ML082560706

Riverkeeper, Inc.'S New and Amended Contentions Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel

ML082560706
Person / Time
Site:	Indian Point
Issue date:	09/05/2008
From:	Curran D, Musegaas P Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Riverkeeper
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, RAS E-156
Download: ML082560706 (69)

Text

September 5, 2008 DOCKETED UNITED STATES OF AMI,RICA USNRC NUCLEAR REGULATORY COIMMISSION ATOMIC SAFETY AND LICENS ING BOARD September 8, 2008 (9:00am)

OFFICE OF SECRETARY RULEMAKINGS AND

) ADJUDICATIONS STAFF In the Matter of )

)

Entergy Nuclear Operations, Inc. ) Docket Nos.

(Indian Point Nuclear Generating ) 50-247-LR Station Units 2 and 3) ) and 50-286-LR RIVERKEEPER, INC.'S NEW AND AMENDED CONTENTIONS REGARDING ENVIRONMENTAL IMPACTS OF HIGH-DENSITY POOL STORAGE OF SPENT FUEL I. INTRODUCTION On August 6, 2008, as reported in the Federal Register on August 8, 2008, the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") issued a decision denying rulemaking petitions submitted by the Commonwealth of Massachusetts and the State of California. The Attorney General of Commonwealth of Massachusetts, The Attorney General of California;Denialof Petitionsfor Rulemaking, 73 Fed. Reg. 46,204

("Rulemaking Petition Decision"). The Rulemaking Petition Decision offers the NRC's first discussion of the environmental impacts of high-density pool storage of spent fuel since the NRC issued its Generic Environmental Impact Statement ("GEIS") for nuclear power plant license renewal in 1996, NUREG- 1437, Generic EnvironmentalImpact Statementfor License Renewal of Nuclear Plants ("NUREG-143 7" or "License Renewal GEIS").

The Rulemaking Petition Decision reaffirmed the NRC's conclusion in NUREG-1437 that onsite storage of spent nuclear reactor fuel - including high-density pool

storage of spent fuel -- has no significant adverse environmental impacts on the human environment. 73 Fed. Reg. at 46,212. The Commission also reported a new conclusion that the environmental impacts of intentional attacks on spent fuel storage pools are insignificant. 73 Fed. Reg. at 46,211. The Commission based these conclusions on technical documents issued since the initial publication ofNUREG-1437, and on plant-specific mitigation measures - also implemented since the initial publication of NUREG-1437 - that assertedly have been taken at every nuclear power plant in the United States including Indian Point. 73 Fed. Reg. at 46,207-12.

The Rulemaking Petition Decision has a significant bearing on the admissibility of Riverkeeper's Contention EC-2, Sections 1(b) and 1(c), which, inter alia, challenge the adequacy of Entergy' s discussion of Severe Accident Mitigation Alternatives

("SAMAs") to mitigate the environmental impacts of spent fuel pool accidents and spent fuel pool attacks at Indian Point.' By relying for its finding of no significant impact on the implementation of site-specific mitigative measures that are not discussed in NUREG-1437, the Commission has effectively removed spent fuel storage impacts from Category 1 of the NRC's regulatory scheme for implementation of NEPA. See 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-I note 2, and discussion in Section III below.

The NRC Staff must now address spent fuel storage impacts, on a site-specific basis, in a Supplemental GEIS for the Indian Point nuclear power plant. And because Entergy Nuclear Operations, Inc. ("Entergy") is responsible for the Environmental Report ("ER")

on which the Supplemental GEIS will be based, Entergy must revise its ER, including its Riverkeeper, Inc.'s Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant at 54-64 (November 30, 2008) ("Hearing Request").

2

SAMA analysis. In addition, the Atomic Safety and Licensing Board ("ASLB") may not refuse to admit contentions challenging the adequacy of Entergy's or the Staff's discussion of spent fuel storage impacts for the sole reason that they constitute Category 1 impacts, outside the scope of the license renewal process under 2.309(f)(1)(iii).

In another respect, the Rulemaking Petition Decision has a significant potential effect on this proceeding. It appears that, by basing the Rulemaking Petition Decision on technical documents and mitigation measures that were not considered in NUREG-1437, and by adding a new factual conclusion regarding the environmental impacts of intentional attacks on spent fuel storage pools, the Commission has effectively supplemented and supplanted the 1996 License Renewal GEIS with a NEPA document that is the equivalent of an Environmental Assessment ("EA") and Finding of No Significant Impact ("FONSI"). While the Rulemaking Petition Decision is unclear on the subject, Riverkeeper believes it is possible that the Commission will consider the technical analyses and legal conclusions of the Rulemaking Petition to be binding on the parties to this proceeding.

If, in fact, it is the Commisison's intent that the Rulemaking Petition Decision should be binding in this proceeding, then to the extent that the data or conclusions in the Rulemaking Petition Decision differ significantly from the data or conclusions presented in NUREG-1437 or the ER, 10 C.F.R. § 2.309(f)(2) gives Riverkeeper both the right and the obligation to address them in new or amended contentions in order to preserve its challenge to the adequacy of the NRC's environmental decision. See discussion in Section VI below.

Therefore, pursuant to 10 C.F.R. § 2.309(f), Riverkeeper hereby amends 3

Contention EC-2 by re-submitting Sections 1(b) and 1(c) of the contention. Riverkeeper also submits new contentions which challenge the adequacy of the Rulemaking Petition Decision to address the environmental impacts of spent fuel storage at Indian Point, including the adequacy of its discussion of mitigative measures.

Riverkeeper recognizes that the issues raised by this request for admission of contentions may be more appropriately addressed by the Commission. Consistent with the requirement in this proceeding that "[a]ll correspondence, documents, and other.

materials shall be filed with the administrative judges in accordance with 10 C.F.R. 2.302, however, Riverkeeper has raised them in the first instance with the ASLB. See Establishmentof Atomic Safety and Licensing Board, 72 Fed. Reg. 60,394 (October 24, 2007). If the ASLB denies this request, Riverkeeper requests the ASLB to refer the request to the Commission pursuant to 10 C.F.R. § 2.319(1).

II. FACTUAL AND PROCEDURAL BACKGROUND A. Riverkeeper's Hearing Request On November 30, 2007, Riverkeeper submitted a hearing request in this proceeding, including a set of contentions challenging Entergy's license renewal application and ER. Riverkeeper's Hearing Request included Contention EC-2, which challenged the adequacy of Entergy's analysis of Severe Accident Mitigation Alternatives ("SAMAs") to comply with NEPA. Hearing Request at 54-74. Section 1(b) of Contention EC-2 challenged the failure of Entergy's SAMA analysis to consider the contribution to severe accident costs by a fire in the Unit 2 or Unit 3 fuel storage pool.

Section 1(c) challenged the failure of Entergy's SAMA analysis to consider the contribution to severe accident costs by intentional attacks on the Indian Point Unit 2 or 4

Unit 3 reactor or spent fuel pool.

In Section 1(b) of Contention EC-2, Riverkeeper acknowledged that the NRC classifies the environmental impacts of pool accidents and related SAMAS as Category 1 issues that are not subject to consideration in individual license renewal proceedings absent a waiver or a change in the regulations. Hearing Request at 62. Riverkeeper noted, however, that the Commission currently was considering rulemaking petitions by the Commonwealth of Massachusetts and the State of California, seeking revocation of the Part 51 regulations that preclude consideration, in individual license renewal proceedings, of the environmental impacts of spent fuel pool fires. Id, citing MassachusettsAttorney General; Receipt of Petitionfor Rulemaking, 71 Fed. Reg.

64,169 (November 1, 2006); State of California;Receipt of Petitionfor Rulemaking, 72 Fed. Reg. 27,068 (May 14, 2007). The States' rulemaking petitions sought reconsideration and revocation of the Category 1 designation of spent fuel pool fires, based on studies conducted after the issuance of the 1996 License Renewal GEIS, which contradicted previous studies that had asserted that complete drainage of spent fuel pools was the most severe case and that aged fuel would not burn. As stated in Massachusetts' rulemaking petition:

[N]ew information now firmly establishes (a) if the water level in a fuel storage pool drops to the point where the tops of the fuel assemblies are uncovered, the fuel will burn, (b) the fuel will burn regardless of its age, and (c) the fire may be catastrophic.

Massachusetts Attorney General's Petition for Rulemaking to Amend 10 C.F.R. Part 51 at 4 (August 25, 2006) (ADAMS Accession # ML062640409), citing NUREG-1738, Final Technical Study of Spent Fuel PoolAccident Risk at Decommissioning Nuclear Power Plants (January 2001) ("NUREG-1738), NAS Committee on the Safety and 5

Security of Commercial Spent Nuclear Fuel Storage, Safety and Security of Commercial Spent Nuclear Fuel Storage At 53-54 (NAS Press: 2006) ("NAS Report"). Riverkeeper submitted comments on the rulemaking petition. Comments Submitted by Riverkeeper to Massachusetts Attorney General PRM 51-10 (March 19, 2007) (ADAMS Accession #

ML070790659)

In its Hearing Request, Riverkeeper endorsed the States' petitions for rulemaking and pointed out that essentially the same new and significant information that was raised by Massachusetts and California had been reviewed in the expert report supporting Contention EC-2. Id. Riverkeeper also requested the ASLB to admit Section 1(b) of the contention and hold it in abeyance pending the outcome of the rulemaking petitions. Id.

B. LBP-08-13 In LBP-08-13, the ASLB rejected Contention EC-2 with respect to the environmental impacts of spent fuel fires, on the ground that the environmental impacts of spent fuel pool fires constitute "Category 1 environmental issues and, therefore, are addressed generically in the GEIS for license renewals." Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing), slip op. at 180 (July 31, 2008) ("LBP-08-13"), citing NUREG- 1437, Generic EnvironmentalImpact Statementfor License Renewal of Nuclear Plants("NUREG-1437" or "License Renewal GEIS"). The ASLB also found that then-pending rulemaking petitions by the Commonwealth of Massachusetts and the State of California would constitute "a more appropriate venue to seek relief for 'resolving ... generic concerns about spent fuel fires than a site-specific contention in an adjudication."' Id., quoting Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations,Inc. (Vermont Yankee Nuclear Power Station) and Entergy 6

Nuclear Generation Company and Entergy Nuclear Operations,Inc. (Pilgrim Nuclear Power Station), CLI-07-03, 65 NRC 13, 17 (2007).

With respect to Section 1(c) of Contention EC-2, the ASLB held:

With respect to terrorist attacks, the Board has previously discussed its adherence to the Commission precedent established in Oyster Creek. The Commission maintains that terrorism is unrelated to the aging issue that license renewal proceedings are meant to address. In addition, the Commission says, license renewals are not related to any change in the risk of terrorist attack, and the terrorism issue is therefore not material to the decision the Board must make in this proceeding.

LBP-08-13, slip op. at 181, citing AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 128-30 (footnotes omitted).

C. Rulemaking Petition Decision In early August of 2008, the Commission issued the Rulemaking Petition Decision. 2 While the decision asserted that Massachusetts and California had not presented "new and significant information" warranting supplementation of the GEIS under NRC regulations and guidance, the Commission made no attempt to defend the continuing technical validity of the studies cited in the GEIS. Instead, the Commission confirmed the following three conclusions of NUREG- 1738: partial drainage of a spent fuel pool is a more serious condition than complete drainage, aged fuel can burn, and spent fuel fires will propagate.

1. At page 46,208 the NRC conceded that partial drainage is a more severe case:

Air cooling is less effective under the special, limited condition where the water level in the [spent fuel pool] drops to a point where water and steam cooling is not sufficient to prevent the fuel from overheating and initiating a zirconium fire, but the water level is high enough to block the full natural circulation of air flow 2 The decision is dated August 1, 2008, but it was not publicly issued until August 6, 2008, when counsel for Riverkeeper received a copy by e-mail from Mark Padovan of the NRC. The decision was published in the Federal Register on August 8, 2008.

7

through the assemblies.

2. At page 46,209, the Commission conceded that older fuel is vulnerable to ignition. While asserting that it "disagrees with Petitioners' assertion that fuel will burn regardless of its age," the Commission acknowledged that older fuel can burn: "Older fuel (fuel which has been discharged from the reactor for a longer time) is more easily cooled and is less likely to ignite because of its lower decay power." This concession that older fuel is capable of ignition contradicts the NRC's statement, in the Waste Confidence Decision (relied on in NUREG-1437) that:

... for a zircalloy cladding fire in a spent fuel storage pool, an earthquake or other event causing a major loss of cooling water would have to occur within two years after operationof a PWR or six months after operation of a BWR. (See NUREG-1353, p. 4-11). Thus, during the decades of post-operational storage, even a major loss of cooling water would not be sufficient to cause a cladding fire. During the time the pool would be most vulnerable to a fire, the most-recently dischargedfuel assemblies would have to be adjacentto other recently dischargedassembliesfor afire to propagateto the olderfuel. Considering that a third of the reactor core is typically unloaded as spent fuel each year, the probability of a fire involving even the equivalent of a reactor core - a small portion of a pool's capacity - is quite remote.

Waste Confidence Rule, 55 Fed. Reg. 38,474, 38,481 (September 18, 1990) (emphasis added).

3. Similarly, the Rulemaking Petition Decision's statement that "it is possible that once a spent fuel assembly ignites, the zirconium fire can propagate to other assemblies" in the spent fuel pool contradicts the statement quoted above that the probability of such propagation is "quite remote."

Next, having conceded the vulnerability of spent fuel pools to severe fire, the Commission listed a series of mitigation measures that have been implemented by 8

licensees, and asserts that these mitigation measures render the environmental impacts of high-density pool storage of spent fuel insignificant. For instance, in response to Petitioners' evidence that partial draindown of a spent fuel pool is a more severe case than total draindown, the Commission asserted that under partial draindown conditions:

The heat transfer from hot fuel assemblies to cooler assemblies will delay the heat-up of assemblies, and allow plant operators time to take additional measures to restore effective cooling to the assemblies. Further, for very low-powered assemblies, the downward flow of air into the assemblies can also serve to cool the assembly even though the full-circulation flow path is blocked. Also, as discussedfurther in this document, all nuclearplant SFPs have been assessed to identify additional,existing cooling capabilityand to provide new supplemental cooling capabilitywhich could be used during such rare events. This supplemental cooling capabilityspecifically addressesthe cooling needs during partialdraindown events, and would reduce the probabilityof a zirconium fire during those extreme events.

73 Fed. Reg. at 46,209-10 (emphasis added).

The Commission also vaguely described mitigation measures that allegedly have been imposed on each nuclear power plant licensee:

In January 2006, the nuclear industry proposed a combination of internal and external strategies to enhance the spent fuel heat removal capability systems at every operating nuclear power plant. The internal strategy implements a diverse

[spent fuel pool] makeup system that can supply the required amount of makeup water and SFP spray to remove decay heat. The external strategy involves using an independently-powered, portable, [spent fuel pool] coolant makeup to mitigate a wide range of possible scenarios that could reduce [spent fuel pool] water levels.

In addition, in cases where [spent fuel pool] water levels can not be maintained, leakage control strategies would be considered along with guidance to maximize spray flows to the [spent fuel pool.] Time lines have been developed that include both dispersed and non-dispersed spent fuel storage. The NRC has approved license amendments and issued safety evaluations to incorporate these strategies into the plant licensingbases of all operatingnuclearpower plants in the United States.

73 Fed. Reg. at 46,209 (emphasis added). While the Rulemaking Petition Decision does not identify any such amendments, the NRC's Agency-wide Document Accession Management System ("ADAMS"), it appears that the NRC may be referring to a license 9

amendment that was issued Entergy on July 11, 2007, relating to "Mitigation Strategies" for Indian Point. Letter from John P. Boska, NRC, to Michael A. Balduzzi, Entergy, attached as Exhibit 1. The letter and the attached safety evaluation give virtually no information about the nature of the mitigation strategies that were imposed.

The Commission also addressed the States' argument that an intentional attack targeting a plant's spent fuel pool is reasonably foreseeable. 73 Fed. Reg. at 46,210. The Commission reiterated its ongoing refusal, as a matter of law, to consider the environmental impacts of intentional attacks in its licensing decisions, despite the U.S.

Court of Appeals for the Ninth Circuit's rejection of its legal rationale in San Luis Obispo Mothersfor Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), cert. denied, 127 S.Ct. 1124 (2007). 73 Fed. Reg. at 46,211, citing AmerGen, 65 NRC at 128-29.

In the alternative, the Commission offered a factual rationale for determining that the environmental impacts of attacks on spent fuel pools are insignificant:

because the probability of a successful terrorist attack (i.e., one that causes an SFP zirconium fire, which results in the release of a large amount of radioactive material into the environment) is very low and therefore, within the category of remote and speculative matters.

73 Fed. Reg. at 46,211. The Commission also made clear that the reason it considered the probability of a successful attack to be low was that licensees have implemented mitigative measures believed to lower the likelihood that fuel will ignite if the pool is attacked:

As previously described, the NRC has required, and nuclear power plant licensees have implemented, various security and mitigation measures that, along with the robust nature of SFPs, make the probability of a successful terrorist attack (i.e.,

one that causes an SFP zirconium fire, which results in the release of a large amount of radioactive material into the environment) very low. As such, a successful terrorist attack is within the category of remove and speculative matters for NEPA considerations; it is not 'reasonably foreseeable.' Thus, on this 10

basis, the NRCfinds that the environmental impacts of renewing a nuclearpower plant license, in regardto a terroristattack on an SFP, are not significant.

73 Fed. Reg. at 46,211 (emphasis added').

III. THE RULEMAKING PETITION DECISION NRC HAS DISQUALIFIED SPENT FUEL STORAGE ENVIRONMENTAL IMPACTS FROM INCLUSION IN CATEGORY 1.

As the ASLB observed in LBP-08-13, "Category 1" NEPA issues are not subject to challenge in individual licensing proceedings, nor need they be addressed in the supplemental GEIS for an individual nuclear power plant. Id., slip op. at 180. The NRC has three criteria for inclusion of an environmental impact in Category 1:

(1) The environmental impacts associated with the issue have been determined to apply either to all plants or, for some issues, to plants having a specific type of cooling system of other specified plant or site characteristic; (2) A Single significance level (i.e., small, moderate or large) has been assigned to the impacts (except for collective off site radiological impacts from the fuel cycle and from high level waste and spent fuel disposal; and (3) Mitigation of adverse impacts associated with the issue has been considered in the analysis, and it has been determined that additional plant-specific mitigation measures are likely not to be sufficiently beneficial to warrant implementation.

10 C.F.R. Part 51, Subpart A, Appendix B, Table B-i, note 2. See also Rulemaking Petition Decision, 73 Fed. Reg. at 46,206.

Up until issuance of the Rulemaking Petition Decision, spent fuel storage met these three criteria. But with the issuance of the Rulemaking Petition Decision, the Commission rendered it impossible for the issue of spent fuel storage to fit into criterion 3 of the Table B-I criteria. As discussed above in Section II.C and in the attached Declaration of Dr. Gordon R. Thompson in Support of Riverkeeper's Contention EC-4 and EC-5 (September 5, 2008) ("Thompson Declaration Regarding Contentions EC-4 11

and EC-5"), the Commission relies heavily on mitigative measures, assertedly imposed at each nuclear power plant including Indian Point, for its conclusion that the environmental impacts of spent fuel storage are insignificant. Contrary to the requirement of criterion (3), not a single one of those mitigation measures was considered in NUREG-1437. In fact the Rulemaking Petition Decision is the first NEPA document in which they have been identified. For instance, there is no previous NEPA document that evaluates the effectiveness of the license amendments that were allegedly imposed at each operating nuclear power plant to reduce the risk of a pool fire. 73 Fed. Reg. at 46,209. There is no previous NEPA document that reports on the assessment of "additional existing cooling capability" and the capacity for "new supplemental cooling capability" that allegedly were assessed for all operating spent fuel pools. 73 Fed. Reg. at 46,209-10. There is no previous NEPA document that reports on the mitigative measures considered by the NRC to acceptably reduce the likelihood of a successful attack on a spent fuel pool. 73 Fed.

Reg. at 46,211.

By the same token, 10 C.F.R. § 51.95(c) and 10 C.F.R. § 51.23(a) and (b) have been rendered inapplicable to this case. Section 51.95(c) provides that at the license renewal stage, the supplemental EIS for an individual plant "need not discuss ... any aspect of the storage of spent fuel for the facility within the scope of the generic determination in § 51.23(a) and in accordance with § 51.23(b)." Section 51.23(a) and (b) provide in turn that:

(a) The Commission has made a generic determination that, if necessary spent fuel generated in any reactor can be stored safely and without significant environmental impacts for at least 30 years beyond the licensed life for operation (which may include the term of a revised or renewed license) of that reactor at its spent fuel storage basin or at either onsite or offsite independent spent fuel storage installations. . ..

12

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

(emphasis added). The mitigative measures on which the Commission now relies to determine that spent fuel storage poses no significant impacts are not "within the scope of the generic determination in paragraph (a)" of Section 51.23, and therefore neither 10 C.F.R. § 51.95(c) or 10 C.F.R. § 51.23(b) applies.

Accordingly, the NRC no longer has any lawful basis to refuse to consider the environmental impacts of high-density pool storage of spent fuel in this proceeding.

IV. CONTENTIONS A. Amended Contention EC-2 Riverkeeper amends Contention EC-2 by re-submitting Sections 1(b) and 1(c) of the contention as set forth below. The only edits to the contention consist of the removal of text related solely to Sections 1(a) and 2(a) through (c). We note that we have retained the aspect of Section 1(c) which discusses attacks on the reactor as well as the spent fuel pools, because attacks on the reactor may lead to fire in the spent fuel pools. See Gordon R. Thompson, Risk-RelatedlImpactsfrom Continued Operationof the Indian Point Nuclear Power Plants, Section 7 (November 28, 2007) (attached to Riverkeeper's Hearing Request).

Contention: Entergy's analysis of severe accident mitigation alternatives

("SAMAs") in its Environmental Report fails to satisfy NEPA, 42 U.S.C. § 4321-4370f, because its analysis of the baseline of severe accidents is incomplete, inaccurate, nonconservative, and lacking in the scientific rigor required by NEPA.

In particular:

13

1. Inadequate analysis of probability and scope of severe accidents.

In the first step of its analysis, i.e., establishing the baseline of severe accidents, Entergy has failed to address a significant contributor to the costs of severe accidents, which Entergy represents by a "present value of cost risk" indicator. To determine that indicator, Entergy monetizes the estimated consequences of radioactive releases, multiplies those monetized consequences by their estimated probabilities, and sums the resulting values over time with discounting to the present. Entergy uses that indicator to compare the economic costs of particular SAMAs with the benefits to be derived from them (i.e., the averted costs of severe accidents). See ER at Section 4.21. In particular:

(b) Entergy has failed to consider the contribution to severe accident costs by a fire in either of the spent-fuel pools at Indian Point Units 2 and 3.

(c) Entergy has failed to consider the contribution to severe accident costs by intentional attacks on the Indian Point Unit 2 or Unit 3 reactors or respective spent fuel pools.

Basis:

A. Expert Support for Contention This contention is supported by the expert declaration[] and expert report[]

of Dr. Gordon Thompson... Dr. Thompson's declaration is attached as Exhibit 1 to Contention EC-2. His expert report, Risk-Related Impactsfrom Continued Operation of the Indian PointNuclear Power Plants(November 28, 2007)

("Thompson Report"), is Attachment 2 to his declaration. As stated in Dr.

Thompson's declaration, he assisted Riverkeeper in the preparation of Section 1 of the contention and Section D. 1 of the contention's basis. The factual assertions in those sections of the contention's basis are true and correct to the best of his knowledge, and the expressions of opinion are based on his best professional judgment.

B. Requirements of NEPA and Implementing Regulations NEPA is the "basic national charter for protection of the environment."

40 C.F.R. § 1500.1. Its fundamental purpose is two-fold:

It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant 14

environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.

Entergy Nuclear GenerationCo. and Entergy Nuclear Operations,Inc. (Pilgrim Nuclear Power Station), LBP-06-23, 64 NRC 257, 277 (2006) ("LBP-06-23"),

quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

The primary method by which NEPA ensures that its mandate is met is the "action-forcing" requirement for preparation of an Environmental Impact Statement ("EIS"), which assesses the environmental impacts of the proposed action and weighs the costs and benefits of alternative actions. Marsh v. Oregon NaturalResources Council, 490 U.S. 360, 370-71 (1989). An EIS must be searching and rigorous, providing a "hard look" at the environmental consequences of the agency's proposed action. Marsh, 490 U.S. at 374.

Information about environmental impacts must be subject to a "careful scientific analysis." Id. at 385. See also 40 C.F.R. § 1502.24 ("Agencies shall insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements"); 10 C.F.R. § 51.71(d) (draft EIS "considers and weighs the environmental effects of the proposed action). An EIS for a nuclear power plant must also examine "alternatives for reducing or avoiding adverse effects." Id.

The NRC has interpreted NEPA to require the preparation of an EIS for decisions.regarding whether to renew operating licenses for nuclear power plants.

10 C.F.R. § 51.95(d). The NRC requires the license renewal applicant to prepare the initial environmental analysis in an Environmental Report ("ER"). 10 C.F.R.

§ 51.53(c).

In 1996, the NRC prepared a generic EIS for license renewal: NUREG-1437, Generic EnvironmentalImpact Statementfor License Renewal of Nuclear Plants ("GEIS"). NRC regulations adopting the GEIS characterize environmental impacts as either "Category 1" or "Category 2." See Table B-1 of Appendix B to 10 C.F.R. Part 50. The NRC applies Category 1 conclusions generically and allows license renewal applicants to rely on those conclusions, generally forbidding challenges to the conclusions in individual license renewal proceedings. FloridaPower & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 12 (2001). Recognizing, however, that NEPA requires it to consider new and significant information or changed circumstances bearing on the environmental impacts of its licensing decision, the NRC makes provision for individual waivers or generic changes to its environmental regulations. Id. The NRC also requires license renewal applicants to address new and significant information or changed circumstances in their ERs.

10 C.F.R. § 51.53(c)(3)(iv).

Category 2 environmental issues that must be addressed in each individual license renewal proceeding include "alternatives to mitigate severe accidents" or 15

SAMAs. 10 C.F.R. Part 51, Appendix B, Table B-1. See also LBP-06-23, 64 NRC at 279. As an initial matter, the license renewal applicant must address SAMAs in its ER. LBP-06-23, 64 NRC at 279, citing 10 C.F.R. § 51.53(c)(3)(ii)(L). A SAMA analysis, i.e., the "determination of whether a SAMA may be worthwhile to implement," is "based upon a cost-benefit analysis

- a weighing of the cost to implement the SAMA with the reduction in risks to public health, occupational health, and offsite and onsite property." Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1, 8 (2002).

C. Entergy's SAMA Analysis Entergy's SAMA analysis is presented in the ER in Appendix E, Sections 4.21 through 4.25 and Attachment E to Appendix E. According to Entergy, the SAMA analysis follows five basic steps: (1) establishing the baseline impacts of a severe accident with respect to off-site and on-site exposure and economic costs; (2) identifying SAMA candidates; (3) conducting a preliminary screening of potential SAMA candidates to determine their suitability for the Indian Point site; (4) conducting a final screening and cost-benefit evaluation (measuring benefits in terms of averted consequences against the estimated costs of installing a particular SAMA); and (5) and performing sensitivity analyses on (a) the sensitivity of assuming a 26-year period for the remaining life for IP2 and a 28-year period for the remaining life of IP3, (b) the sensitivity of each analysis case to the discount rate of three percent, and (c) impacts resulting from economic loss due to tourism and business. ER at 4 4-50.

In carrying out these analytical steps, Entergy estimated the value of averted consequences (expressed as "estimated present dollar value equivalent of internal events core damage frequency) as $1,337,939 for IP2 and $1,340,515 for IP3, before considering external events and uncertainty. ER at 4-62. Entergy analyzed 231 SAMA candidates, eliminating 163 from further consideration in the third step of screening candidates. ER at 4-72. For the remaining 68 candidates, Entergy concluded that 61 did not merit consideration because their costs exceeded their benefits. Id. Entergy identified only seven SAMAs that are "potentially" cost-beneficial. Id. Table 4-4 shows that the estimated economic cost of these SAMAs ranges from $50,000 to $1,656,000.

D. Deficiencies in Entergy's SAMA Analysis Entergy's analysis of SAMAs fails to satisfy NEPA because is incomplete, inaccurate, non-conservative, and lacking in the scientific rigor required by NEPA. As a result, Entergy has failed to demonstrate that it took a "hard look" at environmental impacts and alternatives to avoid or mitigate those impacts, or subjected those impacts to "careful scientific analysis." Marsh, 490 U.S. at 374, 385. In particular, the SAMA analysis suffers from the following deficiencies:

16

1. Inadequate analysis of probability and scope of severe accidents.

In the first step of its analysis, i.e., establishing the baseline of severe accidents, Entergy has failed to address several significant contributors to the costs of severe accidents:

(b) Entergy has not considered the contribution to severe accident costs by a fire in either of the spent-fuel pools at Indian Point Units 2 and 3. See Thompson Report, Section 6. Entergy has also failed to identify any SAMAs that would avoid or mitigate these costs. Id. at 51. If the costs of pool fires were considered, the value of SAMAs would be significant. Id. Even using unrealistically low probability estimates in NUREG-1353, Regulatory Analysis for the Resolution of Generic Issue 82, Beyond Design BasisAccidents in Spent Fuel Pools (1982), the offsite cost risk of a pool fire is substantially higher than the offsite cost risk of an Early High release from a core-damage accident.

Thompson Report at 28. The present value of cost risk for a conventional pool accident at Indian Point (i.e., an accident not caused by intentional attack), using the unrealistically low probability assumptions in NUREG-1353, is $27.7 million, a significant sum. Thompson Report at 49 and Table 7-7. If more realistic assumptions about the likelihood of a pool fire were used, the cost would be considerably higher. See Thompson Report at 51. In addition, the present value of costs risks ("PVCR") for a spent-fuel-pool fire would increase substantially (i.e., from $27.7 million to $38.7 million) if the discount rate were changed from 7% to 3%, a more appropriate rate for an analysis of the benefits of measures to prevent or mitigate radiological accidents that Entergy uses to test the sensitivity of its SAMA analysis. See Thompson Report at 51-52. If the discount rate were dropped to zero, a rate that is justified in light of the catastrophic nature of the consequences involved, the PVCR for a spent-fuel-pool fire would be even higher

-- $51.5 million. Id. at 52.

(c) Entergy has not considered the contribution to severe accident costs made by intentional attacks on the Indian Point Unit 2 or Unit 3 ... reactors or their spent-fuel pools, although such attacks are reasonably foreseeable and indeed are anticipated by the NRC. See Thompson Report, Section 7. The Indian Point reactors and spent fuel pools are vulnerable to a range of attack scenarios for which conventional probabilistic risk assessment ("PRA") techniques can be adapted by postulating an initiating event (malicious act) and then examining the outcomes of that event. Id. at 42-45.

In adapting PRA techniques in this manner, it is reasonable and prudent to assign a probability estimate of one per 10,000 reactor-years for purposes of evaluating SAMAs. Id. at 45. As discussed in Table 7-7 and Section 9 of Dr.

Thompson's report, the present value of cost risks for an attack on an Indian Point 17

reactor and its pool exceeds half a billion dollars, warranting significant expenditures on SAMAs. The present value of cost risks for an attack on a reactor alone are also significant -- $62 million to $73 million. Id. at 49. Entergy has not considered relevant SAMAs with a value of this magnitude.

Entergy's failure to address the environmental impacts of intentional attacks in its SAMA analysis is inconsistent with the National Infrastructure Protection Plan ("NIPP"), which articulates principles for increasing the inherent robustness of infrastructure facilities against attack. Thompson Report at 58-59.

Entergy should address the NIPP principles, especially in the context of storing spent fuel, because enhanced robustness of facilities at Indian Point could significantly reduce the radiological and regulatory risk-related impacts of continued operation of the IP2 and IP3 plants. Id. Neither Entergy nor the NRC has proffered any analysis or plan regarding implementation of the NIPP principles at Indian Point. This failure to address the NIPP is inconsistent with federal regulations requiring integration of environmental studies with other environmental agencies. 40 C.F.R. § 1502.25. While NIPP is not technically an environmental agency, its policies have tremendous significance for protection of the environment from the effects of intentional attacks on nuclear facilities.

Riverkeeper is aware that the NRC Commission has refused to consider the environmental impacts of intentional attacks in its EISs for nuclear facilities, despite a recent decision by the U.S. Court of Appeals for the Ninth Circuit that NRC's position is unreasonable. Amergen Energy Company, L.L.C. (Oyster Creek Nuclear Generating Station), CLI-07-08, 65 NRC 124 (2007), citing San Luis Obispo Mothersfor Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), cert.

denied, 127 S.Ct. 1124 (2007). Riverkeeper therefore requests that the ASLB refer this aspect of Contention EC-2 to the Commission, with a request for reconsideration of the Amergen decision. For the reasons set forth in San Luis Obispo Mothersfor Peace, 449 F.3d at 1028-35, the Commission's refusal to consider the environmental impacts of intentional attacks on nuclear facilities is unreasonable. The Commission should also honor the request by the U.S.

Environmental Protection Agency ("EPA") to address the impacts of intentional attacks in the EIS for license renewal at Indian Point. Letter from Grace Musumeci, U.S. EPA, to Chief, NRC Rules and Directives Branch (October 10, 2007) (ADAMS Accession No. ML072960360).

Riverkeeper also seeks Commission reconsideration of two other rationales provided by the Commission for its refusal to consider the environmental impacts of intentional attacks in its environmental review of license renewal applications. First, the Commission should reconsider its rationale that:

in the case of a license renewal application, where reactor operation will continue for many years regardless of the Commission's ultimate decision, it is sensible not to devote resources to the likely impact of terrorism 18

during the license renewal period, but instead to concentrate on how to prevent a terrorist attack in the near term at the already licensed facilities.

As there appears to be little practical benefit in conducting a license renewal terrorism review, the Commission has no duty under NEPA to do SO.

Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358, 365 (2002) (footnotes omitted).

The Commission's reasoning amounts to a conclusion that the benefits of considering the environmental impacts of attacks during a license renewal term would be marginal because those impacts effectively are addressed in the current license term. As discussed in the Thompson Report in Sections 7 and 9, however, the Commission's reasoning is not supportable, because the level of defense required under the NRC's Atomic Energy Act-based security regulations is lighter than the fundamental design changes that may warrant consideration under NEPA if they are cost-effective.

In addition, even assuming for purposes of argument that the security measures now taken by the NRC are equivalent to SAMAs that would be considered under NEPA, the Commission's reasoning is inconsistent with NEPA, which imposes mandatory obligations on the NRC in considering proposals for re-licensing of nuclear plants. The NRC recognized as much in a 2001 decision denying a petition for rulemaking by the Nuclear Energy Institute ("NEI") that would have eliminated the requirement to consider SAMAs, Nuclear Energy Institute, Denial of Petitionfor Rulemaking, 66 Fed. Reg. 10,834 (February 20, 2001). In response to a comment that "the costs of performing the SAMA reviews required by Part 51 are not justified when compared to the small potential safety benefits that result from the reviews," the Commission stated:

The NRC believes that it should continue to consider SAMAs for individual license renewal applications to continue to meet its responsibilities under NEPA. That statute requiresNRC to analyze the environmental impacts of its actions and consider those impacts in its decisionmaking. In doing so, Section 102(2)(C) of NEPA implicitly requires agencies to consider measures to mitigate those impacts when preparing an impact statement.

See Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).

NRC's obligation to consider mitigationexists whether mitigation is ultimatelyfound to be cost-beneficial and whether or not mitigation ultimately will be implemented by the licensee.

66 Fed. Reg. at 10,836 (emphasis added). The Commission also provided a detailed rebuttal to NEI's argument that license renewal was a mere "continuation" of the current operating term and therefore should not trigger NEPA obligations:

It would appear that the logical extension of many of the petitioner's 19

arguments go far beyond the mere elimination of SAMAs consideration from license renewal reviews. Indeed, to the extent that license renewal involves a continuation of impacts already experienced at the site under the current operating license, the arguments made by the petitioner would appear to call for the elimination of almost the entire environmental review of impacts from operation during the license renewal term, a position clearly at odds with the Commission's approach to the matter and also, as discussed below, inconsistent with the case law related to relicensing.

The Commission does not dispute that a line of cases exists under NEPA law which excuses agencies from preparing EISs (or considering certain environmental impacts) where the Federal action does not change existing environmental conditions. See for example, State of North Carolinav.

FederalAviation Administration,957 F.2d 1125 (4th Cir. 1992); Cronin v.

DepartmentofAgriculture, 919 F.2d 439 (7th Cir. 1990). In most of these cases, the Federal action taken does not itself create any additional impacts to activities that are ongoing and will continue with or without the Federal action. None of these cases appears to provide firm support for the petitioner's argument that the NRC can ignore the impacts of its actions in the context of license renewal. In fact, at least one circuit court squarely addressed the issue of relicensing and concluded that there is the need to consider environmental impacts in that context.

In Confederated Tribes and Bands of the Yakima Indian Nation v. Federal Energy Regulatory Commission, 746 F.2d 466 (9th Cir. 1984), the Ninth Circuit Court of Appeals considered whether the Federal Energy Regulatory Commission (FERC) was required to prepare an EIS for its relicensing decision for the Rock Island Dam. In response to the FERC's argument that there had been 'no change in the status quo' and thus no EIS was necessary, the court found:

Relicensing * *

• is more akin to an irreversible and irretrievable commitment of a public resource than a mere continuation of the status quo. [Citation omitted]. Simply because the same resource had been committed in the past does not make relicensing a phase in a continuous activity. Relicensing involves a new commitment of the resource, which in this case lasts for a forty-year period.

The court's statements here are consistent with NRC's position and its practice in promulgating and implementing the license renewal rule.

66 Fed. Reg. at 10,836-37. Thus, the Commission's position in Duke Energy is inconsistent with both NEPA and the Commission's previous interpretation of NEPA.

20

Finally, in Duke Energy the Commission found that even if NEPA required it to consider the impacts of intentional attacks in license renewal decisions, it had already done so in the 1996 GEIS for license renewal. 56 NRC at 365 n.24. The GEIS contains the conclusion that:

Although the threat of sabotage events cannot be accurately quantified, the commission believes that acts of sabotage are not reasonably expected.

Nonetheless, if such events were to occur, the commission would expect that resultant core damage and radiological releases would be no worse than those expected from internally initiated events.

GEIS at 5-18. This conclusion has been outdated by the significant change in the Commission's analysis of the potential for intentional attacks that has occurred since September 11, 2001. See San Luis Obispo Mothersfor Peace v. NRC, 449 F.3d at 1031 ("We find it difficult to reconcile the Commission's conclusion that, as a matter of law, the possibility of a terrorist attack is 'remote and speculative,'

with its stated efforts to undertake a 'top to bottom' security review against this same threat.")

In addition, in stating that it would expect the core damage from an attack to be the same as for a severe accident, the Commission overlooks the fact that SAMAs designed to avoid or mitigate conventional accidents may be different than SAMAs designed to avoid or mitigate the effects of intentional attacks.

Moreover, the radiological consequences of a spent-fuel-pool fire are significantly different from the consequences of a core-damage accident. Thompson Report at 9 n.9. Not only do these impacts warrant independent consideration, but the SAMAs for a spent-fuel-pool fire would be quite different from the SAMAs for a severe core-damage accident. Id. at 52.

Amended Contention EC-2 meets the admissibility criteria of 10 C.F.R. § 2.309(f)(1), because it provides a specific statement of the issues of fact and law that Riverkeeper wishes to raise with respect to the inadequacy of Entergy's ER to satisfy NEPA with respect to its discussion of SAMAs to mitigate the environmental impacts of accidental and intentionally caused spent fuel pool fires (see § 2.309(f)(1)(i)); because the contention "provide[s] a brief explanation of the basis for the contention," i.e., the reasons why Riverkeeper believes the SAMA analysis fails to satisfy NEPA (see § 2.309(f)(1)(ii)); because the contention demonstrates that the issues sought to be raised 21

are within the scope of this proceeding by virtue of the removal of the issue from Category 1 (see § 2.309(f)(1)(iii)); because the contention demonstrates that the issues Riverkeeper seeks to raise are material to the adequacy of the NRC's NEPA review in this proceeding (see § 2.309(f)(1)(iv)); because it provides a concise statement of the facts on which Riverkeeper relies and identification of the specific sources on which Riverkeeper relies for its position, in both in the contention and the attached expert declaration (see § 2.309(f)(1)(v)); and because it provides sufficient specific references to the ER to demonstrate that Riverkeeper has a genuine and material dispute with Entergy regarding the adequacy of its SAMA analysis. See § 2.309(f)(1)(vi).

B. New Contentions Regarding the Adequacy of the Rulemaking Petition Decision to Comply with NEPA.

In effect, the Rulemaking Petition Decision announces a new NEPA determination by the NRC that the environmental impacts of continued high-density pool storage of spent fuel at all nuclear power plants - including the Indian Point Nuclear Power Plant - are insignificant. Because the NRC bases its finding of no significant impact in large part on the implementation of mitigation measures, the Rulemaking Petition Decision is the equivalent of a "Mitigation FONSI," by which an agency attempts to avoid preparation of an EIS by issuing an EA that claims to have mitigated environmental impacts before the proposed action is announced formally. See, e.g.,

NationalAudubon Society v. Hoffman, 132 F.3d 7, 17 (2nd Cir. 1997).

As discussed above in Section I, it is not clear from the Rulemaking Petition Decision whether the Commission intends the technical findings and legal conclusions of that decision to be binding on the parties to the Indian Point nuclear power plant license renewal proceeding. With the expectation that this may be the case, Riverkeeper submits 22

the following new contentions that challenge the adequacy of the NRC's Rulemaking Petition Decision to comply with NEPA and NRC implementing regulations.

These contentions are supported by the expert Declaration of Dr. Gordon R.

Thompson in Support of Riverkeeper's Contentions EC-4 and EC-5, which is attached as Exhibit 2; and by Dr. Thompson's expert report, Risk-Related Impactsfrom Continued Operationof the Indian PointNuclear Power Plants, which was attached to Riverkeeper's November 30, 2007, Hearing Request.

CONTENTION EC-4: The NRC Must Address the Spent Fuel Storage Impacts at Indian Point in a Supplemental GEIS.

As required by 10 C.F.R. § 51.92(a)(2), the NRC must supplement an EIS where there is "new and significant... information relevant to environmental concerns and bearing on the proposed action or its impact." See also Oregon NaturalResources v.

Marsh, 490 U.S. 360, 374 (1989). As demonstrated above in Section II.C and as discussed in the attached Declaration of Dr. Gordon R. Thompson In Support of Contentions EC-4 and EC-5, new and significant information presented in the Rulemaking Petition Decision demonstrates that in the absence of mitigative measures, the Commission considers the environmental impacts of continued high-density pool storage of spent fuel storage at Indian Point and other operating nuclear power plants to be significant. Under the circumstances, NRC regulations give the NRC no choice but to supplement the License Renewal GEIS to address the environmental impacts of spent fuel storage at the Indian Point nuclear power plant, including the impacts of accidents and intentional attacks. The supplemental GEIS must also weigh the relative costs and benefits of a reasonable range of alternatives for avoiding or mitigating those impacts, 23

including alternatives other than the ones that have been imposed by the NRC such as combined low-density pool storage and dry storage of spent fuel. See Thompson Declaration, pars. 111 111-9.

The NRC's analysis of impacts and alternatives in a supplemental EIS must be circulated for public comment as required by 10 C.F.R. § 51.92(f)(1). And the EIS must disclose information underlying the NRC's environmental decisions, justifying any decisions to withhold documents under specific Freedom of Information Act exemptions.

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant), CLI-08-01, 67 NRC 1, 15-16 (2008).

1. The Rulemaking Petition Decision demonstrates that in the absence of mitigative measures, the Commission considers the environmental impacts of continued high-density pool storage of spent fuel storage at Indian Point and other operating nuclear power plants to be significant.

As discussed above in Section II.C, in the Rulemaking Petition Decision the Commission confirmed the following three conclusions of NUREG-1738: partial drainage of a spent fuel pool is a more serious condition than complete drainage, aged fuel can burn, and spent fuel fires will propagate. See also Thompson Declaration, pars.

IV-1 and IV-5. As also discussed in Section II.C, the Commission was unable to conclude that the environmental impacts of high-density pool storage of spent fuel are insignificant, in the absence of mitigative measures designed to reduce the likelihood that fuel will burn if it is uncovered. See also Thompson Declaration, pars. IV IV-8.

2. NRC had no discretion to prepare an EA instead of an EIS.

Having concluded that the environmental impacts of spent fuel are significant unless they are mitigated, the NRC was not legally entitled to avoid the preparation of a supplement to the GEIS by preparing an EA. First, the NRC's own regulations preclude 24

such a step. Once an EIS has been prepared, NRC regulations require that new and significant information that is "relevant to environmental concerns and bearing on the proposed action or its impact" must be addressed in a supplemental EIS. 10 C.F.R. § 51.92(a)(2). Section 51.92(a)(2) does not contemplate the preparation of an EA as a supplement to an EIS.

Second, once the NRC has decided to prepare an EIS for a particular action - as it did in 1996 for the renewal of nuclear power plant operating licenses - the scope of the EIS must include insignificant impacts, even if they are only briefly noted. While NRC regulation 10 C.F.R. § 51.29 contemplates that the scoping process for an EIS may

"[ildentify and eliminate from detailed study issues which are peripheral or are not significant or which have been covered by previous EISs," it also requires the ES to provide a "brief presentation of why [the issues] are peripheral or will not have a significant effect on the quality of the human environment or a reference to their coverage elsewhere."

Thus, at the very minimum, the Commission was required to publish the brief discussion of spent fuel pool impacts that appears in the Rulemaking Petition Decision in a supplemental GEIS. By including a brief discussion of assertedly insignificant impacts into the EIS, the Commission serves NEPA's purpose of ensuring that the public and interested governmental agencies will be able to comment on the question of whether the Commission exercised good judgment in designating the impacts as insignificant. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-51 (1989).

Finally, even if NRC regulations and case law did not require preparation of an EIS, the Rulemaking Petition Decision does not meet the judicial standard for a 25

Mitigation FONSI as set forth in federal case law. CabinetMountains Wilderness v.

Peterson, 685 F.2d 678, 682-83 (D.C.Cir. 1982); NationalAudubon Society, 132 F.3d at

17. The circuits impose several tests, none of which are satisfied here. Therefore the NRC may not avoid the preparation of a Supplemental EIS regarding the environmental impacts of continued high-density pool storage of spent fuel at Indian Point.

The D.C. Circuit's test for an acceptable "mitigation FONSI" is set forth in CabinetMountains.

(1) whether the agency took a 'hard look' at the problem; (2) whether the agency identified the relevant areas of environmental concern; (3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and (4) if there was impact of true significance, whether the agency convincingly established that changes in the project sufficiently reduced it to a minimum.

685 F.2d at 681-82.

The Second Circuit's test is set forth in NationalAudubon Society. Under that standard, an agency may rely on mitigative measures to avoid preparation of an EIS only where "the adequacy of mitigation measures is supported by substantial evidence." Id. at

17. The substantial evidence test can be met if an agency shows it has conducted a "searching and careful" inquiry and consulted relevant agencies. Friendsof the Ompompanoosuc v. FERC, 968 F.2d 1549, 1554-55 (2nd Cir. 1992). Other factors that are weighed in this determination are whether the agency consulted the affected public, and whether the agency showed that it considered all of the alternatives that were offered to it.

Here, at least two of the critieria for an acceptable mitigation FONSI are not satisfied. First, the record does not show that the NRC took a "hard look" at the problem.

26

The NRC makes no attempt to make a defensible technical record for its decision, providing only a vague summary of the studies it has consulted, failing to identify almost any of them by name, and completely failing to provide access to their disclosable portions. It is therefore not possible to tell exactly what the NRC looked at or how hard.

In addition, while the NRC consulted the nuclear industry regarding appropriate mitigation measures (73 Fed. Reg. at 46,209), it completely failed to consult any other federal agency, despite the fact that the EPA had urged the NRC to address the environmental impacts of attacks on spent fuels. See Hearing Request at 64. The NRC also failed to provide notice of its analysis or the proposed mitigation to state and local governments or to the public, despite the fact that several attorneys general and hundreds of citizens submitted comments requesting preparation of an EIS.

Second, the NRC did not make a convincing case that the environmental impacts of spent fuel storage are insignificant. In fact, the NRC concedes that spent fuel is vulnerable to ignition in several key respects not previously conceded in the License Renewal GEIS or any other environmental study.. See discussion above in par. (1).

Fourth, the NRC has not made a "convincing case" that the alleged mitigation measures are effective. The mitigation measures are described only vaguely, and no documentation is provided to confirm that they have been implemented or that they are effective. NationalAudubon Society, 136 F.3d at 17. Nor does the NRC provide any documentation of their effectiveness. Thompson Declaration, pars. 11-5, IV IV-8.

The NRC also appears to have ignored the one alternative that would clearly reduce the risk of spent fuel pools to a truly negligible level, combining low-density pool storage with dry storage. Thompson Declaration, pars. 111-7 and 111-9.

27

Therefore, the NRC has not justified the use of the Rulemaking Petition Decision to avoid preparation of an EIS.

Contention EC-4: Failure to Identify Documents on Which the Rulemaking Petition Decision Relies.

Even if it were lawful for the NRC to rely on the Rulemaking Petition Decision instead of preparing a supplemental GEIS, the Decision violates NEPA and NRC case law because it does not identify all of the documents on which the NRC relies for its finding of no significant impact, nor does it make any attempt to disclose the portions of those documents that are releasable under the Freedom of Information Act ("FOIA").

For instance:

" The decision refers vaguely to studies by Sandia National Laboratories, but identifies only two sample studies rather than the entire set relied on by the agency. 73 Fed. Reg. at 46,207.

• The decision also refers to license amendments imposed on every nuclear power plant in the United States, as well as safety evaluation reports that support those amendments, but does not identify any documents that memorialize those license amendments or safety reviews. 73 Fed. Reg. at 46,209.

" The decision refers to a National Academy of Sciences study but does not state whether it refers to the public version of the study or the classified version.

As the Commission has held, the NRC must disclose information underlying its environmental decisions, justifying any decisions to withhold documents under specific Freedom of Information Act exemptions. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant), CLI-08-01, 67 NRC 1, 15-16 (2008). The NRC may not rely on 28

the Rulemaking Petition Decision unless and until it identifies, and discloses to the extent 3

required by the FOIA, the technical sources on which it relies.

Contentions EC-4 and EC-5 meet the admissibility criteria of 10 C.F.R. § 2.309(f)(1), because they provide a specific statement of the issues of fact and law that Riverkeeper wishes to raise with respect to the NRC's violations of NEPA (see § 2.309(f)(1)(i)); because they "provide a brief explanation of the basis for the contention,"

i.e., the reasons why Riverkeeper believes the NRC has violated NEPA (see § 2.309(f)(1)(ii)); because they demonstrate that the issues sought to be raised are within the scope of this proceeding by virtue of the removal of the issue from Category 1 (see § 2.309(f)(1)(iii)); by demonstrating that the issues Riverkeeper seeks to raise are material to the adequacy of the NRC's NEPA review in this proceeding (see § 2.309(f)(1)(iv)); by providing a concise statement of the facts on which Riverkeeper relies and identification of the specific sources on which Riverkeeper relies for its position, both in the contention and the attached expert declaration (see § 2.309(f)(1)(v)); and sufficient specific references to the Rulemaking Petition Document to demonstrate that Riverkeeper has a genuine and material dispute with the NRC regarding the adequacy of the NRC's compliance with NEPA in addressing the environmental impacts of spent fuel storage at Indian Point. See § 2.309(f)(1)(vi).

V. RIVERKEEPER'S CONTENTIONS ARE TIMELY AND SUBMITTED AS OF RIGHT.

Riverkeeper's contentions are timely because they are submitted within 30 days of receiving notice of the Rulemaking Petition Decision. See note 2 above.

3 Once public disclosure has been made of all of the relevant reference documents, Riverkeeper reserves the right, if necessary, to request access to legitimately withheld portions of the documents under a protective order.

29

If the NRC intends to rely on the Rulemaking Petition Decision as a binding NEPA decision in this case, Riverkeeper also has the right to submit these contentions without leave of the ASLB under 10 C.F.R. § 2.309(f)(2). Indeed, Section 2.309(f)(2) imposes an obligation on Riverkeeper to address any issues in an NRC environmental document that significantly differ from the previously issued environmental documents in the case. USEC, Inc. (American Centrifuge Plant), CLI-06-09, 63 NRC 433, 444 (2006),

quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 383 (2002) (holding that where an applicant's environmental report is superseded by the subsequent issuance of "licensing-related documents," the contention "must be disposed of or modified,")

Section 2.309(f)(2) provides that:

Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. The petitioner may amend those contentions orfile new contentions if there are data or conclusions in the NRC draft orfinal environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantlyfrom the data or conclusions in the applicant'sdocuments. Otherwise, contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer upon a showing that -

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

10 C.F.R. § 2.309(f)(2) (emphasis added). Riverkeeper meets this standard because, as discussed above in Section IV.B, the Rulemaking Petition effectively constitutes an EA that supplements the License Renewal GEIS by making a finding of no significant impact 30

that is based on mitigation measures implemented at Indian Point. In addition, the information in the Rulemaking Petition Decision, on which the contentions are based, is "materially different" from the information in the Environmental Report and NUREG-1437, the NEPA documents that were previously available to Riverkeeper. Finally, as discussed above, the contention is timely.

In the alternative, if the ASLB decides that the Rulemaking Petition decision does not meet the standard set forth in the first part of 10 C.F.R. § 2.309(f)(2), Riverkeeper requests the ASLB to consider the attached Conditional Motion to File New and Amended Contentions.

V. CONCLUSION For the foregoing reasons, the ASLB should admit Riverkeeper's amended Contention EC-2 and new contentions regarding the Rulemaking Petition Decision.

-Eepectfullsumitted, Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 FAX 202/328-6918 dcurran(gharmoncurran.com iijfi*týsegaas Staff Attorney Riverkeeper, Inc.

828 South Broadway Tarrytown, NY 10591 914-478-4501 (ext. 224)

Fax 914-478-4527 phillipgriverkeeper.org www.riverkeeper.org September 5, 2008 31

EXHIBIT 1 July 11, 2007 Mr. Michael A. Balduzzi Sr. Vice President & COO Regional Operations, NE Entergy Nuclear Operations, Inc.

440 Hamilton Avenue White Plains, NY 10601

SUBJECT:

INDIAN POINT NUCLEAR GENERATING UNIT NOS. 2 AND 3 -

CONFORMING LICENSE AMENDMENTS TO INCORPORATE THE MITIGATION STRATEGIES REQUIRED BY SECTION B.5.b. OF COMMISSION ORDER EA-02-026 (TAC NOS. MD4541 AND MD4542)

Dear Mr. Balduzzi:

This letter documents the results of the U.S. Nuclear Regulatory Commission (NRC) staff's regulatory assessment of the adequacy of the actions taken by the Entergy Nuclear Operations, Inc. for the Indian Point Nuclear Generating Unit Nos. 2 and 3, in response to Section B.5.b. of the February 25, 2002, Interim Compensatory Measures (ICM) Order (EA-02-026) and related NRC guidance.

The ICM Order was issued following the events of September 11, 2001, as part of a comprehensive effort by the NRC, in coordination with other government agencies, to improve the capabilities of commercial nuclear reactor facilities to respond to terrorist threats. Section B.5.b. of the Order required licensees to develop specific guidance and strategies to maintain or restore core cooling, containment, and spent fuel pool cooling capabilities using existing or readily available resources (equipment and personnel) that could be effectively implemented under the circumstances associated with loss of large areas of the plant due to explosions or fire, including those that an aircraft impact might create. Although it was recognized prior to September 11, 2001, that nuclear reactors already had significant capabilities to withstand a broad range of attacks, implementing these mitigation strategies would significantly enhance the plants' capabilities to withstand a broad range of threats. It should be noted that portions of the ICM Order, as well as other documents referenced in this letter, contain security-related or safeguards information, and are not publicly available.

Licensee actions to implement Section B.5.b mitigation strategies have been ongoing since the issuance of the 2002 ICM Order. In 2005, the NRC issued guidance to more fully describe the NRC staff's expectations for implementing Section B.5.b of the ICM Order. The NRC guidance relied upon lessons learned from detailed NRC engineering studies and industry best practices.

Additionally, the NRC conducted two on-site team assessments at each reactor facility that identified additional mitigating strategies for preservation of core cooling, containment integrity, and spent fuel pool cooling. In total, these efforts have added defense in depth through the use of additional equipment and strategies. Moreover, these enhancements that have strengthened the interface between plant safety and security operations now include fire-fighting response strategies; plant operations to mitigate fuel damage; and actions to minimize releases.

M. A. Balduzzi The enclosed Safety Evaluation (SE) details the interactions between the NRC staff and the Entergy Nuclear Operations, Inc., as well as the rest of the nuclear industry, related to the final resolution of Section B.5.b. of the ICM Order.

The NRC is incorporating requirements for the B.5.b mitigating strategies into the Facility Operating Licenses. This letter, therefore, also transmits the license condition that captures the ICM Order Section B.5.b mitigation strategy requirements and incorporates them into the licensing basis.

This proposed license condition was transmitted by the NRC to the Entergy Nuclear Operations, Inc. in a letter dated October 13, 2006. By letter dated January 11, 2007, the Entergy Nuclear Operations, Inc. informed the NRC staff that it would accept the proposed license condition, with a minor change that the NRC staff finds acceptable. The slight difference in the license conditions between the two units is because the mitigating strategies for the Unit 2 spent fuel pool were screened out during the NRC staff's assessment. The effectiveness of the licensee's actions to implement the mitigative strategies contained in these license conditions will be subject to future NRC review and inspection.

Consistent with the Order, administrative license changes to Facility Operating License Nos. DPR-26 and DPR-64 for the Indian Point Nuclear Generating Unit Nos. 2 and 3, respectively, are being made to incorporate the agreed upon license condition. These changes comply with the standards and requirements of the Atomic Energy Act of 1954, as amended, and the Commission's rules and regulations set forth in Title 10 of the Code of Federal Regulations (10 CFR) Chapter I. Please replace the affected pages of the Facility Operating Licenses with the enclosed pages (Enclosure 1).

The attachments to the SE are designated exempt from public disclosure under 10 CFR 2.390(d)(1) since they contain security-related information and are Official Use Only.

If you have any questions, please contact me at (301) 415-2901.

Sincerely,

/RA/

John P. Boska, Senior Project Manager Plant Licensing Branch I-1 Division of Operating Reactor Licensing Office of Nuclear Reactor Regulation Docket Nos. 50-247 and 50-286

Enclosures:

1. Revised Pages of Facility Operating License Nos. DPR-26 and DPR-64

2. Safety Evaluation cc w/o atts to Encl. 2: See next page

Pkg ML071920020 (Letter & Encl 2: ML071920023, Encl 1: ML071920025, Attachments to SE (OUO): ML071800444)

OFFICE NRR/LPLIV/PM NRR/PSPB/LA NRRIDPRIPSPB NRR/LPI-1/PM NRR/LPI-1/BC NAME MFields DBaxley DNelson JBoska MKowal DATE 7/11/07 7/11/07 7/11/07 7/11/07 7/11/07 SAFETY EVALUATION BY THE OFFICE OF NUCLEAR REACTOR REGULATION RELATED TO ORDER NO. EA-02-026 ENTERGY NUCLEAR OPERATIONS, INC.

INDIAN POINT NUCLEAR GENERATING UNIT NOS. 2 AND 3 DOCKET NOS. 50-247 AND 50-286

1.0 INTRODUCTION

1.1 Purpose The purpose of this Safety Evaluation (SE) is to document the U.S. Nuclear Regulatory Commission (NRC) staff's regulatory assessment of the adequacy of the actions taken by the Entergy Nuclear Operations, Inc. (the licensee) in response to the February 25, 2002, Interim Compensatory Measures (ICM) Order and the subsequent NRC letter to licensees dated February 25, 2005, transmitting NRC guidance (Phase 1 guidance document). This SE describes the basis for finding licensee strategies adequate to satisfy the requirements of the 1CM Order. This SE also discusses the license condition that satisfactorily captures the mitigation strategy requirements. If the licensee makes future changes to its strategies within its commitment management program, this SE will be useful to the NRC staff in determining if the changed strategies are adequate to meet the license condition. It should be noted that portions of the ICM Order, as well as other documents referenced in this SE, contain security-related or safeguards information, and are not publicly available.

1.2 Background The February 25, 2002, ICM Order that imposed interim compensatory measures on power reactor licensees required in Section B.5.b, Mitigative Measures, the development of "specific guidance and strategies to maintain or restore core cooling, containment, and spent fuel pool cooling capabilities using existing or readily available resources (equipment and personnel) that can be effectively implemented under the circumstances associated with loss of large areas of plant due to explosions or fire." These actions were to be implemented by the end of August 2002. Inspections of the implementation of the Section B.5.b requirements were conducted in 2002 and 2003 (Temporary Instruction (TI) 2515/148). The inspections identified large variabilities in scope and depth of the enhancements made by licensees. As a result, the NRC determined that additional guidance and clarification was needed for nuclear power plant licensees.

Subsequent to the conduct of the TI 2515/148 inspections, engineering studies conducted by the NRC Office of Regulatory Research (RES) provided insights into the implementation of mitigation strategies to address the loss of large areas of a plant due to explosions or fire, including those that an aircraft impact might create. The NRC actions resulting from these studies included: (1) inspections of licensee actions that address plant-specific consequences, (2) issuance of advisories that involve processes and protocols for licensee notification of an imminent aircraft threat, and (3) identification of mitigative measures to enhance plant response to explosions or fire.

On November 24, 2004, the NRC issued a letter to licensees providing information on the Commission's phased approach for enhancing reactor mitigative measures and strategies for responding to Section B.5.b of the ICM Order. On February 25, 2005, the NRC issued guidance (Phase 1 guidance document) to describe more fully the NRC staff's expectations for implementing Section B.5.b of the ICM Order. Determination of the specific strategies required to satisfy the Order, elaborated on by the Phase 1 guidance document, was termed Phase 1.

Further information on the Commission's phased approach and its reliance on the Phase 1 guidance document and related workshop was described in an NRC letter to licensees dated January 14, 2005.

The NRC Phase 1 guidance document relied upon lessons learned from recent NRC engineering studies involving plant assessments, as well as industry best practices. This guidance also included the spent fuel pool mitigative measures described in a NRC letter to licensees dated July 29, 2004, "Issuance of Spent Fuel Pool Mitigative Measures." These best practices were identified during the inspections conducted in 2002 and 2003. The Phase 1 guidance document also incorporated industry comments made at two B.5.b-related workshops held on January 14, 2005, and February 2, 2005.

2.0 REGULATORY EVALUATION

Section B.5.b of the ICM Order required licensees to develop specific guidance and strategies to maintain or restore core cooling, containment, and spent fuel pool cooling capabilities using existing or readily-available resources (equipment and personnel) that can be effectively implemented under the circumstances associated with loss of large areas of the plant due to explosions or fire. Determination of the specific strategies required to satisfy the Order, elaborated on in the Phase 1 guidance document, was termed Phase 1.

In order to assure adequate protection of public health and safety and common defense and security, the NRC determined that differences in plant design and configuration warranted independent assessments to verify that the likelihood of damage to the reactor core, containment, and spent fuel pools and the release of radioactivity is low at each nuclear power plant. The Commission directed the NRC staff to conduct site-specific security and safety assessments to further identify enhanced mitigation capabilities. Site-specific assessments of spent fuel pools was deemed Phase 2 and site-specific assessments of reactor core and containments was deemed Phase 3.

The goal of the Phase 2 and 3 mitigation strategy assessments was for the NRC and the licensees to achieve a new level of cognition of safety and security through a comprehensive understanding of the capabilities and limitations of the plants under normal, abnormal, and

severe circumstances (from whatever cause). Based on this improved understanding, licensees could take reasonable steps to strengthen their capabilities and reduce their limitations. The NRC expected that safety and security would be well served by further enhancing the licensee's severe accident management strategies for mitigating a wide spectrum of events through the use of readily-available resources and by identifying potential practicable areas for the use of beyond-readily-available resources.

During 2005, the NRC staff performed inspections (TI 2515/164) to determine licensees' compliance with Section B.5.b of the ICM Order (Phase 1). Subsequent meetings were held with licensees to resolve identified open issues. Confirmatory B.5.b Phase 1 inspections (TI 2515/168) were conducted during the period of June to December 2006. The NRC staff conducted site visits as part of the Phase 2 assessments during 2005. In 2006, the NRC staff observed licensee Phase 3 studies and conducted independent Phase 3 assessments.

On January 24, 2006, the Nuclear Energy Institute (NEI) submitted a letter (M. Fertel to L. Reyes) describing an industry proposal for resolving ("closing") Phase 2 (Agencywide Documents Access and Management System (ADAMS) Accession No. ML060260220). The industry proposed high level functional mitigating strategies for a spectrum of potential scenarios involving spent fuel pools. In a letter to all Holders of Licenses for Operating Power Reactors dated June 21, 2006 (ADAMS Accession No. ML061670146), the NRC accepted the Phase 2 proposal pending review of site-specific details of its application and implementation.

In arriving at this conclusion, the NRC staff placed significant weight on portions of the proposal that rely on industry commitments to provide beyond-readily-available resources not previously available. These additions will significantly enhance licensees' mitigating strategies capabilities.

On June 27, 2006, the NEI submitted two letters (M. Fertel to W. Kane). In one of the letters, the NEI proposed a license condition to capture the Section B.5.b requirements and addressed items deferred from Phase 1 to Phase 2 (ADAMS Accession No. ML061790400). The license condition includes 14 items in the same broad categories as the February 25, 2005, Phase 1 guidance document; fire fighting response strategy, plant operations to mitigate fuel damage, and actions to minimize releases. The proposal suggested that the implementing details found to be an acceptable means of meeting the license condition would be treated as commitments, and managed in accordance with NEI 99-04, "Guidelines for Managing NRC Commitment Changes." In the second letter, the NEI proposed generic strategies for closure of Phase 3 (ADAMS Accession No. ML061860753). The required strategies for all three phases would be covered by the license condition and all implementing details would be managed by NEI 99-04.

The February 25, 2005, Phase 1 guidance document included 34 expectations. Two of these items were deferred to Phase 2 and seven items (i.e., six expectations and one element of a seventh expectation) were deferred to Phase 3. The NRC staff reached agreement with licensees on the non-deferred items under Phase 1.

Table 1 provides a cross reference of how the 34 elements of the February 25, 2005, Phase 1 guidance document and Phases 2 and 3 mitigating strategies correspond to the sections of the license condition.

On June 29, 2006, the NRC staff issued a letter to the NEI conditionally accepting its proposed license condition and strategies (ADAMS Accession No. ML061790306). The letter reiterated

that mitigation strategies in NEI's proposals that were identified during the Phase 2 and 3 assessments, which utilize reasonable, evident, readily-available resources (as identified in the February 25, 2005, Phase 1 guidance document) are required pursuant to Section B.5.b of the ICM Order. The implementing details of the required strategies will be implemented by commitment and managed in accordance with the NEI commitment management guideline, NEI 99-04. The NRC staff believes the NEI proposal reasonably justifies excluding from formal regulatory controls those additional strategies identified during the site-specific Phases 2 and 3 assessments that the NRC previously deemed required under Section B.5.b of the ICM Order, but not identified in NEI's proposals. Inherent in this conclusion is recognition of the addition of beyond-readily-available resouces included in the proposals. The implementing details of mitigation strategies included in the proposal, including those that utilize beyond-readily-available resources, will be treated as commitments, which will become part of the licensing basis of the plant. Additional strategies identified during site-specific assessments which licensees deem acceptable and valuable to promote diversification and survivability, will be incorporated into licensees' Severe Accident Management Guidelines, Extreme Damage Mitigation Guidelines, or appended to other site implementation guidance. To verify compliance, the NRC staff evaluated the site-specific implementation and documentation of the proposed Phases 2 and 3 mitigating strategies for each U.S. nuclear power plant.

3.0 TECHNICAL EVALUATION

The NRC staff's technical evaluation for strategies identified in Phase 1 of Section B.5.b is found in Appendix A. The NRC staff's technical evaluation for strategies identified in Phases 2 and 3 of Section B.5.b is found in Appendix B.

As part of the NRC staff's Phase 2 assessment, it was determined that mitigating strategies for the Indian Point Nuclear Generating Unit No. 2 spent fuel were not required due to being screened out. Therefore, the license condition for Unit 2 does not include Item b.7, "Spent fuel pool mitigation measures."

The Mitigating Strategies Table (MST) is included as Appendix C. The purpose of the MST is to capture, at the functional level, a summary of licensee strategies for compliance with the 34 measures presented in the February 25, 2005, Phase I guidance document and to indicate how the 34 items correlate to the 14 items in the license condition.

4.0 REGULATORY COMMITMENTS The implementing details of the mitigating strategies required by the license condition are identified in licensee submittals dated January 11, 2007 (ADAMS Accession No. ML070160073), and June 14, 2007 (ADAMS Accession No. ML071700242). These details will be implemented by commitment and managed in accordance with the NEI commitment management guideline, NEI 99-04. The NRC staff concludes this provides reasonable controls for mitigating strategy implementation and for subsequent evaluation of.licensee-identified changes.

Because the 14 items required by the license condition correlate to the 34 items presented in the February 25, 2005, Phase 1 guidance document and the mitigating strategies within NEI's Phase 2 and 3 proposals, and because the implementing details will be managed under

NEI 99-04, the NRC staff is satisfied that there will be sufficient controls to ensure that the strategies are adequately maintained.

5.0 CONCLUSION

Based on the NRC staff's review described in Appendices A, B, and C of this SE, the licensee's responses to the February 25, 2005, Phase 1 guidance document and the spent fuel pool and reactor core and containment mitigating strategy assessments meet the requirements of Section B.5.b, Mitigative Measures, of the February 25, 2002, ICM Order that imposed interim compensatory measures on power reactor licensees. The NRC staff concludes that full implementation of the licensee's enhancements in the submittals identified in Section 4.0, above, constitutes satisfactory compliance with Section B.5.b and the licensee condition, and represents reasonable measures to enhance the licensee's effectiveness in maintaining reactor core and spent fuel pool cooling and containment integrity under circumstances involving the loss of large areas of the plant due to fires or explosions.

The Commission has concluded, based on the considerations discussed above, that: (1) there is reasonable assurance that the health and safety of the public will not be endangered by operation in the proposed manner, (2) such activities will be conducted in compliance with the Commission's regulations, and (3) the issuance of the amendments will not be inimical to the common defense and security or to the health and safety of the public.

Attachments (Official Use Only - Security-Related Information - ADAMS Accession No. ML071800444):

1. Phase 1 Assessment (Appendix A)

2. Phases 2 and 3 Assessment (Appendix B)

3. Mitigating Strategies Table (Appendix C)

Principal Contributors: David J. Nelson Michael K. Webb Nathan T. Sanfilippo Date: July 11, 2007

Table 1 CROSS REFERENCE BETWEEN LICENSE CONDITION AND GUIDANCE DOCUMENT ELEMENTS License Condition section Guidance Document Elements A. Fire fighting response strategy with the following elements:

1. Pre-defined coordinated fire response strategy and B.1.b Staging of personnel guidance B.l.e Outside organization Support B. 1.j Treatment of casualties B.1.k Site assembly areas (mass casualties)

B.1.m Industry best practice - feeding fire protection ring header

2. Assessment of mutual aid fire fighting assets B.1.c Airlifted resources B.1.f Mobilization of fire fighting resources - existing or new MOUs B.1.g Mobilization of fire fighting resources - coordination with other than local mutual aid fire fighting resources (i.e, Industrial facilities, large municipal fire departments, airports, and military bases)

3. Designated staging areas for equipment and B.1.a Staging of equipment materials B.1.h Controlling emergency response vehicles (includes rad monitoring)

4. Command and Control B.1.d Command and control B.1.i Communications enhancements

5. Training of response personnel B.l Training considerations

B. Operations to mitigate fuel damage considering the following:

1. Protection and use of personnel assets B.2.a Personnel considerations

2. Communications B.2.b Communications measures

3. Minimizing fire spread B.2.h Compartmentalization of plant areas

4. Procedures for implementing integrated fire response B.2.c Procedures (Included in Phase 3 strategies) strategy B.2.d Evaluation of vulnerable buildings and equipment (Included in Phase 3 strategies)

B.2.e Industry best practice - Containment venting and vessel flooding B.2.f Industry best practice for compensatory function (Included in Phase 3 strategies)

B.2.g Best practice for use of plant equipment B.2.i Best practice involving plant areas potentially affected by fire or explosions (Included in Phase 3 strategies)

B.2.k Best practice for establishing supplemental response capabilities B.2.1 Best practice for establishing supplemental response capabilities

5. Identification of readily-available, pre-staged B.2.g Best practice for use of plant equipment - portable equipment generator and transformer (Included in Phase 3 strategies)

B.2.j Best practice involving reliance on portable and offsite equipment (Included in Phase 3 strategies)

6. Training on integrated fire response strategy B.2.n Training considerations

7. Spent fuel pool mitigation measures B.2.m.1 Dispersal of Fuel B.2.m.2 Hot fuel over rack feet B.2.m.3 Downcomer area B.2.m.4 Enhanced air circulation (Included in Phase 2 strategies)

B.2.m.5 Emergency pool makeup, leak reduction/repair (Included in Phase 2 strategies)

C. Actions to minimize release to include considerations of:

1. Water spray scrubbing B.3.a Water spray scrubbing B.3.b Prestaging of equipment

2. Dose to onsite responders B.3.c Dose projection models (Included in Phase 3 strategies)

Indian Point Nuclear Generating Unit Nos. 2 & 3 cc:

Mr. Michael R. Kansler Mr. John A. Ventosa President & CEO / CNO GM, Engineering Entergy Nuclear Operations, Inc. Entergy Nuclear Operations, Inc.

1340 Echelon Parkway 440 Hamilton Avenue Jackson, MS 39213 White Plains, NY 10601 Mr. John T. Herron Mr. John F. McCann Sr. Vice President Director, Nuclear Safety & Licensing Entergy Nuclear Operations, Inc. Entergy Nuclear Operations, Inc.

1340 Echelon Parkway 440 Hamilton Avenue Jackson, MS 39213 White Plains, NY 10601 Sr. Vice President Ms. Charlene D. Faison Engineering & Technical Services Manager, Licensing Entergy Nuclear Operations, Inc. Entergy Nuclear Operations, Inc.

1340 Echelon Parkway 440 Hamilton Avenue Jackson, MS 39213 White Plains, NY 10601 Mr. Fred R. Dacimo Mr. Ernest J. Harkness Site Vice President Director, Oversight Entergy Nuclear Operations, Inc. Entergy Nuclear Operations, Inc.

Indian Point Energy Center 1340 Echelon Parkway 450 Broadway, GSB Jackson, MS 39213 P.O. Box 249 Buchanan, NY 10511-0249 Mr. Patric W. Conroy Director, Nuclear Safety Assurance Mr. Anthony Vitale - Acting Entergy Nuclear Operations, Inc.

General Manager, Plant Operations Indian Point Energy Center Entergy Nuclear Operations, Inc. 450 Broadway, GSB Indian Point Energy Center P.O. Box 249 450 Broadway Buchanan, NY 10511-0249 P.O. Box 249 Buchanan, NY 10511-0249 Mr. T.R. Jones - Acting Manager, Licensing Mr. Oscar Limpias Entergy Nuclear Operations, Inc.

Vice President Engineering Indian Point Energy Center Entergy Nuclear Operations, Inc. 450 Broadway, GSB 1340 Echelon Parkway P. 0. Box 249 Jackson, MS 39213 Buchanan, NY 10511-0249 Mr. Joseph P. DeRoy Mr. William C. Dennis Vice President, Operations Support Assistant General Counsel Entergy Nuclear Operations, Inc. Entergy Nuclear Operations, Inc.

1340 Echelon Parkway 440 Hamilton Avenue Jackson, MS 39213 White Plains, NY 10601

Indian Point Nuclear Generating.Unit Nos. 2 & 3 cc:

Mr. Michael Balboni Mayor, Village of Buchanan Deputy Secretary for Public Safety 236 Tate Avenue State Capitol, Room 229 Buchanan, NY 10511 Albany, NY 12224 Mr. William DiProfio Mr. John P. Spath PWR SRC Consultant New York State Energy, Research, and 48 Bear Hill Road Development Authority Newton, NH 03858 17 Columbia Circle Albany, NY 12203-6399 Mr. Garry Randolph PWR SRC Consultant Mr. Paul Eddy 1750 Ben Franklin Drive, 7E New York State Department Sarasota, FL 34236 of Public Service 3 Empire State Plaza Mr. William T. Russell Albany, NY 12223-1350 PWR SRC Consultant 400 Plantation Lane Regional Administrator, Region I Stevensville, MD 21666-3232 U.S. Nuclear Regulatory Commission 475 Allendale Road Mr. Jim Riccio King of Prussia, PA 19406 Greenpeace 702 H Street, NW Senior Resident Inspector's Office Suite 300 Indian Point 2 Washington, DC 20001 U. S. Nuclear Regulatory Commission P.O. Box 59 Mr. Phillip Musegaas Buchanan, NY 10511 Riverkeeper, Inc.

828 South Broadway Senior Resident Inspector's Office Tarrytown, NY 10591 Indian Point 3 U. S. Nuclear Regulatory Commission Mr. Mark Jacobs P.O. Box 59 IPSEC Buchanan, NY 10511 46 Highland Drive Garrison, NY 10524 Mr. Charles Donaldson, Esquire Assistant Attorney General New York Department of Law 120 Broadway New York, NY 10271 Mr. Raymond L. Albanese Four County Coordinator 200 Bradhurst Avenue Unit 4 Westchester County Hawthorne, NY 10532

EXHIBIT 2 September 5, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Richard E. Wardwell Dr. Kaye D. Lathrop

)

Entergy Nuclear Operations, Inc. ) Docket Nos.

(Indian Point Nuclear Generating ) 50-247-LR Units 2 and 3) ) and 50-286-LR DECLARATION OF DR. GORDON R. THOMPSON IN SUPPORT OF RIVERKEEPER'S CONTENTIONS EC-4 AND EC-5 I, Dr. Gordon R. Thompson, declare as follows:

I. Introduction I-1. I am the executive director of the Institute for Resource and Security Studies (IRSS),

a nonprofit, tax-exempt corporation based in Massachusetts. Our office is located at 27 Ellsworth Avenue, Cambridge, MA 02139. IRSS was founded in 1984 to conduct technical and policy analysis and public education, with the objective of promoting peace and international security, efficient use of natural resources, and protection of the environment. I am an expert in the technical analysis of safety, security and environmental issues related to nuclear facilities. A copy of my curriculum vitae is included as Attachment 1 to this declaration.

1-2. On November 28, 2007, I prepared a declaration and expert report in this proceeding, in support of Riverkeeper, Inc.'s Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant, which was submitted to the U.S. Nuclear Regulatory Commission (NRC) on November 30, 2007. My report was titled Risk-Related Impactsfrom Continued Operationof the Indian PointNuclear Power Plants. That report is described hereafter as the "Thompson/Riverkeeper Report". The factual representations made in my November 28, 2007, declaration and report continue to be correct, and the opinions expressed therein continue to be based on my best professional judgment.

1-3. In preparing my November 28, 2007, declaration and report, and in other contexts, I have become familiar with the May 1996 generic environmental impact statement (GEIS)

Declarationof Gordon Thompson Supporting Riverkeeper Contentions EC-4 and EC-5 September 5, 2008 Page 2 prepared by the NRC for license renewal of nuclear power plants, and with relevant technical documents upon which the GEIS relied. The GEIS was titled Generic EnvironmentalImpact Statementfor License Renewal of Nuclear Plants,and is otherwise known as NUREG-1437.

1-4. I have reviewed a written decision of the NRC titled The Attorney General of Commonwealth of Massachusetts, The Attorney General of California;Denial of Petitionsfor Rulemaking, published in the Federal Register, Volume 73, Number 154, on August 8, 2008, at page 46204, and have also reviewed the publicly available technical documents upon which that decision relied. That decision is described hereafter as the "Rulemaking Petition Decision". I am familiar with the technical concepts discussed in both NUREG- 1437and the Rulemaking Petition Decision.

I-5. The Rulemaking Petition Decision made reference to a document it described as the "Thompson Report". That document is a report titled Risks and Risk-Reducing Options Associated with Pool Storage of Spent Nuclear Fuel at the Pilgrim and Vermont Yankee Nuclear Power Plants, dated May 25, 2006, which I prepared for the Office of the Attorney General, Commonwealth of Massachusetts. Hereafter, that report is described as the "Thompson/Massachusetts Report".

II. Purpose and Scope of this Declaration II-1. This declaration addresses the implications of the Rulemaking Petition Decision for an issue in this proceeding. The issue is the risk of a fire in a spent-fuel pool at the Indian Point 2 (IP2) or Indian Point 3 (IP3) nuclear power plant, and the opportunities for reducing that risk. The fire could arise as a result of a "conventional accident" or a "malice-induced accident", those terms being defined at pages 6 and 7 of the ThompsoniRiverkeeper Report. In order to properly consider the risks of both types of accident at a spent-fuel pool, it is necessary to also consider the risks of both types of accident at each nearby reactor, as discussed in Sections 6 and 7 of the Thompson/Riverkeeper Report.

11-2. Riverkeeper is submitting an amended Contention EC-2 in this proceeding. Also, Riverkeeper is submitting additional contentions designated as EC-4 and EC-5. The amended Contention EC-2 and the new Contentions EC-4 and EC-5 address the risk issue described in the preceding paragraph. This declaration supports Contentions EC-4 and EC-5. My November 28, 2007, declaration and report continue to support Contention EC-2.

11-3. In this declaration, I discuss new and significant information that was provided in the Rulemaking Petition Decision. The information is new and significant by comparison with related information provided in NUREG-1437 and the technical documents upon which NUREG-1437 relied. I rely here on the definition of "new and significant information" that was provided in the Rulemaking Petition Decision at page 46208.

Using an analogous standard, the information is also new and significant by comparison

Declarationof Gordon Thompson SupportingRiverkeeper Contentions EC-4 and EC-5 September 5, 2008 Page 3 with publicly available information upon which I relied when preparing the Thompson/Riverkeeper Report.

11-4. The new and significant information provided in the Rulemaking Petition Decision shows that the NRC now acknowledges that NUREG-1437 and its relevant supporting technical documents were based on an erroneous technical understanding of the potential for a fire in a spent-fuel pool. Most notably, NUREG&1437 and the supporting documents assumed, erroneously, that the most severe case for loss of water from a pool would be one of total, instantaneous drainage. In addition, new and significant information provided in the Rulemaking Petition Decision shows that the NRC has approved options, described as "internal and external strategies", that are intended to mitigate the risks of spent-fuel-pool fires at US nuclear power plants. Those options would necessarily be applied on a plant-specific basis.

11-5. Although the Rulemaking Petition Decision provided new and significant information, it did not do so by citing relevant technical documents, whether published or unpublished. Instead, the Decision cited only two documents that were not previously cited by the NRC. One of these documents has not been published and the other has been published in a highly redacted version.1 Neither citation provided new and significant information. The new and significant information provided in the Decision was provided entirely in the narrative of the Decision, with no citation to another document.

11-6. This declaration does not provide a comprehensive review or rebuttal of the Rulemaking Petition Decision. The purpose and scope of this declaration are limited to the matters described in paragraphs 11-1 through 11-5, above.

III. Technical Background III-1. The risk of a spent-fuel-pool fire, and the opportunities for reducing that risk, are discussed in Sections 6, 7 and 9 of the Thompson/Riverkeeper Report, both generically and in the context of the IP2 and IP3 plants. Some highlights of that discussion are repeated here, to provide technical background for the remainder of this declaration.

111-2. NUREG -1437 was published in May 1996. As discussed in Sections 6.1 and 6.2 of the Thompson/Riverkeeper Report, the NUREG-1437 position on pool fires was based on technical documents that had substantial deficiencies. Notably, those documents erroneously assumed that the most severe case for loss of water from a pool would be one of total, instantaneous drainage. The NRC Staff continued to employ that erroneous The two citations were provided in Footnote 6 at page 46207 of the Rulemaking Petition Decision. Both citations were to reports prepared at Sandia National Laboratories. One report, which is not publicly available, was prepared in November 2006 and titled Mitigationof Spent Fuel Pool Loss-of-Coolant Inventory Accidents andExtension of Reference PlantAnalyses to Other Spent Fuel Pools. The other report, when obtained from ADAMS in a severely redacted version, was revealed to be a June 2003 draft report titled MELCOR 1.8.5 Separate Effect Analyses of Spent FuelPool Assembly Accident Response.

Footnote 6 described the latter report, illogically, as "a version of the Sandia Studies".

Declarationof Gordon Thompson Supporting Riverkeeper Contentions EC-4 and EC-5 September 5, 2008 Page 4 assumption for more than two decades. Eventually, the NRC Staff corrected that error in the February 2001 NRC publication titled Technical Study of Spent Fuel PoolAccident Risk at DecommissioningNuclear Power Plants,also known as NUREG-1738.2 A major outcome of the correction was the Staff's acknowledgment that spent fuel aged a number of years after discharge from a reactor could spontaneously ignite in the event of loss of water from a pool. The Staff also acknowledged that the fire could propagate from one spent fuel assembly to other fuel assemblies.

111-3. In NUREG-1738, the NRC effectively acknowledged that the technical studies underlying the NUREG-1437 position on the risk of a spent-fuel-pool fire were invalid.

The appropriate response by the NRC would have been to conduct new studies, and then to have issued a supplement to NUREG-1437 that accounted for the findings of the new studies. NUREG-1738 could not, by itself, provide relevant findings, because it focused on a nuclear power plant undergoing decommissioning. The risk of a pool fire at an operating plant is substantially greater than at a decommissioning plant, other factors being equal, for two reasons. First, at an operating plant the pool could contain some spent fuel assemblies that had been discharged from the reactor for a short period -

measured in days or weeks. If water were lost from the pool, those assemblies could heat up to ignition temperature over a comparatively brief period. Second, at an operating plant there is a potential for accidents that involve interactions between the pool and the reactor. Notably, a release of radioactive material from the reactor could create radioactive contamination that precludes personnel access for the purpose of restoring cooling to spent fuel that has been exposed to air following loss of water from the pool.

111-4. The new technical studies mentioned in the preceding paragraph would, if properly performed, have sought to establish a comprehensive picture of the risk of a spent-fuel-pool fire at an operating plant, and of the opportunities to reduce that risk. An intervenor such as Riverkeeper lacks the funding needed to perform such studies, and has no duty to do so. The NRC has not published such studies, and there is no evidence that it has performed such studies. Since the publication ofNUREG-1738, the NRC has not published any technical report that addresses the risk of a pool fire.

111-5. To illustrate the nature of the studies that should have been performed, consider a pool-fire scenario that is outlined in Section 7.5 of the Thompson/Riverkeeper Report.

The scenario involves a malice-induced accident. In the Thompson/Riverkeeper Report, and in this declaration, the scenario is discussed without disclosing sensitive information.

I could elaborate on the scenario in a setting that protects sensitive information.

111-6. In the scenario, attackers would breach the wall of an IP2 or IP3 spent-fuel pool at the local grade level, causing the water level in the pool to quickly fall to near the top of the spent-fuel storage racks. If water makeup were not supplied, the pool could then boil dry in about a day. As fuel assemblies were exposed to air, their temperature would rise.

An assembly exposed for the majority of its length could heat up to ignition temperature 2 NUREG-1738 is cited in the Thompson/Riverkeeper Report as: Collins and Hubbard, 2001.

Declarationof Gordon Thompson Supporting Riverkeeper Contentions EC-4 and EC-5 September 5, 2008 Page 5 in'a few hours. To prevent water makeup to the pool or spray cooling of the exposed fuel, attackers could breach the containment of the adjacent reactor and arrange for a release of radioactive material from the reactor core to the environment. That release could preclude water makeup to the pool or spray cooling of exposed spent fuel by generating a radiation field that would prevent personnel access to the pool building for a period of days.3 Instruments of attack that could cause these outcomes are available to sub-national groups of attackers.

111-7. By attacking an IP2 or IP3 reactor alone, attackers could obtain a release containing a substantial fraction of the reactor's inventory of 11 MCi of cesium- 137.4 By supplementing this attack with an attack on the adjacent spent-fuel pool, the attackers could obtain an additional release containing a substantial fraction of the pool's inventory of about 70 MCi of cesium-137. 5 Such a substantial leveraging of the yield from an attack is possible because the IP2 and IP3 pools employ high-density racks. If the pools were re-equipped with low-density racks, as was intended when these plants were designed, the potential for a pool release would decrease dramatically.

111-8. Re-equipment of an IP2 or IP3 pool with low-density racks could cost $41 to 86 million. 6 The offsite costs arising from a release of 35 MCi of cesium- 137 could exceed

$460 billion.7 The probability of a malice-induced accident that causes such a release from a pool during the future operating lifetimes of the IP2 and IP3 plants cannot be quantitatively estimated at present. Nevertheless, citizens and policy makers would benefit from knowledge about the potential costs arising from a spectrum of accidental releases from spent-fuel pools, and about the costs of measures that could prevent or mitigate such releases. The NRC has neither provided that knowledge nor required licensees to provide that knowledge.

111-9. Re-equipping a spent-fuel pool with low-density racks is not the only option for reducing the risk of a pool fire. Some other options are set forth in Table 9-1 of the Thompson/Riverkeeper Report. One option identified in that table is the installation of emergency water sprays above the pool. The table provides two comments about this option. First, the spray system would need to be highly robust. That requirement would have cost implications. Second, spraying water on overheated fuel could feed an exothermic reaction between zirconium and steam, thus exacerbating rather than mitigating an accident. 8 That concern has risk implications. The NRC has not provided a technical analysis of either issue.

3 The initial radiation field from the reactor release would be dominated by radiation from isotopes with half-lives measured in days.

4 The isotope cesium-137 accounts for most of the offsite radiation exposure that is attributable to the 1986 Chemobyl reactor accident.

5 Reactor and pool inventories of cesium-137 were provided in Table 2-1 of the ThompsoniRiverkeeper Report.

6 See Table 9-2 of the Thompson/Riverkeeper Report.

7 See Table 6-1 of the Thompson/Riverkeeper Report.

8 A steam-zirconium reaction would, in addition to being exothermic, produce hydrogen gas, thereby creating the potential for a hydrogen-air explosion that would further exacerbate the accident.

Declarationof Gordon Thompson SupportingRiverkeeper Contentions EC-4 and EC-5 September 5, 2008 Page 6 IV. New and Significant Information in the Rulemaking Petition Decision, and the Implications of that Information IV- 1. As discussed in paragraph 11-4, above, the Rulemaking Petition Decision provided new and significant information of two kinds. First, it confirmed that NUREG-1437 and its relevant supporting technical documents were based on an erroneous technical understanding of the potential for a fire in a spent-fuel pool. Second, it disclosed that the NRC has approved options, described as "internal and external strategies", that are intended to mitigate the risks of spent-fuel-pool fires at US nuclear power plants. Those options would necessarily be applied and evaluated on a plant-specific basis.

IV-2. The Rulemaking Petition Decision did not directly concede that NUREG-1437 and its relevant supporting technical documents were based on an erroneous technical understanding of the potential for a fire in a spent-fuel pool. Instead, the Decision provided verbiage whose general thrust was to argue that NUREG- 1738 was unduly conservative. As pointed out in paragraph 111-3, above, NUREG-1738 was not intended to address the risk of a pool fire at an operating nuclear power plant. Thus, in arguing that NUREG-1738 was unduly conservative, the Decision chose to attack a "straw man".

Moreover, the Decision's verbiage did not provide any usable citation to a technical document that supported its criticism of NUREG-1738. Nor did the verbiage provide any quantitative information.

IV-3. The Rulemaking Petition Decision indirectly conceded that NUREG- 1437 and its relevant supporting technical documents were based on an erroneous technical understanding of the potential for a fire in a spent-fuel pool. That concession was made at three points in the Decision: (i)Section VI.B.2 (Partial Drain-Down) on pages 46208 and 46209; (ii)Section VI.C (Fuel Will Burn Regardless of Its Age) on page 46209; and (iii)Section VI.D (SFP Zirconium Fire Will Propagate) on page 46209.

IV-4. At Section VI.B.2, the Rulemaking Petition Decision acknowledged that the presence of residual water in a pool (the "partial drain-down" case) could lead to a situation in which "water and steam cooling is not sufficient to prevent the fuel from overheating and initiating a zirconium fire, but the water level is high enough to block the full natural circulation of air flow through the assemblies". That statement contradicts a fundamental, erroneous assumption underlying the NUREG-1437 position on pool fires, namely that total, instantaneous drainage would be the most severe case of water loss.

The Decision attempted to soften its concession on this point by arguing that partial drain-down would be a "special, limited condition". The Decision did not support that argument by citing any technical document. In fact, residual water would be present during many water-loss scenarios. Informed attackers planning a malice-induced accident would be likely to favor scenarios that involve the presence of residual water.

The scenario outlined in paragraph 111-6, above, would involve the presence of residual water.

Declarationof Gordon Thompson SupportingRiverkeeper Contentions EC-4 and EC-5 September 5, 2008 Page 7 IV-5. At Section VI.C, the Rulemaking Petition Decision continued its criticism of NUREG-1738 as being overly conservative. Nevertheless, the Decision did not dispute that loss of water from a pool could lead to spontaneous ignition of aged fuel, i.e., fuel discharged from a reactor for a much greater period than the ignition-vulnerability period that was determined in the technical documents underlying the NUREG-1437 position on pool fires. At Section VI.D, the Decision did not dispute that a zirconium fire could propagate from one spent fuel assembly to another. That finding contradicts technical documents underlying the NUREG-1437 position.

IV-6. The Rulemaking Petition Decision disclosed that the NRC has approved options, described as "internal and external strategies", that are intended to mitigate the risks of spent-fuel-pool fires at US nuclear power plants. That disclosure was made at Sections VI.B.2 and VI.B.3 of the Decision, on page 46209. The internal and external strategies were reportedly proposed by the nuclear industry in January 2006. The internal strategy apparently adapts previously-existing equipment within a nuclear power plant to provide makeup and spray capability to address loss of water from a spent-fuel pool. The external strategy employs an "independently-powered, portable" system to provide makeup and spray capability. The Decision stated: "The NRC has approved license amendments and issued safety evaluations to incorporate these strategies into the plant licensing bases of all operating nuclear power plants in the United States".

IV-7. The Rulemaking Petition Decision provided no citation to any document that describes the internal and external strategies or evaluates their effectiveness in reducing the risk of a spent-fuel-pool fire. Similarly, the Decision provided no citation to any license amendment related to these strategies.

IV-8. By disclosing the existence of the internal and external strategies, and the NRC's approval of these strategies, the Rulemaking Petition Decision provided new and significant information. The information is new in the sense that it was not provided in NUREG-1437 or its relevant underlying technical documents. Moreover, this information has not, to my knowledge, appeared in any previous document published by the NRC. The information is significant because it demonstrates that the nuclear industry and the NRC both have a level of concern about the risk of a pool fire such that they have adopted risk-reducing options that were not addressed in NUREG-1437. The effectiveness of these options in reducing risk cannot be independently evaluated until appropriate information is made available.

IV-9. The internal and external strategies that were disclosed in the Rulemaking Petition Decision would necessarily be applied on a plant-specific basis. Nuclear power plants vary markedly in their design. For example, at some plants the spent-fuel pool is partly below grade level, while at other plants the pool is located high up in the reactor building.

As another example, the water sources used to support an external strategy would be site-specific, depending upon the availability of a river, lake, town water supply, or other sources. Thus, the design of an internal or an external strategy must be plant-specific.

Also, the risk of a spent-fuel-pool fire is plant-specific. From the preceding two

Declarationof Gordon Thompson Supporting Riverkeeper Contentions EC-4 and EC-5 September 5, 2008 Page 8 sentences, it follows that the effectiveness of an internal or external strategy in reducing risk could be evaluated only on a plant-specific basis.

V. Conclusions V-1. The Rulemaking Petition Decision provided new and significant information of two kinds. First, it confirmed that NUREG-1437 and its relevant supporting technical documents were based on an erroneous technical understanding of the potential for a fire in a spent-fuel pool. Second, it disclosed that the NRC has approved options, described as "internal and external strategies", that are intended to mitigate the risks of spent-fuel-pool fires at US nuclear power plants. Those options would necessarily be applied and evaluated on a plant-specific basis. The effectiveness of those options in reducing the risk of a pool fire cannot be independently evaluated until appropriate information is made available.

V-2. Although the Rulemaking Petition Decision provided new and significant information, it did not do so by citing relevant technical documents, whether published or unpublished. The new and significant information provided in the Decision was provided entirely in the narrative of the Decision, with no citation to another document.

V-3. Re-equipping the spent-fuel pools at US nuclear power plants with low-density racks, as was intended when these plants were designed, would dramatically reduce the risk of a pool fire.

The factual statements provided in this declaration are true and correct to the best of my knowledge, and the expressions of opinion set forth in this declaration are based on my best professional judgment.

Call Dr. Gordon R. Thompson September 5, 2008

ATTACHMENT 1 Curriculum Vitae for Gordon R. Thompson August 2008 Professional expertise

• Technical and~policy analysis in the fields of energy, environment, sustainable development, human security, and international security.

Current appointments

- Executive director, Institute for Resource & Security Studies (IRSS), Cambridge, Massachusetts (since 1984).

- Research Professor, George Perkins Marsh Institute, Clark University, Worcester, Massachusetts (since 2002).

Education "D.Phil., applied mathematics, Oxford University (Balliol College), 1973.

• B.E., mechanical engineering, Univ. of New South Wales, Sydney, Australia, 1967.

"B.Sc., mathematics & physics, Univ. of New South Wales, 1966.

Project sponsors and tasks (selected)

• US Institute of Peace and other sponsors, 2005-2008: co-convened the US-Iran Working Group on Health Science Cooperation.

- Greenpeace Canada, 2007-2008: conducted technical and policy analysis on risk and sustainability issues related to the use of nuclear energy.

- Green Energy Coalition, Pembina Institute, and Ontario Sustainable Energy Association, 2008: prepared testimony for submission to the Ontario Energy Board.

• World Health Organization, 2006-2007: conducted policy analysis on the potential for "health-bridge" programs to improve cooperation within and between nations.

- Sierra Club of Canada, 2006-2007: prepared a strategy for development of planning and public-engagement tools to facilitate action on climate change.

• Mothers for Peace, California, 2002-2008: analyzed risk issues and prepared expert testimony associated with the Diablo Canyon nuclear power plants.

• Riverkeeper, New York, 2007-2008: analyzed risk issues and prepared expert testimony associated with the Indian Point nuclear power plants.

• Attorney General of Massachusetts, 2006-2008: analyzed risk issues and prepared expert testimony associated with the Pilgrim and Vermont Yankee nuclear power plants.

- Minnesota Center for Environmental Advocacy, and Minnesotans for an Energy Efficient Economy, 2005-2006: conducted technical analysis and provided expert testimony regarding management of spent fuel from the Monticello nuclear power plant.

• California Energy Commission, 2005: conducted technical analysis and participated in an expert workshop regarding safety and security of commercial nuclear facilities.

Curriculum Vitae for Gordon R. Thompson August 2008 Page 2 Committee on Radioactive Waste Management (a committee appointed by the UK government), 2005: provided expert advice and technical analysis on long-term safety and security of radioactive' waste management.

• Legal Resources Centre, Cape Town, South Africa, 2004-2007: conducted technical analysis regarding the proposed South African pebble bed modular nuclear reactor.

- STAR Foundation, New York, 2002-2004: reviewed planning and actions for decommissioning of research reactors at Brookhaven National Laboratory.

• Attorney General of Utah, 2003: conducted technical analysis and provided expert testimony regarding a proposed national storage facility for spent nuclear fuel.

- Citizens Awareness Network, Massachusetts, 2002-2003: conducted analysis on robust storage of spent nuclear fuel.

• Tides Center, California, 2002-2004: conducted analysis for the Santa Susana Field Laboratory (SSFL) Advisory Panel regarding the history of releases of radioactive material from the SSFL.

- Orange County, North Carolina, 1999-2002: assessed risk issues associated with the Harris nuclear power plant, identified risk-reduction options, and prepared expert testimony.

• William and Flora Hewlett Foundation and other sponsors, 1999-2008: performed research and project development for conflict-management projects, through IRSS's International Conflict Management Program.

- STAR Foundation, New York, 2000-2001: assessed risk issues associated with the Millstone nuclear power plant, identified risk-reduction options, and prepared expert testimony.

- Massachusetts Water Resources Authority, 2000: evaluated risks associated with water supply and wastewater systems that serve greater Boston.

• Canadian Senate, Energy & Environment Committee, 2000: reviewed risk issues associated with the Pickering Nuclear Generating Station.

• Greenpeace International, Amsterdam, 2000: reviewed impacts associated with the La Hague nuclear complex in France.

- Government of Ireland, 1998-2001: developed framework for assessment of impacts and alternative options associated with the Sellafield nuclear complex in the UK.

- Clark University, Worcester, Massachusetts, 1998-1999: participated in confidential review of outcomes of a major foundation's grants related to climate change.

- UN High Commissioner for Refugees, 1998: co-developed a strategy for conflict management in the CIS region.

• General Council of County Councils (Ireland), W. Alton Jones Foundation (USA), and Nuclear Free Local Authorities (UK), 1996-2000: assessed environmental and economic issues of nuclear fuel reprocessing in the UK; assessed alternative options.

• Environmental School, Clark University, Worcester, Massachusetts, 1996: session leader at the Summer Institute, "Local Perspectives on a Global Environment".

• Greenpeace Germany, Hamburg, 1995-1996: performed a study on war, terrorism and nuclear power plants.

- HKH Foundation, New York, and Winston Foundation for World Peace, Washington, DC, 1994-1996: studies and workshops on preventive action and its role in US national security planning.

Curriculum Vitae for Gordon R. Thompson August 2008 Page 3

• Carnegie Corporation of New York, Winston Foundation for World Peace, Washington, DC, and others, 1995: collaboration with the Organization for Security and Cooperation in Europe to facilitate improved coordination of activities and exchange of knowledge in the field of conflict management.

- World Bank, 1993-1994: a study on management of data describing the performance of projects funded by the Global Environment Facility (joint project of IRSS and Clark University).

- International Physicians for the Prevention of Nuclear War, 1993-1994: a study on the international control of weapons-usable fissile material.

• Government of Lower Saxony, Hannover, Germany, 1993: analysis of standards for radioactive waste disposal.

• University of Vienna (using funds supplied by the Austrian government), 1992: review of radioactive waste management at the Dukovany nuclear power plant, Czech Republic.

• Sandia National Laboratories, 1992-1993: advice to the US Department of Energy's Office of Foreign Intelligence.

- US Department of Energy and Battelle Pacific Northwest Laboratories, 1991-1992:

advice for the Intergovernmental Panel on Climate Change regarding the design of an information system on technologies that can limit greenhouse gas emissions Goint project of IRSS, Clark University and the Center for Strategic and International Studies).

- Winston Foundation for World Peace, Boston, Massachusetts, and other funding sources, 1992-1993: development and publication of recommendations for strengthening the International Atomic Energy Agency.

• MacArthur Foundation, Chicago, Illinois, W. Alton Jones Foundation, Charlottesville, Virginia, and other funding sources, 1984-1993: policy analysis and public education on a "global approach" to arms control and disarmament.

• Energy Research Foundation, Columbia, South Carolina, and Peace Development Fund, Amherst, Massachusetts, 1988-1992: review of the US government's tritium production (for nuclear weapons) and its implications.

- Coalition of Environmental Groups, Toronto, Ontario (using funds supplied by Ontario Hydro under the direction of the Ontario government), 1990-1993: coordination and conduct of analysis and preparation of testimony on accident risk of nuclear power plants.

• Greenpeace International, Amsterdam, Netherlands, 1988-1990: review of probabilistic risk assessment for nuclear power plants.

• Bellerive Foundation, Geneva, Switzerland, 1989-1990: planning for a June 1990 colloquium on disarmament, and editing of proceedings.

- Iler Research Institute, Harrow, Ontario, 1989-1990: analysis of regulatory response to boiling-water reactor accident potential.

• Winston Foundation for World Peace, Boston, Massachusetts, and other funding sources, 1988-1989: analysis of future options for NATO (joint project of IRSS and the Institute for Peace and International Security).

- Nevada Nuclear Waste Project Office, Carson City, Nevada (via Clark University),

1989-1990: analyses of risk aspects of radioactive waste management and disposal.

- Ontario Nuclear Safety Review (conducted by the Ontario government), Toronto, Ontario, 1987: review of safety aspects of CANDU reactors.

Curriculum Vitae for Gordon R. Thompson August 2008 Page 4

• Washington Department of Ecology, Olympia, Washington, 1987: analyses of risk aspects of a proposed radioactive waste repository at Hanford.

- Natural Resources Defense Council, Washington, DC, 1986-1987: preparation of expert testimony on hazards of the Savannah River Plant, South Carolina.

- Lakes Environmental Association, Bridgton, Maine, 1986: analysis of federal regulations for disposal of radioactive waste.

- Greenpeace Germany, Hamburg, 1986: participation in an international study on the hazards of nuclear power plants.

- Three Mile Island Public Health Fund, Philadelphia, Pennsylvania, 1983-1989: studies related to the Three Mile Island nuclear power plant and emergency response planning.

• Attorney General, Commonwealth of Massachusetts, 1984-1989: analyses of the safety of the Seabrook nuclear power plant, and preparation of expert testimony.

• Union of Concerned Scientists, Cambridge, Massachusetts, 1980-1985: studies on energy demand and supply, nuclear arms control, and the safety of nuclear installations.

• Conservation Law Foundation of New England, Boston, Massachusetts, 1985:

preparation of expert testimony on cogeneration potential at a Maine paper mill.

- Town & Country Planning Association, London, UK, 1982-1984: coordination and conduct of a study on safety and radioactive waste implications of the proposed Sizewell nuclear power plant, and testimony to the Sizewell Public Inquiry.

- US Environmental Protection Agency, Washington, DC, 1980-1981: assessment of the cleanup of Three Mile Island Unit 2 nuclear power plant.

- Center for Energy & Environmental Studies, Princeton University, Princeton, New Jersey, and Solar Energy Research Institute, Golden, Colorado, 1979-1980: studies on the potentials of renewable energy sources.

- Government of Lower Saxony, Hannover, Federal Republic of Germany, 1978-1979:

coordination and conduct of studies on safety and security aspects of the proposed Gorleben nuclear fuel cycle center.

Other experience (selected)

- Principal investigator, project on "Exploring the Role of'Sustainable Cities' in Preventing Climate Disruption", involving IRSS and three other organizations, 1990-1991.

• Visiting fellow, Peace Research Centre, Australian National University, 1989.

"Principal investigator, Three Mile Island emergency planning study, involving IRSS, Clark University and other partners, 1987-1989.

- Co-leadership (with Paul Walker) of a study group on nuclear weapons proliferation, Institute of Politics, Harvard University, 1981.

• Foundation (with others) of an ecological political movement in Oxford, UK, which contested the 1979 Parliamentary election.

• Conduct of cross-examination and presentation of expert testimony, on behalf of the Political Ecology Research Group, at the 1977 Public Inquiry into proposed expansion of reprocessing capacity at Windscale, UK.

- Conduct of research on plasma theory (while a D.Phil candidate), as an associate staff member, Culham Laboratory, UK Atomic Energy Authority, 1969-1973.

Curriculum Vitae for Gordon R. Thompson August 2008 Page 5

• Service as a design engineer on coal-fired power plants, New South Wales Electricity Commission, Sydney, Australia, 1968.

Publications (selected)

- Cost Implications of the Residual RadiologicalRisk of Nuclear Generationof Electricity in Ontario,a report for the Green Energy Coalition et al, 30 July 2008.

• "The US Effort to Dispose of High-Level Radioactive Waste", Energy and Environment, Volume 19, Numbers 3 and 4 (joint issue), 2008, pp 391-412.

• Design and Siting Criteriafor Nuclear Power Plants in the 21st Century, a report for Greenpeace Canada, Toronto, January 2008.

• Risk-Related Impacts from Continued Operationof the Indian PointNuclear Power Plants,a report for Riverkeeper, Tarrytown, New York, 28 November 2007.

• Assessing Risks of PotentialMalicious Actions at CommercialNuclear Facilities:The Case of a ProposedIndependent Spent Fuel Storage Installationat the Diablo Canyon Site, a report for San Luis Obispo Mothers for Peace, California, 27 June 2007.

- Health as a Bridgefor Peace: Achievements, Challenges, and Opportunitiesfor Action by WHO (with Paula Gutlove), a report for the Department for Health Action in Crises, World Health Organization, Geneva, 31 December 2006.

- "Using Psychosocial Healing in Postconflict Reconstruction" (with Paula Gutlove), in Mari Fitzduff and Chris E. Stout (eds), The Psychology of Resolving Global Conflicts:

From War to Peace, Praeger Security International, 2006.

• "What Role for Nuclear Power in a Sustainable Civilization?", The Green Cross Optimist, Spring 2006, pp 28-30.

- RadiologicalRisk of Homeport Basing of a Nuclear-PropelledAircraftCarrierin Yokosuka, Japan, a report for the Citizens Coalition Concerning the Homeporting of a CVN in Yokosuka, 29 June 2006.

- Risks and Risk-Reducing Options Associated with Pool Storage of Spent Nuclear Fuel at the Pilgrim and Vermont Yankee Nuclear Power Plants,a report for the Attorney General, Commonwealth of Massachusetts, 25 May 2006.

- Reasonably ForeseeableSecurity Events: Potentialthreats to optionsfor long-term management of UK radioactivewaste, a report for the UK Committee on Radioactive Waste Management, 2 November 2005.

• "Plasma, policy and progress", The AustralianMathematical Society Gazette, Volume 32, Number 3, 2005, pp 162-168.

• "A Psychosocial-Healing Approach to Post-Conflict Reconstruction" (with Paula Gutlove), Mind & Human Interaction,Volume 14, Number 1, 2005, pp 35-63.

- "Designing Infrastructure for New Goals and Constraints", Proceedings of the conference, Working Together: R&D Partnershipsin Homeland Security, Boston, Massachusetts, 27-28 April 2005, sponsored by the US Department of Homeland Security. (A version of this paper has also been published as CRS Discussion Paper 2005-02, Center for Risk and Security, George Perkins Marsh Institute, Clark University, Worcester, Massachusetts.)

- "Potential Radioactive Releases from Commercial Reactors and Spent Fuel",

Proceedings of the conference, Working Together: R&D Partnershipsin Homeland

Curriculum Vitae for Gordon R. Thompson August 2008 Page 6 Security, Boston, Massachusetts, 27-28 April 2005, sponsored by the US Department of Homeland Security. (A version of this paper has also been published as CRS Discussion Paper 2005-03, Center for Risk and Security, George Perkins Marsh Institute, Clark University, Worcester, Massachusetts.)

• Safety of the ProposedSouth African Pebble Bed Modular Reactor, a report for the Legal Resources Centre, Cape Town, South Africa, 12 January 2005.

- Decommissioning of Research Reactors at Brookhaven NationalLaboratory. Status, Future Options and Hazards, a report for STAR Foundation, East Hampton, New York, April 2004.

• "Psychosocial Healing and Post-Conflict Social reconstruction in the Former Yugoslavia" (with Paula Gutlove), Medicine, Conflict and Survival, Volume 20, Number 2, April-June 2004, pp 136-150.

• "Reducing the Hazards from Stored Spent Power-Reactor Fuel in the United States" (with Robert Alvarez, Jan Beyea, Klaus Janberg, Jungmin Kang, Ed Lyman, Allison Macfarlane and Frank N. von Hippel), Science and Global Security, Volume 11, 2003, pp 1-51.

• "Health, Human Security, and Social Reconstruction in Afghanistan" (with Paula Gutlove and Jacob Hale Russell), in John D. Montgomery and Dennis A. Rondinelli (eds), Beyond Reconstruction in Afghanistan, Palgrave Macmillan, 2004.

• PsychosocialHealing: A Guidefor Practitioners,based on programs of the Medical Network for Social Reconstruction in the Former Yugoslavia (with Paula Gutlove), IRSS, Cambridge, Massachusetts and OMEGA Health Care Center, Graz, Austria, May 2003.

- A CallforAction to Protectthe Nation Against Enemy Attack on Nuclear Power Plants and Spent Fuel, and a Supporting Document, San Luis Obispo Mothers for Peace, California, April 2003 and May 2003.

• "Human Security: Expanding the Scope of Public Health" (with Paula Gutlove),

Medicine, Conflict and Survival, Volume 19, 2003, pp 17-34.

• Social Reconstruction in Afghanistan through the Lens of Health and Human Security (with Paula Gutlove and Jacob Hale Russell), IRSS, Cambridge, Massachusetts, May 2003.

• Robust Storage of Spent Nuclear Fuel: A Neglected Issue of HomelandSecurity, a report for Citizens Awareness Network, Shelburne Falls, Massachusetts, January 2003.

• Medical Network for Social Reconstruction in the Former Yugoslavia: A Survey of Participants'Views on the Network's Goals andAchievements, IRSS, Cambridge, Massachusetts, September 2001.

• The Potentialfora Large, Atmospheric Release of Radioactive MaterialfromSpent Fuel Pools at the HarrisNuclear Power Plant: The Case of a Pool Release Initiatedby a Severe Reactor Accident, a report for Orange County, North Carolina, 20 November 2000.

• A Review of the Accident Risk Posed by the Pickering 'A'NuclearGeneratingStation, a report for the Standing Committee on Energy, Environment and Natural Resources, Canadian Senate, August 2000.

• High-Level Radioactive Liquid Waste at Sellafield: An UpdatedReview, a report for the UK Nuclear Free Local Authorities, June 2000.

• HazardPotentialof the La Hague Site: An Initial Review, a report for

Curriculum Vitae for Gordon R. Thompson August 2008 Page 7 Greenpeace International, May 2000.

• A Strategyfor Conflict Management: IntegratedAction in Theory and Practice (with Paula Gutlove), IRSS, Cambridge, Massachusetts, March 1999.

- Risks andAlternative Options Associated with Spent Fuel Storage at the Shearon HarrisNuclear Power Plant, a report for Orange County, North Carolina, February 1999.

- High Level Radioactive Liquid Waste at Sellafield. Risks, Alternative Options and Lessons for Policy, IRSS, Cambridge, Massachusetts, June 1998.

- "Science, democracy and safety: why public accountability matters", in F. Barker (ed),

Management of Radioactive Wastes: Issuesfor local authorities,Thomas Telford, London, 1998.

- "Conflict Management and the OSCE" (with Paula Gutlove), OSCE/ODIHR Bulletin, Volume 5, Number 3, Fall 1997.

• Safety of the Storage of Liquid High-Level Waste at Sellafield (with Peter Taylor),

Nuclear Free Local Authorities, UK, November 1996.

• Assembling Evidence on the Effectiveness of Preventive Actions, their Benefits, and their Costs: A Guidefor Preparationof Evidence, IRSS, Cambridge, Massachusetts, August 1996.

• War, Terrorism and Nuclear Power Plants,Peace Research Centre, Australian National University, Canberra, October 1996.

• "The Potential for Cooperation by the OSCE and Non-Governmental Actors on Conflict Management" (with Paula Gutlove), Helsinki Monitor, Volume 6 (1995), Number 3.

• "Potential Characteristics of Severe Reactor Accidents at Nuclear Plants", "Monitoring and Modelling Atmospheric Dispersion of Radioactivity Following a Reactor Accident" (with Richard Sclove, Ulrike Fink and Peter Taylor), "Safety Status of Nuclear Reactors and Classificatiofi of Emergency Action Levels", and "The Use of Probabilistic Risk Assessment in Emergency Response Planning for Nuclear Power Plant Accidents" (with Robert Goble), in D. Golding, J. X. Kasperson and R. E. Kasperson (eds), Preparingfor Nuclear Power PlantAccidents, Westview Press, Boulder, Colorado, 1995.

- A DataManagerfor the Global Environment Facility (with Robert Goble),

Environment Department, The World Bank, June 1994.

- Preventive Diplomacy and National Security (with Paula Gutlove), Winston Foundation for World Peace, Washington, DC, May 1994.

- Opportunitiesfor InternationalControl of Weapons- Usable FissileMaterial, International Physicians for the Prevention of Nuclear War, Cambridge, Massachusetts, January 1994.

• "Article III and IAEA Safeguards", in F. Barnaby and P. Ingram (eds), Strengthening the Non-ProliferationRegime, Oxford Research Group, Oxford, UK, December 1993.

- Risk Implications of PotentialNew Nuclear Plants in Ontario (prepared with the help of eight consultants), a report for the Coalition of Environmental Groups, Toronto, submitted to the Ontario Environmental Assessment Board, November 1992 (3 volumes).

- Strengtheningthe InternationalAtomic Energy Agency, IRS S, Cambridge, Massachusetts, September 1992.

- Design of an Information System on Technologies that can Limit Greenhouse Gas Emissions (with Robert Goble and F. Scott Bush), Center for Strategic and International Studies, Washington, DC, May 1992.

Curriculum Vitae for Gordon R. Thompson August 2008 Page 8

• ManagingNuclear Accidents: A Model Emergency Response Planfor Power Plants and Communities (with six other authors), Westview Press, Boulder, CO, 1992.

• "Let's X-out the K" (with Steven C. Sholly), Bulletin of the Atomic Scientists, March 1992, pp 14-15.

• "A Worldwide Programme for Controlling Fissile Material", and "A Global Strategy for Nuclear Arms Control", in F. Barnaby (ed), Plutonium and Security, Macmillan Press, UK, 1992.

• No Restartfor K Reactor (with Steven C. Sholly), IRSS, Cambridge, Massachusetts, October 1991.

- Regulatory Response to the Potentialfor Reactor Accidents: The Example of Boiling-Water Reactors, IRSS, Cambridge, Massachusetts, February 1991.

- Peace by Piece: New Optionsfor InternationalArms Control and Disarmament,IRSS, Cambridge, Massachusetts, January 1991.

- Developing PracticalMeasures to Prevent Climate Disruption (with Robert Goble),

CENTED Research Report No. 6, Clark University, Worcester, Massachusetts, August 1990.

• "Treaty a Useful Relic", Bulletin of the Atomic Scientists, July/August 1990, pp 32-33.

" "Practical Steps for the 1990s", in Sadruddin Aga Khan (ed), Non-Proliferationin a DisarmingWorld, Proceedings of the Groupe de Bellerive's 6th International Colloquium, Bellerive Foundation, Geneva, Switzerland, 1990.

-A Global Approach to ControllingNuclear Weapons, IRSS, Cambridge, Massachusetts, October 1989.

• IAEA Safety Targets and ProbabilisticRisk Assessment (with three other authors),

Greenpeace International, Amsterdam, August 1989.

• New Directionsfor NATO (with Paul Walker and Pam Solo), published jointly by IRSS and the Institute for Peace and International Security (both of Cambridge, Massachusetts), December 1988.

- "Verifying a Halt to the Nuclear Arms Race", in F. Barnaby (ed), A Handbook of Verification Procedures,Macmillan Press, UK, 1990.

- "Verification of a Cutoff in the Production of Fissile Material", in F.Barnaby (ed), A Handbook of Verification Procedures,Macmillan Press, UK, 1990.

• "Severe Accident Potential of CANDU Reactors," Consultant's Report in The Safety of Ontario'sNuclear Power Reactors, Ontario Nuclear Safety Review, Toronto, February 1988.

"Nuclear-FreeZones (edited with David Pitt), Croom Helm Ltd, Beckenham, UK, 1987.

• Risk Assessment Review For the Socioeconomic Impact Assessment of the Proposed High-Level Nuclear Waste Repository at HanfordSite, Washington (edited; written with five other authors), prepared for the Washington Department of Ecology, December 1987.

- The Nuclear Freeze Revisited (with Andrew Haines), Nuclear Freeze and Arms Control Research Project, Bristol, UK, November 1986. Variants of the same paper have appeared as Working Paper No. 18, Peace Research Centre, Australian National University, Canberra, February 1987, and in ADIU Report, University of Sussex, Brighton, UK, Jan/Feb 1987, pp 6-9.

Curriculum Vitae for Gordon R. Thompson August 2008 Page 9

• InternationalNuclear Reactor HazardStudy (with fifteen other authors), Greenpeace, Hamburg, Federal Republic of Germany (2 volumes), September 1986.

• "What happened at Reactor Four" (the Chernobyl reactor accident), Bulletin of the Atomic Scientists, August/September 1986, pp 26-31.

- The Source Term Debate:A Report by the Union of ConcernedScientists (with Steven C. Sholly), Union of Concerned Scientists, Cambridge, Massachusetts, January 1986.

- "Checks on the spread" (a review of three books on nuclear proliferation), Nature, 14 November 1985, pp 127-128.

- Editing of Perspectiveson Proliferation,August 1985, published by the Proliferation Reform Project, IRSS.

- "A Turning Point for the NPT ?", ADIU Report, University of Sussex, Brighton, UK, Nov/Dec 1984, pp 1-4.

- "Energy Economics", in J. Dennis (ed), The Nuclear Almanac, Addison-Wesley, Reading, Massachusetts, 1984.

• "The Genesis of Nuclear Power", in J. Tirman (ed), The Militarizationof High Technology, Ballinger, Cambridge, Massachusetts, 1984.

• A Second Chance: New Hampshire'sElectricity Future as a Modelfor the Nation (with Linzee Weld), Union of Concerned Scientists, Cambridge, Massachusetts, 1983.

• Safety and Waste Management Implications of the Sizewell PWR (prepared with the help of six consultants), a report to the Town & Country Planning Association, London, UK, 1983.

• Utility-Scale ElectricalStorage in the USA: The Prospectsof Pumped Hydro, CompressedAir, and Batteries, Princeton University report PU/CEES # 120, 1981.

- The Prospectsfor Wind and Wave Power in North America, Princeton University report PU/CEES # 117, 1981.

- HydroelectricPower in the USA: Evolving to Meet New Needs, Princeton University report PU/CEES # 115, 1981.

• Editing and part authorship of "Potential Accidents & Their Effects", Chapter III of Report of the Gorleben InternationalReview, published in German by the Government of Lower Saxony, FRG, 1979; Chapter III published in English by the Political Ecology Research Group, Oxford, UK.

• A Study of the Consequences to the Public of a Severe Accident at a CommercialFBR locatedat Kalkar, West Germany, Political Ecology Research Group, 1978.

Expert presentations and testimony (selected)

- Institute of Environmental Studies, University of New South Wales, Sydney, Australia, April 2008: presentation, "Citizen Engagement for Sustainable Society".

- Department of Urban and Regional Planning, Shaheed Beheshti University, Tehran, April 2008: presentation, "Sustainable Cities: Challenges and Opportunities".

- National Academy of Sciences, Washington, DC, January 2008: presentation, "What do interested parties think about the expansion of nuclear energy?"

• Abt Associates, Cambridge, Massachusetts, March 2007: presentation, "Creating Informed Action on Climate Change".

Curriculum Vitae for Gordon R. Thompson August 2008 Page 10

• Universities of Medical Science in Tabriz and Isfahan, Iran, April 2007: presentation, "Healthy Design of the Built Environment".

- Minnesota Public Utilities Commission, 2006: testimony regarding trends, risks and costs associated with management of spent fuel from the Monticello nuclear power plant.

• Presentation, "Are Nuclear Installations Terrorist Targets?", at the conference, Nuclear Energy:~Does it Have a Future?, Drogheda, County Louth, Ireland, 10- 11 March 2005.

• Presentation at the session, "UN Security Council Resolution 1244 and Final Status for Kosovo", at the conference, Lessons Learnedfrom the Balkan Conflicts, Boston College, Chestnut Hill, Massachusetts, 16-17 October 2004.

• California Public Utilities Commission, 2004: testimony regarding the nature and cost of potential measures for enhanced defense of the Diablo Canyon nuclear power plant.

- European Parliament, 2003: invited presentation to EP members regarding safety and security issues at the Sellafield nuclear site in the UK, and broader implications.

- US Congress, 2002 and 2003: invited presentations at member-sponsored staff briefings on vulnerabilities of nuclear-power facilities to attack and options for improved defenses.

• Numerous public forums in the USA, 200 1-2006: invited presentations to public officials and general audiences regarding vulnerabilities of nuclear-power facilities to attack and options for improved defenses.

• UK Consensus Conference on Radioactive Waste Management, 1999: invited testimony on information and decision-making.

- Joint Committee on Public Enterprise and Transport, Irish Parliament, 1999: invited testimony on nuclear fuel reprocessing and international security.

- UK and Irish Parliaments, 1998: invited presentations to members on risks and alternative options associated with nuclear fuel reprocessing in the UK.

- Center for Russian Environmental Policy, Moscow, 1996: invited presentation at a forum in parallel with the G-7 Nuclear Safety Summit.

- Lacey Township Zoning Board, New Jersey, 1995: testimony regarding radioactive waste management.

- Ontario Court of Justice, Toronto, Ontario, 1993: testimony regarding Canada's Nuclear Liability Act.

• Oxford Research Group, seminar on "The Plutonium Legacy", Rhodes House, Oxford, UK, 1993: invited presentation on nuclear safeguards.

- Defense Nuclear Facilities Safety Board, Washington, DC, 1991: testimony regarding the proposed restart of K-reactor, Savannah River Site.

- Conference to consider amending the Partial Test Ban Treaty, United Nations, New York, 1991: presentation on a global approach to arms control and disarmament.

- US Department of Energy, hearing on draft EIS for new production reactor capacity, Columbia, South Carolina, 1991: testimony on tritium need and implications of tritium production options.

- Society for Risk Analysis, 1990 annual meeting, New Orleans, special session on nuclear emergency planning: presentation on real-time techniques for anticipating emergencies.

• Parliamentarians' Global Action, 11lth Annual Parliamentary Forum, United Nations, Geneva, 1990: invited presentation on the potential for multilateral nuclear arms control.

Curriculum Vitae for Gordon R. Thompson August 2008 Page 11

• Advisory Committee on Nuclear Facility Safety, Washington, DC, 1989: testimony on public access to information and on government accountability.

• Peace Research Centre, Australian National University, seminar on "Australia and the Fourth NPT Review Conference", Canberra, 1989: invited presentation regarding a universal nuclear weapons non-proliferation regime.

• Carnegie Endowment for International Peace, Conference on "Nuclear Non-Proliferation and the Role of Private Organizations", Washington, DC, 1989: invited presentation on options for reform of the non-proliferation regime.

• US Department of Energy, EIS scoping hearing, Columbia, South Carolina, 1988:

testimony on appropriate scope of an EIS for new production reactor capacity.

• International Physicians for the Prevention of Nuclear War, 6th and 7th Annual Congresses, Koln, FRG, 1986 and Moscow, USSR, 1987: invited presentations on relationships between nuclear power and the threat of nuclear war.

• County Council, Richland County, South Carolina, 1987: testimony on implications of severe reactor accidents at the Savannah River Plant.

• Maine Land Use Regulation Commission, 1985: testimony on cogeneration potential at facilities of Great Northern Paper Company.

• Interfaith Hearings on Nuclear Issues, Toronto, Ontario, 1984: invited presentations on options for Canada's nuclear trade and Canada's involvement in nuclear arms control.

• Sizewell Public Inquiry, UK, 1984: testimony on safety and radioactive waste implications of the proposed Sizewell nuclear power plant.

• New Hampshire Public Utilities Commission, 1983: testimony on electricity demand and supply options for New Hampshire.

- Atomic Safety & Licensing Board, US Nuclear Regulatory Commission, 1983:

testimony on use of filtered venting at the Indian Point nuclear power plant.

• US National Advisory Committee on Oceans and Atmosphere, 1982: testimony on implications of ocean disposal of radioactive waste.

• Environmental & Energy Study Conference, US Congress, 1982: invited presentation on implications of radioactive waste management.

Miscellaneous

• Extensive experience in public speaking and interviews by representatives of print and electronic media.

- Author of numerous essays and letters in newspapers and magazines.

Contact information Institute for Resource and Security Studies 27 Ellsworth Avenue, Cambridge, Massachusetts 02139, USA Phone: 617-491-5177 Fax: 617-491-6904

September 5, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

)

Entergy Nuclear Operations, Inc. ) Docket Nos.

(Indian Point Nuclear Generating ) 50-247-LR Station Units 2 and 3) ) and 50-286-LR RIVERKEEPER, INC.'S CONDITIONAL MOTION FOR LEAVE TO FILE NEW AND AMENDED CONTENTIONS REGARDING ENVIRONMENTAL IMPACTS OF HIGH-DENSITY POOL STORAGE OF SPENT FUEL Pursuant to 10 C.F.R. § 2.309(f)(2), Riverkeeper, Inc. ("Riverkeeper") hereby moves the Atomic Safety and Licensing Board ("ASLB") for leave to file the attached amended Contention EC-2 and new contentions EC-4 and EC-5 regarding the environmental impacts of high-density pool storage of spent fuel at the Indian Point nuclear power plant. These contentions are based on a decision issued by the Commissioners of the U.S. Nuclear Regulatory Commission ("NRC") on August 8, 2008:

The Attorney General of Commonwealth of Massachusetts, The Attorney Generalof California;Denial of Petitionsfor Rulemaking, 73 Fed. Reg. 46,204 ("Rulemaking Petition Decision").

As discussed in the attached statement of Riverkeeper's contentions, Riverkeeper believes that the Rulemaking Petition Decision may be a binding National Environmental Policy Act ("NEPA") decision in this proceeding, and therefore Riverkeeper may submit new or amended contentions as of right. In the event that the ASLB determines that

Riverkeeper does not have the right to submit its contentions, Riverkeeper asks that the ASLB consider and grant this motion. Riverkeeper satisfies the criteria for the filing of new contentions, because the contentions are based on newly available information in the Rulemaking Decision Document that is materially different from any previously available document, and because the motion is timely. Riverkeeper is submitting the motion within 30 days of learning of the issuance of the Rulemaking Petition Decision on August 6, 2008.

In conformance with 10 C.F.R. § 2.323(b), and as discussed in the attached Certification of Counsel, counsel for Riverkeeper has contacted counsel for the NRC Staff and Entergy in a sincere attempt to resolve the issues raised by this motion.

Counsel for Entergy stated that Entergy would not take a position on this motion, and reserved the right to respond to Riverkeeper's contentions. Counsel for the NRC Staff stated that the NRC Staff would oppose this motion.

V spectLy ubmitted, Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 202/328-3500 FAX 202/328-6918 dcurran(&harmoncurra 7.n,com Phillip Musegaas -

Staff Attorney Riverkeeper, Inc.

828 South Broadway Tarrytown, NY 10591 914-478-4501 (ext. 224)

Fax 914-478-4527 phillip(~riverkeeper.org www.riverkeeper.org 2

CERTIFICATION BY COUNSEL PURSUANT TO 10 C.F.R. § 2.323(b)

Pursuant to 10 C.F.R. § 2.323(b), I certify that on September 5, 2008, I contacted counsel for Entergy and the NRC Staff in a sincere attempt to resolve the issues raised by this motion. Counsel for Entergy stated that Entergy would not take a position on this motion, and reserved the right to respond to Riverkeeper's contentions. Counsel for the NRC Staff stated that the NRC Staff would oppose this motion.

6 ane *C*uan September 5, 2008

.3

CERTIFICATE OF SERVICE I certify that on September 5, 2008, copies of the foregoing Riverkeeper, Inc.'s New and Amended Contentions Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel and motion for leave to file the same were served on the following by e-mail and first-class mail:

Lawrence G. McDade, Chair Robert D. Snook, Esq.

Atomic Safety and Licensing Board Panel Assistant Attorney General Atomic Safety and Licensing Board 55 Elm Street, P.O. Box 120 U.S. Nuclear Regulatory Commission Hartford, CT 06141-0120 Washington, D.C. 20555 By e-mail: Robert. Snookkpo. state.ct.us Also by e-mail: Lawrence.McDade@nrc.gov Richard E. Wardwell Michael J. Delaney, V.P. - Energy Atomic Safety and Licensing Board New York City Econ. Development Corp.

U.S. Nuclear Regulatory Commission 110 William Street Washington, D.C. 20555 New York, NY 10038 Also by e-mail: Richard.Wardwell@nrc.gov Also by e-mail: mdelaneygnycedc.com John LeKay Martin J. O'Neill, Esq.

Heather Ellsworth Burns-DeMelo Kathryn M. Sutton, Esq.

Remy Chevalier Paul M. Bessette, Esq.

Bill Thomas Mauri T. Lemoncelli, Esq.

Belinda J. Jaques Morgan, Lewis & Bockius, LLP FUSE USA 1111 Pennsylvania Ave. N.W.

351 Dyckman Street Washington, D.C. 20004 Peekskill, NY 10566 martin.oneill@morganlewis.com Also by e-mail: fuse usa@yahoo.com pbessette@morganlewis.com ksutton@morganlewis.com Susan H. Shapiro, Esq. Office of Commission Appellate Adjudication 21 Perlman Drive U.S. Nuclear Regulatory Commission Spring Valley, NY 10977 Washington, D.C. 20555 Also by e-mail: mbsdaourrocklandoffice.com Also by e-mail: OCAAMAILadbrc.gov John J. Sipos, Esq. Sherwin E. Turk, Esq., Lloyd B. Subin, Esq.

Assistant Attorney General Beth N. Mizuno, Esq., David E. Roth, Esq.

Office of the New York Attorney General Jessica Bielecki, Esq., Marcia J. Simon, Esq.

for the State of New York Office of General Counsel The Capitol U.S. Nuclear Regulatory Commission Albany, New York 12224 Washington, D.C. 20555 Also by e-mail: John. Sipos@oag. state.ny.us; sbtgnrc.gov; Marcia. simongnrc. gov; Jessica.bielecki~nrc.gov; bnm2@nrc.gov; derenrc.gov; david.rothknrc.gov

Office of the Secretary William C. Dennis, Esq.

Rulemakings and Adjudications Staff Entergy Nuclear Operations, Inc.

U.S. Nuclear Regulatory Commission 440 Hamilton Avenue Washington, D.C. 20555 White Plains, NY 10601 Also by e-mail: HEARINGDOCKET@nrc.gov Also by e-mail: wdennisgentergy.com Stephen C. Filler, Board Member Manna Jo Greene Hudson River Sloop Clearwater, Inc. Hudson River Sloop Clearwater, Inc.

303 South Broadway, Suite 222 112 Little Market Street Tarrytown, NY 10591 Poughkeepsie, NY 12601 Also by e-mail: sfiller@nylawline.com Also by e-mail: Mannajogclearwater.org i

Justin D. Pruyne, Esq. Joan Leary Matthews, Esq.

Assistant County Attorney, Litigation Bureau Senior Attorney for Special Projects Of Counsel to Charlene M. Indelicato, Esq. New York State Department Westchester County Attorney of Environmental Conservation 148 Martine Avenue, 6 th Floor 625 Broadway, 1 4 th floor White Plains, NY 10601 Albany, New York 12233-5500 Also by e-mail: idp3@dwestchestergov.com By e-mail: jlmatthewsggw.dec.state.ny.us Zackary S. Kahn, Esq., Law Clerk Thomas F. Wood, Esq.

Atomic Safety and Licensing Board Panel Daniel Riesel, Esq.

U.S. Nuclear Regulatory Commission Sive, Paget and Riesel, P.C.

Washington, D.C. 20555 460 Park Avenue Also by e-mail: Zachary.Kahn(mnrc.gov New York, NY 10022 Also by e-mail: driesel@sprlaw.com Judge Kaye D. Lathrop Nancy Burton 190 Cedar Lane East 147 Cross Highway Ridgeway, CO 81432 Redding Ridge, CT 06878 Also by e-mail: Kaye.Lathropgnrc.gov Also by e-mail: NancyBurtonCTgaol.com Elise N. Zoli, Esq. Phillip Musegaas, Esq.

Goodwin Procter, LLP Victor Tafur, Esq.

53 State Street Riverkeeper, Inc.

Boston, MA 02109 828 South Broadway Also by e-mail: ezoliggoodwinprocter.com Tarrytown, NY 10591 Marcia Carpentier, Esq., Law Clerk Janice A. Dean, Esq.

Atomic Safety and Licensing Board Assistant Attorney General Mail Stop: T-3 E2B Office of the Attorney General U.S. Nuclear Regulatory Commission 120 Broadway, 2 6 th Floor Washington, D.C. 20555-0001 New York, NY 10271 Marcia.Carpentiergnrc.gov Also by e-mail: Janice.deangoag.state.ny.us 2

Mylan L. Denerstein, Esq. John L. Parker, Esq.

Executive Deputy Attorney General Regional Attorney, Region 3 120 Broadway, 2 5th Floor New York State Department of New York, NY 10271 Environmental Conservation Also by e-mail: 21 South Putt Comers mylan.denerstein(,oag.state.ny.us New Paltz, NY 12561 Also by e-mail: j lparker@gw.dec.state.ny.us iane Curran 3