ML13256A422

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the State of New York (NYS) Response to NRC Staff September 3 Status Report
ML13256A422
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 09/13/2013
From: Sipos J
State of NY, Office of the Attorney General
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25034
Download: ML13256A422 (20)
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Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

x In re: Docket Nos. 50-247-LR; 50-286-LR

License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01

Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. September 13, 2013

x Response to NRC Staff Status Report In response to the NRC Staff's Septembe r 3, 2013 status report (ML13246A345), the State of New York respectfully submits the following additional information. 1. The State recently raised questions concerning the NRC Staff's review of environmental impacts of the proposed renewal of the operating licenses for the Indian Point facilities. On August 20, 2013, the State sent Sta ff two letters raising que stions about severe accident analyses for Indian Point Unit 2 and Indian Point Unit 3 (ML13239A522). The letters are attached hereto. The first letter concerns the absence of analysis of impacts and mitigation of potential radiological releases flowing from aqueous release pathways (Attachment 1). The second letter concerns decontam ination activities and funding as well as federal agency responsibility following a severe acc ident at one or both Indian Point facilities (Attachment 2). 2. Also, following yesterday's public meeting organized by the NRC Waste Confidence Directorate, today's Federal Register contains a notice that NRC Staff has released a draft Environmental Impact Statement in connection with the Waste Confidence and Temporary Storage Rulemaking. 78 Fed. Reg. 56621 (notice of DEIS availability and request for comment); 78 Fed. Reg. 56776 (notice of proposed rule) (Sept. 13, 2013). NRC Staff will hold public meetings in October and November in c onnection with the rulemaking. 78 Fed. Reg. 54789 (Sept. 6, 2013) (notice of upcoming public meetings). 3. The New York State Supreme Court for Albany County revised the schedule for the oral argument on Entergy's challenges to the New York State Department of State coastal zone actions; oral argument will occur on September 27, 2013.

Respectfully submitted, Signed (electronically) by

_______________________

John J. Sipos Assistant Attorney General Office of the Attorney General

of the State of New York

The Capitol

Albany, New York 12224

(518) 402-2251

Dated: September 13, 2013

Attachment 1 August 20, 2013 NYS letter to NRC Staff re aqueous releases of radiation following accident at nuclear power plant

S TATE OF NEW Y ORK OFFICE OF THE ATTORNEY GENERAL E RIC T. SCHNEIDERMAN

DIVISION OF SOCIAL JUSTICE ATTORNEY G ENERAL ENVIRONMENTAL PROTECTION BUREAU T HE C APITOL , A LBANY , N.Y. 12224-0341 P HONE (518) 473-3105 F AX (518) 473- 2534 WWW.AG.NY.GOV August 20, 2013 Via Electronic Mail Sherwin E. Turk, Esq.

Office of the General Counsel

U.S. Nuclear Regulatory Commission One White Flint North, Mail Stop: O-15 D21

11555 Rockville Pike

Rockville, MD 20852-2738

Re: Aqueous Releases Following Severe Accidents at Indian Point Facilities

Dear Sherwin:

We write to request additional information regarding NRC's examination of potential aqueous releases following a severe accident, both for the Indian Point facilities and on an agency-wide basis. As we discussed on our conference call yesterday, the severe accident mitigation alternatives ("SAMA") analysis for Indian Point does not consider aqueous releases.

Significant new information shows that, in light of the ongoing aqueous releases at Fukushima, aqueous releases should be considered in both the analysis of the impacts associated with a severe accident at Indian Point and the SAMA analysis for Indian Point. On April 27, 2013, the State submitted supplemental comments on the draft supplement to the December 2010 Final Supplemental Environmental Impact Statement ("FSEIS").

1 The State's April 2013 supplemental comments iden tified and discussed new and significant information. The State requested that NRC Staff examine the new and significant information in

1 The State had previously submitted comments on March 28, 2012 and August 20, 2012.

2 the supplement to the environmental impact statement. The State's April 2013 comments cited a presentation by the Di rector of NRC's Research Office from NRC's March 2013 Regulatory Information Conference. Based on that presentation, it is clear that the MACCS2 computer code used to examine severe accidents lacks the ability to analyze the impacts to water resources and the environment resulting from aqueous radiological releases accompanying such an accident. International Session - Post-Fukushima Research, Brian Sheron, Direct or, NRC Office of Nuclear Re gulatory Research (March 13, 2013).2 In slide 7 of that presentation (reprodu ced below), NRC notes (1) aqueous releases occurred during Fukushima accident, and (2) current models do not address aqueous release pathways.

The term "current models," as used in the slide, would include computer codes such as MACCS2, which Entergy and NRC Staff used to analyze severe reactor accidents in connection with the applications for re newed operating licenses for the Indian Point facilities.

In addition to the March 2013 presentation, the State's April 2013 comments also included recent reports regarding continuing radiological aqueous releases at the Fukushima site

2 The document is available at https://ric.nrc-gateway.gov/m/Docs/Abstracts/sheronb-rev1-hv-w15.pdf.

3 - two years after the start of the severe accidents that damaged four of the Dai-ichi nuclear facilities. The State's comments explained that , although these releases had not been reflected yet in publically-available NRC documents, according to news articles, the receptacles holding radiation contaminated fluids at the Fukushima s ite have leaked and have released radiological material to the environment. See, e.g., Damaged Nuclear Plant in Japan Leaks Toxic Water , Martin Fackler, New York Times (April 6, 2013);

Japan Nuclear Plant Finds New Leaks, Mari Iwata, Wall Street Journal (April 7, 2013);

Nuclear Plant in Japan Ha s Leak in Other Tank , Hiroko Tabuchi, New York Times (April 9, 2013);

Fukushima Nuclear Plant is Still Unstable, Japanese Official Says, Hiroko Tabuchi, New York Times (April 10, 2013).

More recently, on August 1, 2013, NRC made the transcript of a December 2012 Advisory Committee on Reactor Safeguards ("ACRS") subcommittee meeting publicly available. July 30, 2013 Memorandum to ACRS Members regarding Cert ified Minutes of the ACRS Reliability and PRA Subcommittee Meeting on Level 3 PRA on December 4, 2012 (ML13211A477) ("ACRS Transcript"). At that meeting Alan Kuritzky from NRC's Office of Research, Division of Risk Analysis, explained Aqueous transport and dispersion of radioactive materials, this is something very big given the Fukushima event, but something we simply are not going to address in our study, but the Agency as a whole is looking into it.

ACRS Transcript at 43:17-21. An article appearing in today's New York Times further underscores the importance of the issue. Fukushima Plant Has 300-Ton Water Leak, Associated Press, New York Times (Web Edition) (August 20, 2013) ("The operator of Japan's tsunami-crippled nuclear power plant said Tuesday that about 300 tons (300,000 liters, 80,0 00 gallons) of highly ra dioactive water have leaked from one of the hundreds of storage ta nks there - its worst leak yet from such a 4 vessel."). Aqueous releases following a severe accident would be of particular concern at Indian Point, which sits on the Hudson River. Aqueous releases have the potential to contaminate the Hudson River's waters, riverbanks, riverbed and sediment, adjacent freshwater tidal wetlands, and fish and other aquatic organisms and impacts to the environment and human health could exceed the impacts flowing from the aqueous releases into the Pacific Ocean at Fukushima. The unique, site-specific conditions at Indian Point warrant an analysis of the aqueous release issue in the context of the SAMA analysis. NRC's acknowledgement of the continuing aqueous releases at Fukushima and the importance of analyzing aqueous release pathways in the context of severe accidents constitutes new and significant information. Under 10 C.F.

R. § 51.92(a)(2), NRC Staff is obligated to "prepare a supplement to a final environmental impact statement . . . if . . . [t]here are new and significant circumstances or information relevant to environmental con cerns and bearing on the proposed action or its impacts." See also 40 C.F.R. § 1502.9(c)(1)(ii); Marsh v. Oregon Natural Res. Council , 490 U.S. 360, 370-78 (1989) (even after initial approval of an environmental impact statement ("EIS"), an agency must continue to evaluate the environmental consequences of the project and supplement the EIS as necessary). The information is new because the presentation was made publically available after NRC Staff issued its FSEIS in December 2010. It is significant because an analysis of aqueous releases would lead to an increase in severe accident costs, which could lead to the consideration of mitigation measures designed specifically to address aqueous releases or render additional mitigation measures cost-beneficial in the SAMA analysis. NRC Staff's failure to identify and analyze the impacts and costs associated with aqueous release following a severe accident and 5 the alternatives to mitigate such impacts in the FSEIS supplement is not consistent with the National Environmental Policy Act.

We appreciate your cooperation and look forw ard to receiving a description of NRC's analysis of aqueous releases in the wake of the Fukushima accidents. Please also indicate whether NRC plans to supplement the FSEIS for the renewal of the ope rating licenses for the Indian Point facilities to include a site-specific analysis of the impact s of aqueous releases flowing from a severe accident and the means to mitigate such impacts. Based on our conversation yesterday, we trust that you will forward this letter and our request to the appropriate individuals including Brian W. Sheron, Director, Office of Nuclear Regulatory Research and John Lubinski, Direct or, Division of License Renewal.

Sincerely,

s/

John J. Sipos Kathryn Liberatore Assistant Attorneys General

(518) 402-2251

cc: Paul Bessette, Esq., counsel for Entergy Robert D. Snook, Assistan t Attorney General, St ate of Connecticut Phillip Musegaas, Esq., counsel for Riverkeeper Manna Jo Greene, Clearwater

Attachment 2 August 20, 2013 NYS letter to NRC Staff re federal agency responsibility, decontamination activ ities, and funding following offsite release of radiation from nuclear power plant

S TATE OF NEW Y ORK OFFICE OF THE ATTORNEY GENERAL E RIC T. SCHNEIDERMAN

DIVISION OF SOCIAL JUSTICE ATTORNEY G ENERAL ENVIRONMENTAL PROTECTION BUREAU T HE C APITOL , A LBANY , N.Y. 12224-0341 P HONE (518) 473-3105 F AX (518) 473- 2534 WWW.AG.NY.GOV August 20, 2013 Via Electronic Mail Sherwin E. Turk, Esq.

Office of the General Counsel

U.S. Nuclear Regulatory Commission One White Flint North, Mail Stop: O-15 D21

11555 Rockville Pike

Rockville, MD 20852-2738

Re: Oversight and Funding of Offsite Decontamination Following a Severe Accident at the Indian Point Facilities

Dear Sherwin:

The State writes to request additional information regarding NRC's oversight and funding of offsite decontamination in the event of a severe acciden t at Indian Point. As we discussed on our conference call yesterday, it is no t clear which federal agency is responsible for decontaminating the area surrounding Indian Poin t or whether the Price Anderson Act covers such decontamination costs.

On March 20, 2012, NRC Staff announced that it was going to supplement its examination of the environmental impacts of th e issuance of proposed op erating licenses for the Indian Point Unit 2 and Indian Point Unit 3 facilities in the December 2010 Final Supplemental Environmental Impact Statement ("FSEIS").

77 Fed. Reg. 16278 (Mar. 20, 2012). On March 28, 2012, the State sent a letter to NRC Staff regarding the proposed scope of the FSEIS supplement.

See March 28, 2012 letter from J. Sipos to S. Turk (NRC), ML12090A609. In its 2 scoping comments, the State urged NRC Staff to address, in a proactive way, the issue of how it deals with severe nuclear events that lead to significant environmental impacts including land contamination.

Id. at 13. In Attachment I to the State's letter, the State raised the issue of funding for decontamination costs, noting that-according to documents prepared by staff at the U.S. Environmental Protection Agency ("EPA")-the NRC recently informed the EPA and the Federal Emergency Management Agency ("

FEMA") that the industry-funded account established under the Price Anderson Act would likely not be available to pay for offsite decontamination in the event of a severe accident at a nuclear plant.

Id., Attachment I at 59 (discussing Douglas P. Guarino, Agencies Struggle To Craft Offsite Cleanup Plan For Nuclear Power Accidents, Inside EPA (Nov. 10, 2010), and attached emails disclosed pursuant to Freedom of Information Act ("FOIA") Request). On June 26, 2012, NRC Staff informed the public that the draft FSEIS supplement was available for public comment, however, the draft did not address the State' s scoping comments.

See Notice of Availability of Draft Supplement to Final Plant Specific Supplement 38 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit No

s. 2 and 3, June 26, 2012, ML12178A660; Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, June 2012, ML12174A244. On August 20, 2012, the State submitted comments on the draft FSEIS supplement to the NRC, identifying and discussing the issue of funding for environmental restoration following a major radiological release at Indian Point.

See Comments by the New York State Office of the Attorney General on the Draft Supplement to Supplement 38 to the Generic Environmental 3 Impact Statement For License Renewal of Nuclear Plants, Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment Dated June 26, 2012 ("State Comments") at 4, Aug. 20, 2012, ML12235A409.

The State's comments cited a presentation by NRC Commissioner William D. Magwood, IV at the Health Physics Society Mid-Year Meeting on February 6, 2012.

See Commissioner Magwood, Nuclear Issues in the Post Fukushima World - Presentation at the Health Physics Society Mid-Year Meeting ("Magw ood Presentation"), Feb. 6, 2012, available at

http://www.nrc.gov/about-nrc/organization/commission/comm-william-magwood/testimony-speeches.html. In the presentation, Commissioner Magwood noted that "[t]here is no regulatory framework for environmental restoration following a major radiological release."

Id. at slide 15 (reproduced below).

Based on this information, the State commented that "it [is] not clear that NRC has the desire, capability, or financial resources to respond to a serve accident at Indian Point and ensure the thorough decontamination of the New York metropolitan area including, but not limited to, 4 its water resources-and drinking water resources-in the wake of such an accident." State Comments at 4.

In response to the State's comments, NRC Staff stated that "NRC has technical leadership for the Federal government's response to the event," but it al so listed eight other federal agencies "who may respond to an event at an NRC-licensed facility, or involving NRC-licensed material." Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Poin t Nuclear Generating Un it Nos. 2 and 3 Final Report, Supplemental Report and Comment Responses ("June 2013 FSEIS Supplement") at

A-32, June 2013, ML13162A616. Staff's response did not address Co mmissioner Magwood's statement regarding the lack of a regulatory framework for environmental restoration following a major radiological release. Nor did Sta ff explain which agency is responsible for decontaminating the New York metropolitan area fo llowing a severe accident at Indian Point, or which agency's decontamination sta ndards will apply to a cleanup. Staff noted that "[c]osts associated with nuclear incidents are governed by the Price-Anderson Nuclear Industries Indemnity Act" and that "[t]he main purpose of the Act is to provide prompt and orderly compensation to the public who may incur damages from a nuclear incident, no matter who might be liable."

Id. Staff added that there is a combined level of protection under the Price Anderson Act of $12 billion, and if a nuclear accident involves damages in excess of this amount, the Act "inclu des a provision that oblig ates Congress to take appropriate action to provide compensation for public liability claims."

Id. at A-33. However, while Staff's response explains how the public will be compensated for damages incurred as a result of an accident, such as hotel stays, lost wages and property replacement costs, it does not 5 explain how decontamination costs will be funded in the event of a severe accident at the Indian Point reactors or spent fuel pools.

Given the unique characteristics of Indian Point, the State believes it is especially important that the public have access to this information. The Indian Point reactors are located 24 miles north of New York City. More than 17 million people live within 50 miles of Indian Point, a total that is projected to grow to over 20 million by 2035. According to the Atomic Energy Commission, the NRC, and FEMA, more people live within 10 and 50 miles of the Indian Point reactors than at any other operating power reactor in the nation. The communities within the 50-mile radius around Indian Point also contain some of the most densely-developed and expensive real estate in the country, crit ical natural resources, centers of national and international commerce, transportation arteries and hubs, and historic sites. Thus, the decontamination costs of a severe accident at Indian Point have the potential to be larger than an accident at any other reactor in the country. Documents disclosed by the NRC and other federal agencies indicate that there are conflicting responsibilities of multiple federal agencies for offsite restoration after a nuclear incident and that NRC may not le ad cleanup oversight in the event that an accident at a nuclear power plant dispersed radioactive contamination off the reactor site and into the surrounding area. See Douglas P. Guarino, Agencies Struggle To Craft Offsite Cleanup Plan For Nuclear Power Accidents, Inside EPA (Nov. 10, 2010), and attached emails disclosed pursuant to FOIA Request (reproduced in part below).

6 7 These documents also indicate that money se t aside by the Price Anderson Act would not be available to fund decontamination.

Id. If there is no regulatory framework or source of funding in place to decontaminate the New York metropolitan area in the event of a severe accident at Indian Point, that fact should be disclosed by NRC Staff to the public.

Therefore, in light of Commissioner Magwood's statements and NRC's statements to EPA, the State requests that the U.S. Nucl ear Regulatory Commission answer the following questions:

1. Which federal agency is responsible for decontaminating radiation released offsite by a severe accident at the Indian Poin t reactors and spent fuel pools?
2. Would the Price Anderson Act fund decontam ination in the event that that an accident at Indian Point caused radioactive contamination to be dispersed off the reactor site and into the surrounding area?

We appreciate your cooperation and look forward to receiving additional information regarding NRC's oversight and funding of offsite decontamination in the event of a severe accident at Indian Point. Based on our convers ation yesterday, we trust that you will forward this letter and our request to the appropriate individuals, including James Wiggins, Director, Office of Nuclear Security and Incident Response, and Robert Lewis, Director, Division of Preparedness and Response, Office of Nu clear Security and Incident Response.

Sincerely, s/

John J. Sipos

Laura Heslin Assistant Attorneys General

(518) 402-2251

8 cc: Paul Bessette, Esq., Counsel for Entergy Robert D. Snook, Assistan t Attorney General, St ate of Connecticut Phillip Musegaas, Esq., Counsel for Riverkeeper Manna Jo Greene, Clearwater 1UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

x In re: Docket Nos. 50-247-LR and 50-286-LR

License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01

Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. September 13, 2013

x CERTIFICATE OF SERVICE I hereby certify that on September 13, 2013, copies of the State of New York's Response to NRC Staff's September 3, 2013 Status Report was served electronically via the Electronic Information Exchange on the following recipients:

Lawrence G. McDade, Chair

Richard E. Wardwell, Administrative Judge Michael F. Kennedy, Administrative Judge Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

Lawrence.McDade@nrc.gov Richard.Wardwell@nrc.gov

Michael.Kennedy@nrc.gov

Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

Carter Thurman, Esq., Law Clerk James Maltese, Esq., Law Clerk Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike

Rockville, MD 20852-2738 Carter.Thurman@nrc.gov James.Maltese@nrc.gov

Office of Commission Appellate

Adjudication

U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North

11555 Rockville Pike

Rockville, MD 20852-2738 ocaamail@nrc.gov

2Office of the Secretary Attn: Rulemaking and Adjudications Staff

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

hearingdocket@nrc.gov

Sherwin E. Turk, Esq.

David E. Roth, Esq.

Beth N. Mizuno, Esq.

Brian G. Harris, Esq.

Anita Ghosh, Esq.

Joseph A. Lindell, Esq.

Office of the General Counsel

U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North

11555 Rockville Pike

Rockville, MD 20852-2738

sherwin.turk@nrc.gov

david.roth@nrc.gov beth.mizuno@nrc.gov

brian.harris@nrc.gov

anita.ghosh@nrc.gov Joseph.Lindell@nrc.gov

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Jonathan Rund, Esq.

Raphael Kuyler, Esq.

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

ksutton@morganlewis.com pbessette@morganlewis.com jrund@morganlewis.com rkuyler@morganlewis.com

Martin J. O'Neill, Esq.

Morgan, Lewis & Bockius LLP

Suite 4000

1000 Louisiana Street

Houston, TX 77002 martin.o'neill@morganlewis.com Bobby R. Burchfield, Esq.

Matthew M. Leland, Esq.

Clint A. Carpenter, Esq.

McDermott Will & Emery LLC

600 13th Street, NW

Washington, DC 20005-3096 bburchfield@mwe.com mleland@mwe.com ccarpenter@mwe.com

Richard A. Meserve, Esq.

Matthew W. Swinehart, Esq.

Covington & Burling LLP

1201 Pennsylvania Avenue, NW

Washington, DC 20004-2401 rmeserve@cov.com mswinehart@cov.com

Elise N. Zoli, Esq.

Goodwin Procter, LLP

Exchange Place

53 State Street

Boston, MA 02109

ezoli@goodwinprocter.com

William C. Dennis, Esq.

Assistant General Counsel Entergy Nuclear Operations, Inc.

440 Hamilton Avenue

White Plains, NY 10601 wdennis@entergy.com

Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General

State of Connecticut 55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

robert.snook@ct.gov

3Melissa-Jean Rotini, Esq.

Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building

148 Martine Avenue, 6th Floor

White Plains, NY 10601

MJR1@westchestergov.com

Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building

236 Tate Avenue

Buchanan, NY 10511-1298 Administrator@villageofbuchanan.com smurray@villageofbuchanan.com

Daniel Riesel, Esq.

Thomas F. Wood, Esq.

Victoria S. Treanor, Esq.

Sive, Paget & Riesel, P.C.

460 Park Avenue

New York, NY 10022

driesel@sprlaw.com vtreanor@sprlaw.com

Michael J. Delaney, Esq. Director Energy Regulatory Affairs NYC Dep't of Environmental Protection

59-17 Junction Boulevard

Flushing, NY 11373

mdelaney@dep.nyc.govRichard Webster, Esq. Public Justice, P.C.

Suite 200

1825 K Street, NW

Washington, DC 20006 rwebster@publicjustice.net

Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road

Ossining, NY 10562 phillip@riverkeeper.org dbrancato@riverkeeper.org

Signed (electronically) by

____________________________________ John J. Sipos Assistant Attorney General State of New York (518) 402-2251

Dated at Albany, New York

this 13th day of September 2013

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