ML072960455

Comment (27) of P. Musegaas on Behalf of Riverkeeper Re License Renewal Application for Indian Point, Units 2 and 3, in Response to Notice of Intent to Prepare an Environmental Impact Statement and Conduct Scoping Process

ML072960455
Person / Time
Site:	Indian Point, WM-00011
Issue date:	10/12/2007
From:	Musegaas P Riverkeeper
To:	Rulemaking, Directives, and Editing Branch
References
-nr, 72FR45075 00027
Download: ML072960455 (32)

Text

RIVERKEEPER..

• PULE,'% 1`11 .S K 'T -VI73'Ri- ý Jý'. , f _ý_ 1-P October 12, 2007 Chief, Rules and Directives Branch Division of Administrative Services Office of Administration Mailstop T-6D59-U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 007 Re: 72 FR 45075, August 10, 2007 Environmental, Scoping Comments for Docket Nos. 50-247; 50-286

Dear Sirs:

I am hereby'submitting the attached comments on behalf of Riverkeeper, Inc. in response to the Notice of Intent to Prepare an Environmental Impact Statement and Conduct Scoping Process, filed in the Federal Register on August 10, 2007 regarding the license renewal application for- Efitergy Nuclear Operations, Inc. Indian Point NuclearGenerating Unit Nos. 2 and 3. --, Riverkeeper urges the Nuclear Regulatory Commission (NRC) staff to fully consider the following comments in its preparation of the draft Supplemental Environmental Impact Stat'ment for Indian Point 2', and 3. Riverkeeper's members, local elected officials and the general public. continue to have grave--concerns regarding the continued operation of this facility, due to the environmental damage caused by. its antiquated once-thr6ugh cooling system, and leaking spent fuel pools, the vlnerability of the plant's spent fuel pools to terrorist attack and the failure of the federal. government to resolve the questibn of spent fuel , disposal at Yucca Mountain.Iidian Point is a unique plant in a unique location, the most densely populated metropolitan iegion of the United States., TheNRC must make every effort to ensure that the environmental review process for the Indian Point license renewal fully complies with NEPA and-affords the public every opportunity to provide well-inforned comments at each step, in the review. Anything less will further degradepUblic confi'denice in the NRC's ability to independently regulate'Indian Point's operation., Riverkeeper looks forward to participating throughout the environmental review process. " Sincerely,>1, .. Phillip Musegaas.

., -- 3.Staff Attorney..

82.8 Southl Broadway, Tarrytown, NY 10591 914.478.4501 f: 914-478.4527

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• e" 9- 4 4.I Riverkeeper, Inc.October 12, 2005 Riverkeeper Comments on Environmental Scoping for the Indian Point License Renewal Proceeding, Docket Nos. 50-247, 50-286 1. The Nuclear Regulatory Commission (NRC) must include "new and significant information" regarding the environmental impacts of spent fuel storage, potential impacts of a terrorist attack, and use of renewable energy alternatives at Indian ,Point in its draft Supplemental Environmental Impact Statement (SEIS) for the Indian Point license renewal rather than relying on an outdated Generic Environmental Impact Statement (GEIS) conducted in 1996.The GEIS is inadequate if evidence exists of material changes affecting the baseline environment since the GEIS was written. ' The heightened risk of a terrorist attack on a nuclear plant, especially Indian Point, constitutes a material change affecting an assessment of future environmental impacts during the extended license term. In addition, the failure of the Yucca Mountain repository, the resulting spent fuel disposal crisis, and significant progress in the implementation of renewable energy technologies are all material changes that must be assessed in the NEPA review for Indian Point. The NRC's continued reliance on the 1996 GEIS, coupled with its refusal to consider the aforementioned changes, violates the fundamental requirements of NEPA.It has been 11 years since the GEIS was written. In that time the United States has experienced the worst terrorist attack on American soil in our history, leading to a heightened risk of a terrorist attack on a nuclear power plant.. In addition, the earliest likely completion date for the Yucca Mountain waste repository has been delayed by two decades, to 2017. The total volume and density of spent fuel stored in Indian Point's spent fuel pools continues to increase as a result. In the past 11 years the amount of spent fuel being stored in the already packed onsite pools has increased.

The population around Indian Point power plant has nearly doubled, resulting in significant traffic congestion that would prevent authorities from evacuating the residents living within the ten-mile Emergency Planning Zone (EPZ) in the event of an accident or terrorist attack.The NRC has failed to update the GEIS within the ten year period prescribed in Appendix B to Subpart A of Part 51. The most recent revised schedule for the issuance of the draft GEIS has been altered since it was proposed in a NRC Policy Issue Information Notice on June 9, 2006. The environmental review process for Indian Point's license renewal should not continue to rely on the GEIS until the NRC has completed the required ten year review and determined whether or not the GEIS will be updated.Blanco v. Burton, Slip Copy, 2006 WL 2366046 (E.D. La.); League of Wilderness Defenders

v. Marquis-Brong, 259 F.Supp.2d 1115 (U.S. Dist. Ct. Or. Apr. 2003).1 Riverkeeper, Inc.October 12, 2005 The NRC published a Notice of Intent to Prepare an Environmental Impact Statement for the License Renewal of Nuclear Power Plants and to Conduct Scoping Process on June 3, 2 2003. In the Notice, the Commission stated: "[I]n the introductory remarks to Appendix B to Subpart A of Part 51, 'Environmental Effects of Renewing the Operating License of a Nuclear Power Plant,' the Commission stated that, on a 10-year cycle, it intends to review the material in Table B-I and update it, if necessary." 3 The first 10-year cycle ended in 2006, and contrary to NRC's statements at the four public scoping meetings held in July of 2003 the GEIS Update Project is not close to being complete.On October 3, 2005 the Commission published a Notice of Extension of the Public Comment Period for Scoping Process to Prepare an EIS for the License Renewal of Nuclear.Power Plants 4 which extended the public comment period for the scoping process through December 30, 2005. The NRC's summary of the scoping comments has yet to be published.

5 On June 9, 2006, in a Policy Issue Information Notice to the Commissioners, Luis A.Reyes laid out the schedule and staff commitments for revising environmental issues to be considered in the license renewal.6 In the Notice Mr. Reyes stated that the schedule for completion of the GEIS update and the final rulemaking to 10 CFR Part 51 is 34 months from the contract placement.

Mr. Reyes laid out the following schedule: Develop draft GEIS February 2007 Develop proposed 10 CFR Part 51 rulemaking August 2007 Commissioner review SECY paper on draft GEIS November 2007 Issue draft GEIS for comment January 2008 Address public comments and public meetings October 2008.Commissioner review SECY on final GEIS January 2009 Issue. final GEIS February 2009 A. National Environmental Policy Act Requirements The National Environmental Policy Act, 42 U.S.C § 4321, et seq. ("NEPA"), mandates that federal agencies involved in activities that may have a significant impact on the environment must complete a detailed statement of the environmental impacts and project alternatives.

NEPA provides, in pertinent part, as follows: The Congress authorizes and directs that, to the fullest extent possible...

2 68 FR 33209-01 310 CFR App. B to Subpart A.4 70 FR 57628-01 5 September 18, 2007 Phone Conversation between Jennifer Davis, Environmental Project Manager in the Division of License Renewal for the U.S. Nuclear Regulatory Commission, and Marie Quintin, Legal Intern for Riverkeeper, regarding current status of GEIS for the license renewal of nuclear power plants.6 SECY-06-0134 2

Riverkeeper, Inc.October 12, 2005 (2) all agencies of the Federal Government shall (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on --(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

7 NEPA directs that federal agencies, such as the NRC, must study certain issues and that the reviewing agency must take a "hard look" at these issues, but does not direct what* result an agency must reach. Federal appellate courts have made it clear that NEPA is an important federal law and compliance is mandatory. "NEPA was, created to ensure that agencies will base decisions on detailed information regarding significant environmental impacts and that information will be available to a wide variety of concerned public and private actors. Morongo Band of Mission -Indians v. Federal Aviation Administration, 161 F.3d 569, 575 (9th Cir. 1998)" (quoted in Mississippi River Basin Alliance v. Westphal, 230 F.3d 170, 175 (5th Cir. 2000)).Thus, the fundamental goal of an evaluation under NEPA is to require responsible government agencies involved with a given project to undertake a careful and thorough analysis of the need for that project and its impacts before committing to proceed with the project. As the Tenth Circuit has held: The purpose of NEPA is to require agencies to consider environmentally significant aspects of a proposed action, and, in so doing, let the public know that the agency's decisionmaking process includes environmental concerns.

Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983); Sierra Club v. United States Dep't of Energy, 287 F.3d 1256, 1262 (10th Cir.2002).7 42 U.S.C. § 4332.3 Riverkeeper, Inc.October 12, 2005 Utahns For Better Transportation

v. United States Dept. of Transp., 305 F.3d 1152, 1 1 6 2 (1 0 th Cir. 2002).As the District of Columbia Circuit has held: "NEPA was intended to ensure that decisions about federal actions would be made only after responsible decision-makers had fully adverted to the environmental consequences of the. actions, and had decided that the public benefits flowing from the actions outweighed their environmental costs." Jones v. District of Columbia Redevelopment Land Agency, 162.U.S. App. D.C. 366, 499 F.2d 502, 512 (D.C. Cir. 1974)....Illinois Commerce Com. v. Interstate Commerce Com., 848 F.2d 1246, 1259 (D.C. Cir.1988).It is not only the government decision-makers who are to be served by an EIS, but the citizens of this nation as well. As one court noted: "The purpose of an EIS is to 'compel the decision-maker to give serious weight to environmental factors' in making choices, and to enable the public. to 'understand and consider meaningfully the factors involved.'

County of Suffolk [v. Secretary of Interior], 562 F.2d at 1375 (citing Sierra Club v.Morton, 510 F.2d 813, 819 (5th Cir. 1975))." Town of Huntington

v. Marsh, 859 F.2d 1134, 1141 (2d Cir. 1988)(enphasis added.)Environmental analysis does not necessarily end with the production of a legally compliant EIS. The agency must prepare a SEIS if"[t]here are significant new circumstances or information relevant to the environmental concerns that bear on the proposed action or its impacts."8 Agencies are advised to reexamine the original EIS every five years to determine whether a SEIS is needed. 9 B. Potential Impacts of a Terrorist Attack or Accident Nuclear power plants remain high level terrorist targets; therefore the potential environmental impacts of a terrorist attack must be assessed by NRC in the draft EIS.The 9/11 Commission Report stated that Al Qaeda considered targeting nuclear power plants in their attack, but wrongly believed the plants were heavily defended.

The Report also makes clear that on 9/11, American Airlines Flight 11 flew down the Hudson River passing the Indian Point power plant en route to the World Trade Center. '0 Despite this"new and significant" information the NRC has consistently refused to revise its security requirements to require plant security forces.to be able to defend against an air attack, or even the number of attackers that participated in 9/11.8 40 C.F.R. § 1502.9(c)(1)(ii).

9 Forty Most Asked Questions Conceming CEQ's National Environmental Policy Act Regulations, 46 FR 18036.10 National Commission on Terrorist Attacks Upon the United States ("9/11 Commission"), July 22, 2004, available at http://www.9-1 Icommission.gov/report/91 1Report.pdf, (last accessed October 10, 2007).4 Riverkeeper, Inc.October 12, 2005 NRC must assess changes in population density and traffic patterns in the draft EIS in the context of assessing the environmental impacts of an accident or attack on Indian Point that results in a radiological release. Clearly the environmental impacts on public health will be far greater if the population within the 10-mile emergency planning zone cannot be evacuated in a timely manner.Indian Point is a prime example of a plant sited in an area which has undergone tremendous population growth and development over the last thirty years since Indian Point began operating.

This increase in population density must be taken into account during the license renewal process. Roads and bridges would not be able to handle the amount of traffic leaving the 10-mile radius and beyond in the event of an accident or attack." The radiological emergency plan for Indian Point is badly flawed, unworkable and key components are unfixable, according to an independent analysis of Indian Point's emergency plans commissioned by former New York Governor George Pataki in 2003.The author of the report, former FEMA director James Lee Witt found "...the current radiological response system and capabilities are not adequate to ... protect the people from an unacceptable dose of radiation in the event of a release from Indian Point...,,12 In 2003 KLD Associates conducted a traffic study for Entergy and determined that evacuation times for the Emergency Planning Zone around Indian Point doubled since See Lawmakers Urge FEMA to Reject Recertification of Indian Point Evacuation Plans (Mid-Hudson News Network broadcast Jan. 28, 2006)(describing the emergency preparedness at Indian Point completed by former FEMA Director James Lee Witt in 2003 which uncovered deficiencies, including traffic-related challenges that would likely result during an evacuation in light of recent wind storms which seriously impeded travel flow throughout the area when one major artery was compromised, causing congestion on roadways miles away.); Press Release, Congresswoman Lowey, Lowey Urges FEMA to Reject Recertification of Indian Point Evacuation Plans (Jan. 27, 2006) (on file with author)(calling on the FEMA to refuse to recertify Indian Point evacuation plans, which have already been rejected by Westchester, Rockland, and Orange Counties. "Even in the best of circumstances, an orderly and safe evacuation of the area in the event of an accident or, worse, a terrorist attack, is impossible.

The' recent storms in the area, which blocked some roads and rendered some alert sirens inoperable, demonstrate this."); Report by the NY Public Service Commission, January 2006 Windstorm Report on Con Edison and NYSEG Electric Restoration and Communication Efforts (June 2006)(describing the state utilities' response to the January 2006 windstorm that knocked out power residential homes and businesses throughout the County were severely affected, access to roadways was blocked due to fallen trees, making it difficult of emergency responders and utility crews to work. There were 34 major roadways blocked by downed wires and fallen trees creating hazardous conditions that made driving impossible.

Over 132,000 people were affected, almost all in Westchester County; and Randi Weiner & Steve Lieberman, Multiple Accidents Close Tappan Zee, Snarl Traffic for Hours, THE JOURNAL NEWS, July 28, 2007 (reporting two accidents yesterday

-one on each side of the Tappan Zee Bridge -and a raft of fender-benders that blocked breakdown lanes and hindered commuters.

Police had to close the bridge to allow emergency vehicles to get by, police said. Though both accidents on the bridge were cleared by 4 p.m., Rockland-bound traffic didn't recover from the delays that impinged on the weekend rush hour, stalling traffic across 1-287 for hours.).12 Review of Emergency Preparedness ofAreas Adjacent to Indian Point and Millstone, p. viii, James Lee Witt Associates, 2003.5 Riverkeeper, Inc.October 12, 2005 1994. The original estimate was 2.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> for people to proceed with evacuation, with a total of 5.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> for complete evacuation.

KLD estimates increased mobilization time to four hours, while complete.

evacuation of the region in good weather conditions could take up to 9.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br /> and in snow conditions up to 12 hours1.388889e-4 days <br />0.00333 hours <br />1.984127e-5 weeks <br />4.566e-6 months <br />.'3 Shadow evacuation would increase this time.Over twenty years ago, one of your own directors found the placement of Indian Point absurd. In 1979, Robert Ryan, the NRC's Director of the Office of State programs, stated, "I think it is insane to have a three-unit reactor on the Hudson River in Westchester County, 40 miles from Times Square, 20 miles from the Bronx... [Indian Point is] one of the most inappropriate sites in existence."'1 4 This was before an increase in population around Indian Point and before the terrorist attacks of September 11, 2001.Were Entergy applying for a license to build a new nuclear power plant where Indian Point is now located, it is unlikely they would be allowed to do so, based on its proximity to such a highly populated area.'5 In fact in the evaluation factors for stationary power reactor site applications before January 1997 the regulations state that residence within the exclusion area shall normally be prohibited.16 In exclusion areas with residents, the regulations recommend low population zones -the total number and density of which are such that there is .a reasonable probability that appropriate protective measures could be taken in their behalf in the event of a serious accident.

1 7 The regulations state where very large cities are involved, the regulations find that a greater distance may be necessary because of total integrated population dose consideration.

18 The regulations for reactors built after 1997 require that every site must have an exclusion area and a low population zone.1 9 These regulations define low population zone as "the area immediately surrounding the exclusion area which contains residents, the total number and density of which are such that there is a reasonable probability that appropriate protective measures could be taken in their behalf in the event of a serious accident." 2 0 There are 300,000 people living within the ten-mile EPZ of Indian point and the only means of evacuation are primarily one and two lane roads. Theregulations do not specify a permissible population density or total population within this zone because the situation may vary from case to case.2 1 The regulations go on to say whether a specific number of people can, for example, be evacuated from a specific area, or instructed to take shelter, on a timely basis will depend on many factors such as location, number and size of highways, scope and extent of advance planning, and actual 13Indian Point Energy Center Evacuation Time Estimate, Tbl. 1-1, p. 1-12, KLD Associates, Inc., 2003.14 Report of the Office of the Chief Counsel on Emergency Preparedness to the President's Commission on the Accident at Three Mile Island, October 31, 1979, p. 5.15 See 10 CFR Pts. 100.3, 100.10(b), 100.11, & 100.21(h).

16 10 CFR 100.3.1 10 CFR 100.10(b).

18 Id.'9 10 CFR 100.21(h).

20 10 CFR 50.2.21 id.6 Riverkeeper, Inc.October 12, 2005 distribution of residents within the area.2 2 As far as Indian Point is concerned, there is no low population zone, therefore if Entergy were applying to build a new nuclear power plant as opposed to a relicensing it would likely not be permitted.

C. The Long-term Storage of Spent Fuel Exempting the issue of spent fuel storage from consideration during the license renewal process is completely unreasonable, considering the significant safety, security, and disposal concerns at issue.i. Failure of Yucca Mountain Repository Given the continued failure of the federal government to establish a long term repository for nuclear waste at Yucca Mountain, the safety, security, and environmental issues arising from storing spent nuclear fuel should be addressed during the license renewal process, when other aspects of the plant's extended operation are being reviewed.Alternatively, even if Yucca Mountain is eventually approved and put into use, there is only enough space in the repository to store spent fuel produced by all nuclear plants in the U.S. until 2011. At that point the repository will reach its capacity.2 3 As a result, all the spent fuel produced during the additional twenty-year life span of a relicensed plant will have to be stored onsite, or in a second, as yet unnamed repository that is potentially decades away from approval.Although interim storage is ongoing at reactor sites, it is not a means of permanent disposition of spent fuel. Indeed, spent fuel was never intended to be stored permanently at these sites. The federal Department of Energy (DOE) was required by the Nuclear Waste Policy Act to begin taking ownership of spent nuclear fuel from nuclear plant sites starting in January 1998. At present, the best guess for Yucca Mountain's opening is 2017. DOE has yet to submit its license application for Yucca Mountain to the NRC for approval, a proceeding which will undoubtedly result in protracted litigation and opposition from the state of Nevada, public stakeholder groups and additional states through which the waste would be transported on its way to Yucca Mountain.Under current Yucca Mountain planning, it will take decades to move spent nuclear fuel off of existing plant sites in large quantities.

For example, if Yucca opens on schedule in 2017, and if Yucca's statutory limit of 70,000 tons were increased, and if roughly 3,000 metric tons of spent nuclear fuel (SNF) and high-level waste (HLW) are transported there each year then shipments from existing plants would continue until 2054. Consequently, regardless of whether Yucca Mountain opens on schedule or is delayed, interim storage of spent nuclear fuel either at reactors or at one or more consolidated sites will be necessary for at least the next 40 years. Moreover, it is important to note that no 22 Id.23 App. A, Thl. A-7, Vol. II, Final Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High'Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, February, 2002.7 Riverkeeper, Inc.October 12, 2005 consolidated storage facility can eliminate the need for spent nuclear fuel storage at reactor sites.2 4 The potential environmental impacts of storing spent fuel onsite for an additional twenty years are also off the table during relicensing, due to the NRC's "Finding of No Significant Environmental Impact" (FONSI) that applies to all currently licensed ISFSIs.(See 10 CFR §51.23(a))

The FONSI can be extended by the NRC for up to 30 years beyond the licensed term of an operating plant, including the twenty-year renewal term.This means that the NRC has the discretion to independently regulate the storage of spent fuel for fifty years after the renewal of an operating license.ii. Inventory and Storage of Spent Fuel at Indian Point The reactors of Indian Point 2 & 3 each contain 200 fuel assemblies when they are in operation.

The current refueling/fuel outage cycle is every two years on a rotational basis, meaning that once a year, one of the reactors is refueled.

In a typical refueling, about eighty assemblies, or forty percent of the total needed to power the reactor, are removed and replaced.

Each year, then, about 80 assemblies are moved into the spent fuel pools. This equals about 55 tons of spent fuel generated each year that the plant operates.2 5 Based on these figures, Indian Point will generate an additional 440 tons of spent nuclear fuel by the time the license for Indian Point 2 expires in 2013. We can assume that Indian Point 3 will probably require another refueling in the two years remaining on its license period, accounting for another 55 tons of spent fuel. In total, Indian Point will have accumulated over 2,000 tons of high level radioactive waste onsite under the current licenses for Indian Point 2 & 3. Twenty more years of operation will add an additional 1,000 tons of spent fuel to the mix. Indian Point has already exceeded its allotted capacity at Yucca Mountain, years before the repository is likely to open. In fact, only 60-70% of the total amount of SNF generated at Indian Point during the initial licensing 24 See John Ahearne et al., The Nuclear Energy Study Group of the American Physical Society: Consolidated Interim Storage of Commercial Spent Nuclear Fuel: A Technical and Programmatic Assessment, February 2007, available at http://www.aps.org/policv/reports/popa-reports/upload/Energy-2007-Report-InterimStorage.pdf.

25 Memorandum from Phillip Musegaas, Policy Analyst for Riverkeeper, to Alex Matthiessen, Executive Director, Riverkeeper, re: August 23, 2005 Phone Conversation between Jim Steets, Communications Director for Entergy Nuclear Northeast, and Phillip Musegaas, Policy Analyst for Riverkeeper, regarding current inventory of spent nuclear fuel at Indian Point 2 & 3. (Aug. 24, 2005) (on file with author). Jim Steets stated that 160 fuel assemblies from Unit 1 remain onsite in a separate fuel pool, each weighing 1,015 lbs. There are currently approximately 1,000 assemblies of spent fuel stored in each of the fuel pools for units 2 and 3 totaling 2,000 assemblies.

Each fuel assembly weighs 1,450 lbs, equal to approximately Y4 ton. Therefore, there are roughly 1,500 tons of spent nuclear fuel accumulated in the twb pools. This does not take into account the spent fuel stored onsite from Unit 1, which equals app. 80 tons. Note Mr. Steets'quoted weight of 1450 lbs. per fuel assembly was cross checked against the DOE's database on commercial spent fuel, which states that a fuel assembly's total weight is 658 kg, equaling 1450.6 lbs. See Integrated Data Base Report-1996, U.S. Spent Nuclear Fuel and Radioactive Waste Inventories, Projections and Characteristics, Revision 13, December 1997, U.S. Department of Energy, Office of Environmental Management, available at http://web.em.doe.gov/idb97/contents.html (last accessed August 24, 2005).8 Riverkeeper, Inc.October 12, 2005 period will be shipped to Yucca Mountain, assuming the repository eventually becomes operational.

The remaining 30-40% will have to be stored onsite. According to the FEIS prepared by DOE for Yucca Mountain, the repository can only accept 1,283 tons of SNF from Indian Point. At that point, assuming all other plants' shipments follow DOE projections, thie repository will have reachedits statutorily mandated capacity of 63,000 metric tons of high level waste.2 6 It logically follows that all SNF generated from 2005 to 2015, when IP3's current license expires, will have to be stored at the plant, as well as all SNF that will potentially be produced if IP's license is renewed for an additional twenty years by the NRC.Entergy's plan to begin transferring SNF from the fuel pools to dry cask storage has been plagued with continual delays since Entergy first committed to transferring fuel to dry cask storage in 2004. As of October 2007, Entergy still has not begun the transfer process. In fact, Entergy has not even begun required "dry runs" of the fuel transfer process. Entergy must transfer a certain amount of spent fuel from the IP2 pool before spring 2008, the next refueling outage in order to have enough space to conduct a full-core offload during refueling.

It remains unclear whether the NRC will allow Entergy to refuel IP2 in the event the fuel transfer has not begun by that time. In addition, the unlined, leaking IP 1 spent fuel pool will remain full until after the transfer of spent fuel from IP2 is complete.

The NRC must assess the current and future environmental impacts of the IP I pool leak, regardless of Entergy's projected plans to empty the pool and alleviate the contamination.

It is unreasonable for the NRC to rely on Entergy's dry cask transfer plans until, at a minimum, Entergy begins transferring fuel from the IP2 pool.As of 2006, site preparation work for a new Independent Spent Fuel Storage Installation (ISFSI) Facility had begun on the north end of the IPEC Site in an area which was previously undeveloped and outside the existing Protected Area. The ISFSI Facility will contain a 96' x 208' concrete storage pad, which will provide storage locations for 78 Holtec International HI-STORM 100S(B) Casks. The HI STORM Casks will be arranged in a 6 x 13 array with 75 storage locations allocated for the casks.2 7 These dry casks will be lined up in the open, in plain view from the air and the Hudson River.Clearly, the large accumulation of spent nuclear fuel at IndianPoint presents a security and environmental risk to the entire region, even without the specter of another twenty years of operation if the plant is relicensed.

This risk, and the potential environmental impacts that could result, must be assessed by the NRC in its SEIS for Indian Point.iii. NRC must clearly state its position as to the predicted design life span of currently licensed dry casks in use at operating 26 App. A, Tbl. A-7, Vol. II, Final Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High Level Radioactive Waste at Yucca Mountain, Nye County, Nevada, February, 2002, available at http://www.ocrwm.doe.gov/documents/feis_2/vol 2/apndx a/index2_a.htm, (last accessed August 24,.2005).27 Environmental Report (ER) at pg. 3-6.9 Riverkeeper, Inc.October 12, 2005 nuclear plants, including Indian Point, and must assess the potential environmental impacts if dry casks remain loaded with spent fuel beyond their design life.The regulations state that the license term for an Independent Spent Fuel Storage 28 Installations

('ISFSI")

must not exceed 20 years from the date of issuance.

Despite this limitation, the NRC has concluded that dry cask storage is safe and reliable for up to 100 years.29 Problems with dry casks surfaced immediately within the first few years that NRC approved 16 different dry cask storage systems for general use at or away from reactors.

Internal NRC memoranda show that the NRC's certificate of compliance process has been taken over by cask manufacturers' and nuclear utilities' profit-driven pressure for expediency.31 The lack of rigorous regulatory oversight by NRC has resulted in a complete lack of field testing of cask designs. In addition, NRC has approved exemptions allowing manufacturers to build casks before receiving the certificate for compliance.

Not a single dry storage cask, once loaded, has ever been unloaded in the U.S. It remains unclear whether dry casks could be safely unloaded back into fuel storage pools or into transport casks for shipment off-site should Yucca Mountain ever become operational.

The NRC cannot reasonably rely on a hodge-podge of contradictory licensing regulations and findings as the basis for the agency's refusal to consider this issue during license renewal review. To do so violates the agency's primary mandate under the Atomic Energy Act to protect public health and safety.iv. NRC must address the findings of the National Research Council report, The Safety and Security of Commercial Spent Nuclear Fuel Storage in the SEIS for Indian Point.The 2006 study by the National Academy of Sciences on security of spent fuel storage at commercial nuclear power plants concluded that a successful terrorist attack on spent fuel pools was possible, and recommended that an assessment of current security measures for protecting spent fuel be performed by an independent organization, outside of the NRC.3 2 Based on these findings, the NRC should amend the regulations to require that security of 28 10 CFR 72.42(a).29 The Nuclear Regulatory Commission found in 1990 as part of its revised Waste Confidence Decision that spent fuel could be safely stored in spent fuel pools or dry casks without significant environmental impact for at least 100 years, see U.S. Nuclear Regulatory Commission.

Waste Confidence Decision Review. 55 Fed. Reg. 38508. September 18, 1990.30 See www.nrc.gov/waste/spent-fuel-storage/designs.html (last accessed Oct. 8, 2007).31 See Memorandum from Dr. Ross Landsman, NRC dry cask inspector for the Midwest regional office headquartered in Chicago, to Bruce L. Jorgensen, NRC Chief Decommissioning Branch, re: Attendance at Holtec Users Group Meeting (Jan. 17, 2001), available at http://www.nirs.org/radwaste/atreactorstorage/nrc holtec.pdf (last accessed Oct. 8, 2007).32 National Academy of Sciences, Safety and Security of Commercial Spent Nuclear Fuel Storage: Public Report (2006).10 Riverkeeper, Inc.October 12, 2005 spent fuel pools and dry cask storage be comprehensively assessed during the relicensing process, and that the mitigation measures recommended by the NAS study be considered in the SEIS.The committee's findings include: " Less spent fuel is at risk in an accident or attack on a dry storage cask than on a spent fuel pool.* An accident or attack on a dry cask storage facility would likely affect at most a few casks and put a few tens of metric tons of spent fuel at risk." An accident or attack on a spent fuel pool puts the entire inventory of the pool, potentially hundreds of metric tons of spent fuel, at risk.* The potential consequences of an accident or terrorist attack on a dry cask storage facility are lower than those for a spent fuel pool. There are several reasons for this difference:

1. There is less fuel in a dry cask than in a spent fuel pool and therefore less radioactive material available for release.2. Measured on a per-fuel-assembly basis, the inventories of radionuclides available for release from a dry cask are lower than those from a spent fuel pool because dry casks store older, lower decay-heat fuel.3. Radioactive material releases from a breach in a dry cask would occur through mechanical dispersion.

Such releases would be relatively small. Certain types of attacks on spent fuel pools could result in a much larger dispersal of spent fuel fragments.

Radioactive material releases from a spent fuel pool also could occur as the result of a zirconium cladding fire, which would produce radioactive aerosols.

Such fires have the potential to release large quantities of radioactive material to the environment.

• The National Research Council studies have shown that the recovery.

from an attack on a dry cask would be much easier than the recovery from an attack on a spent fuel pool.Breaches in dry casks could be temporarily plugged with radiation-absorbing materials until permanent.fixes or replacements could be made. The most significant contamination would likely be confined largely to areas near the cask storage pad and could be detected and decontaminated.

The costs of recovery could be high, however, especially if the cask could not be repaired or the spent fuel could not be removed with equipment available at the plant. A special facility might have'to be constructed or brought onto the site to transfer the damaged spent fuel to other casks.In the committee's opinion, there are several relatively simple steps that could be taken to reduce the likelihood of releases of radioactive material from dry casks in the event of a terrorist attack: 11 Riverkeeper, Inc.October 12, 2005* Dry casks were designed to ensure safe storage of spent fuel, 3 3 not to resist terrorist attacks.* The regulations for these storage systems are designed to ensure adequate passive heat removal and radiation shielding during normal operations, off-normal events, 34 and accidents.

• A terrorist attack that breached a dry cask could potentially result in the release of radioactive material from the spent fuel into the environment through one or both of the following two processes:

(1) mechanical dispersion of fuel particles or fragments; and (2) dispersion of radioactive aerosols.

The latter process would have greater offsite radiological consequences.

The regulations require that dry cask storage facilities be located within a protected area of the plant site. However, the protection requirements for these installations are lower than those for reactors and spent fuel pools.3 5* Additional surveillance could be added to dry cask storage facilities to detect and thwart ground attacks.* Certain types of cask systems could be protected against aircraft strikes by partial earthen berms. Such berms also would deflect the blasts from vehicle bombs.* Visual barriers could be placed around storage pads to prevent targeting of individual casks by aircraft or standoff weapons; these would have to be designed so that they would not trap jet fuel in the event of an aircraft attack.* The spacing of vertical casks on the storage pads can be changed, or spacers (shims) can be placed between the casks, to reduce the likelihood of cask-to-cask interactions in the event of an aircraft attack.* Relatively minor changes in the design of newly manufactured casks could be made to improve their resistance to certain types of attack scenarios.

In addition to assessing mitigation measures in the SEIS, the NRC should consider using the results of the NAS vulnerability analyses for possible upgrades of requirements in 10 C.F.R. 72 for dry casks, specifically to improve their resistance to terrorist attacks.v. The NRC must comprehensively assess the environmental impacts of the Indian Point I and 2 Spent Fuel Pool Leaks Highly radioactive water has been found leaking from Indian Point spent fuel pools into the groundwater underneath the plant and leaching into the Hudson River for years. The potential environmental impacts of the continuation of spent fuel pool leaks for an additional twenty years is alarming.

Entergy and the NRC have confirmed that Indian Point 1 spent fuel pools might also be leaking in addition to Indian Point 2 & 3, and contributing strontium-90 to the groundwater contamination.

The NRC has also stated that the radioactive contamination has reached the Hudson. The impact of these leaks on Hudson River ecosystem must be assessed, especially by increased sampling of fish, shellfish and sediment to determine if strontium-90 and cesium-137 are bioaccumulating in the environment.

33 See 10 CFR Pt. 7.1.14 10 CFR Pt. 72.35 id.12 Riverkeeper, Inc.October 12, 2005 In its Environmental Report (ER), Entergy claims the tritium contamination found in numerous onsite monitoring wells is "the result of historical pool leakage in the 1990s which has since been repaired," based on the assertion that Entergy has not been able to identify leaks in the IP2 pool liner, and the contamination is not consistent with active leakage.3 6 However, Entergy failed to note that only about 60% of the IP2 pool liner has actually been examined for leaks, due to the high density of the spent fuel storage racks and the minimal clearance between the bottom of the racks and the floor of the pool.3 7 Entergy has failed to provide any explanation in the Environmental Report as to the feasibility of examining the remainder of the pool liner for leaks. Nor does the Environmental Report address what other steps Entergy could take to find the source of the IP2 leak, if in fact it is not feasible to examine the remaining 40% of the pool liner.On the contrary, the Report suggests that because Entergy has looked for the leak and not found it, the pool must not be leaking. This is an arbitrary and illogical, conclusion without adequate factual support, and cannot be relied on by NRC in assessing the leaks in the SEIS.In addition, the claim that the contamination is not consistent with active leakage is not correct. Analysis of soil samples taken in the vicinity of the cracks in the Indian Point 2 pool wall in September 2005 indicate high levels of Cobalt-60, Cesium-134 and Cesium-137 consistent with the activity of these radionuclides in the spent fuel pool water.3 8 Another apparent contradiction between the ER and the NRC's inspection results can be found in the March 16, 2006 NRC Special Inspection Report assessing the groundwater contamination at Indian Point. Page 1 of the report states that "Entergy sampled existing"Due Diligence" wells that were developed in 2000. One of these wells, MW-Ill (last sampled for tritium in 2000 with no activity detected) was sampled on September 29, 2005. The analytical result, reported on October 5, 2005, indicated 211,000 pCi/l, tritium." 3 9 MW-i 11 is located in the IP2 transformer yard, near the IP2 fuel storage building.

If the tritium in the groundwater is indeed from "historical pool leakage in the 1990s" as Entergy claims in the Environmental Report, why was it not detected in MW-111 in 2000? These results clearly indicate that a tritium leak occurred at IP2 between 2000 and 2005. Neither NRC nor Entergy has suggested that there could be another source of tritium leakage at Indian Point 2 besides the Indian Point 2 spent fuel pool.These facts simply do not support Entergy's assertion that the Indian Point 2 pool is no longer leaking or has not leaked since the 1990s. NRC staff involved in the Indian Point 36 ER at pg. 5-6.37 Entergy's description of the groundwater investigation can be found on the New York State Emergency Management website at http://jic.semo.state.ny.us/PlantStatus/PlantStatusMain.aspx, last accessed May 30, 2007. See also NRC's website on the Indian Point leaks at http://www.nrc.gov/reactors/plant-specificitems/

indian-point/on-going-activities05.html, (last accessed May 30, 2007).38 Information obtained by Riverkeeper through a Freedom of Information Act requests, FOIA/PA 2005-0369, FOIA/PA 2006-0019.

Entergy "FSB Sample Log" was attached to an e-mail dated November 22, 2005 from Donald Croulet at Entergy to Jim Noggle of NRC, entitled "FW: Information requested by Mr.Noggle NRC." 39 Indian Point Nuclear Generating Unit 2-Special Inspection Report No. 05000247/2005011, March 16, 2006.13 Riverkeeper, Inc.October 12, 2005 groundwater investigation indicated their disagreement with Entergy on this issue, at the NRC Annual Assessment Meeting for Indian Point held on April 26, 2007.40 The issue of whether this leak is ongoing is critical to the license renewal review, since the spent fuel pools qualify as "systems, structures and components" that fall within the scope of aging management review for license renewal.4 1 The omission of these soil sample results and the above-referenced section of the NRC Special Inspection Report render this section of the ER incomplete.

The NRC must conduct a rigorous, objective analysis of both the onsite and offsite environmental impacts of these leaks. It is unreasonable for the NRC to rely on Entergy's inadequate, fatally flawed ER to prepare the SEIS.In addition, Entergy's ER does not contain any analysis regarding the potential contamination of Hudson River fish and shellfish with strontium-90 as a result of the unmonitored leak from the Indian Point 1 spent fuel pool. On January 16, 2007 the Westchester County Journal News reported that fish samples taken by Entergy in fall of 2006 showed slightly elevated levels of strontium-90 in their flesh, raising concerns that this radionuclide could potentially bioaccumulate in the Hudson River ecosystem.

4 2 Out of twelve individual fish and shellfish collected for analysis, four showed detectable levels of strontium-90.

The bones of the fish were not sampled for strontium-90, despite the fact that this type of radionuclide mimics calcium and concentrates in bones and teeth.Entergy launched its own internal investigation in response to these findings which specifically suggests that further studies of Hudson River fish are warranted.

In a January 2007 internal Entergy memorandum discussing preliminary dose assessments from Sr-90 in Hudson River fish and invertebrates, the author concludes that following a conservative analysis of fish consumption based on the 24.5 pCi/kg of Sr-90 in the white perch sample from Roseton, the maximum individual annual dose would equal 44% of the annual allowable bone dose to an Adult male.4 3 The memorandum concludes by suggesting that "While we should not discount the value originally determined by AREVA, this evaluation indicates that we must perform additional investigation in an attempt to validate and understand the 25 pCi/L recently identified at our control location in Roseton." 4 4 Despite this recommendation, no mention of the dose assessment or need for further studies is included in the ER. Given the fact that much of the Hudson River 40 Based on conversation between Jim Noggle of NRC and Phillip Musegaas of Riverkeeper during the NRC public meeting, held at Colonial Terrace in Cortlandt, New York on April 26, 2007.41 See 10 CFR 54.21. See also NUREG-1801, Rev. 1, Generic Aging Lessons Learned (GALL) Report, Nuclear Regulatory Commission, September 2005.42 "Hudson River Fish Found to Contain Radioactive Isotope," Greg Clary, January 16, 2007 Westchester County Journal News.4 3 Memorandum from S. Sandike, Sr. Chemistry Specialist to T. Bums, NEM Supervisor, "Dose Assessments from Sr-90 in the Hudson River for Fish and Invertebrates-January 2007 Results," January 17, 2007, IPEC-CHM-07-002.

44Id. at pg. 2.14 Riverkeeper, Inc.October 12, 2005 habitat in which these fish exist is designated as significant or essential under state and federal law, the omission of this data from the ER renders it incomplete.

In response to concerns raised over the adequacy of Entergy's offsite sampling program under Indian Point's Radiological Environmental Monitoring Plan (REMP), the New , York State Department of Environmental Conservation (DEC) publicly committed to an expanded radiological sampling plan in conjunction with New York's Department of Health. At a March 2, 2007 Roundtable Meeting on the Indian Point leaks, a representative of New York DEC's Bureau of Radiation Protection stated that Entergy's current sampling program under the REMP was not adequate to determine whether the groundwater leaks were affecting the Hudson River environment.

The NRC must assess the potential impacts of the Indian Point 1 strontium-90 leak on Hudson River fish and shellfish in the SEIS. The ER states that "[T]he radionuclide release is not anticipated to change environmental considerations, such as water storage, land usage, terrestrial or aquatic ecological conditions, or air quality.., as a result of license renewal activities." 4 5 This conclusion is based on an incomplete ER that fails to include the most recent results of Entergy' fish sampling under the REMP, any mention of the NYDEC expanded fish sampling plans or any analysis of potential dosage pathways to man form ingesting contaminated Hudson River fish. The NRC cannot reasonably rely on Entergy's findings in its preparation of the SEIS.NRC should assess the feasibility of requiring Entergy to move more fuel to dry casks given the condition of the IP2 pool, and the likelihood that the IP3 pool could leak during the renewal period. Moving fuel to dry cask would also lower the density of fuel in the pools, lessening the risk of a fire from an accident or attack. NRC must assess this asa reasonable mitigation measure for IP.D. Energy Alternatives Analysis The NRC must fully consider the use of alternative energy sources in its analysis of alternatives for Indian Point in order to comply with NEPA.i. The NRC must fully consider and analyze renewable energy sources together with conservation as an alternative to license renewal of Indian Point 2 and Indian Point 3 separately.

NEPA 46, CEQ regulations 4 7 , NRC regulations 4 8 and Appendix A to Part 51 mandate that the full and complete environmental impacts of the proposed action, license renewal of IP2and/or license renewal of IP3, be compared to the projected impacts, of all reasonable alternatives.

As delineated in CEQ regulations, the obligations include rigorously 4 5 ER at pgs. 5-6.46 NEPA 42 USC sec 4321 et seq.4 7 40 CFR 1502.1.48 10 CFR 51.45, 51.71, & 51.95.15 Riverkeeper, Inc.October 12, 2005 exploring and objectively evaluating all reasonable alternatives, devoting substantial treatment to each alternative, and including alternatives not within the jurisdiction of the lead agency.4 9 An accurate assessment of reasonable power alternatives to Indian Point 2 and 3 must be considered both separately and collectively.

The license renewal of IP2 is a proposed action, as is the license renewal of IP3. Not only does each proposed action need to be dealt with separately, alternatives must also be considered separately.

5 0 Throughout the Environmental Report, the applicant has presented the picture of one single applicant applying for one license renewal, when in fact two separate licenses renewals are sought, one license for Indian Point 2 and one for Indian Point 3. The current operating licenses relate to two nuclear power plants that expire at different times -IP2's license 5' expires on September 28, 2013 and IP3's license 5 2 expires on December 12, 2015. The applicant for each plant is a separate corporate entity -Entergy Nuclear Indian Point 2*, LLC and Entergy Nuclear Indian Point 3, LLC The applicants' arguments proffered in their Environmental Report state 2,158 MWe as the baseline of power that would need to be replaced in a no-action alternative (non-renewal).5 3 This is incorrect.

The NRC must consider each application separately and on its own merits. The NRC has the statutory obligation to fully consider a "no-action" alternative and replacement alternatives separately for the re-licensing of IP2 and IP3 whose ratings are 1078MWe and 108OMWe respectfully.

Entergy's application misstates the power rating for each separate license and therefore does not comply with NEPA. NRC's environmental regulations in Part 51 expressly require a review of each proposed action -that being the license renewal of IP2 and the license renewal of IP3 separately.

The regulations state that each applicant for a renewal of a nuclear plant shall submit an environmental report containing the environmental impacts of alternatives.

5 4 Entergy's combined environmental report does not allow the NRC, nor the public to consider the environmental consequences of the"no-action" alternative for each plant or the environmental consequences of the various alternatives for the replacement of generating capacity loss that would be available to a utility or other responsible energy planner for each separate entity.The applicants dismissively rule out alternative and more environmentally friendly energy sources such as wind, solar and hydroelectric power (or a combination of alternatives).

In the environmental report the applicants state that "wind, solar and 49 40 CFR 1502.14(a)

-(f).50 See also NUREG-1437 vol. 1 §§ 1.2, 1.4-& 1.8 (requiring a plant, not plants, specific review and a full analysis of alternatives at individual license renewal reviews.).

51 DPR-26.52 DPR-64." See ER §§ 7.0 &8.0.54 10 CFR §§ 51.53(c)(1)

& (2), 51.20(b)(2), 51.30(a) & 51.71(d).16 Riverkeeper, Inc.October 12, 2005 hydroelectric power are not capable of replacing the 2,158 MWe of power." 5 5 The total 2,158 MWe of power generated from the combined plants is not the operative standard to be utilized in reviewing individual plant licenses and therefore does not fulfill the applicant's responsibility under NEPA. Moreover it does not properly inform the public of the relevant standard upon which public comment should be based.The NRC must fully consider and assess the use of sustainable energy sources in conjunction with conservation and to include energy efficiency measures as an alternative.

The NRC must assess the use of a combination of renewable energy sources rather than relying on discrete sources. It is unreasonable and in violation of NEPA for the NRC to assert that the power rating of IP2 or IP3, separately or in combination, to be replaced solely by one discrete renewable energy source.ii. The NRC must fully consider the impacts from instituting additional conservation resources The NRC's environmental review regulations require that NRC consider all reasonable alternatives to the proposed license renewal action of both IP2 and IP3 and the 56 cumulative impacts of each. NRC's regulations state that applicants must include in their environmental report "the potential impacts of instituting additional conservation resources to reduce the total demand for power."'5 7 Not one of the conservation methods available in the regulations is addressed in either IP2 or IP3's Renewal Application EnVironmental Report.5 8 Rather, the applicants dismissively conclude that they have no responsibility to explore conservation options a "the conservation option by itself is not considered a reasonable replacement for the IP2 and IP3 Operating License Renewal alternatives," (the applicants again posit replacement of both IP2 and IP3's energy output as if only one license was sought to be renewed -a wholly deficient standard as previously delineated) and "conservation is neither single nor discrete, nor is it a source of generation." 5 9 The applicants' cavalier dismissal of conservation runs in contravention of NEPA as well as the NRC's own regulations.

The regulations mandate the analysis of alternatives and mitigation methods to reduce the environmental consequences of relicensing and require meaningful consideration of all reasonable mitigation and conservation methods.61 Furthermore, the CEQ regulations require a full and fair discussion of reasonable alternatives to minimize environmental impacts (conservation) and devotion of substantial treatment to each alternative.

6 2 5 5 ER § 7.5.56 10 CFR Pt. 51.57 NUREG-1473, vol. 1 at §§ 8.1 & 8.3.14.5 8 ER at § 8.3.11.59 id.60 10 CFR 51.71(d).61 See 10 CFR §§ 51.71(d), 51.95(c)(2)

& App. A to Pt. 51 at 5.62 See 40 CFR Sectionsl502.1

& 1502.14.17 Riverkeeper, Inc.October 12, 2005 Contrary to Entergy's presentation in its Environmental Report, NUREG- 1437 Volume 1, Section 8.1 does not mandate that energy conservation be addressed if and only if it could replace the MWe of IP2 or IP3. In fact it is quite the contrary.

The applicants posit that in the aforementioned regulation when the NRC discusses looking to power generation,"alternatives should be limited to single, discrete electrical sources." Such limitation does not encompass conservation as NUREG-1437 makes abundantly clear. The single, discrete limitation, as specified in the regulation is applicable, by its express terms to power generation, not power conservation.63 Additionally in the regulations, the NRC states that each of the following is a separate and distinct issue: (1) the potential environmental impacts from electrical generating sources other than nuclear license renewal; and (2) the potential impacts from instituting additional conservation resources to reduce the total demand for power.6 4 The simple discrete language used by the applicants relates to generating electricity, not to conservation:

The NRC must fully and explicitly assess all potential conservation methods separately for each license renewal in the SEIS.iii. The NRC must fully consider and evaluate, as an alternative to license renewal, the replacement of either Indian Point 2 or Indian Point 3's power generation by a portfolio of power sources inclusive of renewable sources in coordination with conservation.

NEPA, CEQ and the NRC all mandate a vigorous exploration and an objective evaluation of all reasonable alternatives to license renewals in its regulations.

6 5 The regulations also require an assessment of alternative energy sources including sustainable energy sources and energy conservation as a means of replacement for IP2 and/or IP3's current power generation.

In the environmental report, the applicants state that power generated by wind, solar, hydropower, geothermal, biomass and other technologies, conservation or a combination of alternatives "were not considered as reasonable replacement base load power generation." 6 6 Therefore, the applicants did not consider or address a replacement portfolio of power sources inclusive of sustainable sources in coordination with conservation.

The applicants' conclusions simply fly in the face of recent independent technical and scientific studies regarding energy replacement of Indian Point. The most comprehensive study directly on issue is the National Academy of Sciences (NAS) June 2006 report,"Alternatives to the Indian Point Energy Center for Meeting New York's Electrical 63 NUREG-1437

§ 8.1.' NUREG-1433 at § 8.1.6542 USC 4321-4347; 40 CFR Pt. 1400; and 10 CFR Pt. 51.6 6 ER at § 7.5.18 Riverkeeper, Inc.October 12, 2005 Power Needs."67 The report ultimately concludes that even when considering the combined energy production of IP2 and IP2, the approximately 2000 MWe is replaceable, and "the committee has identified no 'technical obstacles that it believes present insurmountable barriers to the replacement of Indian Point's capacity, energy and ancillary services." 6 8 On point, the committee found that "if a decision were definitively made to close all or some part of Indian Point by a date certain, the committee anticipates that a technically feasible replacement strategy for Indian Point would be achievable" and no major disruption would-result if both IP2 and IP3 were retired at the conclusion of their current licenses in 2013 and 2015, respectively.

Furthermore, contrary to Entergy's findings, the NAS study states that an achievable replacement strategy would focus on conservation, energy efficiency, improvement of transmission infrastructure and replacement generating capacity including wind, photovoltaic, hydroelectric and other technologies such as natural gas-fired combined cycle plants. The study states that "a replacement strategy for Indian Point would most likely consist of a portfolio of the approaches discussed in this report, including investment in energy efficiency, transmission and new generation" and that regarding wind generation alone: "technically there is sufficient wind resource in New York stat to replace the Indian Point units." 6 9 Additionally, the Nuclear Research Institute and the Institute for Energy and Environmental Research recently published a summary of its book to be published in October of 2007; "Carbon Free and Nuclear Free -A Roadmap for U.S. Energy Policy." The overarching finding of the study is that a reliable U.S. electricity sector is achievable without nuclear power through a combination of conservation and alternative sustainable energy sources and thus would reduce environmental risks posed by nuclear proliferation, terrorism, severe accidents nuclear waste and uranium mining and transportation.

The report finds that wind or solar capacity individually equals between 2.5 and 3 times the entire electricity production in the U.S. and that each of,6 states have wind energy potential greater than the electricity produced by al 1103 nuclear power plants.7 0 Entergy has grounded its refusal.:to even consider a reasonable replacement generation scenario to include a portfolio of sources including renewable sources on NUREG- 143 7 VoL 1 Section 8.1. However section 8.1 is neither a regulation nor a statue, but merely guidance.

It states, in part, that the "NRC has determined that a reasonable set of alternatives should be limited to analysis of single, discrete electrical generating sources." Section 8.1 does not comply with NEPA's mandate to assess all reasonable "alternatives to the proposed action," nor does it comply with Appendix A to Part 51, Section 5, which mandates presentation of "the environmental impacts of the proposal and the alternatives in comparative form," and goes on to require that "all reasonable alternatives will be identified and considered." 10 CFR 51.71 (d) requires that the NRC willconsider and 67 The Board of Energy and Environmental Systems for the National Academy of Sciences, Alternatives to the Indian Point Energy Center for Meeting New York's Electrical Power Needs, June 2006, see Chs. 1-5.6 8 id.69 Id at pgs 59774.7 0 Available at www.ierr.org/carbonfree (last accessed Oct. 10, 2007).19 Riverkeeper, Inc.October 12, 2005 weigh "the environmental impacts of alternatives to the proposed action;" and "will, to the fullest extent practical, quantify the various factors..." Additionally, 51.71(d) states that "due consideration will be given to compliance quality standards and requirements that are imposed by ... State ... agencies." Section 8.1, in contravention of Section 51.71 (d), essentially moots New York State's September 24, 2004 adoption of a Renewable Portfolio Standard with a goal of increasing the proportion of renewable energy used by consumers to at least 25% by 2013.The above-referenced studies demonstrate the necessity and feasibility of developing and implementing energy portfolios that include renewable energy sources, conservation and energy efficiency measures.

The NRC's continued reliance on an outdated GEIS that ignores the significant progress made on energy issues is unreasonable, because it ignores the NEPA mandate to fully. consider "new and significant" information in the SEIS.iv. The NRC must compare Indian Point's cumulative detrimental contribution to climate change and environmental degradation to safe and clean renewable energy sources NEPA mandates that the full and complete environmental consequences of a proposed action (license renewals) be compared to all reasonable alternatives.71 As delineated in Sections 1502.14(a) through (f), the obligation includes rigorously exploring and objectively evaluating all reasonable alternatives, devoting substantial treatment to each and including alternatives not within the jurisdiction of the lead agency. The NRC's regulations, inclusive of Section 51.45 mandate the same. The applicants fail to meet applicable statutory and regulatory mandates by: a. failing to delineate the license renewals' negative affects on climate change;b. failing to delineate the voluminous production of carbon dioxide within the nuclear power life cycle;c. failing to address the environmental effects, including cumulative environmental impacts of planned and unplanned radiation releases and leaks;d. failing to address the cumulative environmental effects of spent fuel storage and proposed transportation; and e. failing to address the cumulative impacts which result from the incremental impact-of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such action.7 2 The applicants, at Section 8.4.3.2.1 of their Environmental Report have stated that to"produce and deliver" nuclear energy, no carbon dioxide is emitted. This statement is completely inaccurate.

The applicants have also stated that the "environmental impacts 71 40 CFR 1502.14.72 See 40 CFR 1508.7 (defining cumulative effects).20 Riverkeeper, Inc.October 12, 2005 of the continued operation of IP2. and IP3 ... are significantly smaller than impacts associated with the best case among reasonable alternatives."'

7 3 Again, this statement is simply inaccurate.

Carbon dioxide is a prime contributor to climate change. The United States Supreme Court held in Massachusetts et al v. Environmental Protection Agency, 7 4 that the U.S.government's objective analysis of the relevant science establishes that carbon dioxide precipitated global warming, threatens a precipitous rise in sea levels, severe and irreversible changes to the natural ecosystem, a significant reduction in winter snow pack, increased spread of disease and increased ferocity of weather events.. There is no.disagreement that carbon dioxide is produced in the nuclear power life cycle, whether it be in the mining and milling of uranium, the refining and enrichment of uranium into fuel, the transportation of uranium, the refurbishment and replacement of major plant structures, (inclusive of Entergy's 2011 and 2012 planned replacement of both reactor vessel heads), and the transportation and disposal of spent fuel.The NRC, in order to comply with NEPA, must present an accurate, comparison of all direct environmental and cumulative impacts of extended operation to utilization of other energy sources including renewable with and without conservation, in the draft SEISs for IP2 and IP3.2. The NRC must conduct a rigorous, objective analysis of the impacts of Indian Point's once-through cooling system on Aquatic Ecology, and should not rely on Entergy's incomplete and inaccurate Environmental Report (ER)as the basis for the SEIS.With respect to aquatic ecology, it is patently clear that Entergy's Environmental Report (ER) fails to meet the requirements set forth in 10 CFR 51.45 and 10 CFR 51.53(c).There are three main flaws in the ER in this area: 1) Current specific information prepared.by the New York State Department of Environmental Conservation (NYSDEC)has not been evaluated regarding aquatic ecology, in particular entrainment, impingement and thermal discharge impacts; 2) Important plant and animal habitats-except for endangered and threatened species-have not been evaluated; and 3) The analysis of available alternatives for reducing or avoiding adverse environmental effects on aquatic resources is grossly incomplete.

A. NRC Requirements for Assessing Aquatic Ecology The ER must assess Category 2 issues related to aquatic ecology, including entrainment, impingement and thermal discharge.

7 5 In general,,NRC regulations require that the ER"contain sufficient data to aid the Commission in its development of an independent analysis." 7 6 Specifically, ',the analyses for environmental reports shall, to the fullest 7' ER at § 8.4.3.2.1.

74 127 S.Ct. 1438, 63 ERC 2057, 167 L.Ed.2d 248 (Apr. 2007).75 10 CFR 51.53(c).76 10 CFR 51.45 (c).21 Riverkeeper, Inc.October 12, 2005 extent practicable, quantify the various factors considered.", 7 7 Moreover, the ER "should not be confined to information supporting the proposed action but should also include adverse information." 7 8 The ER must also include a discussion of the status of compliance with water quality standards, in particular "thermal and other water pollution limitations or requirements which have been imposed by Federal, State, regional,.and local agencies having responsibility for environmental protection." 7 9 Finally, the regulations require a complete analysis on available alternatives for reducing or avoiding adverse environmental effects and such analysis must "include a discussion of whether the alternatives will comply with such applicable environmental quality standards and requirements.'" 8 0 As discussed further below, Entergy's "Entrainment Analysis," the "Impingement Analysis" and the "Heat Shock Analysis" fail to evaluate and to include significant adverse information contained in NYSDEC documents, which is necessary under 10 CFR 51.45(c), (e) and 10 CFR 51.53(c).

In addition, the ER's discussion on the status of compliance with New York water quality standards, required under 10 CFR 51.45 (d), is completely at odds with the information contained in current specific information by the NYSDEC. Thus, the ER contains insufficient data and does not aid the Commission in its development of an independent analysis with regards to aquatic ecology.B. Aquatic and Riparian Ecological Communities Relying on the 1999 Draft Environmental Impact Statement regarding the renewal of the SPDES permit for Indian Point (hereinafter 1999 DEIS)81 --prepared by the prior owners of these stations-instead of consulting current information on this matter, such as the 2003 Final Environmental Impact Statement regarding the renewal of Indian Point's SPDES permit (hereinafter NYSDEC's FEIS)8 2--prepared by the NYSDEC-, the ER contains inaccurate and incomplete information on the status of aquatic and riparian ecological communities of the Hudson River.77 Id.78 See 10 CFR 51.45 (e).71 See 10 CFR 51.45 (d)." See 10 CFR 51.45 (b), (c), (d).81 Entergy has referenced this document in the ER, as follows: CHGEC (Central Hudson Gas and Electric Corporation).

1999. Consolidated Edison Company of New York, Inc., New York Power Authority, and Southern Energy New York, Draft Environmental Impact Statement for State Pollutant Discharge Elimination System Permits for Bowline Point, Indian Point 2 and 3, and Roseton Steam Electric Generating Stations.

See e.g., sections 2.14 & 4.24.82 Entergy has referenced this document in the ER, as follows:.NYSDEC (New York State Department of Environmental Conservation).

2003. Final Environmental Impact Statement Concerning the Applications to Renew SPDES Permits for the Roseton 1 and 2, Bowline 1 and 2 and Indian Point 2 and 3 Electric Generating Stations, Orange, Rockland and Westchester Counties, Hudson River Power Plants FEIS.Accepted:

June 25, 2003. See e.g., sections 2.14 & 4.24.22 Riverkeeper, Inc.October 12, 2005 For instance, the ER, in the section on "Fish Communities" (Section 2.2.5), states that"[t]he NYSDEC's FEIS noted a decline in bay anchovy abundance and suggested it was linked to power generation plant water intakes on the Hudson River [NYSDEC 2003]."83 But Entergy omits to say that the NYSDEC's FEIS also considers that "[s]everal species of fish in the Hudson River estuary, such as American shad, white perch, Atlantic tomcod and rainbow smelt, have shown trends of declining abundance." 8 4 C. Entrainment, Impingement and Heat Shock Entergy's "Entrainment Analysis," "Impingement Analysis" and "Heat Shock Analysis" (Sections 4.2.5.2 & 4.2.6 (at 4-12 and 4-13); 4.3.5.2 & 4.3.6 (at 4-17 to 4-19); 4.4.5.2 &4.4.6, respectively) also fail to evaluate the conclusions and recommendations provided in NYSDEC's FEIS. Similarly, Entergy deliberately neglects to consider the conclusion provided in the NYSDEC's Fact Sheet regarding the renewal of Indian Point's SPDES permit (hereinafter NYSDEC's Fact Sheet).Although both documents (NYSDEC's FEIS and NYSDEC Fact Sheet) have been included in the "References" section and considered in other sections of the ER, Entergy has purposely avoided an evaluation of these key NYSDEC documents in the sections that purport to develop the entrainment, impingement and thermal analyses.Furthermore, Entergy's Entrainment Analysis, Impingement Analysis, and Heat Shock Analysis fail to include significant adverse information contained in the conclusions and recommendations provided in NYSDEC's FEIS and NYSDEC's Fact Sheet, and to quantify the adverse factors, which is necessary under 10 CFR 51.45 (e), (c).Since 1975, NYSDEC has delegated authority from the Federal government to administer the SPDES program under the Clean Water Act (CWA). Accordingly, the NYSDEC evaluates and regulates the impact of the applicant's cooling system under the CWA.8 5 In addition, New York has established criteria governing thermal discharges.

8 6 NYSDEC's FEIS and NYSDEC's Fact Sheet contain the most current information by the NYSDEC regarding the applicant's environmental impacts due to entrainment, impingement, and thermal discharges.

Thus, these documents must be considered in the ER pursuant to the NRC regulations at 10 CFR 51.45 (a), (c) and 10 CFR 51.53 (c).Entrainment of Fish and Shellfish in Early Life Stages and Impingement of Fish and Shellfish in Early Life Stages Pursuant to 10 CFR 51.53(c), Entergy is required to analyze the environmental impact of the proposed action as a result of the entrainment and impingement of fish and shellfish in early life stages from its cooling system. Entergy's "Entrainment Analysis," in sections 4.2.5.2 and 4.2.6 (at 4-12 and 4-13), and the "Impingement Analysis," in section 4.3.5.2 83 ER p. 2-17.8 4 NYDEC's FEIS, p. 57.85 See CWA § 316(b).86 See 6 NYCRR Part 704.23 Riverkeeper, Inc.October 12, 2005 and 4.3.6 (at 4-17 to 4-19), however, are fatally incomplete due to the applicant's failure to evaluate vitally important NYSDEC documents.

Entergy considered entrainment and impingement impacts relying solely on the 1999 DEIS and two other reports prepared by Entergy's consultants, while entirely ignoring NYSDEC's FEIS for its "Entrainment Analysis" and "Impingement Analysis." There is no mention or consideration of the FEIS in Entergy's analyses of entrainment and impingement.

The "Entrainment Analysis" and the "Impingement Analysis" lack any discussion or consideration of two basic documents prepared by the NYSDEC: NYSDEC's Fact Sheet and NYSDEC's FEIS. Astutely, Entergy has included both documents in the pertinent "References" section (section 4.26) and also mentions these document in the "Background" discussions (and other sections of the EF). But Entergy has failed to consider these key NYSDEC documents in the required analyses pursuant to 10 CFR 51.45 and 10 CFR 51.53(c).Significantly, the NYSDEC's FEIS provides not just recommendations and conclusions regarding entrainment impacts and alternatives to minimize such impacts, but quantifies entrainment impacts that.have been ignored by Entergy. According to the NYSDEC's FEIS, the station's cumulative entrainment impact is, as follows:87 Plant Species Indian Point American Shad 13,380,000 Bay Anchovy 326,666,667 River Herring 466,666,667 Striped Bass 158,000,000 White Perch 243,333,333 Total 1,207,713,334 NYSDEC's FEIS concludes that the billions of fish that are killed by the stations each year represent a significant mortality and are yet another stress on the River's fish community.

8 8 The FEIS also notes, contrary to Entergy's assertions, that although the primary cause of these population changes cannot conclusively be attributed entirely to the operation of these stations, the mortality that they cause must be taken into account when assessing these population declines.8 9 The NYSDEC also states, What is clear from the data and analyses presented in the DEIS is that entrainment and impingement, primarily the former, are eliminating a significant portion of the above-listed species in their egg and larval forms, as well as many more species which spawn or spend part of their life stages in the lower Hudson River.90 87 See NYSDEC's FEIS, Table 1. Estimated Average Numbers of Selected Fish Species Entrained Annually at Roseton, Indian Point, and Bowline Stations, Based on In-plant Abundance Sampling, 1981-1987.88 Id. p. 58.89 Id.9 0°d. p. 59.24 Riverkeeper, Inc.October 12, 2005 Furthermore, the NYSDEC has determined not to rely on the fish population models presented in the 1999 DEIS to make conclusions for the FEIS or for the SPDES permits to be issued for the stations.9 1 Instead, NYSDEC has concluded that "the impacts associated with power plants are more comparable to habitat degradation; the entire natural community is impacted." 9 2 In addition, NYSDEC's Fact Sheet, among other important findings, provides the following conclusion regarding entrainment and impingement at Indian Point that has been totally ignored by Entergy and must be reviewed to completely assess environmental impacts: Each year Indian Point Units 2 and 3 (collectively "Indian Point") cause the mortality of more than a billionfishfrom entrainment of various life stages offishes through the plant and impingement offishes on intake screens. ... Losses at Indian Point are distributed primarily among 7 species of fish, including bay anchovy, striped bass, white perch, blueback herring, Atlantic tomcod, alewife, and American shad. Of these, Atlantic tomcod, American shad, and white perch numbers are known to be declining in the Hudson River ... Thus, current losses of various life stages offishes are substantial.

9 3 D. Heat Shock Pursuant to 10 CFR 51.53(c), Entergy is also required to analyze the environmental impact of heat shock from its once-through cooling system. Entergy's Analysis of Environmental Impact in connection with heat shock, however, is incomplete and must not be relied on by NRC in preparing the SEIS. As with the entrainment and impingement analyses, the "Thermal Discharge Analysis," in sections 4.4.5.2 & 4.4.6, lacks any discussion or consideration of NYSDEC's FEIS or NYSDEC's Fact Sheet.Some of NYSDEC's findings, recommendations and conclusion in the FEIS regarding thermal impacts that have been entirely dismissed by Entergy are: Indian Point: As of the 1987-1992 SPDES permit term, thermal discharges from Indian Point did not meet applicable thermal criteria....

These provisions alone [in the SPDES permit based on the Hudson River Settlement Agreement and those in subsequent Consent Orders], however, are not sufficient for Indian Point to meet thermal criteria.

Thermal modeling indicates that the thermal discharge from Indian Point. causes water temperatures to rise more than allowed, which is four degrees (F.)over the temperature that existed before the addition of heat, or a 9' Id. p. 60.92Id. pp. 53-54 93 See NYSDEC's Fact Sheet, Attachment B, p. 1 of 8.25 Riverkeeper, Inc.October 12, 2005 maximum of 83oF, whichever is less, in the estuary cross sections specified in 6 NYCRR §704.2(b)(5).

A mixing zone was not specified in the previous SPDES permit for the Indian Point facility.9 4 Thermal discharges were inadequately addressed in the DEIS. The DEIS asserts, with no supporting evidence, that "... [t]he surface water orientation of the plume allows a zone of passage in the lower portions of the water column, the preferred habitat of the indigenous species." Other data and analyses cast doubt on this assertion.

9 5 Given the extent of warming shown ... in the HydroQual graphs, combined with the recent dramatic declines in tomcod and rainbow smelt as discussed previously, the Department believes it prudent to seek additional thermal discharge data for each facility, including a mixing zone analysis, and anticipates requiring triaxial thermal studies as conditions to each of the SPDES renewals.

Depending on the results of those analyses, additional controls may be required to minimize thermal discharges.

96 NYSDEC's Fact Sheet also provides critical facts and analysis regarding the stations'thermal impacts that have been deliberately ignored by Entergy, such as: Under Section 316(a) of the Clean Water Act (CWA), .a permittee may submit a demonstration that its thermal discharge does not threaten the survival of indigenous aquatic populations even if it does not meet state water quality criteria.

Such a study was prepared in 1978 by the prior owners of the Indian Point units, but it was superseded by provisions of the 1981 -1991 Hudson River Settlement Agreement and subsequent Consent Orders effective 1992 -1998. Based on that older "316(a)demonstration", the former operators of the Indian Point units asserted that the facility complied with the NYS thermal standard (6 NYCRR Part 704).Based on modeling submitted with the 1999 DEIS by the prior owners of Indian Point (along with owners of two other Hudson River generating stations), the thermal criteria outlined in 6 NYCRR Part 704.2 are not being consistently maintained under the present operation of the facility.Appendix VI Chapter 6 of the 1999 DEIS, "Near-field Temperature Modeling", concludes that newer analyses of the discharge from Indian Point "... indicate that it is highly likely that the exceedance of the topwidth criterion, and possible the cross-sectional area criterion, would occur under slack conditions.

Top-width exceedances occur under all flood scenarios.... "In more general terms, this means that temperatures measured at the water surface along a line running from the outfall across 94 See NYSDEC 2003c, p. 19 (footnote omitted).9' Id. p. 71.9 6 id. p. 72.26 Riverkeeper, Inc.October 12, 2005 the river to the far shore, and measured at varying depths along the cross-section below that line from outfall to far shore, likely exceed the thermal criteria in the Department's regulations during periods with lowest river flow velocities, that is, during the transition between tidal cycles.Furthermore, temperatures at the water surface along that same line from outfall to far shore appear to exceed the thermal'criteria at allflow levels classified as 'flood", that is, during high tides.The permit therefore requires the permittee to conduct additional thermal studies to verify actual in-stream conditions of the thermal component of the discharge.

The in-stream tri-axial study mandated by Special Condition 7 will require actual measurement of river and outfall temperatures at multiple points on the surface and at depth, along the surface and in cross-section running from the outfall and across the river to the far shore, as well as temperature measurements on the surface and at various depths at specified points running parallel to the course of the river. Using this additional data plus existing sources, the Department will be able to determine if the Indian Point facility complies with the thermal standard and whether to grant Indian Point a variancefrom NYS thermal criteria.

97 E.'Alternatives to Closed-Cycle Cooling Although Entergy submits that "substantial feasibility concerns exist" regarding closed-cycle coolingat this site, the ER offers no other alternatives to substantially reduce impacts to a level equivalent to that which can be achieved by closed-cycle cooling at this site. Indeed, the level of protectiveness for aquatic ecology has already been established by the State of New York, which is a level equivalent to that which can be achieved by closed-cycle cooling at this site.Entergy fails to disclose that NYSDEC would require Indian Point to install and operate a closed-cycle cooling system or to provide "an alternative technology(s) that can minimize adverse environmental impact to a level equivalent to that which can be achieved by closed-cycle cooling at this site" 9 8 Therefore, Entergy's analysis lacks a complete evaluation on available alternatives for reducing or avoiding adverse environmental effects and fails to "include a discussion of whether the alternatives will comply with such applicable environmental quality standards and requirements.'" 9 9 F. Essential Fish Habitats (EFH)The Hudson River estuary has Essential Fish Habitat (EFH) designations for the following species: Atlantic sea herring, Atlantic butterfish, Black Sea Bass, Bluefish, Red 97 NYDEC 2003b, Attachment A, pp. 6 of 8 and 7 of 8.98 See NYSDEC, Fact Sheet p.4. Note that Riverkeeper Inc. (and other Environmental Petitioners) objects to this permit condition.

99 See 10 CFR 51.45 (b), (c), (d).27 Riverkeeper, Inc.October 12, 2005 hake, Summer flounder, Winter flounder, and Windowpane flounder.'°° As Entergy's ER notes, Section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act, as amended by the National Marine Fisheries Service Sustainable Fisheries Act of 1996, provides that Federal agencies must consult with the Secretary of Commerce on all actions or proposed actions authorized, funded, or undertaken by the agency that may adversely affect essential fish habitat. "Therefore, the NRC staff will also initiate an essential fish habitat consultation with the NMFS."3o However, under 10 CFR 51.53(c)(3) (ii) (E), Entergy is required to include an analysis on "Important Plant and Animal Habitats." Thus, in addition to the NRC-NMFS consultation, the NRC must prepare an EFH analysis-species by species-and include it in the SEIS.G. Significant Coastal Fish and Wildlife Habitats Haverstraw Bay, just south of the Indian Point site, is a designated Significant Coastal Fish and Wildlife Habitat by the State of New York. According to the Designation document: Haverstraw Bay is a major nursery and feeding area for certain marine Species, most notably bay anchovy, Atlantic menhaden, and blue claw Crab. Depending on location of the salt front, a majority of the spawning and wintering populations of Atlantic sturgeon in the Hudson may reside in Haverstraw Bay. Shortnose sturgeon (E) usually winter in this area as well.... Haverstraw Bay is a critical habitat for most estuarine-dependent fisheries originating from the Hudson River. This area contributes directly to the production of in-river and ocean populations of food, game, and forage fish species. Consequently, commercial and recreational fisheries throughout the North Atlantic depend on, or benefit from, these biological inputs from the Hudson River estuary.101 The Haverstraw Bay Designation document also states: A habitat impairment test must be met for any activity that is subject to consistency review under federal and State laws, or under applicable local laws contained in an approved local waterfront revitalization program. If the proposed action is subject to consistency review, then the habitat protection policy applies' whether the proposed action is to occur within or outside the designated area. The specific habitat impairment test that must be met is as follows. In order to protect and preserve.

a significant habitat, land and water uses or development shall not be undertaken if such actions would: destroy the habitat; or, significantly impair the viability of a habitat. 1 0 2 100 See Summary of EFH Designations

-Estuaries:

Hudson River available at www.nero.nooa.gov.

101 See NYS, Significant Coastal Fish and Wildlife Habitat Program, Designated Habitat Haverstraw Bay.102 id.28 Riverkeeper, Inc.October 12, 2005 Since the proposed action is subject to consistency review, then the Haverstraw Bay habitat protection polidy applies and must be assessed in the SEIS.H. NRC must conduct a rigorous analysis of Important Plant and Animal Habitats Although applicants for relicensing of nuclear power plants are supposed to analyze the effects on "important plant and animal habitats,"'

03 Entergy's ER fails to mention possible impacts on an incredibly significant natural habitat in the near vicinity of Indian Point. Haverstraw Bay, designated as a Significant Coastal Fish and Wildlife Habitat by the State of New York, is located only a mile south of Indian Point. It is a major feeding and nursery area for many species, including the Atlantic sturgeon.

104 The State of New York has deemed it an "irreplaceable" habitat, as it is "the most extensive area of shallow estuarine habitat in the lower Hudson River (and in New York State)."'1 0 5 Indian Point's massive intake and discharge of cooling water certainly impacts this exceptional habitat.Indeed, the cumulative impact that all Hudson River power plants with once-through cooling could have on Haverstraw Bay is potentially substantial.

I. Endangered Species i. Listed Species -Shortnosed Sturgeon The license renewal of the Indian Point nuclear facility is a federal action which "may affect a listed species or critical habitat.106 Since Entergy admits to the facility's taking of federally listed shortnose sturgeon without an incidental take permit in its ER"', and will continue to take these fish if its license is renewed and continues to operate with its once-through cooling system, such renewal is a federal action which may affect a listed species.Riverkeeper recognizes that Section 7 consultation is based on astute principles designed to further the basic purpose of the Endangered Species Act (ESA), which is to conserve endangered and threatened species and the ecosystems on which they depend.1 0 8 Of particular relevance here are section 7 "philosophies" which encourage reliance on biology first, emphasize the ecosystem approach to species conservation, and stress the importance of the "best available scientific and commercial data."'0 1 9 These are 103 See 10 C.F.R. 51.53(c)(3)(ii)(E).

104 See New York State Haverstraw Bay Coastal Fish & Wildlife Habitat Rating Form, available at http://nyswaterfronts.com/downloads/pdf/sighab/hudsonriver/HaverstrawBay.pdf.

1 0 5 id.106 50 C.F.R. § 402.14(a).

1 0 7 See Entergy, Inc., License Renewal Application, Appendix E: Applicant's Environmental Report, Operating License Renewal Stage, Indian Point Energy Center (ER) § 4.10.5, at 4-30, available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/indian-point.html.

'o' ESA, 16 U.S.C. 1531, et seq., at § 1531(b).109 ESA § 7 Handbook, § 1.1, at 1-2.29 Riverkeeper, Inc.October 12, 2005 commendable standards of practice, and NRC should adhere to them during the relicensing process Riverkeeper's concerns regarding Indian Point's effects on shortnose sturgeon are echoed in a letter from Mary Colligan, Assistant Regional Administrator for Protected Resources for NMFS Northeast Region, to James Thomas at Enercon Services, a company assisting Entergy in its preparation of its ER."1 In the letter, Colligan states that NMFS is aware that shortnose sturgeon have been impinged at Indian Point in the past, but that NMFS has no data regarding possible impingement that is more recent then 1998.111 The letter also notes that such impingement is a "take" under the ESA, and as such, Entergy has been operating in violation of ESA because it does not have an incidental take permit.l12 In addition, Colligan stresses that although Entergy contends that is current systems reduce impingement by 77% and entrainment by 33%, NMFS has no current information on how this system may affect impingement or entrainment of sturgeon.'

1 3 Riverkeeper, like NMFS, is concerned about the lack of recent data regarding the death of shortnose sturgeon due to Indian Point's once-through cooling system.Riverkeeper is also concerned with the adequacy of Entergy's analysis of the potential effects on federally listed species caused by groundwater contamination at Indian Point.The Indian Point 1 and 2 spent fuel pools are confirmed to have leaked strontium-90 and tritium into the groundwater around the plant. 11 4 Entergy states that the Indian Point 1 and 2 pools are leaking in section 5.1 of the ER, and also concede that "some contaminated groundwater has likely migrated to the Hudson River." 1 1 5 However, the ER at no point considers the effects of this toxic contamination on the River's federally listed species. In fact, it does not consider its effects on any part of the natural environment of the Hudson River, nor on human populations which rely on the river for drinking water and recreation.

Riverkeeper is highly concerned about the lack of analysis here, particularly because of the known dangers of exposure to radioactive substances such as strontium-90 and tritium. Strontium-90 imitates calcium by concentrating in fish bones and shells of clams and blue crab. Clams are a major part of the diet of sturgeon found in the Hudson River. Riverkeeper is therefore concerned that Hudson sturgeon are being exposed to elevated levels of this dangerous substance.

Without reference to additional studies done to scrutinize the effects of such contamination on listed species and humans, Entergy's ER is woefully incomplete.

ii. Candidate Species -Atlantic Sturgeon The Atlantic sturgeon is currently a candidate species under the ESA, and is thus being considered for listing as threatened or endangered.

As such, it does not currently receive"0 ER Attachment A, Colligan (NMFS) to Thomas (Jan. 23, 2007).111 Id.11 2 id.113id.114 For more information regarding the Indian Point 2 spent fuel pool leak, please see Riverkeeper's letter to NRC requesting rejection of Entergy's application to relicense Indian point, at 13, available at http://riverkeeper.org/dyn-content/documents/951466448464c9ba.pdf.

115 ER § 5.1, at 5-4.30 Riverkeeper, Inc.October 12, 2005 any substantive federal protections.

However, if the decision is made to list the Atlantic sturgeon the NRC may have to reinitiate Section 7 consultation with NMFS to assess the effects of relicensing on this species. The changes of reinitiation are particular strong because the listing decision will likely be released' well before a final decision is made regarding the relicensing of Indian Point. Entergy has based its conclusions regarding the impact of license renewal on Atlantic sturgeon on the 1999 DEIS prepared by ConEd." 6 Again, this reliance seems to be misplaced, as there was available to the company the*more recent 2003 FEIS prepared by New York State NMFS relayed its own concerns regarding Atlantic sturgeon when providing Entergy technical assistance on the presence of listed species."1 7 Because young Atlantic sturgeon have been found close to Indian Point, NMFS emphasized the possibility for these yolk sac larvae and post-yolk sac larvae to become entrained in the once-through cooling system currently in place at the plant."1 8 NMFS's concerns are furthered by the findings of the Atlantic Sturgeon Status Review Report, prepared for NMFS by the Atlantic Sturgeon Status Review Team." 1 9 That report states that, in the Hudson River, the"abundance of young juvenile Atlantic sturgeon has been declining."12 0 Entergy's conclusions regarding the effects of the once-through cooling on Atlantic sturgeon are based, as mentioned above, on the 1999 DEIS. 121 The concerns that Riverkeeper has expressed with regards to reliance on this document apply to its use here.NMFS also expressed concerns with the 1999 DEIS in its 2007 correspondence with Entergy.122 As noted in the discussion of shortnose sturgeon above, NMFS emphasized that it had no current data regarding impingement or entrainment of sturgeon, nor on the effectiveness of Entergy' s impingement/entrainment reduction system in place at Indian Point.123 NMFS also raised concerns about the effect of "heated effluent, chlorine, and.other pollutants or anti-fouling agents" on sturgeon.

1 2 4 It appears that the ER completely fails to address the effects of these potentially detrimental pollutants on either species of sturgeon.116 See id. § 4.10.5, at 4-30.117 See ER Attachment A, Colligan (NMFS) to Thomas (Jan. 23, 2007) & Colligan (NMFS) to Thomas (March 19, 2007).1 8 See ER Attachment A, Colligan (NMFS) to Thomas (Jan. 23, 2007).119 Atlantic Sturgeon Status Review Report, prepared by Atlantic Sturgeon Status Review Team for NMFS/NOAA (Feb. 23, 2007).12 0 Id. At § 1.3.2, at 14.121 See ER § 4.10.5, at 4-30.122 See ER Attachment A, Colligan (NMFS) to Thomas (Jan. 23, 2007) & Colligan (NMFS) to Thomas (March 19, 2007).123 Id.124 See ER Attachment A, Colligan (NMFS) to Thomas (Jan. 23, 2007).31