ML13100A265

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Hydrogeologic Site Investigation Report Indian Point Energy Center Buchanan, New York. Part 3 of 3
ML13100A265
Person / Time
Site: Indian Point Entergy icon.png
Issue date: 01/07/2008
From: Barvenik M, Powers M, Winslow D
HydroGeoLogic, State of NY, Office of the Attorney General
To: Evers R
Enercon Services, Atomic Safety and Licensing Board Panel
References
1.0017869.10
Download: ML13100A265 (40)
v • d • e


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Entergy's Objections to Declaration of Roy A. Jacobson, Jr.

(hereinafter "Jacobson Declaration")

Source: Jacobson Declaration, at ¶ 4 Statement: Thus, the total amount of water used each day for both units tinder these conditions is approximately 2.5 billion gallons. This volume of water is by far the greatest single industrial use of water in New York State and is more than the combined water use of two other major Hudson River power plants (Roseton Generating Station and Bowline Generating Station). Put another way, Indian Point uses all the water in a 450-acre lake (15 foot deep) each day.

Objection(s):

  • Relevance: The question of whether the Indian Point facility uses a significant amount of water is an irrelevant contention for this NRC proceeding. Entergy has submitted a valid SPDES permit (which explicitly states that it meets all state criteria by incorporating the HRSA) and the HRSA, which is an effective variance from the state criteria. The NRC may not, therefore, consider the water usage of Entergy's cooling water intake systems in determining whether to approve Entergy's application. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

Source: Jacobson Declaration, at 1 9 Statement: However, research conducted on the Hudson River and elsewhere has shown that aquatic organisms suffer substantial mortality due to impingement and entrainment in the cooling water systems of power plants.

Objection(s):

  • Speculation: Mr. Jacobson sets forth no facts or data showing with any degree of certainty why generalizations about other power plants are applicable to Indian Point. Specifically, Mr. Jacobson does not account for abatement measures such as installation of Ristroph screens or the high survival rate of entrained fish eggs and larvae. See In re S. Nuclear Operating Co. (Vogel ESP Site), 52-011-ESP, 65 N.R.C. 237, 254 (2007) (observing that "neither mere speculation. nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention");

In re Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 070-03098-ML, 61 N.R.C. 71, 80 (2005) (noting that "[wihile the expert's method

  • for forming his opinion need not be generally recognized in the scientific community, the opinion must be based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation"'); see also Pelletierv. Main Street Textiles, 470 F.3d 48, 52 (1st Cir. 2006) (concluding plaintiff's expert's opinion was speculative and was based on insufficient facts and data because he had never visited the site of the accident and apparently based his opinions on deposition testimony and preliminary expert reports about the accident); Bouchard v. N.Y. Archdiocese, No. 04 Civ. 9978 (CSH), 2006 WL 3025883, at *7 (S.D.N.Y. Oct. 24, 2006) (concluding expert's opinions were "argumentative and
  • conclusory" because they were speculative and not based on sufficient facts and data); Colt Defense LLC v. Bushmaster Firearms,Inc., No. Civ. 4-240-P-S, 2005 WL 2293909, at *4 LIBAJ1860558.1

(D. Me. Sept. 20, 2005) (concluding plaintiff failed to demonstrate the qualifications of its expert, because the expert, who grounded his opinion in an inadequate review of secondary sources, failed to base his expert opinion on sufficient facts or data); see also FED. PROC. § 80:225 (June 2006) ("In keeping with the judicially expressed notion that experts' opinions are worthless without data and reasons, FRE 702, as amended in 2000, requires as one of the conditions of the admissibility of expert testimony that the testimony be based upon sufficient facts or data, as opposed to hypotheses and "guesstimations" which have little grounding in actual physical realities. Thus, evidence is subject to exclusion where it is not founded on objective data, studies, or sampling techniques.") (internal citations omitted);

Clough v. Szymanski, 809 N.Y.S.2d 707, 709 (N.Y. Supr. Ct. 2006) ("[mlere speculation, including that set forth in an expert's affidavit, is insufficient to raise an issue of fact").

Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See In re Duke Energy Corporation,(Catawba Nuclear Station), CLI-04-21, 60 N.R.C. 21, 27 (2004) (a "witness may qualify as an expert by 'knowledge, skill, experience, training, or education' to testify '[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue"'); In re Duke Power Co. (McGuire Nuclear Station), 50-369-OL, 15 N.R.C. 453, 474-75 (1982) (affirming decision finding expert to be unqualified where "his claimed expertise on the subjects at issue rest[ed] mainly on his asserted ability to 'understand and evaluate' matters of a technical nature due to his background of 'academic and practical training' and

'years of reading AEC and NRC documents"').

Source: Jacobson Declaration, at I 10 Statement: Impingement occurs when large aquatic organisms, such as fish, are trapped against intake screens that are used to keep debris from clogging the mechanisms of the plant. Screens at most electrical generating stations are constructed of 3/8 inch square wire mesh mounted in frames that are attached to chains and sprockets. Screens of this type are commonly referred to as "'traveling screens" and can be rotated continuously or at regular intervals to wash off debris and aquatic organisms. Fish larger than about two inches long are trapped against the screens while smaller organisms pass through the screens.

Objection(s):

" Relevance: Mr. Jacobson's background discussion of impingement is irrelevant - Indian Point uses Ristroph modified screens as opposed to traveling screens. Furthermore, Mr.

Jacobson's generalizations about power plants without specifically discussing measures taken at Indian Point are not admissible without further foundation. See 10 C.F.R. § 2.337(a)

("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

" Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

2 LIBA/1860558.1

Source: Jacobson Declaration, at ¶ 11 Statement: Fish trapped on the screens can be killed or otherwise harmed from contacting both the screens and the debris that accumulates on the screens. In addition, as the screens are rotated for cleaning, fish may be trapped out of water for extended periods and deprived of oxygen, which causes them to suffocate. Substantial mortality can occur for some species, such as bay anchovy, even with continuously rotated traveling screens and a functioning system to return fish back to the waterbody. Between 1974 and 1990, when the impingement sampling was conducted at Indian Point, tens of thousands, and even millions, of Bay anchovy were impinged at IP2 and 1P3 annually. (Citations omitted).

Objection(s):

  • Relevance: Mr. Jacobson's background discussion of impingement is irrelevant - Indian Point uses Ristroph modified screens as opposed to traveling screens. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

" Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at ¶ 13 Statement: In addition to impingement, aquatic organisms can also become entrained.

Entrainment occurs when small aquatic organisms are drawn into and pass through the intake traveling screens with the cooling water. These organisms, including early life stages of fishes, are smaller and generally very delicate. As these tiny life forms move through a facility's cooling system, they are subjected to injury from contacting screens, pump mechanisms, and piping. In addition, they are exposed to significant and sudden changes in water temperature and pressure. The additive effects of these stressors result in the mortality of most entrained fish. In other words, most entrained fish die.

Objection(s):

  • Misleading and mischaracterizes evidence: Ample evidence demonstrates that survival rates from both impingement and entrainment are high. Furthermore, the Petitioner's evidence shows only that millions of fish eggs and larvae are entrained, not actual fish. Moreover, nothing in the AG's filings justifies equating fish eggs and larvae to grown fish. The Petitioner's argument that large numbers of eggs and larvae entrained equate to large impacts on fish populations is not scientifically valid, as explained in Section 2.2 of the AEI*Report.

Fish that spawn in estuaries produce a very large numbers of eggs to ensure that sufficient offspring will survive to sustain the populations, even in an environment characterized by the presence of multiple stressors. Declaration of Douglas G. Heimbuch, Ph.D. in Opposition to Riverkeeper Proposed Contention EC- 1 and New York Attorney General Contention 31 ¶ 16 (hereinafter "Heimbuch Declaration"). For example, more than 99.99% of striped bass eggs 3

L1BA/1860558.1

die from natural causes within 60 days following spawning. Less than one striped bass egg in 100,000 is likely to survive to become a one-year-old fish. Because nearly all of the eggs and larvae entrained at IP2 and IP3 would have died in any case, counts of total numbers entrained reveal nothing meaningful about the potential impact of IP2 and IP3 on fish populations. Riverkeeper's attempt to mislead the NRC with entrainment figures lacking both factual support and explanation is misleading and should be rejected.

  • Relevance: Mr. Jacobson's background discussion of impingement is irrelevant - Indian Point uses Ristroph modified screens as opposed to traveling screens. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").
  • Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at¶ 15 Statement: The millions of fish that are killed each year from operations at Indian Point represent a significant mortality and a stress on the River's fish community.

Objection(s):

  • Misleading and mischaracterizes evidence: Ample evidence demonstrates that survival rates from both impingement and entrainment are high. Furthermore, the Petitioner's evidence shows only that millions of fish eggs and larvae are entrained, not actual fish. Moreover, nothing in the Petitioner's filings justifies equating fish eggs and larvae to grown fish. The Petitioner's argument that large numbers of eggs and larvae entrained equate to large impacts on fish populations is not scientifically valid, as explained in Section 2.2 of the AEI Report.

Fish that spawn in estuaries produce a very large numbers of eggs to ensure that sufficient offspring will survive to sustain the populations, even in an environment characterized by the presence of multiple stressors. Heimbuch Declaration at 16. For example, more than 99.99% of striped bass eggs die from natural causes within 60 days following spawning.

Less than one striped bass egg in 100,000 is likely to survive to become a one-year-old fish.

Because nearly all of the eggs and larvae entrained at IP2 and IP3 would have died in any case, counts of total numbers entrained reveal nothing meaningful about the potential impact of IP2 and IP3 on fish populations. Riverkeeper's attempt to mislead the NRC with entrainment figures lacking both factual support and explanation is misleading and should be rejected.

  • Relevance: Mr. Jacobson's background discussion of impingement is irrelevant - Indian Point uses Ristroph modified screens as opposed to traveling screens. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").
  • Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling 4

LIBA/1860558.1

since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at¶ 17 Statement: Annual in-plant impingement sampling was conducted at IP2 and IP3 between 1976 and 1990, and the data demonstrate that impingement figures are significant. During that time, impingement ranged between 850,000 to almost 6.5 million fish per year, with an average of 1.18 million fish impinged per year over the last five years of sampling (1986-1990). (citations omitted). Since impingement sampling was conducted more than 10 years ago, the Department asked Entergy, as part of the SPDES permit review process, for more recent estimates of impingement at IP2 and IP3. Consultants working for Entergy (ASA Analysis and Communication) developed an algorithm to adjust the 1986-1990 data to account for estimated changes in fish abundance since that time. This algorithm uses data from annual sampling of the Hudson River (Fall Juvenile Survey) and is based on the ratio of fish abundance when in-plant sampling was conducted (1986-1990) to more recent sampling (1997-2001). Using this algorithm, Entergy estimated that current baseline impingement at IP2 and IP3 is about 350,000 fish/year. (citations omitted). This estimate is one third the number estimated from in-plant sampling in the late 1980s. The decrease presumably is a reflection of declines in the numbers of juvenile and older fish in the waters near Indian Point.

Objection(s):

" Relevance: Mr. Jacobson's background discussion of impingement is irrelevant - Indian Point uses Ristroph modified screens as opposed to traveling screens. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

  • Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at¶ 18 Statement: I have reviewed Entergy's Environmental Report submitted with its license renewal application, and I note that it does not provide any estimate of the actual numbers of fish impinged at either IP2 or IP3. Nowhere in the six pages of analysis regarding impingement are the actual numbers of fish impinged provided. In my view, that is a major omission because it fails to acknowledge a significant and obvious environmental impact of once-through cooling Objection(s):

  • Relevance: Mr. Jacobson's subjective belief that Entergy's lack of quantitative analysis is a "major omission" is irrelevant since such an analysis is not required in this NRC proceeding.

See 10C.F.R. 51.53(c)(3)(ii) et. seq.; see also 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

5 LIBA/1860558.1

Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at ¶ 20 Statement: The number of fish entrained by the two Indian Point plants is astounding, with over 1.2 billion fish eggs and larvae entrained each year. (citations omitted). This estimate was generated based on inplant entrainment sampling conducted by the previous owners of IP2 and IP3 between 1981 and 1987, and only included estimates of entrainment for bay anchovy, striped bass, river herring (Alosa spp.), American shad, and white perch. More recently, Entergy's consultants created an algorithm to account for changes in fish populations since in-plant data were collected and estimated that over 1.3 billion fish eggs and larvae were entrained each year.

See ASA 2003 Response, p. 16, Exhibit G. This estimate included all the species of the earlier estimate and an additional species, Atlantic tomcod.

Objection(s):

  • Misleading and mischaracterizes evidence: Ample evidence demonstrates that survival rates from both impingement and entrainment are high. Furthermore, the Petitioner's evidence shows only that millions of fish eggs and larvae are entrained, not actual fish. Moreover, nothing in the AG's filings justifies equating fish eggs and larvae to grown fish. The Petitioner's argument that large numbers of eggs and larvae entrained equate to large impacts on fish populations is not scientifically valid, as explained in Section 2.2 of the AEI Report.

Fish that spawn in estuaries produce a very large numbers of eggs to ensure that sufficient offspring will survive to sustain the populations, even in an environment characterized by the presence of multiple stressors. Heimbuch Declaration at 16. For example, more than 99.99% of striped bass eggs die from natural causes within 60 days following spawning.

Less than one striped bass egg in 100,000 is likely to survive to become a one-year-old fish.

Because nearly all of the eggs and larvae entrained at IP2 and IP3 would have died in any case, counts of total numbers entrained reveal nothing meaningful about the potential impact of IP2 and IP3 on fish populations. Riverkeeper's attempt to mislead the NRC with entrainment figures lacking both factual support and explanation is misleading and should be rejected.

Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at ¶ 21 Statement: Just as Entergy's Environmental Report does not provide any estimate of the numbers of fish impinged at either IP2 or IP3, it also does not provide any estimate of the actual numbers of fish entrained at both plants. Nowhere in the five plus pages of analysis regarding 6

LIBA/ 1860558.1

entrainment are the actual numbers of fish eggs and larvae entrained provided. In my opinion, that, too, is a major omission of a significant and obvious environmental impact of once-through cooling.

Objection(s):

  • Relevance: Mr. Jacobson's subjective belief that Entergy's lack of quantitative analysis is a "major omission" is irrelevant since such an analysis is not required in this NRC proceeding.

See 10 C.F.R. 51.53(c)(3)(ii) et. seq.; see also 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

  • Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at ¶ 22 Statement: In 1991, Ristroph screens with fish return systems were installed at Indian Point and survival of impinged fish was estimated to be about 70%. While 70% survival is consistent with other estimates of fish protective screens (See Jinks 2003, Exhibit D ), this estimate is based on simulation studies conducted off site using a prototype Ristroph system and not the actual systems at use at IP2 or IP3. The actual benefit to fish impinged on the Ristroph screens currently in use at Indian Point has never been measured and could vary from this estimate.

Objection(s):

  • Speculation: Mr. Jacobson sets forth no facts or data showing with any degree of certainty why estimates of survival rates due to impingement after installation of Ristroph screens "could vary" from estimates in scientific literature. See Vogel, 52-01 I-ESP, 65 N.R.C. at 253; Savannah River, 070-03098-ML, 61 N.R.C. at 80; see also Pelletier,470 F.3d at 52; Bouchard, 2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.
  • Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at ¶ 23 Statement: While reductions in the mortality of impinged fish have been achieved at lP2 and IP3, few reductions in entrainment have been realized. In the past several years, Indian Point has taken refueling outages during March when only a small fraction of the total fish eggs and larvae

  • are in the water column. In addition, IP2 and IP3 have reduced cooling water flow between October and early June when river water temperatures are relatively low. However, most of these flow reductions occur when relatively few fish eggs and larvae are in the water column.

Consequently, all of these operational measures combined result in only a 30% reduction in 7

LIBA/1860558.1

entrainment.

Objection(s):

  • Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at ¶ 24 Statement: Other than closed-cycle cooling, few options are available to substantially reduce entrainment and impingement mortality at Indian Point. Those that have been developed have had varying degrees of success, but few could substantially reduce entrainment and impingement mortality beyond current conditions. For example, behavioral devices that deter fishes from entering the cooling water intake - such as angled screens, intakes with escape passageways, and sonic deterrent systems (none of which are used at Indian Point) - have been effective to varying degrees. However, these systems can only reduce impingement since they are only effective on fish with a well-developed ability to swim (juvenile and adult fish). In addition, angled screens and escape passageways would not likely reduce impingement mortality much beyond the Ristroph screens currently in use at IP2 and IP3, and sonic deterrent systems would provide limited additional benefit for reducing impingement since they are only effective on alewife and herring.

Objection(s):

  • Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Jacobson Declaration, at ¶ 25 Statement: The only technology for substantially reducing entrainment at IP2 and IP3 is closed-cycle cooling. Use of closed-cycle cooling systems at IP2 and IP3 would result in substantial reductions in cooling water use compared to the current once-through cooling system because cooling water would be recirculated and waste heat would be dissipated using cooling towers.

Reductions in entrainment and impingement would be substantial using closed-cycle cooling.

Entergy's consultants estimated that use of closed-cycle cooling systems at IP2 and IP3 would reduce both impingement and entrainment by about 98%. See ASA 2003 Response, pp. 16-17, Exhibit G.

Objection(s):

  • Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

8 LIBA/1860558.1

Source: Jacobson Declaration, at T 28 Statement: Since in-plant impingement sampling has not been conducted in well over ten years, no accurate estimates exist of the numbers of shortnose sturgeon currently being impinged.

However, twenty-eight shortnose sturgeon were collected in impingement samples between 1977 and 1990. Since impingement collections were only conducted during a small fraction of that period, the number of sturgeon that were actually impinged at IP2 and IP3 is likely much greater.

Indeed, the NMFS estimated the number of shortnose sturgeon impinged at IP2 and IP3 to be 63 from 1972-1998.

Objection(s):

  • Speculation: Mr. Jacobson sets forth no facts or data showing with any degree of certainty why "the number of sturgeon that were actually impinged at IP2 and IP3 is likely much greater" than estimates. See Vogel,52-011 -ESP, 65 N.R.C. at 253; Savannah River, 070-03098-ML, 61 N.R.C. at 80; see also Pelletier,470 F.3d at 52; Bouchard, 2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.
  • Mr. Jacobson is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

9 LIBA/1860558.1

Entergy's Objections to Declaration of David W. Dilks (hereinafter "Dilks Declaration")

Source: Dilks Declaration, at ¶ 2 Statement: I reviewed numerous documents to determine whether the substantial thermal discharges from the Indian Point Nuclear Generating Facility meet New York State regulatory requirements for those discharges.

Objection(s):

" Relevance: Dr. Dilks's investigation of "the substantial thermal discharges from the Indian Point Nuclear Generating Facility meet New York State regulatory requirements" is irrelevant because a thermal analysis is unnecessary pursuant to 10 C.F.R.

§51.53(c)(3)(ii)(B); see also 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

  • Entergy operates under a current NYSDEC-issued SPDES permit, in which the NYSDEC explicitly states that Indian Point meets the New York State Criteria Governing Thermal Discharges (1987 SPDES Permit, at 11).

Source: Dilks Declaration, at ¶ 3 Statement: All of the technical analyses conducted related to the thermal discharges from the two Indian Point nuclear power plants clearly indicate that the discharges do not meet New York State water quality criteria.

The operator of the Indian Point Nuclear Generating Facility has failed to demonstrate that it meets the New York State water quality standard for thermal discharges because the analyses that the operator uses in its demonstration that the discharges "will assure the presence of a balanced and indigenous population of aquatic organisms" are laced with significant uncertainties, which relate to both the modeling conducted to estimate the temperature increases in the Hudson River and the biological assessment of the impacts of those temperature increases.

The operator of Indian Point is using outmoded technology with its once-through cooling system, and closed-cycle cooling water intake structures would mitigate substantially the impacts from the thermal discharges at Indian Point.

Objection(s):

  • Entergy operates under a current NYSDEC-issued SPDES permit, which explicitly states that it meets the New. York State Criteria Governing Thermal Discharges (1987 SPDES Permit, at 11).

" Whether Indian Point meets New York State water quality criteria is irrelevant because a.

thermal analysis is unnecessary pursuant to 10 C.F.R. §51.53(c)(3)(ii)(B). Compliance with 10 C.F.R. §51.53(c)(3)(ii)(B) renders contentions regarding cooling towers moot and, therefore, immaterial. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable 10 LIBA/1860558.1

evidence which is not unduly repetitious will be admitted").

Dr. Dilks is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See In re Duke Energy Corporation,(Catawba Nuclear Station), CLI-04-21, 60 N.R.C. 21, 27 (2004) (a "witness may qualify as an expert by 'knowledge, skill, experience, training,.or education' to testify '[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue"'); In re Duke Power Co. (McGuire Nuclear Station), 50-369-OL, 15 N.R.C. 453, 474-75 (1982) (affirming decision finding expert to be unqualified where "his claimed expertise on the subjects at issue rest[ed] mainly on his asserted ability to 'understand and evaluate' matters of a technical nature due to his background of 'academic and practical training' and 'years of reading AEC and NRC documents"').

Source: Dilks Declaration, at ¶6 Statement: IP2 and IP3 draw enormous amounts of water - 2.5 billion gallons each day.

Nearly all of this water is eventually discharged into the Hudson River, but at a much higher temperature because it has been used to cool the plants' operations. Collectively, the maximum permitted thermal discharge for IP2 and IP3 is for trillions of BTUs of total heat per year. Based on my review of the EPA Permit Compliance System, these BTU limits are hundreds of times larger than most power facilities.

Objection(s):

  • Speculation: Dr. Dilks sets forth insufficient facts and data to support his statement that Indian Point's "BTU limits are hundreds of times larger than most power facilities." See In re S. Nuclear Operating Co. (Vogel ESP Site), 52-01 1-ESP, 65 N.R.C. 237, 254 (2007)

(observing that "neither mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention"); In re Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 070-03098-ML, 61 N.R.C. 71, 80 (2005) (noting that "[w]hile the expert's method for forming his opinion need not be generally recognized in the scientific community, the opinion must be based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation"'); see also Pelletierv. Main Street Textiles, 470 F.3d 48, 52 (1st Cir. 2006) (concluding plaintiff's expert's opinion was speculative and was based on insufficient facts and data because he had never visited the site of the accident and apparently based his opinions on deposition testimony and preliminary expert reports about the accident); Bouchard v. N.Y. Archdiocese, No. 04.Civ. 9978 (CSH),

2006 WL 3025883, at *7 (S.D.N.Y. Oct. 24, 2006) (concluding expert's opinions were "argumentative and conclusory" because they were speculative and not based on sufficient facts and data); Colt Defense LLC v. Bushmaster Firearms,Inc., No. Civ. 4-240-P-S, 2005 WL 2293909, at *4 (D. Me. Sept. 20, 2005) (concluding plaintiff failed to demonstrate the qualifications of its expert, because the expert, who grounded his opinion in an inadequate review of secondary sources, failed to base his expert opinion on sufficient facts or data); see also FED. PROC. § 80:225 (June 2006) ("In keeping with the judicially expressed notion that experts' opinions are worthless without data and reasons, FRE 702, as amended in 2000, 11 LIBA/1 860558.1

requires as one of the conditions of the admissibility of expert testimony that the testimony be based upon sufficient facts or data, as opposed to hypotheses and "guesstimations" which have little grounding in actual physical realities. Thus, evidence is subject to exclusion where it is not founded on objective data, studies, or sampling techniques.") (internal citations omitted); Clough v. Szymnanski, 809 N.Y.S.2d 707, 709 (N.Y. Supr. Ct. 2006)

("[mjere speculation, including that set forth in an expert's affidavit, is insufficient to raise an issue of fact").

Source: Dilks Declaration, at ¶ 7 Statement: The discharge of this large amount of waste heat can have drastic physical and biological consequences.

Objection(s):

  • Speculation: Dr. Dilks sets forth no facts or data showing with particularity that the Indian Point thermal discharges "can have drastic physical and biological consequences" or that the thermal discharges from Indian Point are a "large amount of waste heat." See Vogel,52-011 -

ESP, 65 N.R.C. at 253; Savannah River, 070-03098-ML, 61 N.R.C. at 80; see also Pelletier, 470 F.3d at 52; Bouchard, 2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.

Source: Dilks Declaration, at T 7 Statement: The heated water, when initially discharged, is poorly diluted and is contained in what is called a thermal plume.

Objection(s):

  • Speculation: Dr. Dilks provides no facts or data to support his assertion that the discharge is "poorly diluted." See In re Southern Nuclear Operating Co., No.52-011 -ESP, 65 N.R.C. at 253; it re Duke Cogema Stone & Webster, 61 N.R.C. at 80; see also See, e.g., Pelletier,470 F.3d at.52; Bouchard,2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at
  • 4; Clough, 809 N.Y.S.2d at 709.

Source: Dilks Declaration, at ¶ 7 Statement: Furthermore, for large discharges such as IP2 and IP3, temperatures are noticeably raised outside of the discharge plume, because the quantity of heat released is greater than the capacity of the river to fully dilute it.

Objection(s):

  • Speculation: Dr. Dilks provides no facts or data to' support his assertion that the discharge is "temperatures are noticeably raised outside of the discharge plume, because the quantity of heat released is greater than the capacity of the river to fully dilute it." See In re Southern Nuclear Operating Co., No. 52-011-ESP, 65 N.R.C. at 253; In re Duke Cogema Stone &

Webster, 61 N.R.C. at 80; see also See, e.g., Pelletier,470 F.3d at 52; Bouchard,2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.

12 LIBA/1860558.i

I' Source: Dilks Declaration, at ¶ 8 Statement: Increases in water temperatures have been shown to have numerous biological consequences. These consequences can be divided into the following categories:

" Lethal effects: High or low temperatures, which kill an organism within a finite time.

Low temperature lethality can happen when plant operations shut down temporarily during cold water periods, exposing warm water acclimated fish to cod water.

" Controlling effects: Non-lethal temperatures which affect biological processes such as growth or reproduction.

" Directive effects: Changes in behavioral responses or migrations.

" Indirect effects: Changes in some other factor (e.g., oxygen), which in turn affect aquatic life.

Objection(s):

  • Dr. Dilks is not qualified to discuss the environmental effects ofonce-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Dilks Declaration, at $ 9 Statement: The final outcome of the HRSA studies has now demonstrated non-compliance with thermal criteria.

Objection(s):

  • Misleading and mischaracterizes the significance of.the results of the HRSA studies: Dr.

Dilks neglects to mention that the hydrothermal modeling performed for the 1999 DEIS was undertaken at the direction of NYSDEC, which set the extreme case conditions to be modeled. Declaration of Charles V. Beckers, Ph.D. in Opposition to Riverkeeper Proposed Contention EC-1 and New York Attorney General Contention 30, Ex. 2 at 1-2 (hereinafter "Beckers Declaration"). The conditions modeled were wholly unrealistic and the results represent conditions that can never occur, in the River, because the tidal and current conditions specified never occur. Id. at 2. NYSDEC intended the hydrothermal modeling results presented in the 1999 DEIS to overstate the effects of the discharges modeled on the Hudson River, to be protective of the resource. Id. at 3.

Source: Dilks Declaration, at ¶ 10 Statement: As explained more fully in the Declaration of William G. Little, in November 2003, the Department issued a draft SPDES permit for IP2 and IP3 that included provisions for the eventual construction of closed-cycle cooling. The Department also provided that Entergy could provide a comparable alternative to closed-cycle cooling (Condition 28 c).

Objection(s):

  • Entergy objects to Dr. Dilks' characterization of the draft SPDES permit, which speaks for 13 LIBA/ 1860558.1

itself.

Source: Dilks Declaration, at¶ 16 Statement: As demonstrated below, based on my review of the record documents in the SPDES renewal proceeding and the Environmental Report submitted by Entergy in the Nuclear Regulatory Commission (NRC) license renewal proceeding, I conclude that the thermal discharges from IP2 and IP3 do not meet the special water quality criteria for estuaries in 6 NYCRR sections 704.2(5)(ii), (iii), and (iv).

Objection(s):

" Relevance: The question of whether the thermal discharges from IP2 and IP3 meet the New York State Criteria for Thermal Discharges is an irrelevant contention for this NRC Proceeding. Pursuant to 10 C.F.R. §51.53(c)(3)(ii)(B), Entergy has submitted a valid SPDES permit (which explicitly states that it meets all state criteria by incorporating the HRSA) and the HRSA, which is an effective variance from the state criteria. The NRC may not, therefore, conduct a thermal analysis to determine Entergy's compliance with 6 NYCRR Part 704. See 10 C.F.R. 51.53(c)(3)(ii) et. seq.; see also 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

  • Entergy operates under a current NYSDEC-issued SPDES permit, which explicitly states that it meets the New York State Criteria Governing Thermal Discharges (1987 SPDES Permit, at 11).

Source: Dilks Declaration, at¶ 17 Statement: The Environmental Report that Entergy filed with its license renewal application to the NRC does not adequately, or even accurately, address the impacts from the thermal discharges from IP2 and IP3. Entergy relies on the 1999 DEIS that it submitted in the NYS SPDES permit proceeding. In the DEIS, Entergy claimed that "It]he surface orientation of the plume allows a zone of passage in the lower portions of the water column, the preferred habitat for many of the indigenous species." DEIS, p. VI-29. As discussed in detail below, this claim focuses only on the plume itself and does not adequately consider the temperature impacts on bottom waters that occur outside of the plume.

Objection(s):

" Irrelevant because a thermal analysis is unnecessary pursuant to 10 C.F.R.

§51.53(c)(3)(ii)(B). See. 10 C.F.R. 51.53(c)(3)(ii) et. seq.; see also 10 C.F.R. § 2.337(a)

("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

" Compliance with 10 C.F.R. §51.53(c)(3)(ii)(B) renders contentions regarding Entergy's hydrothermal modeling and Environmental Report content moot and, therefore, immaterial.

See 10 C.F.R. 51.53(c)(3)(ii) et. seq.; see also 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

14 LBA/1!860558.I

Source: Dilks Declaration, at¶ 18 Statement: The modeling conducted for the environmental review attendant to the SPDES permit renewal - i.e., the 1999 DEIS, which was cited by the DEC in the 2003 Final Environmental Impact Statement (FEIS) - clearly indicates that the discharge violates these thermal criteria under certain river flow conditions. This is true both for Indian Point discharges alone, and when considered along with all thermal discharges in the region.

Objection(s):

" Compliance with 10 C.F.R. §51.53(c)(3)(ii)(B) renders contentions regarding Entergy's hydrothermal modeling moot and, therefore, immaterial. See 10 C.F.R. 51.53(c)(3)(ii) et.

seq.; see also 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

  • Misleading and mischaracterizes the significance of the results of the HRSA studies: Dr.

Dilks neglects to mention that the hydrothermal modeling performed for the 1999 DEIS was undertaken at the direction of.DEC, which set the extreme case conditions to be modeled.

Beckers Declaration, Ex. 2 at 1-2. The conditions modeled were wholly unrealistic and the results represent conditions that can never occur in the River, because the tidal and current conditions specified never occur. Id. at 2. NYSDEC intended the hydrothermal modeling results presented in the 1999 DEIS to overstate the effects of the discharges modeled on the Hudson River, to be protective of the resource. Id. at 3.

  • Dr. Dilks is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Dilks Declaration, at ¶ 19 Statement: Specifically, operation of the Indian Point facilities alone is predicted to violate 6 NYCRR section 704.2(5)(ii). Where the criteria require that a minimum of one-third of the surface shall not be raised more than four Fahrenheit degrees, model results indicate that 100%

of the surface width will be raised by more than four degrees (i.e., 0% of the surface width will not be raised) during certain tidal conditions.

Objection(s):

  • Relevance: The question of whether the thermal discharges from IP2 and IP3 meet the New York State Criteria for Thermal Discharges is an irrelevant contention for this NRC Proceeding. Pursuant to 10 C.F.R. §51.53(c)(3)(ii)(B), Entergy has submitted a valid SPDES permit (which explicitly states that it meets all state criteria by incorporating the HRSA) and the HRSA, which is an effective variance from the state criteria. The NRC may not, therefore, conduct a thermal analysis to determine Entergy's compliance with 6 NYCRR Part 704. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

15 LIBA/1860558.1

  • Entergy operates under a current NYSDEC-issued SPDES permit, which explicitly states that it meets the New York State Criteria Governing Thermal Discharges (1987 SPDES Permit, at 11).

" Misleading and mischaracterizes the significance of the results of the HRSA studies: Dr.

Dilks neglects to mention that the hydrothermal modeling performed for the 1999 DEIS was undertaken at the direction of DEC, which set the extreme case conditions to be modeled.

Beckers Declaration, Ex. 2 at 1-2. The conditions modeled were wholly unrealistic and the results represent conditions that can never occur in the River, because the tidal and current conditions specified never occur. Id. at 2. NYSDEC intended the hydrothermal modeling results presented in the 1999 DEIS to overstate the effects of the discharges modeled on the Hudson River, to be protective of the resource. Id. at 3.

Source: Dilks Declaration, at ¶ 20 Statement: When operation of the Indian Point plant is considered in conjunction with other thermal discharges, the extent of criteria violation increases substantially. In this multiple discharger case, the "cross-sectional area" component of the criteria is also violated (6 NYCRR,

§ 70 4 .2(5)(iv)), and the number of months that the "surface" component of the criteria is violated increases as well (6 NYCRR § 704.2(5)(iii)).

Objection(s):

  • Relevance: The question of whether the thermal discharges from IP2 and IP3 meet the New York State Criteria for Thermal Discharges is an irrelevant contention for this NRC Proceeding. Pursuant to 10 C.F.R. §51.53(c)(3)(ii)(B), Entergy has submitted a valid SPDES permit (which explicitly states that it meets all state criteria by incorporating the HRSA) and the HRSA, which is an effective variance from the state criteria. The NRC may not, therefore, conduct a thermal analysis to determine Entergy's compliance with 6 NYCRR Part 704. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

" Entergy operates under a current NYSDEC-issued SPDES permit, which explicitly states that.

it meets the New York State Criteria Governing Thermal Discharges (1987 SPDES Permit, at 11).

" Misleading and mischaracterizes the significance of the results of the HRSA studies: Dr.

Dilks neglects to mention that the hydrothermal modeling performed for .the 1999 DEIS was undertaken at the direction of DEC, which set the extreme case conditions to be modeled.

Beckers Declaration, Ex. 2 at 1-2. The conditions modeled were wholly unrealistic and the results represent conditions that can never occur in the River, because the tidal and current conditions specified never occur. Id. at 2. NYSDEC intended the hydrothermal modeling results presented in the 1999 DEIS to overstate the effects of the discharges modeled on the Hudson River, to be protective of the resource. Id. at 3.

Source: Dilks Declaration, at ¶ 21 16 LIBA/1860558.1

Statement: I have also concluded that while the water quality criteria are being violated by the Indian Point thermal discharges, either alone or in conjunction with other thermal discharges, the applicant's modeling contains many uncertainties and flaws. This means that the extent of the thermal impacts from Indian Point could be much greater than predicted in the DEIS.

Objection(s):

  • Speculation: Dr. Dilks sets forth no facts or data showing with particularity that "the extent of the thermal impacts from Indian Point could be much greater than predicted in the DEIS."

See Vogel, 52-011-ESP, 65 N.R.C. at 253; Savannah River, 070-03098-ML, 61 N.R.C. at 80; see also Pelletier,470 F.3d at 52; Bouchard, 2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.

  • Misleading and mischaracterizes the significance of the results of the HRSA studies: Dr.

Dilks neglects to mention that the hydrothermal modeling performed for the 1999 DEIS was undertaken at the direction of DEC, which set the extreme case conditions to be modeled.

Beckers Declaration, Ex. 2 at 1-2. The conditions modeled were wholly unrealistic and the results represent conditions that can never occur in the River, because the tidal and current conditions specified never occur. Id. at 2. NYSDEC intended the hydrothermal modeling results presented in the 1999 DEIS to overstate the effects of the discharges modeled on the Hudson River, to be protective of the resource. Id. at 3.

" Relevance: The question of whether the thermal discharges from 1P2 and IP3 meet the New York State Criteria for Thermal Discharges is an irrelevant contention for this NRC Proceeding. Pursuant to 10 C.F.R. §51.53(c)(3)(ii)(B), Entergy has submitted a valid SPDES permit (which explicitly states that it meets all state criteria by incorporating the HRSA) and the HRSA, which is an effective variance from the state criteria. The NRC may not, therefore, conduct a thermal analysis to determine Entergy's compliance with 6 NYCRR Part 704. SeelO C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

" Entergy operates under a current NYSDEC-issued SPDES permit, which explicitly states that it meets the New York State Criteria Governing Thermal Discharges (1987 SPDES Permit, at 11).

Source: Dilks Declaration, at ¶ 21 Statement: To the extent that real world conditions differ from these idealized conditions, CORMIX results may be accurate or may be completely inaccurate.

Objection(s):

  • Speculation: Dr. Dilks sets forth no facts or data showing with particularity that the "CORMIX results may be accurate or may be completely inaccurate." See Vogel,52-011 -

ESP, 65 N.R.C. at 253; Savannah River, 070-03098-ML, 61 N.R.C. at 80; see also Pelletier, 470 F.3d at 52; Bouchard,2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.

17 LIBA/1860558.1

  • Misleading and mischaracterizes the significance of the results of the DEIS hydrothermal modeling: Dr. Dilks neglects to mention that the hydrothermal modeling performed for the 1999 DEIS was undertaken at the direction of DEC, which set the extreme case conditions to be modeled. Beckers Declaration, Ex. 2 at 1-2. The conditions modeled were wholly unrealistic and the results represent conditions that can never occur in the River, because the tidal and current conditions specified never occur. Id. at 2. NYSDEC intended the hydrothermal modeling results presented in the 1999 DEIS to overstate the effects of the discharges modeled on the Hudson River, to be protective of the resource. Id. at. 3. In addition, the CORMIX near-field model remains today the preferred model for analysis of discharge plumes, as recognized by the United States Environmental Protection Agency.

CORMIX is unique in that it does not require calibration. Id.

  • Compliance with 10 C.F.R. §51.53(c)(3)(ii)(B) renders contentions regarding Entergy's hydrothermal modeling moot and, therefore, immaterial. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

Source: Dilks Declaration, at ¶ 28 Statement: The "temperature balance model" used to merge the results of CORMIX and FFTM models is very simplistic and is based on assumptions that are violated for this application.

Objection(s):

  • Entergy objects to Dr. Dilks' characterizations of the assumptions of the CORMIX and FFTM models, which speak for themselves.

" The CORMIX near-field model remains today the preferred model for analysis of discharge plumes, as recognized by the United States Environmental Protection Agency. CORMIX is unique in that it does not require calibration. Beckers Declaration, Ex. 2 at 3.

Source: Dilks Declaration, at ¶ 30 Statement: In this regard, comments on the DEIS, which were incorporated in the FEIS, indicated that temperatures in the river may have increased since the time. of the DEIS analysis.

If this is true, the expected maximum temperatures in the river (although not the extent of the 4T plume) may be greater than predicted in the DEIS. As stated above, the use of steady state conditions in the model does not necessarily provide upper bound predictions for plume extent, counter to the supporting argument in the DEIS.

Objection(s):

  • Speculation: Dr. Dilks sets forth insufficient facts and data to support his statement that the "temperatures in the river may have increased since the time of the DEIS analysis." See Vogel, 52-01 I-ESP, 65 N.R.C. at 253; Savannah River, 070-03098-ML, 61 N.R.C. at 80; see also Pelletier,470 F.3d at 52; Bouchard, 2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.

Source: Dilks Declaration, at ¶ 31 18 LIBA!1860558.1

Statement: Many of the limitations inherent to the DEIS modeling were driven by computational and data limitations that existed at the time of the analysis. Three-dimensional far field models now exist that would minimize many of the limitations of the models that were discussed above. Remote sensing provides the capability to collect large amounts of surface temperature data, and could be used to determine validity of the existing models or any other models applied in the future.

Objection(s):

  • Compliance with 10 C.F.R. §51.53(c)(3)(ii)(B) renders contentions regarding Entergy's hydrothermal modeling moot and, therefore, immaterial. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

Source: Dilks Declaration, at ¶ 32 Statement: Given that the Indian Point thermal discharges exceed the 6 NYCRR Part 704 thermal criteria, it is next necessary to determine whether the Indian Point discharge meets the thermal discharge requirements of Section 316(a) of the Clean Water Act.

Objection(s):

  • Relevance: The question of whether the thermal discharges from IP2 and IP3 meet the New York State Criteria for Thermal Discharges is an irrelevant contention for this NRC Proceeding. Pursuant to 10 C.F.R. §51.53(c)(3)(ii)(B), Entergy has submitted a valid SPDES permit (which explicitly states that it meets all state criteria by incorporating the HRSA) and the HRSA, which is an effective variance from the state criteria. The NRC may not, therefore, conduct a thermal analysis to determine Entergy's compliance with 6 NYCRR Part 704. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").
  • Entergy operates under a current NYSDEC-issued SPDES permit, which explicitly states that it meets the New York State Criteria Governing Thermal Discharges (1987 SPDES Permit, at 11).

Source: Dilks Declaration, at ¶ ¶ 33-38 Statement: Based on my critical review of the biological analysis, I can point out specific weaknesses or oversights in the analysis that was used to support the applicant's original assessment[.]

Objection(s):

  • Irrelevant because a biological analysis is unnecessary pursuant to 10 C.F.R.

§51.53(c)(3)(ii)(B). See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

  • Dr. Dilks is not qualified to discuss the environmental effects of once-through cooling since he lacks the educational background and technical experience necessary to opine on such 19 LIBA/1860558.1

matters. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Dilks Declaration, at ¶ 39 Statement: The discharges have not and do not currently meet New York State's water quality criteria.

Objection(s):

  • Relevance: The question of whether the thermal discharges from IP2 and IP3 meet the New York State Criteria for Thermal Discharges is an irrelevant contention for this NRC Proceeding. Pursuant to 10 C.F.R. §51.53(c)(3)(ii)(B), Entergy has submitted a valid SPDES permit (which explicitly states that it meets all state criteria by incorporating the HRSA) and the HRSA, which is an effective variance from the state criteria. The NRC may not, therefore, conduct a thermal analysis to determine Entergy's compliance with 6 NYCRR Part 704. See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").
  • Entergy operates under a current NYSDEC-issued SPDES permit, which explicitly states that it meets the New York State Criteria Governing Thermal Discharges (1987 SPDES Permit, at 11).

20 LIBA/1860558.1

Entergy's Objections to Declaration of William Little (hereinafter "Little Declaration")

Source: Little Declaration, at $ 2 Statement: I submit this declaration to provide the history of NPDES and SPDES permitting of Indian Point and of the significant adverse impacts that arise from the technologically outmoded once-through cooling system that Indian Point uses.

Objection(s):

  • Mr. Little's statement is irrelevant because an analysis of adverse impacts arising from Entergy's use of a once-through cooling system is unnecessary pursuant to 10 C.F.R.

§51.53(c)(3)(ii)(B). See 10 C.F.R. § 2.337(a) ("only relevant, material, and reliable evidence which is not unduly repetitious will be admitted").

Source: Little Declaration, at $ 7 Statement: Furthermore, it was understood that construction of a closed-cycle cooling system would eliminate the environmental injuries to aquatic biota associated with thermal discharges and impingement and entrainment.

Objection(s):

  • Speculation: Mr. Little sets forth insufficient facts and data to support his statement that the NRC "understood that construction of a closed-cycle cooling system would eliminate the

.environmental injuries to aquatic biota associated with thermal discharges and impingement and entrainment." See In re S. Nuclear Operating Co. (Vogel ESP Site),52-011 -ESP, 65 N.R.C. 237, 254 (2007) (observing that "neither mere speculation nor bare or conclusory assertions, even by an expert, alleging that a matter should be considered will suffice to allow the admission of a proffered contention"); In re Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 070-03098-ML, 61 N.R.C. 71, 80 (2005)

(noting that "[w]hile the expert's method for forming his opinion need not be generally recognized in the scientific community, the opinion must be based on the 'methods and procedures of science' rather than on 'subjective belief or unsupported speculation"'); see also Pelletier v. Main Street Textiles, 470 F.3d 48,52 (1st Cir. 2006) (concluding plaintiff s expert's opinion was speculative and was based on insufficient facts and data because he had never visited the site of the accident and apparently based his opinions on deposition testimony and preliminary expert reports about the accident); Bouchardv. N.Y. Archdiocese, No. 04 Civ. 9978 (CSH), 2006 WL 3025883, at *7 (S.D.N.Y. Oct. 24, 2006) (concluding expert's opinions were "argumentative and conclusory" because they were speculative and not based on sufficient facts and data); Colt Defense LLC v. Bushmaster Firearms,Inc., No.

Civ. 4-240-P-S, 2005 WL 2293909, at *4 (D. Me. Sept. 20, 2005) (concluding plaintiff failed to demonstrate the qualifications of its expert, because the expert, who grounded his opinion in an inadequate review of secondary sources, failed to base his expert opinion on sufficient facts* or data); see also FED. PROC. § 80:225 (June 2006) ("In keeping with the judicially.

expressed notion that experts' opinions are worthless without data and reasons, FRE 702, as amended in 2000, requires as one of the conditions of the admissibility of expert testimony 21 LIBA/1860558.1

that the testimony be based upon sufficient facts or data, as opposed to hypotheses and "guesstimations" which have little grounding in actual physical realities. Thus, evidence is subject to exclusion where it is not founded on objective data, studies, or sampling techniques.") (internal citations omitted); Clough v. Szymanski, 809 N.Y.S.2d 707, 709 (N.Y.

Supr. Ct. 2006) ("[mjere speculation, including that set forth in an expert's affidavit, is insufficient to raise an issue of fact").

Source: Little Declaration, at ¶ 11 Statement: The Indian Point plants have always operated with once-through cooling technology, and that technology has always posed a problem for the Hudson River environment.

Once-through cooling technology withdraws water directly from the Hudson River to cool the secondary cooling system and then discharges that heated water into the Hudson Diver. Once-through cooling poses three main environmental issues: impingement, entrainment, and thermal discharges. These issues are explained more fully in the accompanying Declarations of Roy Jacobson and David Dilks, which accompany the State's Petition.

Objection(s):

" Speculation: Mr. Little sets forth insufficient facts and data to support his statement that once-through cooling "has always posed a problem for the Hudson River environment." See Vogel,52-011 -ESP, 65 N.R.C. at 253; Savannah River, 070-03098-ML, 61 N.R.C. at 80; see also Pelletier,470 F.3d at 52; Bouchard,2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.

" As an attorney with no apparent training in fisheries biology or hydrothermal modeling, Mr.

Little lacks the requisite qualifications to testify to the environmental issues potentially caused by the different types of cooling systems employed by facilities. See In re Duke Energy Corporation,(Catawba Nuclear Station), CLI-04-21, 60 N.R.C. 21, 27 (2004) (a "witness may qualify as an expert by 'knowledge, skill, experience, training, or education' to testify '[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue'"); In re Duke Power Co. (McGuire Nuclear Station), 50-369-OL, 15 N.R.C. 453, 474-75 (1982) (affirming decision finding expert to be unqualified where "his claimed expertise on thesubjects at issue rest[ed] mainly on his asserted ability to 'understand and evaluate' matters of a technical nature due to his background of 'academic and practical training' and 'years of reading AEC and NRC documents"').

Since he is unqualified to opine on environmental issues, Mr.. Little similarly cannot rely on the declarations of Dr. Dilks and Mr. Jacobson without running afoul of expert witness qualification requirements. Plourde v. Gladstone, 190 F.Supp.2d 708, 720-21 (D. Vt. 2002)

(expert's lack of qualifications in requisite subject area invalidated attempts:to rely on opinions of properly qualified experts); see also Polythane Sys., Inc. v. Marina Ventures Int'l, Ltd., 993 F.2d 1201, 1201-08 (5th Cir. 1993) (one expert may not put inevidence the opinion of a nontestifying expert without running afoul of the hearsay rule unless used to demonstrate the basis for the testifying expert's opinion, not to establish the truth of the nontestifying expert's opinion). It is also "unduly repetitious," see 10 C.F.R. § 2.337 (a), for 22 LIBA/1860558.1

Mr. Little to adopt the testimony of Mr. Jacobson and Dr. Dilks, who filed their own declarations.

Source: Little Declaration, at¶ 12 Statement: Briefly stated, impingement occurs when the massive flow of intake water "impinges" or traps larger aquatic organisms, such as fish, against grills or screen. Entrainment occurs when the microscopic aquatic organisms pass through the grills and screens and are sucked into the plant operations. In addition, "thermal discharges" refers to the hated water that is discharged into the Hudson River after cooling the super-heated water generated by plant operations. These thermal discharges also pose problems for aquatic life in the Hudson River ecosystem.

Objection(s):

  • As an attorney with no apparent training in fisheries biology or hydrothermal modeling, Mr.

Little lacks the requisite qualifications to testify to the environmental issues potentially caused by the different types of cooling systems employed by facilities. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Little Declaration, at ¶ 30 Statement: Entergy's Environmental Report thus errs by placing any reliance on and directing the NRC's attention toward the analyses contained in the DEIS (to the exclusion of the FEIS).

The FEIS superseded the DEIS entirely and is the appropriate final record of environmental analyses and findings.

Objection(s):

  • Mr. Little mischaracterizes the FEIS, which expressly states that "[t]he fundamental underlying data and studies are contained in the 1999 DEIS, which is incorporated as part of this FEIS." FEIS, at ii. The NRC may not, therefore, completely ignore the DEIS, as the Petitioner would suggest.

" The Supreme Court of the State of New York (Albany), has determined that the FEIS is not a final order. In re Entergy Nuclear Indian Point 2 & 3, LLC et al., No. 6747/03, at 6-7 (Mar.

11, 2004) ("FEIS on its face indicates that considerably more environmental review is necessary and is specifically contemplated.").

  • In 2004, Mr. Little filed an affirmation in the SPDES proceeding stating that "[p]iecemeal review of components of the DEC permit application review process, such as the FEIS, does not present ... a fully-formed record .... This creates uncertainty for the Department, the applicant, and those who would oppose a particular project." This suggests that taken alone, the FEIS is not, by Mr. Little's own admission,. "the appropriate final record of environmental analyses and findings." Little Affirmation, No. 6747/03, at ¶ 6 (N.Y. Supr.

Ct. Jan. 20, 2004).

Source: Little Declaration, at ¶ 31 23 LIBA/1860558.1

Statement: In other words, the 1999 DEIS would only have preserved the operational status quo at the three Hudson River power plants, allowing continued significant levels of fish mortalities in the River, whereas the Department's FEIS determined that impacts to fish through entrainment and impingement were continuous significant adverse impacts warranting the installation of closed-cycle cooling.

Objection(s):

  • Speculation: Mr. Little provides no facts or data to support his assertion that the "operational status quo at the three Hudson River power plants" "allow[ed] continued significant levels of fish mortalities in the River." See Vogel, 52-01 1-ESP, 65 N.R.C. at 253; Savannah River, 070-03098-ML, 61 N.R.C. at 80; see also Pelletier,470 F.3d at 52; Bouchard,2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.
  • Mr. Little mischaracterizes the FEIS, which expressly states that "[t]he fundamental underlying data and studies are contained in the 1999 DEIS, which is incorporated as part of this FEIS." FEIS, at ii. The NRC may not, therefore, completely ignore the DEIS, as the Petitioner would suggest.
  • As an attorney with no apparent training in fisheries biology or hydrothermal modeling, Mr.

Little lacks the requisite qualifications to testify to the environmental issues potentially caused by the different types of cooling systems employed by facilities. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Little Declaration, at ¶ 37 Statement: However, the generators' own statements in the 1999 DEIS pointed out that IP2 and IP3 did not meet the State's §704.2 water quality criteria as to all requirements. The DEIS states that lateral (across the River) and cross-sectional top-to-bottom of the water column) thermal criteria would be exceeded in the vicinity of Indian Point during some months and during full load operating conditions. The effect is that aquatic species could be blocked from migrating through thispart of the Hudson River during certain time periods orseasons.

Objection(s):

  • Misleading and mischaracterizes the significance of the results of the hydrothermal modeling results presented in the 1999 DEIS. Mr. Little neglects to mention that the hydrothermal modeling performed for the 1999 DEIS was undertaken at the direction of DEC, which set the extreme case conditions to be modeled. Declaration of Charles V. Beckers, Ph.D. in Opposition to Riverkeeper Proposed Contention EC- 1 and New York Attorney General Contention 30, Ex. 2 at 1-2 (hereinafter "Beckers Declaration"). The conditions modeled were wholly unrealistic and the results represent conditions that can never occur in the River, because the tidal and current conditions specified never occur. Id. at 2. NYSDEC intended the hydrothermal modeling results presented in the 1999 DEIS to overstate the effects of the discharges modeled on the Hudson River, to be protective of the resource. Id. at 3.

" Speculation: Mr. Little sets forth no facts or data showing with particularity that "aquatic 24 LIBAA1860558.1

species could be blocked from migrating through this part of the Hudson River during certain time periods or seasons." See Vogel, 52-01 1-ESP, 65 N.R.C. at 253; Savannah River, 070-03098-ML, 61 N.R.C. at 80; see also Pelletier,470 F.3d at 52; Bouchard, 2006 WL 3025883, at *7; Colt Defense LLC, 2005 WL 2293909, at *4; Clough, 809 N.Y.S.2d at 709.

As an attorney with no apparent training in fisheries biology or hydrothermal modeling, Mr.

Little lacks the requisite qualifications to testify to the environmental issues potentially caused by the different types of cooling systems employed by facilities. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Little Declaration, at ¶ 38 Statement: Closed-cycle cooling would drastically reduce thermal discharges from IP2 and IP3, thereby removing nearly all of the concern with thermal impacts to fish in the Hudson River.

Objection(s):

  • As an attorney with no apparent training in fisheries biology or hydrothermal modeling, Mr.

Little lacks the requisite qualifications to testify to the environmental issues potentially caused by the different types of cooling systems employed by facilities. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Little Declaration, at ¶ 39 Statement: A closed-cycle system consumes approximately 95% less River water for the secondary reactor cooling system and, concomittantly, reduces impact to fish through entrainment and impingement by approximately 95%. At the same time, closed-cycle cooling would reduce or eliminate thermal impacts to the Hudson River fishery because it eliminates approximately 95% of the thermal discharge.

Objection(s):

  • As an attorney with no apparent training in fisheries biology or hydrothermal modeling, Mr.

Little lacks the requisite qualifications to testify to the environmental issues potentially caused by the different types of cooling systems employed by facilities. See Catawba, CLI-04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

Source: Little Declaration, at ¶ 42 Statement: They were originally required to install closed-cycle cooling and the years of subsequent data and known significant adverse effects on the Hudson River fishery demonstrate that closed-cycle cooling water intake structures are the only solution to those environmental impacts.

Objection(s):

  • As an attorney with no apparent training in fisheries biology or hydrothermal modeling, Mr.

Little lacks the requisite qualifications to testify to the environmental issues potentially caused by the different types of cooling systems employed by facilities. See Catawba, CLI-25 LIBA/1860558.1

S04-21, 60 N.R.C. at 27; McGuire, 50-369-OL, 15 N.R.C. at 474-75.

26 LIBA/I 860558.1

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