ML101100473

2010/04/01-Answer of the Attorney General of the State of Connecticut to State of New York'S Motion for Leave to File New & Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives

ML101100473
Person / Time
Site:	Indian Point
Issue date:	04/01/2010
From:	Snook R State of CT, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-344
Download: ML101100473 (10)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

---

x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD0 1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 1, 2010

---

x ANSWER OF THE ATTORNEY GENERAL OF THE STATE OF CONNECTICUT TO STATE OF NEW YORK'S MOTION FOR LEAVE TO FILE NEW AND AMENDED CONTENTIONS CONCERNING THE DECEMBER 2009 REANALYSIS OF SEVERE ACCIDENT MITIGATION ALTERNATIVES A. Introduction The State of Connecticut files this answer supporting the State of New York's Motion to File New and Amended Contentions dated March 22, 2010 ("Motion").. New York's new and amended contentions respond to new data submitted by Entergy on December 14, 2009, that constitute important and substantial changes to Entergy's application and fundamentally alter the analysis of potential impacts to 19 million people living in New York and Connecticut, including up to one million citizens of Connecticut, from an accident or attack on the Indian Point nuclear power station. The State of Connecticut supports New York's right to file these new and revised contentions.

B. Background The State of Connecticut has been granted status as an interested governmental party with respect to Entergy Nuclear Operations, Inc.'s ("Entergy's") application before the Atomic Safety Licensing Board ("ASLB") for renewal of its license to operate the Indian Point nuclear power station for an additional 20 years past the license's current expiration date. The Attorney General of Connecticut has previously raised several contentions as part of this docketed proceeding, particularly with regard to the absence of proper evacuation protocols,

environmental impact of an additional 20 years accumulation of spent nuclear fuel, and the failure to account for the impacts to the citizens of Connecticut from the increased possibility of an attack or accident during the proposed 20 additional years operation of Indian Point.

As part of its effort to seek a 20 year license renewal for the Indian Point nuclear power station, Entergy filed an environmental report ("ER") in 2007 which included a severe accident mitigation alternatives ("SAMA") analysis. Subsequently, technical review by NRC staff revealed certain errors in Entergy's report. Therefore, on December 14, 2009 Entergy filed a new severe accident mitigation alternatives ("SAMA") analysis ("December 2009 SAMA Reanalysis") using different.assumptions and input values and producing markedly different results. Because Entergy has now changed important parts of its application, the ASLB must permit further relevant contentions address to those changes.

The new analysis is not merely a minor adjustment to the prior SAMA analysis, but is functionally a complete replacement of Entergy's initial SAMA analysis. For example, the December 2009 SAMA Reanalysis includes altered meteorological data correcting erroneous wind direction inputs in the initial SAMA analysis, a matter of obvious concern in the event of a release of airborne radioisotopes. December 2009 SAMA Reanalysis at pp. 4-5. The new data also includesnew economic damages data and new sensitivity analyses incorporating a new severe accident scenario.' Id, at 4, 8-10. The 2009 SAMA Reanalysis demonstrates substantial increases in potential population dose risk and off site economic cost risk. See id at 8-10. In light of the corrected data, Entergy identified new mitigation measures which may be cost-effective, but that Entergy previously reported were not cost-effective. December 2009 SAMA Reanalysis at. 10-28, Appendix E, at 4-74 to 4-78. -As noted in New York's Motion, the changes made in the December 2009 SAMA Reanalysis demonstrate that the consequences of a severe accident have increased and that the economic benefit to be achieved by implementing certain mitigation measures has increased dramatically. See, Motion pp. 6-7. New York State's proposed contentions 12B, 16B, 35, and 36 are based on the December 2009 SAMA Reanalysis.

C. The Contentions Meet All The Requirements of 10 C.F.R. § 2.309 (f)(2)

To be admitted, New York's amended contentions must meet 10 C.F.R. § 2.30 (f)(2) which requires a showing that:

(i) The information upon which the amended or new contention is 1

based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

Id. As will be discussed below, the amended contentions clearly meet these requirements.

1. Information Not Previously Available New York's contentions are based upon a document first filed by Entergy on December 14, 2009. The data in this document was therefore simply unavailable before that date and thus the contentions rely on information not previously available as required by 10 C.F.R. § 2.309 (f)(e)(i).

2. The New Information is Materially Different Than Previously Available Information As noted above, the December 2009 SAMA Reanalysis provides materially new and different information than was available in the earlier SAMA analysis. For example, many mitigation measures previoudsly described as not cost-effective have now been identified as cost-effective. This alone is significantly different information. Furthermore, the new data regarding wind patterns and particulate'dispersion is material to an analysis of impacts required under NEPA and thus important to' this relicensing petition. Interestingly, in its November 19, 2009, letter to the ASLB informing the Board of the erroneous wind direction inputs and of the problems with the MACCS2 code, Enterlgy added that "the revised SAMA analysis may be relevant and material to admitted contentions NYS-12/12A and NYS-16/16A." Letter at 1.

3. The Contentions Are Timely Pursuant to Orders issued by the Board and referenced above, contentions based on the December 2009 SAMA Reanalysis were due to be filed on or before March 11, 2010. These contentions were filed on March 11, 2010.

• New York's four proposed new contentions meet the requirements for admissibility set forth in 10 C.F.R. § 2.309(f)(2).

2

D. Additional Reasons To Approve New York's Amended Contentions.

Amended Contentions 12-B and 16-B.

In addition to the statutory criteria described above, there is good cause for the ASLB to consider New York's contentions. Specifically, two of New York's contentions update earlier Admitted Contentions 12-A and 16-A because those contentions address claims of error in the SAMA analysis. Because the underlying data has been replaced by the December 2009 SAMA Reanalysis, these previously admitted contentions must be amended to be relevant to this proceeding.

For example, amended contention 12-B asserts that the SAMA analysis underestimates decontamination and cleanup costs in the New York City region because of inadequacies in the MACCS2 computer program. The December 2009 SAMA Reanalysis modified the input and output data in the MACCS2 program, but retained the inappropriate and inadequate cost formula in the computer program. In order to properly evaluate this contention, therefore, it will be necessary to permit amendment of this previously accepted contention to reflect the. data currently before the ASLB.

Similarly, permitting introduction of amended contention 16-B will allow a full evaluation of important data regarding potential dose exposure to the public in New York and Connecticut. Specifically, Entergy has claimed that its SAMA analysis of dose exposure is conservative because it assumes a "no evacuation" scenario. In Entergy's view, evacuation would potentially lower exposure by permitting people to leave the affected area. The December 2009 SAMA Reanalysis also uses the "no evacuation" scenario, but employs an entirely new analysis with modified input and output values purportedly correcting the flawed wind direction data found in the original SAMA analysis.

It is now clear that the initial SAMA analysis was based in part on erroneous data and that correcting that data and any associated contentions was necessary. In addition, the assumption that evacuation would lower dose exposure is only true if the air dispersion model demonstrates that the highest concentration of radioisotopes would occur in the area to be evacuated. The December 2009 SAMA Reanalysis, however, employs an atmospheric model known as ATMOS that is less accurate than new EPA approved modeling protocols and is not authorized for use in evaluating compliance under the Clean Air Act. Consequently, in order for 3

the ASLB to properly evaluate the validity of contention 16, it should permit introduction of amended contention 16-B to address both the inaccurate wind data and the flawed ATMOS model.

Both amended contentions 12-B and 16-B address issues that are of great importance to the State of Connecticut. As Connecticut has made clear in its earlier filings in this matter, two of the State's counties; Fairfield County and Litchfield County, lie within the 50 mile ingestion pathway zone ("IPZ"). Fully one third of the population of the state is within the 50 mile IPZ.

While of course the health and safety of its citizens is the State's dominant concern, it is also noteworthy Stamford, Connecticut, for example, is home to numerous major corporate headquarters. The potential economic impact of even a temporary shutdown of these offices due to dispersed radiation from a fire or other accident at Indian Point would be immense. In addition to the human health and safety impacts and the economic impacts, there are also potentially profound impacts to vital natural resources in the Litchfield Hills, Housatonic River Valley and Long Island Sound regions that are of great importance to the State. Consequently, a full and complete review of New York's proposed contentions will be of material importance to the State of Connecticut and will assist the ASLB to complete a full administrative record for its ultimate decision.

New Contentions 35 and 36.

The two new contentions should also be admitted. Contention 35 addresses nine new mitigation measures which have not been fully evaluated to determine whether they should be required and contention 36 addresses other mitigation measures which, pursuant to the new SAMA analysis, have substantially greater benefits than previously stated by Entergy. In both cases, it is clear that a full evaluation of these contentions is necessary under NEPA.

The fundamental goal of an evaluation under NEPA is to require responsible government agencies involved with a given project to undertake a careful and thorough analysis of the need for that project and its impacts before committing to proceed with the project. As the Tenth Circuit has held:

The purpose of NEPA is to require agencies to consider environmentally significant aspects. of a proposed action, and, in so doing, let the public know that the agency's decisionmaking process includes environmental concerns. Baltimore 4

Gas & Elec. Co. v. NaturalResources Defense Council, 462 U.S. 87, 97, 76 L.

Ed. 2d 437, 103 S. Ct. 2246 (1983); Sierra Club v. United States Dep't of Energy, 287 F.3d 1256, 1262 (10th Cir. 2002).

Utahns For Better Transportationv. United States Dept. of Transp., 305 F.3d 1152, 1162 (10 th Cir. 2002).

As the District of Columbia Circuit has held:

"NEPA was intended to ensure that decisions about federal actions would be made only after responsible decision-makers had fully adverted to the environmental consequences of the actions, and had decided that the public benefits flowing from the actions outweighed their environmental costs." Jones v.

Districtof Columbia Redevelopment Land Agency, 162 U.S. App. D.C. 366, 499 F.2d 502, 512 (D.C. Cir. 1974)....

Illinois Commerce Com. v. Interstate Commerce Com., 848 F.2d 1246, 1259 (D.C. Cir. 1988).

It is not only the government decision-makers who are to be served by an EIS, but the citizens of this nation as well. As one court noted: "The purpose of an EIS is to 'compel the decision-maker to give serious weight to environmental factors' in making choices, and to enable the public to 'understand and consider meaningfully the factors involved.' County of Suffolk [v. Secretary of Interior],562 F.2d at 1375 (citing Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir. 1975))." Town of Huntington v. Marsh, 859 F.2d 1134, 1141 (2d Cir.

1988)(emphasis added.)

It is established that a SAMA analysis is relevant to a NEPA review. In 1989, the United States Court of Appeals for the Third Circuit rejected NRC's ad hoc policy of examining severe accidents and instead ordered NRC to carefully evaluate the environmental impacts that could result from severe accidents and the means to mitigate such impacts in order to comply with NEPA. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3rd Cir.

1989). The Third Circuit noted that NRC did not find that risks from a severe accident were remote and speculative, and held that NRC's severe accident policy did not represent the requisite careful consideration of the environmental consequences required under NEPA. 869 F.2d at 723.

Ultimately, an effective SAMA analysis is an important part of the review of environmental impacts required by NEPA. NEPA mandates, as described above, that relevant decision-makers fully and effectively evaluate potential impacts and mitigation measures. The 5

failureto address clearly potentially effective mitigation measures will compromise the consideration of environmental impacts and materially delay final evaluation of this application.

r CONCLUSION For all of the foregoing reasons, the State of Connecticut urges the ASLB to approve New York's new and amended contentions.

Dated: April 1, 2010 Respectfully submitted RICHARD BLUMENTHAL ATTORNEY GENERAL OF THE STATE OF CONNECTICUT by Robert Snook Assistant Attorney General 55 Elm Street Hartford, CT 06141-0120 6

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

---

L-----------------------

In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear!Indian Point 2, LLC DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. April 1, 2010

---

------------------------------------------------- x CERTIFICATE OF SERVICE I certify that on April 1, 2010, copies of the foregoing were served on the following by first-class mail and electronic mail on the following, as indicated below:

• Lawrence G. McDade, Chair 0 Zackary S. Kahn, Esq. & Josh Kirstein,

• Administrative Judge Esq.,

• Atomic Safety and Licensing Board Panel 0 Atomic Safety and Licensing Board

• U.S. Nuclear Regulatory Commission Panel 0 Mailstop 3 F23 0 U.S. Nuclear Regulatory Commission 0 Two White Flint North 9 Mailstop T-3 F23

• 11545 Rockville Pike

• Washington, DC 20555-0001 0 Rockville, MD 20852-2738 0 Zachary.Kahn -,nrc.gov 9 Lawrence.McDade@nrc.gov 9 Josh.Kirstein@,rnrc.gov Richard E. Wardwell Kaye D. Lathrop Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 190 Cedar Lane E.

Two White Flint North Ridgway, CO 81432 11545 Rockville Pike Kaye.Lathrop(nrc.gov Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov "

William C. Dennis,'Esq. Elise N. Zoli, Esq.

Assistant General Counsel Goodwin Procter, LLP Entergy Nuclear Operations, Inc. Exchange Place 440 Hamilton Avenue 53 State Street White Plains, NY 10601 Boston, MA 02109 7

ezoli(Th~oodwinprocter. corn wdennisg)entergy. corn wQenn1s(a),enter~y. com ezoli(2cgoodwinprocter.com 4 ________________________

Joan Leary Matthews, Esq. i Martin J. O'Neill, Esq.

Senior Attorney for Special projects Morgan, Lewis & Bockius, LLP New York State Department of Suite 4000 Environmental Conservation 1000 Louisiana Street Office of the General Counsel Houston, TX 77002 625 Broadway, 14 th Floor martin.oneill@morganlewis.com Albany, NY 12233-1500 Email: jlmatthe(,gw.dec.state.ny.us Kathryn M. Sutton, Esq. Office of Commission Appellate Adjudication Paul M. Bessette, Esq. U.S. Nuclear Regulatory Commission Mauri T. Lemoncelli, Esq. Mailstop 16 G4 Morgan, Lewis & Bockius LLP One White Flint North 1111 Pennsylvania Avenue, NW 11555 Rockville Pike Washington, DC 20004 Rockville, MD 20852-2738 ksutton@morganlewis.com ocaamail@nnrc. gov pbessette ahmorganlewis.com mlemoncelligmorganlewis.com Michael J. Delaney, Esq. Daniel Riesel, Esq.

Vice President - Energy Department Thomas F. Wood, Esq.

New York City Economic Development Jessica Steinberg, Esq.

Corporation (NYCEDC) Sive, Paget & Riesel, P.C.

110 William Street 460 Park Avenue New York, NY 10038 New York, NY 10022 mdelaneyanycedc.com driesel@sprlaw.com jsteinberg@sprlaw.com Office of the Secretary Justin D. Pruyne, Esq.

Rulemakings and Adjudications Staff Assistant County Attorney U.S. Nuclear Regulatory Commission Office of the Westchester County Attorney Mailstop O-16G4 Michaelian Office Building Washington, DC 20555-0001 148 Martine Avenue, 6th Floor Hearing.Docket@.nrc.gov White Plains, NY 10601 jdp3 @westchestergov.com 8

Atomic Safety and Licensing Board Panel Manna Jo Greene U.S. Nuclear Regulatory Commission Hudson River Sloop Clearwater, Inc.

Mailstop T3-F23 112 Little Market Street Washington, DC 20555-0001 Poughkeepsie, NY 12601 (Via Internal Mail Only) Mannajoaclearwater.org Daniel E. O'Neill, Mayor Phillip Musegaas, Esq.

James Seirmarco, M.S. Deborah Brancato, Esq.

Village of Buchanan Riverkeeper, Inc.

Municipal Building 828 South Broadway Buchanan, N.Y. 10511-1298 Tarrytown, NY 10591 vobgbestweb.net philiipp(2riverkeeper.org dbrancato(riverkeeper.org John Louis Parker, Esq. Ross H. Gould Office of General Counsel, Region 3 Member New York. State Department of Hudson River Sloop Clearwater, Inc.

Environmental Conservation 10 park Ave., #5L 21 South Putt Corners Road New York, NY 10016 New Paltz, NY 12561-1620 rgouldesqcgmail.com E-mail: Ulparkeragw.dec.state.nv.us Mylan L. Denerstein, Esq. John J. Sipos, Esq.

Janice A. Dean Charles Donaldson, Esq.

Exec. Deputy Attorney General, Social Justice Assistant Attorneys General Office of the Attorney General for the State of New York State Department of Law New York Environmental Protection Bureau 120 Boradway, 25th Floor The Capitol New York, NY 10271 Albany, NY 12224 mylan.denerstein(boag.state.ny.us john.siposgoag.state.ny.us Janice.deangoag. state.ny.us Robert D. Snook 2~K Assistant Attorney General 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 (860) 808-5020 (860) 808-5347 Robert. Snook@po.state.ct.us 9