ML090690303

2009/02/27-State of New York Contentions Concerning NRC Staff'S Draft Supplemental Environmental Impact Statement

ML090690303
Person / Time
Site:	Indian Point
Issue date:	02/27/2009
From:	Sipos J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY/RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BDO1, RAS E-230
Download: ML090690303 (63)

Text

DOCKETED USNRC UNITED STATES OF AMERICA March 2, 2009 (8:30a.m.)

1'4 ULIA.K 1llAxULAI JKI LU1VI1VII-IUiN OFFICE OF SECRETARY RULEMAKINGS AND ATOMIC SAFETY AND LICENSING BOARD ADJUDICATIONS STAFF In re:

Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and DPR-26, DPR-64 Entergy Nuclear Operations, Inc.

STATE OF NEW YORK CONTENTIONS CONCERNING NRC*STAFF'S DRAFT SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT Filed on February 27, 2008

r TABLE OF CONTENTS Preliminary Statement......................... .. .......................... 1 CONTENTION 12-A NRC'S ANALYSIS AND AGREEMENT WITH ENTERGY'S SEVERE ACCIDENT MITIGATION ALTERNATIVES (SAMA) ANALYSIS FOR INDIAN POINT UNIT 2 AND UNIT 3 DOESNOT ACCURATELY REFLECT DECONTAMINATION AND CLEAN UP COSTS ASSOCIATED WITH A SEVERE ACCIDENT IN THE NEW YORK METROPOLITAN AREA AND, THEREFORE, UNDERESTIMATES THE COST OF A SEVERE ACCIDENT AND FAILS TO CONSIDER MITIGATION MEASURES WHICH ARE RELATED TO LICENSE RENEWAL IN VIOLATION OF NEPA .......................................................... 2 CONTENTION 16-A THE DSEIS IMPROPERLY ACCEPTED ENTERGY'S POPULATION DOSE ESTIMATES OF RADIATION RELEASED IN A SEVERE ACCIDENT DESPITE THE LICENSING BOARD'S ADMISSION OF THE. STATE OF NEW YORK'S CONTENTION THAT THE AIR DISPERSION MODEL USED BY ENTERGY IN ITS SAMA ANALYSIS WILL NOT ACCURATELY PREDICT THE GEOGRAPHIC DISPERSION OF RELEASED RADIONUCLIDES AND WILL RESULT IN AN INACCURATE ESTIMATE OF THE COSTS OF HUMAN EXPOSURE........ 9 CONTENTION 17-A THE DSEIS FAILS TOADDRESS THE IMPACT OF THE CONTINUED OPERATION OF IP2 AND IP3 FOR ANOTHER 20 YEARS ON OFF-SITE LAND USE, INCLUDING REAL ESTATE VALUES IN THE SURROUNDING AREA IN VIOLATION OF 10 C.F.R. §§ 51.71(a), 51.71(d), 51.95(c)(1), AND 51.95(c)(4). ............................. ........................ 14 CONTENTION 33 THE DSEIS DISCUSSION OF ENERGY ALTERNATIVES (CHAPTER 8) VIOLATES NEPA BECAUSE IT IGNORES SIGNIFICANT NEW INFORMATION AND FAILS TO PROVIDE A RIGOROUS ANALYSIS OFý THE COSTS, BENEFITS, AND FEASIBILITY OF ENERGY CONSERVATION AND OTHER MEASURES UNDER THE "NO-ACTION" ALTERNATIVE IN VIOLATION OF 10 C.F.R. §§ 51.53(c)(3)(iv), 51.71(a) AND (d), AND 51.95, 10 C.F.R. PART 51, SUBPART A, APPENDIX B; AND 40 C.F.R. §§ 1502.14 AND 1502.9 ..................... 21

TABLE OF CONTENTS (cont'd)

CONTENTION 34 THE DSEIS DID NOT TAKE INTO ACCOUNT SIGNIFICANT NEW INFORMATION REGARDING THE POTENTIAL IMPACTS TO OFF-SITE LAND USE FROM LONG-TERM OR INDEFINITE STORAGE OF HIGH LEVEL NUCLEAR WASTE ON THE INDIAN POINT SITE IN VIOLATION OF NEPA AND RELATED REGULATION S ...... ............ ......... ............................ 37 C onclusion ........ ........................ .................. .. ........ . 47

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-BDO1 Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and DPR-26, DPR-64 Entergy Nuclear Operations, Inc.

x PRELIMINARY STATEMENT The State of New York respectfully submits these additional contentions based on the Draft Supplemental Environmental Impact Statement ("DSEIS") issued by Staff of the Nuclear Regulatory Commission ("NRC") on December 22, 2008.'

The State herein submits two kinds of contentions: contentions which update previously submitted contentions (i.e., Contentions 12-A, 16-A, and 17-A), and new contentions not previously submitted in this proceeding (i.e., Contentions 33 and 34).

The first category of proposed contentions asserts that the DSEIS fails to address previously-identified inadequacies contained in the applicant's Environmental Report and that NRC Staff essentially adopted and incorporate the applicant's inadequacies into the DSEIS.

While recognizing that the NRC regulations may not require the State to submit this category of supplemental contentions, the State presents them now out of an abundance of caution to preclude any subsequent assertion by the Staff, the Applicant or a reviewing tribunal that the In its Order and Memorandum dated February 4, 2009, the Board extended the deadline for filing these contentions to February 27, 2009. See Order and Memorandum (summarizing prehearing conference)(Feb. 4, 2009).

State of New York.

Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR State has not pursued its rights as secured by the U.S. Constitution, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4323 et seq., or regulations promulgated by the Council on Environmental Quality ("CEQ") or NRC. As to this category of contentions, the State raises them at this juncture in order to preserve these issues for further litigation and to create a complete record. These contentions are denoted with an "A" (i.e., Contention 17-A supplements NYS-17 with, arguments under NEPA).

The second category of proposed contentions asserts that the DSEIS is incomplete and/or inadequate concerning two issues: (1) the failure to consider in the no-action alternative conservation and energy alternatives that would arise if the continued operation of the reactors was denied, and (2) environmental impacts and benefits associated with long-term or indefinite on-site waste storage on off-site land use as part of the evaluation of costs and benefits of the no-action alternative. These contentions are denoted Contention 33 and 34 respectively.

CONTENTION 12-A NRC'S ANALYSIS AND AGREEMENT WITH ENTERGY'S SEVERE ACCIDENT MITIGATION ALTERNATIVES (SAMA) ANALYSIS FOR INDIAN POINT UNIT 2 AND UNIT 3 DOES NOT ACCURATELY REFLECT DECONTAMINATION AND CLEAN UP COSTS ASSOCIATED WITH A SEVERE ACCIDENT IN THE NEW YORK METROPOLITAN AREA AND, THEREFORE, UNDERESTIMATES THE COST OF A SEVERE ACCIDENT AND FAILS TO CONSIDER MITIGATION MEASURES WHICH ARE RELATED TO LICENSE RENEWAL IN VIOLATION OF NEPA

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR BASIS

1. NEPA compels the NRC to consider in its DSEIS alternatives to any proposed federal action. See 42 U.S.C. § 4332(2)(c)(iii). A thorough alternatives analysis in the context of nuclear power plant license renewal depends upon an accurate calculation of the cost of a severe accident in order to have a base line against which to measure proposed mitigation measures.

See 10 C.F.R. §§ 51.71(a) and (d); 40 C.F.R. 88 1502.14(f), 1.502.16(h)(requiring analysis of mitigation measures).

2. As the State of New York postulated in its Contention 12, which was accepted by the Board, Entergy's SAMA analysis for Indian Point Unit 2 ("IP2") and Indian Point Unit 3

("IP3') uses an outdated and inaccurate proxy to represent the decontamination and.clean up costs resulting from a severe accident. Entergy's SAMA analysis relies on the MELCOR Accident Consequence Code System (MACCS/MACCS2) computer program. However, the cost formula contained in MACCS2 underestimates the costs likely to be incurred as a result of a dispersion of radiation. Therefore, Entergy's SAMA analysis significantly understates the costs associated with such an accident.

3. The NRC, in the DSEIS, accepted Entergy's flawed SAMA analysis without conducting an independent evaluation of the issues raised in New York State admitted Contention 16 and attempting to reconcile those concerns with Entergy's analysis.

4. MACCS2's cost calculation subroutine relies on an assumption that the dispersion will consist of large-sized radionuclide particles.

State of New York Supplemental Contentions Concerning NRC Staffs Draft 'Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

5. MACCS2's cost calculations subroutine does not take into account the additional costs that would be incurred in decontaminating a suburban/urban area such as the one that exists within the 50-mile Emergency Planning Zone around Indian Point.

6. A severe accident resulting in the dispersion of radionuclides from a nuclear power plant likely will result in the dispersion of small-sized radionuclides.

7. Large-sized radionuclide particles are easier and less expensive to~remove and clean up than small-sized radionuclide particles.

8. Conversely, it will be more expensive to decontaminate and clean up a suburban/urban area in which small-sized radionuclide particles have been dispersed, than it would be to clean up large-:sized radionuclide particles.

9. Because MACCS2's decontamination and clean up costs are based on large-sized radionuclide particles, it underestimates the costs of decontaminating a suburban/urban area following the dispersion of radionuclides from a nuclear power plant.

10. If the MACCS2 decontamination cost input reflected the accurate cost of cleaning up small-sized radionuclide particles in the suburban/urban areas within the Indian Point 50 mile Emergency Planning Zone, the result would be a significantly higher cost value for an accident at Indian Point.

11. Therefore, Entergy is unable to demonstrate that its SAMA analysis contained in the April 30, 2007 License Renewal Application has accurately determined which mitigation measures are cost effective. Accordingly, the SAMA-MACCS analysis as presented to in the

State of New York Supplemental Contentions Concerning NRC Staffs DraftSupplemental Environmental Impact Statement NRC Docket Nos. '50-247-LR and 50-286-LR License Renewal Application is faulty, and the DSEIS's acceptance of this flawed analysis is improper and violates NEPA's alternatives analysis requirement and NRC regulations implementing that requirement.

12. In place of the outdated decontamination cost figure contained in the MACCS2 code, the SAMA analysis for IP2 and/or IP3 should incorporate the analytical framework contained in the 1996 Sandia National Laboratories report concerning site restoration costs as well as recent studies examining the cost consequences in the New York metropolitan area. See D. Chanin and W. Murfin, Site Restoration:Estimation ofAttributable Costsfrom Plutonium-Dispersal"Accidents,SAND96-0957, Unlimited Release, UC-502, (May 1996); Beyea, Lyman, von Hippel, Damagesfrom a Major Release of JCs into the Atmosphere of the United States, Science and Global Security, Vol. 12 at 125-136 (2004) (discussing accident costs at Indian Point and four other sites); Lyman, Chernobyl on the Hudson? The Health and Economic Impacts of a TerroristAttack at the Indian Point NuclearPower Plant, Union of Concerned Scientists.

(September 2004). These three publicly available reports should be used to determine*the present and future value of decontamination costs for the four counties in the 10-mile Emergency Planning Zone as well other cities and towns in the New York City-Connecticut-New Jersey metropolitan area that are within 50-mile Emergency Planning Zone.

'SUPPORTING EVIDENCE

13. The support for Contention 12-A, listed below, is the same as the supporting evidence for the State of New York's original Contention 12, which was accepted by the Board.

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

14. The Sandia Site Restoration study analyzed the expected financial costs for cleaning up and decontaminating a mixed-use urban land and midwest farm and range land.

15. The Site Restoration study, which was commissioned by the U.S. Department of Energy, estimated the activities likely to be involved in the decontamination of an accident involving the dispersal of plutonium. Although Site Restoration studied a scenario in which plutonium from a nuclear weapon is dispersed as a result of an accident resulting from a fire or non-nuclear detonation of the weapon's explosive trigger device, the study's methodology and conclusions to estimate decontamination costs are directly useful to the LRA.

.16. The Sandia study recognized that it is extremely difficult to clean up and decontaminate small radioactive particles (i.e., particles ranging in size from a fraction of a micron to a few microns). See Site Restoration, SAND96-0957, at p. 5-7. Such smali-sized particles adhere more readily to objects and become more easily lodged in small cracks, crevices, masonry, fabric, or grass and other vegetation. Id. at 5-7 to 5-10. The study examined the costs.

for extendedremediation for mixed-use urban land (defined as having the national average population density of 1,344 persons/krm), midwest farmland, ard western rangeland, and forested area, and concluded that accident costs would be highest for urban areas. Id., Executive Summary, at x, xiii.

17. Site Restoration recognized that earlier estimates (such as those incorporated within the MACCS/MAACS2 codes) of decontamination costs are incorrect because they examined fallout from the nuclear explosion of nuclear weapons that produce large particles and

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-2*86-LR high mass loadings (i.e., particles ranging in size from tens to hundreds of microns). Id. at 2-9 to 2-10, 5-7. In the words of SAND96-0957, "tdlata on recovery from nuclear explosions that have been publicly available since the 1960's appear to have been misinterpreted, which has led to long-standing underestimates of the potential economic -costs of severe reactor accidents." Id., at 2-10.

18. For an extended decontamination and remediation operation in'a mixed-use urban area with an average national population density, Site Restoration predicted a clean up cost of

$311,000,000/km2 with on-site waste disposal and $402,000,000/km2 with off-site disposal..

SAND96-0957 at p. 6-4. For a so-called expedited clean up of a heavily-contaminated urban area, i.e., one that is finished within one year, the cost was predicted to be $398,000,000/krm2 using off-site disposal and $309,000,000/km2 using on-site waste disposal. Id. at 6-5.2

19. The costs could be much higher. For a tourism, educational, transportation, and financial center such as the New York metropolitan area, the economic losses stemming from the stigma effects of the dispersion of radioactive material would likely be staggering. The Sandia Site Restoration study further recognized that:

In comparing the numbers of cancer health effects that could result from a plutonium-dispersal accident to those that could result from a severe accident at a 2 These Sandia Site Restorationprojections are in 1996 dollars for an area of average population density and did "not include downtown business and commercial districts, heavy industrial areas, or high rise apartment buildings. Inclusion of these areas would increase costs."

'SAND96-0957, at p. 6-2.,

. I

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. '50-247-LR and 50-286-LR commercial nuclear power plant, it is readily apparent that the health consequences and costs of a severe reactor accident could greatly exceed the consequences of even a "worst-case" plutonium-dispersal accident because the quantities of radioactive material in nuclear weapons are a small fraction of the quantities present in an operating nuclear power plant.

Id. at 2-3 to 2-4. All of these costs must be taken into account.

20. Many areas within the Indian Point Emergency Planning Zones have higher population densities and property values than those examined in the Sandia Site Restoration report. Accordingly, as part of its analysis, the ER should revise the Sandia results for the densely populated and developed New York City area, incorporate the region's property values, and ensure that the resulting financial costs are expressed in present value (in 2008/2009/2010

.dollars) and future value (until 2.035, the likely term of any renewed operating license).

21. As noted, two recent studies provide additional information concerning the appropriate cost inputs for evacuation, temporary housing, decontamination, replacement, and disposal activities. Beyea, Lyman, von Hippel, Damagesfrom a Major Release ofJ37Cs into the Atmosphere of the United States, Science and Global Security, Vol. 12, p. 125-136 (2004)

(discussing costs of Indian Point accident); Lyman, Chernobyl on the Hudson? The Health and Economic Impacts of a TerroristAttack at the Indian Point NuclearPower Plant,Union of Concerned Scientists (September 2004).

22. These two studies and the economic model found in the Sandia Site Restoration

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and'50-286-LR study are currently'available to the applicant.3 The results from this readily available model, as updated and revised for the New York-Connecticut-New Jersey metropolitan area, should be included in the DSEIS and any SAMA analysis conducted as part of this license renewal proceeding.

CONTENTION.16-A THE DSEIS IMPROPERLY ACCEPTED ENTERGY'S POPULATION DOSE ESTIMATES OF RADIATION RELEASED IN A SEVERE ACCIDENT DESPITE THE LICENSING BOARD'S ADMISSION OF THE'STATE OF NEW YORK'S CONTENTION THAT THE AIR DISPERSION MODEL USED BY ENTERGY IN ITS SAMA ANALYSIS WILL NOT ACCURATELY PREDICT THE GEOGRAPHIC DISPERSION OF RELEASED RADIONUCLIDES AND WILL RESULT IN AN INACCURATE ESTIMATE OF THE COSTS OF HUMAN EXPOSURE.

BASIS

1. The SAMA analysis for IP2 and IP3, which was prepared by Entergy and uncritically accepted in the DSEIS, assumed a scenario in which no one would be evacuated from a fifty-mile radius around the plant and asserted that this "no evacuation scenario"would "conservatively estimate the population dose" of radiation because no one in the area would have his or her-exposure minimized by leaving.

2. Entergy has chosen this "no evacuation" scenario to demonstrate that the mitigation alternatives it rejected were not cost beneficial, even when assuming that the reduction in exposure from a mitigation alternative would affect the maximum number of people and 3

See http://www.osti.gov/bridge/product.biblio.jsp?ostiid=249283&queryid=2.

State of New York

• Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR would therefore result in the maximum financial benefit to which the cost of a mitigation alternative would be compared.

3. The accuracy of Entergy's assertion that a "no evacuation" scenario will yield the most "conservative" or highest estimate of population dose depends on whether its air dispersion model accurately portrays the geographic areas that will be most affected within the 10 mile Emergency Planning Zone around the plant that actually would be evacuated during a severe accident. 4 The accuracy of Entergy's air dispersion model is essential to its assertion because population concentrations vary substantially within the ten mile radius around the plant (LRA Appendix E at 2-1). Therefore, the population dose of radiation within that area will depend on the geographic dispersion and concentration of the radionuclides that are released.

4. For example, if an air dispersion model predicts that the highest concentration of radionuclides will center over Peekskill, with a population of 22,400, or Haverstraw, with a population of 33,000, id., then more people will be exposed at a higher dollar cost then if the model predicts that the highest concentration-of radionuclides will center over Bear Mountain 4In addition, Entergy's projections of the 2035 population likely to be living within 50 miles of Indian Point are suspect and underestimate the potential exposed population. For example, Table 2-5 State and*County Population, 50-Mile Radius of IP2 and IP3 on page 2-36 of the ER contains a projection that in 2035 the population of New York County (Manhattan) will be 1,570,657. The United State Census. estimates that in 2007 Manhattan's population was 1,620,867, over 50,000 more than Entergy asserts would be at risk 29 years later. See, e.g., U.S.

Census Bureau, State and County QuickFacts, New York County, New York, available at*

http://quickfacts.census.gov/qfd/states/36/36061.html.

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR State Park to the northwest or the U.S. Army Reservation to the north. Because the cost effectiveness of any mitigation alternative depends on the dollar value of a reduction in exposure, then a reduction in exposure in Peekskill or Haverstraw will affect more people and be more valuable than will a reduction in exposure in Bear Mountain State Park.

5. The ability of Entergy's air dispersion model to accurately predict the geographic dispersion and concentration of radionuclides in the area between the 10 mile and 50 mile radius around the plant is also essential to its rejection of 61 of 68 SAMAs as not being cost effective.

All of New YorkCity and its densely populated suburbs are within that fifty-mile radius and the population dose will be substantially greater if more radioactivity reaches the Bronx or Manhattan than reaches Orange County west of the Hudson River. If Entergy's air dispersion model inaccurately predicts that more radioactivity will reach Orange County than the Bronx or Manhattan, the population dose cost will be inaccurately lower and mitigation alternatives will be improperly rejected as not cost effective.

6. In determining the geographic dispersion of radionuclides released in a severe accident, Entergy used an atmospheric dispersion model known as ATMOS, which is a straight line Gaussian plume model incorporated in the MAACS2 Code. ATMOS will not as accurately predict the dispersion and concentration of radionuclides as will newer EPA approved models such as AERMOD or CAL PUFF. Indeed, the EPA has not authorized the use of the ATMOS air dispersion model to demonstrate compliance with regulatory standards under the Clean Air Act.

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

7. Moreover, the accuracy of a straight line steady state Gaussian air dispersion model decreases with distance' from the source of the release. For that reason, EPA does not approve the use of a straight line steady state Gaussian plume model to predict the.dispersion of a pollutant beyond 50 kilometers, or thirty-two miles. Therefore, Entergy's use of the ATMOS model to predict dispersion in a 50 mile radius of the plant, an area which includes the highest population concentrations, is unacceptable.'

8. As a straight line steady state Gaussian plume model, ATMOS assumes that meteorological conditions are constant and uniform across the study area for each time period of simulation. It therefore does not account for changes in wind speed or direction during the simulation time period nor can it incorporate differencesjin terrain that will affect the way in which the release will travel. See Declaration of Bruce Egan ¶¶ 22-29, 46. Released material is assumed to travel downwind in a straight line and the concentrations of material in the horizontal and vertical dimensions are assumed to disperse in the shape of a Gaussian or bell curve.

5As the State of New York noted in Contention 17, to the extent the Applicant intends to use, and NRC accepts the use of, ATMOS or any similar model that does not incorporate the factors and analyses detailed in the Declaration of Dr. Bruce Egan submitted in support of the State of New York's petition filed November 30, 2007, to make predictions about the direction and radionuclide content of any off-site release of radionuclides, those calculations will be equally deficient and will provide false information to the public and to emergency response teams. As a result, the Applicant will be unable to meet its obligations under 10 C.F.R. § 50.47(b)(9)("Adequate methods, systems, and equipment for assessing and monitoring actual or

,potential offsite consequences of a radiological emergency condition are in use.") and NRC Staff will be unable to meet its concurrent obligations under NEPA.

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

9. Because of the simplicity of its assumptions, the ATMOS model will not yield the most accurate portrayal of the geographic dispersion and concentration of a radioactive release and will therefore not yield the most accurate population dose.

10. The Licensing Board admitted the State of New York's contention 16 that (1)

Entergy's population projections are underestimated; (2) the ATMOS model in MAACS2 is being used beyond its range of validity; and (3) the ATMOS model in MAACS2 will lead to a non-conservative geographical distribution of radioactive dose within a fifty-mile radius of IPEC.

I . The Licensing Board acknowledged that the answers to the questions raised in The State of New York's contention 16 could materially affect the cost benefit analysis of various mitigation alternatives because the potentially exposed population rapidly increases between thirty-one and fifty miles from IPEC and varies substantially within fifty-miles of IPEC.

12. Therefore, the DSEIS's conclusion that Entergy properly identified all cost beneficial SAMAs based on a "generally conservative" estimate of risk reduction (DSEIS,

§ 5.2.4) fails to address any of the issues raised in the State of New York's contention 16 -

issues that the Licensing Board admitted into this proceeding for resolution. Unless a more accurate SAMA analysis, based on a remodeling of the atmospheric dispersion of a release of radionuclides using a more accurate EPA approved air dispersion model, is*prepared by the NRC Staff, the environmental analysis of mitigation alternatives to the proposed action will be deficient and in violation of NEPA. See § 10 C.F.R. 51.53(c)(3)(ii)(L); 40 C.F.R. § 1502.14(f).

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR SUPPORTING EVIDENCE

13. This contention is supported by the Declaration of Bruce Egan, Sc.D., originally submitted in support of Contention NYS-16.

14. This contention is also supported by the references contained in the Basis of the original Contention NYS-16 and in the Basis for this Contention.

CONTENTION 17-A THE DSEIS FAILS TO ADDRESS THE IMPACT OFTTHE CONTINUED OPERATION OF IP2 AND IP3 FOR ANOTHER 20 YEARS ON OFF-SITE LAND USE, INCLUDING REAL ESTATE VALUES IN THE SURROUNDING AREA IN VIOLATION OF 10 C.F.R. §§ 51.71(a), 51.71((d), 51.95(c)(1), AND 51.95(c)(4)

BASIS

1. Appendix B to Subpart A of 10 C.F.R. Part 51 requires that off-site land use impacts be evaluated in the DSEIS. Off-site land use impacts cannot be assessed generically and are thus Category 2 issues that fall within the scope of the proceeding. See Memorandum and Order, In the Matter of Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 and 3)(July 31,2008) at 82. See also GenericEnvironmentalImpact Statementfor License Renewal of Nuclear Plants (1996) ("GEIS") § 4.7.4.2 ("Because land use changes may be perceived by some community members as adverse and by others as beneficial, the staff is unable to assess generically the potential significance of site-specific off-site land use impacts. This is a Category 2 issue.")

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and'50-286-LR

2. The DSEIS's evaluation of land use impacts is deficient because it ignores the positive impact on land use and land value from denial of the license extension for IP2 and IP3.

See 10 C.F.R. §§ 51.71(a), 51.71(d), 51.95(c)(1), and 51.95(c)(4).

3. The DSEIS improperly limited its analysis of the land use impacts of relicensing to plant-related population growth or to land development driven by tax revenues generated by the plant. This analysis is improper because "NRC regulations do not limit consideration to tax-driven land-use changes" and "the impact on real estate values that would be caused by license renewal or non-renewal" should have been considered in an environmental analysis of relicensing IP2 and 3. Memorandum and Order, In the Matter ofEntergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 and 3)(July 31, 2008) at 83.

4. Under the no-action alternative, if the licenses were not renewed, the plants would be decommissioned in 6 years such that the site would be available for unrestricted use and all the nuclear wastes at the site would be gone by 2025. See 10 C.F.R. §§ 51.23; 51.71(a) and (d);

40 C.F.R. § 1502.14(d)(requiring analysis of the no-action alternative); see also 10 C.F.R. Part 51, Subpart A, Appendix A, paragraph 4; GEIS at §§ 1.4, 8.2.

• 5. The no-action alternative will therefore substantially increase the beneficial uses for land adjacent to (within 2 miles) of the Indian Point site and will incr*ease the value of that land.

6. Extended operation of IP2 or IP3 will deprive adjacent lands of the economic recovery that they would otherwise enjoy if IP2 and IP3 are not relicensed.

State of New York Supplemental Contentions Concerning NRCPStaffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

7. In addition, extending the license for an additional, 20 years will require additional storage for spent fuel generated during the extended period.

8. The spent fuel pools at Indian Point are not sufficient to contain the spent fuel that will be generated during the additional 20 years of operation of IP2 or JP3 and thus dry cask storage is required.

9. This dry cask storage of high level nuclear wastes will create further impacts on the value and potential use of adjacent lands beyond the impacts of the operating nuclear plants.

10. The'DSEIS contains no analysis of the environmental impact on adjacent land values that will be associated with the construction and long term operation of a dry cask storage facility at the Indian Point site of a size sufficient to handle the spent fuel from extended operation of either reactor.

11. If the licenses for IP2 and IP3 are not extended, owners and potential purchasers of land adjacent to Indian Point can contemplate that the site willbe cleared of all nuclear materials and facilities by 2025. Thus, they can begin now to consider development of the adjacent property without concern that the site remains either an operating nuclear facility and/or a storage site for nuclear wastes beyond 2025.

12. However, if the licenses are extended for IP2 or IP3, the site will remain nuclear for at least another 20 years and substantial quantities of spent fuel will be stored~in dry casks at the site during this period. This will have an adverse impact on the value of adjacent land and its development as compared to what would occur if the licenses were not renewed.

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

13. Thus, the DSEIS fails to consider reasonable alternatives to mitigate off-site land use impact as required by 10 C.F.R. § 51.71 such that the commission cannot find that the applicable requirements of Appendix B of Subpart A of 10 C.F.R. Part 51 have been satisfied.

10 C.F.R. § 54.29(b).

SUPPORTING EVIDENCE

14. An analysis of off-site land use impacts of license renewal is required by 10 C.F.R. Part 51, Subpart A, Appendix B which identifies such impacts as Category 2 - that is, for that impact, "the analysis reported in the Generic Environmental Impact Statement has shown that one or more of the criteria of Category 1 cannot be met, and therefore additional plant-specific review is required." Id. at n. 2.

15. The Commission has decided by regulation, see 10 C.F.R. § 51.23, that by 2025 there will be a permanent off-site high level waste repository sufficient to handle all the wastes that will have been generated by IPI, IP2 and 1P3 during their years of operation through 2015.6 6As of October 9, 2008, the NRC is reconsidering this expectation. See 73 Fed. Reg. 59551 (Waste Confidence Decision Update)(Oct. 9, 2008); 73 Fed. Reg. 59547 (Temporary Storage Rule)(Oct. 9, 2008). Should either or both of these proposed findings or rules be finalized, waste would be stored on-site for considerably longer than currently expected, making this contention even more relevant. However, the NRC, while acknowledging that it no longer has confidence that there will be an off-site waste storage facility available to handle the new wastes generated by license renewal, continues to have confidence that there will be such a facility available to handle the wastes generated by existing nuclear plants under their original, non-renewed operating licenses..

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

16. The Commission has also determined that the purpose of decommissioning nuclear facilities "is to take the facility safely from service and to reduce residual radioactivity to.-

a level that permits release of the property for unrestricted use and termination of license."

FGEIS on decommissioning of nuclear facilities, NUREG 0586 (Aug. 1988), § 1.3. '.'DECON" is a decommissioning alternative in which "the equipment, structures, and portions of a facility and site containing radioactive contaminants-are removed or decontaminated to a level that permits the property to be released for unrestricted use shortly after cessation of operations." Id.

§ 2.4.2.

17. The DSEIS concludes that there will be "no population-related land use impacts during the license renewal term beyond those already being experienced" and "no tax-revenue-related land use impacts during the license renewal term beyond those currently being experienced." DSEIS at 4-41. These are the only two land use impacts addressed.

18. The DSEIS did not consider the changes in property values associated with the unanticipated continuation of an operating nuclear powergeneration facility and the associated increase in dry cask storage of spent waste. See PotentialImpacts of Indian PointRelicensing on Property Values, Stephen C; Sheppard, Ph.D., November 2007 (appended to Declaration of Stephen C. Sheppard, sworn to November 28, 2007).

19. Dr. Sheppard states, relying on The Effect of Electric Utility PowerPlantLocation on Area Property Value, Glenn Blomquist, Land Economics, Vol. 50, No. 1 (Feb., 1974) at 97-100, that "there was a clear and statistically significant impact of [non-nuclear] power plants on

State of New York Supplemental Contentions Conceming NRC Staffs Draft Supplemental Environmental Inmact Statement NRC Docket Nos. 50-247-LR and 50-286-LR property values". up to a distance of 11,500 feet from the facility. See PotentialImpacts of Indian PointRelicensing on Property Values at p. 2, attached to the Declaration of Stephen C.

Sheppard. If anything, the impact of nuclear power plants is even larger. Id. at 4.

20. An analysis titled An InterregionalHedonic Analysis of Noxious FacilityImpacts on Local Wages and Property Values, David Clark and Leslie Nieves, Journal of Environmental Economics and Management, Vol. 27 (1994) at 235-53, concludes, to a reasonable and professionally accepted degree of scientific certainty, that "the impact of nuclear generating plants is more than 3 times the impact of coal fired plants and more than 4 tinies the impact of gas and oil fired generating facilities." PotentialImpacts of Indian PointRelicensing on Property Values at p. 3, attached to the Declaration of Stephen C. Sheppard. This impact is from the facility itself when compared to an alternative use that is also capable of generating employment and income. These properly done studies support the contention that a nuclear power plant may have a significant, not a small, impact on adjacent land values.

21. Data from the 2000 Census demonstrate that, at the time of that census, the total value of residential property within 2 miles of the facility was about $2.2 billion. Potential Impacts ofIndianPointRelicensing on Property Values. Id. at 4. According to Professor Sheppard's calculations, the current market value of residential propertywithin 2 miles of the facility is slightly over $4.3 billion (an increase of 93% from the first quarter of 2000). Id.

Professor Sheppard calculated, conservatively, that removal of the facility and its spent fuel would increase property values within 2 miles of Indian Point by $576,026,601. Id. Plainly, land

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR use impacts of more than a half billion dollars cannot be considered "SMALL" or even "MODERATE."

22. Absent relicensing, the suppressed land values of adjacent property would recover. The DSEIS's failure to analyze the impact of relicensing on the property values of adjacent lands renders its land use impact analysis incomplete and its conclusions erroneous.

23. This contention is supported by.the report of Stephen C. Sheppard, Ph.D.,

appended to his November 28, 2007 declaration submitted in support of Contention 17 in the State of New York's petition.

24. This contention is also supported by the Supplemental Declaration -and Report entitled PotentialImpacts of Indian Point Relicensing with Delayed Site Reclamation by Stephen C. Sheppard, Ph.D, annexed to this submission.

CONTENTION 33 THE DSEIS DISCUSSION OF ENERGY ALTERNATIVES (CHAPTER 8) VIOLATES NEPA BECAUSE IT IGNORES SIGNIFICANT NEW INFORMATION AND FAILS TO PROVIDE A RIGOROUS ANALYSIS OF THE COSTS, BENEFITS, AND FEASIBILITY OF ENERGY CONSERVATION AND OTHER MEASURES UNDER THE "NO-ACTION" ALTERNATIVE IN VIOLATION OF 10 C.F.R. §§ 51.53(c)(3)(iv),

51.71(a) AND (d), AND 51.95, 10 C.F.R. PART 51, SUBPART A, APPENDIX B; AND 40 C.F.R. §§ 1502.14 AND 1502.9 BASIS

1. Pursuant to 10 C.F.R. § 51.71(b), draft environmental impact statement must include "consideration of major points of view concerning the environmental impacts of the

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR proposed action and the alternatives, and contain an analysis of significant problems and objections raised by other Federal, State, and local agencies, by any affected Indian tribes, and by other interested persons." 10 C.F.R. § 51.71(b). 10 C.F.R. § 51.71(a) explains that the scope of the Staff's environmental review encompasses the requirements to which the Applicant is held in its Environmental Report, which under 10 C.F.R. § 51.53(c)(3)(iv) requires the Applicant (and by reference, Staff) to examine significant new information. See 10 C.F.R. § 51.71(a); 10 C.F.R. 51.53(c)(3)(iv); 10 C.F.R. Part 51, Subpart A, Appendix B; see also 10 C.F.R. § 51.95.

2. Appendix A to Subpart A to Part 51 requires analysis of the no-action alternative.

Part 51, Subpart A, Appendix A, Section 4. Pursuant to 10 C.F.R. § 51.71 the DSEIS must analyze the evidence offered regarding the availability and environmental impacts of alternatives which would likely be implemented if no action were taken to relicense either IP2 or IP3.

Appendix A to 10 C.F.R. Part 51 emphasizes the importance of the examination of alternatives:

"This section is the heart of the environmental impact statement. It will present the environmental impacts of the proposal and the alternatives in comparative form." Appendix A to r

10 C.F.R. Part 51 at Section 5. CEQ regulations also require the agency to "include the alternative of no action." 40 C.F.R. § 1502.14(d).

3. In addition, CEQ's regulations require the agency to "[r]igorously explore and objectively evaluate all reasonable alternatives." 40 C.F.R. § 1502.14(a). Likewise, CEQ requires a supplement to a draft environmental impact statement if "[t]here are significant new

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR circumstances or information. relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1)(I).

4. Contrary to these regulatory. obligations, the December 22, 2008 DSEIS ignores or.

fails to include consideration and analysis of substantial comments and information provided by the State of New York relating to the "no-action" alternative and the benefits of certain measures that would be taken if the no-action alternative were chosen compared to the detriments that would be caused by relicensing of lP2 and IP3.

5. Among the items which were identified by the State of New York in its previous filings in this proceeding and in scoping comments that have been ignored or not considered and analyzed in the DSEIS are the following:

The information on the potential for energy efficiency and renewable resources, combined heat and power, and power plant repowering that was provided in the November 27, 2007 Report prepared by Synapse Energy Economics, Inc., and David Schlissel in support of the State.of New York's Petition to Intervene (Supporting Declarations and Exhibits, Volume I, November 30, 2007 ("Synapse Report"));

New York's 15x 15 plan that has the goal of reducing the state's electricity usage by 15 percent by 2015, and the steps that are being taken by state agencies, such as the Public Service Commission, to implement that plan. Evidence of the efforts already underway to achieve these goals can be found at http://www.dps.state.ny.us/Phase2_Case_

07-M-0548.htm, which is ignored in the DSEIS. For example, on January 16 2009, the New York State Public Service Commission issued combined Orders Approving "Fast Track" Utility-Administered Electric Energy Efficiency Programs with Modifications.

See PSC Case 08-E-1003 - Petition of Orangeand Rockland Utilities,Inc. for Approval of an Energy Efficiency Portfolio Standard*(EEPS) "FastTrack" Utility-Administered Electric Energy Efficiency Program. In addition, in his January 2009 State of the State speech to the Legislature, Governor Paterson pledged to expand the 15x 15 Program and the Renewable Portfolio Standards Program.

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR The potential capacity and energy from combined heat and power; The potential capacity and energy that could be provided by repowering existing power plants in New York State (Synapse Report at 12-14);

The potential for importing additionalpower from the PJM area 7 and/or New England (Synapse Report at 14-15);

The potential for additional transmission system upgrades that would increase the capability to import power into downstate New York from PJM and NE, including increases in the capability to import power from PJM (id.);

• The reduced energy sales and peak loads being experienced by utilities in downstate New York as a result of the current economic recession (Schlissel Declaration 2, attached).

Energy Conservation and Efficiency

6. In its November 30, 2007 petition for intervention, the State of New York presented evidence to the NRC concerning the State's program to increase energy efficiency and reduce energy use. Since then, the State has devoted significant time and resources to implement this program. On June 23, 2008, the Public Service Commission adopted agoal of reducifig electricity usage. (as forecast in 2007) by 15% statewide by 2015. An Energy Efficiency Portfolio Standard ("EEPS") program was created for New York State to develop and encourage cost-effective energy efficiency over the long term, and immediately to commence or augment.

near-term efficiency measures. See PSC Case 07-M-0548, Energy Efficiency Portfolio Standard (EEPS), Oirder Establishing Energy Efficiency Portfolio Standard and Approving Programs 7

The "PJM Area" is a interconnected regional electric system in 13 states and the District of Columbia. Pennsylvania and New Jersey are two states within PJM.

State of New York Supplemental'Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR (issued June 23, 2008). Six weeks ago, on January 16, 2009, the Public Service Commission Approved "Fast Track" Utility-Administered Electric Energy Efficiency Programs with Modifications. See PSC Case 08-E-1003, Orders Approving "Fast Track" Utility-Administered Electric Energy Efficiency Programs with Modifications. These orders will increase energy efficiency, including in the southern areas of New York near the Indian Point power reactors (including Zones H, I, J, and K).

7. The DSEIS artificially limits its analysis of energy conservation to a single study, the National Research Council of the National Academy of Sciences' report entitled The Alternatives to the Indian Point Energy Centerfor Meeting New York ElectricPower Needs

("NAS 2006"), which while a useful document, is only one of many sources addressing the energy conservation potential in New York State. Information, including recent data that has become available since the 2006 NAS Report and that has been cited - today and previously in this proceeding -by the State of New York, demonstrates that: (1) with the volatile energy costs of the last few years, additional energy conservation is even more financially viable; (2) with strong directives from the Governor of New York State, institutional and other non-technical barriers to energy conservation are less of a problem; (3) with the recent shift in emphasis by the federal government and private business, energy conservation and efficiency will increase; and (4) with-the current economic climate, the demand for energy will remain flat for several years, or, perhaps decline, thus prolonging the date by which energy conservation and renewable energy will have to be available to fully displace some or all of the demand now being met by lP2 or

- State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR IP3. The DSEIS does not address this information. Contrary to the clear regulatory obligation imposed by 10 C.F.R. § 51.71(d), the DSEIS incorrectly assumes that energy conservation would only result in a savings of 800 MW and, and, based on that arbitrary conclusion that is contrary to.

recent evidence, fails to consider energy conservation as a full replacement for one or both of the units under the no-action alternative.

8. Moreover, the likelihood of the availability of energy efficiency and conservation measures (as well as alternative and renewable energy sources and transmission enhancements) has recently been greatly increased as a result of the recently-enacted American Recovery and Reinvestment Act of 2009, Public Law 111-5 (signed February 17, 2009). Although no final allocation has yet been made, the State of New York could receive upwards of $139.2 million for the State Energy Program, $18 million for Energy Efficiency and Conservation Block Grants to small cities and additional hundreds of millions for Energy Efficiency and Conservation Block Grants to large cities and counties - which would include Westchester County and the New York metropolitan area - and $404 million for.weatherization assistance,,which has the potential to greatly reduce energy consumption through energy efficiency and conservation. See American Recovery and Reinvestment Act of 2009, Public Law 111-5. In addition, New York would be eligible to compete for an approximate $11 billion available nationwide for improvements in transmission and smart.grid technology. Id.

9. One the most significant pieces of significant new information which was not available when the GEIS was written and is ignored in the DSEIS is the central role of energy

/-

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50M247-LR and 50-286-LR conservation in energy planning and its growing importance in providing for energy needs. For example, the State of New York has taken the lead in pressing the federal government to implement efficiency standards for home appliances. See NYS Petition at 116-118. The DSEIS paid no attention to New York's efforts to improve energy efficiency and its actions to encourage the federal government to improve appliance efficiency standards. The fruits of these efforts by the State of New York can be found in actions taken by the New York State Public Service Commission (http://www.dps.state.ny.us/Phase2,Case_07-M-0548.htm) and the recent actions by the White House urging the U.S. Department of Energy to consider accelerating the dates on which these new standards for all appliances will be implemented. See February. 5, 2009 White House Memorandum For The Secretary Of Energy

Subject:

Appliance Efficiency Standards.

Like the State's own programs, these accelerated federal efficiency standards will further conserve energy within New York State and in Zones H, I, J, and K. By way of example, according to the federal government's Energy Star program administered by the U.S. Department of Energy, switching to compact fluorescent lightbulbs could result in significant energy savings.

In order to comply with,NEPA, NRC's environmental review should take these conservation and efficiency efforts into account:

10. Energy conservation produces no carbon, no pollution, and requires the use of no fuel. Once an energy conservation measure is in place, its benefit continues without further capital or maintenance costs for a substantial period of time into the future. The DSEIS acknowledges that there is virtually no adverse environmental impact associated with energy

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR conservation measures. DSEIS at 8-66 ("Impacts from conservation measures are likely to be negligible, as the NRC staff indicated in the GEIS (1996))." Because the DSEIS ignores other information from other credible sources, including the State of New York's expert, that the energy conservation potential between now and 2012 is sufficient to displace at least one of the IP units, thus greatly enhancing the potential benefits and substantially reducing the perceived adverse impacts of the no action alternative, the DSEIS violates NEPA.

Renewables

11. The DSEIS erroneously concludes, without any critical analysis and with only bare assertions regarding Staff beliefs, that there are too many obstacles to implementing sufficient wind power or other renewable energy resources such that these sources could not provide anything more than 200 to 400 MW to replace either or both IP units. See DSEIS 8-65 to 8-66 (Combination Alternatives 1 and 2). By making this assumption, the DSEIS's analysis incorrectly constrains and limits the potential benefits of the no-action alternative by undervaluing the ability of wind and other r~newables to provide power in New York in general and southeastern New York area in particular. The NRC Staff's beliefs and assertions are wrong and ignore substantial evidence, offered by the State of New York and generally available, that the potential for wind energy and other renewable resources is much more viable. See Synapse Report at 7-12. By way of example, on February 26, 2009, the New York Independent System Operator announced that the combined wind energy generation output within New York State has reached 1,000 MW and that such output is expected to increase.

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

12. The DSEIS also incorrectly discounts and then eliminates any contribution from hydro power or distributed geothermal energy.. DESIS at 8-61, 8-62, 8-65 to 8-66. By eliminating consideration of these energy sources in the portfolio of alternatives to IP2 and/or IP3, the DSEIS no action alternative analysis is skewed and arbitrary.

13. Indeed, as discussed in the November 2007 Declaration of former Commissioner Peter Bradford, it would be reasonable to assume that a determination that one or both of the IP units will not be available after 2013 or 2015 would further stimulate the development and use of renewable energy sources in New York. See November 2007 Bradford Declaration at¶¶ 10, 11,

12. Such a decision would increase the development of wind, solar, geothermal, hydro, biomass and wood energy sources.

14. The DSEIS also does not take into account Governor Paterson's recently-announced initiative to expand the 15x 15 Program and the Renewable Portfolio Standards.

Program to further improve energy efficiency and the generation of renewable energy. In his January 7, 2009 State of the State Speech, the Governor unveiled the "45xl 5" Program:

Today, I announce one of the most ambitious clean energy goals in America. By 2015, New York will meet 45 percent of its electricity needs through improved energy efficiency and clean renewable energy. We call this our "45 by 15" program.

Working in concert with this program, the New York Power Authority ("NYPA") will increase funding to school districts, local governments, and hospitals to increase energy efficiency. As part of the State's energy efficiency program, NYPA will provide capital for school districts, as

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR well as eligible local governments and hospitals to retrofit and install clean distributed energy resources. NYPA's trustees have approved increasing financing for these projects to $185 million per year - up from $100 million- in support of the State's clean energy agenda. See generally Energy Efficiency Fact Sheet available at http://www.ny.gov/governor/press/factsheet-01 07092.html.

Energy Transmission

15. Based on a 2006 U.S. Department of Energy determination, the DSEIS assumes that the Zones H, I J, K are a so-called "critical congestion area" and that this situation will continue indefinitely. See DSEIS at 8-32. The DSEIS however, fails to acknowledge that this DOE decision is the subject of a judicial challenge,' and more importantly that additional transmission capacity either has been installed, is in the process of being installed, or has been approved to be installed in Zones H, I, J, and K. For example,

• the Neptune Cable links the LIPA service are with New Jersey and energy sources in the PJM area. It provides up to 660 megawatts of electricity to Long Island. See LIPower.com.

• LIPA and Connecticut Light & Power Company are replacing the 300 megawatt electric transmission cable system that connects Long Island with southwest Connecticut. See LIPower.com.

• the Cross-Sound cable from Connecticut to Shoreham (Long Island) has been operating for several years.

8 Wildnerness Society et al. v. U.S. Departmentof Energy (9th Cir. No. 08-71074).

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR In addition, trans-Hudson and trans-Arthur Kill connections and interconnection upgrades are in the ISO interconnection queue. These project currently include the Brookfield Power U.S. Harbor Cable Project 11 (200 MW), the East Coat Power LLC interconnection upgrade (300 MW; Linden, Staten Island), and the Hudson Transmission Partners interconnection upgrade (660 MW) (linked to Sayreville, NJ). See NYISO Interconnection Queue availableat http://www.nyiso.com/public/services/

planning/interconnectionstudiesprocess.jsp (last.visited Feb. 27, 2009).

The DSEIS does not address these transmission avenues.

Combinations

16. In discussing the no action alternative, the DSEIS acknowledges that "The power not generated by IP2 and 1P3 during license renewal term would likely be replaced by (1) power supplied by other producers (either existing or new units) using generating technologies that may differ from that employed at IP2 and IP3, (2) demand side management and energy conservation, or (3) some combination of these options. DSEIS at 8-27. The DSEIS primarily relies on the assumption, initially adopted more thanl 2 years ago, that the only way to replace a large

'generating unit like a nuclear power plant is with another similarly large generating unit.

Regardless of the validity of that assumption 12 years ago, it is definitely not valid today. See Time, America's UntappedEnergy Resource: Boosting Efficiency Michael Grunwald (December 31, 2008), availableat http://www.time.com/time/magazine/article/0,9171,1869224,00.html; see also EPRI, Assessment ofAchievable Potentialfrom Energy Efficiency and Demand Response Programsin the U.S. (2010 - 2030) (published January 14, 2009). Utilities in the United States and particularly in New York and New England are meeting demand requirements with a broad

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR combination of conservation, innovative modifications of existing plants, and renewable energy without considering the construction of new coal facilities.

17. Rather than preparing a comprehensive and detailed analysis of the development of a portfolio of means to provide power.in lieu of IP2 and IP3, DSEIS devotes considerable effort to proving that a 2,200 MW coal plant is not a good option in this service area. DSEIS at 8-33 to 8-45. The analysis of the impacts flowing from the construction of a new coal plant in Zones H, I, J, or K is besides the point and appears to be a "strawman" analysis. This analysis of the coal alternative (1) fails to acknowledge that no New York-based utility has a pending application for the construction of new coal generation in Zones H, I, J, and K and (2) ignored objective evidence demonstrating. the existence of other (i.e., non-coal) sources of power.

generation and conservation. Indeed, the current DSEIS's analysis of single facility alternatives as well as its "coal analysis" appears to be a continuation of the pattern identified by former Commissioner Bradford wherein the two principal energy alternatives examined by the Commission are a large coal plant or a nuclear reactor. See November 2007 Declaration of Peter Bradford, at ¶¶ 8, 9; see also Gerald Warburg, memorandum, A Study ofNRC Proceduresfor Assessing Needfor Powerand Alternative Energy Sources in Fulfillment of the NEPA Requirementsfor EnvironmentalImpact Statements (1979).

18. To the extent that the DSEIS discusses natural gas production, DSEIS at 8-46 to 8-56, the NRC Staff tacitly acknowledges that IP2 and IP3 power reactors could be replaced by natural gas-fired combined-cycle generation either at the Indian Point site Ior elsewhere. Indeed,

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR the record reflects that utilities have developed natural gas capacity in New York. For example, the Long Island Power Authority is completing the construction of its Caithness facility which is expected to come on line in the summer of 2009.(350 MW) and other new sources are coming on line or have been permitted. See Synapse Report, at 15-16 (identifying additional new generation facilities); see also LlPower.com.; Independent System Operator 2008 Load and Capacity Data (Goldbook) (April 2008). NRC Staff's analysis of natural gas is a tacit recognition that the continued operation of the JiP2 and IP3 power reactors are not necessary. Thus, the DSEIS is flawed because it relies on outdated information about how utilities meet their energy needs. As a result of this flaw, the DSEIS is deficient in how it addresses new and significant information and how it addresses the consequences of the no-action alternative.'

19. Moreover, Staff's comparative weighing of natural gas and two operable IP power reactors notes that a gas fired power plant would operate at higher thermal efficiencies, require less water, and need smaller cooling towers than the existing reactors. DSEIS at 8-46. Because of these differences, the DSEIS is flawed when its no action alternatives analysis concludes (DSEIS at 8-78) that a gas fired power plant would have "similar" impacts to the continued operation of IP2 and IP3.

20. Staff is required to consider and incorporate in the DSEIS significant new information with regard to any findings in the GEIS, which applies to the GEIS conclusion that only gas or coal are viable alternatives and that the only option must be stand-alone, single solution alternatives. While the DSEIS does suggest a couple of options in which combinations

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR' of energy sources are used, the options include one Indian Point reactor as part of the mix and/or a single 300 or 400 MW combined-cycle gas-fired plant at the Indian Point site. See DSEIS at 8-65 to 8-66. The two "combination alternatives" proffered by the DSEIS are artificially narrow and arbitrary and fail to take into account additional combinations of alternatives in violation of NEPA. A proper no-action alternative would consider a broader range of combinations.

21. For example, the following combinations, which are derived from the November 2007 Synapse Report, of energy options are realistic and environmentally-preferable to operating IP2 and IP3 and demonstrate that the no-action alternative is the preferable alternative to the two already selected by the DSEIS:

Combination 3:

1 1000-1200 MW from renewable resources like biomass and wind

• 1200-1400 MW from energy efficiency programs being implemented as part of New York State's 15x15 plan

• 100-200 MW from combined heat and power Combination 4:

400-600 MW from repowering an existing fossil-fired power plant in downstate New York as an efficient new gas-fired combined cycle unit 1200-1500 MW from energy efficiency 600-800MW from renewable resources such as biomass and wind

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR See Synapse Reportat 3 to 15. As noted by the State of New York's expert, these two combinations are conservative and readily achievable under already existing and identified New York State programs. See February 2009 Declaration of David Schlissel.

22. The DSEIS's no-action alternatives analysis fails under NEPA because it fails to consider:

The no-action alternative as to the relicensing of only one unit; The. option of repowering existing power plants in the combination of alternatives that can be used if the no-action alternative is chosen and the environmental benefits of repowering existing power plants (see Declaration and Report of David A. Schlissel (Nov. 28, 2007), attached to the New York State Notice of Intention to Participate and Petition to Intervene);

Combined heat and power as one of the combinations of alternatives that can be used if the no-action alternative is chosen and the environmental benefits of this choice (see Synapse Report);

Purchase power as a viable stand alone alternative rather than the DSEIS analysis which is based upon a pessimistic and speculative group of assumptions about inter-state and intra-state transmission options. DSEIS at 8-56-8-57. In reaching this conclusion the DSEIS ignores the considerable contrary evidence contained in the Synapse Report and recent transmission enhancements.

The demonstrated feasibility of providing upgraded transmission capability and interconnection upgrades that, in turn, would facilitate the use of alternatives to IP2 aid IP3. On this point, the DSEIS accepts, without any evaluation, the assumption that various institutional restraints will impede the implementation of improved transmission capability and solely on that basis dismisses improved transmission capabilities. See DSEIS at 8-57. Thus, the DSEIS's dismissal of purchase power alternatives or the use of wind power generated outside of the IP2 and IP3 service area, based on the alleged constraints on transmission capabilities, is not rational because it does not address substantial evidence which contradicts the evidence upon which it relies. See Synapse Report.

• State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-28'6-LR SUPPORTING EVIDENCE In support of this contention, the State of New York relies upon the following:

23. Actions and Orders taken by the New York State Public Service Commission in PSC Case 07-M-0548 and related cases on the Commission's docket, which is accessible at http://www.dps.state.ny.us/Phase2_Case_07-M-0548.htm and evidences the implementation of New York State's 15x 15 plan for energy conservation.

24. Governor David Paterson's January 7, 2009 State of the State Speech in which he announced the 45x15 Program. See January 7, 2009 State of the State Speech, availableat http://www.ny.gov/governor/keydocs/speech,0107091 .html.

25. February 5, 2009 White House Memorandum For The Secretary Of Energy

Subject:

Appliance Efficiency Standards, availableat http://www.whitehouse.gov/the_press, office/ApplianceEfficiencyStandards/.

26. The State of New York also incorporates by refererice the following documents and references to documents that are contained in its Notice of Intention to Participate and Petition to Intervene filed on N6vember 30, 2007 and have already been served on the parties in this proceedinig:

a. From Contention 9, Basis, paragraph 9 and Supporting Evidence paragraphs 10-27;

b. From Contention 10, Basis, paragraph 6 and Supporting Evidence paragraphs 7-33;'and

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and,50-286-LR

c. From Supporting Declarations Volume I, the November 2007 Declarations of David Schlissel and Peter Bradford with their attachments and the Synapse Report.

27. The February 2009 Declaration of David Schlissel, which accompanies this submission.

28. Long Island Power Authority documents and programs discussed at LIPower.org:

a. LIPA Wind Energy Program, available at http://www.lipower.org/efficiency/wind-home-faqs.html

b. LIPA Solar Energy Program, availableat http://www.lipower.org/efficiency/solar-home-faq.html

29. NYISO documents and statements:

a. NYISO's February 26, 2009 statement concerning wind generation capacity in New York State, availableat http://wIww.nyiso.com/public/webdocs/

newsroom/press releases/2009/ NYISOMarksWindPowerMilestone_02262009.pdf

b. NYISO Interconnection Queue, available at http://www.nyiso.com/

public/ services/planning/interconnectionstudiesprocess.jsp (last visited Feb. 27, 2009).

30. U.S. Department of Energy Entergy Star Program statements regarding compact fluorescent light bulbs, availableat http://www.energystar.gov/index.cfin?c=cfls.prcfls

("ENERGY STAR qualified bulbs [i.e., CFLs] use about 75 percent less energy than standard incandescent bulbs and last up to 10 times longer").

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

31. Gerald Warburg, memorandum, A Study ofNRC Proceduresfor Assessing Need for Power and Alternative Energy Sources in Fulfillment of the NEPA Requirementsfor Environmental Impact Statements (1979).

32. EPRI, Assessment ofAchievable Potentialfrom Energy Efficiency and Demand Response Programsin the US. (2010 - 2030)'(published January 14, 2009).

33. Time, America's UntappedEnergy Resource: Boosting Efficiency, Michael Grunwald (Dec. 31, 2008), availableat http://www.time.com/time/magazine/article/

./

0,9171,1869224,00.html.

CONTENTION 34 THE DSEIS DID NOT TAKE INTO ACCOUNT SIGNIFICANT.NEW INFORMATION REGARDING THE POTENTIAL IMPACTS TO OFF-SITE LAND USE FROM LONG-TERM OR INDEFINITE STORAGE OF HIGH LEVEL NUCLEAR WASTE ON THE INDIAN POINT SITE IN VIOLATION OF NEPA AND 10 C.F.R. §§ 51.53(c)(3)(iv),

51.71(a) AND (d), AND 51.95, 10 C.F.R. PART 51, SUBPART A, APPENDIX B; AND 40 C.F.R. § 1502.9 The DSEIS did not take into account new and significant information regarding the potential environmental impacts to off-site land use from long-term or indefinite storage of high level nuclear waste on the Indian Point site in violation of NEPA and related regulations.

Because neither the DSEIS, the GEIS, nor the NRC in any other context has examined these impacts, such analysis is required here.

BASIS

"- State of New York Supplemental Contentions Concerning NRC Staffs

-Draft Supplemental Environmental Impact Statement NRC Docket Nos., 50-247-LR and 50-286-LR 1 10 C.F.R. § 51.23(a) states that the NRC has confidence that a mined geologic disposal site for spent fuel would be available by 2025 and that no adverse environmental impacts would be associated with the continued storage of spent fuel at power reactor sites for 30 years after cessation of operation. See 10 C.F.R. § 51.23(a); 55 Fed. Reg. 38472 (Sept. 18, 1990). Based on this confidence, 10 C.F.R. § 51.23(b) does not require the environmental impacts of spent ýfuel storage to be examined in connection with any the issuance of an operating license for a power reactor. See "10C.F.R. § 51.23(b). This finding is reflected in the 1996.

Generic'Environmental Impact Statement. (NUREG-1437) and 10 C.F.R. Part 51, Appendix B, Table B-1.

2. On October 9, 2008, the Commission "remove[d] its expectation that a repository will be available by 2025" while reaffirming that it remained confident that there would probably be *ufficient storage space for spent nuclear fuel generated as a result of operation of nuclear reactors under their initial licenses in place by 2025. However, it was no longer confident that there would be sufficient high level waste repositories available within 30 years after cessation of operation of nuclear plants for the wastes generated during license renewal.

See 73 Fed. Reg. 59551, 59557, 59561. (Oct. 9, 2009)(Waste Confidence Decision Update). At the same time, the Commission also stated that it "retains confidence that spent fuel can be safely stored with no significant environmental impact until a repository can reasonably be expected to be available and that the Commission has a target date for the availability of the repository in that circumstance." See 73 Fed. Reg. 59558. This statement of confidence regarding environmental 2

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR impacts was related solely to environmental impact caused by radiation and did not consider the impact on off-site land values. Id. The Commission proposed revising Waste Confidence Finding Number 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. 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 (whichmay include the term of a revised or renewed license) of that reactor at its spent fuel storage basin or at either onsite 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).

3. In short, the.NRC's public pronouncements contained in the October 9,.2008 Federal Register mean 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.

4. The October 9; 2008 statements constitute new and significant information as that term is defined under NEPA and regulations promulgated by CEQ and the NRC. 10 C.F.R.

§ 51.713(a) explains that the scope of the Staff's environmental review encompasses the requirements to which th&eApplicant is held in its Environmental Report, which under 10 C.F.R.

State of New York Supplemental Contentions Conceming NRC'Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

§ 51.53(c)(3)(iv) requires the Applicant (and by reference, Staff) to examine significant new information. 10 C.F.R. § 51.71 requires a draft environmental impact statement to include "consideration of major points of view concerning the environmental impacts of the proposed action and the alternatives, and contain an analysis of significant problems and objections raised by other Federal, State, and local agencies, by any affected Indian tribes, and by other interested persons." 10 C.F.R. 51.71(b); see also 10 C.F.R. § 51.95.'

5. NRC's October 9 statements also reflect other new and significant information concerning the Commission's acknowledgment that demonstrate any high level waste disposal facility that may be 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 license terms. 73 Fed. Reg. 59556-57. Thus, spent fuel storage on site for a indefinite period will be the direct result of allowing Indian Point Units 2 and 3 to continue operate beyond 2013 and 2015,,

respectively.

6. To date no party to this proceeding, including NRC Staff, has brought to the Board's attention that on October 9, 2008, and in related public statements, the Commission has abandoned 10 C.F.R. § 51.23. In fact, in Section 6.1 of the DSEIS, NRC Staff states that it "has 9 The States notes that "[a]lthough 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." NaturalResources Defense Council v. Callaway, 524 F.2d 79, 92 (2d Cir. 1975).

State of New York Suoppleiieiitil Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR not identified any new and significant information during its independent review of the IP2 and IP3 ER, the site audit, the scoping process, or evaluation of other available information" that must be brought to the Board's attention. DSEIS at 6. 1. That statement reflects a total disregard of the significant new information reflected by the Commission's October 9, 2008 finding.

7. The failure to examine such new and significant information violates NEPA and regulations promulgated by 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).1 °

8. Just as this Board has recognized that the regulations require analysis of off-site land use (see Memorandum and Order (July 31, 2008)(admitting Contentionf 17), the regulations also require expanded analysis taking into account the longer period ,of time for which waste will now remain on-site under changing NRC policy.

9, In presenting this contention, the State of New York recognizes that this Board, as well as other Atomic Safety and. Licensing Boards have rejected contentions based on the storage of spent fuel at power reactor sites. See In the Matter of Entergy Nuclear Operations, Inc., Docket Nos. 50-247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BDO1 (Indian Point 10Aside from changing NRC policy, funding for the only current repository undergoing license review has been significantly reduced, making it appear very unlikely that Yucca Mountain will become the nation's first repository within the current regulatory timeframe. See H. Josef Hebert, Obama Cuts Yucca Budget to Bare Bones, ASSOCIATED PRESS, availableat http://www.nevadaappeal.com/article/20090226/NEWS/902259879/1058/RSS (last accessed Feb. 27, 2009); see also.US spending bill would cut $100 mil from Yucca Mountain project, Platts, availableat http://www.platts.com/Nuclear/News/8375101 .xml?src=Nuclear rssheadlinesI (Feb. 24, 2009)(last visited Feb. 27, 2009).

State of New York Suppi1iiieiitai Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR Units 2 and 3), Memorandum and Order (Dec. 18, 2008); In the Matter ofEntergy Nuclear Vermont Yankee, LLC, andEntergy Nuclear,Operations,Inc., Docket No. 50-271-LR; ASLBP No. 06-849-03-LR; LBP-06-20 (Vermont Yankee Nuclear Power Station), Memorandum and Order (Sept. 22, 2006); Entergy Nuclear Generation Company andEntergy Nuclear Operations, Inc., Docket No. 50-293-LR; ASLBP No. 06-848-02-LR; LBP-06-23 (Pilgrim Nuclear Power Station), Memorandum and Order (Oct. 16, 2006). However, in reaching their decisions, these Boards did not have occasion to consider the NRC's October 9, 2008 statements that there is no longer a date certain by which waste will be transported off-site, and that waste from each facility may remain on-site for the long term, and possibly indefinitely. Since the NRC has now removed the basis that existed for the findings contained in § 51.23 and the GEIS but has yet to legally replace them with any new findings, the Staff is obligated to address any unresolved environmental impacts that may be caused by the'.indefinite storage of spent fuel at Indian Point.

10. The GEIS lists off-site socioeconomic impacts on land use as a "Category 2" issue which requires exploration in the license renewal process. See GEIS at § 4.7.4.2. As'the State's previously admitted Contention 17 and its supporting data demonstrate, there are substantial socioeconomic environmental impacts which will occur if IP2 and 3 are not shut down and decommissioned by 2025. As the attached supplemental statement of Dr. Stephen Sheppard demonstrates, those impacts are substantially more severe if the period of storage of spent fuel at the site lasts indefinitely after Indian Point is shut down, a situation that will exist (under the Commission's current view of the fate of spent fuel) only if IP is allowed to produce more spent

State of NewYork Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR fuel than it is currently licensed to produce - i.e., only if Indian Point Units 2 and 3 are allowed to operate beyond their current license terms. The underlying reason for these substantial additional adverse impacts on off-site land value would be the decision to extend the licenses of Indian Point Units 2 and 3. The additional spent fuel generated and that will have to be stored on the site is merely the unavoidable consequence of that decision. Thus, this contention does not depend upon an environmental impact that is primarily caused by spent fuel, but rather depends upon the environmental impact that will be created by a decision to allow Indian Point Units 2 and 3 to generate nuclear wastes for which there will be no off-site disposal capacity, a situation that may well last into the indefinite future.

11. Despite the GEIS's clear statement that off-site land use impacts cannot be assessed generically and are Category 2 issues, no analysis has been done - anywhere - of the potential impact on off-site land use of long-term on-site storage of spent fuel, or of the beneficial impact on off-site land, values if the no-action alternative is selected.

12. The value of the offsite land adjacent to the Indian Point plant site is directly impacted by activities which are occurring on the plant site. As noted in previously admitted Contention 17 and reaffirmed in proposed Contention 17-A, denial of the proposed license renewal will allow offsite land in the vicinity of IP to be fully developed and used by 2025. If license'renewal is allowed, the time during which the land would be used as a nuclear power plant would be extended by 20 years, until 2035. ,If, as previously found by the NRC, spent fuel would be stored on the property for at most an additional 30 years, the owner of off-site land

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR would know that by 2065 the land could be cleared of the nuclear plant (decommissioning could be accomplished in as little as six years after plant shutdown) and all nuclear waste.

13. Once these reactors cease operation, much of the economic value to the community from the plant will be lost because as a non-functioning former nuclear plant, the facility will pay much less property taxes and will have a reduced work force, at least once decommissioning work is completed.

14. In order to fully assess the magnitude of the additional adverse impact on adjacent property values of much longer term or indefinite storage of spent fuel at the plant site following plant shutdown, a detailed economic analysis would have to be conducted. However, even without that study, it can be seen that the detrimental impact on offsite land values will be substantial as the owners, and potential purchasers, of that land have no basis to conclude that any time certain or in the reasonable future, the offsite land will be able to be developed to its best and highest use but instead, such development and use will be restricted by the knowledge that the IP site continues to function as a high level nuclear waste dump for many decades and possibly for the indefinite future. The landowners would also lose the use of the-money they could generate by developing and/or selling their land with the knowledge, if the no-action alternative were chosen, that it could be fully developed by 2025.

15. This analysis must also include discussion of the no-action alternative in the face of the NRC's changed waste disposal policy reflected in its October 9 rulemakings. Previously, and When 10 C.F.R. § 51.23 was adopted and the GEIS prepared, the NRC's policy was that the S

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR wastes would be transported from the reactor sites within a relatively short period of time to a repository or an ISFSI. Now, the Commission has adopted, or plans to adopt, an alternative approach that essentially disregards when the waste repository will be ready because, in the NRC's terms, it is confident that the spent fuel can stay at the site for a longer, if not indefinite, period of time without any safety or radiological concerns. The NRC must now..address the impact on off-site land use of the indefinite storage of spent fuel at the site of each reactor since it has never been addressed. The need for this analysis has only recently arisen, since the NRC's former policy did not involve long-term storage on the reactor site. As Appendix B to 10 C.F.R. Part 51 acknowledges, a site-specific analysis is required to address all impacts on 6ff-site land use value including the potentially significant impacts ofthis long-term storage of spent fuel at the Indian Point site, as well as the benefits that would flow from the no-action alternative, that is, denial of the renewed license and restoration of the site.

SUPPORTING EVIDENCE

16. Off-site land use impacts cannot be assessed generically and are thus Category 2 issues that fall within the scope of the proceeding. GEIS, § 4.7.4.2 ("Because land use changes may be perceived by some community members as adverse and by others as beneficial, the staff is unable to assess generically the potential significance of site-specific off-site land use impacts.

This is a Category 2 issue."). No analysis has been done - anywhere - of the potential impact on off-site land use of long-term on-site storage.

State of New York Supplemental Contentions Concerning NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR

17. This contention is supported by the Declaration and Report of Stephen C.

Sheppard entitled PotentialImpacts of Indian PointRelicensing with Delayed.SiteReclamation accompanying this submission and by the previous Report of Stephen C. Sheppard entitled PotentialImpacts of Indian PointRelicensing on Property Values which was included in support of Contention 17 of New York State Petition' to Intervene and attached in Volume 1I of Supporting Declarations and Exhibits.

18. This contention is also supported by documentation regarding the NRC's changed policy regarding waste disposal and the length of time for which reactor sites can expect to house spent fuel reflected in two Federal Register notices posted on October 9, 2008. See 73 Fed. Reg. 59551, 73 Fed. Reg. 59547 (Oct. 9, 2008).

State of New York Supplemental Contentions Concening NRC Staffs Draft Supplemental Environmental Impact Statement NRC Docket Nos. 50-247-LR and 50-286-LR CONCLUSION The issues raised in the State of New York's contentions are material to the findings the NRC must make to take action upon the applicant's request. For all the reasons stated, the State of New York requests that its contentions be admitted.

Respectfully submitted, Dated: February 27, 2009 Andrew M. Cuomo Attorney General

.for the State of New York and the People of the State of New York Janice A. Dean Lisa Feiner Assistant Attorneys General John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 Telephone: (518) 402-2251 Joan Leary Matthews Associate Commissoner for Hearings and Mediation Services John Louis Parker Regional Attorney, Region 3 New York State Department of Environmental Conservation

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-BDD1 Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and DPR-26, DPR-64 Entergy Nuclear Operations, Inc.

DECLARATION OF DAVID A. SCHLISSEL David Schlissel, hereby declares under penalty of perjury that the following is true and correct:

1. I am a senior consultant at Synapse Energy Econiomics, Inc.,(Synapse),

an energy and economic consulting firm located in Cambridge, Massachusetts.

2. Synapse has been retained by the New York State Office of the Attorney General to provide expert services to the State of New York concerning the proposed relicensing of the two operating reactors located at the Indian Point Nuclear Power Station in the Village of Buchanan in Westchester County (Indian Point Unit 2and Indian Poiht' Unit 3). I have previously provided.a copy of my CV to the Board as part of my November 2007 submission.

3. As noted in the State of New York's supplemental contention concerning energy alternatives, the State has taken aggressive actions to Declarationof DavidA. Schlissel

implement its "15x15" plan to reduce electricity usage by 15 percent by 2015. For example, the New York State Public Service Commission issued an "Order.

Establishing Energy Efficiency Portfolio Standard and Appraising Programs" on June 23, 2008 and an "Order Approving "Fast Track" Utility-Administered Electric Energy Efficiency Programs with Modifications" on January 16, 2009.

4. In addition, as noted in the State's supplemental contention, the federal government recently has taken significant steps to foster greater energy efficiency, energy, conservation, and renewable energy.

5. This Board' may take judicial notice of the fact that the United States, including New York State, is experiencing a recession. This recession can be expected to lead to lower electricity sales and peak loads for at least this year and, perhaps, even longer. Therefore, the~time frame within which the alternatives (e.g.,

conservation, efficiency, renewables, transmission / interconnection enhancements, re-powering) would need to be implemented under the "no-action" alternative would be extended. These reduced energy sales and peak loads will delay and defer the need for the energy and capacity ýom-I-ndia-n-Point Units 2 and 3 if the operating licenses were not renewed.

6. Con Edison's sales of electricity were essentially flat between 2007 and 2008, growing at only 0.1 percent for the entire year. Con Edison's sales of electricity during the Fourth Quarter of 2008 were 2.6 percent below its sales during the same three month period in 2007.

Declarationof David A. Schlissel K

7. The sales of the Long Island Power Authority during 2009 are expected to be the same as its projected 2008 sales and as its actual 2007 sales.

8. I have reviewed the December 22, 2008 Draft Supplemental Environmental Impact Statement prepared by the NRC in this proceeding. The DSEIS ignores much of the information and analysis contained in my November 2007 Report. In addition, the alternatives analysis contained in Chapter 8 of the DSEIS significantly underestimates the impact of energy efficiency, energy conservation, renewable energy, facility re-powering, and transmission /

interconnection enhancements in New York State and in Zones H, I, J, and K. In addition, the DSEIS's analysis of the combination of alternatives, see DSEIS at 8-65 to 8-66, fails to take into account other combinations of energy alternatives that are conservative and readily achievable under existing and identified New York State programs. I have identified two additional sets of combinations of energy alternatives andthese additional combinations are set forth in the State's supplemental contention (at ¶ 21).

9. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Dated:

February 27, 2009 Cambridge, Massachusetts David Schlissel DeclarationofDavidA. Schlissel

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

---

7-------- X In re:

Docket Nos. 50-247-LR and 50-86-LR License Renewal Application Submitted by ASLBP NO. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and .DPR-26; DPR-64' Entergy Nuclear Operations, Inc.

SUPPLEMENTAL DECLARATION OF STEPHEN C. SHEPPARD Stephen C. Sheppard, hereby declares under penalty of perjury that the followingis true and correct:

1. I have been retained by the New York State Office.of the Attorney General to provide expert services in connection with the application by Entergy Nuclear Operations, Inc. and its affiliates (collectively Entergy) for a renewal of the two separate operating licenses for the nuclear power generating facilities located at Indian Point.

2. I am a Professor of Economics at Williams College where I teach in the Economics Department. In addition to teaching, I also conduct research on issues that include environmental and natural resources economics, public finance, and February2009 SupplementalDeclaration of Stephen Sheppard

-. 1 -

land use economics. In 2006 I was a Fellow at the Weimer School of Advanced Studies in Real Estate and Land Economics. Before that, I was the Herman H.

.Lehman Fellow at the Oakley Center for the Humanities and Social Sciences at.

Williams. And in 2004 1 shared with a collehgue the Royal Economic Society Prize.

My CV, which was attached to my original declaration submitted in this proceeding, includes a list of my published papers and other work.

3. I received a B.S. from the University of Utah in 1977, and received from Washington University (St. Louis) an A.M. in 1979 and a Ph.D. in 1984.

4. Attached to this Declaration is a Supplemental Report I prepared. This document was prepared by me and is true and correct to the best of my personal knowledge.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct.

Dated: February 26, 2009 Williamstown, Massachusetts February2009 SupplementalDeclarationof Stephen Sheppard

Potential Impacts of Indian Point Relicensing with Delayed Site Reclamation

-Summary of finding If the "no action" option of ceasing operations at IP2 in 2013 and IP3 in,2015 permits more rapid site reclamation and restoration, while the option of relicensing operations to run through 2035 is associated with a delayed process of site restoration, there are significant additional burdens imposed on off-site property values if license renewal is approved. If the diminution in current property values is approximately

$500 million, then the burden caused by the additional delay in restoration due to the period of extended plant operation plus the longer period required for site reclamation is reasonably estimated as between $300 and $340 million.

Introduction In my initial report submitted on November-29, 2007, I reviewed a variety of studies that had appeared in peer-reviewed journals concerning the potential impacts on off-site land use and property values resulting from continued operation of Indian Point 2 andIndian Point 3 nuclear power plants in the Village of Buchanan in Westchester County. Making use of census data and estimated impacts of large power plants on off-site property values I demonstrated thatthe effects resultingfrom relicensing could be over $500 million, with a more exact measurement requiring detailed data from the local property markets. In that analysis I assumed that if license renewal were approved, the additional wastes generated by license renewal would be gone from the site and the site would be fully restored no later than 30 years after the renewed license expired i.e. by 2065. However, as discussed below, I have now been advised that it is possible the wastes generated by license renewal may remain on the site for much longer. and perhaps indefinitely.: This substantial additional delay in restoring the site to unrestricted use will have a substantial additional impact on off-site land values.

Diminution of off-site property value can be expected to be associated with important and visible changes -in land use, including delayed development of land, lower density of development on land that is developed, and deferred maintenance on affected parcels.

1

A full analysis of the impacts naturally depends on the dynamic structure of the nuisance. In particular, I have been told to assume that the "no action" option (denying the request to relicense IP2 and IP3) involves operating the power plant at present levels until 2015, and then commencing a process of site reclamation so that by 2025 the site can be developed to its most efficient use, and the nuisance impact on off-site properties resulting from proximity to the power plant would be removed.

In comparison with this "no action" option I am asked to consider the impact resulting from relicensed operation of IP2 and IP3 until 2035. Following this period will commence a period of undetermined length during which of the nuclear waste products produced at the plant during 'extended license operation will continue to be stored at the site. The site would no longer be a significant source of employment and would possibly be a reduced source of property tax revenue for the community. The implication is that the relicensing option is likely to continue to impose a nuisance burden on off-site property. values with a combined magnitude equal or greater to the magnitude imposed on property values at present. This impact is expected to continue for at least a period of 60 years (until 2095) and potentially much longer. What impact does the extended delay in full site reclamation associated with IP2 and IP3 have on the off-site costs?

Analysis To answer the question posed at the end of the previous section with precision requires an estimate of the total impact on off-site property values. In order to-illustrate the impact of delayed site reclamation and illustrate the range of possible impacts, I assume a present market impact of $500 million on property values. To the extent that more detailed evaluation of these impacts suggests an amount more orless than this, the results discussed below would increase or decrease.

All options under consideration allow the continued operation of IP2 and IP3 until 2015. Following this, the "no action" option imposes a continued cost of $500 million in reduced wealth on local property owners for a period of 10 years until site reclamation is complete. The relicensing option imposes this cost on local property owners through the period of continued, operation (until 2035) followed by possibly larger costs imposed for an indefinite amount of time. For this example I assume the costs continue at the level of $500 million, but a detailed evaluation may well suggest a substantial increase.

2.

The difference between the two options depends critically on four variables:

1. The total diminution in off-site property values

2. The real rate of increase in local property values

3. The appropriate discount rate chosen to evaluate the dynamic flow of costs

4. The time required for complete site reclamation following the relicensed operation ofIP2 and IP3 As indicated above, for this report I will assume that the diminution in values caused by the current plant operation is $500 million, and that this lost-value could be recovered in 2025 if relicensing were not allowed. I will also make the conservative assumption that there is no real increase in local property values (meaning that property values increase or decrease at exactly the same rate as the general price level).

The impact of the discount rate is shown below in Figure 1. This figure assumes a delay in site reclamation until 2105 (70 years after the plants cease operations). A range of possible discount rates is shown along the horizontal axis, and the additional burden on off-site property values arising from relicensing and delayed reclamation is shown on the vertical axis. As indicate, the impact ranges from about $240' million to $3 10 million, depending on the discount rate chosen.

$ impact 3.0 x 108 2.8x 108 2.6 x 108 2.4xI0 8 , l 0.02 0.03 '0.04 0.05 0.06 0.07 Real Discount Rate Figure 1: Burden on off-site properties at various discount rates While there can be debate about the appropriate discount rate to us~e for analysis, a reasonable starting point would be the real mortgage interest rate, or the mortgage interest rate less the rate of inflation. This would 3

suggest a discount.rate of between 3 and 4 percent (.03 to .04). Figure 1 shows that over this range the burden-on off-site property values from relicensing and delayed reclamation would be between $300 and

$310 million.

What about the duration of the delay in site reclamation and restoration? It is clear that increasing the delay imposes greater burdens on off-site properties, because the penalty of reduced values and. reduced wealth is being imposed for a longer time period. The exact magnitude depends on the discount rate used, but a range of possible impacts is shown in Figure 2 below. Figure 2 shows the burden on off-site property values at various durations of delay, assuming a discount rate of,.0325, or 3.25 percent. As one might expect, the burden is increasing as the delay increases. The impact is particularly severe as we increase the delay from 60 or 70 years of delay (where the burden imposed is $300 to $310 million) to 140 years of delay (where the burden rises to $350 million). Beyond that the additional delay imposes only modest increases in the cost to off-site property owners because the remedy (removal of the nuisance) is so far in the future as to be of little or no market value.

3.6 x 108 $ Impact 3.4 x 108 3.2 X 108 3.0 x 108 80 100 120 140 160 180 200 Years of delay until complete site reclamation Figure 2: Burden on off-site properties at various years of delay It should be noted that the calculations in Figure 2 are sensitive to the assumption of zero increase in real property values.

4

Conclusion If the "no action" option permits complete site reclamation and restoration within ten years after the end of operations, while relicensing delays site reclamation by not only the additional time period of plant operations but also a significant delay during which nuclear vwaste is stored on site, there are important additional burdens imposed on off-site properties. Making reasonable assumptions about this delay, and using the potential property value impacts identified in my earlier report, the option that provides for relicensing of IP2 and IP3 would impose additional burdens of $300 to $340 million on these properties.

This. is not only a burden on the individuals involved but could have significant land use and development impacts.

5

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY LICENSING BOARD

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X In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 27, 2009

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I--------x CERTIFICATE OF SERVICE I certify that on February 27, 2009, I served copies of the State of New York's contentions 12-A, 16-A, 17-A, 33, and 34 relating to the draft supplemental environmental.

impact'statement on the following judges, law clerks, offices, organizations, attorneys, parties, and/or petitioners via,e-mail and first-class U.S. Mail at the e-mail and street addresses that follow:

Lawrence G. McDade, Chair 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 Lawrence.McDade@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Richard E. Wardwell Mailstop 3 F23 Administrative Judge Two White Flint North Atomic Safety and Licensing Board Panel' 11545 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852-2738 Mailstop 3 F23 Two White Flint North Zachary S. Kahn, Esq.

11545 Rockville Pike Law Clerk Rockville, MD 20852-2738 Atomic Safety and Licensing Board Panel Richard.Wardwell@nrc.gov U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Zachary.Kahn@nrc.gov

Office of Commission Appellate Kathryn M. Sutton, Esq.

Adjudication Paul M. Bessette, Esq.

U.S. Nuclear Regulatory Commission Martin J. O'Neill, Esq.

Ma'lstop 16 G4 Mauri T. Lemoncelli, Esq.

One White Flint North - Morgan, Lewis & Bockius LLP 11555 Rockville Pike' 1111 Pennsylvania Avenue, NW Rockville, MD 20852-2738 Washington, DC 20004 ocaamail@nrc.gov ksutton@morganlewis.com pbessette@morganlewis.com Office of the Secretary martin.o'neill@morganlewis.com Attn: Rulemaking and Adjudications Staff mlemoncelli@morganlewis.com U.S. Nuclear Regulatory Commission cadams@morganlewis.com Mailstop 3 F23 Two White Flint North Elise N. Zoli, Esq.

11545 Rockville Pike Goodwin Procter, LLP Rockville, MD 20852-2738 Exchange Place hearingdocket@nrc.gov 53 State Street Boston, MA 02109 Sherwin E. Turk, Esq. ezoli@goodwinprocter.com David E. Roth, Esq.

Andrea Z. Jones, Esq. William C. Dennis, Esq.

Beth N. Mizuno, Esq. Assistant General Counsel Brian G. Harris, Esq. Entergy Nuclear Operations, Inc.

Office of the General Counsel 440 Hamilton Avenue U.S. Nuclear Regulatory Commission White Plains, NY 10601 Mailstop 15 D21 wdennis@entergy.com One White Flint North 11555 Rockville Pike. Robert D. Snook, Esq.

Rockville, MD 20852-2738 Assistant Attorney General set@nrc.gov Office of the Attorney General der@nrc.gov State of Connecticut jessica.bielecki@nrc.gov 55 Elm Street bnm I@nrc.gov P.O. Box 120 marcia.simon@nrc.gov Hartford, CT 06141-0120 brian.harris@nrc.gov robert.snook@po.state.ct.us Justin D. Pruyne, Esq.

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

• 148 Martine Avenue, 6th Floor White Plains, NY 10601 jdp3@westchestergov.com

Daniel E. O'Neill, Mayor Stephen Filler, Esq.

James Seirmarco, M.S. Board Member Village of Buchanan Hudson River Sloop Clearwater, Inc.

Municipal Building Suite 222 236 Tate Avenue 303 South Broadway Buchanan, NY 10511-1298 Tarrytown, NY 10591 vob@bestweb.net sfiller@nylawline.com Daniel Riesel, Esq. Diane Curran, Esq.

Thomas F. Wood, Esq. Harmon, Curran, Spielberg & Eisenberg, Jessica Steinberg, J.D. LLP Sive, Paget & Riesel, P.C. Suite 600 460 Park Avenue 1726 M Street, NW New York, NY 10022 Washington, DC 20036 driesel@sprlaw.com dcurran@harmoncurran.com j steinberg@sprlaw.com Phillip Musegaas, Esq.

Michael J. Delaney, Esq. Victor Tafur, Esq.

Vice President - Energy Department Deborah Brancato, Esq.

New York City Economic Development Riverkeeper, Inc.

Corporation (NYCEDC) 828 South Broadway 110 William Street Tarrytown, NY 10591 New York, NY 10038 phillip@riverkeeper.org mdelaney@nycedc.com vtafur@riverkeeper.org dbrancato@riverkeeper.org Manna Jo Greene, Director Hudson River Sloop Clearwater, Inc.

112 Little Market St.

Poughkeepsie, NY 12601 Mannajo@clearwater.org Executed on:

February 27, 2009 Albany, New York John J. Sipos Office of the Attorney General State of New York State Capitol Albany, New York 12224-0341 John.Sipos@oag.state.ny.us