In the Matter of Entergy Nuclear Operations, Inc., et al., Respondents,v.New York State Department of State et al., Appellants.BriefN.Y.October 19, 2016 App. Div. Third Dept. No. 518510; Albany Co. Index No. 1535-13 _____________________________________________________________________________ Court of Appeals of the State of New York ______________________ IN THE MATTER OF ENTERGY NUCLEAR OPERATIONS, INC., ENTERGY NUCLEAR INDIAN POINT 2, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC, Petitioners-Respondents, -AGAINST- THE NEW YORK STATE DEPARTMENT OF STATE AND CESAR A. PERALES, SECRETARY OF THE NEW YORK STATE DEPARTMENT OF STATE, Respondents-Appellants. AMICUS CURIAE BRIEF OF RIVERKEEPER, INC., SCENIC HUDSON, INC., AND HUDSON RIVER SLOOP CLEARWATER, INC. IN SUPPORT OF RESPONDENTS-APPELLANTS Deborah Brancato, Esq. Manna Jo Greene Staff Attorney Environmental Action Director Riverkeeper, Inc. Hudson River Sloop Clearwater 20 Secor Road 724 Wolcott Ave Ossining, NY 10562 Beacon, NY 12508 914-478-4501 (ext. 230) 845-265-8080 (ext.7113) Hayley Carlock, Esq. Director of Environmental Advocacy Dated: January 8, 2016 Scenic Hudson, Inc. One Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 845-473-4440 (ext. 210) i TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................................... ii PRELIMINARY STATEMENT ................................................................................................. 1 INTEREST OF THE AMICI CURIAE ....................................................................................... 2 I. Riverkeeper’s Interest ....................................................................................................... 2 II. Scenic Hudson’s Interest ................................................................................................... 3 III. Clearwater’s Interest ......................................................................................................... 4 BACKGROUND ........................................................................................................................... 6 ARGUMENT ................................................................................................................................. 9 I. Entergy’s 2007 LRA for IP2 and IP3 is Subject to Review for Consistency with NYS Coastal Policies as Contemplated by the Federal CZMA .............................................. 9 II. NYSDOS Acted Rationally in Determining that the Exemption from Federal Coastal Consistency Review for Projects for Which a Final EIS Has Been Prepared Prior to September 28, 1982 Did Not Apply to Entergy’s Application for Permission to Operate the Facilities from 2013-2035 ........................................................................... 14 III. NYSDOS has Independent Grounds to Conduct a Coastal Consistency Review of Entergy’s LRA Due to the Various Material Changes that have Occurred in the Operations and Impacts of IP2 and IP3 Since Original Operating Licenses were Issued in the 1970s ........................................................................................................... 18 i. The Changed Hudson River Ecosystem ......................................................................... 19 ii. Cylindrical Wedgewire Screens and/or Other Cooling Water Intake Structure Technology ..................................................................................................................... 23 iii. Radiological Leaks and Groundwater Contamination .................................................. 25 iv. Changes in Understanding of Regional Seismicity ........................................................ 29 v. Long-Term Onsite Nuclear Waste Storage .................................................................... 31 CONCLUSION ............................................................................................................................. 34 ii TABLE OF AUTHORITIES Cases New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012) New York State Ass’n of Life Underwriters v. New York State Banking Dep’t, 83 N.Y.2d 353 (1994) Statutes and Regulations 10 C.F.R. Part 54 15 C.F.R. Part 923 15 C.F.R. § 930.51 15 C.F.R. § 930.53 6 N.Y.C.R.R. Part 617 19 N.Y.C.R.R. § 600.3 Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101, et seq. Coastal Zone Management Act of 1972, 16 U.S.C. §1451 et seq. Additional Authorities The Earth Institute, Columbia University, Earthquakes May Endanger New York More Than Thought, Says Study GZA, IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter Two 2015, Report No. 27 (December 22, 2015) NOAA, Office of Coastal Zone Management, New York State Coastal Management Program and Final Environmental Impact Statement iii NYS Department of Environmental Conservation, Final Environmental Impact Statement Concerning the Applications to Renew New York State Pollutant Discharge Elimination System (SPDES) Permits for the Roseton 1 & 2, Bowline 1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations, Orange, Rockland and Westchester Counties (June 25, 2003) Indian Point Nuclear Generating – Integrated Inspection Report 05000247/2015003 AND 05000286/2015003 (November 5, 2015) NYS Sea Level Rise Task Force Report to the Legislature (Dec. 31, 2010) Pisces Conservation Ltd., The Status of Fish Populations and the Ecology of the Hudson (2008) Pisces Conservation Ltd., The Status of Fish Populations and the Ecology of the Hudson (June 2015) U.S. NRC, Presentation, Near-term Task Force Recommendation 2.1 Seismic Hazard Evaluation, Entergy (June 19, 2014) U.S. NRC, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues. NRR Office Instruction No. LIC-203, Revision 2 (Feb. 2009) 1 PRELIMINARY STATEMENT Riverkeeper, Inc. (“Riverkeeper”), Scenic Hudson, Inc. (“Scenic Hudson”), and Hudson River Sloop Clearwater, Inc. (“Clearwater”), (collectively referred to as “amici”) respectfully submit this amicus curiae brief in support of the Respondents-Appellants’ appeal of the order of the Appellate Division, Third Department, entered December 11, 2014. The order that Respondents-Appellants are appealing reversed a sound and legally supported judgment of the Supreme Court (Lynch, J.), entered in Albany County on December 19, 2013, that the proposed license renewal of the Indian Point nuclear power plants (“Indian Point”) is not exempt from coastal consistency review by the New York State Department of State (“NYSDOS”). In reversing this decision, the Appellate Division, Third Department misinterpreted and misapplied the regulatory framework of New York State coastal consistency review. If permitted to stand, the Appellate Division’s decision would inappropriately undermine the critical New York State coastal consistency review process and erode the clear authority of NYSDOS to ensure that activities affecting State coastal resources, such as the proposed license renewal of environmentally destructive nuclear power plants, are conducted in a manner that is consistent with established State coastal policies. 2 In order to restore the correct interpretation of New York State’s authority to conduct a coastal consistency review, and to prevent Indian Point from unlawfully evading a necessary review process and inflicting increasing ecological harm upon NYS coastal resources for the proposed 20-year duration of the contemplated operating license extensions for reactor Units 2 and 3, it is of critical importance that the Court reverse the December 11, 2014 order of the Appellate Division, Third Department. INTEREST OF THE AMICI CURIAE I. Riverkeeper’s Interest Riverkeeper is a non-profit, membership-supported, environmental advocacy organization dedicated to the protection of the environmental, recreational and commercial integrity of the Hudson River and its tributaries, as well as the drinking water of nine million New York City and Hudson Valley residents. Riverkeeper is headquartered in Ossining, New York, approximately 10 miles from the Indian Point nuclear power plants, and has approximately 4,500 members, many of whom reside within 50 miles of the plants. These members, and their communities, are concerned about, and have an interest in, the impact of Indian Point on the coastal resources of the area, including the Hudson River ecosystem. Since its inception in 1966, Riverkeeper has used litigation, science, advocacy, and public education to raise and address concerns relating to 3 environmental impacts to NYS coastal areas, including those caused by the operation of the Indian Point facilities. In order to protect the Hudson River from degradation and misuse, Riverkeeper, on behalf of its members, enforces and facilitates others’ enforcement of environmental laws, including the Clean Water Act, Coastal Zone Management Act, Endangered Species Act, and New York’s Environmental Conservation Law, including the New York State Environmental Quality Review Act (SEQRA) and State Pollution Discharge Elimination System (SPDES) law. Riverkeeper has participated in and continues to participate in numerous legal proceedings involving various destructive and dangerous aspects of Indian Point’s operation, including the plants’ persistent use of an environmentally devastating cooling water intake system, radiological leaks to the Hudson River from degraded plant components, and the on-site storage of unsafe and ever- increasing inventories of hazardous nuclear waste. Riverkeeper is a party in the Federal license renewal proceeding currently pending before the U.S. Nuclear Regulatory Commission (“NRC”), which involves matters related to the instant appeal. II. Scenic Hudson’s Interest Scenic Hudson is a not-for-profit environmental organization and separately incorporated land trust dedicated to protecting and enhancing the scenic, natural, 4 historic, agricultural, and recreational treasures of the Hudson River and its valley. Scenic Hudson was originally founded to oppose the proposed Storm King Mountain pumped storage electrical generation facility. Since its incorporation, Scenic Hudson has been an active participant in efforts to promote environmentally sound development and protection of the Hudson River Valley. Scenic Hudson is dedicated to protecting and restoring the Hudson River, its riverfront and the majestic vistas and working landscapes beyond as an irreplaceable national treasure for America and a vital resource for residents and visitors. Scenic Hudson has approximately 20,000 members from New York State and the nation, a majority who reside in the counties along the Hudson River. Its supporters are regular users of the Hudson River for fishing, boating, swimming, and other activities. Scenic Hudson’s interests include protecting and improving the River’s water quality and aquatic life. III. Clearwater’s Interest Clearwater was established in 1966 as a New York not-for-profit corporation, and has been a leader in defending and restoring the Hudson River for the past 49 years. Its main offices are located within 30 miles of the Indian Point facilities. Clearwater is a membership organization with a total of 5,300 member- households. Each year, Clearwater accommodates nearly 20,000 children and adults for educational sails on the Hudson River on its wooden sailing sloop—the 5 Clearwater—conducting floating classrooms and laboratories within three miles of the Indian Point facilities, docking at both Verplanck and Peekskill and many other docks within 10 miles of the plants. Each year in June, Clearwater has held the Great Hudson River Revival Festival at Croton Point Park—seven miles from the Indian Point facilities—featuring arts and environmental education and advocacy events for more than 18,000 people. In addition, Clearwater provides educational programming for thousands more individuals on the history, biology, and environmental science of the Hudson River through on-land classroom visits, field programs and public exhibits in many areas within 10 and 50 miles of Indian Point. Since 1966, Clearwater has been actively engaged in investigating and researching contamination of the Hudson River; informing, educating, and assisting the public in preserving the Hudson River; fostering the historic and cultural heritage of the Hudson River Valley; and protecting the health, safety and well-being of the people living along and near the Hudson River. Clearwater's principal objective is to achieve a Hudson River ecosystem capable of sustaining the reproductive integrity, health and well-being of life at all levels. Clearwater was actively involved in addressing the environmental problems caused by Indian Point Unit 1 until the facility's closure in 1970, and has been actively involved in addressing the health, safety, environmental, and social justice issues created by Indian Point Units 2 and 3 since they received their 40-year 6 operating license in 1973 and 1975. Clearwater is a party in the Federal license renewal proceeding currently pending before the U.S. Nuclear Regulatory Commission (“NRC”), which involves matters related to the instant appeal. ~~~~~~~~~~~~~~~~~~ These three longstanding and venerable environmental organizations collectively represent tens of thousands of citizens who care about the coastal resources of New York and who stand to be negatively and improperly impacted by the Appellate Division’s decision for which Respondents-Appellants seek reversal. BACKGROUND Respondents-Appellants appeal stems from a request made by Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC (“Entergy”) to NYSDOS on November 5, 2012 for a declaratory ruling that Indian Point Unit 2 (“IP2”) and Indian Point Unit 3 (“IP3”) “are exempt from the consistency review provisions of the NYCMP [New York Coastal Management Program].” (Record on Appeal (hereinafter “R.”) at 44-48). In its request, Entergy argued that its April 30, 2007 license renewal application (“LRA”) to the NRC seeking 20-year operating life extensions for IP2 and IP3 contemplated no material change in plant operations and is not subject to the New York State Coastal Management Program (NYS CMP) because IP2 and IP3 (1) 7 were identified as “grandfathered” under SEQRA at the time SEQRA was enacted in 1976, and (2) had been the subject of federal Environmental Impact Statements (“EISs”) prepared under the National Environmental Policy Act (“NEPA”) by the Atomic Energy Commission (AEC) (the predecessor agency to the NRC) in 1972 and 1975, prior to NYSDOS’s coastal management regulations becoming effective on September 28, 1982. (R. at 46-47). On January 9, 2013, NYSDOS denied Entergy’s request for declaratory relief, finding (1) that the exemption from federal coastal consistency review for projects identified as grandfathered under SEQRA was not applicable to IP2 or IP3 (R. at 494), and (2) that the exemption from federal coastal consistency review1 for projects for which a final EIS have been prepared prior to September 28, 1982 applies only when an EIS has been prepared under SEQRA, and not to a NEPA- based environmental review. (R. at 497). NYSDOS further found that “substantial changes in operations [at Indian Point] require application of consistency to Entergy’s relicensing application.” (R. at 500). Subsequently, on or about March 13, 2013, Entergy filed a petition- complaint with the State of New York Supreme Court to dispute NYSDOS’s determination. (R. at 24-43). On December 13, 2013, Hon. Michael C. Lynch 1 “Federal coastal consistency review” refers to review of proposed federal actions by NYSDOS to determine if those actions are consistent with New York’s Coastal Management Program, which was prepared and approved pursuant to the Coastal Zone Management Act. See Brief for Respondents-Appellants at 7-11. 8 issued a judgment dismissing Entergy’s petition and denying Entergy’s request for declaratory judgment, finding that Entergy’s LRA for IP2 and IP3 pending with the NRC was “not exempt from consistency review.” (R. at 17). Entergy thereafter, on or about January 22, 2014, appealed the decision of the Supreme Court to the Appellate Division, Third Department. (R. at 2). On December 11, 2014, the appellate court issued an Opinion and Order reversing the judgment of the Supreme Court below, granting Entergy’s petition, and declaring that IP2 and IP3 are exempt from requirements of the NYS CMP. (R. at 4603- 4611 (Entergy Nuclear Operation, Inc. v. NYS Dep’t of State, Opinion and Order (App. Div. 3d Dep’t, Dec. 11, 2014), hereinafter cited as “Appellate Division Dec. 11, 2014 Opinion and Order”)). The Appellate Division wrote that the second exemption from consistency review under the NYS CMP applied to Entergy’s LRA for IP2 and IP3 because final EISs prepared pursuant to NEPA were completed for IP2 and IP3 in 1972 and 1975, respectively. See id. It is from the decision of the Appellate Division, Third Department, that Respondents-Appellants, NYSDOS et al., have appealed. Respondents-Appellants have presented three questions for consideration by the Court of Appeals: (1) whether Entergy’s 2007 application for 20-year operating license renewal extensions for IP2 and IP3 is subject to coastal consistency review by NYSDOS, as contemplated by the federal Coastal Zone Management Act (CZMA); (2) 9 whether NYSDOS acted rationally in determining that the exemption from federal coastal consistency review for projects for which a final EIS has been prepared prior to September 28, 1982 did not apply to the federal action of renewing the operating licenses of IP2 and IP3; and (3) whether material changes to the operations at Indian Point since the plants’ original licensing independently support NYSDOS’s coastal consistency review of Entergy’s LRA for IP2 and IP3. (See Brief for Respondents-Appellants at 5-6). ARGUMENT The Court of Appeals should reverse the December 11, 2014 Order of the Appellate Division, Third Department because the lower court clearly erred in determining that the LRA for IP2 and IP3 is exempt from review for consistency with the NYS CMP, as described in greater detail below. I. Entergy’s 2007 LRA for IP2 and IP3 is Subject to Review for Consistency with NYS Coastal Policies as Contemplated by the Federal CZMA Respondents-Appellants correctly explain that Entergy’s current application for license renewal for IP2 and IP3 constitutes a separate federal action for which the exemption at issue is not relevant. The federal CZMA was enacted in 1972 to encourage coastal States to be proactive in managing natural resources for their benefit and the benefit of the United States. See Coastal Zone Management Act of 1972 [“CZMA”], 16 U.S.C. 10 §1451 et seq. The CZMA directs those States that choose to participate to establish and implement a Coastal Management Program (“CMP”) for managing the natural resources found in the coastal zones. See CZMA § 306(d); 15 C.F.R. part 923. The cornerstone of the CZMA is the Federal consistency provision, which provides participating States with a powerful and important tool to manage future resource use in the coastal zone. See CZMA § 307, 16 U.S.C. 1456. This provision requires that the Federal agency actions that result in effects on coastal resources must be consistent with the enforceable policies of a state’s CMP. CZMA § 307, 16 U.S.C. §1456(c)(1)(A). Federal activities subject to the consistency provisions of the CZMA include Federal licensing activities, and in particular certain Federal license renewal activities. 15 C.F.R. § 930.51. Moreover, State CMPs—Including New York’s—list which federal activities are presumed to have effects on the coastal zone and thus automatically require a consistency review. 15 C.F.R. § 930.53; see R. 286, 293, 295 (NRC licenses and renewals). In New York, in recognition of the unique and critical nature of State coastal resources and the various threats thereto, NYSDOS prepared a CMP, originally approved by NOAA in 1982, which contains forty-four (44) coastal policies with which Federal agency actions must be consistent. (R. at 49-485 (NOAA, Office of Coastal Zone Management, New York State Coastal Management Program and 11 Final Environmental Impact Statement (NYS CMP))). The NYS CMP designates NYSDOS “as the State’s agency responsible for reviewing federal activities as to their consistency with the CMP.” (R. at 283 (NYS CMP at § II-9, p.8)). NYSDOS “must ensure” that federal activities, including activities requiring federal licenses, are consistent with the NYS CMP, and that such activities, in fact, advance NYS coastal policies. (R. at 364, 380, 141 (NYS CMP at § IX p.20; IX p.36; II-6 p.1)). Under Federal law and the NYS CMP, NRC license renewals for nuclear power plants require a consistency review by NYSDOS. The NYS CMP plainly establishes that NRC nuclear power plant license renewal activities are subject to the Federal consistency provisions of the CZMA. In particular, the NYS CMP lists nuclear power plant relicensing activities as a specific federal regulatory activity requiring a consistency review by NYSDOS: per federal regulations, the NYS CMP includes a list of “[t]he specific federal regulatory activities subject to consistency review by DOS.” (R. at 287 (NYS CMP at § II-9 p.12). The list of Federal licensing activities that are unequivocally “subject to the consistency provisions of the” CZMA and the NYS CMP includes the following actions undertaken by the NRC: “[l]icensing and certification of the siting, construction, and operation of nuclear power plants, pursuant to Atomic Energy Act of 1954, Title II of the Energy Reorganization Act of 1974 and the National Environmental Policy Act of 1969.” (R. at 293, 295 (NYS CMP at § II-9 pp.18, 20) (emphasis 12 added)). This specifically encompasses “renewals . . . to such regulatory approvals.” (R. at 286 (NYS CMP at § II-9 p.11). “[NYS]DOS will review these activities for their consistency with New York’s CMP.” (R. at 287 (NYS CMP at § II-9 p.12) (emphasis added)). Notably, NRC has acknowledged that nuclear power plant license renewal actions require a coastal consistency certification. In particular, NRC’s guidance recognizes that “[a]ctivities of Federal agencies that are reasonably likely to affect coastal zones are required to be consistent with the approved CMP of the State or territory to the maximum extent practical.” U.S. NRC, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues. NRR Office Instruction No. LIC-203, Revision 2 (Feb. 2009), available at, http://pbadupws.nrc.gov/docs/ML0808/ML080840323.pdf at 7 (excerpt included in Amicus Curiae Appendix as Attachment 1). This guidance further recognizes that “[i]f a Federal agency receives an application for a permiting [sic]/licensing activity that has been pre-listed in a State’s CMP, that agency has an obligation to withhold the permit/license approval until the State has concurred on the consistency determination.” Id. at 8. NRC’s guidance explains that nuclear power plant license renewals are “typically” “listed activities.” Id. at 9; see id. (“Upon receipt of an application for a listed activity (e.g. license renewal, [NRC Staff shall] ensure that the licensee has provided a Federal consistency certification.”) 13 (emphasis in original). Furthermore, NRC’s guidance acknowledges that NOAA “regulations specifically require Federal consistency certification for license renewal . . . that will affect any coastal use or resource” and explicitly states that nuclear power plant “license renewal applications” constitute “NRR [NRC Office of Nuclear Reactor Regulation] licensing actions requiring a Federal consistency certification.” Id. at 8. The unambiguous regulatory scheme for Federal consistency certification, as implemented in New York State through its CMP, establishes that Entergy’s new request for license renewal of IP2 and IP3 requires a coastal consistency determination by NYSDOS. That license renewal activities for nuclear power plants is specifically contemplated by NYS (in the NYS CMP) and NRC as requiring consistency review makes sense, since license renewal constitutes an action that is entirely distinct and separate from an original licensing activity. Indeed, as Respondents-Appellants point out, the proposed license renewal of a nuclear power plant implicates an entirely new and, notably, different review process, involving a different set of reviewable matters and regulatory requirements. See 10 C.F.R. Part 54. The Appellate Division’s ruling that the Indian Point LRA falls under an exemption from consistency review because “[f]inal environmental impact statements [were] . . . completed . . . in 1972 and 1975,” (R. at 4609) is clearly 14 incorrect and patently inappropriate, since the referenced federal EISs related only to the original licensing activities for IP2 and IP3, a different, earlier action. Indeed, separate, final EISs related specifically to the license renewal are required, and have yet to be completed. Entergy cannot be allowed to rely on decades old “final EISs” that have very little, if any, relevance to the current action.2 Allowing the lower court’s ruling to stand would inappropriately undermine the clear regulatory framework of coastal consistency review in NYS, and, thus, the December 11, 2014 Order of Appellate Division, Third Department must be reversed. II. NYSDOS Acted Rationally in Determining that the Exemption from Federal Coastal Consistency Review for Projects for Which a Final EIS Has Been Prepared Prior to September 28, 1982 Did Not Apply to Entergy’s Application for Permission to Operate the Facilities from 2013-2035 A proper reading of the actual exemption on which the Appellate Division relied for its ruling further underscores the inappropriateness of its application to the current Indian Point LRA. As Respondents-Appellants correctly explain, NYSDOS rationally interpreted the NYS CMP’s second exemption from federal coastal consistency review (for projects for which a final EIS has been prepared 2 Notably, the environmental review conducted by AEC in the 1970s implicated very different environmental impacts, since those reviews contemplated that IP2 and IP3 would run in an entirely different manner—with closed-cycle cooling—than it actually ended up with—once- through cooling. Such circumstances make those decades-old reviews particularly unhelpful and inapplicable, and serve to demonstrate further the reasonableness of NYSDOS’s determination to deny Entergy’s request for exemption from coastal consistency review. 15 prior to September 28, 1982) to apply only to actions reviewed under State law during a specific time period and unequivocally not to the current federal action to renew the operating licenses of IP2 and IP3. That determination was entitled to deference. The Appellate Division’s reversal and holding that IP2 and IP3 are exempt from coastal consistency review is based on a flawed interpretation and application of the relevant exemption. The exemption for which the Appellate Division based its determination specifically states, in pertinent part, the following: The projects which meet one of the following two criteria . . . will not be subject to review pursuant to the Federal consistency procedures of the Federal Coastal Zone Management Act of 1972 . . . (2) those projects for which a final Environmental Impact Statement has been prepared prior to the effective date of the Department of State Part 600 regulations [see Appendix A, DOS Consistency Regulations, NYCRR Title 19, Part 600, [600.3(d)]].3 (R. at 276 (CMP § II-9 p.1)). The Appellate Division acknowledged that EISs under SEQRA were not prepared for IP2 and IP3 since the units went into operation prior to the enactment of SEQRA, but found that because final EISs were prepared under NEPA for IP2 and IP3 in 1972 and 1975, respectively, for their 40- year operating licenses, then “applying the plain meaning of the language in the CMP, Indian Point 2 and Indian Point 3 are exempt from consistency review.” (R. 3 As the Appellate Division explained, the bracketed provision in the NYS CMP contained a typographical error in the original text, and it is not disputed that it is intended to refer to 19 NYCRR 600.3(d). See R. at 4608. 16 at 4609). However, this reading of the second exemption fails to apply the exemption’s actual scope accurately. In particular, the language describing and providing context for the subject exemption makes it unequivocally clear that it is only applicable when a final EIS has been prepared pursuant to SEQRA. That is, the exemption specifically refers to NYSDOS Consistency Regulation 19 NYCRR § 600.3(d). (R. at 276 (CMP § II-9 p.1)). In turn, the fourth subsection of 19 NYCRR § 600.3 provides that [t]his Part shall not apply to action for which a final environmental impact statement has been prepared or for which a determination has been made that the action will not have a significant effect on the environment, pursuant to 6 NYCRR Part 617 prior to the effective date of this Part. 19 NYCRR § 600.3(d) (emphasis added). The regulations cited are those implementing SEQRA. 6 NYCRR Part 671. Thus, the exemption articulated in the NYS CMP explicitly cites to and relies on 19 NYCRR 600.3(d), which only exempts actions that have been subject to a review under SEQRA. The “plain language” of the applicable regulatory framework could not be more clear. Accordingly, there is an unambiguous basis for NYSDOS’s interpretation of the exemption, fundamentally misunderstood in the Appellate Division’s statement that “[t]here is simply no basis in law for injecting such a requirement [that the final EIS be prepared pursuant to SEQRA].” (R. at 4609). Indeed, it is the Appellate Division that has overstepped with its interpretation and improperly 17 expanded the scope of the exemption provided for in the NYS CMP. Such a drastically unfounded view of the coastal consistency regulatory framework must be corrected. A proper reading of the NYS CMP and associated regulations shows that NYSDOS’s determination that NEPA-based EISs prepared for Indian Point’s original operating licenses in 1972 and 1975 did not qualify to exempt Entergy’s LRA for IP2 and IP3 from consistency review, (see R. at 497), was neither irrational nor unreasonable. The agency’s fundamentally correct and reasonable decision was entitled to deference and should have been upheld. See R. at 4609 (Appellate Division Dec. 11, 2014 Opinion and Order at 5 (citing Matter of Marzec v. DeBuono, 95 NY2d 262, 266 (2000); CPLR 7803(3)); New York State Ass’n of Life Underwriters v. New York State Banking Dep’t, 83 N.Y.2d 353, 359-60 (1994) (citing Matter of Howard v. Wyman, 28 N.Y.2d 434, 438 (1971) (explaining that “[i]t is well settled that ‘the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld’” and that deference to such construction is warranted where the interpretation involves knowledge and understanding of underlying operational practices)). The Appellate Division’s misinterpretation of the NYS CMP and unjustified expansion of the scope of the exemption provided therein clearly warrants reversal. 18 III. NYSDOS has Independent Grounds to Conduct a Coastal Consistency Review of Entergy’s LRA Due to the Various Material Changes that have Occurred in the Operations and Impacts of IP2 and IP3 Since Original Operating Licenses were Issued in the 1970s The Appellate Division’s flawed determination that federal EISs prepared under NEPA for the original 1970s Indian Point operating licenses exempt Entergy’s LRA from review under the NYS CMP further ignores the fact that NYSDOS’s denial of Entergy’s November 5, 2012 request for declaratory ruling was properly and alternatively based on the fact that, even if the original operating licenses for IP2 and IP3 did qualify for an exemption from consistency review (which they unequivocally do not), a consistency review of Entergy’s LRA for IP2 and IP3 is warranted and necessary because various changes in plant operations and impacts have occurred since the time the original operating licenses were issued. (R. at 497-500). That is, even if the 1972 and 1975 NEPA EISs qualified as previous reviews capable of exempting Entergy’s LRA from review under the NYS CMP (which they do not), applicable regulations require a consistency review to be conducted for license renewals that “will cause an effect on any coastal use or resource substantially different than those originally reviewed.” 15 C.F.R. § 930.51(b)(3). NYSDOS’s initial determination to deny Entergy’s request for declaratory ruling soundly identified various material changes in plant operations as well as the regulatory landscape since IP2 and IP3 were reviewed under NEPA in the 1970s. 19 These changes demonstrated NYSDOS’s independent and alternative ground for requiring a coastal consistency review in relation to Entergy’s LRA. Indeed, various changed circumstances and conditions at IP2 and IP3 have resulted and will continue to result in substantially different coastal effects, which necessitate a Federal consistency review. Entergy’s representations in its November 5, 2012 Petition for Declaratory Ruling that “the LRA contemplates no material change in the footprint or facilities of the Indian Point plants” or “any changes in the design or operations of the plants during the anticipated license renewal period” (R. at 47), is belied by clear evidence to the contrary. Numerous changed circumstances and substantial differences relating to the impacted environment and the current and/or future operation of Indian Point indisputably result in, or will result in, new and varying coastal impacts that have not been subject to a Federal consistency determination by NYSDOS. These substantial differences provide a clear basis and authority for NYSDOS’ denial of Entergy’s request for exemption from coastal consistency review, which the Appellate Division failed to consider. i. The Changed Hudson River Ecosystem Since IP2 and IP3 were initially licensed, the aquatic ecology of the Hudson River, which is indisputably impacted by the operation of Indian Point and its once-through cooling water intake system, has significantly changed. The NYS 20 Department of Environmental Conservation (NYSDEC) has acknowledged that various important fish species in the Hudson River are showing trends of declining abundance, including American shad, white perch, Atlantic tomcod and rainbow smelt. See NYS Department of Environmental Conservation, Final Environmental Impact Statement Concerning the Applications to Renew New York State Pollutant Discharge Elimination System (SPDES) Permits for the Roseton 1 & 2, Bowline 1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations, Orange, Rockland and Westchester Counties (June 25, 2003) at 57, available at, http://www.riverkeeper.org/wp-content/uploads/2015/04/Attachment-1-HRPP- FEIS-Excerpt.pdf (excerpt included in Amicus Curiae Appendix as Attachment 2) (hereinafter “Hudson River Power Plant 2003 FEIS (Attachment 2)”). NYSDEC has explained as follows: Declines in the abundances of several species and changes in species composition raises concerns and questions regarding the health of the River’s fish community. The Hudson River environment has undergone a number of significant changes in recent decades. In addition to changes directly attributable to power plants, these changes include: water quality, especially as a result of major improvements in sewage treatment; invasions by exotic species such as water chestnut and zebra mussels; hazardous substances contamination, especially PCBs, Organochlorine pesticides and heavy metals; global climate change, which includes both increasing annual mean temperatures and higher frequencies of extreme weather events; and the management of individual species, such as striped bass, which have undergone strict regulation for both the recreational and commercial fisheries. Each is a stressor, to a greater or lesser extent, on the River’s biota. 21 See id. at 58-59. A Riverkeeper-commissioned report released in May 2008 similarly indicated an increasingly unstable Hudson River ecosystem and long-term declines for several signature Hudson River fish species. In this report, aquatic biologist expert consultants Pisces Conservation Ltd., analyzed power plant operator data and concluded that ten of thirteen key Hudson River fish species are in long-term population decline. See Pisces Conservation Ltd., The Status of Fish Populations and the Ecology of the Hudson (2008), available at http://www.riverkeeper.org/wp-content/uploads/2009/06/Status-of-Fish-in-the- Hudson-Pisces1.pdf (excerpt included in Amicus Curiae Appendix as Attachment 3) (hereinafter “Pisces Report (Attachment 3)”). The Pisces Report explained that “[t]here are clear indications, both at the community and individual population levels, that the populations of fish in the estuary are becoming less stable and showing greater year to year variation in abundance” and concluded that the stability of the Hudson River ecosystem was declining and in not in a healthy state. Pisces Report (Attachment 3) at 38-39. A more recent and updated analysis of available data by Pisces in 2015 revealed a worsening situation. In this updated analysis, Pisces confirmed its previous findings regarding the state of the Hudson River ecosystem, and alarmingly found that even species that had previously shown positive trends were 22 now shown to be in decline; the 2015 Pisces report maintained the earlier conclusion that “[a]ll the evidence points to the Hudson ecosystem presently being in a state of change, with declining stability” and that “[n]either the ecosystem as a whole nor many of the individual species populations are in a healthy state.” See Pisces Conservation Ltd., The Status of Fish Populations and the Ecology of the Hudson (June 2015), (included in Amicus Curiae Appendix as Attachment 4) (hereinafter “2015 Pisces Report (Attachment 4)”). The operation of IP2 and IP3 has already caused, and continues to cause, significant impacts to the aquatic ecology of the Hudson River. (See R. at 3138, 3144, 3147). In particular, destructive once-through cooling water intake structures withdraw approximately 2.5 billion gallons of Hudson River water per day, resulting in “the mortality of nearly one billion aquatic organisms per year.” (See R. at 3147).4 Any kind of ongoing, additional aquatic impacts caused by the extended operation of IP2 and IP3 during the proposed 20-year license renewal periods will clearly have different (including cumulative) impacts to coastal resources than those that were the subject of the AEC’s EISs from the 1970s in light of the currently 4 NYSDEC has expressly recognized that “[t]he millions of fish that are killed by power plants each year represent a significant mortality and are yet another stress on the River’s fish community” that “must be taken into account when assessing the[] [identified] population declines.” Hudson River Power Plant 2003 FEIS (Attachment 2) at 58-59. See also 2015 Pisces Report (Attachment 4) at 28 (American shad has been declining in the Hudson for many years because of overfishing, pollution and other anthropogenic effects (such as entrainment and impingement at power plants like Indian Point)”). 23 changed, destabilized, condition of the Hudson River ecosystem and fish populations. ii. Cylindrical Wedgewire Screens and/or Other Cooling Water Intake Structure Technology Entergy’s position that it seeks to operate IP2 and IP3 in the same manner as it currently operates the plants is, at best, disingenuous, and misrepresents the factual record. In reality, Indian Point currently operates pursuant to a 25-year-old, outdated, administratively-extended SPDES permit, which is currently the subject of renewal proceeding before the NYSDEC. (See R. at 3141-3143, 3149-3152). Because Entergy’s “current” permit does not comply with existing best technology available (“BTA”) requirements, the ongoing permit proceeding will result in the modification of said permit to ensure Entergy implements BTA for minimizing the adverse environmental impacts caused by the operation of Indian Point’s existing once-through cooling water intake structures. (See id.). In particular, because the existing once-through cooling water system for IP2 and IP3 is highly destructive and causes devastating and significant impacts to NYS coastal resources, including the mortality of nearly one billion aquatic organisms every year, (see e.g., R. at 3144, 3147), the NYS Department of Environmental Conservation (NYSDEC) issued a draft SPDES permit that requires the implementation of BTA, i.e., a closed-cycle cooling water intake structure to reduce current aquatic impacts. As an alternative, Entergy proposes instead to 24 install an array of cylindrical wedgewire screens (“wedgewire screens”), discussed below. (See R. at 3151, 3153-3154). In addition, NYSDEC denied Entergy’s request for a necessary water quality certification (“WQC”) pursuant to Clean Water Act (“CWA”) § 401, based upon Indian Point’s present and continuing violations of the New York water quality standards, including NYS’s BTA requirement. (See generally R. at 3137-3159). After the conclusion of the currently pending SPDES permit renewal proceeding, as well as the administrative appeal Entergy has brought to challenge NYSDEC’s denial of a CWA § 401 WQC, if Entergy continues to operate IP2 and IP3, the plants will likely be required to operate in a manner that differs considerably from its current operations. (See R. at 3141-3143, 3149-3152). This is foreseeable because, in order to keep operating, Entergy must comply with the CWA and all State water quality standards and criteria. Entergy has yet to achieve such compliance. Any design and operational changes resulting from the outcome of ongoing NYSDEC proceedings will unquestionably result in substantial differences in the impact of Indian Point’s operation on the Hudson River. Notably, the construction and operation of Entergy’s wedgewire screens proposal would undoubtedly impact the physical, chemical, and biological parameters of water quality and impact and/or displace benthic fauna and habitat and otherwise directly and indirectly impact various critical fish species in the 25 Hudson River. The Entergy cylindrical wedgewire screen proposal would require a large array of underwater metal structures to rest on a significant area of the bed of the Hudson River where aquatic organisms forage, migrate, and seek to avoid unsuitable thermal discharge plumes from Indian Point. Moreover, wedgewire screens at Indian Point would only marginally reduce the devastating entrainment impacts of Indian Point’s current cooling water system (see R. at 3153-3157), and would cause or continue cumulative environmental harm to the aquatic ecology of the Hudson River. In short, NYSDEC’s ongoing proceedings will result in substantially different environmental effects on coastal resources that are relevant to, and necessarily require, NYSDOS’s Federal consistency review. iii. Radiological Leaks and Groundwater Contamination Accidental radiological water leaks have been a persistent problem at Indian Point. Such leaks have occurred from cracked and degraded spent fuel pools, as well as from a variety of other components. (See, e.g., R. at 2919-2920, 2926- 2927, 2940-2941, 2953-2958). Decades of inadvertent releases and leaks of radioactive water have resulted in at least two extensive contaminated groundwater plumes underlying the site, discovered by Entergy around 2005, which indisputably leach through the bedrock and discharge into the Hudson River (See, 26 e.g., R. at 2926-2927, 2937-2939), impacting critical coastal resources of New York State. Entergy’s most recent plume assessment maps, which are included in the Amicus Curiae Appendix as Attachment 5, depict tritium and strontium-90 activity in blue and green respectively, and indicate the persistence of the radionuclide contamination; the diagrams show that contamination continues to saturate NYS groundwaters and be detected at discernible levels at the river interface. See GZA, IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter Two 2015, Report No. 27 (December 22, 2015) at Figures 6, & 7, available at, http://www.safesecurevital.com/uploads/15-12-22-Q2-2015.pdf (excerpt included in Amicus Curiae Appendix as Attachment 5) (hereinafter “GZA Q2 2015 Groundwater Report (Attachment 5)”).5 Entergy’s consultant reveals that the contaminated groundwater continues to “flow only toward the [Hudson] river to the west,” and that exceedances of radionuclide investigation levels occurred in 20 system, structure, and component monitoring wells. GZA Q2 2015 Groundwater Report (Attachment 5) at p.3-5. Several samples exceed maximum contaminant levels established by the U.S. 5 The plume data contained in the diagrams, which is not readily discernible in the figures due to the native size of the document which was condensed for inclusion in the Amicus Curiae Appendix, indicate that tritium continues to be detected in monitoring wells leading to the Hudson River; these details are more readable in the same diagrams from the native document via the link provided above. 27 Environmental Protection Agency for radionuclides in drinking water under the Safe Drinking Water Act. See id. at p.3-6; R. at 3020 (stating water standard for tritium (H-3) as 20,000 pCi/l and for Strontium-90 (Sr-90) as 8 pCi/l); R. at 2817 (NRC Report explaining that “the EPA limit of tritium concentration in drinking water is 20,000 pCi/l; and for strontium-90, 8 pCi/l.”). The ongoing nature of Indian Point’s radiological releases is underscored by the new leaks recently identified, but not yet adequately addressed. A November 2015 NRC inspection report identifies yet another new leak at Indian Point, which NRC characterized as the result of Entergy failing to thoroughly evaluate and prevent potential leaks and monitor effectively. See Indian Point Nuclear Generating – Integrated Inspection Report 05000247/2015003 AND 05000286/2015003 (November 5, 2015), available at, http://adamswebsearch.nrc.gov/webSearch2/view?AccessionNumber=ML15316A 083, at 33-38 (excerpt included in Amicus Curiae Appendix as Attachment 6) (hereinafter “NRC November 2015 Inspection Report (Attachment 6)”). The report confirms that Entergy has found persistently elevated concentrations of tritium in on-site monitoring wells, including tritium concentrations of 938,300 pCi/l in February 2015, and tritium concentrations 426,500 pCi/l in August 2015, which are “indicative of a new release.” See NRC November 2015 Inspection Report (Attachment 6) at 36. Entergy’s difficulty and delays in determining the 28 sources and causes of radiological leakage at Indian Point result in months if not years of active releases, (see NRC November 2015 Inspection Report (Attachment 6)),which Entergy admits are released into NYS coastal resources (i.e., groundwater and the Hudson River). See, e.g., GZA Q2 2015 Groundwater Report (Attachment 5) at p.3-5; see also R. at 2829, 2842). Because of the aging and degraded condition of susceptible plant components, coupled with Entergy’s reliance on reactive groundwater monitoring (see, e.g., R. at 2927-2930, 2959, 3012) (which is apparently ineffective at Indian Point for purposes of expeditiously determining leak sources and causes), and failure otherwise to implement measures to anticipate and avert future accidental radiological leaks, it is highly foreseeable that the operation of Indian Point for 20- year license renewal terms will result in additional, ongoing, and future accidental releases of radioactive water. Accidental radiological releases at Indian Point implicate, or over time may implicate, a variety of negative environmental impacts to waters of NYS, such as impacts of bioaccumulation of toxic radionuclides in aquatic organisms, impacts to the use of the Hudson River as a drinking water source, impacts to adjacent and nearby state and Federally designated critical coastal habitats (including the Hudson Highlands and Haverstraw Bay Significant Coastal Fish and Wildlife Habitats), impacts to recreational uses of the Hudson River, and violations of 29 various State environmental standards. (See R. at 3147). Radiological leaks and contamination are, thus, highly relevant to a Federal coastal consistency review and determination. Though radiological leaks and releases have occurred at Indian Point for decades, Entergy only “discovered” the groundwater plumes that continue to contaminate the Hudson River relatively recently in 2005 (see, e.g., R. at 2919- 2921, 2924). Thus, radiological leaks and groundwater contamination at Indian Point are clearly new matters that have occurred since IP2 and IP3 were initially licensed and subject to environmental review by AEC under NEPA. Certainly, the impacts of radiological leaks and contamination at Indian Point have never been subject to a Federal coastal consistency by NYSDOS, and must be in light of their relevance to and substantially different impacts to the State’s coastal resources. iv. Changes in Understanding of Regional Seismicity The understanding of regional seismicity in New York’s Hudson Valley has changed significantly since IP2 and IP3 began operating. In particular, according to seismologists from Columbia University’s Lamont-Doherty Earth Observatory, Indian Point is not in an area of low seismicity as was previously thought and it is “quite possible” that the region surrounding the Indian Point plant could experience a 6.0 or even 7.0 magnitude earthquake. See The Earth Institute, Columbia University, Earthquakes May Endanger New York More Than Thought, 30 Says Study, available at, http://www.earth.columbia.edu/articles/view/2235 (included in Amicus Curiae Appendix as Attachment 7). Recent updated seismic hazards analyses by Entergy and the NRC revealed significantly higher ground motion seismic hazard curves than the Safe Shutdown Earthquake—SSE—design curves understood to be applicable when IP2 and IP3 received their initial operating licenses in the 1970s: See U.S. NRC, Presentation, Near-term Task Force Recommendation 2.1 Seismic Hazard Evaluation, Entergy (June 19, 2014) at slides 6-7, available at, http://pbadupws.nrc.gov/docs/ML1416/ML14169A489.pdf (excerpt included in Amicus Curiae Appendix as Attachment 8) (hereinafter “NRC Seismic Hazard Evaluation (Attachment 8)”).6 6 In these charts, “Licensee_SSE” (blue line) indicates the licensee’s Safe Shutdown Earthquake design curve approved when IP2 and IP3 were initially licensed in the 1970s; Licensee GMRS (ground motion response spectra) (red line) indicates the licensee’s updated seismic ground motion design curve prepared in 2014; and NRC GMRS (green line) indicates NRC’s updated seismic ground motion design curve prepared in 2014. See NRC Seismic Hazard Evaluation (Attachment 8). 31 The fact that IP2 and IP3 are now known to be subject to greater risk from seismic hazards than was once thought raises a variety of concerns, may with environmental and coastal resource implications: malfunctions and failures of systems, structures, and components that may occur as a result of an earthquake can cause significant environmental impacts, including large scale radiological releases.7 Such impacts are far different from those contemplated when IP2 and IP3 were subject to NEPA reviews in the 1970s. For example, AEC’s review of Indian Point Units 2 indicated its understanding that “[t]here are no truly major faults in or near the site.” (R. at 577). This understanding is no longer accurate, and, clearly increased seismic risk at Indian Point has never been considered in the context of a federal coastal consistency review. v. Long-Term Onsite Nuclear Waste Storage Approximately 1,500 metric tons of high level nuclear waste that has been generated by Indian Point Units 1, 2, and 3 is currently stored onsite. If IP2 and IP3 are relicensed and continue to operate for 20 years, these reactors would produce approximately 1,000 additional tons of such waste. The facilities’ original licenses did not contemplate that nuclear waste generated by such facilities would 7 Such concerns are exacerbated by the fact that Entergy has failed to address risks posed by seismic activity by proactively upgrading plant systems and components. For example, Entergy refuses to implement various severe accident mitigation alternatives that have already been found to be cost-beneficial in the context of an NRC analysis in the federal Indian Point license renewal proceeding. 32 remain onsite, particularly since the Federal government originally was required to develop a national, permanent repository for all of the nation’s nuclear waste. See Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101 et seq. However, this repository has yet to materialize, and the current reality is that nuclear waste will remain at particular reactor sites like Indian Point indefinitely, if not permanently. See New York v. NRC, 681 F.3d 471, 473, 478-79 (D.C. Cir. 2012) (acknowledging that spent nuclear waste may remain onsite at individual nuclear power plants indefinitely). Thus, the long-term and/or permanent storage of thousands of tons of spent nuclear fuel at Indian Point is a previously unanticipated, i.e. substantially different, circumstance that will result in a variety of impacts that have indisputably never been assessed in the context of a Federal coastal consistency review. Significant risks and impacts are posed by the circumstance of long-term, if not permanent, storage of thousands of tons of nuclear waste on the banks of the Hudson River. See generally New York v. NRC, 681 F.3d at 479-83. Such impacts were entirely unfathomed, let alone analyzed, at the time IP2 and IP3 were originally subject to NEPA reviews in the 1970s. Relevant here, the prospect of permanent onsite nuclear waste storage at Indian Point poses numerous risks of spent fuel pool fires and radiological leaks (which have already occurred and continue to occur, as discussed above), as well 33 as risks to dry casks, which, at IP2 and IP3, were licensed for the purpose of storing nuclear waste for just 20 years. The permanent use of aging and already degraded nuclear waste storage structures at Indian Point is likely to result in environmental impacts, especially in light of increased risks of natural disasters, including risks posed by earthquakes as discussed above, as well as, storm surges, hurricanes, sea level rise, etc. Indeed, a 2010 NYS Sea Level Rise Task Force report to the NYS legislature explains drastic future sea level rise projections and associated increases in shoreline inundation, flooding, storm surges, and severe weather events. See NYS Sea Level Rise Task Force Report to the Legislature (Dec. 31, 2010), available at, http://www.dec.ny.gov/docs/administration_pdf/slrtffinalrep.pdf (excerpt included in Amicus Curiae Appendix as Attachment 9). Such natural disasters could affect the structural integrity of nuclear waste storage structures at IP2 and IP3. Long-term nuclear waste storage, thus, may result in wide-ranging, serious, and highly relevant coastal effects that are different from those originally contemplated when IP2 and IP3 were initially licensed, and which have never been, and should be, subject to a Federal coastal consistency determination. ~~~~~~~~~~~~~~~~~~ Based on the foregoing, the proposed license renewal of IP2 and IP3 clearly implicates various materially different coastal effects for which a Federal coastal consistency determination is necessary and appropriate. The, Appellate Division's complete failure to consider this alternative basis ofNYSDOS's denial of Entergy' s request for declaratory ruling renders its determination fundamentally flawed and necessitates reversal by the Court of Appeals. CONCLUSION Coastal consistency review ofEntergy's LRA for IP2 and IP3 is not exempted under the NYS CMP in the manner found by the Appellate Division, and, in any event, NYSDOS has the authority to conduct such a review in light of numerous material changes that have occurred in plant operations and impacts since original operating licenses were issued to the plants in the 1970s. Accordingly, the amici respectfully urge this Court to reverse the order of the Appellate Division, Third Department, entered December 11, 2014, which would improperly preclude the required consistency review process. 34 Respectfully submitted, Deborah Brancato, Esq. Staff Attorney Riverkeeper, Inc. 20 Secor Road Ossining, NY 10562 914-478-4501 (ext. 230) dbrancato@riverkeeper .org 35 Hayley Carlock, Esq. Director of Environmental Advocacy Scenic Hudson, Inc. One Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 845-473-4440 (ext. 210) hcarlock@scenichudson.org Manna Jo Greene Environmental Action Director Hudson River Sloop Clearwater 724 Wolcott Ave Beacon, NY 12508 845-265-8080 (ext. 7113) mannajo@clearwater.org Dated: January 8, 2016 Ossining, NY App. Div. Third Dept. No. 518510; Albany Co. Index No. 1535-13 _____________________________________________________________________________ Court of Appeals of the State of New York ______________________ IN THE MATTER OF ENTERGY NUCLEAR OPERATIONS, INC., ENTERGY NUCLEAR INDIAN POINT 2, LLC, ENTERGY NUCLEAR INDIAN POINT 3, LLC, Petitioners-Respondents, -AGAINST- THE NEW YORK STATE DEPARTMENT OF STATE AND CESAR A. PERALES, SECRETARY OF THE NEW YORK STATE DEPARTMENT OF STATE, Respondents-Appellants. AMICUS CURIAE APPENDIX Deborah Brancato, Esq. Manna Jo Greene Staff Attorney Environmental Action Director Riverkeeper, Inc. Hudson River Sloop Clearwater 20 Secor Road 724 Wolcott Ave Ossining, NY 10562 Beacon, NY 12508 914-478-4501 (ext. 230) 845-265-8080 (ext.7113) Hayley Carlock, Esq. Director of Environmental Advocacy Dated: January 8, 2016 Scenic Hudson, Inc. One Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 845-473-4440 (ext. 210) i TABLE OF CONTENTS Attachment 1 U.S. NRC, Procedural Guidance for Preparing Environmental Assessments and Considering Environmental Issues. NRR Office Instruction No. LIC-203, Revision 2 (Feb. 2009), available at, http://pbadupws.nrc.gov/docs/ML0808/ML080840323.pdf Attachment 2 NYS Department of Environmental Conservation, Final Environmental Impact Statement Concerning the Applications to Renew New York State Pollutant Discharge Elimination System (SPDES) Permits for the Roseton 1 & 2, Bowline 1 & 2 and Indian Point 2 & 3 Steam Electric Generating Stations, Orange, Rockland and Westchester Counties (June 25, 2003) at 57, available at, http://www.riverkeeper.org/wp- content/uploads/2015/04/Attachment-1-HRPP-FEIS- Excerpt.pdf Attachment 3 Pisces Conservation Ltd., The Status of Fish Populations and the Ecology of the Hudson (2008), available at http://www.riverkeeper.org/wp- content/uploads/2009/06/Status-of-Fish-in-the-Hudson- Pisces1.pdf Attachment 4 Pisces Conservation Ltd., The Status of Fish Populations and the Ecology of the Hudson (June 2015) Attachment 5 GZA, IPEC Quarterly Long-Term Groundwater Monitoring Report, Quarter Two 2015, Report No. 27 (December 22, 2015) at Figures 6, & 7, available at, http://www.safesecurevital.com/uploads/15-12-22-Q2-2015.pdf Attachment 6 Indian Point Nuclear Generating – Integrated Inspection Report 05000247/2015003 AND 05000286/2015003 (November 5, 2015), available at, http://adamswebsearch.nrc.gov/webSearch2/view?AccessionNu mber=ML15316A083 ii Attachment 7 The Earth Institute, Columbia University, Earthquakes May Endanger New York More Than Thought, Says Study, available at, http://www.earth.columbia.edu/articles/view/2235 Attachment 8 U.S. NRC, Presentation, Near-term Task Force Recommendation 2.1 Seismic Hazard Evaluation, Entergy (June 19, 2014) at slides 6-7, available at, http://pbadupws.nrc.gov/docs/ML1416/ML14169A489.pdf Attachment 9 NYS Sea Level Rise Task Force Report to the Legislature (Dec. 31, 2010), available at, http://www.dec.ny.gov/docs/administration pdf/slrtffinalrep.pd f