:

... Entergy's rejection of 61 of the 68 SAMAs considered for IP2 warrants further analysis based on a remodeling of the atmospheric dispersion of a release of radionuclides using a more accurate EPA approved air dispersion model.

Petition at page 166. (emphasis supplied). Thus, in Contention 16, New York identified Entergy's failure to use an EPA-approved air dispersion model as a defect in the SAMA analysis and Contention 16-A simply now assigns that failure to NRC Staff, as the reviewer of Entergy's ER.

Staff also claims that New York is attempting to raise an issue about "the radiological source term" used by Entergy in its SAMA analysis, and not the issue of "radiation dispersion modeling" which the Board admitted in Contention 16. Thus, according to Staff, the State is impermissibly attempting to re-introduce an issue, presumably about the validity of the radiological source term in the MACCS 2 Code, which was excluded by the Board. Staff Answer at 13. Staff makes this assertion based on language in the title of Contention 16-A that Staff "improperly accepted Entergy 's ... estimates of radiationreleased in a severe accident,"

(emphasis in original) and in note 5 that valid air dispersion modeling must contain "the radionuclide content of any off-site release of radionuclides." Staff Answer at 13.

Staff has misinterpreted the cited language which relates to the manner ,in which an air dispersion model estimates both where, and in what concentrations, radionuclides emitted in a severe accident will land, and not to whether Entergy or the Staff properly relied on the radiological source term in the MACCS2 Code to estimate the total amount of radiation released at the outset of a severe accident. Staff s argument about the cited language is therefore misplaced.

Entergy complains that footnote 5 in Contention 16-A challenges its compliance with the emergency planning requirement set forth in 10 C.F.R. § 50.47(b)(9) and should be rejected as

.outside the scope of this license renewal proceeding. However, Entergy did not complain about this language when it appeared in almost identical form in Footnote 38 of the original November 30, 2007 petition and is therefore barred from raising this issue now. Compare New York State's DSEIS contentions at page 12 n.5 with New York State's Petition at 166, n 38. In any event, the language in Footnote 5 does not challenge Entergy's compliance with the emergency planning requirement but simply describes one of the possible consequences of Entergy's continued reliance on what is known to be a deficient and outdated air dispersion model - that emergency response teams will not have an accurate idea of the areas where radionuclides fell to the ground or in what concentrations.

CONTENTION 17-A Both NRC Staff and Entergy argue that Contention 17-A relies on an impermissible new basis, the Commission's newly disclosed conclusion that spent fuel might have to be stored at the Indian Point site long after its renewed license has expired and the incremental impact of spent fuel storage on off-site land.values. The allegation that this should have been raised as an amendment to Contention 17 is discussed infra. The additional argument made by both Answers is that Dr. Sheppard could have made his new analysis at the time of the original filing of Contention 17 in November 2007. That argument ignores the fact that, until October 9, 2008, the Commission's finding, which underlay 10 C.F.R. § 51.23, was that spent fuel, even from license extension activities, would be gone within 30 years after plant shutdown. Contention 17, as one of its bases, noted the adverse impact of continued storage of spent fuel at the plant site after shutdown but could not, without challenging § 51.23, allege that the time of such storage could extend indefinitely. Thus, the analysis now offered by Dr. Sheppard, that incorporates that new concept and of which he became aware as the result of the October 9, 2008 statements by the NRC, could not have been made at the time of the original Petition to Intervene.

Entergy adds an additional argument at pp. 22-26 of its Answer in which it asserts, essentially, that economic impacts associated with storage 'of spent fuel at the site after plant shutdown are outside the scope of NEPA because such economic impacts are tangential to the environmental activity - i.e., use of the Indian Point site for nuclear activities. In admitting Contention 17 without limitation, the Board has already laid that argument to rest and the time for filing a request for reconsideration of that ruling is long past. See Memorandum and Order, In the Matter of Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3)(July 31, 2008) at 82-83. It does not make for an efficient hearing process, something Entergy appears to favor, for any party, even an Applicant, to reargue points already resolved by the Board, particularly when it does so without acknowledging the Board's prior ruling.

Entergy also claims that Contention 17-A does not join issue with the DSEIS's passing and ambiguous reference to impacts on land use values and merely asserts that the DSEIS ignores these impacts. In support of this statement it cites pages 16, 18 and 20 of New York State' DSEIS Contentions filing. Entergy Answer at 26-27. Examination of the references reveals that only one reference is a "basis" and that is the one on page- 16 of New York State's pleading, which makes the wholly accurate statement that "the DSEIS contains no analysis of the environmental impact on adjacent land values that will be associated with the construction and long term operation of a dry cask storagefacility at the Indian Point site of a size sufficient to handle the spent fuel from extended operation of either reactor." Id. (emphasis added);

compare DSEIS at pp. 8-29 to 8-30. See also Claiborne, CLI-98-3, 47 NRC 77 (in which the Commission upheld the Board's finding that an EIS which "offers merely a conclusory statement on 'some negative' impact on property values, without explanation or analysis" was insufficient).

Finally, Entergy makes several arguments in which it challenges the factual basis for Dr.

Sheppard's opinions. Entergy Response at 26-30. Much of Entergy's argument merely confirms that there is material dispute between the parties on this issue and reiterates Entergy'.s disagreement with the Board's previous admission of Contention 17, which like Contention 17-A, relies on the economic recovery that will occur if Indian Point is not relicensed, the fact that decommissioning could occur as quickly as 10 years after shutdown (NRC certainly has the power to order more rapid decommissioning) and the fact that because an attractive river front development could be created at the site, land values of adjacent property will be influenced by such potential. In addition, to the extent Entergy is critical of the State for not specifically referencing the Levitan Report and the Staff s reliance upon it, it mischaracterizes what the State has done. By emphasizing the failure of the DSEIS to consider the authorities cited by Dr.

Sheppard and his opinions explaining how and why land use impacts will improve by over $800 million based on the significant new information regarding indefinite storage of spent fuel at the Indian Point site (Sheppard Supplemental Statement) and the DSEIS's total failure to address the long term spent fuel storage impacts, the State has fully joined issue with the DSEIS.

The unique confluence of site-specific factors present at Indian Point - specifically, the large number of people affected by the Commission's decision in this relicensing matter; the unique location of this site on the historic Hudson River shores and the particularly high land values in this area of the State and country2 - make analysis of this issue, which has never been addressed in any other context, appropriate here. See 40 C.F.R. § 1509(c)(1)(i).

CONTENTION 33 The fatal defect in Staff and Entergy's objections to Contention 33 is their failure to understand the difference between, and function of, the discussion of energy alternatives to the proposed action and the discussion of the no-action alternative. The former, as interpreted by the Commission in the GEIS, is focused on examining reasonable replacement options for the power to be generated by Indian Point in the event that one or both of the units are denied license renewal. Rightly or wrongly, energy conservation and renewable energy resources have been excluded from that discussion by the GEIS and, absent new and significant information (which the State of New York believes exists), may not be the basis for a contention. The latter, however, explores an entirely different issue: a comparison of the likely environmental impacts that flow from the approval of the pro'posed action against the likely environmental impacts that flow from the rejection of the proposed action. It is in this latter respect where the DSEIS is seriously deficient. Staff and Entergy, by constantly shifting their discussion between a challenge to the energy alternatives discussion and the no-action alternative muddy the waters.

Staff and Entergy launch their first mistaken attack on Contention 33 by alleging that it is untimely (Staff Answer at 17-20; Entergy Answer at 45). This attack is based on their 2 On this point the Board may take official notice of the statements made by counsel for the Town of Cortlandt at oral argument on March 11, 2008, in which counsel indicates that property in this area is among the most expensive in the country, and that Indian Point's location is unique as it is west of the train tracks and at a critical juncture in the river). See Transcript, In the Matter of Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 & 3),

ML080740257 at 505.

misreading of the requirements of 10 C.F.R. § 2.3 09(f)(2). As noted, the touchstone for admissibility of a contention based on the DSEIS is whether "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." 10 C.F.R. § 2.309(f)(2). Staff seeks to add a new requirement when it asserts, without authority, that "the State has not shown why it could not have presented these same arguments as challenges to the ER's discussion of (or failure to discuss) the no-action alternative when it filed its original contentions in November 2007." Staff Answer at 16. Since the ER did not include in its alternatives or no-action alternative section an analysis of a combined group of renewable energy options to Indian Point 3 and did not consider energy conservation as an alternative to Indian Point, and since the DSEIS did include such analyses (DSEIS at 8-58 to 8-59 and 8-65 to 8-78),4 it was appropriate for the State of New York to offer a contention based upon the significantly different data and conclusions contained in the DSEIS.

The fact that much of the bases and data for Contention 33 come from Contention 9, 10 and 11 3 See ER at 7-4 ("As stated in NUREG-1437, Vol.1, Section 8.1, the "NRC has

.determined that a reasonable set of alternatives should be limited to analysis of single, discrete electric generation sources and only electric generation sources that are technically feasible and commercially viable" [NRC 1996]. Accordingly, the following alternatives were not considered as reasonable replacement baseload power generation."). See also ER at 8-20 and 8-50.

4 Whether it was legally permissible for the ER to disregard combinations of energy alternatives, particularly those that include renewable sources, including energy conservation, is irrelevant at this stage of the proceeding, because the DSEIS has "opened the door" to these issues by presenting them as part of the alternatives discussion. If Entergy believed that such analyses impermissibly expand the scope of the NEPA analysis, the time for it to present such an objection was when contentions based on the DSEIS were required to be filed. Entergy, however, filed no contentions challenging the DSEIS by the February 27, 2009 deadline established by the Board.

is irrelevant since the bases and data are directed at the DSEIS and its very different analyses of the issues of energy conservation and energy combinations. Notably, the bases and supporting evidence include considerable additional information not available in 2007 when those Contentions were filed. See Contention 33, ¶¶ 5 (bullet 2), 6, 8, 9, 11, 14, 16, 18, 23 25, 29, 32,

33. Entergy asserts this information is not really new, but ignores the fact that the core of the DSEIS analysis of the potential of energy conservation to totally displace at least one of the Indian Point units is a mistaken assumption that only 800MW will come from conservation.

The new information provided in Contention 33 provides the rebuttal to that pessimistic analysis arid demonstrates the likelihood that when Indian Point license renewal is rejected, far preferable options willbe implemented with much less environmental impact.

The timeliness argument also ignores the critical difference between challenges to an ER, which are limited to violations of the provisions of Commission regulations, and the State's challengesto the DSEIS, which are based on violations of both Commission regulations and violations of NEPA, or regulations promulgated by CEQ found at 40 C.F.R. Parts 1500-1508.

Since it is ultimately compliance with NEPA that NRC must meet (see DSEIS at xiii and 10 C.F.R. Part 51, Appendix B to Subpart A which contains "the Commission's findings on the scope and magnitude of environmental impacts of renewing the operating license for a nuclear power plant as required by section 102(2) of the National Environmental Policy Act of 1969, as amended"), the State of New York's contentions are based on the DSEIS's attempt to comply with NEPA and CEQ regulations and are necessarily challenges to conclusions contained in the DSEIS that were not and could not have been included in the ER.

The second mistaken attack on Contention 33 is its assertion that the State has failed to demonstrate that if the considerations which were ignored in the DSEIS had been considered, it would have produced a different result. Staff Answer at 20 et seq.5 Entergy Answer at 33.

These arguments ignore considerable bases which allege, and information which supports, the conclusion that contrary to the conclusions of the DSEIS:

• energy efficiency and other energy alternatives recently have become important policy objectives and collectively are sufficient to displace the power from the Indian Point units; rejection of license renewal would spur implementation of energy alternatives that are either ignored or discounted in the DSEIS; options such as repowering are viable alternatives to Indian Point which would be likely to be implemented if license renewal were rejected; contrary to the DSEIS,.transmission lineand interconnection capacity has been and can be upgraded such that imported power and wind power from outside the Indian Point service territory can be provided to the service territory in the event Indian Point license renewal is denied; feasible combinations of various energy alternatives exist which do not, as the DSEIS assumes, require use of a coal-fired plant or continued operation of one of the two Indian Point units.

See Contention 33, Basis 5. These statements, supported by considerable evidence, demonstrate that if license renewal were rejected, the considerable adverse impacts associated with continued operation of Indian Point would be avoided. The purpose of NEPA is to gather information to 5 We assume the Staff is not arguing that the State must prove that the Staff would have changed its mind if it had seriously considered the information that the State demonstrates it ignored. The State of New York must only demonstrate, at this stage of the proceeding, that the bases and information demonstrate that there is a reasonable basis for the Board to conclude that this is a contested issue. See SOC, 69 Fed. Reg. at 33171 ("the rule will require that before a contention is admitted the intervenor have some factual basis for its position and that there exists a genuine dispute..." (emphasis added)).

allow the decision-maker to determine whether such a situation exists and to take appropriate action in the face of that information. If the environmental impacts of continued operation of Indian Point are substantial and can be avoided by denial of the license renewal without substantial adverse environmental impacts, the DSEIS and FEIS should have to disclose that fact so that this Board can decide this case with that information available to it.

In addition, since the function of the no-action alternative analysis is to make a reasoned determination of what will occur if license renewal is denied, the likelihood of the ensuing events is essential to an analysis of the impacts. The State has offered evidence demonstrating that there are sufficient energy conservation and other energy alternatives available in the period between now and 2015 to displace the power from the Indian Point units, and that the environmental impacts of the denial of license renewal for at least one unit would be "negligible" while the licensing of that unit would produce considerably larger environmental impacts as set forth in Section 4 of the DSEIS. While Staff may be unwilling to conclude that therefore, the environmental balance tilts decidedly in favor of denying license renewal for at least one unit, this Board should certainly have the opportunity to consider that issue in reaching its final decision.

Curiously, Entergy argues, after claiming that the DSEIS differs substantially from the ER because it now addresses the omissions that were the basis for Contention 9, now asserts that the DSEIS does not differ materially from the ER and thus Contention 33,does not meet the requirement for a timely DSEIS contention. This argument is as wrong as it is curious. The State has gone to great lengths in Contention 33 to identify the failures in the DSEIS to fully address and discuss the substantial evidence offered by the State and the substantial new evidence regarding renewable energy, conservation and other likely consequences of denial of relicensing. See Contention 33, Bases 5-22. Since a significant weakness of the DSEIS was its failure to deal with the substantial evidence offered by New York State previously, New York State was justified in reiterating that information for Contention 33. Just because the DSEIS touched on the issue, does not make it immune from challenge on the merits of what it has done with the issue.

Entergy also claims that the Contention 33 is beyond the scope of license renewal because it not only challenges the DSEIS to consider conservation, renewable resources and other likely steps that will be taken when license renewal is denied, but it also challenges the DSEIS to do a good job when it undertakes that consideration. Entergy Answer at 45-47. That is in no means what the Commission intended when it said the impact statement does not have to consider need-for-power or the economic costs and benefits of the proposed action.

Contention 33 does not seek a need-for- power determination, nor does it ask for consideration of the economic costs and benefits of proposed alternatives, although the DSEIS does appear to use those when it finds it convenient to dismiss an energy alternative as infeasible. See, e~g.,

DSEIS at 8-33, 8-46, 8-57, 8-60, 8-61, 8-62, 8-64. Contention 33 seeks a candid and thorough analysis of the consequences of the no-action alternative and a rigorous comparison of the environmental impacts of license renewal versus denial of license renewal.

Entergy also asserts that there are no material disputes of fact between New York State and the DSEIS (Entergy Answer at 49-55) while proceeding to demonstrate such disputes exist by challenging the factual bases, albeit without proper or complete analysis of the relevant facts, contained in Contention 33.

Finally, Staff asserts that because the State does not challenge the environmental impact assessment of various alternatives, it does not make the only challenge which, if made, would allow acceptance of the contention. This narrow view of the function of the impact statement is at odds with the relevant NEPA case law and reflects a fundamental misunderstanding of the impact statement preparation process. The purpose of doing the impact statement is to produce informed decision-making. If, as occurs in the DSEIS, the analysis fails to consider all the relevant evidence in assessing whether viable alternatives exist to the proposed action, which is precisely what has occurred here and precisely what the State has challenged, then the final decisionmaker, in this casethe Board, cannot do its job properly. The Staff argument that all it must do is set forth the adverse impacts of proposed alternatives ignores the fact that the environmental impacts of the no-action alternative necessarily have to include the likelihood and extent of measures that will be taken if license renewal is denied. The Staff argument also ignores-the NRC regulations:

This section [alternative analysis] is the heart of the environmental impact statement. It will present the environmental impacts of the proposal and the alternatives in comparative form.

Appendix A to 10 C.F.R. Part 51 at Section 5. This echoes the regulatory requirements of CEQ which provide that all federal agencies must:

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 ....

(a) Rigorously explore and objectively evaluate all reasonable alternatives ...

(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.

40 C.F.R. § 1502(14). The DSEIS is flawed because of its failure to evaluate consequences of the no-action alternative by ignoring some reasonable consequences, for example, repowering, its dismissal of certain consequences as infeasible or available only to a limited extent (for example, imported power, wind power, and conservation and efficiency) and its total lack of any attempt to compare in any systematic or quantitative way the environmental impacts of the no-action alternative with the considerable environmental consequences of license renewal and plant operation for an additional 20 years.

As Contention 33 and its bases make abundantly clear, if the DSEIS were to properly evaluate the consequences of the no-action alternative - i.e,, eliminating Indian Point as an option for energy production after 2013 and 2015 - properly evaluate the steps that would likely be taken in such a case and compare the likely consequences of the no-action alternative to likely consequences of license renewal, the ultimate decision-maker and the public would have a substantial basis to reach the conclusion that license renewal for Indian Point will produce severe adverse environmental impacts that would be avoided if the no-action alternative were chosen. That is precisely the analysis that the DSEIS and SEIS are supposed to assist. The DSEIS's no-action alternative is not currently the thorough and even-handed analysis of the proposed license renewal for Indian Point that is required by NEPA and that should be part of the duty that the Staff of an independent regulatory agency is required to meet.

CONTENTION 34 Entergy and Staff raise a series of inapposite arguments to avoid a site-specific evaluation of the environmental impacts caused by a change in the underpinnings of the Commission's Waste Confidence decision and the interaction of those changes with the proposed extended operation of the reactors. Entergy argues that the State of New York has not alleged material differences between the ER and DSEIS with regard to the issue underlying Contention 34 such that the State can raise a NEPA contention on this issue. Entergy Answer at 57-58. This argument is factually inaccurate. Since publication of the ER, new and significant information has come into existence concerning the Commission's finding regarding how long spent fuel may have to be stored at the Indian Point site. Thus, the ER could not be faulted for failing to discuss new and significant information that came into existence after publication of the ER. However, the new and significant information became public before the Staff completed the DSEIS and yet the DSEIS does not discuss the implications of this new and significant information although it was required to do so pursuant to 10 C.F.R. § 51.95(c)(4)("In order to make its recommendation and final conclusion on the proposed action, the NRC staff..

shall integrate the conclusions, as amplified by ... any significant new information"). In addition, unlike the ER requirements, which are solely the product of NRC regulations, the duty on Staff to consider new and significant information is also imposed by NEPA and the CEQ regulations implementing NEPA. See 40 C.F.R. § 1502.9(C)(1)(i). Thus, it was not until the DSEIS was published that the State could file a contention based on a failure of the DSEIS to fully discuss the environmental implications of the Commission's finding on October 9, 2008 that it no longer believed there was a basis to conclude that there would be a place to store the spent fuel generated during extended operation following the expiration of an extended operating license.

Entergy's second objection to Contention 34 is based on a misunderstanding of what the Commission has said about spent fuel storage at reactor sites and what has changed. In adopting

§ 51.23 the Commission concluded, inter alia, that:

reasonable assurance that at least one mined geologic repository will be available within the first quarter of the twenty-first century, and sufficient repository capacity will be available within 30 years beyond the licensed life for operation of any reactor to dispose of the commercial high-level waste and spent fuel originating in such reactor and generated up to that time.

10 C.F.R. § 51.23(a). On October 9, 2008, the Commission concluded that its prior belief that there would be storage available for spent fuel off site within 30 years after expiration of an extended license, was no longer valid. That is very significant new information with regard to Dr. Sheppard's analysis of the land use impacts from continued use of the Indian Point site for nuclear activities.6 In fact, Dr. Sheppard has concluded the impact on property values could be as much as $300-400 million. See Declaration and Report of Stephen C. Sheppard entitled PotentialImpacts of Indian Point Relicensing with Delayed Site Reclamation, submitted in support of Contention 34.

Entergy then argues that Contention 34 does not meet the contention admissibility rules because it is a direct challenge to the prohibition on considering environmental impacts from 6 Unlike radiation environmental impacts which are Category 1 issues and as to which no challenge is allowed with regard to the ER for failure to include new and significant information (Vermont Yankee, LBP-06-20 at 21 (September 22, 2006), Contention 33 relates to a Category 2

.issue, impact on land use values, as this Board has already ruled in admitting Contention 17.

spent fuel storage in § 51.23. But that prohibition, as written, is explicitly premised on certain findings made by the Commission which are made a part of regulation:

the Commission believes there is reasonable assurance that at least one mined geologic repository will be available within the first quarter of the-twenty-first century, and sufficient. repository capacity will be available within 30 years

.beyond the licensed life for operation of any reactor to dispose of the commercial high-level waste and spent fuel originating in such reactor and generated up to that time.

10 C.F.R. § 51.23(a). On October 9, 2008 Commission found that these prior findings upon which § 51.23 is based are no longer valid. First, it concluded that the current waste repository planned for Yucca is limited by law to holding only as much spent fuel as reactors will create without license extension. 73 Fed. Reg. 59551, 59553-54 (Oct. 9, 2008). Second, the Commission admitted that it could not now say with any confidence when the storage capacity for handling the waste generated during license extension will be available. Id. at 59561. Thus, the Commission now agrees that the time period for storage of spent fuel at Indian Point from its extended operation is not 30 years or any other specific date. As Dr. Sheppard makes clear, that uncertainty will have a profound impact on property values off-site, an issue which the Commission never directly addresses in its consideration of § 51.23. If a rule, on its face, is based on a finding that the Commission has rejected, the rule can no longer bar consideration of a critical issue such as land use impacts, particularly since the issue is a Category 2 issue and thus must be considered in the license renewal proceeding, as this Board has already ruled.

What is significant about the October 9, 2008 statement by the Commission is that, while proposing possible changes to § 51.23, it asserts, concludes, and admits, that certain previous findings it made are no longer correct. Contention 34 is not based on the existence of a proposed rule change, but rather on the affirmative declaration by the Commission regarding the future treatment of spent fuel generated during extended operation. Thus, Entergy's assertion that Contention 34 interferes with an ongoing rulemaking in violation of 10 C.F.R.

§ 2.309(f)(iii) is wrong. The Commission is not holding a rulemaking to decide whether it has correctly concluded that spent fuel will remain at the site of extended license plants indefinitely.

It has reached that conclusion and it is that conclusion which is the foundation of Contention 34.

Neither Staff nor Entergy, in objecting to the State's Contention 34, point to any place in the GEIS or in the Waste Confidence decisions where socioeconomic impacts of long-term storage on off-site land use have been addressed. 10 C.F.R. § 51.95 states that in order to make its recommendation and final conclusion on the proposed action, the NRC staff, adjudicatory officers, and Commission shall integrate the conclusions ... in the generic environmental impact statement for issues designated Category 1 (with the exception of offsite radiologicalimpacts for collective effects and the disposal of spent fuel and high level waste) or resolved Category 2, information developed for those open Category 2 issues applicable to the plant in accordance with § 51.53(c)(3)(ii), and any significant new information.

10 C.F.R. § 51.95(c)(4)(emphasis added). Simply put, the Commission did not consider this issue. The standard for assessing "significant new information" is discussed in more detail above. Contention 34 addresses significant new information that is not exempt from analysis by

§ 51.95 or any other regulation, as the impacts of long-term waste storage on off-site land use is not an offsite radiological impact. The Commission, in formulating § 51.95(c)(4), placed an affirmative burden on Staff to consider significant new information, which would include statements made by the Commission in other contexts - here, in a rulemaking - that bear directly on Indian Point. CEQ regulations also place this obligation upon the Commission and its Staff. 40 C.F.R. § 1509(c)(1)(i).

The State is concerned with findings the Commission posted to the Federal Register which are conclusory in nature and change underpinnings of many of the principles which control which issues the public can raise in this proceeding. Had the State sought to raise this issue before December 22, Staff would have objected that the State was premature. Had the

.State sought to wait until the publication of the FEIS or after the issuance of the requested permit, Staff would object that the State was too late. The State submits that there is no time other than the present to examine issues related to long-term waste storage on land use values around Indian Point. The State, County, and citizens deserve the opportunity to compel the NRC to squarely address the impact of the extended storage of radioactive waste on the Indian Point site.

ENTERGY'S MOOTNESS ARGUMENT IS UNTIMELY, PROCEDURALLY IMPROPER, AND WITHOUT MERIT Another specious argument, advanced by Entergy, has to do with the alleged "mootness" of certain already admitted contentions. As required by 10 C.F.R. § 2.323, New York State will, within the 10 days provided for filing motions, file a motion to strike those portions of the Entergy Response which argue that certain contentions are moot because (1) while Entergy's Answer fails to acknowledge this fact, the claim of mootness is anissue which can only be raised by motion and no motion has been filed; (2) the basis for the alleged mootness is the filing of the DSEIS, an event which occurred over three months ago, and thus a motion based on that event had to be filed by early January 2009 (10 C.F.R. § 2.323(a)); and (3) before a motion of any kind can be filed the party must consult with other parties, which has not been done (10 C.F.R. § 2.323(b)). Entergy,did not offer the State the opportunity to.discuss such possibilities beforeit filed its untimely 'request. However, because the basis for Entergy's mootness assertion is seriously flawed, even if raising mootness in the manner attempted here were

.acceptable, it would not be warranted in this case. The State addresses the merits of Entergy's mootness argument here but seeks, through a separate motion, to have Entergy's mootness argument stricken and asks the Board to disregard the below response if the State's motion is granted.

Contention 9 Is Not Moot Entergy alleges that Contention 9 is now moot because the Staff has done the work that Entergy failed to do by considering energy conservation and renewable resources in the context of the no-action alternative. In addition Entergy's failure to meet the minimum requirements for a legally adequate ERhas significant consequences for Entergy. Pursuant to 10 C.F.R. Section 2.109(b) an applicant is entitled to an extension of its operating license until proceedings on the application have been completed* if and only if the applicant "files a sufficient application for renewal of either an operating license or a combined license at least 5 years before the expiration of the existing license." Since an application that fails to include required information in the ER is not sufficient, Entergy would be denied the benefits of Section 2.109(b).

In addition, the DSEIS does not moot Contention 9 because, as noted throughout Contention 9 and Contention 3)3, and as discussed infra with regard to Contention 17 mootness, an inadequate consideration of an issue does not eliminate the claim that the analyses of the issues were inadequate. For example, Entergy glides over the extremely important point that the DSEIS fails to recognize that energy conservation and other energy alternatives could fill the gap if either unit of Indian Point were not relicensed, and that the negligible impacts of these alternatives are significantly less than the substantial adverse environmental impacts associated with operation of either Indian Point unit.

Contention 17 Is Not Moot Entergy alleges that Contention 17 is now moot because, contrary to the total failure of the ER to consider the positive environmental impacts on local land values of the no action alternative, the DSEIS makes a glancing reference to such impacts. First, Contention 17 is not based on an assertion that just any mention of the impact would suffice. Rather it contains a detailed analysis, supported by the expert opinion of Dr. Stephen Sheppard and several published studies and reports, for the proposition not onlythat the shutdown and full decommissioning of Indian Point will substantially enhance the value of adjacent land, but that the impact will be substantial - in excess of $500 million. The Contention as stated does not merely criticize the ER for ignoring this impact but also because it "understates the adverse impact on off-site land use" and challenges the ER because it asserts that license renewal "will have a significant positive economic impact on the communities surrounding the station." The DSEIS manages a mere two sentences on the issue of off-site land value impacts, makes an ambiguous statement about one study, and totally ignores the previously-submitted expert opinion and references presented by Dr. Sheppard. See DSEIS at 8-30. Staff states only that

"[t]he combined increase in property values and increased taxes could have a noticeable effect on some area homeowners and business" but observes that a study of this issue performed by Levitan and Associates did not conclude whether the net effect would be positive or negative.

DSEIS at 8-30. NEPA does not simply ask a federal agency to perform a stenographic function and blandly report whether another independent body has drawn a conclusion about a specific issue, however. See, e.g., Calvert Cliffs' CoordinatingCommittee v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971). NEPA requires agencies themselves to take a "hard look" and make an evaluation of the impacts. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-50 (1989). Staff' s passing reference to an equivocal statement in a report not conducted by Staff does not satisfy NEPA's hard look requirement, and fails to meet the Staff s obligation to include in the DSEIS "consideration of major points of view concerning the environmental impacts of the proposed action and the alternatives, and contain an 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).

CONCLUSION The Commissioners, have underscored the importance of public participation in licensing proceedings. For example:

Among the very first actions taken by the Nuclear Regulatory Commission (NRC) following its creation in 1975 was an affirmation of the fundamental importance it attributes to public participationin the Commission's adjudicatoryprocesses. Public participation, the Commission said, "is a vital ingredient to the open and full consideration of licensing issues and in establishing public confidence in the sound discharge of the important duties which have been entrusted to us." N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI- 75-1, 1 NRC 1, 2 (1975).

One of the cornerstones of the NRC's regulatory approach has always been ensuring that its review processes and decisionmaking are open, understandable, and accessible to all interested parties.

Statement of Considerations, Changes to Adjudicatory Process ("SOC"), 69 Fed. Reg. 2182 (Jan. 14, 2004) (emphasis added). In adopting the current version of 10 C.F.R. Part 2 the Commission emphasized that the process should be "fair" (mentioning the concept 11 times in the SOC). This emphasis reflects Congress's provision for public participation in licensing proceedings. 42 U.S.C. § 2239; see also 103 Cong. Rec. at 4093-94 (Mar. 21, 1957) (statement of Senator Anderson emphasizing the importance of public participation in licensing proceedings).

A review of Entergy's Answer and major portions of the Staff s Answer reveals no recognition of the importance of public participation, no effort to make the process open or accessible, and no element of fairness. Rather, these Answers reflect a crabbed view of the Commission's regulations and are designed to curtail the State's ability to participate in this proceeding.7 Such attenuated pleadings are inconsistent with the Atomic Energy Act, 42 U.S.C.

§.§ 2021(1) and 2239, waste the resources of the Board and the parties, and undermine the National Environmental Policy Act.

7 For example, Staff deems the DSEIS contentions "late filed" contentions when they are filed within the time explicitly allowed by theBoard's order in this case. Staff Answer at 6. By attempting to characterize the contention as "late filed," Staff distorts the true nature of the New York State filing. Such distortions are unfortunate and counterproductive when they occur by the Staff of an agency which is charged with the responsibility of implementing the National Environmental Policy Act and the public's statutorily-protected right to a hearing in license proceedings. 42 U.S.C. § 2239; see also 103 Cong. Rec. at 4093-94 (Mar. 21, 1957).

For the above reasons, the Board should admit Contentions 17-A, 33, and 34, and should either admit Contentions 12-A and 16-A or make clear that previously-admitted Contentions 12 and 16 now include a challenge to the DSEIS on the grounds specified above.

Respectfully submitted, March 31, 2009 J/ce A. Dean 1 Feiner John J. Sipos Assistant Attorneys General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251 john.siposgoag.state.ny.us 1anice.deanaoag.state.ny.us UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

DECLARATION OF SERVICE Pursuant to 28 U.S.C. § 1746, Janice A. Dean hereby declares upon penalty of perjury that:

1. 1 am over 18 years old and am an employee of the Office of the Attorney General for the State of New York, counsel for the petitioner State of New York.

2. On March 31, 2009, I forwarded the attached reply to the responses of NRC and Entergy to the State of New York's DSEIS contentions to the following judges, law clerk, offices, organizations, attorneys, and/or petitioners at the e-mail and street addresses that follow.

Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Administrative Judge U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 3 F23 11545 Rockville Pike Two White Flint North Rockville, MD 20852-2738 11545 Rockville Pike Rockville, MD 20852-2738 Zachary S. Kahn, Esq.

Lawrence.McDade@nrc.gov Law Clerk Atomic Safety and Licensing Board Panel Richard E. Wardwell U.S. Nuclear Regulatory Commission Administrative Judge Mailstop 3 F23 Atomic Safety and Licensing Board Panel Two White Flint North U.S. Nuclear Regulatory Commission 11545 Rockville Pike Mailstop 3 F23 Rockville, MD 20852-2738 Two White Flint North Zachary.Kahn@nrc.gov 11545 Rockville Pike Rockville, MD 20852-2738 Office of Commission Appellate Adjudication Richard.Wardwell@nrc.gov U.S. Nuclear Regulatory Commission Mailstop 16 G4 Kaye D. Lathrop One White Flint North Administrative Judge 11555 Rockville Pike Atomic Safety and Licensing Board Panel Rockville, MD 20852-2738 U.S. Nuclear Regulatory Commission ocaamail@nrc.gov 190 Cedar Lane E.

Ridgway, CO 81432 Kaye.Lathrop@nrc.gov

Office of the Secretary Robert D. Snook, Esq.

Attn: Rulemaking and Adjudications Staff Assistant Attorney General U.S. Nuclear Regulatory Commission Office of the Attorney General Mailstop 3 F23 State of Connecticut Two White Flint North 55 Elm Street 11545 Rockville Pike P.O. Box 120 Rockville, MD 20852-2738 Hartford, CT 06141-0120 hearingdocket@nrc.gov robert.snook@po.state.ct.us Sherwin E. Turk, Esq. Justin D. Pruyne, Esq.

David E. Roth, Esq. Assistant County Attorney Andrea Z. Jones, Esq. Office of the Westchester County Attorney Beth N. Mizuno, Esq. Michaelian Office Building Brian G. Harris, Esq. 148 Martine Avenue, 6th Floor Office of the General Counsel White Plains, NY 10601 U.S. Nuclear Regulatory Commission jdp3@westchestergov.com Mailstop 15 D21 One White Flint North Daniel E. O'Neill, Mayor 11555 Rockville Pike James Seirmarco, M.S.

Rockville, MD 20852-2738 Village of Buchanan set@nrc.gov Municipal Building der@nrc.gov 236 Tate Avenue jessica.bielecki@nrc.gov Buchanan, NY 10511-1298 bnml@nrc.gov vob@bestweb.net marcia.simon@nrc.gov brian.harris@nrc.gov Daniel Riesel, Esq.

Thomas F. Wood, Esq.

Kathryn M. Sutton, Esq. Jessica Steinberg, J.D.

Paul M. Bessette, Esq. Sive, Paget & Riesel, P.C.

Martin J. O'Neill, Esq. 460 Park Avenue Mauri T. Lemoncelli, Esq. New York, NY 10022 Morgan, Lewis & Bockius LLP driesel@sprlaw.com 1111 Pennsylvania Avenue, NW jsteinberg@sprlaw.com Washington, DC 20004 ksutton@morganlewis.com Michael J. Delaney, Esq.

pbessette@morganlewis.com Vice President - Energy Department martin.o'neill@morganlewis.com New York City Economic Development Corporation mlemoncelli@morganlewis.com (NYCEDC) cadams@morganlewis.com 110 William Street New York, NY 10038 Elise N. Zoli, Esq. mdelaney@nycedc.com Goodwin Procter, LLP Exchange Place Manna Jo Greene, Director 53 State Street Hudson River Sloop Clearwater, Inc.

Boston, MA 02109 112 Little Market St.

ezoli@goodwinprocter.com Poughkeepsie, NY 12601 Mannajo@clearwater.org William C. Dennis, Esq.

Assistant General Counsel Stephen Filler, Esq.

Entergy Nuclear Operations, Inc. Board Member 440 Hamilton Avenue Hudson River Sloop Clearwater, Inc.

White Plains, NY 10601 Suite 222 wdennis@entergy.com 303 South Broadway Tarrytown, NY 10591 sfiller@nylawline.com

Diane Curran, Esq.

Harmon, Curran, Spielberg & Eisenberg, LLP Suite 600 1726 M Street, NW Washington, DC 20036 dcurran@harmoncurran.com Phillip Musega~s, Esq.

Victor Tafur, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

828 South Broadway Tarrytown, NY 10591 phillip@riverkeeper.org vtafur@riverkeeper.org dbrancato@riverkeeper.org Mylan L. Denerstein, Esq.

Executive Deputy Attorney General Social Justice Office of the Attorney General State of New York 2 5th floor 120 Broadway New York, NY 10271 Mylan.Denerstein@oag.state.ny.us John J. Sipos, Esq.

Assistant Attorney General Office of the Attorney General State of New York The Capitol Albany, NY 12224 John. Sipos@oag.state.ny.us Joan Leary Matthews Senior Attorney for Special Projects New York State Department of Environmental Conservation 625 Broadway, 14 th floor Albany, NY 12233-5500 jlmatthe@gw.dec.state.ny.us John Louis Parker, Esq.

Regional Attorney Office of General Counsel, Region 3 New York State Department of Environmental Conservation 21 South Putt Corners Road New Paltz, NY 1,2561-1620 jlparker@gw.dec.state.ny.us

Executed on:

March 31, 2009 New York, New York Janice A. Dean 0Office of the Attorney General State of New York 120 Broadway New York, New York 12224-0341 (212) 416-8459 Janice.Dean@oag.state.ny.us