ML14332A803

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Entergy Motion to Intervene (Exhibits)
ML14332A803
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 11/25/2014
From: Brancato D, Jeremy Dean, Greene M, Musegaas P, Sipos J
Hudson River Sloop Clearwater, Riverkeeper, State of NY, Office of the Attorney General
To:
Atomic Safety and Licensing Board Panel
Creedon, Meghan
References
14-1210, 1524232 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML14332A803 (53)
v • d • e


Text

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 1 of 53 ATTACHMENT 1

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 2 of 53 UNITED 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, Entergy Nuclear Indian Point 3, LLC, and DPR-26, DPR-64 Entergy Nuclear Operations, Inc.

x STATE OF NEW YORK, RIVERKEEPER, INC.,

AND HUDSON RIVER SLOOP CLEARWATERS JOINT CONTENTION NYS-39/RK-EC-9/CW-EC-10 CONCERNING THE ON-SITE STORAGE OF NUCLEAR WASTE AT INDIAN POINT Filed on July 8, 2012

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 3 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR UNITED STATES OF AMERICA 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. July 8, 2012

x PRELIMINARY STATEMENT The State of New York, Hudson Riverkeeper, Inc., and Hudson River Sloop Clearwater, Inc. respectfully submit a new joint contention based on the United States Court of Appeals for the District of Columbia Circuits recent decision in the matter of State of New York v. Nuclear Regulatory Commission, No. 11-1045 (June 8, 2012), which invalidated the NRCs Waste Confidence Decision Update and Temporary Storage Rule.

1

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 4 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR CONTENTION NYS-39/RK-EC-9/CW-EC-10 THE FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT FOR INDIAN POINT FAILS TO COMPLY WITH THE REQUIREMENTS OF SECTIONS 102 (c) AND (e) OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND 10 C.F.R. §§ 51.20(b)(2),

51.71(d), 51.90, 51.91(c), 51.92, 51.95(c)(1), 51.95(c)(2), AND 51.101(a),

BECAUSE IT FAILS TO INCLUDE OR INCORPORATE A LEGALLY SUFFICIENT ANALYSIS OF THE ENVIRONMENTAL IMPACTS OF ON-SITE STORAGE OF NUCLEAR WASTE AFTER THE CONCLUSION OF THE EXTENDED OPERATING PERIOD, INCLUDING THE IMPACTS IN THE EVENT THAT NO PERMANENT REPOSITORY IS EVER ESTABLISHED, AND FAILS TO CONSIDER ALTERNATIVES TO MITIGATE THOSE IMPACTS; BECAUSE THERE IS NO VALID ANALYSIS OF THESE ISSUES, NRC MAY NOT REACH A FINAL DECISION ON WHETHER TO RENEW INDIAN POINTS OPERATING LICENSES UNTIL SUCH A VALID ANALYSIS HAS BEEN COMPLETED IN COMPLIANCE WITH APPLICABLE FEDERAL LAW AND REGULATIONS.

NRC Staffs environmental review of the applications to operate two power reactors at Indian Point for an additional twenty years does not now include an analysis of the environmental impacts caused by the storage of nuclear waste at Indian Point following the end of the requested operating licenses nor an analysis of alternatives to proposed storage of spent fuel at Indian Point for an indefinite period of time in spent fuel pools. The absence of such a review and analysis violates the National Environmental Policy Act (NEPA) and related regulations.

Neither the Final Supplemental Environmental Impact Statement for Indian Point NUREG-1437 Supplement 38 (FSEIS) nor the Generic Environmental Impact Statement for License Renewal NUREG-1437 (GEIS) has examined these impacts or alternatives because 2

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 5 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR NRCs Temporary Storage Rule barred such a review based on its findings that on-site storage of nuclear waste would have no significant impact for 60 years post-operation and that a permanent repository would be available when necessary. Because the United States Court of Appeals for the District of Columbia Circuit recently ruled that the Temporary Storage Rule, along with the Waste Confidence Update on which the rule was based, are invalid, such analysis is now required in this proceeding.

BASES

1. NEPA requires NRC to consider all the impacts of relicensing a nuclear reactor, including the impacts of storing nuclear waste at a reactor site for so long as waste remains at the site, and alternatives to such storage.
2. Until June 8, 2012, 10 C.F.R. § 51.23(a) provided that NRC believed that there was reasonable assurance that a mined geologic disposal site for spent fuel would be available when necessary and that storage of spent fuel at power reactor sites for 60 years after cessation of operation would have not have significant environmental impacts. See 10 C.F.R. § 51.23(a)

(Temporary Storage Rule). That regulation was based on NRCs Waste Confidence Findings. 75 Fed. Reg. 81037 (Dec. 23, 2010) (Waste Confidence Decision Update or WCD Update). The regulation provided further that (10 C.F.R. § 51.23(b)):

as provided in §§ 51.30(b), 51.53, 51.61, 51.80(b), 51.95 and 51.97(a), and within the scope of the generic determination in paragraph (a) of this section, no discussion of any environmental impact of spent fuel storage in reactor facility storage pools or independent spent fuel storage installations (ISFSI) for the period following the term of the reactor operating license . . . is required in any environmental report, environmental impact statement, environmental assessment or other analysis 3

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 6 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR prepared in connection with the issuance or amendment of an operating license for a nuclear reactor.

10 C.F.R. § 51.23(b)(emphasis added).

3. Based on the predecessor to 10 C.F.R. § 51.23, neither the potential environment impacts of continued storage of spent fuel at power reactor sites after cessation of operation nor the alternatives to that storage are addressed in the 1996 GEIS (NUREG-1437), 10 C.F.R. Part 51, Appendix B, Table B-1, which embodies the findings in that GEIS, or the FSEIS for Indian Point (NUREG-1437 Supplement 38). Such alternatives would include alternatives to Entergys storage plan including, without limitation, transferring all spent fuel from pools to dry casks.
4. On June 8, 2012, the United States Court of Appeals for the District of Columbia Circuit ruled that NRCs Waste Confidence Decision Update and Temporary Storage Rule were invalid under NEPA. The Court ruled, first, that the WCD Update violated NEPA because it failed to analyze the environmental impacts of the finding that a permanent repository will be available when necessary, including the impacts of failing to establish a repository when one is needed. The Court also ruled that the environmental analysis underlying NRCs finding in the Temporary Storage Rule that the continued storage of spent fuel at power reactor sites for 60 years post-operation would have no adverse environmental impacts did not meet the requirements of NEPA because (1) the analysis of the environmental impacts of leaks from spent fuel pools was deficient; and (2) the consequences of spent pool fuel fires were not examined.

The Court has not yet issued the mandate.

4

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 7 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR

5. As a result of the Courts ruling, NRC may no longer rely on the Temporary Storage Rule and Waste Confidence Decision to meet its obligation under NEPA to analyze the potential environmental impacts of the on-site storage of spent fuel at Indian Point following the end of extended operating licenses.
6. Because NRC has not conducted a valid NEPA analysis of the environmental impacts of the on-site storage of spent fuel at Indian Point following the end of extended operating licenses including the impacts in the event that a permanent repository is never established NRC may not reach a final decision on whether to renew Indian Points operating licenses until such a valid analysis has been completed and complies with applicable federal law and regulations.

SUPPORTING EVIDENCE A. Procedural History

7. On October 9, 2008, the Commission issued a draft rule revising the waste confidence findings. With respect to Waste Confidence Finding Two, the Commission proposed remov[ing] its expectation that a repository will be available by 2025 and acknowledged that its previous finding that sufficient disposal capacity would be available within 30 years after any reactors licensed life is not supportable. See 73 Fed. Reg. 59551, 59558, and 59561 (Oct. 9, 2008)(Waste Confidence Decision Update). The Commission proposed revising Waste Confidence Finding Four to state that waste could be safely stored on-site for 60 years beyond the licensed operating life of a facility. 73 Fed. Reg. at 59551.

5

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 8 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR

8. The Commission also proposed amending 10 C.F.R. § 51.23 to reflect these revised policies, stating in an open-ended fashion and without a date certain (i.e., without even the 60-year reference from its proposed Finding Four revision) that spent fuel generated in any reactor can be stored safely and without significant environmental impacts beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor at its spent fuel storage basin or at either on-site or offsite independent spent fuel storage installations until a disposal facility can reasonably be expected to be available. 73 Fed. Reg. 59547 (Oct. 9, 2008)(Temporary Storage Rule).
9. The NRCs pronouncements in the October 9, 2008 Federal Register meant that the NRC expects that spent fuel will remain at power reactor sites or Independent Spent Fuel Storage Installations (ISFSIs) for decades longer than anticipated, if not indefinitely.
10. By the Temporary Storage Rule, the Commission refused to undertake any analysis of post-license impacts of waste storage either generically or site-by-site.
11. The State of New York submitted proposed Contention NYS-34 on February 27, 2009, arguing that the December 2008 draft Supplemental Environmental Impact Statement for Indian Point (DSEIS) was insufficient in light of NRCs October 9, 2008 Federal Register statements which, the State argued, constituted new and significant information as that term is defined under NEPA and regulations promulgated by the Council on Environmental Quality and the NRC. State of New York Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement (Feb. 27, 2009) ML090690303.

6

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 9 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR

12. The State also argued that NRCs October 9, 2008 statements also reflected other new and significant information concerning the Commissions acknowledgment that demonstrate any high level waste disposal facility that was to have been available by 2025 will not have capacity sufficient to receive more than the amount of wastes which will be generated by existing plants during their initial 40-year operating license terms. 73 Fed. Reg. 59556-57.
13. The State argued that the NRC Staffs failure to examine such new and significant information violated NEPA and regulations promulgated by the Counsel on Environmental Quality (CEQ) and the NRC. 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.9(c)(1)(ii); 10 C.F.R.

§§ 51.72(a)(2), 51.92, 51.95(a).

14. Entergy and NRC Staff opposed the States proposed contention on grounds that, inter alia, 10 C.F.R. § 51.23 barred consideration of the environmental impacts of the post-operation of on-site storage of nuclear waste. NRC Staffs Answer to Amended and New Contentions Filed by the State of New York and Riverkeeper, Inc., Concerning the Draft Supplemental Environmental Impact Statement (Mar. 25, 2009) ML090840116.
15. On June 16, 2009, the Board rejected the States proposed Contention NYS-34 on grounds that the States contention was premature, and, alternatively, that the contention would be barred by 10 C.F.R. § 51.23. Entergy Nuclear Operations, Inc., (Indian Point Units 2 and 3), Order (Ruling on New York States New and Amended Contentions), slip op. at 13-16 (June 16, 2009). The Board stated:

Both of the publications that New York cites as new and significant information are proposed revisions. At this point, the Commission has not made a final determination vis--vis the waste confidence rule. Therefore, it is premature to 7

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 10 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR use these publications as the bases for a new contention, as the regulations now in force, specifically 10 C.F.R. § 51.23(b), do not permit discussion of any environmental impact of spent fuel storage at nuclear reactor sites.

ASLB June 16, 2009 slip op. at 16.

16. In September 2009, the NRC Commissioners made additional public statements about the waste confidence process. The three then-sitting Commissioners recognized that the administrative record does not provide reasonable assurance that a permanent disposal facility for high level radioactive waste will exist by a particular date. This recognition was reflected in the voting notations of the three Commissioners who deferred any final action on a proposed revision to § 51.23 pending further input from the public on the proposal and further development of a waste disposal policy by the Executive and Legislative authorities. See Notation Vote, September 2009 Response Sheets of Chairman Jaczko, Commissioner Klein, and Commissioner Svinicki (publicly released on September 25 and 28, 2009).
17. On October 26, 2009, Clearwater submitted proposed new contentions concerning waste confidence. Hudson River Sloop Clearwater, Inc.s Motion for Leave to Add a New Contention Based Upon New Information (Oct. 26, 2009) (corrected version filed Nov. 6, 2009)

ML093200503. Clearwater sought leave to file two new contentions, a safety contention under the Atomic Entergy Act and an environmental contention under NEPA.

18. On November 19, 2009, the State of New York submitted an Answer in support of Clearwaters submission. The States Answer noted that much had changed during the Indian Point license renewal proceeding. Answer of the State of New York to Hudson River Sloop Clearwater, Inc.s Petition Presenting Supplemental Contentions EC-7 and SC-1 Concerning 8

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 11 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR Storage of High-Level Radioactive Waste Generated at Indian Point (Nov. 19, 2009)

ML1008200028. The States Answer underscored the further evolution of the factual record on this issue since the States presented its premature Contention NYS-34.

19. Riverkeeper, the State of Connecticut, and the Town of Cortlandt also submitted answers supporting Clearwaters proposed contentions.
20. On February 12, 2010, the ASLB issued a decision certifying a question to the NRC Commissioners concerning the continued viability of the Temporary Storage Rule.

Entergy Nuclear Operations, Inc., (Indian Point Units 2 and 3), Memorandum and Order (Certification to the Commission of a Question Relating to the Continued Viability of 10 C.F.R.

§ 51.23(b) Arising From Clearwaters Motion for Leave to Admit New Contentions) (Feb. 12, 2010). Specifically, the Board ask[ed] the Commission to advise the Board whether we should: (1) defer ruling on Clearwaters Motion until the Commission undertakes an evaluation of the impact, if any, that these recent developments will have on the viability of the Commissions Waste Confidence Rule; (2) rule on Clearwaters pending motion consistent with the current language of Section 51.23; (3) admit Clearwaters new contentions notwithstanding Section 51.23; or (4) take some other action to be specified by the Commission.

ASLB February 12, 2010 slip op. at 2.

21. On July 8, 2010, in response to the Boards certified question, the Commissioners issued CLI-10-19 that directed the ASLB to reject the Clearwater contentions. Entergy Nuclear 9

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 12 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR Operations, Inc., (Indian Point Units 2 and 3), 72 N.R.C. 98, CLI-10-19, Memorandum and Order (July 8, 2010).1 The Commissioners stated:

We are continuing our deliberations on the waste confidence update, and in any event will not conclude action on the Indian Point license renewal application until the rulemaking is resolved.

72 N.R.C. at 100, CLI-10-19, slip op. at 3. This Commissioner ruling in this proceeding controls here, because the rulemaking is [not] resolved.

22. NRC issued the final Waste Confidence Decision Update and Temporary Storage Rule on December 23, 2010. 75 Fed. Reg. 80132-37 (Dec. 23, 2010); 75 Fed. Reg. 80137-76 (Dec. 23, 2010). When the Commission adopted the WCD Update and TSR, it declared that:

The Commission reaffirms the three remaining findings. Each finding and the reasons for revising or reaffirming the finding are discussed below. In keeping with revised Findings 2 and 4, the Commission is concurrently publishing in this issue of the Federal Register conforming amendments to 10 CFR 51.23(a), which provides a generic determination of the environmental impacts of storage of spent fuel at, or away from, reactor sites after the expiration of reactor operating licenses, and expresses reasonable assurance that sufficient geologic disposal capacity will be available when necessary.

75 Fed. Reg. 81037, 81038 (Dec. 23, 2010).

B. Proceedings in the United States Court of Appeals for the District of Columbia Circuit

23. On February 15, 2011, a coalition of states led by New York and a coalition of environmental organizations including Riverkeeper challenged the Temporary Storage Rule and the Waste Confidence Decision Update respectively, in the United States Court of Appeals for 1

NRC Commissioner Apostolakis did not participate in the ruling on this matter.

10

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 13 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR the District of Columbia Circuit. The Prairie Island Indian Community, a federally-recognized Indian tribe, also filed a challenge. Those legal challenges were consolidated and heard together.

24. On June 8, 2012, the D.C. Circuit vacated the Waste Confidence Decision Update and the Temporary Storage Rule. New York v. NRC, slip op., No. 11-1045 (June 8, 2012). The Court held that the WCD Update constitutes a major federal action necessitating either an environmental impact statement or a finding of no significant environmental impact and that in concluding that permanent storage will be available when necessary, the Commission did not calculate the environmental effects of failing to secure permanent storagea possibility that cannot be ignored. Id. The Court also held that the environmental analysis that led to the finding of no significant impact in the Temporary Storage Rule was deficient because, in determining that spent fuel can safely be stored on site at nuclear plants for sixty years after the expiration of a plants license, the Commission failed to properly examine future dangers and key consequences. New York v. NRC, slip op. at 3.
25. The Court also held that we grant the petitions for review, vacate the WCD Update and TSR, and remand for further proceedings consistent with this opinion. New York v.

NRC, slip op. at 21.

26. As the United States Court of Appeals for the District of Columbia Circuit has vacated the WCD Update and the TSR, there is currently no bar in place to the requirement pursuant to NEPA that the NRC analyze the potential environmental impacts of the on-site storage of spent fuel at Indian Point following the end of the requested extended operating licenses. Because the D.C. Circuit decision finds that such impacts could be significant, that 11

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 14 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR those impacts have not been adequately analyzed by NRC, that the process for analysis of those impacts constitutes a major federal action, and because the FSEIS in this proceeding contains no such analysis, the FSEIS is legally deficient under NEPA.

C. NRCs Reliance on the Temporary Storage Rule and Waste Confidence Decision in this Relicensing

27. The FSEIS for Indian Point relies on the now-vacated § 51.23 in multiple places.

In the Executive Summary, Staff states that the supplemental environmental impact statement prepared at the license renewal stage need not discuss any aspect of the storage of spent fuel for the facility within the scope of the generic determination in 10 CFR 51.23(a) [Temporary storage of spent fuel after cessation of reactor operation-generic determination of no significant environmental impact] and in accordance with 10 CFR 51.23(b). FSEIS at xvi.

28. The FSEIS also relies on § 51.23 in finding that neither the Applicants ER (FSEIS at 1-5) nor the Staffs SEIS (FSEIS at 9-1) needs to discuss any aspect of the storage of spent fuel within the scope of the generic determination in 10 CFR 51.23(a) in accordance with 10 CFR 51.23(b).
29. The Staff reiterated this in response to the States comment that the SEIS does not analyze offsite land use impacts of continued operations and the additional storage of spent fuel on real estate values in the surrounding areas (FSEIS, Appendix A, at A-22) and in response to a comment indicating that the GEIS does not adequately evaluate the long term impacts and safety of the generation and long-term storage of radioactive waste (FSEIS at Appendix A, A-138)

(Accordingly, no discussion of the environmental impact of spent fuel storage in reactor facility 12

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 15 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR storage pools or independent spent fuel storage installation is required for an environmental impact statement associated with license renewal.)(emphasis omitted).

30. Staff also raised § 51.23 in response to comments indicating that storage of spent fuel in dry casks, while safer than spent fuel pool storage, will not reduce the amount of spent fuel in the pools (id. at A-147) and questioning the adequacy of decommissioning process regarding spent fuel (id. at A-160) .
31. Staff also relied on the now-vacated Waste Confidence Decision in concluding that there are no offsite radiological impacts (collective effects) from the uranium fuel cycle during the renewal term beyond those discussed in the GEIS. FSEIS at 6-4.
32. During the May 8, 2012 site visit to the Indian Point facilities by the Atomic Safety and Licensing Board, Entergy representatives made the following statements about Entergys plans for spent nuclear fuel at Indian Point:

(A) All of the spent fuel generated during since the start of commercial operation of Indian Point Unit 3 remains in the Indian Point Unit 3 spent fuel pool (as of the date of the site visit);

(B) Entergy has no current plans to construct an additional dry cask storage area (in addition to the existing dry cask storage area); and (C) At the end of operation under any 20-year extension of the current operating licenses, Entergy estimates that the existing dry cask storage area would be filled to capacity and that the Indian Point Unit 2 spent fuel pool and the Indian Point Unit 3 spent fuel pool would be filled to capacity as well.

33. All of the above-listed references to 10 C.F.R. § 51.23 or the Waste Confidence Findings have now been invalidated as a result of the D.C. Circuits invalidation of both the Waste Confidence Decision and the Temporary Storage Rule, and as a result NRC must now 13

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 16 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR evaluate, before a decision on Indian Points operating licenses can be made: the environmental effects of on-site storage of waste after the period of extended operation; offsite land use impacts of continued operations and the additional storage of spent fuel on real estate values in the surrounding areas; the impacts and safety of the generation and long-term storage of radioactive waste; the impacts of spent fuel storage in pools versus in dry casks; the implications of on-site storage of waste for decommissioning; alternatives to mitigate any of these adverse consequences, among other issues.

34. In a recent legal filing submitted to the Commission in another proceeding, NRC Staff has acknowledged that although [t]he Commission has not yet indicated how it intends to respond to the D.C. Circuits ruling, no final decision to grant a renewed operating license should be made until the NRC has appropriately dispositioned the issues remanded by the court NRC Staffs Answer to Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings, at p. 4 (June 25, 2012) (filed in Calvert Cliffs 3 Nuclear Project, LLC, et al., Docket No. 52-016-COL).2
35. This contention alleges that a final decision on whether to issue a renewed operating licenses for the Indian Point facilities cannot be made until the NRC has completed a legally-sufficient analysis of the environmental impacts associated with the long-term and 2

In the same filing, Staff also noted that With respect to license renewal proceedings, Indian Point is perhaps the closest to a final decision by the Board. NRC Staffs Answer to Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Completion of Remanded Waste Confidence Proceedings, at p. 4, n.3 (June 25, 2012) (filed in Calvert Cliffs 3 Nuclear Project, LLC, et al., Docket No. 52-016-COL).

14

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 17 of 53 State of New York, Riverkeeper, & Clearwater Contention NYS-39/RK-9/CW-10 NRC Docket Nos. 50-247-LR and 50-286-LR indefinite storage of spent fuel at the Indian Point site and considers alternatives to mitigate those impacts.

CONCLUSION The issues raised in the proposed joint Contention NYS-39/RK-EC-9/CW-EC-10 are material to the findings the NRC must make to take action upon the applicants request. For all the reasons stated in this Contention and the accompanying Motion for Leave, the State of New York, Riverkeeper, and Clearwater request that this joint contention be admitted.

Respectfully submitted, Signed (electronically) by Signed (electronically) by Janice A. Dean Deborah Brancato, Esq.

John J. Sipos Phillip Musegaas, Esq.

Assistant Attorneys General Riverkeeper, Inc.

Office of the Attorney General 20 Secor Road for the State of New York Ossining, New York 10562 The Capitol (914) 478-4501 Albany, New York 12227 (518) 402-2251 Signed (electronically) by Manna Jo Greene Environmental Director Hudson River Sloop Clearwater, Inc.

724 Wolcott Ave..

Beacon, NY 12508 (845) 265-8080 ext 7113 July 8, 2012 15

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 18 of 53 ATTACHMENT 2

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 19 of 53 STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ERIC T. SCHNEIDERMAN DIVISION OF SOCIAL JUSTICE ATTORNEY GENERAL ENVIRONMENTAL PROTECTION BUREAU December 20, 2013 The Honorable Annette L. Vietti-Cook Secretary U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20852-2738 Re: Submission of Comments Concerning Draft Waste Confidence Generic Environmental Impact Statement and Proposed Rule Docket No. NRC-2012-0246

Dear Secretary Vietti-Cook:

In connection with the referenced proceeding, please find additional comments submitted by the Office of the Attorney General of the State of New as well as a report by International Safety Research, Inc. (ISR), a presentation from the March 2013 Regulatory Information Conference, and two letters concerning aqueous releases and Price Anderson issues. The State respectfully requests that the Commission consider these submissions in the proceeding.

Thank you.

Respectfully submitted, Signed (electronically) by John J. Sipos Assistant Attorney General THE CAPITOL, ALBANY, N.Y. 12224-0341  PHONE (518) 473-3105  FAX (518) 473- 2534  WWW.AG.NY.GOV

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 20 of 53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of:

RIN 3150-AJ20 Consideration of Environmental Impacts of NRC-2012-0246 Temporary Storage of Spent Fuel After Cessation of Reactor Operations ADDITIONAL COMMENTS SUBMITTED BY THE ATTORNEY GENERAL OF THE STATE OF NEW YORK ON THE NUCLEAR REGULATORY COMMISSIONS DRAFT WASTE CONFIDENCE GENERIC ENVIRONMENTAL IMPACT STATEMENT AND PROPOSED RULE Submitted: December 20, 2013 STATE OF NEW YORK Office of the Attorney General Eric T. Schneiderman Attorney General John J. Sipos Janice A. Dean Kathryn Liberatore Laura Heslin Assistant Attorneys General The Capitol Albany, New York 12224

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 21 of 53 TABLE OF CONTENTS Page I. The Indian Point Site .......................................................................................... 1 Population ........................................................................................................... 1 Drinking Water Resources.................................................................................. 3 Topography and Meteorology ............................................................................. 6 Improvements and Unique Sites within 50 miles ........................................... 10 The Hudson River Ecosystem ........................................................................... 11 Seismic Hazard ................................................................................................. 11 Need for Objective Site-Specific Analysis ........................................................ 14 Lack of Site-Specific Analysis of Severe Spent Fuel Pool Accident ................ 14 Storage and Accumulation of Spent Nuclear Fuel at Indian Point ................ 16 II. Need for Site-Specific and Site-Wide Severe Accident Review For the Indian Point Facilities ......................................................................... 22 III. Generation of Spent Nuclear Fuel.................................................................... 24 IV. Toxicity and Longevity of Spent Nuclear Fuel ................................................ 26 V. History of On-Site Storage of Spent Nuclear Fuel .......................................... 27 VI. Environmental Hazards and Impacts of Spent Fuel Pools ............................. 31 A. Fires ........................................................................................................ 31 B. Leaks ....................................................................................................... 37 i

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 22 of 53 TABLE OF CONTENTS Page VII. Significant New Information Regarding Spent Fuel Pools ............................. 41 A. Yucca Mountain Repository Project Formally Abandoned ................... 43 B. External Events in Japan and Virginia ................................................ 45

1. Fukushima Daiichi and Site-Wide Risk ..................................... 45
2. North Anna, Virginia................................................................... 58 VIII. Consideration of Site-Specific Alternatives ..................................................... 60 A. Thinning of Spent Fuel Pools and Use of Dry Cask Storage ................ 62 B. Other Alternatives ................................................................................. 69 C. Severe Accident Mitigation Alternatives Analyses And Spent Fuel Pools ............................................................................. 70 IX. The Severe Accident Mitigation Alternatives Analyses Should Be Based on Site-Specific Data and Not Simply Replicate Inputs from Another Reactor............................................................................ 72 X. NRC Must Prepare a Meaningful Site-Specific Environmental Impact Statement Analyzing the Impacts of Sabotage and Terrorism at the Indian Point Facilities .......................................................... 74 XI. Conclusion ......................................................................................................... 82 ii

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 23 of 53 Note about Citations and References Contained in this Document All citations and references mentioned in this document are hereby incorporated by reference. Should NRC Staff have difficulty obtaining any such citations and references, they are requested to contact the Office of the Attorney General for the State of New York for assistance.

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 24 of 53 The State of New York Office of the Attorney General submits the accompanying report by International Safety Research, Inc. (ISR) as well as these additional comments to the record in this rulemaking and environmental review proceeding. 1 Throughout this proceeding, New York has requested that NRC conduct a transparent, objective, and comprehensive site-specific severe accident mitigation alternatives analysis of spent fuel pool accidents at Indian Point - and conduct a site-wide analysis of severe accidents at Indian Point.

I. The Indian Point Site Population. The Indian Point power reactors, spent fuel pools, and dry storage casks are 24 miles north of New York City, 35 miles from Times Square, and approximately 38 miles from Wall Street. The U.S. Census Bureau recognizes that New York City is the largest city in the Nation - with more than 8,000,000 residents.

The facilities are approximately 3 miles southwest of Peekskill, with a population of 22,441, 5 miles northeast of Haverstraw, with a population of 33,811, 16 miles southeast of Newburgh, with a population of 31,400, and 17 miles northwest of White Plains, with a population of 52,802, 23 miles northwest of Greenwich, Connecticut, 37 miles west of Bridgeport, Connecticut, and 37-39 miles north northeast of Jersey City and Newark, New Jersey.

1 78 Fed. Reg. 56621 (Sept. 13, 2013) (notice of release of proposed draft waste confidence generic environmental impact statement), 78 Fed. Reg. 56776 (Sept. 13, 2013) (notice of release of proposed regulation concerning waste confidence - continued storage of spent nuclear fuel), 78 Fed. Reg. 66858 (Nov. 2013) (extending time due to federal government shutdown).

1

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 25 of 53 With approximately 17 million people currently living within 50 miles of Indian Point, no other operating reactor site in the country comes close to Indian Point in terms of surrounding population. 2 NRC and FEMA confirm that substantially more people live within 10 and 50 miles of the Indian Point reactors, spent fuel pools, and waste storage facilities than at any other operating power reactor in the nation.

NUREG-1437 (1996) at p. 2-2. Moreover, each day tens of thousands of additional people commute or travel into Indian Points 50 mile radius.

In 1979, NRCs Director of State Programs said of the Indian Point site 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. Robert Ryan, NRC Director of State Programs, quoted in STAFF REPORTS TO THE PRESIDENTS COMMISSION ON THE ACCIDENT AT THREE MILE ISLAND (Oct. 1979), Report of the 2 See NUREG-1437 (1996) at §2.2 & Table 2.1 (based on 1990 census); NUREG-1437, Rev. 1 (2013) at

§3.1, Figure 3.1.1, Table 3.1.1 (based on 2000 census). Indian Points current operator projects that the population living within 50 miles of the plant will grow to 19.2 million people by 2035. See Environmental Report for License Renewal of Indian Point Unit 2 and Unit 3 (2007) at 2-35 (The total population (including transient populations) within a 50-mile radius of the site is projected to be 19,228,712 in 2035.).

2

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 26 of 53 Office of Chief Counsel on Emergency Preparedness, at p. 8.

Drinking Water Resources. The reactors and fuel pools are also 6 miles west of the New Croton Reservoir in Westchester County, which is part of the New York City reservoir system and provides drinking water to New York City residents.

They are also in close proximity to other reservoirs in the New York metropolitan area. See Map: DISTANCE TO NEW YORK RESERVOIRS FROM INDIAN POINT SPENT FUEL POOLS AND REACTORS (below).

3

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 27 of 53 DISTANCE TO NEW YORK RESERVOIRS FROM INDIAN POINT SPENT FUEL POOLS AND REACTORS 4

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 28 of 53 To comply with NEPA, NRCs should expand its analysis to include the impact of severe spent fuel pool accidents on drinking water resources within NRCs designated 50-mile Emergency Planning Zone around the Indian Point facilities.

NRC uses a computer code, known as MACCS2, to assist its analysis of severe accidents. The economic cost model of the MACCS2 code is intended to estimate the direct offsite costs from a severe nuclear accident. If other indirect costs were included such as medical expenses, adverse health effects, permanent income loss, costs of disposal of contaminated wastes, and economic impact of losing a resource including the loss of drinking water and replacement for reservoirs during interdiction, the total economic cost would increase. See, e.g., Transcript of Evidentiary Hearing, Indian Point License Renewal Proceeding (Tr.) 2278:7-8 (Bixler) (MACCS2 code does not consider the migration through the ground water.); Tr. 2284:6-10 (Bixler) (MACCS2 code does not account any economic value to the loss of the water. I think what would probably happen in reality is that people would buy bottled water in that area, and consume that. . . . [but it] is not factored in.); Tr. 2285:5-8 (Ghosh) ([A]re we accounting for the economic impact of losing some resource? I just want to comment on that. Certainly, MACCS does not do that.); Tr. 1975:9-20 (J. McDade/Bixler) (While an input parameter called per capita cost of long-term relocation (POPCST) does address unemployment for 20 weeks under Sample Problem A, it does not address permanent salary loss.).

To date, NRCs analysis has not included an acknowledgment and analysis of the cost to replace these drinking water resources that play a critical role in the 5

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 29 of 53 daily life of New York Citys residents. Replacing radionuclide-contaminated drinking water resources for millions of City residents would likely represent a substantial cost.

Topography and Meteorology. The Indian Point facilities were constructed close to the river bank and are located at a relatively low point in the valley formed by the Hudson River. The hills of the Hudson River Valley in the vicinity of the Indian Point facilities are illustrated in the following two topographical presentations.

6

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 30 of 53 The first topographical map depicts the area within five miles of the facilities:

7

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 31 of 53 The following hillshade topographical map depicts the lower Hudson River Valley in the vicinity of the Indian Point site:

8

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 32 of 53 These river, hills, and topography tend to concentrate wind direction to the south (toward the New York City metropolitan area) or towards the north towards the U.S. Military Academy at West Point or Hudson River cities and towns. The following wind rose, prepared by Indian Points owner, illustrates the dominant wind direction.

Figure 3: Plot of Weather for Years 1999 - 2002 from the site 10 meter tower showing wind direction (percent by direction).

Source: color version of figure available on ADAMS, ML093020492. During an evidentiary hearing concerning the application to renew Indian Points two operating license, Entergy agreed that for the area surrounding Indian Point, the wind blows predominantly from the north to the south. Tr. 2294:1-20 (J.

Wardwell/Lemay/OKula).

9

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 33 of 53 The following population rose depicts the relative population densities in the various sectors around Indian Point.

Source: Site Specific MACCS2 Input Data for Indian Point Energy Center, Rev. 1, (December 1, 2009), Enercon Services, Inc. Prepared for Entergy Nuclear Northeast, at 2-7. As noted, winds blow from the Indian Point facilities southward -- towards the New York City metropolitan area.

Improvements and Unique Sites within 50 miles. 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, critical natural resources, centers of national and international commerce, transportation arteries and hubs, 10

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 34 of 53 and historic sites. By way of example, Wall Street, the Nations financial center, is 38 miles away. These unique sites are identified on the accompanying list. See LIST OF VARIOUS SITE SPECIFIC IMPROVEMENTS, INCLUDING LANDMARKS, PARKS, ARENAS, UNIVERSITIES, AND TRANSPORTATION FACILITIES WITHIN 50 MILES OF INDIAN POINT POWER REACTORS AND SPENT FUEL POOL FACILITIES. Many of the historic sites are on the national historic preservation list and are protected under the National Historic Preservation Act. 3 The Hudson River Ecosystem. The Indian Point facilities are located on the eastern bank of the Hudson River (at river mile 43). The Native American name for the river, Mahicantuck, means "great waters in constant motion" or "river that flows two ways." This name highlights the fact that this waterway is more than a river -- it is a tidal estuary. The Hudson River is an important regional resource of significant aesthetic value in addition to providing transportation, recreation, and water supply. More than 200 species of fish are found in the Hudson and its tributaries. Bald eagles, herons, waterfowl, and other birds feed from the river's bounty. Tidal marshes, mudflats, and other significant habitats in and along the estuary support a diversity of life. Tidal freshwater wetlands near Indian Point support this life web. The Hudson River is one of the Nations fourteen American Heritage Rivers.

Seismic Hazard. Indian Point is susceptible to earthquake damage since it 3 See, e.g., Letter from Thomas Lyons, New York State Office of Parks, Recreation, and Historic Preservation, to David Wrona, NRC (Oct. 26, 2010) ML103060210 (as part of NEPA and SAMA review, discussing the Revolutionary War Stony Point Battlefield site, which has been designated a National Historical Landmark by the U.S. Department of the Interior, and stating that the Stony Point Battlefield is an irreplaceable asset to the people of New York State and the Nation.).

11

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 35 of 53 was initially designed to withstand an earthquake and ground acceleration which are now deemed to be below the reasonably predictable earthquake and ground acceleration for the site and its environs. See generally, Declaration of Lynn R.

Sykes, Ph.D., and Declaration of Leonardo Seeber and accompanying Exhibits, (Nov. 2007), available at ML073400205 (Volume I of II); Letter from Attorney General Schneiderman to NRC Commissioners, Seismic Risk at Indian Point Nuclear Generating Station, (March 18, 2011) ML110820058; see also Comments Concerning the Proposed Generic Communication Draft NRC Generic Letter 2011-XX: Seismic Risk Evaluations for Operating Reactors, Docket ID NRC-2011-0202, at 14-19 (Dec. 15, 2011) ML11354A231. In 2008, the Bulletin of the Seismological Society of America published a peer-reviewed article by Dr. Sykes, Mr. Seeber, and others, identifying a new seismic feature in the vicinity of Indian Point.

Observations and Tectonic Setting of Historic and Instrumentally Located Earthquakes in the Greater New York City-Philadelphia Area, BULLETIN OF THE SEISMOLOGICAL SOCIETY OF AMERICA, Vol. 98:1696-1719 (Aug. 2008). The article concluded:

12

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 36 of 53 Id. at 1717.

There is substantial new evidence that there is earthquake risk that NRC did not take into consideration when approving operation licenses for existing reactors and spent fuel storage facilities. In 2004, United States Geological Survey (USGS) told NRC that earthquake hazards in the Central and Eastern United States (CEUS), the portion of the lower 48 states east of the Rocky Mountains, were higher than previously understood. In May 2005 NRC staff acknowledged that earthquake risk for reactors and spent fuel storage in CEUS may be greater than NRC assumed when it approved operating licenses for these facilities. See, e.g.,

May 26, 2005 NRC Staff memorandum re: Identification of a Generic Seismic Issue (available at ML051450456). NRC staffs response to the new USGS earthquake hazard information was to consider issuing a generic letter on the subject of Implications of Updated Probabilistic Seismic Hazard Estimates in Central and Eastern United States. June 9, 2005 NRC staff memorandum Generic Issue 199, Implications of Updated Probabilistic Seismic Hazard Estimates in Central and Eastern United States (available at ML051600272). This memorandum contained an estimate that the initial screening technical analysis will be completed within three months of receipt of the necessary information from [NRCs Office of Nuclear Reactor Regulation]. Id.

The summary of the February 6, 2008 NRC staff public meeting relates that a seismologist working on Generic Issue 199 stated that for some CEUS areas the current earthquake frequency estimates were several times larger than those used 13

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 37 of 53 in the 1980s, and that revised ground motion predictive equations generally produced higher estimates of uncertainty about the effect of earthquakes at these sites. February 8, 2008 NRC staff memorandum

Subject:

Summary of February 6, 2008, Category 2 Public Meeting with the Public and Industry to Discuss Generic Issue 199, Implications of Updated Seismic Hazard Estimates in Central and Eastern United States on Existing Plants, p. 2 (available at ML080350189). 4 Need for Objective Site-Specific Analysis. Given the combination of site-specific characteristics, the decontamination costs and resource replacement costs following a severe accident at Indian Point have the potential to be substantially larger than an accident at any other reactor in the country. Furthermore, in light of the site-specific characteristics and the considerable costs associated with a severe nuclear accident in the New York metropolitan area, mitigation alternatives are likely to be more cost effective at the Indian Point facilities Lack of Site-Specific Analysis of Severe Spent Fuel Pool Accident. Given their regulatory history, the three power reactors and their spent fuel pools located at Indian Point were not subjected to a severe accident mitigation alternatives analysis when AEC and NRC issued the construction permits and operating licenses for those facilities. According to AEC and NRC documents, the Consolidated Edison Company (ConEd) received the following construction 4 The summary also related that a representative of the Electric Power Research Institute (EPRI),

a private organization funded by the electric power industry, stated that it had calculated mean seismic spectra for the 28 sites used in [NRC Regulatory Guide] 1.165. Id. However, EPRI has prevented public review of information and has delayed NRCs reassessment of earthquake hazards.

See, e.g., February 1, 2008 Screening Analysis for GI-199, Implications of Updated Probabilistic Seismic Hazard Estimates in Central and Eastern United States on Existing Plants, p. 2 (available at ML073400477) (EPRI unwilling to share a report with NRC contractor.).

14

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 38 of 53 permits and operation licenses on the following dates:

CONSTRUCTION PERMIT ISSUED OPERATING LICENSE ISSUED IP Unit 1 May 4, 1956 March 26, 1962 IP Unit 2 October 14, 1966 September 28, 1973 IP Unit 3 August 13, 1969 December 12, 1975 Source: Federal Register and NRC Information Digest. 5 When ConEd announced its selection of the Indian Point site back in March 1955 and filed an application for the necessary construction permit, the AEC did not have site selection regulations that addressed population or seismic issues.

To place this initial siting decision in perspective, ConEd selected, and AEC approved, Indian Point as the site for a power reactor before the Windscale -

Sellafield (1957), Three Mile Island (1979), Chernobyl (1986), and multi-unit Fukushima (2011) events. The 1955 selection of Indian Point also came before the enactment of NEPA (1970), the promulgation of CEQ regulations (1978), the Third Circuits Limerick decision (1989), and NRC promulgation of the 10 C.F.R. § 51.53 regulation (1996) that collectively require an analysis of ways to mitigate the impacts of severe accidents at nuclear facilities. In addition, AEC approved the construction of the first reactor and spent fuel pool before Congress enacted in the Price Anderson Act (1957).

5 See 21 Fed. Reg. 3,085 (May 9, 1956); 31 Fed. Reg. 13,616-17 (Oct. 21, 1966); 34 Fed. Reg. 13,437 (Aug. 20, 1969); NUREG-1350, Volume 20, 2008 - 2009 Information Digest, at 103, 113 (Aug. 2008).

15

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 39 of 53 NRC confirms that severe accidents and consequences were not taken into account when selecting and approving the Indian Point site. In its 1979 Siting Study Report, NRC stated:

NRC, Report of the Siting Policy Task force, NUREG-0625 (Aug. 1979) at p. 10, ML12187A284. Moreover, severe accidents to spent fuel pools were not considered by AEC or NRC at the initial licensing stages for Indian Point -- and were not analyzed in the Siting Study Report.

Storage and Accumulation of Spent Nuclear Fuel at Indian Point. When the federal government first licensed the operation of Indian Point Unit 2 and Indian Point Unit 3 it authorized each units single spent fuel pool to hold 241 spent fuel assemblies. NRC subsequently authorized the pools to hold five times (5x) the original limit. The following charts summarize how NRC has authorized increasing amounts of spent nuclear fuel to be stored in the spent fuel pools for Indian Point 16

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 40 of 53 Unit 2 and Unit 3:

IP2 Spent Fuel Pool Storage Limits 6 IP3 Spent Fuel Pool Storage Limits 7 Date Fuel Assemblies Date Fuel Assemblies 1973 264 1975 264 1980 482 1978 840 1985 980 1989 1,345 1989 1,376 Indian Point currently has - and is expected continue to have - substantial amounts of radioactive spent nuclear fuel waste on site. During the May 8, 2012 site visit to the Indian Point facilities by the Atomic Safety and Licensing Board, Entergy representatives made the following statements about Entergys plans for spent nuclear fuel at Indian Point:

(A) All of the spent fuel generated during since the start of commercial operation of Indian Point Unit 3 remains in the Indian Point Unit 3 spent fuel pool (as of the date of the May 2012 site visit);

(B) Entergy has no current plans to construct an additional dry cask storage area (in addition to the existing dry cask storage area); and (C) At the end of operation under any 20-year extension of the current operating licenses, Entergy estimates that the existing dry cask storage area would be filled to capacity and that the Indian Point Unit 2 spent fuel pool and the Indian Point Unit 3 spent fuel pool would be filled to capacity as well.

6 Consolidated Edison, Final Design Report for Reracking the Indian Point Unit No. 2 Spent Fuel Pool, at 1, ML100200292 (May 1980); Consolidated Edison, Supplemental Spent Fuel Safety Analysis, at 3-1, ML100350310 (Nov. 1985); and Consolidated Edison, Indian Point Unit 2 Spent Fuel Pool Increased Storage Capacity Licensing Report, at 1-2, ML100200114 (June 1989).

7 USAEC, Safety Evaluation Report by the Directorate of Licensing U.S. AEC In the Matter of Consolidated Edison Co. of New York, Inc. Indian Point Nuclear Generating Unit No. 3, at 4-1, 9-2, ML072260465 (Sept. 21, 1973); USNRC, Indian Point, Unit 3, Amendment 13, Authorizing Modifications to the Spent Fuel Pool, Increasing Capacity from 264 to 840 Fuel Assemblies, attached to Letter from A. Schwencer, NRC to New York State Power Authority, ML003778668 (Mar. 22, 1978); and USNRC, Indian Point, Unit 3, Amendment 90, Allowing for the Expansion of the Spent Fuel Pool Storage Capacity, attached to Letter from Joseph Neighbors, NRC to New York Power Authority, ML003778816 (Oct. 12, 1989).

17

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 41 of 53 This means that under Entergys plan the sites two operating spent fuel pools will continue the sites dense pool storage practices into the future.

All of these unique characteristics of the Indian Point site demonstrate why it is essential that a site-specific analysis of the potential environmental impacts from the storage of spent fuel at the Indian Point facilities and measures to mitigate those potential impacts must be addressed.

Once NRC recognizes the potential significant environmental impacts that spent fuel storage will have at Indian Point, there are a wide array of mitigation measures and alternatives that it is obligated to consider as part of the NEPA review. First, NRC is obligated to assure that:

the Commission has taken all practicable measures within its jurisdiction to avoid or minimize environmental harm from the alternative selected, and if not, to explain why those measures were not adopted.

10 C.F.R. § 51.103(a)(4). Second, where, as here no legally sufficient prior analysis of spent fuel pool severe accident mitigation alternatives has been completed, NRC is obligated to assure that such an analysis has occurred and that all reasonable severe accident scenarios and mitigation measures have been evaluated. On occasion NRC and its consultants have publicly recognized the much greater potential risk from events occurring in a spent fuel pool including criticality accidents and fire hazards. By way of example, the Sandia National Laboratories have recently acknowledged that reducing the volume of spent fuel in spent fuel pools would mitigate the risks posed by dense storage. See, e.g., Investigations of Zirconium Fires During Spent Fuel Pool LOCAs (Slideshow) (Feb. 7, 2012); see also 18

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 42 of 53 Responding to Fukushima-Daiichi (Speech) (Jan. 31, 2012); Responding to Fukushima-Daiichi (Slideshow) (Jan. 31, 2012); On Site Spent Fuel Criticality Analyses, NRR Action Plan (September 19, 2011) ML11251A210; Sandia National Laboratories, Mitigation of Spent Fuel Pool Loss-of-Coolant Inventory Accidents and Extension of Reference Plant Analyses to Other Spent Fuel Pools (Redacted)

(November 2006); NUREG-1738, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Power Plants (Feb. 2001); NRC Reactor Safety Team (RST), Assessment of Fukushima Daiichi Units, ML11216A018 (Mar. 26, 2011, 2100h) (discussing ejection of fuel and damage to Daiichi facilities).

There are a wide-range of alternatives and mitigation alternatives that should be considered to the current plan to continue to crowd more spent fuel into the spent fuel pools and to maintain their current configuration including suggestions from the National Academy of Sciences, Safety and Security of Commercial Spent Nuclear Fuel Storage: Public Report, The National Academies Press (2006), and by well-respected experts in nuclear power plant safety such as Robert Alvarez, et. al., Reducing the Hazards from Stored Spent Power-Reactor Fuel in the United States, Science and Global Security, Vol. 11:1-51. Among the many feasible and easily implemented measures that could significantly mitigate the environmental impacts of routine operation of spent fuel pools at Indian Point as well as significantly reduce the consequences of severe accidents are the immediate off-loading of all spent fuel that is at least 5 years old to dry cask storage, installation of safety grade spray systems in the spent fuel enclosures to ensure 19

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 43 of 53 replacement water in the event of loss of coolant accident, re-arrangement of the spent fuel in the pools to allow for better circulation in the event of loss of coolant, to mention only a few of the recommendations contained in the reports identified in the Attachments to this letter.

NRC Staff has already ordered that certain measures be taken at nuclear reactors in an attempt to address some of the environmental and safety problems associated with spent fuel storage. In its March 12, 2012 Status Report on Implementation of the Near-Term Task Force Recommendations Based on Insights from the Fukushima Dai-ichi Accident, NRC announced it had ordered that strategies shall be developed to add multiple ways to maintain or restore core cooling, containment and spent fuel pool (SFP) cooling capabilities in order to improve the defense in depth of licensed nuclear power reactors and [l]icensees are ordered to install enhanced SFP instrumentation. Id. at 2-3. These recently-announced, first steps underscore the fact that NRC has now recognized that spent fuel pools represent a potential source of significant adverse environmental impacts for which corrective actions are needed. However, NEPA requires analysis of a full range of site specific alternatives and mitigation measures. Such a full range of alternatives has not been developed or analyzed for Indian Point.

The State is aware of ongoing efforts by NRC to begin to address problems with the spent fuel storage, including the above-mentioned Orders regarding recommendations from the Fukushima Daiichi Near Term Task Force. It is not a satisfactory answer to the States concerns for NRC to indicate that those efforts 20

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 44 of 53 should be a substitute for consideration at this time in major federal rulemaking proceeding of the serious environmental damage that can be caused by the spent fuel pool use and alternatives to mitigate that damage.

As the United States Court of Appeals for the District of Columbia observed in a slightly different context:

By refusing to consider requirement of alterations until construction is completed, the Commission may effectively foreclose the environmental protection desired by Congress. It may also foreclose rigorous consideration of environmental factors at the eventual operating license proceedings. If irreversible and irretrievable commitment[s] of resources have already been made, the license hearing (and any public intervention therein) may become a hollow exercise.

Calvert Cliffs Coordinating Comm. v. Atomic Energy Commn, 449 F.2d 1109, 1128 (D.C. Cir. 1971); accord NRDC v. United States NRC, 539 F.2d 824 (2d Cir. 1976),

vacated sub nom. as moot, Allied-General Nuclear Servs. v. NRDC, 434 U.S. 1030 (1978):

Although an EIS may be supplemented, the critical agency decision must, of course, be made after the supplement has been circulated, considered and discussed in the light of the alternatives, not before.

Otherwise the process becomes a useless ritual, defeating the purpose of NEPA, and rather making a mockery of it. (Natural Resources Defense Council, Inc. v. Callaway, supra, 524 F.2d at 92.)

NRDC, 539 F.2d at 845.

As NRC seeks to fulfill its mandate under the National Environmental Policy Act and examine the site-specific environmental impacts associated with authorizing the operation of Indian Point facilities in the future, it should in a proactive way address the issue of how it deals with severe nuclear events - be they 21

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 45 of 53 releases from reactors or spent fuel pools - that lead to significant environmental impacts including, as in the case of Japan, land contamination and displacement, perhaps permanently, of people from their homes and their livelihoods and their communities.

II. Need for Site-Specific and Site-Wide Severe Accident Review for the Indian Point Facilities Recent events should compel NRC to conduct a site specific analysis of spent fuel pool risks. Such events include: the U.S. government has withdrawn its application to create a spent nuclear fuel repository at Yucca Mountain; events in Japan and Virginia demonstrated that external events (such as earthquakes or flooding) can pose severe risks to spent nuclear fuel residing at nuclear plants; the Tennessee Valley Authority, a federal agency that operates commercial nuclear reactors, has announced plans to consider an alternative strategy to shift spent nuclear fuel from spent fuel pools to dry cask storage; and recently-released NRC and Sandia National Laboratories documents confirm the States concern and that alternatives are readily available. These developments indicate that spent nuclear fuel will continue to be housed indefinitely in densely-packed spent fuel pools at individual nuclear reactor sites, that such storage entails substantial, yet differing, site-specific risks due to the potential for seismic activity and other external events, and also, that alternatives exist to mitigate these site-specific impacts.

Based on the experience it has gained in the Indian Point license renewal proceeding, the State of New York has concerns over the scope and adequacy of the required site-specific analyses of severe accidents at nuclear power plants, known as 22

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 46 of 53 severe accident mitigation alternatives analyses, or SAMA analyses. NRC conducts SAMA analyses pursuant to NEPA and as a result of the Third Circuits ruling in Limerick Ecology Action, Inc. v. Nuclear Regulatory Commission, 869 F.2d 719 (3d Cir. 1989). The SAMA analyses submitted with license renewal applications examine only severe accidents resulting in releases from the reactor core; they do not consider the site-specific impacts of spent fuel pool accidents.

Because NRC Staff and reactor owners do not consider the environmental impacts of spent fuel pool accidents as part of their NEPA analysis when reviewing an application to renew an operating license, they do not consider alternatives to current spent fuel pool storage configurations. Moreover, NRC Staff and the industry steadfastly oppose any State or citizen request under NEPA to review the environmental impacts of spent fuel pool accidents or alternatives to current spent fuel pool practices. It does not appear that NRC Staffs NEPA-based SAMA analyses take severe accidents resulting in a radiological release from the spent fuel pools into consideration at all. This is a significant gap in Staffs NEPA analyses.

To close that gap, the State requests that NRC perform a site-specific analysis of severe accidents to include both reactor core and spent fuel pool releases as well as the means and alternatives to mitigate the impacts of such accidents.

The State also wishes to bring to the NRC's attention a separate concern over the conduct of site-specific severe accident mitigation alternatives analyses.

Separate and apart from the concern over dense storage of spent nuclear fuel in spent fuel pools, the State is also concerned that site-specific SAMA alternatives 23

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 47 of 53 have relied on inputs developed for Surry, a relatively rural reactor site, that are not appropriate for reactors whose emergency planning zones include more suburban or urban areas. The site-specific analysis of potential severe accidents must rely on site-specific data from the region around the specific reactor in question, and not replicate the data from the Surry site or a sample problem for a computer code.

III. Generation of Spent Nuclear Fuel A nuclear reactor is powered by enriched uranium fuel. Fission (the splitting of atoms) generates heat, which produces steam that turns turbines to produce electricity. Over time, the ability of nuclear fuel to produce sufficient fission to generate commercial quantities of energy diminishes. After it has been used to generate power in a reactor core for approximately six years, plant operators remove the spent nuclear fuel and replace it with new nuclear fuel. The spent nuclear fuel removed from the reactor core is transferred to a swimming pool-like structure known as a spent fuel pool. Although it no longer produces sufficient fission to generate commercial amounts of energy, spent nuclear fuel continues to give off significant amounts of thermal energy (or heat) and radiation after the fuel is removed from the reactor.

Unlike the reactor core, spent fuel pools are located outside containment.

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USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 48 of 53 ATTACHMENT 3

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 49 of 53 Testimony of New York State Attorney General Eric T. Schneiderman on the Waste Confidence Draft Generic Environmental Impact Statement (DGEIS) and Proposed Rule October 30, 2013 Good evening. My name is Janice Dean. Im an Assistant Attorney General in the New York State Attorney General's Environmental Protection Bureau. I offer comments tonight on behalf of Attorney General Eric Schneiderman. Attorney General Schneiderman thanks the NRC for the opportunity to comment on the Waste Confidence Draft Generic Environmental Impact Statement, which I will refer to as the DGEIS, and the related rulemaking.

As you know, Attorney General Schneiderman led the coalition of states that brought a successful challenge last year to the Temporary Storage Rule in the United States Court of Appeals for the District of Columbia Circuit. This successful challenge resulted in NRC embarking on the DGEIS currently under evaluation. However, the DGEIS is significantly flawed.

The proposed environmental analysis concerns one of the most dangerous materials on the planet and the long term storage of that material in spent fuel pools here in Westchester County and at other nuclear power plants around the Nation. The Westchester storage site has the highest surrounding population of any such site in the Nation - more than 17 million people live within 50 miles of Indian Point and there are critical water resources and infrastructure developments close to the site.

The DGEIS recognizes that spent fuel pools are susceptible to fires and that a fire would have severe consequences comparable to those of a severe nuclear reactor accident. However, the DGEIS is critically flawed because it attempts to analyze those consequences generically for all nuclear facilities based on the modeled consequences of severe accidents at two nuclear power plants located in rural or less populated areas.

Accident consequence factors specific to Indian Point - such as surrounding population, building density, critical infrastructure and proximity to significant surface drinking water supplies - have not been taken into consideration in assessing the consequences of a fire or other spent fuel pool accident.

Generic review of accident risk at Indian Point is inappropriate because the consequences of a spent fuel pool accident in the densely populated areas surrounding Indian Point are significantly greater than in the rural or less populated areas in which the reference plants are located. Either the NRC must conduct site-specific analysis of environmental impacts of a severe accident at the Indian Point spent fuel pools, or use 1

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 50 of 53 the Indian Point site, and not less-populated sites, as its baseline for spent fuel pool accident risk nationwide.

NRC also assumed - with no factual basis - that all nuclear waste would be gone from spent fuel pools by sixty years after the licensed life of a power plant.

Currently, there is no available off-site location to store high-level nuclear waste from those facilities - or even an on-going process to identify such a site. As such, the DGEIS fails to meet the requirements of the Circuit Court's ruling by making decisions based on an unsubstantiated hope that the waste will be gone by then.

Attorney General Schneiderman led the successful challenge in 2012 to the Temporary Storage Rule because he believes that communities that serve as de facto long-term nuclear waste repositories deserve a full and detailed accounting of the environmental, public health, and safety risks. Unfortunately, he believes that the Waste Confidence DGEIS, as presented, fails to provide such a full and detailed accounting, and therefore, fails our communities. Attorney General Schneiderman looks forward to the Commission addressing the draft's deficiencies in this ongoing rule making process.

The Attorney General expresses his appreciation to the NRC for the opportunity to comment on the DGEIS, and looks forward to submitting additional written comments during the comment period.

Thank you.

2

USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 51 of 53 ATTACHMENT 4

A.G. Schneiderman Statement Criticizes NRC Assessment Of Risks Of Storing Nuclear ... Page 1 of 3 USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 52 of 53 Home >> Media Center >> Press Releases >> October 30th 2013 New York City Press Office: (212) 416-8060 A.G. Schneiderman Statement Criticizes NRC Assessment Of Albany Press Office: (518) 473-5525 Risks Of Storing Nuclear Waste In Our Communities nyag.pressoffice@ag.ny.gov Attorney General Calls On Federal Nuclear Regulators To Address Deficiencies In Assessment Of Environmental, Public Health And Safety Risks Of Long-Term Waste Storage At Nuclear Power Plants, Including Indian Point A.G. Schneiderman & Commissioner Bratton Announce Takedown Of Schneiderman: Communities That Serve As De Facto Nuclear Waste Repositories Brooklyn-Based Gun Trafficking Ring Deserve A Full And Detailed Accounting Of The Risks NEW YORK -- Attorney General Eric T. Schneiderman today calls on the Nuclear Regulatory Commission (NRC) to strengthen its proposed assessment of the environmental, public health and safety risks of storing highly radioactive nuclear wastes on-site at the more than 100 reactors around the country, including the three Indian Point reactors in Westchester County, for 60 or more years after the reactors are closed. The Attorney General's remarks will be delivered this evening by an assistant attorney general from his Environmental Protection Bureau at a public meeting held by the NRC in Tarrytown on the proposed assessment, the Waste Confidence Draft Generic Environmental Impact Statement or DGEIS.

A.G. Sponsors LI Gun Buyback As Part Of Program For Safe Streets And Safe The testimony at the hearing includes this statement:

Homes "Attorney General Schneiderman led the successful challenge in 2012 to the Temporary Storage Rule because he believes that communities that serve as de facto long-term nuclear waste repositories deserve a full and detailed accounting of the environmental, public health, and safety risks. Unfortunately, he believes that the Waste Confidence DGEIS, as presented, fails to provide such a full and detailed accounting, and therefore, fails our communities. Attorney General Schneiderman looks forward to the Commission addressing the draft's deficiencies in this ongoing rule making process."

The entire statement can be viewed here.

Press Releases The DGEIS was prepared by the NRC in response to Attorney General Schneiderman's successful court challenge to the commission's Temporary Storage Rule in which the NRC had 2014 found, without conducting necessary studies, that no significant safety or environmental impacts will result from long-term, on-site storage of radioactive waste at nuclear power plants. January In 2012, a federal circuit court agreed with Attorney General Schneiderman that federal law February requires the NRC to complete a thorough analysis of the public health, safety and environmental March hazards such storage would pose before allowing the long-term storage of nuclear waste in communities. In reaching its decision, the court found that the spent nuclear fuel stored on-site April at nuclear power plants poses a dangerous, long-term health and environmental risk. May June In his court challenge to the NRC's Temporary Storage Rule, the Attorney General argued that full compliance with the National Environmental Policy Act requires the commission to conduct July a rigorous analysis of the potential for environmental, health and safety impacts from long-term, on-site radioactive waste storage. An analysis of this type, if conducted thoroughly and 2013 objectively, would identify any environmental, health and safety risks related to long-term, onsite storage of radioactive waste at each site, as well as those mitigation measures (such as January increased groundwater monitoring, transfer of spent fuel from pools to dry storage casks, or February repair of leaking spent fuel pools) needed to fully address them.

March However, in his testimony today, Attorney General Schneiderman calls the DGEIS prepared by April the NRC "significantly flawed." For example, he notes that, while it recognizes that spent fuel May pools are susceptible to fires and that a fire would have severe consequences comparable to June those of a severe nuclear accident, the assessment treats the consequences of such an accident July generically and uses two nuclear power plants located in rural or low-population areas as its basis. The 50 miles around Indian Point, by contrast, are home to 17 million people. Attorney August General Schneiderman argues that a generic review of a spent fuel pool accident risk, as September http://www.ag.ny.gov/press-release/ag-schneiderman-statement-criticizes-nrc-assessment... 11/20/2014

A.G. Schneiderman Statement Criticizes NRC Assessment Of Risks Of Storing Nuclear ... Page 2 of 3 USCA Case #14-1210 Document #1524232 Filed: 11/25/2014 Page 53 of 53 performed by the NRC for the DGEIS, at the Indian Point facility is inappropriate given that the October consequences of such an accident in the densely populated areas that surround the facility November would be substantially greater than in rural or less populated areas.

December The Attorney General's testimony also faults the NRC for assuming, with no factual 2012 basis, that all nuclear waste will be removed from the spent fuel pools of the nation's nuclear power plants by 60 years after the plants are closed. He notes that, currently, there January is no available off-site location to store high-level nuclear waste from those facilities. The Attorney General states in his testimony that the DGEIS fails to meet the requirements of the February circuit court's ruling by making decisions based on an "unsubstantiated hope" that sufficient, March licensed, off-site radioactive waste storage capacity will be available to accept nuclear plant April waste within 60 years.

May Attorney General Schneiderman intends to provide additional written comments during the June comment period on the DGEIS, which ends on December 20th.

July The public meeting this evening begins at 7:00 P.M. at the Westchester Marriott, located at 670 August White Plains Road in Tarrytown. September October This matter is being handled by Assistant Attorneys General Janice Dean and John Sipos of the Attorney Generals Environmental Protection Bureau, under the supervision of Bureau Chief November Lemuel M. Srolovic, Executive Deputy Attorney General for Social Justice Alvin Bragg and First December Deputy for Affirmative Litigation Janet Sabel.

2011 January February March April May June July August September October November December Archived 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 Search http://www.ag.ny.gov/press-release/ag-schneiderman-statement-criticizes-nrc-assessment... 11/20/2014

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